E.O. 10988
E.O. 11491
H.R. Rep. No. 95-1403, 95th Cong., 2nd Sess. (1978)
5 U.S.C. 2105
5 U.S.C. 5341
5 U.S.C. 5373
5 U.S.C. 7135
5 U.S.C. Chapter 53
5 U.S.C. Chapter 55
5 U.S.C. Chapter 73, Subchapter III
5 U.S.C. Chapter 83
5 U.S.C. Chapter 87
5 U.S.C. Chapter 89
29 U.S.C. 151 et seq. (National Labor Relations Act)
39 U.S.C. 101-5605 (1976 & Supp. V 1981) (Postal Reorgan. Act)
Prevailing Rate Act of 1972 (Pub. L. No. 92-392)
DIGEST NOTES
A proposal is negotiable that would require the agency to pay up to
75 percent of the premium cost of employee health insurance for
employees of a nonappropriated fund instrumentality. Although wages and
fringe benefits of most Federal employees are established by law, the
employees of the nonappropriated fund instrumentality in this case are
not covered by laws relating to health insurance or retirement. The
Statute provides that the scope of the duty to bargain with an exclusive
representative of its employees extends to "conditions of employment,"
which term is further defined as "personnel policies, practices and
matters affecting working conditions." Section 7103(a)(12) and (14).
Excluded from the definition of "conditions of employment" are, among
other things, matters specifically provided for by Federal statute. The
Statute also excludes from the scope of the duty to bargain proposals
which concern conditions of employment but which are inconsistent with
law and regulation. Section 7117(a). Thus under the Statute a proposed
matter which is a condition of employment and is not inconsistent with
applicable law or regulation is within the duty to bargain.
The Authority analyzed the legislative history of sections 7117(a)
and 7103(a)(14)(C), including relevant experience under Executive Order
11491, and concluded that the proposal is consistent with the effect of
the legislative history of those sections. In summary, the Authority
concluded that Congress intended the basic scope of the duty to bargain
to be at least the same under the Statute as it was under the Executive
Order. Under both, the duty to bargain explicitly extends to personnel
policies, practices, and matters affecting the working conditions of
bargaining unit employees. Bargaining over proposals inconsistent with
applicable controlling law or regulation, however, is not permitted.
Contrary to the agency, the Authority held that the proposal does not
determine the conditions of employment of nonunit employees. The agency
had argued that since the nonappropriated fund instrumentality had a
finite amounts of money, the proposal could affect employees outside the
bargaining unit by reducing the size of the budget available to provide
benefits to those non-unit employee by an amount equal to that amount
the proposal increased benefits for bargaining unit employees. The
Authority affirmed that proposals which directly determine, that is
prescribe, the conditions of employment of nonunit employees are outside
the duty to bargain. However, otherwise negotiable proposals which
directly determine conditions of employment of bargaining unit employees
are not rendered nonnegotiable simply because they affect conditions of
employment outside of the bargaining unit to a limited degree or in an
indirect way.
The proposal did not directly interfere with management's right to
determine its budget under section 7106(a)(1). The proposal establishes
a percentage of the total premium cost to be absorbed by the agency.
What that percentage means in terms of the amount to be budgeted depends
on factors not covered by the proposal, but within the agency's control,
such as total premium costs and number of employee subject to the health
insurance program. Furthermore, the agency did not demonstrate that the
proposal would result in significant and unavoidable costs which are not
offset by compensating benefits.
Finally, the agency argued that a compelling need existed for a
uniform, centrally managed health insurance program. The Authority
differentiated this proposal from proposals cited by the agency that
were decided under Executive Order 11491 by the Federal Labor Relations
Council. The Authority concluded that the agency did not demonstrate
how the proposal conflicted with the agency regulation for which a
compelling need was alleged. (majority opinion)
In a dissenting opinion, one Authority Member stated that he finds a
compelling need exists for the cited agency regulation in that it is
essential to the mission and function of the agency based on the need
for a comprehensive, uniform system of compensation for employees who
throughout the world perform the same or substantially similar work. He
further explained that absent evidence of express Congressional intent
to make compensation matters a subject of collective bargaining, he
would not imply such an intent, and hence finds such proposals not to be
negotiable as a general proposition. (dissenting opinion)
Case No. 0-NG-757
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1897
Union
and
DEPARTMENT OF THE AIR FORCE EGLIN AIR FORCE BASE, FLORIDA
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case comes before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of a single Union proposal. We find that the
proposal is negotiable.
II. Union Proposal
. . . that the Eglin and Hurlbut Nonappropriated Fund
Instrumentality (NAFI) absorb up to 75 percent of the cost of
health insurance prior to proposing to prorate any portion of the
additional increase in cost to unit employees. Further, no
increase will be imposed until all obligations under 5 USC 7117
have been fully satisfied.
III. Positions of the Parties
The proposal would require the Agency to pay up to 75 percent of the
premium cost of employee health insurance prior to increasing the amount
currently paid by bargaining unit employees and to fulfill its duty to
bargain with the Union prior to implementing any change in cost of
health insurance premiums for bargaining unit employees. The Agency
contends the proposal is outside the duty to bargain because it does not
concern conditions of employment of bargaining unit employees, affects
employees outside the bargaining unit, interferes with its right under
section 7106(a)(1) of the Statute to determine its budget, and is
inconsistent with an Agency "regulation" for which there is a compelling
need under section 7117(a)(2). The Union disputes the Agency's
contentions.
IV. Analysis and Conclusions (Footnotes appear in the
Appendix to this Decision)
A. Background
1. Establishment of Wages and Fringe Benefits for Federal Employees
In the Federal sector, the wages and fringe benefits of most
employees are established by law. For example, 5 U.S.C. Chapter 53
controls many matters relating to various pay rates and systems. Among
other things, it establishes the General Schedule and Prevailing Rate
pay systems. Chapter 55 of title 5 contains provisions which govern pay
administration including overtime and other premium pay. Chapters 83,
87 and 89 establish programs covering retirement, life insurance and
health insurance, respectively. These laws, however, do not apply
uniformly to all Federal employees. Some Federal agencies and some
types of employees who are covered by the Statute for purposes of
collective bargaining are not covered by one or another of these laws.
For example, the Federal Deposit Insurance Corporation is not subject to
the statutes governing pay rates. Nonappropriated Fund Instrumentality
(NAFI) employees as are involved in this case are not covered by laws
relating to health insurance or retirement. Teachers employed by the
Department of Defense Dependents Schools, whether overseas or at schools
on military installations in the United States, are not subject to
statutes establishing pay rates for most Federal employees but to laws
creating different salary systems. Thus, while wages and fringe
benefits of most Federal employees are established and controlled by
law, there are some exceptions where matters concerning the nature or
amount of the wages and fringe benefits are left to the discretion of
the employing agencies.
2. The Scope of Bargaining under the Statute
a. The Language of the Statute
The Statute provides that the scope of the duty of an agency to
bargain with an exclusive representative of its employees extends to
"conditions of employment," which term is further defined as "personnel
policies, practices and matters affecting working conditions." Section
7103(a)(12) and (14). Excluded from the definition of conditions of
employment are matters: (1) relating to political activities prohibited
under subchapter III of chapter 73 of title 5; (2) relating to the
classification of any position; or (3) to the extent such matters are
specifically provided for by Federal statute. Section 7114(a)(14). The
Statute also excludes from the scope of the duty to bargain proposals
which concern conditions of employment but which are inconsistent with
law and regulation. Section 7117(a). Thus, under the Statute a
proposed matter which is a condition of employment and is not
inconsistent with applicable law or regulation is within the duty to
bargain.
b. Legislative History and Congressional Intent
The legislative history of the Statute supports the conclusion that
Congress intended that matters relating to wages and fringe benefits
were to be treated in the same manner as other conditions of employment.
That is, proposals concerning them were to be within the duty to
bargain under section 7117(a) "to the extent not inconsistent with any
(applicable law, rule or regulation)" and they were to be excepted from
the definition of conditions of employment under section 7103(14)(c) if
they involved matters which were "specifically provided for by Federal
statute." The Report accompanying the House Committee bill (H.R. 11280)
states that ". . . Federal pay will continue to be set in accordance
with the pay provisions of title 5, and fringe benefits, including
retirement, insurance, and leave, will continue to be set by Congress."
1/ In discussing the negotiation of matters relating to overtime, the
House Report states that "(r)ates of overtime pay are not barganinable,
because they are specifically provided for by statute." 2/
When the House Committee bill was debated on the House floor, Members
who supported the bill reaffirmed this interpretation. Congressman
Ford, discussing the scope of the duty to bargain under the bill,
asserted that "no matters that are governed by statute (such as pay,
money-related fringe benefits, retirement, and so forth) could be
altered by negotiated agreement." 3/ Even opponents of the House
Committee bill agreed that the duty to bargain under that bill excluded
wages and fringe benefits because they were established by law. law.
Congressman Collins, in support of his proposed substitute for the House
Committee bill, described the duty to bargain under the Committee bill
as too broach because it only excluded "matter(s) relating to
discrimination, political activities, and those few specifically
prescribed by law -- for example, pay and benefits." 4/ And finally,
Congressman Udall, whose compromise version of H. R. 11280 formed the
basis of the legislation enacted by Congress and signed into law by the
President, stressed that under the "Udall substitute" matters concerning
"wages and hours and retirement and benefits will continue to be
established by law through congressional action." 5/ There are also a
number of statements to the effect that bargaining is not intended with
respect to pay and fringe benefits. While these statements are not
explicitly tied to the existence of other legal provisions governing
those matters, they were made in the context of the general debate on
the bill. 6/ Moreover, these statements must be read within the context
of the specific provision of the Statute itself. The Statute as enacted
established an explicit scope of bargaining along with explicit
exceptions. Nowhere in the Statute is there any language either
excluding the general subject of wages and fringe benefits from the
definition of conditions of employment or otherwise prohibiting
negotiations on such matters in particular.
The only explicit statement regarding the obligation to negotiate
over wages appears at section 704 of the Civil Service Reform Act of
1978 7/ (CSRA). This section authorizes bargaining on wages and
"employment benefits" for certain prevailing rate employees whose wage
rates would otherwise be controlled by the procedures established under
the Prevailing Rate Act of 1972, Pub. L. No. 92-392. Section 704 is
simply an extension and clarification of section 9(b) of the Prevailing
Rate Act, which exempted prevailing rate employees who had previously
negotiated wages and other conditions of employment from the coverage of
that Act. 8/ See Columbia Power Trades Council and United States
Department of Energy, Bonneville Power Administration, 22 FLRA No. 100
(1986). In the absence of that exemption, the wages of those employees
would have been established pursuant to law. Consequently, section 704
by authorizing such bargaining, acts as an exception to the limitation
on bargaining over matters which are specifically provided for by
Federal statute or which are inconsistent with law.
The Statute and its legislative history should be read in light of
the Executive Orders which preceded it. In this regard the Report
accompanying Executive Order 10988 stated that "(t)he employer in most
parts of the Federal government cannot negotiate on pay, hours of work
or most fringe benefits. These are established by law." 9/ This
statement accurately reflected the legal context of Federal employment
as outlined above: most Federal agencies and employees were, as they
continue to be, subject to the laws establishing pay and fringe
benefits, but some are not. 10/ Likewise under Executive Order 11491,
the duty to bargain similarly extended to personnel policies, practices
and matters affecting working conditions "so far as may be appropriate
under applicable laws and regulations." Section 11(a).
Consistent with this principle, only those Federal employees whose
wages and fringe benefits were not established by law could bargain over
them under the Executive Order. For example, in United Federation of
College Teachers, Local 1460 and U.S. Merchant Marine Academy, 1 FLRC
211 (1972), the Federal Labor Relations Council (the Council) ruled in
essence that the pay of the faculty at the Merchant Marine Academy, 1
FLRC 211 (1972), the Federal Labor Relations Council (the Council) ruled
in essence that the pay of the faculty at the Merchant Marine Academy
was not specifically established by law. Rather, the Merchant Marine
Act gave the Secretary of Commerce discretion to set faculty salaries.
The Council held that proposals relating to teacher salary schedules did
not violate those laws and, since they were otherwise negotiable, were
within the agency's duty to bargain. In Overseas Education Association,
Inc. and Department of Defense, Office of Dependents Schools, 6 FLRC 231
(1978), the Council held that proposals prescribing procedures and
formulas to be used in determining teacher compensation were within the
duty to bargain. The Council determined that the Department of Defense
Overseas Teachers Pay and Personnel Practices Act, 73 Stat. 213 (1959),
did not bar negotiation on the proposal. In other cases the Council
held proposals concerning wages and fringe benefits nonnegotiable not
because they were not matters affecting conditions of employment but,
rather, because they were inconsistent with applicable laws and
regulations. For example, in American Federation of Government
Employees, Local 1778 and McGuire Air Force Base, New Jersey, 6 FLRC 136
(1978), the Council held proposals relating to wage rates and retirement
plans nonnegotiable because the agency established that they conflicted
with an agency regulation for which a compelling need existed. Although
this decision is relied upon by the Agency and the dissenting opinion in
this case, we believe such reliance is inapposite. See section B.4. of
this decision. Also, in International Association of Siderographers,
AFL-CIO, Washington Association and Department of the Treasury, Bureau
of Engraving and Printing, 6 FLRC 1157 (1978), the Council held that a
proposal, which established a standard for setting the pay of certain
employees of the Bureau of Engraving and Printing, was nonnegotiable
because it was inconsistent with law.
c. Summary
Congress intended the basic scope of the duty to bargain to be at
least the same under the Statute as it was under the Executive Order.
11/ Under both, the duty to bargain explicitly extends to personnel
policies, practices, and matters affecting the working conditions of
bargaining unit employees. Bargaining over proposals inconsistent with
applicable controlling law or regulation, however, is not permitted.
Under the Executive Order the Council held pay and fringe benefits
proposals to be bargainable to the extent that they concerned matters
which were (1) within the discretion of agencies and (2) not
inconsistent with applicable laws and regulations. These decisions were
a part of the record before the Congress when it enacted the Statute.
Usually when Congress adopts a new law which incorporates provision of
prior law, it is presumed to be aware of administrative interpretation
of that law and to adopt those interpretations. See Lorillard v. Pons,
434 U.S. 575 (1978), see also New York Council, Association of Civilian
Technicians v. FLRA, 757 F.2d 502, 509 (2nd Cir. 1985); Florida
National Guard v. FLRA, 699 F.2d 1082 (11th Cir. 1983). Had Congress
intended that a different approach as to the negotiability of pay and
fringe benefits be applied under the Statute, it could very easily have
incorporated specific language in the Statute to accomplish that effect.
It should be noted that Congress used specific language to except from
the obligation to bargain matters relating to political activities
prohibited under subchapter III of chapter 73 of title 5 and the
classification of positions. Section 7103(a)(14)(A) and (B). However,
it has not incorporated such an exclusion regarding pay, fringe benefits
or any related matters.
We are of the view that the legislative history of the Statute, read
as a whole regarding bargaining over pay and fringe benefits, does not
compel a conclusion that Congress sought to deviate from either
Executive Order practice or from the overall definition of the scope of
the duty to bargain embodied in the Statute. Usually legislative
history is used to clear up ambiguities in statutory language. However,
the fact that a statute has relatively plain meaning should not serve to
thwart or distort the intent of Congress by excluding from consideration
enlightening material from legislative history. Nonetheless the clearer
the statutory language, the more compelling the legislative history must
be to overcome that language. 2A N. Singer, Sutherland Stat. Const.
Section 48.01 (4th Ed. 1984). The more precise statements in the
legislative history, as noted above, specifically tie the prohibition on
bargaining over pay and fringe benefits to the existence of other laws
which govern those subjects. Other more general statements are couched
in terms of assurances that the legislation under consideration does not
represent a radical change or significant expansion in the scope of
Federal section collective bargaining. See, for example, the Clay and
Ford statements quoted at note 6, infra, which appeared at H.R. Rep. No.
95-1403, 95th Cong., 2nd Sess. 377 (1978); Legislative History at 721
and 124 Cong. Rec. H8467 (daily ed. Aug. 11, 1978); Legislative History
at 854-6. Still others, simply state that pay and fringe benefits are
not negotiable. See, note 6, infra, at 2 app.
Even taking the legislative history in a light most favorable to the
Agency's position that pay and fringe benefits are not negotiable, that
history is at best ambiguous. However, the definition of the scope of
bargaining which is embodied in the Statute is perfectly clear. Under
that definition, and consistent with practice under the Executive Order,
substantive proposals regarding pay and fringe benefits which are not
specifically provided for by Federal statute, and any other conditions
of employment are negotiable to the extent they are not inconsistent
with applicable laws, rules and regulations if the matters proposed are
within an agency's discretion. To the extent that Chairman Calhoun's
dissenting opinion implies otherwise, we respectfully disagree.
Ambiguous legislative history does not compel a different conclusion.
See American Federation of Government Employees, Locals 225, 1504, and
3723, AFL-CIO v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983); Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29 (1971).
While not of controlling significance, of course, as to determining
what is the scope of the duty to bargain under the Statute, we note that
where Congress expressly establishes pay and fringe benefits for Federal
employees, that legislative process is not without its elements of
"negotiation." The setting of wages is accomplished by the same process
as any other piece of legislation. Typically, the President submits a
pay proposal, both the Senate and House of Representatives consider the
proposal, unions and other interested parties lobby, they along with
representatives of the Administration may testify, and a compromise may
have to be reached. Finally, a bill passes, which the President must
act on before the process is completed. So, where Congress does not
expressly establish pay and fringe benefits, some balancing of forces
and interests through negotiations is consistent with that process.
3. Decisions under the Statute
Consistent with this statutory definition of the scope of bargaining,
the Authority has held substantive proposals regarding pay nonnegotiable
if they relate to a matter specifically provided for by Federal law.
For example, American Federation of Government Employees, AFL-CIO,
Council of Federal Grain Inspection Locals and United States Department
of Agriculture, Federal Grain Inspection Service, Washington, D.C., 3
FLRA 530 (1980), aff'd sub nom. American Federation of Government
Employees, AFL-CIO v. Federal Labor Relations Authority, 653 F.2d 669
(D.C. Cir. 1981); National Treasury Employees Union and Pension Benefit
Guaranty Corporation, 9 FLRA 692 (1982), aff'd sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, 711 F.2d
420 (D.C. Cir. 1983). In other cases, the Authority has held proposals
on wage-related matters negotiable if they do not concern matters
specially provided for by law and are otherwise consistent with
applicable law and regulations. Fort Bragg Unit of North Carolina
Association of Educators, National Education Association and Fort Bragg
Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519, 521 (1983).
B. Negotiability of the Proposal in This Case
1. The Proposal Does Not Concern Matters Provided for by Law
The Agency states that "premiums for 'health insurance benefits' for
the employees (nonappropriated fund employees) concerned in the instant
case have never been paid pursuant to a Federal statute." Agency
Statement of Position at 9. Nonappropriated fund employees are excluded
from the coverage of Chapter 89 of title 5 of the United States Code,
which governs health insurance plans administered by the Office of
Personnel Management. 12/ Health insurance matters with respect to these
employees are governed by agency regulations. Since the proration of
the cost of premiums for health insurance benefits is not a matter
specifically provided for by Federal statute, this matter is not
excepted from the definition of conditions of employment under section
7103(a)(14)(C) of the Statute.
2. The Proposal Does Not Determine the Conditions of Employment of
Nonunit Employees
The Agency claims that, since Nonappropriated Fund Instrumentalities
(NAFIs) with finite amounts of money are involved herein, the proposal
could affect employees outside the bargaining unit. Thus, according to
the Agency, the proposal would concern matters beyond the conditions of
employment of bargaining unit employees and would be outside its duty to
bargain. The Agency, in essence, is claiming that, if it pays more
toward the cost of health insurance premiums for bargaining unit
employees than it pays for nonbargaining unit employees, the latter
employees will be affected thereby either because they will receive less
toward their health insurance premiums or less towards the cost of some
other employer-provided benefit than they had previously received.
It is well settled that matters which are conditions of employment of
employees in a bargaining unit and are within the discretion of the
agency involved are within the duty to bargain. For example, National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 759-60 (1980). Proposals which directly
determine, that is prescribe, the conditions of employment of nonunit
employees are outside the duty to bargain. However, otherwise
negotiable proposals which directly determine conditions of employment
of bargaining unit employees are not rendered nonnegotiable simply
because they also affect conditions of employment outside of the
bargaining unit to a limited degree or in an indirect way. American
Federation of Government Employees, Local 32, AFL-CIO and Office of
Personnel Management, 22 FLRA No. 49 (1986), petition for review filed
sub nom. American Federation of Government Employees, Local 32 v.
Federal Labor Relations Authority, No. 86-1447 (D.C. Cir. Aug. 11,
1986).
The Union claims that the proposal does not concern employees outside
of the bargaining units involved and states that it "merely requires the
agency to do something with respect to bargaining unit employees while
allowing the agency to maintain the status quo for employees outside the
unit (.)" Union Reply Brief at 8. The proposal does not prescribe what
the Agency would pay towards the cost of nonbargaining unit employee
benefits or even that it make lesser contributions as opposed to using
other means to finance its increased costs with respect to bargaining
unit employee benefits. Consequently, we cannot conclude that the
proposal directly determines the conditions of employment of nonunit
employees. Based on the principles set forth above, the Agency's
argument does not present a basis for finding the proposal
nonnegotiable.
Moreover, we believe the argument is basically flawed. Much of
collective bargaining entails the distribution of finite resources. The
Agency's argument seems to presume that Congress intended to establish a
system in which the duty to bargain arises only where infinite resources
are available to it. Compare American Federation of Government
Employees v. Federal Labor Relations Authority, 785 F.2d 333, 337-8,
(D.C. Cir. 1986) in which the Court noted that under the Statute an
agency was not released from its duty to bargain whenever it had
suffered economic hardship.
3. The Proposal Does Not Directly Interfere With Management's Right
To Determine Its Budget Under Section 7106(a)(1)
The Agency also contends that since it has decided to pay 46% of the
cost of health insurance premiums for all covered employees, any
increase in the employer's share of bargaining unit employee premium
payments would require adjustments to other budgetary allocations
considering the funding process of NAFIs. Thus, according to the
Agency, the proposal has a direct impact on budgetary items and
interferes with management's right to determine its budget.
We find that the Union's proposal would not directly interfere with
the Agency's right to determine its budget. Under the test set forth 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.
Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert.
denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), we find that the
proposal does not require the Agency to include a particular program or
operation in its budget. Employer contributions to the cost of employee
health insurance premiums are already included in budgets of the NAFIs
at Eglin and Hurlbut Air Force Bases. Agency Statement of Position at
10-14. The proposal does not directly determine the specific amount
which the Agency must allocate to that program. It establishes a
percentage of the total premium cost to be absorbed by the Agency. What
that percentage means in terms of the amount to be budgeted depends on
factors not covered by the proposal, but within the Agency's control,
such as total premium cost and number of employees subject to the health
insurance program. Furthermore, the Agency has not made a substantial
demonstration that the proposal would result in significant and
unavoidable costs which are not offset by compensating benefits. The
Agency claims that implementation of the Union's proposal would
potentially increase the costs of the employer's share of health
insurance premiums. Agency Statement of Position at 11-13. The Agency
does not show, however, that such an increase would be unavoidable or
that it would not be offset by compensating benefits.
4. The Agency Has Not Demonstrated a Conflict Between the Proposal
and Agency Regulations
The Agency argues that a compelling need exists for a uniform,
centrally managed health insurance program. It contends that its
program, including its policy determinations as to the employer
contributions to the premium cost, meets the Authority's criteria for
determining compelling need set forth at 5 CFR Section 2424.11(a). In
its statement of position it provides no specific citation to its rules
and regulations but relies generally on Department of the Air Force and
Department of Defense regulations which set forth personnel policies and
procedures pertaining to NAF instrumentalities and employees. It has
submitted "relevant excerpts" of Air Force Regulations 34-3 and 40-7 as
well as Department of Defense Regulation 1401.1-M.
To establish a compelling need for an agency-wide 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 Authority's standards set forth in section 2424.11
of its regulations. Generalized and conclusionary reasoning is not
enough to support a finding of compelling need. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). Here,
the Agency has not even demonstrated that the proposal actually
conflicts with a specific agency-wide regulation. The excerpts of
regulations which it has submitted generally set forth policies,
organization, and practices for the administration and management of
NAFIs and their employees. Among other things, the regulations place
responsibility for policy direction of all Air Force NAFIs with the Air
Force Welfare Board (AFWB) and provide for an Agency-sponsored group
health insurance plan. However, nowhere do the excerpted portions of
the regulations submitted prescribe what percentage of the premium will
be paid by the employer or even that the percentage should be uniform
throughout the Agency NAFI system. Moreover, we do not view local
negotiations over the level of employer contribution to the premium as
inherently inconsistent with the general concept of providing central
management and policy direction in the NAFI system or a uniform program
of health insurance benefits. See American Federation of Government
Employees, AFL-CIO, Local 2670 and Army and Air Force Exchange Service,
Keesler Air Force Base Exchange, Mississippi, 10 FLRA 71, 73-75 (1982).
Therefore, the Agency's assertion that the proposal conflicts with an
agency rule or regulation for which a compelling need exists cannot be
sustained.
The reliance placed by the Agency on the decision of the Federal
Labor Relations Council in American Federation of Government Employees
Local 1778 and McGuire Air Force Base, New Jersey, 6 FLRC 136 (1978) is
inapposite. First of all, in McGuire Air Force Base the Council found
that the agency had established a conflict between the proposals which
were in dispute and the agency's regulations. The Agency has not
established such a conflict in the present case. Moreover, the
proposals which were involved in McGuire Air Force Base are materially
different from the proposal in the present case for the following
reasons.
Proposals I and III in McGuire Air Force Base would have rendered
negotiable the pay of certain categories of NAFI employees. The Council
held that the agency had established that its regulations concerning
employee pay with which the proposal conflicted were essential to
effectuate the "public interest" which, the Council stated, was
"expressly set forth by Congress in Public Law 92-392" which covered
some NAFI employees and had been extended administratively to cover
other NAFI employees, including those to whom the proposals would apply,
"'consistent with (an agency) commitment to Congress' during the
legislative process." In the present case no such public interest,
either Congressionally or otherwise defined, has been established by the
Agency.
Proposal IV in McGuire Air Force Base sought to establish a separate
retirement plan for employees in the bargaining unit in place of the
single plan which existed to cover all NAFI employees in the Air Force.
The agency established that the public interest in a financially
solvent, secure and completely dependable plan for retiring NAFI
employees would not be effectuated by the separate plan which was
proposed. In sharp contrast, the proposal at issue in the present case
does not seek to except the NAFI employees at Eglin Air Force Base from
the central health insurance program which the Agency has established.
Moreover, it has not been shown that the proposal would prevent the
effectuation of the public interest in assuring a dependable health
insurance program for any NAFI employees.
Finally, while not of controlling significance as to determining
whether a matter is within the duty to bargain under the Statute, we
note that for most Federal employees, there is a wide selection of
health plans from which to choose. The choices range from different
benefits to different levels of contribution by both the individual and
the Federal government. These plans have been negotiated with the
providers of the health plans. Through this procedure, these employees
have been given the capability to select the plan which meets their
needs and, most importantly, is within their financial ability to pay.
It would seem that this same capability should be available to other
employees.
V. Summary and Conclusion
The subject of wages and fringe benefits is not in and of itself
excluded from the scope of the duty to bargain as defined by the
Statute. The proposal in this case does not relate to a matter which is
specifically provided for by Federal statute and, therefore, does not
come within the exceptions to the definition of conditions of employment
under section 7103(a)(14)(C) of the Statute. Moreover, the proposal
does not determine the conditions of employment of nonunit employees or
interfere with the Agency's right to determine its budget. Lastly, the
Agency has not established that the proposal conflicts with an agency
rule or regulation for which a compelling need exist. Consequently, we
find that the proposal is within the duty to bargain.
VI. Order
The Agency shall upon request or as otherwise agreed to by the
parties, negotiate over the Union's proposal. 13/
Issued, Washington, D.C., December 9, 1986.
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DISSENTING OPINION OF CHAIRMAN CALHOUN
I respectfully disagree with my colleagues. I conclude that the
proposal in this case is not a proper subject of bargaining. I also
disagree with my colleagues in their analysis of the extent to which
wages and money-related fringe benefits (including the determination of
health insurance benefits) are appropriate subjects of collective
bargaining for certain Federal employees beyond this case.
Non-appropriated Fund Instrumentality (NAFI) employees are a unique
group of Federal employees. Although they enjoy the right to organize
and bargain collectively under the Federal Service Labor-Management
Relations Statute (the Statute), they do not serve in the competitive
service and are not subject to a wide range of the statutorily created
benefits (and strictures) shared by most Federal employees. See 5
U.S.C. Section 2105.
In lieu of the statutory and regulatory scheme applied to most
Federal employees, NAFI employment within the Department of Defense is
generally governed by a comprehensive regulatory scheme emanating from
the Secretary of Defense and further implemented world-wide by various
components of the military departments. In my view, this regulatory
scheme equates to the statutory provisions affecting the wages and
monetary fringe benefits of most Federal employees. As such, I conclude
that a compelling need exists for the regulatory scheme, and matters
provided for by those regulations are therefore not a proper subject of
collective bargaining.
Eight years ago the Authority's predecessor organization, the Federal
Labor Relations Council, addressed the efficacy of these very same
regulations. In American Federation of Government Employees, Local 1778
and McGuire Air Force Base, New Jersy, 6 FLRC 136 (1978), the Union
sought to negotiate proposals concerning both the pay and retirement
systems for NAFI employees. The Council found both proposals to be
nonnegotiable because a compelling need existed for the Department of
Defense and Department of the Air Force Regulations setting forth
comprehensive compensation schemes concerning the subject matter of the
proposals. Specifically with respect to the matter of contributions to
the retirement plan, the Council found that the centrally administered
retirement program which provided benefits generally comparable to those
provided Federal Civil Service employees, "effectuates the public
interest" and that "uniformity is essential to the assurance of a
financially solvent and fully reliable retirement program for the NAF
employees here involved." 6 FLRC at 148.
While I recognize that the criteria used to determine compelling need
questions have been modified under Authority regulations, those
modifications do not prevent reaching the same conclusion in the instant
case. It is my view that the regulatory scheme remains "essential, as
distinguished from helpful or desirable, to the accomplishment of the
mission or execution of functions of the agency . . . in a manner which
is consistent with the requirements of an effective and efficient
government." 5 C.F.R. Section 2424.11(a). I find no reason to depart
from the holding and precedent of the Council in McGuire Air Force Base.
See 5 U.S.C. Section 7135. I share the same concerns expressed by the
Council about the need for uniformity of treatment of NAFI employees.
To have such matters negotiable at Eglin Air Force Base and
nonnegotiable at McGuire Air Force Base makes no sense whatsoever.
These concerns lead me to conclude that absent evidence of express
Congressional intent to make wages and monetary fringe benefits a
subject of collective bargaining in the Federal sector the Authority
should not, as a general proposition, find such proposals negotiable.
Although I believe this case can, and should be, resolved on the
basis of compelling need, it is my opinion that extremely important
public policy considerations attach to the Authority's adjudication of a
number of pending cases now before us which involve the negotiability of
bargaining proposals relating to matters of compensation or
monetary-related fringe benefits. These cases require uniform
resolution of issues similar to the one in this case. Therefore I turn
to the question my colleagues raise as to what issues relating to wages
and money-related fringe benefits are in their view appropriate subjects
of collective bargaining.
As described in the majority opinion, the wages and fringe benefits
of most Federal employees are established by law. However, there are in
excess of 40 Federal pay systems which are not subject to statutorily
determined salary and wage schedules. Agency heads have the authority
under these systems to determine the pay of Federal service employees
working within their respective agencies. Many of these compensation
systems have evolved without any apparent recognition, endorsement, or
legislative attention by the Congress.
My colleagues conclude that in every case where there is discretion
involved or when Congress is silent, the matters at issue are
appropriate for collective bargaining. The hypothesis has superficial
appeal. I would, however, go further to recognize that as Members of
the Authority we have an affirmative obligation to look behind such
pronouncements and weigh the interests of the parties, and all related
policy considerations. Sometimes examination of these factors will
indicate a necessity for judicial restraint in the face of Congressional
silence, and a finding to withhold a matter from bargaining. I believe
that is the case here. In the absence of a clear expression of
Congressional intent to make these matters negotiable, the Authority
should not imply such an intent.
The legislative history discussed in the majority opinion is not
conclusive of the matter but does, I believe, lend support to the
general proposition that Congress in enacting the Statute did not intend
wage and monetary fringe benefits to be included in the basic scope of
Federal sector collective bargaining. For example, Congressmen Clay and
Ford, the primary sponsors of the labor management relations bill,
stated in Supplementary comments to the staff report accompanying their
bill:
Those of our colleagues who are concerned that this bill will
significantly expand the collective bargaining rights of Federal
employees need not worry. It does not. Enactment of the
committee approved labor-management title will continue to deny to
Federal employees most of the collective bargaining rights which
their counterparts in the private sector have enjoyed for over 40
years. Among the collective bargaining rights not included in the
bill are:
. . . . . . .
(2) The right to bargaining collectively over pay and
money-related fringe benefits such as retirement benefits and life
and health insurance(.) H.R. REP. NO. 95-1403, 95th Cong., Sess.
377 (1978); Legislative History, at 721.
Congressman Udall, whose substituted version of the Ford-Clay bill
formed the basis for the legislation enacted by Congress, stated:
There is not really any argument in this bill or in this title
about Federal collective bargaining for wages and fringe benefits
and retirement -- the kinds of things that are givin us difficulty
in the Postal Service today. All these major regulations about
wages and hours and retirement and benefits will continue to be
established by law through congressional action. (emphasis
supplied) 124 Cong. Rec. H 9633 (daily ed. Sept. 13, 1978);
Legislative History, at 923.
Congress did not provide specific authorization for negotiation of
pay and fringe benefit matters affecting the wide variety of
administratively determined pay systems which are not a part of the
statutory Federal pay structure. Thus, it is my view that the question
of the negotiability of such matters is not definitively resolved by
resort to the legislative history of the Statute. Absent specific
indication of a Congressional intent to make pay and monetary fringe
benefits a subject of labor-management negotiations, I believe that
strong public policy considerations exist for permitting agencies to
establish unified, consistent systems for determining such matters. To
find such matters generally negotiable would likely result in the
internal balkanization of salaries and benefits within the various pay
systems. This would destroy the uniformity sought by the Congress in
providing specific methodologies for pay setting in administratively
determined systems. I find support for this determination in certain
actions taken by Congress in the past.
When Congress passed the Postal Reorganization Act (PRA), 39 U.S.C.
Sections 101-5605 (1976 & Supp. V 1981), it gave postal employees the
right to bargain over all compensation, benefits and other conditions of
employment. Congress in effect "created a new kind of Federal
employee." /1/ "Postal workers would henceforth be hybrid employees,
with some of the rights and benefits of federal employees and some of
the rights and benefits of private employees, most importantly, the
right to bargain collectively (on compensation issues)." American Postal
Workers Union v. U.S. Postal Service, 707 F.2d 548, 556 (D.C. Cir.
1983). Thus where Congress chose to introduce unrestricted wage and
benefit bargaining into the federal labor relations scheme, it
manifested such an intent by statutory expression which serves to define
the parameters within which such activity would be conducted. /2/
Other variations to the normal Federal pay setting structure are also
evidenced by affirmative Congressional action. When Congress
established the "prevailing rate system," 5 U.S.C. Sections 531-5349,
/3/ and allowed collective bargaining by certain skilled trade and craft
employees on monetary issues, it did not leave the parties to determine
the scope of such negotiations but instead provided clear procedures for
the determination of such matters. Previous Congressional expressions
that collective bargaining by such employees was in the public interest
were specifically carried forward in section 704 of the Civil Service
Reform Act. See, for example, Columbia Power Trades Council and United
States Department of Energy, Bonneville Power Administration, 22 FLRA
No. 100 (1986).
In International Organization of Masters, Mates, and Pilots v. Brown,
698 F.2d 536 (D.C. Cir. 1983), the court, in finding that high ranking
civilian mariners were subject to the "pay cap" provisions of 5 U.S.C.
Section 5373, stated that "Congress wanted the pay cap to cut a wide
swath . . . Congress deliberately and expressly carved out certain
exceptions . . . but did not exempt the mariners." Id. at 542. Absent
indications to the contrary I can only conclude that Congress intended
by its expressions of intent that wages and money-related fringe
benefits be excluded from collective bargaining, to cut the same "wide
swath" when it enacted the Statute.
With the notable exception of prevailing rate employees and postal
workers, I conclude that Congress envisioned that the pay and monetary
benefits of Federal employees covered by the Statute be set in a uniform
manner, whether by statute or administrative action. Congressional
recognition of the need for stability and uniformity among prevailing
rate employees is found in 5 U.S.C. Section 5341, and the Authority has
previously accepted such a finding in determing the existence of a
"compelling need" for agency regulations setting uniform pay systems for
employees not covered by, but serving in positions analogous to, those
covered by the General Schedule. National Treasury Employees Union,
Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C.,
14 FLRA 598 (1984), decision on remand, 21 FLRA No. 36 (1986).
Jerry L. Calhoun, Chairman
FOOTNOTES
(1) 116 Cong.Rec. 20,229 (1970) (remarks of Congressman Udall.)
(2) Postal Service labor-management relations are conducted under the
National Labor Relations Act (NLRA), 29 U.S.C. Section 151, et seq. In
enacting the Federal Service Labor-Management Relations Statute,
Congress did not include employees of the Postal Service, or the
Tennessee Valley Authority (an analogous labor relations situation)
within the coverage of the basic Federal section program.
(3) The prevailing rate system provides method by which the pay of
certain craft and skilled employees may be adjusted from time to time so
that their compensation is consistent with that of employees in the
private sector. Such adjustment must be accomplished "consistent with
the public interest." See National Maritime Union of America v. United
States, 682 F.2d 944 (Ct. Cl. 1982).
APPENDIX
1/ H.R. REP. NO. 95-1403, 95th Cong., 2nd Sess. 12 (1978);
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978 at 682.
(Herein after referred to as "Legislative History.")
2/ H.R. REP. NO. 95-1403, 95th Cong., 2nd Sess. 44 (1978);
Legislative History at 690.
3/ See the remarks of Congressman Ford, 124 Cong. Rec. H8468 (daily
ed. Aug. 11, 1987); Legislative History at 855-56.
4/ See the statement of Congressman Collins in support of his
substitute for the House Committee bill:
The House committee bill, on the other hand, broadly defines
scope of bargaining by saying that "conditions of employment"
excludes only matter relating to discrimination, political
activities, and those few specifically prescribed by law -- for
example, pay and benefits.
124 Cong. Rec. H9624 (daily ed. Sept. 13, 1978); Legislative History at
906.
5/ See the remarks of Congressman Udall, 124 Cong. Rec. H9633 (daily
ed. Sept. 13, 1978); Legislative History at 923: "All these major
regulations about wages and hours and retirement and benefits will
continue to be established by law through congressional action."
6/ See, for example, H.R. REP. No. 95-1403, 95th Cong., 2nd Sess. 5
(1978); Legislative History at 681 which states as follows:
Title VII establishes a new program and provides for greater
employee and employee organization participation. However, title
VII does not authorize collective bargaining on substantive issues
of pay and fringe benefits, as is currently permitted in some
agencies, such as the Postal Service, the Tennessee Valley
Authority, and the Bonneville Power Administration.
Congressmen Clay and Ford, the primary sponsors of the
labor-management relations bills previously introduced in Congress,
stated in supplementary comments to the Committee Report as follows:
Those of our colleagues who are concerned that this bill will
significantly expand the collective bargaining rights of Federal
employees need not worry. It does not. Enactment of the
committee approved labor-management title will continue to deny to
Federal employees most of the collective bargaining rights which
their counterparts in private sector have enjoyed for over 40
years. Among the collective bargaining rights not included in the
bill are:
. . . . . . .
(2) The right to bargain collectively over pay and
money-related fring benefits such as retirement benefits and life
and health insurance(.)
H.R. REP. NO. 95-1403, 95th Cong., 2nd Sess. 377 (1978); Legislative
History at 721.
Congressman Clay and Ford reiterated this position in their comments
supporting H.R. 11280 in the House debate on the bill. In particular,
Congressman Clay states as follows:
I also want to assure my colleagues that there is nothing in this
bill which allows Federal employees . . . to negotiate over pay
and money-related fringe benefits.
124 Cong. Rec. H8466 (daily ed. Aug. 11, 1978); Legislative History at
853. See also the remarks of Congressman Clay at 124 Cong. Rec. E429
(daily ed. Aug. 3, 1978); Legislative History at 839-40.
Congressman Ford stated as follows:
A committee print of title VII was used for markup purposes. That
print was similar to H.R. 9094 (a bill sponsored by Congressmen
Clay and Ford) except that . . . there was no provision for the
negotiation of pay and other major money related fringe benefits.
I have been quite frankly surprised with the rhetoric and
hysteria that has accompanied consideration of title VII. It is
not a radical departure from the present system, but is a small,
incremental step forward.
As the sponsor of H.R. 1589, the Federal Employees Labor
Relation Act of 1977, the predecessor to H.R. 9094, which provided
for the negotiation of pay and fringe benefits; the negotiation
of all agency regulations; and automatic agency shop; and a
limited right to strike (based on Canadian law) -- all of which, I
might emphasize, have been deleted from title VII -- I can assure
Members that expansion in the scope of bargaining in title VII has
been a very modest, incremental step that comes nowhere near the
scope of bargaining that most (s)tates permit for public employees
or that we permit for postal workers.
124 Cong. Rec. H8467 (daily ed. Aug. 11, 1978); Legislative History at
854-6.
For other statements on this subject in the legislative history, see
statement of Congressman Clay, 124 Cong. Rec. E4509 (daily ed. Aug. 10,
1978), Legislative History at 844-845; statement of Congressman Udall,
124 Cong. Rec. H8462-3 (daily ed. Aug. 11, 1978), Legislative History at
850-51; statement of Congressman Derwinski, 124 Cong. Rec. H9639 (daily
ed. Sept. 13, 1978), Legislative Hisotry at 935; statement of
Congressman Ford, 124 Cong. Rec. H9648-51 (daily ed. Sept. 13, 1978),
Legislative History at 952-958; statement of Congressman Rousselot, 124
Cong. Rec. H9651-52 (daily ed. Sept. 13, 1978), Legislative History at
958-959; statement of Congressman Fisher, 124 Cong. Rec. H9668-69
(daily ed. Sept. 13, 1978), Legislative History at 964; Statement of
Senator Sasser, 124 Cong. Rec. S14280-82 (daily ed. Aug. 24, 1978),
Legislative History at 1014-1015.
See also S. REP. NO. 95-969, 95th Cong., 2nd Sess. 12-13 (1978),
Legislative History at 749-750.
7/ Section 704 of the Civil Service Reform Act of 1978 provides as
follows:
Sec. 704. (a) Those terms and conditions of employment and
other employment benefits with respect to Government prevailing
rate employees to whom section 9(b) of Public Law 92-392 applies
which were the subject of negotiation in accordance with
prevailing rates and practices prior to August 19, 1972, shall be
negotiated on and after the date of the enactment of this Act in
accordance with the provisions of section 9(b) of Public Law
92-392 without regard to any provision of chapter 71 of title 5,
United States Code (as amended by this title), to the extent that
any such provision is inconsistent with this paragraph.
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent
with this paragraph;
(B) subchapter IV of chapter 53 and subchapter V of chapter 55
of title 5, United States Code; or
(C) any rule, regulation, decision, or order relating to rates
of pay or pay practices under subchapter IV of chapter 53 or
subchapter V of chapter 55 of title 5, United States Code.
8/ Pub. L. No. 92-392, Section 9(b), provides as follows:
Sec. 9. (b) The amendments made by this Act shall not be
construed to --
(1) abrogate, modify, or otherwise affect in any way the
provisions of any contract in effect on the date of enactment of
this Act pertaining to the wages, the terms and conditions of
employment, and other employment benefits, or any of the foregoing
matters, for Government prevailing rate employees and resulting
from negotiations between Government agencies and organizations of
Government employees;
(2) nullify, curtail, or otherwise impair in any way the right
of any party to such contract to enter into negotiations after the
date of enactment of this Act for the renewal, extension,
modification, or improvement of the provisions of such contract or
for the replacement of such contract with a new contract; or
(3) nullify, change, or otherwise affect in any way after such
date of enactment any agreement, arrangement, or understanding in
effect on such date with respect to the various items of subject
matter of the negotiations on which any such contract in effect on
such date is based or prevent the inclusion of such items of
subject matter in connection with the renegotiation of any such
contract with a new contract, after such date.
9/ See A Policy for Employee-Management Cooperation in the Federal
Service, Report of the President's Task Force on Employee-Management
Relations in the Federal Service (November 30, 1961, Legislative History
at 1177, 1200-01.
The Report stated as follows:
It must be recognized that a major and perhaps controlling
distinction between the type of employee-management relations that
have developed in private industry and those which are possible in
the Federal service is that in the latter neither the employer nor
his employees are free to bargain in the ordinary sense. The
employees cannot strike, nor be represented by an organization
affiliated with a group which asserts the right to strike against
the Government. The employer in most parts of the Federal
Government cannot negotiate on pay, hours of work or most fringe
benefits. These are established by law.
Generally, negotiations may take place on policies in such
areas of employee concern as working conditions, promotion
standards, grievance procedures, safety, transfers, demotions,
reductions in force, and other matters, consistent with merit
system principles. It may be noted that in the public hearings
held by the Task Force the representatives of the major employee
organizations in the Federal Government made it clear that they
are aware of these limitations and are quite content to negotiate
within them.
In this matter as in most others, the Task Force is of the
opinion that each department and agency of the Government should
be left to determine its own practice. As a general rule,
however, it may be said that a negotiable matter must be within
administrative discretion, that is, it must be within the
authority of the manager who is negotiating, and permissible by
applicable laws, executive orders, and Administration and agency
policy. In general, it will be in the area of working conditions
and personnel policies and practices. It should not include
matters concerning an agency's mission, its budget, its
organization and assignment of personnel, or the technology of
performing its work. Major reorganizations or changes in work
methods, while not negotiable themselves, will involve
implementation problems that may be negotiable such as promotion,
demotion and training procedurs.
Specific areas that might be included among subjects for
consultation and collective negotiations include the work
environment, supervisor-employee relations, work shifts and tours
of duty, grievance procedures, career development policies, and
where permitted by law the implementation of policies relative to
rates of pay and job classification. This list is not, of course,
all-inclusive, nor should it be expected that every agency will
feel free to negotiate in all such areas.
10/ To the extent that a matter affecting conditions of employment is
not specifically provided for by law and is not otherwise inconsistent
with law and regulation it is within the agency's discretion. As the
portion of the Report accompanying E.O. 10988 quoted above at note 9,
indicates, such discretion has been subject to bargaining since the
outset of the labor relations program in the Federal Government. The
Federal Labor Relations Council consistently held that otherwise
negotiable matters which were within an agency's discretion were subject
to collective bargaining. See, for example, National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, Region VII,
5 FLRC 250, 252 (1977). The Authority has similarly interpreted the
Statute. See, for example, National Treasury Employees Union, Chapter 6
and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-62
(1980). Consistent with this long-standing precedent in the Federal
sector, the Authority has held that where matters relating to wages and
fringe benefits are within an agency's discretion under law and
regulation they are within the duty to bargain. See Section IV.A.3 of
this decision; For Bragg Unit of North Carolina Association of
Educators, National Education Association and Fort Bragg Dependents
Schools, Fort Bragg, North Carolina, 12 FLRA 519 (1983).
11/ See Library of Congress v. Federal Labor Relations Authority, 699
F.2d 1280, 1285-6 (1983), in which the Court in analyzing the
legislative history of the Statute noted that Congress intended the
bargaining obligation to be construed broadly.
12/ 5 U.S.C. Section 2105(c) provides:
Section 2105. Employee
. . . . . . .
(c) An employee paid from nonappropriated funds of the Army and
Air Force Exchange Service, Army and Air Force Motion Picture
Service, Navy Ship's Stores Ashore, Navy exchanges, Marine Corps
exchanges, Coast Guard exchanges, and other instrumentalities of
the United States under the jurisdiction of the armed forces
conducted for the comfort, pleasure, contentment, and mental and
physical improvement of personnel of the armed forces is deemed
not an employee for the purpose of --
(1) laws (other than subchapter IV of chapter 53 and sections
5550 and 7204 of this title) administered by the Office of
Personnel Management; or
(2) subchapter I of chapter 81 and section 7902 of this title.
This subsection does not affect the status of these nonappropriated
funds activities as Federal instrumentalities.
13/ In finding that this proposal is within the duty to bargain, we
make no judgment as to its merits.
Defense Logistics Agency, Council of AFGE Locals and DOD, Defense
Logistics Agency, Case No. 0-NG-838 (Decided December 5, 1986)
STATUTE
7103(a)(10)
7105(a)(2)(E)
7106(a)(2)(A), (B) & (C)
7106(b)(2) and (3)
7114(c)
7117(a)(1)
SUBJECT MATTER INDEX ENTRIES
Appointments, Selection for
Vacancies
Requirement to Filled
Appropriate Arrangements
Position, Filling of
Assign Employee
Assign Work
Promotion
Supervision, Requirement That Supervisors be Agency Employees
Code of Federal Regulations
5 C.F.R. 735.101
5 C.F.R. 735.107
5 C.F.R. 735.201
5 C.F.R. 735.207
5 C.F.R. 735.209
Discipline Employees, Reserved Management Right (7106(a)(2)(A) )
Off-Duty Conduct
Employee (7103(a)(2) )
Enlisted Military Personnel Not "Officers" Under 10 U.S.C. 101
Military Personnel Not "Officers" or "Employees"
Federal Personnel Manual
Chapter 335, Subchapter 1-4, Requirement 4
Letter 300-8 (December 12, 1967)
Letter 300-12 (August 20, 1968)
Government-Wide Rules or Regulations
Federal Personnel Manual
FPM Chapter 335, Subchapter 1-4, Requirement 4
Hire, Reserved Management Right (7106(a)(2)(A) )
Positions
Requirement That Vacant Positions be Filled
House Reports
H.R. Rep. No. 95-1403, 95th Cong., 2nd Sess. (1978)
Management Rights: Generally
Government-Wide Rules and Regulations
Incorporating Existing Restrictions Into Contract
Personnel, Determination of, Reserved Management Right
Supervision, Requiring Supervisors to be Agency Employees
Position, Filling of
Appropriate Source
FPM Chapter 335, Subchapter 1-4, Requirement 4
Vacancies
Requirement That Vacancies be Filled
Promotion
Performing or Assigning Duties of a Higher Graded Position
Competitive Procedures in Collective Bargaining Agreement
Standards of Conduct, Employee and Management Officials
OPM Regulations
Minimum Standards (5 C.F.R. 735.101)
Requirement That Agencies Establish Standards
Supervisor (7103(a)(10)
Supervision, Requiring Supervisors to be Agency Employees
7103(a)(10) Not Applicable to Determinations of Agency
United States Code
5 U.S.C. 2105
5 U.S.C. 2302(b)(10)
10 U.S.C. 101
DIGEST NOTES
A provision is nonnegotiable that would limit the agency's right to
take disciplinary action against bargaining unit employees for off duty
conduct to only those circumstances where the agency can demonstrate
that there is a direct relationship between the conduct and the
employee's job performance. This limitation is inconsistent with
management's right to discipline under section 7106(a)(2)(A) and OPM
regulations. Under OPM regulations, agencies must issue regulations
prescribing standards of conduct for their employees. 5 C.F.R. 735.101
(1986). Violations of those agency standards of conduct are subject to
remedial action including disciplinary action. 5 C.F.R. 735.107. The
OPM regulations establish minimum requirements which agencies must
include in their regulations governing conduct of employees. 5 C.F.R.
735.201. Among other things, each agency's regulations must require
that (1) employees pay "each just financial obligation in a proper and
timely manner" and (2) they "shall not engage in criminal, infamous,
dishonest, immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government." 5 C.F.R. 735.207 and 735.209.
(provision 1)
A provision is negotiable that would require the agency to use
competitive procedures set forth in the Merit Promotion Article of the
parties' agreement in making assignments of, employees to higher level
duties and responsibilities on a continuous basis. Procedures for
selecting employees for assignment from among those judged by management
to be qualified constitute negotiable procedures under section
7106(b)(2) and do not interfere with management's right to assign
employees or to assign work under section 7106(a)(2)(A) and (B). Where
the agency determines that qualifications which it had previously
established are no longer suitable to a position, it would not be
prevented by this provision from establishing different ones.
(provision 2)
A provision is nonnegotiable that would require the agency to fill
certain vacant positions, even if it did not wish to fill the positions,
with incumbents of old positions that were abolished as a result of a
reorganization. The Authority has held that similar proposals interfere
with an agency's rights to hire and assign employees under section
7106(a)(2)(A) and to make selections under section 7106(a)(2)(C). Such
proposals are not appropriate arrangements within the meaning of section
7106(b)(3). Furthermore, even assuming that the proposal did not
constitute an excessive interference with management's rights, it is
nonnegotiable under section 7117(a)(1) because it is inconsistent with a
Government-wide regulation. Requirement 4 of Subchapter 1-4, Chapter
335 of the FPM permits agencies to fill positions by making selections
from any appropriate source. By limiting the agency to the specified
sources for filling the position involved, it contravenes that
regulation. (provision 3)
A provision is nonnegotiable that would prohibit bargaining unit
employees from being supervised by persons who are not "officers" or
"employees" of the Federal Government. The provision interferes with
the agency's right to assign work under section 7106(a)(2)(B) by
restricting the agency's right to assign work under section
7106(a)(2)(B) by restricting the agency's ability to require employees
to carry out tasks assigned by individuals other than the specified
individuals. Also, the provision interfers with management's right
under 7106(a)(2)(B) to determine the personnel who would conduct agency
operations. Under the provision the agency would be precluded from
having contractor and some, if not all, military personnel perform
supervisory functions of the bargaining unit. Military personnel are
neither "officers" nor "employees" within the meaning of 5 U.S.C.
sections 2105 and 7103(a)(2). Enlisted military personnel are not
"officers" within the meaning of 10 U.S.C. section 101. The definition
of "employee" in the Statute relied upon by the union as supporting the
provision is misplaced. Section 7103(a)(10) of the Statute which
defines "employee", simply enumerates duties and responsibilities which
would identify individuals as supervisors for purposes of including or
excluding them from bargaining units. Assuming that FPM Letters 300-8
and 300-12 are Government-wide rules as alleged by the union, the union
correctly interprets them as effectively prohibiting agencies from
allowing contractor personnel to supervise Federal employees. However,
this does not render the provision negotiable. Contract restrictions on
management rights which are found in Government-wide rules and
regulations imposes an independent contractual limitation upon
management's discretion with respect to those rights. Incorporation of
such limitations in the contract would require management to continue to
comply with the restrictions during the term of the agreement regardless
of whether the particular restrictions were subsequently removed for the
rules or regulations involved. (provision 4)
Case No. 0-NG-838
DEFENSE LOGISTICS AGENCY COUNCIL OF AFGE LOCALS AFL-CIO
Union
and
DEPARTMENT OF DEFENSE DEFENSE LOGISTICS AGENCY
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 four provisions /1/ of a contract which
were agreed to locally but disapproved during review of the agreement by
the Agency head pursuant to section 7114(c) of the Statute. As set
forth below, we find Provisions 1, 3 and 4 nonnegotiable and Provision 2
negotiable.
II. Provision 1
ARTICLE 4
EMPLOYEE RIGHTS AND RESPONSIBILITIES
SECION 8. The private life of an employee is his/her own affair.
A. Positions of the Parties
In its petition the Union states that this, and the other provisions,
are very clear and self-explanatory. The Agency argues that this
provision conflicts with its right under section 7106(a)(2)(A) to
discipline employees for violations of standards of conduct such as
nonpayment of debts, which arguably involve their private lives. In
response, the Union states that the provision would not prevent the
Agency from taking disciplinary action as long as there is a nexus
between the off duty conduct for which the employee is being disciplined
and the employee's job performance. It argues in this connection that
standards of conduct and actions taken under them must not discriminate
against employees based on off-duty conduct when there is no
relationship to job performance in order to be consistent with 5 USC
Section 2302(b)(10).
B. Analysis and Conclusions
Based on the record in this case we find that this provision is
intended to limit the Agency's right to take disciplinary action against
bargaining unit employees for off duty conduct to only those
circumstances where the Agency can demonstrate that there is a direct
relationship between the conduct and the employee's job performance.
This limitation is inconsistent with Office of Personnel Management
(OPM) regulations and with management's right to discipline.
1. Government-wide Rule or Regulation
Under regulations issued by the OPM, agencies must issue regulations
prescribing standards of conduct for their employees. 5 CFR Section
735.101 (1986). Violations of those agency standards of conduct are
subject to remedial action including disciplinary action. 5 CFR Section
735.107. The OPM regulations establish minimum requirements which
agencies must include in their regulations governing conduct of
employees. 5 CFR Section 735.201. Among other things, each agency's
regulations must require that (1) employees pay "each just financial
obligation in a proper and timely manner" and (2) they "shall not engage
in criminal, infamous, dishonest, immoral, or notoriously disgraceful
conduct, or other conduct prejudicial to the Government." 5 CFR Sections
735.207 and 735.209. In our view, these required standards of conduct
apply to the "private life of an employee" which Provision 1 states is
the employee's "own affair." Thus, we find Provision 1 and the
prescribed standards are in conflict. This finding is supported by our
perception of the intended meaning of the provision, already noted.
That is, the provision would limit the Agency's ability to discipline
only to where it could demonstrate a direct relationship between conduct
and job performance. No such limitation is apparent from the face of
the OPM regulation and the Union has not shown that they were meant to
be applied in this restricted manner.
We conclude, therefore, that the provision would prohibit the Agency
from complying with 5 CFR Part 735 which, as already stated, requires
the Agency to prescribe and enforce standards of conduct which apply to
an employee's private life. The regulations set forth at 5 CFR Part 735
apply generally to, and are binding on, Federal agencies. 5 CFR
Sections 735.101, 735.102 and 735.201. They are Government-wide rules
and regulations within the meaning of the Statute. See National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 751-55 (1980). Because Provision 1 is
inconsistent with a Government-wide rule or regulation, it is not within
the duty to bargain. /2/ This case is distinguishable from National
Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981)
(Proposal VIII) in which the Authority noted that agencies retain some
discretion in formulating the specific language of standards of conduct.
In finding various rules of conduct to be negotiable in that case the
Authority noted that the agency had not established that the proposed
language conflicted with law or the various provisions of 5 CFR Part 735
which serve as the basis for the formulation of agency standards.
2. Right to Discipline
The Agency has the right under the Statute to take disciplinary
action "in accordance with applicable law." Insofar as the provision
seeks to further limit the Agency's ability to institute disciplinary
action based on violations of standards of conduct, it infringes upon
the Agency's right under 7106(a)(2)(A) to take disciplinary actions.
The record indicates that the Union does not intend the provision simply
to require that disciplinary actions relating to off-duty conduct be
carried out in accordance with existing law and applicable regulations.
Rather, the Union is attempting to establish by contract that a
particular relationship between off-duty conduct and the employee's job
performance must exist in order to sustain a disciplinary action. /3/
If the provision simply required the Agency to adhere to whatever
applicable laws and regulations were in existence at the time in taking
disciplinary action against employees for off-duty conduct, it would, of
course, be negotiable. See, for example, 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 4). Based on the record, however, we must conclude
that the provision would place substantive limitations on the Agency's
reserved discretion to take disciplinary actions based on off-duty
conduct, "in accordance with applicable laws."
III. Provision 2
ARTICLE 13
MERIT PROMOTION
Section 2. Policy
E. Higher level duties and responsibilities will not be assigned to
employees on a continuing basis when such assignment is not in
accordance with the provisions and intent of this Article since such
assignments create the impression of favoritism and pre-selection and
impair employee confidence in the integrity of the promotion program.
A. Positions of the Parties
The Agency argues that this provision interferes with its right under
section 7106(a)(2)(A) and (B) to assign employees and to assign work.
It asserts that both of these rights reserve to the Agency the
discretion to determine the qualifications necessary to perform the work
involved but that this provision would prevent it from making
assignments to employees who are not qualified either under OPM or
Agency qualifications standards. The Union argues that this provision
would not prevent the Agency from exercising its reserved discretion.
Rather, it would establish a procedure to be followed in assigning
higher level duties to employees on a continuing basis.
B. Analysis and Conclusions
The provision would effectively require the Agency to use competitive
procedures set forth in the Merit Promotion Article of the contract in
making assignments of, and to, employees involving higher level duties
and responsibilities on a continuous basis.
While, as the Agency points out, its rights under section
7106(a)(2)(A) and (B) to assign employees and to assign work encompass
the discretion to establish the qualifications necessary to perform the
duties involved, it claims but has not established that the provision
would conflict with that discretion. The Authority has consistently
found that proposals which establish procedures for selecting employees
for assignment from among those judged by management to be qualified
constitute negotiable procedures under section 7106(b)(2) and do not
interfere with an agency's rights to assign employees and to assign
work. See, for example, Laborers International Union of North America,
AFL-CIO, Local 1276 and Veterans Administration, National Cemetery
Office, San Francisco, California, 9 FLRA 703 (1982).
The Agency asserts that this provision would bind it to observe OPM
and agency qualification standards, in derogation of its reserved
discretion to determinate the qualifications necessary to perform
particular duties. It does not support this assertion by showing how
the competitive procedures set forth, or incorporated, in the contract
itself would create such a requirement independent of governing
regulations. /4/ Such a result is not apparent from a reading of the
Merit Promotion Article. As to Agency standards, the competitive
procedures specified in the contract include procedures for establishing
rating plans which include identification of the knowledge, skills and
abilities (KSA's) necessary to successful performance of a particular
job. However, these contract procedures do not dictate what the
substance of those KSA's will be. Rather, the Agency retains control
over the determination of their substance.
Thus, we have no basis in the record for concluding that Provision 2
would infringe on the Agency's discretion to determine the
qualifications for positions. Additionally, the record does not
establish that, where the Agency determines that qualifications which it
had previously established are no longer suitable to a position, it
would be prevented by this provision from establishing different ones.
Based on the foregoing we conclude that Provision 2 only requires
competitive procedures to be used under the specified circumstances in
assigning employees to work and positions, and that it does not in any
way interfere with management's rights. It is a negotiable procedure
under section 7106(b)(2).
IV. Provision 3
ARTICLE 30
REORGANIZATION
SECTION 3. SUCCESSOR POSITIONS
When a position in an organization is abolished as a result of a
reorganization and an identical position is to be established at the
same grade within 30 days in a new organization within the PLFA, the
incumbent of the old position will be offered the newly established
position, unless such offer would be in conflict with the assignment
rights of another employee.
A. Positions of the Parties
The Agency contends that this provision violates the Agency's rights
to assign employees and to layoff, retain, remove or reduce in grade or
pay under section 7106(a)(2)(A). It also asserts that it interferes
with its right under section 7106(a)(2)(C) to select employees and that
it violates FPM Chapter 335, Subchapter 1-4, Requirement 4. The Union
contends that this provision is an appropriate arrangement within the
meaning of section 7106(b)(3).
B. Analysis and Conclusions
This provision, as the Agency asserts and the Union tacitly concedes,
would require the Agency to fill certain vacant positions. In American
Federation of Government Employees, AFL-CIO, Local 3186 and Department
of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 2), the
Authority found that a proposal which mandated filling vacancies
excessively interfered with an agency's rights to hire and assign
employees under section 7106(a)(2)(A) and to make selections under
section 7106(a)(2)(C) of the Statute. Thus, the Authority concluded the
proposal was not an appropriate arrangement within the meaning of
section 7106(b)(3). Because this provision, similarly, would abrogate
the Agency's discretion to fill or not fill vacant positions, we find
that it excessively interferes with the Agency's rights to hire and
assign and to make selections in filling positions.
Even assuming that this provision did not constitute an excessive
interference with management's rights, it is outside the duty to bargain
under section 7117(a)(1) of the Statute because it is inconsistent with
the Government-wide regulation, that is, Requirement 4 of Subchapter
1-4, Chapter 335 of the Federal Personnel Manual (FPM), which permits
agencies to fill positions by making selections from any appropriate
source. By limiting the Agency to the specified sources for filling the
position involved, it contravenes that regulation by preventing the
Agency from making selections from other appropriate sources, and is
outside the duty to bargain. See American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 14 FLRA 801 (1984), aff'd sub nom. American
Federation of Government Employees, Local 2782 v. FLRA, No. 85-1562
(D.C. Cir. Oct. 21, 1986).
Based on these reasons, /5/ Provision 3 is not within the duty to
bargain.
V. Provision 4
ARTICLE 33
CONTRACTING OUT
SECTION 3. Supervision
Bargaining unit employees will not be required to be supervised by
persons who are not officers or employees of the Federal Government.
A. Positions of the Parties
The Agency asserts that this provision would interfere with its
rights under section 7106(a)(2)(A) to assign employees and under section
7106(a)(2)(B) to determine the personnel by which agency operations are
conducted. The Union's only explanation of the meaning of this
provision is that it is clear and self-explanatory. In response to the
Agency's arguments the Union contends that a supervisor must be an
employee of an agency. In support of this it cites the definition of
supervisor in section 7103(a)(10) of the Statute and an opinion
regarding contracting for personal services issued by the Civil Service
Commission (now OPM) in FPM Letters 300-8 (Dec. 12, 1967) and 300-12
(Aug. 20, 1968). Finally, it contends that this provision does not
prevent the Agency from acting at all and is negotiable.
B. Analysis and Conclusions
In 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) the Authority found
that a proposal directly interfered with the agency's right to assign
work by preventing the agency from requiring unit employees to carry out
tasks assigned to them by individuals other than those specified in the
proposal. Similarly, this provision would restrict the Agency's ability
to require unit employees to carry out tasks assigned by individuals
other than those specified in the provision and, for that reason,
conflicts with section 7106(a)(2)(B).
The provision would also directly interfere with the Agency's
discretion to determine the personnel who would conduct agency
operations under section 7106(a)(2)(B). Under this provision the Agency
would be precluded from having contractor and some, if not all, military
personnel /6/ perform supervisory functions in connection with the
bargaining unit. Consequently, it would establish a substantive
contractual limitation on the Agency's ability to determine the
personnel who would conduct its operations. See National Federation of
Federal Employees, Locals 1707, 1737 and 1708 and Headquarters,
Louisiana Air and Army National Guard, New Orleans, Louisiana, 9 FLRA
148 (1982).
Consideration of the Union's suggestion that this provision merely
reflects a limitation set forth in the Statute and the FPM does not lead
us to a different result. The Union's reliance on the definition of
"supervisor" in section 7103(a)(10) is misplaced. That subsection
simply enumerates duties and responsibilities which would identify
individuals as supervisors for purposes of including or excluding them
from bargaining units. /7/ It does not substantively limit an agency's
discretion to determine which personnel will perform those duties and
responsibilities. As to the FPM, assuming without deciding that FPM
Letters 300-8 and 300-12 are Government-wide rules or regulations and
assuming further that the Union correctly interprets them as effectively
prohibiting agencies from allowing contractor personnel to supervise
Federal employees, this does not render the provision negotiable. The
Authority has found that reiteration in a contract of restrictions on
management rights which are found in Government-wide rules and
regulations imposes an independent contractual limitation upon
management's discretion with respect to those rights. Incorporation of
such limitations in the contract would require management to continue to
comply with the restrictions during the term of the agreement regardless
of whether the particular restrictions were subsequently removed from
the rules or regulations involved. This type of contractual provision,
which does not merely recognize an external limitation but imposes a
substantive limitation on the exercise of management's rights, is
non-negotiable. See, for example, National Federation of Federal
Employees, Local 1167 and Department of the Air Force, Headquarters,
31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6
FLRA 574 (1981) (Proposal 1), aff'd sub nom. National Federation of
Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982).
Thus, Provision 4 is nonnegotiable. /8/
VI. Order
The Union's petition for review is dismissed insofar as Provisions 1,
3 and 4 are concerned. The Agency must rescind its disapproval of
Provision 2.
Issued, Washington, D.C. December 5, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
/9/
FOOTNOTES
(1) The Union has withdrawn its petition as to three other
provisions. They will not be considered further in this decision.
(2) In finding that this provision is inconsistent with OPM
regulations governing standards of conduct, we express no opinion as to
whether portions of these standards may be in conflict with 5 CFR
Section 2302(b)(10) as the Union suggests. The Statute does not
authorize us to rule on the legality or validity of OPM regulations.
American Federation of Government Employees, AFL-CIO, National Council
of Grain Inspection Locals v. Federal Labor Relations Authority, No.
85-4541 (5th Cir. July 21, 1986).
(3) We note that limiting discipline for off-duty conduct to off-duty
conduct which affects job performance arguably is contrary to existing
law. See, for example, Allred v. Department of Health and Human
Services, 786 F.2d 1128, 1130-32 (Fed. Cir. 1986), in which the Court
indicated that a relationship between off-duty conduct and an employee's
job may be presumed and may be based on factors other than an employee's
job performance.
(4) We are aware that under FPM Chapter 335, Subchapter 1-4, agencies
are required to observe minimum qualification standards prescribed by
OPM in effecting certain promotion and placement actions. However, the
Agency does not state how, if at all, the contract language involved
establishes an independent requirement that these be observed.
(5) We do not find it necessary to pass upon the Agency's argument
that this provision also violates its rights to layoff, retain, remove
or reduce in grade or pay.
(6) Military personnel are neither "officers" nor "employees" within
the meaning of Title 5. 5 U.S.C. Sections 2105 and 7103(a)(2).
Enlisted military personnel are not "officers" within the meaning of
Title 10. 10 U.S.C. Section 101.
(7) H.R. REP. No. 95-1403, 95th Cong., 2d Sess. 39, 40 (1978),
reprinted in Sub-comm. on Postal Personnel and Modernization of the
House Comm. on Post Office and Civil Service, 96 Cong. 1st Sess.,
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 685, 686
(Comm. print No. 96-7).
(8) We do not find it necessary to pass upon the Agency's argument
that this provision would also violate the Agency's right under section
7106(a)(2)(A) to assign employees.
(9) Jerry L. Calhoun did not participate in this case in view of his
involvement with the dispute as an official at the Department of Defense
prior to becoming Chairman of the Authority.
24 FLRA NO. 39
IAM, Local 39 and Roy G. Evans, Case No. 4-CO-20034 (Decided December
5, 1986)
STATUTE
7114(a)(1)
7116(b)(1) and (8)
7118
7121(b)(3)(B)
SUBJECT MATTER INDEX ENTRIES
REPRESENTATION BY UNION OF EMPLOYEE
STANDARDS
ARBITRARY/BAD FAITH ACTION
UNION ULP (ALLEGED) 7116(b)(8)
7114(a)(1)
UNFAIR LABOR PRACTICES, REMEDIES FOR UNION VIOLATIONS
REMEDIAL NOTICE
POST IN THE UNION'S BUSINESS OFFICE
PROVIDE AGENCY WITH SIGNED COPIES OF NOTICE FOR POSTING
REPRESENT ALL UNIT EMPLOYEES FAIRLY
SEEK PERMISSION FROM ACTIVITY TO FILE A LATE GRIEVANCE
REIMBURSE EMPLOYEE FOR EARNINGS LOST
DIGEST NOTES
The union breached its duty of fair representation under section
7114(a)(1) when it deliberately and unjustifiably failed to file a
grievance to appeal the suspension of a unit employee within the
specified time limits. The union's chief steward assured the employee
that he would file a grievance for the employee. But despite repeated
attempts by the employee to speak to the chief steward about the
grievance during the period that it could have been filed, the chief
steward failed to file the grievance. In this manner the union misled
the employee into the thinking that the union was going to file the
grievance, and his reliance on the union caused him to loose the right
to file a timely grievance on his own behalf under 7121(b) (3)(B). This
treatment was different than the treatment of other unit employees.
Consequently, the Authority held that the union violated sections
7116(b)(1) and (8).
The Authority has previously held that where union membership is not
a factor, the standard for determining whether an exclusive
representative 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 actions must have resulted in
disparate or discriminatory treatment of a bargaining unit employee.
Case No. 4-CO-20034
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
39, AFL-CIO
Respondent
and
ROY G. EVANS, AN INDIVIDUAL
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, and recommending
that it be ordered to cease and desist from those practices and take
certain affirmative action. The Respondent and the General Counsel
filed exceptions to the Judge's Decisions.
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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision, the exceptions to that Decision, and the entire
record, the Authority hereby adopts the Judge's findings, conclusions
and recommended Order as modified.
In National Federation of Federal Employees, Local 1453, 23 FLRA No.
92 (1986), the Authority addressed for the first time the nature of an
exclusive representative's duty of fair representation where union
membership is not a factor. The Authority set forth the following
standard (slip op. at 6):
(W)here union membership is not a factor, the standard for
determining whether an exclusive representative 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.
Though the Judge made his Decision prior to the issuance of our
recent case, the basic standards he applied in making his final
determination are the same. Applying our standards to the circumstances
of this case, we find that the General Counsel has established that the
Union's actions viloated the Statute.
In agreement with the Judge, we conclude that the Union's actions
misled Evans into thinking that the Union was going to file the
grievance, and Evans' reliance on the Union caused him to lose the right
to file a timely grievance. We agree with the Judge that the Union's
actions amounted to more than mere negligence and conclude that the
Respondent deliberately and unjustifiably failed to file a grievance on
behalf of Evans. We further conclude, in the absence of a showing to
the contrary, that the Union treated Evans differently from other unit
employees by failing to file his grievance. By this conduct, the Union
breached its duty of fair representation as required by section
7114(a)(1) of the Statute and thereby violated section 7116(b)(1) and
(8) of the Statute. Compare National Federation of Federal Employees,
Washington, D.C., 24 FLRA No. 37 (1986). That case involved an employee
who requested his union to provide him with a representative at a
hearing before the Merit Systems Protection Board (MSPB). While the
union in that case had initially agreed to provide representation to the
employee, the union failed to appear at the hearing, which had been
rescheduled several times. Based on the record in that case, we found
that the union's failure to appear at the hearing constituted nothing
more than mere negligence or miscommunication. Moreover, unlike here,
the union's failure to represent the employee in that case did not
extinguish the employee's rights.
We also agree with the Judge that the circumstances of this case
weigh in favor of the remedy he recommended. See Griffin v. UAW, 469
F.2d 181 (4th Cir. 1972); Dutrisac v. Caterpillar Tractor Co., 749 F.2d
1270 (9th Cir. 1983). We have modified the Order to conform to our
findings in this case. We have also modified the Notice to conform with
like notices where similar violations have been found.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the International Association of Machinists and Aerospace Workers, Local
39, AFL-CIO, shall:
1. Cease and desist from:
(a) Failing to fairly represent Roy G. Evans, or any other unit
employee, as required by section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of their
rights by the 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, as required by section 7114(a)(1) of the Statute.
(b) Seek permission from the Naval Air Rework Facility,
Norfolk, Virginia, to file a late grievance concerning the May 27,
1982 suspension of Roy G. Evans, and pursue the grievance with
good faith and all due diligence.
(c) If the Naval Air Rework Facility, Norfolk, Virginia,
refuses permission to file a late grievance concerning the May 27,
1982 suspension of Roy G. Evans, pay Evans the amount of earning
lost during the period of his suspension (June 7, 1982 through
June 11, 1982).
(d) Post at its business offices and its normal meeting places,
including all places where notices to members, and to employees of
the Naval Air Rework Facility, Norfolk, Virginia, 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 International
Association of Machinists and Aerospace Workers, Local 39, 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.
(e) Submit appropriate signed copies of such Notice to the
Commander of the Naval Air Rework Facility, Norfolk, Virginia, 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.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C. December 5, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier, III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER 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
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
We will not fail to fairly represent Roy G. Evans, or any other unit
employee, as requried by section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute.
We will not in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
We will fairly represent all employees in our unit of exclusive
recognition as required by section 7114 (a)(1) of the Federal Service
Labor-Management Relations Statute.
We will seek permission from the Naval Air Rework Facility, Norfolk,
Virginia, to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans, and pursue the grievance with good faith and
all due diligence.
We will, if the Naval Air Rework Facility, Norfolk, Virginia, refuses
permission to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans, pay Evans the amount of earnings lost during
the perod of his suspension (June 7, 1982 through June 11, 1982).
(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 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-CO-20034
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL
39, AFL-CIO
Respondent
and
ROY G. EVANS, AN INDIVIDUAL
Charging Party
Barbara Liggett, Esq.
For the General Counsel, FLRA
Coet Combs
For the Respondent
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. Section 7101 et seq, and the Rules and Regulations of the Federal
Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et
seq.
The Charge in Case No. 4-CO-20034 was filed on August 26, 1982, by
Roy G. Evans, an individual, against the International Association of
Machinists and Aerospace Workers, Local 39, AFL-CIO (hereinafter
referred to as the Union or Respondent). A First Amended Charge was
filed on November 18, 1982. On December 10, 1982, the General Counsel
of the FLRA, by the Director of Region IV, issued a Complaint and Notice
of Hearing.
The Complaint alleged that Respondent violated Sections 7116(b)(1)
and (8) of the Statute by failing to fairly represent Evans in a
grievance procedure. An Amended Complaint issued August 4, 1983, added
that Respondent acted arbitrarily, capriciously and in a grossly
negligent manner. Respondent filed a Motion for Summary Judgment on
January 31, 1983, but the Chief Administrative Law Judge of the
Authority denied the motion on March 10, 1983. Respondent filed an
Answer denying that it had violated the Statute.
A hearing was held before the undersigned, in Norfolk, Virginia at
which Respondent and the General Counsel of the FLRA appeared, adduced
evidence, and examined and cross-examined witnesses. Parties were given
an opportunity to argue orally and briefs were filed by Respondent and
the General Counsel of the FLRA which have been carefully considered.
Based upon the record, my observation of the witnesses and their
demeanor and from my evaluation of the evidence, I make the following:
Findings of Facts
The Union is the exclusive collective bargaining representative of a
unit of employees at the Naval Air Rework Facility, Norfolk, Virginia
(hereinafter called NARF). The collective bargaining agreement between
the Union and NARF, which became effective on or about June 29, 1978,
provides for a grievance procedure in Article XXV. Evans, a member of
the bargaining unit represented by the Union, worked as a machinists
from April 20, 1981, until April 5, 1983, when he was removed from
employment.
On April 6, 1982, NARF issued a notice of proposed suspension to
Evans for unexcused tardiness, sleeping on duty, and delay in carrying
out instructions of a supervisor. The Union's Chief Steward, Johnnie
Rascoe, prepared a memorandum dated April 21, 1982, to the Power Plant
Division Director, Emory Dixon, which denied these charges and requested
a meeting. The memorandum also requested Rascoe's attendance at all
meetings concerning the proposed suspension.
NARF granted a hearing on the proposed suspension, to be held on
April 23, 1982. The afternoon or morning prior to the hearing, another
Union steward, Mr. Scott, informed Evans that Rascoe was on leave and
that he (Scott) would represent him at the hearing. When Scott was
unable to present the facts correctly at the hearing, Evans was granted
permission to represent himself orally and with written statements and
documents.
By letter dated May 27, 1982, NARF informed Evans that it reduced the
suspension from eight to five days and sustained the charges of
unexcused tardiness and delay in carrying out instructions of a
supervisor. An attachment to the letter stated that Union members have
thirty calendar days after receipt of the letter to file a grievance.
/1/ Evans received the letter on June 4, 1982, the Friday before the
Monday when his suspension was to begin; thus, the deadline for filing
the grievance was July 4, 1982.
Upon receipt of the notice of the decision to suspend, Evans informed
Rascoe that he wanted to appeal. Rascoe replied that they would take
care of the matter after the suspension. Evans served his suspension
from June 7 through June 11, 1982, and was out sick from June 14 through
June 18, 1982. On or about June 21 or 22, 1982, Evans saw Rascoe
talking with another employee and asked him to stop at his work area to
discuss the grievance. He made this request on several subsequent
occasions, but Rascoe never stopped by. Evans later spoke with his
Union steward, Lloyd Pickett, and asked him to make sure that the appeal
had been filed, and if not, to file it. Pickett replied that he would
check.
On or about July 6 or 7, 1982, Evans saw Rascoe during a break and
asked him about the appeal. Rascoe said "I have been meaning to talk to
you on that," and asked about the letter of suspension. Rascoe counted
the thirty-two days that had passed and acknowledged that it was too
late to file a grievance. Evans was limited in his ability to contact
Rascoe because Evans could not take off from work to find him, and
because Rascoe worked unusual hours because of his Union activities.
/2/
NARF informed Evans in a notice of decision on proposed removal dated
March 30, 1983, that he would be removed from employment, effective
April 5, 1983. Evans' previous disciplinary record, including the
suspension presently at issue, was considered in this decision.
Discussion and Conclusions
The record establishes that although Evans repeatedly sought
assistance from the Union in appealing his suspension, the Union failed
to file a timely formal grievance on his behalf. In addition, the
Union's assurances that it would handle the matter misled Evans so that
he could reasonably conclude that the Union would file a grievance on
his behalf. The General Counsel argues that illegal motivation or other
intentional misconduct is not necessary to establish a breach of the
duty of fair representation. I disagree with this contention, but
conclude that Respondent did breach its duty of fair representation, in
violation of Sections 7116(b)(1) and (8) of the Statute.
In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court established
that a union breaches its duty of fair representation when its conduct
towards a member of its collective bargaining unit is arbitrary,
discriminatory or in bad faith. In declining to broaden the meaning of
this standard, I adopt Judge Dowd's reasoning in National Federation of
Federal Employees, Local 1453, OALJ-83-52, Case No. 4-CO-20022, March
23, 1984, pending before the authority (hereinafter NFFE). In NFFE,
Judge Dowd found that the Union had not failed in its duty to fairly
represent an employee because there was no evidence that the union
"deliberately and unjusitifably" failed or refused to refile a
grievance.
Absent the necessity of such a showing of intentional misconduct, the
burden on labor organizations would be unreasonable. Union officials
are not professional advocates and should not be held to the same
standard as attorneys. See Tidewater Virginia Federal Employeees Metal
Trade Council/International Association of Machinists, Local No. 44, 8
FLRA 217, 231 (1982); American Federation of Government Employees,
AFL-CIO, Local 987, 3 FLRA 715, 721 (1980). In the public sector, in
particular, where unions cannot compel the payment of dues, a broad
standard with respect to the duty of fair representation would imperil
the very existence of labor organizations and ultimately defeat the
purposes and policies of the Statute. Employees dissatisfied with the
quality of a union's representation can express this dissatisfaction by
voting for new union officers or by decertifying the union. In
addition, federal employees have the right to present a grievance on
their own behalf under Section 7121(b)(3)(B) of the Statute. See NFFE,
supra.
In the instant case, however, Respondent's unexplained failure to
file Roy G. Evans' grievance creates an inference of intentional
misconduct. Evans approached Chief Steward Rascoe, immediately after
receiving the letter of suspension requesting that a grievance be filed
and Rascoe reassured Evans but postponed further discussion until after
the suspension. After returning to work more than two weeks later,
Evans asked Rascoe on several occasions to see him at his work station,
so they could discuss the grievance. Rascoe never contacted Evans. In
addition, Evans asked another Union steward to make sure the grievance
had been filed and, if not, to file it. That steward too did not
re-contact Evans. Finally, approximately two weeks after returning to
work and continuously seeking Union assistance, Evans confronted Rascoe,
who acknowledged that it was then too late to file the grievance.
Under these circumstances, absent evidence to rebut the clear
inference of intentional misconduct, I must conclude that Respondent's
agents intentionally chose to ignore Evans' requests. The record fails
to establish that ignorance of the applicable grievance procedure
explains the Union's idleness, as it did in NFFE, supra p. 4, at 24, fn.
22. /3/ In view of Evans' repeated attempts at securing assistance over
approximately a four-week period, Rascoe is presumed to have known that
the time limit for filing the grievance was approaching, even if he did
not remember the exact date. Yet, Rascoe failed to inquire about the
date until it was too late, even though Evans, on a number of occasions,
sought to talk to Rascoe about the grievance. Further, I reject the
contention that Rascoe simply forgot to stop by Evans' work area after
each attempt by Evans at consultation. After returning to work, Evans
approached Rascoe several times during a two-week period. Where it is
implausible, as here, that the Union inadvertently mishandled a
grievance, intentional misconduct should be imputed to the Union. /4/
In light of the foregoing, I conclude the Union breached its duty of
fair representation under Section 7114(a)(1) of the Statute by handling
Evans' grievance in an arbitrary and discriminatory manner and,
accordingly, it violated Sections 7116(b)(1) and (8) of the Statute.
Remedy
The General Counsel urges that Respondent should be ordered to cease
and desist its illegal activities, and to take affirmative action to
make Evans whole for wages lost during his period of suspension. The
governing principle under Vaca v. Sipes, 386 U.S. at 197, is to
apportion liability between the employer and the union according to the
damages caused by the fault of each. Unlike the court proceeding in
Vaca, this proceeding does not resolve Evans' charges against NARF.
Since NARF'S liability is uncertain due to the Union's mishandling of
the girevance, the uncertainity must be resolved against the Union.
Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 348 (5th Cir. 1980);
see also Service Employees International Union, Local No. 579 AFL-CIO,
(Beverly Manor Convalescent Center), 229 NLRB 692 (1977); Contra
Service Employees International Union, Local 556, AFL-CIO OALJ-83-59,
Case No. 8-CO-37 and 38, February 28, 1983, pending before the
Authority. A party should not benefit from its own misconduct to the
detriment of another. Accordingly, it is recommended that the Authority
order Respondent to seek permission from NARF to file a late grievance
and pursue the grievance in good faith and with all due diligence; /5/
however, if NARF refuses to grant such permission, it is recommended
that the Authority order Respondent to make Evans whole for the wages
lost during his period of suspension.
Based on the foregoing, it is recommended that the Authority adopt
the following:
ORDER
Pursuant to Section 7118(a)(7) of the Statute, it is ordered that the
International Association of Machinists and Aeorspace Workers, Local 39,
AFL-CIO:
1. Cease and desist from:
(a) Affording on an arbitrary basis differing standards of
employee representation to employees in units of exclusive
representation.
(b) Interfering with, restraining or coercing any employee in
the exercise by the employee of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Represent all bargaining unit employees on an equal basis
and with the same standard of representation.
(b) Seek permission from the Naval Air Rework Facility,
Norfolk, Virginia (NARF), to file a late grievance concerning the
May 27, 1982 suspension of Roy G. Evans and pursue the grievance
with good faith and all due diligence.
(c) If NARF refuses permission to file a late grievance
concerning the May 27, 1982 suspension of Roy G. Evans, pay Evans
the amount of earnings lost during the period of suspension, June
7, 1982 through June 11, 1982.
(d) Post at the Naval Air Rework Facility, Norfolk, Virginia,
copies of the attached notice marked "Appendix" on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by a responsible Union official
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices are customarily posted. Reasonable
steps shall be taken by the Union to ensure that such notices are
not altered, defaced, or covered by any other material.
(e) Pursuant to 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.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: October 5, 1984
Washington, D.C.
FOOTNOTES
(1) In its answer to the complaint, Respondent asserted that the time
period for filing a formal grievance is three days from the date of the
informal hearing. At the hearing, the Union Business Representative
admitted that the grievance processing information included in Evans'
notice of suspension was correct.
(2) I reject Repsondent's contention that Evans never approached it
for representation after the April 23, 1982 hearing. Respondent's only
evidence on this point is testimony by Russell Hurdle, Business
Representative for District Lodge 74 of the Machinists Union,
Repsondent's representative in unfair labor practice cases. According
to Hurdle, Rascoe stated that he tried unsuccessfully on several
occasions to contact Evans because "he wanted to make sure that the
employee was not disturbed," and "to determine what he wanted to do with
this case," and that Evans was never working. These heresay statements,
made during the investigation of this case, are insufficient to rebut
Evans' firsthand detailed account of the events. In addition,
applications for leave, in evidence, reveal that Evans took no annual or
sick leave between June 21 and July 1, 1982.
(3) At the hearing, the only evidence adduce by Respondent was
heresay testimony that Evans never approached Rascoe after the hearing.
In its brief, however, Respondent argues that assuming, arguendo, that
Evans did seek assistance, Rascoe forgot the deadline.
(4) See National Federation of Federal Employees, Washington, D.C.,
OALJ-84-84, Case No. 4-CO-20019, at pg. 8, July 5, 1984, pending before
the Authority, wherein the Administrative Law Judge concluded that the
union's failure to attend a Merit System Protection Board hearing would
violate the duty of fair representation absent a showing of good cause
to excuse or explain the absence.
(5) In Tidewater Virginia Federal Employees Metal Trade
Council/International Association of Machinists, Local No. 44, 8 FLRA at
218, the Authority struck down, in part, such an order to seek
permission to file a late grievance, but did not indicate that this
relief would always be inappropriate.
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 afford on an arbitrary basis differing standards of
employee representation to employees in units of exclusive
representation.
We will not interfere with, restrain, or coerce any employees in the
exercise of any right under the Federal Service Labor-Management
Relations Statute.
We will represent all bargaining unit employees on an equal basis and
with the same standard of representation.
We will seek permission from the Naval Air Rework Facility, Norfolk,
Virginia (NARF), to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans and pursue the grievance with good faith and
all due dilgence.
We will pay Roy G. Evans the amount of earnings lost during the
period of suspension, June 7, 1982 through June 11, 1982, if NARF
refuses permission to file a late grievance concerning Evans' May 27,
1982 suspension.
(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: 1776 Peachtree Street, N.W., Suite 501 - North Wing,
Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324.
24 FLRA NO. 38
DOD, Dep't of the Air Force H.Q., Air Force Training Center, Lackland
Air Force Base, Texas and AFGE, Local 1367, Case No. 6-CA-40408 (Decided
December 5, 1986)
STATUTE
7106
7116(a)(1) and (5)
7118
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
NOTIFICATION
INFORMATION, EMPLOYEE AND UNION RIGHTS
UNDER THE STATUTE
SPECIFICITY OF INFORMATION PROVIDED UNION
INCOMPLETE INFORMATION
NOTIFICATION OF UNION
AMOUNT OR TIMELINESS OF ADVANCE NOTICE
OTHERWISE ADEQUATE TIME ANNULLED BY INCOMPLETE INFORMATION
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
BARGAINING ORDER
DIGEST NOTES
The activity violated section 7106(a)(1) and (5) when it failed to
provide adequate information in a timely manner to the union concerning
its new "Performance Management Program". The new program comprised
nearly 200 pages of regulations covering 17 major changes included the
implementation of a performance management concept; pay-for-performance
concept; establishment of an initial 90 appraisal period; two annual
appraisal cycles; new requirements regarding supervisory safety and
health responsibilities; new critical performance elements; more
requirements for quality control review and several other changes.
Although the activity notified the union of the new plan almost a month
before implementation, the activity provided incomplete information
about the change at the only meeting between the parties concerning the
new plan. Furthermore the activity misled the union by stating that the
union would be provided additional information at another meeting that
was never held. Rather, just two working days before implementation,
the union was informed that there would be no further discussions on the
matter. The union then requested negotiations and postponement of
implementation of the new plan, one day prior to implementation. But
the activity responded by claiming that the submission was too late and
refused to negotiate.
Case No. 6-CA-40408
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE TRAINING CENTER (ATC), LACKLAND AIR FORCE BASE,
TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1367, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Decision of the Administrative Law Judge filed by the
General Counsel. The complaint essentially alleged that Respondent
violated section 7116(a)(1) and (5) of the Statute when it failed to
provide the Union adequate notice of, or an opportunity to bargain in
good faith concerning procedures and appropriate arrangements for
adversely affected employees on the implemention of revised Air Force
Regulation 40-452, Performance Management Program. We conclude that the
Respondent committed the unfair labor practice as alleged.
II. Facts
On June 4, 1983, the Respondent hand-delivered to the Union a letter
informing it of a forthcoming revised regulation, AFR 40-452, entitled
"Performance Management Program," to be implemented on July 1. A draft
of the regulation, consisting of nearly 200 pages including a "Summary
of Changes" listing 17 changes in the regulation, was attached to the
letter. The Respondent informed the Union that it would explain the
regulation and its changes and provide the Union with more information
at a later date.
Although the Respondent conducted a briefing on June 13 with the
Union, explaining the most important changes of the regulation
concerning the Union, the briefing was not completed because the
Respondent's representative was unable to answer the Union's questions
in detail. During this meeting, the Respondent asked the Union to
submit its proposals regarding the revised regulation. The Union
replied that the briefing lacked specificity and it could not submit its
proposals until the briefing was completed. The Union asked that it be
given various Air Force regulations referred to in AFR 40-452, and
Respondent replied that they were available in the publication library.
Respondent's representative concluded the meeting by saying that he
would get back to the Union to finish the briefing. On June 14, the
Respondent again asked the Union to submit proposals in writing.
Thereafter, the Union was not able to review the regulations mentioned
in AFR 40-452 because they were not available in the publication
library.
On June 28, when the Union reminded the Respondent's representative
that he had not returned to finish the briefing, the representative
replied that there would be no further discussions on the matter. On
June 29, late on a Friday afternoon, the Union gave the Respondent a
letter that requested: (1) negotiation on the impact and implementation
of AFR 40-452; and, (2) the postponement of its implementation until
after the parties completed negotiations. Upon receipt of the request
to negotiate, the Respondent told the Union that the submission was
late. The Respondent implemented the regulation on July 1.
Subsequently, on July 19, the Union submitted a written list of
proposals to the Commander of the Base. No bargaining took place with
respect to the regulation.
III. Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute as alleged. He found that the Union's
request to bargain at the "eleventh hour" was untimely, noting
particularly that the request was made on June 29, late on a Friday
afternoon just before the proposed implementation of the new regulation
on Sunday, July 1. Also, the Judge found that the Respondent: (1) gave
the Union adequate notice of the change and the specific details of the
regulation to enable the Union to make proposals to management; and (2)
requested, on several occasions, the Union to submit proposals.
Further, he found that although the Respondent conducted a briefing
session with the Union concerning the regulation and indicated its
intention to resume briefings, it was not obliged to do so.
Finally, the Judge found that the Union's proposals given to the Base
Commander on July 19 would not support a refusal to bargain allegation.
He found that the request to bargain after changes were implemented was
also untimely.
IV. Positions of the Parties
The General Counsel excepts to the Judge summarily rejecting the need
for adequate information needed by the Union for bargaining. The
General Counsel contends that the Respondent misled the Union into
reliance on a briefing and the availability of documentation, and
subsequently abrogated all commitments and refused to bargain with the
Union on the matter. The Respondent filed a brief in opposition to the
General Counsel's exceptions.
V. Analysis
We find, contrary to the Judge, that the Respondent violated section
7116(a)(1) and (5) of the Statute by refusing to bargain in good faith
with the Union concerning procedures and appropriate arrangements for
adversely affected employees on the implementation of AFR 40-452. After
the Union was notified of the impending changes in the regulation, it
requested the Respondent to explain the regulation and its changes as
well as provide more information to the Union. The Respondent committed
itself to provide the information and to give the Union a briefing.
Although a briefing was held on June 13, it was not completed because
the Respondent's representative was unable to answer the Union's
questions. During the briefing the Respondent's representative asked
the Union to submit bargaining proposals. The Union responded that the
briefing lacked the specificity it needed to submit proposals and that
it could not submit proposals unitl the briefing was concluded and the
changes from the previous regulation had been identified. The Judge
credits the testimony of the Union that the Respondent's representative
stated that he would get back to the Union to finish the briefing. It
was not until June 28, two working days before implementation of the
regulation, that the Union was informed that there would be no further
discussion of the matter. The Union requested negoitations and
postponement of the implementation of the regulation on the following
day, prior to the date the Respondent established to implement the
regulation.
We find that the Union was misled by the Respondent's representative
when he stated that he would finish the briefing and provide the Union
with additional information necessary for the Union to submit
appropriate proposals. It was this failure by the Respondent to provide
the necessary information that delayed the Union in submitting
bargaining proposals. In these circumstances, the Union's request to
bargain was timely. Therefore, we find that the Respondent violated the
Statute by failing to bargain in good faith with the Union over
procedures and appropriate arrangements for adversly affected employees
before it implemented the revised regulation. See Department of the Air
Force, Scott Air Force Base, Illinois, 19 FLRA No. 13 (1985). In view
of our conclusion, it is unnecessary to address the Judge's conclusion
regarding the Union's post-implementation proposals.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings and conclusions only as modified. We find, contrary to
the Judge, that the Respondent failed and refused to bargain in good
faith with the Union concerning procedures and appropriate arrangements
for adversely affected employees on the implementation of AFR 40-452, in
violation of section 7116(a)(1) and (5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority orders that
the United States Department of Defense, Department of the Air Force
Headquarters, Air Force Training Center, ATC, Lackland Air Force Base,
Texas shall:
(1) Cease and desist from:
(a) Failing and refusing to bargain in good faith with the
American Federation of Government Employees, AFL-CIO, Local 1367,
the exclusive representative of its employees, and affording it
the opportunity to bargain concerning procedures and appropriate
arrangements of adversly affected employees on the implementation
of revised Air Force Regulation 40-452, Performance Management
Program.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Statute.
(2) Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1367, the
exclusive representative of its employees, concerning procedures
and appropriate arrangements of adversly affected employees on the
implementation of revised Air Force Regulation 40-452, Performance
Management Program.
(b) Post at its facilities at Lackland 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 Commander, Lackland Air Force Base, and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to ensure that said 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.
Issued, Washington, D.C. December 5, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
We will not fail and refuse to bargain in good faith with the
American Federation of Government Employees, AFL-CIO, Local 1367, the
exclusive representative of our employees, and afford it the opportunity
to bargain concerning procedures and appropriate arrangements of
adversely affected employees on the implementation of revised Air Force
Regulation 40-452, Performance Management Program.
We will not in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
We will, upon request, bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1367, the exclusive
representative or our employees, concerning procedures and appropriate
arrangements of adversely affected employees on the implementation of
revised Air Force Regulation 40-452, Performance Management Program.
(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, Texas 75202, and whose
telephone number is: (214) 767-4996.
Case No. 6-CA-40408
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE TRAINING CENTER, ATC, LACKLAND AIR FORCE BASE,
TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1367
Charging Parties
Charles L. Brower, Lt. Col., USAF
For the Respondent
Susan E. Jelen, Esquire,
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Compliant and Notice of Hearing issued on August 23,
1985 by the Regional Director for the Federal Labor Relations Authority,
Dallas, Texas, a hearing was held before the undersigned on October 29,
1985 at San Antonio, Texas.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is
based on a Second Amended Charge filed on August 22, 1985 by American
Federation of Government Employees, AFL-CIO, Local 1367 (herein called
the Union) against United States Department of Defense, Department of
the Air Force Headquarters, Air Force Training Center, ATC, Lackland Air
Force Base, Texas (herein called the Respondent).
The Complaint alleged, in substance, that (a) on or about June 28,
1984, and continuing thereafter, Respondent refused to bargain in good
faith with the Union over procedures to be observed and appropriate
arrangements for adversely affected employees in implementing Air Force
Regulation 40-452, Performance Management Program, (b) on or about July
1, 1984 and continuing thereafter, Repsondent refused to bargain in good
faith with the Union by unilaterally implementing the aforesaid Air
Force Regulation 40-452 without providing the Union adequate notice of,
or an opportunity, to negotiate over procedures to be observed in
implementing the regulation and appropriate arrangements for adversely
affected employees -- all in violation of Section 7116(a)(1) and (5) of
the Statute.
Repsondent's Answer, dated September 4, 1985, denied the aforesaid
allegations of the Complaint, as well as the commission of any unfair
labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /1/
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 exclusive bargaining representative of all permanent, full time, Air
Force civilian employees paid from appropriated funds assigned to
Lackland Air Force Base, Texas with specified exclusions from said unit.
2. At all times material herein the Union and Respondent have been
parties to a collective bargaining agreement covering the aforesaid unit
which is composed of approximately 2300 employees.
3(a). Between 1972 and June, 1985, Frank G. Suarez was president of
the Union. At all times material herein Julius Garcia was first
vice-president of the Union.
(b) At all times material herein Chalres Shinn was Chief of the
Respondent's Civilian Personnel Office, Ramon Lopez was Respondent's
Chief of Labor Relations, and Anthony Fuentes was Respondent's Chief of
Employee Relations.
4. Record facts disclose that between May, 1983 and June, 1984
Respondent changed its employment conditions on various occasions; that
it was customary for management to forward the changes with a covering
memo signed by Lopez; and that bargaining thereon would normally occur
three weeks from the time the Union made a request to bargain.
5. On June 4, 1984 /2/ Lopez hand delivered to Suarez a letter which
informed the Union of a forthcoming new regulation (AFR 40-452) to be
implemented on July 1, and an attached draft of the said regulation.
Lopez explained that someone would come and explain the regulation and
its changes as well as provide more information to the Union.
Thereafter, on June 8, Suarez gave the regulation to Garcia for the
latter to review and decide if it required negotiations with management.
6. The draft of AFR 40-452, entitled "Performance Management
Program", established a program that integrates certain performance,
pay, and recognition processes which is applicable to employees in the
Lackland unit. As such, it implements requirements of 5 CFR, Part 430
(performance appraisal), Part 540 (merit pay), Part 531 and 532 (within
grade increase - WGI), Part 305 (probation) and Part 451 (performance
awards). It also implements FPM, Supplement 335-1, pertaining to the
use of performance appraisals in promotion.
7. The said regulation, which comprises nearly 200 pages, contains
17 changes. They are as follows: /3/
"SUMMARY OF CHANGES"
"This publication implements the performance management concept
(para 1-2) and the pay-for-performance concept (para 1-3);
explains differences in employee coverage (para 1-6b and atch 1);
implements a single appraisal form (para 2-1); establishes an
initial 90-day appraisal period (para 2-2); sets up two annual
appraisal cycles (para 2-3); adds new requirements regarding
supervisory safety and health responsibilities (para 2-9c); adds
new requirements on critical performance elements (para 2-10);
adds additional requirements regarding the quality control review
(para 2-13); explains how ratings on work behavior must relate to
ratings on performance (para 2-19); explains the requirements to
appraise work behavior and how the rating is used (paras 2-17
through 2-30); clarifies the separate probation required for new
supervisors and managers (para 4-2); implements new guidance on
dealing with performance problems (chap 5); establishes a new
cash award for GM employees (para 7-4); authorizes a quality step
increase only for superior ratings (para 7-5a); establishes a 1
percent of salary minimum for the SSPA and MPCA (fig 7-1, table
4); and, changes recordkeeping requirements (chap 12)."
8. At the request of Lopez, management official Fuentes came to the
Union office on June 13 to conduct a briefing of AFR 40-452. The
official stated that it was necessary to implement the new regulation on
July 1. Although Garcia inquired why it had to be done so quickly,
Fuentes gave no explanation. An overview of the program and its
philosophy was covered, and Fuentes called the Union's attention to the
most important changes concerning the Union. The most important change,
as mentioned by the management representative, dealt with a new system
which combined the old Job Performance Appraisal System (JPAS) and the
Civilian Potentail Appraisal System (CPAS). These were no longer
separate and district appraisal processes, and they had to be related to
one another. There would be one appraisal during the rating year
instead of two separate appraisals. /4/
9. At the briefing on June 13 Fuentes asked the Union if there were
any questions re the new regulation. Garcia asked what other changes
were introduced by the new program. Fuentes stated he couldn't answer
in detail and that he was going to a training session that day but would
get back to the Union representatives. Garcia requested that he be
given the various Air Force regulations referred to in AFR 40-452, and
Fuentes replied they were in the publication library at Lackland.
Fuentes asked that the Union submit its proposals re the proposed new
regulation. Whereupon Garcia stated the briefing lacked specificity and
the Union couldn't submit proposals until the briefing was completed;
that the Union could not submit the proposals until Fuentes finished his
briefing and pointed out all the changes from its past regulation.
Whereupon Fuentes said he would get back to the Union. /5/
10. The record reflects that on June 14 Ms. Tommie Holmes, an
employee relations specialist, telephoned Garcia. She stated that
Fuentes asked her to contact Garcia and tell the latter to send Fuentes
the Union's proposals in writing. Garcia replied that he would try to
get them ready.
11. Garcia attempted to review the regulations mentioned in AFR
40-452 by going to the library but they were not available. The said
regulations were available at the Civilian Personnel Office, but Garcia
was advised he could review them only during duty hours and could not
have copies thereof.
12. Garcia testified, and I find, that on June 28 he went to see
Fuentes at the latter's office and asked for copies of the Federal
Personnel Manual. He mentioned that they were lengthy and did not have
time to review them. The request was denied. When Garcia reminded
Fuentes that the latter had not returned to finish the briefing, the
management official stated that, upon adivce of Lopez, there would be no
further discussion with the Union on this matter; that Ms. Holmes at
the Civilian Personnel Office had contacted the Union and requested
proposals and there was adequate time to submit same. In reply thereto,
Garcia said that Fuentes knew the Union was dealing with him and Lopez.
The Union official then said he would submit proposals the next day
based on the information had by the Union. Fuentes then told Garcia to
"do what you want to, but the agency will not entertain anything, or
discuss anything." /6/
13. After the aforesaid meeting Garcia advised Suarez what had been
said thereat. Upon advice from Suarez, the Union president conferred
with Al Kia, president of AFGE, Local 3782 which was negotiating with
Air Force agency SARPMA /7/ over AFR 40-452. Garcia testified he copied
some of the proposals sumbitted by Kia on two yellow pages.
14. On June 29 Garcia gave Fuentes a letter, dated June 28, written
by Suarez and addressed to the Commander of Lackland Air Force Base -
attention: Charles Shinn. This letter from the Union requested
negotiation re the impact and implementation of AFR 40-452, as well as
the postponement of its implementation until after the parties finished
meeting and completed an agreement. It was suggested therein that the
parties meet on July 2. Garcia testified that he also delivered the
proposals of the Union, which were handwritten on the two yellow pages,
to Fuentes on June 29. /8/ Upon receiving the request to negotiate as
set forth in Suarez's letter, Fuentes informed Garcia it was late for
submission (being late Friday afternoon) since the regulation would be
implemented on Sunday, July 1.
15. Respondent did not reply to Suarez's letter of June 28 wherein
the Union requested negotiations re the impact and implementation of AFR
40-452. The regulation was implemented on July 1.
16. On July 19 Garcia gave a written list of 12 proposals by the
Union, in respect to AFR 40-452, to the secretary of General Smith, the
Commander at the Base. /9/ These proposals, which were addressed to the
Commander, were a typewritten copy (with a few changes) of the proposals
made by Kia on behalf of Local 3782, and which Garcia testified he gave
to Fuentes on June 29 on handwritten pages.
17. No bargaining has taken place with respect to the said
regulation.
18. In addition to the change resulting from AFR 40-452, whereby
employees would no longer receive two separate appraisals during the
rating year, but would receive a combined JPAS & CPAS appraisal, two
other signigicant changes affecting employees were made by the new
regulation: (a) an initial appraisal period was established, so that
employees must be appraised at the end of, but no earlier than, 90 days;
(b) the critical elements, which formed the basis for the appraisal and
rating of employees, were changed in the new regulation.
Conclusions
It is contended by General Counsel that Respondent violated Section
7116(a)(1) and (5) of the Statute. It predictes this conclusion on the
further contentions: (a) that AFR 40-452 was implemented unilaterally
without affording the Union adequate notice and a reasonable opportunity
to request bargaining on the impact and implementation of the
regulation; (b) that management refused to bargain thereon.
Case law in the public sector has established that while an agency
may exercise certain management rights, purusant to Section 7106 of the
Statute, an obligation is imposed upon the agency when it changes
conditions of employment in exercising such right. In such an instance
a union must be provided with adeuqate notice of the agency's decision
and afforded an opportunity to bargain on the impact and implementation
of any such change. Department of the Treasury, U.S. Customs Service,
Region 1 (Boston, Mass.), 16 FLRA No. 97; U.S. Government Printing
Office, 13 FLRA No. 39.
There are, however, correlative obligations imposed upon a union
which has been notified of any intended changes by an agency. A union
is obliged, in such event, to make a timely request to bargain or seek
more time to consider a change. Where the union's request is submitted
at the eleventh hour, albeit before the change, it has been held to be
untimely. See Customs Service, Region 1 (Boston, Mass.), supra; Social
Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 960,
8 A/SLMR 33. Further, a request to bargain after the change is
implemented has been held untimely and no refusal to bargain will be
found. General Services Administration, 15 FLRA No. 6.
Turning to the case at bar, the General Counsel avers that the notice
of the proposed implementation of AFR 40-452 was not sufficiently
specific or definitive re the contemplated changes. In support of such
averment, it is argued by General Counsel that briefing were required to
elaborate or explain the new regulation and its changes.
It is true that notice of a decision to change working conditions
must be specific, and that a passing reference to a contemplated change
will not be deemed adequate notice. Department of the Army, Harry
Diamond Laboratories, Adelphi, Maryland, 9 FLRA No. 66; U.S. Department
of the Air Force, Air Force Systems Command et al., 5 FLRA No. 88;
Department of the Treasury, Internal Revenue Service, Indianapolis,
Indiana, A/SLMR No. 909, 7 A/SLMR 844. However, in the case at bar I am
persuaded that the new regulation itself (AFR 40-452), which was given
to the Union on June 4, was specific as to the contemplated charges.
The summary of changes - as set forth in G.C. Exhibit No. 3 and
Respondent's Exhibit No. 4 (following Chapter 12) - specified the 17
proposed changes in the Performance Management Program. In each
instance the changed condition of employment was specifically mentioned,
i.e. establishing a 90 day appraisal period, implements a single
appraisal form, etc. While management did conduct a briefing session in
regard thereto, and indicated an intention to resume briefings, I am not
convinced that such was obligatory on its part. Further, the fact that
discussion ensued re the various changes does not militate against
concluding that the notice of the changes, and their specifity, were
sufficient. I am satisfied that the purported changes as given to the
Union were sufficiently detailed to appraise the bargaining
representative of their substance; that such notification thereof was
adequate to allow the Union to make proposals to management concerning
same.
With respect to the time frame allotted to the Union to request
bargaining and submit proposals based on the proposed new regulation, I
conclude Respondent has fulfilled its obligation in that regard. Since
AFR 40-452 was given to the Union on June 4 with an implementation date
of July 1, the Union had 4 weeks advance notice of the contemplated
changes. Past decisions by the Authority reveal that substantially less
notice by an agency has been deemed adequate. Thus, in Customs Service,
Region 1 (Boston, Mass.), supra, 10 days notice of a changed procedure,
requiring inspectors to make a phone call to management on completing an
assignment, was considered sufficient notification. Also, a 4 day
notice of a reduction-in-force of employees was held adequate. United
States Department of Defense, Department of the Army, Headquarters, Fort
Sam Houston, Texas, 8 FLRA No. 112.
It is also concluded by the undersigned that the Union was afforded a
reasonable opportunity to negotiate the changes which were to be
implemented on July 1. When Garcia received the proposed regulation on
June 4 there was also attached thereto a letter from Lopez asking the
Union representative to contact him re same. On June 13, during the
briefing conducted by Fuentes, the latter asked Garcia to send
management the Union's proposals re AFR 40-452. Again, on June 14
management representative Tommie Holmes called Garcia and requested he
submit the Union's prposals. The request for negotiation, which was set
forth in a letter from Suarez to the Commander was given to Fuentes on
June 29. This was the first time the Union presented its request and it
was made on a Friday afternnon just before the proposed implementation
of the new regulation on Sunday, July 1. In accord with the cases
heretofore cited I conclude that the Union was afforded a reasonable
time and opportunity to request bargaining and submit its proposals re
the new regulations. While it did ultimately submit such request, this
was done at the eleventh hour. Thus, the Respondent was justified in so
advising Garcia on June 29 in view of its planned implementation on July
1. The refusal to negotiate at this late date on the impact and
implementation of AFR 40-452 was not, in line with past decisional law,
a refusal to bargain in violation of 7116(a)(5) of the Statute. See
Internal Revenue Service (District, Region, National Office Unit), 14
FLRA No. 92.
Moreover, the proposals given by Garcia to General Smith's office on
July 19 will not support a refusal to bargain allegations even though
unanswered by Respondent. /10/ A request to bargain made after changes
are implemented must be considered untimely, and no refusal to bargain
by Respondent will be found thereafter. Department of the Army, U.S.
Military Academy, West Point, New York, A/SLMR No. 1138, 8 A/SLMR 1163.
Accordingly, the undersigned concludes that Respondent did not refuse
to bargain with the Union re the implementation of AFR 40-452 in
violation of Section 7116(a)(1) and (5) of the Statute.
It is therefore recommended that the Authority issue the following
Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 6-CA-40408 be,
and the same hereby is, dismissed.
WILLIAM NAIMARK
Adminstrative Law Judge
Dated: March 13, 1986
Washington, D.C.
FOOTNOTES
(1) Subsequent to the hearing the Respondent filed with the
undersigned a Motion to Strike Portions of General Counsel's
Post-Hearing Brief. In its brief the General Counsel cited Department
of the Navy, Naval Ordinance Station, 4 FLRA 760. Respondent, asserting
that General Counsel misinterpreted the cited decision and its ratio
decidendi, contends that the General Counsel omitted certain language
when it quoted Judge Mason, the author thereof. The Motion is denied.
Quotations from, or portions of, a cited case as set forth by a party in
a brief are part of Counsel's argument. They are not factual in nature,
nor may they be deemed an attempt to adduce post-hearing evidence. The
undersigned can determine, upon reviewing the cited case, its
applicability herein.
(2) Unless otherwise inidcated, all dates hereinafter mentioned occur
in 1984.
(3) The changes in performance management, as contained in AFR
40-452, appear in G.C. Exhibit No. 3 on the page following Chapter 12-3
and in Respondent's Exhibit No. 4 on pages 57-58.
(4) Garcia testified that Fuentes stated management changed its
position re the grievability of performance ratings; that whereas job
performance was deemed norgrievable in the past, under this regulation
it was grievable. Fuentes denied referring to any such change, and he
testified job appraisals were always considered grievable; that the new
regulations made no change. While Article XXIII of the collective
bargaining agreement, which is entitled "Negotiated Grievance Procedure,
purportedly covers this matter, it is clearly a matter of contract
interpretation and no change in this respect appears in AFR 40-452.
(5) Fuentes denied giving any indication to Garcia that he would come
back and finish briefing. His testimony, however, reflects that he gave
the impression he would come back if the Union called and needed
explanation. Suarez, who was present at the briefing, also testified
that Fuentes stated on June 13 he had to leave for training for the new
regulation. Further, that Fuentes was making arrangements to come back
and talk over AFR 40-452 again with the Union. I credit the versions of
what occurred at the briefings as testified to by Garcia and Suarez.
(6) This conversation, as testified to by Garcia, was undenied by
Fuentes.
(7) San Antonio Real Property Maintenance Association.
(8) Fuentes testified that Garcia did not give him anything but the
letter (G.C. Exhibit No. 4). In view of the ultimate disposition of the
central issue herein, the undersigned concludes it is unnecessary to
reslove credibility as to the submission of the handwritten proposals.
(9) The letter containing these proposals, and addressed to the
Commander, was dated June 29. Garcia's testimony reflects that the
Union so dated the letter because that was the date it submitted its
handwritten proposals to Fuentes.
(10) Assuming arguendo, the Union submitted its proposals to Fuentes
on June 29, which fact is in dispute, the undersigned would deem the
submission untimely. Thus, a refusal to negotiate thereon, in view of
the implementation date of July 1, would not be violate of 7116(a)(5).
24 FLRA NO. 37
NFFE and HENRY M. THOMPSON, Case No. 4-CO-20019 (Decided December 5,
1986)
STATUTE
7114(a)(1)
7116(b)(1) and (8)
SUBJECT MATTER INDEX ENTRIES
MERIT SYSTEM PROTECTION BOARD
UNION REPRESENTATION BEFORE MSPB
REPRESENTATION BY UNION OF EMPLOYEE
EMPLOYEE'S RIGHT TO UNION REPRESENTATION
MSPB PROCEEDINGS
LEVEL OF DUTY OF FAIR REPRESENTATION
ACTIONS THAT RESULT IN AN OBLIGATION
STANDARDS FOR DETERMINING A BREACH OF DUTY OF FAIR REP.
ARBITRARY/BAD FAITH ACTION RESULTING IN DISPARATE TREATMENT
UNION ULP (ALLEGED) 7116(b)(8)
7114(a)(1)
DIGEST NOTES
The national office of a labor organization may be held responsible
for a violation of the duty to fairly represent an employee even if it
is not the recognized collective bargaining agent of the employee. The
Authority held that where, by its actions, the national office of a
union functions as the agent of a local union which has collective
bargaining responsibilities for an employee, the national office can be
held responsible for representational obligations under 7114(a)(1).
A labor organization has no statutory duty to represent an employee
in a Merit System Protection Board (MSPB) proceeding. But, if a union
chooses to do so, it must do so without discrimination and without
regard to union membership. In this case, the union indicated that it
would represent an employee but then failed to appear at the MSPB
hearing. The Authority held that the union did not violate sections
7114(a)(1) and 7116(b)(1) and (8).
Even if the union had a duty to represent an employee in a MSPB
proceeding, its conduct in failing to appear at the hearing did not
constitute a breach of its duty of fair representation under 7114(a)(1),
the Authority held. Where union membership is not a factor, the
standard for determining whether and exclusive representative 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.
Case No. 4-CO-20019
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WASHINGTON, D.C.
Respondent
and
HENRY M. THOMPSON, AN INDIVIDUAL
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Decision of the Administrative Law Judge filed by the
General Counsel and cross-exceptions filed by the Respondent. The
Respondent also filed an opposition to the General Counsel's exceptions.
The complaint alleged that the Respondent, the National Federation of
Federal Employees, Washington, D.C. (NFFE National), breached its duty
of fair representation under section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute (the Statute) and thereby violated
section 7116(b)(1) and (8) of the Statute when it failed to represent
the Charging Party, Henry M. Thompson, in a proceeding conducted by the
Merit Systems Protection Board (MSPB).
We conclude, for the reasons discussed below, that the Respondent did
not violate section 7116(b)(1) and (8) and therefore did not commit an
unfair labor practice.
II. Facts
Thompson was employed by the U.S. Coast Guard in Miami Beach, Florida
in the collective bargaining unit represented by Local 1485 of the
National Federation of Federal Employees, an affiliate of NFFE National.
Following Thompson's removal from employment on September 11, 1981, he
wrote to NFFE National and requested representation at his MSPB appeals
hearing on his discharge. NFFE National replied that its policy was not
to provide such representation from the National Office level, but that
it would in his case ask his Local Union (Local 1485) and a National
Representative located in Florida to provide him assistance.
On October 4, 1981, Thompson received an order from MSPB setting his
hearing for November 24. Through Local 1485, Thompson sought assistance
from National Representative Bob Brown. Brown, who worked out of
Orlando, Florida, met with Thompson in Miami in late October, agreed to
assist him in his MSPB hearing, and told Thompson that he would contact
him the next day. Brown did not contact Thompson, and on November 5
Thompson wrote Brown that the hearing was set for November 24. Brown
was not able to be present at that time and suggested through Local 1485
that Thompson ask for a postponement of his hearing. Thereafter, MSPB
scheduled the hearing for December 16 in Miami. Brown told Thompson
that he would be available for the hearing on that day.
The hearing was later rescheduled by MSPB for Atlanta, Georgia, on
February 24, 1982. Thompson notified Brown of this rescheduled date and
location by phone. During the conversation, Brown told Thompson that
the National Representative in Atlanta was being transferred. Thompson
asked if Brown would be present at his hearing. Brown stated that if he
could not attend the Atlanta hearing, another representative would.
Unable to reach Brown by phone on several occasions in January, Thompson
sent a letter to Brown on February 3, indicating that the MSPB hearing
was set for February 18 in Atlanta and requesting representation by a
qualified union representative. Thompson received no further assistance
nor did he have any further contact with anyone from the Union before
the MSPB hearing, at which Thompson appeared on his own behalf. The
parties stipulated that NFFE National's conduct in this matter was not
motivated by malice.
III. The Judge's Findings
The Judge found that the case presented three issues: (1) may NFFE
National be held responsible for a violation of the duty to fairly
represent an employee when it is not the recognized collective
bargaining agent of the employee involved; (2) if the National has the
duty to represent the employee, does the duty extend to proceedings
before the MSPB; and (3) if the duty exists, what standard of conduct
is to be used to ascertain whether that duty was breached.
As to the first issue, the Judge found that since NFFE National was
not the exclusive representative for the unit in which Thompson was
employed, it had no duty under section 7114(a)(1) of the Statute
notwithstanding the fact that Local 1485 is an affiliate of the
National. Second, the Judge found that, assuming that the National
could be held responsible for the violations alleged in the complaint,
it has no duty to represent employees in MSPB proceedings in any event
and therefore could not have breached any duty to represent Thompson.
The Judge stated that if the National agreed to volunteer, its services
to Thompson, the matter was one of concern strictly between Thompson and
the National and any question of the National's duty in that situation
should not be resolved in this unfair labor practice forum.
Finally, the Judge found that in view of his conclusions as to the
first two issues, he did not have to reach the question of what standard
of conduct a union would be charged with in fulfilling its duty to
represent employees in the collective bargaining unit and whether the
National failed to meet that duty. He went on to state, however, that
such a duty under the Statute exists and, but for his earlier
conclusions, he would find that the National's failure to be present at
the MSPB hearing, after having agreed to represent Thompson and no good
cause having been found which would excuse or explain the National's
failure to appear, would constitute arbitrary and capricious conduct in
violation of the Statute.
In view of his findings and conclusions, the Judge recommended that
the Authority dismiss the complaint.
IV. Positions of the Parties
The General Counsel excepted to the Judge's conclusions as to the
first and second issues and to his conclusion that the National was
blameless in the circumstances of this case. The Respondent, NFFE
National, agreed with the Judge's decision except as to his conclusion
on the third issue that the National's failure to appear at the MSPB
hearing was arbitrary and capricious.
V. Analysis
As to the first issue, we find, contrary to the Judge, that as a
result of its actions in this case NFFE National may be held responsible
for the violations alleged in the complaint. While Local 1485 was the
certified representative of the unit in which Thompson was employed,
NFFE National acted as an agent for Local 1485 throughout the
proceedings in this matter, and therefore was fully responsible for the
duties it assumed on behalf of Local 1485. See, for example, National
Treasury Employees Union and National Treasury Employees Union Chapter
204, 18 FLRA No. 36 (the Authority found that the local chapter acted as
the agent for the exclusive representative, and held that both the local
chapter and the exclusive representative violated section 7114(a)(1) and
thereby violated section 7116 (b)(1) and (8).
With respect to the second issue, we agree with the Judge that the
Respondent had no statutory duty to represent employees in MSPB
proceedings. Although a union has no statutory obligation to represent
employees in MSPB proceedings, it is our view that if a union chooses to
do so, it must do so without discrimination and without regard to union
membership. National Treasury Employees Union and National Treasury
Employees Union Chapter 121, 16 FLRA 717 (1984), enforcement denied,
NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986). In this case, the parties
stipulated that Respondent's conduct was not motivated by malice, and
nothing in the record indicates that Respondent's conduct was
discriminatory or was undertaken with regard to union membership.
Finally, as to the third issue, we find that even if Respondent had a
duty to represent Thompson in the MSPB proceeding, Respondent's conduct
did not constitute a breach of its duty of fair representation under
section 7114(a)(1) of the Statute. In National Federation of Federal
Employees, Local 1453, 23 FLRA No. 92 (1986), the Authority recently
addressed in detail for the first time the nature of an exclusive
representative's duty of fair representation where union membership is
not a factor. The Authority set forth the following standard:
(W)here union membership is not a factor, the standard for
determining whether an exclusive representative 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 concluded in NFFE, Local 1453 that under the standard
described the Respondent did not violate section 7114(a)(1) of the
Statute and, therefore, did not violate section 7116(b)(1) and (8) as
alleged in the complaint.
Similarly, we find that the Union's actions in this case do not meet
the standards set forth in NFFE, Local 1453 for finding an unfair labor
practice. While the General Counsel argues that the Union's failure to
appear resulted from "internal Union disorganization" and "lax
administration," the General Counsel has neither alleged nor established
that the Respondent deliberately and unjustifiably treated Thompson
differently from other bargaining unit employees. The record does not
establish that the Respondent acted arbitrarily or in bad faith.
Rather, we find that the Union's failure to appear at the MSPB hearing
constituted nothing more than mere negligence or miscommunication.
VI. Conclusion
Accordingly, the Authority finds that the Respondent did not violate
section 7114(a)(1) of the Statute, and consequently did not violate
section 7116(b)(1) and (8) of the Statute. Therefore, we shall dismiss
the complaint.
ORDER
The complaint in Case No. 4-CO-20019 is dismissed.
Issued, Washington, D.C. December 5, 1986.
Jerry L. calhoun, Chairman
Henry B. Frazier, III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 4-CO-20019
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WASHINGTON, D.C.
Respondent
and
HENRY M. THOMPSON, AN INDIVIDUAL
Charging Party
Catherine Waelder, Esq.
For the Respondent
Linda J. Norwood, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq.
Upon an unfair labor practice charge filed by Henry M. Thompson, an
individual, the General Counsel of the Authority, by the Regional
Director for Region IV, issued a Complaint and Notice of Hearing
alleging that National Federation of Federal Employees, Washington, D.C.
(herein sometimes referred to as Respondent, NFFE or the National)
violated section 7116(a)(1) and (8) of the Statute when it failed to
represent Mr. Thompson in a proceeding conducted by the Merit Systems
Protection Board (herein MSPB).
A hearing on the Complaint was conducted at which time Respondent and
the General Counsel were represented by counsel and afforded full
opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. Briefs were filed by counsel and have been
duly considered. /1/
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein Local 1485 of the National Federation of
Federal Employees (herein Local 1485) has been the exclusive collective
bargaining representative of various employees of the U.S. Coast Guard
including employees located in Miami Beach, Florida. Local 1485 is
affiliated with the National Federal of Federal Employees, Washington,
D.C. /2/
Henry M. Thompson was employed by the U.S. Coast Guard in Miami
Beach, Florida in the collective bargaining unit represented by Local
1485 for approximately 6 years. /3/ In June 1981 he received from the
Coast Guard a notice of proposed removal. The Coast Guard charged
Thompson with unauthorized absences, falsification of his attendance
record and attempting to deceive, through false written and oral
statements. Thereafter, Thompson, a member of Local 1485 throughout his
employment with the Coast Guard, requested Local 1485 President Evan
Miller to accompany him when Thompson made his oral reply to the prposed
action before the agency. Thompson and Evans appeared for the oral
reply and during the meeting Miller made representations on Thompson's
behalf. However, the charges were upheld by the 7th Coast Guard
District Commander and on September 4, 1981, Thompson was removed from
employment.
On September 11, 1981, Thompson wrote to James M. Peirce, President
of the National Union, related the background of his discharge and
requested that NFFE represent him at his MSPB appeals hearing on the
discharge. Thompson asked that a NFFE lawyer or qualified person
familiar with removal appeals be supplied for this purpose. By letter
dated September 22, President Peirce responded to Thompson and informed
him that assistance would be provided by the National. The letter
stated, in relevant part:
"Ordinarily, all requests for assistance should be communicated
through the Local President in writing. Since this is such a
short time frame here, however, we will not require the strict
adherence to this policy. The NFFE Executive Council has
implemented criteria for making the determination when someone
from the National Office will personally handle a pending matter.
This policy is necessary due to our very limited resources and the
size of the workload routinely received at the National Office
regarding matters other than representation which affect our
Locals nationwide.
"Your appeal is indeed important to us. However, it does not
fall within the criteria outlined by the Executive Council to
warrant National Office personnel exclusively handling the appeal,
as it does not affect your Local nor NFFE as a whole. This does
not in any way mean that we will not be involved.
"I recommend that both you and your Local President speak with
the NFFE National Representative who services your Local. His
name is Bob Brown and he is quite knowledgeable in handling cases
of this type. We will notify Mr. Brown that your case will be
pending and that his advice and expertise should be made available
to you.
"Staff Attorney Edwin Harvey has spoken with Local President
Evans Miller regarding your situation. He has advised Evans that
you should submit an appeal to the Merit Systems Protection Board
to preserve your right to appeal the separation action since you
possess all the information which is necessary to do so and since
you indicated to Evans your intent to file the appeal. Should you
require advice relating to the appeal prior to your being
contacted by Mr. Brown, please talk with Mr. Miller and have him
contact us at his earliest opportunity."
On October 4, 1981, Thompson received an order from the MSPB which
indicated that his hearing was set for November 24. Thompson thereupon
related this information to Local 1485 President Miller and Miller
called National Representative, Bob Brown /4/ and informed him that
while Thompson was not interested in having the Local Union represent
him before the MSPB, he wished to meet with Brown. Brown was scheduled
to be in the Miami area in late October and agreed to meet with Thompson
at that time. Miller related the message to Thompson.
Thompson met with Brown on October 29 or 30, 1981, in a Miami motel.
/5/ During the approximately 45 minute meeting, Thompson explained the
background of his situation to Brown and produced various documents
related to his case and asked Brown to help him. /6/ Brown reviewed the
matter with Thompson and indicated that he had experience in handling
this type of case and agreed to assist Thompson in his hearing before
the MSPB. /7/ Brown told Thompson he would contact him on the following
day and meet to discuss the case further.
Brown did not contact Thompson and on November 5, 1981, Thompson
wrote to Brown. His letter, a copy of which was sent to Miller, stated:
"The appeal hearing on my removal is set for November 24, 1981,
at 9 A.M. I request that I be represented at this hearing by a
Union attorney or a qualified and competent Union representative
that is knowledgeable about the rules, regulations and procedures
concerning a removal appeal hearing. A place has not been set for
this hearing as yet. Please reply as soon as possible as time is
of the essence."
Thereafter, Thompson heard from Miller and was told that Brown was
not able to be present at the November 24 MSPB hearing and Brown had
suggested that Thompson ask the MSPB for a postponement of the hearing.
Thompson contacted MSPB on November 10 and requested a ten-day
postponement. Subsequently the Coast Guard also sought a postponement
and by Order dated December 4, 1981, the MSPB set the matter to be heard
on December 16 in Miami, Florida. Thompson called Brown and informed
him of the December 16 hearing date and Brown replied that he would be
available for the hearing on that day.
Sometime before December 16, 1981, Thompson received notification
from MSPB that the December 16 hearing date would be cancelled due to
lack of funds. In late December or early January 1982, Thompson
received word from MSPB that his hearing would be held in Atlanta,
Georgia on February 24, 1982. Thompson called Brown and notified him of
the new date and that the MSPB ordered the hearing for Atlanta. /8/
During the conversation Brown told Thompson that the Atlanta
representative was being transferred to a better position in California.
Thompson voiced concern as to how that might affect his case and asked
if Brown would be present at his hearing. Brown replied that if he
could not be there, another representative would. Thompson asked if the
other person would be a qualified representative. Brown responded:
"Certainly."
According to Thompson, during the month of January he attempted to
reach Brown by telephone approximately five times but Brown's telephone
went unanswered. In early February 1982, Miller called Thompson with
regard to Thompson paying his Union dues. During the conversation
Thompson indicated that he was having difficulties contacting Brown.
Miller suggested Thompson contact Brown by mail. On February 3,
Thompson sent Brown a letter by certified mail which indicated that his
MSPB hearing set for February 18, 1982 at 8:30 a.m. in the MSPB hearing
room in Atlanta, Georgia. As he did in his prior letter of November 4,
1981, supra, Thompson requested that he " . . . be represented . . . by
a Union attorney or qualified and competent Union representative that is
knowledgeable about the rules, regulations and procedures at a removal
appeal hearing." Thompson again sought a reply "as soon as possible"
noting time was of the essence.
Brown received the letter on February 5, 1982, or shortly thereafter.
However, according to Brown, whose testimony on this matter I do not
credit, he had a telephone conversation with Thompson on February 4,
1982, and at that time indicated that a Union representative in Atlanta
was on "standby" and, if she had no other hearing or election
commitments, she would meet with Thompson prior to the hearing.
Thompson was to let Brown know where he would be staying and Brown would
contact the Atlanta representative as to where she should contact
Thompson. However, according to Brown, Thompson never again contacted
him and, in any event, unknown to Brown, the Atlanta representative was
transferred to California before February 18.
Thompson received no further assitance nor did he have any contact
with anyone from the Union prior to his MSPB hearing in Atlanta on
February 18, 1982, at which he appeared on his own behalf. /9/ By
decision of April 26, 1982, and final order of March 22, 1983, the MSPB
affirmed Thompson's removal action.
Discussions and Conclusions
Essentially three issues are presented in this case: (1) May the
National Union be held responsible for a violation of the duty to fairly
represent an employee when it is not the recognized collective
bargaining agent of the employee involved; (2) If the National has the
duty to represent the employee, does the duty extend to proceedings
before the MSPB and; (3) If the duty exists, what standard of conduct
is to be used to ascertain whether that duty was breached.
The National Union as Respondent
Section 7114(a)(1) of the Statute provides:
"A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership."
It is clear from the language of section 7114(a) (1) that the Statute
grants exclusive representation rights to the exclusive representative.
In my view it follows, therefore, that it is only at the level of
exclusive representation that the right to represent employees exists.
Cf. Department of Health and Human Services, Social Security
Administration, 6 FLRA 202 (1981), at 204 where the Authority stated:
". . . the mutual obligation to bargain as articulated in the Statute
exists only at the level of exclusive recognition with respect to
conditions of employment which affect any employees within the unit . .
." (Emphasis added). Section 7114(a)(1) also imposes on the exclusive
representative to duty to represent the interests of employees, but
limits that duty to employees in the collective bargaining unit it
represents. Therefore, where a union is not the exclusive collective
bargaining representative, it has neither the Statutory right to
represent the employees in that unit nor the obligation or duty to
represent those employees. Thus, the duty to represent employees is
co-extensive with a union's right to represent those employees. Cf.
Humphrey v. Moore, 375 U.S. 335, 342 (1964), where the Supreme Court,
when considering a union's rights and obligations which arose under
Section 301 of the National Labor Relations Act, stated: "The undoubted
broad authority of the union as exclusive bargaining agent in the
negotiation and administration of a collective bargaining contracted is
accompanied by a responsibility of equal scope, the responsibility and
duty of fair representation . . ." (Emphasis added).
Notwithstanding that Local 1485 is an affiliate of the National
Union, forwards a portion of members' dues to the National and receives
assistance from a National representative in various matters, Local 1485
is the exclusive bargaining representative for the unit in which
Thompson was employed. The collective bargaining agreement covering
that unit is between Local 1485 and the Coast Guard. It is only Local
1485, and not the National, which has the right to represent employees
in the unit in matters which arise out of the employment relationship by
virtue of its status as the exclusive representative. Similarly, it is
only Local 1485, and not the National, which has a correlative duty to
represent unit employees in such matters.
The National became involved in Thompson's case when it, upon request
by Thompson, volunteered the services of National Representative Brown
to make available his "advice and expertise" and Brown inidcated he
would assist Thompson during the MSPB hearing. However, any Statutory
duty to represent owed to Thompson was owed by Local 1485 and not the
National. By volunteering Brown's services the National may have become
the agent of the Local for the purpose of representing Thompson at the
MSPB hearing, but this did not make the National Thompson's Statutory
representative. That right and duty remained with the Local, the
exclusive representative.
Accordingly, since the Complaint herein names only the National as
the Respondent and the National was neither the exclusive representative
nor a party to the collective bargaining agreement, I conclude that the
National was not a proper respondent under the Statue and the Complaint
herein must be dismissed. See Baker et al, v. Newspaper and Graphic
Communications Union, Local 6, et al., 628 F. 2d 156, 165 (D.C. Cir.
1980).
The Duty to Represent at MSPB Proceedings
Assuming arguendo that the National Union can be held responsible for
the violations alleged in the Complaint, I would nevertheless conclude
that no breach of any duty to represent Thompson occurred herein. As
stated above, the duty to represent is coextensive with the right to
represent and, in my view, a union has no obligation to represent an
employee in matters wherein the union has no right to represent the
employee. Thus, if a union does not have a specific statutory or
contractual right to pursue a matter, it should not have any statutory
obligation to act. Such an approach would give a balanced meaning to
the Supreme Court's usage of "equal scope" in Humphrey v. Moore, supra,
when it discussed a union's representative responsibility vis a vis its
authority in such matters. Accordingly, where no right to pursue a
matter in a particular forum exists, a union should not be found to have
violated the Statute by its refusal to act, failure to act, or even by
acting discriminatorily or improperly. The situation would simply be
outside the purview of Statutory considerations. /10/
In the case herein the Union has no independent right under the
Statute or by contract to appear before the MSPB to argue or present a
case. /11/ The right to have his removal action brought before the MSPB
was Thompson's and arose separate and apart from the rights granted to
the Union by the Statute or negotiated into the collective bargaining
agreement. /12/ Accordingly, I would conclude that since access to the
MSPB was Thompson's right and Thompson's right alone, the Union cannot
be held to have violated the Statute by its actions or lack thereof in
connection therewith. If the Union agreed to volunteer its services to
Thompson the matter was one of concern strictly between Thompson and the
Union and any question of the Union's duty in that situation should not
be resolved in this forum.
In view of my conclusions herein I need not reach the question of
what standard of conduct a union should be charged with in fulfilling
its duty to represent employees in the collective bargaining unit and
whether the Union herein failed to meet that duty. /13/ However, it
would appear that such a duty under the Statute exists and, but for my
conclusions, supra, I would find that the Union's failure to be present
at the MSPB hearing, after having agreed to represent Thompson and no
good cause having been found which would excuse or explain the Union's
failure to appear at the hearing, would constitute arbitrary and
capricious conduct violative of the Statute.
Nevertheless, I would reject Counsel for the General Counsel's
request that, as part of the remedy, the Union should pay Thompson for
expenses he incurred representing himself. Since there is no showing
that Thompson incurred any expenses additional to those incurred in
connection with being present at the hearing, which hearing he would
have attended in any event, I conclude such remedy would be punative and
is therefore impermissible. IBEW v. Foust, 99 U.S. 2121 (1979).
Accordingly, in view of the entire foregoing, I recommend the
Authority issue the following:
ORDER
It is hereby ordered that the Complaint in Case No. 4-CO-20019 be,
and it hereby is, dismissed.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: July 5, 1984
Washington, D.C.
FOOTNOTES
(1) Counsel for Respondent's unopposed Motion to Correct Transcript
regarding minor matters is hereby granted.
(2) As an affiliate, a portion of Local 1485 members' dues is
forwarded to the National.
(3) The unit is described in a collective bargaining agreement
between Local 1485 and the Coast Guard which became effective in August
1977.
(4) Brown works out of Orlando, Florida and is employed by the
National Union. His official title is Division Director and he is
responsible for the supervision of three National Representatives in the
Civil Service Regions within his jurisdiction, as well as personally
serving 22 local unions in Florida, including Local 1485 and one local
in Alabama. Brown's duties include giving assistance and aid to local
unions in negotiations and other matters as requested.
(5) Brown called Miller and had him notify Thompson of the time and
place of the meeting.
(6) In this and other testimony herein, where there is a variance in
the testimony, for the most part I have relied on Thompson's testimony
over that of Brown and Miller. I found Thompson's testimony to be
generally more plausible and more specific, direct, consistent and
responsive to the questions asked.
(7) Brown had never appeared at an MSPB hearing but had experience in
other types of hearings.
(8) This conversation is denied by Brown.
(9) The parties stipulated that Repsondent's conduct in this matter
was not motivated by malice.
(10) This approach would comport with that taken by Judge Burton S.
Sternburg in American Federation of Government Employees, AFL-CIO,
3-CO-20003, OALJ-82-131 (September 16, 1982).
(11) To the extent that National Treasury Employees Union, 10 FLRA
519 (1982), might suggest a different conclusion, in that case the
removal actions involving non-union Nuclear Regulatory Employees were
before the agency and not before the MSPB.
(12) Compare American Federation of Government Employees, Local 1778,
AFL-CIO, 10 FLRA 346 (1982), involving workmens' compensation claims,
which subject was encompassed by the parties collective bargaining
agreement and a union official was granted official time for handling
such matters.
(13) Compare American Federation of Government Employees, Local 987,
3 FLRA 715 (1980). For a thorough discussion of a union's "duty of fair
representation", including the evloution of that concept in the private
sector, see the decision of Judge Francis E. Dowd in National Federation
of Federal Employees, Local 1453, 4-CO-20022, OALJ-84-52 (March 23,
1984.)
24 FLRA NO. 36
Army and Air Force Exchange Service, Dallas, Tex. and AFGE, Local
1345, Case No. 7-CA-50646 (Decided December 4, 1986)
STATUTE
7101(b)
7114(b)(4) and (b)(4)(B)
7116(a)(1), (5) and (8)
7118 and (a)(7)
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
AGENCY ULP (ALLEGED) 7116(a)(8) 7114(b)(4)
EXAMINATIONS, INTERVIEWS AND INVESTIGATIONS
INFORMATION
GRIEVANCE PROCEDURE, NEGOTIATED
INFORMATION NECESSARY TO DECIDE WHETHER TO SEEK ARBITRATION
INFORMATION, EMPLOYEE AND UNION RIGHTS UNDER THE STATUTE
CHARGING UNION FOR THE INFORMATION
NECESSITY OR RELEVANCE FOR FULL AND PROPER DISCUSSION
DISCIPLINE
INFORMATION NOT AVAILABLE TO MANAGEMENT OFFICIALS
TYPES OF INFORMATION SOUGHT
EXAMINATION, INTERVIEWS OR INSPECTIONS
CASH REGISTER TAPES
VIDEO-TAPE SURVEILLANCE OF EMPLOYEES
UNFAIR LABOR PRACTICE, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION TO BE PROVIDED UNION
DIGEST NOTES
A copy of a video-tape that was made in the covert surveillance of a
cashier, was both relevant and necessary under section 7114(b)(4) for
the union to discharge its representational function. Each cash
register had a red light that came on if an item was not properly
recorded by an electronic scanner. Cashiers were instructed to run each
merchandise item over the scanner until the red light was cleared or to
manually enter the code or price of the item. Following review of one
video tape supplied by agency electronic surveillance specialists,
activity management disciplined a cashier for under-ringing merchandise
by not properly using the electronic scanner that recorded each item and
its price. The union believed that the red light was either difficult
to see or did not come on and therefore sought to determine whether or
not the cashier was aware that an item placed on the scanner had not
actually been picked up by the scanner.
Although the union had been shown the video tape, it was entitled to
a copy of the tape, without charge, upon its request. The activity
permitted the union to view only a short 30 second segment of the video
tape and only in the presence of various management officials, which
prevented detailed and careful analysis; inhibited frank and open
discussion by union representatives; afforded no opportunity for the
union to show the video tape to other necessary representatives and
employees to evaluate the procedures shown; to correlate visual
transaction with cash register tape entries; or, indeed, to evaluate
the presumed identity of the cashier as the person on the tape.
Accordingly, the activity violated sections 7116(a)(1), (5) and (8) by
not providing a copy of the video tape to the union without charge when
requested.
The activity did not have an obligation under 7114(b)(4)(B) to
provide the union with all video tapes made by agency video surveillance
specialists of suspected cashier misconduct. The agency surveillance
specialists made eight (8) covert tapes of a cashier's performance but
supplied activity management with only one of those tapes which
management then used as a basis for its disciplinary action. The tapes
that were not available to nor used by management in reaching its
decision to discipline the cashier were not relevant to the union's
representational function. Accordingly, the agency did not violate
sections 7116(a)(1), (5) and (8) for refusing to provide the union with
all requested tapes.
Case No. 7-CA-50646
ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345,
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had committed
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and to
take certain affirmative action. The Judge found that the Respondent
had not engaged in other unfair labor practices alleged in the complaint
and recommended that the portion of the complaint relating to those
unfair labor practices be dismissed. Thereafter, the Respondent filed
exceptions only to the Judge's recommendation that it be ordered to
provide without charge to the Union a copy of a video tape in connection
with an employee grievance.
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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudical error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Army and Air Force Exchange Service, Dallas,
Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
referred to as "Local 1345"), the employees' exclusive representative, a
copy of the data requested by Local 1345 relating to disciplinary action
against employee Nancy Bundy.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed 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) Provide, without charge, to Local 1345 a copy of the video tape
for July 3, 1985, the day on which the alleged under ring by Nancy Bundy
occurred.
(b) Make available for inspection by Local 1345 5he entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy and provide, without charge, to
Local 1345 a copy of such portions of said cash register tape as Local
1345 may designate.
(c) Post at its facilities at the Army and Air Force Exchange
Service, Fort Carson, Colorado, 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 Army and
Air Force Exchange Service, Fort Carson, Colorado, and shall be posted
and maintained by him for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. The appropriate official shall take
reasonable steps 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 of Region VII, Federal Labor
Relations Authority, 535 16th Street, Suite 310, Denver, Colorado 80202,
in writing, within 30 days of this Order, as to what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that that portion of the Complaint which
relates to Local 1345's request for data of August 23, 1985, be, and the
same is hereby, dismissed.
Issued, Washington, D.C., December 4, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE OF ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
"Local 1345"), our employees' exclusive representative, a copy of the
requested data relating to disciplinary action against employee Nancy
Bundy.
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 provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by Nancy
Bundy occurred.
WE WILL make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy, and we will provide, without
charge, to Local 1345 a copy of such portions of said cash register tape
as Local 1345 may designate.
(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 7,
whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
Case No. 7-CA-50646
ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345
Charging Party
Luther G. Jones, Esquire
For the Respondent
Nicholas J. LoBurgio, 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., in essence concerns
whether Respondent failed to comply with Section 14(b)(4) of the Statute
and thereby violated Sections 16(a)(1) and (8) of the Statute by failing
to provide the Union with a copy of a video-tape, although the Union had
been shown the tape, i.e., the tape had been run on a VCR and viewed on
a TV screen.
This case was initiated by a charge filed on September 30, 1985 (G.C.
Exh. 1(a)) which alleged violations of Sections 16(a)(1)(5) and (8); a
Complaint and Notice of Hearing issued on January 7, 1986 (G.C. Exh.
1(c)), which alleged violations of Sections 16(a)(1), (5) and (8); a
First Amended Charge was filed on January 17, 1986 (G.C. Exh. 1(b))
which alleged violations of Sections 16(a)(1), (5) and (8); and an
Amended Complaint and Amended Notice of Hearing issued on January 22,
1986, which alleged violations of Sections 16(a)(1), (5) and (8) and set
the hearing for February 18, 1986, pursuant to which a hearing was duly
held on February 18, 1986, in Colorado Springs, Colorado, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved, and were afforded the opportunity to present oral argument.
At the close of the hearing, March 18, 1986, was fixed as the date for
mailing post-hearing briefs, and General Counsel and Respondent each
filed a brief, received on, or before, March 18, 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. American Federation of Government Employees, AFL-CIO, Local 1345
(hereinafter referred to as the "Union"), represents employees in two
separate bargaining units at Fort Carson, Colorado. One unit
encompasses appropriated fund activities; and the other covers
non-appropriated fund Army and Air Force Exchange Service employees at
the Fort Carson Exchange and the Pueblo Army Depot (hereinafter referred
to as "AAFES") (G.C. Exh. 2, Tr. 16-17). The AAFES exchange at Fort
Carson is essentially similar to a department store.
2. Sometime in late June, 1985, about June 27, or 28, Respondent,
through electronic surveillance specialists from its Ohio Valley
Exchange Region, at the request of AAFES locally, began covert
video-tape surveillance of unit employee/cashier Nancy Bundy (Tr.
91-93). These specialists made 14 eight hour tapes of Ms. Bundy at work
(Tr. 95). Upon completion of the surveillance, the surveillance
specialists departed the area and left with Respondent's Area Security
Specialist, Janet Scruggs, one, July 3, 1985, video-tape which contained
an alleged infraction of procedures by Ms. Bundy.
3. Upon receipt of this video-tape, Ms. Scruggs took a VCR out of
stock (i.e., a VCR for sale through AAFES) and showed the video-tape to
management officials of AAFES (Tr. 96, 101-102). On July 12, 1985, Ms.
Bundy was issued a letter placing her on administrative leave (Tr. 60,
61; G.C. Exh. 3). Ms. Bundy reported to the Union that Mr. Harry
Reimann, at the time Fort Carson Exchange detective supervisor, when he
delivered the letter of July 12, told her that, " . . . they had her on
tape, that there was some alleged mishandling of merchandise, improper
scanning or something, and that she was going to be investigated with
possible termination." (Tr. 17). Ms. Carolyn Gudjonsson, a Senior
Health Technician at the Medical Activity, U.S. Army Community Hospital,
Fort Carson, and President of the Union, called Mr. Richard Miller,
Personnel Manager for the Rocky Mountain Area Exchange, which includes
Fort Carson, as well as Peterson Air Force Base, the U.S. Air Force
Academy, Lowry Air Force Base, Fitzsimons Army Medical Center, and F. E.
Warren Air Force Base in Cheyenne, Wyoming, and told him the Union was
concerned about Ms. Bundy being placed on administrative leave and asked
Mr. Miller what sort of tape were they talking about (Tr. 18). Mr.
Miller told Ms. Gudjonsson that ". . . they had a video film or video
tape, and also had a cash register tape that showed that she (Bundy) had
mishandled merchandise." (Tr. 18).
4. By letter dated July 24, 1985, and addressed to Mr. Miller (G.C.
Exh. 4), Ms. Gudjonsson, as President of the Union, pursuant to Section
14(b)(4) of the Statute requested copies of:
-1. Vidio (sic) -tape showing alleged under-ring by Nancy
Bundy
-2. Sales tape from the register used by Nancy Bundy on the
day of alleged under-ring."
(G.C. Exh. 4).
5. Mr. Miller testified that on the 25th or 26th of July, 1985,
although he had not received the request of July 24, he received another
telephone call from Ms. Gudjonsson in which she stated that, ". . . Mrs.
Toro, who is the main store manager, would not allow them to view a copy
of the video tape that contained the alleged under ring by Nancy Bundy.
I responded to her by saying that I would make certain that the tape was
made available to them for their viewing, and that I would contact Mrs.
Toro and make her aware that we were obliged to allow the union to view
the tape and they should arrange a mutually convenient time. She
mentioned the cash register tape and again, I stated that certainly we
would make that available to them to view to look at in any way they
wished, being this is potential evidence in a disciplinary action. Of
course, I didn't feel it was appropriate to simply give it to them at
that time, but I felt it was important that they see it certainly." (Tr.
65-66).
6. Notwithstanding Ms. Gudjonsson's formal written request of July
24, 1985, and her telephone conversation with Mr. Miller on July 25 or
26, 1985, Respondent did nothing with regard to the Union's requests
until August 16, 1985, when, at the conclusion of a meeting on other
matters, Mr. J.R. Cupples, Fort Carson Exchange Manager, told Ms. Clara
Benson, Union Exchange representative, and Ms. Marlene Moosman, Union
Executive Vice President, that the video tape on Ms. Bundy was available
for them to see. Mr. Cupples arranged for the viewing in the office of
Mr. Mark Polczynski, AAFES Sales and Merchandise Manager. Present in
the room at the viewing of the tape were: Moosman, Benson, Reimann, who
ran the tape, Polczynski and Ms. Eleanor Richards, AAFES Detective (Tr.
43-44). /3/ Shortly after Mr. Reimann started the tape, Ms. Benson
said, "Wait a minute. Where is Nancy (Bundy)? I thought she suppose(d)
to be in this meeting" (Tr. 45); and Ms. Benson said that Mr. Reimann
responded, "Nancy has already seen the film" (Tr. 45). Ms. Benson told
Mr. Polczynski, ". . . we need her to review the film with us . . ." and
Mr. Polczynski went out and paged Ms. Bundy to come to the office (Tr.
45). When Ms. Bundy arrived, Ms. Benson stated that she, Bundy had
never seen the film (Tr. 45). At any event, with Ms. Bundy present the
video tape was run and then re-run at a slower speed and the tape was
stopped on different actions, ". . . like for this second scan and the
third scan." (Tr. 48). After the video tape had been shown, Mr. Reimann
handed Ms. Moosman the cash register receipt and stated there were ". .
. three items on the register tape and four items on the film." (Tr.
49). Ms. Moosman looked at the cash register tape and then handed it to
Ms. Benson and as Ms. Benson looked at the cash register tape, she said
she stated, "Well, if there is four items listed, isn't it possible that
the scanner did not pick up this item." at which point Mr. Polczynski
said, "Well, that has happened to me several times" (Tr. 49) and Mr.
Reimann said, "You (Polczynski) shouldn't have said that." (Tr. 49).
Ms. Benson said she, ". . . saw four items go through over the scanner."
(Tr. 46).
7. After review of the video tape, Ms. Moosman said she did not see
the red light and Ms. Benson confirmed that she could not see a red
light either (Tr. 49, 48). The existence or non-existence of the red
light is important to the Union's defense of Ms. Bundy because it could
show whether or not she should have been aware that an item placed on
the scanner had not actually been picked up by the scanner (Tr. 48, 54).
8. Mr. Reimann stated to Ms. Moosman, Ms. Benson and Ms. Bundy that,
". . . they had filmed Mrs. Bundy for over a week and that they had
three to five more tapes"; but when Ms. Benson asked to see them
because, according to Benson, "We are supposed to view all the video
film that you have on Nancy (Bundy)", Mr. Reimann said they did not have
them; that they had been sent to the Ohio Valley Exchange Region in
Charleston, Indiana, which was confirmed by Mr. Polczynski (Tr. 50).
Ms. Benson testified that she understood that if a red light came on the
light must cleared, by running the item over the scanner until it picks
up the code or the price of the item is entered manually, before the
register will give a total price of the purchases (Tr. 56).
9. After Mr. Benson and Ms. Moosman reported to Ms. Gudjonsson about
the problems they had in reviewing the excerpt of the video tape which
Respondent had shown, Ms. Gudjonsson, by letter dated August 19, 1985
(G.C. Exh. 9), again requested copies of:
"-1. Copy of the video (sic) tape showing alleged under ring
by Nancy Bundy.
-2. Copy of the sales register tape used on day of alleged
under ring.
-3. Documentation reflecting any and all other data relied
upon to substantiate the reasons for the proposed removal."
(G.C. Exh. 9).
10. By letter dated August 23, 1985 (G.C. Exh. 10), Ms. Gudjonsson
expanded her request and asked for,
"1. All vidio (sic) films or all employees for the last two
months, to include the months of July and August, 1985."
(G.C. Exh. 10).
11. In the meantime, on August 2, 1985, Ms. Bundy had been given an
"Advance Notice of Separation for Cause" (G.C. Exh. 5), which was
rescinded by letter dated August 6, 1985, "Due to a procedural error . .
." (G.C. Exh. 6); however, a further "Advance Notice of Separation for
Cause" was given to Ms. Bundy on August 7, 1985 (G.C. Exh. 7). Ms.
Bundy responded by letter dated August 9, 1985 (G.C. Exh. 8), and, inter
alia designated as her representative," AFGE Local 1345 and Mary McRae,
Union Steward or her designee." (G.C. Exh. 8). By letter dated August
28, 1985, Ms. Bundy was given "Final Notice of Separation for Cause"
(G.C. Exh. 11).
12. On September 13, 1985, Ms. Bundy filed a 1st Step Grievance
(G.C. Exh. 12).
13. On the same date that Ms. Bundy filed her grievance, September
13, 1985, Mr. Miller, for the first time responded to Ms. Gudjonsson's
information requests. His letter, dated September 13, 1985 (G.C. Exh.
13) stated as follows:
"1. Reference your letters . . . dated 19 and 23 August 1985.
(Mr. Miller denied ever having received Ms. Gudjonsson's letter of
July 24, 1985)
"2. A copy of the video tape showing the 'alleged under ring
by Nancy Bundy' is not available. Ms. Bundy and her
representative reviewed his video tape on 16 August 1985, and the
original tape is available for your further review at a mutually
acceptable time. Should you feel that a copy is required, we
would create a copy of the tape provided the Union would be
willing to reimburse Management for any expense incurred. Please
advise us if you should wish to again view the tape, or if a copy
is required. (Emphasis supplied).
"3. The cash register tape used on the day of the alleged
under ring was also reviewed by Ms. Bundy and her representative
on 16 August 1985. As we discussed in an earlier telephone
conversation, Management will provide a copy of the appropriate
segment of that cash register tape. Should you wish to review the
entire tape again, it can be made available at a mutually
acceptable time.
"4. There is no other documentation or data which was relied
upon by Management in making a decision to propose Ms. Bundy's
separation for cause.
"5. Your request for 'All video films on all employees for the
last two months to include the months of July and August, 1985,'
has been carefully considered, and Management is unconvinced that
those tapes would constitute relevant data in this matter. We
will consider any further input you might have on this matter."
(G.C. Exh. 13).
14. Ms. Bundy's grievance was denied at the first step; on
September 23, 1985, was elevated to the second step (G.C. Exh. 14),
where it was denied on September 26, 1985 (G.C. Exh. 16). On the same
day, that the second step grievance was denied, September 26, 1985, Mr.
Miller provided Ms. Gudjonsson with a copy of a section of the cash
register tape which shows the transaction in question (G.C. Exh. 15).
On October 1, 1985, Ms. Bundy elevated her grievance to the third step
(G.C. Exh. 17); and on October 21, 1985, Mr. Cupples reduced the
separation to a 14 calendar day suspension, which he considered to have
been served, and reinstated Ms. Bundy to a non-cash-handling position,
effective August 31, 1985 (G.C. Exh. 18). By letter October 22, 1985,
the "settlement offered" by Mr. Cupples at the third step was rejected
(G.C. Exh. 19); by letter dated October 24, 1985, Mr. Cupples advised
Ms. Gudjonsson that his letter of October 21, was "not an offer of
settlement, but rather my final decision on her grievance" (G.C. Exh.
20). Mr. Cupples further advised that by returning to work Ms. Bundy
"does not waive any rights she may have to grieve the personnel action
taken in my final decision." (G.C. Exh. 20). By letter dated October
28, 1985, Ms. Gudjonsson advised Mr. Cupples that Ms. Bundy would return
to work on October 31, 1985, in a non-cash-handling position, with the
understanding that this, ". . . in no way waivers any of her rights in
the grievance/arbitration process . . . . ." (G.C. Exh. 21). On October
25, 1985, a request for arbitration panel was filed (G.C. Exh. 22). At
the time of the hearing, an arbitrator had not been selected and Ms.
Gudjonsson testified that the Union still needs the requested data for
the pending arbitration (Tr. 39, 40, 41).
15. In order to produce a copy of a video tape, two VCRs are
required (Tr. 99, 100), with, of course, the necessary connections. The
tape in question was recorded at the slowest possible speed and, to play
the tape back, the VCRs must be capable of speed adjustment to this slow
speed, a feature not all VCRs have. VCRs, if capable of the necessary
speed adjustment, could be taken out of stock and used for this purpose;
or the surveillance specialists, who have the necessary equipment,
could make a copy. The estimated cost of each blank video tape was
$4.00 to 6.00 (Tr. 101) and, once started, the process is automatic (Tr.
101).
16. Ms. Gudjonsson testified that the Union needed copies of both
the video tape and the cash register tape for a variety of reasons: a)
because most of the Union's grievance work by representatives is done
after normal business hours; b) the need to show the video tape to
co-workers of Ms. Bundy, either after hours or at their homes, to
determine what the normal procedures for cashiers were and whether Ms.
Bundy was being treated disparately (Tr. 25, 26, 28, 32); c) the Union
needed to review the video tape privately so that they could openly
discuss the pros and cons of the case; d) the Executive Board is
required to review all available evidence before making a decision to
take the case to arbitration (Tr. 30); e) the Executive Board members
are primarily appropriated fund employee and must take annual leave to
work on AAFES cases; f) review of the video tape alone is not
satisfactory because to correlate events before, during and after the
alleged infraction, the entire cash register receipt must be reviewed
(Tr. 33). Ms. Benson testified that copies of the data were needed for
similar reasons (Tr. 51, 52, 53).
Conclusions
Section 14(b)(4) of the Statute provides:
"(b) The duty of an agency . . . 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; and
"(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . ."
(5 U.S.C. Section 7114(b)(4)).
It is well established that a union's right to receive, and the
agency's obligation to furnish, such data pursuant to Section 14(b)(4)
extends to the union's statutory representational obligation in the
processing of an employee grievance. Bureau of Alcohol, Tobacco and
Firearms, National Office and Western Region, San Francisco, California,
8 FLRA No. 108, 8 FLRA 547 (1985); Veterans Administration Regional
Office, Denver Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982).
At the hearing, counsel for Respondent conceded that video tapes and
cash register tapes constituted "data", within the meaning of Section
14(b)(4) of the Statute, for the purpose of this case (Tr. 107). In any
event, I specifically find that business records, regardless of physical
form, constitute data within the meaning of Section 14(b)(4) of the
Statute. See, for example, Long v. Internal Revenue Service, 596 F.2d
362 (9th Cir. 1979); 44 U.S.C. Section 3301.
1. Request for video tape showing alleged under ring.
Respondent advances two defenses: First, that in its requests /4/
the Union did not set forth reasons why copies the data requested were
necessary. Thus, Respondent states,
"There has been no refusal to provide data to the Union. The
obligation to provide the basis for the Union's conclusion that
certain data is 'necessary,' as required by Section 7114
(b)(4)(B), rests upon the Union. The Activity cannot be compelled
to guess. At the time the letter of September 13, 1985 (G.C.
Exhibit 13) was written, the Activity had no knowledge of the
reason the Union sought a copy of the video tape. In this letter
the Activity's last sentence was a request for further input,
i.e., "(w)e will consider any further input you might have on this
matter.' Instead of providing the Activity an explanation, the
Union filed its unfair labor practice charge (G.C. Exhibit 1a) and
did not disclose, until the day of trial, the basis for its
conclusion that a copy was 'necessary.' The Activity has been
denied an opportunity to consider such basis and, therefore,
cannot be considered to have refused." (Respondent's Brief, pp.
1-2).
It is certainly true that the Union did not set forth in detail the
reasons for its need for copies of the video tape and cash register
tapes in its requests. The Union merely stated,
"Such information is necessary /5/ to evaluate the grounds for
a grievance or other applicable action beyond PL 95-454." (G.C.
Exhs. 4, 9 and 10).
Nevertheless, the short answer to Respondent's assertion is that
Respondent never asked why the Union needed the copies of the data
requested. As I stated, in Internal Revenue Service, Memphis Service
Center and National Treasury Employees Union, Case No. 4-CA-30371,
OALJ-84-66, ALJ Decisions Report No. 38 (July 5, 1984), " . . . an
agency acts at its peril if it refuses to furnish data without asking
for a reason. Then, of course, the union may subsequently show its
justification for the request. Where an agency sought clarification of
the reason for a request and the union failed to respond, refusal to
furnish the data requested was not an unfair labor practice. Internal
Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7
FLRA 654 (1982)." (Case No. 4-CA-3071 at p. 7); see, also, Department
of Health and Human Services, Social Security Administration, Field
Operations, New York Region, 21 FLRA No. 35, 21 FLRA 253 (1986).
The Union's written requests of July 24 and August 19, 1985 had been
for copies of:
"-1. Vidio (sic) - tape showing alleged under-ring by Nancy
Bundy" (July 24; G.C. Exh. 4)
"-1. Copy of the vidio (sic) tape showing alleged under ring
by Nancy Bundy." (August 19; G.C. Exh. 9)
"-2. Sales tape from the register used by Nancy Bundy on the
day of alleged underring." (July 24; G.C. Exh. 4)
"-2. Copy of the sales register tape used on day of alleged
under ring." (August 19; G.C. Exh. 9).
On August 23, 1985, the Union requested copies of: "-1 All vidio
(sic) films on all employees for the last two months, to include the
months of July and August, 1985." (G.C. Exh. 10). Mr. Miller, in his
letter of September 13, 1985, first responded to the request of August
19, 1985 (he denied ever having received the request of July 24, 1985,
although the request was addressed to him) and in the final paragraph
responded to the request of August 23, 1985. As the request of August
23 was vastly different, as was the response, this request will be
considered hereinafter.
The Union's request of August 19, and the wholly identical request of
July 24, for a copy of the video tape ". . . showing alleged under ring
by Nancy Bundy" was not denied because the Union had not shown the
reason for need of the copy; nor did Respondent request further
justification than, as the Union had asserted, "Such information is
necessary in order to evaluate the grounds for a grievance or other
applicable action beyond PL 95-454" (G.C. Exh. 9). To the contrary,
Respondent, in its response of September 13, 1985, stated:
"2. A copy of the video tape showing the 'alleged underring by
Nancy Bundy' is not available . . . Should you feel that a copy
is required, we would create a copy of the tape provided the Union
would be willing to reimburse Management for any expenses incurred
. . . Please advise us . . . if a copy is required." (G.C. Exh.
13) (Emphasis supplied).
Consequently, Respondent's assertion, that, "The Activity has been
denied an opportunity to consider such basis (i.e. "that a copy was
'necessary'") . . ." is without basis and is rejected.
The Union has demonstrated that a copy of the video tape "showing
alleged under ring" was ". . . both necessary and relevant to enable the
Union to fulfill its legitimate representational role in processing the
employee's grievance . . ." Veterans Administration Regional Office,
Denver, Colorado, supra, 10 FLRA at 454. Moreover, Mr. Miller,
Respondent's Personnel manager, testified that, since the video tape and
the cash register tape was the only evidence against Ms. Bundy (Tr. 77),
it was "important" that the Union see it (Tr. 66); "that the Union had
a right to see all of the video tape and all of the cash register
receipts . . ." (Tr. 79-80); and counsel for Respondent at the hearing
stated, ". . . I believe there is a basis to the union's position that
they would have the right to review the video tape covering transactions
that occurred previous to and after in order to satisfy themselves that
there was nothing unusual or particularly misrepresentative of the
particular transaction involved." (Tr. 112-113).
Once it is established that data, which in this case obviously was
"reasonably available," is necessary to enable the Union to process the
employee's grievance, and as shown this was readily admitted by
Respondent, I do not agree with Respondent that the Union must show
further necessity for a copy of the data which has already been shown to
be "necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining"
(Section 14(b)(4)(B)), "collective bargaining", of course, encompassing
the processing of grievances). When a request for data covers various
different items, production of the requested items for examination by
the Union may be sufficient initial compliance with the "furnish"
requirement of Section 14(b)(4); and a request for copies of some, or
all, of the items "furnished" may be subject to a showing that they are
"necessary" since there has not been a determination that any particular
item is necessary for the purposes of Section 14(b)(4). But when, as
here, the video tape has been shown to be, and conceded to be, necessary
for the purposes of Section 14(b)(4), no further showing of necessity
may be required. In any event, General Counsel in this case has shown
the particular need of the Union for a copy of the video tape "showing
alleged under ring."
In truth, Respondent's actual concern relates to whether it should
have to make a copy of a video tape as it conceded at the hearing that
if this had been a written document, "Under the present state of law,
they would be entitled to have copies of those documents without cost."
(Tr. 108). Since this is Respondent's second defense, it will be
addressed hereinafter.
If Respondent had provided the Union with a copy of the segment of
the video tape which showed the "alleged under ring," i.e. the
approximately 30 second segment shown to the Union on August 16, 1985, I
would have found no violation since the Union's requests easily could
have been construed to have asked for no more; but, from the record it
is clear that the Union asked for a copy of the entire video tape which
showed the alleged under ring; that Respondent so understood the
Union's request; and Counsel for Respondent conceded that the Union had
". . . the right to review the video tape covering transactions that
occurred previous to and after . . ." (Tr. 112-113). Indeed, Respondent
has made no distinction between providing a copy of a segment of the
video tape and the entire video tape.
2. All video tapes on all employees.
The Union's request of August 23, 1985, was for:
"-1. All vidio (sic) films on all employees for the last two
months, to include the months of July and August, 1985" (G.C. Exh.
10).
As to this request, Mr. Miller responded, in relevant part,
". . . Management is unconvinced that those tapes would
constitute relevant data in this matter . . ." (G.C. Exh. 13).
With regard to the August 23, 1985, request, Respondent clearly
questioned the relevancy of additional tapes and, effectively, asked for
justification to which the Union failed to respond and for this reason
alone, Respondent's refusal to furnish the tapes requested on August 23,
1985, was not an unfair labor practice. Internal Revenue Service,
Buffalo District, Buffalo, New York, supra; Department of Health and
Human Services, Social Security Administration and Social Security
Administration, Field Operations, New York Region, supra. Moreover,
nothing in the record shows any relevancy or materiality of such
additional tapes and/or that such data is necessary for the purposes of
Section 14(b)(4)(B). To the contrary, although Ms. Bundy was taped for
fourteen days and possibly other employees would have used the same cash
register, e.g., during Ms. Bundy's absence on breaks, etc., when the
surveillance specialists left Fort Carson they took all tapes with them
except the one tape, for July 3, 1985, on which the alleged under ring
was shown. Not only was no portion of any other tape used or relied
upon in any manner by management in regard to the proposed disciplinary
action taken against Ms. Bundy, but no representative of management ever
saw any portion of any of the other thirteen tapes. Accordingly, I find
that such data was not necessary and Respondent's failure to furnish
such data was not an unfair labor practice.
Respondent's second defense is stated as follows:
"It is not consistent with effective and efficient government
to require an activity to provide a file copy of a video tape to
the unions for the purposes of a 'private showing' where access to
the original video tape is made available to the union. The
Union's basis for establishing the necessity required by Section
7114(b)(4)(B) is a need for a 'private showing.' There is no
question that such a 'private showing' is of value to the Union.
The question presented here is whether the Activity should bear
the costs of providing a copy of the video tape for the Union's
private showing.' Where the Activity has provided the Union access
to the original video tape, having otherwise not interfered with
all access necessary to the Union, it is not consistent with an
'efficient' government, as required by Section 7101(b), to require
government agencies and activities to pay the cost of this
'private showing.'
"There is no obligation under the statute or legislative
history to provide, free of charge, any data to the Union. The
Respondent is aware of Authority precedent prohibiting the release
of data conditioned upon the payment of a reasonable fee. The
Respondent makes this assertion to preserve its rights to raise
the issue upon appeal." (Respondent's Brief, pp. 2-3).
Respondent's "private showing" argument would be no different whether
the data in question was a written document or a video tape. There is
at least the same need for a copy of written document, i.e., for a
'private showing', as for a copy of a video tape, and perhaps an even
greater need for a copy of a video tape since it would be far more
difficult to make notations of all that was seen than to make notes of
what appeared in a written document. The right to inspect and copy is
well established, e.g., Rules 26(b) and 34 of the Federal Rules of Civil
Procedure; /6/ by decision under the National Labor Relations Act, The
Cincinnati Steel Castings Company, 86 NLRB 592 (1949); /7/ is not
questioned here; nor may it be, inasmuch as the Statute requires that,
"(b) The duty of an agency . . . shall include the obligation
--
. . .
"(4) . . . to furnish to the exclusive representative involved
. . . data . . ." (5 U.S.C. Section 7114(b)(4).
Respondent made at least the segment of the video tape showing the
"alleged under ring by Nancy Bundy" available to the Union for viewing
and offered to "create a copy of the tape provided the Union would be
willing to reimburse Management for any expense incurred." Thus, as
Respondent recognizes the "bottom line" is whether Respondent failed to
comply with the requirements of Sections 14(b)(4) and thereby violated
Sections 16(a)(1),(5) and (8) of the Statute by failing and refusing to
provide the Union a copy of the videotape without cost.
In Veterans Administration Regional Office, Denver, Colorado, 10 FLRA
No. 78, 10 FLRA 453 (1982), the Authority held that the agency, or
activity, violated its duty to negotiate in good faith, and failed to
comply with the requirements of Section 14(b)(4), in violation of
Sections 16(a)(1), (5) and (8) of the Statute, by requiring payment for
a copy of necessary data requested by the union in order to fulfill its
representational role in connection with an employee's grievance. Judge
Arrigo, in a well reasoned decision and in reliance upon: a) the
silence of the Statute, as to the conditions under which the information
is to be furnished, including whether a charge may be exacted; b) that
the legislative history does not address the matter of a charge for
data; c) that no counterpart to Section 14(b)(4) existed under the
Executive Order and the question of requiring a fee for providing such
information had not resolved under the Order; and d) decisions by the
National Labor Relations Board which do not require the employer to bear
the burden of the cost of duplicating material (10 FLRA at 466-467), had
concluded that under the Statute the respondent ". . . was not obligated
to provide the Union copies of the documents in question without
charge." (10 FLRA at 467). The Authority reversed and stated,
"Section 7114 of the Statute prescribes the representation
rights and duties of the parties in a collective bargaining
relationship. Part of an agency's statutory duty to negotiate in
good faith, as set forth in section 7114(b)(4) is 'to furnish to
the exclusive representative . . . upon request and, to the extent
not prohibited by law, data, as further described therein.
(footnote omitted). In using the term 'furnish,' Congress did not
specify either in the Statute or its legislative history whether
an agency may assess a charge for such data requested by an
exclusive representative. However, noting particularly that the
obligation to furnish such data is an integral part of an agency's
duty to negotiate in good faith under section 7114(b)(4), as
mandated by Congress, the Authority concludes that it would
further Congressional intent to require an agency to furnish the
data, subject to the limitations and conditions of section
7114(b)(4)(A), (B) and (C), without charge to the exclusive
representative.
"Such conclusion is also consistent with the common meaning of
the term 'furnish.' In accordance with the general rules of
statutory construction, words in the Statute are given their
common meaning unless a contrary legislative intent is indicated.
(footnote omitted). There is nothing in the language of the
Statute or in the relevant legislative history which suggests that
the term 'furnish' as used in section 7114(b)(4) should be given
any meaning other than that commonly ascribed to it. In this
regard, the common meaning of the term 'furnish' is to provide,
supply or give (footnote omitted). Thus, in the context of
section 7114(b)(4), the Authority's conclusion that an agency's
obligation to 'furnish' the exclusive representative with a copy
of necessary data upon requests means to give such data without
cost to the exclusive representative is consistent with the
literal language of the statute. /8/
"In addition, the foregoing conclusion gives meaning to section
7114(b)(4), whereas a contrary interpratation would render that
section merely duplicative of rights already established under the
Freedom of Information Act (FOIA) . . .
"Accordingly, contrary to the Judge, the Authority concludes
that the Respondent herein violated its duty to negotiate in good
faith, and failed to comply with the requirements of section
7114(b)(4), in violation of section 7116(a)(1), (5) and (8) of the
Statute, by requiring the Union to pay for a copy of necessary
data requested by the Union (footnote omitted) in order to fulfill
its representational role in connection with an employee's
grievance. (footnote omitted). (10 FLRA 456-458).
Veterans Administration Regional Office, Denver, Colorado, supra, has
been consistently followed; however, I am aware that the Authority has
stated, for example in Bureau of Alcohol, Tobacco and Firarms, National
Office, Washington, D.C., 18 FLRA No. 74, 18 FLRA 611, 613 (1985); U.S.
Equal Employment Opportunity Commission, Washington D.C., 20 FLRA No.
37, 20 FLRA 357, 358 (1985), that:
"The duty to supply data under section 7114(b)(4) thus turns
upon the nature of the request and the circumstances in each
particular case."
Although such statement did not relate to furnishing a copy of data
without charge to the exclusive representative, I have no doubt that in
a proper case the difficulty and cost of producing a copy, together with
the circumstances of use and access to the original data afforded would
be proper considerations; but that is not presented in this case.
Respondent permitted the Union to view only a short 30 second segment of
the video tape and only in the presence of various management officials,
which prevented detailed and careful analysis; inhibited frank and open
discussion by Union representatives; afforded no opportunity for the
Union to show the video tape to other necessary representatives and
employees to evaluate the procedures shown; to correlate visual
transaction with cash register tape entries; or, indeed, to evaluate
the presumed identity of Ms. Bundy as the person on the video tape.
Moreover, the only cost shown was the estimated $4.00 to $6.00 cost for
a video tape cassette. Although the VCRs would have to be started, once
started the process is automatic. Further, the video tape cassette,
when no longer required, is fully reusable and could be returned for
further use. Respondent does not deny its capacity, whether by its
surveillance specialists or by use of VCRs at the Exchange, to produce a
copy of the video tape -- indeed, Respondent stated, ". . . we would
create a copy of the tape provided the Union would be willing to
reimburse Management for any expense incurred."
Respondent conceded the need of the Union to examine the cash
register tape used on the day of the alleged under ring and, eventually,
furnished a copy of a short segment of the cash register tape which
concerned the particular transaction. The record does show that to copy
the entire cash register tape would be difficult and the copy of poor
quality. The record devoted scant attention to either the asserted need
or desire of the Union for a copy of the entire cash register tape for
the day in question. Accordingly, I shall order the entire cash
register tape for the day in question to be made available to the Union
for its examination and, further, that a copy of such portions as
requested by the Union be furnished.
Accordingly, having found that Respondent failed to comply with the
requirements of Section 14(b)(4) of the Statute and thereby violated
Sections 16(a)(1), (5) and (8) of the Statute by its refusal to furnish
the Union a copy of necessary data requested in order to fulfill its
representational role in connection with an employee's grievance, 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 Army and Air Force Exchange
Service, Dallas, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to provide, without charge to the
American Federation of Government Employees, AFL-CIO, Local 1345
(hereinafter referred to as "Local 1345"), the employees'
exclusive representative, a copy of the data requested by Local
1345 relating to disciplinary action against employee Nancy Bundy.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
guaranteed 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) Provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by
Nancy Bundy occurred.
(b) Make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day
of the alleged under ring by Nancy Bundy and provide, without
charge, to Local 1345 a copy of such portions of said cash
register tape as Local 1345 may designate.
(c) Post at its facilities at the Army and Air Force Exchange
Service, Fort Carson, Colorado, 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 an appropriate
official of the Army and Air Force Exchange Service, Fort Carson,
Colorado, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The appropriate official shall take
reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal
Labor Relations Authority, Suite 310, 535 16th Street, Denver,
Colorado 80202, in writing, within 30 days of this Order, as to
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that that portion of the Complaint which
relates to Local 1345's request for data of August 23, 1985, be, and the
same is hereby, dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 15, 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 7114(b)(4) will be referred to,
simply, as "Section 14(b)(4)."
(2) General Counsel filed a Motion to Correct Transcript of the
Proceedings; Respondent made no objection; and having found the
requested corrections entirely proper. General Counsel's motion is
hereby granted and the transcript is hereby corrected as more fully set
forth in the Appendix hereto.
(3) It would appear that the video tape was shown to the Union on a
second occasion when the tape was released, at Mr. Cupples request, to
Ms. Richards to "show it again." (Tr. 97, 98).
(4) Inasmuch as the Union renewed its request on August 19, 1985, I
find it unnecessary to decide whether Respondent did, or did not,
receive the request of July 24, 1985.
(5) The words "in order" were added, following "necessary" and before
"to" in the requests of August 19, and 23, 1985.
(6) Rule 34 provides, in part, that,
"(a) Scope. Any party may . . . inspect and copy, any
designated documents (including writings, drawings, graphs,
charts, photographs, phono-records, and other data complications
from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably usable
form) . . . "
Copying is by the party requesting the data and at that party's cost;
but such cost may be recovered if that party prevails and is awarded
costs.
(7) The LMRA contains no provision comparable to Section 14(b)(4);
but the NLRB does not require an employee to furnish such information
without cost, absent some evidence of bad faith. Abercrombie & Fitch
Co., 206 NLRB 464 (1973).
(8) The Judge's discussion of private sector cases in reaching a
contrary conclusion is deemed inopposite, noting particularly the
absence of any provisions similar to section 7114(b)(4) in the Labor
Management Relations Act (LMRA) and the difference between federal and
private sector labor Management relations recognized by Congress. See
section 7101(b) of the Statute.
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 fail or refuse to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
"Local 1345"), our employees' exclusive representative, a copy of the
requested data relating to disciplinary action against employee Nancy
Bundy.
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 provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by Nancy
Bundy occurred.
WE WILL make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy, and we will provide, without
charge, to Local 1345 a copy of such portions of said cash register tape
as Local 1345 may designate.
(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 7,
whose address is: 535 - 16th Street, Suite 310, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
24 FLRA NO. 35
IRS, Cincinnati District Office and NTEU, Chapter 9 (McDonald
Arbitrator), Case No. 0-AR-1146 (Decided December 4, 1986)
STATUTE
7106(a)(2)(A)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION AWARDS, REMEDIES BACKPAY
ARBITRATION AWARDS, EXCEPTIONS ASSERTED IN APPEAL
AWARD CONTRARY TO APPLICABLE LAW 5 U.S.C. 5596 (BACI PAY ACT)
AWARD CONTRARY TO THE FSLMR STATUTE 7106(a)(2)(A)
BACKPAY
CRITERIA FOR BACKPAY AND RETROACTIVE PROMOTIONS "BUT FOR" TEST
UNWARRANTED OR UNJUSTIFIED PERSONNEL ACTION
FURLOUGH
LAYOFF, RESERVED MANAGEMENT RIGHT (7106(a)(2)(a)) REDUCTION IN FORCE
INADEQUATE NOTICE UNDER THE PARTIES' AGREEMENT
NOTIFICATION OF UNION
COLLECTIVE BARGAINING AGREEMENT PROVISIONS FURLOUGHS
REDUCTION-IN-FORCE
FURLOUGH / TEMPORARY REDUCTION-IN-FORCE
ADVANCE NOTIFICATION REQUIRED BY PARTIES' AGREEMENT
UNITED STATES CODE
5 U.S.C. 5596 (BACK PAY ACT)
DIGEST NOTES
A group grievance was filed contending that the activity failed to
provide five days advance notice of a furlough as required by the
parties' collective bargaining agreement. The arbitrator ruled that the
activity could have given five days advance notice and that by not doing
so the activity violated the parties agreement. As his award, the
arbitrator ordered the activity to reimburse the grievants at their
straight-time rate for the days for which they were not provided advance
notice of their furlough.
In one of its exceptions the agency contended that the award was
contrary to the Back Pay Act, 5 U.S.C. section 5596 because the
arbitrator failed to make the requisite findings to support the award of
backpay. The Authority held that this exception constituted nothing
more than disagreement with the arbitrator's findings of fact and with
his reasoning. The arbitrator's interpretation of the agreement as
imposing a mandatory requirement for five days notice when possible
constitutes a finding by an appropriate authority as required by the
Back Pay Act. Also the arbitrator made the required finding under the
Back Pay Act that the activity's failure to give the grievants five days
notice directly resulted in their not working for the days following
furlough that they would have otherwise worked and received compensation
but for inadequate notice.
In is second exception, the agency contended that the award violated
management's right to layoff under section 7106(a)(2)(A). The Authority
held that the award in no way prevented the activity from furloughing or
laying off employees. Rather, the award only enforced the activity's
contractual obligation to give employees five days advance notice of
furlough "whenever possible". Advance notice of a reduction-in-force or
furlough is a negotiable procedure under section 7106(b)(2).
Case No. 0-AR-1146
INTERNAL REVENUE SERVICE CINCINNATI DISTRICT OFFICE
Activity
and
THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 9
Union
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Patrick A. McDonald 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 grievance in this matter arose when a number of seasonal
employees were furloughed because of a reduction in the number of hours
allocated to the Taxpayer Service Division. According to the
Arbitrator, 32 of the employees were notified by the Activity on
February 11, 1985 that they would be furloughed at the close of business
on February 12; one employee was notified on February 12 that she would
be furloughed at close of business that day. Sixteen others were
notified on February 25 that they would be furloughed at the close of
business on February 26 and one employee was notified on February 26
that she would be furloughed that same day. A group grievance was
filed, contending that the Activity's failure to provide five days
advance notice of the furloughs violated Article 25, Section 1H of the
collective bargaining agreement, which provides: "An employee will,
whenever possible, receive five days notice of furlough." The matter was
submitted to arbitration.
The parties stipulated to the Arbitrator that the furloughed
employees were "ready, willing and able to work for four days following
their furlough." The Arbitrator found that the Activity knew before the
furloughs were announced that the number of hours available was reduced
and that furloughs would be necessary. He ruled that the Activity could
have given five days notification and that by not doing so it violated
Article 25, Section 1H. He rejected the Activity's contention that the
grievance infringed on its rights to determine its mission, budget, and
number of employees. As his award he sustained the grievance and ruled
that the Activity's violation of the notice requirement of the agreement
"resulted in the denial of all or part of the pay and allowances
otherwise due to the grievants for four days following February 12, 1985
and February 26, 1985." He ordered the Activity to reimburse the
grievants at their straight-time rate for the four days following their
notifications of furlough.
III. FIRST EXCEPTION
A. Contentions
The Agency contends the award is contrary to the Back Pay Act, 5
U.S.C. Section 5596, because the Arbitrator failed to make the requisite
findings to support the award of backpay. Specifically the Agency
contends that the Activity's failure to give five days notice to the
grievants did not constitute an unwarranted or unjustified personnel
action because the agreement provision violated was discretionary, not
mandatory. Further, the Agency contends that the Arbitrator did not
make the required finding that the violation directly resulted in the
reduction or loss of pay to the grievants and that he failed to address
evidence showing that the grievants would not have worked beyond the
furlough dates.
B. Analysis and Conclusion
We find that this exception fails to establish that the award is
deficient as alleged. In order for an award of backpay to be authorized
under the Back Pay Act, the arbitrator must find that an agency
personnel action was unjustified or unwarranted, that the personnel
action directly resulted in the withdrawal or reduction of the
grievant's pay, allowances or differentials, and that but for the
action, the grievant would not have suffered a withdrawal or reduction
of pay, allowances or differentials. American Federation of Government
Employees, Local 1760 and Social Security Administration, Northeastern
Program Service Center, 22 FLRA No. 19 (1986).
In this case, the Arbitrator found that the Activity violated the
agreement provision and that it was possible for the Activity to give
five days notice under the circumstances presented. Contrary to the
Agency's contention, the Arbitrator's interpretation of the agreement as
imposing a mandatory requirement for five days notice when possible
constitutes a finding by an appropriate authority under the Back Pay
Act. See National Labor Relations Board Union, Local 19 and Office of
the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981).
Therefore, the Activity's action furloughing the grievants without the
required notice was an unjustified or unwarranted personnel action under
the Back Pay Act.
As to the second part of the Agency's exception, we find that the
Arbitrator made the required finding under the Back Pay Act that the
Activity's failure to give the grievants five days notice directly
resulted in their not working for the four days following furlough. He
specifically found that the Activity knew sufficiently in advance that
furloughs would be required, he noted the parties' stipulation that the
grievants were available to work, and he found that the Activity had
sufficient hours in its allocation to employ them during the notice
period. The Agency fails to show that the Arbitrator erred in finding
that the grievants otherwise would have worked for four days following
notice or that he ignored evidence pertaining to that. Its exception
constitutes nothing more than disagreement with the Arbitrator's finding
of fact and with his reasoning and conclusions. This disagreement
provides no basis for finding an award deficient. Department of the Air
Force, Scott Air Force Base and National Association of Government
Employees, Local No. R7-23, 4 FLRA 712 (1980).
IV. SECOND EXCEPTION
A. Contentions
The Agency contends that the award is contrary to section
7106(a)(2)(A) of the Statute because it restricts its right to layoff
employees and imposes a mandatory notice requirement. The Agency
maintains that the effect of the award is to nullify the furloughs which
were implemented.
B. Analysis and Conclusion
The Agency's second exception fails to show that the award violates
section 7106(a)(2)(A) of the Statute. Contrary to the Agency's
contentions, the award in no way prevents the Activity from furloughing
or laying off employees. Rather, the award only enforces the Activity's
contractual obligation to give employees notice of furlough "whenever
possible." The Authority has consistently held that the rights reserved
to management under section 7106(a) of the Statute are subject to
procedures negotiated under section 7106(b)(2) and such procedures are
enforceable by grievance and arbitration. National Treasury Employees
Union and U.S. Customs Service, 18 FLRA No. 94 (1985). The Authority
has found that a bargaining proposal which provided for a 30 day notice
of reduction in force was a negotiable procedure which would not prevent
the agency from laying off and/or retaining employees. National
Federation of Federal Employees, Local 108 and U.S. Department of
Agriculture, Farmers Home Administration, 16 FLRA 807 (1984) (Proposal
2). In this case, the agreement provision for a five day notice of
furlough whenever possible also constitutes a procedure which was
properly enforceable by the Arbitrator. Consequently, the award is not
contrary to section 7106(a)(2) of the Statute.
V. DECISION
Accordingly, for the above reasons, the Agency's exceptions are
denied.
Issued, Washington, D.C., December 4, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 34
AFSCME, Local 2027 and ACTIION, Case No. 0-NG-1326 (Decided November
28, 1986
STATUTE
7105(a)(2)(E)
7117
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY PROCEDURE
ALLEGATION OF NONNEGOTIABILITY
WITHDRAWAL OF ALLEGATION
DIGEST NOTES
Where the agency withdrew its allegation of nonnegotiability
concerning the union's proposal, there was no longer an issue as to
whether the proposals are within the parties' duty to bargain.
Case No. 0-NG-1326
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL
2027
Union
and
ACTION
Agency
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 on a petition
for review of negotiability issues filed by the Union.
The record in this case indicates that by letter dated September 4,
1986, the Agency declared the Union's proposals concerning time and
attendance reporting procedures to be nonnegotiable. On September 19,
1986, pursuant to section 7117 of the Statute and section 2424.1 of the
Authority's Rules and Regulations, the Union filed a petition for review
seeking a determination as to whether the disputed proposals were within
the duty to bargain. Subsequently, in a letter dated October 20, 1986,
the Agency withdrew the allegation of nonnegotiability.
Since the Agency has withdrawn the allegation concerning the Union's
proposals, there is no longer an issue as to whether the proposals are
within the parties' duty to bargain under the Statute.
Accordingly, and apart from other considerations, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., November 28, 1986
/s/ Harold D. Kessler
Director of Case Management
24 FLRA NO. 33
Air Force Logistics Command, McClellan Air Force Base, Cal. and Dora
M. Solorio, an Individual, Case No. 9-CA-40168 (Decided November 26,
1986)
STATUTE
7116(a)(1) and (8)
7118
7131(a) and (c)
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) 7116(a)(8)
7131(c)
HOUSE REPORTS
H.R. REP. NO. 95-1403, 95TH CONG., 2ND SESS. (1978)
OFFICIAL TIME (7131)
AUTHORITY MANDATED PARTICIPATION IN ANY PHASE OF A PROCEEDING
INVOLVEMENT OF AGENCY IN PROCEEDING NOT RELEVANT WHOSE BEHALF THE
EMPLOYEE IS TESTIFYING IS NOT CONTROLLING
TRAVEL AND PER DIEM
AUTHORITY MANDATED PARTICIPATION
UNFAIR LABOR PRACTICES, PROCEDURE
WITNESSES
OFFICIAL TIME
TRAVEL AND PER DIEM
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
OFFICIAL TIME, PROVIDE
TRAVEL AND PER DIEM
DIGEST NOTES
The activity violated sections 7131(c), 7116(a)(1) and (8) when it
failed to provide official time, travel and per diem expenses to an
employee who appeared at an unfair labor practice hearing at the request
of the General Counsel of the FLRA. The agency alleged that because the
individual was not "participating for, or on behalf of, a labor
organization", she was not entitled to official time, travel and per
diem under section 7131(c). However, section 2429.13 of the Authority's
rules and regulations provide for such payments. That regulation
continues a long-standing practice that employees participating in
third-party administrative proceedings in the Federal sector
labor-management program receive official time for such participation.
Section 7131(c) of the Statute was not intended to change that practice,
as reflected by the statement in the House Committee Report that,
pursuant to that section, the Authority is empowered "to make
determinations as to whether employees participating in proceedings
before the Authority shall be authorized official time." H.R. Rep. No.
95-1403, 95th Cong., 2d Sess. 58 (1978).
The activity also contended that it was not obligated to provide
official time, travel and per diem because the employee testified at an
unfair labor practice hearing in a matter in which the activity was not
a charged party and had no interest. The cases cited by the activity
apply to 7131(a) -- not 7131(c) of the Statute. The reasons for the
limitations present in those cases do not apply to a witness called by
the General Counsel of the FLRA to participate in proceedings before the
Authority.
Case No. 9-CA-40168
AIR FORCE LOGISTICS COMMAND, McCLELLAN AIR FORCE BASE, CALIFORNIA
Respondent
and
DORA M. SOLORIO, AN INDIVIDUAL
Charging Party
DECISION AND ORDER
I. Introduction
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision, and the General Counsel filed an opposition
thereto.
Pursuant to section 2423.29 of the AuthorityS Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommended Order as modified.
II. Analysis
The Judge found,and we agree, that Respondent violated section
7131(c) of the Statute and section 2429.13 of the Authority's
regulations by refusing to grant the Charging Party, Dora M. Solorio,
official time and travel and per diem expenses for her appearance at an
unfair labor practice hearing in another case pursuant to a subpeona
issued by a designated agent of the Authority. Respondent's refusal
violated section 7116(a)(1) and (8) of the Statute.
In so concluding, we note that Respondent argues in essence that its
conduct did not violate section 7131(c) of the Statute as interpreted by
section 2429.13 of our regulations. In sum, Respondent contends that
Respondent's arguments are similar to those raised in Department of the
Air Force, Headquarters Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 24 FLRA No. 26 (1986), we reject them for the same
reasons stated in our decision in that case, which focused primarily on
the travel and per diem aspect of section 2429.13.
Respondent in this proceeding also challenges the Judge's conclusion,
based on our regulation, that Respondent is obligated to grant official
time to the individual Charging Party. Respondent contends that it has
no obligation to grant official time because: (1) the individual was
not "particupating for, or on behalf of, a labor organization" (see
section 7131(c) of the Statute); and (2) the individual, an employee of
the Respondent, testified at an unfair labor practice hearing in a
matter in which Respondent was not a Charged Party and had no interest.
As to Respondent's first argument, we noted in Wright-Patterson Air
Force Base the development and purposes of section 2429.13 of our
regulations. That regulation continued a long-standing practice that
employees participating in third-party administrative proceedings in the
federal sector labor-management relations program receive official time
for such participation. Section 7131(c) of the Statute was not intended
to change that practice, as reflected by the statement in the House
Committee Report that, pursuant to that section, the Authority is
empowered "to make determinations as to whether employees participating
in proceedings before the Authority shall be authorized official time."
H.R. Rep. No. 95-1043, 95th Cong., 2d Sess. 58 (1978).
Section 2429.13, providing for the granting of official time for
employees participating in Authority proceedings, is consistent not only
with this statement of Congressional intent but also with the purposes
of the Statute. To limit official time for employees participating in
Authority proceedings based on whose behalf the employee is testifying
would hamper the Authority's ability to fulfill its responsibilities
under the Statute, instead of contributing to that process as intended
by section 7131(c). Rather than assisting in the resolution of unfair
labor practice and representation matters, a determination by an
Authority agent to require the participation of an employee might, under
Respondent's theory, raise collateral issues over the employee's
participation -- that is, on whose behalf was the employee participating
so as to be entitled to official time. We believe that Congress
intended to empower the Authority to determine whether employees
participating in proceedings before the Authority shall be authorized
official time, and that intent is effectuated in section 2429.13 of our
regulations.
As to Respondent's second argument, we agree with the Judge that the
case cited by Respondent are inapposite. As the Judge noted, those
cases apply section 7131(a) of the Statute, not section 7131(c), and the
reasons for the limitations present in those cases do not apply to a
witness called by the General Counsel to participate in proceedings
before the Authority.
Finally, with respect to the Judge's recommended Order, we have
modified the Order for consistency with remedial orders previously
issued in substantially similar circumstances. See, for example,
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 10
FLRA 10 (1982). Our modification requires that the employee be made
whole for the leave without pay for which she was charged, and requires
that the employee submit a properly documented voucher in order to be
reimbursed for her travel and per diem expenses. In this latter regard,
we agree with the Judge that because the employee had been informed in
advance by her supervisor that she would not be paid for these expenses,
it would have been futile for her to file a voucher, and her failure to
do so does not preclude the finding of a violation.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Air Force Logistics Command, McClellan Air Force Base,
California, shall:
1. Cease and desist from:
(a) Denying official time to its employees for attendance at and
participation in unfair labor practice proceedings before the Federal
Labor Relations Authority when and to the extent that such participation
has been deemed necessary by a designated agent of the Authority.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant Dora M. Solorio official time and, upon submission of a
properly documented voucher, reimburse her for her travel and per diem
expenses as appropriate, for January 16, 1984, when she appeared
pursuant to subpoena at a hearing of the Federal Labor Relations
Authority, and make her whole for the time she was charged with leave
without pay for that purpose.
(b) Post at its facilities at the Air Force Logistics Command,
McClellan Air Force Base, California, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by a senior official, and
shall be posted and maintained for 60 consecutive days thereafter, in
conscpicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT deny official time to our employees for attendance at and
participation in unfair labor practice proceedings before the Federal
Labor Relations Authority when and to the extent that such participation
has been deemed necessary by a designated agent of the Authority.
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 grant Dora M. Solorio official time and, upon submission of a
properly documented voucher, reimburse her for her travel and per diem
expenses as appropriate, for January 16, 1984, when she appeared
pursuant to subpoena at a hearing of the Federal Labor Relations
Authority, and make her whole for the time she was charged with leave
without pay for that purpose.
(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 for the Federal Labor Relations Authority, Region IX, whose
address is: 901 Market Street, Suite 220, San Francisco, CA 94103-9991,
and whose telephone number is: (415) 995-5000.
Case No. 9-CA-40168
AIR FORCE LOGISTICS COMMAND, McCLELLAN AIR FORCE BASE, CALIFORNIA
Respondent
and
DORA M. SOLORIO
Charging Party
Major Charles L. Brower, Esq.
For the Respondent
Stefanie Arthur
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. Section 7101 et seq., 92 Stat. 1191 (hereinafter referred
to as the Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
On February 24, 1984, Dora M. Solorio, an individual, filed an unfair
labor practice charge against the Air Force Logistics Command, McClellan
Air Force Base, California (hereinafter called Respondent and AFLC,
McClellan AFB). This charge was amended on May 22, 1984 and was amended
a second time on July 3, 1984. On July 11, 1984, the General Counsel of
the FLRA, by the Director of Region IX, issued a Complaint and Notice of
Hearing alleging that AFLC violated Section 7116(a)(1) and (8) of the
Statute by failing and refusing to grant Solorio official time, travel
and per diem expenses for her appearance at an unfair labor practice
hearing in response to subpena issued by the FLRA Director of Region IX.
Respondent filed a timely Answer denying that it had violated the
Statute.
A hearing was conducted before the undersigned in San Francisco,
California. Respondent and General Counsel of the FLRA were represented
and afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. The parties
entered into an extensive stipulation of facts. Post-hearing briefs
have been filed and have been fully considered.
Based upon the entire record in this matter, including the
stipulation of facts, I make the following:
Findings of Fact
A. The Air Force Organization
The Department of the Air Force is a primary national subdivision of
the Department of Defense (DOD). It is divided into "major commands"
which are organized on a functional basis in the United States and on an
area basis overseas. The Air Force Logistics Command (AFLC) is one of
these major commands.
AFLC is divided into five Air Logistics Centers (ALCs), one of which
is known as Sacramento ALC at McClellan AFB, California. AFLC,
McClellan AFB, California, the Respondent in the instant case, is an
agency within the meaning of Section 7103(a)(3) of the Statute.
At all times material to the instant case Dora Solorio was an Air
Force employee at McClellan AFB, as well as Chief Steward and Second
Vice President of American Federation of Government Employees Local
1857, (hereinafter called AFGE Local 1857), which represents an
appropriate unit of Air Force employees at McClellan. /1/
B. The Defense Logistics Agency Organization
The Defense Logistics Agency (hereinafter called DLA) is a primary
national subdivision of the DOD. DLA consists of 25 primary-level field
activities, one of which is the Defense Property Disposal Service
(DPDS).
DPDS is divided into three Defense Property Disposal Regions (DPDRs)
- The Ogden (Utah) Region, the Memphis (Tennessee) Region, and the
Columbus (Ohio) Region - each of which is made up of several Defense
Property Disposal Offices (DPDOs). The Ogden DPDR consists of 27 DPDOs,
one of which is located on McClellan AFB, California. It is referred to
as DPDO-McClellan.
AFLC McClellan AFB and DPDO-McClellan are separate organizations
within DOD. Although they are both subordinate elements of DOD, they
are not interrelated in any organizational manner. They have separate
personnel manning, budgets, missions, organizations, regulations, and
chains of command.
C. The History of Case No. 9-CA-30471
On July 8, 1983 Ezell Anderson, Jr., a DLA employee at the DPDO on
McClellan, filed an unfair labor practice charge in Case No. 9-CA-30471,
against DPDO-McClellan and DPDR-Ogden. The Regional Director of Region
IX of the FLRA consequently issued a complaint naming the Defense
Logistics Agency, DPDR-Ogden, and DPDO-McClellan as the Respondent and
naming Anderson as the Charging Party.
The complaint in 9-CA-30471 alleged (1) that the Respondent therein
had violated Sections 7116(a)(1) and (2) of the Statute by suspending
Anderson because he had engaged in activities protected by Section 7102
of the Statute, and (2) that the Respondent therein had violated Section
7116(a)(1) of the Statute when the Chief of DPDO-McClellan threatened to
fire the Charging Party because he had sought union representation.
D. The Solorio Subpoena in Case No. 9-CA-30471
On December 30, 1983, the Regional Director of Region IX, pursuant to
a request by Counsel for the General Counsel made under 5 C.F.R. Section
2429.7, subpenaed Solorio, an Air Force employee, to testify in the
hearing of Case No. 9-CA-30471 involving DLA and the DLA employee.
Solorio was subpenaed (1) to testify about the McClellan/AFGE Local 1857
collective bargaining agreement procedures prescribing the manner in
which Air Force employees were to request union representation; (2) to
corroborate that Anderson had used that McClellan/AFGE Local 1857
procedure in the past; and (3) that Anderson's supervisor had required
requests for union representation to be in writing.
Prior to the hearing, Solorio verbally requested Respondent's labor
relations officer to authorize official time and transportation and per
diem expenses associated with her appearance at the hearing. Because
the hearing involved a DLA bargaining unit, and not the bargaining of
which Solorio was a member, the labor relations officer denied Solorio's
request.
On January 16, 1984, Solorio testified at the hearing in Case No.
9-CA-30471. There was no objection to her testimony as being
unnecessary. For her absence on January 16 she was charged with 8 hours
leave without pay. She incurred transportation and per diem expenses of
$46.57.
At no time after that hearing did Solorio file a voucher requesting
reimbursement for her transportation or per diem expenses.
Discussion and Conclusions of Law
Section 7131(c) of the Statute provides:
"(c)" Except as provided in subsection (a) of this section, the
Authority shall determine whether any employee participating for,
or on behalf of, a labor organization in any phase of proceedings
before the Authority shall be authorized official time for such
purpose during the time the employee otherwise would be in a duty
status."
Section 2429.13 of the FLRA's and Regulations, 5 C.F.R. Section
2429.13, provides:
If the participation of any employee in any phase of any
proceeding before the Authority . . . including the participation
in hearings . . . is deemed necessary by . . . the General Counsel
. . . the Regional Director . . . such employee shall be granted
official time . . . In addition, necessary transportation and per
diem expenses shall be paid by the employing activity or agency.
Section 2429.13 of the FLRA's Rules and Regulations is the FLRA's
implementation of Section 7131(c) of the Statute. Interpretation and
Guidance, 2 FLRA 264, 270 (1979) and Department of the Treasury, Bureau
of Alcohol, Tobacco and Firearms, 10 FLRA 10 (1982).
Although Respondent makes cogent arguments with respect to the proper
application of Section 7131(c) of the Statute, I must reject them
because I am bound by the FLRA's interpretation and implementation of
that section of the Statute and therefore I am constrained to apply
Section 2429.13 of the FLRA's Rules and Regulations. Thus in the
instant case an application of the clear terms of Section 2429.13 of the
FLRA's Rules and Regulations entitles Solorio to official time and
necessary transportation and per diem expenses, to be furnished by her
employing activity, AFLC, McClellan AFB, for her response to the subpena
issued by the FLRA Regional Director of Region IX requiring Solorio to
appear at the unfair labor practice hearing in Case No. 9-CA-30471. Cf.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
supra; Department of the Treasury, Internal Revenue Service, 15 FLRA
No. 108 (1984).
Respondent's reliance on Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 104 S. Ct. 439 (1983) is misplaced. That case deals with the
FLRA's interpretation of Section 7131(a) of the Statute which deals with
official time allowanes to employees for collective bargaining
negotiations. In holding that when Section 7131(a) of the Statute
requires official time, this does not include travel and per diem
expenses, the Supreme Court explicitly left open whether the FLRA is in
error in interpreting Section 7131(c) of the Statute as requiring travel
and per diem expenses for employees appearing on official time at
hearing. The Court stated specifically at footnote 9 at page 445:
"The fact that the Authority interpreted two similar provisions
of the Act consistently does not, however, demonstrate that either
interpretation is correct. We, of course, express no view as to
whether different considerations uniquely applicable to
proceedings before the Authority might justify the FLRA's
interpretation of Section 7131(c)."
Thus it is clear that the Supreme Court was not modifying the FLRA's
implementation of Section 7131(c) of the Statute. Similarly
Respondent's reliance on the FLRA's cross unit bargaining cases /2/ is
misplaced. These cases deal with the FLRA's application of Section
7131(a) of the Statute and the reasons for the limitations present in
those cases do not apply to a witness called by the General Counsel of
the FLRA in an unfair labor practice hearing.
Finally Respondent contends Solorio is not entitled to transportation
and per diem expenses because she did not file a voucher requesting that
sum. However, because Solorio was informed in advance by her supervisor
that she would not be paid for transportation and per diem expenses, it
would have been a futile and meaningless act for her to file a voucher
requesting payment of these amounts. I conclude that her failure to
execute such a meaingless and futile act can not prejudice Solorio from
receiving these amounts due.
In light of the foregoing, I conclude that Respondent did violate the
requirements of Section 7131(c) of the Statute by failing and refusing
to grant Solorio official time to testify, pursuant to the subpena, at
the unfair labor practice hearing in Case No. 9-CA-30471 and by failing
and refusing to pay her the necessary transportation and per diem
expenses. Accordingly, I conclude that Respondent violated Sections
7116(a)(1) and (8) of the Statute.
Having found that Respondent violated Section 7116(a)(1) and (8) of
the Statute, I recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute the
Authority hereby Orders, that the Air Force Logistics Command, McClellan
Air Force Base, California, shall:
1. Cease and desist from:
(a) Refusing to grant official time or pay travel and per diem
expenses incurred by our employees who appear pursuant to subpena
before the Federal Labor Relations Authority to testify on behalf
of the General Counsel of the Federal Labor Relations Authority.
(b) In any like or related manner interfering with, restraining
or coercing our employees in the exercise of rights assured them
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant Dora Solorio official time and pay her travel
expenses and per diem as appropriate, for January 16, 1984 when
she appeared pursuant to subpena at a hearing of the Federal Labor
Relations Authority.
(b) Post at their facilities in the Air Force Logistics
Command, McClellan Air Force Base, California, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by a responsible official, and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: April 15, 1985
Washington, D.C.
FOOTNOTES
(1) AFLC and AFGE have negotiated a collective bargaining agreement
covering employees in the consolidated unit. Consistent therewith, AFGE
Local 1857 and Respondent have negotiated a local supplement thereto.
Such agreements does not include, provisions concerning official time,
travel or per diem for the performance of representational duties.
(2) 2750th ABW Headquarters, Wright-Patterson AFB, Ohio, 7 FLRA 738
(1982); 94th U.S. Army Reserve Command, Hanscom AFB, Massachusetts, 8
FLRA 83 (1982); U.S. Naval Space Surveillance Systems, Dahlgren, VA, 9
FLRA 193 (1982); Ogden Logistics Center, Hill AFB, Utah, 10 FLRA 245;
and Marine Corp. Development and Education Center, 9 FLRA 251 (1982).
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 grant official time or pay travel and per diem
expenses incurred by our employees who appear pursuant to subpena before
the Federal Labor Relations Authority to testify on behalf of the
General Counsel of the Federal Labor Relations Authority.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL grant Dora Solorio official time and pay her travel and per
diem as appropriate, for January 16, 1984 when she appeared pursuant to
subpena at a hearing of the Federal Labor Relations Authority.
AIR FORCE LOGISTICS COMMAND
McCLELLAN AIR FORCE BASE,
CALIFORNIA
(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: 530 Bush Street, Suite 542, San Francisco, California
94108 and whose telephone number is: (415) 556-8106.
24 FLRA NO. 32
IRS, Louisville District and NTEU (Thomson Arbitrator), Case No.
0-AR-1232 (Decided November 26, 1986)
STATUTE
7121(f)
7122(a)
SUBJECT MATTER INDEX ENTRIES
DISCIPLINE OF EMPLOYEES
SUSPENSION
FOR MORE THAN 14 DAYS
AUTHORITY LACKS JURISDICTION TO REVIEW ARB. AWARDS
PROCEDURE
FORUMS
AUTHORITY LACKS JURISDICTION
REVIEW OF ARB. AWARDS
SUSPENSIONS FOR MORE THAN 14 DAYS
UNITED STATES CODE
5 U.S.C. 7512
5 U.S.C. 7703
DIGEST NOTES
The Authority dismissed exceptions to an arbitration award concerning
the suspension of the grievant for 30 days. Review of arbitration
awards relating to matters described in section 7121(f), including
adverse actions under 5 U.S.C. section 7512, such as a suspension for
more than 14 days, must be obtained in accordance with 5 U.S.C. section
7703. That is, review must be obtaining in the same manner and under
the same conditions as if the matter involved had been decided by the
Merit Systems Protection Board.
Case No. 0-AR-1232
INTERNAL REVENUE SERVICE, LOUISVILLE DISTRICT
Activity
and
NATIONAL TREASURY EMPLOYEES UNION
Union
ORDER DISMISSING EXCEPTIONS
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator W. Scott Thomson filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. ARBITRATOR'S AWARD
In his award the Arbitrator found that the grievant was properly
disciplined for insubordination but that the penalty imposed, a
suspension for 30 calendar days, was excessive. As his award, he
reduced the 30-day suspension to 14 calendar days.
III. ANALYSIS AND CONCLUSIONS
The Authority has determined that it is without jurisdiction to
review the Union's exceptions. Section 7122(a) of the Statute provides
in pertinent part:
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
a suspension for more than 14 days. Review of an arbitration award
relating to such matters must be obtained in accordance with 5 U.S.C.
Section 7703, that is, in the same manner and under the same conditions
as if the matter involved had been decided by the Merit Systems
Protection Board. American Federation of Government Employees, Local
1857 and Sacramento Air Logistics Center, McClellan Air Force Base, 21
FLRA No. 41 (1986).
Because the Arbitrator's award relates to a matter covered by section
7512 (a suspension of the grievant for 30 days), under section 7122(a)
of the Statute exceptions to the award may not be filed with the
Authority. Consequently, the Authority is without jurisdiction to
review the exceptions.
IV. DECISION
Accordingly, for these reasons, the Union's exceptions are dismissed.
Issued, Washington, D.C. November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 31
VA and VA Medical Center, Lyons, N.J. and AFGE, Local 1012, Case No.
2-CA-50428 (Decided November 26, 1986)
STATUTE
7114(a)(2)(A)
7116(a)(1) and (5)
7118 and 7118(a)(4)(A)
SUBJECT MATTER INDEX ENTRIES
NOTIFICATION OF UNION
CONDITIONS OF EMPLOYMENT
CONCEALMENT OF CHANGE
EFFECT ON TIME LIMITS TO FILE A CHARGE
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE STANDARDS
IMPLEMENTATION
NOTIFICATION OF CHANGE TO UNION
UNFAIR LABOR PRACTICES, PROCEDURE
TIME LIMITS
CONCEALMENT OF CHANGE IN CONDITIONS OF EMPLOYMENT
CONDUCT OCCURRING MORE THAN SIX MONTHS BEFORE FILING
DIGEST NOTES
A charge that the activity failed to bargain over the impact and
implementation of a change in performance standards was dismissed by the
Authority as untimely filed. The only employee in the clerk typist
position in dispute -- who was also the union shop steward -- was
notified of the change in her performance standards more than a year in
advance of time the union filed its charge. Under section
7118(a)(4)(A), any charge alleging an unfair labor practice which is
necessarily based on conduct or events which occurred more than 6 months
before the filing of the charge is untimely filed.
The fact that there may have been a issue concerning notification of
the proper union official is inapposite in the circumstances of this
case. The union had never informed management of the union official to
notify for changes in conditions of employment. More important the
Authority has previous held that where the conduct on which the unfair
labor practice is based occurred more than six months prior to the
filing of the change, the charge is untimely under the provisions of
section 7118(a)(4)(A) unless it is established that the respondent
agency prevented the person filing the charge from discovering the
allegedly unlawful conduct within the 6-month limitations period by
concealment or by failing to perform a duty owed to the charging party.
Case No. 2-CA-50428
VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER,
LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Charging Party (the Union) to the attached decision of the
Administrative Law Judge. The Respondent filed an opposition to the
exceptions. The complaint alleged that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute when in or around April 1984, it unilaterally changed the
performance standards for a clerk typist position in one of the
divisions of the medical center without notifying the designated
representative of the Union and affording the Union an opportunity to
bargain over the impact and implementation of the new standards. The
complaint further alleged that the Union first became apprised of the
change in or around April 1985.
II. Background and Judge's Conclusion
The Judge concluded that the charge was untimely under section 7118
of the Statute. Specifically, he found that in April 1984, Charlene
Cozart, the only employee in the clerk typist position in dispute and at
all relevant times a shop steward of the Union, was fully informed of
the change in the performance standards for the position and was given a
copy of the new standards. He further found that in October 1984 at a
mid-term performance evaluation conference, Ms. Cozart was evaluated
under the new standards and again given a copy of the new standards.
The Judge in particular noted Ms. Cozart's status as a shop steward and
emphasized that, as a steward and representative of the Union, she had
very direct knowledge of the change in her performance standards.
Accordingly, he decided that the Respondent's conduct did not preclude
the Union, the charging party, from filing the charge within six months
after the change in 1984 of the performance standards for the clerk
typist position and that the July 29, 1985 charge was therefore
untimely. He accordingly recommended that the complaint be dismissed.
III. Positions of the Parties
In its exceptions the Union principally argues that the Judge erred
by concluding that the charge was untimely. The Union maintains that
the charge was filed within two weeks of the time that the Union
discovered the change in the performance standards. The Union also
argues that the Judge erred by permitting the Respondent's assistant
personnel officer, Alan Osman, to testify without having been
sequestered. The Union also disputes certain credibility findings of
the Judge.
In its opposition the Respondent maintains that the Judge properly
concluded that the charge was untimely. The Respondent also asserts
that the testimony of Mr. Osman was proper. The Respondent maintains
that the Judge specifically and appropriately ruled that each party was
permitted to have one person serve as a technical advisor who could
testify without having been sequestered and that Mr. Osman was
designated by the Respondent. The Respondent further disputes the
Union's objections to the credibility findings of the Judge.
IV. Analysis and Conclusions
We agree with the Judge and reject the exceptions of the Union. We
reject the Union's contention concerning the testimony of Mr. Osman and
adopt the Judge's ruling. We also find no basis for reversing the
Judge's credibility findings. See, for example, Department of the Air
Force, Lowry Air Force Base, Denver, Colorado, 22 FLRA No. 47 (1986),
slip op. at 8 n.2. Thus, we adopt for the reasons stated by the Judge
his finding and conclusion that the charge was untimely and his order
recommending that the complaint be dismissed.
V. ORDER
The complaint in Case No. 2-CA-50428 is dismissed.
Issued, Washington, D.C., November 26, 1986
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 2-CA-50428
VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER,
LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT, AFL-CIO, LOCAL 1012
Charging Party
LESLIE S. Vincent, Esquire
For the Respondent
Susan M. Roche, Esquire
For the General Counsel
Mr. George Hall
For the Charging Party
Before: William B. Devaney
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns an asserted
unilateral change of working conditions "In or around April 1984 . . .
by changing the performance standards for the VRT/ITP Clerk Typist
without notifying designated representative and affording it an
opportunity to bargain over the impact and implementation of the new
standards." (Complaint, G.C. Exh. 1(c), Par. 6). The charge was not
filed until July 29, 1985, well over a year after the asserted
unilateral change, and the threshold, and controlling, question is
whether the alleged unfair labor practice is barred by Section
18(a)(4)(A) of the Statute. Although the Complaint alleges that, "The
Charging Party (Local 1012) first learned of the change referred to in
paragraph 6 . . . in or around April 1985" (Complaint, G.C. Exh. 1(c),
Par. 7), Respondent asserts that the change of performance standards was
discussed with the shop steward in April, 1984, indeed that the shop
steward, who was also the VRT/ITP Clerk Typist, and the only VRT/ITP
Clerk Typist, typed the new performance standards in April, 1984, not
only for her position as VRT/ITP Clerk Typist but also the new
performance standards for therapists who are outside the bargaining unit
and for therapy assistants who are in the bargaining unit, and that the
shop steward was given a copy of her new performance standards in April,
1984, to retain. Respondent further asserts that the shop steward-clerk
typist was provided a copy of the new performance standard on October
31, 1984, during a mid-term appraisal conference, which was nine months
prior to the date the charge was filed. For reasons more fully set
forth hereinafter, I find that this proceeding is barred by Section
18(a)(4)(A) of the Statute.
This case was initiated by a charge filed on July 29, 1985 (G.C. Exh.
1(a)); the Complaint and Notice of Hearing issued on October 7, 1985
(G.C. Exh. 1(c)); and set the hearing for December 9, 1985, pursuant to
which a hearing was duly held on December 9, 1985, in New York City
before the undersigned. All parties were represented at the hearing,
were afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity to
present oral argument, which counsel for Respondent exercised but
General Counsel waived. At the close of the hearing, January 9, 1986,
was fixed as the date for mailing post-hearing briefs and each party
timely mailed an excellent brief, received on, or before, January 10,
1986, which have been carefully considered. Upon the basis of the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
Findings
1. On, or about, April, 1983, Ms. Charlene Cozart, who had been
employed at VAMC Lyons since about 1978 (Tr. 17), became the
Clerk/Typist of the Vocational Rehabilitation Therapy/Incentive Therapy
Program (VRT/ITP) which is a division within the Rehabilitation Medicine
Service (RMS) Department at Veterans Administration Medical Center
(VAMC) Lyons, New Jersey (Tr. 16-17). Ms. Cozart is the only Clerk
Typist in VRT/ITP (Tr. 97); but there a total of ten employees in
VRT/ITP, the other nine being therapists, who are outside the bargaining
unit, and therapy assistants, who are bargaining unit employees (Tr.
97). There are about 30 employees in RSM (Tr. 28). American Federation
of Government Employees, AFL-CIO, Local 1012 (hereinafter referred to as
the "Union") represents about 1200 bargaining unit employees at VMAC
Lyons (Tr. 59).
2. Mr. Ferdinand Hammonds is Chief, VRT/ITP, and supervises the ten
people in VRT/ITP, including Ms. Cozart (Tr. 64, 65). On April 6, 1984,
Mr. Hammonds met with Ms. Cozart to discuss her performance appraisal
for the 1983-84 evaluation period. Mr. Hammonds gave Ms. Cozart an
"Outstanding" rating for the 1983-84 period (Tr. 20, 67; Jt. Exh. 2).
Mr. Hammonds also recommended Ms. Cozart for a special achievement award
of $273.00 (2%) (Res. Exh. 1). Sometime in 1984, after April 6, 1984,
Ms. Cozart received a step increase from GS-4, Step 4 to GS-4, Step 5
(see, Res. Exhs, 1 and 3).
3. Ms Cozart in April, 1984, was shop steward, /2/ a fact well known
by Mr. Hammonds who testified that Ms. Cozart was very active as a
steward (Tr. 71), with which Ms. Cozart fully agreed (Tr. 43).
4. In April, 1984, the performance standards for the VRT/ITP Clerk
Typist position, i.e., the performance standards for Ms. Cozart's then
and present position (Tr. 16, 17, 68), were changed. Ms. Cozart was,
and is, the only Clerk Typist in VRT/ITP /3/ (Tr. 18, 97). Mr. Hammonds
testified that the reason for the change was the very large number of
awards given for the 1983-84 rating period and the desire of
administration to make the performance standards more stringent (Tr.
69). Accordingly, Mr. Hammonds changed the numerical standards on most,
but not all, of the standards. For example: under 1, "Primary Clerical
Activity" A "Meets Criteria", which had been 85% was increased to 90%,
"Far Exceeds" remained 95%; B through E, "Meets Criteria", which had
been 85% was increased to 90%, "Far Exceeds" was increased from 95% to
98%; under 2. "Transcription" A, "Meets Criteria" was increased from
85% to 90% and "Far Exceeds" was not changed; B "Meets Criteria" was
increased from 85% to 90% and "Far Exceeds" was increased from 95% to
98%; 3. "Reports" A and B were not changed; and a new category
"Safety & Preventive Maintenance" was added (Jt. Exh. 3, compare with
Jt. Exh. 2).
The 1983-84 Performance Standards had not contained a numerical
rating for "Exceeds", nor did the 1984-85 Performance Standards as
prepared by Mr. Hammonds contain a numerical rating for "Exceeds" (Tr.
79); however, a personnel clerk later added a numerical rating for
"Exceeds" on the 1984-85 Performance Standards (Tr. 69, 81).
Notwithstanding that the 1983-84 Standards, and the 1984-85 Standards as
prepared by Mr. Hammonds, did not give a numerical rating for "Exceeds",
the "Level of Achievement" had always provided four categories: Failed
to Meet; Met; Exceeded; and Far Exceeded (see, also, Jt. Exh. 1, Art.
32, Section 5), and I fully agree with Mr. Hammonds that, whether
defined or not, "Exceeded" plainly meant that level of achievement
between "Met", which was defined, and "Far Exceeds", which was defined.
/4/
Ms. Cozart typed the new performance standards for her VRT/ITP Clerk
Typist position in April, 1984 (Tr. 70, 110). Indeed, Mr. Hammonds
testified without contradiction that in April, 1984, Ms. Cozart also
typed new performance standards for the other nine employees under his
supervision in VRT/ITP (Tr. 70). Ms. Cozart, while admitting that she
typed the performance standards for her VRT/ITP Clerk Typist position in
April, 1984, asserted she, " . . . wasn't aware that it was the change .
. . I didn't have them both there at the same time." (Tr. 110). Mr.
Hammonds, on the other hand, testified that, ". . . we (Mr. Hammonds and
Ms. Cozart) discussed those somewhat at length, because I wanted to be
assured of the fact that she recognized the difference between the '83
and '84 to make sure she carried the changes over into the new standards
. . . I discussed the differences with her, yes." (Tr. 70). On cross
examination, Mr. Hammonds further stated, "She had the two of them
together, (the 1983-1984 appraisal levels and the 1984-1985 appraisal
levels) and she was the one who was going to do the work. I had to show
her the difference between the two, yes, she had both of those
accessible to her. They were discussed, yes, the differences were
discussed in detail." (Tr. 88). I fully credit the testimony of Mr.
Hammonds, who was a wholly credible witness and whose testimony was,
ultimately, corroborated in critical respects by Ms. Cozart's
admissions, while I found Ms. Cozart's testimony in this regard to be
neither credible nor consistent. First, as to the date she typed the
new performance standards for her VRT/ITP Clerk Typist position, she
first asserted it was March, 1985 (Tr. 23, 44); then ". . . sometime
prior to March, and I don't want to say an exact date, because I don't
know an exact date" (Tr. 45), and finally admitted it was April, 1984
(Tr. 110, 111). Second, the performance standards for 1983-84 and for
1984-85 contain lengthy statements under each Section which are
identical. It is highly probable that the text would have been hand
written by Mr. Hammonds and even more improbable that the format would
have been so identical unless the 1984-85 performance standard had been
copied, either manually or from stored memory, and in either case the
1983-84 percentages would have been present. Third, the new "Safety &
Preventive Maintenance" section, added to the 1984-85 performance
standards, appears clearly to have been added to the last page of the
1983-84 standards. Fourth, Ms. Cozart avoided any reference to her
typing of new performance standards for nine other employees of VRT/ITP
in April, 1984, despite the fact that, after Ms. Hammonds so testified,
she was recalled and testified concerning other matters. Fifth, Ms.
Cozart admitted that, as Mr. Hammonds had testified (Tr. 70-71), she had
a copy of the 1983-84 standards (Tr. 110-111) and got a copy of the
1984-85 standards (Tr. 111) which she asserted, ". . . disappeared."
(Tr. 111).
5. On October 31, 1984, Mr. Hammonds met with Ms. Cozart for a
mid-term evaluation conference (Tr. 25, 73). Mr. Hammonds testified, in
part, that on October 31, 1984.
"I told her that I had reviewed her standards, gave her a copy
of the standards and suggested that she look at them if she didn't
have her copy available, which she didn't, and I told her that I
had reviewed them and I found that was Exceeded in all levels of
her performance requirements." (Tr. 73-74).
On the same date, October 31, 1984, Mr. Hammonds wrote a memorandum
to Ms. Cozart summarizing the appraisal conference in which he stated,
in part, as follows:
" . . .
"2. At that time (10/31/84), I reviewed with you your
performance during April 1, 1984 thru October 31, 1984, in all
elements of your 'performance requirements;' also, I made
suggestions as to how you may improve specific elements.
"3. More specifically, you concurred with my appraisal of your
exceeding all elements one (1) through five (5). /5/" (Res. Exh.
2).
Mr. Hammonds testified that Ms. Cozart typed Respondent Exhibit 2 and
that he, ". . . provided her a copy." (Tr. 75). Ms. Cozart denied that
she received a copy of the October 31, 1984, "Summary of Appraisal
Conference" (Res. Exh. 2); but Respondent's Exhibit 2 was received
without objection. I fully credit Mr. Hammonds' testimony both as to
his conversation with Ms. Cozart on October 31, 1984, and as to her
typing Respondent Exhibit 2 and having been provided a copy.
6. On April 17, 1985, Mr. Hammonds rated Ms. Cozart's level of
achievement on each of the four elements as "Exceeds" and gave her an
overall rating of "Highly Satisfactory" (By definition, to obtain an
overall rating of "Outstanding", "All levels of achievement for each Key
Responsibility/Task are designated as Far Exceeded." There was no change
in the Overall Ratings Section (Section C) requirements -- see, Jt.
Exhs. 2 & 3). Joint Exhibit 3 shows that the performance plan review
took place on Aprl 17 (see, also, Tr. 83), at which time Mr. Hammonds
testified, in part, that, "I told her that I had rated her as Exceeded,
and she accepted those. She seemed to be pleased with it." (Tr. 83).
Mr. Hammonds further testified that, ". . . after I had rated her
Exceeded, I took it over to my supervisor, which he was the reviewer,
and we reviewed it and jointly, we agreed that she should be recommended
for an award for the second year in a row." (Tr. 83-84). On April 22,
1985, Mr. Hammonds recommended Ms. Cozart for a special achievement
award of $291.56 (2% - the same percentage as in 1984), which was
approved on April 23, 1985 (Res. Exh. 3). Although Mr. Hammonds had
signed the appraisal on April 17, 1985, the recommendation for a 2%
monetary award was added and Ms. Cozart signed the appraisal on April
22, 1985, and checked the block, "I do not wish to respond" (Jt. Exh. 3.
last page).
7. Article 4, Section 5 of the parties' Agreement provides, in part,
as follows:
"Section 5 - Local Level Changes
"Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
official . . ." (Jt. Exh. 1, Article 4, Section 5).
Article 6 of the parties' agreement provides, in part, as follows:
"Section 3 - Notification of Union Officials
"A. The Union will present management at each facility with an
updated list of union officers and representatives annually . . ."
(Jt. Exh. 1, Art. 6, Section 3A).
"Section 6 - Notification of Changes in Conditions of
Employment
"The Agency shall notify the appropriate union official prior
to changing conditions of employment which affect bargaining unit
employees . . . " (Jt. Exh. 1, Art. 6, Section 6).
Mr. Lee E. Whitaker, President of the Union, testified that "the
designated local official" in Article 4, Section 5, meant the President
(Tr. 50); however, Mr. Whitaker admitted that he had never given
management overall notice in writing that when performance standards are
going to be changed that the President was the designated representative
to be notified (Tr. 59). Mr. Whitaker stated that five or six of the
more than 25 services at VAMC (Tr. 103) had notified him of some type of
change in performance standards (Tr. 59). Mr. Alan E. Osman, Assistant
Personnel Officer (Tr. 101), testified that there is no designated union
official to be given notice of any change in a performance standard by a
supervisor (Tr. 102). Mr. Osman further testified that, when
performance standards are to be changed by a supervisor, he had told the
supervisor to give notice to the shop steward if there was a shop
steward in that service, and if there were no shop steward in that
service, to send it to the Union office (Tr. 104-105).
8. Although Mr. Hammonds was well aware that Ms. Cozart was the shop
steward (Tr. 71), he conceded he never told her he was giving her notice
of the change in performance standards as the shop steward or because
she was the shop steward (Tr. 88; see, also Tr. 58).
Conclusions
In United States Department of Labor, 20 FLRA No. 34, 20 FLRA 296
(1985), the Authority considered Section 18(a)(4)(A) and (B), and
stated, in part, as follows:
". . . any charge alleging an unfair labor practice which is
necessarily based on conduct or events which occurred more than 6
months before the filing of the charge is untimely under the
provisions of section 7118(a)(4)(A) of the Statute, unless it is
established that the respondent agency . . . prevented the person
filing the charge from discovering the allegedly unlawful conduct
within the 6-month limitations period by concealment or by failing
to perform a duty owed to the charging party . . . ." (20 FLRA at
297).
The Authority further noted that,
". . . the House Committee Report accompanying H.R. 11280
stated with respect to section 7118(a)(4), which was ultimately
enacted and signed into law without change, as follows:
"Subsection (a)(4) prohibits the issuance of a complaint based
upon an unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority unless the
person aggrieved was prevented from filing the charge because the
agency or labor organization against whom the charge is made
failed to perform a duty owed to the aggrieved person, or due to
concealment. In addition, the concealment or failure to perform a
duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence. (footnote omitted)."
(20 FLRA at 298).
See, also, United States Department of the Treasury, Internal Revenue
Service and United States Department of the Treasury, Internal Revenue
Service, Houston District, 20 FLRA No. 7, 20 FLRA 51 (1985).
Consequently, contrary to the position of the General Counsel and,
somewhat at variance with the position of Respondent, although
Respondent does assert that this proceeding is barred by Section
18(a)(4)(A), timeliness of the charge in this case is governed by the
provisions of "Section 18(a) (4) and by the Authority's admonition that,
". . . any charge alleging an unfair labor practice which is necessarily
based on conduct or events which occurred more than 6 months before the
filing of the charge (here, as the Complaint states, a unilateral change
of working conditions in April, 1984, by changing the performance
standards for the VRT/ITP Clerk Typist) is untimely . . . unless it is
established that the . . . agency . . . prevented the person filing the
charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party"; and further as the House Committee
Report states, and as the Authority noted, ". . . the . . . failure to
perform a duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence." Here, the record shows, and
I have found, that the VRT/ITP Clerk Typist, Ms. Cozart, was fully
informed of the change of her performance standards in April, 1984;
that Ms. Cozart, who typed the new performance standards, was given both
the prior performance standards (1983-84 standard) as well as the new
(1984-85) appraisal levels. ". . . to make sure she carried the changes
over into the new standards . . . ."; and Ms. Cozart was given a copy
of the new standards to retain. Further, in April, 1984, like changes
in the performance standards of the other nine employees in the VRT/ITP
section were made and Ms. Cozart also typed the new performance
standards for the other nine employees in the VRT/ITP section; the new
requirements were explained to each of the other nine employees of
VRT/ITP (therapy assistants, who are in the bargaining unit were
notified in April, 1984; and those outside the bargaining unit were
notified in May, 1984); and each was given a copy of the new standards
(Tr. 70-71; 96-97).
To be sure, Ms. Cozart was shop steward; and, while it is conceded
that Respondent never told her as shop steward that it was changing her,
or the other nine employees' performance standards, there can be no
doubt that she, as shop steward, well knew in April, 1984, of the
changes of the performance standards in VRT/ITP. Again, on October 31,
1984, in a mid-term evaluation conference, Ms. Cozart, as an employee,
was given a copy of the new, 1984-85, performance standards to review.
Respondent, relying on decisions of the Authority, such as Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 19 FLRA No. 122, 19 FLRA 1054 (1985), asserts that, ". . .
actual representation by an exclusive representative at a formal
discussion is sufficient to demonstrate compliance with the requirement
of section 7114(a)(2)(A) . . . although they (the representatives
present) had not been notified in their capacities as union officials
but rather as employees. . . " (19 FLRA at 1056), and argues that, "This
same philosophy can and should be carried over into a situation . . .
where notice was given to an employee (who was also a union steward)
about a change in her performance standards . . . ." (Respondent's
Brief, p. 6). General Counsel, in essence, argues that notice of a
change of a condition of employment must be given to the Union, qua
Union, otherwise, ". . . the Union would have had no chance to bargain
prior to implementation of the new standards" (General Counsel's Brief,
p. 12) and asserts that cases such as: Veterans Administration,
Veterans Administration Medical Center, Muskogee, Oklahoma, supra, and
United States Department of Labor, Employment Standards Administration,
20 FLRA No. 2, 20 FLRA 5 (1985), are inapposite for the reason that, ".
. . they involve formal discussions where Union officials attended even
though the Union per se was not given formal notice of the meeting . . .
This is distinguishable from a failure to give formal notice prior to a
unilateral change. The purpose of a notice in that situation is to give
the Union an opportunity to request bargaining over the change and to
submit proposals if it so desires . . . ." (General Counsel's Brief, n.
13, pp. 12-13). General Counsel distinguishes United States Air Force
v. Federal Labor Relations Authority, 681 F. 2d 466 (6th Cir. 1982) on
the ground that, ". . . there the steward was the Union official
designated to be notified of unilateral changes . . . At VAMC Lyons no
such designation was ever made of Charlene Cozart. /6/ . . ." (General
Counsel's Brief, n. 13, pp. 12-13).
Although I agree with General Counsel that adequacy of notice for
purposes of Section 14(a)(2)(A) is to be distinguished from adequacy of
notice of a change of conditions of employment, Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 19
FLRA No. 123, 19 FLRA 1085 (1985) (Activity notified the three on-duty
employees and the union steward of a meeting; at the meeting. Activity
announced a new lunch and break schedule. Held, actual representation
of the exclusive representative at a formal discussion is sufficient
compliance with Section 14(a)(2) (A); but failure to give union notice
and opportunity to bargain concerning the change violated Section
16(a)(1) and (5)), the assertions of both Respondent and the General
Counsel are wide of the mark.
Where, as here, the conduct on which the unfair labor practice is
based, here, the change of a performance standard, occurred more than
six months prior to the filing of the charge, the charge is untimely
under the provisions of Section 18(a)(4)(A) unless, ". . . it is
established that the respondent agency . . . prevented the person filing
the charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party . . . ." (United States Department of
Labor, supra, 20 FLRA at 297) and further that, ". . . the concealment
or failure to perform a duty must have prevented the discovery of the
unfair labor practice within 6 months of its occurrence. (United States
Department of Labor, supra, 20 FLRA at 298). Here, of course, there was
no concealment of the change of performance standards. The breach of
duty, if there were a failure to perform a duty owed to the changing
party, was the failure to give notice to the Union, which is the
Charging Party, in April, 1984, of the change of the performance
standards for the VRT/ITP Clerk Typist; but a breach of duty, alone, is
not enough. The failure to perform a duty must have prevented the
discovery of the unfair labor practice within 6 months of its
occurrence. This is the governing test in this case, not whether notice
of a change given to an employee who is also the shop steward
constitutes notice to the Union, a question I specifically do not
decide.
Did the failure of Respondent to give the Union notice of the change
in the performance standards for the VRT/ITP Clerk Typist in April,
1984, prevent the discovery of this unfair labor practice within 6
months of its occurrence? I conclude that it did not. Notwithstanding
that President Whitaker testified that he did not learn of the change
until April, 1985 (the charge having been filed on July 29, 1985), the
record fails to establish that the failure to give the Union notice of
the change of Ms. Cozart's performance standard, she being the VRT/ITP
Clerk Typist, in April, 1984, prevented discovery of the unfair labor
practice within 6 months of its occurrence. First, Ms. Cozart, the
VRT/ITP Clerk Typist was, as I have found, fully informed of the change
of her performance standard in April, 1984. Not only was the change
discussed with her, but she was given both the prior standard and the
new evaluation standards in order that she could type the new
performance standard. After she typed the new performance standard she
was given a copy to retain. Indeed, General Counsel concedes that, ". .
. If Cozart had been told of the change in April or October of 1984 . .
. (as I have found she was) it is only reasonable to believe she would
have complained to the Union about the change at that time . . ."
(General Counsel's Brief, n. 11, p. 10). Certainly, as Ms. Cozart was
told of the change in her performance standard in April, 1984, she could
then have informed the Union. Second, in April, 1984, the performance
standards for the other nine employees in the VRT/ITP section were
changed in a like manner; Ms. Cozart typed all of the new performance
standards for all employees in the VRT/ITP section; the new performance
standards were discussed by Mr. Hammonds with each of the VRT/ITP
bargaining unit employees in April, 1984, and with each of the
nonbargaining unit employees in VRT/ITP in May, 1984. As the new
performance standards were fully implemented in April and May, 1984, for
the entire VRT/ITP section, following discussion of the new standards
with all employees of the VRT/ITP section, Respondent's conduct did not
preclude the Union, the Charging Party, from filing the charge within
six months after April or May of 1984 when the new performance standards
were announced. United States Department of the Treasury, Internal
Revenue Service and United States Department of the Treasury, Internal
Revenue Service, Houston District, 20 FLRA No. 7, 20 FLRA 51 (1985).
Third, on October 31, 1984, at a mid-term evaluation conference, Ms.
Cozart was again given a copy of the new performance standards to review
and having again been confronted with the new performance standards she
could then have informed the Union. Fourth, Ms. Cozart was at all
times, i.e. both in April and October, 1984, the shop steward.
Notwithstanding that she was not informed of the new performance
standards as shop steward, she, as shop steward, was certainly aware of
the new performance standards in April, 1984. Her knowledge was far
more than casual. To the contrary, she had a very direct involvement in
the change of performance standards inasmuch as she typed the new
performance standards, not only for herself (the VRT/ITP Clerk Typist)
but for all employees of the VRT/ITP section. Fifth, as the charge and
complaint related solely to the change of Ms. Cozart's performance
standard in April, 1984, Ms. Cozart's knowledge in April, 1984, of the
change in her performance standard, as a steward and representative of
the Union, must be imputed to the Union for the purpose of Section
18(a)(4)(A).
Accordingly, as the charge was untimely filed, the Complaint must be
dismissed pursuant to Section 18(a)(4) of the Statute, and in view of my
conclusion that the charge was untimely, it is unnecessary to reach
other issues raised. It is, therefore, recommended that the Authority
adopt the following:
ORDER
The Complaint in Case No. 2-CA-50428 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 31, 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(a)(5) will be referred to,
simply, as "Section 16(a)(5)."
(2) At some point, Ms. Cozart was elected Secretary-Treasurer of
Local 1012 and became a member of the Executive Board; however, she
testified, in December, 1985, that she had held that position one year
(Tr. 19). As the record fails to show that she was Secretary-Treasurer
either in the March-April or October, 1984, time frame, I shall assume
that she was only shop steward at such times.
(3) There are other Clerk Typists in RMS (Tr. 18).
(4) The issue is not before me, but pure logic would dictate that all
performance above "Meets Criteria", but below "Far Exceeds" must fall in
the category of "Exceeds"; however, somewhat strangely, "Exceeds" was
placed higher rather than, simply, being better than "Meets Criteria".
For example, where "Meets Criteria" is 90%, "Exceeds" is defined either
as 92% or 95% (rather than any level of achievement greater than 90%)
but less than the defined level for "Far Exceeds Criteria".
Nevertheless, since Ms. Cozart met the standard for "Exceeds", I express
no opinion concerning the propriety of Respondent's definition of
"Exceeds".
(5) This would appear to be an error as there were four elements:
"Primary Clerical Duties"; "Transscription"; "Reports"; and "Safety &
Preventative Maintenance" (See, Jt. Exh. 3, Section A (second page)) not
five elements.
(6) While it is quite correct that Ms. Cozart was not designated to
receive notice of unilateral changes, no overall notice had ever been
given by the Union of the official to receive notice of any change.
Article 4, Section 5 of the parties' Agreement provides that notice will
be "forwarded to the designated local official" (Jt. Exh. 1, Art. 4,
Sec. 5) while Article 6, Section 6, provides that "The Agency shall
notify the appropriate union official prior to changing any condition of
employment . . . ") Jt. Exh. 1, Art. 6, Sec. 6). It is not clear from
the Agreement either why two different provisions address notice of
changes or the significance of the difference in language. Perhaps, as
the testimony of President Whitaker and Mr. Osman tends to suggest,
Article 4, Section 5, governs across-the-board changes by Respondent,
while Article 6, Section 6, governs changes that are not applicable
throughout VAMC, such as changes by individual supervisors or services.
In any event, President Whitaker stated that he had never given
management overall notice in writing that when performance standards
were going to be changed the President was the designated representative
to be notified. Mr. Whitaker stated that five or six of the more that
25 services had notified him of some type of change in performance
standards, which would certainly imply that the other 19 or 20 services
had not given him notice. Mr. Osman testified that there was no
designated union official to be given notice of any change in
performance standards by a supervisor and further testified that he had
advised supervisors to give notice to the shop steward if there were a
steward in that service, or, if there were no shop steward in that
service, to send it to the Union office.
24 FLRA NO. 30
NTEU and IRS, Denver District, Case No. 0-NG-1192 (Decided November
26, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(1)
SUBJECT MATTER INDEX ENTRIES
CODE OF FEDERAL REGULATIONS
5 C.F.R. 735.205
EXAMINATIONS AND INVESTIGATIONS
EQUIPMENT (DESKS, LOCKERS, ETC.) ASSIGNED TO EMPLOYEES
PROHIBITION OF INSPECTION WITHOUT EMPLOYEE PRESENT
FACILITIES, EQUIPMENT AND SERVICES
INSPECTION OF DESKS AND LOCKERS ASSIGNED TO EMPLOYEES
PROHIBITION OF INSPECTION WITHOUT EMPLOYEE PRESENT
INFORMATION, EMPLOYEE AND UNION RIGHTS UNDER THE STATUTE
CONFIDENTIAL INFORMATION
COMPUTER USE FOR UNION BUSINESS
INTERNAL SECURITY PRACTICES, RESERVED MANAGEMENT RIGHT
EXAMINATIONS AND INVESTIGATIONS OF EMPLOYEES
FACILITIES AND EQUIPMENT
COMPUTERS
UNION USE FOR OFFICIAL UNION BUSINESS
PROCEDURE
FORUMS
FACTUAL ISSUES
DIGEST NOTES
A proposal is negotiable that would permit union officials to use the
activity's computer for official union business. The union stated that
the use of the computer is necessary because typewriters are scarce and
that the computer would be used like a typewriter for official union
business only and not for internal union business. Contrary to the
activity's contention, the proposal would not interfere with
management's right to determine its internal security practices under
section 7106(a)(1). Although the computer system does not have a
security feature that would block access to confidential taxpayer
information, the union officials that would be using the computer
already have access to the same information as employees of the
activity. Moreover, since the computer would be used only for official
union business, i.e. official business, the proposal does not conflict
with 5 C.F.R. section 735.205, which prohibits use of Government
property "for other than officially approved activities. (proposal 1)
A proposal is negotiable that would prevent management from examining
the contents of an employee's locker without the employee present. The
proposal is similar to a previous proposal (7 FLRA 304) that the
Authority found negotiable which would prevent management from examining
the contents of an employee's desk without the employee present. In
that proposal the Authority held that it did not prevent management from
determining its internal security practices under section 7106(a)(1) nor
did it concern a method or means of performing work. (proposal 2)
Factual questions concerning the duty to bargain are not
appropriately considered in a negotiability appeal. Such questions may
be raised in other appropriate proceedings. (proposals 1 and 2)
Case No. 0-NG-1192
NATIONAL TREASURY EMPLOYEES UNION
Union
and
INTERNAL REVENUE SERVICE, DENVER DISTRICT
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 two Union proposals. /1/ For the reasons which follow,
we find that both proposals are within the duty to bargain.
II. Background
The proposals at issue in this case arose when the parties were
renegotiating their local Automated Collection Site (ACS) Agreement.
The ACS utilizes a Zilog computer system which stores information on
delinquent taxpayer accounts and the results of investigations of
taxpayers. The employees involved in this case work at a "call site"
which attempts to contact delinquent taxpayers and to investigate their
assets. The Agency indicates that all employees use the computer system
both to retrieve information about taxpayers and to document actions
taken on cases. Agency Statement of Position at 2.
III. Union Proposal 1
Section 2. The Employer will provide a password for use of
Zilog for official union business.
A. Positions of the Parties
The Agency claims that Union Proposal 1 is in violation of the
national ACS agreement and not within the duty to bargain under the
reopener clause because there is no provision in the national agreement
delegating authority to parties on the local level to negotiate over the
issue of union use of the computer system. The Agency further argues
that providing the Union with access to the computer system would
interfere with its right to determine its internal security pursuant to
section 7106(a)(1) of the Statute because it would require giving the
Union access to confidential taxpayer information as well as
word-processing functions of the system. Finally, the Agency argues
that the proposal conflicts with a Government-wide regulation, 5 CFR
Section 735.205, which prohibits use of Government property "for other
than officially approved activities," insofar as the proposal is meant
to allow use of computer terminals for internal union business.
The Union asserts that the proposal concerns an issue which is a
proper subject for bargaining in the local ACS agreement because it is
local in effect and the national ACS permits such issues to be resolved
at the local level. The Union further argues that the proposal does not
conflict with the Agency's right to determine its internal security
because the Union employees who would gain access to confidential
taxpayer information from access to the Zilog computer already have
access to such information through their jobs. In addition, the Union
denies that its proposal would conflict with 5 CFR Section 735,205,
stating that the proposal is intended to authorize use of the computer
system for "official" union business, which it says was meant to exclude
"internal" union business. The Union states that it proposes to make
the same use of the computer that it makes of typewriters in other
Denver District offices and that the proposal is necessary because
typewriters are scarce.
B. Analysis
The question raised by the Agency regarding whether Proposal 1 is a
proper subject for bargaining under the reopener clause cannot be
resolved in this decision. The record in this case fails to provide any
basis for substantiating the agency's assertions. Further, to the
extent that there are factual issues in dispute between the parties
concerning the duty to bargain in the specific circumstances of this
case, these issues may be raised in other appropriate proceedings. 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 at 306, n.
(1984).
Proposal 1 reflects the increased automation of Government work and
the increased efficiencies of agency operations realized by that
automation. There are, however, corresponding responsibilities which
result from the automation, primarily responsibilities relating to the
internal security of automated systems and access to their use. The
legitimate security, privacy, and mission accomplishment concerns of
management must be recognized, as well as the benefits of the Union of
access to such systems.
In the instant case, the Union asserts without contradiction, that
"typewriters are scarce at ACS." Union Petition for Review at 3. The
Agency counters that it "does not have the capabilities to ensure
limited access to only the word processing functions," and that the
proposal would provide the Union with access to "confidential taxpayer
information." Agency Statement of Position at 6. The Agency does not,
however, dispute the Union's assertions that the Union officials who
would use the password are employees of the Agency who "already have
access to confidential taxpayer information." Union Response at 2.
Insofar as it appears from the record, the Union would not gain any
additional access to taxpayer information by obtaining a password
enabling it to use the word processing functions of the computer system.
For this reason, the instant case is distinguishable from the cases
concerning internal security practices cited by the Agency, National
Federation of Federal Employees, Local 1827 and Defense Mapping Agency,
Aerospace Center, St. Louis Air Force Station, Missouri, 16 FLRA 791
(1984), and National Labor Relations Board Union and General Counsel of
the National Labor Relations Board, 5 FLRA 696 (1981). Defense Mapping
Agency concerned agency attempts to prevent the disclosure of classified
information to the public which employees learned in the course of their
jobs. National Labor Relations Board concerned a proposal which would
have allowed employees to have access to confidential information which
otherwise would not have been available to them.
The Authority has previously recognized the negotiability of
proposals concerning a union's use of agency facilities for the conduct
of official union business. See, for example, American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patternson Air Force Base, Ohio, 2 FLRA 603 (1980) (Proposal II),
enforced sub nom. Department of Defense v. FLRA 659 F.2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Our
holding in the instant case is a continuation of that line of precedent.
It must be a careful, case-by-case continuation in light of concerns
for the integrity of automated systems containing information such as
that in this case.
Finally, we turn to the question of whether the proposal conflicts
with 5 CFR Section 735.205, as claimed by the Agency, because it is
intended to allow use of the computer for internal union business. The
proposal states that the computers will be used for official union
business. The Union states that the proposal was intended to exclude
internal union business. The Union's statement as to the meaning is
consistent with the wording of the proposal and we adopt it for the
purpose of this decision. In the related context of official time for
employees representing a union, we have held that activities involving
labor-management contacts, as well as preparation for them, are not
internal union business. National Association of Government Employees,
SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West
Roxbury, Ma., 23 FLRA No. 74, slip op. at 2-3 (1986). The Agency does
not claim, nor does the record establish, that use of Government
property in connection with carrying out official Union business would
be prohibited by 5 CFR Section 735.205.
CONCLUSION
The Agency has not established that Union Proposal 1 conflicts with 5
CFR Section 735.205 or with the Agency's right to determine its internal
security under section 7106(a)(1). Therefore, it is within the duty to
bargain.
IV. Proposal 2
Section 4. Each employee will be provided with a locker for
his/her personal effects. Management will not inspect these
without good reason. If it becomes necessary to inspect a locker
it will be done with at least two people present, one of which is
the affected employee or his/her designated union representative.
A. Positions and the Parties
The Agency's sole contention regarding Proposal 2 is that it involves
matters which were not delegated to local bargaining by the national ACS
agreement. The Union argues that the issue presented by the proposal is
properly negotiated at the local level because, while the provision of
lockers themselves was negotiated at the national level, the question of
procedures to be followed in Agency inspection of lockers is a local
issue which has surfaced since the negotiation of the National ACS
agreement. The Union also argues that it has not waived its right to
negotiate over the proposal.
In addition, the Union states that the proposal is negotiable,
consistent with Authority precedent holding that proposals requiring
that employees be permitted to be present during a search of their work
area are negotiable. National Treasury Employees Union and Department
of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982); National
Treasury Employees Union and NTEU Chapter 61 and Department of the
Treasury, Internal Revenue Service, Albany District, New York, 7 FLRA
304 (1981)
B. Analysis
As stated in connection with the discussion of Proposal 1, the
factual questions concerning the duty to bargain are not appropriately
considered in a negotiability appeal. The record in this case fails to
provide any basis for substantiating the Agency's assertions. Further,
to the extent that there are factual issues in dispute between the
parties concerning the duty to bargain in the specific circumstances of
this case, these issues may be raised in other appropriate proceedings.
See Wurtsmith Air Force Base, 14 FLRA at 306 n.6. Thus, the Authority
will not consider further the Agency's arguments about whether Union
proposal 2 concerns an appropriate subject for bargaining.
Turning to the substance of the proposal, we find, in agreement with
the Union, that it is negotiable. In Internal Revenue Service, Albany
District, New York, 7 FLRA 304, the Authority found that a similar
proposal which prevented management from examining the contents of an
employee's desk without the employee being present was negotiable. The
Authority concluded in that case that the proposal did not prevent the
agency from determining its internal security practices under section
7106(a)(1) of the Statute nor did it concern a method or means of
performing work. Similarly, for the reasons set forth more fully in
Internal Revenue Service, Albany District, New York, Union proposal 2 is
negotiable.
V. Order
The Agency must, upon request (or as otherwise agreed to by the
parties) bargain concerning the Union's proposals. /2/
Issue, Washington, D.C. November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Union withdrew its appeal of the remaining proposals
originally submitted. They will not be considered further here.
(2) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.
24 FLRA NO. 29
National Archives and Records Administration and AFGE, Council 236,
Local 2928 (Cohen, Arbitrator), Case No. O-AR-1128
STATUTE
7122(a)
7131(d)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION AWARDS, MODIFIED
AWARD CONTRARY TO THE STATUTE
7131(d)
ARBITRATION AWARDS, REMEDIES ORDERED BY ARBITRATORS
OFFICIAL TIME
CHANGE AWOL TO OFFICIAL TIME
PERSONNEL RECORDS
PERSONNEL RECORDS EXPUNGED OF SPECIFIED MATERIAL
ARBITRATION AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL
AWARD CONTRARY TO THE FSLMR STATUTE
7131(d)
HOUSE REPORTS
H.R. REP. NO. 1403, 95th CONG., 2ND SESS. (1978)
OFFICIAL TIME (7131)
ACTIVITIES NOT RELATED TO LABOR-MANAGEMENT MATTERS
OFFICIAL TIME MAY NOT BE AUTHORIZED UNDER 7131
POLICE ACTIONS RELATING TO DOMESTIC MATTERS
SENATE REPORTS
S. REP. NO. 969, 95th CONG., 2D SESS. (1978)
DIGEST NOTES
The grievance in this case arose when the grievant, a union official,
was charged with absence without leave (AWOL) for a period of time she
was away from her worksite while assisting an employee who had been
arrested by the police on a domestic matter. The arbitrator ruled that
the grievant could spend a maximum of 35 percent of her time performing
union duties under the provisions of the parties' agreement. He found
no restriction in the agreement concerning where union representational
duties could be performed and ruled that the agency had no right to
inquire as to the nature or the location of the work to be done.
Accordingly, the arbitrator found that the supervisor violated the
parties' agreement when she denied the grievant official time and
ordered that the AWOL charge be stricken and the time changed to
official time with backpay as appropriate.
In its exceptions the agency contended that the portion of the award
pertaining to the time spent by the grievant at the police station and
the time spent traveling to the police station was contrary to section
7131(d) because it allows official time for a nonrepresentational
purpose.
In modifying the award, the Authority held that the plain language of
section 7131(d) is that official time may be negotiated only for an
employee representing an exclusive representative or in connection with
matters covered by the Statute. Examples of the proper use of official
time for representational purposes include the investigation and
attempted informal resolution of employee grievances, participation in
formal grievances resolution procedures, attendance or preparation for
meetings of committees on which both the labor organization and
management are represented and discussion of problems in contract
administration with management officials. However, there was no
indication in the record that the grievant's use of official time for
the purpose of assisting an employee in a private matter with the police
was related to any labor-management activities under the Statute.
Case No. 0-AR-1128
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 236, LOCAL 2928
Union
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Gerald Cohen 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 grievance in this case arose when the grievant was charged with
absence without leave (AWOL) for a period of time in which she was away
from her worksite at the Winnebago Avenue office. The grievant was a
Union official entitled under the agreement to spend 35 percent of her
time "to perform (her) official representational duties." On the day in
question, she told her supervisor at 7:30 a.m. that she would be using
official time for Union duties; the supervisor agreed to release her at
that time. The grievant worked on Union business for approximately an
hour and a half at the Winnebago Avenue worksite and then prepared to
leave the building to go to the Union office at the Page Avenue
worksite. Before she left, another employee was arrested by the police
in connection with a domestic matter and taken to the police station.
The grievant left the Winnebago Avenue building at the same time as the
police. As she was leaving, her supervisor ordered her not to leave and
warned that if she did she would be charged annual leave or AWOL. The
grievant left the building despite the supervisor's warning and went to
the police station where she assisted the arrested employee. The
grievant then went to the Page Avenue Union office where she performed
Union representational duties until the afternoon. The grievant refused
to take annual leave and was charged with AWOL for the time spent away
from the building.
The matter was submitted to arbitration. The Arbitrator stated the
issues to be: (1) whether the Agency violated the national agreement by
its procedure for granting official time for Union representation, and
(2) whether the Agency violated the agreement by charging the grievant
with AWOL. The Arbitrator ruled that the Agency had agreed that the
grievant could spend a maximum of 35 percent of her time performing
Union duties and as a result had relinquished a portion of its right to
control her activities. He stated that Union representatives were
responsible for using the official time allotted them wisely and that if
official time was abused, the correction of the abuse lies with the
Union. He found that the Agency's right to deny official time under the
agreement arises when official time is requested but cannot be granted
because of workload considerations or because there is no available
employee to replace the Union representative. He found no restriction
in the agreement concerning where Union representational duties could be
performed and ruled that the Agency had no right to inquire as to the
nature or the location of the work to be done. The Arbitrator found as
fact that the grievant requested and was granted official time and he
ruled that the supervisor violated the agreement when she later denied
the grievant permission to leave the Winnebago Avenue site. As his
award the Arbitrator sustained the grievance and ordered the AWOL charge
stricken and the time charged to official time with backpay as
appropriate.
III. AGENCY EXCEPTION
The agency filed an exception to that portion of the award which
pertains to the time spent by the grievant at the police station and the
time spent traveling to the station. The Agency contends that this
portion of the award is contrary to section 7131(d) /*/ of the Statute
because it allows official time for a nonrepresentational purpose. The
Agency contends that representing an employee in a police matter does
not constitute a grievance, arbitration or other contract administration
matter. The Agency also excepts to the Arbitrator's ruling that the
grievant had the right to use official time wherever she wished
notwithstanding the supervisor's objections and contends in this regard
that the award fails to draw its essence from the agreement.
IV. ANALYSIS AND CONCLUSION
We agree with the Agency's contention that the Arbitrator's award is
contrary to law, specifically section 7131(d) of the Statute. The plain
language of that section is that official time may be negotiated only
for an employee representing an exclusive representative or in
connection with matters covered by the Statute. The legislative history
of the Statute confirms that official time negotiated under section
7131(d) is to be used for labor-management relations activity. See H.R.
Rep. No. 1403, 95th Cong., 2d Sess. 59 (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 of 1978, Committee Print No. 96-7, at 705 (1979)
(Legislative History); S. Rep. No. 969, 95th Cong., 2d Sess. 112, 113
(1978), Legislative History at 772, 773. Examples of the proper uses of
official time for representational purposes include the investigation
and attempted informal resolution of employee grievances, participation
in formal grievance resolution procedures, attendance or preparation for
meetings of committees on which both the labor organization and
management are represented and discussion of problems in contract
administration with management officials. S. Rep. No. 95-969 at 113.
See also Social Security Administration and American Federation of
Government Employees, AFL-CIO, Local 3231, 19 FLRA No. 109 (1985) at
n.2.
Consistent with the Statute, agencies and labor organizations may
negotiate amounts of official time which are reasonable, necessary and
in the public interest. The official time must be used for
labor-management purposes, however. In the present case, the Arbitrator
ruled that the Agency had no right to restrict the grievant's use of
official time once it had determined that it was not constrained by such
matters as workload considerations and had granted the time. However,
there is no indication in the record that the grievant's use of official
time for the purpose of assisting an employee in a private matter with
the police was related to any labor-management activities under the
Statute. The grievant's supervisor acted within her authority when she
challenged the grievant's use of previously granted official time
because she suspected that the time was not to be used for
labor-management purposes. If the grievant believed that she was
improperly denied official time, her recourse was to obey the order and
then file a grievance. See, for example, Bigelow v. Department of
Health and Human Services, 705 F.2d 962, 965 (Fed. Cir. 1984);
Department of the Air Force, McGuire Air Force Base and American
Federation of Government Employees, Local No. 1778, 6 FLRA 283 (1981).
Consequently, we find that insofar as the award sustained the grievance
and ordered backpay for the time spent by the grievant traveling to and
at the police station, it is deficient as contrary to section 7131(d) of
the Statute.
V. DECISION
The award is modified by setting aside that portion which pertains to
the AWOL charge and orders backpay for the time spent by the grievant in
traveling to and at the police station.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B.Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) 5 U.S.C. Section 7131(d) provides:
(d) Except as provided in the preceding subsection of this
section --
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable, necessary, and
in the public interest.
24 FLRA NO. 28
Dep't of the Air Force, Scott Air Force Base, Ill. and NAGE, SEIU,
Local R7-23, Case No. 5-CA-40232 (Decided November 26, 1986)
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 UNDER THE STATUTE
ALTERNATE MEANS
MERE EXISTENCE INSUFFICIENT FOR DENIAL OF NAMES/ADDRESSES
TYPES OF INFORMATION SOUGHT
NAMES AND ADDRESSES OF EMPLOYEES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION TO BE PROVIDED UNION
UNITED STATES CODE 5 U.S.C. 552 a (PRIVACY ACT)
DIGEST NOTES
The activity violated sections 7114(b)(4), 7116(a)(1), (5) and (8)
when it refused to provide the exclusive representative with the home
addresses of new employees. The release of such information 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). The release of the names and home addresses of unit
employees is generally required without regard to whether alternative
means of communication are available.
Case No. 5-CA-40232
DEPARTMENT OF THE AIR FORCE SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, LOCAL R7-23
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel and the Charging Party (the Union). The
Respondent (Agency) filed an opposition to the exceptions. The issue is
whether it is an unfair labor practice under the Federal Service
Labor-Management Relations Statute (the Statute) for the Respondent to
refuse a request, made pursuant to section 7114(b)(4) of the Statute, to
provide the Union with the home addresses of new employees in a
bargaining unit which the Union exclusively represents.
In a recent Decision and Order on Remand, Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO), we
reviewed the Authority's previous decision concerning the release of the
names and home addresses of bargaining unit employees to exclusive
representatives. We concluded that the release of the information 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. Consistent with our decision on
remand in FHAFO, we conclude that Respondent's refusal to provide the
Union with the home addresses sought in this case violated section
7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union requested the home addresses of all new bargaining unit
employees in order to send them an orientation package. The Respondent
denied the request on the ground that disclosure of the information
would violate the Privacy Act. /1/ However, the Respondent gave the
Union a list of the new employees and their work addresses.
III. The Administrative Law Judge's Decision
The Judge concluded that the Respondent had not failed to comply with
the requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) when it refused to provide the Union
with the home addresses of all new unit employees represented by the
Union. The Judge found that the home addresses were reasonably
available to the Respondent and that the Union was seeking the data for
a relevant purpose within the meaning of section 7114(b)(4) of the
Statute. However, the Judge also found that the Respondent's
willingness to have mail addressed to employees at their work addresses
delivered through the Respondent's internal mailing system provided the
Union with an effective alternative means of communicating with the
employees. He therefore concluded that the Union had not established
that the home addresses were necessary within the meaning of section
7114(b)(4) and he recommended that the complaint against the Respondent
be dismissed.
IV. Positions of the Parties
The positions of the parties are set forth in the General Counsel's
and the Union's exceptions and the Respondent's opposition. /2/
In their exceptions, the General Counsel and the Union reiterate
arguments made before the Judge that mailings made to work locations
lack confidentiality and that receipt of such material at the workplace
is disruptive to work procedures. The General Counsel also argues that
the work address information provided the Union was not sufficiently
accurate. In its opposition, the Respondent essentially disagrees with
the arguments that the alternative means of communication lack
confidentiality, would be disruptive and are otherwise inadequate.
V. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of home addresses of bargaining unit
employees to the exclusive representatives of these employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute, and meets the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available. Based on our decision on remand in the FHAFO case, we find
that the Respondent in this case was required to furnish the Union with
the home addresses of the new employees in the bargaining unit. Thus,
we conclude that the Respondent's refusal to furnish the requested
information in this case constituted a violation of 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, it is ordered that the Department of the Air Force, Scott Air
Force Base, Illinois, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R7-23, the exclusive representative of its
employees, the home addresses of all new 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) Upon request by the National Association of Government Employees,
Local R7-23, the exclusive representative of its employees, furnish it
with the home addresses of new employees in the bargaining unit it
represents.
(b) Post at all its facilities where bargaining unit employees
represented by the National Association of Government Employees, Local
R7-23 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 Department
of the Air Force, Scott Air Force Base, Illinois, 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 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., November 26, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R7-23, the exclusive
representative of our employees, the home addresses of all new 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, upon request by the National Association of Government
Employees, Local R7-23, the exclusive representative of our employees,
furnish it with the home addresses of all new 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 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and whose
telephone number is: (312) 353-6306.
Case No. 5-CA-40232
DEPARTMENT OF THE AIR FORCE SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23
Charging Party
Major Charles L. Brower, Esquire
For the Respondent
Mark B. Clevenger, Esquire
For the Charging Party
Sandra J. LeBold, Esquire
For the General Counsel
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 Five, Federal Labor Relations Authority,
Chicago, Illinois against the Department of the Air Force, Scott Air
Force Base, Illinois (Respondent), based on an amended charge filed by
the National Association of Government Employees, Local R7-23 (Charging
Party or Union). The complaint alleged, in substance, that Respondent
has refused to furnish to the Union the home addresses of new employees;
that such refusal constitutes a violation of section 7114(b)(4) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. Section
7101 et seq. (the Statute); and an unfair labor practice in violation
of sections 7116(a)(1), (5) and (8) of the Statute.
Respondent's answer denied any violation of the Statute.
A hearing was held at Scott Air Force Base, Illinois. The
Respondent, Charging Party, and the General Counsel were represented by
counsel and afforded full opportunity to be heard, adduce relevant
evidence, examine and cross-examine witnesses, and file post-hearing
briefs. Counsel for the Respondent and the General Counsel filed
helpful briefs, and the proposed findings have been adopted in whole or
in substance where found supported by the record as a whole. Based on
the entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
1. At all times material herein, the Union has been recognized as
the exclusive representative of an appropriate unit of Air Force
employees assigned to Respondent (Tr. 6; Joint Ex. 5).
2. On March 14, 1984, the Respondent conducted a new employee
orientation session (General Counsel's Ex. 1(c) and 1(d)). This was the
first such session that the Respondent had conducted in almost two
years. The Union won the right to be present and distribute literature
at new employee orientation sessions during its 1982 contract
negotiations. /3/ (Tr. 16, 91-92, Joint Ex. 5). This was the first
orientation session since those negotiations (Tr. 16).
3. Carl Denton, Union president, was informed of the session by
Raymond Rush, labor relations specialist, on the morning of March 14,
1984 at approximately 8:20 a.m. Mr. Rush first became aware of the
meeting that same morning. The session had begun at 8:00 a.m. Mr.
Denton rushed over to the meeting, stopping on the way at the Union
office to pick up some copies of the contract and other Union literature
(Tr. 13-14).
4. Mr. Denton arrived at the orientation at about 9:15 a.m. at which
time the orientation participants were on break. Although Mr. Denton
missed the first two segments of the orientation program -- the
introduction from 8:00 to 8:10 a.m. and the staffing and equal
employment opportunity segment which began at 8:10 a.m. -- he was
present when the next scheduled segment -- employee management relations
-- began at 9:35 a.m. (Tr. 14-15; Joint Ex. 4).
5. During this segment, Lorenda Kelch, the presiding management
official, introduced Mr. Denton and permitted him to address the group
of approximately 65 employees. Denton was nervous and ill-prepared due
to the last minute notice. However, he advised the group of the general
purpose of the Union, the location of the Union office, the Union office
telephone number, the names of the officers, that the Union must
represent everyone in the bargaining unit, and that there were Union
stewards available to assist them. He distributed some copies of the
collective bargaining agreement, some NAGE "news-type bulletins," the
local NAGE newspaper, and the national NAGE newspaper. He ran out of
most of the materials because, not being informed of the session in
advance, he did not know how many employees would be present. Later,
during a question and answer session, Ms. Kelch deferred to Denton to
answer a question which had been directed to her. (Tr. 14-18; 43-50).
6. Between July 21, 1982 and March 14, 1984, Respondent hired 166
employees (Joint Ex. 3). Only 66 attended the March 14, 1984
orientation session, although Respondent considered attendance to be
mandatory (Joint Ex. 2; General Counsel's Ex. 2).
7. On March 21, 1984 Mr. Denton sent to Respondent a letter
requesting, among other things, the home addresses and office symbols of
all employees hired since the last previous new employee orientation
session (Joint Ex. 1). An office symbol is an employee's official
business address (Tr. 54). The information was requested "in order to
provide all new employees with a union orientation session and to police
our rights in this regard . . ." (Joint Ex. 1).
8. The Union wanted to communicate with both those who had attended
the orientation session and those who had not (Tr. 21). It wished to
inform new employees who did not attend the session of the existence of
the Union, the identity of Union officers in the various areas, and the
location of the Union office, to let them know that if there were
problems, there was a Union (Tr. 20). It wanted to communicate with the
employees who had attended the session regarding matters which the Union
may have inadequately presented or omitted due to the failure of
Respondent to give the Union advance notice of the session (Tr. 67-68).
Also, the Union desired to communicate concerning matters presented by
management at the orientation session with which it did not agree (Tr.
19-20, 52). The Union wanted to give both groups of new employees a new
employee orientation package. Although the Union had not determined
exactly what it would contain, it would include a copy of the labor
management agreement. The Union had run out of copies of the agreement
at the session. The package would also possibly include information
concerning negotiations and important grievances (Tr. 53-54, 61). Mr.
Denton asserted that some of the material might also possibly be
confidential (Tr. 67).
9. In response to the Union's March 21, 1984 request, Respondent, by
letter of April 4, 1984, replied to the Union's request for home
addresses by stating, ". . . this office is prohibited by applicable
provisions of the Privacy Act from releasing home address(es) of
employees." However, Respondent promised to provide a listing of new
employees by organization under separate cover. Respondent included a
copy of the attendance form filled out by each of the employees who
attended the March 14 orientation session. On each form the employee
listed his "organization and office symbol." (Joint Ex. 2; General
Counsel's Ex. 2).
10. Respondent, by letter of April 17, 1984, provided the Union with
a listing by organization of the employees hired between July 21, 1982
and March 14, 1984. An organizational symbol for each listing was
included in the upper right-hand corner. (Joint Ex. 3).
11. By letter of May 2, 1984 the Union complained that an
unspecified number of the office symbols were incorrect, and that even
if they were correct, "Base Distribution (Respondent's internal
distribution system) would not necessarily deliver the mailings." The
Union stated, "We request that you either provide correct office symbols
for each new employee listed or provide their home address." (Joint Ex.
6A).
12. Following a May 8 interim response (Joint Ex. 6C), Respondent,
by letter of June 22, 1984, informed the Union that although the base
distribution system has always restricted delivery of mail to exclusive
government business, management had been authorized on a test basis to
deliver mass mailings "as long as there is a correct functional address
symbol" (2) that if the address was incorrect, the mail would be
indorsed "undeliverable as addressed" and returned to the sender, and
(3) that if the Union were to inform Respondent of any "specific
instances" of incorrect data, Respondent would correct them (Joint Ex.
6B). The record does not reflect a further Union response.
13. Respondent and the General Counsel are in dispute as to whether
Respondent provided the Union the "office symbols," a business address
or "correct functional address symbol," of each new employee which could
have been used with the internal distribution system. The dispute stems
from the term "office symbol" used in the Union's request. The Union
requested "office symbols" in its March 21, 1984 request. Respondent
furnished a listing of new employees "by organization" and the listing
included organizational symbols. That the organizational symbols may
not be correct as a mailing address is illustrated by the fact that the
organizational symbols do not in every instance match "organization and
office symbol" listed by some employees themselves on the attendance
form of the session. For example, a random check indicates that
Respondent's listing for the "375 ABS Gp" includes Gary L. Hearne and
Herman A. Hockaday, Jr. However, Hearne and Hockaday attended the
session and listed their respective "organization and office symbol" as
"375 ABG/SSRS" and "375 ABG/DAD." Respondent's listing of "MCO CT CQTR"
includes Gladys A. Ronck. Ronck listed her organizational and office
symbol as "HQMAC/TRPRC." Similarly, Oscar Gary Wells supposedly in "MAC
CM MADA" listed "HQMAC/DADD." (Joint Ex. 3; General Counsel's Ex. 2).
The record does not indicate which would be the "correct functional
address symbol" for use of the internal mail system. However, the Union
made no effort to have Respondent correct any noted discrepancies, which
Respondent offered to do, and it is clear under these circumstances that
the correct functional address symbol of each new employee is available
to the Union upon request.
Circumstances Relating to Union Access to New Employees
14. Scott Air Force Base is situated on approximately 2500 acres of
land in southwest Illinois (Tr. 103). Employees work in approximately
100 different buildings (Tr. 30). There are 3,000 - 3,500 civilian
employees working on the base. Of these, 2,400 - 2,500 are bargaining
unit employees (Tr. 29, 62, 104) and 400 are Union members (Tr. 30).
Employees live in various cities and towns covering a wide geographic
area which includes the states of Illinois and Missouri. Some employees
live as far as 50 miles away from the base (Tr. 26).
15. While a majority of civilian employees are located in a central
two-building complex, /4/ large numbers of employees work in buildings
which are some distance from this area. The Union estimated that 40% or
approximately 1000 bargaining unit employees are not located in the
central two-building complex (Tr. 114-115). Respondent estimated that
1200 - 1300 civilian employees work in buildings other than the central
two-building complex /5/ (Tr. 103-104). Buildings 861, 859, 865 and 700
make up Area Two, which is approximately one mile from the central
complex (Tr. 116). The commissary is a ten minute walk from the central
area. The Consolidated Airlift Maintenance Squadron and the Civilian
Engineering Squadron are each two or three blocks from the central
complex (Tr. 117). The Hospital or Medical Squadron is approximately
one-half mile from the central location (Tr. 118). Certain buildings,
notably "DECCO" Headquarters and MAC Headquarters, have secured areas
requiring badges and an escort for entrance. However, these secured
areas have public access lobbies. (Tr. 30, 62-63).
16. The Union has the following means of communicating with
bargaining unit employees.
a. Use of bulletin boards. /6/ There are 50- 80 official bulletin
boards and 25 - 30 other bulletin boards (Tr. 55, 97-98). The Union has
had difficulty acquiring space on only three bulletin boards (Tr.
57-59). The Union asserted that information on the bulletin boards is
often outdated (Tr. 24); however, it is the Union which determines what
information shall appear on the reserved portions of these bulletin
boards (Tr. 55, 97-98). The Union also claimed that it had insufficient
numbers of stewards to maintain the bulletin boards in all buildings;
however, pursuant to the collective bargaining agreement, the number of
stewards is up to the Union. Finally, the Union claims that employees
seldom look at bulletin boards, and this would not be a reliable way to
reach new employees with the large quantity of information that the
Union wanted to deliver in the orientation package (Tr. 24-25).
Although, the Union could post notices concerning the availability of
the information from the Union office, I agree that bulletin boards
would not be a reliable way to reach employees with a large quantity of
information.
b. Use of Respondent's newspaper and base bulletin to make general
announcements and notices of meetings, picnics, and parties, and for
unofficial announcements. /7/ (Tr. 25, 98-99). Although, the Union
could publish a notice inviting any new employee interested in an
orientation package to call the Union office, these media would not be
able to provide the space the Union wished to provide new employees with
a complete orientation to the Union.
c. Use of intra-base telephone facilities and an office. /8/
Current office telephone numbers of employees are not maintained (Joint
Ex. 2). Calling after hours would also be time-consuming and difficult
due to the lack of home telephone numbers or telephone directories of
the many different communities in which the employees live.
d. Use of designated locations to distribute handbills or other
informational literature, including Union newspapers /9/ (Tr. 30,
101-102).
The Union has never invoked this contractual right. (Tr. 101-102).
However, since the Union was only trying to communicate with 166 new
employees, handbilling of all employees at particular locations would
not be efficient.
e. A listing of bargaining unit employees is to be provided to the
Union once a year upon request /10/ (Tr. 102). The agreement provides
that the list will include names, grades, series and organizational
element. Since August 1982 the Union has requested such a listing only
once (Tr. 103). The total list would not help in reaching new
employees. The Union already knows their identities.
f. Use of officers and stewards. /11/ Pursuant to the collective
bargaining agreement the Union may designate the number of stewards
"reasonably required . . . to assure that each employee is properly
represented, except that no more than one steward may be assigned per
shift to a work area." The Union has approximately 18 officers and 24
stewards on the base. However, only four or five of the stewards are
General Schedule employees. Stewards are not assigned to every shift
and every building. Stewards also have only limited access to employees
working in secured areas. (Tr. 63-64, 100, 108; Respondent's Ex. 2).
g. The Union holds meetings once a month. These meetings are open
to Union members only (Tr. 31-32, 100-101). As noted, Respondent
permits the Union to announce meetings in the base newspaper and
bulletin. Meetings during non-duty hours are not well attended (Tr.
38-31, 100-101). Respondent's "mandatory" orientation session during
duty hours was also not well attended.
h. The Union publishes a Union newsletter when it can afford to do
so, which is not very often. It is mailed to Union members and others
who supply the Union with their addresses (Tr. 31, 99-100; Respondent's
Ex. 2).
17. The Union does not have access to the base's internal mailing
system free of charge. It is restricted to official mail. As noted in
paragraph 13 above, sometime after the information request was made in
March 1984, management, in June 1984, disclosed the existence of a test
whereby mass mailings from unofficial sources could be delivered through
the base distribution system. The effective period for the test was not
stated. It appears that at one time the test was scheduled to last for
one year and would have expired at the end of 1983. It did not (Tr. 27,
66, 69-70). All of the parties, as of the time of the hearing, were
uncertain as to whether the Union could or could not use the internal
mail system pursuant to this test (Tr. 68-70). In its brief Respondent
now takes the unequivocal position that the Union could have used the
internal mail system pursuant to the experimental test. However, I
decline to make such a finding because of the obvious uncertainty of its
availability during the relevant period.
18. Although the Union could not use the internal mailing system
cost-free, it still had access to the employees through the system by
addressing mail to an employee's office symbol, paying the necessary
U.S. postage, and sending it through the U.S. Postal Service which would
ultimately transfer the mail to Respondent for distribution through
Respondent's internal mailing system. (Tr. 65-66; Respondent's brief,
p. 2; Joint Ex. 6A, par. 2, last sentence).
19. Mr. Denton testified that addressing mail to employees' business
addresses on the base would not be an acceptable alternative to mailing
to their home addresses. He testified that he has received reports of
"several occasions" when personal mail has been opened first by
secretaries or other administrative personnel before being received by
the addressees. He has had some of his own mail so opened with a
"sorry" written on it. He also felt that a Union orientation package
might include items of a confidential nature which the Union wouldn't
want management as a whole to know about. Finally, Mr. Denton testified
that such mail might disrupt the work of the base (Tr. 27-28; 60-61).
Availability of Home Addresses
20. Respondent maintains the home addresses of employees in the
regular course of business in official personnel files and in computer
data banks (Tr. 72, 78). Such data does not constitute guidance,
advice, counsel, or training provided for management officials or
supervisors, relating to collective bargaining (Tr. 7).
a. Each official personnel file contains a home address, but there
is no guarantee it is accurate (Tr. 74). The personnel files are used
by six different sections in the Civilian Personnel Office containing
about 30 employees. At any given time approximately 20% (about 640) of
the personnel files are out of the master file, being used by one of the
30 employees (Tr. 73). Assuming that each personnel file were not
signed out of the master file, it would take a civilian personnel office
employee earning from $4.50 to $16.00 per hour approximately two minutes
to manually extract the home address. (Tr. 73-75). Under these
conditions, it would require about five hours and the cost to Respondent
of extracting the home addresses of each of the new bargaining unit
employees would be anywhere from $25.00 to $85.00. The higher figure
would result if higher graded employees were used in order to provide
the information in an extremely short time (Tr. 74). There is no
indication that the Union made time of the essence in its request. If
the file were not in the master file and Respondent were required to
search for the file throughout the personnel office, the time and cost
required could increase significantly (Tr. 73-74).
b. The home addresses are also maintained in Respondent's computer
data base (Tr. 78-80), but in order to extract that information the
following tasks (with costs indicated) must be performed (Tr. 78):
TASK TIME COST PER HOUR TOTAL COST OF TASK
Research Data Base 1-2 hours $6.92-$16.73/hr $6.92-$33.46
Define Computer Program 1-2 hours $150.00 hr $150.00-$300.00
(computer time)
Retrieve Information 30 minutes $150.00 hr $75.00
(computer time)
TOTAL COST $231.92-$408.46
Discussion, Conclusions, and Recommendations
The issue for determination is whether Respondent violated section
7116(a)(1), (5), and (8) by refusing to provide the Union with the home
addresses of new employees. The General Counsel claims that the home
addresses are reasonably available, are necessary to enable the Union to
carry out its representational obligations of providing new employees a
Union orientation package, and there are no effective alternative means
of communicating with the 160 new employees.
Respondent defends on the basis that it complied with the Union's
request, as the Union requested home addresses or office symbols, and it
offered the Union the office symbols. Respondent also contends that the
home addresses are not reasonably available; the Union seeks the home
addresses for purposes not embraced by section 7114(b)(4); and the
Union has at its disposal effective means of communicating with the new
bargaining unit members.
As pertinent here, section 7114(b)(4) /12/ of the Statute requires an
agency, upon request, to furnish an exclusive representative with data
"which is reasonably available and necessary for full and proper
discussion, understanding and negotiation of subjects within the scope
of collective bargaining."
The home addresses of employees are "reasonably available." They are
contained in official personnel files and approximately 80% of the files
are readily available in a master file area. The remainder are in
working areas of the personnel office. If disclosure were required,
management would presumably compile the information from the files
rather than use the more expensive computer retrieval method. Since
time is not of the essence, the record reflects that Respondent could
use lower graded employees for the manual file retrieval for a cost in
the $25-$85 range.
It is well established that under section 7114(b)(4) of the Statute a
Union is entitled to receive information necessary to the performance of
its representational responsibilities, including negotiations,
administration of the collective bargaining agreement, and the effective
evaluation and processing of grievances.
Here the Union wanted to provide new employees with a Union
orientation package, including a copy of the collective bargaining
agreement. In my view, administration of the collective bargaining
agreement includes advising unit employees of their rights under the
agreement. Sending new employees a copy of the agreement is a most
complete way of informing them of their rights. Thus, their addresses
were relevant to the Union's carrying out of its representational
obligations. Therefore, the Union was seeking the information for a
purpose embraced by section 7114(b)(4).
However, since furnishing the home addresses of employees impinges to
some degree on the personal privacy of employees, it is necessary to
determine whether the Union has other effective means of communicating
with the new employees. Cf. Internal Revenue Service, Office of the
District Director, Jacksonville District, Jacksonville, Florida, 2
A/SLMR 214, affirmed FLRC No. 72A-50, 2 FLRC 106 (1974). While I agree
with the General Counsel that most of the other means available to the
Union are ineffective for the intended purpose, the record reflects that
Respondent either has, or is willing to, furnish the Union the correct
business addresses of the new employees. Although the Union can not use
Respondent's internal mailing system by itself and on a cost-free basis,
it can still have access to the system by addressing mail to an employee
at his business address or office symbol, paying the necessary U.S
postage, and depositing it in the U.S. mail. The U.S. Postal Service
will ultimately transfer the mail to Respondent, and it will be
delivered to the employee through Respondent's internal mailing system.
The General Counsel argues that it is necessary to send the mail to
an employee's home address in order to preserve its confidentiality and
so as not to disrupt the employee's work. There would be no appreciable
difference in terms of confidentiality between sending sealed envelopes
through the U.S. Postal Service for delivery to an employee's home
address and sending sealed envelopes through the U.S. Postal Service for
ultimate delivery by Respondent's internal mailing system to an office
address. Considering the large number of employees at the base, there
is no basis for concluding that the "several occasions" of personal mail
being opened by secretaries were extensive or other than isolated
occurrences or honest mistakes. It also could hardly be expected that
the contents of a mailing to 160 new employees, a significant percentage
of whom presumably do not belong to the Union, would remain
confidential. With respect to possible disruption of work by mailings
to the office, there is no indication that management would consider the
receipt and review of Union orientation packages by employees to be
disruptive in these circumstances. The Union would be in a good
position to meet any such objection if it took place considering the
alternatives and the fact that Respondent has pointed to this method as
"without doubt the most effective alternative means of communication
available to the Union" (Respondent's Brief, p. 20).
In light of the existence of the foregoing effective means of
communication with new employees for the purpose outline by the Union,
it has not been established that a list of the home addresses of new
employees is "necessary for a full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining."
Accordingly, it is recommended that the Authority issue the following
Order pursuant to 5 C.F.R. Section 2429.29:
ORDER
It is hereby Ordered that the Complaint in Case No. 5-CA-40232 be,
and it hereby is, DISMISSED.
/s/ GARVIN LEE OLIVER
/s/ Administrative Law Judge
Dated: April 9, 1985
Washington, D.C.
FOOTNOTES
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) When the Authority decided, for reasons discussed more fully in
the decision on remand in FHAFO, to review the entire issue of the
release of employees' names and home addresses and invited agencies,
unions, and interested persons to submit amicus briefs addressing the
issue, this case was one of those listed as being under consideration.
While the parties in this case did not submit amicus briefs, the
Department of the Air Force and the National Association of Government
Employees did file amicus briefs outlining their positions.
(3) Article XXIII, Section 12 of the collective bargaining agreement
provides:
The Union will be permitted to have a maximum of one (1)
representative present during new employee orientations. The
Employer will recognize the Union representative present and
agrees to cover the major features of Title VII. The Union may
distribute its own orientation package, including a copy of the
labor agreement and the representative may be called on to answer
questions directed to him/her. (Joint Ex. 5).
(4) The two buildings which make up the "complex", Headquarters MAC
and Headquarters AFCC, are not connected, but are separated by two or
three blocks and a four-lane highway (Tr. 117).
(5) Respondent did not provide an estimate regarding the number of
bargaining unit employees working in the two-building complex.
Respondent estimated that 2500 of 3000 civilian employees work in a
somewhat larger central area, leaving 500 civilian employees working in
non-centralized areas throughout the base (Tr. 103-104).
(6) Article XIII, Section 13 provides:
The Employer agrees to provide reserved space on Official Bulletin
Boards, 18"X22", for the posting of Union Notices and similar
informational material. Upon written request from the Union, the
Employer will also provide reserved space on such other bulletin
boards which the Employer routinely uses to post notices and other
information to bargaining unit employees regarding personnel
policies, practices and other matters affecting working
conditions. The Union agrees that literature posted or
distributed must not violate any law, the security of the bases,
or contain scurrilous or libelous material. In addition, the
posting or distribution of material relating to partisan political
matters or material which reflects unfairly upon the integrity or
motives of any individual, another employee organization or upon
the Federal Government will not be permitted. All costs incident
to reproduction, preparation, and distribution of Union material
shall be borne by the Union.
(7) Article XIII, Section 16 provides:
The Employer agrees that the Union may use the Towncrier section
of the base newspaper and the Notice Section of the Base Bulletin
to announce general membership meetings and events: such as,
picnics, retirements, or Christmas parties. It is agreed that the
Union shall be solely responsible for the content and accuracy of
such announcements.
(8) Article XXIII, Section 3 provides:
The Employer agrees to permit the officers and representatives of
the Union to utilize intra-base telephone facilities.
Section 10 provides:
Free rent will be provided the Union.
(9) Article VI, Section 13 provides:
The Employer shall permit the union to distribute informational
literature, including Union newspapers, information on membership
in the Union and benefits provided by the Union, in designated
locations, where unit employees are assigned, within the buildings
throughout Scott Air Force Base. The Union agrees that it shall
not distribute any libelous or scurrilous material or violate any
law, applicable regulations or other provisions of this Agreement
in exercising any right under this section. It is agreed by the
Union that any material distributed in accordance with this
section shall be made by employees during their nonwork time and
said distibution shall not interfere with work operation.
(10) Article XXIII, Section 7 provides:
A listing, including the names, grades, series and organizational
element of each bargaining unit employee shall be provided the
Union once every twelve months. Such provision shall be based on
a specific written request from the Union to the Central Civilian
Personnel Office.
(11) Article VI, Section 1 provides, in part:
The employer agrees to recognize the officers of the Union and all
stewards duly designated by the Union. The number of stewards
shall be the number reasonably required in order to assure that
each employee is properly represented, except that no more than
one steward shall be assigned per shift to a work area.
(12) Section 7114(b)(4) provides that 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; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)"
24 FLRA NO. 27
Dep't of the Navy, Portsmouth Naval Shipyard, Portsmouth N.H. and
Federal Metal Trades Council, Case No. 1-CA-40290 (Decided November 26,
1986)
STATUTE
7114(a)(1) and (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)
CODE OF FEDERAL REGULATIONS
5 C.F.R. PART 294, SUBPART G
FEDERAL PERSONNEL MANUAL
CHAPTER 294
LETTER 294-6 (JULY 25, 1977)
SUPPLEMENT 771-1, INSTRUCTION 18
INFORMATION, EMPLOYEE AND UNION RIGHTS UNDER THE STATUTE
ALTERNATE MEANS OF ACCOMPLISHING THE OBJECTIVE
MERE EXISTENCE INSUFFICIENT FOR DENIAL OF NAMES AND ADDRESSES
TYPES OF INFORMATION SOUGHT
NAMES AND ADDRESSES OF EMPLOYEES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION TO BE PROVIDED UNION
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
5 U.S.C. 552 (FREEDOM OF INFORMATION ACT)
5 U.S.C. 552(b)(6)
DIGEST NOTES
The activity violated sections 7114(b)(4), 7116(a)(1), (5) and (8)
when it failed to furnish the union with the names and addresses of
employees in the bargaining unit which the union exclusively represents.
The release of such information 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). The release
of the information is generally required without regard to whether
alternative means of communication are available.
Case No. 1-CA-40290
DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD PORTSMOUTH, NEW
HAMPSHIRE
Respondent
and
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 on exceptions
filed by the Respondent (Agency). The General Counsel filed an
opposition to the exceptions. The issue is whether it is an unfair
labor practice under the Federal Service Labor-Management Relations
Statute (the Statute) for the Respondent to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the names and home addresses of employees in a
bargaining unit which the Union exclusively represents.
In a recent Decision and Order on Remand, Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (FHAFO), we
reviewed the Authority's previous decision concerning the release of the
names and home addresses of bargaining unit employees to exclusive
representatives. We concluded that the release of the information 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. Consistent with our decision on
remand in FHAFO, we conclude that Respondent's refusal to provide the
Union with the names and home addresses sought in this case violated
section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union requested the names and home addresses of the unit
employees it represents. The Respondent denied the request on the
ground that the information sought was not available under the Statute
or the parties' negotiated agreement. The Respondent also contended
that the information was not subject to disclosure under the provisions
of the Privacy Act. /1/
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. In
reaching this conclusion, the Judge found that the home addresses were
necessary and relevant within the meaning of section 7114(b)(4) of the
Statute for the Union to carry out its representational obligations;
that the alternative means of communicating with unit employees which
were available to the Union were not effective; that the disclosure of
home addresses was not prohibited by law or regulation; and that the
Union's need for home addresses in order to effectively communicate with
the employees it represents outweighed the minimal intrusion on employee
privacy rights which would result.
IV. Positions of the Parties
The positions of the parties are set forth in the Respondent's
exceptions and the General Counsel's opposition. /2/
In its exceptions, the Respondent essentially disagrees with the
Judge's findings and conclusions and asserts that it was not obligated
to furnish the requested information to the Union.
In its opposition, the General Counsel argues that the Judge's
findings and conclusions are supported by a preponderance of the
evidence and are consistent with law. The General Counsel therefore
urges the Authority to adopt the Judge's decision in its entirety.
V. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of home addresses of bargaining unit
employees to the exclusive representatives of these employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute, and meets the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available. Based on our decision on remand in the FHAFO case and in
agreement with the Judge in this case, we find that the Respondent was
required to furnish the Union with the names and home addresses of the
employees in the bargaining unit. Thus, we conclude that the
Respondent's refusal to furnish the requested information in this case
was in violation of 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, it is ordered that the Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the Federal Employees Metal
Trades Council, AFL-CIO, 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 action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the Federal Employees Metal Trades Council,
AFL-CIO, the exclusive representative of its employees, furnish it with
the names and home addresses of employees in the bargaining unit it
represents.
(b) Post at all its facilities where bargaining unit employees
represented by the Federal Employees Metal Trades Council, 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 senior official of the Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the Federal Employees
Metal Trades Council, AFL-CIO, the exclusive representative 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, upon request by the Federal Employees Metal Trades Council,
AFL-CIO, the exclusive representative of our employees, furnish it with
the names and home addresses of all employees in the bargaining unit it
represents.
(Activity). . .
Dated:. . . By: (Signature) (Title). . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone
number is: (617) 223-0920.
Case No. 1-CA-40290
DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD (PORTSMOUTH, NEW
HAMPSHIRE)
Respondent
and
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
Charging Party
Mr. Thomas F. Wood
Mr. Richard H. Greenberg
For the Respondent
Mr. Stephen Perry
For the Charging Party
Marilyn H. Zuckerman, Esquire
For the General Counsel
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 I, Federal Labor Relations Authority,
Boston, Massachusetts against the Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire (Respondent), based on an
amended charge filed by the Federal Employees Metal Trades Council,
AFL-CIO (Charging Party or Union). The complaint alleged, in substance,
that Respondent 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 to the Union the names and
addresses of bargaining unit employees represented by the Union.
Respondent's answer admitted the jurisdictional allegations as to the
Respondent, Charging Party, and the charge, but denied that the
requested information fell within the scope of section 7114(b)(4) of the
Statute and that it violated the Statute.
A hearing was held in Portsmouth, New Hampshire. The Respondent,
Charging Party, and the General Counsel were represented and afforded
full opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and General Counsel, FLRA filed helpful briefs. Based on the entire
record, including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
At all times material, the Union has been recognized as the exclusive
representative of an appropriate unit of Respondent's employees. The
current collective bargaining agreement between the parties became
effective October 15, 1981.
The Request and The Anwser
By letter dated May 17, 1984, the Union requested that the Respondent
furnish it with "a complete listing of all unit employees and their
telephone numbers and current addresses." /3/ Both prior to and
subsequent to the request, Union representatives advised management that
the information was necessary in order to represent all unit employees.
Union representatives explained that the Union needed the information in
order to contact unit employees with active grievances who were on leave
at their homes regarding the processing of their grievances. The Union
also wanted to send all unit employees a monthly Union newsletter which
would "explain general employee benefits, offer insurance premium which
aren't offered by the Federal Government, et cetera."
By letter dated May 24, 1984 Respondent formally replied to the
request. The letter stated, in part, as follows:
The telephone numbers and current addresses of unit employees is
not information available under the provisions of the Federal
Service Labor-Management Relations Statute or the current
Agreement between the parties. Furthermore, that information is
not subject to disclosure under the provisions of the Privacy Act
of 1974.
At the present time, your organization receives a semi-annual
eligibility listing of all unit employees. Current addresses and
telephone numbers may be requested from individual employees
during non-duty hours; however, the employees are under no
obligation to release such information.
Availability of Employee Addresses
Respondent maintains the home addresses of employee's in official
personnel folders and on Roladex circular files in the shops and main
office. Such information, along with other personnel information, is
secured at night in locked cabinets or offices. Access to home
addresses and telephone numbers is limited and strictly enforced. Some
employees have from time to time expressed concern to personnel
employees that individuals "that had no business getting it would have
access to their personal information." They have been assured that names
and home addresses would only be released to persons who have a need to
know on an official basis.
Chapter 294 of the Federal Personnel Manual (FPM) sets forth the
instructions of the Office of Personnel Management concerning the
availability of information to the public under the Freedom of
Information Act, 5 U.S.C. Section 552. Appendix C to Subchapter 7,
"Guides for Responding to Labor Organization Requests for Names of
Employees and Identifying Information," specifically states:
Agencies should not comply with requests from labor organizations
for lists of home addresses or home telephone numbers of
employees. Official release of this information would be an
unwarranted intrusion into an employee's personal privacy.
See also 5 C.F.R. Part 294, Subpart G - Official Personnel Folder
(1984); FPM Letter 294-6, July 25, 1977. But see FPM Supplement 711-1,
Instruction 18 (August 10, 1978); 45 FR 78415, 78417 (November 25,
1980); 47 FR 16489 (April 16, 1982); 49 FR 36954, 36956 (September 20,
1984) (information may be disclosed to officials of labor organizations
when relevant and necessary to their duties of exclusive
representation).
Union Difficulty in Contacting Grievants
There are about 130 grievances filed by the Union each month. The
only instance reflected in the record where the Union has been unable to
contact a bargaining unit employee concerning the processing of a
grievance occurred in 1982. Steward Stephen Perry was representing
employee Peter Hamlin. Perry testified that because he did not have
Hamlin's home address he could not contact Hamlin at home and could not
pursue Hamlin's grievance from the second to the third step within the
contractual time frames. It is undisputed that the parties agreement
provides for the extension of the time limits under the grievance
procedure. Such extensions are common. Perry testified that he spoke
with his chief steward, Richard Ian, concerning the possibility of
requesting a waiver of the time limits in Hamlin's grievance, but Ian
refused, saying he wanted to "stick strictly to the time limit" because
the Respondent had extended the time limits so much "that he couldn't
keep his schedule straight". As a result, no waiver was requested
concerning the Hamlin grievance.
Circumstances Relating to Union Access to Employees
Portsmouth Naval Shipyard is situated on an island about 275 acres in
size. There are two entrance bridges. Employees enter by cars, buses,
and vans or by foot over four sidewalks. There are parking areas inside
and outside the shipyard.
There are close to 9,000 employees working at the shipyard, about
5,500 of whom are in the bargaining unit of the Charging Party.
Approximately 2,500 bargaining unit members are members of the Union on
dues deduction. The record does not reflect the number of bargaining
unit employees, if any, who are members of the Union but are not on dues
deduction. Employees work three shifts. Most of the bargaining unit
employees work in a controlled industrial area approximately 80 acres in
size.
The Union uses the following means to communicate with bargaining
unit employees:
a. List of bargaining unit employees. Pursuant to Article 35,
Section 1 of the collective bargaining agreement, Respondent furnishes
the Union semiannually an up-to-date list of all unit employees by name,
job/position title, grade, check number, and type of appointment. The
chief spokesman for the Union stated during negotiations for the
agreement that the Union needed the job/position title and type of
appointment information on employees so that the Union could solicit new
members.
b. Bulletin boards. Under Article 35, Section 7 of the agreement,
Respondent provides the Union at least one bulletin board or space on
existing bulletin boards in each shop for posting notices concerning
Union recreational and social activities, elections, and meetings.
Other information can be posted only with Respondent's consent.
Shipyard rules do not permit employees to view the bulletin board on
work time; however, enforcement of this rule varies among the
supervisors, and some supervisors do permit it.
c. New employees' orientation. By Article 5, Section 6 of the
agreement, an appropriate Union representative is provided an
opportunity to meet with all new employees in a shop or code to given
them a brief outline of the Union's function.
d. Officers and stewards. Under the provisions of Article 7 of the
agreement, the Union has three officers who spend 40 hours a week on
official time. The Union also has 17 chief stewards and 55 stewards to
perform representational functions. The ratio is one steward or chief
steward for each 75 employees. The agreement provides that permission
will be secured for an employee-steward visit and the purpose of the
visit will be explained to the appropriate supervisor. This formal
procedure is generally not followed except where there are personality
problems between the steward and supervisor. A steward can generally
approach an employee within his work area for a brief visit, such as to
secure the correct address of a Union member, without special
permission. Employees in the bargaining unit are distinguishable from
non-unit employees, such as supervisors, by the color of the hard hats
they are required to wear. A shop steward would be familiar with almost
all of the employees in his work area even without the hard hats.
Stewards do not receive official time for distribution of literature or
for polling employees.
e. Handbilling. The Union on several occasions in the past has
distributed material relating to important issues to bargaining unit
employees by direct handbilling. Handbilling must be performed during
non-duty hours. If it involved matters of a political nature, the
handbilling has been done off the premises at the entrances while
employees are coming to work. There is no way to distinguish unit
employees from the non-unit employees and supervisors among the
approximately 9,000 employees of the shipyard unless some are personally
recognized by the Union member doing the handbilling. The commotion of
large numbers of employees coming to work and the three shifts make
handbilling of all employees very difficult. Where the issues have
strictly involved the shipyard, handbilling has been performed inside
the shipyard by employees who are off-duty giving literature to
employees who are also off-duty. In both cases, whether the handbilling
was done outside or inside the shipyard, large quantities of the
literature have been left at time clocks and lunch rooms where employees
congregate.
f. Telephone. Union officers are able to use the telephones in the
Union office to contact individual employees by telephone at their work
locations. If the telephone extension is not known, it must be secured
from the personnel office. It is difficult to contact employees working
on a submarine or drydock. There may be two or three telephone
extensions for the 200-400 employees working on a submarine and one
telephone extension for those working in the drydock.
g. Union meetings. The Union and affiliated locals hold meetings
once a month on varying dates. The Union may post notices of these
meetings on bulletin boards. Non-members of the Union do not generally
come to the meetings.
h. Internal mail system. The Union has used the internal mail
system to send documents or letters to management offices concerning
representational matters and to individual employees concerning their
grievances. There is no evidence that it is an established practice for
the Union to use the internal mail system for mass mailings to all
employees.
i. Direct mail. The Union has in its possession the names and
addresses of all of its members. These are obtained from application
forms and dues deduction forms. In the past the Union and Locals have
occasionally used the lists to send out newsletters to members' homes
during election campaigns or to request feedback for contract proposals.
/4/ Ten years ago an insurance company was authorized to use the
mailing list on at least one occasion in an attempt to sell insurance to
Union members. Following complaints from members, additional requests
from the same company were turned down.
The information concerning Union members, including their names,
addresses, and other information, is maintained by the Union in the form
of address cards which are physically located in open trays on top of
file cabinets in the Union office. The address cards are not secured
and are accessible to anyone who has access to the Union office. The
names and addresses of Union members have also recently been added to a
computer which will automatically affix gummed address labels to the
proposed monthly newsletter. The Union wants to add to this computer
file the home addresses of all unit employees who are not Union members
so that they too may receive the newsletter.
Discussion, Conclusion, and Recommendations
The issue for determination is whether Respondent violated section
7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union
with the home addresses of bargaining unit employees. The General
Counsel claims that (1) the home addresses are presumptively relevant
and necessary information; (2)the Union, in any event, demonstrated
that the information requested was necessary and relevant; (3) the
names and home addresses are disclosable under the Statute
notwithstanding the Privacy Act or Federal Personnel Manual; (4) there
is no obligation for an exclusive representative to prove that it was
not feasible to reach bargaining unit employees through alternative
means; and (5), to the extent relevant, all alternative means of access
are insufficient.
Respondent defends on the basis that (1) the information requested is
not relevant and necessary under section 7114(b)(4) of the Statute; (2)
the Charging Party has other adequate means of communicating with
bargaining unit employees; and (3) Respondent is prohibited by law from
releasing employees' home addresses.
As pertinent here, section 7114(b)(4) /5/ of the Statute requires an
agency, upon request, to furnish an exclusive representative with data
which is "necessary for full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining." It
is well established that under section 7114(b)(4) of the Statute a union
is entitled to receive information necessary to the performance of its
representational responsibilities including negotiations, administration
of the collective bargaining agreement, and the effective evaluation and
processing of grievances.
An exclusive representative is responsible for representing the
interests of all employees in the unit (section 7114(a)(1)) and must
have effective means of communicating with them. Here the Union is
seeking the home addresses of all employees in the unit in order to
contact employees with active grievances and to send all unit employees
a monthly newsletter. The publication of a newsletter is a common means
used by organizations to present information, reports, analyses, and
forecasts to members or other special audiences. Newsletters are also
often used to seek responses or other actions. Such a newsletter can be
a very effective means of communication. Therefore, the home addresses
of bargaining unit employees are relevant in this respect to the Union's
carrying out of its representational obligations and "for full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining."
However, since furnishing the home addresses of employees impinges to
some degree on the personal privacy of employees, it is necessary to
determine whether the Union has other effective means of communicating
with the employees. Cf. Internal Revenue Service, Office of the
District Director, Jacksonville District, Jacksonville, Florida, 2
A/SLMR 214, affirmed FLRC No. 72A-50, 2 FLRC 106 (1974). I agree with
the General Counsel that the other means available to the Union are
ineffective for the intended purpose of sending newsletters to all unit
employees. /6/ Dissemination of a newsletter or its contents to all
unit employees by means of bulletin boards, new employee's orientation,
officers and stewards on non-duty time, handbilling on non-duty time,
telephone, and union meetings would be a cumbersome, inefficient, and a
hit or miss proposition in terms of reaching all unit employees. The
record does not reflect that the internal mail system can be used for
mass mailings to all employees. The use of the U.S. mails would be the
most reliable means of reaching all unit employees with a lewsletter.
Therefore, the home addresses of employees are "necessary for full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining."
Section 7114(b)(4) of the Statute requires an agency to furnish data
only "to the extent not prohibited by law". The Freedom of Information
Act, 5 U.S.C. Section 552, as amended, provides that information in the
possession of government agencies is available to the public except when
the information is subject to one of the exemptions of the act. For
example, personnel and similar files cannot be released where disclosure
would constitute a clearly unwarranted invasion of personal privacy (5
U.S.C. Section 552(b)(6)). Chapter 294 of the Federal Personnel Manual
sets forth the instructions to all government agencies concerning the
availability of information to the public under the Freedom of
Information Act. Appendix C to Subchapter 7, "Guides for Responding to
Labor Organization Requests for Names of Employees and Identifying
Information," specifically states that agencies should not furnish labor
organizations with employees' home addresses or telephone numbers since
release of such information would constitute an "unwarranted intrusion
into an employee's personal privacy". This instruction is labeled a
"Guide" and must be treated as such. The Office of Personnel Management
has otherwise recognized in publishing notices of its systems of records
that a "routine use" of information in employee personnel records, /7/
including home residences and mailing addresses, is disclosure "to
officials of labor organizations recognized under 5 U.S.C. Chapter 71
when relevant and necessary to their duties of exclusive representation
concerning personnel policies, practices, and matters affecting working
conditions." See FPM Supplement 711-1, Instruction 18 (August 10, 1978);
45 FR 78415, 78417 (November 25, 1980); 47 FR 16489 (April 16, 1982);
49 FR 36954, 36956 (September 20, 1984). Therefore, it is concluded
that the disclosure of home addresses is not specifically prohibited by
law or regulation.
Since, as noted, the furnishing of employee home addresses would
impinge to some degree on the employee's rights to privacy, the needs of
a labor organization for data to effectively represent the unit
employees must be balanced against the employee's right to privacy. The
furnishing by the Respondent to the Union of employee home addresses for
representational pruposes would not constitute an unwarranted intrusion
on the privacy of such employees. The Union is not an unknown, outside
organization to such employees. It has a lawful relationship to them.
There is no evidence that the Union would make any improper use of the
home addresses or, in light of the Union's previous bad experience with
outside organizations using their mailing list some years ago, that such
organizations would be given access to the addresses again. The daily
personal mail of most persons brings a steady barrage of unsolicited
flyers, advertisements, and solicitations. Employees may have to spend
a moment or two deciding whether to read the Union's newsletter or to
toss it out along with other unwanted mail. Considering the needs of
the Union to effectively communicate with unit employees, any intrusion
on employees' personal privacy caused by the furnishing of home
addresses to the Union for representational purposes is minimal and not
unwarranted.
Respondent's conduct in refusing to grant the Union's request for the
addresses of unit employees constitutes a failure to comply with section
7114(b)(4) of the Statute in violation of sections 7116(a)(1) and (8)
and a refusal to bargain in good faith with the Union in violation of
sections 7116(a)(1) and (5) of the Statute.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
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 Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire shall:
1. Cease and desist from:
(a) Refusing or failing to furnish upon request of the Federal
Employees Metal Trades Council AFL-CIO, the addresses of all unit
employees.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Upon request, furnish to the Federal Employees Metal Trades
Council, AFL-CIO, the names and addresses of all unit employees.
(b) Post at its facilities at the Portsmouth Naval Shipyard,
copies of the attached Notice marked "Appendix" on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by the Commander, Portsmouth Naval Shipyard and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Commander shall take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, Region I, Federal Labor Relations Authority, Boston,
Massachusetts, in writing, within 30 days from the date of this
order, as to what steps have been taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: April 25, 1985
Washington, DC
FOOTNOTES
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) When the Authority decided, for reasons discussed more fully in
FHAFO, to review the entire issue of the release of employees' names and
home addresses and invited agencies, unions, and interested persons to
submit amicus briefs addressing the issue, this case was one of those
listed as being under consideration. While the parties in this case did
not submit amicus briefs, the Department of the Navy and the Metal
Trades Department of the AFL-CIO did file amicus briefs outlining their
positions.
(3) The Union has withdrawn its request for the home telephone
numbers
(4) The former recording secretary of the Union testified without
contradiction that the Union solicited comments concerning contract
proposals from Union members, but that he was unaware of any formal
solicitation of comments from non-members; further, the collective
bargaining agreement is subject to ratification only by Union members
(5) Section 7114(b)(4) provides that 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 porhibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)"
(6) With respect to the Union's alleged need for all home addresses
in order to contact employees with active grievances, the Union officer
and steward network at the shipyard should normally suffice to obtain
the home addresses of employees with active grievances. This should be
one of the first items of information obtained during the initial
steward contact with a grievant. In those emergency situations where
the information is not available to the Union and it is necessary for a
steward to contact a grievant at home, it could be argued that the
agency would be required to furnish the home address pursuant to section
7114(b)(4) for the effective processing of a grievance.
(7) The official personnel folder of each employee is under the
jurisdiction and control of, and is part of the records of, the Office
of Personnel Management, 5 C.F.R. Section 293.303 (1984).
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 or fail to furnish upon request of the Federal
Employees Metal Trades Council, AFL-CIO, the addresses of all unit
employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to the Federal Employees Metal Trades
Council, AFL-CIO, the names and addresses of all unit employees.
(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 I,
whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and
whose telephone number is: (617) 223-0920.
24 FLRA NO. 26
Dep't of the Air Force, H.Q. Air Force Logistics Command.
Wright-Patterson Air Force Base, Ohio and AFGE, Council 214, Case No.
3-CA-40259 (Decided November 26, 1986)
STATUTE
7104(f)(2)(B)
7116(a)(1) and (8)
7118
7131 (a) and (c)
7134
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) 7116(a)(8)
7131(c)
CODE OF FEDERAL REGULATIONS
5 C.F.R. 1201.33
28 C.F.R. PART 21
OFFICIAL TIME (7131)
AUTHORITY MANDATED PARTICIPATION IN ANY PHASE OF A PROCEEDING
TRAVEL AND PER DIEM
AUTHORITY MANDATED PARTICIPATION IN A PROCEEDING (7131(c))
PROCEDURE
FORUMS
ALJ DECISIONS, APPEALS OTHER THAN FILING EXCEPTIONS
RULINGS MAY NOT BE COLLATERALLY ATTACKED IN LATER CASE
UNFAIR LABOR PRACTICES, PROCEDURE
WITNESSES
OFFICIAL TIME
TRAVEL AND PER DIEM
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
OFFICIAL TIME, PROVIDE
ANNUAL LEAVE RESTORED
UNITED STATES CODE
5 U.S.C. 5751
5 U.S.C. 5751(a)
5 U.S.C. 6322
5 U.S.C. 5701 ET SEQ. (TRAVEL EXPENSE ACT)
DIGEST NOTES
The activity violated sections 7116(a)(1), (5) and 7131(c) when it
refused to provide official time, travel and per diem expenses to an
employee who had been subpoenaed by the General Counsel of the FLRA to
appear as a witness at a hearing. Under section 7131(c), "the Authority
shall determine whether any employee participating for, or on behalf of,
a labor organization in any phase of proceedings before the Authority
shall be authorized official time for such purpose during the time the
employee otherwise would be in duty status."
The Authority's regulations (5 C.F.R. 2429.13) providing for official
time and payment of travel and per diem expenses in these circumstances
is a continuation of the practice established by the Assistant Secretary
of Labor for Labor-Management Relations for the conduct of hearings
under Executive Order 11491, as amended. Presumably, Congress was aware
of this practice when it enacted the Statute, however, unlike in some
other areas, there is no indication in the legislative history of any
Congressional intent to change this practice. The regulation assures
employees whose participation in a proceeding is deemed necessary by an
Authority agent that they may testify without concern over whether
authorization for necessary travel and per diem expenses will be granted
by their employing agency. This practice is consistent with that of
other Federal agencies having analogous responsibilities to adjudicate
matters involving federal employees.
Case No. 5-CA-40259
DEPARTMENT OF THE AIR FORCE HEADQUARTERS AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
American Federation Of Government Employees, Council 214, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondent. The issue presented is whether the Respondent's failure and
refusal to provide official time and travel and per diem expenses to
employee Paul Palacio, who was subpoenaed by the General Counsel to
appear in a related unfair labor practice hearing, constituted a failure
to comply with section 7131(c) of the Federal Service Labor-Management
Relations Statute (the Statute) and section 2429.13 of the Authority's
Regulations in violation of section 7116(a)(1) and (8) of the Statute.
In agreement with the Judge, we find that the Respondent's conduct
violated the Statute.
II. Background
Prior to the unfair labor practice hearing in the related case (Case
No. 5-CA-30322, Department of the Air Force, Headquarters Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA No. 56
(1986)), the Respondent informed employee Palacio that his request for
official time and travel and per diem expenses related to his appearance
as a subpoenaed witness in that case was denied. At the hearing in Case
No. 5-CA-30322, Administrative Law Judge Chaitovitz denied Respondent's
motion to revoke the subpoenas. Palacio traveled at his own expense and
used annual leave for that portion of the hearing during which he was a
witness. He had not been reimbursed by Respondent for these expenses,
nor has the annual leave he used been restored.
III. Judge's Decision
The Administrative Law Judge in this case, Judge Oliver, concluded
that the Respondent's denial of official time and its refusal to provide
travel and per diem expenses to Palacio constituted a failure to comply
with section 7131(c) of the Statute and section 2429.13 of the
Authority's Regulations. He therefore found a violation of section
7116(a)(1) and (8).
In concluding that the Respondent's denial of official time
constituted a failure to comply with section 7131(c) of the Statute,
Judge Oliver noted that in Department of Health and Human Services,
Social Security Administration, Great Lakes Program Service Center, 10
FLRA, 510 (1982), the Authority held that once the participation of an
employee has been deemed necessary by a designated agent of the
Authority, the agency has no discretion to determine whether or not an
employee should be on official time. Judge Oliver also pointed out that
the Authority has held that an agency is required to provide official
time in the amount determined by the Authority's designated agent, and
has rejected arguments like those by Respondent that such a
determination is subject to a "reasonableness" standard.
As to Judge Chaitovitz's denial in the related case of Respondent's
motion to revoke the subpoenas, Judge Oliver noted that Judge Chaitovitz
had the power, subject to Authority review, to determine whether
Palacio's participation in the hearing was necessary. Judge Oliver
stated that the Authority's regulations provide procedures whereby Judge
Chaitovitz's ruling could be reviewed in that case. Accordingly, Judge
Oliver concluded that Judge Chaitovitz's ruling could not be
collaterally attacked in this case and that given the ruling by Judge
Chaitovitz, "Respondent was obligated to provide Mr. Palacio with
official time and follow the Authority procedures for review if it
wished to challenge the Judge's decision."
With respect to Respondent's refusal to pay Palacio's travel and per
diem expenses, Judge Oliver noted that the Authority's interpretation of
section 7131(c) of the Statute was set forth in section 2429.13 of its
Regulations, which provides that "necessary transportation and per diem
expenses shall be paid by the employing activity or agency" for an
employee on official time whose participation in an Authority proceeding
is deemed necessary. The Judge found that, in view of section 2429.13
of the Regulations, Respondent failed to comply with section 7131(c) of
the Statute by refusing to provide travel and per diem expenses to
Palacio and thereby violated section 7116(a)(1) and (8) of the Statute,
as alleged by the General Counsel.
IV. Positions of the Parties
The Respondent filed a motion with the Authority seeking
consolidation of this case with the related unfair labor practice case
noted above. The Respondent also filed exceptions to the Judge's
Decision, specifically to the Judge's conclusion that under section
7131(c) of the Statute and section 2429.13 of the Regulations Palacio
was entitled to travel and per diem expenses based on his entitlement to
official time. The Respondent's exceptions essentially repeat arguments
made to the Judge challenging the lawfulness of the Authority's
Regulations. The Respondent also excepted to the Judge's recommended
Order requiring that Palacio be provided with official time, contending
that the validity of the subpoenas concerning Palacio had not yet been
determined in the related case.
V. Analysis
A. Motion to Consolidate
For the reasons stated in Department of the Air Force, Headquarters
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22
FLRA No. 56 (1986), the Authority denies the Respondent's motion to
consolidate.
B. Official Time
In agreement with the Judge, we find that the Respondent's denial of
official time to Palacio constituted a failure to comply with section
7131(c) of the Statute in violation of section 7116(a)(1) and (8) of the
Statute. As the Judge noted, once Palacio's participation was deemed
necessary by an agent of the Authority, Respondent was obligated to
comply or to seek review in that proceeding as provided in the
Authority's Regulations; no collateral attack is permitted. In fact,
Respondent did seek review of that determination in Case No. 5-CA-30322,
and the Authority denied Respondent's exception. Wright-Patterson Air
Force Base, Ohio, 22 FLRA No. 56.
C. Travel and Per Diem Expenses
The Authority also adopts the Judge's conclusion that the
Respondent's denial of travel and per diem expenses to Palacio related
to his required participation in an unfair labor practice hearing
constituted a failure to comply with section 7131(c) of the Statute as
interpreted in section 2429.13 of the Authority's Regulations.
Therefore, Respondent's denial violated section 7116(a)(1) and (8) of
the Statute.
As noted above, Respondent in essence argues that section 2429.13 of
our Regulations is not in accordance with law. We disagree.
In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983), the Supreme Court held that an agency's obligation under section
7131(a) of the Statute to provide official time to employees
representing an exclusive representative in the negotiation of a
collective bargaining agreement does not require the agency to pay
travel and per diem expenses incurred by those employees. The Court
noted that the Authority had previously construed section 7131(c) in its
Regulations to require the payment of these expenses for employees on
official time participating in proceedings before the Authority, and the
Court stated: "We, of course, express no view as to whether different
considerations uniquely applicable to proceedings before the Authority
might justify the FLRA's interpretation of section 7131(c)." BATF v.
FLRA, 464 U.S. at 99 n.9. In our view, our interpretation of section
7131(c) as set forth in section 2429.13 of the Regulations is warranted
for the reasons discussed below.
Section 7131(c) of the Statute provides that "the Authority shall
determine whether any employee participating for, or on behalf of, a
labor organization in any phase of proceedings before the Authority
shall be authorized official time for such purpose during the time the
employee otherwise would be in a duty status." Pursuant to its authority
under section 7134 of the Statute to prescribe regulations to carry out
the provisions of the Statute, and consistent with its responsibilities
under section 7105 of the Statute, the Authority promulgated section
2429.13 of its Regulations as an interim regulation in 1979 which became
final in 1980. See 44 Fed. Reg. 44740, 44771 (1979) and 45 Fed. Reg.
3482 (1980).
Section 2429.13 was a continuation of the practice established by the
Assistant Secretary of Labor for Labor-Management Relations for the
conduct of hearings under Executive Order 11491, as amended. That
practice was reflected in 29 CFR Section 206.7(g), which was promulgated
in 1973 and provided that employees who had been determined to be
necessary as witnesses at a hearing shall be granted official time and
"(i)n addition, necessary transportation and travel and per diem
expenses shall be paid by the employing activity or agency." See 38 Fed.
Reg. 30875 (1973). That regulation was in effect throughout the
remainder of the Executive Order program. Presumably, Congress was
aware of this practice when it enacted the Statute; however, unlike in
some other areas, there is no indication in the legislative history of
any Congressional intent to change this practice.
Moreover, section 2429.13 assists in enabling the Authority to
develop complete records in proceedings before it so that the Authority
may carry out its responsibilities under the Statute. The regulation
assures employees whose participation in a proceeding is deemed
necessary by an Authority agent that they may testify without concern
over whether authorization for necessary travel and per diem expenses
will be granted by their employing agency. It also serves to expedite
the process by avoiding unnecessary procedural delays.
Finally, our practice as set forth in section 2429.13 is consistent
with that of other Federal agencies having analogous responsibilities to
adjudicate matters involving federal employees. See, for example, In re
Maisto, 28 MSPR 436 (1985) (Merit Systems Protection Board ordered
agency, pursuant to 5 C.F.R. Section 1201.33, to compensate employee who
testified at Board hearing for the time spent in transit to and from the
hearing and any time spent waiting to testify "as well as for expenses
incurred by the actual transportation to and from the hearing.").
Accordingly, in our view, section 2429.13 of the Authority's
Regulations is in accordance with law.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms these rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings, conclusions and recommend Order to the extent that
they are consistent with our decision.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of the Air Force, Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Denying official time, transportation, and per diem expenses to
an employee to participate in a hearing before the Federal Labor
Relations Authority when such participation has been deemed necessary by
any Administrative Law Judge, Regional Director, or other designated
agent of the Authority.
(b) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Provide official time to Paul Palacio for his participation in an
unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave used for the purpose; and, in addition, upon submission of
a properly documented voucher, reimburse him for transportation and per
diem expenses incurred.
(b) Post at its facilities at Wright-Patterson Air Force Base and
Kelly 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 Commander, Air Force Logistics
Command, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(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 herewith.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT deny official time to an employee to participate in a
hearing before the Federal Labor Relations Authority when such
participation has been deemed necessary by any Administrative Law Judge,
Regional Director, or other designated agent of the Authority.
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 provide official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave used for that purpose; and, in addition, upon submission
of a properly documented voucher, reimburse him for transportation and
per diem expenses incurred.
(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 Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
Case No.: 5-CA-40259
Department of the Air Force, Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio
Respondent
and
American Federation of Government Employees, Council 214, AFL-CIO
Charging Party
Major Charles L. Brower, Esquire
Major W. Kirk Underwood, Esquire
For the Respondent
Mr. Paul Palacio
For the Charging Party
Sandra LeBold, 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 Five, Federal Labor Relations Authority,
Chicago, Illinois, against the Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio (Respondent) based on an amended charge filed by the American
Federation of Government Employees, Council 214, AFL-CIO (Charging Party
or Union). The complaint alleged, in substance, that Respondent
violated sections 7116(a)(1) and (8) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
Statute), by failing and refusing to comply with section 7131(c) of the
Statute and section 2429.13 of the Authority's Rules and Regulations.
More specifically, the complaint alleges that Respondent failed and
refused to provide official time, travel, and per diem expenses to
Respondent's employee, Paul Palacio, to participate in an unfair labor
practice hearing before the Authority in Case No. 5-CA-30322, as
requested and deemed necessary by a Regional Director of the Authority.
The complaint also alleges that Respondent violated section 7116(a)(1)
and (8) by each of the alleged acts.
Respondent's answer admitted the jurisdictional allegations as to the
Respondent, Charging Party, and the charge, but denied any violation of
the Statute.
A hearing was held in Dayton, Ohio. The Respondent, Charging Party,
and the General Counsel were represented and afforded full opportunity
to be heard, adduce relevant evidence, examine and cross-examine
witnesses, and file post-hearing briefs. Respondent and the General
Counsel filed helpful briefs. Based on the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. The American Federation of Government Employees, AFL-CIO (AFGE)
is the collective bargaining representative of a consolidated
appropriate unit of Respondent's employees located at, among other
places, Wright-Patterson Air Force Base (AFB), Dayton, Ohio; Hill AFB,
Ogden, Utah; Robins AFB, Warner Robins, Georgia; McClellan AFB,
Sacramento, California; Kelly AFB, San Antonio, Texas; and Tinker AFB,
Oklahoma City, Oklahoma.
2. At all times material herein the Charging Party, AFGE, Council
214, has been an agent of AFGE with respect to bargaining with
Respondent on behalf of the collective bargaining unit.
3. At all times material, Paul Palacio has been, and is now,
president of the Charging Party. As president, Mr. Palacio is assigned
to Wright-Patterson AFB in Dayton, Ohio, where Headquarters, Air Force
Logistics Command (AFLC) is located, although technically Palacio is
assigned to Kelly AFB as a machine tool operator. Section 4.12 of the
Master Labor Agreement between Respondent and the Charging Party
authorizes one Union representative to be on 100% official time at
Headquarters, AFLC. Palacio is now, and has been at various times, that
representative, as more fully explained herein.
4. On February 1, 1984, the Regional Director, Federal Labor
Relations Authority, Chicago Region, Chicago, Illinois issued a subpena
to Palacio at the request of Judith Ramey, Counsel for the General
Counsel, FLRA, requiring that he appear before an administrative Law
Judge on March 12, 1984 at the Murray Federal Building, Oklahoma City,
Oklahoma to testify in the matter of Department of the Air Force,
Headquarters AFLC, Wright-Patterson Air Force Base, Ohio (Respondent)
and American Federation of Government Employees, Council 214, (Charging
Party), Case No. 5-CA-30322, involving the same parties as the instant
case. The subpena stated on its face:
NOTICE TO WITNESS - Witness fees and mileage shall be paid by
the party at whose instance the witness appears, except that any
witness who is employed by the Federal Government shall be granted
official time and be paid necessary transportation and per diem
expenses by the employing activity or agency.
5. The complaint in Case No. 5-CA-30322 alleged that on or about the
month of February 1983, 63 supervisors, each named in the complaint,
established and/or implemented a quota system for rating employees under
the civilian potential appraisal system under which system supervisors
rated employees in accordance with established numeric quotas for the
distribution of rating scores; that the use of quotas constituted a
change in conditions of employment; and that Respondent did not give
the Union notice and opportunity to bargain about the impact and
implementation of such change in violation of section 7116(a)(1) and (5)
of the Statute. Eleven of the 63 supervisors were assigned to
Wright-Patterson AFB, Ohio; 16 to Hill AFB, Utah; 6 to Robins AFB,
Georgia; 11 to McClellan AFB, California; 3 to Kelly AFB, Texas, and
16 to Tinker AFB, Oklahoma. The complaint did not allege that these
quotas were implemented in accordance with a command-wide policy. The
Regional Director ordered the case to be heard at Dayton, Ohio.
6. Due to the large number of geographically dispersed witnesses in
Case No. 5-CA-30322, the Administrative Law Judge assigned to hear the
case, Samuel A. Chaitovitz, ruled that the hearing would be held in
three locations: Dayton, Ohio, Oklahoma City, Oklahoma and Macon,
Georgia. Mr. Palacio was also subpenaed to appear on February 8, 1984
in Dayton, Ohio and April 11, 1984 in Macon, Georgia. /1/
7. On February 6, 1984, Palacio sent a copy of his three subpenas to
General James P. Mullins and requested official time, travel and per
diem expenses in order to comply with the subpenas.
8. On February 8, 1984, the first phase of the hearing opened in
Dayton, Ohio. Major Charles Brower, counsel for the Respondent, moved
that Administrative Law Judge Chaitovitz revoke Palacio's subpenas for
the Oklahoma City and Macon phases of the hearing on the grounds that
his testimony was not relevant to the proceeding at those locations.
The motion was argued, and Administrative Law Judge Chaitovitz
questioned counsel, as well as Mr. Palacio, who was representing the
Charging Party, concerning the necessity for Palacio's testimony in
Oklahoma City and Macon. /2/ When asked by Judge Chaitovitz, "Why is he
necessary?," Ms. Ramey, Counsel for the Geeral Counsel, replied,
. . . (T)he General Counsel does not know all of what testimony
will be presented by Respondent at the other locations (Oklahoma
City and Macon). There are witnesses on the tentative witness
list who have not been discussed and who even Respondent's counsel
has indicated he wasn't sure what their testimony might be because
they had been recommended to him as witnesses . . . by counsel at
the other bases. Consequently, . . . since I don't know what
rebuttal might be needed, I at least need to have Mr. Palacio
present as somebody who might possibly be able to rebut that
testimony. The General Counsel deems him to be a necessary
witness and the Regional Director has issued the necessary
subpoenas.
Judge Chaitovitz also ascertained from Mr. Palacio that he had been
the person who had been dealing with management generally on the problem
and was the person who received complaints from the various regional and
field representatives. Respondent's counsel countered that Mr. Palacio
possessed only hearsay knowledge of what had happened at the other
locations and that local union presidents at the other locations "can
satisfy any role that she thinks Mr. Palacio might be able to serve her
if he were at her side at these various locations." After hearing
argument, Judge Chaitovitz denied the motion to revoke, ruling as
follows:
. . . I recognize that in deciding whether a witness is
necessary, I am not to superimpose my judgment for that of counsel
trying a case. That counsel may have another witness that may or
may not serve the same purpose. I don't think if a witness is
reasonably related that I can say, "No, I'm going to make you use
someone else." I don't think my authority goes that far. I am not
going to revoke the subpoena, but I will permit the subpoena to
stand, because I think that Mr. Palacio is -- may reasonably be
expected to have relevant information that can be admissible with
respect to what happened at these other bases.
9. During the Dayton phase of the hearing on February 8, 1984, Mr.
Palacio testified during General Counsel's presentation of its
case-in-chief. He received, or, under the contract continued on,
official time. No travel and per diem expenses were required for
Palacio since he lives in Dayton.
10. By letter dated March 1, 1984, Respondent informed Palacio, in
response to his February 6, 1984 request, that travel and per diem
expenses would not be provided by Respondent.
11. By letter to Respondent dated March 6, 1984 Palacio repeated his
request for official time and travel and per diem expenses in order to
comply with the subpenas.
12. On March 8, 1984 Respondent reiterated its position that payment
of Palacio's travel expenses for the hearing in Oklahoma City and Macon
was not appropriate from Air Force funds. Respondent claimed
participation "is both redundant and irrelevant." Respondent noted that
Palacio had already testified during the Dayton phase of the case, that
he had been subpoenaed as a mere "potential rebuttal" witness, and that
his "potential rebuttal" testimony would be "nothing more than hearsay
evidence having little or no probative value." Respondent also stated
that the Oklahoma City phase was scheduled to last two weeks (March
12-23, 1984), and Mr. Palacio would not be needed as a potential
rebuttal witness until late in that 2-week period. Respondent noted
that Mr. Palacio was already scheduled to be on official time in
Oklahoma City beginning March 16, 1984 for several days in connection
with contract negotiations. Respondent stated it would have no
objection to his taking official time during the particular period in
order to provide the testimony.
13. On March 9, 1984, Palacio sent a copy of his Oklahoma City
subpena to E. Villanueva, his supervisor at Kelly AFB, Texas and
requested approval of official time to attend the hearing as directed by
the subpena. /3/ In the alternative, Mr. Palacio requested annual leave
to attend the hearing, but made it clear that this request was made
under protest. The Respondent answered Mr. Palacio in a letter dated
March 16, 1984, denying him official time but approving his annual leave
request.
14. Palacio traveled to Oklahoma City, Oklahoma from Dayton, Ohio
and testified at the hearing, which took place from March 12 through
March 14, 1984. /4/ Palacio was called during the merits of the Kelly
AFB case. He was asked two questions. He apparently remained until the
end of the hearing at the request of the General Counsel. Palacio did
not tesify as a rebuttal witness. Palacio used annual leave during this
period and was not reimbursed by Respondent for his transportation and
per diem expenses. /5/
Discussion, Conclusions, and Recommendations
Position of the Parties
The complaint alleges that Respondent failed to comply with section
7131(c) of the statute /6/ and section 2429.13 of the Authority's Rules
and Regulations /7/ by refusing to provide official time, travel, and
per diem expenses to Respondent's employee, Paul Palacio, to participate
in an unfair labor practice hearing, as requested and deemed necessary
by the Regional Director of the Authority, thus violating sections
7116(a)(1) and (8) of the Statute. /8/
With respect to official time, Respondent defends on the grounds that
Judge Chaitovitz abused his discretion when he determined that Palacio
was a necessary witness. Respondent claims that the General Counsel's
basis for subpenaing Palacio was incredibly vague; Mr. Palacio
possessed only hearsay knowledge of the allegations to be litigated;
local Union officials at Oklahoma City and Macon were available as
witnesses and just as suitable; and Mr. Palacio had already testified
during the Dayton phase with regard to all of his first-hand knowledge.
Respondent contends that even if Judge Chaitovitz properly determined
that Mr. Palacio was a "necessary" witness, that determination should be
subject to the application of a "reasonableness test."
The General Counsel maintains that the need for Mr. Palacio's
participation as a witness was made by the General Counsel prior to the
time the hearing had been convened; that Respondent was, therefore,
obligated to provide Palacio official time, travel, and per diem
according to Authority decisions; the General Counsel's determination
was not subject to a "reasonableness" standard; and if Respondent
disagreed with Judge Chaitovitz's ruling on its motion to revoke
Palacio's subpena, it must obtain review of that decision by filing
exceptions in that case and may not litigate the matter in this unfair
labor practice proceeding.
Official Time
As noted, section 7131(c) of the Statute empowers the Authority to
make determinations as to whether employees participating in proceedings
before it shall be authorized official time.
In this case the Regional Director, prior to the hearing, determined
that Palacio's participation as a witness in the hearing was necessary
by issuing a subpena at the request of counsel for the General Counsel.
Under section 7104(f)(2)(B) of the Statute the General Counsel is
empowered to "file and prosecute complaints" and such express authority
necessarily encompasses the manner in which the complaints are to be
prosecuted.
The Authority has held that once the participation of an employee has
been deemed necessary by a designated agent of the Authority, there is
no discretion in the agency to determine whether or not an employee
should be on official time. Department of Health and Human Services,
Social Security Administration, Great Lakes Program Service Center, 10
FLRA 510, 512 (1982). The Authority has also held that an agency is
required to provide official time in the amount requested by the
designated agent of the Authority and it has rejected recommended
decisions which would have applied a "reasonableness" standard to the
request. Department of the Treasury, Internal Revenue Service, 15 FLRA
No. 108, 15 FLRA 506 (1984); Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 13 FLRA No. 94, 13 FLRA 558 (1983);
Department of Health and Human Services, Social Security Administration
Great Lakes Program Service Center, 10 FLRA No. 90, 10 FLRA 510 (1982).
The Authority has held that "once an unfair labor practice hearing
has convened and before the close of the hearing, . . . the
Administrative Law Judge has the power under the Authority's Rules and
Regulations to determine, subject to review by the Authority, whether
the participation of any employee in any proceeding before the Authority
is necessary. . . ." Norfolk Naval Shipyard, Portsmouth, Virginia, 5
FLRA No. 105, 5 FLRA 788 (1981). At the outset of the hearing in Case
No. 5-CA-30322, Judge Chaitovitz heard argument as to whether Mr.
Palacio was a necessary witness in connection with Respondent's motion
to revoke Palacio's subpenas. Judge Chaitovitz denied to motion to
revoke. The Authority's Rules and Regulations, section 2423.26-29 and
2429.7(e), provide the procedures whereby his ruling may be reviewed in
that case. His ruling may not be collaterally attacked here as an abuse
of discretion. Given the ruling by the Administrative Law Judge,
Respondent was obligated to provide Mr. Palacio with official time and
follow the Authority procedures for review if it wished to challenge the
Judge's decision.
The Respondent's denial of official time to Mr. Palacio constitutes a
failure to comply with section 7131(c) in violation of section
7116(a)(1) and (8) of the Statute, as alleged.
Travel and Per Diem Expenses
With respect to transportation and per diem expenses, the Respondent
asserts that section 7131(c) of the Statute does not require an agency
to pay an employee transportation or per diem expenses; 5 C.F.R.
Section 2429.13 is not in accordance with law; entitlement to such
expenses is governed solely by 5 U.S.C. Section 5751 and Section 5702;
5 C.F.R. Section 2429.13 constitutes and unauthorized assumption by the
FLRA of a major policy decision properly made by Congress; and, even if
5 C.F.R. Section 2429.13 is given effect, Judge Chaitovitz abused his
discretion when he determined that Palacio was a necessary witness and
that determination should have been subject to a "reasonableness" test.
As noted, section 7131(c) of the Statute empowers the Authority to
make determinations as to whether employees participating in proceedings
before it shall be authorized official time. Section 7131(c) says
nothing about transportation or per diem expenses. The Authority,
however, in Interpretation and Guidance, 2 FLRA 265, 270 (1979), in
connection with the interpretation of section 7131(a), noted that it had
previously interpreted section 7131(c), in section 2429.13 of its
Regulations, as entitling the employee on such official time to
transportation and per diem expenses. See also U.S. Department of
Justice, Federal Prison System, 10 FLRA 662 (1982); Department of
Health and Human Services, Social Security Administration, Great Lakes
Program Service Center, 10 FLRA 510 (1982; Department of the Treasury,
Bureau of Alcohol, Tobacco and Firearms, 10 FLRA 10 (1982).
In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 114 LRRM 3393,
3399, 104 S. Ct. 439 (1983), the Supreme Court concluded that the
obligation of an agency under section 7131(a) of the Statute to provide
official time to employees representing an exclusive representative in
the negotiation of a collective bargaining agreement does not encompass
the payment of travel expenses and per diem allowances. The Court
explicitly stated that there is no reference in the Statute or its
legislative history to travel expenses and per diem allowances. 114
LRRM at 3399. The Supreme Court noted that the Authority had previously
construed section 7131(c) in its regulations to require the payment of
travel expenses and per diem expenses. The Court stated, "The fact that
the Authority interpreted two similar provisions of the Act consistently
does not, however, demonstrate that either interpretation is correct.
We, of course, express no view as to whether different considerations
uniquely applicable to proceedings before the Authority might justify
the FLRA's interpretation of Section 7131(c)." 114 LRRM at 3397, n. 9.
The Authority's regulations remain unchanged, and I am bound by its
interpretation of section 7131(c). Respondent's arguments that 5 C.F.R.
Section 2429.13 is not in accordance with law and constitutes an
unauthorized assumption by the FLRA of a major policy decision properly
made by Congress are more properly addressed by the Authority and the
courts. Respondent's position that Judge Chaitovitz abused his
discretion when he determined that Palacio was a necessary witness and
that determination should have been subject to a "reasonableness" test
are without merit for the reasons set out above. The Authority has
specifically rejected a "reasonableness test," and Respondent may
properly obtain review of Judge Chaitovitz's exercise of discretion in
Case No. 5-CA-30322.
It is noted that Palacio's participation as a witness subpenaed at
the request of the General Counsel also brought into operation section
2429.14 of the regulations which also references section 2429.13.
Section 2429.14 provides as follows:
Section 2429.14 Witness fees.
(a) Witnesses (whether appearing voluntarily, or under a
subpena) shall be paid the fee and mileage allowances which are
paid subpenaed witnesses in the courts of the United States:
Provided, That any witness who is employed by the Federal
Government shall not be entitled to receive witness fees in
addition to compensation received pursuant to Section 2429.13.
The statutory basis for section 2429.14 of the Regulations is section
7132 of the Statute /9/ which authorizes the Authority and its designees
to issue subpenas requiring the attendance and testimony of witnesses.
It provides that "(c) Witnesses (whether appearing voluntarily or under
subpena) shall be paid the same fee and mileage allowances which are
paid subpenaed witnesses in the courts of the United States." 28 U.S.C.
Section 1821 governs the payment of fees, per diem, and mileage to
witnesses in the courts of the United States. In general, witness fees
and mileage are paid by the party at whose instance the witness appears,
subject to the court's discretion to assess such expenses against a
party as part of the taxable costs of the suit. With regard to
witnesses who are employees of the United States, however, 5 U.S.C.
Section 5751 specifically provides the procedure for the payment of the
travel expenses of a witness who is summoned to testify on behalf of the
United States, or to testify in his official capacity or produce records
on behalf of a party other than the United States. /10/ 5 U.S.C.
Section 5751(a) provides as follows:
Section 5751. Travel expenses of witnesses
(a) Under such regulations as the Attorney General may
prescribe an employee as defined by section 205 of this title
(except an individual whose pay is disbursed by the Secretary of
the Senate or the Clerk of the House of Representatives) summoned,
or assigned by his agency, to testify or produce official records
on behalf of the United States is entitled to travel expenses
under subchapter I of this chapter. If the case involves the
activity in connection with which he is employed, the travel
expenses are paid from the appropriation otherwise available for
travel expenses of the employee under proper certification by a
certifying official of the agency concerned. If the case does not
involve its activity, the employing agency may advance or pay the
travel expenses of the employee, and later obtain reimbursement
from the agency properly chargeable with the travel expenses.
The implementing regulations of the Attorney General are contained in
28 C.F.R. Part 21 (1984) and provide, in part, that an employee
qualifying for the payment of travel expenses shall be paid at the rate
and in the amounts allowable for other purposes under the provisions of
5 U.S.C. Section 5701-5708. (11) See 28 C.F.R. Section 21.1(c) (1984).
In order for the employing agency to be chargeable for the employee's
travel expenses under section 5751(a), it must be found that the
employee was "summoned, or assigned by his agency to testify . . . on
behalf of the United States" and "the case involves the activity in
connection with which he is employed." Cf. B-160120, 46 Comp. Gen. 613
(1967). It is unnecessary to determine whether section 5751(a) would
apply in this instance as the complaint does not allege a specific
violation of section 7132(c) of the Statute and the General Counsel has
made no contention that Respondent was obligated to pay Palacio's travel
expenses pursuant to 5 U.S.C. Section 5751(a) or any other provision of
law other than section 7131(c).
Since the Authority has ruled that the obligation of an agency under
section 7131(c) of the Statute encompasses the payment of travel
expenses and per diem allowances, I am constrained to conclude that the
Respondent failed to comply with section 7131(c) by its refusal to
provide travel and per diem expenses to the employee and thereby
violated Section 7116 (a)(1) and (8) of the Statute, as alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
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 Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio shall:
1. Cease and desist from:
(a) Denying official time, transportation, and per diem
expenses to an employee to participate in a hearing before the
Federal Labor Relations Authority when such participation has been
deemed necessary by any Administrative Law Judge, Regional
Director, or other designated agent of the Authority.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Provide official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case
No. 5-CA-30322 from March 12 through March 14, 1984, and make him
whole for annual leave utilized for that purpose; and, in
addition, upon submission of a properly documented voucher,
reimburse him for transportation and per diem expenses incurred.
(b) Post at its facilities at Wright-Patterson Air Force Base
and Kelly Air Force Base copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by an authorized
official and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Respondent shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, Region Five, Federal Labor Relations Authority, Chicago,
Illinois, in writing, within 30 days from the date of this order,
as to what steps have been taken to comply herewith.
/s/ Garvin Lee Oliver
Administrative Law Judge
Dated: February 27, 1985
Washington, DC
FOOTNOTES
(1) The Macon subpena was subsequently revoked by the General
Counsel. Mr. Palacio was not present for the Macon phase of the hearing
either as a witness or as representative of the Charging Party.
(2) At the same time, Judge Chaitovitz denied a motion filed by
Palacio that Respondent pay his travel and per diem expenses in Oklahoma
City and Macon to act as the Charging Party's representative. Palacio
represented the Charging Party in Dayton and Oklahoma City. The
Charging Party did not enter an appearance in Macon.
(3) Due to the fact that Palacio was under subpena and required to
leave Wright-Patterson AFB, he had delegated his position as the Union
representative at Headquarters, AFLC, to another Union official and,
therefore, was no longer on 100% official time.
(4) Although it was originally anticipated that the hearing would
take two weeks, the time was drastically reduced due to various
stipulations and the General Counsel's withdrawal of allegations against
12 of the 31 supervisors named from Tinker, Kelly, and Hill AFBs.
(5) Palacio was on official time from March 16, 1984 to April 26,
1984 as chief negotiator for the Union during the negotiations of the
master labor agreement at Tinker Air Force Base, Oklahoma.
(6) Section 7131(c) provides:
(c) Except as provided in subsection (a) of this section, the
Authority shall determine whether any employee participating for,
or on behalf of, a labor organization in any phase of proceedings
before the Authority shall be authorized official time for such
purpose during the time the employee otherwise would be in a duty
status.
(7) Sections 2429.13 provides: Section 2429.13 Official time.
If the participation of any employee in any phase of any proceeding
before the Authority, including the investigation of unfair labor
practice charges and representation petitions and the participation in
hearings and representation elections, is deemed necessary by the
Authority, the General Counsel, any Administrative Law Judge, Regional
Director, Hearing Officer, or other agent of the Authority designated by
the Authority, such employee shall be granted official time for such
participation, including necessary travel time, as occurs during the
employee's regular work hours and when the employee would otherwise be
in a work or paid leave status. In addition, necessary transportation
and per diem expenses shall be paid by the employing activity or agency.
(8) Section 7116(a)(1) and (8) provides:
(a) For the purpose of this chapter, it shall be unfair labor
practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(9) Section 7132 provides, in relevant part:
(a) Any member of the Authority, the General Counsel, or the
Panel, any administrative law judge appointed by the Authority
under section 3105 of this title, and any employee of the
Authority designated by the Authority may --
(1) issue subpenas requiring the attendance and testimony of
witnesses and the production of of documentary or other evidence
from any place in the United States(.)
. . . .
(c) Witnesses (whether appearing voluntarily or under subpena)
shall be paid the same fee and mileage allowances which are paid
subpenaed witnesses in the courts of the United States.
(10) 5 U.S.C. Section 6322 provides that an employee summoned, or
assigned by his agency, to testify on behalf of the United States, or to
testify in his official capacity for a party other than the United
States "is performing official duty during the period. . . ." See also 5
C.F.R. Section 1201.33 (1984), which provides that Federal employee
witnesses testifying before the Merit System Protection Board at the
request of the presiding officer are in official duty status.
(11) 5 U.S.C. Sections 5702-5708 relate to the payment and
administration of travel expenses and per diem allowances for employees
acting in an official capacity.
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 deny official time to an employee to participate in a
hearing before the Federal Labor Relations Authority when such
participation has been deemed necessary by any Administrative Law Judge,
Regional Director, or other designated agent of the Authority.
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 provide official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave utilized for that purpose; and, in addition, upon
submission of a properly documented voucher, reimburse him for
transportation and per diem expenses incurred.
(Agency). . .
Dated: . . . By: (Signature). . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region Five,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago,
Illinois 60604 and whose telephone number is: (312) 353-6306.
24 FLRA NO. 25
National Border Patrol Council, AFGE and Dep't of Justice, INS, Case
Nos. 0-NG-664 and 0-NG-682 (Decided November 10, 1986)
STATUTE
7116(d)
7131(a)
SUBJECT MATTER INDEX ENTRIES
CODE OF FEDERAL REGULATIONS
5 C.F.R. 550.150-.164
COLLECTIVE BARGAINING PROCESS AND THE DUTY TO BARGAIN
QUESTION CONCERNING REPRESENTATION (QCR)
GROUND RULES
NEGOTIABILITY PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
AUTHORITY MISINTERPRETED APPLICABLE LAW (ALLEGED)
5 U.S.C. 5545(c)
AUTHORITY MISINTERPRETED APPROPRIATE REGULATION (ALLEGED)
5 C.F.R. 550.150-.164
INCORRECT FORUM ALLEGED
QUESTION CONCERNING REPRESENTATION PENDING (ALLEGED)
PREMIUM PAY
PREMIUM PAY
COLLECTIVE BARGAINING
EMPLOYEE'S PARTICIPATION IS A NEGOTIABLE GROUND RULE
UNITED STATES CODE
5 U.S.C. 5545(c)
DIGEST NOTES
The Authority rejected a request for reconsideration of two previous
negotiability decisions (23 FLRA No. 11 and 23 FLRA No. 17) concerning
the calculation of administratively uncontrollable overtime. Contrary
to the agency's claim that the Authority did not address a question
concerning representation (QCR) raised by a RO petition in either
decision, the Authority noted that the QCR was resolved and thus, no
longer pending, prior to the issuance of either of the two decisions.
Second, the agency's claim that the Authority misapplied precedent to
find that the union properly complied with section 2424.5 of the rules
in 23 FLRA No. 17 was without merit. The case relied upon by the agency
was inapposite. It involved an interpretation of section 7116(d) of the
Statute which precludes matters being raised under both the ULP
procedures and under a negotiated grievance procedure. Section 2424.5
of the Authority's rules at issue in this case does not preclude a
matter from being raised under both the negotiability and ULP procedures
but only provides that the Authority will not ordinarily process the
issue under both procedures simultaneously.
The agency's argument that the questions concerning the scope of the
duty to bargain raised in 23 FLRA No. 17 involves factual determinations
which, under established precedent, are to be resolved in other
appropriate proceedings, constitutes nothing more than disagreement with
the Authority's holding.
The agency argued that the Authority misinterpreted 5 U.S.C. 5545(c)
and 5 C.F.R. 550.150.-.164 governing the calculation of administratively
uncontrollable overtime; the proposals in both cases do constitute
attempts to bargain over rates of pay in violation of law; there is a
compelling need of the agency's regulation to bar negotiation of both
proposals; and the proposal in 23 FLRA No. 11 would violate section
7131(a) of the Statute and a decision of the Federal Labor Relations
Council precluding payment of AUO of collective bargaining negotiations.
The argument that the proposal in 23 FLRA No. 11 concerns bargaining
over rates of pay merely constitutes an attempt to argue a matter not
previously raised. The remaining arguments simply constituted
disagreements with the Authority's interpretation of the record and
legal determinations under applicable law and regulation.
Case No. 0-NG-664 23 FLRA No. 11 and Case No. 0-NG-682
23 FLRA No. 17
National Border Patrol Council, American Federation of Government
Employees, AFL-CIO
Union
and
Department Of Justice, Immigration And Naturalization Service
Agency
ORDER DENYING MOTION FOR RECONSIDERATION
This matter is before the Authority because of the Agency's request
for reconsideration of the Authority's Decisions and Orders on
Negotiability Issues of August 13 and 14, 1986, in the above-entitled
matters. /*/ The Union filed an opposition.
In the decision in 23 FLRA No. 11, the Authority rejected the
Agency's procedural arguments that a proposal concerning the calculation
of administratively uncontrollable overtime (AUO) for employees engaged
in collective bargaining negotiations exceeded the scope of impact and
implementation bargaining, and that negotiations over the proposal were
inappropriate due to a claimed pending question concerning
representation (QCR). Contrary to the Agency's substantive claims, the
Authority held that: The proposal did not conflict with 5 C.F.R.
Section 550.151-.164; no compelling need existed for an Agency
regulation, DOJ order 1551.4a, asserted as a bar to negotiations; and,
the proposal was not inconsistent with section 7131(a) of the Statute.
With respect to Union Proposal 1 in 23 FLRA No. 17, the Authority
rejected the Agency's procedural argument that a negotiability
determination was inappropriate since the Union had not complied with
section 2424.5 of the Authority's Rules and Regulations. Additionally,
as to any disagreement the parties may have regarding the scope of a
party settlement agreement, or the scope of impact and implementation
bargaining, the Authority concluded that such factual issues are
appropriately resolved in proceedings other than the negotiability
appeal. As to substantive issues, the Authority held that Union
Proposal 1, concerning the calculation of AUO payments for employees on
details, did not conflict with 5 U.S.C. Section 5545(c) or with 5 C.F.R.
Section 550.151-.164, was not an attempt to negotiate over rates of pay
and that a compelling need did not exist for the Agency regulation
asserted by the Agency as a bar to negotiations.
In its request for reconsideration of the two decisions, the Agency
makes a number of procedural and substantive arguments. Specifically,
as to its procedural arguments, the Agency claims that: 1) The
Authority did not address in either decision the effect of the QCR
stemming from a pending petition for exclusive recognition (RO); 2) the
Authority's determination that the Union complied with section 2424.5 of
the Authority Rules and Regulations in 23 FLRA No. 17 is inconsistent
with the Authority's decision in U.S. Department of Justice, Immigration
and Naturalization Service, and American Federation of Government
Employees, Local 2724, 20 FLRA No. 86 (1985); and 3) the Authority is
obligated under law to address all issues, factual as well as legal,
arising in a negotiability appeal. As to 3, the Agency further states
that, in any case, the questions raised in 23 FLRA No. 17 concerning the
scope of the duty to bargain under a settlement agreement and in the
context of impact and implementation bargaining, involve legal, not
factual issues, and thus, should have been addressed.
First, contrary to the Agency's claim that the Authority did not
address the QCR raised by the RO petition in either decision, we note
that the QCR was resolved and thus, no longer pending, prior to the
issuance of either of the two decisions. In any event, the Authority
specifically stated in 23 FLRA No. 11 that the question of how an
employee's participation in a particular set of negotiations will affect
that employee's future eligibility for premium pay is appropriately
within the scope of ground rules for those negotiations pursuant to the
agreement between the parties in settlement of an unfair labor practice
charge. Second, the Agency's claim that the Authority misapplied our
precedent to find that the Union properly complied with section 2424.5
of the rules in 23 FLRA No. 17 is without merit. The case relied upon
by the Agency is inapposite. It involved an interpretation of section
7116(d) of the Statute which precludes matters being raised under both
the ULP procedures of the Statute and under a negotiated grievance
procedure. Section 2424.5 of the Authority's rules at issue in this
case does not preclude a matter from being raised under both the
negotiability and ULP procedures but only provides that the Authority
will not ordinarily process the issue under both procedures
simultaneously. Third and finally, the Agency's last procedural
argument constitutes nothing more than a disagreement with the
Authority's determination that the questions concerning the scope of the
duty to bargain raised in 23 FLRA No. 17 involve, in addition to
possible legal issues, factual determinations which, under the
Authority's holding in 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), are to be resolved in other appropriate proceedings.
We turn now to the substantive arguments raised by the Agency in
support of its request for reconsideration. Here the Agency argues, in
essence, as follows: The Authority misinterpreted 5 U.S.C. Section
5545(c) and 5 C.F.R. Section 550.150-.164 governing the calculation of
AUO; the proposals in both cases do constitute attempts to bargain over
rates of pay in violation of law; there is a compelling need for the
Agency's regulation to bar negotiation of both proposals; and the
proposal in 23 FLRA No. 11 would violate section 7131(a) of the Statute
and a decision of the Federal Labor Relations Council (FLRC) precluding
payment of AUO for collective bargaining negotiations. The argument
that the proposal in 23 FLRA No. 11 concerns bargaining over rates of
pay merely constitutes an attempt to argue a matter not previously
raised and will not be considered further. The remaining arguments
raised by the Agency, including its reliance on a FLRC decision, in our
view, simply constitute disagreements with the Authority's
interpretation of the record and legal determinations that under
applicable law, including the Statute, and Government-wide regulations
the two proposals concerning the calculation period for AUO payments in
specified circumstances were negotiable.
Consequently, under these circumstances, the Agency has not
established any "extraordinary circumstances" within the meaning of
section 2429.17 of the Rules and Regulations.
Accordingly, the Agency's request for reconsideration is denied.
Issued, Washington, D.C., November 10, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In 23 FLRA No. 17 the Agency seeks reconsideration of the
Authority's Decision and Order on proposal 1 only.
24 FLRA NO. 24
International Federation of Professional and Technical Engineers,
Local 12 and Dep't of the Navy, Puget Sound Naval Shipyard, Case No.
O-NG-1003 (Decided November 21, 1986)
STATUTE
7105(a)(2)(D) and (E)
7117(a)(2) 3 SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY PROCEDURE
SPECIFICITY
PROPOSAL IS SUFFICIENTLY SPECIFIC AND DELIMITED
COMPELLING NEED (7117(a)(2))
AGENCY REGULATIONS FOR WHICH A COMPELLING WAS ALLEGED
AGENCY REGULATIONS MANDATED BY OUTSIDE AUTHORITY
DON, TRAVEL ADMINISTRATION REGULATIONS
ESSENTIAL TO THE ACCOMPLISHMENT OF THE AGENCY MISSION
DON, TRAVEL ADMINISTRATION REGULATIONS
TRAVEL
ALLOWANCES / PAYMENTS / REIMBURSEMENT OF EXPENSES
ADVANCE PAYMENTS PRIOR TO TRAVEL
WAIVER OF RIGHTS
DIGEST NOTES
A proposal is negotiable that would prohibit the agency from making
any changes to existing practices regarding the advance payment of
travel allowances. The agency sought to limit travel advances to 80% of
the estimated per diem and miscellaneous costs; not to make advance
travel payments for one day trips; not make travel advances more than
three days prior to the trip; and to require travelers who received
overpayments of allowances to make repayment within 15 days from the
date of the notification of overpayment. The proposal to make no change
was sufficiently specific and delimited for the Authority to measure
what is proposed for negotiation against specific statutory or
regulatory provisions alleged to bar negotiations. There was no
evidence that the union waived its right to negotiate on the proposal.
Finally, the Authority held that there was not a compelling need of an
agency regulation alleged to bar negotiations on the proposal. Contrary
to the agency's contentions, the agency's regulation alleged to bar
negotiations was not essential to the accomplishment of the agency's
mission nor was the agency's regulation mandated by an outside
authority.
Case No. 0-NG-1003
International Federation Of Professional And Technical Engineers,
Local 12
Union
and
Department Of The Navy Puget Sound Naval Shipyard
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 a Union proposal to rescind changes in the Agency's
regulations regarding administration of travel advances. We find that
the proposal is negotiable.
II. Union Proposal
The Union in essence proposes that there be no changes in the
Agency's practice regarding the payment of travel and per diem advances
which existed prior to the issuance of proposed Shipyard Notice,
NAVSHIPYDPUGETNOTE 4650.
III. Positions of the Parties
Preliminarily, the Agency contends that the Union's petition for
review is deficient and should be dismissed. Substantively, the Agency
contends that the Union has clearly and unmistakably waived its right to
bargain over the matter at issue. It also contends that the Union's
proposal conflicts with an Agency regulation for which there is a
compelling need. The Union essentially argues that the Agency's
contentions are all without merit.
IV. Analysis
A. Preliminary Contention
The Agency contends that the Union's petition is deficient and should
be dismissed because it does not set forth the matter proposed to be
negotiated in sufficiently specific and delimited form as to be subject
to a negotiability decision by the Authority. However, it is clear from
the record and the parties' submissions including the Agency's
substantive contentions that the parties understood that the Union wants
no change in existing practice regarding the administration of travel
advances. For example, the Union's petition includes a reference to
correspondence between the parties indicating that the "Union's
proposals will be no change in existing practice." See Union's Petition
for Review, Enclosure 6. Therefore, the Union's proposal is
sufficiently specific and delimited so that the Authority can measure
what is proposed for negotiation against specific statutory or
regulatory provisions alleged to bar negotiations. See National
Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 4 FLRA 68 (1980), remanded as to other matters
sub nom. Department of Defense, Department of the Army v. FLRA, 685 F.2d
641 (D.C. Cir. 1982).
B. Substantive Contentions
1. Waiver
The record in this case does not provide any basis for substantiating
the Agency's assertion that the Union waived its right to bargain over
the matter at issue in the parties' negotiated agreement. The Agency
may, of course, pursue this question in the context of 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 at
306 n. 6 (1984).
2. Compelling Need for Agency Regulation Under Section 7117(a)(2)
NAVSHIPYDPUGETNOTE 4650 contains Department of the Navy directions on
travel administration which would require five specific changes in the
Agency's existing practice. Travel advances would be limited to 80% of
the estimated per diem and miscellaneous expense costs; advances for
per diem/actual expense allowances would not made for one day trips
(where travel commences and ends the same calendar day) but could be
made on a case-by-case basis as long as the total to be advanced is more
than $50; travel advances would not be paid earlier than three working
days prior to commencement of travel; travel claim settlement vouchers
would be required to be submitted to the Disbursing Officer within 10
calendar days after completion of travel; and travelers who receive
overpayments of travel advances will be required to make repayment
within 15 calendar days from the date of the Disbursing Officer's letter
of notification.
Under the Union's proposal, travel advances would remain at the
current limitation of 90% of the estimated per diem and miscellaneous
expense costs; there would continue to be no limitation on advances for
one day travel; travel advances would continue to be paid no earlier
than 10 working days prior to commencement of travel; travel claim
settlement vouchers would continue to be required to be submitted to the
Disbursing Officer within 15 calendar days after the completion of
travel; and travelers who receive overpayments of travel advances would
continue to be required to make payments within 20 calendar days from
the date of the Disbursing Officer's letter of notification.
It is well established that when an Agency alleges a proposal is
nonnegotiable because it conflicts with an Agency regulation for which a
compelling need is claimed to exist under section 7117(a)(2), the Agency
bears the burden of supporting such allegation. American Federation of
Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 450
(1980). We find that the Agency in this case has failed to demonstrate
that a compelling need exists for the regulation raised as a bar to
negotiations.
The Agency's compelling need contention is based on its arguments
that: (1) its regulation is essential, as distinguished from helpful or
desirable, to the accomplishment of its mission or the execution of its
function in a manner which is consistent with the requirements of an
effective Government; and (2) the regulation implements a mandate under
law or outside authority which is essentially nondiscretionary in
nature. See section 2424.11(a) and (c) of the Authority's Rules. In
support of its position that the regulation is essential, as
distinguished from helpful or desirable, to achieving certain purposes,
the Agency argues only that its regulation would result in a reduction
of the frequency of overpayments of travel advances, thereby saving the
Agency both time and money associated with the collection of
overpayments. Even assuming that the regulation would have the effect
claimed by the Agency, it has not demonstrated that its regulation is
essential, as distinguished from merely helpful or desirable, to
achieving its objective of reducing the costs associated with the
collection of overpayments of travel advances. It does not indicate how
this objective could not be achieved through any means other than this
regulation, such as, for example, more accurate travel estimates. In
failing to demonstrate that, in the absence of its regulation, the
Agency would be unable to save the time and money associated with travel
advance overpayments, it must be concluded that the Agency has not met
its burden of showing that its regulation is essential to the
accomplishment of that objective. See, for example, American Federation
of Government Employees, AFL-CIO, Local 3804 and Federal Deposit
Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220 (1981).
As to its contention that its regulation implements a mandate under
law or outside authority which is essentially nondiscretionary in
nature, the Agency provides no persuasive evidence to support a finding
of compelling need. Rather, it merely asserts that Congress and the
Office of Management and Budget have "mandated" improvements in the
administration of travel. The Agency does not establish that if such a
mandate exists, the manner of its implementation is essentially
nondiscretionary in nature. See, for example, National Treasury
Employees Union, Chapter 26 and Internal Revenue Service, Atlanta
District, 22 FLRA No. 30 (1986) (Union Proposals 3 and 4).
V. Conclusion
For the reasons and cases cited in the foregoing analysis, we find no
merit in the Agency's contention that the Union's petition is deficient,
or in its claim that a compelling need exists for its regulation, under
section 7117(a)(2), so as to bar negotiations concerning the Union's
proposal. Moreover, insofar as the Agency believes that the Union has
waived its right to bargain over the matter at issue in this case, it
may pursue that matter in the context of other appropriate proceedings.
Therefore, the Union's proposal is within the duty to bargain.
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request (or as otherwise agreed
to by the parties) bargain concerning the Union's Proposal. /*/
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding this proposal to be within the duty to bargain, the
Authority makes no judgment as to its merits.
24 FLRA NO. 23
Dep't of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Col.
and AFGE, Local 695, Case No. 7-CU-60009 (Decided November 21, 1986)
SUBJECT MATTER INDEX ENTRIES
REPRESENTATION PROCEDURE
NO BASIS FOR GRANTING REVIEW
MERE DISAGREEMENT WITH THE REGIONAL DIRECTOR
DIGEST NOTES
The Authority denied an application for review of a Regional
Director's Decision and Order on Petition for Clarification of Unit
because no compelling reason existed within the meaning of section
2422.17(c) of the Authority's rules and regulations for granting review.
Case No. 7-CU-60009
DEPARTMENT OF THE TREASURY, BUREAU OF THE MINT U.S. MINT, DENVER,
COLORADO
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 695
Petitioner
ORDER DENYING APPLICATION FOR REVIEW
On October 20, 1986, the American Federation of Government Employees,
AFL-CIO, Local 695 (AFGE) 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 its application for
review, AFGE contends that compelling reasons exist within the meaning
of section 2422.17(c) of the Authority's Rules and Regulations for
granting the application.
Upon consideration of AFGE's application for review, including all
arguments in support thereof, the Authority concludes that no compelling
reason exists for granting the application. Rather, the application in
essence expresses mere disagreement with the Regional Director's
findings, which are based on precedent, and have not been shown to be
clearly erroneous or to have prejudicially affected the right of any
party.
Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
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. November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Order Denying Motion for Reconsideration of 23 FLRA No. 29
Case No. 0-NG-1172 (23 FLRA No. 29)
American Federation of Government Employees, AFL-CIO, Council of
Prison Locals, Local 171
Union
and
Department of Justice, Federal Prison System, Federal Correctional
Institution, El Reno, Oklahoma
Agency
November 21, 1986
ORDER DENYING MOTION FOR RECONSIDERATION
This matter is before the Authority because of the Agency's request
for reconsideration and "Motion to Amend" the Authority's Decision and
Order on Negotiability Issues of August 15, 1986, in the above-entitled
matter. Specifically, the Agency seeks reconsideration of the
Authority's order as to Provisions 1 and 3. The Union filed an
opposition.
In its decision, the Authority found negotiable Provisions 1 and 3 of
the parties' local supplemental agreement covering assignments and hours
which had been disapproved by the Agency under section 7114(c) of the
Statute. Consequently, the Authority ordered the Agency to rescind its
disapproval of these provisions. The Authority based its determinations
that Provisions 1 and 3 were negotiable on the Union's clear,
unequivocal statements of intent in the petition for review concerning
each provision, which statements were found to be consistent with the
language of each provision. Although the Agency acknowledged that in
view of the Union's statements of intent its disapproval of the two
provisions may be moot the Agency continued to maintain that the
provisions were nonnegotiable. As to the Agency's continued claims of
nonnegotiability the Authority stated in a footnote that since the
Union's clear, unequivocal statements of intent concerning the
provisions showed that the Agency's claims of nonnegotiability were
baseless, "any disagreement over these provisions should have been
resolved bilaterally." Thus, the Authority urged the Agency "to act in a
more positive manner, so as not to burden the Union and the Authority
with the resolution of unnecessary disputes."
The Agency does not challenge the Authority's holding that Provision
1 and 3 are negotiable. Instead, it contends, first, that the Authority
committed an error in finding that the Agency had "disapproved" the
provisions under section 7114(c) of the Statute. Rather, the Agency
states that because each of the provisions was subject to a negotiable
as well as a nonnegotiable interpretation, it merely sought to clarify
the meaning of the two provisions by holding them negotiable so long as
the Union accepted the Agency's interpretation of their meaning. Thus,
the Agency requests the Authority to correct its order requiring the
Agency to rescind its disapproval of these provisions because "so
interpreted, the proposals were never disapproved." Second, the Agency
states that if it is forced to stop its practice of providing
alternative or conditional approvals when a contract provision is
subject to both negotiable and nonnegotiable interpretations because of
the comments such as these contained in the Authority's footnote, "the
result will clearly be to produce more, not fewer appeals." Thus, the
Agency further requests that the Authority either delete or alter the
footnote in question.
Section 2429.17 of the Authority's Rules and Regulations provides
that a party which can establish "extraordinary circumstances" may
request reconsideration of an Authority decision. We conclude that the
Agency has not established such "extraordinary circumstances."
Specifically, we view the Agency's arguments as simply disagreeing with
the Authority's interpretation of the record and legal determinations
that the Agency disapproved the two provisions in question.
Moreover, we reject the Agency's claim that the Authority's footnote
urging the Agency to act in a positive manner so as to further the
bilateral resolution of negotiability issues must increase rather than
decrease the number of negotiability appeals. In our view, this request
for reconsideration confirms our observations that the Agency in this
case should have resolved without our involvement its questions
regarding the meaning of language which was negotiated and agreed to by
the parties at a local level within the Agency.
Consequently, we conclude that the Agency has failed to establish the
existence of extraordinary circumstances and deny its request for
reconsideration.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 22
Defense Mapping Agency, Washington, D.C. and Defense Mapping Agency
Aerospace Center, St. Louis, Missouri and NFFE, Local 1827, Case No.
7-CA-50623 (Decided November 21, 1986)
STATUTE
7114(b)(4)(B) and (C)
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, Union Rights
Confidential Information
Sanitized Copies of Information
Necessity or Relevance for Full and Proper Discussion
Presumptive Relevance Theory Rejected
Survey of Personnel Practices, Policies, Working Conditions
Types of Information Sought
Inspector General Report
Unfair Labor Practices, Remedies for Agency Violations
Information to be Provided Union
DIGEST NOTES
An inspector general report was necessary and relevant to full and
proper discussion, understanding and negotiations of collective
bargaining subjects within the meaning of section 7114(b)(4)(B), the
Judge found. The report contained a survey and analysis of personnel
practices, policies and working conditions which the union wanted to
review in order to police the contract and assess its impact on possible
grievances. The union did not seek confidential or internal management
information; rather the union expresses a willingness to accpet the
report in sanitized form. The report did not constitute guidance,
advice, counsel or training for management representatives under section
7114(b)(4)(C). In adopting the Judge's decision, the Authority noted
that the Judge did not apply a "presumptive relevance" standard.
Rather, he found that the information was necessary in the circumstances
of the case. Consequently, the activity violated section 7116(a)(1),
(5) and (8) when it refused to provide the union with the requested
data.
Case No. 7-CA-50623
DEFENSE MAPPING AGENCY, WASHINGTON, D.C., AND DEFENSE MAPPING AGENCY
AEROSPACE CENTER, ST. LOUIS, MISSOURI
Respondents
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent, Defense Mapping
Agency Aerospace Center, St. Louis, Missouri (DMAAC) had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the
Respondent, Defense Mapping Agency, Washington, D.C. (DMA) had not
engaged in the unfair labor practices alleged in the complaint and
recommended that the complaint, insofar as it alleged a violation by
Respondent DMA be dismissed. Thereafter, the Respondents filed
exceptions to the Judge's Decision concerning DMAAC. The General
Counsel also filed exceptions limited to the Judge's discussion of
"presumptive relevance."
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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended Order.
In agreement with the Judge, the Authority concludes that the
Respondent (DMAAC) violated section 7116(a)(1), (5) and (8) of the
Statute by failing and refusing to furnish the Charging Party (Union)
with certain data from the Inspector General's 1985 Report it requested
pursuant to section 7114(b)(4) of the Statute.
In so concluding the Authority notes that the Judge specifically
found, after considering the nature of the request and the circumstances
in the case, that the information sought by the Union was necessary for
it to perform its representational duties within the meaning of section
7114(b)(4) of the Statute, and further did not constitute guidance,
advice, counsel or training for management representatives under section
7114(b)(4)(C). /*/ In particular the Judge considered, among other
things, the fact that: the report contained material obtained after
management spoke and conferred with unit employees; the report
contained information related to unit employees' conditions of
employment (for example, health, safety, security, etc.); and the Union
was willing to accept the report in a sanitized form.
Therefore, in the circumstances of this case, we conclude in
agreement with the Judge that the requested information was necessary in
order for the Union to perform its representational duties.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Defense Mapping Agency Aerospace Center, St.
Louis, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defense Mapping
Agency Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(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:
(a) Upon request, provide to the National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri. The report may be sanitized to exclude
management's opinion and evaluation of internal matters and DMAAC's
operations.
(b) Post at its facility at St. Louis, Missouri, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Director and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and other
places where such notices 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 herewith.
IT IS FURTHER ORDERED that insofar as the complaint alleges a
violation of section 7116(a)(1), (5) and (8) of the Statute by
Respondent Defense Mapping Agency, Washington, D.C., it is hereby
dismissed.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defense Mapping
Agency Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, provide to the National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri. The report may be sanitized to exclude
management's opinion and evaluation of internal matters and DMAAC's
operations.
(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 VII, Federal Labor Relations Authority, whose address
is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone
number is: (303) 837-5224.
Case No.: 7-CA-50623
DEFENSE MAPPING AGENCY, WASHINGTON, D.C., AND DEFENSE MAPPING AGENCY
AEROSPACE CENTER, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
Howard Bishop, Jr., Esq.
For Respondent
Cathy A. Auble, Esq.
For General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 12,
1985, by the Regional Director for the Federal Labor Relations
Authority, Region VII, a hearing was held before the undersigned on
January 15, 1986 at St. Louis, Missouri.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It
is based on a second amended charge filed on December 9, 1985 by
National Federation of Federal Employees, Local 1827 (herein called the
Union) against Defense Mapping Agency, Washington, D.C. (herein called
DMA or Respondent DMA) and Defense Mapping Agency Aerospace Center, St.
Louis, Missouri (herein called DMAAC or Respondent DMAAC).
The Complaint alleged, in substance, that on or about August 8 and
September 5, 1985 the Union requested Respondent DMAAC to furnish it
with the sanitized Inspector General Report regarding the 1985
inspection conducted at its facility in St. Louis, Missouri. The said
data, it is alleged, was necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
bargaining.
The Complaint also alleged that on or about August 15 and September
11, 1985, (a) Respondent DMA instructed Respondent DMAAC not to furnish
the information requested by the Union; (b) Respondents failed and
refused to furnish the information so requested -- all of which
constituted a failure to comply with Section 7114(b)(4) of the Statute
and is violative of Section 7116(a)(1), (5) and (8) thereof.
Respondent's Answer, while admitting that DMAAC refused to furnish
the data sought by the Union, denied that it was requested in sanitized
form. It also denied the commission of any unfair labor practices under
the Statute.
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. /1/
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 exclusive bargaining representative of all non-professional
employees of the Defense Mapping Agency Aerospace Center located in the
St. Louis, Missouri area, with specified exclusions from the aforesaid
unit.
2. At all times material herein the Union and Respondent DMAAC were
parties to a collective bargaining agreement covering the employees in
the aforesaid unit.
3. The DMA, whose headquarters are in Washington, D.C., supports the
Joint Chief of Staff and the Services with mapping, charting, and
geodetic information. It produces maps and charts of terrain which are
used by the Army, Navy, Air Force and Marines.
4. The DMAAC is a component of DMA. It produces aeronautical type
charts and associated products used in aviation, as well as digital
products used in command and control and weapon systems. The DMAAC has
about 4,000 employees.
5. Attached to DMA is an Inspector General (IG) who, together with
his staff, conducts an inspection annually of DMAAC. This is done in
order to evaluate to component's management and determine its
effectiveness, efficiency and readiness to perform its mission. The IG
reviews the regulations published by the agency, management reports, and
complaints registered by employees since the previous inspection. His
staff is on the lookout for fraud, abuse or waste.
6. Upon conducting his inspection the IG holds "sensing" sessions
with the DMAAC employees. These are undertaken to ascertain what are
the problems from the viewpoint of employees. A briefing session is
held with the Command group, and the IG staff speaks to top managers,
supervisors and employees.
7. A report is written by the IG which provides the DMA Director
with an evaluation of DMAAC's operations. It is a narrative summary
with findings on problem areas or deficiencies. The report covers such
matters as: compliance with statutes and regulations; health and
safety; security clearances; and classification of positions. While
conditions of employment are discussed in the report, no attempt is made
to deal therein with the performance of DMAAC employees. It is deemed
to be a management report which discusses the cause and effect of
problems and deficiencies. Although recommendations may be made by the
IG, he has no authority to implement them or to order anything to be
done by DMAAC.
8. Record facts show that the Union received a copy of the IG report
from DMA in 1980 which it used in connection with negotiations for the
1982 contract. /2/ Further, that it utilized a copy of an IG report
from DMAAC when negotiating the 1977 contract.
9. In June, 1985 Colonel Maune, as IG for Respondent DMA, headed a
team which conducted an inspection of DMAAC. Maune met with Virgil
Hahn, then president of the Union, as well as Elmer Hacker, then
secretary-treasurer /3/ of the Union, and Francis Jett, its chief shop
steward. Several matters or subjects which were raised by the Union
included: EEO, security problems of employees, mandatory overtime, and
a classification appeal involving the photographers. /4/ IG Maune spoke
to at least 20 individuals re these problems.
10. In a letter dated August 8, 1985, Elmer Hacker, president of the
Union, wrote L. P. Eaves, Labor Relations Officer for DMAAC, and
requested a copy of the IG inspection report of 1985. The request was
made in accordance with Article 14-1 and 14-2 of the collective
bargaining agreement.
11. Under Article 14-1 and 14-2 of the parties' agreement Respondent
DMAAC is obliged to furnish all information, data or material which is
relevant and necessary for the discharge of the Union's obligation under
Public Law 95-45 and the agreement. This was stated to include, but not
limited to, such copies of such terms as: (a) OPM, MSPB, DMA
Regulations, AC instructions, or other regulations bearing on policies,
practices, procedures and working conditions; (b) DOD & EEOC
Regulations; (c) Mini-EEO plans of Affirmative Action; (c) Specific
information requested for investigating or processing
complaints/grievances/appeals. Statistical data supplied shall be from
documents normally maintained in the regular course of business and in
reasonably understandable form.
12. The record reflects that the request for the 1985 IG report was
made to learn the findings of the inspection that dealt with the
employees, and their working conditions. Further, the Union wanted to
see what, if any, violations of regulations occurred as well as any uses
of regulations which were contrary to the bargaining agreement. In such
instances, the Union insisted it may want to grieve over same.
13. Eaves replied to the Union's request in a letter dated August
15, 1985. He stated therein that the report is an itnernal,
confidential management document which does not have to be released
under Article 14 of the contract. He denied the request.
14. Following the written denial by Eaves discussions ensued between
Eaves and Union officials Hacker and Jett re the IG report of 1985. The
Union representatives attempted to obtain the report by persuading Eaves
to furnish same. They also indicated a willingness to accept it in a
sanitized form. Eaves refused, again repeating that the report
contained confidential information. The record reflects that the Eaves
made the decision to deny the Union's request, and that he had not been
instructed by DMA to do so. /5/
15. In a letter dated September 5, 1985 Hacker renewed the Union's
request for the IG report, reciting that it was needed because the Union
believed the report contained a survey and analysis of personnel
policies, practices or conditions of employment. Further, Hacker stated
it was essential that it be reviewed so that the Union could police its
contract and assess the impact upon actual or potential grievances.
16. The aforesaid request was again denied in a letter dated
September 11, 1985 from Eaves to Hacker.
17. Hacker testified that four named employees in the bargaining
unit have seen the 1985 IG report and were allowed to read it. Further,
that the Civilian Welfare Committee had access to it. Hacker also
testified that a named non-bargaining unit employee, a restaurant
officer, had read the report. The basis for the foregoing, rested on
the Union president's testimony that these named individuals told him
they had read the document. Eaves testified he was unaware of any
instances where prime IG reports were released to the Union. Colonel
Stockhausen the IG, testified the report is not to be disseminated and
it is the policy to keep the report within the management staff. The
testimony by Hacker regarding the fact that other employees have been
permitted to read the report is hearsay in nature. Moreover, there is
nothing else in the record supporting a finding that management provided
others with the 1985 IG report. While it may have occurred, I do not
find that Respondents either gave the report to non-management people or
afforded them an opportunity to read it. The IG report was considered
by Respondents to be confidential in nature and for distribution only to
management personnel.
18. DMA published an instruction dated August 29, 1984, currently in
effect, which is designated as DMA INSTRUCTION 5700.2. It deals with
the subject: "The Defense Mapping Agency Inspection Program." (Resp.
Exh. 1). The Inspection Program applies to DMA Headquarters and the DMA
Components. It is designed, according to the Instruction, to check the
readiness of the components to perform its mission and the efficiency of
its operation. The Inspector General of DMA is charged with
responsibility to conduct the inspection. He is mandated to schedule
personal conference periods so individuals may present complaints or
request advice; to schedule "sensing" sessions to sample non-managerial
employees for their opinions on different topics, including such items
as security, facilities, safety, logistics and operations (paragraph
10(h) and (i), Resp. Exh. 1) DMAAC is required to follow the procedures
established under DMA INSTRUCTION 5700.2. Paragraph 12(b) of the
INSTRUCTION, entitled "Inspection Reports", provides that the reports
are privileged documents and not releasable to anyone outside the DMA
without the approval of the Director, DMA.
Conclusions
It is contended by General Counsel that Respondent DMAAC was obliged,
under 7114(b)(4) of the Statute to furnish the Union with the IG Report
covering the St. Louis facility. The report, it is asserted, includes
information obtained from unit employees whose working conditions would
be impacted by any changes resulting from the investigation. General
Counsel insists that the Union needs the Report in order to police the
contract, as well as effectively represent employees in discussions with
management. Having refused to provide the said data, Respondent DMAAC
has allegedly run afoul of 7116(a)(1), (5) and (8) of the Statute.
A further contention is made that Respondent DMA, the headquarters in
Washington, D.C., violated 7116(a)(1) and (5) by instructing and
directing Respondent DMAAC -- its component -- not to furnish the IG
Report to the Union.
Respondents, in disputing any obligation to supply the Report, insist
that: (a) The Union's requests were not specific and definitive so as
to establish that the data was necessary and relevant to its
representational functions; (b) the requested information is not
necessary nor relevant for the Union to perform such duties; (c) under
7114(b)(4) of the Statute it is not encumbent on Respondent to furnish
the report since it is an internal management document which has no
direct relationship to conditions of employment; (d) Respondent DMA,
the headquarters, is in no event responsible for any refusal to furnish
the IG Report since the decision was made by Respondent DMAAC alone.
In conformity with its obligation to negotiate in good faith, an
agency is required to furnish data to the bargaining representative
under certain circumstances. This obligation is codified in Section
7114(b) of the Statute, the pertinent provisions of which are as
follows:
Representation rights and duties
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation --
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; . . .
Under the foregoing statutory language it must be shown that the
information requested is necessary for the union to fulfill its
representational functions. In this respect consideration must be given
to the nature of the request for the data as well as the circumstances
in each case. See Army and Air Force Exchange Service (AAFES), Fort
Carson, Colorado, 17 FLRA No. 92, Respondents herein insist that the
requests by the Union were too broad and unspecific to permit DMAAC to
determine if the information was relevant and necessary to the Union's
representational function. It is contended that the requests failed to
identify the type of information sought by specific subject matter.
It is true that an obligation is imposed upon a union to request data
in a manner which will not compel an agency to speculate or conjecture
as to what is sought by the representative. The Authority has frowned
on requests which are broader than what is reasonably needed to
administer or police contractual provisions of an agreement. Thus, a
failure to mention time periods for certain conformation re contracts
"let out" was deemed indefinite. Director of Administration,
Headquarters, U.S. Air Force, 6 FLRA No. 24. Further, as stated therein
by Judge Dowd, the Union's right to information "for the purpose of
contract administration and policing a particular contract provision has
support in the case law only where the union is able to show relevance."
Thus, a mere assertion by a union that it needs data to process a
grievance does not automatically oblige an agency to furnish same. No
presumptive relevance necessarily attaches thereto. See Department of
the Treasury, United States Customs Service, Region IV, Miami, Florida,
18 FLRA No. 53.
In the case at bar I am not persuaded that, in light of the
circumstances, the request for the IG Report by the Union was too broad
or indefinite so as to vitiate any responsibility on management's past
to furnish same. In regard to the request made on August 8, 1985, I
would agree that it reflects no relevance nor necessity for the data
within the meaning of 7114(b)(4)(B). The mere assertion that the demand
was in accordance with Article 14-1, 14-2 of the collective bargaining
agreement discloses no relevance. Such a request is not tied to any
specific employment condition nor does it show, on its face, that it is
necessary to negotiating any subject with management. While the
particular article of the agreement, which was mentioned in the said
request, obliges the agency to furnish information to the Union, it
refers to various government rules and regulations. Further, it merely
requires that DMAAC supply data needed for the Union's investigating or
processing complaints or grievances. Such a provision does not dispense
with the statutory requirement that the relevance and necessity for
information be shown or declared in the request.
The record does reflect, however, that on September 5, 1985 the Union
renewed its request for the IG Report. More definitely, it stated the
Union believed the Report contained a survey and analysis of personnel
practices, policies and working conditions; that the Union wanted to
review the Report in order to police the contract and assess its impact
on possible grievances. Moreover, the Union indicated its willingness,
after Eaves refused the initial request on August 15, 1985, to accept
the Report in sanitized forms, at which time management advised the
Union official it was confidential and couldn't be released. While this
request may not be termed "presumptively relevant", the circumstances
surrounding it warrant the conclusion that the demand was necessary for
discussion, understanding and negotiation within the meaning of
7114(b)(4)(B). Support for this view is seen in light of the fact that:
(a) the Report contained material obtained after management spoke and
conferred with about 20 employees; (b) "sensing" sessions were held
with employees inquiring as to problems concerning safety and equal
opportunity; (c) the Report dealt with such subjects as health and
safety, security, and position classifications; (d) the Union's
willingness to accept a sanitized version of the said Report.
Since the Report contains information pertaining to the foregoing
conditions of employment obtained, in part, after discussions with
employees, it is certainly understandable that the Union would utilize
this data in some negotiations with DMAAC. Further, it appears that the
Union, based on its willingness to accept the Report after sanitization,
was interested only in those aspects of the Report bearing on working
conditions affecting the unit employees. While other aspects of the
Report may involve a review or analysis of management, its supervisory
hierachy, or internal operations, a request for information limited to
these conditions of employment affecting the unit involves a demand for
relevant and necessary data under the Statute. See American Federation
of Government Employees, AFL-CIO, Local 1708 and Military Ocean
Terminal, Sunny Point, Southport, S.C., 15 FLRA No. 1 (where the
Authority deemed negotiable a union proposal that information derived
from work studies be provided to the union).
A somewhat similar situation to the one at bar existed in Department
of Health and Human Services, Social Security Administration, Field
Assessment Office, 12 FLRA No. 84. Management dispatched its analysts
to conduct a study of travel practices of its Evaluation Staff in a
regional office. The analysts interviewed unit employees in regard
thereto and then turned in reports with their findings. It was held
that the agency must supply the reports to the extent they contain
factual findings as to travel practices existent in the region. Since
the reports contained facts elicited from employees re travel problems,
it was concluded that the Region could be expected to maintain such
information in its files for use in discussions with the union re travel
problems in the region. Thus, the findings of the analysts in that
regard were deemed "necessary" to collective bargaining. /6/
Respondents attempt to distinguish the foregoing case from the one at
hand. It is asserted that the purpose of the IG Report was not to
gather information for use in changing working conditions, which was the
aim in the cited case. Further, that no bargaining or ongoing
discussions with the Union herein were in progress, whereas the parties
in the Social Security case, supra, were conferring re travel practices.
I am satisfied, based on the record herein, that the Union was
interested in the findings concerning working conditions as they
affected employees. In its request the Union so stated. There is no
indication that the bargaining representative wanted internal management
data, and this is buttressed by a willingness to accept the Report on
sanitized forms. It is not determinative that the parties herein were
not engaged in contract discussions or negotiations. A union may
utilize information in preparation for bargaining, or for proposals to
management in connection with working conditions. It is not a
prerequisite that actual bargaining be in progress before a union is
entitled to necessary and relevant information. See I. G. Case v. NLRB,
253 F.2d 149 (7th Cir. 1958).
Respondents insist that the Report discusses matters outside the
scope of bargaining. Further, that it contains opinions of management
as well as evaluations which are not necessary to the union's
representational functions. Nevertheless, Eaves testified that there
were terms in the Report that dealt with conditions of employment. To
the extent that the Report evaluated its operations at DMAAC and
contained material of a confidential nature, I would agree that the
Union would not be entitled to such data. See Detroit Ednmo v.
N.L.R.B., 440 U.S. 301. However, there is no issue of confidentiality
herein inasmuch as the Union expressed its willingness to accept the
Report in sanitized form. Under those circumstances Respondents need
furnish only those factual findings based on discussions with unit
employees concerning working conditions -- the latter to include such
matters as health and safety, security, and position description.
In sum, I conclude that the 1985 IG Report involving the component,
Defense Mapping Agency Aerospace Center, St. Louis, Missouri, insofar as
it pertains to data obtained from employees thereat concerning their
various working conditions and employment is necessary and relevant for
full and proper discussion, understanding and negotiation of collective
bargaining subjects within the meaning of Section 7114(b)(4)(B); and
that such portion thereof does not constitute guidance, advice, counsel
or training for management representatives under subdivision (C) of that
section. /7/ As such, the Union was entitled to receive same, and the
failure or refusal by Respondent DMAAC to furnish said particular part
of the Report was violative of Section 7116(a)(1), (5) and (8) of the
Statute.
In respect to the responsibility of Respondent DMA for the refusal to
furnish the data to the Union, I conclude that it played no part in such
conduct. The Authority has held, it is true, that where higher level
management prevents agency management at the level of exclusive
recognition from fulfilling its bargaining obligation, such conduct will
constitute an unfair labor practice. Department of Health and Human
Services, et al., 10 FLRA No. 9; Department of the Interior, Water and
Power Resources Service, Grand Coulee Project, Grand Coulee, Washington,
9 FLRA No. 46. In both of the cited cases the higher level directed
lower level management in respect to the action taken by the latter,
which is markedly different from the occurrence herein. Record facts
disclose that DMA headquarters in Washington, D.C. did not direct or
order the component to refuse to furnish the data to the Union; that
the decision to so refuse was made by Eaves, DMAAC's Labor Relation
Specialist, with no impact or direction from the headquarters; and that
the latter took no steps to prevent DMAAC from fulfilling its obligation
to supply data as required under the Statute. Accordingly, I conclude
Respondent DMA has not violated the Statute herein as alleged.
Having concluded that Respondent Defense Mapping Agency Aerospace
Center, St. Louis, Missouri violated Section 7116(a)(1), (5) and (8) of
the Statute, it is recommended that the Authority issue the following:
ORDER /8/
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Defense Mapping Agency Aerospace
Center, St. Louis, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defenses Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(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:
(a) Upon request, provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' condition of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(b) Post at its facility at St. Louis, Missouri, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Director, or his designee, and shall be posted and maintained by him for
60 consecutive days thereafter in conspicuous places, including bulletin
boards and other places where notices are customarily posted. The
Director shall take reasonable steps to insure that such notices are not
altered, defaced or covered by any other material.
(c) Notify the Regional Director, Region VII, in writing, within 30
days from the date of this Order, as to what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the Complaint insofar as it alleges
a violation of Section 7116(a)(1), (5) and (8) of the Statute by
Respondent Defense Mapping Agency, Washington, D.C. be, and it hereby
is, dismissed.
/s/ William Naimark
Administrative Law Judge
Dated: June 6, 1986
Washington, D.C.
FOOTNOTES
(*) Noting the Judge's finding in this regard, we conclude, contrary
to the General Counsel's exceptions, that the Judge did not apply a
"presumptive relevance" standard. Rather, he found, and we agree, that
the information was necessary in the circumstances of this case within
the meaning of section 7114(b)(4) of the Statute.
(1) Subsequent to the hearing, General Counsel filed a Motion to
Correct the Transcript. No objections having been filed thereto, and it
appearing that the proposed corrections are proper, the Motion is
granted as requested.
(2) Virgil Hahn, who was president of the Union from 1977 to August,
1985, testified he used the reports in negotiating merit promotions and
equal opportunity concerns. Further, the 1980 report was used in
respect to the number of employees to be placed on a promotion
certificate.
(3) Hacker became president of the Union in August, 1985.
(4) This was a statutory appeal through OPM. It was not based on a
Union grievance nor was the Union a party to the appeal.
(5) Hacker testified he did not remember whether Eaves said he had
been directed not to give the report to the Union, or whether "that was
what came across . . . ." He also stated he "got the impression" it came
from headquarters. Jett testified that Eaves told the Union
representatives he had been directed not to release the report but did
not identify who so directed him. The state of the record, together
with the lack of certitude in the testimonies of the Union officials,
persuades me that the decision not to release the report was made by
Eaves; that, further, there is no independent evidence that he was
directed by DMA not to furnish same to the Union.
(6) Cf. U.S. Customs Service, Region IV, Mimai, Florida, 3 FLRA No.
127, where a "Tennant Study" which included interviews with employees,
was made to verify the agency's records re overtime -- to ascertain
whether the agency was being properly reimbursed by the airlines or
shipping firms for overtime services. In the case at bar the sessions
with employees were held to find out from employees what they considered
to be problems as to certain working conditions.
(7) No issue was raised under subdivision (A) that the IG Report was
not normally maintained by the agency on the regular course of business.
(8) While the recommended order herein provides for specified data on
the IG Report to be furnished to the Union, the Report may be sanitized
to exclude management's opinion and evaluation of internal matters and
DMAAC's operation.
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 fail or refuse to provide the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defenses
Mapping Agency Inspector General's Report containing factual findings of
unit employees' conditions of employment at Defense Mapping Agency
Aerospace Center, St. Louis, Missouri.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(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.
24 FLRA NO. 21
NAGE and VA Medical Center, Grand Junction, Colo., Case No. 0-NG-1211
(Decided November 21, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(B)
SUBJECT MATTER INDEX ENTRIES
Assign Work, Reserved Management Right
Hours of Work
Code of Federal Regulations
5 C.F.R. 610.121
Collective Bargaining Agreement
Reopener Clause for Mid-Term Bargaining
Collective Bargaining Process and the Duty to Bargain
Mid-Term Bargaining
Bargaining Obligation to Negotiate a Reopened Clause
Hours of Work
Days Off
Consecutive Days Off Requirement
Shift Assignments
Frequency of Changes in Shift Assignments
Interval Between Shifts
Starting and Quitting Times
For Union Officials
United States Code
5 U.S.C. 5543
DIGEST NOTES
A proposal is negotiable that would provide a reopener clause in the
parties agreement allowing the union to initiate bargaining proposals
during the term of the agreement. While an agency has no duty to
bargain over mid-term proposals initiated by a union, there is nothing
that would prohibit an agency from agreeing to a reopener clause which
would require it to do so. (Proposal 1)
A proposal is negotiable that would adjust the starting and quitting
times of union officials when those officials are processing grievances
involving employees on shifts other than their own. The proposal would
facilitate the carrying out of representational activities as an adjunct
to whatever separate agreements directly concerned with use of official
time that the parties are able to reach in particular circumstances.
The agency may take into account its work assignment requirements in
arriving at those separate agreements and in acting on individual
requests pursuant to those agreements. Thus the proposal does not
interfere with management's right to assign work under section
7106(a)(2)(B) nor is the proposal inconsistent with 5 U.S.C. section
5543 or 5 C.F.R. section 610.121. (proposal 2)
A proposal is outside the duty to bargain that would prohibit the
agency from scheduling an employee to work on a shift where the employee
had worked on one of the two preceding shifts, or to work two tours of
duty in the same week. The proposal is inconsistent with 5 C.F.R.
section 610.121, a Government-wide regulation, which requires it to
schedule employees consistent with actual work requirements. (proposal
3)
A proposal is negotiable which requires that employees' days off will
be consecutive except when patient care is adversely affected. The
proposal is not inconsistent with 5 C.F.R. section 610.121, a
Government-wide regulation which requires the scheduling of employees
consistent with actual work requirements. (proposal 5)
Case No. 0-NG-1211
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER, GRAND JUNCTION, COLORADO
Agency
DECISION AND ORDERS ON NEGOTIABILITY ISSUES
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of four Union proposals.
II. Union Proposal 1
ARTICLE 8
Section 1. Matters appropriate for mid-contract negotiations
shall include those negotiable issues proposed by either party
which are either newly formulated, or changes to established
personnel policies and practices during the term of this
agreement, which affect the working conditions of unit employees.
Section 3(d). If the proposal is made by the Union, the time
limits and procedures described in section 3(b) will be utilized,
with the roles reversed.
A. Positions of the Parties
The Agency contends that Union Proposal 1 would require it to bargain
over Union-initiated proposals during the term of the agreement. The
Agency argues that it has no duty to bargain over such proposals absent
management-initiated changes in conditions of employment, citing the
Authority's decision in Internal Revenue Service, 17 FLRA 731 (1985),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 85-1361 (D.C. Cir. June 14, 1985). The Agency also claims
that the proposal conflicts with the parties' master agreement which
limits mid-term bargaining to proposals concerning management-initiated
changes.
The Union contends that the Internal Revenue Service case does not
prohibit the parties from agreeing to bargain on Union-initiated
mid-term proposals. The Union further argues that the section of the
master agreement cited by the Agency does not apply to negotiations at
the local level.
B. Analysis
1. Union-initiated mid-term proposals
In Internal Revenue Service, cited by the Agency, the Authority held
that an agency has no general obligation to bargain over union-initiated
proposals during the term of a collective bargaining agreement.
However, the Authority also held that an agency may be obligated to
bargain over such a union-initiated proposal where (1) management seeks
to alter an established condition of employment in a manner which is not
precluded by the agreement; (2) the proposal is submitted consistent
with a reopener clause in the parties' agreement; or (3) the proposal
is made under section 7106(b)(2) and (3) of the Statute in response to
the exercise of a management right under section 7106(a). While an
agency has no duty to bargain over mid-term proposals initiated by a
union, there is nothing in the Internal Revenue Service case that would
prohibit an agency from entering into a reopener clause like Union
Proposal 1 which requires it to do so.
2. Interpretation of master agreement
The record in this case fails to provide a basis for substantiating
the Agency's assertion that provisions of the parties' master agreement
limit negotiations on this proposal. Further, to the extent that there
are factual issues in dispute between the parties concerning the duty to
bargain in the specific circumstances of this case, these issues may be
raised 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 (1984).
C. Conclusion
For the reasons set forth above, Union Proposal 1 is within the duty
to bargain.
III. Union Proposal 2
ARTICLE 10
Section 4. A steward or officer may request permission from
his supervisor to report on duty one hour early or late, and be
relieved from duty one hour early or late, whichever may be
required, to permit the steward to assist an employee who is
working a different shift, in the processing of a grievance during
both the steward's and employee's on-duty time. This request will
be granted unless the change would result in the tour of duty
extending over two days.
A. Positions of the Parties
The Agency contends that the proposal would interfere with its right
under section 7106(a)(2)(B) to assign work by prohibiting it from
assigning duties to the union officers or stewards during the first or
last hour of a shift so that the employee could process grievances. The
Agency also argues that Proposal 2 would have the effect of granting
compensatory time to an employee in circumstances not authorized under 5
U.S.C. Section 5543. The Agency further contends that the proposal is
inconsistent with 5 C.F.R. Section 610.121, a Government-wide
regulation. It claims that the proposed adjustment would require the
Agency to schedule employees on the basis of union representational
activities rather than the Agency's mission as required by the
regulation.
The Union contends that its proposal does not interfere with the
Agency's right to assign work. The Union claims that Proposal 2 simply
facilitates the use of official time by the Union and employees by
providing for an adjustment in a union representative's shift to overlap
the shift of an employee. Such an adjustment, the union explains, would
permit the union representative and the employee to meet while both were
in a duty status, using official time that the Agency had otherwise
agreed to grant to the two employees. As to the separate matter of
official time, the Union points out that employees are only permitted to
request and management is only required to consider such requests.
Management may decide that either the employee or the union
representatives cannot be spared for particular times requested to
conduct representational activities and thus may deny the request.
The Union also claims that the proposal would enhance an employee's
ability to have the union representative of his or her choice. Finally,
the Union contends that Proposal 2 would not require the grant of
compensatory time since it would not affect the number of hours worked
by an employee during the week.
B. Analysis and Conclusions
As the Authority has previously indicated, the parties may negotiate
procedures and practices which do not negate an agency's rights but
which would enable a union to implement its statutory rights and duties
with respect to the representation of employees. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Union Proposal 7). In National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 926 (1979), the Authority found that a proposal that
would adjust the starting and quitting times of employees did not
violate the agency's rights under section 7106(b)(1) and was within the
duty to bargain. As explained by the Union, Proposal 2 is concerned
simply with adjusting the starting and quitting times of union officials
when those officials are processing grievances involving employees on
shifts other than their own. Thus, the proposal would facilitate the
carrying out of representational activities as an adjunct to whatever
separate agreements directly concerned with use of official time that
the parties are able to reach in particular circumstances. As the Union
has indicated, the Agency may take into account its work assignment
requirements in arriving at those separate agreements and in acting on
individual requests pursuant to those agreements.
As interpreted, Proposal 2 is to the same effect as Proposal 1 in
National Association of Government Employees, Local R14-8 and Veterans
Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986),
which we found to be within the duty to bargain. For the reasons stated
more fully in that deicsion, Proposal 2 is negotiable in this case.
Additionally, like the proposal in VA Medical Center, Topeka, we find no
basis upon which to conclude that the Union's proposal here either
concerns a grant of compensatory time or requires the Agency to schedule
employees in a manner other than that required by 5 C.F.R. Section
610.121.
IV. Union Proposal 3
ARTICLE 11
Section 2. When an employee changes work shifts, he will not
be required to report for duty for two shift periods. The
Dietetics Service will be exempted from this requirement.
Section 9. Employees will not be required to work more than
two tours of duty in one workweek except to allow for a minimum of
two shift periods between the end of one tour and the beginning of
the next.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. The
Agency argues that the proposal would require it to provide employees
with two shift intervals between each shift worked by an employee
regardless of actual work requirements.
The Union contends that the proposal does not conflict with the
regulation cited by the Agency. It claims that Proposal 3 does not
prevent the Agency from acting at all to schedule employees in
accordance with mission requirements.
B. Analysis and Conclusion
The Authority finds that Union Proposal 3 is outside the duty to
bargain for a reason other than that raised by the Agency. Union
Proposal 3 is essentially the same as Union Proposal 2 in VA Medical
Center, Topeka, which we found to violate management's right to assign
work. The proposal in that case would have prohibited the agency from
scheduling an employee to work on a shift if that employee had worked
during the previous eleven hours, or to schedule an employee for two
different tours of duty in the same week, regardless of the agency's
actual work requirements and whether that employee's particular skills
were needed on a particular shift. We found that the proposal would
place a condition upon the agency's exercise of its right to assign work
and could prevent the Agency from determining what duties were to be
performed on what shift in violation of section 7106(a)(2)(B).
Similarly, Union Proposal 3 here would prohibit the Agency from
scheduling an employee to work on a shift where the employee had worked
on one of the two preceding shifts, or to work two tours of duty in the
same week, regardless of the Agency's work requirements. Accordingly,
for the reasons set forth more fully in VA Medical Center, Topeka, we
conclude that Union Proposal 3 here violates management's right to
assign work and is outside the duty to bargain.
V. Union Proposal 4
ARTICLE 11
Section 6. Except in cases that adversely affect patient care,
employees' days off will be consecutive. Employees' days off will
not be arbitrarily split. An employees' written request for split
days off will be considered.
A. Positions of the Parties
The Agency contends that Union Proposal 4 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. It
argues that Union Proposal 4 would require it to schedule employees for
consecutive days off regardless of the Agency's actual work
requirements. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
The Authority finds that Union Proposal 4 is to the same effect as
Union Proposal 3 which we held to be within the duty to bargain in the
VA Medical Center, Topeka case. We found that the proposal in that
case, which similarly would have provided employees with consecutive
days off unless patient care would be adversely affected, was not
inconsistent with management's rights and would not prevent the agency
from scheduling employees consistent with actual work requirements as
provided in 5 C.F.R. Section 610.121. Union Proposal 4 here expressly
states that the Agency need not provide employees with consecutive days
off where patient care would be adversely affected. Accordingly, for
the reasons set forth more fully in VA Medical Center, Topeka, we
conclude that Union Proposal 4 is within the duty to bargain.
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning Union Proposals 1, 2 and 4. /*/
IT IS FURTHER ORDERED that the petition for review as to Union Proposal
3 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 21, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.
24 FLRA NO. 20
Arlington National Cemetery, ANCIV-MMC and NAGE, Local R4-93, Case
No. 3-CU-60007 (Decided November 21, 1986)
SUBJECT MATTER INDEX ENTRIES
Representation Procedure
No Basis For Granting Review
Mere Disagreement With The Regional Director's Findings
DIGEST NOTES
Mere disagreement with the Regional Director's determinations in a
representational matter which are based on precedent is not a basis for
granting review under section 2422.17 of the Authority's rules and
regulations. The application for review of a Regional Director's
decision and order on a petition for clarification of unit did not
present compelling reasons for granting review.
Case No. 3-CU-60007
ARLINGTON NATIONAL CEMETERY ANCIV-MMC
Activity
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-93, SEIU,
AFL-CIO
Labor Organization
ORDER DENYING APPLICATION FOR REVIEW
On September 30, 1986, Arlington National Cemetery, ANCIV-MMC (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 its application for
review, the Activity contends that compelling reasons exist within the
meaning of section 2422.17(c) of the Authority's Rules and Regulations
for granting this application. The National Association of Government
Employees, Local R4-93, SEIU, AFL-CIO (NAGE) filed an opposition to the
Activity's application for review.
Upon consideration of the Activity's application for review,
including all arguments in support thereof, the Authority concludes that
no compelling reason exists for granting the application. Rather, the
application in essence expresses mere disagreement with the Regional
Director's findings which are based on precedent and have not been shown
to be clearly erroneous or to have prejudicially affected the rights of
any party.
Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
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., November 21, 1986.
/s/ Jerry Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 19
AFGE, Local 12 and Dep't of Labor (Lubic, Arbitrator), Case No.
0-AR-1070 (Decided November 21, 1986)
STATUTE
7106(a)(2)(A) and (B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration Awards, Exceptions
Award Contrary to the FSLMR Statute
7106(a)(2)(A)
7106(a)(2)(B)
Award Contrary to Applicable Law
29 U.S.C. 707 Et Seq. (Rehabilitation Act of 1973)
Assign Employee, Reserved Management Right (7106(a)(2)(A))
Health and Safety
Assign Work, Reserved Management Right (7106(a)(2)(B))
Health and Safety
Code of Federal Regulations
29 C.F.R. 1613.703
29 C.F.R. 1613.704
29 C.F.R. 1613.704(b)
29 C.F.R. 1613.704(c)
Health and Safety
Handicapped Employees
Reasonable Accommodation for Medical Condition
Video Display Terminal
Reasonable Accommodation for Visually Handicapped Employees
Management Rights: Generally
Accommodations Between Conflicting Rights and Obligations
Reasonable Accommodations for Handicapped Employees
Promotion
Repromotion
Harmful Error: Failing to Put Grievant on Repromotion List
United States Code
29 U.S.C. 701 Et Seq. (Rehabilitation Act of 1973)
5 U.S.C. 7702
DIGEST NOTES
The grievant was downgraded as the result of a reduction-in-force
from a secretary/typist position to a clerk/typist position. She filed
a grievance alleging that she was improperly placed in the position and
also that she was unable to work at a video display terminal (VDT)
because of eye and medical problems. Subsequently, the grievant
experienced further medical problems and was eventually classified as a
handicapped employee under the Rehabilitation Act of 1973, 29 U.S.C.
section 701 et seq.
The arbitrator found, among other things, that the activity failed to
reasonably accommodate the grievant's handicapped condition as required
under the Rehabilitation Act of 1973 and the regulations contained in 29
C.F.R. section 1613.703-704, which requre, among other things, Federal
agencies to give full consideration to the hiring, placement and
advancement of qualified mentally and physically handicapped persons.
The arbitrator also found that the agency did not show that making a
reasonable accommodation for the grievant's condition would create undue
hardship. Particularly, the arbitrator found that the activity failed
to accommodate the grievant's eyesight problem and resultant inability
to use a VDT for more than a short time. He concluded that the only
possible remedy for the grievant's problem would be the immediate
restructuring of a suitable position in the activity and held that such
a restructuring would not cause undue hardship in an organization the
size of the activity. As his award, he ordered the activity to offer
the grievant within 30 days a restructured clerical position without use
of any VDT equipment and with the position description therefore
containing reasonable elements and standards.
In its exceptions, the agency alleged that the award was contrary to
its rights to assign work and assign employees under section
7106(a)(2)(A) and (B). Also the agency contended that the award was
contrary to the Rehabilitation Act of 1973 and implementing regulations
which only require that a handicapped employee be accommodated to the
extent such accommodation does not create an undue hardship for the
agency and does not require reassignment to another position.
In this case the Authority considered for the first time the extent
management's rights to assign work and employees under section
7106(a)(2)(A) and (B) is affected by the requirements of the
Rehabilitation Act of 1973 and its implementing regulations. Under the
Act and its implementing regulations handicapped employees are entitled
to reasonable accommodation unless the agency can demonstrate that the
"accommodation would impose an undue hardship on the operation" of its
program (29 C.F.R. section 1613.704(c)). The Authority reviewed several
relevant decisions of Federal courts and of the Special Panel that
resolves disputes between MSPB and the EEOC.
The Authority held the arbitrator's award reflects a proper
interpretation of the provisions of the Rehabilitation Act of 1973 and
29 C.F.R. section 1613.704 consistent with the interpretations made by
the Special Panel and the courts. The agency did not demonstrate to the
arbitrator and did not demonstrate in its arguments before the Authority
that the assignment of the grievant to a restructured position which
does not require the use of a VDT terminal could cause it undue
hardship. Neither did the agency show that the operation of a VDT is
such an essential function of the grievant's clerical position that it
could not be eliminated and replaced by other appropriate duties within
the position. The award simply required restructuring of the grievant's
present position, not reassignment, and is consistent with law.
Case No. 0-AR-1070
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12
Union
and
U.S. DEPARTMENT OF LABOR
Agency
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Robert Bennett Lubic filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute and
part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant was downgraded as the result of a reduction in force
(RIF) from the position of secretary/typist, GS-6, in the Women's Bureau
to a position of clerk/typist, GS-4, in the Benefits Review Board (BRB).
She filed a grievance alleging that she was improperly placed in the
BRB position and also that she was unable to work at a video display
terminal (VDT) because of eye and medical problems. Subsequently, the
grievant experienced further medical problems and was eventually
classified as a handicapped employee under the Rehabilitation Act of
1973, 29 U.S.C. Section 701 et seq. During this time she was given
other assignments including a reassignment to a GS-4 mail and file clerk
position in another office. However, none of the assignments proved
satisfactory and the grievant filed additional grievances which were
eventually submitted to arbitration.
The Arbitrator stated that three issues were before him: (1) whether
the Agency discriminated against the grievant on the basis of race; (2)
whether the grievant suffered harmful error when the Agency failed to
place her on a repromotion list; and (3) whether the Agency
accommodated the grievant's handicapped condition. With respect to the
first two issues, he found that the Agency did not discriminate against
the grievant because of race and that the Agency did not harm the
grievant when it failed to place her on a repromotion list at the time
of the RIF. No exceptions were filed with regard to these findings. As
to the third issue, the Arbitrator agreed with the Union that the Agency
failed to accommodate the grievant's handicapped condition as required
under the Rehabilitation Act of 1973 and the regulations contained in 29
C.F.R. Section 1613.703, which require Federal agencies to give full
consideration to the hiring, placement and advancement of qualified
mentally and physically handicapped persons. Furhter, the Arbitrator
found that (1) the Agency failed to make reasonable accommodation to the
grievant's handicapped condition as required by 29 C.F.R. Section
1613.704 /1/ and (2) the Agency did not show that making a reasonable
accommodation for the grievant's condition would create undue hardship.
Particularly, the Arbitrator found that the Agency failed to accommodate
the grievant's eyesight problem and resultant inability to use a VDT for
more than a short time. He concluded that the only possible remedy for
the grievant's problem would be the immediate restructuring of a
suitable GS-4 position in the BRB and held that such a restructuring
would not cause undue hardship in an organization the size of the BRB,
especially at the GS-4 level. As his award he ordered the Agency to
offer the grievant within 30 days a restructured GS-4 clerical position
at the BRB "without use of any VDT equipment and with the PD therefore
containing reasonable elements and standards."
III. AGENCY EXCEPTION
The Agency alleges that the Arbitrator's award is contrary to law
because it requires the Agency to reassign the grievant to a
specifically restructured position and violates management's right to
assign work and to assign employees under section 7106(a)(2) of the
Statute. The Agency contends that the award effectively requires
management to establish a new clerical position which does not require
use of a VDT and to place the grievant in the position. The Agency
contends that the award is contrary to the Rehabilitation Act of 1973
and implementing regulations which only require that a handicapped
employee be accommodated to the extent such accommodation does not
create an undue hardship for the Agency and does not require
reassignment to another position.
IV. ANALYSIS AND CONCLUSION
We conclude that the Agency's exception should be denied for the
following reasons.
The Authority has consistently held that proposals and agreement
provisions which interfere with management's right to assign employees
and to assign work under section 7106(a)(2)(A) and (B) are outside the
duty to bargain and not enforceable by arbitrators. National Treasury
Employees Union, Chapter 26 and Internal Revenue Service, Atlanta
District, 22 FLRA No. 30 (1986) (Proposal 5); Southwestern Power
Administration and International Brotherhood of Electrical Workers,
Local 1002, 22 FLRA No. 48 (1986). Proposals providing that work
assignments will be altered or tailored to accommodate employees who are
temporarily unable to perform their regularly assigned duties because of
illness or injury have been held to be nonnegotiable. National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980); National
Federation of Federal Employees, Local 943 and Department of the Air
Force, Headquarters Keesler Technical Training Center, Keesler Air Force
Base, Mississippi, 19 FLRA No. 113 (1985) (Proposal 2). However, the
Authority has not had occasion to consider to what extent, if any,
management's right to assign work and employees under section
7106(a)(2)(A) and (B) is affected by the requirements of the
Rehabilitation Act of 1973 and its implementing regulations under which
handicapped employees are entitled to reasonable accommodation unless
the agency can demonstrate that the "accommodation would impose an undue
hardship on the operation" of its program (29 C.F.R. Section
1613.704(c)).
The rights to be accorded handicapped employees, including the effect
of certain other Federal laws and the extent of any reasonable
accommodation has been addressed in several cases. In the first case
certified to the Special Panel under 5 U.S.C. Section 7702, /2/ the
Panel resolved a conflict between the Equal Employment Opportunity
Commission (EEOC) and the Merit Systems Protection Board (MSPB) over the
interpretation of certain civil service directives. EEOC must be
considered as a possible means of reasonable accommodation for
handicapped employees. MSPB maintained that reassignment need not be
considered as a means of reasonable accommodation since assignment
constitutes an area of agency discretion under civil service law. The
Panel concluded that the EEOC did not misapply the civil service
directives and held there was nothing unreasonable in the EEOC's
decision that reassignment is within the scope of reasonable
accommodation under the Rehabilitation Act. Ignacio v. U.S. Postal
Service, Special Panel No. 1, February 27, 1986, 86 FMSR 7026.
In a later decision, the Special Panel stated that an "appallant may
not force consideration of reassignment ad infinitum" where there are no
vacant positions available. Lynch v. Department of Education, Special
Panel, August 20, 1986, Docket No. DC07528210746; DC531D8211379. The
Panel reiterated that its decision in Ignacio only requires that
reassignment be considered as a reasonable accommodation and does not
require an agency to create a position where none exists. Lynch, note
10.
In a court case involving a discharged postal worker who claimed that
he was not accorded reasonable accommodation for his handicapped
condition, a district court held that the regulations implementing the
Rehabilitation Act do not enumerate reassignment as a required
accommodation and noted that there are no cases which hold that
reassignment is required, including Ignacio. Carty v. Carlin, 623 F.
Supp. 1181, 1185 (D.Md. 1985). The Court concluded that the duty to
reasonably accommodate only contemplates accommodation of a qualified
handicapped employee's present position and does not include a
requirement to transfer or reassign an employee to another position.
With regard to an agency's duty under the Rehabilitation Act to
accommodate a handicapped employee by restructuring the employee's
position, the Sixth Circuit has held that the agency is not required to
eliminate the essential functions of the employee's job or to
restructure the job in a manner which would usurp the legitimate rights
of other employees in a collective bargaining agreement. Jasany v. U.S.
Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985). The Court held
that the appellant was not a handicapped person within the meaning of
the Rehabilitation Act and therefore failed to establish a prima facie
case of handicap discrimination. However, the Court held that even if
the employee were handicapped the Postal Service was not required to
accommodate him by eliminating one of the essential functions of his job
which was the operation of a certain mail sorting machine. The Court
rejected the employee's contention that he could have been reassigned to
the related job of "allied man" on the machine and noted that nothing in
the record pertained to the existence of such a position and that the
suggestion "confuses accommodation with elimination of an essential
function." Jasany at 1251.
In the circumstances of this case, the grievant was certified as a
qualified handicapped employee by the Agency. As such, she was entitled
to "reasonable accommodation" which under 29 C.F.R. Section 1613.704(b)
includes "job restructuring" among other possibilities. The Arbitrator
determined that the Agency failed to meet its obligation to provide
reasonable accommodation to the grievant and found that the grievant
could be assigned to a restructured GS-4 position not requiring use of a
VDT without imposing undue hardship on the operation of the Agency.
The Authority finds that the Arbitrator's award reflects a proper
interpretation of the provisions of the Rehabilitation Act of 1973 and
29 C.F.R. Section 1613.704 consistent with the interpretations made by
the Special Panel and the courts. The Agency did not demonstrate to the
Arbitrator and has not demonstrated in its arguments before the
Authority that the assignment of the grievant to a restructured GS-4
position which does not require the use of a VDT terminal would cause it
undue hardship. Neither does the Agency show that the operation of a
VDT is such an essential function of the grievant's clerical position
that it could not be eliminated and replaced by other appropriate duties
within the position. The award simply requires restructuring of the
grievant's present position, not reassignment, and is consistent with
law. Further, consistent with the case law discussed above, the
Authority finds that nothing in the Statute or its legislative history
reflects any intent to supersede the provisions of the Rehabilitation
Act of 1973 and its implementing regulations pertinent here.
Consequently, there is no basis for the Agency's exception that the
Arbitrator's award is contrary to 5 U.S.C. Section 7106(a)(2)(A) and (B)
and to the Rehabilitation Act of 1973.
V. DECISION
Accordingly, for the above reasons, the Agency's exception is denied.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) 29 C.F.R. Section 1613.704 pertinently provides:
(a) An agency shall make reasonable accommodation to the known
physical or mental limitations of a qualified handicapped
applicant or employee unless the agency can demonstrate that the
accommodation would impose an undue hardship on the operation of
its program.
(b) Reasonable accommodation may include, but shall not be
limited to: (1) Making facilities readily accessible to and
usable by handicapped persons, and (2) job restructuring,
part-time or modified work schedules, acquisition or modification
of equipment or devices, appropriate adjustment or modification of
examinations, the provision of readers and interpreters, and other
similar actions.
(c) In determining pursuant to paragraph (a) of this section
whether an accommodation would impose an undue hardship on the
operation of the agency in question, factors to be considered
include: (1) The overall size of the agency's program with
respect to the number of employees, number and type of facilities
and size of budget; (2) the type of agency operation, including
the composition and structure of the agency's work force; and (3)
the nature and the cost of the accommodation.
(2) The Special Panel was created by the Civil Service Reform Act of
1978 for the purpose of resolving disputes between the MSPB and the EEOC
concerning cases with mixed civil service law and discrimination law
issues that have been originally appealed to the MSPB. The Panel's
jurisdiction in such matters is set out in 5 U.S.C. Section 7702.
24 FLRA NO. 18
Local 12, AFGE and Dep't of Labor (Lipton, Arbitrator), Case No.
0-AR-1081 (Decided November 21, 1986)
STATUTE
7106(a)(2)(C)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Appointments, Selection For
Management's Right Abridgement
Arbitration Awards, Modified/Set Aside
Award Contrary To Applicable Law
5 U.S.C. 5596 (Back Pay Act)
Award Contrary To The FSLMR Statute
7106(a)(2)(C)
Arbitration Awards, Review Of, Exceptions Asserted In Appeal
Arbitrator Failed To Conduct A Fair Hearing (By:)
Refusing To Hear Pertinent And Material Evidence
Award Contrary To Applicable Law
5 U.S.C. 5596 (Back Pay Act)
Award Contrary To The FSLMR Statute
7106(a)(2)(C)
Law Not Specified
Arbitration Awards, Review Of, No Basis For Review
Disagreement With Arbitrator's Evaluation Of The Evidence
Disagreement With Arbitrator's Reasoning And Conclusions
Arbitration Awards, Remedies Ordered By Arbitrators
Backpay
Reinstate Grievant
Attorney Fees
Requirements For An Award
Backpay
Criteria For Backpay And Retroactive Promotions
Unwarranted Or Unjustified Personnel Action
Federal Personnel Manual
Chapter 335
Position, Filling Of
Arbitration Award
Instatement Of Employee Who Had Voluntarily Resigned
Priority Or Preferential Treatment
Corrective Action
Promotion
Career-Ladder Promotion
Obligation To Employee
Provide Grade-Building Experience
United States Code
5 U.S.C. 5596 (Back Pay Act)
5 U.S.C. 7701(g)
DIGEST NOTES
The grievant voluntarily resigned after he had filed a grievance
contending that he was denied a career ladder promotion to GS-6 because
of sex, race and union activities and that he was harassed. The
arbitrator found that the allegations of discrimination and harassment
were not supported by the evidence, and ruled that the grievant's level
of performance did not qualify him for a promotion to GS-6. Although
the arbitrator found that the agency failed to meet its obligation under
the agreement to provide the grievant with grade-building experience and
developmental opportunity, he also noted that the evidence did not
establish a reasonable probability that the grievant would have been
promoted even if that experience had been provided. As his award the
arbitrator ordered the agency to offer the grievant "instatement" in the
GS-5 career ladder position with the potential for promotion to GS-6
with retroactive pay if the grievant were promoted.
In its first exception the agency contended that the award conflicts
with its rights to select under section 7106(a)(2)(C) because it
requires the agency to offer the grievant the GS-5 position from which
he resigned. The Authority agreed with the agency that the award was
deficient. Management's right to make selections for appointment can be
abridged only if the arbitrator finds a direct connection between
improper agency action and the failure of a specific employee to be
selected. The arbitrator did not find that the failure to provide the
grievant with grade-building experience directly resulted in the denial
of the career ladder promotion.
The agency also contended that the award was contrary to the Back Pay
Act, 5 U.S.C. section 5596. The arbitrator did not find that an
improper agency action directly resulted in the denial of the grievant's
promotion or in his resignation from his GS-5 position. Since the
arbitrator did not find that but for an unjustified or unwarranted
personnel action the grievant would not have suffered a withdrawal or
reduction in pay, allowances or differentials, the Authority held the
award to be contrary to the Back Pay Act.
The union excepted to the award by alleging that the denial of its
request for attorney fees was contrary to law. However, an arbitrator
is authorized to award attorney fees under the terms of the Back Pay Act
only in conjunction with an award of backpay on the correction of an
unjustified or unwarranted personnel action. Further, the award of
attorney fees must be in accordance with the standards established under
5 U.S.C. section 7701(g). In this case the arbitrator's award failed to
meet the requirements of the Back Pay Act and accordingly, there was no
basis for an award of backpay or attorney fees under the Act.
In its second exception, the union contended that the award was
deficient because the arbitrator denied it a fair hearing by improperly
rejecting evidence and by misunderstanding key factual matters. The
Authority held that the union failed to establish that it was denied a
fair hearing and concluded that the union's second exception constitutes
nothing more than disagreement with the arbitrator's reasoning and
conclusions and with his evaluation of the evidence and testimony
presented.
The Authority noted that while the agency's exceptions provided a
basis for finding the award deficient as contrary to section
7106(a)(2)(C), the arbitrator made a valid finding that the agency
violated the agreement when it failed to provide the grievant with
grade-building experience. Also, the Authority noted that priority
consideration under FPM Chapter 335 is available as corrective action in
a variety of situations in which employees have been found to be
wrongfully denied the consideration or process to which they are
entitled. Accordingly, the Authority modified the award to provide the
grievant with priority consideration for selection.
Case No. 0-AR-1081
LOCAL 12, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Union
and
U.S. DEPARTMENT OF LABOR
Agency
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Benjamin B. Lipton filed by the Agency and by the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant was employed by the Agency as a GS-5 library technician
from 1980 until he voluntarily resigned in 1985. In a grievance filed
in January 1984, he contended that he was denied a career ladder
promotion to GS-6 because of sex, race and union activities and that he
was harassed. The grievance was submitted to arbitration. The
Arbitrator found that the allegations of discrimination and harassment
were not supported by the evidence, and ruled that the grievant's level
of performance did not qualify him for a promotion to GS-6. Although
the Arbitrator found that the Agency failed to meet its obligation under
the agreement to provide the grievant with grade-building experience and
developmental opportunity, he also noted that the evidence did not
establish a reasonable probability that the grievant would have been
promoted even if that experience had been provided. As his award the
Arbitrator ordered the Agency to offer the grievant "instatement" in a
GS-5 career ladder position with the potential for promotion to GS-6 at
two six-month intervals during the first year with retroactive pay if
the grievant were promoted. He denied the grievant's request for
attorney fees.
III. AGENCY EXCEPTIONS
A. Contentions
The Agency contends the award conflicts with its right to select
under section 7106(a)(2)(C) of the Statute because it requires the
Agency to offer the grievant the GS-5 position from which he voluntarily
resigned. The Agency also contends that the award is contrary to the
Back Pay Act, 5 U.S.C. Section 5596, because it awards backpay without
the requisite finding that "but for" the Agency's action the grievant
would have been promoted.
B. Analysis and Conclusion
The Authority agrees that the award is deficient on the grounds
stated in Agency's exceptions. It is well established that management's
right to make a selection for an appointment can be abridged only if the
arbitrator finds a direct connection between improper agency action and
the failure of a specific employee to be selected. U.S. Department of
Justice, Bureau of Prisons, Federal Correctional Institution, Lexington,
Kentucky and American Federation of Government Employees, Local 817, 21
FLRA No. 108 (1986). In this case, the Arbitrator did not find that the
Agency's failure to provide the grievant with grade-building experience
directly resulted in the denial of the career ladder promotion. To the
contrary, he ruled that the grievant's performance was such that there
was no reasonable probability of his being promoted even if
grade-building experience had been provided. Further, the Arbitrator
made no finding that the Agency's improper action caused the grievant to
resign from his GS-5 position. Therefore, we conclude that the award
directing "instatement" of the grievant in a GS-5 position is deficient
as contrary to management's right to make selections for appointment
under section 7106(a)(2)(C) of the Statute.
With regard to the Arbitrator's award of retroactive pay, we conclude
that the award is contrary to the Back Pay Act. Backpay can be granted
under that Act only upon finding that (1) an agency personnel action was
unjustified or unwarranted; (2) the personnel action directly resulted
in the withdrawal or reduction of an aggrieved employee's pay,
allowances, or differentials; and (3) but for such action, the grievant
would not have suffered such withdrawal or reduction. U.S. Department
of Commerce, Patent and Trademark Office and the Patent Office
Professional Association, 21 FLRA No. 52 (1986). The Arbitrator made no
finding that an improper action by the Agency directly resulted in the
denial of grievant's promotion or in his resignation from his GS-5
position. Therefore, the requirements of the Back Pay Act have not been
met.
IV. FIRST UNION EXCEPTION
A. Contentions
The Union contends that the Arbitrator's denial of its request for
attorney fees is contrary to law. The Union maintains that it is
entitled to attorney fees because it was the prevailing party in the
arbitration proceeding, and also maintains that the Arbitrator's summary
denial of fees without expressing a basis for his decision was arbitrary
and capricious.
B. Analysis and Conclusion
The Union's first exception is denied. The Authority has
consistently held that an arbitrator is authorized to award attorney
fees under the terms of the Back Pay Act only in conjunction with an
award of backpay on the correction of an unjustified or unwarranted
personnel action. United States Army Aviation Systems Command and
National Federation of Federal Employees, Local 405, 22 FLRA No. 35
(1986). Further, the award of attorney fees must be in accordance with
the standards established under 5 U.S.C. Section 7701(g). Id. In this
case, as noted in connection with the Agency's exceptions, the
Arbitrator's award fails to meet the requirements of the Back Pay Act
and accordingly, there is no basis for an award of backpay or attorney
fees under the Act
V. SECOND UNION EXCEPTION
A. Contentions
In its second exception the Union contends that the award is
deficient because the Arbitrator denied it a fair hearing by improperly
rejecting evidence and by misunderstanding key factual matters.
B. Analysis and Conclusion
The Union's second exception fails to provide a basis for finding the
award deficient and is denied. Although the Authority will find an
arbitration award deficient if it is established that the arbitrator
failed to conduct a fair hearing by refusing to hear pertinent and
material evidence, an arbitrator has considerable latitude in the
conduct of the hearing. U.S. Department of Labor and American
Federation of Government Employees, Local No. 644, NCFLL, 12 FLRA 639,
641 (1983). In this case the Union has failed to establish that it was
denied a fair hearing. We conclude that the Union's second exception
constitutes nothing more than disagreement with the Arbitrator's
reasoning and conclusions and with his evaluation of the evidence and
testimony presented. This disagreement is not a basis for finding an
award deficient. Supervisor of Shipbuilding, Conversion and Repair,
United States Navy and Local R4-2, National Association of Government
Employees (NAGE), 5 FLRA 235 (1981).
VI. DECISION
While the Agency's exceptions provide a basis for finding the award
deficient as contrary to section 7106(a)(2)(C) of the Statute and the
Back Pay Act, we recognize that the Arbitrator made a valid finding that
the Agency violated the agreement when it failed to provide the grievant
with grade-building experience. In Bureau of Prisons, 21 FLRA No. 108,
supra. the Authority held that priority consideration under FPM Chapter
335 is available as a corrective action in a variety of situations in
which employees have been found to be wrongfully denied the
consideration or process to which they are entitled. Therefore, the
Arbitrator's award is set aside and replaced with the following:
Consistent with applicable law, the grievant shall be given
priority consideration for selection to the next available GS-5
library technician position for which he applies.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 17
NAGE, Local R14-8 and VA Medical Center, Topeka, Kansas, Case No.
0-NG-1218 (Decided November 21, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A) and (B)
7131(d)
SUBJECT MATTER INDEX ENTRIES
Assign Work, Reserved Management Right
Hours of Work
Training
Code of Federal Regulations
5 C.F.R. 610.121
Direct Employees, Reserved Management Right (7106(a)(2)(A))
Training
Hours of Work
Days Off
Consecutive Days Off Requirement
Meal Periods
Restrictions from Requiring Meals During Specified Hours
Shift Assignments
Frequency of Changes in Shift Assignments
Interval Between Shifts
Starting and Quitting Times
Management Rights: Generally
Conditioning Right on the Prior Exercise of Other Rights
Performance Appraisal System
Position Description
Prohibition on Evaluating for Duties Not in PD
Training
No Evaluations on Duties Where Not Trained
United States Code
5 U.S.C. 5543
DIGEST NOTES
A proposal is negotiable that concerns adjusting the starting and
quitting times of union officials when they are processing grievances
involving an employee on a shift other than their own. The proposal
does not interfere with the agency's right to assign work under section
7106(a)(2)(B). Rather, the proposal merely concerns the times when the
union official will perform assigned duties. The proposal would permit
the agency to consider its staffing workload requirements when acting on
requests for adjustments in starting and quitting times. Also, contrary
to the agency's allegation, there is no basis to conclude that the
union's proposal constitutes a grant of compensatory time. Finally, the
proposal does not require the agency to schedule employees in a manner
other than that required by 5 C.F.R. section 610.121. (proposal 1)
A proposal is nonnegotiable that would prohibit the agency from
scheduling an employee to work on a shift if that employee had worked
during the previous eleven hours or to schedule an employee for two
different tours of duty in the same week. Such requirements places a
limitation upon the agency's exercise of its right to assign work and
could prevent the agency from determining what duties were to be
performed on what shift in violation of section 7106(a)(2)(B).
(proposal 2)
A proposal is negotiable that requires the agency to "ordinarily"
provide consecutive days off to employees. The proposal would not
require consecutive days off where the agency determines that the
requirement adversely affects work requirements. Accordingly, the
proposal is not inconsistent with 5 C.F.R. section 610.121, a
Government-wide regulation, which requires agencies to schedule
employees consistent with actual work requirements. (proposal 3)
A proposal is negotiable which provides that employees "ordinarily"
will not be required to eat their meals during the 6:00 p.m. to 6:00
a.m. period. The agency may require the meal period to occur during the
specified hours if necessary. (proposal 4)
A proposal is negotiable to the extent that it precludes an agency
from evaluating employees for duties that are beyond the scope of the
employees' position description. Such a proposal would not prevent an
agency from evaluating employees on any particular duties since the
agency could always add the functions upon which it wished to evaluate
employees to the employees' position descriptions. (proposal 5)
A proposal is outside the duty to bargain to the extent that it would
prevent the agency from holding an employee responsible for those duties
for which it has not provided training. Proposals are outside the duty
to bargain that condition the agency's exercise of one of its reserved
rights upon the prior exercise of another of its rights. In this case,
the proposal would condition the agency's determination of the duties
and functions upon which employees' performance would be appraised, an
exercise of its right to direct employees and assign work under section
7106(a)(2)(A) and (B), upon its exercise of its right to assign work
(training). (proposal 5)
Case No. 0-NG-1218
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-8
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER, TOPEKA, KANSAS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of five Union proposals. /1/
II. Union Proposal 1
ARTICLE 10
Section 4. A steward or employee may request permission from
his/her supervisor to report on duty one hour early or late, and
be relieved from duty one hour early or late, whichever may be
required to permit the steward to assist an employee, who is
working a different shift, in the processing of a grievance during
both the steward's and employee's on-duty time. Determination to
grant the request will be based on staffing workload requirements
as well as whether the change would result in the tour of duty
extending over two days.
A. Positions of the Parties
The Agency contends that the proposal would interfere with its right
under secion 7106(a)(2)(B) to assign work by prohibiting it from
assigning duties to a Union officer or steward during the first or last
hour of a shift so that the employee could process grievances. The
Agency also argues that Proposal 1 would have the effect of granting
compensatory time to an employee in circumstances not authorized under 5
U.S.C. Section 5543. The Agency further contends that the proposal is
inconsistent with 5 C.F.R. Section 610.121, a Government-wide
regulation. It claims that the proposed adjustment would require the
Agency to schedule employees on the basis of union representational
activities rather than the Agency's mission as required by the
regulation.
The Union contends that its proposal would only require the Agency to
consider the request of a Union officer or steward for official time.
It claims that the proposal would enhance an employee's ability to have
the Union representative of his or her choice. The Union also argues
that the proposal would not require the Agency to adjust schedules but
instead would allow the Union representative and the employee to use the
official time to which they are otherwise entitled at a time which would
be convenient. Finally, the Union contends that Proposal 1 would not
require the grant of compensatory time since it would not affect the
number of hours worked by an employee during the week.
B. Analysis and Conclusions
As the Authority has previously indicated, parties may negotiate
procedures and practices which do not negate an agency's rights but
which would enable a union to implement its statutory rights and duties
with respect to the representation of employees. See American
Federation of Government Employees, AFL-CIO, Local 2272 and Department
of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004,
1014-15 (1982) (Union Proposal 7). In National Treasury Employees
Union, Chapter 66 and Internal Revenue Service, Kansas City Service
Center, 1 FLRA 926 (1979), the Authority found that a proposal that
would adjust the starting and quitting times of employees did not
violate the agency's rights under section 7106(b)(1) and was within the
duty to bargain. Union Proposal 1 is similarly concerned with adjusting
the starting and quitting times of Union officials when those officials
are processing grievances involving an employee on a shift other than
their own. Contrary to the Agency's contentions, the proposal does not
prohibit it from assigning duties to the Union officials covered by the
proposal. Rather, Proposal 1 merely concerns the time when those
officials will perform either duties which the Agency has already
assigned to them or representational functions on official time as
negotiated pursuant to section 7131(d) of the Statute. See 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, 665 (1982) (Union
Proposal 1). Moreover, by its terms, the Union's proposal does not
require the request to be granted and specifically provides for
consideration of the Agency's staffing workload requirements.
Consequently, we find that Union Proposal 1 constitutes a procedure
within the meaning of section 7106(b)(2) which does not violate
management's right to assign work.
We find no basis upon which to conclude that the Union's proposal
constitutes a grant of compensatory time. Additionally, the Agency has
not demonstrated that Union Proposal 1 would require it to schedule
employees in a manner other than that required by 5 C.F.R. Section
610.121. Compare National Association of Government Employees, Local
R7-23 and Department of the Air Force, Scott Air Force Base, Illinois,
23 FLRA No. 97 (1986), in which the Authority found that Union Proposal
1 requiring 14 days advance notice of a scheduling change was outside
the duty to bargain in that the proposal made no allowance for
exceptions to the 14-day requirement as provided under 5 C.F.R. Section
610.121 and 5 U.S.C. Section 6101. Accordingly, Union Proposal 1 is
within the duty to bargain.
III. Union Proposal 2
ARTICLE 11
Section 2. When an employee changes work shifts, he/she will
not be required to report for duty for eleven (11) hours.
Section 9. Employees will not be required to work more than
two tours of duty in one workweek except to allow for a minimum of
eleven (11) hours between the end of one tour and the beginning of
the next.
A. Positions of the Parties
The Agency contends that Union Proposal 2 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. The
Agency argues that the proposal would require it to provide employees
with eleven hours between each shift worked by an employee regardless of
actual work requirements.
The Union contends that the proposal does not conflict with the
regulation cited by the Agency. It claims that Proposal 2 does not
prevent the Agency from acting at all to schedule employees in
accordance with mission requirements.
B. Analysis and Conclusion
The Authority finds that Union Proposal 2 is outside the duty to
bargain for a reason other than that raised by the Agency. Union
Proposal 2 would prohibit the Agency from scheduling an employee to work
on a shift if that employee had worked during the previous eleven hours,
or to schedule an employee for two different tours of duty in the same
week except to provide the employee with an eleven hour interval between
shifts, regardless of the Agency's work requirements and whether that
employee's particular skills were needed on a particular shift. Such
requirements would place a condition upon the Agency's exercise of its
right to assign work and could prevent the Agency from determining what
duties were to be performed on what shift in violation of section
7106(a)(2)(B). See National Labor Relations Board Union, Local 19 and
National Labor Relations Board, Region 19, 2 FLRA 774 (1980). By
contrast, Union Proposal 1 would not affect the Agency's discretion to
determine what work was to be performed on what shift, and enables the
Agency to consider its staffing workload requirements when acting on
requests for adjustments in starting and quitting times. Accordingly,
we conclude that Union Proposal 2 is outside the duty to bargain. In
view of this determination, we need not determine whether the proposal
is also inconsistent with 5 C.F.R. Section 610.121.
IV. Union Proposal 3
ARTICLE 11
Section 6. Ordinarily, employees' days off will be
consecutive. Employees' days off will not be arbitrarily split.
An employee's written request for alternative scheduling including
split days off will be considered.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation which requires it
to schedule employees consistent with actual work requirements. It
argues that Union Proposal 3 would require it to schedule employees for
consecutive days off regardless of the Agency's actual work
requirements. The Union disputes the Agency's contentions.
B. Analysis and Conclusion
The Authority finds that Union Proposal 3 is to the same effect as
the proposal which we found to be within the duty to bargain in American
Federation of State, County and Municipal Employees, Local 2477 and
Library of Congress, 14 FLRA 59 (1984). In that case we held that a
proposal to rotate days off for certain agency employees was not
contrary to any of the management rights raised by the agency.
Similarly, the Agency does not contend, and it is not otherwise
apparent, that Union Proposal 3 here is inconsistent with any management
rights.
Additionally, we reject the Agency's contention that the proposal
would prevent it from scheduling employees consistent with actual work
requirements. The proposal provides that employees will "ordinarily" be
given consecutive days off. The Union states that the Agency need not
provide employees with consecutive days off where patient care would be
adversely affected. Union Petition for Review at 2. We accept the
Union's interpretation and find that, while it would require the Agency
to attempt to provide consecutive days off in most cases, the proposal
would not require consecutive days off where the Agency determines that
patient care would be adversely affected. Accordingly, we conclude that
Union Proposal 3 is not inconsistent with 5 C.F.R. Section 610.121 and
is within the duty to bargain.
V. Union Proposal 4
ARTICLE 11
Section 7. Since the eating of meals by GS employees between
6:00 p.m. and 6:00 a.m. will reduce the amount of night
differential pay for the shift, these employees will not
ordinarily be required to eat their meals within this time period.
A. Positions of the Parties
The Agency contends that Union Proposal 4 violates its right under
section 7106(a)(2)(B) to assign work. The Union contends that the
proposal is merely concerned with when employees will take the 30-minute
meal period to which they are entitled.
B. Analysis and Conclusion
The Authority finds that Union Proposal 4, like Union Proposal 1
discussed above, does not prevent the Agency from assigning duties to
the employees covered by the proposal. Proposal 4 does not concern
whether employees are entitled to a meal period or how long that period
should be. Rather, the proposal is concerned with when employees will
take the 30-minute meal period to which they are entitled.
The Authority has held that the time at which means or breaks will be
observed is within the duty to bargain. See American Federation of
Government Employees, Local 3342, AFL-CIO and Department of Health and
Human Services, Social Security Administration, 19 FLRA No. 124. slip
op. at 2-3 (1985) (breaks); Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, 19 FLRA No. 123,
slip op. at 4 (1985) (lunch periods). Additionally, the proposal
provides that the employees "ordinarily" will not be required to eat
their meals during the 6:00 p.m. to 6:00 a.m. period. The Union states
that this will give the Agency flexibility to require the meal period to
occur during the specified hours if necessary. Union Reply Brief at 8.
The language of the proposal is not inconsistent with the Union's stated
intent and we adopt the Union's interpretation. Accordingly, for the
reasons set forth above, we find that Union Proposal 4 does not violate
the Agency's rights and is within the duty to bargain.
VI. Union Proposal 5
ARTICLE 15
Section 2. Employees will not be held responsible for
conditions in their immediate work area beyond what can be
reasonably expected based on job training or duties beyond the
scope of their position description; however, employees have the
obligation to report obvious hazards or unlawful activities of
which they become aware.
A. Positions of the Parties
The Agency contends that Union Proposal 5 violates its right under
section 7106(a)(2)(B) to assign work by preventing it from requiring an
employee to perform duties for which the employee has not been given job
training or which are outside the employee's position description.
The Union contends that the proposal would not prevent the Agency
from assigning duties to employees. Rather, the Union states that its
proposal merely provides that an employee will not be held responsible
or be subject to a performance-based action because of duties for which
the employee has not been trained or which are outside the employee's
position description. The Union suggests the proposal merely
incorporates into the parties' agreement circumstances in which an
arbitrator would not uphold a performance-based action against an
employee.
B. Analysis and Conclusions
The Authority finds, contrary to the Agency's interpretation, that
Proposal 5 would not prevent the Agency from assigning duties to
employees. Rather, as contended by the Union, the proposal would
prohibit the Agency from using assigned duties as the basis for a
performance evaluation or a performance-based action where (1) an
employee has not been trained to perform the assigned duties; or (2)
the assigned duties are beyond the scope of the duties in the employee's
position description.
The Authority has found that a proposal prohibiting an agency from
evaluating employees' performance of duties not within their job
descriptions is within the duty to bargain. American Federation of
Government Employees, Council of Social Security District Office Locals
and Department of Health and Human Services, Social Security
Administration, 11 FLRA 608, 611-12 (1983) (Union Proposal 2). The
Authority held that such a proposal would not prevent the agency from
evaluating employees on any particular duties since the agency could
always add the functions upon which it wished to evaluate employees to
the employees' position description.
The Authority has also held, however, that a proposal prohibiting an
agency from evaluating employees upon certain functions unless the
agency first provides training violates management's rights. American
Federation of Government Employees, AFL-CIO, Local 3004 and Department
of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982).
The Authority found that the proposal in Otis Air Force Base would
condition the agency's exercise of one of its reserved rights upon the
prior exercise of another of its rights. That is, the proposal
conditioned the agency's determination of the duties and functions upon
which employees' performance would be appraised, an exercise of its
right to direct employees and assign work under section 7106(a)(2)(A)
and (B), upon its prior decision as to what training should be assigned,
an exercise of its right to assign work under section 7106(a)(2)(B).
Similarly, the portion of Union Proposal 5 here that prevents the Agency
from holding an employee responsible for those duties for which it has
not provided training would prohibit the Agency from exercising its
rights to direct employees and assign work by evaluating employees
unless it had first exercised its right to provide training to those
employees. Accordingly, to the extent that Union Proposal 5 prevents
the Agency from holding employees responsible for duties for which it
has not provided training, it is outside the duty to bargain.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning Union Proposals
1, 3, and 4. /2/ IT IS FURTHER ORDERED that the Union's petition for
review as to Union Proposals 2 and 5 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Union withdrew its appeal as to one additional proposal
concerning Agency searches of desks and lockers. Consequently, this
proposal will not be considered further here.
(2) In finding these proposals to be within the duty to bargain the
Authority makes no judgment as to their merits.
24 FLRA NO. 16
NAGE and Dep't of Agriculture, Animal and Plant Health Inspection
Service, Plant Protection and Quarantine Program, Case No. 0-NG-1280
(Decided November 21, 1986)
STATUTE
7101(b)
7103(a)(14)(C)
7105(a)(2)(E)
7114(c)(4)
SUBJECT MATTER INDEX ENTRIES
Code of Federal Regulations
41 C.F.R. 101-7
Comptroller General Decisions
46 Comp. Gen. 21 (1966)
Official Time (7131)
Travel and Per Diem
Federal Travel Regulations (41 CFR Part 101-7)
For Bargaining Activities
Condition of Employment
Travel Expense Act (5 U.S.C. 5701 Et Seq.)
United States Code
5 U.S.C. 5701 Et Seq. (Travel Expense Act)
DIGEST NOTES
A provision is negotiable that provides for negotiations over travel
and per diem expenses for union representatives engaged in bargaining
and related activities. The proposal concerns a condition of
employment. Payment of travel and per diem expenses is not inconsistent
with either the Travel Expense Act (5 U.S.C. section 5710 et seq.) or
the Federal Travel Regulations (41 C.F.R. Part 101-7) as interpreted by
the Comptroller General (46 Comp. Gen. 21 (1966)). Agencies have
discretion to make determinations that travel in the context of union
activity is sufficiently within the interest of the Government to
constitute official business. Following this determination, otherwise
proper travel and per diem expenses may be paid from agency funds.
Moreover, proposal providing for payment of travel and per diem expenses
for union representatives would not prevent management from making
individual case-by-case determinations as to the propriety under the
FTRs of authorizing particular payments. Finally, there is no basis for
altering the finding that travel and per diem is negotiable in the
agency's argument that the provision is inconsistent with section
7101(b). The agency argued that whatever action it takes would involve
it in "lengthy and costly litigation," which is contrary to the
accomplishment of an effective and efficient government.
Case No. 0-NG-1280
NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES
Union
and
U.S. DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, PLANT PROTECTION AND QUARANTINE PROGRAM
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 the following provision of a locally negotiated
supplemental agreement disapproved by the Agency head as provided in
section 7114(c)(4) of the Statute:
Travel and per diem for negotiations and other activities directly
related to negotiations shall be negotiated.
We find the provision to be negotiable.
II. Positions of the Parties
The Agency contends that payment of travel and per diem expenses is
specifically provided for by law and the provision is therefore
nonnegotiable because it does not concern a condition of employment of
bargaining unit employees within the meaning of section 7103(a)(14)(C)
of the Statute. The Agency also argues that the decision of the Supreme
Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) (BATF) requires a conclusion that travel and per diem payments
for employees engaged in union representational activities is not within
the duty to bargain. The Agency contends, therefore, that the
Authority's decisions in 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) and
American Federation of Government Employees, AFL-CIO, National Council
of Federal Grain Inspection Locals and U.S. Department of Agriculture,
Federal Grain Inspection Service, 21 FLRA No. 21 (1986), petition for
review filed sub nom. U.S. Department of Agriculture, Federal Grain
Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986), are
incorrect. The Agency maintains that for authorization of payment for
travel and per diem expenses to be consistent with law and regulation it
"can only be made as a unilateral decision of management, based on a
case-by-case review of the circumstances of each proposed travel
situation," and not through negotiation. Agency Statement of Position
at 6. Finally, the Agency argues that the provision is inconsistent
with section 7101(b) of the Statute because whatever action it takes
would involve it in "lengthy and costly litigation," which is contrary
to the accomplishment of an effective and efficient government. Agency
Statement of Position at 8.
The Union states that the provision does not require payment of
travel and per diem expenses but only a commitment by the Agency to
negotiate about such payment when the issue arises. The provision is
negotiable under the Authority's decisions in Customs Service and
Federal Grain Inspection Service, the Union argues, because in those
decisions the Authority rejected each of the arguments made by the
Agency in this case. The Union contends that the Agency's one new
argument, that the provision would result in costly litigation contrary
to section 7101(b) is a "patent fallacy" because it would mean that any
negotiability dispute would be contrary to the Statute. Union Response
to Agency Statement of Position at 5.
III. Analysis and Conclusion
A. The Provision Concerns a Condition of Employment
In Customs Service, the Authority rejected the same argument as that
made here, namely, that a proposal relating to travel and per diem for
employee union representatives did not concern conditions of employment
of bargaining unit employees. For the reasons expressed in that
decision, the Authority finds that the provision concerns a condition of
employment of bargaining unit employees.
B. The Provision Is Not Inconsistent With Federal Law and
Government-wide Rules and Regulations
In BATF the Supreme Court held that payment of travel and per diem
expenses for employees engaged in union representational activities was
not required by the Statute. The Supreme Court did not hold that
agencies and unions were precluded by law from negotiating over the
payment of such expenses, only that payment was not required by law.
In Customs Service we rejected the same argument which the Agency
makes here, namely, that payment of travel and per diem expenses for
union representatives is inconsistent with law and regulation and
therefore nonnegotiable. We found that under the Travel Expense Act, 5
U.S.C. Sections 5701 et seq., and the Federal Travel Regulations (FTRs),
41 CFR, Part 101-7, as interpreted by the Comptroller General, 46 Comp.
Gen. 21 (1966), agencies have discretion to make determinations that
travel in the context of union activity is sufficiently within the
interest of the Government to constitute official business. Following
this determination, otherwise proper travel and per diem expenses may be
paid from agency funds. Contrary to the Agency's argument, nothing in
these authorities requires that this necessary determination be made
only by management and only on a case-by-case basis. The Agency does
not argue that travel connected with negotiations or activities related
to negotiations could not meet this required standard. /2/
Moreover, the Authority has consistently held that in the absence of
a demonstration to the contrary, proposals providing for the payment of
travel and per diem expenses for union representatives would not prevent
management from making individual case-by-case determinations as to the
propriety under the FTRs of authorizing particular payments. National
Labor Relations Board Union and National Labor Relations Board, 22 FLRA
No. 55 (1986), petition for review filed sub nom. National Labor
Relations Board v. FLRA, No. 86-1504 (D.C. Cir. Sept. 8, 1986). Compare
National Association of Agricultural Employees and U.S. Department of
Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45
(1986) (Union Proposal 2) (Authority unable to conclude based on the
record in the case that the provision would allow for compliance with
law and regulation.) There is nothing in the provision in this case
which prevents the Agency from complying with the requirements of law
and regulation. In fact, since this provision provides for bargaining
on such matters "as the issue arises," it clearly is not inconsistent
with any requirement under law and regulation for case-by-case
determinations. Compare National Association of Agriculture Employees
and U.S. Department of Agriculture, Animal and Plant Health Inspection
Service, 22 FLRA No. 45 (1986) (Union Proposal 1 was a "general request
to bargain" and it was not sufficiently specific and delineated to meet
the conditions for review set forth in the Authority's Regulations).
Finally, as to the Agency's section 7101(b) argument, in our opinion the
possibilities alluded to by the Agency constitute no basis for reversing
the conclusion reached in Customs Service.
Based on the foregoing analysis, the Authority finds that the
provision concerns a condition of employment and is not inconsistent
with law or Government-wide regulation. Therefore, the provision is
within the duty to bargain. /3/
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
the Agency must rescind its disapproval of the disputed provision, which
was bargained on and agreed to by the local parties.
Issued, Washington, D.C., November 21, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) With respect to the Union's Motion for Waiver of Time Limits, the
time limit for filing a petition for review of an agency's allegation of
nonnegotiability is specified in section 7117(c)(4) of the Statute. It
may not be waived or extended. There is no basis, however, for a
determination that the allegation in this case was served on a date
which would render the Union's petition untimely. It is, therefore,
unnecessary to rule on the Motion.
(2) As the Union points out, in agreeing to this provision the
parties have agreed to bargain on this determination. Union Response to
Agency Statement of Position at 4.
(3) In finding that the provision is within the duty to bargain, we
express no judgment as to its merits.
24 FLRA NO. 15
Local 1749, AFGE and Commander, 47FTW, Laughlin Air Force Base, Tex.
(Tyer. Arbitrator), Case No. 0-AR-1209 (Decided November 21, 1986)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration Awards, Modified or Set Aside
Award Contrary to Applicable Law
5. U.S.C. 7701(g)
Arbitration Awards, Remedies Ordered by Arbitrators
Attorney Fees
Backpay
Arbitration Awards, Review of, Exceptions Asserted in Appeal
Award Contrary to Applicable Law
5 U.S.C. 7701(g)
Attorney Fees
Arbitration Awards
Set Aside
Authority Will Set Aside or Modify Deficient Awards
Requirements for an Award of Attorney Fees
Backpay
Suspension Not for Just Cause
Discipline of Employees
Just Cause
Suspension
Not For Just Cause
United States Code
5 U.S.C. 5596 (Back Pay Act
5 U.S.C. 7701(g)
DIGEST NOTES
The issue submitted to arbitration was whether the 14-day suspension
of the grievant, a government procurement agent, for alleged deliberate
misrepresentation and concealment of a material fact in the purchase of
certain merchandise, was for just cause under the terms of the parties'
collective bargaining agreement and applicable regulations. The
arbitrator found that the suspension was not for just cause and ordered
that the grievant be made whole for all backpay and other benefits lost
due to the adverse action. The arbitrator further ordered that the
grievant be reimbursed for all attorney fees and other related expenses.
In its exceptions, the agency contended that the award of attorney
fees is contrary to 5 U.S.C. section 7701(g)(1). That section,
applicable to all cases except those of discrimination, requires that an
award of attorney fees must be warranted "in the interest of justice,"
that the amount must be reasonable, and that the fees must have been
incurred by the employee. The standards established under 7701(g)
further require fully articulated, reasoned decisions setting forth the
specific findings supporting the determination on each pertinent
statutory requirement. The Authority held that an arbitrator's cursory
statement, as in this case, that the arbitrator considered the necessary
elements of analysis does not meet the requirements of 5 U.S.C. section
7701(g). Rather, an arbitrator's award of attorney fees must draw its
essence from a demonstrable, pragmatic analysis of the factors set out
in applicable statutes. Furthermore, the Authority will not remand
deficient attorney fee awards to the parties for clarification and
interpretation, but will either set aside or modify such awards. In
this case, the Authority found the award of attorney fees deficient and
modified the arbitration award by setting aside the award of attorney
fees.
Case No. 0-AR-1209
LOCAL 1749, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Union
and
COMMANDER, 47FTW, LAUGHLIN AIR FORCE BASE, TEXAS
Agency
DECISION
I. Statement of the Case
This case is before the Authority on an exception to the award of
Arbitrator Charles W. Tyer filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The issue submitted to arbitration was whether the 14-day suspension
of the grievant, a government procurement agent, for alleged deliberate
misrepresentation and concealment of a material fact in the purchase of
certain merchandise, was for just cause under the terms of the parties'
collective bargaining agreement and applicable regulations. The
Arbitrator found that the suspension was not for just cause and ordered
that the grievant be made whole for all backpay and other benefits lost
due to the adverse action. The Arbitrator further ordered that the
grievant be reimbursed for all attorney fees and other expenses releated
to this case which are appropriate under prevailing Federal regulations.
III. Agency Exception
In its exception, the Agency contends that the Arbitrator's award of
attorney fees is contrary to 5 U.S.C. Section 7701(g)(1). In support of
its exception, the Agency argues that the Arbitrator failed to supply a
fully articulated decision to support the award of attorney fees and
that the awrad "rests upon a cursory statement by the (A)rbitrator" and
is without the "required demonstrable pragmatic analysis of the facts
set out in applicable statutes."
IV. Union Opposition
The Union asserts in its opposition to the Agency's exception that
the Arbitrator's written response to the Union's Request for
Supplemental Decision, in which the Arbitrator made additional and
specific determinations relating to his award, satisfies the
requirements for sustaining the Arbitrator's award of attorney fees.
Alternatively, the Union requests that the Authority remand the case to
the Arbitrator if the Authority finds that the award does not meet the
requirements of 5 U.S.C. Section 7701(g).
V. Analysis and Conclusion
As we discussed in Naval Air Development Center, Department of the
Navy and American Federation of Government Employees, Local 1928,
AFL-CIO, 21 FLRA No. 25 (1986), a threshold requirement for entitlement
to attorney fees under the Back Pay Act, 5 U.S.C. Section 5596, is a
finding that the grievant had been affected by an unjustified or
unwarranted personnel action which has resulted in the withdrawal or
reduction of the grievant's pay, allowances, or differentials. Further,
an award of attorney fees must be in conjunction with an award of
backpay to the grievant on correction of the unwarranted or unjustified
personnel action. The award of attorney fees must be reasonable and
related to the personnel action, and in accordance with the standards
established under 5 U.S.C. Section 7701(g).
Section 7701(g) prescribes that for an employee to be eligible for an
award of attorney fees, the employee must be the prevailing party.
Section 7701(g)(1), applicable to all cases except those of
discrimination, requires that an award of attorney fees must be
warranted "in the interest of justice," that the amount must be
reasonable, and that the fees must have been incurred by the employee.
The standards established under section 7701(g) further require a fully
articulated, reasoned decision setting forth the specific findings
supporting the determination on each pertinent statutory requirement,
including the basis upon which the reasonableness of the amount was
determined when fees are awarded. An arbitrator's cursory statement
that the arbitrator considered the necessary elements of analysis does
not meet the requirement under 5 U.S.C. Section 7701(g) for a fully
articulated, reasoned decision. An arbitrator's award of attorney fees
must draw its essence from a demonstrable, pragmatic analysis of the
factors set out in the applicable statutes. Naval Air Development
Center, slip op. at 10-11.
In this case, the Arbitrator's statement concerning the award of
attorney fees does not meet the requirements just discussed. In
National Association of Air Traffic Specialists and Federal Aviation
Administration, Washington Flight Service Station, 21 FLRA No. 26
(1986), the Authority explicitly stated that in future cases, "if the
Authority finds that an award granting attorney fees is deficient
because it is not fully supported as required, the Authority will set
aside or modify the award as appropriate," rather than remand the award
to the parties for clarification and interpretation. Slip op. at 5. In
this case, as evidenced in management's brief before the Arbitrator, the
Agency specifically informed the Arbitrator that "should the
(a)rbitrator consider such (attorney) fees appropriate, the award must
comply with the requirements of 5 U.S.C. Section 7701(g) and the Federal
Labor Relations Authority as established in 21 FLRA No. 35."
(Management's Brief Before the Arbitrator, at 5, attached to Petition
for Exception.) The Arbitrator, therefore, was aware of his obligation
with applicable requirements. The failure of the parties to provide the
Arbitrator with a copy of the Authority's applicable rulings does not,
as the Union asserts, cure the deficiency, nor does it warrant a remand
of the case for clarification. Similarly, the Arbitrator's denial of
the Union's request for a Supplemental Decision, where he states that he
"has no further authority in this matter(,)" does not satisfy the
requirements for sustaining the Arbitrator's award of attorney fees.
The Arbitrator's award of attorney fees is deficient since it was not
made in accordance with the required standards.
VI. Decision
For the above reasons, the Arbitrator's award is modified by setting
aside the award of attorney fees. /*/
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In view of the Authority's decision, the Agency's request for a
stay is denied as moot.
24 FLRA NO. 14
Pine Bluff Arsenal, Pine Bluff Ark. and AFGE, Local 953 (Allen,
Arbitrator), Case No. 0-AR-1231 (Decided November 20, 1986)
STATUTE
7122(a) and (b)
SUBJECT MATTER INDEX ENTRIES
Arbitration, Procedure
Timeliness
Improper Filing at a FLRA Regional Office
DIGEST NOTES
The Authority dismissed the union's exception to an arbitration award
as untimely filed because they failed to comply with sections 2425.1,
2429.21 and 2429.22 of the Authority's rules and regulations, applicable
to the computation of time limits. The exceptions were received by
regular mail at a FLRA regional office before the statutory due date for
filing exception. The regional office exercised due diligence in
forwarding them to the Authority's national office but the exceptions
arrived at the national office after the due date for filing. It is
well established that exceptions to an arbitrator's award cannot be
filed at a regional office, but must be filed with the Authority at its
national office in Washington, D.C.
Case No. 0-AR-1231
PINE BLUFF ARSENAL, PINE BLUFF, ARKANSAS
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 953
Union
ORDER DISMISSING EXCEPTIONS
This case is before the Authority on exceptions to the award of
Arbitrator A. Dale Allen, Jr. filed by the Union pursuant to section
7122(a) of the Federal Service Labor-Management Relations Statute and
section 2425.1 of the Authority's Rules and Regulations. For the reason
stated below, it has been determined that the exceptions must be
dismissed as untimely filed.
The Arbitrator's award and a statement of fees and expenses are dated
August 12, 1986, and, in the absence of evidence to the contrary, appear
to have been served on the parties by mail on the same day.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1 of the Authority's Rules and Regulations, as amended, /2/ which
amendments are applicable to exceptions pending or filed with the
Authority on or after March 2, 1984, and under sections 2429.21 and
2429.22 of the Rules and Regulations, which are also applicable to
computation of the time limit here involved, any exceptions to the
Arbitrator's award in this case had to be filed, that is, received in
the national office of the Authority not later than the close of
business on September 15, 1986.
However, the exceptions were not filed with the Authority at its
national office in Washington, D.C., until September 18, 1986. In this
regard, the record establishes that the Union addressed the exceptions
to the Authority's Dallas Regional Office, and mailed them by regular
mail from Pine Bluff, Arkansas on September 11, 1986. The Dallas
Regional Office received the exceptions on September 15, 1986, and
exercised due diligence in forwarding them on September 16, 1986. The
exceptions were not received by the Authority's national office until
September 18, 1986, /3/ and, therefore, were untimely filed.
Accordingly, as the Union's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., November 20, 1986.
/s/ Harold D. Kessler
Director of Case Management
FOOTNOTES
(1) Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98
Stat. 47, 48 (1984)) to provide that the 30-day period for filing
exceptions to an arbitrator's award begins on the date the award is
served on the filing party.
(2) 49 Fed. Reg. 22623 (1984).
(3) It is well established that exceptions to an Arbitrator's award
cannot be filed at a Regional Office, but must be filed with the
Authority at its national office in Washington, D.C. See, The Panama
Canal Commission and Maritime Metal Trades Council, AFL-CIO, 21 FLRA No.
38, n. 5 (1986).
24 FLRA NO. 13
SSA, Northeastern Program Service Center and AFGE, Local 1760, Case
No. 2-CA-30643 (Decided November 19, 1986)
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 Under the Statute
Alternate Means of Accomplishing the Objective
Mere Existence Insufficient for Denial (Names & Addresses)
Necessity or Relevance for Full and Proper Discussion
Alternatives to Requested Information
Mere Existence of Other Means not Sufficient for Denial
Privacy
Balancing Tests: Individual's Privacy Rights vs.:
Union's Right to Information
Reasonably Available (7114(b)(4)(B))
Names and Home Addresses of Bargaining Unit Employees
Freedom of Information Act (5 U.S.C. 552)
Privacy Act (5 U.S.C. 552a)
Exception: Information Required to be Released by FOIA
Unfair Labor Practices, Remedies for Agency Violations
Information to be Provided Union
DIGEST NOTES
The release of the 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 the other requirements of section 7114(b)(4).
Applying the balancing test under exemption (b)(6) of the Freedom of
Information Act to the Privacy Act rights of employees, it has been
determined that the privacy act interest of the average employee to the
release of their names and addresses is not very compelling. Alternate
means of communication with bargaining unit employees that are available
to the union are inadequate. The home addresses of bargaining unit
employees were reasonably available to the activity in this case and
would not place an undue burden on the activity to provide the union
with the requested information. Accordingly, the Authority held, in a
decision remanded from the U.S. Court of Appeals for the Second Circuit,
that the activity violated section 7116(a)(1), (5) and (8) when it
refuse to provide the home addresses to the exclusive representative for
employees that it represented.
Case No. 2-CA-30643 (19 FLRA No. 108)
SOCIAL SECURITY ADMINISTRATION, NORTHEASTERN PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the Second Circuit. American
Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2d
Cir. 1986). The question in this case is whether it was an unfair labor
practice under the Federal Service Labor-Management Relations Statute
(the Statute) for the Respondent (Agency) to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the home addresses of employees of the Respondent who
are part of a national, exclusive bargaining unit represented by the
American Federation of Government Employees.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information 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. Consistent with our
decision on remand in FHAFO, with the Second Circuit's reversal of our
previous decision in this case, and with the Administrative Law Judge's
decision in this case, we conclude that the Respondent's refusal to
provide the Union with the home addresses of bargaining unit employees
violated section 7116(a)(1), (5) and (8) of the Statute.
II. Facts
The Union acts as the representative of the Respondent's employees as
part of a nationwide bargaining unit. The Union requested the names and
home addresses of the unit employees it represents. The Respondent
denied the request for the home addresses on the grounds that the
release of such information would violate the Privacy Act; that the
information was not readily available because it would require the
compilation of addresses from many sources; and that the Union had not
established why the information was relevant and necessary.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) when it refused to provide the Union,
upon request, with the home addresses of the unit employees. In
reaching that conclusion, the Judge found that: (1) the information was
relevant and necessary for the Union to communicate effectively with the
unit employees in order to formulate proposals for collective bargaining
purposes; (2) no undue burden would be imposed on the Respondent to
extract the information from sources that were reasonably available;
(3) the alternative means of communication that were available to the
Union did not provide appropriate and reliable access to the employees;
and (4) the Privacy Act /1/ was not a bar to disclosure of the
information.
IV. Positions of the Parties
The parties' positions were set forth in the Respondent's exceptions
and the General Counsel's response in the original case. The Respondent
contended that the Judge's conclusion that an agency must provide a
union with home addresses of bargaining unit employees unless
alternative access to the information exists and is equal to the access
which could be achieved through the use of home addresses is unsupported
by section 7114(b)(4) of the Statute. The Respondent also excepted to
the Judge's conclusion that the Privacy Act did not bar disclosure of
the information. Finally, the Respondent contended that the disclosure
of home addresses would violate employees' rights under section 7102 of
the Statute to refrain from activity supporting a labor organization.
The General Counsel argued that the Judge's decision was correct and
urged the Authority to adopt his findings.
V. Previous Decision of the Authority.
In its previous decision in this case, Social Security
Administration, Northeastern Program Service Center, 19 FLRA No. 108
(1985), the Authority followed the precedent established in the original
decision in the FHAFO case, 19 FLRA No. 21 (1985). The Authority found,
contrary to the Judge, that the Respondent did not commit an unfair
labor practice when it denied the Union's request for the unit
employees' home addresses. The Authority ruled that release of the
information was "prohibited by law," specifically the Privacy Act. The
Union appealed. American Federation of Government Employees, Local 1760
v. FLRA, No. 85-4144 (2d Cir.). The Authority requested that the court
remand the case to address whether disclosure of the information sought
by the Union was "prohibited by law," i.e., the Privacy Act, because of
the applicability of the Privacy Act's "routine use" exception, 5 U.S.C.
552a(b)(3), and such other issues arising under the Statute as might be
appropriate. /2/ The court denied the Authority's request and issued a
decision.
VI. Decision of the Second Circuit
The court reversed the Authority's holding that the release of the
employees' home addresses was "prohibited by law," i.e., the Privacy
Act, under section 7114(b)(4) of the Statute. The court agreed with the
Authority that it was necessary to apply a balancing test under
exemption (b)(6) of the Freedom of Information Act (FOIA), /3/ to
resolve the case, but found that the "privacy interest of the average
employee in his address is not particularly compelling." AFGE Local
1760, 786 F.2d at 556. The court noted Congress' determination that
collective bargaining is in the public interest and also noted its prior
holdings in private sector cases that the mere existence of alternative
means of communication with unit employees is not sufficient to justify
the refusal of a union's request for home addresses. The court agreed
with the Administrative Law Judge in this case that the alternative
means of communication available to the Union were inadequate, and that
the other requirements for the release of home addresses pursuant to
section 7114(b)(4) of the Statute had been met. The court therefore
remanded this case to the Authority to find a violation and require the
Respondent to disclose the unit employees' home addresses to the Union.
The court did not address the "routine use" issue.
The Authority decided to review the entire issue of the release of
employees' names and home addresses, and invited agencies, unions, and
interested persons to submit amicus briefs addressing the issue. A
number of amicus submissions were received. Although the parties in
this case did not submit amicus briefs, the Department of Health and
Human Services and the American Federation of Government Employees did
file amicus briefs outlining their positions.
VII. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the 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 the other requirements of section 7114(b)(4). We
determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available. Based on the court's decision in this case and our decision
on remand in the FHAFO case, we find that the Respondent was required to
furnish the Union with the home addresses of the employees in the
bargaining unit. Further, we find that the home addresses of the unit
employees are reasonably available to the Respondent and that it would
not place an undue burden on the Respondent to provide the Union with
the information requested. Finally, we conclude that the Respondent's
refusal to furnish the requested information in this case constituted a
violation of 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, it is ordered that the Social Security Administration,
Northeastern Program Service Center. shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, Local 1760, AFL-CIO, the exclusive representative
of its employees, the 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) Upon request by the American Federation of Government Employees,
Local 1760, AFL-CIO, the exclusive representative of its employees,
furnish it with the home addresses of employees in the bargaining unit
it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the American Federation of Government Employees, Local
1760, 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 senior official of the Social
Security Administration, Northeastern Program Service Center, 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 II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) The Authority also sought remands in three other cases then
pending in other circuits presenting substantially identical issues.
The review proceedings involved were American Federation of Government
Employees, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing the
Authority's original decision in the FHAFO case, 19 FLRA No. 21);
Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
(reviewing 19 FLRA No. 107); and National Federation of Federal
Employees, Local 1827 v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA
No. 85). The courts granted the Authority's motions for remand in those
cases.
(3) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the American
Federation of Government Employees, Local 1760, AFL-CIO, the exclusive
representative of our employees, the 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, upon request by the American Federation of Government
Employees, Local 1760, AFL-CIO, the exclusive representative of our
employees, furnish it with the home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.
24 FLRA NO. 12
HHS, SSA and SSA Field Operations, New York Region and AFGE, Case
Nos. 2-CA-40051 and 2-CA-40102 (Decided November 19, 1986)
STATUTE
7116(a)(1) and (5)
7118
SUBJECT MATTER INDEX ENTRIES
Agency ULP (Alleged) 7116(a)(5)
Settlement Agreement
Collective Bargaining
Ground Rules
Mid Term Bargaining
Performance Appraisal System
Auditing or Measuring Work Performance
Continuous Audit
Change in Auditing Procedures
Employee Participation
Procedure
Forums
Collective Bargaining Agreement Interpretation
Procedures Adopted by the Parties in their Agreement
Settlement Agreements
Repudiation of Settlement Agreement
Not Breached
Set Aside by Regional Director
DIGEST NOTES
The agency's insistence on receiving substantive proposals regarding
the impact and implementation of a change in its auditing procedures for
performance evaluations did not violate sections 7116(a)(1) and (5).
The agency sought to replace its semiannual audit of employee
performance with continuous audits. Under the semiannual audit
procedures, employees were given advance notice of the audits and an
opportunity to review their pending cases and correct any errors or
shortcomings. Under the continuous audit procedure, employees are not
given advance notice of the audit nor an opportunity to examine their
caseload and correct errors.
The parties' dispute was one of long standing that involved differing
and arguable interpretations of the parties over the requirements of
their national agreement governing mid-term bargaining procedures. The
FLRA Regional Director had issued a settlement agreement which he later
withdrew. The agency interpreted the controlling national agreement as
requiring that the union submit substantive proposals on the impact and
implementation of the new audit procedures. The union, on the other
hand, sought to first negotiate on ground rules governing the mid-term
negotiations prior to submitting substantive proposals. The Authority
held that the appropriate forum for resolution of such disputes over
contract interpretation is through the grievance and arbitration
procedures of the parties' agreement rather than through unfair labor
practice procedures.
Case Nos. 2-CA-40051
2-CA-40102
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS, NEW
YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 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 not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief.
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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's decision, the exceptions to that Decision, and the entire
record, the Authority hereby adopts the Judge's findings, /1/
conclusions, /2/ and recommended Order that the complaint be dismissed.
In doing so, we note that the parties' dispute is one of long standing
that involves differing and arguable interpretations by the parties over
the requirements of their national agreement, which the Authority has
recently found to be appropriate for resolution through the grievance
and arbitration procedures of that agreement but not through unfair
labor practice procedures. Department of Health and Human Services,
Social Security Administration and Social Security Administration Field
Operations, New York Region, 23 FLRA No. 62 (1986).
ORDER
The complaint in Case Nos. 2-CA-40051 and 2-CA-40102 is dismissed.
Issued, Washington, D.C., November 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case Nos: 2-CA-40051
2-CA-40102
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, SOCIAL SECURITY ADMINISTRATION OFFICE OF FIELD
OPERATIONS, NEW YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Thomas H. Gabriel, Esq.
For the Respondent
Cecelia McCarthy
For the Charging Party
Alfred R. Johnson, Jr.
For the General Counsel
Before: Samuel A. Chaitovitz
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. Section 7101, et seq., 92 Stat. 1191 (hereinafter
referred to as the Statute) and the Rules and Regulations of the Federal
Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et
seq.
On November 11, 1983, American Federation of Government Employees,
AFL-CIO (hereinafter called AFGE or the Union) filed a charge in Case
No. 2-CA-40051 against the Department of Health and Human Services,
Social Security Administration and Social Security Administration Office
of Field Operations, New York Region (herein called Respondent or SSA).
On December 2, 1983 AFGE filed a charge in Case No. 2-CA-50102 against
SSA. On January 25, 1984 AFGE filed a charge in Case No. 2-CA-40172
against SSA. On December 28, 1983 the General Counsel of the FLRA, by
the Director for Region II, issued an Order Consolidating Cases,
Complaint and Notice of Hearing, with respect to Case Nos. 2-CA-40051
and 2-CA-40102 alleging that SSA violated Sections 7116(a)(1) and (5) of
the Statute by instituting a new audit procedure in its Mount Vernon,
New York and South Bronx, New York Offices without affording AFGE an
opportunity ot bargain over the impact and implementation of the
changes. On March 5, 1984 the Director of FLRA Region II approved a
Settlement Agreement entered into by SSA and AFGE, with respect to Case
Nos. 2-CA-40051 and 2-CA-40102. By letter dated July 25, 1984 the
Director of FLRA Region II revoked the above described Settlement
Agreement. On July 26, 1984, the General Counsel of the FLRA by the
Director of Region II issued an Order Consolidating Cases, Complaint and
Notice of Hearing in Case Nos. 2-CA-40051 and 2-CA-40102. SSA filed a
timely Answer denying that it had violated the Statute with respect to
Case Nos. 2-CA-40051 and 2-CA-40102. The Director of FLRA Region II
issued a letter dated August 23, 1984 revoking a settlement agreement in
Case No. 2-CA-40172. On August 28, 1984 General Counsel of the FLRA
issued an Order Consolidating Cases, Amended Complaint and Notice of
Hearing in Case Nos. 2-CA-40051, 2-CA-40102 and 2-CA-40172. Respondent
filed a timely Answer to the Amended Complaint denying it had violated
the Statute. On October 17. 1984 the Director of FLRA Region II issued
an Order Severing Cases whereby Case No. 2-CA-40172 was severed from
Case Nos. 2-CA-40102 and 40051.
A hearing was conducted with respect to Case Nos. 2-CA-40051 and
2-CA-40102 before the undersigned in New York City, New York. SSA, AFGE
and General Counsel of the FLRA were represented and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence and to argue orally. Post hearing briefs have been
filed and have been fully considered.
Based upon the entire record in this matter, /3/ my observation of
the witnesses and their demeanor, and from my evaluation of the
evidence, I make the following:
Findings of Fact
Background
Prior to the alleged changes in the subject case, the employees
received audits twice a year wherein the employees received advance
notice of the audits. Each employee had an opportunity, during this
advance notice period, to review his pending cases and correct any
errors or shortcomings. The employee's supervisor would then examine
the cases in the employee's pending case load, which was at the
employee's desk and, with the information readily available, the
employee had an opportunity to explain any possible shortcomings.
The change in audit procedures involved the replacement of this
biannual (semiannual) audit with a continuous audit. The continuous
audit consisted of the employee's supervisor reviewing the employee's
work through the use of the employee's aged case reports, which the
employee hands in once a week. The supervisor also utilizes other
reviews, such as security audits and pending case reviews. Utilizing
all of these reviews and lists, the supervisor audits the employee's
performance for his yearly evaluation. Under the continuous audit
procedure the employee is not given advance notice of the audit nor an
opportunity to examine his pending caseload and correct errors. Also,
because the employee is unaware of when he will be audited until he
reviews his biannual progress reviews based on the audits, it is
difficult to rebut findings because the case files may no longer be
readily available to the employee.
At all times material herein AFGE has been the collective bargaining
representative for a nationwide unit of SSA employees including those
employed in SSA's District and Branch offices. At all times material
herein SSA and AFGE have been parties to a nationwide collective
bargaining agreement. The employees that are the subject of this case,
in the Mount Vernon Branch Office and South Bronx District Office, are
included in this unit. AFGE delegated to the National Council of SSA
Field Operations Locals (herein called the Council) authority to act as
its representative for the purpose of collective bargaining with SSA for
certain employees, including those that are the subject of this case.
At all times material herein AFGE Local 3369 has acted as agent for the
Council for the purpose of collective bargaining for, inter alia, SSA
employees in the South Bronx District Office and Mount Vernon Branch
Office.
Case No. 2-CA-40051 -- Mount Vernon Branch Office
Prior to October 31, 1983 unit employees at SSA's Mount Vernon Branch
Office were evaluated under the biannual audit system.
During the latter part of September 1983, Acting Office Manager Ron
Sobel /4/ met with the AFGE representative for the Mount Vernon Branch
Office, Drew Stein, and discussed the future implementation of
continuous audits. Stein indicated that he approved of the continuous
audit system because it would be fairer than the two audit a year
system.
On Friday, October 28, 1983 Office Manager Sgaglione advised Stein
that they would soon be implementing the continuous audit system. Stein
indicated that he thought it was a good plan and that it gave a better
overall view of employee performance and that he had no problem with it.
Sgaglione advised Stein she would have a staff meeting the following
Monday, October 31, 1983, to announce the implementation of the
continuous audit system. Stein did not object to the notice being given
to employees and he did not request to bargain about the change or its
impact and implementation.
On Monday, October 31, 1983, just prior to 8:30 AM Stein told
Sgaglione "off the record" that he had spoken to the President of AFGE
Local 3369, Riordan, over the weekend and that the AFGE position is that
there should have been some negotiation concerning the implementation of
the continuous audit procedure. Because of the "off the record" nature
of Stein's comment and because she had heard nothing "official" from
AFGE Sgaglione held the staff meeting at 8:30 AM and announced the
institution of the continuous audit procedure. Stein was present at the
meeting and registered no objection. On November 4, 1983 Riordan
telephoned Sobel, then on the labor relations staff at the SSA New York
Regional Office. Riordan advised Sobel that Riordan had been advised by
Stein that the management of the Mount Vernon Branch Office had told
Stein that the continuous audit system was non-negotiable. Riordan told
Sobel the system was negotiable. Sobel stated it was management's
position that it was non-negotiable.
In making the foregoing findings of fact with respect to the
institution of the continuous audit system in the Mount Vernon Branch
Office I credit the testimony of Sgaglione and Sobel. I find that their
testimony was corroborative of each others', was consistent with the
surrounding circumstances and that their recollections were reliable and
precise. I find the testimony of Stein was inconsistent with Riordan's
testimony in a number of instances and that their testimony was somewhat
confused and unreliable.
Case No. 2-CA-40102 -- South Bronx District Office
On November 16, 1983, Riordan, President of AFGE Local 3369 and the
acting local representative for the South Bronx, New York District
Office, received the following letter dated November 9, 1983, from
Vincent Hoist, District Manager of the South Bronx District Office.
We will be adopting the continuous audit procedure for the new
appraisal period which began on October 1, 1983.
By letter dated November 18, 1983 Riordan sent the following letter
to Hoist:
This acknowledges receipt November 16, 1983 of your letter
dated November 9, 1983, concerning your proposal to adopt "the
continuous audit procedure."
Unfortunately, you neglected to define what you mean by
"continuous audit procedure." The Union has no understanding what
you mean by this new procedure. Please supply us with a complete
definition and description of your proposal.
Is your proposal intended to cover all positions or some?
After receiving this information the Union will consult with
you on your proposal.
Implementation of this new procedure prior to consultation and
negotiation is an unfair labor practice. I request that you not
implement this new procedure until this process is completed.
In the future, in advancing proposals, it would be more helpful
if you would provide us with an explanation of the change when
serving notice to the Union.
By letter dated November 28, 1983 Hoist replied to Riordan's letter
of November 18, 1983 with the following:
This is in response to your November 18, 1983 letter (received
here on November 22, 1983).
The continuous audit procedure is an ongoing review of an
employee's performance.
The procedure will cover all non-supervisory positions from
GS-2 through GS-10.
The basis for this procedure is Article 21, Section 7a and b of
the National Agreement which refers to informal discussions
including reviews of performance.
The target date was specified in my November 9, 1983 letter;
namely, the new appraisal period which began on October 1, 1983.
It will be used for informal discussions, and progress reviews.
We will be in touch regarding a date for consultation on this
matter.
Marvin Peck, a member of Hoist's staff. telephoned Riordan on
December 6, 1983 to arrange a date for a consultation meeting as
required by the national agreement. Riordan declined to set such a date
because the unfair labor practice charge in Case No. 2-CA-40102 had
already been filed.
The record established that the continuous audit system was
implemented in the South Bronx District Office in February 1984. /5/
The Settlement Agreement
On March 2, 1984, the Respondent and the Charging Party entered into
an informal Authority Settlement Agreement for the settlement of Case
Nos. 2-CA-40051 and 2-CA-40102. This Settlement Agreement provided in
part that, "The Respondent will discontinue the implementation of the
new audit procedure to assess the performance of bargaining unit
employees implemented in its Mount Vernon and South Bronx offices and
will, upon request, negotiate with the American Federation of Government
Employees concerning the implementation of the continuous audit review
system for appraising employee performance and the impact of the change
upon adversely affected employees."
On March 5, 1984 the Regional Director for Region II of the FLRA
approved this Settlement Agreement. On or about March 12, 1984,
Respondent's Assistant Regional Commissioner, Field Operations, Alex W.
Bussey, sent the following letter to John Riordan:
In accordance with the referenced settlement agreement which
was approved by the Regional Director of FLRA Region II on March
5, 1984, management seeks to effect compliance as soon as
possible.
Your request, to bargain, if any, is requested by COB March 26,
1984, and should be directed to Mr. Howard M. Feuer, Area
Director, Room 305, 237 Mamaroneck Avenue, White Plains, New York
10601. Telephone (914) 428-4430. Should you not exercise your
right to request bargaining by this date, management will consider
its obligations in this regard fully discharged.
In the event bargaining is timely requested, Article 4, Section
1 of the Master Agreement requires the submission of proposals
within a reasonable period of time. Your proposals, in the event
bargaining is timely requested, are requested by COB April 8,
1984, and should be directed to Mr. Feuer. Should you timely
request bargaining but not exercise your attendant right to submit
written proposals by this date, management will consider its
bargaining obligation fully discharged.
If for any reason you or your designated representative cannot
meet the time frames described above, please contact Mr. Feuer to
arrange for any extension of time necessary.
Thank you for anticipated cooperation.
By letter dated March 26, 1984, Riordan submitted a written request
to bargain concerning the management initiated change to a continuous
audit procedure. In this letter, the Union also stated that it would
shortly forward to the SSA proposals for ground rules. This letter was
sent to Feuer, and received by him on March 27, 1984.
By letter dated March 27, 1984, Feuer responded to Riordan's March
26, 1984 letter and stated the following:
As you know, Alex Bussey's letter of March 12, 1984 indicated
that in the event that you wished to bargain on the impact and
implementation of the continuous audit process your proposals are
expected no later than COB April 8, 1984.
The letter stated that, "In the event bargaining is timely
requested, Article 4, paragraph 1 of the Master Agreement requires
the submission of written proposals within a reasonable period of
time." (April 8th).
This is to advise you that I am awaiting your written proposals
on the impact and implementation of the continuous audit process.
If I do not receive your written proposals on the impact and
implementation proposals by April 8th as stated in the ARC-FO's
letter of March 12th, I will consider management's bargaining
obligation fully discharged.
Riordan, by letter dated March 29, 1984, replied to Feuer's letter of
March 27, 1984. In this letter Riordan stated the following:
In regard to the bargaining request made by me March 26, 1984,
over the management-initiated change to implement the continuous
audit review system and your reply of March 27, 1984, received
today, your unilateral deadline of April 8, 1984 for the
submission of proposals is not accepted.
Instead, the Union will submit proposals within a reasonable
time frame as set in the ground rules which we can agree to.
I will be forwarding the ground rules proposals shortly. Your
cooperation will be appreciated.
By letter dated April 3, 1984, and addressed to Feuer, Riordan
designated Local Vice President Cecelia McCarthy as the Union's chief
negotiator and Local Vice President Evelyn Exman as a negotiator for the
continuous audit negotiations. Riordan further stated that McCarthy
would be forwarding ground rules proposals shortly and requested that
SSA supply to the Union negotiators the names of its negotiators.
By letter dated April 4, 1984, the AFGE's chief negotiator, McCarthy,
submitted to SSA its extensive proposals for ground rules /6/ for
negotiations and, in an attached letter, stated that the Union
negotiating team could meet with SSA for negotiations for ten
consecutive workdays from May 14, 1984 through May 25, 1984. The letter
further stated that the negotiation team would be available to meet on
April 23 and April 30, 1984 if Respondent refused to set aside 10
consecutive working days. McCarthy also stated that the Union would
forward to Respondent substantive proposals a reasonable time before the
first negotiation session. Also on this same date, McCarthy made an
information request under Section 7114(b)(4) of the Statute for various
documents pertaining to prior implementation of the continuous audit
procedure.
By letter dated April 13, 1983, Feuer replied to McCarthy's letter of
April 4, 1984. He acknowledged receipt of the Union's proposed ground
rules and further stated that the proposals and her proposed dates for
negotiations were under review.
On April 24, 1984, in a telephone conversation between McCarthy and
Thomas H. Gabriel, identified in the correspondence as Thomas G.
Hibschweiler, Senior Labor Relations Specialist for Respondent, McCarthy
inquired as to when SSA would be responding to the Union's ground rules
proposals. Gabriel responded that management would not be responding to
the Union's ground rules proposals until the parties were at the table
after the Union's substantive proposals had been received. Gabriel took
the position that AFGE had to supply substantive proposals before the
Respondent would set up a meeting to negotiate with the Union on the
topic of the continuous audit procedure in the South Bronx and Mount
Vernon Offices. In this telephone conversation, Gabriel informed
McCarthy that Respondent intended to reimplement the continuous audit
procedure at its Mount Vernon and South Bronx, New York Offices on May
14, 1985.
By letter dated April 26, 1984, McCarthy wrote a confirming letter to
the Respondent which recounted McCarthy's version of the April 24, 1984
telephone conversation between herself and Gabriel. In this letter,
McCarthy noted that (a) the May 14, 1984 implementation date chosen by
SSA had been given by the Union as a possible date for negotiations;
and (b) SSA would not provide the Union with the names of its
negotiators or dates to commence negotiations.
By letter of April 26, 1984, Bussey outlined SSA's position
concerning the negotiation of the implementation of a continuous audit
procedure in the affected offices. This letter stated, in part:
The message of April 23, together with the referenced
conversation of April 24, also served to inform you that the
agency will fully implement the continuous audit system in the two
offices beginning May 14. At your request, you were informed that
the May 14 date was chosen to permit management to timely
discharge its obligation to conduct documented progress reviews as
required by the National Agreement.
Local 3369 has previously and repeatedly been notified of the
need to expeditiously conclude negotiations associated with the
continuous audit procedures. In this regard, the National
Agreement, at Article 4, Section 1, Section 2, mandates the
submission by the union of "written proposals if applicable within
a reasonable period after notice of the proposed change." To date,
the union has declined to submit any proposals addressing the
impact and implementation of the change.
Your attempt to unilaterally impose a modification of the
referenced contractually-determined timeframe for submission of
the union's proposals, as described in your letter dated April 4
to Howard Feuer, cannot be accepted. In the event the union
chooses to serve negotiable proposals, bargaining will commence as
soon as possible.
This letter should not be construed as managerial consent to
extension of any contractually-determined time frames, including
the obligation of the union to serve written proposals within a
reasonable period of notice of a change.
By letter dated April 30, 1984 McCarthy responded to Bussey's April
26, 1984 letter. In this letter McCarthy stated the following:
In reference to the "need" to implement the continuous audit
system on May 14, 1984, which you allege is necessitated by the
National Agreement, I addressed this point with Mr. Hibschweiler
on April 24. He had initially claimed that it was a contractual
mandate that Progress Reviews were due by May 1984. However, he
could not reference which portion of the contract applies. In
fact, if the offices in question will be conducting Progress
Reviews in May, then, it would be appropriate to postpone
implementation of the continuous audit system until all
negotiations have been completed. In the interim period, the
current system of performance appraisal in both the Mount Vernon
Branch Office and the South Bronx District Office should be
utilized for the proposed Progress Reviews.
By letter dated May 4, 1984, Bussey responded to McCarthy's letter of
April 26, 1984. In this letter SSA stated that the AFGE was at fault
for any delay in the commencing of negotiations by its failure to submit
impact and implementation proposals and to submit a timely bargaining
request. Although the letter stated that SSA would designate
negotiators upon receipt of substantive proposals and negotiate as soon
as possible, the letter also stated that SSA reserved the right to
contest the timeliness of the Union's request to bargain and of its
service of proposals pursuant to the limits described in the National
Agreement.
By letter dated May 8, 1984, McCarthy notified SSA that the AFGE's
position regarding the negotiations had not changed and it would place
these issues before the Federal Labor Relations Authority.
On or about May 14, 1984, SSA reimplemented the continuous audit
procedure in its Mount Vernon, New York Branch Office and reimplemented
this procedure at its South Bronx, New York District Office on May 18,
1984.
By letter dated July 25, 1984 the Regional Director for Region II of
the Authority revoked the Settlement Agreement alleging that
Respondent's May 14 and 18 reimplementation of the continuous audit
procedure violated the Settlement Agreement.
Article 4, section 1 of the parties' National Agreement states the
following:
The Administration will provide the Union reasonable advance
notice prior to implementation of changes affecting conditions of
employment subject to bargaining under 5 USC 71. Upon notice from
the Administration of a proposed change, the designated union
representative will notify the designated management
representative of its desire to consult and/or negotiate on the
change.
The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed 10 (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules.
Discussion and Conclusions of Law
The threshold issue to be resolved is whether SSA violated its
Settlement Agreement. Soon after entering into the Settlement Agreement
SSA advised AFGE, by letter of March 12, 1984, that pursuant to the
terms of the Settlement Agreement SSA was advising the Union that if
AFGE wished to bargain it should request to do so by close of business
March 26, 1984 and, pursuant to Article 4, Section 1 of the Master
Agreement, the Union should submit written proposals promptly, by close
of business April 8, 1984. By the foregoing, SSA advised the AFGE of
the impending change and that it should request to bargain promptly and
then submit written proposals. SSA was in fact declaring itself ready
to negotiate concerning any Union proposals. The record establishes,
however, that, although AFGE stated it wished to bargain, AFGE engaged
in conduct and communications more designed to forestall and frustrate
negotiations than to facilitate them. The conduct of the parties must
be evaluated in light of the actual circumstances and the situation.
Thus, whereas SSA was trying to extract AFGE's proposals with respect to
the impact and implementation, AFGE seemed more interested in delay and
in raising obstacles than in prompt negotiations concerning the impact
and implementation of the change in this audit system.
In considering the conduct of the parties it must be recognized that
collective bargaining is a dynamic and functioning relationship that
must be judged in light of the overall circumstances present. The
conduct can not effectively be viewed in terms of a series of per se
rules and obligations. Thus, although normally when negotiating an
entire collective bargaining agreement, a union might reasonably insist
upon reaching agreement on extensive ground rules before it makes any
substantive proposals and counterproposals, /7/ such is not the
situation herein. In the instant case the parties were dealing not with
an entire new collective bargaining, rather management was changing one
condition, the audit system, and the parties in their national agreement
had agreed upon a relatively expedited procedure for dealing with impact
and implementation bargaining concerning changes in employment
conditions. The parties agreed that upon notification of such a change
the Union will notify SSA of its desire to negotiate and will submit
written proposals within a reasonable time after the notice of the
change and the bargaining will begin as soon as possible and will not
exceed ten days. It is clear the parties were trying to set forth an
expedited and a short procedure for dealing with changes. The Union, in
the subject case, tried to comply with the language of the agreement by
submitting extensive ground rule proposals, while frustrating the clear
object of the agreement. /8/
In the subject situation, depending upon the Union's substantive
proposals and the amount of negotiations necessary, extensive ground
rules might have been unnecessary. Such a determination could only be
made after the substantive proposals could be considered.
Thus I conclude that, in the circumstances here present, SSA's
insistence on receiving AFGE's substantive proposals regarding the
impact and implementation of the change, before negotiating concerning
the Union's rather intricate and extensive ground rule proposals, did
not constitute a refusal to negotiate concerning the impact and
implementation of the change and, therefore, did not violate the terms
of the Settlement Agreement.
Because I have concluded that SSA did not violate the Settlement
Agreement, the Regional Director for Region II was not justified in
setting it aside and issuing the Consolidated Complaint herein. /9/
Having concluded that SSA did not violate the Settlement Agreement, that
the Settlement Agreement should not have been set aside and that the
Consolidated Complaint herein should not have been issued, it is
recommended that the Authority issue the following Order:
ORDER
IT IS ORDERED that the Consolidated Complaint in Case Nos. 2-CA-40051
and 2-CA-40102 be, and hereby is, dismissed.
/s/ Samuel A. Chaitovitz
Administrative Law Judge
Dated: July 26, 1985
Washington, DC
FOOTNOTES
(1) We do not agree with the General Counsel's argument in its
exceptions that the Judge's findings amounted to a finding that the
Union had waived its statutory right to demand bargaining as to ground
rules.
(2) In so concluding, the Authority finds it unnecessary to, and
specifically does not, adopt the Judge's comments (note 6) with regard
to the interpretation of the parties' negotiated agreement.
(3) SSA and General Counsel of the FLRA filed a joint Motion to
Strike certain portions of the transcript herein. AFGE stated it did
not oppose this Motion. Accordingly the Motion To Strike is GRANTED,
and Page 7, line 11 to Page 8, line 6 and Page 30, line 11 through Page
33, line 8 of the transcript for the first day of hearing are hereby
stricken.
(4) The Office Manager of the Mount Vernon Branch Office, Marie
Sgaglione, was on extended maternity leave.
(5) This finding is based upon the credited testimony of employee
Karen Albert and former employee Lester Guzman.
(6) The ground rules proposals consisted of 2 pages and 10 articles.
(7) Cf. Department of Health and Human Services, Region VII, Kansas
City, Missouri, 14 FLRA No. 46 (1984); Department of Defense, Dependent
Schools, 14 FLRA No. 40 (1984).
(8) In this regard the agreement required the Union to "submit
written proposals", not written substantive proposals or written ground
rule proposals. Presumably the Union was to submit "all" its proposals.
To break the proposals up and submit them at various times, etc. would
not have complied with the requirements of the agreement.
(9) In light of this conclusion, I need not make any conclusions with
respect to the allegations that SSA violated the Statute by unilaterally
instituting the changed audit system in 1983 in the Mount Vernon and
South Bronx Offices.
24 FLRA NO. 11
HHS, SSA and AFGE (Smith, Arbitrator), Case No. 0-AR-1262 (Decided
November 19, 1986)
STATUTE
7122(a) and (b)
SUBJECT MATTER INDEX ENTRIES
Arbitration Procedure
Ex Parte Hearing
Voluntary Nonparticipation in a Hearing
Finality of Award
Bench Rulings
Timeliness
Appeal of Bench Rulings in a Bifurcated Arbitration Process
DIGEST NOTES
An arbitrator's bench rulings in a bifurcated arbitration process are
final when rendered and ripe for filing exceptions with the Authority at
that time. While an agency may elect not to participate in the hearing
at which the bench awards are made, it acts at its own peril. The
computation of the time limit for filing exceptions to an arbitrator's
bench ruling begins when it is rendered. The fact, as in this case,
that one party to the process chooses not to participate at the hearing,
and consequently does not receive a copy of the arbitrator's bench
ruling at the same time as another party who was at the hearing, does
not alter the time limits in which to file exceptions with the
Authority.
Case No. 0-AR-1262
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Union
ORDER DISMISSING EXCEPTIONS
This case is before the Authority on exceptions to the bench rulings
of Arbitrator Justin Smith filed by the Agency pursuant to section
7122(a) of the Federal Service Labor Management Relations Statute and
section 2425.1 of the Authority's Rules and Regulations. For the reason
stated below, it has been determined that the exceptions must be
dismissed as untimely filed.
This case involves a dispute submitted to the Arbitrator concerning
official time for representational activities. By agreement of the
parties, a two-phase arbitration process was established to resolve the
basic dispute and the resulting numerous individual grievances. The
first phase involved the interpretation of the official time provisions
of the Statute and the parties' collective bargaining agreement. In the
second phase, the Arbitrator held hearings to resolve, by bench
decisions when practicable, specific grievances pending in various
regions of the Agency. The exceptions in this case have been filed to
bench decisions of the Arbitrator rendered at ex parte hearings held on
September 11 and 12, 1986 at which the Agency declined to participate.
The official transcript of the hearings was apparently served on the
parties by mail on or about October 14, 1986.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1 of the Authority's Rules and Regulations, as amended, /2/ which
amendments are applicable to exceptions pending or filed with the
Authority on or after March 2, 1984, and under sections 2429.21 and
2429.22 of the Rules and Regulations, which are also applicable to
computation of the time limit here involved, any exceptions to the
Arbitrator's rulings in this case had to be filed, that is, received in
the national office of the Authority not later than the close of
business on October 10 and 14, 1986, respectively. However, the
Agency's exceptions were not filed with the Authority until October 30,
1986.
The Agency asserts essentially that because the instant arbitration
hearings were conducted ex parte, no representative of the Agency was
present at the hearing to be served with notice of the Arbitrator's
bench decisions in question. The Agency contends, therefore, that since
its exceptions were filed within thirty days after it was served with
the official transcript of the hearing, which is the date that it
received notice of the Arbitrator's bench decisions, the exceptions were
timely filed.
It is well settled, particularly in cases involving other related
bench rulings between these same parties, that the Arbitrator's bench
rulings are final when rendered and ripe for filing exceptions with the
Authority at that time. See American Federation of Government Employees
and Social Security Administration, 21 FLRA No. 14 (1986); U.S.
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 22 FLRA No. 16
(1986); U.S. Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
23 FLRA No. 19 (1986).
Turning to the due process considerations raised by the Agency, such
argument can not be sustained. The record clearly indicates that the
Agency voluntarily chose not to participate at the hearings at which the
Arbitrator's bench decisions were rendered. Thus, by choosing not to do
so, the Agency acted at its own peril and, in these circumstances, the
fact that the Agency was not served with the Arbitrator's bench
decisions when they were rendered at ex parte hearings did not toll the
time period for filing exceptions. Department of Health and Human
Services, Social Security Administration and American Federation of
Government Employees, AFL-CIO, 24 FLRA No. 2 (1986). Accordingly, the
Agency's exceptions filed on October 30, 1986, more than thirty days
after the Arbitrator's bench decisions were rendered, were untimely
filed and, therefore, they must be dismissed.
For the Authority.
Issued, Washington, D.C., November 19, 1986.
/s/ Harold D. Kessler
Director of Case Management
FOOTNOTES
(1) Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98
Stat. 47, 48 (1984)) to provide that the 30-day period for filing
exceptions to an Arbitrator's award begins on the date the award is
served on the filing party.
(2) 49 Fed. Reg. 22623 (1984).
24 FLRA NO. 10
AFSCME, Local 2478 and U.S. Commission on Civil Rights, Case No.
0-NG-1068 (Decided November 19, 1986)
STATUTE
7106(a)(2)(E)
7106(a)(2)(A)
7121(b)(3)(C)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Authority of Arbitrator
Appointment of the Arbitrator
Contractual Provision Providing for Appointments by FMSC
Federal Mediation and Conciliation Service (FMCS)
Appointment of Arbitrators by FMCS
Code of Federal Regulations
29 C.F.R. 1404.13(c)
Discipline Employees, Reserved Management Right (7106(a)(2)(A))
Contractual "Statute of Limitations"
DIGEST NOTES
A proposal is nonnegotiable that would establish a contractual
"statute of limitations" which precludes the agency from taking
disciplinary action against an employee for incidents that occurred more
than a year prior to the agency's action. The proposal is inconsistent
with management's right under section 7106(a)(2)(A) to discipline
employees. (proposal 1)
A proposal is negotiable that provides for appointment of arbitrators
by the Federal Mediation and Conciliation Service (FMCS) to hear a case
if the agency refuses to participate in the selection of an arbitrator.
FMCS regulations (29 C.F.R. section 1404.13(c)) state that FMCS will
make a direct appointment of an arbitrator when authorized by an
applicable collective bargaining agreement. (proposal 2)
Case No. 0-NG-1068
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL
2478
Union
and
U.S. COMMISSION ON CIVIL RIGHTS
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 two Union proposals. We hold Union Proposal 1 to be
nonnegotiable and Union Proposal 2 to be negotiable.
II. Union Proposal 1
Article 29, Section 3. (Disciplinary Actions)
When it is determined by the Employer that disciplinary action
is necessary, the employee will be promptly informed of the
reasons why the action is being taken. Such action will be
accomplished with dispatch and normally be initiated within 30
days after management becomes aware of the alleged occurrence. In
no case will the Employer bring disciplinary action against an
employee for occurrences which are alleged to have happened more
than one year previously. (Only the underscored portion is in
dispute.)
A. Positions of the Parties
The Agency contends that this proposal is outside the duty to bargain
because it interferes with management's right to discipline employees,
under section 7106(a)(2)(A) of the Statute. The Union contends that the
proposal would merely protect employees' rights by insuring prompt
disciplinary action and would not violate the Agency's right to
discipline its employees. It also contends that by negotiating over the
proposal the Agency would not endanger its ability to proceed with
disciplinary actions when such actions are required by law, as the
parties' agreement contains provisions to that effect.
B. Analysis
The proposal would prohibit the Agency from taking any disciplinary
action against employees for occurrences alleged to have happened more
than one year previously. In our opinion, this proposal is to the same
effect as a provision found nonnegotiable in National Federation of
Federal Employees, Local 615 and National Park Service, Sequoia and
Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318
(1985) (Provision 2), affirmed sub nom. National Federation of Federal
Employees, Local 615 v. FLRA, No. 85-1299 (D.C. Cir. Sept. 12, 1986),
which required that investigations of incidents for which disciplinary
action may be taken normally be initiated within 60 days of the incident
or within 60 days after the employer becomes aware of the incident. The
Authority noted that by establishing a contractual "statute of
limitations" which would preclude it from investigating incidents which
may result in the disciplining of employees, the provision would, in
certain circumstances, prevent the agency from acting at all with
respect to that right. See also American Federation of Government
Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters,
XVII Airborne Corps and Fort Bragg, North Carolina, 17 FLRA 752 (1985)
(Union Proposal 3). The proposal in this case, likewise, would
establish a contractual limitation which would, in certain
circumstances, prevent the Agency from acting at all with respect to its
right to discipline employees.
As a result of this analysis, the Authority finds it unnecessary to
address the Union's additional contention.
C. Conclusion
For the reasons given here and in the cases cited in the analysis,
Union Proposal 1 is inconsistent with management's right to discipline
employees under section 7106(a)(2)(A) of the Statute and is, therefore,
outside the duty to bargain.
III. Union Proposal 2
Article 32, Section 4. (Arbitration)
If for any reason the Employer refuses to participate in the
selection of an arbitrator, the Federal Mediation and Conciliation
Service shall be empowered to make a direct designation of an
arbitrator to hear the case.
A. Positions of the Parties
The Agency did not include in its statement of position any
contentions in support of its allegation that this proposal is
nonnegotiable. The Union contends that the proposal merely requires the
Agency to participate in the arbitration process, as required by section
7121(b)(3)(C) of the Statute. /1/
B. Analysis and Conclusion
This proposal seeks to empower the Federal Mediation and Conciliation
Service (FMCS), an entity not a party to the collective bargaining
agreement, to directly designate an arbitrator to hear a case if the
Agency refuses to participate in the selection of an arbitrator. As
indicated above, the Agency provides no support for its allegation that
the proposal is nonnegotiable, nor does it appear to be so. We note
that 29 C.F.R. Section 1404.13(c), /2/ issued by the FMCS pursuant to
Title II of the Labor-Management Relations Act of 1947 (Pub. L. 80-101)
as amended in 1959 (Pub. L. 86-257) and 1974 (Pub. L. 93-360), is
applicable to "all persons or parties seeking to obtain from FMCS either
names or panels of names of arbitrators in connection with disputes
which are submitted to arbitration or fact-finding." That provision
expressly states that the FMCS will make a direct appointment of an
arbitrator when authorized by an applicable collective bargaining
agreement. Thus, the proposal appears to be fully consistent with
FMCS's regulations. Since the Agency has made no showing, nor is it
otherwise apparent, that this proposal is nonnegotiable, we conclude
that Union Proposal 2 is within the duty to bargain.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, the Agency shall upon request (or as otherwise agreed to by
the parties) bargain concerning Union Proposal 2. /3/ The petition for
review as it relates to Union Proposal 1 is dismissed.
Issued, Washington, D.C., November 19, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Section 7121(b)(3)(C) of the Statute requires that any negotiated
grievance procedure must include procedures that "provide that any
grievance not satisfactorily settled under the negotiated grievance
procedure shall be subject to binding arbitration which may be invoked
by either the exclusive representative or the agency(.)"
(2) 29 C.F.R. 1404.13(c) provides, in pertinent part, as follows:
(c) The Service will, on joint or unilateral request of the
parties, submit a panel or, when the applicable collective
bargaining agreement authorizes, will make a direct appointment of
an arbitrator(.)
(3) In finding this proposal within the duty to bargain, the
Authority makes no judgment as to its merits.
24 FLRA NO. 9
NFFE, Local 1374 and Pacific Missile Test Center (Miller,
Arbitrator), Case No. 0-AR-1185 (Decided November 19, 1986)
STATUTE
7106(a)(2)(B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitrability
Contracting Out Issues
Arbitration Awards, Review of, Exceptions Asserted in Appeal
Award Contrary to the FSLMR Statute
Section Not Specified
Arbitration Awards, Modified or Set Aside by Authority
Award Contrary to the FSLMR Statute (7122(a)(1))
7106(a)(2)(B)
OMB Circulars
A-76
DIGEST NOTES
Contrary to the arbitrator, the Authority held that a grievance
claiming that a procurement action failed to comply with OMB Circular
A-76 and management's right under section 7106(a)(2)(B) to make
determinations with respect to contracting out is within the broad scope
grievance and arbitration procedure prescribed by the Statute.
Case No. 0-AR-1185
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1374
Union
and
PACIFIC MISSILE TEST CENTER
Activity
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Anthony Miller filed by the Union under section 7122(a) of
the Federal Service Labor-Management Regulations Statute and part 2425
of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
A grievance was filed claiming that the decision to contract out
certain fuel service functions failed to comply with applicable
procurement law and regulations including OMB Circular A-76. The
grievance was submitted to arbitration where the threshold issue was
whether the grievance was grievable and arbitrable. The Arbitrator as
his award ruled that the grievance was not arbitrable. In reaching this
determination, he rejected the decisions of the Authority and the U.S.
Court of Appeals for the District of Columbia Circuit in American
Federation of Government Employees, AFL-CIO, National Council of EEOC
Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982)
(proposal 1), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir.
1984), cert. dismissed, 106 S. Ct. 1678 (1986) (per curiam). Instead,
he agreed with the decision of the court in Defense Language Institute,
Presidio of Monterey, California v. FLRA, 767 F.2d 1398 (9th Cir. 1985),
denying enforcement of National Federation of Federal Employees, Local
1263 and Defense Language Institute, Presidio of Monterey, California,
14 FLRA 761 (1984). Specifically, he held that the grievance was
foreclosed by management's right under section 7106(a)(2)(B) of the
Statute to make determinations with respect to contracting out and by
the provisions of OMB Circular A-76.
III. EXCEPTION
In its exception the Union essentially contends that by finding the
grievance not to be arbitrable, the award is contrary to the Statute.
IV. ANALYSIS AND CONCLUSIONS
We agree with the Union. In a series of recent decisions, we again
addressed the issue of whether a grievance claiming that a procurement
action failed to comply with applicable procurement law and regulation,
including OMB Circular A-76, was grievable and arbitrable under the
Statute. Citing EEOC, 10 FLRA 3, among other cases, we held that a
grievance claiming that a procurement action failed to comply with
applicable procurement law and regulations is within the broad scope
grievance procedure prescribed by the Statute and is not precluded by
law or regulation, including management's right under section
7106(a)(2)(B) to make determinations with respect to contracting out.
United States Army Communications Command, Fort McClellan and Local No.
1941, American Federation of Government Employees, AFL-CIO, 23 FLRA No.
23 (1986); General Services Administration and America Federation of
Government Employees, AFL-CIO, Council 236, 22 FLRA No. 84 (1986);
Headquarters, 97th Combat Support Group (SAC), Blytheville Air Force
Base, Arkansas and American Federation of Government Employees, AFL-CIO,
Local 2840, 22 FLRA No. 72 (1986). Furthermore, we specifically adhered
to this view while noting that this approach had been rejected by the
court in Defense Language Institute. See Headquarters, 97th Combat
Support Group (SAC), slip op. at 2 n.2.; American Federation of
Government Employees, AFL-CIO, Local 1923 and Department of Health and
Human Services, Office of the Secretary, Office of the General Counsel,
Baltimore, Maryland, 22 FLRA No. 106 (1986), slip op. at 4 n. 2.
Consequently, because the Arbitrator based his award on his view of the
grievance procedure prescribed by the Statute rather than a specific
exclusion from the grievance procedure negotiated by the parties, we
find that his award ruling that the grievance was not arbitrable is
deficient as contrary to the Statute and must be modified accordingly.
V. DECISION
The Arbitrator's ruling that the grievance in this case is not
arbitrable under the grievance procedure prescribed by the Statute is
struck. Accordingly, this ruling is removed as a bar to further
resolution of the grievance. This resolution must be in accordance with
the Statute and decisions of the Authority pertaining to grievances
disputing determinations by agencies to contract out agency work.
Issued, Washington, D.C., November 19, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
24 FLRA NO. 8
VA and VA Medical Center, Lyons, N.J. and AFGE, Local 1012, Case No.
2-CA-40271 (Decided November 19, 1986)
STATUTE
7116(a)(1), (2) and (5)
7118
SUBJECT MATTER INDEX ENTRIES
Agency ULP (Alleged) 7116(a)(1)
Statements by Agency Officials
Agency ULP (Alleged) 7116(a)(2)
Promotion
Agency ULP (Alleged) 7116(a)(5)
Position, Filling of
Supervisory Positions
Filling of Supervisory Positions Not . . . a Condition of Employment
Procedures, Mandatory Subjects of Bargaining (7106(b)(2))
Previously Bargained Matters That Are Not Conditions Of Emp.
No Obligation to Bargain Over Procedures for Changes
Promotion
Protected Activity
Failure to Promote Not Based on Anti-Union Animus
Statements by Supervisors or Management Officials
Personal Opinion Without Threats or Promise of Benefits
DIGEST NOTES
The agency did not violate section 7116(a)(1) and (2) when it failed
to select for promotion the union vice president to be the Acting
Associate Chief of Nursing Services for Education, a temporary position.
Although he was apparently qualified for the position, the Judge found
that the record was insufficient to establish that his union activity
was the basis for his non selection.
The agency did not violate section 7116(a)(1) and (5) by unilaterally
changing its methods of filling the Acting Associate Chief of Nursing
Services for Education (ACNSE), a temporary supervisory position. Since
the ACNSE position was a supervisory position, the filling of the
position on a rotational basis did not involve a condition of
employment, and changing the procedure did not change a condition of
employment. While an agency can elect to negotiate over matters that
are not conditions of employment such as the procedure for filling a
supervisory position, as the agency did in this case, negotiation does
not convert the procedure into a condition of employment. Accordingly,
the agency's unilateral change in the procedure did not involve a
condition of employment, and there was no obligation to bargain over the
decision to make that change. Likewise, the agency did not have an
obligation to bargain over the impact and implementation of the change.
Statements by an acting supervisor to the union vice president that
he could be fired for his union activity if he were in the private
sector did not, under the circumstances, violate section 7116(a)(1).
The statement was not in any way a threat and could not be reasonably
taken as one. The acting supervisor was a longtime union member and
chief steward who was a fellow instructor of the union vice president
for more than five years and talked to him on a daily basis. Whether or
not the acting supervisor's interpretation of law in the private sector
was correct, her statement was merely her personal opinion of what the
situation was. Moreover, the statement, rather than being interpreted
as a threat, could have just been interpreted as meaning that the
employee could not be discharged for his union activity in the Federal
Government.
Case No. 2-CA-40271
VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER,
LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority on limited exceptions filed by the
General Counsel to the attached Administrative Law Judge's Decision.
The Judge found that the Veterans Administration and Veterans
Administration Medical Center, Lyons, New Jersey (Respondent) violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by its failure to bargain with the
American Federation of Government Employees, AFL-CIO, Local 1012
(Charging Party) as to the adverse effects on bargaining unit employees
of its change in the system of rotating instructors into the Acting
Associate Chief of Nursing Service for Education (ACNSE) position. He
further found that Respondent had not engaged in other alleged unfair
labor practices. The issues presented by the limited exceptions to the
Judge's decision concern an allegedly coercive supervisor's statement,
the unilateral change in the method of filling the Acting ACNSE
(supervisory) position and the violation found pertaining to failure to
bargain about that change. In partial disagreement with the Judge, we
find no merit to any of the allegations contained in the complaint.
II. Facts
The facts are fully set out in detail by the Judge and are repeated
herein only to the extent that they concern matters related to the
General Counsel's exceptions. The Charging Party is the bargaining
agent for the professional registered nurses employed by the Respondent.
A. Procedures for Filling the Acting ACNSE Position
On March 18, 1983, the Charging Party's Vice President sent the Chief
Nurse a memorandum requesting negotiations concerning the detailing of
all nursing education instructors to staff nursing positions.
Contemporaneous with this proposed change, the current ACNSE requested a
transfer to another position at another hospital. On April 1, 1983,
representatives of the Charging Party and Respondent's management
officials met and negotiated concerning the detailing of instructors to
staff nursing positions. This meeting, in part, was devoted to a
discussion of the procedure to be used in temporarily filling the ACNSE
vacancy.
The parties did not sign a written agreement concerning this matter.
The Charging Party prepared and sent an "agreement" to the Respondent
which contained the Charging Party's understanding of what the parties
had agreed to at their meeting. The Respondent refused to sign the
proposed "agreement." The Respondent prepared minutes of the meeting,
however, and sent them to the Charging Party. Paragraph 2 of the
minutes provided that details would be for the shortest time possible,
with each detail being reviewed every four weeks. Paragraph 2 also
provided that based on need, details could be discontinued, changed or
extended. Paragraph 4 of the minutes provided in pertinent part that
"instructors will rotate through the Acting ACNSE position for one
month," and is substantially the same as paragraph 5 of the Charging
Party's "agreement." Subsequently, the Respondent began rotating
instructors through the Acting ACNSE position. On November 23, 1983,
Respondent, without notice to the Charging Party, altered the procedure
and detailed an employee indefinitely to fill the Acting ACNSE position.
The Respondent asserted that this change was made because the rotation
system was not effective.
B. Allegedly Coercive Statement
On February 8th and 9th of 1984, Bernard Canete, a nursing instructor
at the Respondent and Vice President of the Charging Party was involved
in processing an unfair labor practice charge. The parties had decided
to settle the charge and Canete and Ms. Benson, a steward of the
Charging Party, were responsible for drawing up a settlement agreement.
On the evening of February 9th, Acting ACNSE Dorothy Brenner asked
Benson how long she would be involved in the Union work so that she
could fill out the time logs. Canete, whose office was next to
Benson's, heard Benson say, "Dorothy, you are harassing me." Canete told
Brenner that management had given him and Benson time and that Brenner
was harassing them. Brenner went into Canete's office and told him,
"Mr. Canete, if you had been at St. Claire's Hospital you can be fired
with your union activities."
III. Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1) of the Statute by the supervisor's statement to an employee
because under the circumstances, the statement was not coercive or
intimidating. The Judge also found that the Respondent did not violate
section 7116(a)(1) and (5) of the Statute by unilaterally changing its
method of filling the Acting ACNSE position. The latter finding was
based on National Labor Relations Board Union, Local 21 and National
Labor Relations Board, 15 FLRA 798 (1984), where the Authority stated
that "a proposal concerning the filling of supervisory positions,
including temporary appointments is negotiable only at the election of
the agency since it does not concern a condition of employment of
bargaining unit employees . . . ." The Judge found that since the Acting
ACNSE position was a supervisory position, the filling of the position
on an acting basis did not involve a condition of employment and
changing the procedure did not change a condition of employment.
Further, the Judge found that whether Respondent breached its
contractual term or not by unilaterally changing the method of filling
the Acting ACNSE position, as the filling did not involve a condition of
employment the Respondent did not violate the Statute.
Notwithstanding the above, the Judge found that the Respondent
violated section 7116(a)(1) and (5) of the Statute by failing to bargain
with the Charging Party about the adverse effects on bargaining unit
employees of its decision to change the procedure for filling the Acting
ACNSE position. The Judge stated that where an agency makes a decision
that has a reasonably direct adverse impact on bargaining unit employees
and their conditions of employment, the agency is required by the
Statute to notify and bargain with the union concerning the adverse
effects of such change upon employees. The Judge noted that because of
the change, the instructors no longer had an equal opportunity to
experience and learn the skills useful for promotion and that those
instructors not given the opportunity had to perform certain of the
tasks and duties of those who were given the opportunity.
Further, the Judge found that the Respondent did not violate section
7116(a)(1) and (2) of the Statute by the failure of its Key Committee to
recommend Canete for selection to the ACNSE position. In so finding,
the Judge concluded that the evidence was insufficient to justify an
inference that the Key Committee's decision was based on Canete's Union
activity and was insufficient to justify discrediting the testimony of
the Key Committee Members that Canete's Union activity was not
considered in the Committee's determination. No exceptions were filed
to the Judge's conclusion in this regard.
IV. Positions of the Parties
The General Counsel argues that the Judge erred in finding that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute
when it unilaterally changed the method of filling the position of
Acting ACNSE, a supervisory position. Although the General Counsel
agrees with the Judge that the procedures which an Activity uses to fill
a supervisory position are bargainable only at the election of the
agency, it asserts that the Respondent elected to negotiate about the
procedures and entered into an agreement with the Charging Party on how
the Acting ACNSE position was to be filled. The General Counsel argues
that the Respondent could not thereafter repudiate the agreement without
violating section 7116(a)(1) and (5) of the Statute. The General
Counsel contends that the Respondent by making a permanent assignment of
an employee to the Acting ACNSE position repudiated its agreement to
rotate the position among unit employees and thereby violated section
7116(a)(1) and (5) of the Statute by unilaterally changing working
conditions of unit employees.
Further, the General Counsel argues that the Judge erred in finding
that Acting ACNSE Brenner's statement to Canete did not violate section
7116(a)(1) of the Statute. It is the General Counsel's view that a
statement to a union representative that the employee's union activity
could result in the employee being fired at a private hospital
constitutes a threat that the protected activity can lead to the same
consequences at a public hospital. Consequently, the General Counsel
concluded that the statement exceeded the expression of opinion and
constituted interference, restraint and coercion in violation of section
7116(a)(1) of the Statute.
V. Analysis
In agreement with the Judge and based on his rationale, we adopt his
finding that the Respondent did not violate section 7116(a)(1) and (2)
by failing to recommend Canete for selection to the ACNSE position. In
adopting the Judge's finding, we note that the General Counsel filed no
exceptions to the finding.
A. Procedures for Filling the Acting ACNSE Position
We agree with the Judge, based on his rationale, that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute by changing
the method for filling the Acting ACNSE position. The Acting ACNSE
position was a supervisory position. The filling of the position on a
rotational basis did not involve a condition of employment, and changing
the procedure did not change a condition of employment. While an agency
can elect to negotiate about the procedure for filling a supervisory
position, as the Respondent did in this case, negotiation does not
convert the procedure into a condition of employment. Accordingly, the
Respondent's unilateral change in the procedure did not involve a
condition of employment, and there was no obligation to bargain over
that change.
We reject the General Counsel's argument that the Respondent
repudiated its agreement with the Charging Party concerning the
procedure for filling the Acting ACNSE position. The parties prepared
documents setting forth separate versions of the meeting. The Union
prepared an "agreement," which the Respondent refused to sign, and the
Respondent prepared minutes of the meeting. The Judge found that none
of the parties objected to the minutes as written and that all stated
that the minutes reflected what was agreed upon. The Respondent
maintains, not inconsistent with the minutes of the meeting, that the
understanding reached by the parties was that management would fill the
position by rotation on a trial basis but that management retained the
authority to change or terminate the procedure at any time management
determined that rotation was not working effectively. The Union
disagrees. In these circumstances, assuming that the minutes reflect an
agreement, we find that this aspect of the case involves differing and
arguable interpretations of the parties' agreement. In cases involving
disputed interpretations of an agreement, the aggrieved party's remedy
is through the grievance and arbitration procedures available to the
parties, or other appropriate proceedings, rather than through unfair
labor practice procedures. See Department of Health and Human Services,
Social Security Administration, 23 FLRA No. 62 (1986).
/*/
Moreover, even assuming that the Respondent's subsequent rotation of
employees through the position was sufficient to establish a past
practice, the Respondent was under no obligation to bargain over the
change or termination of the practice since the subject matter did not
involve a condition of employment. Nuclear Regulatory Commission, 17
FLRA 972 (1985).
Furthermore, we disagree with the Judge's finding that the Respondent
violated the Statute when it failed to bargain with the Charging Party
about the adverse effects of the change. Since changing the method for
filling the Acting ACNSE position did not change a condition of
employment, the Respondent was under no obligation to bargain over the
impact and implementation of the change. See Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island, 11FLRA 316
(1983); and Department of the Navy, Supervisor of Shipbuilding,
Conversion and Repair, Groton, Connecticut, 4 FLRA 578 (1980). Thus, we
will dismiss the section 7116(a)(1) and (5) violation found by the
Judge.
B. The Allegedly Coercive Statement
We agree with the Judge, based on his rationale, that the Respondent
did not violate section 7116(a)(1) of the Statute by the statement of
its supervisor, Acting ACNSE Brenner, to Canete. In agreement with the
Judge, we conclude that Brenner's statement to Canete would not, under
the circumstances, tend to coerce or intimidate him as the statement was
merely Brenner's opinion of what the situation was in the private sector
and could not reasonably be construed or interpreted as a threat.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the findings 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 positions of the parties and the entire record, we
adopt the Judge's findings, conclusions and recommended Order as
modified.
We conclude that the Respondent did not violate section 7116(a)(1)
and (2) of the Statute by the failure of its selection committee to
recommend that a bargaining unit employee be considered for selection
for the supervisory position of ACNSE; did not violate section
7116(a)(1) of the Statute by a statement made by one of its supervisors
to a bargaining unit employee; and did not violate section 7116(a)(1)
and (5) of the Statute by changing the method of filling the Acting
ACNSE position. We conclude further, contrary to the Judge, that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute by
failing to bargain with the Charging Party about the adverse effects on
employees of the decision to change the method of filling the Acting
ACNSE position. Accordingly, we dismiss the complaint in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-40271 be, and it
hereby is, dismissed.
Issued, Washington, D.C., November 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 2-CA-40271
VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER,
LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
Leslie Vincent, Esq.
For the Respondent
Lee Whitaker
For the Charging Party
Lee Mingledorff, Esq.
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
A charge was filed on March 22, 1984 and amended April 17, 1984 by
the American Federation of Government Employees, AFL-CIO, Local 1012,
(hereinafter referred to as AFGE Local 1012 or the Union), against the
Veterans Administration (VA) and Veterans Administration Medical Center,
Lyons, New Jersey (VAMC Lyons) hereinafter referred to jointly as
Respondent. Pursuant to the above described charge and amended charge,
on August 31, 1984, the General Counsel of the FLRA, by the Regional
Director for Region II issued a Complaint and Notice of Hearing alleging
that Respondent violated Sections 7116(a)(1), (2) and (5) of the
Statute. Respondent filed an Answer denying that it had violated the
Statute.
A hearing was conducted before the undersigned in New York, New York.
Respondent, Charging Party and General Counsel of the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein AFGE has been the exclusive
representative for a nationwide unit of nurse professional employees of
the VA, which includes nurse professional employees at VAMC Lyons. AFGE
Local 1012 is the local agent of AFGE at VAMC Lyons and is recognized as
such by Respondent.
The Discrimination Allegation
Bernard T. Canete has, at all times material, been employed at VAMC
Lyons as a nursing instructor. He has held this position since 1978.
He is also Vice-President of the professional RN unit and he has held
this position since February 1983. Prior to holding this position he
was the chief steward in the professional unit. He held this position
from 1981 to 1983. As Vice President, Canete's duties involve dealing
with management on grievances, arbitrations and other types of employee
complaints. He is also a member of AFGE Local 1012 executive committee
and is the Union's representative on the VAMC Lyons EEOC committee and
on the Hispanic Employment Program at VAMC Lyons. Canete, as Vice
President, represents employees under the negotiated grievance
procedure, in the later stages, in meetings with higher management
officials including the Chief of Nursing, Chief of Personnel, Chief of
Staff, and Medical Center Director. He represented the Union in
negotiations with management at VAMC Lyons on proposed shift change for
nurses. During these negotiations, which lasted from April 1983 to
October 1983, he dealt with Wanda Daniels who was Chief of Nursing. In
addition to these negotiations Canete was involved as chief negotiator
in negotiations on the detailing of instructors. These negotiations
also lasted from March 1983 to the following October. Canete was
involved in the first unfair labor practice charge filed by the Union on
December 27, 1983 and that prior to the filing of the charge he had met
with VAMC Lyons management on the matter during the middle of October
1983. During the second meeting with management during these
negotiations, the Personnel Officer told Canete to forget about employee
needs and concerns and to speak about his promotion to Associate Chief
of Nursing Service for Education (ACNSE). When Canete declined to set
aside his union business for a discussion of his promotion he was told
the reference was meant to be a joke.
Canete was considered for the position of ACNSE in October of 1983.
This came about as a result of the settlement of an EEO complaint with
Canete filed in July of 1981. Canete was told by the VA's attorney that
the only way to resolve the EEO case was to give Canete top priority
consideration for the ACNSE.
The Nursing Service Key Committee located at VA's Central Office in
Washington, D.C. considered candidates for the ACNSE and failed to
recommend Canete for the position.
Donna Humes, a Deputy Director of Respondent works for Assistant
Chief Medical Director Ferguson and served as Chairman of the Key
Committee. There were seven members of the Key Committee. When the Key
Committee has a vacancy to consider, it is VA policy to speak with the
hospital director or the chief of staff to ask them what qualifications
they are looking for in a candidate. There are also other opportunities
for the Key Committee members to communicate with these officials. In
considering Canete for the position the Key Committee reviewed Canete's
personnel folder and his Board Action Folder. Maragret de Weaver is the
member of the Committee that communicated to the Committee the fact that
Canete had had an opportunity to act in the ACNSE position and that
there was concern by local VAMC Lyons management about his
indecisiveness. /1/ De Weaver had reviewed Canete's record and had
explored his qualifications with Daniels, the VAMC Lyons Chief of
Nursing. De Weaver in fact presented a summary of Canete's
qualifications which was apparently relied upon by the other members of
the Key Committee. De Weaver was the only Key Committee member who had
knowledge that Canete was a Union member or held an office within AFGE
and did not discuss this with the Key Committee. The Key Committee
reviews approximately 25 files a week. There were references throughout
Canete's personnel file concerning his having filed discrimination
complaints; there was also a letter of appreciation by VAMC Lyons to
Canete for his role as the Acting ACNSE from January 1981 to June 1981
and a favorable evaluation. The reason the Committee did not consider
Canete's successful performance in the role of Acting ACNSE in 1981 to
be determinative was that the Committee had information through de
Weaver, from Daniels that Canete was indecisive and did not properly
handle his administrative responsibilities in a proper fashion. Finally
significant consideration was given in Canete's evaluation dated June 6,
1983 which indicated that Canete had a weakness in terms of his
interpersonal relationships. Canete's personnel file, when his
application was considered, included Canete's 1980-81, 1981-82, and
1982-83 /2/ annual proficiency reports. In addition to his proficiency
reports Canete's personnel folder contained a statement of his
accomplishments as ACNSE from January to June of 1981. In addition to
the above documents, Canete's personnel file at the time it was reviewed
by the Key Committee contained the following documents: several letters
of appreciation; Canete's Curriculum Vitae, a document which summarizes
his experience and education background; an AFGE certificate stating
that Canete attended training as a union steward; and an AFGE
certificate stating Canete received Officers and Stewards Training.
Canete was notified of his rejection by the Key Committee on November
2, 1983 by a letter he received from A. Paul Morris, the Acting Regional
Director for Respondent's Mid-Atlantic Region. This letter, prepared by
de Weaver, states that the reason Canete was not referred for selection
was because his recent work experience in education had been limited to
the VAMC Lyons, except for the period of time, 1970-71, when he was an
assistant clinical instructor in a hospital school of nursing.
Subsequent to his being rejected by the Key Committee, Canete asked for
an explanation of why he was rejected, but he received no explanation.
In this connection it should be noted that subsequent to the filing of
the charge herein, Respondent set forth in two letters its response to
the charge. In one letter, dated April 20, 1984, Respondent gave as the
explanation for the rejection of Canete his lack of experience,
knowledge, skills, and abilities and other characteristics per the
guidance contained in Respondent's Program Guide for Nursing Service
G-15, M-2, Part V, Appendix B. In its June 27, 1984 letter Respondent
asserted that although mobility could have been a factor considered, the
primary considerations were his qualifications and experience and the
consensus was that Canete would be better suited to a smaller, less
active station than VAMC Lyons.
The qualifications for the ACNSE position are set forth in an August
1, 1980 Position Requirement Memorandum from Daniels, the 1982 Position
Description for ACNSE position approved by Daniels, Respondent's
pamphlet of facts on the position, and Respondent's Program Guide for
Nursing Service. Essentially they set forth the qualifications as being
a Master Degree (a higher degree is preferred) with a major in nursing
from a National League of Nursing accredited program; four years of
nursing experience of which one year should be in teaching; some
experience in basic nursing administration; and mobility or a
willingness to accept transfer to meet the needs of the Nursing Service.
The Program Guide, which was references in Respondent's April 20, 1984
position letter, lists courses and other contributory preparation
relative to qualifying for the ACNSE position. Examples of contributory
experiences are the planning and implementation of learning experiences
for patients, families, and nursing staff; participation of Nursing
Service and hospital committees; serving on the Nurse Professional
Standards Board; participating in developing the Nursing Service
philosophy and goals; participation in writing the educational
component of the annual report for Nursing Service; participating in
developing intra VA and extra VA details; developing and completing a
thesis or research project; teaching experience in courses for
registered nurses, practical nurses and nursing assistants; and
participation in activities at Regional Medical Educations Centers.
In an affidavit related to the EEO complaint admitted into evidence,
Wanda Daniels, the Chief Nurse at VAMC Lyons, was asked how she would
evaluate Canete's qualifications for the ACNSE position at VAMC Lyons.
She responded that he was very well qualified and that he could manage
the position. Vernice Ferguson, the Deputy Assistant Chief Medical
Director for Nursing Programs at Respondent's Central Office in
Washington, D.C., also gave an affidavit in the EEO proceeding and
stated that lack of mobility would not be a single determinant
justifying nonselection since management needed to be sensitive to the
fact that people have been promoted in place and that there was
compassionate reasons to honor a candidate's lack of mobility. Daniels'
and Ferguson's statements were made in December of 1982 and January,
1983, respectively.
A number of the members of the Key Committee testified /3/ at the
heraing herein and stated that they did not know of Canete's Union
activities, that such activities were not discussed and were not
considered in deciding whether to recommend Canete for the ACNSE
position. In all the circumstances I credit the members of the Key
Committee that Canete's Union activities was not a consideration in
their determination not to recommend him for the ACNSE position at VAMC
Lyons. /4/
Further I conclude that ACNSE is a supervisory and/or managerial
position. All parties assumed this and the Program Guide sets forth
supervisory duties, including "Directs, counsels, and evaluates
performance of nursing instructors . . . "
The Alleged Statement by Brenner
Allan Stadtmauer an FLRA agent had set up appointments with Canete to
investigate an unfair labor practice charge on February 8th and 9th of
1984. On the 8th of February an entire day was taken up speaking to the
agent; around 4:00 p.m. Stadtmauer suggested that the parties explore
the possibilities of an informal settlement. Canete had spent the
entire duty day working in the unfair labor practice charge. Canete's
immediate supervisor on February 7, 8 and 9, 1984 was Dorothy Brenner,
Acting ACNSE. At 7:15 p.m. on February 9th Canete and Benson, a
steward, were still working on the settlement agreement. Canete went
into his office. Brenner, as Acting ACNSE asked Benson /5/ how long she
would be involved in the Union work. Brenner asked so she could fill
out time logs. After a while Canete heard Benson say in a loud tone of
voice, "Dorothy, you are harassing me." Canete on hearing this (he was
next door to Benson's office) told Brenner in a tone of voice loud
enough for her to hear, that management had given him and Benson time
and that Brenner was harassing them. Brenner then left her office and
came into Canete's office and told him, "Mr. Canete, if you had been at
St. Clarie's Hospital /6/ you can be fired with your union activities."
Canete said he was shocked by what was said and that he had a settlement
agreement in his hand. Brenner then turned around and returned to her
office. Brenner had had to teach Canete's classes on the 8th and 9th of
February and she had previously related to him that she did not like the
idea of having to take these courses because Canete was engaging in
Union activities.
Brenner and Canete had worked together for several years as
instructors. Also Brenner was a member of the Union and Chief Steward.
Subsequently she resigned from the Union.
The Alleged Unilateral Change in Working Conditions
On March 18, 1983 Canete sent Daniels a memo requesting negotiations
concerning the detailing of all nursing education instructors to staff
nursing positions. Contemporaneous with this proposed change the
current ACNSE requested a transfer to another position at another
hospital. In order to fill the position being vacated management
detailed a unit employee, Nursing Instructor Long, to be, effective
March 25, 1983, Acting ACNSE for an indefinite period. The Union
objected to the Long assignment. On April 1, 1983 representatives of
the Union and VAMC Lyons management officials met and negotiated
concerning the detailing of instructors to staff nursing positions.
Part of this meeting was devoted to a discussion of the procedure to be
used in temporarily filling the ACNSE vacancy. On April 1, 1983,
subsequent to the meeting, the Union sent an agreement to the Medical
Center Director which contained that to which the Union thought the
parties had agreed. Management refused to sign the agreement.
Subsequent to the union's written version of the agreement being
prepared, VAMC Lyons management prepared its own document purporting to
be the minutes that the parties had agreed to. This document was
received by the Union on April 1st, the same day as its version of the
agreement was submitted. Management's minutes, regarding paragraph 4,
/7/ is the substantially same as paragraph 5 /8/ of the Union's version
of the agreement. None of the parties objected to the minutes as
written and all stated the minutes reflected what was agreed upon.
Subsequent to the agreement of the parties on April 1st, management
began rotating instructors through the Acting ACNSE position. On
November 23, 1983 management unilaterally altered the procedure it was
following and detailed Brenner indefinitely to fill the Acting ACNSE
position. This change was made because management felt the rotation
system had faults and was not very effective. The Union subsequently
met with management, soon afterwards, to protest the decision to stop
the rotating details but met with no success. Management subsequently
wrote a memo on December 27, 1983 explaining that the decision to
terminate the rotation of nursing education personnel was made by the
Chief of Staff but that it had the support of the Medical Center
Director. The Union protested management's position by letter on
January 5, 1984.
The impact on employees of management's decision to end the rotation
of nurses through the Acting ACNSE position were severalfold. First the
indefinite detail of Brenner into the position on November 27, 1983
changed the level of supervision which prepared employee proficiency
reports. During the rotation period this was done by the Chief Nurse, a
second level supervisor; after the rotation ended, the rating official
became once more the Acting ACNSE, the immediate supervisor. Another
impact of the indefinite detail of Brenner was that during the period of
the detail the employees and Union lost the benefit of the services of
Brenner, the Union's chief steward, who had been, up to that point, very
active. Also employees who had been given an opportunity on a rotating
basis to be Acting ACNSE now lost that opportunity and with it the
chance to acquire experience which would be helpful in promotions.
Discussion and Conclusions of Law
General Counsel of the FLRA alleges that the Key Committee failed to
recommend Canete for selection for the ACNSE position because Canete had
engaged in protected activity on behalf of AFGE Local 1012 and that by
so doing VA violated Section 7116(a)(1) and (2) of the Statute. The
FLRA has held that, in order to establish this type violation of Section
7116(a)(1) and (2) of the Statute, the General Counsel of the FLRA had
the burden of establishing that the alleged discriminatee had engaged in
protected activity, that Respondent had knowledge of such activity and
that Respondent took the alleged discriminatory action because of its
union animus. Cf. Internal Revenue Service, 6 FLRA 96 (1981); United
States Forces/Eighth United States Army, 11 FLRA 434 (1983) and
Department of Transportation, Federal Aviation Administration, Boston
Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA 318
(1983).
In the subject case it is well established that Canete was an
official of AFGE Local 1012 and was very active on its behalf. He
processed grievances, and negotiated contract terms on behalf of AFGE
Local 1012. As a representative of AFGE Local 1012, Canete had dealings
with many officials of VAMC Lyons. Thus Canete's activities on behalf of
Local 1012 were apparently well known at VAMC Lyons. Further, because
de Weaver was that member of the Key Committee who communicated directly
with the officials of VAMC Lyons, it reasonable to infer that de Weaver
was aware of Canete's activities on behalf of AFGE Local 1012.
Thus, although a member of the Key Committee might have known about
Canete's union activity, I conclude that the Key Committee did not base
its determination to refuse to recommend Canete for the ACNSE position
upon Canete's union activity. I have credited the testimony of the
members of Key Committee that Canete's Union activity was not discussed
or mentioned during its consideration and that a number of the members
of the Key Committee did not know of Canete's Union activity. Further
the record fails to establish union animus on the part of the Key
Committee or the VA management. Thus, although Canete seemed a
qualified candidate for a ACNSE position, I conclude the surrounding
circumstances, as established in the record, are insufficient to justify
an inference that the Key Committee's decision was based on Canete's
Union activity and are insufficient to justify discrediting the
testimony of the Key Committee members that Canete's Union activity was
not a consideration in the Committee determination.
Accordingly, I conclude that Respondent did not violate Section
7116(a)(1) and (2) of the Statute when its Key Committee did not
recommend Canete for the ACNSE position.
With respect to Brenner's statement the FLRA has held that a
supervisor's statement violates Section 7116(a)(1) of the Statute when
it reasonably tends to coerce or intimidate employees in the exercise of
protected rights and that an objective test is applies. Federal
Mediation and Conciliation Service, 9 FLRA 199 (1982). In the subject
case I conclude that Brenner's statement to Canete would not have tended
to coerce or intimidate a reasonable employee. Thus although Brenner
was an acting supervisor, she was also a longtime Union member and chief
steward. Further she was a fellow instructor who shared an office with
Benson and had been a fellow employee with Canete for five (5) years and
she and Canete talked together on a daily basis. Most important
however, was Brenner's statement was not in any way a threat and could
not reasonably be taken as one. Brenner stated that if Canete had been
at St. Claire hospital, a private hospital, he could be fired for his
union activity. This could not be reasonably construed or interpreted
as a threat. It was clear to all that Canete did not work for St.
Claire Hospital and that therefore he was safe from being fired. I need
not decide whether Brenner's interpretation of the law in the private
sector, is correct, it was merely a statement by her of her opinion of
what the situation was in the private sector. It could not be
interpreted as a threat, directly or indirectly, that somehow an
employee of the VA was subject to discharge for union activity. In fact
the exact opposite inference, that a VA employee could not be discharged
for union activity, might reasonably be drawn. Federal Mediation and
Conciliation Service, supra.
The FLRA has stated, "It is well established that a proposal
concerning the filling of supervisory positions, including temporary
appointments, is negotiable only at the election of the agency since it
does not concern a condition of employment of bargaining unit employees
. . . " National Labor Realations Board and National Labor Relations
Board Union, Local 21, 15 FLRA 798 (1984) (hereinafter called the NLRB
case). Therefore, I am constrained to conclude that filling of the
ACNSE position, on a temporary basis, "does not concern a condition of
employment of bargaining unit employees," NLRB case, supra at 798, and
that although Respondent was not obliged to bargain concern filling the
ACNSE position, it could voluntarily do so. In the instant case,
whether it breached its contractual term or not, Respondent did
unilaterally change the method in which filled the Acting ACNSE position
by changing from a one month rotation basis to a permanent acting basis.
However, because the filling the ACNSE position, on acting basis, does
not involve a condition of employment, changing such a matter does not
involve changing a term of employment. Accordingly, I must, conclude
that Respondent did not unilaterally change a condition of employment,
when it changed its method for filling the acting ACNSE position. Thus
although the FLRA held management can elect to negotiate about such a
noncondition of employment, such negotiation does not and cannot convert
a noncondition of employment to a condition of employment. /9/
Presumably all negotiating does is, perhaps, provide the union with some
action to enforce the contractual obligations, e.g., through grievance
procedures, etc.
I must conclude therefore that Respondent did not violate Section
7116(a)(1) and (5) of the Statute when it changed its method of filling
the Acting ACNSE position. See NLRB Case, supra; Nuclear Regulatory
Commission, 17 FLRA No. 132 (1985) and United States Department of
Treasury, U.S. Customs Service, 18 FLRA No. 1(1985).
General Counsel of the FLRA urges, further that Respondent violated
Section 7116(a)(1) and (5) of the Statute because it changed the method
of assignment of the employees into the Acting ACNSE position without
first affording the Union an opportunity to bargain over the impact and
implementation of the change. Because, as discussed above, the filling
of the Acting ACNSE position did not involve a condition of employment,
no obligation to bargain over the impact and implementation of the
change as created by Section 7106 of the Statute. However, where an
agency makes a purely managerial decision that has a reasonably direct
adverse impact on employees and upon their conditions of employment, the
agency is required by the Statute, to notify and bargain with the union
concerning the adverse effects of such change upon employees. This
would be in keeping with the statutory scheme of granting federal
employees meaningful collective bargaining. It is a recognition that
although management has the right to make purely managerial decisions
free from any obligation to bargain with union concerning such
decisions, where such decisions would have a direct adverse impact on
employees, management does have an obligation to bargain with the union
representing the employees to minimize the adverse affect of the
decisions upon the employees. Cf. NLRB v. Gray-Grimes Tool Co., 96 LRRM
2212 (3rd Cir. 1977); NLRB v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir.
1965).
In the subject case the decision to change the system of rotating
instructors into the Acting ACNSE position had a direct and substantial
adverse effect on unit employees. Instructors no longer had an equal
opportunity to have the experience and to learn the skills useful for
promotion and those instructors not given the acting supervisory
position had to perform certain of the tasks and duties of those who
were given the opportunity to act as a supervisor.
Accordingly I conclude that Respondent's failure to bargain with the
Union about the adverse effect upon employees of its decision to change
the method of appointing Acting ACNSE position violated Section
7116(a)(5) and (1) of the Statute.
Having concluded that Respondent did not violate the Statute with
respect to the Key Committee's failure to recommend Canete for the ACNSE
position, the statement by Brenner to Canete, and the failure to bargain
about the change in the method of appointing employees to the Acting
ACNSE position; but that Respondent did violate Section 7116(a)(5) and
(1) of the Statute by failing to bargain with the Union about the
adverse effect upon employees of its decision to change the method of
filing the Acting ACNSE position, I recommend that the Authority issue
the following:
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby Orders the Veterans Administration and Veterans
Administration Medical Center, Lyons, New Jersey, shall:
1. Cease and desist from:
(a) Refusing to bargain with American Federation of Government
Employees, AFL-CIO, concerning the adverse effect of changes in
the method of appointing an acting Associate Chief of Nursing
Service for Education or any other change that has a direct and
adverse effect upon employees.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request bargain in good faith with American Federation
of Government Employees, AFL-CIO, concerning the adverse effect of
the changes in the method of appointing an acting Associate Chief
of Nursing Service for Education or any other change that has a
direct and adverse effect upon employees.
(b) Post at Veterans Administration Medical Center, Lyons, New
Jersey, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by a responsible official and shall be
posted by him for 60 consecutive days in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The official shall take
reasonable steps to insure that such notices are not altered,
defaced or covered by any other material.
(c) Pursuant to 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 26 Federal
Plaza, Room 2237, New York, New York 10278, in writing within 30
days from the date of this Order as to what steps have been taken
to comply herewith.
/s/ Samuel A. Chaitovitz
Administrative Law Judge
Dated: August 21, 1985
Washington, D.C.
FOOTNOTES
(*) In view of the above, we find it unnecessary to pass upon the
Judge's statement pertaining to the enforcement of a contractual
obligation.
(1) De Weaver was the member of the Committee assigned to work with
the nursing services in the mid-Atlantic area and as such she had the
most knowledge concerning Canete's qualifications and the situation at
VAMC Lyons.
(2) It should be noted that the reference in his 1982-83 proficiency
report to his having been involved in activities which extended beyond
his nursing education function, is apparently a reference to a
counseling memo concerning Canete's unexcused absences from work due to
his activities as a union steward. The counseling memo was not in
Canete's personnel folder at the time he was considered by the Key
Committee.
(3) De Weaver did not testify.
(4) Thus, although when appropriate, surrounding circumstances might
be sufficient to discredit such witnesses and to infer that Canete was
refused the recommendation because of his Union activities, I conclude
these Key Committee members were very credible witnesses and the
surrounding circumstances not sufficient to justify discrediting them.
(5) Brenner and Benson shared an office.
(6) A private hospital.
(7) Paragraph 4 of the minutes provides: "Except for Ms. Sagl and
Mrs. Washington, Instructors will rotate through the Acting ACNSE
position for one month."
(8) Paragraph 5 of the Union version provides: "Acting ACNSE will be
rotated through instructors for one month each (except Ms. Sagl and Ms.
Washington)."
(9) In reaching its conclusion in the NLRB Case, supra, I note that
the FLRA based its finding on the conclusion that the filling of a
supervisory position is not a "condition of employment", it did not base
its finding on Section 7106 of the Statute, which basically exempts
certain conditions of employment from bargaining because of management
rights considerations. Section 7106 provides, however, an obligation to
bargain about the impact and implementation of changes in such
"management rights" conditions of employment. Thus the FLRA's
conclusion in the NLRB Case, supra, that management could voluntarily
negotiate about the filing of supervisory positions, was not pursuant to
Section 7106 because it did not involve one of the "management rights"
conditions of employment.
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 bargain with American Federation of Government
Employees, AFL-CIO, concerning the adverse effect of changes in the
method of appointing an acting Associate Chief of Nursing Service for
Education or any other change that has a direct and adverse effect upon
employees.
WE WILL NOT in any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
WE WILL upon request bargain in good faith with American Federation
of Government Employees, AFL-CIO, concerning the adverse effect of the
changes in the method of appointing an acting Associate Chief of Nursing
Service for Education or any other change that has a direct and adverse
effect upon employees.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278
and whose telephone number is: (212) 264-4934.
24 FLRA NO. 7
NAGE, Local R4-75 and Dep't of the Interior, National Park Service,
Blue Ridge Parkway, Case No. 0-NG-1144 (Decided November 18, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A), (B), (C) and (D)
7106(b)(1), (2) and (3)
7114(c)
SUBJECT MATTER INDEX ENTRIES
Assign Employee
Mission Essential Employees
Rotation of Assignments
Assign Work, Reserved Management Right
Health and Safety
Leave
Code of Federal Regulations
5 C.F.R. 752.404
5 C.F.R. 752.203(c)
5 C.F.R. 404(b)(3)(i)(v)
Collective Bargaining Agreement
Ratification/Approval of Agreement
Agency Head's Review of Contract Provisions (7114(c))
Discipline of Employees
Suspension
Advance Notification of
Emergency Action, Reserved Management Right (7106(a)(2)(D))
Leave
Health and Safety
Physical Exertion Beyond Safe Limits
Assistance to Employees
Leave
Annual Leave or Vacation Pay
Assignment of
Emergencies
Seniority Basis
Negotiability Procedure
Allegation of Nonnegotiability
Agency Head's Disapproval of an Agreement (7114(c))
Procedures, Mandatory Subjects of Bargaining (7106(b)(2))
Balancing of Agency Rights and Employee Rights
Suspension, Reserved Management Right
Suspend Employees, Reserved Management Right (7106(a)(2)(A)
Fourteen (14) Days or Less
Advance Notification of
Impact on Management's Right to Assign Work
United States Code
5 U.S.C. 7513(b)(1)
5 U.S.C. 7501-7504
5 U.S.C. 7103(b)(2)
5 U.S.C. 7512
5 U.S.C. 7513
5 U.S.C. 7514
DIGEST NOTES
A provision is negotiable that creates a procedure for resolving
conflicts between employee annual leave schedules based on seniority.
The provision does not violate management's right under section
7106(a)(2)(B) to assign work because the provision preserves
management's right to schedule and approve leave based on its work
requirements. (provision 1)
A provision is negotiable that advises employees that they may be
called back from leave in emergencies. The provision does not limit the
agency's right to act in emergencies under section 7106(a)(2)(D) by
imposing a definition of "emergency" on management. (provision 2)
A provision is negotiable that requires the agency to provide
employees at least 15 days advanced written notice prior to suspending
the employee for 14 days or less. The provision applies to suspension
of employees under 5 U.S.C. sections 7501-7504 and 5 C.F.R. section
752.101-203, which require agencies to follow certain procedures when
they propose to suspend employees for 14 days or less. Under no
circumstances would the provision preclude the agency from initiating
disciplinary action against an employee. Rather, the provisions is a
negotiable procedure under section 7106(b)(2). The provision balances
the agency's need to impose discipline against employees' rights to have
notice of and an opportunity to answer the charges against them. Other
language in the parties' agreement, which refers to 5 U.S.C. section
7513 and 5 C.F.R. section 752.404, preserves the agency's right to
separate an employee from the workplace, without delay, for a serious
offense and where the employee's presence at the workplace might
threaten other agency employees, agency property, or other legitimate
agency interests. The provision does not interfere with the agency's
right to assign work under 7106(a)(2)(B) as alleged by the agency. The
provision does not affect the agency's determination concerning the
assignment of work to an employee during the periods prior to an
employee's suspension and does not require that suspensions become
effective at any particular time. (provision 3)
A provision is negotiable that requires management to provide
assistance to employees -- in the form of other personnel or additional
tools or equipment -- when the physical exertion required for a task
exceeds safe limits under applicable directives. The provision does not
violate management's right to assign work under section 7106(a)(2)(B)
because it does not prevent management from assigning work to employees
or empower employees to refuse work assignments. (provision 4)
Although not raised by the agency, implementation of certain
provisions could affect management's rights to determine numbers, types,
and grades of employees who are assigned to a work project or the
methods and means of performing work. These matters are permissive
subjects of bargaining under section 7106(b)(1), that is matters on
which the agency may elect to bargain or not to bargain. Bargaining on
the provisions occurred at the local level and an agreement was
executed. The agency head disapproved the provision pursuant to section
7114(c). However, permissive subjects of bargaining negotiated and
agreed upon locally, may not be disapproved by an agency head under
section 7114(c) simply because they relate to section 7116(b)(1)
matters. (provision 4)
A provision is negotiable that requires the assignments of personnel
who are mission essential be rotated in situations where less than a
full workforce is required, to ensure that these assignments are evenly
distributed. The provision does not affect management's discretion to
determine which agency personnel are mission essential and it does not
interfere with management's right to assign employees under section
7106(a)(2)(A). (provision 5)
Case No. 0-NG-1144
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-75
Union
and
U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, BLUE RIDGE
PARKWAY
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority under section 7105(a)(2)(E) of the
Federal Service Labor-Management Relations Statute (the Statute) and
concerns the negotiability of five provisions of a negotiated agreement
disapproved by the Agency head under section 7114(c) of the Statute.
/1/
II. Provision 1
Article XIV, Annual Leave, Section 4
In the event of a conflict in annual leave scheduling among
employees, the senior employee based on length of service, using
service computation dates, will be given first choice in the
absence of determinable hardship and thereafter rotated in
descending seniority sequence. However, length of service shall
not be used for the same choice leave each year, (e.g., Christmas
Holidays, July 4th Holidays, New Year Holidays, first week of
hunting season and etc.).
A. Positions of the Parties
The Agency asserts that the provision violates its right to assign
work under section 7106(a)(2)(B) of the Statute because the provision
mandates leave approvals, based on seniority, which may conflict with
work requirements. The Union disputes this assertion.
B. Analysis and Conclusion
The provision is negotiable. As worded and explained by the Union,
the provision creates a procedure for resolving conflicts between
employee leave schedules. Where the number of employees who apply for
leave for a particular period exceeds the number management can release
from work during that period, the provision requires that the more
senior employees will be given preference. The Agency's interpretation
of the provision -- that it requires that employee leave requests take
precedence over mangement's work requirements -- is unsupported. The
provision creates a procedure for resolving conflicts among employee
requests for leave.
Although the Agency correctly cites Authority precedent on
management's right to disapprove leave requests which conflict with its
work requirements, for example, American Federation of Government
Employees, AFL-CIO, Local 2263 and Department of the Air Force,
Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New
Mexico, 15 FLRA 580, 583-84 (1984), that precedent is inapplicable to
this provision because the provision preserves management's right to
schedule and approve leave based on its work requirements.
III. Provision 2
Article XIV, Annual Leave, Section 8
An employee may be called back from leave when an emergency
arises.
A. Positions of the Parties
The Agency claims the provision conflicts with management's right to
assign work under section 7106(a)(2)(B) of the Statute because it would
prevent management from calling employees back from leave except in
emergencies. The Union asserts that the Agency has misinterpreted the
provision.
B. Analysis and Conclusion
The provision is negotiable. As worded and explained by the Union,
the provision advises employees that they may be called back from leave
in emergencies. The provision does not limit management's right to
cancel leave to a particular definition of an "emergency" or limit
management's right to cancel leave for other reasons. Further, unlike
provision 2 in National Federation of Federal Employees, Local 2059 and
U.S. Department of Justice, U.S. Attorney's Office, Southern District of
New York, New York, 22 FLRA No. 13 (1986), this provision does not limit
the Agency's right to act in emergencies under section 7106(a)(2)(D) of
the Statute by imposing a definition of "emergency" on management.
IV. Provision 3
Article XXVI, Disciplinary and Adverse Actions, Section 6(b)
(b) An employee against whom an adverse action is proposed is
entitled to a total of at least thirty (30) calendar days advance
written notice prior to the effective date of the action taken.
An employee shall be given at least fifteen (15) calendar days
advance notice prior to the effective date of a suspension of
fourteen (14) days or less. These time frames shall not preclude
the EMPLOYER from taking immediate action if the crime provisions
are invoked in accordance with 5 U.S.C. 7513(b)(1) and 5 C.F.R.
752.404(d). (Only the underscored sentence is in dispute.)
A. Positions of the Parties
The Agency argues that the disputed language conflicts with
management's right to discipline employees under section 7106(a)(2)(A)
of the Statute because the provision would prevent it from suspending
employees on 24-hour notice. The Agency also argues that the disputed
language conflicts with management's right to assign work under section
7106(a)(2)(B) of the Statute because suspending an employee from work
inherently concerns whether work will be assigned to that employee. The
Union argues that the provision is negotiable because it constitutes a
"procedure" or an "appropriate arrangement" under section 7106(b)(2) and
(3) of the Statute and it does not conflict with managment's right to
discipline employees.
B. Analysis and Conclusion
The disputed language is within the Agency's duty to bargain under
section 7106(b)(2) of the Statute. As worded and explained by the
Union, the disputed language applies to suspensions of employees under 5
U.S.C. Sections 7501-7504 and 5 CFR Section 752.101-.203, which require
agencies to follow certain procedures when they propose to suspend
employees for 14 days or less. For these suspensions, under 5 U.S.C.
Section 7503(b)(2) employees are to be provided with a "reasonable time"
to answer the proposed action. Under 5 CFR Section 752.203(c),
employees must be given at least 24 hours to answer.
The Agency has not argued or shown that an answer period of 15 days,
as provided in the disputed language, is contrary to 5 U.S.C. Section
7503(b)(2) or 5 CFR Section 752.203(c). Accordingly, we find that the
disputed language is consistent with applicable law and regulations.
The disputed language also does not conflict with management's right to
take disciplinary action. Under no circumstances would the provision
preclude the Agency from initiating disciplinary action against an
employee. Rather, it establishes a procedure to be followed after
disciplinary action has been proposed. Compare National Federation of
Federal Employees, Local 615 and National Park Service, Sequoia and
Kings Canyon National Parks, U.S. Department of the Interior, 17 FLRA
318 (1985), aff'd sub nom. NFFE Local 615 v. FLRA, No. 85-1299 (D.C.
Cir. Sept. 12, 1986). The provision balances the Agency's need to
impose discipline against employees' rights to have notice of and an
opportunity to answer the charges against them and does not prevent the
Agency from exercising its rights. The provision, therefore,
constitutes a negotiable procedure under section 7106(b)(2).
As noted by the Union, other language in the agreement provision,
which refers to 5 U.S.C. Section 7513 and 5 CFR Section 752.404,
preserves the Agency's right to separate an employee from the workplace,
without delay, for a serious offense and where the employee's presence
at the workplace might threaten other Agency employees, Agency property,
or other legitimate Agency interests. The Office of Personnel
Management's (OPM's) implementing regulations at 5 CFR Section
752.404(b)(3)(i)(v) detail a list of options for this purpose. In
addition, the fact that the provision requires the Agency to follow the
procedures of 5 U.S.C. Sections 7512-7514 and 5 CFR Section 752.401-.406
when contemplating such immediate actions does not render the provision
nonnegotiable. The Authority has consistently held that provisions
requiring management to exercise its statutory rights under section 7106
in compliance with law are within the duty to bargain. 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, 677-78 (1983).
Finally, the provision does not affect the Agency's right to assign
work. The provision does not affect the Agency's determinations
concerning the assignment of work to an employee during the period prior
to an employee's suspension and does not require that suspensions become
effective at any particular time. The Agency is therefore free to
determine employees' work assignments during the period a suspension is
in prospect, and when it becomes effective.
V. Provision 4
Article XXX, Health and Safety, Section 6
The EMPLOYER will provide relief or assistance to an employee
who is required to lift an item, or operate machinery or
equipment, requiring physical exertion beyond safe limits
specified in current applicable directives.
A. Positions of the Parties
The Agency asserts that the provision conflicts with management's
right to assign work because it would allow an employee to refuse work.
The Union disputes this and argues that the provision is negotiable as
an "appropriate arrangement" under section 7106(b)(3) of the Statute.
B. Analysis and Conclusion
The provision is negotiable. The provision requires management to
provide assistance to employees -- in the form of other personnel or
additional tools or equipment -- when the physical exertion required for
a task exceeds safe limits under applicable directives. As worded and
explained by the Union, the provision does not prevent management from
assigning work to employees or empower employees to refuse work
assignments. Accordingly, the provision does not conflict with
mangement's right to assign work under section 7106(a)(2)(B) of the
Statute.
The assistance required by the provision would take the form of
additional personnel, tools or equipment. Union Response to Agency
Statement of Position at 6. Although not raised by the Agency,
implementation of the provision could affect management's rights to
determine numbers, types, and grades of employees who are assigned to a
work project or the methods and means of performing work under section
7106(b)(1) of the Statute. See, for example, International Organization
of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508,
524 (1983); Laborers' International Union, Local No. 1276 and
Department of Defense, Defense Logistics Agency, 12 FLRA 62 (1983).
These matters are permissive subjects of bargaining under section
7106(b)(1), that is, matters on which the Agency may elect to bargain or
not to bargain. See, for example, American Federation of Government
Employees, AFL-CIO, National Immigration & Naturalization Service
Council and U.S. Department of Justice, Immigration & Naturalization
Service, 8 FLRA 347, 381-82 (1982), enforcement denied as to other
matters sub nom. Department of Justice v. FLRA, 727 F.2d 481, 487-88
(5th Cir. 1984). Negotiations on permissive subjects may begin and
later cease. See Civil Service Reform Act of 1978: Conference Report,
H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 154 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, H.R. Comm.
Print No. 96-7, 96th Cong., 1st Sess. 793, 822 (1979) (where it is
stated: "In sum, the conference report fully preserves the right of
management to refuse to bargain on "methods and means" and to terminate
bargaining at any point even if it initially agrees to negotiations.")
In this case, bargaining on the provision occurred at the local level
and an agreement was executed. Disapproval of the provision occurred
pursuant to section 7114(c) of the Statute. Local agreements are
subject to review by the agency head (or designee) under section
7114(c). National Treasury Employees Union, Chapter 52 and Internal
Revenue Service, Austin District, 23 FLRA No. 93 (1986). As for the
scope of the review, however, "(s)ection 7114(c) strictly limits the
occasions in which the head of the agency may invalidate an
agreement(.)" AFGE v. FLRA, 778 F.2d 850, 859 n.15 (D.C. Cir. 1985).
Section 7114(c) requires approval by the agency head "if the agreement
is in accordance with the (Statute) and any other applicable law, rule,
or regulation(.)"
We conclude that agreement provisions may not be disapproved by an
agency head under section 7114(c) simply because they relate to section
7106(b)(1) matters. These provisions are not inconsistent with the
Statute. They differ, in this respect, from provisions which conflict
with management's rights under section 7106(a) of the Statute. Unlike
section 7106(a), which provides that "nothing in (the Statute) shall
affect the authority of any management official" to exercise those
rights, section 7106(b)(1) provides that "nothing in this section shall
preclude an agency" from electing to bargain on those subjects.
Provisions relating to section 7106(b)(1) matters, therefore, may be
included in an agreement in accordance with the Statute. As a result,
unless they are otherwise inconsistent with applicable law, rule, or
regulation, these provisions are not subject to disapproval under
section 7114(c). /2/
VI. Provision 5
Article XII, Adverse Weather Policy, Section 5
Within those functions where there are two or more employees
performing the same function and less than the full work force is
required a reasonable effort will be made to rotate the personnel
designated as mission essential. The names of the personnel
designated as mission essential will be posted in the work area
and updated to reflect changes.
A. Positions of the Parties
The Agency asserts that the provision conflicts with section
7106(a)(2)(A) because it would prevent management from assigning
employees to tasks based on their individual abilities. The Agency also
asserts that the provision prevents the Agency from determining which
Agency personnel are mission essential and that it is nonnegotiable for
this reason because these determinations are critical for the Agency's
internal security practices. The Union disputes these assertions.
B. Analysis and Conclusion
The provision is negotiable. As explained by the Union, this
provision merely requires that assignments of personnel who are mission
essential be rotated in situations where less than a full workforce is
required, to ensure that these assignments are evenly distributed. The
provision does not affect management's discretion to determine which
Agency personnel are mission essential. The provision also explicitly
preserves management's right to change these determinations as it deems
necessary.
The provision is analogous to the proposals on overtime assignments
held negotiable by the Authority in National Federation of Federal
Employees, Local 1622 and U.S. Commissary, Fort Meade, Maryland, 16 FLRA
998, 999-1000 (1984) and American Federation of Government Employees,
AFL-CIO, National Joint Council of Food Inspection Locals and Department
of Agriculture, Food Safety and Quality Service, Washington, D.C., 9
FLRA 663, 664-65 (1982). The Authority found that those proposals did
not violate management's right to assign work under section
7106(a)(2)(B) because they only established procedures for assigning
work to employees who normally perform such work.
VII. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency rescind its disapproval of
the disputed provisions. /3/
Issued, Washington, D.C., November 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) In response to the Union's petition for review, the Agency
withdrew its disapprovals of two provisions: "Article XIV, Annual
Leave, Section 1" and "Article XXVIII, Training, Section 3."
Accordingly, these provisions need not be considered here.
(2) For a similar conclusion under the analogous agency head review
provisions of Executive Order 11491, as amended, see AFGE Council of
Locals 1497 and 2165 and Region 3, General Services Administration,
Baltimore, Maryland, 3 FLRC 397, 400-01 (1975).
(3) In finding the disputed provisions to be negotiable, the
Authority makes no judgment as to their merits.
24 FLRA NO. 6
Lexington-Blue Grass Army Depot, Lexington, Ky. and AFGE (Thomson,
Arbitrator), Case No. 0-AR-1156 (Decided November 17, 1986)
STATUTE
7106(a)(1)
7117
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration Awards, Remedies Ordered . . . by Arbitrators
Backpay
Leave Awarded
Restore Annual Leave
Arbitration Awards, Review of, Exceptions Asserted in Appeal
Award Contrary to Agency Regulation for Which a Compelling . . . Need
Exists
Army Civilian Personnel Reg. 990-2 (C11), Subch. 610.S3
DOD Divilian Personnel Manual Sup. 990-2, Book 610
Compelling Need (7117(a)(2))
Agency Regulations for Which a Compelling Need is Claimed
Essential to the Accomplishment of the Agency Mission
Army Civilian Personnel Regulation
990-2(C11), Subchapter 610.S3
DOD Civilian Personnel Manual Sup. 990-2, Book 610
Criteria for Determining Compelling Need
Essential to the Accomplishment of the Agency Mission
Broad Balancing of Factors is Appropriate in . . . Evaluating
Compelling Need
Financial Considerations
Facilities, Equipment and Services
Closing of Facilities or Reductions to Their Operators
Energy Conservation Measure
Layoff, Reserved Management Right (7106(a)(2)(a))
Financial Considerations
DIGEST NOTES
A broad balancing of factors is appropriate in evaluating compelling
need assertions. In National Association of Government Employees, Local
R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA No. 38
(1985), the Authority held that a demonstration of monetary savings
alone is sufficient to establish that a regulation is essential, as
distinguished from helpful or desirable, to the accomplishment of the
agency's mission. Such a finding is one criterion for determining
whether or not there is a compelling need of an agency regulation.
Reconsidering and overruling that finding, the Authority held that
effectiveness and efficiency of Government operations cannot be measured
solely in monetary terms. Although financial considerations can be
relevant to a determination of whether an agency regulation satisfies
the compelling need criterion set forth in section 2424.11(a) of the
Authority's regulations, other considerations are also pertinent.
The dispute for which arbitration was sought involves the partial
closure of the activity's facilities in order to conserve energy.
Employees were charged with either annual leave or leave without pay.
The arbitrator concluded that since the activity in this case had not
considered any means of conserving energy other than closure and its
decision was based in part on anticipated excessive absenteeism, the
activity had unfairly and partially treated employees and had violated
applicable rules and regulations. As his award, the arbitrator ordered
that those employees on annual leave were to have their leave restored,
and those employees on leave without pay were to receive 8 hours pay.
In its exception, the agency contended that the award was contrary to
agency regulations for which a compelling need existed. The Authority
held that the agency's exception did not establish a basis for finding
the award deficient. The agency failed to demonstrate how its
regulations would be essential or even helpful in achieving its
objective of conserving energy through partial closure of its facility.
The same amount of energy would be conserved whether employees were on
annual leave or administrative leave. The agency's compelling need
claim was based on a prior finding by the Authority of the compelling
need for specified regulations based solely on financial considerations.
In this case the Authority reconsidered and overruled its prior
decision.
Finally, an agency's decision to shut down or curtail operations is
an aspect of management's right to layoff under section 7106(a)(1).
However, the agency did not claim, nor does it appear, that anything in
the arbitrator's award would prevent the agency from deciding to shut
down facilities.
Case No. 0-AR-1156
LEXINGTON-BLUE GRASS ARMY DEPOT, LEXINGTON, KENTUCKY
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 894
Union
DECISION
I. STATEMENT OF THE CASE
This case is before the Authority on an exception to the award of
Arbitrator W. Scott Thomson filed on behalf of the Activity by the
Department of the Army (Agency) under section 7122(a) of the Federal
Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The dispute in this matter resulted from the partial closure of the
Lexington-Blue Grass Army Depot (Activity) on July 5, 1985, in order to
conserve energy. All employees, except emergency employees and
employees with personal hardships, were charged with either annual leave
or leave without pay. The Union filed a grievance requesting (1)
restoration of annual leave for those employees who were on annual leave
or leave without pay, and (2) holiday pay for those employees who had
worked. The grievance was denied on the basis that Agency regulations
specifically authorized management to close installations and place
employees in leave or leave without pay status as part of the overall
right to manage its operation and its energy conservation program.
The Arbitrator framed the issue to be resolved as whether the partial
closure was in accordance with applicable rules and regulations. The
Arbitrator analyzed the pertinent provisions of the agreement and the
regulations and determined that while closing an activity for managerial
reasons is within the administrative authority of an agency, the
authority is limited by applicable law and regulation. He interpreted
Agency regulations as prohibiting the closing of an activity for the
purpose of creating a holiday and, in the case of a closure to conserve
energy, as requiring management to consider implementation of flex-time
schedules and any other means available to avoid the need for closure.
He concluded that since the Activity in this case had not considered any
means of conserving energy other than closure and its decision was based
in part on anticipated excessive absenteeism, the Activity had unfairly
and partially treated employees and had violated applicable rules and
regulations. Accordingly, as his award, the Arbitrator ordered that
those employees on annual leave were to have their leave restored, and
those employees on leave without pay were to receive 8 hours pay. The
Arbitrator did not order compensation for those employees who worked
because they were not adversely affected by the closure.
III. EXCEPTION
The Agency contends that the award is contrary to Agency regulations
for which there is a compelling need. In support, the Agency cites the
Authority's decision in National Association of Government Employees,
Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA
No. 38 (1985), petition for review filed sub nom. National Association
of Government Employees, Local R14-62 v. FLRA, No. 85-2098 (10th Cir.,
July 23, 1985) (Authority motion for remand filed Nov. 11, 1986).
There, the Authority found a compelling need for the same Agency-wide
regulations at issue in this case: Army Civilian Personnel Regulation
990-2 (C11), subchapter 610.S3, paragraph 3C, and Department of Defense
Civilian Personnel Manual Supplement 990-2, Book 610, subchapter S3,
paragraph 1(a). These regulations require employees to take annual
leave during periods when Agency facilities are partially closed. The
Agency contends that since the same regulations are involved, the
Arbitrator's award, which essentially prohibits the Agency from
requiring employees to take annual leave during the periods of partial
closure, is deficient under section 7122(a) of the Statute.
IV. ANALYSIS AND CONCLUSION
The Agency's exception does not establish a basis for finding the
award deficient. In Aberdeen Proving Ground, Department of the Army, 21
FLRA No. 100 (1986), petition for review filed sub nom. Department of
the Army, Aberdeen Proving Ground v. FLRA, No. 86-2577 (4th Cir. June
26, 1986), in the context of an unfair labor practice complaint, the
Authority held that the Respondent, Department of the Army, had not
established a compelling need for regulations which are to the same
effect as those here, prohibiting administrative leave during periods of
partial closure. The Authority made this determination because
operations were curtailed in order to conserve energy, and operations
would be curtailed and energy conserved to the same extent whether the
affected employees were on annual leave or administrative leave during
the period of partial closure. In this case, the dispute also resulted
from a partial closure in order to conserve energy. The Agency has
failed to demonstrate how its regulations would be essential or even
helpful in achieving its objective in curtailing operations. Therefore,
the Arbitrator's award does not interfere with an Agency-wide regulation
for which there is a compelling need.
As to its decision in Dugway Proving Ground, the Authority found that
an agency's decision to shut down or curtail operations is an aspect of
management's right to layoff under section 7106(a)(1) of the Statute.
Thus, we note that on occasion, financial considerations will lead
management to conclude that it must exercise its authority to layoff
employees. For example, if an agency is without appropriated funds, a
decision to cease operations and furlough employees is clearly within
management's authority to layoff employees. Moreover, if an agency
receives an appropriation which is below that required to maintain a
workforce at its existing level, a decision to furlough employees or to
conduct a reduction-in-force is within management's authority to layoff
employees. Here, the Agency does not claim, nor does it appear, that
anything in the Arbitrator's award would prevent the Agency from
deciding to shut down its facilities.
The Agency relies on a different aspect of the Authority's Dugway
decision. In addition to the Authority's discussion of management's
right to layoff, the Authority also found a compelling need for the
Agency's regulations because the Agency had demonstrated, under section
2424.11(a) of the Authority's Rules and Regulations, that its
regulations were a critical component in its objective of saving money
by curtailing operations so as to insure the Agency's performance of its
mission in an effective and efficient manner. We now reconsider and
overrule the Authority's determination in Dugway Proving Ground that a
demonstration of monetary savings alone is sufficient to establish that
a regulation is essential, as distinguished from helpful and desirable,
to the accomplishment of the mission or the execution of the functions
of an agency in a manner which is consistent with the requirements of an
efficient and effective Government.
We do not believe that effectiveness and efficiency are to be
measured solely in monetary terms. Financial considerations, of course,
can be relevant to a determination whether an agency regulation
satisfies the compelling need criterior set forth in section 2424.11(a)
of the Authority's regulations. See National Treasury Employees Union,
Chapter 207 and FDIC, Washington, D.C., 21 FLRA No. 36 (1986) (finding a
compelling need under section 2424.11(a) for agency regulations
establishing a uniform system for determining employee salaries).
However, in determining whether an agency's regulation is essential, as
distinguished from helpful or desirable to effective and efficient
agency operations, other considerations are also pertinent. Compare,
for example, American Federation of Government Employees, AFL-CIO and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 604, 608 (1980), aff'd on other grounds, 659 F.2d 1140 (D.C. Cir.
1981), cert. denied, 455 U.S. 945 (1982) ("Only where an agency makes a
substantial demonstration that an increase in costs is significant and
unavoidable and is not offset by compensating benefits can an otherwise
negotiable proposal be found to violate the agency's right to determine
its budget under section 7106(a) of the Statute.").
The language and legislative history of the Statute supports our
conclusion that a broad balancing of factors is appropriate in
evaluating compelling need assertions such as the Agency makes here. In
enacting the Statute, Congress found that collective bargaining in the
Federal sector is in the public interest because, among other things, it
facilitates and improves employees' performance and the efficient
accomplishment of the operations of the Government. See section 7101(a)
of the Statute. Moreover, with respect to compelling need, it is clear
from the legislative history of the Statute that Congress intended a
regulation to bar negotiations only on narrow grounds. In this regard,
Congressman Ford, addressing this section of the Statute, stated:
The compromise position in section 7117 was accepted with the
understanding that the . . . compelling need test will be
permitted to be raised in only a limited number of cases. /*/
Our conclusion is also consistent with a recent holding of the U.S.
Court of Appeals for the District of Columbia Circuit, affirming a
decision by the General Counsel in the context of an unfair labor
practice case that an informal settlement agreement effectuated the
purposes of the Statute. The Court stated:
(E)conomic hardship is a fact of life in employment, for the
public sector as well as the private. Such monetary
considerations often necessitate substantial changes. If an
employer was released from its duty to bargain whenever it had
suffered economic hardship, the employer's duty to bargain would
practically be non-existent in a large proportion of cases.
American Federation of Government Employees v. FLRA, 785 F.2d 333 at
338 (D.C. Cir. 1986).
To the extent that our decisions in Dugway Proving Ground, 18 FLRA
No. 38 (1985), and National Association of Government Employees, Local
R14-9 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA No. 45
(1985), are inconsistent with our decision here, they will no longer be
followed. In this case, the Agency has failed to establish any facts
concerning financial and other pertinent factors sufficient to provide a
basis for finding a compelling need for its regulations under section
2424.11(a) of the Authority's Rules. Therefore, the Agency has failed
to establish that the Arbitrator's award is contrary to section 7122(a)
of the Statute as alleged.
V. DECISION
Accordingly, for the above reasons, the Agency's exception is denied.
Issued, Washington, D.C., November 17, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) 124 Cong. Rec. 29199 (1978) (statement of Rep. Ford), reprinted
in Sub-comm. on Postal Personnel and Modernization of the House Comm. on
Post Office and Civil Service, 96th Cong., 1st Sess., Legislative
History of the Federal Service Labor-Management Relations Statute, Title
VII of the Civil Service Reform Act of 1978, at 956 (Comm. print No.
96-7).
24 FLRA NO. 5
Defense Mapping Agency Aerospace Center, St. Louis, Mo. and NFFE,
Local 1827, Case No. 7-CA-20482 (Decided November 13, 1986)
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 Under the Statute
Alternate Means of Accomplishing the Objective
Mere Existence Insufficient for Denial of Names and . . . Addresses
of unit Employees
Necessity or Relevance for Full and Proper Discussion
Alternatives to Requested Information
Mere Existence of Other Means Not Sufficient for Denial . . . of
Names and Addresses
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
Reasonably Available (7114(b)(4)(B))
Unfair Labor Practices, Remedies for Agency Violations
Information to be Provided Union
DIGEST NOTES
The release of the names and home addresses of bargaining unit
employees to the exclusive representative is not prohibited by law, is
necessary for unions to fulfill their duties under the Statute and meets
the other requirements of section 7114(b)(44). The release of the
information is permitted under the "routine use" exception of the
Privacy Act (5 U.S.C. section 552a(b)(3)). Agencies are required to
furnish such information without regard to whether alternative means are
available or adequate for the union to communications with unit
employees. Considering a case on remand from the United States Court of
Appeals for the Eighth Circuit, the Authority held that the agency
violated section 7116(a)(1), (5) and (8) when the agency failed to
provide the requested information. The names and addresses of unit
employees were reasonably available to the agency and it would not have
provided an undue burden on the agency to provide the information
requested.
Case No. 7-CA-20482 (19 FLRA No. 85)
DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the Eighth Circuit. The question
before the Authority is whether it is an unfair labor practice under the
Federal Service Labor-Management Relations Statute (the Statute) for the
Respondent (Agency) to refuse a request, made pursuant to section
7114(b)(4) of the Statute, to provide the Charging Party (Union) with
the names and home addresses of employees in a bargaining unit which the
Union exclusively represents.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information 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 release of
the information is generally required without regard to whether
alternative means of communication are available. Consistent with our
decision on remand in FHAFO, we conclude that Respondent's refusal to
provide the Union with the names and home addresses sought in this case
violated section 7116(a)(1), (5) and (8) of the Statute. We therefore
vacate the Authority's previous decision in this case.
II. Facts
The Union requested the names and homes addresses of the unit
employees it represented. The Respondent denied the request on the
ground that the information was not maintained in a form which was
reasonably available. The Respondent also contended that the home
addresses in the employees' personnel records were not current, and that
to retrieve the specific information from either its personnel records
or its computerized payroll system would be unnecessarily costly and
time consuming.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. The
Judge found that: (1) the home addresses of unit employees, while not
maintained in a discrete list, were available both in employees'
personnel files and in the Respondent's data banks; (2) the cost of
retrieving this data was not unreasonable; (3) it "seems axiomatic"
that a union must be able to communicate effectively with the employees
it represents; and (4) the sources of communication available to the
Union were neither effective nor reasonable. The Judge concluded that
the Respondent must apply the Union with names and home addresses and
that the Privacy Act /*/ is not a bar to such disclosure.
IV. Previous Decision of the Authority
In its previous decision in this case, Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, 19 FLRA No. 85 (1985), the
Authority followed the precedent established in the original FHAFO case,
19 FLRA No. 21 (1985). The Authority concluded that the release of home
addresses was not required pursuant to section 7114(b)(4) of the Statute
because the disclosure of such information was "prohibited by law,"
specifically the Privacy Act. The Union appealed. National Federation
of Federal Employees, Local 1827 v. FLRA, No. 85-2202 (8th Cir.). The
Authority requested that the court remand the case. The Authority also
sought remand from the courts in FHAFO and two other cases which had
been appealed and presented substantially identical issues. The courts
granted the Authority's requests in the FHAFO case, American Federation
of Government Employees, Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.)
(reviewing 19 FLRA No. 21); in Philadelphia Metal Trades Council v.
FLRA, No. 85-1625 (D.C. Cir.) (reviewing 19 FLRA No. 107); and in this
case. The U.S. Court of Appeals for the Second Circuit, however, denied
the Authority's remand request in one case, Social Security
Administration, Northeastern Program Service Center, 19 FLRA No. 108
(1985) and issued a decision. The Second Circuit reversed the
Authority's holding that the release of names and home addresses was
"prohibited by law," i.e., the Privacy Act, under section 7114(b)(4) of
the Statute. American Federation of Government Employees, Local 1760 v.
FLRA, 786 F.2d 554 (2nd Cir. 1986). The Authority then decided to
review the entire issue of the release of employees' names and home
addresses and invited agencies, unions and interested persons to submit
amicus briefs addressing the issue. A number of amicus submissions were
received. Additionally, the Respondent in this case submitted a
supplemental brief subsequent to the Eighth Circuit's remand and the
Union filed a response.
V. Postions of the Parties
In its supplemental submission, the Respondent contends that the
disclosure of employees' home addresses is not permitted under the
"routine use" exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3).
The Respondent argues that the release of such information is not
required by the Office of Personnel Management (OPM) in a notice
published by OPM which defines the routine use of personnel records.
The Respondent maintains that in determining whether release of data is
a routine use, it must be shown that the release does not result in a
clearly unwarranted invasion of personal privacy. The Respondent urges
the Authority to find, consistent with its prior decision, that the
release of home addresses in this case would constitute a clearly
unwarranted invasion of personal privacy.
In its response, the Union contends that when a request is made for
material contained in an employee's personnel records, the test
established by OPM's routine use notice is whether such information is
necessary and relevant to the Union's representational duties. The
Union further urges the Authority to adopt the view of the Second
Circuit in AFGE Local 1760 v. FLRA, 786 F.2d 554, that a union's need
for home addresses outweighs employees' "modest" privacy interest in
that information. Finally the Union contends that the alternative means
of communication available were inadequate, particularly as the Union
wanted to convey a confidential message to the employees it represents
and all of the alternative means of communication would give management
an opportunity to see the Union's messages.
VI. Analysis and Conclusion
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the names and home addresses of bargaining
unit employees to the exclusive representative of these employees is not
prohibited by law, is necessary for unions to fulfill their duties under
the Statute, and meets the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available or adequate. Based on our decision on remand in the FHAFO
case, we find that the Respondent in this case was required to furnish
the Union with the names and home addresses of the employees in the
bargaining unit. Further in that regard, we find that the names and
home addresses of the unit employees are reasonably available to the
Respondent and that it would not place an undue burden on the Respondent
to provide the Union with the information requested. We conclude that
the Respondent's refusal to furnish the requested information in this
case constituted a violation of 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, it is ordered that the Defense Mapping Agency Aerospace Center,
St. Louis, Missouri, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the National Federation of
Federal Employees, Local 1827, 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 action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the National Federation of Federal Employees,
Local 1827, the exclusive representative of its employees, furnish it
with the names and home addresses of employees in the bargaining unit it
represents.
(b) Post at all its facilities where bargaining unit employees
represented by the National Federation of Federal Employees, Local 1827
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 Defense Mapping Agency
Aerospace Center, St. Louis, Missouri, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the National
Federation of Federal Employees, Local 1827, the exclusive
representative 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, upon request by the National Federation of Federal
Employees, Local 1827, the exclusive representative of our employees,
furnish it with the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material. If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly with the
Regional Director, Region VII, Federal Labor Relations Authority, whose
address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and
whose telephone number is: (303) 837-5224.
24 FLRA NO. 4
Philadelphia Naval Shipyard and Philadelphia Metal Trades Council,
Case No. 2-CA-40243 (Decided November 13, 1986)
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 Under the Statute
Alternate Means of Accomplishing the Objective . . . Addresses of
Unit Employees
Necessity or Relevance for Full and Proper Discussion
Alternatives
Mere Existence of Other Means not Sufficient for . . . Denial of
Names and Addresses
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 Employees
DIGEST NOTES
The release of the names and home addresses of bargaining unit
employees to the exclusive representative is not prohibited by the
Privacy Act, is necessary for unions to fulfill their duties under the
Statute and meets the other requirements of section 7114(b)(4).
Agencies are required to furnish such information without regard to
whether alternative means are available or adequate for the union to
communications with unit employees. Considering a case on remand from
the United States Court of Appeals for the District of Columbia Circuit,
the Authority held that the agency violated section 7116(a)(1), (5) and
(8) when the agency failed to provide the requested information.
Case No. 2-CA-40243 (19 FLRA No. 107)
PHILADELPHIA NAVAL SHIPYARD
Respondent
and
PHILADELPHIA METAL TRADES COUNCIL
Charging Party
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question before the Authority is whether it is an unfair labor
practice under the Federal Service Labor-Management Relations Statute
(the Statute) for the Respondent (Agency) to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the names and home addresses of employees in a
bargaining unit which the Union exclusively represents.
In a recent Decision and Order on Remand in another case, Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101
(1986) (FHAFO), we reviewed the Authority's previous decision concerning
the release of the names and home addresses of bargaining unit employees
to exclusive representatives. We concluded that the release of the
information 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. Consistent with our
decision on remand in FHAFO, we conclude that Respondent's refusal to
provide the Union with the names and home addresses sought in this case
violated section 7116(a)(1), (5) and (8) of the Statute. We therefore
vacate the Authority's previous decision in this case.
II. Facts
The Union requested the names and home addresses of the unit
employees it represents. The Respondent denied the request. The
Respondent took the position that release of the information was not
necessary because the Union had adequate alternative means available for
communicating with the unit employees through Union stewards, bulletin
boards, publication of items in the Respondent's newspaper, and
distribution of literature within the Shipyard.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with the
requirements of section 7114(b)(4) of the Statute in violation of
section 7116(a)(1), (5) and (8) of the Statute when it refused to
provide the Union, upon request, with the names and home addresses of
all unit employees represented by the exclusive representative. The
Judge found that an exclusive representative must be able to communicate
effectively with its constituency; that the exclusive representative's
access to the addresses of unit employees was necessary for it to carry
out its representational responsibilities in collective bargaining
because it had no other effective means of communication with the
employees; and that the Privacy Act /*/ was not a bar to disclosure of
the information.
IV. Positions of the Parties
The parties' positions were set forth in the Respondent's exceptions
and the General Counsel's response in the original case. The Respondent
contended that it acted properly in denying the Union's request for the
names and home addresses of employees because the Union's request did
not specify why home addresses were necessary within the meaning of
section 7114(b)(4). The Respondent maintained that a request which
states that home addresses are necessary because such information will
enable the Union to better perform its general representational
responsibilities is not specific enough to warrant the release of home
addresses. The Respondent also contended that the Union had other
appropriate means available for communicating with unit employees, and
it excepted to the Judge's conclusion that the alternative means were
inadequate. Finally, the Respondent argued that the disclosure of home
addresses would constitute an invasion of employee privacy in violation
of the Privacy Act.
The Counsel for the General Counsel argued that the factual and legal
conclusions of the Judge were correct and urged the Authority to affirm
the Judge's decision.
V. Previous Decision of the Authority
In its previous decision in this case, Philadelphia Naval Shipyard,
19 FLRA No. 107 (1985), the Authority followed the precedent established
in the original FHAFO case, 19 FLRA No. 21 (1985). The Authority
concluded that the release of home addresses was not required pursuant
to section 7114(b)(4) of the Statute because the disclosure of such
information was "prohibited by law," specifically the Privacy Act. The
Union appealed. Philadelphia Metal Trades Council v. FLRA, No. 85-1625
(D.C. Cir.). The Authority requested that the court remand the case.
The Authority also sought remand from the courts in FHAFO and two other
cases which had been appealed and presented substantially identical
issues. The courts granted the Authority's requests in the FHAFO case,
American Federation of Government Employees, Local 3354 v. FLRA, No.
85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21); in National Federation
of Federal Employees, Local 1827 v. FLRA, No. 2202 (8th Cir.) (reviewing
19 FLRA No. 85); and in this case. The U.S. Court of Appeals for the
Second Circuit, however, denied the Authority's remand request in one
case, Social Security Administration Northeastern Program Service
Center, 19 FLRA No. 108 (1985), and issued a decision. The Second
Circuit reversed the Authority's holding that the release of names and
home addresses was "prohibited by law," i.e., the Privacy Act, under
section 7114(b)(4) of the Statute. American Federation of Government
Employees, Local 1760 v. FLRA, 786 F.2d 554 (2nd Cir. 1986). The
Authority then decided to review the entire issue of the release of
employees' names and home addresses and invited agencies, unions, and
interested persons to submit amicus briefs addressing the issue. A
number of amicus submissions were received. Although the parties in
this case did not submit amicus briefs, the Navy Department and the
American Federation of Government Employees did file amicus briefs
outlining their positions.
VI. Analysis and Conclusions
As noted above, the Authority in the decision on remand in FHAFO
concluded that the release of the 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 the other requirements of section 7114(b)(4). We
also determined that agencies are required to furnish such information
without regard to whether alternative means of communication are
available or adequate. Based on our decision on remand in the FHAFO
case, we find that the Respondent in this case was required to furnish
the Union with the names and home addresses of the employees in the
bargaining unit. We conclude that the Respondent's refusal to furnish
the requested information constituted a violation of 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, it is ordered that the Philadelphia Naval Shipyard,
Philadelphia, Pennsylvania, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the Philadelphia Metal
Trades Council, 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 action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the Philadelphia Metal Trades Council, the
exclusive representative of its employees, furnish it with the names and
home addresses of employees in the bargaining unit it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the Philadelphia Metal Trades Council 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 Philadelphia Naval Shipyard, Philadelphia,
Pennsylvania, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to 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 II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the Philadelphia Metal
Trades Council, the exclusive representative 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, upon request by the Philadelphia Metal Trades Council, the
exclusive representative of our employees, furnish it with the names and
home addresses of all employees in the bargaining unit it represents.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, N.Y. 10278 and whose
telephone number is: (212) 264-4934.
24 FLRA NO. 3
VA, Washington, D.C. and VA Medical and Regional Office Center,
Fargo, N.D. and AFGE, Case No. 7-CA-40438 (Decided November 12, 1986)
STATUTE
7103(3), (4), (10) and (11)
7106(b)(1)
7106(a)(1) and (5)
7117(d)(2) and (3)
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) 7116(a)(5)
HEALTH AND SAFETY
CLOTHING
PROTECTIVE CLOTHING
TOXIC SUBSTANCES
COLLECTIVE BARGAINING PROCESS AND THE DUTY TO BARGAIN
MID-TERM BARGAINING
BARGAINING OBLIGATION ABSENT REOPENER PROVISION
AGENCY NOT OBLIGATED TO BARGAIN OVER UNION-INITIATED . . . PROPOSALS
MANAGEMENT INITIATED CHANGES IN CONDITIONS OF EMPLOYMENT
PROPOSALS NOT ALLEGED TO BE NONNEGOTIABLE
HEALTH AND SAFETY
POLICY
GUIDELINES, CHANGES IN
TOXIC SUBSTANCES
CHEMOTHERAPEUTIC AGENTS
UNFAIR LABOR PRACTICES, PROCEDURE
CONTENTIONS OR EVIDENCE NOT PRESENTED TO THE FLRA R.D.
AUTHORITY REGULATIONS (2429.5) PRECLUDE CONSIDERATION OF
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
BARGAINING ORDER
DECISION TO MAKE THE CHANGE
RETROACTIVE APPLICATION OF ANY AGREEMENT REACHED
A REMEDIAL ORDER MIGHT INTERFERE WITH THE FLEXIBILITY . . . OF
SUBSEQUENT NEGOTIATIONS
DIGEST NOTES
While an agency may not have a duty to bargain on union-initiated
mid-term proposals absent a reopener provision in the parties'
agreement, once the agency changes working conditions of unit employees,
a duty to bargain is created. The agency issued and implemented new
policy guidelines for the safe handling of chemotherapeutic agents which
are used to treat some cancer patients. Although chemotherapy may cure
a patient's cancer, research has shown that there are health hazards to
those persons who administer the drugs used in chemotherapy. Thus a
change in the policy governing the handling of the drugs affects the
conditions of employment of affected health care personnel and gives
rise to a duty to bargain.
The Judge found that one meeting between the parties concerning the
new policy did not constitute bargaining. Furthermore the meeting was
more in the nature of a meeting where the union explained its proposals
and management made brief comments and objections as to some of the
proposals. There was no give-and-take negotiations typical of
bargaining sessions. No written agreements were entered. The meeting
concluded in less than an hour with both parties expecting management to
set another meeting after the union submitted its proposals in writing.
But there was not a subsequent meeting and management made only minor
changes to its proposed policy.
The Authority held that the agency violated section 7116(a)(1) and
(5) by failing and refusing to bargain in good faith with the union and
by unilaterally implementing guidelines on the safe handling of chemo
agents. In so finding, the Authority did not consider the agency's
contentions that certain proposals were not negotiable because they were
raised for the first time in the agency's exceptions to the Judge's
decision. Section 2429.5 of the Authority's rules and regulations
precludes the consideration of evidence by a party, or any issue, which
was not presented in the proceeding before the Regional Director,
Hearing Officer, Administrative Law Judge, or Arbitrator.
A remedy is not appropriate that would require the retroactive
application to any agreement reached by the parties in bargaining
pursuant to a bargaining order. In the circumstances of this case, the
Authority held that a prospective bargaining order will best effectuate
the purposes and policies of the Statute. It is neither inadequate nor
inherently restrictive of the parties' rights to address the effects on
unit employees of changes already made. Rather, it allows the parties
the flexibility to bargain freely with regard to how past actions may
have affected employees and the opportunity to agree to retroactive
application of the agreement.
Case No. 7-CA-40438
VETERANS ADMINISTRATION
WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Veterans Administration, Washington, D.C. and Veterans Administration
Medical and Regional Office Center, Fargo, North Dakota (the
Respondents). This case involves the Respondents' alleged failure and
refusal to bargain in good faith with the American Federation of
Government Employees, AFL-CIO (Union) and Respondents' unilateral
implementation of policy guidelines for the safe handling of
chemotherapeutic agents by bargaining unit employees in violation of
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute). For the reasons stated below, we find
that the Respondents violated section 7116(a)(1) and (5) of the Statute
by failing to fully bargain with the Union.
II. Facts
On February 2, 1984, the Respondents forwarded to the Union a
proposed policy guideline for the safe handling of chemotherapeutic
(chemo) agents that the Union had been seeking for over one year.
Immediately thereafter, on February 3, the Union requested bargaining on
these guidelines. The parties met in a 45-minute bargaining session on
February 21, 1984, at which time the Union presented and explained 18
proposals. The Respondent Medical Center made brief comments and
objections as to some of the proposals and declared only one
nonnegotiable. The Respondents' representative requested the Union to
submit its proposals in writing and stated that another bargaining
session would be arranged. No further bargaining took place, however,
and on March 2, the Respondent Medical Center forwarded the revised
policy to the Union stating that the majority of the Union's proposals
did not address the policy and that it had incorporated some of the
Union's wording. On March 5, 1984, the Respondent Medical Center sent
the Union a memorandum saying, in effect, that it would not discuss the
proposals further. Finally, on April 2, 1984, the Respondents
implemented the new policy that incorporated some of the Union's
suggested wording made at the February 21 meeting.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondents failed and refused to
bargain in good faith with the Union and unilaterally implemented policy
guidelines on the safe handling of chemo agents in violation of section
7116(a)(1) and (5) of the Statute. She found that the Union had
negotiable proposals on the bargaining table at the time the alleged
failure to bargain and the unilateral implementation occurred. She also
found that while the Union did have "great impact in formulating" the
policy guidelines and that some bargaining took place, such bargaining
fell short of the statutory obligation imposed upon management. The
Judge's cease-and-desist Order included retroactive application of any
agreement reached pursuant to a bargaining request made by the Union.
IV. Exceptions to the Judge's Decision
The Respondents excepted to the Judge's finding that they did not
meet their bargaining obligation. They took the position that they were
not required to bargain as to the substance of proposals concerning the
guideline because they involved the exercise of management rights and
did not fail or refuse to bargain concerning the impact and
implementation of the guidelines. The Respondents also took the
position that they had no obligation to negotiate with the Union
regarding union-initiated midterm proposals concerning the handling of
chemo agents. Finally, they argue that it was inappropriate for the
Judge to order retroactive relief.
V. Analysis
We find in agreement with the Judge and based on her rationale that
the Respondents violated section 7116(a)(1) and (5) of the Statute by
failing and refusing to bargain in good faith with the Union and by
unilaterally implementing guidelines on the safe handling of chemo
agents. In so finding, we have not considered the Respondents'
negotiability contentions as to the Union's proposals because they were
raised for the first time in the Respondents' exceptions to the Judge's
Decision. In accordance with section 2429.5 of the Authority's Rules
and Regulations, "the Authority will not consider evidence by a party,
or any issue, which was not presented in the proceeding before the
Regional Director, Hearing Officer, Administrative Law Judge or
arbitrator." Accordingly, as this issue was not previously raised before
the Judge in this proceeding it will not be considered. Immigration and
Naturalization Service, Washington, D.C., 4 FLRA 787 (1980).
Further, we find no merit to the Respondents' argument presented in
the exceptions that they had no obligation to bargain over
union-initiated midterm proposals. While the Respondents have no duty
to bargain on union-initiated midterm proposals, once the Respondents
forwarded to the Union a proposed policy guideline for the safe handling
of chemo agents and changed working conditions of unit employees by
subsequently issuing them, a duty to bargain was created. See Internal
Revenue Service, 17 FLRA 731 (1985), petition for review filed sub nom.
National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June
14, 1985).
VI. Remedy
We disagree with that part of the Judge's Order giving retroactive
application to any agreement reached by the parties pursuant to a
bargaining request by the Union. In the circumstances of this case, a
prospective bargaining order will best effectuate the purposes and
policies of the Statute. It is neither inadequate nor inherently
restrictive of the parties' rights to address the effects on unit
employees of changes already made. Rather, it allows the parties the
flexibility to bargain freely with regard to how past actions may have
affected employees and the opportunity to agree to retroactive
application of the agreement. Environmental Protection Agency, 21 FLRA
No. 98 (1986).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings, conclusions, and recommended
Order for the reasons discussed above.
Therefore, the Authority concludes that the Respondents violated
section 7116(a)(1) and (5) of the Statute by failing to fully bargain
with the Union and by implementing guidelines on the safe handling of
chemotherapeutic agents.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Veterans Administration, Washington, D.C. and Veterans
Administration Medical and Regional Office Center, Fargo, North Dakota,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
(b) Implementing a change in conditions of employment of bargaining
unit employees represented by the American Federation of Government
Employees, AFL-CIO, without first bargaining, upon request, with the
American Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning guidelines for the safe handling of chemotherapeutic agents.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees, AFL-CIO,
or its authorized representative, American Federation of Government
Employees, Local 3884, of any proposed change in conditions of
employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change to the extent it is not inconsistent with any Federal law or any
Government-wide rule or regulation.
(b) Post at its facility at Fargo, North Dakota, copies of the
attached Notice To All Employees 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 and
Regional Office Center, Fargo, North Dakota, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
inclduing 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 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 with the Order.
Issued, Washington, D.C. November 12, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to bargain upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
WE WILL NOT implement a change in conditions of employment of
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, without first bargaining, upon request,
with the American Federation of Government Employees, AFL-CIO, or its
authorized representative, the American Federation of Government
Employees, Local 3884, concerning guidelines for the safe handling of
chemotherapeutic agents.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, the American Federation of
Government Employees, Local 3884, of any proposed change in conditions
of employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change to the extent it is not inconsistent with any Federal law or any
Government-wide rule or regulations.
WE WILL not in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
(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 VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224 or FTS 8-564-5224.
Case No. 7-CA-40438
VETERANS ADMINISTRATION, WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER, FARGO,
NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party/Union
Branson H. Moore,
For the Respondents
Cathy A. Auble and
Joseph Swerdzewski,
For the General Counsel,
Federal Labor Relations Authority
Larney Werth,
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices under the Statute,
filed on May 3, 1984, and amended on July 23, the Regional Director for
Region VII of the Federal Labor Relations Authority (hereinafter, the
Authority) investigated and, on July 31, issued the complaint initiating
this proceeding.
The complaint alleges that the Veterans Administration, Washington,
D.C. (hereinafter, VA DC) and the Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota (hereinafter VA Fargo) have
engaged in, and are engaging in, unfair labor practices within the
meaning of Section 7116(a)(1) and (5) of the Statute. /1/ The complaint
specifically alleges that on or about March 5, 1984, Respondents through
its agent David C. Engstrom at Respondents' Fargo, North Dakota
facility, failed or refused, and have continued to refuse to bargain,
upon request, with the Union concerning the Respondents' proposed
guidelines for the safe handling of chemotherapeutic agents. The
complaint further specifically alleges that on or about April 2, 1984,
Respondents, through their agent F.E. Gathman, at Respondents' Fargo,
North Dakota facility, unilaterally implemented policy guidelines
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees without bargaining with the Union over such changes in
conditions of employment.
On or about August 13, 1984, Respondents filed an answer to the
complaint, substantially denying its allegations of unfair labor
practices.
On September 20, 1984, a hearing was held in Fargo, North Dakota.
The parties appeared, introduced documentary evidence and examined
witnesses. Briefs were filed on November 9 by the Respondents and the
General Counsel pursuant to an order of October 18 extending the
briefing time to said date, for good cause shown and upon the unopposed
request of Respondents. Based upon the record made in this case, my
observation of the demeanor of the witnesses, and the briefs, I enter
the following findings of fact and conclusions of law, and recommend the
entry of the following order.
Findings of Fact /2/
1. At all times material herein, the Union has been, and is a labor
organization within the meaning of section 7103(a)(4) of the Statute,
and Local 3884 has been, and is its affiliate and agent.
2a. On February 28, 1980, the Union was certified as the exclusive
representative of a national consolidated union consisting of certain
professional employees of Respondent Washington, D.C.
b. On July 23, 1981, registered nurses, among others, employed at VA
Fargo were included in the unit.
3a. At all times material herein, VA DC and the Union have been
parties to a national Interim Memorandum of Agreement covering the
employees in the unit described in finding 2, above.
b. At all times material herein, VA Fargo, and the Union, have been
subject to the terms and conditions of a collective bargaining agreement
covering the employees in the unit described in finding 2b, above,
(effective July 3, 1974 and amended on December 30, 1976) between VA
Fargo and the North Dakota Nurses' Association, the Union's predecessor,
as the exclusive representative of the Unit described in finding 2b,
above. This agreement provides for grievance and arbitration
procedures.
4a. At all times material herein, Respondents are, and have been
agencies within the meaning of Section 7103(a)(3) of the Statute.
b. At all times material herein F. E. Gathman has occupied the
position of Center Director, at Respondents' facility located in Fargo,
North Dakota, and has been, and is now, a management official or
supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
Statute, and an agent of Respondents.
c. At all times material herein, Dr. David C. Engstrom has occupied
the position of Chief of Staff, at Respondents' facility located in
Fargo, North Dakota, and has been, and is now, a management official or
supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
Statute, and an agent of Respondents.
5. Chemotherapy is the treatment of cancer by means of a family or
drugs known as chemotherapeutic or antineoplastic agents and referred to
as "chemo." Although physicians occasionally give chemo, registered
nurses (RNs) have been responsible for administering chemo on a
continuous basis since 1976. Of the 80 RNs at VA Fargo's facility who
might have an opportunity to give chemo, 20 to 25 administer chemo on a
regular basis. While 16 different kinds of chemo are used at VA Fargo's
facility, 7 types are most frequently administered, such as Cytoxan.
Chemo can be administered either orally, or with a syringe and needle
into a patient's vein or muscle, or under a patient's skin.
6. While chemo may cure a patient's cancer, chemo can later cause
other problems for the same patient. Recent research has shown that
health hazards also exist for the person who administers chemo. Such
health hazards include defects in unborn babies (such as malformed
skulls and hearts), miscarriages, premature births, as well as
complaints of itching, facial flushing, hair loss, headaches, nausea,
and vomiting. A test was developed (Ames Test) to measure mutagenic
changes (permanent, inheritable chromosomal changes) detected in the
urine of persons who have handled chemo. Two separate studies were
conducted using the Ames Test. One study involves RNs who administered
chemo without any safety precautions; the other study concerned
pharmacists who prepared chemo for administration but who wore
protective gloves, gowns and goggles. None of the pharamacists had any
mutagenic changes in their urine; but all of the nurses studied showed
such mutagenic changes. The January 1984 issues of The Lancet Medical
Journal reported that a so-called Hirst Study demonstrated that Cytoxan
is absorbed through the skin, causing mutagenic changes in the
administrator's urine, with the long-term effects from repeated exposure
be the handler to Cytoxan being the development of bladder cancer.
7. In 1982, Larney Werth, President of Local 3884, first learned of
health hazards to RNs who administer chemo and asked VA Fargo's Chief of
Staff, Dr. Engstrom, to address the health and safety aspects of RN
administration of chemo, which Dr. Engstrom agreed to do. Subsequently,
Dr. Engstrom went to the Environmental Control Committee (ECC) at VA
Fargo's facility and asked its chairman to look for other policies in
other hospitals which could be used as a starting point to develop a
policy for VA Fargo. Dr. Engstrom also talked about the problem with
Anne Doyle, who is an RN who administers chemo and has been the
out-patient oncology (cancer) nurse since May 1982. Dr. Engstrom
furnished literature on the subject to Ms. Doyle. Ms. Doyle is
Treasurer of Local 3884.
8. On September 13, 1983, Ms. Doyle sent a letter to the ECC
expressing her concerns, as an Oncology Nurse, regarding the need for a
policy concerning the safe handling and administration of chemo. See R.
Exh. 1(a). /3/ Receiving no response, she sent a letter to Dr. Engstrom
on November 22, raising the same concerns and signing both as "Oncology
Nurse" and "Union Treasurer." Dr. Engstrom responded and informed her
that her concerns would be forwarded to the ECC for consideration.
9. In a letter dated December 7, 1983, to Dr. Engstrom, signed by
Mr. Doyle as both "Oncology Nurse" and "Union Treasurer," she requested
bargaining over her concerns expressed in her earlier letters. She
claimed they should be viewed "as Union mid-term bargaining proposals."
See R. Exh. 1(a) and also G.C. Exh. 17(a), para. 3 and Tr. 12, 139 and
140.
10. Ms. Doyle became a member of the Ad Hoc Committee of ECC and, on
December 8, 1983, attended a committee meeting, along with a Union
steward. At the outset, she and the steward indicated that they were
attending as Union officials, in the event the committee intended to
finalize any guidelines over the safe handling of chemo. Both Union
officials were allowed to present and discuss fully their concerns on
the matter at the meeting.
11. On December 13, 1983, the Union requested bargaining over its
proposals on the safe handling of chemo by RNs. See G.C. Exh. 17(a).
On December 15, the request was denied by Dr. Engstrom, claiming that
union-initiated proposals for midterm bargaining were not negotiable.
Referring apparently to the Ad Hoc Committee of ECC and its meeting on
December 8, Dr. Engstrom stated that Ms. Doyle was not invited as a
representative of the Union, but as an interested party in terms of
being an RN who was "the author of the proposal" considered by the
committee (G.C. Exh. 17(a)). Dr. Engstrom denied that the referral by
him to the committee was to bury the subject; that the committee had no
authority to sign off on a policy; and that "(s)hould a policy evolve
out of the present proposal, it will be sent to the Union for comment"
(G.C. Exh. 17(b).
12. Eventually the ECC adopted most of Ms. Doyle's proposals and
sent them to Dr. Engstrom, who, in turn sent the proposed policy to the
Clinical Executive Board (CEB) and asked for its support. The CEB did
not support it. From the CEB, the proposed policy went to Director
Gathman, who "put (it) out" (Tr. 124). It was "an almost exact replica
of the Union's proposals" (R. Exh. 2(a).
13. On or about February 2, 1984, VA Fargo, through Dr. Engstrom,
forwarded the proposed policy guidelines for the safe handling of chemo
to Local 3884. On or about February 3, Local 3884 requested bargaining
on the proposed guidelines. Several dates for bargaining suggested by
Local 3884, February 6 and 13, were apparently not satisfactory to
management. See R. Exh. 2.
14. On February 21, 1984, the parties met in a bargaining session
that lasted from about 3:30 p.m. to about 4:15 p.m. Representing
Respondent were Dr. Engstrom, Ray Johnson, the Chief of Personnel
Services, and Irene Bloom, Chief of Nursing Services. Representing
Local 3884 were Mr. Werth, Ms. Doyle, and Sue Flom, a steward in the
unit which has the most chemo on it. At this meeting, Local 3884 made
18 proposals and explained them. Of the 18 proposals, the General
Counsel asserts that "9 of the proposals are negotiable" (Tr. 10). The
9 are set forth in findings 15 through 23, inclusive. See Tr. 10 and
G.C. 9.
15. Local 3884's proposal 1(A) provides that:
The employee shall, consistent with the provisions contained in
Section 19 of the Occupational Safety and Health Act 1970,
Executive Order 12196, 29 CFR 1960, and all applicable laws, rules
and regulations be responsible for furnishing to and maintaining
for his employees places and conditions of employment that are
free of hazards that are causing or are likely to cause an
accident, injury or illness to the employee.
See. G.C. 9(a). The intent of Local 3884, in making this proposal
was just to make management's proposed policy "a little bit stronger"
(Tr. 32). Respondents do not allege that the proposal was
non-negotiable, only that it was "unnecessary" and "serve(d) no purpose"
(R. Br. 8). This proposal was discussed at the February 21 meeting of
the parties. Dr. Engstrom objected that "you really can't make any
working environment hazard-free" and he "object(ed) to the strength of
(the) language" (Tr. 33). Local 3884's team replied that "you've got to
strive towards making it as safe as possible" and "take every
precaution" (Tr. 34 and see also Tr. 76-77) Dr. Engstrom agreed that
safety was "an ideal we should pursue certainly. He pointed out that
the facility was already subject to the standards by Federal law. He
stated that "we d(o) not feel we needed to write it into our policy in
the institution" (Tr. 127).
16. Local 3884's proposal 1(B) provides that:
The union has the right to advise management concerning safety and
health problems.
See G.C. 9(a). The intent of Local 3884 in proposing this was to
"give (it) the right to meet with management if (it) felt there was a
problem" and to "implement a procedure" for so doing (Tr. 34).
Respondents do not allege that this proposal is non-negotiable, only
that Union has the right and obligation to bring such matters to the
attention of management and has a representative on the Health and
Safety Committee who may bring such matters to the attention of
management. See R. Br. 8. Ms. Doyle was denied the right about a year
and a half ago, asa union representative. See Tr. 78-79. Counsel for
Respondents conceded that he knew of no written agreement giving the
Union the right to advise management concerning safety problems. See
Tr. 80. Local 3884 explained this proposal. There is no evidence that
management made any comments about this proposal at the February 21
meeting. See Tr. 35, 110 and 127.
17. Local 3884's proposal 1(C) provides that:
When a workplace inspection is conducted by the employer's safety
representative or by an outside agency such as OSHA or NIOSH, the
union shall be invited and encouraged to participate. During the
course of any such inspection, any employee(s) may bring to the
attention of the inspectors any unsafe or unhealthful working
conditions.
See G.C. Exh. 9(a). The intent of Local 3884 was to have the ability
to meet with these inspectors when they are onsite and to bring concerns
to their attention. See Tr. 35-38. Respondents do not allege that this
proposal is non-negotiable. See R. Br. 7-9. Dr. Engstrom stated, at
the February 21 meeting that VA Fargo was already subject to OSHA /4/
and NIOSH /5/ standards so he "did not feel that (VA Fargo) needed to
write it into (its) policy in the institution" (Tr. 127). /6/
18. Local 3884's proposal 1(D) provides that:
When an investigation is made of an occupational accident by
anyone, the union shall be invited and encouraged to participate.
See G.C. Exh. 9(a). The intent of Local 3884 in making this proposal
was for it to be "a kind of trigger mechanism" making management notify
it of any accidents to one of the bargaining-unit employees while using
chemo, and encouraging it to participate in the investigation (Tr.
38-39). Respondents do not allege that this is non-negotiable, only
that a "procedure is already established to investigate accidents and
works quite well," and to "invite additional participation could quite
possibly result in delay and confusion" (R. Br. 8). There is no
evidence that management made any comments concerning this proposal at
the February 21 meeting.
19. Local 3884's proposal 3, first sentence, provides that:
The employer shall acquire, maintain and require the use of
approved safety equipment, approved personal protective equipment,
and other devices necessary to provide protection of employees
from hazardous conditions encountered during the performance of
official duties.
See G.C. 9(b). The intent of Local 3884 in proposing this was to
insure that management maintain the safety equipment management had
agreed to acquire, to have it ready for use on the units that give
chemo, and to require needles and syringes to be discarded intact and
placed in a leak and puncture proof biohazard container. See Tr. 42.
Respondents do not allege that this proposal is non-negotiable, only
that "protective clothing is already being provided" and that it is
"clear that if management provides, it will maintain" (R. Br. 8). Local
3884 explained, at the February 21 meeting, that a "lot of the hazard
occurs" in the disposal of items used to administer chemo (Tr. 42).
Protective equipment is currently available in the wards; but Local
3884 has no signed agreement that management will maintain it, or keep
it there. See Tr. 90. At the time of the February 21 meeting, Local
3884 proposed a date by which protective equipment would be provided;
and Dr. Engstrom commented that he would have "trouble with the specific
date because (he) didn't know if the policy was going to be into its
approved form by a specific date because there was potential not only
for (him) to have to bargain this policy with (Local 3884's) bargaining
unit but another bargaining unit" (Tr. 128). Local 3884's team
indicated they "understood that aspect of it" (Tr. 128).
20. Local 3884's proposal 4(B) provides that:
Management agrees to provide the where withal (sic.) to implement
these proposals regarding antineoplastics no later than 3/15/84.
See G.C. Exh. 9(c). The intent here was to obtain an implementation
date on a matter Local 3884 had been pursuing with management since
November 1982. See Tr. 45. Respondents do not now question the
negotiability of this proposal, although an indication of such a
question was raised at the hearing. Compare R. Br. 7-9 with Tr. 13-14.
Proposal 4(B) was mentioned at the February 21 meeting. Local 3884 said
it wanted "implementation just as soon as possible" (Tr. 46).
Management raised no budgetary or financial matters regarding this
proposal. Dr. Engstrom again explained his problem with meeting the
specific implementation date because of bargaining obligations to
another union.
21. Local 3884's proposal 4(I) provides that:
The employer shall grant official time to a designated Union
official for purposes of further research on the subject of safe
administration of antineoplastics for purpose of educating
bargaining unit employees to their safe uses. Training programs
will be coordinated between the A.C.N.S.E. and the Union designee.
Official time shall be limited to 8 hours per week for
effectuating these programs. Tuition, official time and per diem
shall be provided for said Union designee to attend "outside"
workshops or courses to further knowledge and expertise on the
subject of safe handling of antineoplastics.
See G.C. Exh. 9(d) and Tr. 82. The intent of Local 3884 in making
this proposal was to elaborate and implement management's proposal that
personnel would receive special training in the handling of chemo and
also refresher courses, with documentation being given that training had
taken place. See Tr. 46-48. Also, Local 3884 wanted official time to
do research and advise unit employees. Dr. Engstrom made the following
comment on union proposal 4(I) at the February 21 meeting:
I specifically -- this is an issue involving official time for
further research in education on the subject. This was an area
where I pointed out that we do have an education committee and I
pointed out any of the employees of the facility can request
educational time and also financial support in terms of tuition
and per diem and based on availability of resources the education
committee does provide those types of things and I felt this would
be delving into setting up or splitting the responsibilities of
the education committee as such. I also stated that in handling,
since the subject of the policy was to be handling, that I had
hoped to avoid discussion on on (sic.) official time as such which
is an area we discussed briefly.
See Tr. 129. Although Mr. Werth could not recall any concerns raised
by management as to proposals 4(I), he did not seem sure. See Tr. 48.
Dr. Engstrom, on the other hand, appeared confident of this
recollection.
22. Local 3884's proposal 4(J) provides that:
As new technology develops in the area of antineoplastics
safety, management and the Union shall meet at the call of either
party to discuss such developments and plan together to obviate
any hazards identified. This agreement shall be modified to
incorporate any changes arrived at following such discussions.
See G.C. Exh. 9(e). The intent of Local 3884 was to provide a
mechanism to come back to the bargaining table, if needed, as new
technology developed. See Tr. 48-49. Respondents suggest that this
proposal "may be a possible area which is non-negotiable under 5 U.S.C.
7106(b)(1). /7/ See R. Br. 9. Respondents argue that management has
the option of negotiating technology, methods, and means of performing
work and that "(t)o incorporate this proposal would require negotiations
every time management wished to adopt any advances made in this field,"
which it declined to do (R. Br. 9). As to proposal 4(J) Dr. Engstrom
testified:
I pointed out to them that regarding this issue at any time that
there was a hazard identified any employee has responsibility to
notify their supervisor and if the supervisor can't correct it
then they have the right to go to a higher level. I felt that did
not need to be contained in this policy as such because I would
expect it of any such employee who recognized a hazard.
See Tr. 129-30.
23. Local 3884's proposal 4(K) is as follows:
Introduction or use of any new or different antineoplastic agent
will be reported to the Union before use of said chemical is
begun. (New as different to this Institution).
See G.C. Exh. 9(e). The intent of this proposal was to put a
mechanism in place so that, should a new hazardous substance be
introduced into the RNs workplace, management would first confer with
the Union and tell them if its introduction, so that the Union "would
have time to do a database, search library works, whatever is necessary
to find out what the hazards are before that drug is used" (Tr. 49).
Local 3884 would seek this notice after the facility's Pharmacy and
Therapeutics Committee (P&TC) approved the new drugs for use at the
facility. See Tr. 52-53. Local 3884 did not seek "veto power" over the
introduction of new drugs into the hospital (Tr. 83-84). It did want a
report before those chemicals were begun, in order to prepare for any
hazard. Respondents argue, as to this proposal that:
The hospital has a pharmacy and therapeutic committee which has a
responsibility to pass on new drugs coming into use in the Medical
Center. The union proposal would erode and abrogate a portion of
the function of that committee.
See R. Br. 9. Dr. Engstrom discussed the fact that, in his view, he
was in no position to negotiate away the responsibility of the P&TC in
determining whether or not we would put a drug in the "formulary," which
is a list of drugs available for use on a regular basis. See Tr. 130.
24. At the February 21, 1984, meeting the union representatives
expressly stated that: "We wanted biohazard bags" and all equipment
contaminated with chemo placed in that bag (Tr. 109 and see also Tr.
42). Management's proposal, at the time of the February 21 meeting,
provided for disposal in bio-hazard bags. See G.C. Exh. 5(c), para C2.
25. After the discussions set forth in findings 15-24 inclusive, and
before the February 21, 1984 meeting ended, Dr. Engstrom asked for a
copy of the union proposals. See Tr. 28 and 130. Mr. Werth replied
that it was "a partial proposal, that there would probably be more" (Tr.
130). Ms. Doyle stated that she wished to put the union proposals in a
typewritten format because she felt that it was "not well structured and
not completed at that time" (Tr. 130). The union representatives told
Dr. Engstrom he would have "a typewritten copy of their proposals by the
following Tuesday" (Tr. 131). (February 21, 1984, fell on a Tuesday.)
No proposals were signed or initialed off at this meeting. See Tr. 28
and 111. Dr. Engstrom concluded the meeting by stating that "he would
arrange for the next negotiating session, he would let the Union know
the time and place for the next session" (Tr. 28).
26. On Tuesday, February 28, 1984, Local 3884 forwarded a copy of
its proposals to Dr. Engstrom, with the caveat: "Not necessarily bound
to all these proposals at this time;" and "Partial List of Proposals
Including Most Substantive Matters." (G.C. 9(e)). The copy appears to
be patched-up compilation of typed and handwritten material. Dr.
Engstrom saw the caveat at the February 21 meeting. See Tr. 163. He
had expected to see new proposals, but found none in the copy forwarded
to him on February 28. See Tr. 131-132 and 162-163.
27. Dr. Engstrom compared Local 3884's proposals with the original
proposed policy, and made what he called "relatively minor changes" (Tr.
132). One change was to delete the adjective "bio-hazard" from the
original proposed policy. See Tr. 149 and compare paragraph C2 of G.C.
Exh. 5(c), the management proposal discussed at the February 21 meeting,
with the same paragraph in G.C. Exh. 10(c), the alteration made by Dr.
Engstrom after receiving the copy of Local 3884's proposals in February
28, and with the same paragraph of G.C. Exh. 13(b), the policy finally
implemented. As found in finding 24, above, Local 3884 explicated the
need for "bio-hazard" bags at the February 21 meeting and never proposed
that this word be removed from the policy. See Tr. 54 and 110. Other
changes made were minor in nature, at least one having been proposed by
Local 3884 at the February 21 meeting. See Tr. 150.
28. By a March 2, 1984, cover memorandum, Dr. Engstrom forwarded the
revised policy to Local 3884. Dr. Engstrom stated that a majority of
the Local's proposals did not address the policy and that Respondent VA
Fargo had incorporated some of the Local's "suggested wording" (G.C.
10). That same day, Local 3884 responded by memorandum asking Dr.
Engstrom to either counter-propose, or to declare the Local's proposals
non-negotiable, and stating that Local 3884 awaited Dr. Engstrom's
suggestion for the next bargaining session. See G.C. Exh. 11.
29. On March 5, 1984, Dr. Engstrom sent the following memorandum to
Ms. Doyle:
1. Your comment was solicited and considered regarding the
policy for "Guidelines for Safe Handling of Chemotherapeutic
Agents."
2. Once your written proposal was provided it was reviewed and
the policy was altered in its wording where the policy was
addressed.
3. Sections 1, 2, 3 are considered to be midterm bargaining
and are not appropriate.
4. The views and recommendations from Section 4 have been duly
noted and incorporated, where applicable. It is not within the
scope of the proposed policy to discuss such things as (a)
official time, (b) AFGE continuing education and its funding, (c)
abrogation of the P&T Committee or education committees, (d) or
employees right to refuse duties.
5. In closing, proposed policies and changes are submitted to
Local 3884 for review and comment in accordance with CSRA 7117d 1,
2, and 3.
6. Views and recommendations should be confined to the
proposed policy, circular, etc. At this time the revised
"Guidelines for Safe Handling of Chemotherapeutic Agents" will be
forwarded to NFFE Local 225 for review and comment in accordance
with the above and following that, will be forwarded to the
Director for issuance.
See G.C. 12. Use of the term "not appropriate" by management has, in
the past, been a signal to Local 3884 that management refuses to discuss
the matter any further; and this was the intent of Dr. Engstrom here.
See Tr. 57-59 and 156-157. Mr. Werth understood the use of the terms
"views and recommendations" being "noted" as meaning that management
would listen to Local 3884, but was not obligated to bargain over its
proposals. Use of the citation to "CSRA 7117d 1, 2, and 3" reinforced
this view of Local 3884, since that portion of the Statute deals with
"consultation rights" of labor organizations which are not certified as
the exclusive bargaining representative of a majority of the employees
(as is the Union here) and does limit the labor organization to
presenting only "views and recommendations" which an agency shall merely
"consider" before taking final action. See 5 U.S.C. 7117(d)(1), (2) and
(3). Dr. Engstrom testified that he later discovered he had cited the
wrong statutory provision, but he did not so inform Local 3884, even
though he realized that Local 3884 probably understood this wrong
citation to demonstrate that VA Fargo was willing only to consult. See
Tr. 155-156. Local 3884 did so construe the memorandum and also
understood that no further bargaining would occur. See Tr. 65. It
therefore did not seek further bargaining on the proposed policy. Dr.
Engstrom testified that he did, indeed, intend no further bargaining
with the union team "(u)nless they came up with another issue" (Tr.
161).
30. On April 2, 1984, VA Fargo implemented the policy at its
facility. See G.C. Exh. 3. Other than the addition of "Purpose" and
"Procedures" headings, the implemented policy was no different from the
March 2 revision of the proposed policy.
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /8/ that Respondents have failed and refused to bargain in
good faith with the Union over negotiable proposals and unilaterally
implemented policy guidelines on the safe handling of antineoplastics
agents (chemo) by bargaining-unit employees.
1. Respondents content only the negotiability of one union proposal
at issue here. See R. Br. 7-9. Putting that particular proposal aside,
all the rest concern the health and safety of bargaining-unit employees,
RNs, while performing their duties -- namely the safe handling of chemo
in administering it to cancer patients. See findings 15-21, inclusive
and 23, above. Undisputedly, chemo that is not safely handled presents
serious health hazards to RNs. See finding 6, above. Thus, the
proposals "concern matters directly affecting 'the work situation and
employment relationship' of bargaining unit employees (and are) within
the duty to bargain." See National Federation of Federal Employees,
Local 1363, 12 FLRA 635, 636 (1983). None appear, or are claimed to
infringe upon any management right. Thus, the union had some negotiable
proposals on the bargaining table at the time the alleged failure to
bargain in good faith, and unilateral implementation occurred, as will
be now discussed. /9/
2. Whether there has been a failure of good faith bargaining is
measured by certain criteria set by the Statute and established by case
precedent. First of all, "the totality of the evidence" is considered,
and the actions of the parties viewed in the context in which the
negotiations arose. See Division of Military and Naval Affairs, State
of New York (Albany, New York), 7 FLRA 321, 338 (1981, hereinafter
referred to as DMN). Considered also is whether the parties approached
the negotiations with a sincere resolve to reach a collective bargaining
agreement; were represented by duly authorized representatives prepared
to discuss and negotiate on any condition of employment; met as
frequently as was necessary; and avoided unnecessary delays. See DMN,
id. at 321 and Section 7114(b) of the Statute, defining the bargaining
obligations of the parties in these terms. Exploring and discussing
each others' positions "embodies the very essence of negotiations as
envisioned by the Statute." See Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, North Atlantic Region, (New York, New
York), 8 FLRA 296, 304 (1982, hereinafter DOT). Requirements for
stylized forms of communication are to be eschewed. See DOT, ibid,
referring to no requirement that a union "must make a specific proposal
and that discussions must somehow always lead to a written contract . .
. ." An employer's failure to submit counterproposals is not generally
regarded as a per se violation of the duty to bargain in good faith.
See N.L.R.B. v. Arkansas Rice Growers Cooperative Ass'n, 400 F.2d 565,
571 (8th Cir. 1968), a decision by the Federal agency which resolves
labor disputes in the private sector. The fact that intra-agency
memorandums may speak in terms of "an obligation to consult, rather than
negotiate" is not controlling, if the totality of the agency's conduct
indicates that it did, in fact, bargain. See Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 16
FLRA 217, 228-229 (1984), hereinafter DHHS).
3. The record in this case has been reviewed using the above-stated
criteria. It reveals the following indications that bargaining as to
the concerns at issue fell short of the statutory obligation imposed
upon management.
First of all, management proceeded at a snail's pace in formulating a
solution to the serious concerns raised by the Union. The Union first
broached these concerns with the Chief of Staff at VA Fargo in November
1982 and asked that the matter be addressed. Management referred the
matter to a committee, where it apparently languished. By September
1983, the matter was still dragging on; and the Union Treasurer prodded
the committee. Upon receiving no response, the Union prodded the Chief
Staff, on November 22, and set forth its concerns. The Chief of Staff
referred the concerns to the same committee. Again, on December 7, the
Union raised the matter with the Chief of Staff, requested bargaining
over the concerns, which it delineated as proposals. Finally, a union
representative was invited to a meeting of the committee, held on
December 8. There the union representative pressed for a resolution of
union concerns. On December 13, the Union again sought to bargain over
its proposals. This request was denied, on December 15, on the ground
that union-initiated proposals for mid-term bargaining were not
negotiable and that "(s)hould a policy evolve out of the present
proposals, it (w)ould be sent to the Union for comment." See finding 11,
above. Eventually, a policy did evolve out of the committee, and was
sent to another committee, which did not support it. It was not until
February 2, 1984, that management forwarded the proposed policy
guidelines to the Union -- over a year after the Union broached the
subject to the Chief of Staff at VA Fargo. The proposed policy was
almost an exact replica of what the Union had proposed some three months
earlier, on November 22, 1983. Management then had trouble finding a
satisfactory date to meet with the Union, and did not finally meet with
the Union until February 21, 1984.
The February 21, 1984, meeting was the only face-to-face "bargaining"
session of the parties; and it was more in the nature where the Union
explained its proposals and management made brief comments and
objections as to some of the proposals, but none as to two of the
negotiable ones. See findings 16 and 18, above. No give-and-take
negotiations typical of bargaining sessions occurred. No written
agreements were entered. The meeting concluded in less than an hour
with both parties expecting management to set another meeting after the
Union had submitted its proposals in a typewritten format.
No such meeting was ever set because, when management received the
Union's typewritten proposals, it found no new ones. And as to old
ones, "the basic objections of management were that the bulk of (them)
were addressed in other policies or by committees already in place and
functioning" (R. Br. 8). Here, Respondents display a basic
misunderstanding of the meaning of the collective bargaining process.
True, policies and committees may be in place today; but without an
agreement between the parties that they stay in place, they could be
gone tomorrow. With an agreement, the union is assured that they will
remain in place for the life of the agreement, and that any dispute
concerning the agreed-upon policies and committees will be subject to
the grievance and arbitration procedures of the collective bargaining
agreement that binds the parties. The parties here have such an
agreement. See finding 3b, above.
After the February 21, 1984, meeting, management made some admittedly
"(m)inor changes in its proposed policy guidelines on the safe handling
of chemo" (R. Br. 7); but it also dropped the word "biohazard" as the
type of bag into which contaminated material would be placed -- not at
all a "minor" change, but one on which the Union had explicated the need
at the February 21, 1984, meeting. See findings 24 and 27, above.
These changes were forwarded to the Union on March 2 and drew an
immediate Union response demanding counter-proposals or a declaration of
non-negotiability and stating that the Union awaited the next bargaining
session.
On March 5, 1984, management sent the Union a letter clearly
indicating that management had considered all the Union's comments, had
made such changes as it intended to make, and would implement the policy
as soon as another union had had a chance to review and comment on the
policy guidelines. See finding 29, above. Management's miscitation, in
the letter, of the section of the Statute under which it stated that it
submitted proposed policies to the Union, admittedly led the Union to
believe that management would listen to the Union, but did not feel
obligated to bargain with it. At this point, the Jnion gave up and
sought no further bargaining.
On April 2, 1984, VA Fargo implemented the policy guidelines without
ever discussing some of the Union's proposals, and without bargaining
over the dropping of the requirement for biohazard bags from the
management proposals it had met with the Union about on February 21.
While an agency is "free to impose changes not exceeding its proposals
after bargaining to impasse with the union" (DHHS, 16 FLRA at 229), it
is not free to change the proposals which were the subject of the
bargaining effort. And the fact that the Union did have "great impact
in formulating" the policy guidelines does not mean that some of its
negotiable proposals may be ignored, as Respondents seem to think. See
R. Br. 6.
4. In addition to the usual cease-and-desist, bargaining, and
notice-posting order, the General Counsel seeks an order that
Respondents give retroactive application to any agreements reached. See
G.C. Br. 21. The General Counsel stresses the fact that the Union
proposals made were specific and, thus, their retroactive effect capable
of discernment. For example, the Union has been denied the right to
notice of safety inspections and accident investigations and the right
to participate therein. See findings 17 and 18, above. Notification to
the Union, even months after safety inspections and accident
investigations, would allow it to identify matters it could address on
behalf of unit employees and to monitor compliance procedures. The
Union has also been denied the right to official time, tuition costs,
and per diem for researching and training in chemo-related matters. See
finding 21, above. This could all be restored. The Union has also been
precluded from learning of the institution of new chemo. See finding
23, above. It is not too late for Respondents to advise the Union of
this so that it can research any related health and safety problems to
determine what action, if any, it should pursue in representing the best
interests of unit employees. Under these circumstances, retroactive
relief is deemed to be appropriate, and in the public interest, and the
complete relief sought by the General Counsel should be granted.
Compare, Department of the Treasury, U.S. Customs Service, Region VIII,
San Francisco, California and National Treasury Employees Union, 9 FLRA
606, 608, fn. 3 (1982), which denied retroactive application where the
effects would be "speculative" in terms of identifying employees
entitled to lost overtime. Compare also Environmental Protection
Agency, 16 FLRA 602 (1984) where retroactive application was denied in a
case where the union had submitted only ground rules, and no specific
substantive proposals. See 16 FLRA at 611. Compare also Internal
Revenue Service, 16 FLRA 845, 846, 863 (1984) where retroactive relief
was denied apparently because the unilateral change and failure to
bargain involved only a temporary program. Compare also, Internal
Revenue Service, 16 FLRA 907 (1984), affirming a decision of
Administrative Law Judge Salvatore J. Arrigo, that the parties might
find themselves before the Federal Services Impasses Panel (FSIP) to
which the parties had already been (16 FLRA at 915-917), and therefore
an order requiring retroactive application "would limit the requisite
flexibility and impair the broad range of options the FSIP necessarily
requires to execute its statutory functions" (16 FLRA at 924). These
cited cases are all distinguishable from the one here at issue.
Ultimate Findings and Recommended Order
Respondents have violated, and are violating Sections 7116(a)(1) and
(5), as alleged in the complaint.
Accordingly, and pursuant to 5 CFR 2423.29 and Section 7118 of the
Statute, the Authority hereby orders that the Veterans Administration,
Washington, D.C. and Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain upon request of the
American Federation of Government Employees, AFL-CIO or its
authorized representative, American Federation of Government
Employees, Local 3884, concerning the safe handling of
chemotherapeutic agents by bargaining unit employees.
(b) Implementing a change in conditions of employment of
bargaining unit employees represented by the American Federation
of Government Employees, AFL-CIO, without first bargaining, upon
request, with the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, concerning guidelines for the
safe handling of chemotherapeutic agents.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, of any proposed change in
conditions of employment concerning the safe handling of
chemotherapeutic agents by bargaining unit employees, and, upon
request, bargain concerning such change.
(b) Apply retroactively to April 2, 1984, any agreement reached
pursuant to a bargaining request made by the American Federation
of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local
3884, concerning the safe handling of chemotherapeutic agents by
bargaining unit employees.
(c) Post at its facility at Fargo, North Dakota, copies of the
attached Notice To All Employees on forms to be furnished by the
Regional Director, Region VII, Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Director of
the Veterans Administration Medical and Regional Office Center,
Fargo, North Dakota and shall be posted and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Director shall take all
reasonable steps to insure that such Notices are not altered,
defaced, or covered by other material.
(d) 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
herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 27, 1985
Washington, D.C.
FOOTNOTES
(1) Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
(2) The following abbreviations will be used herein. "Tr." refers to
the transcript. "G.C. Exh." refers to the exhibits of the General
Counsel and "R. Exh." to those of Respondents. "G.C. Br." refers to the
brief of the General Counsel and "R. Br." to that of Respondents.
Corrections to the transcript appear in Appendix A to this decision.
They are made pursuant to 5 C.F.R. 2423.19(r) and the unopposed motion
of the General Counsel
(3) R. Exh. 1 was received into evidence without objection. See Tr.
5. It is a letter to Mr. Werth from the Authority's Region VII
Director, in which she refused to issue a complaint on a charge filed by
him because it was deemed to be "premature." (R. Exh. 1(b)). The facts
in findings 8, 9, and 10 are based on the investigation made by Region
VII and as stated in this letter. No evidence disputing those facts was
presented at the hearing.
(4) "OSHA" refers to the Occupational Safety and Health
Administration, Department of Labor.
(5) "NIOSH" refers to the National Institute of Occupational Safety
and Health Center for Disease Control, Department of Health and Human
Services.
(6) Dr. Engstrom's testimony as to what transpired at the February 21
meeting was given in an honest, straightforward manner. While he needed
to refresh his memory, as to the date (Tr. 124-125), his recollection of
what transpired seemed sure; and I have credited his account of
management's participation at the meeting.
(7) 5 U.S.C. 7106(b) provides that:
Nothing in this section (Management rights) shall preclude any
agency and any labor organization from negotiating --
(1) at the election of the agency on the numbers, types, and
grades of employees on positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work . . . .
(8) This is the statutory burden of proof. See Sections 7118(a)(7)
and (8) of the Statute.
(9) The one proposal questioned by Respondent is number 4(J), which
would require the parties to "plan together" over any new "technology"
developed in the area of chemo safety, in order to "obviate any hazards
identified." See finding 22, above. Respondents argue that this
proposal interferes with their right to bargain over "the technology of
performing work" only at their election. See R. Br. 9 and Section
7106(b) of the Statute, quoted in footnote 7, above. As the proposal is
presently worded, this objection appears to be valid.
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 bargain, upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
WE WILL NOT implement a change in conditions of employment of
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, without bargaining, upon request, with
this representative or its authorized representative, the American
Federation of Government Employees, Local 3884, concerning guidelines
for the handling of chemotherapeutic agents.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, of any proposed change in conditions
of employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change.
WE WILL apply retroactively, to April 2, 1984, any agreement reached
pursuant to a bargaining request made by the American Federation of
Government Employees, AFL-CIO, or its authorized representative,
American Federation of Government Employees, Local 3884, concerning the
safe handling of chemotherapeutic agents by bargaining unit 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 VII,
whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224 or FTS-8-564-5224.
24 FLRA NO. 2
HHS, SSA and AFGE, Case No. 0-AR-1253 (Decided November 10, 1986)
STATUTE
7122(a)(1)
7122(a)(2)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION AWARDS, REVIEW OF, PROCEDURE
TIMELINESS
BENCH RULINGS IN A BIFURCATED ARBITRATION PROCESS
EX PARTE HEARINGS
VOLUNTARY NONPARTICIPATION IN A HEARING
FINALITY OF AWARD
BENCH RULINGS
DIGEST NOTES
An arbitrator's bench rulings in a bifurcated arbitration process are
final and ripe for filing exceptions with the Authority at that time.
While an agency may elect not to participate in the hearing at which the
bench awards are made, it acts at its own peril. The computation of the
time limit for filing exceptions to an arbitrator's bench ruling begins
when it is rendered. The fact, as in this case, that one party to the
process chooses not to participate at the hearing, and consequently does
not receive a copy of the arbitrator's bench ruling at the same time as
another party who was at the hearing, does not alter the time limits in
which to file exceptions with the Authority.
Case No. 0-AR-1253
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Union
ORDER DISMISSING EXCEPTIONS
This case is before the Authority on exceptions to the bench
ruling(s) of Arbitrator Justin Smith filed by the Agency pursuant to
section 7122(a) of the Federal Service Labor Management Relations
Statute and section 2425.1 of the Authority's Rules and Regulations.
For the reason stated below, it has been determined that the exceptions
must be dismissed as untimely filed.
This case involves a dispute submitted to the Arbitrator concerning
official time for representational activities. By agreement of the
parties, a two-phase arbitration process was established to resolve the
basic dispute and the resulting numerous individual grievances. The
first phase involved the interpretation of the official time provisions
of the Statute and the parties' collective bargaining agreement. In the
second phase, the Arbitrator held hearings to resolve, by bench
decisions when practicable, specific grievances pending in various
regions of the Agency. The exceptions in this case have been filed to
bench decisions of the Arbitrator rendered at ex parte hearings held on
August 6 and 7, 1986 at which the Agency declined to participate. The
official transcript of the hearings was apparently served on the parties
by mail on September 24, 1986.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1 of the Authority's Rules and Regulations, as amended, /2/ which
amendments are applicable to exceptions pending or filed with the
Authority on or after March 2, 1984, and under sections 2429.21 and
2429.22 of the Rules and Regulations, which are also applicable to
computation of the time limit here involved, any exceptions to the
Arbitrator's rulings in this case had to be filed, that is, received in
the national office of the Authority not later than the close of
business on September 4 and 5, 1986, respectively. However, the
Agency's exceptions awere not filed with the Authority until October 23,
1986.
The Agency asserts essentially that because the instant arbitration
hearings were conducted ex parte, no representative of the Agency was
present at the hearing to be served with notice of the Arbitrator's
bench decisions in question. The Agency contends, therefore, that since
its exceptions were filed within thirty days after it was served with
the official transcript of the hearing, which is the date that it
received notice of the Arbitrator's bench decisions, the exceptions were
timely filed.
It is well settled, particularly in cases involving other related
bench rulings between these same parties, that the Arbitrator's bench
rulings are final when rendered and ripe for filing exceptions with the
Authority at that time. See American Federation of Government Employees
and Social Security Administration, 21 FLRA No. 14 (1986); U.S.
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 22 FLRA No. 16
(1986); U.S. Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
23 FLRA No. 19 (1986). Further, with respect to the due process
considerations raised by the Agency, the Authority concludes that such
argument must be rejected. The record clearly indicates that while the
Agency did not participate at the instant hearings at which the
Arbitrator's bench awards were made, it voluntarily chose not to do so
and, thus, acted at its own peril. Consequently, in these
circumstances, the fact that the Agency was not served with the
Arbitrator's bench decisions when they were rendered at the hearings did
not toll the related time periods for filing exceptions which began on
August 6 and 7, 1986, and expired on September 4 and 5, 1986,
respectively.
Accordingly, as the Agency's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., November 10, 1986.
Harold D. Kessler
Director of Case Management
FOOTNOTES
(1) Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98
Stat. 47, 48 (1984)) to provide that the 30-day period for filing
exceptions to an Arbitrator's award begins on the date the award is
served on the filing party.
(2) 49 Fed. Reg. 22623 (1984).
24 FLRA NO. 1
NFFE, Local 1655 and Adjutant General of Illinois, Case No. 0-NG-1198
(Decided November 10, 1986)
STATUTE
7105(a)(2)(E)
7114(b)(4)
SUBJECT MATTER INDEX ENTRIES
INFORMATION, EMPLOYEE AND UNION RIGHTS
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 EMPLOYEES
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
5 U.S.C. 552a(b)(3)
5 U.S.C. 552a(b)(6)
DIGEST NOTES
The release of names and home addresses of unit employees to the
union is not prohibited by the Privacy Act (5 U.S.C. 552a), is necessary
for the union to fulfill its duties under the Statute, and meets the
requirements for disclosure under section 7114(b)(4). A proposal is
negotiable that requires the agency to provide the union with the home
addresses of all union members in the bargaining unit.
Case No. 0-NG-1198
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1655
Union
and
ADJUTANT GENERAL OF ILLINOIS
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents an issue
concerning the negotiability of the following Union proposal:
The Union has a right to all Union members(') home addresses.
This will be furnished by the Employer to the Union twice (2) a
year, once in January and once in July.
For the reasons which follow, we conclude that the Union's proposal
is within the duty to bargain.
II. Positions of the Parties
The Agency, in its Statement of Position, contends that release of
Union members' home addresses is prohibited under section (b)(6) of the
Privacy Act, 5 U.S.C. Section 552a (1982), and is, therefore, exempt
from disclosure under section 7114(b)(4) of the Statute. The Agency
argues that the employees' privacy interest in their home addresses
outweighs the necessity of providing that information for the Union's
purposes. Additionally, the Agency filed a response to the Authority's
request for amicus briefs concerning the issue of disclosure of names
and home addresses of unit employees. 51 Fed. Reg. 21,416 (1986). In
its response, the Agency contends that the proposal in this case
concerning disclosure of home addresses of "Union" members is
distinguishable from the request for disclosure of home addresses of
"unit" members, which the Second Circuit found the Privacy Act did not
prohibit. American Federation of Government Employees, Local 1760 v.
FLRA, 786 F.2d 554 (2d Cir. 1986) reversing Social Security
Administration, Northeastern Program Service Center, 19 FLRA No. 108
(1985). The Agency argues that some Union members (for example,
retirees) may not also be unit members and that it, therefore, may not
have the information requested by the Union.
The Union contends that its proposal comes under the "routine use"
exemption of the Privacy Act, 5 U.S.C. Section 552a(b)(3). It argues
that the information requested is necessary to fully represent unit
employees and that the Agency is obligated to disclose the information
under section 7114(b)(4) of the Statute.
III. Analysis and Conclusion
In the Decision and Order on Remand in Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), we held
that the agency was required to furnish the names and home addresses of
unit employees to the exclusive representative. After considering the
record in that case and amicus submissions filed in response to the
Authority's notice in the Federal Register, we concluded that the
release of names and home addresses of unit employees to the union is
not prohibited by the Privacy Act, is necessary for the union to fulfill
its duties under the Statute, and meets the requirements for disclosure
under section 7114(b)(4) of the Statute.
Based on the Union's statements and arguments in its Response to the
Agency's Statement of Position, we construe the proposal as applying
only to Union members who are employees in the bargaining unit
exclusively represented by the Union. Since the proposal would require
the Agency to provide the Union with the home addresses of employees in
the unit, the proposal is not significantly different from the union's
request in Farmers Home Administration Finance Office. Accordingly, for
the reasons set forth more fully in Farmers Home Administration Finance
Office, we conclude that the home addresses requested in the Union's
proposal are subject to disclosure under section 7114(b)(4), and that
the proposal is within the duty to bargain.
IV. Order
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain on the Union's proposal. /*/
Issued, Washington, D.C., November 10, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding the proposal to be within the duty to bargain, the
Authority makes no judgment as to its merits.
23 FLRA NO. 109
HHS, SSA and SSA Field Operations, New York Region and National
Council of Social Security Field Operations Locals-Council 220, AFGE,
Case Nos. 2-CA-40444, 2-Ca-40516 and 2-CA-50037 (Decided October 31,
1986)
STATUTE
7103(a)(3)
7116(a)(1) and (8)
7118
SUBJECT MATTER INDEX ENTRIES
Arbitration
Enforcement of Awards
ULP Proceedings
General Counsel's Burden of Proof
Finality of Awards
Parts of Awards to which Exceptions are Not Filed
Leave
LWOP for Union Activities
Unfair Labor Practices
Agency Violations
Otherwise Refuse to Comply with the Statute
Remedy
Comply with Arbitration Award
DIGEST NOTES
The agency violated section 7116(a)(1) and (8) when it failed to
comply with a final and binding arbitration award. The parties national
agreement provided that an employee may, upon written request, be
granted LWOP to engage in certain union activities and that such
requests normally will be approved. In an arbitration proceeding
concerning LWOP, the arbitrator found that the burden was on management
to establish, in each instance it intended to refuse a request for LWOP,
that the work situation was not normal and that the request therefore
could not be granted. The arbitrator further found that the agency had
created a restrictgive policy of consistent denial of employee requests
for LWOP for union activities, after it had already denied their
requests for official time for such activities, and that there was no
justification for the agency's policy. As his award, the arbitrator
ordered, among other things, that the agency convert to LWOP all the
absent without leave (AWOL) that had been charged to four employees
"provided however, that should the agency prove to the union's
satisfaction that particular charges of AWOL . . . were not properly
subjects for union LWOP, then such particular charges need not be
converted to LWOP."
Although the agency filed exceptions to the arbitrator's award with
the Authority, the agency did not except to that part of the award which
required conversion of AWOL to LWOP. Following the Authority's denial
of the agency's exceptions, the agency refused to convert the employees'
AWOL to LWOP as requested by the union.
The Judge determined that the General Counsel had the burden of
establishing that no unusual workload situation existed when the agency
denied the employees' LWOP requests and that the denial of the request
was therefore unjustified. Contrary to the Judge, the Authority held
that the General Counsel's burden was to show that the agency had failed
and refused to comply with the arbitrator's award which the General
Counsel established.
Case Nos. 2-CA-40444, 2-Ca-40516, 2-CA-50037
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS, NEW
YORK REGION
Respondent
and
NATIONAL COUNCIL OF SOCIAL SECURITY FIELD OPERATIONS LOCALS-COUNCIL
220, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the General Counsel to the attached Decision of
the Administrative Law Judge. The consolidated complaint alleged that
by failing and refusing to convert Absent Without Leave (AWOL) time to
Leave Without Pay (LWOP) for four employees the Respondent failed to
comply with a final and binding arbitration award, in violation of
section 7116(a)(1) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute).
II. Background and Judge's Conclusion
The parties' National Agreement provided that an employee may, upon
written request, be granted LWOP to engage in certain union activities
and that such requests normally will be approved. When the requests for
LWOP of some employees were denied, and they were charged with AWOL or
forced to take annual leave, the Charging Party (the Union) grieved.
The Arbitrator found that the burden was on management to establish in
each instance that the work situation was not normal and that the
request therefore could not be granted. The Arbitrator further found
that the Respondent had created a restrictive policy of consistent
denial of employee requests for LWOP for union activities, after it had
already denied their requests for official time for such activities, and
that there was no justification for the Respondent's policy. The
Arbitrator concluded that the policy was violative of the parties'
collective bargaining agreement. The Arbitrator also concluded that the
Respondent's persistent denials of the requests of the employees in the
dispute before him were not justified by the workload situations in
their offices and that the denials were violative of the parties'
agreement. As his award, the Arbitrator directed the Respondent to act
on future LWOP requests in accordance with the Statute and with the
agreement. The Arbitrator ordered the Respondent to convert to LWOP all
the AWOL that had been charged, "provided however that should the Agency
prove to the Union's satisfaction that particular charges of AWOL . . .
were not properly subjects for Union LWOP, then such particular charges
need not be converted to LWOP."
The Respondent filed exceptions with the Authority to that part of
the Arbitrator's award concerning treatment of future requests for LWOP
by union officials. The Respondent did not except to that portion of
the award which ordered conversion of LWOP. The exceptions were denied
by the Authority as failing to establish that the award was in any way
deficient. The Union then requested the Respondent to comply with the
award by converting the AWOL time of the four employees in this unfair
labor practgice case to LWOP, as originally sought by the employees for
union activities and denied by the Respondent. The Respondent refused
to convert all of the AWOL time to LWOP. As to one of the employees,
the Respondent gave no reason for refusing to convert the AWOL time. As
to two of the employees, the Respondent refused essentially on the
ground that they had been found to be insubordinate. As to the fourth
employee, the Respondent did not respond to the Union's request. The
parties stipulated that the Respondent did not prove to the Union's
satisfaction that the instances in which the employees were charged with
AWOL time were not properly subjects for LWOP time for union activities.
The Judge found that the Arbitrator's award provided no specific
methodology for resolving disputes "in situations wherein the Union had
a legitimate basis for objecting to Respondent's stated reasons for
refusing to convert specific AWOL to LWOP." The Judge also found that
there was no basis for concluding that the award provided for ultimate
determination by the Union as to whether AWOL should be converted to
LWOP in specific situations. The Judge determined that the General
Counsel had the burden of establishing that no unusual workload
situation existed when the Respondent denied the employees' LWOP
requests and that the denial of the request was therefore unjustified.
The Judge concluded that the General Counsel did not meet that burden
and, therefore, dismissed the complaint.
III. Positions of the Parties
In exceptions to the Judge's Decision, the General Counsel takes
issue with the Judge for placing the burden of justification on the
General Counsel. Basically, the General Counsel argues that the
Arbitrator's award clearly granted the Union the right to accept or
reject the Respondent's explanations for refusing to convert any
particular AWOL or annual leave charge to LWOP. The basic arguments of
the Respondent in its brief to the Judge were adopted by the Judge in
his Decision.
IV. Analysis
We disagree with the Judge's dismissal of the complaint. The
Arbitrator ordered conversion of all AWOL to LWOP, unless the Respondent
could "prove to the Union's satisfaction" that the employees' LWOP
requests were not for union activities. The Respondent did not file
exceptions to this part of the award. The award was final and binding
on the Respondent. See Department of the Treasury, United States
Customs Service, New York Region, New York, New York, 21 FLRA No. 119
(1986). We disagree with the Judge's determination that the General
Counsel had a burden of proving that the Respondent's denial of the
original LWOP requests of each of the four employees in this case was
not justified in the specific work situations involved. The Arbitrator
specificallyly found that the Respondent's restrictive policy of
consistently denying employee requests for LWOP for union activities was
unjustified and violative of the parties' agreement. The Arbitrator
ordered conversion of all AWOL charged as a result of the Respondent's
improper denials of LWOP requests, specifically including the AWOL time
charged to three of the four employees in this case for "incorrect
denials of LWOP requests." The General Counsel's burden was to show
thatg the Respondent had failed and refused to comply with the
Arbitrator's award. That is, the General Counsel had to establish two
elements: (1) that the Respondent had refused to convert AWOL time to
LWOP where LWOP had been requested for union activities; and (2) that
the Respondent had failed to prove to the Union's satisfaction that the
employees' original requests for LWOP were not properly subjects for
LWOP for union activities. The record reflects that the General Counsel
established both elements. Accordingly, we find that the Respondent
failed to fully comply with the Arbitrator's award in violation of
section 71169a)(1) and (8) of the Statute.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision, the exceptions to that Decision, the positions of the
parties, and the entire record, and adopts the Judge's findings and
conclusions only to the extent consistent with this decision. We
conclude that the Respondent's failure to comply with a final and
binding Arbitrator's award constitutes a violation of section 7116(a)(1)
and (8) of the Statute and we shall order the Respondent to remedy the
violation.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Department of Health and Human Services, Social Security
Administration and Social Security Administration Field Operations, New
York Region shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement the June 11, 1983
arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
L. Eisenberg by failing and refusing to properly process Union requests
for the conversion of AWOl and forced annual leave to LWOP in accordance
with the award after it became final and binding.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the June 11, 1983 arbitration award issued in FMCS
Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
processing Union requests for the conversion of AWOL and forced annual
leave to LWOP in accordance with the award.
(b) Post at its facilities in the Department of Health and Human
Services, Social Security Administration, Field Operations, New York
Region, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Regional Commissioner, New York Region, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT fail or refuse to fully implement the June 11, 1983
arbitration award issued in FMCS Case No. 82K/09368 by Arbitrator Walter
L. Eisenberg by failing or refusing to properly process Union requests
for the conversion of AWOL and forced annual leave to LWOP in accordance
with the award after it became final and binding.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the June 11, 1983 arbitration award issued in
FMCS Case No. 82K/09368 by Arbitrator Walter L. Eisenberg by properly
processing Union requests for the conversion of AWOL and forced annual
leave to LWOP in accordance with the award.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, New York 10278, and whose
telephone number is: (212) 264-4934.
Case Nos. 2-CA-40444, 2-CA-40516, 2-CA-50037
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS,
NEW YORK REGION
Respondent
and
NATIONAL COUNCIL OF SOCIAL SECURITY FIELD OPERATIONS LOCALS --
COUNCIL 220, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
L. J. Clary, Esquire
For the Respondent
Allan W. Stadtmauer
For the General Counsel
Cecelia McCarthy, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The consolidated complaint, as amended at the hearing, alleged that
the Department of Health and Human Services, Social Security
Administration, and Social Security Administration, Field Operations,
New York Region (Respondent) committed unfair labor practices within the
meaning of Sections 7116(a)(1) and (8) of the Statute by failing and
refusing to comply with a final arbitration award issued on June 11,
1983, by Arbitrator Walter L. Eisenberg in FMCS File No. 82K/09368.
The following was alleged as a basis for failing and refusing to
comply with the mentioned arbitration award:
Case No. 2-CA-40444: On or about July 25, 1984, the Respondent
failed and refused to convert certain Absent Without Leave (AWOL) time
charged to bargaining unit employee Ralph de Juliis, to Leave Without
Pay (LWOP) time.
Case No. 2-CA-40516: On or about August 31, 1984, the Respondent
failed and refused to convert certain AWOL time charged to former
bargaining unit employees Joseph Higgins and Kirk Bigelow, respectively,
to LWOP time.
Case No. 2-CA-50037: On or about September 17, 1984, the Respondent
failed and refused to convert certain AWOL time charged to former
bargaining unit employee Mary Ostrowski, to LWOP time.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including a stipulation of facts, exhibits, arguments made
during the hearing, and briefs filed by the parties, I make the
following findings of fact, conclusions and recommendations.
Findings of Fact
1. At all times material herein, the Charging Party has been, and is
now, a labor organization within the meaning of Section 7103(a)(4) of
the Statute.
2a. At all times material herein, the Department of Health and Human
Services, Social Security Administration, has been, and is now, an
agency within the meaning of Section 7103(a)(3) of the Statute.
b. At all times material herein, Social Security Administration,
Field Operations, New York Region, located in New York, New York, has
been, and is now, a constituent entity within the Department of Health
and Human Services, Social Security Administration, and an agent acting
on its behalf.
c. At all times material herein, the Social Security Administration,
Passaic, New Jersey; New Brunswick, New Jersey; and Midtown New York
District Offices and North Harlem Branch Office have been, and are now,
constituent entities within the Department of Health and Human Services,
Social Security Administration, and agents acting on its behalf.
3a. At all times material herein, the American Federation of
Government Employees, AFL-CIO (AFGE or Union) has been, and is now, the
certified exclusive representative of a consolidated nationwide unit of
certain employees of Respondent, including all employees in the District
and Branch Offices of the Social Security Administration in the States
of New York and New Jersey, excluding all management personnel,
professional employees, federal employees engaged in personnel work in
other than a purely clerical capacity, guards and supervisors.
b. At all times material herein, AFGE has delegated to the Charging
Party authority to act as its representative for the purposes of
collective bargaining for certain of Respondent's employees, including
employees at Respondent's Passaic, New Jersey; New Brunswick, New
Jersey; and Midtown New York District Offices and North Harlem Branch
Office; and the Charging Party's delegation has been recognized by
Respondent.
4. At all times material herein, a National Agreement has existed
between the AFGE, and the Respondent. This agreement became effective
on June 11, 1982 (Jt. Exh. No. 12).
5. On or about June 11, 1983, Arbitrator Walter L. Eisenberg issued
an arbitration award in AFGE Local 3369 and DHHS, Social Security
Administration, FMCS File No. 82K/09368. The award, issued pursuant to
the negotiated grievance and arbitration procedure set out in the
National Agreement, involved the Respondent and AFGE Local 3369, and
related to the Respondent's processing of Union requests for LWOP under
the provisions of the National Agreement (Jt. Exh. No. 13).
6. On or about June 30, 1983, the Respondent filed exceptions to the
award issued by Arbitrator Eisenberg in FMCS File No. 82K/09368 (Jt.
Exh. No. 14). /1/
7. On or about April 20, 1984, the Authority denied the exceptions
filed by the Respondent in connection with Arbitrator Eisenberg's award
in FMCS File No. 82K/09368, and the award became final and binding (Jt.
Exh. No. 15).
8a. On or about June 25, 1984, the Charging Party by letter dated
June 25, 1984, requested that the Respondent comply with Paragraph 5 of
the final and binding award described aboved by converting certain AWOL
charged to unit employee Ralph de Juliis, to LWOP (Jt. Exh. No. 16).
b. The instances of AWOl cited in the June 25, 1984, letter were
originally sought by de Juliis as Union LWOP, but were denied.
c. On or about July 25, 1984, Respondent by its agents, did not
convert de Juliis' AWOL to LWOP (Jt. Exh. No. 20).
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the June 25, 1984
letter to the Respondent were not properly subjects of Union LWOP.
9a. On or about July 11, 1984 and July 20, 1984, the Charging Party,
by letters reflecting these dates, requested the Respondent to comply
with Paragraph 5 of the final and binding award described above by
converting certain AWOL charged to former unit employees Joseph Higgins
and Kirk Bigelow, respectively, to LWOP (Jt. Exh. Nos. 17, and 18 (a)).
b. The instances of AWOL cited in the July 11, 1984 and July 20,
1984 letters described above were originally sought by Higgins and
Bigelow, respectively, as Union LWOP but were denied except for the June
16, 17 and 23, 1982 requests of Bigelow and the June 22, 23, 24, 1982
requests of Higgins (Jt. Exh. Nos. 21 and 22). /2/
c. On or about August 31, 1984, Respondent, by its agents failed to
convert AWOL time for Joseph Higgins and Kirk Bigelow to LWOP (Jt. Exh.
Nos. 21 and 22).
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the July 11, 1984 and
July 20, 1984, letters transmitted to the Respondents on behalf of
Higgins and Bigelow, respectively were not properly subjects of Union
LWOP.
10a. On or about September 17, 1984, the Charging Party by letter
requested Respondent to comply with Paragraph 5 of the final and binding
award described above by converting certain AWOL charged to former unit
employee Mary Ostrowski to LWOP (Jt. Exh. No. 19).
b. The instances of AWOL cited in the September 17, 1984 letter
described above were originally sought by Ostrowski as Union LWOP, but
were denied except for the August 2, 1982 request.
c. At all times since on or about September 17, 1984, Respondent by
its agents has not converted Mary Ostrowski's AWOL to LWOP.
d. At no time material herein has Respondent proved to the Union's
satisfaction that the instances of AWOL cited in the September 17, 1984
letter described above, were not properly subjects of Union LWOP.
11. Since on or about April 20, 1984, and at all times thereafter,
Respondent has not converted all AWOL time to Union LWOP as directed by
the June 11, 1983 award.
Discussion and Conclusions
Arbitrator Eisenberg's June 11, 1983 arbitration award arose out of a
contractual dispute concerning the interpretation of Article 31, Section
7-B of the National Agreement, the collective bargaining agreement
governing the labor relations of the Respondent and AFGE. This Section
provides:
Section 7 -- Leave Without Pay
. . . .
B. An employee may be granted leave without pay to engage in
union activities on the national, district or local level, to work
in programs sponsored by the Union or the AFL-CIO, upon written
request by the appropriate union office. Such requests will be
referred to the appropriate management official and will normally
be approved. Such employees shall continue to accrue benefits in
accordance with applicable OPM regulations. Leave without pay for
this purpose is limited to one (1) year, but may be extended or
renewed upon proper application.
In this arbitration proceeding the AFGE pressed a claim for less
restrictive grants of LWOP for Union officials engaged in tasks dealing
with labor-management relations. Arbitrator Eisenberg found in favor of
the Union, and upheld the Union's claim for a less restrictive
interpretation of the provision. He found that it related to LWOP
requested by a Union office for an employee to engage in Union
activities, and further that it "states unequivocally that such LWOP
requests by a Union 'will normally be approved.'" (Jt. Exh. No. 13 at
14-15).
The burden of justifying a denial was placed on management. That is,
management was required to make an explicit showing as to why a LWOP
request should not be granted "because of an identified non-normal
situation." (Jt. Exh. No. 13 at 15). He found that requests for LWOP
filed by de Juliis, Higgins and Bigelow had not been denied in
accordance with the collective bargaining agreement, and that the
District Offices which these Union officials were assigned to had not
"experienced workload situations beginning June 11, 1982 which justified
persistent denials of LWOP to those officials." (Jt. Exh. No. 13 at 17).
He reiterated specifically that "(t)he burden of proving the existence
of a work situation that is not normal is on the Agency." (Jt. Exh. No.
13 at 17). Arbitrary agency restriction of Union LWOP was found to be
violative of the National Agreement, and Respondent's practice of
delaying action on Union LWOP requests until 8:30 A.M. of the morning on
which the Union LWOP was to be used was condemned as tending to
"trivialize the involvement of Union officials in labor management
relations." (Jt. Exh. No. 13 at 19). He concluded:
In sum, I find that the record before me supports the Union's
complaintt that the Agency has created a restrictive special
policy for response to and consistent denial of requested LWOP
after it has denied a Union request for official time, and I find
that there is nothing in the National Agreement or in valid past
practice thereunder which can serve to justify such a policy. The
Agency's actions with reference to Union LWOP thus constitute
violations of the applicable provisions of the National Agreement.
(Jt. Exh. No. 3 at 20-21).
The award fashioned by the Arbitrator required the Respondent to:
1. Grant both long and short term LWOP to union officials
under "normal working conditions."
2. Grant or deny union LWOP promptly after it receives LWOP
requests. Advise the Union promptly of its response; and not
delay doing so until 8:30 A.M. on the date the leave is to be
used.
3. Deal with future LWOP requests in a manner consistent with
the Statute and the collective bargaining agreement.
4. Construe Article 31, Section 7-B of the June 11, 1982
National Agreement as "normally" requiring approval of Union LWOP
for Union officials for the purposes specified in this contractual
provision.
Paragraph 5 of the Award fashioned the following specific remedy:
(1) restore to Union LWOP, all charges to Union officials of
AWOL and annual leave which should have been granted as Union
LWOP; provided however, that should the Agency prove to the
Union's satisfaction that particular charges of AWOL and annual
leave were not properly subjects for Union LWOP, then such
particular charges need not be converted to LWOP;
2. change to Union LWOP all AWOL charges to Kirk Bigelow,
Joseph Higgins, and Ralph de Juliis for 'incorrect denials' of
LWOP; provided however, that should the Agency prove to the
Union's satisfaction that particular charges of AWOL against any
of these individuals were not properly subjects for Union LWOP
then such particular charges of AWOL need not be converted to
LWOP; and provided that any conversion of AWOL charges to LWOP
charges hereby required shall not be construed to constitute a
finding as to the conduct of any of these three employees in the
circumstances pertaining to any particular AWOL charge;
3. in the future when it undertakes to deny requested Union
LWOP, provide to the Union, in advance, a statement of the nature
of any 'exigency' said to be the basis for the denial, together
with the name and title of the management representative who is
declaring the departure from normal conditions or the exigency of
business; and
4. grant Union LWOP for longer than one day at a time, subject
to the conditions in Article 31, Section 7, B, of the National
Agreement, as construed by the terms of this Award.
It is clear from the record that the June 11, 1983 award contemplated
the Respondent's good faith cancellation of all AWOL which should have
been granted as Union LWOP under the terms of the award. It further
contemplated that in situations wherein the Respondent deemed conversion
inappropriate, conversion of such AWOL to LWOP would be excused if the
Agency proved to the Union's satisfaction that particular charges should
not be converted. This element of the decision in turn envisions that
the Union would not act arbitrarily in refusing to acknowledge in
appropriate cases that particular charges of AWOL should not be
converted. However, the decision itself does not specifically address
the issue of what action, if any, should be taken by the Respondent in
situations wherein the Union had a legitimate basis for objecting to
Respondent's stated reasons for refusing to convert specific AWOL to
LWOP. That is, the arbitrator's decision provides no specific
methodology for resolving such disputes, and does not relate to
identifiable instances wherein conversion of AWOL should occur under the
terms outlined in the award. Presumably, issues relating to questioned
determinations were to be made in grievance arbitration proceedings, or
in the course of unfair labor practice proceedings.
The award does indicate that any conversion of AWOL charges required
by the terms of the award "shall not be construed to constitute a
finding as to the conduct of (de Juliis, Higgins or Bigelow) in the
circumstances pertaining to any particular AWOL charge." The quoted
language suggests that the arbitrator envisioned Respondent's possible
conversion of AWOL to LWOP in some or all situations involving alleged
misconduct of these three employees, and further that the administrative
fact of conversion would have no evidentiary significance in related
disciplinary matters.
In contrast to the meaning of the award outlined, counsel for the
General Counsel argues that the Eisenberg award leaves to the Union the
ultimate determination as to whether an AWOL charge should be converted
to LWOP. There is no rational basis for drawing this conclusion from
the June 11, 1983 award, or any other documents in the record. This
argument would operate to negate entirely those elements of the award
requiring the Respondent to determine and then remedy prior incorrect
denials of LWOP.
Relieving the Respondent of responsibility to convert in situations
wherein the Union expressed satisfaction with a refusal to convert
merely points out the obvious. That is, that conversion in such
situations would be unnecessary and illogical. It may not be assumed
that the arbitrator intended the Union to have absolute discretion to
require the conversion of all AWOL time not converted by the Respondent
regardless of the relative merits of each individual request for LWOP.
Although, the language used in the decision could have made this point
clearer, the fact remains that this meaning necessarily follows from the
terms used in the award. /3/
The General Counsel's complaint rests entirely upon the theory that
the Respondent failed to convert AWOL time in accordance with demands
made upon the Respondent, and further that the Respondent failed to
prove to the Union's satisfaction that Respondent's refusal to convert
AWOL time was proper. As noted, the arbitration award did not provide
such a remedy. A showing of a failure to comply with Union demands, or
a showing of a failure to satisfy Union concerns, without more, would
not necessarily equal non-compliance with the arbitration award. The
General Counsel has the burden of establishing specifically that
Respondent's denial of LWOP fell within the purview of the June 11, 1983
award. That is, that no unusually pressing working conditions existed
to justify Respondent's refusal of LWOP. Such a showing is not
reflected in the record. /4/
The record reflects reliance upon a letter dated June 25, 1984
requesting the conversion of "all AWOL" time relating to de Juliis to
LWOP (Jt. Exh. No. 16). Neither the award, nor the record furnishes a
basis for such a demand. At most the award requires only the conversion
of AWOL time associated with LWOP reequests incorrectly denied prior to
the June 11, 1983 arbitration award. There was no showing that any
specific de Juliis request for LWOP was incorrectly denied within the
context of the arbitration award. The General Counsel's reliance upon
Respondent's July 25, 1984 refusal to comply with the de Juliis request
(Jt. Exh. No. 20), without more, would not suffice to establish a
failure to comply with the award.
Similarly, both Higgins and Bigelow demanded the conversion of all
AWOL charged to them (Jt. Exh. Nos. 17, 18(a), and 18(b)), and Ostrowski
demanded the conversion of all AWOL time charged to her (Jt. Exh. No.
19), without reference to the Respondent's obligation to utilize
criteria outlined in the June 11, 1983 arbitration award. A showing of
Respondent's refusal to comply with these three requestss, without more,
would not suffice to establish proof of non-compliance with the award.
Instead of establishing specific instances wherein AWOL was
incorrectly denied under the principles outlined in the award, the
prosecutive theory was made to rest on the erroneous premise that the
Respondent was under an obligation to convert all of the AWOL time
referred to in the Higgins, Bigelow and Ostrowski letters.
It is regrettably noted that elements of the record do in fact
suggest that the Respondent may not have followed the arbitrator's
instructions in each and every instance; however, on the basis of the
record presented it is not possible to make a finding concerning any
specific failure to convert AWOL time in accordance with principles
outlined in the award. Moreover, the complaint, resting entirely on the
broad demands for conversion reflected in the de Juliis, Higgins,
Bigelow and Ostrowski correspondence, and on Respondent's admitted
failure to satisfy the Union with a rationale for refusing to convert,
does not allege any specific instances of failure to convert in
accordance with the terms of the award. In view of the foregoing, and
since the record reflects no showing of specific non-compliance with the
award, it is determined that the consolidated complaint should be
dismissed. It is recommended that the Authority issue the following
Order pursuant to 5 C.F.R. Section 2423.29.
ORDER
IT IS HEREBY ORDERED, that the consolidated complaint in Case Nos.
2-CA-40444, 2-CA-40516, and 2-CA-50037, be, and it hereby is, dismissed.
/s/ LOUIS SCALZO
Administrative Law Judge
Dated: August 15, 1985
Washington, D.C.
FOOTNOTES
(1) The exceptions mistakenly refer to Arbitrator Eisenberg's award
as being dated June 4, 1983, rather than June 11, 1983 (Tr. 60-61).
(2) Jt. Exh. No. 22 reflects that Bigelow's LWOP requests for June
16, 18 and 23, 1982 were granted by the Respondent.
(3) Authority decisions have held that union proposals which would
operate to obligate an agency to grant an employee's request for LWOP
without any regard to the necessity for the employee's services during
the period covering the request would be inconsistent with management's
right pursuant to Section 7106(a)(2)(B) of the Statute "to assign work."
American Federation of Government Employees, AFL-CIO, Local 2263, 15
FLRA No. 126 (1984), 15 FLRA 580; American Federation of Government
Employees, AFL-CIO, Local 12, 18 FLRA No. 58 (1985), 18 FLRA 418.
Similarly, an arbitrator's award likewise may not interfere with the
exercise by an agency of its rights under Section 7106(a) of the
Statute. Veterans Administration, Lebanon, Pennsylvania, 11 FLRA No. 43
(1982), 11 FLRA 193; American Federation of Government Employees,
AFL-CIO, Local 12, supra. The record reflects no basis for concluding
that the June 11, 1983 arbitration award denied management's rights.
(4) The General Counsel is not helped by the stipulation that since
on or about April 20, 1984, and at all times thereafter, Respondent has
not converted all AWOL time to Union LWOP as directed by the
arbitrator's award. The award reflects that the arbitrator did not
require the conversion of all AWOL time to Union LWOP, and any other
meaning conveyed by the mentioned stipulation of fact is unclear at
best.
23 FLRA No. 108
Dep't of the Treasury, IRS, Jacksonville District and Dep't of the
Treasury, IRS, Southeast Regional Office of Inspections and NTEU, Case
No. 4-CA-40568 (Decided October 31, 1986)
STATUTE
7114(a)(2)(B)
7116(a)(1)
7118
SUBJECT MATTER INDEX ENTRIES
Negotiability
Management Rights
Internal Security Practices
Union Representation at Examinations Does Not Interfere
Unfair Labor Practices
Agency Violations
Interference, Restraint, Coercion
Telephone Surveillance
Examinations, Interviews and Investigations
Criminal Investigations are "Examinations"
"Examination" Involves a Confrontation with Employer
Legislative History and Analysis of
Telephone Surveillance Not an "Examination"
H.R. Rep. No. 1717, 95th Cong., 2d Sess. (1978)
DIGEST NOTES
The agency did not violate section 7116(a)(1) when, unknown to a
revenue officer, the agency monitored and taped his telephone
conversation with a taxpayer. The information obtained from the phone
conversation was eventually used in disciplinary action brought against
the revenue officer. An agency's monitoring of phone calls of an
employee suspected of having engaged in improper or illegal conduct does
not constitute an "examination" within the meaning of section
7114(a)(2)(B). Thus, since there was not an "examination", the employee
did not have the section 7114(a)(2)(B) right to have a union
representative present where the employee reasonably believes that the
examination may result in disciplinary action. In fact, the presence of
a union representative is utterly incongruous with the surreptitious
nature of the agency's surveillance activities.
A Federal employee has the right to union representation in criminal
examinations. This right is similar to an employee's right in the
private sector as set forth by the Supreme Court decision in NLRB v. J.
Weingarten Inc., 420 U.S. 251 (1975). In Weingarten, the Court was
concerned with the right of an employee to have "the assistance of his
union representative in a confrontation with his employer" (emphasis
added). In the Court's view, "(a) single employee confronted by an
employer investigating whether certain conduct deserves discipline may
be too fearful or inarticulate to relate accurately the incident being
inivestigated, or too ignorant to raise extenuating factors" (emphasis
added). In these circumstances, the Court concluded "(a) knowledgeable
union representative could assist the employer by eliciting favorable
facts and save the employer production time by getting to the bottom of
the incident occasioning the interview."
Case No. 4-CA-40568
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE
DISTRICT AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
SOUTHEAST REGIONAL OFFICE OF INSPECTION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
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 to the attached Decision of the Administrative
Law Judge. The Charging Party (the Union) filed an opposition to the
exceptions. The issue is whether the Respondent violated section
7116(a)(1) of the Federal Service Labor-Management Relations Statute
(the Statute) by conducting an "examination" of an employee in conflict
with the employee's right to request union representation under section
7114(a)(2)(B) of the Statute. The Authority finds that the Respondent
did not commit an unfair labor practice as alleged.
II. Background and Judge's Decision
As part of an investigation into the manner in which a Revenue
Officer handled a tax collection manner, the Respondent's inspector
arranged to have the taxpayer discuss the issue with the Revenue Officer
in phone conversations initiated from the taxpayer's home. Unknown to
the Revenue Officer, the conversation was monitored and taped by the
Respondent. The information obtained from the phone conversations was
eventually used in disciplinary action brought against the Revenue
Officer.
The Judge decided that the phone conversations constituted an
"examination," that the Revenue Officer's right to request union
representation under section 7114(a)(2)(B) of the Statute had been
violated, and that the use of the investigative technique thus violated
section 7116(a)(1) of the Statute, as alleged. As a remedy, the Judge
recommended an order which would require the Respondent to rescind the
disciplinary action and to reconsider the basis for such action without
referring to the information obtained from the phone conversations.
III. Positions of the Parties
The Respondent argues that it did not commit the violation alleged in
the complaint because the investigation at issue was in connection with
a criminal matter and section 7114(a)(2)(B) was not intended to be
applicable to criminal investigations. As part of this argument, it
also implicitly argues that application of section 7114(a)(2)(B) to
preclude it from using such investigative techniques would interfere
with its right to determine its internal security practices under
section 7106(a)(1) of the Statute. The Respondent also disputes the
Judge's recommended remedy. The Union supports the Judge's Decision.
IV. Analysis and Discussion
A. Rights under Section 7114(a)(2)(B)
Section 7114(a)(2)(B) of the Statute provides that in any examination
of a unit employee by an agency representative in connection with an
investigation, the employee shall have the right to have a union
representative present if the employee reasonably believes that the
examination may result in disciplinary action and requests
representation.
The legislative history of this section discloses that Congress'
purpose in enacting section 7114(a)(2)(B) was to create representation
rights for Federal employees equivalent to the rights provided employees
by the National Labor Relations Board (NLRB) in interpreting the
National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978),
reprinted in Legislative History of the Federal Service Labor-Management
Relations Statute, H.R. Comm. Print 96-7, 96th Cong., 1st Sess. 926
(1979), where Congressman Udall explained that the purpose of the House
bill provisions which led to enactment of section 7114(a)(2)(B) was to
reflect the Supreme Court's decision in NLRB v. J. Weingarten Inc., 420
U.S. 251 (1975), in which the Court deferred to the NLRB's
interpretation of the NLRA. See also Internal Revenue Service v. FLRA,
6711 F.2d 560, 563 (D.C. Cir. 1982), enforcing Internal Revenue Service,
Washington, D.C., 4 FLRA 237 (1980) (holding that under section
7114(a)(2)(B), whether an employee has a reasonable belief that
discipline may result from an examination is determined, as under
Weingarten, by an objective test).
The Senate/House conferees recognized, however, that the right might
evolve differently under the Statute than under the NLRA, and
accordingly stated their intent that the evolution of decisions
interpreting the right in the private sector would not necessarily be
determined for the Federal sector. Civil Service Reform Act:
Conference Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978),
reprinted in Legislative History at 824.
B. Whether section 7114(a)(2)(B) is applicable to
examinations arising out of criminal investigations
Section 7114(a)(2)(B) refers to "any examination" of an employee . .
. in connection with "an investigation" (emphasis added). The
Conference Report essentially tracks the statutory language. Conference
Report, H.R. Rep. No. 1717, 95th Cong., 2d Sess. 156 (1978) reprinted in
Legislative History at 824. Congress was undoubtedly aware that, unlike
the private sector, many Federal agencies (including the Respondent)
conduct criminal investigations that sometimes (as here) include their
own employees. Section 7114(a)(2)(B), however, does not exclude or
refer in any way to criminal investigations. Accordingly, it is our
view that Congress intended section 7114(a)(2)(B) to apply to all
examinations in connection with all investigations, not just to
examinations of employees in connection with non-criminal matters.
Our conclusion is buttressed by the practice in the Postal Service
wherein the NLRB has applied Weingarten rights to the examination of
postal employees, who are governed by private sector labor law, in
connection with criminal investigations. See United States Postal
Service, 241 NLRB 141 (1979); United States Postal Service, 254 NLRB
703 (1981). Further, Weingarten itself involved the investigation of an
employee accused of criminal acts.
Finally, we find that applying section 7114(a)(2)(B) rights to
examinations in connection with criminal investigations would not
interfere with the right of management to determine its internal
security practices under section 7106(a)(1) of the Statute. The
presence of a Union representative at an examination does not interfere
with management's right to insist that the employee be responsive, or
its right to decide the scope of the examination, or the extent of the
Union's legitimate role as a representative. See Weingarten, 420 U.S.
at 261; Office of Personnel Management, Washington, D.C. 17 FLRA 302
(1985); Norfolk Naval Shipyard, 9 FLRA 458 (1982).
We find that section 7114(a)(2)(B) applies to requests by an employee
for union representation at an examination by an agency representative
in connection with a criminal investigation. We conclude that this
result (1) comports with the language of section 7114(a)(2)(B) and the
intent of Congress, (2) is consistent with the Supreme Court's
explanation of the parameters of the right to representation in
Weingarten, /1/ and (3) does not conflict with management's legitimate
prerogatives or its right to determine its internal security practices.
C. Whether the Respondent interfered with the employee's
rights under section 7114(a)(2)(B) of the Statute
The Authority concludes that the telephone surveillance at issue
here, involving the agency's monitoring of phone calls of an employee
suspected of having engaged in improper or illegal conduct does not
constitute an examination within the meaning of section 7114(a)(2)(B).
As discussed above in section A, the legislative history of section
7114(a)(2)(B) establishes that its incorporation in our Statute was for
the purpose of granting to Federal employees the same rights to
representation in employer examinations held by private sector employees
set forth in the Supreme Court's Weingarten decision. The Court in
Weingarten was not addressing those facets of a criminal investigation
such as a telephone surveillance in which it is essential to the success
of the surveillance for the employee to be unaware that his conversation
is being monitored. In fact, the presence of a Union representative is
utterly incongruous with the surreptitious nature of the agency's
surveillance activities.
In contrast, in Weingarten, the Court was concerned with the right of
an employee to have "the assistance of his union representative in a
confrontgation with his employer" (emphasis added). Weingarten at 260.
In the Court's view, "(a) single employee confronted by an employer
investigating whether certain conduct deserves discipline may be too
fearful or inarticulate to relate accurately the incident being
investigated, or too ignorant to raise extenuating factors" (emphasis
added). Id. at 262-63. In these circumstances, the Court concluded
"(a) knowledgeable union representative could assist the employer by
eliciting favorable facts and save the employer production time by
getting to the bottom of the incident occasioning the interview. Id. at
263.
In this case, there was no direct questioning or examination of the
employee by agency management. Management's involvement was limited to
monitoring the conversation between a Revenue Officer and a taxpayer.
Moreover, the conversations took place without the employee being aware
that the questions and his answers were being monitored. Thus, at no
time during these conversations did the employee feel compelled to
respond to questions posed by the taxpayer. Although an officer of the
agency may have precipitated the taxpayer's action, there was no direct
interaction between the employee and agency management since it was the
taxpayer who initiated the talks and elicited information. Thus, we
find that the monitoring here, in which management played the passive
role of listening rather than participating in the conversations, does
not constitute an "examination of any employee . . . by a representative
of the agency in connection with an investigation" within the meaning of
the Statute but rather is a form of surveillance.
The General Counsel's allegation encompasses an expansion of employee
representational rights that is inconsistent with section 7114(a)(2)(B)
and unduly interferes with management's right under section 7106(a)(1)
of the Statute to investigate alleged wrongdoing by its employees and
determine internal security practices. It would produce the anomalous
prohibition that agencies could not engage in unannounced surveillance
of allegedly dishonest employees as an investigative technique without
first informing the employee of what was being done and providing an
opportunity to request representation. We do not believe that Congress
intended such an unlikely result.
Based on the analysis set forth above we conclude that the monitoring
of the conversation between the IRS agent and the taxpayer did not
constitute an "examination" within the meaning of section 7114(a)(2)(B)
of the Statute. Given this conclusion, there is no basis to find that
the agency violated section 7116(a)(1) of the Statute as alleged in the
complaint.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision, the exceptions to that Decision, the opposition to the
exceptions, the positions of the parties, and the entire record, and
adopts the Judge's findings and conclusions only to the extent
consistent with this decision. We conclude that the Respondent, in the
circumstances of this case, did not interfere with, restrain, or coerce
employee Miller in the exercise of any of his rights under section
7114(a)(2)(B) of the Statute, and we shall dismiss the complaint. In
view of this conclusion, we do not pass upon the merits of the Judge's
recommended remedial order.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-40568 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 4-CA-40568
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE
DISTRICT AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
SOUTHEAST REGIONAL OFFICE OF INSPECTION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Regina N. Kane, Esquire
For the General Counsel
Robert M. Finer, Esquire
For the Respondent
Timothy C. Welsh, Esquire
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on July 24, 1984, by the National Treasury
Employees Union (hereinafter called the NTEU or Union), a Complaint and
Notice of Hearing was issued on August 20, 1985, by the Regional
Director for Region IV, Federal Labor Relations Authority, Atlanta,
Georgia. The Complaint alleges that the Department of the Treasury,
Internal Revenue Service, Jacksonville District and the Department of
the Treasury, Internal Revenue Service, Southeast Regional Office of
Inspection (hereinafter called Respondent or IRS), violated Section
7116(a)(1) of the Federal Service Labor-Management Relations Statute,
hereinafter called the Statute), by utilizing a third party to conduct a
wire tapped telephone examination of bargaining unit employee Steven W.
Miller in such a manner as to preclude Mr. Miller from exercising his
Section 7114(a)(2)(B) right to request the presence of a union
representative.
A hearing was held in the captioned matter on October 1, 1985 in
Daytona Beach, Florida. All parties were afforded the opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The Charging Party, Respondent
and General Counsel submitted post-hearing briefs on December 2, 1985,
which have been duly considered. /2/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact, /3/
conclusions, and recommendations.
Findings of Fact
The NTEU is the exclusive representative "of certain employees of the
Department of the Treasury." Included in the unit are a number of
employees working in the IRS, Jacksonville, Florida, District Office,
which encompasses, among other areas, the Daytona Beach, Florida, Field
Office.
Mr. Steven W. Miller was employed as an Internal Revenue Officer in
Daytona Beach, Florida and as such was included in the unit represented
by the NTEU. Among Mr. Miller's duties as a Revenue Officer was the
collection of funds from delinquent taxpayers.
Sometime in April 1983, Mr. George Edwards, Mr. Miller's group
supervisor, contacted Mr. Robert Dan Clark, Jr. an inspector with the
IRS Internal Security Division /4/ in Jacksonville, Florida, and
informed him that he had reason to believe that Mr. Miller may have
mishandled a "collection" which had been assigned to him. Mr. Edwards
further informed Mr. Clark that he had also received information that
Mr. Miller might be "personally or socially acquainted with the
taxpayer." /5/
Mr. Clark subsequently initiated an investigation of the matter and
determined that the delay in the collection of delinquent taxes from
Taxpayer A was based on false information appearing on a certain form in
the taxpayer's file which indicated that Taxpayer A had been unemployed
at the time in question.
Inasmuch as Taxpayer A had in fact been employed at the time and
denied giving false information to the contrary to Mr. Miller, who was a
friend of a co-worker of Taxpayer A, it was incumbent on Mr. Clark to
determine who in fact was responsible for the false information on the
form, Mr. Miller or Taxpayer A.
Envisioning an "obvious response" from an inquiry to Mr. Miller, that
the document "truly reflects what she, Taxpayer A, told him," Mr. Clark
was of the opinion that the best way to resolve any credibility dispute
was to monitor a telephone conversation on the matter between Taxpayer A
and Mr. Miller.
On March 30, 1984, at 8:52 a.m. and 9:20 a.m. pursuant to
arrangements with Mr. Clark, Taxpayer A placed two telephone calls from
her residence to Mr. Miller at the Internal Revenue Office located in
Daytona Beach, Florida. Both the telephone calls were monitored and
recorded by Mr. Clark and fellow inspector Mailoux. Taxpayer A
consented to the wire taps.
The transcripts of the two telephone conversations reveal that
Taxpayer A discussed the subject matter of the investigation, namely the
false information concerning her work status and elicited damaging
testimony from Mr. Miller concerning the false information on the IRS
form.
At no time during the telephone conversations was Mr. Miller informed
that the conversations were being initiated by, and monitored by, IRS
representatives. Similarly, Mr. Miller was never informed of his right
to Union representation.
Mr. Clark testified that the use of wire taps was an extremely
valuable tool in which to resolve credibility both for and against IRS
agents who have been accused by taxpayers of various indiscretions etc.
He further testified that denying the IRS the use of such investigative
aids, would impede their work.
Discussion and Conclusions
The General Counsel and the Charging Party take the position that the
monitored telephone conversations constituted a Section 7114(a)(2)(B)
interview wherein Mr. Miller should have been provided the opportunity
to request representation. Inasmuch as Respondent's action in
surreptitiously monitoring the telephone conversation was designed to
interview Mr. Miller without his knowledge, Respondent knowingly and
intentionally deprived Mr. Miller of his Section 7114(a)(2)(B) right to
request representation. In such circumstances Respondent violated
Section 7116(a)(1) of the Statute.
Respondent urges dismissal of the complaint on the ground that there
is no evidence in the record indicating that Mr. Miller would have
requested representation if he had been made aware of the fact that his
conversations were being monitored. Additionally, Respondent urges
dismissal on the ground that the legislative history does not establish
that the so-called "Weingarten" rights to representation were intended
to apply to criminal investigations.'
Before Section 7114(a)(2)(B) of the Statute becomes applicable it
must be shown (1) that an examination is being conducted, (2) in
connection with an investigation, (3) that the employee involved
reasonably believes that the examination may result in discipline and
(4) the employee requests representation.
With respect to (1) and (2) above it is clear that the monitored
telephone calls from Taxpayer A to Mr. Miller were intended to be an
examination in connection with an investigation to determine who was
responsible for the false information appearing on the IRS form. If in
fact it could be determined from such telephone calls that Mr. Miller
was the guilty party there is no doubt that discipline would result.
/6/ In this latter connection the transcript of the telephone
conversation indicates that Mr. Miller was concerned about what action
would be taken by Respondent if it concluded that he was responsible for
the false information. Finally, with regard to the last element, i.e.
employee request for representation, while it is true as contended by
Respondent that the record is devoid of any evidence indicating that Mr.
Miller would have requested representation, I find that under all the
circumstances herein, Respondent is foreclosed from relying upon the
absence of such evidence. Having purposely deprived Mr. Miller of
knowledge of the examination, Respondent can hardly defend its actions
on the ground that there is no evidence of a request for representation
when, due to Respondent's surreptitious behavior, Mr. Miller was clearly
not aware of the fact that an examination was being conducted and as a
consequence was deprived of the opportunity to request representation.
To insist at this late date, i.e. subsequent to a notice of proposed
suspension based on damaging testimony elicited during the wiretapped
conversations, that Mr. Miller take the stand and attest to the fact
that he would have requested representation if he had known that an
examination was being conducted is absurd. This is particularly true
when one of the requested remedies is the suppression of the testimony
secured by Respondents through the wiretap.
Concerning Respondent's second ground for dismissal, i.e., that
Section 7114(a)(2)(B) of the Statute is not applicable to criminal
investigations, I find that the Authority has found to the contrary.
Thus, in Lackland Air Force Base, Texas, and American Federation of
Government Employees, Local 2911, AFL-CIO, 5 FLRA 473, 485, the
Authority affirmed the Administrative Law Judge's conclusion that
employee was entitled to union representation during the course of an
examination to determine whether or not the employee was guilty of a
crime. The Administrative Law Judge noted that since the examination
was conducted jointly by the Respondent's managers and Respondent's
independent criminal investigative branch, the employee was entitled to
union representation at all interviews, criminal and administrative
alike.
While Respondent acknowledges the Authority's decision in Lackland
Air Force Base, supra, it takes the position that it is not controlling
since the issue of the applicability of Section 7114(a)(2)(B) to
criminal investigations was not specifically discussed. According to
Respondent, since the legislative history is silent on the matter, there
was no intention of Congress to include criminal investigations within
the representational rights accorded employees under Section
7114(a)(2)(B) of the Statute. Respondent's argument in this latter
regard was raised and thoroughly treated by Chief Administrative Law
Judge John H. Fenton in Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, Southeaast Regional Office, Atlanta, Georgia, and
NTEU, Case No. 4-CA-1138, OALJ-84-03, October 21, 1983. To the extent
that Judge Fenton found after an exhaustive analysis of the legislative
history, that Section 7114(a)(2)(B) applies to any investigation which
may reasonably lead to discipline, I agree. In reaching this latter
conclusion I adopt, Judge Fenton's well reasoned analysis of the
legislative history.
Accordingly, having failed to allow Mr. Miller the opportunity to
exercise his Section 7114(a)(2)(B) rights, I find that the Respondent
has interfered with, restrained and coerced Mr. Miller in violation of
Section 7116(a)(1) of the Statute.
Having found that Respondent violated Section 7116(a)(1) of the
Statute by virtue of its action in depriving Mr. Miller of his Section
7114(a)(2)(B) rights to union representation, it is hereby recommended
that the Authority issue the following order designed to effectuate the
purposes and policies of the Statute. /7/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that Department of the Treasury, Internal
Revenue Service, Jacksonville District and Department of the Treasury,
Internal Revenue Service, Southeast Regional Office of Inspection shall:
1. Cease and desist from:
(a) Engaging in investigatory interviews of bargaining unit
employees, which may lead to disciplinary action, by means of
consensually monitored telephone calls which conceal the fact that
an investigation is underway, and thus operate to deprive
employees of the right to request and receive representation by
the National Treasury Employees Union, their exclusive collective
bargaining representative.
(b) Using or relying upon in any internal disciplinary
proceeding the transcript and/or information derived from, any
consensually monitored telephone call made by an undisclosed agent
of management which conceals the nature and purpose of the
telephonic investigation and/or examination and precludes the
affected employee from requesting Union representation.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) To the extent that management may have relied upon
information derived from monitored telephone calls made by an
undisclosed agent of management which concealed the nature and
purpose of the telephonic investigation and/or examination,
reevaluate any internal discipline imposed, taking care to exclude
from such deliberations the information surreptitiously obtained
through the monitored telephonic investigation.
(b) Post at its Jacksonville, Florida, District Office and
Southeast Regional Office of Inspection facilities copies of the
attached notice marked "Appendix" on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by authorized representatives, 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.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director for Region IV, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: December 30, 1985
Washington, D.C.
FOOTNOTES
(1) For a discussion of extensions of Weingarten in the private
sector, see C. J. Morris (ed.), The Developing Labor Law: Vol. I,
151-54 (2d ed. 1983) and J. Harper II, S. Logothetis, & H. Datz (eds.),
The Developing Labor Law: Second Edition, First Supplement, 32-35
(1985).
(2) In the absence of any objection, Respondent's Motion To Correct
the Transcript, should be, and hereby is, granted.
(3) The facts, for the most part, are not in dispute.
(4) Mr. Clark described his duties as follows: "Conduct
investigations which may be either criminal or non-criminal. These
investigations generally impact upon the integrity of IRS, normally
concerning violations or suspected violations of U.S. Criminal Code or
the Internal Revenue Code, Title 18 and Title 26. Normally involving
suspected attempts to interfere with proper functioning by employees or
persons outside the service, by threats and assault, bribery,
impersonations, conflict of interest. We also conduct some
investigations of an administrative type nature or non-criminal type
cases involving suspected misconduct by IRS employees."
(5) The parties agreed that the taxpayer's name would not be
disclosed. Accordingly, the taxpayer will be referred to as "Taxpayer
A."
(6) In fact the telephone interview did lead to a proposed suspension
for Mr. Miller.
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, restrain or coerce any bargaining unit
employee in the exercise of the Statutory right to be represented by the
National Treasury Employees Union during an investigatory interview
which may reasonably lead to discipline, by conducting a monitored
examination through another individual who is an undisclosed agent of
management, thus concealing the nature and purpose of the interrogation
and precluding the opportunity for Union representation.
WE WILL NOT use in any internal disciplinary proceedings transcripts,
and/or information derived from any consensually monitored telephone
calls made by an undisclosed agent of management which conceals the
nature and purpose of the telephonic investigation and/or examination
and precludes the affected employee from requesting union
representation.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, to the extent that we have relied upon information derived
from telephone calls made by an undisclosed agent of management which
concealed the nature and purpose of the telephonic investigation and/or
examination, re-evaluate any internal discipline imposed, taking care to
exclude from such deliberations the information surreptitiously obtained
through the monitored telephonic investigation.
(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: 1776 Peachtree Street, N.W., Suite 501, North Wing,
Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324.
23 FLRA NO. 107
AFGE, Local 1934 and Dep't of the Air Force, 3415 ABG, Lowry AFB,
Colo., Case No. 0-NG-1239 (Decided October 31, 1986)
STATUTE
7105(a)(2)(E)
7106(b)(3)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Hours of Work
Alternate Work Schedules
Compressed Work Schedules (4 day week)
Federal Employees Flexible and Compressed Work Schedules
Act of 1982 (5 U.S.C. sections 3401, 6101 and note, 6106, 6120-6123)
Forums
Adverse Agency Impact (FSIP Proceedings)
Proposals Contrary to Law (Negotiability Proceedings)
5 U.S.C. sec. 6131(a)-(c)
5 U.S.C. sec. 62131(c)(2)
S. Rep. No. 365, 97th Cong., 2d Sess. (1982)
Pub. L. No. 97-221, 96 Stat. 227
Pub. L. No. 99-196, 99 Stat. 1350
DIGEST NOTES
A proposal is negotiable that would enable employees to work
workweeks composed of four, ten-hour days. Under the Federal Employees
Flexible and Compressed Work Schedules Act of 1982, Permanent Authority
(1986), Pub. L. No. 99-196, 99 Stat. 1350, alternate work schedules are
fully negotiable, subject only to limitations of the 1982 Act.
As provided under 5 U.S.C. sec. 6131(a)-(c), an agency may object to
the negotiation of an alternative work schedule (AWS) proposed by a
labor organization only where the agency can establish that the proposed
schedule will have an "adverse agency impact." If the parties need
third-party assistanced to resolve a dispute concerning the alleged
adverse agency impact, they must present their dispute to the Federal
Service Impasses Panel as provided under 5 U.S.C. sec. 6131(c)(2) and
part 2472 of the Panel's rules and regulations. The scope of the
Authority's power to review AWS proposals is limited to considering
whether the proposed alternative work schedules is contrary to the Act
itself or other laws superseding the 1982 Act.
Case No. 0-NG-1239
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1934
Union
and
DEPARTMENT OF THE AIR FORCE, 3415 ABG, LOWRY AFB, COLORADO
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 a single Union proposal. /1/
II. Union Proposal
Alternative Work Program
e. 4/10 Work Program -- An employee may work any consecutive
ten hour days during the bandwidth (0600 to 1800) excluding the
lunch period. The days off shall be negotiated with the
supervisor prior to the end of the pay period that the employee
starts the 4/10 work day program. The employee will negotiate a
start time and that start time shall be effective for at least one
pay period unless mutually agreed to change for uncontrollable
personal or emergency reasons.
As explained by the parties, the proposal is concerned with enabling
employees to work workweeks composed of four, ten-hour days.
III. Positions of the Parties
The Agency argues that the proposal is inconsistent with sec. 4 of
the Federal Employees Flexible and Compressed Work Schedules Act of 1982
(the 1982 Act), Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C.
Sections 3401, 6101 and note, 6106, 6120-6123), under which it
terminated an identical 4/10 work schedule program in 1982. It also
argues that insofar as the proposal concerns appropriate arrangements
within the meaning of section 7106(b)(3) for employees who were
adversely affected by its 1982 decision, the appeal should be dismissed
to enable the parties to resume negotiations consistent with the
Authority's decision in National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), or
that the record should be reopened for further submissions by the
parties as to whether the Union's proposal is negotiable as an
appropriate arrangement. The Union argues that the 1982 Act authorizes
negotiations on its proposal.
IV. Analysis and Conclusion
The Agency's contentions in support of its motion to dismiss, or in
the alternative to reopen the record, do not raise any issues bearing on
the proposal's negotiability. The motion is therefore denied. In its
deliberations on the 1982 Act, made permanent under the Federal
Employees Flexible and Compressed Work Schedules Act of 1982, Permanent
Authority (the 1986 Act), Pub. L. No. 99-196, 99 Stat. 1350, Congress
found that "(t)he benefits of these schedules to employees were
overwhelming." Senate Committee on Governmental Affairs, Federal
Employees Flexible and Compressed Work Schedules Act of 1982, S. Rep.
No. 365, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S. Code
Cong. & Ad. News at 566. The legislative history also indicates that
the use of alternative work schedules was intended to be fully
negotiable, subject only to the provisions of the 1982 Act itself. See,
for example, S. Rep. No. 365 at 3, 5. See also Federal Labor Relations
Authority v. Social Security Administration, 753 F.2d 156, 159-60 (D.C.
Cir. 1985); Office of Personnel Management, "Report on Alternative Work
Schedules in the Federal Government," in Subcommittee on Human Resources
of the House Committee on Post Office and Civil Service, Federal
Employees Flexible and Compressed Work Schedules Act: Hearings on H.R.
1534, Ser. No. 99-1, 99th Cong., 1st Sess. 53-55, 57-58 (1985).
As provided under 5 U.S.C. Section 6131(a)-(c), an agency may object
to the negotiation of an alternative work schedule (AWS) proposed by a
labor organization only where the agency can establish that the proposed
schedule will have an "adverse agency impact." If the parties need
third-party assistanced to resolve a dispute concerning the alleged
adverse agency impact, they must present their dispute to the Federal
Service Impasses Panel as provided under 5 U.S.C. Section 6131(c)(2) and
part 2472 of the Panel's Rules and Regulations (5 CFR part 2472). In
view of this statutory scheme, the Agency's contentions relating to
whether the proposal is negotiable as an appropriate arrangement under
section 7106(b)(3) do not raise any issues which the Authority can
resolve under section 7117 of the Statute.
There remains, however, a limited range of issues bearing on the
negotiation of AWS proposals which the Authority may process under the
procedures of section 7117. Nothing in the statutory scheme for
resolving disputes over adverse agency impact or the legislative history
of the 1982 and 1986 Acts bars application of the procedures of section
7117 to AWS proposals under the 1982 Act where a proposal is alleged to
be inconsistent with the 1982 Act itself or with other laws superseding
the 1982 Act. /2/
In this case, the Agency claims that the Union's proposed compressed
work schedule is identical to the Agency's previous schedule, which was
terminated by the Agency pursuant to sec. 4 of the 1982 Act. The Agency
argues that under sec. 4 of the Act, the Union had 90 days in which to
challenge the termination of the previous compressed work schedule and
that by failing to challenge the termination within the 90-day period
the Union is precluded from now proposing a schedule identical to the
one terminated.
We reject the Agency's argument. Section 4 of the 1982 Act was
intended only to apply to work schedules which were initiated as
experiments under the 1978 Act. It was not intended to bar the
subsequent negotiation of work schedules under the substantive and
procedural requirements of the 1982 Act. See S. Rep. No. 365, 97th
Cong., 2d Sess. 6 (1982). We therefore conclude that sec. 4 of the 1982
Act is not applicable to the proposal at issue here.
If the parties need third-party assistance to resolve a dispute
concerning whether the proposal will result in an adverse agency impact,
they must present their dispute to the Federal Service Impasses Panel.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning the Union
proposal consistent with this decision. /3/
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The appeal initially concerned two Union proposals. However, in
responding to the Agency's statement of position the Union has stated
that the dispute concerning one of the proposals (proposal "g") is moot
and may be dismissed on that basis. We interpret this as a motion to
withdraw the proposal and grant the motion.
(2) In prior decisions the Authority entertained and considered
arguments by the parties, under section 7117 of the Statute, concerning
whether union AWS proposals were nonnegotiable because they conflicted
with management rights under section 7106 of the Statute or agency
regulations for which a compelling need exists. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Union Proposal 9);
National Treasury Employees Union, Chapter 65 and Department of the
Treasury, Internal Revenue Service, 20 FLRA No. 4 (1985). In those
cases, as here, the parties did not raise the issue of the extent to
which section 7117 procedures apply to disputes over AWS proposals. As
we discussed above, those procedures generally do not apply to these
disputes. Accordingly, to the extent that these decisions are to the
contrary, they will no longer be followed. Those matters should
generally be resolved, as intended by the 1982 and the 1986 Acts, with
the assistance of the Federal Service Impasses Panel if necessary.
(3) In finding the Union's proposal to be within the duty to bargain,
the Authority makes no judgment as to its merits.
23 FLRA NO. 106
TVA, Watts Bar Nuclear Plant, Division of Construction and United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry (Williams, Arbitrator), Case No. 0-AR-1240 (Oct.
31, 1986)
STATUTE
7103(a)(3)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Agency Definition (7103(a)(3))
Excludes Tennessee Valley Authority
Procedure
Forums
Authority Lacks Jurisdiction
Agency Not Within Statute Scope (7103(a)(3))
Tennessee Valley Authority
DIGEST NOTES
Because the Tennessee Valley Authority is not an "Executive Agency"
within the meaning of section 7103(a)(3), the Authority does not have
jurisdiction over an appeal of an arbitration award concerning TVA
employees.
Case No. 0-AR-1240
TENNESSEED VALLEY AUTHORITY, WATTS BAR NUCLEAR PLANT, DIVISION OF
CONSTRUCTION
Agency
and
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY
Union
ORDER DISMISSING EXCEPTIONS
This case is before the Authority on exceptions to the award of
Arbitrator J. Earl Williams filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. For the reason
stated below, it has been determined that the Union's exceptions must be
dismissed.
The award in this case was issued pursuant to an arbitration
proceeding between the Union and the Tennessee Valley Authority.
Section 7103(a)(3) of the Federal Service Labor-Management Relations
Statute (5 U.S.C. Section 7101 et seq.) defines "agency" as an
"Executive Agency." The latter term is further defined to exclude the
Tennessee Valley Authority. Since the Tennessee Valley Authority and
its employees are not covered by the Statute, the Authority does not
have jurisdiction over the matter.
Accordingly, the Union's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., October 31, 1986.
/s/ Harold D. Kessler
Director of Case Management
23 FLRA NO. 105
Dep't of the Army, Fort Greely, Alaska and Dep't of the Army, 172d
Infantry Brigade (Alaska), Fort Richardson, Alaska and Dep't of the
Army, H.Q., U.S. Army Forces Command, Fort McPherson, Ga, and Dep't of
the Army, The Pentagon, Washington, D.C. and AFGE, Local 1949, Case No.
9-CA-1204 (Oct. 31, 1986)
STATUTE
7103(a)(14)
7114(b)(2)
7116(a)(1) and (5)
7117(b)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Refusal to Negotiate
Post Exchange and Commissary Privileges
Collective Bargaining Process
Delegation of Authority
Compelling Need Inapposite if Defense Based on Delegation
Duty to Provide Representatives Empowered to Negotiate
Compelling Need
May Appropriately be Resolved in ULP Proceedings
Conditions of Employment, Changes in
Withdrawal of Commissary and Post Exchange Privileges
Remedy
Status Quo Ante
DIGEST NOTES
The agency violated section 7116(a)(1) and (5) when it refused to
bargain over the decision to terminate commissary and post exchange
privileges for civilian personnel living off base. The privileges had
been continued for a long period of time as part of the fort's civilian
workforce workforce relationship; were routinely used to encourage
civilians to accept employment at the fort's geographically isolated
location; and constituted one of the few incentives to ease the extreme
difficulty in filling authorized civilian positions and to improve
morale. Accordingly, the matter of withdrawing commissary and post
exchange privileges from unit employees at the fort concerned conditions
of employment under section 7103(a)(14).
The activity had a duty to bargain over a change in conditions of
employment despite its allegation that agency regulations did not
delegate control over the subject matter to management officials at the
level of bargainiing but retained such authority at a higher level of
the agency. The Authority held that an agency may not foreclose
bargaining on an otherwise negotiable matter because authority has not
been delegated to the level of exclusive recognition. Under section
7114(b)(2), an agency is obligated to provide representatives at the
level of bargaining who are authorized to negotiate and enter into
agreements on all matters within the scope of bargaining, and this
statutory obligation cannot be obviated by an agency's internal
regulations.
The activity's argument that there was not duty to bargain because
such matters are the subject of internal agency regulations and the
Authority has not determined under section 7117(b) that no compelling
need exists for those regulations is misplaced. The argument is
inapposite when the basis of the agency's arguoment concerns the
delegation of authority rather than compelling need within the meaning
of section 7117. Even assuming that the argument is relevant, the
activity's position is inconsistent with established Authority
precedent. The Authority has held and reaffirmed that compelling need
determinations may appropriately be decided in an unfair labor practice
proceedings.
The Authority dismissed the complaint against the agency where there
was neither a bargaining relationship between the union and the agency
at the agency level nor evidence that the agency interfered with the
fulfillment of the bargaining obligation between its subordinate
activity and the exclusive representative at that level.
A status quo ante remedy is warranted for the activity's failure to
bargain with the union over the decision to withdraw commissary and post
exchange privileges from civilian personnel who worked at a remote
military installation. Where management makes a unilateral change in a
negotiable term and conditions of employment, the imposition of status
quo ante remedy is required, absent special circumstances, in order not
to render meaningless the mutual obligation to negotiate under the
Statute.
Case No. 9-CA-1204
DEPARTMENT OF THE ARMY, FORT GREELY, ALASKA
and
DEPARTMENT OF THE ARMY, 172d INFANTRY BRIGADE (ALASKA), FORT
RICHARDSON, ALASKA
and
DEPARTMENT OF THE ARMY HEADQUARTERS, U.S. ARMY FORCES COMMAND, FORT
McPHERSON, GEORGIA
and
DEPARTMENT OF THE ARMY, THE PENTAGON, WASHINGTON, D.C.
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1949, 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 Respondents and the General Counsel
have filed briefs for the Authority's consideration.
The second amended complaint alleges that the Respondents, Department
of the Army, Fort Greely, Alaska (Ft. Greely); Department of the Army,
172d Infantry Brigade (Alaska), Fort Richardson, Alaska (Brigade);
Department of the Army, Headquarters, U.S. Army ForcesCommand, Fort
McPherson, Georgia (FORSCOM); and Department of the Army, Washington,
D.C. (Headquarters), violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) when commissary
and post exchange privileges were unilaterally terminated effective
September 1, 1981, for Ft. Greely civilian employees not residing on the
installation, without providing the American Federation of Government
Employees, Local 1949, AFL-CIO (the Union) with notice and an
opportunity to bargain over the change in working conditions.
II. Background
The record indicates that Respondent's Ft. Greely, Brigade, and
FORSCOM, respectively, report upward in the Army chain of command to
Respondent Headquarters. The Union is the exclusive representative of a
bargaining unit which includes all general schedule (GS) and wage grade
(WG) employees at Fort Greely. The Union and Respondent Brigade have
been parties to a collective bargaining agreement covering the
bargaining unit at all times material herein.
Bargaining unit civilian employees at Ft. Greely have not resided on
the installation since the early 1970's. Both GS and WG employees had
received exchange privileges since the mid-1950's, and GS employees have
had commissary privileges since December 1975. As the Commander of Ft.
Greely stated in a letter to Respondent Brigade in November 1979
requesting a continuation of commissary and exchange privileges for
civilian employees at Ft. Greely:
On-Post privileges have been a historical part of the For6t
Greely civilian workforce relationship. In the past, tenant and
garrison supervisors have routinely used the availability of
privileges to encourage local and out-of-state civilians to accept
employment at this geographically isolated location. We have
always experienced extreme difficulty filling our authorized
civilian positions and loss of privileges would have significant
impact on present and future hiring and morale. The granting of
civilian privileges at Fort Greely is one of the few incentives
available to the Command to reduce the cultural-economic shock for
career employees moving into the Delta Junction-Fort Greely area.
By letter dated November 7, 1980, Respondent Ft. Greely again wrote
to Respondent Brigade regarding the continuation of commissary and
exchange privileges for civilian employees at Ft. Greely. The letter
indicated that the basic reasons for granting such priviledges still
existed, but that there had been improvements in those areas. Ft.
Greely recommended that the civilian privileges should be continued on
an interim basis, and that Brigade should undertake a comprehensive
study of the need to continue authorizing such privileges. Respondent
Brigade's response indicated that a study of civilian commissary and
exchange privileges at Ft. Greely would be undertaken, and that such
privileges would be extended through June 30, 1981. Brigade conducted
the study during April and May 1981. The Union was not notified,
consulted or given an opportunity to negotiate about any aspect of this
study.
By letter dated June 6, 1981, Brigade directed Ft. Greely to withdraw
commissary and post exchange privileges from all civilian employees at
Ft. Greely on September 1, 1981, based upon the results of its study.
Brigade's labor relations specialist gave a copy of the June 6 letter to
the Union's president on June 17, indicating that the decision to
withdraw privileges was nonnegotiable but that management would
negotiate "impact and implementation."
On August 3, 1981, the Union sent Brigade a request to bargain over
the withdrawal of civilian privileges at Ft. Greely, stating that its
position regarding the privileges was to maintain the status quo. In
its response, Brigade agreed to negotiate over the impact and procedures
regarding the withdrawal of privileges. On August 26, the Union met
with representatives of Brigade and Ft. Greely to negotiate concerning
the withdrawal of civilian privileges. The Union sought to retain the
privileges; Ft. Greely stated that, based on higher level guidance from
Respondent's FORSCOM and Headquarters, the decision to withdraw the
privileges was nonnegotiable and that the privileges would be withdrawn
on September 1, 1981. By letter to the Union dated August 28, 1981, Ft.
Greely confirmed management's oral statements of August 26 that the
decision to withdraw privileges was nonnegotiable. Specifically, the
letter stated that Army regulations (AR 60-20 and 30-199) precluded
negotiations over the substance of the decision to discontinue
commissary and exchange privileges, and also that the Union had
inordinately delayed its request to negotiate. The letter also
reiterated that the privileges would be withdrawn on September 1. The
privileges were in fact withdrawn on that date.
III. Positions of the Parties
A. The Respondents
1. Commissary store privileges
The Respondents contend that Department of Defense (DOD) Directive
1330.17 (1978) -- which sets forth policies for the extension of
commissary store privileges -- provides that such privileges will not be
extended to civilian employees of the military services who do not
reside within the military installations; that deviations from this
requirement are permitted only in cases of emergency and only until the
emergency is terminated; that while civilian employees at Ft. Greely
had received commissary privileges from 1975 to 1981 even though they
did not reside on the installation, such action was taken with
Headquarters approval; and that the decision to extend commissary
privileges to these employees was reviewed by Headquarters on an annual
basis.
2. Exchange privileges
The Respondents contend that there were no restrictions on granting
exchange privileges to civilian employees prior to July 8, 1980, when
DOD Directive 1330.9 -- which sets forth policies for the extension of
exchange privileges -- was promulgated, and that Respondent Brigade
therefore acted within its discretion in affording such privileges to
civilian employees at Ft. Greely since the 1950s at Ft. Greely's
request. However, the Respondents assert that DOD Directive 1330.9
superseded Army regulations (AR 60-20) which had authorized local
commanders to grant exchange privileges to civilian employees when
determined to be in the best interest of their command's mission;
removed the authority of Brigade and Ft. Greely to grant such
privileges; and limited their discretion solely to requesting
deviations through channels to Headquarters where necessary to alleviate
personal hardships. Since Brigade concluded on the basis of its study
that no personal hardships existed at Ft. Greely which would justify a
continued deviation, the Respondents assert that the privileges were
properly withdrawn.
3. The duty to bargain over the withdrawal of privileges
The Respondents further contend that the duty to bargain does not
extend to matters which are the subject of a regulation issued by an
agency (DOD) or a primary national subdivision (Headquarters) unless the
Authority has determined under section 7117(b) of the Statute that no
compelling need exists for the regulation or unless exclusive
recognition exists at the agency or primary national subdivision level.
Since neither exception applies here, the Respondents argue that there
was no duty to bargain concerning the decision to withdraw commissary
and exchange privileges but only a duty to bargain over the impact and
implementation of that decision -- an offer which the Union rejected.
B. The General Counsel
The General Counsel contends that Brigade and Ft. Greely were acting
as agents of FORSCOM and Headquarters when Brigade ordered the
withdrawal of commissary and exchange privileges from civilian employees
at Ft. Greely and Ft. Greely implemented that order. The General
Counsel maintains that these actions resulted in a unilateral change in
conditions of employment without negotiating with the Union concerning
the decision to make the change and therefore violated section
7116(a)(1) and (5) of the Statute. The General Counsel argues that
commissary and exchange privileges are conditions of employment under
section 7103(a)(14) of the Statute and past practice; that DOD
regulations do not preclude negotiations at the local level concerning
such matters; and that even if a conflict exists between DOD's
regulations and the Union's proposal to continue the practice concerning
commissary and exchange privileges, the Respondents failed to
demonstrate a compelling need for the regulations.
The General Counsel further contends that a status quo ante remedy is
appropriate to cure the Respondents' unlawful conduct in this case since
management failed and refused to meet the statutory duty to bargain over
the decision to change negotiable conditions of employment. As
requested by the General Counsel, the remedy would require restoration
of the privileges to unit employees at Ft. Greely and their
reimbursement for any monetary losses suffered as a result of the
unilateral revocation of commissary and exchange privileges.
IV. Analysis
A. The Withdrawal of Commissary and Exchange Privileges
from Uni Employees at Ft. Greely Affected their
Conditions of Employment under Section 7103(a)(14) of
the Statute
The Respondents concede, and we find, that the withdrawal of
commissary and exchange privileges from the unit employees at Ft. Greely
affected their conditions of employment within the meaning of section
7103(a)(14) of the Statute. In our recent decision, Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA No. 23 (1986), we described two basic considerations in
deciding whether a matter involves a condition of employment of
bargaining unit employees: (1) whether the matter proposed to be
bargained pertains to bargaining unit employees; and (2) the nature and
extent of the effect of the matter proposed to be bargained on working
conditions of those employees. As to the second consideration, there
must be a direct connection between the proposal and the work situation
or employment relationship of bargaining unit employees.
Applying the Antilles analysis to the matters at issue in this case,
it is clear that the first consideration is satisfied. The Union sought
negotiations on the decision to withdraw existing privileges from
employees it represents in a unit of exclusive recognition.
With respect to the second consideration, we conclude that the
General Counsel established a direct connection between the practice of
granting commissary and exchange privileges to unit employees at Ft.
Greely and their work situation or employment relationship. The
stipulated record in this case shows, as in Department of the Air Force,
Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986), which also
involved the withdrawal of similar privileges from civilian employees in
Alaska, that the privileges had been continued for a long period of time
as part of the Ft. Greely civilian workforce relationship; were
routinely used to encourage civilians to accept employment at that
geographically isolated location; and constituted one of the few
incentives to ease the extreme difficulty in filling authorized civilian
positions and to improve morale. On this basis, we conclude that the
matter of withdrawing commissary and exchange privileges from unit
employees at Ft. Greely concerns conditions of employment under section
7103(a)(14) of the Statute. See also Department of the Army, Dugway
Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986); U.S. Department of
Justice, U.S. Immigration and Naturalization Service, 14 FLRA 578
(1984).
B. Respondent Brigade Had a Duty to Bargain with the Union
Concerning the Decision to Withdraw the Privileges
It is well-established that an agency has a duty under the Statute to
negotiate with an exclusive representative of an appropriate unit of its
employees at the level of exclusive recognition concerning conditions of
employment affecting them, except as provided otherwise by Federal law,
Government-wide rule or regulation, or agency regulations for which a
compelling need exists. Headquarters, Defense Logistics Agency,
Washington, D.C., 22 FLRA No. 93 (1986); Defense Contract
Administration Services Region, Boston, Massachusetts, 15 FLRA 750
(1984). Since there is neither a bargaining relationship between the
Union and either Respondents Headquarters or FORSCOM nor evidence that
either Headquarters or FORSCOM interfered with the fulfillment of the
bargaining obligation between the Respondent Brigade and the Union, we
conclude that the complaint must be dismissed as to Respondents
Headquarters and FORSCOM. See Boston District Recruiting Command,
Boston, Massachusetts, 15 FLRA 720 (1984).
Since we have concluded that the withdrawal of commissary and
exchange privileges from unit employees at Ft. Greely concerns
conditions of employment, it follows that Respondent Brigade had a duty
to bargain over its decision to do so except as provided by Federal law,
Government-wide rule or regulation, or agency regulations for which a
compelling need exists. There is no contention that the Union's
proposal to maintain the privileges in question is inconsistent with any
Federal law or Government-wide regulation.
With respect to internal agency regulations issued at the DOD or
Headquarters level, the Respondents contend essentially that such
regulations have not delegated control over the subject matter to
management officials at the level of bargaining but have retained such
authority at higher levels of the agency. As we have previously held,
however, an agency may not foreclose bargaining on an otherwise
negotiable matter because authority has not been delegated to the level
of exclusive recognition. See, for example, the Antilles case cited
above and Overseas Education Association, Inc. and Department of
Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Union
Proposal 5), petition for review filed, Overseas Education Association
v. FLRA, No. 86-11491 (D.C. Cir. Sept. 3, 1986). Under section
7114(b)92) of the Statute, an agency is obligated to provide
representatives at the level of bargaining who are authorized to
negotiate and enter into agreements on all matters within the scope of
bargaining, and this statutory obligation cannot be obviated by an
agency's internal regulations. See the Eielson case cited above and
American Federation of Government Employees, AFL-CIO, Local 1409 and
U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 18
FLRA No. 68 (1985).
The Respondents' argument that there was no duty to bargain over
commissary and exchange privileges because such matters are the subject
of internal agency regulations and the Authority has not determined
under section 7117(b) of the Statute that no compelling need exists for
those regulations is also misplaced. As we recently held under almost
identical circumstances in Eielson, this argument is inapposite when the
basis of the agency's argument concerns the delegation of authority
rather than compelling need within the meaning of section 7117. Even
assuming that the argument were relevant, the Respondents' position is
inconsistent with established Authority precedent. In Defense Logistics
Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub
nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985),
the Authority held that compelling need determinations may appropriately
be decided in an unfair labor practice proceeding. We reaffirmed this
conclusion with further reasoning in Aberdeen Proving Ground, Department
of the Army, 21 FLRA No. 100 (1986), petition for review filed, Aberdeen
Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir.
June 26, 1986). But see United States Army Engineer Center v. FLRA, 762
F.2d 409 (4th Cir. 1985), reversing U.S. Army Engineer Center and Fort
Belvoir, 13 FLRA 707 (1984).
C. Respondent Brigade Failed to Fulfill Its Duty to
Bargain
It is undisputed that Respondent Brigade directed Ft. Greely to
withdraw commissary and exchange privileges from unit employees at Ft.
Greely and that such privileges were withdrawn on September 1, 1981.
While Respondent Brigade gave the Union prior notice of its decision to
withdraw the privileges in question, it consistently rejected the
Union's request to negotiate over that decision. Although Ft. Greely
also refused to negotiate on the basis that it lacked authority, and
actually implemented the withdrawal of privileges, we conclude that Ft.
Greely was acting in a representative capacity for Respondent Brigade
and that Ft. Greely's conduct is attributable to Respondent Brigade.
See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA
720, 724 (1984). Accordingly, we shall dismiss the complaint as to
Respondent Ft. Greely but conclude that Respondent Brigade violated
section 7116(a)(1) and (5) of the Statute by unilaterally changing
negotiable conditions of employment as alleged in the complaint.
V. Remedy
The Authority has previously determined that where management has
made a unilateral change in a negotiable term and condition of
employment, effectuation of the purposes and policies of the Statute
requires imposition of status quo ante remedies, absent special
circumstances, in order not to render meaningless the mutual obligation
to negotiate. Veterans Administration, West Los Angeles Medical Center,
Los Angeles, California, 23 FLRA No. 37 (1986) (n.3 and accompanying
text). As the Respondents have neither alleged nor established that
special circumstances exist so as to negate the immposition of such a
remedy in this case, we conclude that a status quo ante remedy is
warranted. Accordingly, Respondent Brigade shall be ordered to
reinstate the commissary and exchange privileges for civilian employees
at Ft. Greely which existed prior to their withdrawal on September 1,
1981.
This remedy is consistent with our remedial order in Eielson, which
involved virtually identical circumstances. While the General Counsel
did not request a "make whole" remedy in Eielson as requested here, we
conclude that such a "make whole" order requiring Respondent Brigade to
reimburse unit employees at Ft. Greely for monetary losses they may have
suffered as a result of the withdrawal of privileges is speculative in
nature and therefore inappropriate. Accordingly, since it would not
effectuate the purposes and policies of the Statute, the requested "make
whole" order is denied.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Army, 172d Infantry Brigade
(Alaska), Fort Richardson, Alaska shall:
1. Cease and desist from:
(a) Unilaterally changing established conditions of employment at Ft.
Greely by terminating the commissary and exchange privileges for
civilian employees not residing on the installation.
(b) 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:
(a) Reinstate the commissary and exchange privileges for those
civilian employees at Ft. Greely not residing on the installation which
existed immediately prior to September 1981.
(b) Notify and, upon request, negotiate with the American Federation
of Government Employees, Local 1949, AFL-CIO, the exclusive
representative of the employees at Ft. Greely, concerning any proposed
change in commissary and exchange privileges or any other proposed
change in their established conditions of employment.
(c) Post at Ft. Greely 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 Brigade Commander and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places at each office where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 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.
IT IS FURTHER ORDERED that the complaint in Case No. 9-CA-1204,
insofar as it alleges a violation of section 7116(a)(1) and (5) of the
Statute by Respondent Department of the Army Headquarters, U.S. Army
Forces Command, Fort McPherson, Georgia, and Department of the Army, The
Pentagon, Washington, D.C., be, and it hereby is, dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change established conditions of employment
at Ft. Greely by terminating the commissary and exchange privileges for
civilian employees not residing on the installation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL reinstate the commissary and exchange privileges for those
civilian employees at Ft. Greely not residing on the installation which
existed immediately prior to September 1981.
WE WILL notify and, upon request, negotiate with the American
Federation of Government Employees, Local 1949, AFL-CIO, the exclusive
representative of the employees at Ft. Greely, concerning any proposed
change in commissary and exchange privileges or any other proposed
change in their established conditions of employment.
(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 for Region IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, CA 94103-9991, and
whose telephone number is: (415) 995-5000.
23 FLRA NO. 104
HHS, SSA, Dallas Region, Dallas Tex. and AFGE, National Council of
SSA Field Operations Locals, Case No. 6-CA-785; HHS, SSA, McAllen
District Office, McAllen, Tex. and AFGE, Local 3388, Case No. 6-CA-1034;
HHS, SSA, District Office, El Paso, Tex. and AFGE, Local 2991, Case
Nos. 6-CA-1053, 1053-1, 1054 and 1055 (Oct. 31, 1986)
STATUTE
7114(a)(2)(A)
7114(b)(4)
7116(a)(1), (5) and (8)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations (Alleged)
Refusal to Negotiate
Bypassing Union
Failing to Elevate Negotiates to the National Level
Instructing a Lower Agency Level to Implement a Plan
Otherwise Refuse to Comply with the Statute
7114(a)(2)(A) and 7114(b)(4)
Formal Discussions
Information
Remedy
Bargaining Order
Parties May Agree to Retroactive Application of Agreement
Remedial Notice -- Posting Region-wide
Status Quo Ante -- Not Warranted
Congressional Time Mandate
Mandate of Civil Service Reform Act (1978)
DIGEST NOTES
The agency's regional office did not violate section 7116(a)(1) and
(5) by failing to elevate negotiations concerning the promulgation and
implementation of a "Personnel Guide for Supervisors" (PGS). Although
the parties did not execute a formal agreement concerning their
alternative bargaining arrangements, they had other arrangements for
bargaining below the level of exclusive recognitions. The Union's
national council delegated bargaining authority to subordinate officials
and the delegation of authority was communicated to the agency's
officials with the intent they should be effective.
The agency's regional office violated section 7116(a)(1) and (5) by
instructing its sub-regional offices to implement the provisions of its
new "Personnel Guide for Supervisors" (PGS) without bargaining with the
exclusive representative. The PGS provided a framework under which
management officials of sub-offices would establish performance goals
for employees, provide measures for documentation employee performance,
and provide counselling to employees regarding their performance. The
implementation of the PGS constituted a substantial change in conditions
of employment.
Sub-regional offices did not violate sections 7116(a)(1) and (5) by
refusing to bargain over the implementation of provisions in the
"Personnel Guide for Supervisors" (PGS) which resulted in substantial
changes in conditions of employment. The sub-regional offices were
merely conduits in carrying out instructions from their regional office.
The regional offices violated the Statute for refusing to negotiating
over the implementation of the changes. Accordingly the Authority held
that it would not effectuate the purposes and policies of the Statute to
find a separate additional violation based upon the actions of officials
in the sub-regional offices.
Sub-regional offices bypassed the exclusive representative in
violation of section 7116(a)(1) and (5) by meeting with their employees
individually and in groups, for the purpose of receiving the employees'
input and soliciting employee suggestions on the preparation of plans to
implement the provisions of a new "Personnel Guide for Supervisors".
The new plans represented a substantial change in conditions of
employment. Although this conduct by the management officials of the
sub-regional offices was the result of the instructions received from
its regional office, no bypass violation was alleged against the
regional office. Accordingly, the sub-regional management must bear the
responsibility for this action.
A district officed conducted formal discussions with its employees
without affording the union an opportunity to be present in violation of
section 7114(a)(2)(A) and 7116(a)(1) and (8). Neither was the union
notified in advance of the meetings nor was a representative actually
present at the meetings.
Information requested by the union was not "necessary" for collective
bargaining purposes so as to give rise to an agency responsibility to
provide the information under section 7116(b)(4). The data sought by
the union consisted of drafts of proposed plans formulated by the
district office and sent to the area director for review. The drafts
were not final until the review. The local union president advised the
the district director that the local would not take a position as to the
acceptability of any plan, until the area director had acted on the
drafts sent to him. The local could learn nothing significant about the
impact on conditions of employment from the draft plans. What a lower
level of management felt about the proposed plans before they were
reviewed by the area director would have little practicable value to the
local union and, thus, were not "necessary" to collective bargaining.
A status quo ante remedy is neither necessary nor appropriate that
would require the withdrawal of accountability plans and the destruction
of certain documentation that resulted from employing those plans. The
plans and subsequent actions were the result of the implementation of
provisions of a new "Personnel Guide for Supervisors" (PGS) that was
formulated pursuant to the Civil Service Reform Act of 1978 and which
had a Congressional time mandate for implementation. Although the
regional office of the agency failed to negotiate over the impact and
implementation of the PGS, in violation of section 7116(a)(1) and (5), a
prospective bargaining order is more appropriate under circumstances
where potential disruption to an agency's operations is substantial.
A region-wide posting of the remedial notice is appropriate in
circumstances where the regional office ordered all its subordinate
officeds not to bargain with the union although only certain subordinate
offices were actually named in the complaint and found to have violated
the Statute.
Case No. 6-CA-785
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, DALLAS REGION, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
COUNCIL OF SOCIAL SECURITY ADMINISTRATION-FIELD OPERATIONS LOCALS
Charging Party
Case No. 6-CA-1034
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, McALLEN DISTRICT OFFICE, McALLEN, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3388, AFL-CIO
Charging Party
Case Nos. 6-CA-1053, 6-CA-1053-1, 6-CA-1054, 6-CA-1055
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, EL PASO DISTRICT OFFICE, EL PASO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2991, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Cases
This consolidated proceeding is before the Authority on exceptions
filed by the Respondents and the General Counsel to the attached
Decision of the Administrative Law Judge. The issues in this proceeding
involve the promulgation of a "Personnel Guide for Supervisors" (PGS) by
the Dallas Region of the Social Security Administration, Department of
Health and Human Services, the Respondent in Case No. 6-CA-785. It was
alleged in that case that the Dallas Region violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by promulgating the PGS without affording the exclusive
representative of its employees an appropriate opportunity to bargain
concerning its contents. It is alleged in Case No. 6-CA-1034 and Case
Nos. 6-CA-1053 -- 1055, respectively, that the McAllen District Office
and El Paso District Office violated various provisions of the Statute,
set forth below, by their conduct in implementing the PGS upon its
receipt from the Dallas Region.
II. Background
The exclusive representative, American Federation of Government
Employees, AFL-CIO, National Council of Social Security
Administration-Field Operations Locals (AFGE National Council),
represents a nationwide consolidated unit of nonprofessional employees
of the Social Security Administration in Field Operations. The unit
encompasses employees in offices of the Dallas Region, including
employees at the McAllen and El Paso District Offices. The AFGE
National Council represents employees in the unit at the national level.
For more localized matters, it provides for representation through
Regional Vice Presidents and local union affiliates; for example, at
the McAllen District Office by American Federation of Government
Employees, Local 3388, AFL-CIO, and at the El Paso District Office by
American Federation of Government Employees, Local 2991, AFL-CIO.
In 1980 the Dallas Region promulgated the PGS. It was intended to
provide a framework under which management officials of sub-offices of
the Dallas Region would establish performance goals for employees,
provide measures for documenting employee performance, and provide
counselling to employees regarding their performance. The PGS was
prepared by collecting and consolidating various policies which at least
in substantial part had existed in written form in certain other guides,
manuals and directives.
The PGS was forwarded to sub-offices for action, including the
Region's McAllen and El Paso District Offices. Upon receipt of the PGS,
the management officials in the sub-offices were to consult with their
employees and prepare employee performance goals and employee
performance accountability plans using quantitative measures based on
the character of the work performed in their offices and the work
actually performed by employees in their official positions. These
actions were taken by the McAllen and El Paso District Offices, and the
McAllen District Office reached the point of forwarding its draft plans
to the Dallas Region for review and comment and having the plans
returned for further action.
III. Case No. 6-CA-785 (Dallas Regional Office)
A. The Judge's Findings and Conclusions
The Judge found that the Dallas Region had provided advance notice of
the PGS and an opportunity to negotiate concerning its contents to the
AFGE National Council Vice President for the Dallas Region. In response
to the contention that the PGS should have been elevated to the national
level for negotiations at that level, the Judge noted that bargaining at
the national level is necessary where exclusive recognition is at that
level, but that the parties at the level of exclusive recognition may
agree to authorize bargaining below that level as they deem appropriate.
She found that the parties herein had provided for arrangements under
which changes in conditions of employment which were initiated below the
national level and which were confined to subordinate organizational
levels, for example, at the Regional level, would be subject to
bargaining at that level and that the actions taken by the Dallas Region
were in conformance with these arrangements. She concluded,
accordingly, that the Dallas Region did not violate section 7116(a)(1)
and (5) of the Statute by failing to elevate negotiations concerning its
PGS to the national level.
The Judge also concluded that the implementation of the PGS by
management officials of the Dallas Region's sub-offices was a
substantial change in working conditions that had a reasonably
foreseeable adverse effect on the employees in those offices. She found
that the implementation constituted a change in conditions of employment
of unit employees giving rise to a duty to negotiate as to the impact
and implementation of the change. She concluded that the Dallas Region
violated section 7116(a)(1) and (5) of the Statute by instructing the
McAllen and El Paso District Offices to implement the PGS without
bargaining with the exclusive representative of their respective
employees.
B. The Positions of the Parties
The Respondents excepted to the Judge's finding that the Dallas
Region unlawfully refused to bargain over the impact and implementation
of the PGS by instructing its District Offices not to bargain. They
further excepted to her finding that there was a duty to bargain at the
District Office level (here McAllen and El Paso). The Respondents argued
that the only duty was at the Regional Office level, and that the duty
was met at that level. They further argue that, as the Judge found that
the Dallas Regional Office was justified in refusing to elevate
negotiations by the Union, none of the violations alleged against the
Dallas Region can be found.
The General Counsel excepted to the Judge's failure to find that the
Dallas Region unlawfully refused to elevate negotiations to the national
level. It argues that the nature of the matter was appropriate for
bargaining only at the national level and that the Union had never
agreed to bargain on this specific matter at the Regional level.
C. Analysis
First, the Authority agrees with the Judge that the Dallas Region did
not violate the Statute by failing to elevate negotiations concerning
its PGS to the national level. The Authority notes that although the
record does not show that the parties executed a formal agreement
concerning their alternative bargaining arrangements, it does show that
these other arrangements for bargaining below the level of exclusive
recognition arose out of delegations of authority from the AFGE National
Council to its subordinate officials; that the delegations were
communicated to the Respondents' officials with thed intent that they
should be effective; that the arrangements were in conformance with and
extensions of the parties' previously existing practices; and that the
parties' respective representatives at the Regional level understood
that these arrangements were in place at the time that the Dallas Region
promulgated its PGS. It has not been alleged or shown that the Dallas
Region misunderstood or acted contrary to these arrangements. We find
no merit in the AFGE National Council's contention that the Dallas
Region's PGS should only have been negotiated at the national level;
its contention was based only on the view that negotiations at the
national level regarding a nationwide contract would result in
agreements which might require subsequent revisions in the actions of
the Dallas Region.
The Authority also agrees with the Judge that the implementation of
the PGS was a substantial change in the daily operations of the Dallas
Region's sub-offices that had a reasonably foreseeable adverse effect on
the employees in those offices. We note that there were no exceptions
to this finding of the Judge. We thus concur in the Judge's conclusion
that the implementation constituted a change in conditions of employment
of unit employees that gave rise to a duty to bargain as to the impact
and implementation of the change, and that the Dallas Region violated
section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
El Paso District Offices to implement the PGS without bargaining with
the exclusive representative.
IV. Case No. 6-CA-1034 (McAllen District Office) and Case
Nos. 6-CA-1053 -- 1055 (El Paso District Office)
A. The Judge's Findings and Conclusions
The complaints in these cases alleged that:
(1) the McAllen and El Paso District Offices, as well as the Dallas
Region, violated section 7116(a)(1) and (5) of the Statute by unlawfully
refusing to bargain with the exclusive representive of its respective
employees;
(2) both the McAllen and the El Paso District Offices also violated
section 7116(a)(1) and (5) of the Statute by dealing directly with
employees and thus unlawfully "bypassing" the exclusive representative
of its respective employees;
(3) the El Paso District Office further violated section 7116(a)(1)
and (5) by breaching its negotiated agreement requiring the negotiation
of changes in working conditions;
(4) the McAllen District Office violated section 7114(a)(2)(A) and
thereby section 7116(a)(1) and (8) of the Statute by holding "formal
discussions" with its employees without affording Local 3388 the
opportunity to be present; and
(5) the El Paso District Office violated section 7114(b)(4) and
thereby section 7116(a)(1) and (8) of the Statute by refusing to supply
Local 2991 with certain requested information.
The Judge found that:
(1) both the McAllen and El Paso District Offices followed the
instructions of the Dallas Region, in fact refused to bargain with the
exclusive representatives of their respective employees, and thus
violated the Statute;
(2) both the McAllen and El Paso District Offices also violated the
Statute by dealing directly with, and thereby unlawfully bypassing the
exclusive representative of, their respective employees;
(3) resolution of the issue concerning the alleged breach of the
collective bargaining agreement by the El Paso District Office was
unnecessary, as it would add nothing to the decision of the recommended
remedy;
(4) the McAllen District Office held formal discussions with its
employees without affording Local 3388 the opportunity to be present and
thereby violated the Statute; and
(5) the El Paso District Office did not violate the Statute by
refusing to supply certain requested information because it was not
shown that the information was "necessary" or that it was "normally
maintained" within the meaning of the Statute.
B. The Positions of the Parties
The Respondents' position, as set forth above, is that the only duty
to bargain was at the Regional Office level and that therefore no
failure of a duty to bargain can be found against the McAllen or El Paso
District Offices. The General Counsel agrees with the violations the
Judge found, but excepts to her failure to find that the El Paso
District Office unlawfully refused to furnish requested information. In
this regard, the General Counsel excepts to the rationale the Judge used
in determining that the information was not necessary, and to the
Judge's use of the standard that the information must have been
"normally maintained."
C. Analysis
While we agree with the Judge, as found above, that the Dallas Region
violated the Statute by instructing its McAllen and El Paso District
Offices not to bargain, we do not agree that those offices also violated
the Statute by refusing to bargain. The McAllen and El Paso offices
were acting only as conduits in carrying out the instructions of the
Dallas Region. In these circumstances, it would not effectuate the
purposes and policies of the Statute to find a separate violation based
upon the actions of officials in those District Offices. See, for
example, Department of Health and Services, Washington, DC, and
Department of Health and Human Services, Region 7, Kansas City,
Missouri, 16 FLRA 288 (1984) and cases cited therein. Thus, the
allegations against the McAllen and El Paso District Offices in this
regard in Case Nos. 6-CA-1034 and 6-CA-1053 -- 6-Ca-1055 shall be
dismissed.
With regard to the allegations that the management officials at
McAllen and El Paso bypassed the exclusive representative, the Dallas
Region instructed these officials to implement the PGS without
bargaining with the exclusive representative and to implement the PGS
after consulting with employees regarding the employees' own
accountability plans. The McAllen and El Paso management officials
followed these instructions by meeting with their employees,
individually and in groups, for the purpose and effect of receiving the
employees' input and soliciting employee suggestions on the prreparation
of the plans. Upon these findings, the Authority concludes that the
McAllen District Office and the El Paso District Office engaged in
conduct which bypassed the exclusive representative in violation of
section 7116(a)(1) and (5). See Department of Transportation, Federal
Aviation Administration, Los Angeles, California, 15 FLRA 100 (1984);
Social Security Administration, Baltimore, Maryland, 9 FLRA 909, 911
(1982). Although this conduct by the management officials at McAllen
and El Paso was the result of the instructions received from the Dallas
Region, no bypass violation was alleged against the Dallas Region.
Accordingly, McAllen and El Paso management must bear the responsibility
for this action. See United States Department of the Treasury, Internal
Revenue Service and Internal Revenue Service, Austin District, and
Internal Revenue Service, Houston District, 23 FLRA No. 100 (1986).
As to the third allegation that the El Paso District Office further
violated the Statute by breaching its negotiated agreement, we agree
with the Judge's conclusion that it is unnecessary to reach this issue.
The Judged made no separate findings in this regard, and there were no
exceptions to this portion of the Judge's decision.
Regarding the allegation that the McAllen District Office conducted
formal discussions with employees in conflict with section 7114(a)(2)(A)
of the Statute and thereby violated section 7116(a)(1) and (8), the
Authority has concluded, in Veterans Administration, Veterans
Administration Medical Center, Muskogeel, Oklahoma, 19 FLRA No. 122
(1985), that actual representation by an exclusive representative at a
formal discussion is sufficient to demonstrate compliance with the
statutory requirement that an exclusive representative "be given the
opportunity to be represented." The Authority further stated that:
"Neither section 7114((a)(2)(A) nor its legislative history supports a
conclusion that Congress intended that a union representative must be
given notification of a formal discussion in advance, specifically in
his or her capacity as a union official." However, based on the Judge's
findings that the exclusive representative did not receive notice which
would apprise it of when the meetings would occur and that the exclusive
representative was not in fact represented at these meetings, we
conclude that the McAllen District Officew did not provide the exclusive
representative with "the opportunity to be represented at" these
meetings. By such conduct the McAllen District Office acted contrary to
section 7114(a)(2)(A) and thereby violated section 7116(a)(1) and (8) of
the Statute. Since it has not been shown that the instructions of the
Dallas Region mandated this conduct, the McAllen District Office bears
the sole responsibility for this violation. See, for example, Kansas
Army National Guard and National Guard Bureau, 10 FLRA 303 (1982).
With regard to the additional allegation that the El Paso District
Office failed and refused to provide information to the exclusive
representative as required under section 7114(a)(2)(A), the Authority
concurs with the Judge's reasoning and conclusion that this allegation
should be dismissed on the basis that the information so requested was
not "necessary" for collective bargaining so as to give rise to the
Respondent's duty to furnish the information. In view of this
conclusion, we find it unnecessary to pass upon the Judge's additional
reasoning that the information was not the type of data "normally
maintained in the regular course of business."
V. Conclusions
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision, the positions of the parties and the entire record,
and adopts the Judge's findings, conclusions and recommended Order to
the extent consistent with this decision.
We conclude that the Respondent Dallas Regional Office violated
section 7116(a)(1) and (5) of the Statute by instructing the McAllen and
El Paso District Offices to implement the PGS without bargaining with
the exclusive representative of their respective employees. We also
conclude that the McAllen and El Paso District Offices violated section
7116(a)(1) and (5) of the Statute by dealing directly with employees and
thus unlawfully bypassing the exclusive representative of their
respective employees. We further conclude that the McAllen District
Office violated section 7114(a)(2)(A) and thereby violated section
7116(a)(1) and (8)l of the Statute by conducting formal discussions with
its employees without affording its exclusive representative the
opportunity to be represented at those discussions.
VI. Remedy
The Judge, among other things, ordered the withdrawal of
accountability plans and the destruction of certain documentation that
resulted from employing those plans; that is, a status quo ante order.
In our view, such a remedy is not warranted here. We have balanced the
nature and circumstances of the violations against the degree of
disruption in Government operations that would be caused by such a
remedy, and have taken into consideration the various factors set forth
in Federal Correctional Institution, 8 FLRA 604(1982) in making this
determination.
The accountability plans here were formulated pursuant to the PGS.
There is no question that management had a right to issue the PGS, which
was formulated pursuant to the mandate of the Civil Service Reform Act
(1978) to all agencies to develop specific critical elements and
performance standards. Moreover, a Congressional time mandate was
involved. As the Judge found, the Union was on notice of the agency's
intended actions, although it was not given an opportunity to negotiate
over the impact and implementation of those actions. We also note, as
indicated above, that a status quo ante remedy involving the withdrawal
of accountability plans or the destruction of documentation that
resulted from employing those plans would seriously disrupt the
efficiency of the agency's operations.
In these circumstances, we find that a status quo ante remedy is
neither required nor necessary in order to effectuate the purposes and
policies of the Statute. An appropriate remedy for the violations which
we find in these cases can be obtained by requiring the Dallas Region to
instruct its McAllen and El Paso District Offices to bargain (1) on the
manner in which employees will participate in the preparation of
employee accountability plans required by the Personnel Guide for
Supervisors, (2) on the implementation of those accountability plans,
and (3) on the procedures and appropriate arrangements for employees
whose performance appraisals have been adversely affected by such
accountability plans.
Furthermore, as we have stated in issuing prospective bargaining
orders and rejecting contentions that a status quo ante remedy should be
granted under circumstances where the potential disruption to an
agency's operations was substantial:
A prospective bargaining order is neither inadequate nor
inherently restrictive of the parties' right to address the
effects on unit employees of changes already made . . . . Rather,
it allows the parties the flexibility to bargain freely with
regard to how past actions may have affected any given employee.
Bargaining which explores such effects may itself reveal
situations that call for retroactive remedial action, about which
the parties are free to agree.
Environmental Protection Agency, 21 FLRA No. 98 (1986), slip op. at
3-4, quoted in Federal Aviation Administration, 23 FLRA No. 28 (1986),
slip op. at 10.
Based on the foregoing, we find that it is neither necessary nor
appropriate for us to order adversely affected employees to be made
whole, although that may be the result of the parties' bargaining which
we are ordering. We shall also issue appropriate orders to remedy the
bypass and formal discussions violations by the McAllen and El Paso
District Offices.
We find merit in the General Counsel's exceptions to the limited
scope of the posting ordered by the Judge. The Dallas Region ordered
all its subordinate offices not to bargain with AFGE. We therefore find
it appropriate and shall order that the Notice to be signed by the
Dallas Region be posted at the Regional Office and at all subordinate
offices throughout the Region, including the McAllen and El Paso
District Offices.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that:
A. The Department of Health and Human Services, Social Security
Administration, Dallas Region, Dallas, Texas, shall:
1. Cease and desist from:
(a) Directing its subordinate offices which are represented by the
American Federation of Government Employees, AFL-CIO, National Council
of Social Security Administration-Field Operations Locals (AFGE), the
exclusive representative of its employees, not to bargain with AFGE over
the employee accountability plans formulated by these offices, pursuant
to the Personnel Guide for Supervisors distributed by the Dallas Region
in September 1980.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
AFL-CIO, National Council of Social Security Administration-Field
Operations Locals (AFGE), the exclusive representative of its employees,
instruct the McAllen District Office and the El Paso District Officed to
bargain with the exclusive representative on the manner in which
employees will participate in the preparation of employee accountability
plans required by the Personnel Guide for Supervisors issued by the
Dallas Region in September 1980, on the implementation of those
accountability plans, and on the procedures and appropriate arrangements
for employees whose performance appraisals have been adversely affected
by accountability plans formulated without employee participation
established through negotiations with AFGE.
(b) Upon the request of the exclusive representative, instruct the
McAllen District Office and the El Paso District Office to give notice
to AFGE Locals 3388 and 2991, respectively as appropriate, of any future
employee accountability plans proposed for implementtion, and extend to
the appropriate Local an opportunity to engage in appropriate bargaining
prior to implementing such plans.
(c) Post at the Dallas Regional Office and provide for posting at all
subordinate offices of the Dallas Region where the employees are
represented by AFGE, copies of the attached Notice to be furnished by
the Federal Labor Relations Authority. Copies of said Notice shall be
signed by the Regional Commissioner for the Dallas Region, 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, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
B. The Department of Health and Human Services, Social Security
Administration, McAllen District Office, McAllen, Texas, shall:
1. Cease and desist from:
(a) Failing to afford representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, appropriate notification of
and an opportunity to be represented at any formal discussion between
one or more representatives of this Office and one or more employees in
the exclusive representative's unit at this Office concerning personnel
policies and practices and other general conditions of employment.
(b) Bypassing representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, by dealing directly with unit
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Provide the American Federation of Government Employees, Local
3388, AFL-CIO, with appropriate notification of and an opportunity to be
represented at any formal discussion between one or more representatives
of this Office and one or more employees in the exclusive
representative's unit at this Office concerning personnel policies and
practices or other general conditions of employment.
(b) Post at the McAllen District Office, copies of the attached
Notice to be furnished by the Federal Labor Relations Authority. Copies
of said Notice shall be signed by the District Manager, 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 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 herewith.
C. The Department of Health and Human Services, Social Security
Administration, El Paso District Office, El Paso, Texas, shall:
1. Cease and desist from:
(a) Bypassing representatives of the American Federation of
Government Employees, Local 2991, AFL-CIO, by dealing directly with unit
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at the El Paso District Office, copies of the attached
Notice to be furnished by the Federal Labor Relations Authority. Copies
of said Notice shall be signed by the District Manager, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations in the
complaints concerning the McAllen District Office and the El Paso
District Office of the Department of Health and Human Services, Social
Security Administration, in Case Nos. 6-CA-1034, 6-CA-1053, 6-CA-1053-1,
6-CA-1054 and 6-CA-1055 be, and they hereby are, dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT direct our subordinate offices of the Dallas Region which
are represented by the American Federation of Government Employees,
AFL-CIO, National Council of Social Security Administration-Field
Operations Locals (AFGE), the exclusive representative of our employees,
not to bargain with AFGE over the employee accountability plans
formulated by these offices, pursuant to the Personnel Guide for
Supervisors distributed in September 1980.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercisze of their rights assured by the
Federal Service Labor-Management Relations Statute. WE WILL, upon
request of AFGE, instruct the McAllen District Office and the El Paso
District Office to bargain with the exclusive representative on the
manner in which employees will participate in the preparation of
employee accountability plans required by the Personnel Guide for
Supervisors distributed in September 1980, on the implementation of
those accountability plans, and on the procedures and appropriate
arrangements for employees whose performance appraisals have been
adversely affected by accountability plans formulated without employee
participation established through negotiations with AFGE.
WE WILL, upon request of AFGE, instruct the McAllen District Office
and the El Paso District Office to give notice to AFGE Locals 3388 and
2991, respectively as appropriate, of any future employee accountability
plans proposed for implementation, and extend to the appropriate Local
an opportunity to engage in appropriate bargaining prior to implementing
such plans.
Social Security Administration,
Dallas Region
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, Region VI, Federal Labor Relations Authority, 525
Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
number is: (214) 767-4996.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to afford representatives of the American Federation
of Government Employees, Local 3388, AFL-CIO, appropriate notification
of and an opportunity to be represented at any formal discussion between
one or more representatives of this Office and one or more employees in
the exclusive representative's unit at this Office concerning personnel
policies and practices and other general conditions of employment.
WE WILL NOT bypass representatives of the American Federation of
Government Employees, Local 3388, AFL-CIO, by dealing directly with our
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
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 provide the American Federation of Government Employees,
Local 3388, AFL-CIO, with appropriate notification of and an opportunity
to be represented at any formal discussion between one or more
representatives of this Office and one or more employees in the
exclusive representative's unit at this Office concerning personnel
policies and practices or other general conditions of employment.
Social Security Administration,
McAllen District Office
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, Region VI, Federal Labor Relations Authority, 525
Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone
number is: (214) 767-4996.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT bypass representatives of the American Federation of
Government Employees, Local 2991, AFL-CIO, by dealing directly with our
employees regarding the development and implementation of accountability
plans pursuant to the Personnel Guide for Supervisors distributed by the
Dallas Region in September 1980.
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.
Social Security Administration,
El Paso District Office
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, 525 Griffin
Street, Suite 926, Dallas, Texas 75202, and whose telephone number is:
(214) 767-4996.
Case No. 6-CA-785
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, DALLAS REGION, DALLAS, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO NATIONAL COUNCIL
OF SOCIAL SECURITY ADMINISTRATION-FIELD OPERATIONS LOCALS,
Charging Party
Case No. 6-CA-1034
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, McALLEN DISTRICT OFFICE, McALLEN, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3388, AFL-CIO,
Charging Party
Case Nos. 6-CA-1053, 6-CA-1053-1, 6-CA-1054, 6-CA-1055
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, EL PASO DISTRICT OFFICE, EL PASO, TEXAS,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2991, AFL-CIO
Charging Party
Wilson G. Schuerholz,
For the Respondents
Elizabeth A. Martinez and
James E. Dumerer,
Attorneys for the General Counsel Federal Labor Relations
Authoritiy
Sylvester Overturf,
For the Charging Party
Before: ISABELLE R. CAPPELLO,
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. Section 7101 et seq.
(Supp. III, 1979) (hereinafter referred to as the "Statute") and the
Rules and Regulations of the Federal Labor Relations Authority
(hereinafter, the "Authority"), 5 CFR Ch. XIV, Section 2410 et seq.
Complaints involving three Texas offices of the Social Security
Administration were issued on June 25, 1981 (Case Nos. 6-CA-1053,
1053-1, 1054, and 1055), on May 27, 1981 (Case No. 6-CA-1034), and on
July 27, 1981 (Case No. 6-CA-785). An Order dated August 26, 1981,
consolidated these cases for hearing.
The hearing was held on September 22 and 23, 1981, in Dallas, Texas.
The parties appeared, adduced evidence, and examined and cross-examined
witnesses. Briefs were submitted on November 9, on behalf of the
Respondents, and on November 13, on behalf of the General Counsel.
Based upon the record made by the parties, my observation of the
demeanor of the witnesses, and the briefs, I make the following findings
of fact, conclusions of law, and recommended orders.
Issues
All the issues raised in these cases concern employee accountability
plans whichs the Dallas Regional Office of the Social Security
Administration (hereinafter "SSA") ordered formulated by and implemented
in the district offices of the Dallas Region. Two district offices, at
El Paso and McAllen, are the respondents in two of the complaints. The
Dallas Regional Office is the respondent in the third complaint.
Each complaint alleges violations of Sections 7116(a)(1) and (5) of
the Statute, in that respondents refused to bargain over the impact and
implementation of the plans and subsequently implemented them,
unilaterally.
In Case No. 6-CA-1034, concerning the McAllen office, it is alleged
that respondent conducted a Section 7114(a)(2)(A) "formal meeting",
without affording Local 3388 of the American Federation of Government
Employees ("AFGE") an opportunity to be present, thereby violating
Sections 7116(a)(1) and (8) of the Statute.
In Case Nos. 6-CA-1053, 1053-1, 1054 and 1055, concerning the El Paso
office, it is alleged that respondent refuses to turn over draft
proposals for accountability standards, that the drafts constitute
necessary and relevant information requested by Local 2991 pursuant to
Sections 7114(b)(4) of the Statute, and that, therefore, respondent is
violating Sections 7116(a)(1) and (8) of the Statute.
Also, at the El Paso Office, it is alleged that respondent breached a
collective bargaining agreement requiring consultation and/or
negotiations of changes in working conditions, in violation of Sections
7116(a)(1) and (5).
At both the El Paso and McAllen Offices there is also an allegation
that respondents bargained directly with employees in violation of
Sections 7116(a)(1) and (5).
Statutory Provisions Involved
Section 7114(a)(2) provides, in pertinent part, that:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at --
(A) Any formal discussion between one or more
representatives of the
agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment . . . .
Section 7114(b)(4) provides, in pertinent part, that:
The duty of an agency and an exclusive representative to
negotiate in good faith under subsections (a) of this section
shall include the obligation -- . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel or
training provided for management officials or supervisors,
relating to collective bargaining.
Section 7116(a) provides, in pertinent part, that:
For the purpose of this chapter, it shall be an unfair labor
practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Findings of Fact
1. Since August 30, 1979, AFGE has been the exclusive representative
for a nationwide consolidated unit of employees of SSA. Employees of
SSA are employed in one central office and in five other components.
One of the five components is Field Operations, and is the one here
involved. SSA manages its field operations through ten regional
offices. The regional offices manage numerous district offices, through
area directors.
2. On October 10, 1979, AFGE gave the following explanation to AFGE
locals on how consolidation would change bargaining obligations:
As a practical matter all local changes will be dealt with
locally by the union organization which historically held that
responsibility. Technically the new level of recognition would
require that the Commissioner of Social Security bargain with AFGE
National President Blaylock anytime a district manager wanted to
change something. But both parties have agreed that an effective
LMR program requires that they delegate responsibilities to those
in a position to know, to those who are most affected and have
historically held the responsibility.
(JtEx-20.2) /1/
3. On October 18 and December 31, 1979, AFGE and SSA exchanged
designations of responsibilities to sub-level representatives.
3a. On October 18, the National President of AFGE, Kenneth T.
Blaylock, sent a letter to the Commissioner of SSA in which he outlined
delegations of authority to administer the nationwide consolidated unit.
AFGE established a general committee composed of a Central-Office local
and five National Councils. The National Councils correspond to the
five components of SSA.
3b. Each member of the AFGE general committee has a president. The
chief spokesperson of the committee is delegated the authority to deal
directly with the Commissioner of SSA, or his designee, "on all matters
which are national in scope and appropriate under the Civil Service
Reform Act ('CSRA')." (JtEx-19.2) The six presidents on the committee
are delegated the authority to deal directly with the heads of their
respective components on matters which affect their components. The
component presidents may further delegate authority for those matters
which are local or regional.
3c. On December 31, the Commissioner of SSA replied to Mr. Blaylock.
Management counterparts were designated. The Commissioner agreed that
issues should be resolved "at the local level whenever possible," but
took exception to some views of AFGE on bargaining levels. See JtEx-23.
Att. A.
4. Other evidence pertaining to the understanding of the parties as
to the appropriate bargaining level includes the following.
4a. On October 21, 1979, the Executive Vice President of the AFGE
National Council of SSA Field Operations sent a letter to the
Commissioner of SSA to "clarify" delegations of authority in respect to
field offices. (JtEx-21.1) The letter advised that there would be ten
Regional Vice-Presidents "who shall serve as the chief representative of
the Council for Region which he or she represents." (JtEx-21.1), and
that "the Regional Vice Presidents must be timely and properly notified
of changes in policies and practices which may be bargainable."
(JtEx-21.2)
4b. The letter also advised that presidents of locals which had
historically held recognition were all Council representatives and
should be notified of changes proposed at the local level and given the
opportunity to "meet and confer" about the proposals. (JtEx-21.2)
4c. The letter also advised that: "Generally, whenever an issue or
matter of LMR (labor-management relations) involves more than one Local
of an SSA region, the authority for LMR shall rise to the Regional Vice
President of the National Council to act on behalf of the affected
Locals of the region." (JtEx-21.3)
4d. Finally, the letter advised "concerning the nature of the
authority that we have delegated to our Regional Vice Presidents and to
the Local Presidents," that "(a)s representatives of this Council, they
shall obtain all rights to this union under law, in particular the right
to enforce these rights by complaint of Unfair Labor Practice and the
right to bargain on conditions of employment." (JtEx-21.3)
4e. The Regional Vice President of the Dallas Region, Sylvester
Overturf, testified to the understganding of AFGE on delegations of
authority. He testified that regional vice presidents are "to bargain
on issues that d(o not) affect anything above the regional level." (TR.
88)
4f. The labor relations officer of the Dallas Region, Kenneth K.
King, testified to the understanding of SSA as to appropriate bargaining
levels. It is as follows:
My understanding always was that whatever level initiated it --
if the national level initiated it, the national level had the
duty to bargain with the national component of AFGE. If the
regional level initiated it, the regional level had the duty to
give advance notice and negotiate as appropriate with the regional
head of AFGE, who is Mr. Overturf over here. If the change takes
place on the district level, it would be the responsibility of the
district manager to give the District Union president or head of
the Union advance notice and to negotiate as appropriate.
(TR 256)
5. Effective December 5, 1979, John Harris was appointed to the
position of President of the National Council of Field Operations, and
Sylvester Overturf to that of Regional Vice President of the Dallas
Region of SSA. Martha McSteen is the Regional Commissioner of the
Dallas Region, and Mr. Overturf's counterpart for union-management
matters. The Dallas Region covers five States and manages over 33
district offices, /2/ including the ones at El Paso and McAllen. At
McAllen, Pablo Hernandez held the position of President of Local 3388
from 1977 up until March, 1981. At El Paso, Daniel Avila has been
President of Local 2991 for two years.
6. In April 1980, /3/ SSA and AFGE exchanged written proposals
concerning a Master Labor Agreement, in preparation for impending
negotiations. Those of the Union attempt to cover all areas subject to
bargaining. Until such time as a Master Agreement is agreed to, the
terms and conditions of all existing local AFGE agreements have been
extended and are currentlyh in effect. With regard to the instant
cases, there are collective bargaining agreements in effect in the
McAllen and El Paso District Offices of SSA.
6a. Around April 7 or 8, AFGE submitted proposed Article 21, dealing
with "Critical Elements" and "Performance Standards," two factors which
the CSRA, in Section 203, requires each agency to develop for each job.
Article 21 also covers such items as twice yearly performance interviews
and their minimum content.
6b. As of the time of the hearing on these cases, only a few
articles of the Master Agreement had been agreed to "after probably a
year or more of negotiations." (TR 248) Negotiations are now at the
point of impasse.
7. On April 28, Regional Commissioner McSteen sent a letter to
Regional Vice President Overturf, "as an official of a AFGE." (JtEx-1)
His comments and recommendations were solicited on a "draft PGS
Supplement," compiled by going through existing chapters of the
Personnel Guide for Supervisors (PGS), drawing together in one place all
of the various areas that relate to accountability of employees, and
providing examples of accountability plans for specific jobs. (JtEx-1)
A copy of the draft was attached to the letter. A response by May 7 was
sought.
7a. The draft PGS Guide (hereinafter, also referred to as the
"Guide") applies only in the Dallas Region. Other regions have
different accountability plans; and some regions have none.
7b. A primary purpose of the Guide is to set up "a means of
documenting performance requirements and measuring actual performance,
such documentation to "serve as a basis for annual employee appraisal
and performance rating." (JtEx-2.3) It is also to provide a means for
documenting adverse actions, awards, and the granting and denial of
within-grade increases. Lack of such documentation has created "many of
the documentation problems experienced in the past." (GCEx-3.2)
7c. The concept of employee accountability set out in the PGS Guide
is not a new one in the Dallas Region, which has had a long-established
policy of periodic performance discussions and performance evaluations,
based on quality, quantity and timeliness of work, and the use of
statistics for measuring performance. But until the advent of the
Guide, there have been no written accountability plans with fixed
numerical standards. The written plans are to cover the "major
functions of each position" and set out the "expected level of
satisfactory performance, and the methods to be used in measuring that
performance." (JtEx-2.2) The Guide also covers such matters as twice
yearly performance interviews and their minimum content, also covered by
AFGE's proposed Article 21. See finding 6a, above.
7d. The Guide leaves to each district office the formulation of the
actual plans and the insertion of numerical standards, in recognition of
the fact that these are matters best left to local management, in view
of local problems and circumstances. Not all jobs in the district
offices are covered by the samples furnished by the Dallas Regional
Office.
7e. The written plans were to cover the employee appraisal period
from October 1980 through October 1981 (TR 48, 81) at which time the
system mandated by the CSRA was to go into effect. The Guide refers to
the CSRA, several times, and notes that "SSA centrally is in the process
of developing a performance appraisal system for all employees," (that
t)he system will include performance standards which will set out
critical elements of each field position, "(and that i)t is not expected
that the performance appraisal system will be implemented prior to
October 1, 1981." (JtEx-2.5)
7f. Management officials in the Dallas Region expressed the view
that the "only change" represented by the Guide was "to pull everything
together, which is really not a change, and to require a written plan in
each office so that each employee would know what those goals were and
how they could contribute toward meeting those goals." (TR 254-255)
8. On May 4, Mr. Overturf responded to Commissioner McSteen's
letter. He stated that: "It is the position of the AFGE/FO National
Council that employee accountability and performance standards are
matters subject to negotiations." (JtEx-3) Accordingly, he declined to
accept the offer to make "comments." "At the instructions of the
President, SSA/FO National," he made a request for negotiations over the
matter. (JtEx-3)
9. Subsequently, Mr. Overturf and Mr. Harris got together about the
draft Guide and decided that it was not feasible for them to get
involved in negotiating on a subject that was involved in negotiations
ongoing at the national level, "(b)ecause anything that (they) did or
any issue involving negotiability, all this would be superceded by
whatever occurred in the national contract." (TR 28-29)
10. Accordingly, on May 21, Mr. Overturf wrote another letter to
Commissioner McSteen in which he explained "the National Counsel's
position" as being that these were national issues, negotiations on them
were underway, and that any regional plan would be only temporary, and
probably not uniform with plans in other regions, or the plan eventually
developed on a nationwide basis. (JtEx-4) He stated the "Council's
position that implementation of the proposed regional plan abandoned."
(JtEx-4)
11. Shortly after receipt of the May 21 letter, Mr. King, the labor
relations officer for the Dallas Region, called Mr. Overturf about it.
12. On July 23, Regional Commissioner McSteen informed Mr. Overturf
that "the regional employee accountability guide (would) not be issued
or implemented for the time being." (JtEx-6) This advice was relayed to
Mr. Overturf in a letter concerning another matter.
13. Regional Commissioner McSteen disagreed with the Union position
that performance standards would be set in the employee accountability
plans. However, she was aware that the Authority was expected to be
issuing a decision on the negotiability of performance standards, and
decided it would be wise to await the decision before proceeding with
the proposed Guide.
14. On July 31, the awaited decision was issued. See National
Treasury Employees Union and Department of the Treasury, Bureau of
Public Debt (hereinafter referred to as "Bureau of Public Debt"), 3 FLRA
769, No. 119, Case No. 0-NG-56 and also American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C. (hereinafter referred to as "OPM"), 3 FLRA
784, No. 120, Case Nos. 0-NG-177-2, 3, 4 and 5.
15. On August 13, Regional Commissioner McSteen sent a letter to Mr.
Overturf which reads:
On April 26, we asked you to comment on a draft PGS guide on
accountability. On May 4, you responded that you would not
comment since it was AFGE's position that accountability and
performance standards were negotiable. On May 21, you further
requested that we delay regional implementation of our
accountability guide. We have honored your request up to this
time.
On July 31, the FLRA ruled on the negotiability of performance
standards in cases numbered 0-NG-56 and 0-NG-177-2/5.
This is to inform you that we now plan to issue and implement
the accountability guide on September 2, 1980.
We are providing a copy of the draft guide, which is unchanged
from the one previously furnished.
(JtEx-7)
16. The Regional Commissioner expected the Union to make some
proposals. After vainly waiting four or five days past the September 2
implementation date mentioned in her letter to Mr. Overturf, she put the
Guide into the printing and distribution channels, which amounted to
implementation.
17. The Guide went out to districts offices with a letter
instructing them to involve employees in the formulation of local
accountability plans, to "consult" with local AFGE officials, in offices
organized by AFGE, and to "bargain" with local NFFE officials, in
offices organized by NFFE. (GCEx-3.1) It also instructed them that:
"Since the guide is initiated by the Regional Office, the duty to
bargain (at AFGE-organized offices) is between the Regional Commissioner
and the Regional Vice Presidednt of AFGE. This obligation has been
met." (GCEx-3.1)
18. The district offices were also instructed that the plans had to
be approved by both the district manager and the area director.
19. On August 18 or 19, Mr. Overturf received the August 13 letter
from Regional Commissioner McSteen. He was preparing to go to the
national caucus of AFGE, which started August 24. He was unable to
reach Mr. Harris about a response to the letter. Both Mr. Harris and
Mr. Overturf went to the caucus before it started. Once there, the main
concern of each was getting elected to office. They were unable, in the
context of the caucus, which is a political function, to discuss a
response to the August 13 letter. Mr. Overturf returned to his home on
August 30 and to work, on September 2. On September 5, he consulted
with Mr. Harris about a response; and they agreed to the content of
one. Mr. Overturf testified that he did not feel it would have been
"useful" to pick up the phone, and ask the agency for an extension for
time to respond, "because we had to get something in writing." (TR 72)
20. On September 8, Mr. Overturf responded, in writing, to the
August 13 letter. He explained his delay in answering on the ground
that he received the letter shortly before his scheduled departure to
attend the AFGE national caucus, and that he had not seen a copy of the
Authority decision at the time he received the letter. He objected that
the Guide constituted changes in working conditions that were within the
negotiating authority of the majority unit and which were still under
negotiation at the majority-unit level. He explained that he
interpreted Regional Commissioner McSteen's action to be a unilateral
decision that the entire area of employee accountability and performance
standards was non-negotiable, and that this was contrary to the
Authority's decision, which held that decisions as to negotiability must
be made concerning specific proposals. He stated that "it is the
position of SSA/FO NC that the issuance of the Regional Supplement to
PGS Chapter V, Guide 4 must be rescinded." (JtEx-8)
21. On September 24, Regional Commissioner McSteen replied to Mr.
Overturf's September 8 letter. She advised him that he had not
requested negotiations or submitted counterproposals, after the notice
contained in her August 13 letter; that they would have been
considered; but that since none were received by September 2, the Guide
had been implemented and would soon be in all offices.
22. On October 17, AFGE's Executive Vice President, National Council
of SSA/FO Locals, filed the charge upon which the complaint in Case No.
6-CA-785 is based.
The McAllen District Office
23a. In the McAllen District Office, Pablo Hernandez, the President
of AFGE's Local 3388, became aware of accountability plans for that
office in October, when he was asked to attend a meeting with the
Assistant District Manager, William H. Fitzgerald, for an explanation of
the plans. Mr. Hernandez made a request to negotiate the implementation
of the plans, at that time; and the request was rejected on the ground
that the bargaining duty had been taken care of at the regional level.
Mr. Fitzgerald did "discuss" with Mr. Hernandez the method of obtaining
employee input (TR 191 and see also TR 186), and also told him there
would be meetings with employees in each of the four modules in the
office. The Union was given a "general invitation" to be "present" at
the meetings, but was given no role to play. (TR 186) No notice was
given to the Union, qua the Union, as to when the meetings would take
place. The meetings started about mid-November and continued into
December. Union representations were scattered throughout each module;
and it was "common knowledge" as to when each module had its meeting.
(TR 189)
23b. On November 1, the supervisor of Service Representatives sent
each employee a note seeking "facts, not figures" as to what "items" of
their job they felt should be looked at, to hold them accountable.
(JtEx-14) He urged them to comment, and set a deadline of November 19.
A sample plan of another district office was attached to the notes.
23c. On December 1, the McAllen District Manager sent a memorandum to
all employees advising them of the formulation of the accountability
plans and seeking their input, through their supervisors who "w(ould) be
discussing your accountability plans with you." (JtEx-10.2) The Union
was not consulted about the memorandum prior to issuance. The President
of Local 3388 received a copy only "(a)s an employee." (TR 98)
23d. The Service Representatives were called together by management
in early December. No Union representatives attended the meeting.
Management asked for their comments on the accountability plans. Some
questions were asked by employees that could not be resolved. At a
second meeting, "a week later on (their) regular weekly transmittal
meeting to discuss any incoming material," the supervisor reminded the
employees that there were some items left unanswered from the previous
meeting and that he had "no definite reply." (TR 108) The Union was not
represented at the second meeting.
23e. On December 2, the President of Local 3388 received a copy of a
note from his supervisor which was addressed to all "Title 16, SSI"
employees. (JtEx-11) He was such an employee. The note referred to
copies of plans previously distributed and sought employee input by
December 4.
23f. The meeting for the Title 16 SSI employees took place on
December 4. Employees in the other modules also attended meetings about
the plans.
23g. The plans were implemented at the McAllen District Office
around January 1, 1981, without notice to Local 3388.
23h. Just two or three days after learning of the implementation,
Local 3388, on January 29, 1981, requested negotiation over the
implementation and adverse effects (which the plans might) have on
members of the bargaining unit." (JtEx-12.1)
23i. On February 4, 1981, by memorandum to Local 3388, the Assistant
District Manager declined the requested negotiations "at the local
level." (JtEx-13.2) The reason given was that the PGS Guide was
initiated by the Regional Commissioner and that "the only latitude given
local management was the determination of local numerical objectives,
not implementation of the plan itself." (JtEx-13.2) The memorandum
explained that the duty to bargain was at the regional level, and had
been met.
23j. Prior to the written accountability plan implemented on January
1, the McAllen District Office had used a very informal plan which
varied from module to module. Statistics had always been used; but the
written plan gave the supervisors "more figures to work with and the
evaluations should be more accurate." (TR 184) The written plans
eliminated "a lot of the subjectivity." (TR 185)
The El Paso District Office
24a. In the El Paso District Office, in August, Daniel M. Avila, the
President of AFGE Local 2991, approached the Assistant District Manager,
Francisco Martinez, to ask "what, if anything they were going to use as
far as evaluating our performance for the latest performance appraisal
period." (TR 111) Mr. Martinez indicated that "he wished to work with me
on it as a representative of the Union, and he said that at that point
in time he wished to come up with a mutually agreed plan." (TR 111-112)
24b. In September, the El Paso District Office received the Guide
from the Dallas Regional Office and furnished a copy of it to Mr. Avila.
In October, management held several meetings with Mr. Avila, to discuss
the plans to be developed pursuant to the Guide.
24c. On October 31, Mr. Martinezk approached Mr. Avila and indicated
that there were going to be some unit meetings regarding the plans. Mr.
Avila requested that Union observers be present, and designated certain
represedntatives in each unit to be present as "Union observers, Union
representatives." (TR 112-113) Management understood that the designated
persons were to be at the meetings as Union "representatives." (TR 161,
162)
24d. The unit meetings began on November 4. Mr. Avila instructed
the Union people he chose to attend the meetings of the dates and times
of the meetings, and also that they were to give input only as
employees, and not on behalf of the Union. The union designatees
attended the meetings on "official time." (TR 139) It was the intent of
Mr. Avila to negotiate at some future time.
24e. Rough drafts of accountability plans were passed out to
employees at the meetings. Employees gave comments. Supervisors made
notes. Suggestions were accepted from employees, including those
attending on official time granted by management.
24f. On November 21, a labor-management meeting was held at the
request of Mr. Avila. At the meeting Mr. Avila stated that an unfair
labor practice charge had been filed by the National Council of SSA
Field Office Locals against the Regional Commissioner for issuing "the
Regional PGS instructions on accountability." (JtEx-15.1) He requested
negotiations on the numbers plugged into the plans. The District
Manager refused. She stated that they were not negotiable, and that she
had been instructed "to secure employee input and that was it." (TR 116)
24g. At the November 21 meeting, Mr. Avila made it clear that he
would not take a position as to the acceptability of any plan until the
Area Director had acted on the drafts sent to him for review. Mr. Avila
then requested a copy of the drafts sent to the Area Director, and
recalled the District Manager replying that she saw no reason why she
could not comply with this request. The District Manager testified that
she gave him no answer, at the time. The District Manager seemed to be
surer of her facts and was corroborated by another witness.
Accordingly, I credit the testimony that no answer was given to Mr.
Avila, at the November 21 meeting. Mr. Avila stated that he needed the
drafts to determine "what the impact was going to be as far as what each
specific position was going to be concerned with, as far as the issues
involved for each one." (TR 117) He testified further that: "Before
they went up to the Area Director I wanted to know how she specifically,
or management specifically, felt as far as the accountability plans were
concerned." (TR 117)
24h. On November 24, Mr. Avila sent the District Director a
memorandum in which he made four proposals. All but one were adopted.
The rejected one proposed the used of "median" performance, in the unit,
as a basis for individual performance measurement. (JtEx-15.2 and see
TR 199)
24i. On December 9, Mr. Avila made a written request for copies of
the drafts to be sent to the Area Director. The drafts were being
"assemble(d)," when this request was made. (TR 200)
24j. On December 16, shortly before the drafts of the plans were
sent to the Area Director, the District Manager replied to Mr. Avila's
request for copies of them. Her reply was that her drafts would not be
complete until she received the comments of the Area Director. The
requested drafts were never given to Local 2991.
24k. After the Area Director returned the draft plans, copies were
made and given to Local 2991 and employees during the week of January
19. The major difference between the samples furnished with the Guide
and the plans implemented was that a range of numbers were inserted into
the formats furnished with the Guide. Where no formats were furnished,
the El Paso office developed plans "from scratch." (TR 159)
24l. The collective bargaining agreement between Local 2991 and the
El Paso Office provides for "consultation and/or negotiation between the
parties "on all personnel policies and practices or other matters
affecting working conditions of employees in the Unit, which are within
the discretion of the Employer . . . . " (TR. 123) This agreement was
entered into on January 12, 1978, before the nationwide consolidated
unit was recognized.
24m. The District Manager testified that "full consultation" with
Local 2991 took place in regard to the plans, and that "maybe we
negotiated some at the same time." (TR 206) Her labor-relations officer,
however, admitted that no negotiations took place.
24n. While supervisors at the El Paso office had always used
statistics in evaluating employee performance, before the implementation
of the written accountability plans, they have begun to rely upon them
"very heavily," since the implementation, and feel they have "less
leeway" now in using their "judgment" and considering "extenuating
circumstances." (TR 126, 147) Under the written plans, one supervisor
has graded solely on the statistical aspect of performance and refused
to consider the fact that one employee had spent time helping a blind
employee develop his workload.
Discussion and Conclusions
A. On the alleged failure to engage in impact-and-implementation
bargaining over changes in working conditions.
1. The parties do not dispute the accepted principle of Federal
labor-relations law that an agency is required to give the exclusive
representative prior notice and the opportunity to negotiate regarding
substantial changes in working conditions that have an adverse impact
upon bargaining-unit employees. See, e.g. Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region
and Council of District Office Locals, American Federation of Government
Employees, San Francisco Region, 5 FLRA No. 45 (1981). The dispute here
begins, rather, with the question of whether any substantial changes in
working conditions actually occurred when (1) the Dallas Regional Office
of SSA issued, to the district offices of the region, a Personnel Guide,
providing procedures and guidelines necessary to implement employee
accountability plans; and (2) when the district offices implemented the
plans they formulated, pursuant to the Guide. The preponderance of the
evidence indicates that changes of substance did occur, in both
situations, and that they had reasonably foreseeable adverse effects
upon employees.
While there had long been a concept of employee accountability
throughout the offices of the Dallas Region, there had never been any
written or formal plans for measuring accountability, prior to the
issuance of the Guide. Before the Guide, employees had been judged on a
very informal basis that varied from office to office, and module to
module. After the Guide, supervisors found themselves with less leeway
to make subjective evaluations and to consider extenuating
circumstances.
Another indicia of the substance of the change mandated by the Guide
is the process required of the district offices in formulating their
plans pursuant to it. It is a lengthy one, requiring input from
employees, consultation with AFGE locals, bargaining with NFEE locals,
and double review of the plans, by the district manager and the area
director.
Another indicia is to be found in one of the purposes which the plans
are to serve. Management in the Dallas Region had suffered many
problems, in the past, from the absence of documentation to justify
adverse actions, awards, and the granting and denial of within-grade
increases. The written plans are to supply the missing documentation
and correct this serious problem.
As for the plans formulated by the district offices pursuant to the
regional guidelines, it was established that they were adapted by the
district offices to local problems and circumstances, with discretion
exercised as to the numerical standards used in measuring performance,
and as to developing job formats "from scratch," when the office had
unique positions not covered by samples furnished with the regional
guidelines. (TR 159) Thus, a change of substance was created in each
district office by the formulation of specific plans, pursuant to the
Regional Office Guide.
2. The next disputed issue for resolution concerns the appropriate
bargaining level when a newly-recognized, nationwide consolidated unit
is negotiating a master agreement with an agency, and an activity
proposes to change an existing condition of employment. Consideration
of this question begins with the Authority's decision in Department of
Health and Human Services, Social Security Administration and Local
1346, American Federation of Government Employees, AFL-CIO, 6 FLRA 202,
No. 33 (June 25, 1981), (hereinafter, "Local 1346") which both parties
cite in their briefs. See GCBr 11-12 and RBr 11 and 34. Local 1346
involves the same agency and the same consolidated AFGE unit as the
instantt proceeding. Local 1346 had an agreement which preceded the
certification of the nationwide consolidated unit; and Local 1346
sought to renegotiate up to a third of its articles while negotiations
at the national level were in progress. The issue resolved by the
Authority was "whether, following the certification of AFGE for a
nationwide consolidated unit, there remained a duty to bargain new
conditions of employment at the local level pursuant to the reopener
clause contained in the local agreement." (6 FLRA at 203, emphasis by
the Authority). The Authority ruled that no such duty remained, and
that a "requirement that substantive bargaining pursuant to a reopener
must take place with respect to a portion of the newly consolidated unit
would be antithetical to the goal of stability and to the purpose of
consolidation." 6 FLRA at 204. A caveat to the Authority's decision was
expressed as follows: "This is not to say that there exists any
impediment to the parties at the level of exclusive recognition agreeing
to authorize supplemental negotiations at a sub-level." (6 FLRA at 204,
fn. 2)
Both the rationale and the caveat of the Local 1346 decision apply
here. AFGE is conducting national negotiations on an employee appraisal
system. Albeit different in some respects from what is on the national
bargaining table, the regional guidelines for accountability plans, and
the district offices plans themselves, are also concerned with what
amounts to an employee appraisal system. The Guide and the plans are
"new", in some significant respects, as already discussed. Other
regional offices have different plans in place; some regional offices
have none. Clearly, the "appropriate unit" for bargaining under the
Local 1346 rationale, is at national level. See Section 7103(a)(12) of
the Statute, cited in Local 1346, 6 FLRA at 203.
However, the parties here have just as clearly recognized sub-level
negotiations. Shortly after recognition of the nationwide consolidated
unit, the parties agreed that regional bargaining is to take place where
the region initiates a change, and it has no effect beyond the region.
They are also in agreement that when a management change takes place, at
the district level, it is the responsibility of the local
union-management team to negotiate, at least where there is a local
agreement in effect, as is the case at the El Paso and McAllen offices.
3. The remaining issues to be resolved are whether there were
failures to bargain in good faith by the Dallas Regional Office and the
El Paso and McAllen District Offices. In view of the conclusions above
discussed, and the facts established by the record, it must be concluded
that failures to bargain in good faith, as to the plans, but not as to
the Guide, did occur at each establishment.
At the Dallas Region level, in Case No. 6-CA-785
The evidence of record shows that management in the Dallas Regional
Office gave a 20-day notice to AFGE's Regional Vice President for the
Dallas Region of its intent to implement the Guide; that it waited
about 24 days after giving the notice and before implementing the Guide;
and that no request to bargain was received during this period. No
failure to bargain in good faith can be found, on these facts.
Nevertheless, the General Counsel charges bad faith in implementing
the Guide. One argument is that the letter giving notice amounted to
announcing a "fait accommpli," and thereby excused the Union from giving
a timely response. (GCBr 16) This is not a fair reading of the letter,
however. The letter referred to a prior request of the Union to
negotiate performance standards, and cited the Authority's recent
decisions on the negotiability of performance standards. Had the Union
studied these decisions within the 20-day notice period, it would have
found that they held "significant aspects of performance appraisal
systems may be negotiated." See Bureau of Public Debt, 6 FLRA at 675 and
also page 777 referring to the fact that management must "negotiate on
procedures and appropriate arrangements with respect to employees
adversely affected by management's exercise of its right." See also the
OPM decision, 6 FLRA at 789, which was also cited in the letter.
Reference to the request of AFGE to negotiate, and citation of these
decisions was a clear indication that management expected to negotiate
on these matters.
Another alleged act of bad faith is that the Dallas Regional Office
did not contact John Harris, the President of the National Council,
after Sylvester Overturf, the Regional Vice President, made requests to
elevate the matter to the national level. See GCBr 16. This allegation
fails because the record established that Mr. Sylvester was the chief
representative of the National Council, in the Dallas Region, and the
Union representative delegated to receive timely notice of changes. He
also spoke for the National Council in his correspondence with regional
management. Therefore, contact by management with Mr. Overturf was
tantamount to contact with the National Council.
The General Counsel also charges bad faith in that the Dallas
Regional Office did not communicate to Mr. Overturf its position on
elevating the issue to the national level. See GCBr 16. Undoubtedly
communications between the parties could have been better, from both
directions. But the sparsity on management's part does not rise to the
level of an unfair labor practice. Management was, after all, uncertain
as to what was bargainable, at any level, until the Authority issued its
decisions in the OPM and Bureau of the Public Debt cases. Its decision
to await the outcome of these cases before communicating its views to
Mr. Overfturf was reasonable, and not an act of bad faith. Within a
reasonable time after issuance of the decisions, the Dallas Region got
in touch with Mr. Overturf, to start the bargaining process. See
findings 14 and 15, above.
While no failure to bargain in good faith, as to the Guide, can be
found, the Dallas Regional Office did, in effect, refuse to bargain over
the impact and implementation of the plans formulated by the district
offices. It did so by instructing its district offices not to engage in
such bargaining. It did this in the mistaken belief, already discussed,
that the plans did not constitute changes of substance in working
conditions, and that regional-level bargaining over the Guide was the
extent of the bargaining obligation. The Dallas Region, therefore,
bears the responsibility for the failure to bargain, at the
district-office level.
It is appropriate, at this point, to discuss SSA's objection that a
requuirement to bargain at both the regional and district office level
is excessive. See RBr 33-34. To the contrary, it simply allows
accommodation for the local problems and circumstances recognized by the
Dallas Region in allowing district offices to develop their own plans.
For example, bargaining by the El Paso District Office would have given
local 2991 the opporftunity to alleviate adverse effects suffered by
employees who took time to assist the blind employee assigned to that
office. This is not to say that the district offices may countermand
agreements reached at the national level; but they may refine them to
accommodate these types of local problems.
At the El Paso and McAllen District Office level
SSA does not contest the allegation that no bargaining took place at
the McAllen District Office. Clearly it did not.
At El Paso, SSA does argue that bargaining, in fact, took place. The
El Paso District Manager, however, was under orders not to bargain;
told the President of Local 2991 that she only had to obtain employee
input; and expressed doubt that full bargaining took place. Her
labor-relations officer conceded that it did not. There could hardly
have been "good faith" bargaining, as required by the Statute, under
those circumstances. See Section 7103(a)(12) and 7114(b)(1)-(3).
Accordingly, it must be concluded that there was a failure to bargain
in good faith by the Dallas Region and the El Paso and McAllen District
Offices, in violation of Sections 7116(a)(1) and (5) of the Statute.
B. The charge of a bypass of Local 2991 at the El Paso District
Office.
The General Counsel argues that "by refusing to bargain with Local
2991 and by directly soliciting from unit employees their opinions and
suggestiong regarding working conditions, the El Paso District Office
bypassed the local agent of the exclusive representative" (GCBr 21),
thereby engaging in an unfair labor practice, in violation of Sections
7116(a)1) and (5) of the Statute.
It has already been concluded that the El Paso District Office
refused to bargain with Local 2991; and such refusal does amount to an
illegal bypass of the exclusive bargaining representative, under Federal
labor-relations law.
However, no illegal bypass can be found from the further allegation,
found in Count 8 of the Complaint, which concerns the meetings called by
supervisorss to get employee input on the plans. Management gave Local
2991 notice of these meetings; acquiesced in union representatives
being present, on official time; gave Local 2991 the dates and places
of the meetings; and had reasonable cause to believe that the employees
designated by the Union to be present were there as representatives.
Count 8 of the Complaint in Case Nos. 6-CA-1053, 1053-1, 1054, and 1055
should be dismissed.
C. The charge of a bypass of Local 3388 and conducting a Section
7114(a)(2)(A) "formal discussion(s)" without affording Local 3388 an
opportunity to be present, at the McAllen District Office.
The discussions at issue are those called by management to get
employee input into the formulation of accountability plans. With one
possible exception, they were clearly "formal discussions" within the
meaning of Section 7114(a)(2)(A), in that they were called by
management, had a prearranged agenda, concerned a subject within the
scope of collective bargaining, were called for the purpose of getting
employees' ideas on the formulation of the plans, and employee
participated in the discussions. The possible exception is the second
meeting which took place with Service Representatives. The evidence
shows only that it was a regular weekly meeting to discuss incoming
material of some unspecified sort, and the supervisor merely alluded to
the fact that he had no definite reply to questions raised at the first
meeting, on the accountability plans.
While management extended to Local 3388 a "general invitation" to
attend the meetings, it did not advise the Local of the actual dates and
times of the medetings. Such information came to Local officials only
incidentally, in their capacity as employees. This conduct falls short
of treating a union as a "partner(s) on an equal footing," the standard
set by this Authority in United States Air Force, Air Force Logistics
Command, Aerospace Guidance and Metrology Center, Newark, Ohio and Local
2221, and American Federation of Government Employees, AFL-CIO, 4 FLRA
No. 70 (1980). See also Norfolk Naval Shipyard, Portsmouth Virginia and
Tidewater Virginia Federal Employees Metal Trades Council, 6 FLRA 74,
No. 22 (1981), finding a violation of Sections 71716(a)(1) and (8) when
a meeting was held with employees without notice to the union, and union
officials just happened to be present, in their capacity, as employees,
not as union representatives. The Authority stated:
More specifically, section 7114(a)(2)(A) requires that a Union
"be given the opportunity to be represented during formal
discussions involving conditions of employment." This clearly
contemplates prior notice to the Union so that, inter alia, the
Union will have an opportunity to select representatives of its
own choosing to be present.
See 6 FLRA at 76, emphasis by the Authority.
Thus, the series of meetings held with employees on the
accountability plans, without providing Local 3388 specific notice of
each one and an opportunity to be present, constituted illegal bypasses
of the Union and also a violation of Section 7114(a)(2)(A). These are
unfair labor practices, under Sections 7116(a)(1), (5), and (8) of the
Statute.
In addition, management at the McAllen District Office illegally
bypassed Local 3388 when it sent bargaining-unit employees memoranda
exhorting them to give comments on the accountability plans. This
constitutes a failure to bargain through representatives chosen by
employees and is an unfair labor practice under Sections 7116(a)(1) and
(5). As this Authority held in its Bureau of Public Debt decision, an
agency's right to establish performance standards "is subject to certain
rights of a labor organization under the Statute," including "(t)he duty
to bargain . . . (on) the form of employee participation in the
establishment of performance standards . . . . " 6 FLRA at 770.
D. The charge of management's refusal to furnish allegedly necessary
information at the El Paso District Office.
Section 7114(b)(4) of the Statute imposes a duty upon an agency to
furnish "data" which is "normally maintained by the agency in the
regular course of business," and which is "reasonably available and
necessary for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining."
The data sought by Local 2991 consists of drafts of plans formulated
by the El Paso District Office and sent to the Area Director for review.
The drafts were not final until after the review. The President of
Local 2991 advised the District Manager that the Local would not take a
position as to the acceptability of any plan, until the Area Director
had acted on the drafts sent to him. He said he wanted to see the
drafts so that he could determine what their "impact" was going to be,
and what management "felt" about them before the plans went to the Area
Director. See finding 24(g) above. Local 2991 received copies of the
plans after they were reviewed by the Area Director, and seven days
before they became effective. See finding 24k, above.
On these facts, it cannot be concluded that the drafts were
"necessary," within the meaning of the Statute. Local 2991 could learn
nothing significant about "impact" from a draft that was subject to
change. In recognition of this the President of Local declined to take
any position until he saw the final plans. What management "felt" about
the plans before they were reviewed by the Area Director would seem to
have little practicable value to Local 2991, and might lead to
diversionary discussions over the content of them, which is not within
the scope of the bargaining obligation, under this Authority's Bureau of
Public Debt and OPM decisions. In any event, it cannot be concluded
that what management "felt" about the plans before they became final was
"necessary" to collective bargaining over their impact and
implementation.
Nor can it be concluded that drafts of final papers are the type of
data "normally maintained in the regular course of business." Normally,
drafts such as these requested would not be kept, for they serve no
purpose.
Accordingly, Count 10 of the Complaint in Case No. 6-CA-1953, 1053-1,
1054, and 1055 should be dismissed.
Other issues are raised by the parties. However, resolution of them
would only serve to extend, without altering this decision and the
remedy to be recommended.
Ultimate Findings and Orders
A. In Case No. 6-CA-785, the General Counsel has established, by a
preponderance of the evidence, that violations of Sections 7116(a)(1)
and (5) have occurred in the Dallas Region of the Social Security
Administration.
Accordingly, it is ORDERED, in Case No. 6-CA-785, pursuant to Section
7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute,
5 U.S.C. Section 7118(a)(7)(A) (Supp. III, 1979), and Section
2423.29(b)(1) of the Rules and Regulations of the Federal Labor
Relations Authority, 45 Fed. Reg. 3511 Section 2423.29(b)(1), that the
Dallas Region of the Social Security Administration, Dallas, Texas:
1. Cease and desist from:
(a) Advising offices organized by the American Federation of
Government Employees (AFGE) prior to August 30, 1979, that the
obligation to bargain with AFGE over the employee accountability
plans formulated by these offices, pursuant to the Personnel Guide
for Supervisors distributed regionally in September 1980, is only
at the regional level.
(b) In any like or related manner, violating Sections
7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action:
(a) Instruct the El Paso and McAllen District Offices to
withdraw all employee accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Region in September 1980, destroy all documentation prepared
pursuant to those plans, and make whole any employee adversely
affected by the plans consistent with applicable laws and
regulations.
(b) Instruct the El Paso and McAllen District Offices to give
notice to Local 3388 or 2991 of the American Federation of
Government Employees, as appropriate, of any employee
accountability plans proposed for implementation, and extend to
the appropriate Local an opportunity to engage in appropriate
bargaining prior to implementing such plans.
(c) Notify all the recipients of General Counsel's Exhibit 3
that the third paragraph is to be deleted, and that the first
sentence of the fourth paragraph is to be modified to read as
follows: "Managers of AFGE and NFFE offices have an obligation to
negotiate, if requested, on the manner in which the local
accountability plan will be developed and implemented."
(d) Post at the Dallas, Texas, Regional Office copies of the
attached notice marked "Appendix A," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Regional Commissioner and
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced, or
covered by any other material; and
(e) Notify the 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.
B. In Case No. 6-CA-1034, the General Counsel has established, by a
preponderance of the evidence, that violations of Section 7116(a)(1),
(5) and (8) occurred at the McAllen District Office.
Accordingly, it is ORDERED, in Case No. 6-CA-1034, pursuant to the
authority cited in part A, above, that the McAllen District Office of
the Social Security Administration, McAllen, Texas:
1. Cease and desist from:
(a) Bypassing Local 3388 and dealing directly with employees
concerning accountability plans.
(b) Conducting formal discussions, as defined in 5 U.S.C.
7114(a)(2)(A), without timely and full notice to Local 3388 and an
opportunity to be present.
(c) Establishing accountability plans without affording the
Union a prior opportunity to negotiate over bargainable aspects of
the plans.
(d) In any like or related manner, violating Sections
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action:
(a) Withdraw all accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Regional Office in September 1980.
(b) Destroy all documentation prepared pursuant to such
accountability plans.
(c) Make whole any employee adversely affected by such
accountability plans consistent with applicable law and
regulations.
(d) Upon request, negotiate with Local 3388 over bargainable
aspects of employee accountability plans, prior to implementation.
(e) Provide Local 3388 with full and timely information,
including dates and times, of any formal discussions to be
conducted with employees and invite it to send a representative to
such discussions.
(f) Post, at the McAllen, Texas, District Office, copies of the
attached notice marked "Appendix B," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the District Manager and posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or covered
by any other material; and
(g) Notify the 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.
C. In Case Nos. 6-CA-1053, 1053-1, 1054, and 1055, the General
Counsel has established, by a preponderance of the evidence, that
violations of Sections 7116(a)(1) and (5) have occurred at the El Paso
District Office, as alleged in Counts 9(a) and 11 of the Complaint. The
violations alleged in Counts 8 and 10 were not sustained.
Accordingly, it is ORDERED, in Case Nos. 6-CA-1053, 1053-1, 1054, and
1055, pursuant to the authority cited in part A, above, that Counts 8
and 10 of the Complaint be dismissed and that the El Paso District
office of the Social Security Administration, El Paso, Texas:
1. Cease and desist from:
(a) Bypassing Local 2991 by refusing to negotiate with it, in
good faith, over the bargainable aspects of employer
accountability plans, prior to their implementation.
(b) In any like or related manner, violating Section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Withdraw all accountability plans formulated pursuant to
the Personnel Guide for Supervisors distributed by the Dallas
Regional Office in September 1980.
(b) Destroy all documentation prepared pursuant to such
accountability plans.
(c) Make whole any employee adversely affected by such
accountability plans consistent with applicable law and
regulations.
(d) Upon request, negotiate with Local 2991 over bargainable
aspects of employee accountability plans, prior to implementation.
(e) Post, at the El Paso District Office, copies of the
attached notice marked "Appendix C," on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the District Manager and posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices are customarily posted. Reasonable steps shall be taken
to ensure that said notices are not altered, defaced, or covered
by any other material; and
(f) Notify the Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: February 11, 1982
Washington, D.C.
FOOTNOTES
(1) "JtEx" refers to the Joint Exhibits of the parties. Other
abbreviations used in this Decision are as follows. "GCEx" refers to
the exhibits of the General Counsel, and "REx" refers to those of
Respondents. Multipage exhibits will be referenced first by the exhibit
number, and then by the page number. "TR" refers to the transcript.
"GCBr" refers to the brief of the General Counsel, and "RBr" to that of
Respondents.
(2) See TR 50, 156, 179, and 235 where witnesses gave varying
statements as to the number of district offices in the Dallas Region,
ranging from 33 to 80.
(3) All dates hereinafter mentioned will refer to 1980, unless
otherwise specified.
APPENDIX A
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
We Hereby Notify Our Employees That:
WE WILL instruct the El Paso and McAllen District Offices to withdraw
all employee accountability plans formulated pursuant to the Personnel
Guide for Supervisors distributed by them in September 1980, destroy all
documentation prepared pursuant to those plans, and make whole any
employees adversely affected by those plans consistent with applicable
law and regulations.
WE WILL instruct the El Paso and McAllen District Offices to give
notice to Local 2991 or 3388 of the American Federation of Government
Employees (AFGE), as appropriate, of any employee accountability plan
proposed for implementation, and extend to the appropriate local an
opportunity to negotiate over bargainable aspects of the plans, prior to
their implementation.
WE WILL correct the memorandum of September 24, 1980, to all area
directors, district managers, branch managers, and teleservice center
managers, concerning the Regional Supplement to PGS Chapter V, Guide 4,
to reflect that managers of offices organized by AFGE have an obligation
to bargain, if requested, on the bargainable aspects of local
accountability plans.
(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 6,
whose address is P.O. Box 2640, Dallas, TX, 75221 and telephone number
is (214) 767-4996.
APPENDIX B
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
We Hereby Notify Our Employees That:
WE WILL NOT bypass Local 3388 and deal directly with employees.
WE WILL provide Local 3388 with timely and full notice of any formal
discussions to be held with bargaining-unit employees and an opportunity
to be present.
WE WILL provide Local 3388 with an opportunity to negotiate the
bargainable aspects of any employee accountability plans, before
implementation.
WE WILL withdraw all accountability plans formulated pursuant to the
Personnel Guide for Supervisors distributed by the Dallas Regional
Office in September 1980.
WE WILL destroy all documentation prepared pursuant to such
accountability plans.
WE WILL make whole any employee adversely affected by such
accountability plans consistent with applicable law and regulations.
(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 6,
whose address is P.O. Box 2640, Dallas, TX, 75221 and telephone number
is (214) 767-4996.
APPENDIX C
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
We Hereby Notify Our Employees That:
WE WILL NOT bypass Local 2991 by refusing to negotiate with it over
the bargainable aspects of employee accountability plans, prior to their
implementation.
WE WILL provide Local 2991 with an opportunity to negotiabe
bargainable aspects of employee accountability plans, before
implementation.
WE WILL withdraw all accountability plans formulated pursuant to the
Personnel Guide for Supervisors distributed by the Dallas Regional
Office in September 1980.
WE WILL destroy all documentation prepared pursuant to such
accountability plans.
WE WILL make whole any employee adversely affected by such
accountability plans consistent with applicable law and regulations.
(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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 6,
whose address is P.O. Box 2640, Dallas, TX 75221 and telephone number is
(214) 767-4996.
Case No. 0-AR-1235
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF LOCALS, LOCAL
2723
Union
and
DEFENSE LOGISTICS AGENCY, DCASAR, LOS ANGELES
Agency
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Gerald A. McKay filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Decision on Motion for Reconsideration of 18 FLRA No. 28
Case No. 5-CA-20218 (18 FLRA NO. 28)
DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, DETROIT
DISTRICT
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2130, AFL-CIO
Charging Party
October 31, 1986
DECISION ON MOTION FOR RECONSIDERATION
I. Statement of the Case
This matter is before the Authority on a motion by the Charging Party
(the Union) for reconsideration of the Authority's decision in
Department of the Army, U.S. Army Corps of Engineers, Detroit District,
18 FLRA No. 28 (1985). /1/
II. The Authority's Decision
The unfair labor practice complaint alleged that the Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to bargain
over the Union's proposal concerning the competitive area which the
Respondent would use in a reduction-in-force (RIF). In concluding that
the complaint should be dismissed, the Authority determined that the
disputed proposal was outside the duty to bargain, relying on
regulations of the Office of Personnel Management (OPM) codified at 5
CFR Section 351.402(b) (1984).
III. The Motion for Reconsideration
The Union, in its timely motion for reconsideration, asserts that the
1984 OPM regulations relied upon by the Authority had not yet become
effective at the time of our Decision. It further asserts that, in any
event, the Authority should have applied the OPM regulations that were
in effect at the time the alleged unfair labor practice occurred.
The Union's first assertion is correct. At the time of our Decision,
Congress had temporarily barred implementation of the 1984 regulations,
and the United States District Court for the District of Columbia had
ordered that the provisions codified at 5 CFR Section 351.402 (1983) be
reissued in 5 CFR Section 351.402 (1984 Supp.). See National Federation
of Federal Employees v. Devine, 591 F. Supp. 166 (D.D.C. 1984).
Further, the regulations that were in effect at the time the alleged
unfair labor practice occurred (February 11, 1982) were those codified
at 5 CFR Section 351.402 (1982).
The Authority finds that, pursuant to section 2429.17 of our Rules
and Regulations, the Union has established a basis for reconsideration.
IV. Analysis on Reconsideration
While we agree that the 1982 regulations were those in effect at the
time the alleged unfair labor practice occurred, rather than the
judicially blocked 1984 regulations, /2/ this does not change the result
in this case.
Since the issuance of our Decision in this case, the Authority has
reviewed the extent to which proposals concerning competitive areas are
negotiable. On remand from the United States Court of Appeals for the
District of Columbia Circuit, the Authority was directed to explain an
apparent inconsistency between its holdings in Association of Civilian
Technicians, Pennsylvania State Council and Pennsylvania Army and Air
National Guard, 14 FLRA 38 (1984) (ACT), and American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 14 FLRA 754 (1984) (Local 32). Local 32, American
Federation of Government Employees v. FLRA, 774 F.2d 498 (D.C. Cir.
1985).
In its Decision and Order on Remand in Local 32, the Authority stated
as follows:
In summary, the proposals in both the ACT and Local 32 cases
would have directly determined the conditions of employment of
bargaining unit employees. The critical difference between the
proposals lies in the nature and degree of the impact they would
have on nonunit employees. The competitive area proposed in ACT
only affected conditions of employment of nonunit employees
indirectly: it excluded them from the negotiated competitive
area. The proposed competitive area in Local 32, in contrast,
consistent with the requirements of applicable OPM regulations,
encompassed nonbargaining unit employees in the negotiated
competitive area. It directly determined, that is, prescribed,
their competitive area.
Consistent with this analysis, in all cases since Local 32
dealing with competitive areas where an agency has objected to
bargaining based upon the fact that a proposed competitive area
would directly determine nonunit employees' conditions of
employment, the Authority has held the proposals to be outside the
mandatory obligation to bargain.
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 22 FLRA No. 49, slip op. at 8 (1986),
petition for review filed sub nom. American Federation of Government
Employees, Local 32 v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986).
Accordingly, proposals that limit competitive areas to bargaining
unit employees, but are silent as to what competitive areas non-unit
employees would be in, do not directly determine or prescribe non-unit
employees' competitive areas. Therefore, such proposals are not outside
the duty to bargain on that basis. However, these proposals must also
be consistent with applicable regulations. For the reasons that follow,
we find that in the case now before us on reconsideration, the Union
proposal is outside the duty to bargain because it is inconsistent with
applicable OPM regulations.
The regulations bearing on this subject as codified in 5 CFR Section
351.402 (1982) provided, in pertinent part, as follows:
Section 351.402 Competitive area.
(a) Each agency shall establish competitive areas in which
employees compete for retention under this part.
(b) The standard for a competitive area is that it include all
or that part of an agency in which employees are assigned under a
single administrative authority. A competitive area in the
departmental service meets this standard when it covers a primary
subdivision of an agency in the local commuting area. A
competitive area in the field service meets this stgandard when it
covers a field installation in the local commuting area.
(c) An agency may establish a competitive area larger than one
that meets the standard named in paragraph (b) of this section.
In exceptional circumstances, and with the prior approval of the
Office (of Personnel Management), an agency may establish a
competitive area smaller than one that meets the standard named in
paragraph (b) of this section. Agencies which have been delegated
individual authority to do so may establish competitive areas
smaller than named in paragraph (b) of this section, with prior
approval of the Office(.)
The Charging Party's proposal in this case sought to negotiate for a
competitive area limited to the employees it represents in bargaining
units within the Respondent's Detroit District. The Detroit District is
an identifiable agency organizational unit and geographical location.
However, the Detroit District also encompasses other employees and other
bargaining units not represented by the Charging Party. The competitive
area proposed by the Charging Party therefore does not satisfy the OPM
1982 regulations, as it does not include all of the employees within the
Respondent's Detroit District. /3/
V. Conclusion
We conclude that the Charging Party's proposal, considered under OPM
provisions published at 5 CFR Section 351.402 (1982), was outside the
duty to bargain. The Respondent by refusing to bargain on the Charging
Party's competitive area proposal therefore did not violate section
7116(a)(1) and (5) of the Statute. Accordingly, we reaffirm our Order
that the complaint in this proceeding be dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Respondent's "Response to Charging Party's Motion For
Reconsideration" was not timely filed and has not been considered.
(2) Those regulations eventually became effective on September 30,
1985. American Federation of Government Employees v. Office of
Personnel Management, 618 F. Supp. 11284 (D.D.C. 1985). OPM has again
recently revised these Government-wide RIF regulations. 5 CFR Section
351.402(b), 51 Fed. Reg. 318 (1986).
(3) OPM's revised regulations, 5 CFR Section 351.402 (1984),
explicitly provide that a competitive area "must include all employees
within the competitive area so defined." As discussed above at note 2,
those regulations became effective on September 30, 1985. OPM's
recently revised regulations are to the same effect. 5 CFR Section
351.402(b), 51 Fed. Reg. 318 at 321 (1986).
23 FLRA No. 103
Federal Union of Scientists and Engineers, NAGE, Local R1-144 and
U.S. Dep't of the Navy, Naval Underwater Systems Center, Case No.
0-NG-1267 (Decided October 31, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A)
SUBJECT MATTER INDEX ENTRIES
Negotiability
GovernmentWide Rule or Regulation
Found to be Government-Wide
5 C.F.R. Sections 351,501 -- 351.506 (1986)
Management Rights
Remove Employees
Super Seniority for Union Officials in RIFs
Reduction-in-Force
Government-Wide Rule or Regulation
5 C.F.R. Sections 351.501 -- 351.506 (1986)
Preferential Treatment for Union Officials
Super Seniority
r5 C.F.R. Part 351
FPM Letter 351-20, subchapter 3
DIGEST NOTES
A proposal is nonnegotiable that would require, in a RIF, the agency
consider union officials and stewards to be senior to all other
employees who are in the same competitive level and have the same tenure
status. The proposal would violate the agency's right to remove
employees under section 7106(a)(2)(A) by compelling first removal of
employees who were not union officials and stewards. Also the proposal
is contrary to OPM RIF regulations (5 C.F.R. sections 351.506 (1986)),
which have been found to be Government-wide regulations. Under those
regulations, an employee's retention standing is determined by the
combination of tenure group, subgroup (veterans preference status),
length of service and annual performance ratings. Because the proposal
would award greatest seniority within a tenure group to union officials
and stewards, based on their union office, it is inconsistent with these
regulations.
Case No. 0-NG-1267
FEDERAL UNION OF SCIENTISTS AND ENGINEERS, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-144
Union
and
U.S. DEPARTMENT OF NAVY, NAVAL UNDERWATER SYSTEMS CENTER
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
The petition for review in this case comes 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
raises an issue concerning the negotiability of one Union Proposal to
grant "super seniority" to Union officials and stewards in a
reduction-in-force. For the following reasons we hold that the proposal
is nonnegotiable.
II. Union Proposal
Union officials and stewards shall for the purposes of
reduction-in-force during their official tenure of office be
considered the most senior employees in their competitive level
and tenure status.
III. Positions of the Parties
The Agency contends that this proposal conflicts with management's
right under section 7106(a)(2)(A) to remove employees in that it would
compel the Agency to remove other employees before removing union
officials and stewards in a reduction-in-force (RIF). Additionally, it
argues that the proposal is inconsistent with a Government-wide rule or
regulation -- specifically, the Office of Personnel Management (OPM)
regulations found at 5 CFR Part 351.
The Union disputes the Agency's assertion that this proposal is
nonnegotiable. It asserts that there is no Agency regulation for which
a compelling need exists which bars negotiation of this proposal. /1/
IV. Analysis and Conclusions
A. The Proposal Conflicts with a Management Right
This proposal would require that, in a RIF, the Agency consider union
officials and stewards to be senior to all other employees who are in
the same competitive level and have the same tenure status. Absent any
contrary statement by the Union, we interpret the terms "competitive
level" and "tenure status" in this proposal as having the same
respective meanings ascribed to the terms "competitive level" and
"tenure group" in the OPM regulations governing RIF's. /2/ "Competitive
level" is a grouping of positions based on their similarity. Employees
are placed in a "tenure group" based on the nature of their appointment,
for example, career, career-conditional, or indefinite. In American
Federation of Government Employees, Local 2612, AFL-CIO and Department
of the Air Force, Headquarters, 416th Combat Support Group (SAC),
Griffiss Air Force Base, New York, 19 FLRA No. 117 (1985) (Union
Proposal 2), the Authority held nonnegotiable a proposal requiring union
officers and stewards to be the last employees in a given job
classificaation to be removed in the event of a RIF. The Authority
reasoned that the proposal would violate the agency's right to remove
employees under section 7106(a)(2)(A) by compelling first removal of
employees who were not union officials and stewards. This proposal is
to the same effect. In a RIF action it would, similarly to the proposal
in Griffiss AFB, compel the Agency to remove other employees in a given
competitive level and tenure group prior to removing Union officers and
stewards. For the reasons stated in Griffiss AFB and the cases cited in
that decision, the Authority finds that this proposal directly
interferes with the Agency's right under section 7106(a)(2)(A) to remove
employees.
B. The Proposal Conflicts with a Government-wide Rule or
Regulation
The OPM RIF regulations prescribe several specific criteria by which
employees must be ranked for purposes of determining their relative
retention standing within a competitive level. 5 CFR Sections
351.501-351.506 (1986). Under those regulations an employee's retention
standing is determined by the combination of tenure group, subgroup
(veterans preference status), length of service and annual performance
ratings. Because the proposal would award greatest seniority within a
tenure group to Union officials and stewards, based on their union
office, it is inconsistent with these regulations. National Treasury
Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau
of Government Financial Operations, 22 FLRA No. 58 (1986). The proposal
is, therefore, not within the duty to bargain.
V. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Union's petition for review be, and it hereby is,
dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Agency does not assert before us that negotiations on the
proposal are barred by an Agency regulation. Therefore, we need not
further address this Union claim.
(2) 5 CFR Part 351 and FPM Letter 351-20, subchapter 3.
23 FLRA NO. 102
Dep't of Justice, Bureau of Prisons and AFGE, Local 1741 (Brown,
Arbitrator), Case No. 0-AR-1236 (Decided October 31, 1986)
STATUTE
7121(f)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Procedure
Forums
Arbitrability of Matters Covered under 5 U.S.C. sec. 7512
Review of Matters Covered Under 5 U.S.C. sec. 7512
DIGEST NOTES
Exceptions to an arbitration award relating to the removal of a
grievant may not be filed with the Authority under section 7122(a).
Exceptions to arbitration awards relating to adverse actions under 5
U.S.C. section 7512, including removals, are precluded by section
7121(f) of the Statute from review by the Authority. Review of
arbitration awards relating to matters described in section 7121(f) must
be obtained in the same manner and under the same conditions as if the
matter involved had been decided by the Merit Systems Protection Board.
Determination of the procedural arbitrability by arbitrators in
grievances concerning adverse actions under 5 U.S.C. section 7512 may be
reviewed by the U.S. Circuit Court of Appeals for the Federal Circuit.
Case No. 0-AR-1236
DEPARTMENT OF JUSTICE, BUREAU OF PRISONS
Agency
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1741
Union
ORDER DISMISSING EXCEPTIONS
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Barry C. Brown filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The matter submitted to arbitration concerned the grievant's removal
from the Federal Service. Before addressing the merits of the
grievance, the Arbitrator determined that the Union had failed to comply
with the procedural requirements of the parties' collective bargaining
agreement for invoking arbitration and that these procedural defects
were highly prejudicial to the Agency's rights. Accordingly, he
concluded that the grievance was not arbitrable and that it must be
dismissed. The Union's exceptions in this case are to the Arbitrator's
determination that the grievance was not arbitrable.
II. ANALYSIS AND CONCLUSIONS
We conclude that we are without jurisdiction to review the Union's
exceptions. Section 7122(a) provides, in part:
Either part 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
a removal. Review of an arbitration award relating to such matters must
be obtained in the same manner and under the same conditions as if the
matter involved had been decided by the Merit Systems Protection Board.
Veterans Administration Medical Center, Kansas City, Missouri and
American Federation of Government Employees, 23 FLRA No. 40 (1986). In
that regard, determinations of procedural arbitrability by arbitrators
in grievances concernsing adverse actions under 5 U.S.C. Section 7512
may be reviewed by the U.S. Circuit Court of Appeals for the Federal
Circuit. See Huey v. Department of Health and Human Services, 782 F.2d
1575 (Fed. Cir. 1986).
Because the Arbitrator's award in this case relates to the matter of
the grievant's removal, exceptions to the award may not be filed with
the Authority under section 7122(a) of the Statute. To the extent that
the Authority's decision in Naval Ordnance Station Louisville, Kentucky
and Lodge No. 830, International Association of Machinists and Aerospace
Workers, 11 FLRA 19, 20 n.3 (1983), is contrary to our holding in this
case, that decision will no longer be followed.
IV. DECISION
Accordingly, the Union's exceptions are dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
23 FLRA NO. 101
FHA Finance Office, St. Louis, Mo. and AFGE, Local 3354, Case No.
7-CA-30560 (Decided October 31, 1986)
STATUTE
7114(a)(1)
7114(b)(4)
7116(a)(1), (5) and (8)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Refusal to Negotiate
Provide Names and Addresses of Employees
Otherwise Refuse to Comply with the Statute
7114(b)(4)
Remedies
Provide Names and Addresses of Bargaining Unit Members to Union
Information
Necessity or Relevance
Alternates to Achieve Purpose of Requested Information
Mere Existence of Alternates Insufficient for Denial
Direct Mailing Significantly Different Than On-the-Job Contact
Request for Information
Written Request Need Not Explain Reasons
Privacy
Privacy Act (5 U.S.C. section 552a)
Exception ((b)(2)): FOIA (5 U.S.C. sec. 552(b)(6))
Names and Addresses
Exception ((b)(3)): Routine Use Exception
Names and Addresses
DIGEST NOTES
The names and home addresses of bargaining unit employees should be
provided the exclusive representatives upon its written request, the
Authority held in reversing a prior decision. There are two exceptions
to the Privacy Act's (5 U.S.C. section 552a) bar to disclosure
applicable in the case: exception (b)(2) concerning the Freedom of
Information Act and exception (b)(3) relating to "routine use" of
information.
In balancing the employees' privacy interest against the public
interest in disclosure, the Authority found that the balance favors
disclosure of the names and addresses sought by the union. The privacy
interest of the average employee in his address is not particularly
compelling. For example, although some employees do not favor the
release of their names and home addresses, many of these employees
already receive and often discard unsolicited mail. Also a union
already has access to information such as salary levels that is more
likely to implicate privacy concerns than the information sought.
Therefore, the disclosure of the requested information would not
constitute a clearly unwarranted invasion of personal privacy and does
not fall within the (b)(6) exemption of the Freedom of Information Act
(5 U.S.C. section 552).
Exception (b)(3) of the Privacy Act permits disclosure of information
for a "routine use". Section (a)(7) of the Privacy Act defines routine
use as "the use of such record for a purpose which is compatible with
the purpose for which it is collected." The Office of Personnel
Management (OPM) published notices defining the routine uses of
personnel records of Federal employees. One notice defines a routine
use as the disclosure of information to "officials of labor
organizations recognized under 5 U.S.C. Chapter 71 when relevant and
necessary to their duties as exclusive representation(.)" This standard
is effectively the same as section 7114(b)(4)'s limitation of an
agency's obligation to provide information. Accordingly, the Authority
concluded that disclosure of the names and home addresses of bargaining
unit employees falls within the "routine use" exception of the Privacy
Act.
A union's written request for names and home addresses need not
contain an explanation of the reasons for the request. A union's
statutory obligations involve a broad range of representational
activities. Section 7114(a)(1) of the Statute provides that an
exclusive representative is responsible for representing the "interest
of all employees in the unit it represents without discrimination and
without regard to labor organization membership." A union must be able
to communicate with those bargaining unit members if it is to adequately
represent them. Names and home addresses are essential to direct mail
communications. Alternate means of communication, such as desk drops,
direct distribution at the work place, meetings, bulletin boards, and
direct personal contacts, do not always provide adequate means of
communications with bargaining unit employees.
Direct mailing to employees, which the disclosure of names and
addresses facilitates, is an effective and efficient means of
communication in many instances. Direct mail as a means of
communication is fundamentally different from other alternatives which
are controlled in whole or in part by the agency. When using direct
mailings, the content, timing, and frequency of communication is
completely within the discretion of the message. Further, possibility
of agency interference in the distribution of the message. Further,
direct mailings reach unit employees in circumstances where those
employees may consider the union's communication without regard to the
time constraints inherent in their work environments, and in which any
restraint the employee may feel as a result of the presence of agency
management in the workplace is not present.
Disclosure of names and home addresses need not be made in situations
where, for example, the evidence discloses that a union has acted in a
manner which leads to the conclusion that the employees whose addresses
would be disclosed would be in imminent danger if the union knew where
they lived.
Case No. 7-CA-30560 (19 FLRA No. 21)
FARMERS HOME ADMINISTRATION FINANCE OFFICE, ST. LOUIS, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354
Charging Party
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The question before the Authority is whether it was an unfair labor
practice under the Federal Service Labor-Management Relations Statute
(the Statute) for the Respondent (Agency) to refuse a request, made
pursuant to section 7114(b)(4) of the Statute, to provide the Charging
Party (Union) with the names and home addresses of employees in a
bargaining unit which the Union exclusively represents.
For the reasons which follow, we conclude that Respondent's refusal
to provide the information violated the Statute, and we reverse the
Authority's previous decision in this matter.
II. Procedural Background
In a previous decision in this case, Farmers Home Administration
Finance Office, St. Louis, Missouri, 19 FLRA No. 21 (1985), the
Authority, relying on the decision of the United States Court of Appeals
for the Fourth Circuit in American Federation of Government Employees,
Local 1923 v. United States Department of Health and Human Services, 712
F.2d 9931 (4th Cir. 1983), held that the release of home addresses was
not required pursuant to section 7114(b)(4) of the Statute because the
disclosure of such information was "prohibited by law," specifically the
Privacy Act. /1/
The Charging Party/Union in this case, and the unions involved in
other cases in which the Authority followed the precedent established by
this case, petitioned the courts for review of the Authority's
decisions. In the course of the litigation that ensued, it became
apparent that an issue raised before the Authority regarding the
applicability of the Privacy Act had not been addressed by the Authority
in rendering its decision in this case -- namely, whether the union was
entitled to the names and home addresses of unit employees under the
routine use exception of the Privacy Act, 5 U.S.C. Section 552a(b)(3).
The Authority therefore sought remand of this case and three other
substantially identical cases awaiting judicial review in order to
reconsider its decisions and to address in the first instance the issue
of whether disclosure of the names and home addresses of unit employees
was or was not prohibited by law because of the applicability of the
"routine use" exception of the Privacy Act, and such other issues
arising under the Statute as might be appropriate. The remand requests
were granted in this case, American Federation of Government Employees,
Local 3354 v. FLRA, No. 85-1493 (D.C. Cir.) (reviewing 19 FLRA No. 21),
and in two others, National Federation of Federal Employees, Local 1827
v. FLRA, No. 85-2202 (8th Cir.) (reviewing 19 FLRA No. 85) and
Philadelphia Metal Trades Council v. FLRA, No. 85-1625 (D.C. Cir.)
(reviewing 19 FLRA No. 107).
In contrast to the D.C. and Eighth Circuits, the United States Court
of Appeals for the Second Circuit denied the Authority's remand request
and issued a decision. In that decision the Second Circuit reversed the
Authority's holding that the release of names and home addresses was
"prohibited by law," i.e., the Privacy Act, under section 7114(b)(4) of
the Statute. American Federation of Government Employees, Local 1760 v.
FLRA, 786 F.2d 554 (2nd Cir. 1986). The Second Circuit applied the same
balancing test used by the Authority. Contrary to the Authority and the
Fourth Circuit, however, the court found that "the privacy interest of
the average employee in his address is not particularly compelling." Id.
at 556. Instead, the court noted Congress' determination that
collective bargaining is in the public interest, and the court's prior
holdings in private sector cases that the mere existence of alternative
means of communication is not sufficient to justify the refusal to
release home addresses. The court also noted that it agreed with the
Administrative Law Judge that the alternative means available to the
union were inadequate, and that the other requirements of the Statute
for release had been met. The court therefore remanded that case (19
FLRA No. 108) to the Authority to find a violation and require the
Respondent to disclose unit employees' home addresses to the union. The
court did not address the "routine use" issue.
In order to give full consideration to the issues raised as to the
disclosure of names and home addresses to exclusive representatives in
the instant case, and in the other cases remanded by the D.C. and Eighth
Circuits as well as other pending cases, the Authority issued a notice
in the Federal Register, 51 Fed. Reg. 21,416 (1986), providing an
opportunity for all interested agencies, labor organizations, and other
interested persons to file amicus briefs dealing with these issues. The
Authority has considered these submissions, as well as the entire record
in this case, in reaching its decision. Although the parties in this
case did not submit supplementary statements in response to the Federal
Register notice, the American Federation of Government Employees did
file an amicus brief outlining its position on the issues presented by
these cases.
III. Analytical Framework and Previous Decision
As relevant to this case, section 7114(b)(4) of the Statute requires
an agency to furnish to an exclusive representative, upon request and to
the extent not prohibited by law, data which is (1) normally maintained
by the agency in the regular course of business; and (2) reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
In the previous decision in this case, the Authority held that the
release of names and home addresses was not required pursuant to section
7114(b)(4) because disclosure was "prohibited by law," specifically the
Privacy Act.
The Privacy Act generally prohibits the disclosure of personal
information about Federal employees without their 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). /2/ Exemption
(b)(6) of the FOIA provides that information contained in personnel
files (as well as medical and other similar files) may be withheld if
disclosure of the information would constitute a "clearly unwarranted
invasion of personal privacy(.)"
Applying the balancing test developoed by the Federal courts in cases
l concerning the (b)(6) exemption to the FOIA, the Authority weighed the
public interest which would be served by providing the Union with names
and home addresses against the employees' interests in maintaining their
privacy. The Authority concluded that "the employees' strong privacy
interest in their home addresses outweighs the necessity of the data for
the Union's purposes in the circumstances of this case." 19 FLRA No. 21
at 4. Since the information requested by the Union fell within the
(b)(6) exemption, disclosure of the information was not required under
the FOIA. Therefore, the Authority found that the requirements of the
(b)(2) exception to the Privacy Act were not met and disclosure of the
information was prohibited. The Authority also found that the record
established that the Union had "alternative means of . . . communication
available." Id. Because of the finding that disclosure of the
information was prohibited by law, the Authority did not address whether
the Union's request met the other requirements of section 7114(b)(4).
IV. Analysis on Remand
Consistent with the requirements of section 7114(b)(4), it is
necessary to determine whether (1) disclosure of the names and home
addresses of bargaining unit employees is prohibited by law, (2) the
information is normally maintained by the Agency in the regular course
of busines, (3) the Union properly requested the information, and (4)
the information is reasonably available and necessary within the meaning
of that section. These issues will be addressed in turn.
A. Prohibited by Law
Provisions of the Privacy Act and the Freedom of Information Act are
relevant to the determination of whether the disclosure of the
information is prohibited by law. The Authority previously held that
disclosure was prohibited by the Privacy Act. There are two exceptions
to the Privacy Act's bar to disclosure which are applicable to this
discussion: exception (b)(2) concerning the Freedom of Information Act,
and exception (b)(3) relating to "routine use" of information.
1. FOIA
If the disclosure of the requested information is required by the
FOIA, the Privacy Act's bar to disclosure is not applicable. 5 U.S.C.
Section 552a(b)(2). Under the FOIA, requested information must be
disclosed unless it falls within one of the enumerated exemptions. The
exemption pertinent to this case is exemption (b)(6) which authorizes
withholding information in "personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy(.)"
In the previous decision in this case, the Authority balanced
employees' privacy interests against the public interest in disclosure
and found that the requested information fell within exemption (b)(6).
In doing so, the Authority relied on the decision of the Court of
Appeals for the Fourth Circuit in AFGE Local 1923, 712 F.2d 931. For
the following reasons, we reverse our previous decision on this point
and find that the requested information may not be withheld pursuant to
exemption (b)(6).
It is necessary to balance competing interests to determine whether
requested information falls within exemption (b)(6). It is also
important to recognize, as emphasized in the amicus submissions filed by
various labor organizations, that the FOIA embodies "a general
philosophy of full agency disclosure unless information is exempted
under clearly delineated statutory language." Department of Air Force v.
Rose, 425 U.S. 352, 360-61 (1976). Further, exemption (b)(6)'s
limitations to "clearly unwarranted" disclosures instructs us to "tilt
the balance in favor of disclosure." Getman v. NLRB, 450 F.2d 6770, 674
(D.C. Cir. 1971).
Consistent with this framework, we find that the balance favors
disclosure of the names and home addresses sought by the Union. In
section 7101 of the Statute Congress found that collective bargaining in
the Government is in the public interest and safeguards that interest.
The disclosure of the information sought would enable the Union to
identify the members of the bargaining unit which it is required to
represent. Disclosure also would contribute to the Union's ability to
communicate with its bargaining unit members and thereby enable it to
better fulfill its responsibilities under the Statute. If employees are
to exercise their statutory rights, they must be aware of the issues
affecting them. By providing the Union with an efficient method of
communication, disclosure of names and home addresses will facilitate
the fullest exercise of employee rights.
On further consideration of this case, we also agree with the Court
of Appeals for the Second Circuit that "the privacy interest of the
average employee in his address is not particularly compelling." 786
F.2d at 556. For example, while amicus submissions by individuals
indicate that some employees do not favor the release of their names and
home addresses, many of the submissions also show that these employees
already receive and often discard unsolicited mail. There is, of
course, nothing to prevent these employees from handling communications
from the Union in the same way, nor are employees prevented from
requesting that they be deleted from the Union's mailing list. As noted
by the Second Circuit, a union already has access to information such as
salary levels that is more likely to implicate privacy concerns rather
than the information sought here. Id.
On balance, we find that the public interest to be furthered by
providing the Union with an efficient method to communicate with unit
employees it must represent far outweighs the privacy interests of
individual employees in their names and home addresses. Disclosure of
the requested information would not constitute a clearly unwarranted
invasion of personal privacy and does not fall within the (b)(6)
exemption to the FOIA. Since the information does not fall within the
exemption, its disclosure is required under the FOIA and, under
exception (b)(2) to the Privacy Act, its release is not prohibited by
law.
2. Routine Use
Exception (b)(3) of the Privacy Act permits disclosure of information
for a "routine use." Section (a)(7) of the Privacy Act defines routine
use as "the use of such record for a purpose which is compatible with
the purpose for which it was collected." The Office of Personnel
Management (OPM) publishes notices defining the routine uses of
personnel records of Federal employees. One notice defines a routine
use as the disclosure of information to "officials of labor
organizations recognized under 5 U.S.C. Chapter 71 when relevant and
necessary to their duties of exclusive representation(.)" 49 Fed. Reg.
36,956 (1984). This standard is effectively the same as section
7114(b)(4)'s limitation of an agency's obligation to provide information
to that which is "necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining(.)"
As discussed below, we conclude that the disclosure of the names and
home addresses of bargaining unit employees to the Union is necessary
within the meaning of section 7114(b)(4) of the Statute for the Union to
discharge its statutory obligations. Consistent with that conclusion,
we find that disclosure of the information sought here falls within the
routine use established by OPM, and its disclosure is therefore a
routine use under exception (b)(3) of the Privacy Act. Therefore, even
if the disclosure was not authorized under exception (b)(2) of the
Privacy Act, relating to the FOIA, it is authorized under exception
(b)(3).
Release of the requested information is therefore not prohibited by
law. It may be released pursuant to exceptions (b)(2) and (3) of the
Privacy Act.
B. Normally Maintained by the Agency
The Administrative Law Judge found that the names and home addresses
sought by the Union were maintained by the Respondent in Official
Personnel Files (OPFs), a card index system, and a computer file. He
concluded that the information was normally maintained in the regular
course of business. We agree and find that the requested information is
normally maintained by the Agency in the regular course of business
within the meaning of section 7114(b)(4) of the Statute.
We note that although OPM retains responsibility for OPFs, they are
physically maintained by employing agencies. While agency amici
question whether OPFs are the best source for current home addresses,
the Department of Justice notes in its amicus submission that there is
"no question that the home addresses of federal employees . . . are in
their personnel files."
C. Union Request
The Union requested in writing the names and home addresses of
bargaining unit employees to enable it to prepare for contract
negotiations. Although not raised in this case, some amicus submissions
questioned whether a request must be tied to a specific issue about
which the union needs to communicate with its bargaining unit members.
As discussed throughout this decision, a union's statutory
obligations involve a broad range of representational activities. We
find that the statutory requirement concerning sufficiency of a request
under section 7114(b)(4) is satisfied for requests such as that involved
here 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 requirement for a request was met in this case.
Our conclusion that a written request for names and home addresses
need not contain an explanation of the reason for the request is
consistent with previous decisions where we held that an agency's duty
to furnish other information under section 7114(b)(4) of the Statute
turns on the nature of the request and the circumstances of each case.
For example, Department of Health and Human Services, Social Security
Administration and Social Security Administration, Field Operations, New
York Region, 21 FLRA No. 35 (1986). In our view, an exclusive
representative's need for the names and home addresses of the bargaining
unit employees it is required to represent is so apparent and
essentially related to the nature of exclusive representation itself,
that unlike requests for certain types of other information, an agency's
duty to supply names and home addresses information does not depend upon
any separate explanation by the union of its reasons for seeking the
information.
D. Reasonably Available and Necessary
As discussed previously in connection with the statutory requirement
that the requested information be normally maintained by the agency, the
names and home addresses of bargaining unit employees are contained in
OPFs and, in this case, the ALJ found that the information was also
available through an index system and a computer file. The information
is reasonably available within the meaning of section 7114(b)(4).
As for whether the information is necessary for unions to discharge
their responsibilities under the Statute, the amicus submissions show
disagreement among the parties. Generally, unions argued that the
disclosure of names and home addresses is necessary for them to meet
their statutory obligations. Agencies contended that these obligations
could be fulfilled without disclosure of the information, through
effective alternative means of communication.
Section 7114(a)(1) of the Statute provides that an exclusive
representative is responsible for representing the "interests of all
employees in the unit it represents without discrimination and without
regard to labor organization membership." Under this provision, a
union's statutory responsibilities extend to all bargaining unit
members. It is obvious that a union must be able to identify and
communicate with those bargaining unit members if it is to adequately
represent them.
Consistent with the amicus submissions of many agencies, the ALJ in
this case found that the disclosure of names and home addresses was
unnecessary because other means of communication, such as desk drops,
direct distributions, meetings, bulletin boards, and direct personal
contacts were available to the Union and provided adequate means of
communication. We disagree. The disclosure of names and home addresses
will enable the Union to communicate effectively and efficiently,
through direct mailings to individual employees. The information is
readily available within Agency files and its disclosure will enhance
the exercise of employee rights as well as the communication process
between employees and the Union.
We will not review the adequacy of alternative methods of
communication on a case-by-case basis. Consistent with the view of the
Court of Appeals for the Second Circuit discussed above, we find that
the mere existence of alternative means of communication is insufficient
to justify a refusal to release the information. Further, we find that
it is not necessary for us to examine the adequacy of alternative means
in cases involving requests for names and home addresses because the
communication between unit employees and their exclusive representative
which would be facilitated by release of names and home addresses
information is fundamentally different from other communication through
alternative means which are controlled in whole or in part by the
agency. When using direct mailings, the content, timing, and frequency
of the communication is completely within the discretion of the union
and there is no possibility of agency interference in the distribution
of the message. Further, direct mailings reach unit employees in
circumstances where those employees may consider the union's
communication without regard to the time constraints inherent in their
work environments, and in which any restraint the employee may feel as a
result of the presence of agency management in the workplace is not
present. We find that the names and home addresses of unit employees
are necessary and should be provided whether or not alternative means of
communication are available.
Our decision that names and home addresses information should be
released is consistent with private sector precedent. /3/ The National
Labor Relations Board has held that names and addresses of unit
employees are "prersumptively relevant to (a) (u)nion's role as
bargaining agent either during contract negotiations or during the term
of an agreement." Georgetown Holiday Inn, 235 NLRB 485, 486 (1978). /4/
The Board has not treated the presumption favoring the disclosure of
names and home addresses as an irrebuttable one. Disclosure need not be
made in situations where, for example, the evidence discloses that a
union has acted in a manner which leads to the conclusion that the
employees whose addresses would be disclosed would be in imminent danger
if the union knew where they lived. See, for example, Shell Oil Co. v.
NLRB, 457 F.2d 615 (9th Cir. 1972). There is no such contention in this
case.
V. Conclusion
We have considered the entire record in this case as well as the
amicus submissions filed in response to our notice in the Federal
Register. We conclude 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).
Respondent was required to furnish the names and home addresses
requested by the Union without regard to whether alternative means of
communication were available or adequate. Respondent's refusal to
furnish 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, it is ordered that the Farmers Home Administration Finance
Office, St. Louis, Missouri shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, Local 3354, 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 action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the American Federation of Government Employees,
AFL-CIO, Local 3354, the exclusive representative of its employees,
furnish it with the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at all its facilities where bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO,
Local 3354 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 Farmers
Home Administration Finance Office, St. Louis, Missouri, and shall be
posted and maintained for 60 consecutived days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Privacy Act of 1974, 5 U.S.C. Section 552a (1982).
(2) Freedom of Information Act, 5 U.S.C. Section 552 (1982).
(3) The National Labor Relations Act (NLRA) does not contain a
provision equivalent to section 7114(b)(4) of the Statute. Rather,
unions' rights to receive information are an outgrowth of the obligation
to bargain in good faith under section 8(a)(5) of the NLRA. For a
discussion of the private sector obligation see NLRB v. Acme Industrial
Company, 385 U.S. 432 (1967). See also Prudential Insurance Co. v.
NLRB, 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928 (1969), where
the court rejected the company's arguments that providing names and home
addresses was unnecessary because adequate alternative means of
communication (bulletin boards, grievance committees, hand
distributions, and union meetings) were available to the union. As for
the relevance of the information, the court stated that "(i)t seems
manifest beyond dispute that the Union cannot discharge its obligation
unless it is able to communicate with those in whose behalf it acts."
Id. at 84.
(4) See also Armstrong World Industries, Inc., 254 NLRB 1239, 1244
(1981), where the Administrative Law Judge, whose decision was adopted
by the Board, cited the Board's previous decision in Autoprod, Inc., 223
NLRB 773 (1973), and stated that the Autoprod decision "appears to state
flatly that a union is entitled to the addresses of unit employees,
whether or not those addresses could be obtained by other means and, a
fortiori, whether or not the union might be able to disseminate
information to unit employees by other means than mailing." This
statement also appears in the ALJ's decision in Harco Laboratories,
Inc., 271 NLRB 1397, 1398 (1984), which was also adopted by the Board.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, Local 3354, the exclusive
representative 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, upon request by the American Federation of Government
Employees, AFL-CIO, Local 3354, the exclusive representative of our
employees, furnish it with 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 its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.
23 FLRA No. 100
U.S. Dep't of the Treasury, IRS and IRS, Austin District, and IRS,
Houston District and NTEU and NTEU, Chapter 52 and NTEU, Chapter 222,
Case Nos. 6-CA-20127 and 6-CA-20128 (Decided October 31, 1986)
STATUTE
7116(a)(1), (6) and (8)
7118
7131(a)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Generally
Ministerial Acts of an Activity
Where Higher Level of Agency is Named in Complaint
Where Higher Level of Agency is Not Named in Complaint
Interfere, Restrain, Coerce Employees
Failure to Comply with a Lawful FSIP Order
Otherwise Refuse to Comply with the Statute
7131(a)
Federal Service Impasses Panel
Adopt Language in Parties' Agreement
Travel and Per Diem Provision
Enforcement of Panel Order
Remedy
Attorney Fees Denied
Equal Access to Justice Act (5 U.S.C. section 504)
Back Pay Act (5 U.S.C. section 5596)
Make Whole Employee and Union for Travel and Per Diem
DIGEST NOTES
The agency violated section 7116(a)(1) and (8) when it denied
employees official time for travel in violation of section 7131(a). The
employees participated in mid-term negotiations and traveled to the site
of negotiations during their regular work hours when they would have
otherwise been in a work or paid leave status. The parties' collective
bargaining agreement had a provision requiring such payments. That
provision was included in the parties' agreement as a result of a final
order by the Federal Service Impasses Panel (FSIP) in settlement of an
impasse.
The Authority has consistently held that an agency's refusal to
implement a decision and order of the Federal Service Impasses Panel
requiring the parties to adopt language in their collective bargaining
agreement violates section 7116(a)(1) and (6) unless the Authority finds
that the failure to comply with the Panel's Order was justified because
the provisions are contrary to the Statute or other applicable law, rule
or regulation. The agency's determination not to comply with the lawful
order of the Panel constituted a failure or refusal to cooperate in
impasse decisions. However, since the complaint failed to allege a
violation of section 7116(a)(6) of the Statute for failure to cooperate
in impasse procedures or decisions, the Authority is limited to finding
the agency's conduct violated section 7116(a)(1) in that such conduct
inherently interfered with the exercise by employees of their right
under section 7102 to engage in collective bargaining through their
chosen representatives, which right includes the utilization of the
processes of the Federal Servicee Impasses Panel.
It does not effectuate the purposes and policies of the Statute to
find an additional cumulative violation of the Statute against a
subordinate level of management named in a complaint, where the
subordinate agency level merely performed a ministerial act by complying
with the directives of a higher agency level that resulted in the
Statute violation. However, a different situation exists when the level
of management responsible for the directive is not named in the
complaint. In that case, where only the subordinate level of management
is named in the complaint, it is appropriate and consistent with
Congressional intent to find that the subordinate level violated the
Statute even when it only ministerial carried out the instruction of
higher agency management.
An award of attorney fees is not appropriate under either the Equal
Access to Justice Act (EAJA) (5 U.S.C. section 504) or the Back Pay Act
(5 U.S.C. section 5596) in the circumstances of this case. Authority
regulations provide that awards under the EAJA are availabled only to a
respondent, other than the United States, who prevails against the
General Counsel in an unfair labor practice proceeding. Therefore, the
union, as a charging party, is not entitled to an award of attorney fees
under the EAJA.
Under the Back Pay Act, an award of attorney fees must be based upon
a finding that an unjustified or unwarranted personnel action has been
committed which has deprived an aggrieved employee of pay, allowances,
or differentials" the employee would have earned or received if that
action had not occurred. While the refusal of the agency to comply with
the lawful FSIP order may have constituted an unwarranted personnel
action which resulted in the denial of travel and per diem expenses to
certain employees, travel and per diem expenses are not "pay,
allowances, or differentials" within the meaning of the Back Pay Act.
Rather, the "pay, allowances, or differentials" encompassed by the Back
Pay Act constitute normal legitimate employee benefits in the nature of
employee compensation or emoluments which do not extend to reimbursement
payments such as per diem.
Case Nos. 6-CA-20127, 6-CA-20128
UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE
AND INTERNAL REVENUE SERVICE, AUSTIN DISTRICT, AND INTERNAL REVENUE
SERVICE HOUSTON DISTRICT
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 52 AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 222
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
as a result of the Regional Director's transfer of the stipulated record
directly to the Authority for decision pursuant to section 2429.1(a) of
the Authority's Rules and Regulations. The consolidated complaint
alleges that the Department of the Treasury, Internal Revenue Service
(IRS), the IRS Austin District and the IRS Houston District, referred to
jointly as Respondents, violated section 7116(a)(1) and (8) of the
Statute by their refusal to pay travel and per diem expenses and allow
official time for travel to two employees representing the employees'
exclusive representative in negotiations as required by section 7131(a)
of the Statute.
II. Facts
On November 23 and 24, 1981, representatives of the Respondents and
the National Treasury Employees Union (the Union), engaged in
negotiations concerning procedures and appropriate arrangements for unit
employees adversely affected by a reorganization of Respondents'
facilities which resulted in the formation of Respondents' Houston
District. These negotiations took place in Austin, Texas. Two employee
representatives of the Union traveled to Austin, Texas from Houston and
San Antonio, Texas. Respondents rejected the employees' requests for
reimbursement of travel and per diem expenses and refused to grant
official time for travel to and from the negotiations. Respondents did
authorize official time for time actually spent by the employees in
negotiations.
Prior to the negotiations referred to above, IRS and the Union had
engaged in negotiatioins for a new national agreement. During these
negotiations, the Union introduced certain proposals dealing with
official time and the payment of union representatives' travel and per
diem expenses. These proposals resulted in an impasse which was
submitted to the Federal Service Impasses Panel (the Panel) for
resolution. The Panel subsequently issued an order directing the
inclusion of the Union's proposals in the parties' agreement. The IRS
subsequently declared these proposals to be nonnegotiable and thereafter
did not comply with the Panel's Order. The IRS' failure to comply with
the Decision and Order of the Panel was the subject of a separate unfair
labor practice charge. See Department of the Treasury and Internal
Revenue Service, 22 FLRA No. 89 (1986).
The Authority specifically notes that there are no facts in the
stipulated record of this case which explain the background or the
reasons for IRS' determination that the Union's proposals are
nonnegotiable or its subsequent decision not to comply with the Panel's
Order. Thus the Authority will take administrative notice that in
Department of the Treasury and Internal Revenue Servsice cited above,
the Authority found that Respondent Treasury violated section
71176(a)(1) and (6) of the Statute when it disapproved contract language
directed by the Panel's Order and directed Respondent IRS not to
incorporate such language in its collective bargaining agreement.
The provisions which the Panel directed the parties to include in
their national agreement provide as follows:
Section 3 -- Mid-Term Negotiations
. . . . . . .
C. If the parties enter into mid-contract negotiations during
the life of this agreement, the following ground rules will apply:
1. For nationally implemented changes referred to in Section
2A above:
. . . . . . .
c. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
. . . . . . .
2. For locally negotiated changes referred to in Section 4B1
above:
. . . . . . .
b. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
. . . . . . .
In the matter of Department of the Treasury, Internal Revenue
Service, Washington, D.C. and National Treasury Employees Union, Case
No. 80 FSIP 68 (1980). /1/
III. Positions of the Parties
A. The Respondents
The Respondents contend that they have not violated section
7116(a)(1) and (8) of the Statute as alleged in the complaint for the
following reasons: (1) The Authority's Interpretation and Guidance in 2
FLRA 265 (1979), on which the complaint is based, is without support
either in the wording of the Statute or its legislative history; (2)
The Respondents are without authority to expend appropriated funds for
the payment of employee representatives' travel and per diem expenses;
(3) Official time, as defined in section 7131(a) of the Statute, does
not cover travel to and from bargaining sessions; and (4) Official time
does not include travel and per diem expenses at local negotiations.
Respondents' brief was filed prior to the Supreme Court's decision in
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983),
which rejected the Authority's interpretation of the Statute in its
Interpretation and Guidance, 2 FLRA 265.
B. The General Counsel
The General Counsel contends that Respondents violated section
7116(a)(1) and (8) of the Statute when they refused to pay travel and
per diem expenses and allow official time for travel to employees
representing the Union in negotiations as provided for in section
7131(a) of the Statute. Essentially the General Counsel argues that the
Authority's Interpretation and Guidance in 2 FLRA 265 is applicable to
the facts presented in this case. /2/
C. The Charging Party
The Charging Party also contends that the Respondents violated
section 7131(a) in refusing to provide official time for travel, and in
denying travel and per diem expenses, for union representatives engaged
in mid-term negotiations. The Charging Party, as part of the remedy,
requests that it be awarded attorney fees under the Equal Access to
Justice Act, 5 U.S.C. Section 504, and the Back Pay Act, 5 U.S.C.
Section 5596, and that the two employees who were denied official time
for travel and travel and per diem expenses be made whole and otherwise
fully reimbursed for the denial of such expenses.
IV. Analysis
A. Issues Connected with the Internal Revenue Service's
Disapproval of the Panel-Directed Contract Language
The Authority has consistently held that an agency's refusal to
implement a Decision and Order of the Federal Service Impasses Panel
requiring the parties to adopt language in their collective bargaining
agreement violates section 7116(a)(1) and (6) of the Statute unless the
Authority finds that the failure to comply with the Panel's Order was
justified because the provisions are contrary to the Statute or other
applicable law, rule or regulation. Department of Defense, National
Guard Bureau, Indiana Air National Guard, Indianapolis, Indiana, 17 FLRA
23 (1985) and National Aeronautics and Space Administration,
Headquarters, Washington, D.C., 12 FLRA 480 (1983). In its decision in
Interpretation and Guidance, 15 FLRA 564 (1984), aff'd. sub nom.
American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d
850 (D.C. Cir. 1985), the Authority determined that the unfair labor
practice mechanism is available for the purpose of obtaining review of
an agency head's action in refusing to approve a provision of a
collective bargaining agreement imposed on the parties by a final order
of the Panel in resolving an impasse. When this occurs, the head of the
agency acts at risk and a union challenging the agency head's
disapproval may file a charge alleging that such conduct violated the
Statute.
Since the provisions imposed by the Panel in this case are not
materially different from the proposal recently found to be negotiable
by the Authority in 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), the determination by
the IRS not to comply with the lawful order of the Panel constituted a
failure or refusal to cooperate in impasse decisions. Since the
complaint fails to allege a violation of section 77116(a)(6) of the
Statute for failure to cooperate in impasse procedures or decisions, the
Authority is limited to finding that conduct of Respondent IRS violated
section 7116(a)(1) of the Statute in that such conduct inherently
interfered with the exercise by employees of their right under section
7102 of the Statute to engage in collective bargaining through their
chosen representatives, which right includes the utilization of the
processes of the Federal Service Impasses Panel. It is well established
that the impasse resolution procedures of the Panel operate as one
aspect of the collective bargaining process. International Brotherhood
of Electrical Workers, AFL-CIO, Local 121, 10 FLRA 198, 199 (1982).
Under these circumstances, Respondent IRS clearly interfered with
employees' rights guaranteed by the Statute. Department of the Treasury
and Internal Revenue Service, 22 FLRA No. 89 (1985).
In finding that the Respondent IRS violated the Statute in these
circumstances, the Authority notes the relationship between this case
and the Authority's decision in Department of the Treasury and Internal
Revenue Service, 22 FLRA No. 89 (1986). The allegations against the IRS
in that case were dismissed because the IRS had merely engaged in the
ministerial act of forwarding contractual language directed by the Panel
to Treasury for agency head review and thereafter failing to incorporate
the Panel directed language because of the determination by Treasury to
disapprove such language. Under those circumstances, where the
complaint alleged and the Authority found that Treasury had committed an
unfair labor practice by disapproving the Panel-directed language and
the Authority was able to issue an order against Treasury which
effectively remedied the unfair labor practice found, the Authority --
consistent with precedent -- dismissed the complaint against IRS because
it would not effectuate the purposes and policies of the Statute to find
an additional cumulative violation against subordinate level management.
U.S. Department of Justice and Department of Justice, Bureau of
Prisons, Washsington, D.C. and Federal Correctional Institution,
Danbury, Connecticut, 20 FLRA No. 5 (1985), enf'd, 792 F.2d 25 (2d Cir.
1986). In this case, however, where the complaint did not charge
Treasury with a violation but named only IRS and its subordinate
activities as Respondents, the Authority concludes that it would
effectuate the purposes and policies of the Statute to find a violation
against IRS. That is, such a finding here would not be merely
cumulative but is essential if the unfair labor practice committed is to
be effectively remedied. A conclusion that the complaint against IRS
must be dismissed because Treasury was not named as a Respondent would
preclude a remedy for the violation of statutory rights which occurred
here, a result which we conclude would be inconsistent with
Congressional intent. Therefore, we find that Respondent IRS violated
section 7116(a)(1) of the Statute and shall order it to remedy the
violation found.
B. Determinations Regarding the Allegations Against the
Austin
District and Houston District of
the Internal Revenue
Service
The Authority concludes that the allegations against the Austin and
Houston Districts of the Internal Revenue Service should be dismissed
since their denial of official time for travel and the refusal to pay
travel and per diem expenses for union negotiators was made pursuant to
a national policy determination by the Internal Revenue Service. There
is no evidence in the record that such offices had the discretion to
approve official time for travel purposes or that they were authorized
to pay the travel and per diem expenses at issue herein. This result is
consistent with the Authority's determination in other cases that
subordinate activities do not additionally violate the Statute by their
ministerial actions in implementing the directives of higher level
management, where higher level management is found to have violated the
Statute. Departments of the Army and the Air Force National Guard
Bureau and Montana Air National Guard, 10 FLRA 553 (1982), rev'd. on
other grounds, sub nom. Montana Air National Guard v. FLRA, 703 F.2d 577
(9th Cir. 1984).
C. Issues Regarding the Alleged Violation of Section
7116(a)(1) and (8) of the Statute
The Authority turns next to the allegation of the complaint that
Respondents violated section 7116(a)(1) and (8) of the Statute by
failing to grant official time for travel and to pay travel and per diem
expenses to union negotiators because such payments are required by
section 7131(a) of the Statute. In its Supplemental Decision and Order
in United States Department of the Treasury, Internal Revenue Service
and United States Department of the Treasury, Internal Revenue Service
Austin District, 14 FLRA 818 (1984), the Authority modified the decision
it had issued in that case prior to the United States Supreme Court's
decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983). Based on the Supreme Court's decision, the Authority dismissed
the allegations of the complaint pertaining to the Respondent's failure
and refusal to reimburse its employees for their travel and per diem
expenses. However, the Authority left intact those portions of the
decision finding that the entitlement to official time by employees
involved in representing the exclusive representative included necessary
travel time to and from negotiations as occurred during the employees'
regular work hours and when they would otherwise have been in a work or
paid leave status. The Authority's order directed the agency to make
such employees whole for any annual leave utilized. Respondent IRS
herein likewise violated section 7116(a)(1) land (8) of the Statute when
it denied employees official time for travel in violation of section
7131(a) of the Statute. Nothing in the Supreme Court's decision
overturned the Authority's determination that an employee's right to
official time to participate in negotiations under section 7131(a) of
the Statute includes official time for travel to and from such
negotiations.
V. Remedy
To remedy the unfair labor practice conduct, the Authority will order
the Respondent IRS to comply with the Panel's Opinion and Decision, and
to give it retroactive effect. See Interpretation and Guidance, 15 FLRA
564 (1984), affirmed sub nom. American Federation of Government
Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985). Consistent
with the Authority's decisions in Department of the Treasury, Internal
Revenue Service, Columbia District, Columbia, South Carolina, 22 FLRA
No. 28 (1986) and Office of the General Counsel, National Labor
Relations Board, 22 FLRA No. 25 (1986), the Authority will further order
the Respondent IRS to make whole the Charging Party for the expenses it
incurred, if any, in paying the travel and per diem expenses of those
bargaining unit employees who attended mid-term bargaining sessions
during the period at issue, which payments otherwise would have been
made by the Respondent IRS under the Panel-imposed agreement provisions.
Additionally, if there are any bargaining unit employees who either did
not receive payments to which they were entitled or were not compensated
fully for such expenses, the Respondent IRS also will be ordered to
reimburse them for the travel and per diem expenses they incurred upon
their submission of properly documented claims for such payments. In
ordering such payments, the Authority notes that by not complying with
the Panel's decision, the Respondent IRS assumed a risk that, if its
position did not prevail, it would be found to have committed an unfair
labor practice and be subject to such a remedy. /3/ Of course, the
payments that are here being ordered must be consistent with law and
regulations, including the Federal Travel Regulations.
VI. Payment of Attorney Fees
In its brief to the Authority, the Charging Party requests that it be
granted attorney fees under the Equal Access to Justice Act and the Back
Pay Act. These requests are denied. With regard to the granting of
attorney's fees under the Equal Access to Justice Act (EAJA), the
Authority's regulations provide that awards under the EAJA are available
only to a respondent, other than the United States, who prevails against
the General Counsel in an unfair labor practice proceeding. /4/
Therefore, the Union, as a charging party, is not entitled to an award
of attorney fees under that Act. Internal Revenue Service (District,
Region, National Office Units), 16 FLRA 904 (1984).
The Authority also concludes that the Charging Party's request for
attorney fees under the Back Pay Act is ill-founded. It is well
established that an award of attorney fees under the Back Pay Act must
be based upon a finding that an unjustified or unwarranted personnel
action has been committed which has deprived an aggrieved employee of
"pay, allowances, or differentials" that the employee would have earned
or received if that action had not occurred. In other words, the award
of fees must be in conjunction with an award of backpay to the
employee(s) on correction of the unwarranted personnel action. See, for
example, Naval Air Development Center, Department of the Navy and
American Federation of Government Employees, Local 1928, AFL-CIO, 21
FLRA No. 25 (1986) and cases cited therein. While the refusal of
Respondent IRS to comply with a lawful Panel order may have constituted
an unwarranted personnel action which resulted in the denial of travel
and per diem expenses to certain employees, travel and per diem expenses
are not "pay, allowances, or differentials" within the meaning of the
Back Pay Act and therefore an order requiring reimbursement of those
expenses does not amount to an award of backpay. Rather, as the
Authority has previously held, the "pay, allowances, or differentials"
encompassed by the Back Pay Act constitute "normal legitimate employee
benefits" in the nature of employee compensation or emoluments which do
not extend to reimbursement payments such as per diem. Community
Services Administration and National Council of CSA Locals, AFGE,
AFL-CIO, 7 FLRA 206, 208-209 (1981). In the Authority's view, the
reimbursement of travel expenses in this context similarly cannot be
equated with backpay so as to justify an award of attorney fees.
VII. Conclusion
Based on the stipulated record, the analysis of the facts and the
precedent cited above, the Authority concludes that Respondent Internal
Revenue Service violated section 7116(a)(1) and (8) of the Statute when
it failed to provide official time for travel purposes to union
representatives and when it failed to include in its national agreement
and thereafter implement Panel-imposed provisions which provided for the
granting of official time for travel, and travel and per diem expenses
to employees participating on behalf of the employees' exclusive
representative in collective bargaining negotiations.
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 Internal Revenue Service shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in the
exercise of their rights assured by the Statute by failing and refusing
to cooperate in and comply with the Decision and Order of the Federal
Service Impasses Panel issued on December 24, 1980, Case No. 80 FSIP 68,
by failing to implement the provisions directed by the Panel.
(b) Failing and refusing to provide official time, including
necessary travel time as occurs during the employees' regular work hours
and when the employees would otherwise be in a work or paid leave
status, to Antonio Ovalle and Frank Robinson, or any other bargaining
unit employees, while engaged in representing the National Trerasury
Employees Union, the employees' exclusive representative, in collective
bargaining negotiations.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel issued in December 24, 1980, in Case No. 80 FSIP 68,
which contained contractual provisions to be included in the negotiated
agreement between the Internal Revenue Service and the National Treasury
Employees Union, and notify the Union of such compliance in writing.
(b) Make the National Treasury Employees Union whole for the cost, if
any, incurred in paying travedl expenses and per diem allowances to all
bargaining unit employees who have submitted appropriate claims for such
payments under the terms of the contract provisions which the Federal
Service Impasses Panel ordered incorporated into the parties' agreement,
for which the employees otherwise would have been reimbursed by the
Internal Revenue Service.
(c) Pay travel expenses and per diem allowances consistent with law
and regulation, including the Federal Travel Regulations, to all
bargaining unit employees who submit or previously submitted appropriate
claims for such payments under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
(d) Provide Union representatives Antonio Ovalle and Frank Robinson
official time while they were engaged in representing the National
Treasury Employees Union, the employees' exclusive representative, in
collective bargaining negotiations between November 23 and 24, 1981,
including necessary travel time as occurred during the employees'
regular work hours and when they would otherwise have been in a work or
paid leave status, and make them whole for any annual leave they may
have utilized for this purpose.
(e) Post at its Austin and Houston District Offices a copy of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commissioner of the Internal Revenue Service, or Deputy Commissioner,
and shall be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that said Notices are not altered, defaced, or covered
by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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 with the Order.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7716(a)(1) and (8) by the Internal Revenue Service
for denying travel and per diem expenses under section 7131(a) of the
Statute, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7116(a)(1) and (8) of the Statute by the Austin and
Houston District Offices of the Internal Revenue Service, be, and it
hereby is, dismissed.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Authority has taken administrative notice of the Decision and
Order of the Panel cited above since the parties' stipulation failed to
incorporate the language of the Panel's Order.
(2) As was true of Respondents, the General Counsel's brief was
submitted before the Authority's interpretation of the Statute was
rejected by the Supreme Court in Bureau of Alcohol, Tobacco and Firearms
v. FLRA, 464 U.S. 89 (1983).
(3) If the Respondent Internal Revenue Service's position ultimately
had been sustained, however, it would not have been found in violation
of the Statute. See Office of Personnel Management, Washington, D.C.,
17 FLRA 302 (1985).
(4) Section 2430.2(b) of the Authority's Rules and Regulations
provides:
(b) A respondent in an unfair labor proceeding which has
prevailed in the proceeding, or in a significant and discrete
portion of the proceeding, and who otherwise meets the eligibility
requirements of this section, is eligible to apply for an award of
attorneys fees and other expenses allowable under the provisions
of Section 2430.4 of these rules.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT;
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Statute by failing and refusing
to cooperate in and comply with the Decision and Order of the Federal
Service Impasses Panel issued on December 24, 1980, Case No. 80 FSIP 68,
by failing to implement the provisions directed by the Panel.
WE WILL NOT fail and refuse to provide official time, including
necessary travel time as occurs during the employees' regular work hours
and when the employees would otherwise be in a work or paid leave
status, to Antonio Ovalle and Frank Robinson, or any other bargaining
unit employees, while engaged in representing the National Treasury
Employees Union, the employees' exclusive representative, in collective
bargaining negotiations.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel issued on December 24, 1980, in Case No. 80 FSIP 68,
which contained contractual provisions to be included in our negotiated
agreement with the National Treasury Employees Union, and will notify
the Union of such compliance in writing.
WE WILL make the National Treasury Employees Union whole for the
cost, if any, incurred in paying travel expenses and per diem allowances
to all bargaining unit employees who have submitted appropriate claims
for such payments under the terms of the contract provisions which the
Federal Service Impasses Panel ordered incorporated into the parties'
agreement for which the employees otherwise would have been reimbursed
by the Internal Revenue Service.
WE WILL pay travel expenses and per diem allowances consistent with
law and regulation, including the Federal Travel Regulations, to all
bargaining unit employees who submit or previously submitted appropriate
claims for such payments under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
WE WILL provide Union representatives Antonio Ovalle and Frank
Robinson official time while they were engaged in representing the
National Treasury Employees Union, the employees' exclusive
representative, in collective bargaining negotiations between November
23 and 24, 1981, including necessary travel time as occurred during the
employees' regular work hours and when they would otherwise have been in
a work or paid leave status, and make them whole for any annual leave
they may have utilized for this purpose.
(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.
23 FLRA NO. 99
832nd Combat Support Group, Luke Air Force Base, Ariz. and AFGE,
Local 1547, Case No. 8-CU-50011 (Decided October 31, 1986)
STATUTE
7112(b)(3)
SUBJECT MATTER INDEX ENTRIES
Representation
Personnel Work in Other Than a Purely Clerical Capacity
Equal Employment Opportunity Volunteer Counselors
Considerations in Determining
Confidentiality of Work
Grade Controlling Nature of Work
Primary Employment Purpose
Supervision
Term of Appointment
Voluntary Nature of Work
Procedure
Compelling Reason for Review (5 C.F.R. section 2422.17(c)(1))
DIGEST NOTES
Collateral duty EEO counselors, who are part-time volunteers that
perform counseling duties on an "as needed" basis, do not perform
personnel work in other than a purely clerical capacity within the
meaning of section 7112(b)(3). The counselors do not serve for a fixed
period of time, but may terminate their own assignment at any time by
declining to serve further or the activity may terminate their
assignments at any time without complying with adverse action
regulations. The EEO volunteer counseling position is not the
employee's primary employment function. Neither the appointment as a
counselor nor the counseling duties are grade controlling. For their
EEO duties, the counselors receive technical guidance and review from
the Chief EEO Counselor, but continue to receive supervision and
evaluation from their regular supervisors. The counselors only spend 10
or 20 percent of their official duty time performing these duties.
Since, contrary to the activity, the counselors do not perform personnel
work in other than a purely clerical capacity, they are appropriately
included in the bargaining unit.
Case No. 8-CU-50011
832nd COMBAT SUPPORT GROUP, LUKE AIR FORCE BASE, ARIZONA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1547, AFL-CIO
Petitioner
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority as a result of our order granting
the application for review of the Regional Director's Decision and Order
on Petition for Clarification of Unit filed by the 832nd Combat Support
Group, Luke Air Force Base, Arizona (Activity). In his Decision, the
Regional Director found that four employees who serve as "collateral
duty EEO counselors" should not be excluded from the bargaining unit
pursuant to section 7112(b)(3) of the Statute. /1/
The Authority granted the application for review on the basis that it
appeared that a compelling reason existed pursuant to the provisions of
section 2422.17(c)(1) of the Authority's Rules and Regulations. /2/ The
parties were given an opportunity to file briefs with the Authority;
neither party did so. Based on our decision below, we order those
employees serving as "collateral duty EEO counselors" to be included in
the bargaining unit.
II. Background
The Equal Employment Opportunity (EEO) program function at Luke Air
Force Base operates pursuant to Air Force Regulation 40-1613 and is
organizationally located within the Activity's civilian personnel
officed. It is headed by a Chief EEO Counselor, a full-time staff
position. The Chief EEO Counselor's function is to manage the EEO
program, coordinating both counseling and complaint case processing
activities. To administer the pre-complaint or counseling phase of the
program, the Activity utilizes four EEO counselors who are referred to
as "collateral duty EEO counselors" inasmuch as they perform their
counseling duties on an "as needed" basis, in addition to their regular
or primary duty assignments.
The candidates for "collateral duty EEO counselor" are interviewed by
the Chief EEO Counselor who recommends those to be considered for
selection by the Activity's Commander. The "collateral duty EEO
counselor" does not serve for a fixed period of time, but may be
terminated at any time by the Activity without complying with adverse
action regulations. The "collateral duty EEO counselor" also may choose
to terminate his or her own assignment at any time by declining to serve
further. EEO counseling is not the employee's primary employment
function. Neither the appointment as a counselor nor the counseling
duties are grade controlling. For their EEO duties, the "collateral
duty EEO counselors receive technical guidance and review from the Chief
EEO Counselor, but continue to receive supervision and evaluation from
their regular supervisors. The "collateral duty EEO counselors" are
selected from a broad cross-section of the Activity's components so as
to be accessible to and better serve all employees.
The primary function of these counselors is to counsel employees in
the pre-complaint stage. In fulfilling this function the counselors
develop factual information through discussions with supervisors,
management officials and otherr employees; conduct research into
confidential personnel records where necessary; attempt informal
resolution of complaints by providing advice and counsel to complainants
and management officials; provide final narrative reports of counseling
to the Chief EEO Counselor; and assist the complainant in preparing and
filing formal EEO complaints on an "as needed" basis. The sensitive
nature of the subject matter requires these "collateral duty EEO
counselors" to maintain a strictly neutral posture. They are
responsible for safeguarding the rights and confidentiality of both the
complainant and the alleged discriminating official. As the "collateral
duty EEO counselors" perform duties that are considered to be a bridge
between management and the employees, they are neither aligned with or
perceived to be aligned with management or the employees, but rather are
identified with the goals and purposes of the EEO program.
The record further reveals that by specific addendum to their
individual job descriptions, two of the incumbents are limited to
spending no more than 20 percent of their duty time and the other two
incumbents are limited to spending no more than 10 percent of their duty
time performing EEO counseling functions.
III. Regional Director's Determination
The Regional Director concluded in his Decision and Order on Petition
for Clarification of Unit that the four employees who serve as
"collateral duty EEO counselors" should not be excluded from the
bargaining unit pursuant to section 7112(b)(3) of the Statute. The
Regional Director found, pursuant to the Authority's Decision in
Department of the Air Force, Headquarters, San Antonio Air Logistics
Center, Kelly Air Force Base, Texas, 3 FLRA 209 (1980), that the duties
performed by the "collateral duty EEO counselors" fell within the scope
of personnel work in other than a purely clerical capacity. He also
found that as the "collateral duty EEO counselors" only spend 10 or 20
percent of their official duty time performing these duties, the
character and extent of involvement in personnel matters was not such
that it warranted their exclusion from the bargaining unit. Therefore,
he ordered that the unit description be clarified to include the four
named "collateral duty EEO counselors."
IV. Positions of the Parties
In its application for revied, the Activity agrees with the Regional
Director's finding that the "collateral duty EEO counselors" are
performing duties which constitute personnel work in other than a purely
clerical capacity within the meaning of section 7112(b)(3) of the
Statute. The Activity contends that the purpose of section 7112(b)(3),
as stated by the Authority in Office of Personnel Management, 5 FLRA 238
(1981), is to preclude the conflict of interest that would arise between
the performance of Federal personnel work and union representation. The
Activity argues that because the "collateral duty EEO counselors" are
appointed by the Activity's Commander and are in effect his eyes and
ears, have access to confidential files and records, and interview
supervisors and management officials, a conflict of interest exists
between their EEO duties and their union representation. Consequently,
the Activity argues that the Regional Director erred when he considered
the percentage of work time spent by the "collateral duty EEO
counselors," and contends that the asserted conflict of interest created
by their involvement in EEO counseling for 10 or 20 percent of their
work time in this case is no less significant than the conflict created
by the use of 100 percent of work time by the Equal Opportunity
Specialists at issue in Kelly Air Force Base.
V. Analysis
The Authority agrees with the conclusions of the Regional Director
that the "collateral duty EEO counselors" should be included in the
bargaining unit. We disagree, however, with the Regional Director's
finding that the counselors are engaged in Federal personnel work in
other than a purely clerical capacity within the meaning of section
7112(b)(3) of the Statute.
The Authority has held that an employee is engaged in personnel work
in other than a purely clerical capacity within the meaning of section
7112(b)(3) of the Statute if the employee is directly involved in
performing personnel work that may affect employees in the unit and
making recommendations to management concerning such personnel actions.
Employees found to have been engaged in personnel work have been
involved in work directly relating to the personnel operations of the
employee's agency which would create a conflict of interest between the
employee's job and union representation if the employee were included in
the bargaining unit. See Social Security Administration, 17 FLRA 239
(1985); Environmental Protection Agency, Region VII, Kansas City,
Missouri, 14 FLRA 25 (1984); Veterans Administration, Washington, D.C.,
11 FLRA 176 (1983); and Department of Health and Human Services, Region
X, Seattle, Washington, 9 FLRA 518 (1982). This is not the case here.
As noted by the Regional Director, the Authority in Kelly Air Force
Base, upheld the Judge's findings that the employees in the job
classification Equal Opportunity Specialist, GS-160-07, 09 and 11 should
be excluded from the bargaining unit as they were engaged in personnel
work in other than a purely clerical capacity. In so finding, the Judge
noted that these employees who functioned as EEO counselors on a
full-time basis were assigned to and worked out of the Activity's
personnel office. Further, he found that in the course of their EEO
counseling duties, they were privy to confidential personnel files and
other confidential information.
The Authority finds in the circumstances of this case that the
"collateral duty EEO counselors" are not engaged in Federal personnel
work within the meaning of section 7112(b)(3) of the Statute. The very
nature of the position of the "collateral duty EEO counselors" clearly
distinguishes these employees from the full-time EEO counselors found in
Kelly Air Force Base. Thus, the record indicates that the "collateral
duty EEO counselors" are selected by the Activity's Commander for a term
of unspecified duration and can be removed at any time without complying
with adverse action regulations, or on their own volition can terminate
their assignments. Although EEO duties and responsibilities are
described in their official position descriptions, the duties do not
constitute their primary employment purpose and neither the assignment
as a counselor nor the counselling duties are grade controlling. The
"collateral duty EEO counselors" are not assigned to the Activity's
personnel office and receive only technical guidance and review from the
Chief EEO Counselor. During the course of their EEO appointments, the
"collateral duty EEO counselors" continue to be supervised by their
individual supervisors who maintain organizational and operational
control over them at all times. The "collateral duty EEO counselors"
are considered neutral and a bridge between management and the
employees, they are not viewed as being aligned with either group. In
summary, based upon the fact that such assignments and duties do not
constitute the employees primary employment purpose, are not grade
controlling, are of a voluntary nature for an indefinite duration, and
that the employees involved are neither attached to nor supervised by
the personnel office and thus perceived to be neutral, the Authority
finds that the "collateral duty EEO counselors" are not engaged in
Federal personnel work within the meaning of section 7112(b)(3) of the
Statute.
VI. Conclusion
The Authority concluldes that section 7112(b)(3) of the Statute is
not applicable to the four "collateral duty EEO counselors" and that
these employees should be included in the collective bargaining unit.
ORDER
IT IS ORDERED that the unit sought to be clarified is clarified by
including in the unit the following named "collateral duty EEO
counselors": Geraldine Bly, Contract Administrator, GS-1102-09; James
Mills, Heavy Mobile Equipment Mechanic, WG-5803-10; Paul King, Model
Maker, WG-4714-13 and William Finley, Warehouse Worker, WG-6907-05.
Issued, Washington, D.C., October 31, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Section 7112(bg)(3) of the Statute provides that an appropriate
unit may not include "an employee engaged in personnel work in other
than a purely clerical capacity(.)"
(2) Section 2422.17(c)(1) provides that an application for review may
be granted on the basis that "a substantial question of law or policy is
raised because of (i) the absence of, or (ii) a departure from,
Authority precedent(.)"
23 FLRA NO. 98
GSA, Region 10 and AFGE, Council 236, Case No. 0-AR-1051 (Decided
October 31, 1986)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Award Modified
"Extraordinary Circumstances" (5 C.F.R. section 2429.17)
Procedure
"Extraordinary Circumstances" (5 C.F.R. section 2429.17)
Incomplete Award in Authority's Records
DIGEST NOTES
The Authority amended a previous decision because of the existence of
"extraordinary circumstances" within the meaning of section 2429.17 of
the Authority's rules and regulations. In its previous decision the
Authority construed the last sentence of page 12 of the arbitrator's
opinion and award as being the entire award. However, according to the
parties' motions, the award contained a page 13 which, for unknown
reasons, was not contained in the record submitted to the Authority.
Case No. 0-AR-1053 (22 FLRA NO. 8)
GENERAL SERVICES ADMINISTRATION REGION 10
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 236
Union
ORDER AMENDING DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on a motion filed by the Agency
requesting the Authority to amend and clarify its decision in 22 FLRA
No. 8. The Union filed a response to the Agency's motion and filed a
cross motion also seeking clarification of the Authority's decision.
II. BACKGROUND
In its decision the Authority modified the Arbitrator's award that
the grievant be given a rating of "outstanding" by directing that the
followiing language be substituted for that in the award:
Management shall reevaluate in accordance with the general
performance appraisal system and Article 19 of the parties'
National Agreement the grievant's performance for the period
stipulated to and designated by the parties and shall apply that
rating to the appraisal periods in question.
In its decision the Authority construed the last sentence of page 12
of the Arbitrator's opinion and award as being the entire award. That
sentence reads: "Accordingly, I shall order the Grievant be given a
rating of outstanding for the two appraisal periods in question." Page
12 was the final page of the award in the record before the Authority.
However, according to the parties' motions, the award contained a page
13 which reads as follows:
AWARD
I. It is the Award of your Arbitrator that Grievant Margaret
Lien performed in an outstanding fashion during the appraisal
periods June 1983 through May 1984 and June 1, 1984, through May
31, 1985.
II. Accordingly, it is hereby ordered that she be given an
overall rating of outstanding with respect to her performance in
both periods.
For reasons unknown, page 13 of the award was not contained in the
record submitted to the Authority.
III. ANALYSIS AND CONCLUSION
Section 2429.17 of the Authority's Rules and Regulations provides in
pertinent part:
2429.17 Reconsideration.
After a final decision or order of the Authority has been
issued, a party to the proceeding before the Authority who can
establish in its moving papers extraordinary circumstances for so
doing, may move for reconsideration of such final decision or
order. The motion shall be filed within 10 days after service of
the Authority's decision or order . . . .
We find that in the situation described in the parties' motions, an
extraordinary circumstance exists within the meaning of section 2429.17
of the Authority's Rules and Regulations. Therefore, the Authority has
reconsidered its decision in 22 FLRA No. 8 in light of page 13 of the
award. Upon review of page 13 of the award, the parties' motions, and
our original decision, we conclude that our decision must be amended as
set forth below.
IV. Decision
The Authority modifies its decision in 22 FLRA No. 8, June 6, 1986,
by ordering that paragraphs I and II found on page 13 of the
Arbitrator's award be struck and replaced by the substitute language
ordered in the Authority's original decision.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
23 FLRA NO. 97
NAGE, Local R7-23 and Dep't of the Air Force, Scott Air Force Base,
Ill., Case No. 0-NG-1252 (Decided October 31, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(1)
7106(a)(2) and (a)(2)(D)
7106(b)(3)
7117(a)(2)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Competitive Area
Reduction-in-Force
Based on Bargaining Unit Membership
Hours of Work
Administrative Workweek (5 C.F.R. section 610.121)
Advanced Notice of Change -- 7 Days or More
Changes Without 7 Days Advance Notice
Emergencies
Serious Handicap Agency Operations
Substantial Increase in Cost
Management Rights
Internal Security Practices
Amount of Employee Pecuniary Liability
Criteria for Determining Employee Liability
Mandatory Subjects of Bargaining
Appropriate Arrangements
Excessive Interference
Substitute "Gross Negligence" Standard for "Negligence"
5 U.S.C. section 6101(a)(3)(A)
5 C.F.R. section 610.121(a) and (b)
DIGEST NOTES
An agency may not revise employees' tours of duty less than seven
days in advance, except where it is determined that: (1) the agency
would be seriously handicapped in carrying out its functions; (2) that
costs would be substantially increased. In light of American Federation
of Government Employees v. Office of Personnel Management, C.A. No.
85-4031 (D.D.C. August 7, 1986), the Authority reconsidered its
interpretation of controlling OPM regulations governing previous cases
that concerned advance notice to employees of changes in the
administrative workweek. Applying this determination to a proposal that
would require the agency to give employees and the union 14 days notice
before making any changes in established work schedules, except in
emergency situations, the Authority found the proposal to be outside the
duty to bargain. The exception to the notice period, i.e. "emergency
situations", was too narrow. The terms defining the statutory (5 U.S.C.
section 6101(a)(3)(A)) and regulatory (5 C.F.R. section 610.121(a))
exceptions were broader than the term "emergency" used in the proposal.
(proposal 1)
A proposal is nonnegotiable that would define competitive area for
reduction-in-force purposes based on bargaining unit membership. The
service area includes both bargaining unit employees and non-bargaining
unit employees. Accordingly, by membership, the proposal directly
determines conditions of employment of nonunit employees. (proposal 2)
A proposal is nonnegotiable that establishes a maximum amount for
employee pecuniary liability for damages to government property and sets
standards by which employees would be adjudged to be pecuniarily liable.
The proposal directly interferes with management's right to determine
its internal security practices under section 7106(a)(1). Moreover,
even assuming that the proposal constitutes an "arrangement" under
7106(b)(3) for employees adversely affected by management's right to
determine its internal security practices, the proposal would be an
"inappropriate" arrangement. The proposal, among other things, would
replace the standard of simple "negligence," promulgated by management
under section 7106(a)(1), with the standard of "gross negligence", which
had previously been the standard established by management. That change
reflected a determination by management that a new, distinctly different
substantive requirement should govern employee conduct on the job. In
essence, therefore, the proposal would completely reverse the
substantive effect of management's action in changing the standard.
Case No. 0-NG-1252
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23
Union
and
DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS
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 as
to the negotiability of three Union proposals. We find that all three
proposals are nonnegotiable.
II. Union Proposal 1
Article 7, Section 2: When a change in duty hours, days, or
weeks currently in effect is proposed by the employer, such change
will be announced in writing to the union and employees at least
14 days in advance, except in emergencies, in order that the union
may request to enter into negotiations and so that employees will
be forewarned of a pending change.
A. Positions of the Parties
The Agency contends that Union Proposal 1 is nonnegotiable under
section 7117(a)(1) of the Statute because it is inconsistent with a
Government-wide regulation, 5 C.F.R. Section 610.121(b)(2). In support
of its contention, the Agency cites the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army
Garrison, Fort Detrick, Maryland, 17 FLRA 769 (1985), petition for
review filed sub nom. American Federation of Government Employees, Local
2484 v. Federal Labor Relations Authority, No. 85-1405 (D.C. Cir. July
3, 1985), and cases relying thereon. /1/
The Union acknowledges this Authority precedent but requests that the
Authority not decide the issue until the U.S. Court of Appeals for the
District of Columbia Circuit rules on the Authority's decision in the
Fort Detrick case.
B. Analysis and Conclusion
The proposal requires the Agency to give employees and the Union 14
days notice before making any changes in established work schedules,
except in emergency situations. Office of Personnel Management (OPM)
regulations provide, as relevant here,s that an agency must change an
employee's work schedule when it knows in advance that the employee's
schedule will be different from that which the employee is currently
working; and must notify the employee of the change. 5 C.F.R. Section
610.121(b)(2) (1986). As the Agency points out, in the Fort Detrick
decision, the Authority held that a proposal requiring two weeks notice,
like the one in this case, was inconsistent with the OPM regulation
because it would preclude the agency from complying with that regulation
unless it became aware of the need to change work schedules not less
than two weeks prior to the rescheduling. OPM supported the Authority's
interpretation of 5 C.F.R. Section 610.121(b)(2) in amicus briefs filed
with the Authority in subsequent cases involving this issue. See, for
example, National Federation of Federal Employees, Local 7 and U.S. Army
Corps of Engineers, Portland District, 19 FLRA No. 18 (1985); American
Federation of Government Employees, Local 1546 and Department of the
Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
(Provision 1), petition for review filed sub nom. American Federation of
Government Employees, Local 1546 v. Federal Labor Relations Authority,
No. 85-1689 (D.C. Cir. October 21, 1985). The American Federation of
Government Employees, AFL-CIO, however, challenged the validity of 5
C.F.R. Section 610.121(b) in a suit filed in the U.S. District Court for
the District of Columbia. In its Memorandum and Order in that case,
American Federation of Government Employees v. Office of Personnel
Management, C.A. No. 85-4031 (D.D.C. August 7, 1986), slip opinion at 5,
the court upheld the regulation stating that:
(N)otwithstanding it may not say so in so many words,
subsection (b) which permits workweeks to be rescheduled was
intended, and is interpreted, by OPM to be qualified by subsection
(a) directing agency heads to establish conventional workweek
schedules except upon a determination that the agency would be
seriously handicapped in carrying out its functions or that costs
would be substantially increased. /2/
In light of the court's decision, we have reconsidered the basis of
the Fort Detrick decision. For the reasons set forth below, we will no
longer follow our rationale in Fort Detrick and the cases which applied
it.
Applicable law, 5 U.S.C. Section 6101(a)(3)(A), provides that an
agency shall schedule employees' tours of duty not less than seven days
in advance, except where it is determined that the agency would be
seriously handicapped in carrying out its functions or that costs would
be substantially increased. /3/ As noted above, in the Fort Detrick
decision, the Authority interpreted OPM regulations implementing that
provision -- in particular, 5 C.F.R. Section 610.121(b)(2) -- as
requiring an agency to change employee work schedules as soon as it
became aware that such a change would be necessary. /4/ Upon further
review, we conclude that this interpretation does not comport with the
statutory requirement that work schedules may be revised less than seven
days in advance only where it is necessary to prevent the agency from
being handicapped in the execution of its functions or to forestall a
substantial increase in operational costs. In other words, interpreting
5 C.F.R. Section 610.121(b) consistent with 5 U.S.C. Section
6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must have a
minimum of seven days advance notice of a change in work schedules
unless the change is being made for the reasons set forth in the statute
(and repeated in 5 C.F.R. Section 610.121(a)).
The proposal at issue here, which would permit the Agency to change
employee work schedules within the fourteen day notice period only in an
emergency, is inconsistent with the statutory and regulatory provisions.
We note at the outset that the proposal allows the Agency to change
employee work schedules without notice in an "emergency," without
defining that term, and thus is consistent with management's right to
take action in an emergency under section 7106(a)(2)(D). Compare
National Federation of Federal Employees, Local 2059 and U.S. Department
of Justice, U.S. Attorney's Office, Southern District of New York, 22
FLRA No. 13 (1986) (proposal defining the term "emergency" directly
interferes with management's right under section 7106(a)(2)(D) by
limiting the exercise of that right to situations falling within the
proposed definition). However, the exception to the notice period set
forth in the proposal is too narrow. The terms defining the statutory
(5 U.S.C. Section 6101(a)(3)(A)) and the regulatory (5 C.F.R. Section
610.121(a)) exceptions are broader than the term "emergency" used in the
proposal. Situations falling within the scope of the statute and
regulations -- circumstances which would seriously handicap an agency in
accomplishing its functions or would substantially increase costs --
would not necessarily constitute "emergencies" as defined by the Agency
pursuant to its right under section 7106(a)(2)(D). The exception set
forth in the proposal therefore would impermissibly restrict the
Agency's right, under law and regulation, to revise employee work
schedules. For that reason we find that the proposal is inconsistent
with 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) and
(b) and, under section 7117 of the Statute, outside the duty to bargain.
Although we are no longer following the rationale of the Fort Detrick
decision, the result in that case, or in cases which relied on Fort
Detrick and involved similarly worded proposals or provisions, would not
be different from the result here. Because the provision in Fort
Detrick, like the proposal here, limited the agency's right to change
employee work schedules to situations constituting an "emergency," it
would also be inconsistent with law and regulation for the reasons
stated above and outside the duty to bargaiin.
III. Union Proposal 2
Article 14, Section 7: All areas serviced by the CCPO shall be
in the same competitive area for reduction-in-force purposes.
A. Positions of the Parties
The Agency contends that this proposal is essentially the same as the
proposed competitive area which the Authority found nonnegotiable in
National Association of Government Employees, Local R7-23 and Department
of the Air Force, Headquarters1 375th Air Base Group (MAC), Scott Air
Force Base, Illinois, 19 FLRA No. 63 (1985), remanded sub nom. National
Association of Government Employees, Local R7-23 v. Federal Labor
Relations Authority, No. 85-1522 (D.C. Cir. Dec. 3, 1985). The Agency
also contends that the proposal is outside the duty to bargain under
section 7117(a)(2) because it conflicts with an Agency regulation for
which a compelling need exists and under section 7106(a)(2) because it
violates management's rights.
The Union contends that the decision in the previous Scott Air Force
Base case does not apply to this proposal because that case was remanded
by the court for reconsideration in light of the court's decision in
Local 32, American Federation of Government Employees v. Federal Labor
Relations Authority, 774 F.2d 498 (D.C. Cir. 1985). The Union also
contends that there is no compelling need for the regulation relied on
by the Agency and that the proposal does not conflict with management's
rights.
B. Analysis and Conclusion
We find that the proposal is outside the duty to bargain because it
directly determines the conditions of employment of nonunit employees.
In our Decision and Order on Remand in the Scott Air Force Base case,
22 FLRA No. 79 (1986), we reaffirmed our previous holding that the
proposed competitive area in that case was outside the duty to bargain
because it would include nonunit employees. The proposal at issue in
that case defined the competitive area in terms of all bargaining unit
positions serviced by the Civilian Personnel Office (CCPO). As we
pointed out in our Decision and Order on Remand, the CCPO services areas
that are composed of bargaining unit and nonbargaining unit employees.
There is no material difference between the proposal in that case and
the proposal in this case. The result in this case, therefore, is the
same: the proposed competitive area is outside the duty to bargain.
IV. Union Proposal 3
Article 23, Section 30: The employer agrees that it will only
collect for damages to government property in an amount equal to
no more than 1 month's salary/wages and then only for cases where
the bargaining unit employees have been ultimately found guilty of
gross negligence.
A. Positions of the Parties
The Agency contends that Union Proposal 3 is outside the duty to
bargain because it interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
The Union acknowledges that the Authority has held similar proposals
to be nonnegotiable under section 7106(a)(1), but argues that Union
Proposal 3 constitutes an appropriate arrangement under section
7106(b)(3) for employees adveresely affected by the exercise of
management's right to determine its internal security practices.
B. Analysis and Conclusion
For the following reasons we find that Union Proposal 3 is
nonnegotiable. As the Agency points out, in National Federation of
Federal Employees, Local 29 and Department of the Army, Kansas City
District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA
No. 32 (1986), petition for review filed sub nom. National Federation of
Federal Employees, Local 29 v. Federal Labor Relations Authority, No.
86-1308 (D.C. Cir. May 28, 1986) and American Federation of Government
Employees, AFL-CIO, Council 214 and Department of the Air Force,
Headquarters Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 21 FLRA No. 34 (1986), petition for review filed sub nom.
American Federation of Government Employees, Council 214 v. Federal
Labor Relations Authority, No. 86-1340 (D.C. Cir. June 9, 1986), the
Authority held, respectively, that a proposal establishing a maximum
amount for employee pecuniary liability and a proposal establishing the
standard by which employees would be adjudged to be pecuniariily liable
directly interfered with management's right to determine its internal
security practices under section 7107(a)(1). Union Proposal 3,
therefore, which also provides for a cap on employee liability and a
criterion by which to determine whether an employee is liable, likewise
directly interferes with management's rights under section 7106(a)(1)
and is outside the Agency's duty to bargain.
Moreover, even assuming that Union Proposal 3 constitutes an
"arrangement" for employees adversely affected by management's right to
determine its internal security practices, we conclude that it
excessively interferes with that right so asto be an "inappropriate"
arrangement under section 7106(b)(3) of the Statute. The proposal,
among other things, would replace the standard of simple "negligence,"
promulgated by management under section 7106(a)(1), with the standard of
"gross negligence", which had previously been the standard established
by management. Management's change in this standard is more than a
matter of words or a question of degree of emphasis. Management's
change reflects a determination that a new, distinctly different
substantive requirement should govern employee conduct on the job. In
essence, therefore, the proposal would completely reverse the
substantive effect of management's action in changing the standard. As
the U.S. Court of Appeals for the District of Columbia Circuit stated in
setting forth the "excessive interference" test for appropriate
arrangements under section 7106(b)(3):
Undoubtedly, some arrangements may be inappropriate because
they impinge upon management prerogatives to an excessive degree.
(Emphasis in original.) A provision, for example, that would
require a demoted employee simply to be repromoted to his or her
former job would be inappropriate (to the point of absurdity) for
that reason. (Emphasis added.) Beyond that, we decline to
speculate as to what the word "appropriate" may lawfully be
interpreted to exclude . . .
American Federation of Government Employees, Local 2782 v. Federal
Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983). Insofar
as the standard for liability is concerned, Union Proposal 3, like the
court's example, completely negates management's exercise of its rights
and is therefore excessive. Proposals which totally abrogate the
exercise of a management right excessively interfere with that right and
do not constitute "appropriate arrangements." See American Federation of
Government Employees, AFL-CIO, Local 3186 and Department of Health and
Human Services, Office of Social Security Field Operations, Philadelphia
Region, 23 FLRA No. 30 (1986) (Union Proposal 1); Federal Union of
Scientists and Engineers and Department of the Navy, Naval Underwater
Systems Center, 22 FLRA No. 83 (1986).
V. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the petition for review of Union Proposals 11-3 be,
and it hereby is, dismissed.
Issued, Washington, D.C. October 31, 19896.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) For the cases which relied on the Fort Detrick decision see the
Appendix to this decision.
(2) For a more detailed statement of the Court's opinion, see the
Appendix to this decision.
(3) For the text of 5 U.S.C. Section 6101(a), see the Appendix to
this decision.
(4) For the text of 5 C.F.R. Section 610.121(a) and (b), see the
Appendix to this decision.
Appendix
1/ American Federation of Government Employees, AFL-CIO, Local 900
and Department of the Army, Office of the Adjutant General, U.S. Army
Reserve Components Personnel and Administrative Center, St. Louis,
Missouri, 18 FLRA No. 6 (1985), petition for review filed sub nom.
American Federation of Government Employees, Local 900 v. Federal Labor
Relations Authority, No. 85-1406 (D.C. Cir. July 3, 1985; American
Federation of Government Employees, National Council of Grain Inspection
Locals and U.S. Department of Agriculture, Federal Grain Inspection
Service, 18 FLRA No. 70 (1985), enforced sub nom. American Federation of
Government Employees, National Council of Grain Inspection Locals v.
Federal Labor Relations Authority, 794 F.2d 1013 (5th Cir. 1986);
National Association of Government Employees, Local R7-36 and U.S.
Department of the Army, Savanna Army Depot, 18 FLRA No. 86 (1985);
National Federation of Federal Employees, Local 7 and U.S. Army Corps of
Engineers, Portland District, 19 FLRA No. 18 (1985); National
Federation of Federal Employees, Local 687 and Department of the Air
Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base,
California, 19 FLRA No. 78 (1985) (Union Proposals 1 and 2); American
Federation of Government Employees, Local 1546 and Department of the
Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
(Union Provision 1), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO, Local 1546 v. Federal Labor
Relations Authority, No. 85-1689 (D.C. Cir. October 21, 1985); National
Association of Government Employees, Local R1-100H and Department of the
Navy, Naval Hospital, Groton, 20 FLRA No. 17 (1985); American
Federation of Government Employees, AFL-CIO, Local 1955 and The Adjutant
General, Iowa, Departments of the Army and the Air Force, National Guard
Bureau, 20 FLRA No. 46 (1985); American Federation of Government
Employees, AFL-CIO, Local 1738 and Veterans Administration Medical
Center, Salisbury, North Carolina, 20 FLRA No. 47 (1985) American
Federation of Government Employees, AFL-CIO, Local 1909 and Department
of Defense, Department of the Army, U.S. Army Training Center and Fort
Jackson, South Carolina, 20 FLRA No. 56 (1985); American Federation of
Government Employees, AFL-CIO, Local 2484 and Department of the Army,
Fort Detrick, Maryland, 20 FLRA No. 79 (1985); Department of Defense,
Department of the Army, Headquarters XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina and American Federation of Government
Employees, Local 1770, AFL-CIO, 20 FLRA No. 101 (1985); National
Association of Government Employees, Local R14-87 and Kansas City
National Guard, 21 FLRA No. 4 (1986) (Provision 1); 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).
2/ The Court stated, at 5 of the slip opinion, as follows:
OPM responds that the regulation, like the statute, permits a
variable workweek only under exceptional circumstances;
notwithstanding it may not say so in so many words, subsection (b)
which permits workweeks to be rescheduled was intended, and is
interpreted, by OPM to be qualified by subsection (a) directing
agency heads to establish conventional workweek schedules except
upon a determination that the agency would be seriously
handicapped in carrying out its functions or that costs would be
substantially increased. Moreover, the pertinent language of
subsection (a) reiterates that of the statute pursuant to which
the regulation was promulgated, and the statute qualifies the
regulation by operation of law whether the regulation expressly
says so or not. Therefore, when regulation and statute are read
together, as they must be, it is clear that agency heads must
reschedule their employees' workweeks as necessary to accomplish
the agency's mission, but only after having first determined that
the agency would be seriously handicapped or its costs
substantially increased if original work schedules were retained.
The Statute and regulation are consistent.
3/ 5 U.S.C. Section 6101(a) provides, in relevant part, as follows:
Section 6101. Basic 40-hour workweek; work schedules;
regulations
(a)(1) For the purpose of this subsection, "employee" includes
an employee of the government of the District of Columbia and an
employee whose pay is fixed and adjusted from time to time under
section 5343 or 5349 of this title, or by a wage board or similar
administrative authority serving the same purpose, but does not
include an employee or individual excluded from the definition of
employee in section 5541(2) of this title, except as specifically
providced under this paragraph.
(2) The head of each Executive agency, military department, and
of the government of the District of Columbia shall --
(A) establish a basic administrative workweek of 40 hours for
each full-time employee in his organization; and
(B) require that the hours of work within that workweek be
performed within a period of not more than 6 of any 7 consecutive
days.
(3) Except when the head of an Executive agency, a military
department or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization, that --
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(C) the working hours in each day in the basic workweek are the
same;
(D) the basic non-overtime workday may not exceed 8 hours;
(E) the occurrence of holidays may not affect the designation
of the basic workweek; and
(F) breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
4/ 5 C.F.R. Section 610.121(a) and (b) (1986) provides:
Section 610.121 Establishment of work schedules.
(a) Except when the head of an agency determines that the
agency would be seriously handicapped in carrying out its
functions or that costs would be substantially increased, he or
she shall provide that --
(1) Assignments to tours of duty are scheduled in advance of
the administrative workweek over periods of not less 1 week;
(2) The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(3) The working hours in each day in the basic workweek are the
same;
(4) The basic non-overtime workday may not exceed 8 hours;
(5) The occurrence of holidays may not affect the designation
of the basic workweek; and
(6) Breaks in working hours of more than 1 hour may not be
scheduled in a basic workday.
(b)(1) The head of an agency shall schedule the work of his or
her employees to accomplish the mission of the agency. The head
of an agency shall schedule an employee's regularly scheduled
administrative workweek so that it corresponds with the employee's
actual work requirements.
(2) When the head of an agency knows in advance of an
administrative workweek that the specific days and/or hours of a
day actually required of an employee in that administrative
workweek will differ from those required in the current
administrative workweek, he or she shall reschedule the employee's
regularly scheduled administrative workweek to correspond with
those specific days and hours. The head of the agency shall
inform the employee of the change, or he or she shall record the
change on the employee's time card or other agency document for
recording work.
(3) If it is determined that the head of an agency should have
scheduled a period of work as part of the employee's regularly
scheduled administrative workweek and failed to do so in
accordance with paragraphs (b)(1) and (2) of this section, the
employee shall be entitled to the payment of premium pay for that
period of work as regularly scheduled work under Subpart A of Part
550 of this chapter. In this regard, it must be determined that
the head of the agency: (i) Had knowledge of the specific days
and hours of the work requirement in advance of the administrative
workweek, and (ii) had the opportunity to determine which employee
had to be scheduled, or rescheduled, to meet the specific days and
hours of that work requirement.
23 FLRA NO. 96
HHS, SSA, Baltimore, Md. and AFGE, Case No. 4-CA-40007 (Decided
October 31, 1986)
STATUTE
7106
7116(a)(1) and (5)
7117(c)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Refusal to Negotiate
Declaring a Proposal Nonnegotiable
Conditions of Employment
Declaration of Nonnegotiability
No Established Precedent Exists
Authority Will Not Find a ULP for Refusing to Negotiate
Memorandum of Understanding
Obligation to Negotiate Over Specified Proposals Only
DIGEST NOTES
An agency's declaration of nonnegotiability does not constitute bad
faith bargaining where at the time of the declaration, no established
precedent exists which is dispositive of the negotiability issue. Since
no established precedent existed with respect to a union proposal, the
agency did not violate section 7116(a)(a) and (5) for refusing to
bargain over it. Moreover, a memorandum of understanding (MOU) signed
by the parties that provided for neegotiations over the rotation of
personnel on a six month basis, did not obligate the agency to negotiate
on any and all proposals that the union made. The parties had
negotiated for over one month on 13 proposals submitted by the union.
Of the original proposals, the union withdrew four because they
infringed upon management's section 7106 rights; six were agreed to;
and three, incluldiing the proposal involved in this case became
subjects of unfair labor practice charges.
Case No. 4-CA-40007
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Department of Health and Human Services, Social Security Administration
(the Respondent). The issue concerns whether the Respondent violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to bargain with the American
Federation of Government Employees, AFL-CIO (the Union) concerning a
particular proposal. For the reasons stated below, we find no merit to
this allegation.
II. Facts
On May 23, 1983, the Respondent and the Union, pursuant to an unfair
labor practice settlement agreement, signed a Memorandum of
Understanding (MOU) which provided, in part, that:
This memorandum will serve as an agreement by Management and
Local 2206 to enter into negotiations regarding Management's
decision to rotate the Benefit Authorizer Technical Assistants on
a 6-month basis. Negotiations will be in accordance with the
(S)tatute and Article 4 of the National Agreement.
As a result of the MOU, the parties negotiated for over one month on
13 proposals submitted by the Union. Of the original proposals, the
Union withdrew four because they infringed upon management's section
7106 rights; six were agreed to; and three, including the proposal
involved in this case, Union Proposal No. 5, because subjects of unfair
labor practice charges. /1/ The General Counsel concedes that while the
Union's initial Proposal No. 5 concerning a system of errors to be
applied uniformly to the Benefit Authorizer Technical Assistants (BATAs)
may have infringed upon management's rights, it was offered as part and
parcel of the posturing process during negotiations. Thereafter, during
the month-long negotiations, the Uniion submitted several different
versions of Proposal No. 5 concerning the same subject. The last offer
was declared nonnegotiable by the Respondent. /2/
III. Administrative Law Judge's Decision
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by declaring Union Proposal No. 5 nonnegotiable. He
found that by such action the Respondent repudiated the parties' MOU.
In making this finding, the Judge noted that the Respondent had
previously agreed to negotiate over the impact of a change in conditions
of employment pursuant to the MOU executed as a part of the settlement
agreement. Accordingly, the Judge found that the Respondent failed to
meet its bargaining obligations by its declaration. He further
concluded that the Respondent was obligated to negotiate with the Union
over the proposal.
IV. Positions of the Parties
In its exceptions, the Respondent argues that it negotiated
extensively and in good faith with the Union for one month. It contends
that after a month of negotiations the parties reached an impasse.
Further, it argues that the Judge's Decision finding the Union's
proposal negotiable is erroneous because the proposal interferes with
the Respondent's right to determine which duties and functions will be
included in performance appraisals and thereby interferes with its right
to assign work. Finally, it argues that the Judge's remedy ordering a
national posting is excessive under the circumstances.
V. Analysis
In our view, the agency merely exercised its right under section
7117(c) of the Statute to allege that a proposal is nonnegotiable. The
Authority has long held that an agency's declaration of nonnegotiability
does not constitute bad faith bargaining where at the time of the
declaration, no established precedent existed which was dispositive of
the negotiability issue. /3/ Since no established precedent exists with
respect to the specific language of proposal No. 5, Respondent's mere
declaration of nonnegotiability does not constitute a violation of the
Statute. In addition, where a unilateral change in conditions of
employment coupled with a refusal to bargain is alleged, the Authority
will make a negotiability ruling in the context of an unfair labor
practice proceeding. /4/ In this case, the complaint does not allege a
unilateral change. We will not, therefore, decide the negotiability of
Proposal No. 5 in this proceeding.
As for the Judge's reliance on the MOU, in our view it obligated the
Respondent to negotiate over the rotation of the BATAs, not to negotiate
on any and all proposals that the Union might make. The MOU provided:
"Negotiations will be in accordance with the Statute." The Union
acknowledges making certain proposals which might have infringed upon
management's section 7106 rights, including earlier versions of Proposal
No. 5. The Respondent had a statutory right to raise the same concern
about the proposal at issue.
We do not agree with the Judge's finding that the Respondent's
nonnegotiability declaration with regard to one proposal was a
repudiation of the MOU. The MOU constituted an agreement to negotiate,
which the Respondent did for one month, agreeing to six of the Union's
proposals. /5/ There is no evidence that Respondent refused to
negotiate in good faith.
Accordingly, we do not view the Respondent's conduct as violative of
the Statute.
VI. Conclusion
Pursuant to section 2423 of the Authority's Rules and Regulations and
section 7118 of the Statute, the Authority has reviewed the rulings of
the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record, including the parties'
contentions, and adopts the Judge's findinigs and conclusions only to
the extent consistent with our decision. Therefore, we shall dismiss
the complaint.
ORDER
The complaint in Case No. 4-CA-40007 is dismissed.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 4-CA-40007
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Regina Kane, Esq.
For the General Counsel
L. J. Clary, Esq.
For the General Counsel
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. (herein referred to as the Statute).
Upon unfair labor practice charges filed by the American Federation
of Government Employees (herein referred to as the Union) on October 5,
1983 against the Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland (herein referred to as
Respondent or SSA), the General Counsel of the Authority, by the
Regional Director for Region 4, issued a Complaint and Notice of Hearing
on February 15, 1984. The Complaint alleged that Respondent violated
section 7116(a)(1) and (5) of the Statute by failing and refusing to
bargain in good faith by declaring a union proposal non-negotiable and
refusing to bargain in good faith concerning the policy described in the
Union proposal.
Respondent's Answer denied the commission of any unfair labor
practice.
A hearing was conducted in Birmingham, Alabama, at which time
Respondent and the General Counsel were represented by Counsel and
afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses and argue orally. Counsel for the General
Counsel gave oral argument and Respondent filed a brief.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
Since on or about June 11, 1982, the Respondent and Union have been
parties to a collective bargaining agreement covering a nationwide
consolidated unit which includes employees of Respondent at its
Southeastern Program Service Center located in Birmingham, Alabama.
In October, 1982, Respondent implemented a change in policy
concerning its Benefit Authorizer Technical Assistants (BATAs), who are
responsible for reviewing the work of other employees, Benefit
Authorizers (BAs). The BAs are responsible for post-adjudicative
actions on Social Security cases. Prior to the above change implemented
in October, 1982, a BATA was assigned on a permanent basis to one of
thirty-six modules at Respondent's Southeastern Program Service Center.
The module is a self-contained unit consisting of approximately fifty
employees who collectively are responsible for processing and
maintaining all Social Security claims and benefits. Each BATA is
responsible for providing technical leadership, guidance and counsel to
the ten to fifteen BAs assigned to each module, and for reviewing the
work of the BAs, including the identification of "errors" made by the
BAs.
Commencing with the change implemented in October, 1982 Respondent
began rotation of BATAs from module to module every six months. The
reason for the rotation was, as Respondent had perceived, that the BAs
in each particular module had become familiar with their BATAs methods
and preferences, and thus could predict what would or would not be an
"error" to that specific BATA. Because Respondent unilaterally
implemented this new rotation system without bargaining with the Union,
the Union filed an unfair labor practice charge on October 15, 1982.
The case, 4-CA-30042 was subsequently settled after issuance of a
Complaint by the Regional Director, Region 4 and after Respondent
entered into an agreement with the Union entitled Memorandum of
Understanding, Ground Rules, on May 23, 1983. The signatories to this
agreement were Respondent's Labor Relations Specialist George Sedberry
and Local Union President Frank White. The Memorandum of Understanding
provides, inter alia, that:
This memorandum will serve as an agreement by Management and
Local 2206 to enter into negotiations regarding Management's
decision to rotate the Benefit Authorizer Technical Assistants on
a 6-month basis. Negotiations will be in accordance with the
(S)tatute and Article 4 of the National Agreement.
This memorandum will serve as an agreement by Local 2206 to
request withdrawal, concurrent with the initiation of
negotiations, of the Unfair Labor Practice Charge filed on
10/15/82, Case No. 4-CA-30042, . . . "
Consistent with the above-stated objective of the Memorandum of
Understanding and Ground Rules, Respondent and the Union, entered into
negotiations on the impact and implementation of the rotation of BATAs
in July, 1984. The principals for the negotiations were the agreements
signatures White and Sedberry. The Union's intention apparently was to
bargain over the adverse impact on the BAs and BATAs resulting from
Respondent's decision to rotate BATAs. Consistent with this intention
the Union identified areas it felt impacted on the employees involved.
According to Thomas M. Bruce, Director of Operations of the Program
Service Center involved herein, all BATAs followed the same
instructional guidance in reviewing BAs and there was unquestionably
room for the BATAs to exercise judgment in the decision making process.
Mr. Bruce further stated each BATAs definition of an "error" made by a
BA was somewhat subjective and could differ from BATA and BATA.
According to him a method existed for the resolution of an error because
such differences of opinion indeed exist.
The Union was concerned that the implementation of the decision to
rotate BATAs on a periodic basis would adversely impact BA's inasmuch as
the BAs would no longer be familiar with the particular judgmental
preferences of the BATAs assigned to them, especially with regard to
what constituted an error. According to Mr. White, the rotation
destroyed the advantage of knowing the preferences and actions of the
BATA to which the BA was regularly assigned. The rotational process,
particularly the assignment of errors, according to Mr. White, goes to
the root of the evaluation process under the Civil Service Reform Act.
Mr. White also vigorously denied that the Union desired during
negotiations to participate in devising errors. In short, it appears
that the Union was looking for consistency in definition of errors.
When the parties commenced negotiations pursuant to the May 23, 1983,
Memorandum of Understanding, the Union initially submitted thirteen (13)
proposals r for management's consideration. Of the thirteen (13)
original proposals the Union withdrew four (4) because they infringed
upon management's section 7106 rights; six (6) were agreed to; and,
three (3) which remained became subjects of unfair labor practice
charges.
The proposal with which we are here concerned is item number five (5)
of the thirteen (13) and concerns a system of errors to be applied
uniformly to BATAs. While the Union's initial proposal on this matter
admittedly infringed on management's rights under section 7106, the
Union submitted several different proposals concerning the same subject
during negotiations and it is its last offer which was declared
non-negotiable on August 24, 1983, by Labor Relations Specialist
Sedberry is at issue here. Mr. Sedberry, declared proposal item 5
non-negotiable "because there is no change in working conditions . . .
no change in our personnel policy, practice, or working (sic), or
conditions of employment."
In its last offer, the Union proposal on item 5 was as follows:
Technicians subject to quality assessment by the BATA will be
given an appropriate list of errors by management, each defined in
such a manner that all affected parties to this agreement have a
common understanding of what they are and how they will be
applied.
. . .
Any error definition will be applied consistently to all
affected employees throughout the SEPSC.
This proposal allegedly establishes a procedural requirement that
after an error had been defined by management, the employee must be told
what the definition is in a reasonably comprehensive manner in order to
insure consistent application.
Mr. White testified, that when the Union submitted the above
proposal, it desired Respondent to give the affected employees a list of
what the errors were so that both BATAs and BAs possessed a mutual
understanding of what constituted an error and so that the error
definitions would be applied consistently to all employees throughout
the Program Center.
Thereafter, a Mediator assisted the parties' at their request in
August, however, actual negotiations on item 5 have not occurred at any
time subsequent to August 24, 1983, when Respondent declared Item 5
non-negotiable.
On January 30, 1984, Mr.Bruce, issued a memorandum to all Program
Center Operations Managers, entitled Exercise of Professional Judgment
in Casework. The memorandum provided, as follows:
Basically, this memorandum does not extend the authority
technicians already possess since they already have the discretion
to deviate from established procedures where individual case
circumstances dictate a different course of action. The objective
of the memorandum was to reinforce this authority and expectation
and encourage the authorizers to fully exercise it . . . Some
authorizers evidently feel a strong reluctance to deviate from
procedures for fear of getting an error.
Discussion and Conclusions
The Authority has made it abundantly clear that where an agency in
exercising a management right under section 7106 of the Statute, the
statutory duty to negotiate comes into play if the change results in an
impact upon unit employees or such impact was reasonably foreseeable.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland, 16 FLRA No. 32 (1984); U.S. Government Printing
Office, 13 FLRA No. 39 (1983); Internal Revenue Service, Washington,
D.C. and Fresno Service Center, Fresno, California, 16 FLRA No. 23
(1984); Department of Health and Human Services, Social Security
Administration, 16 FLRA No. 103 (1984).
The Union's proffer of item 5 was prompted by its desire to have
Respondent give affected employees a list of defined errors thereby
insuring that both BATAs and BAs would know and have a common
understanding of what constituted an "error". The impact in its view
being that the individual BAs performance evaluation would ultimately be
affected by the assignment of errors therefore, the Union desired
advance knowledge of what constituted an error.
Respondent simply denies that the rotation of BATAs is a change in
conditions of employment and sees no impact on BAs as a result of its
rotating BATAs. The record is contrary to that assertion. The record
disclosed more than a question of negotiability or impact and shows that
Respondent had already agreed to negotiate the impact of that change in
rotation of BATAs. /6/ Case No. 4-CA-30042 was informally resolved on
the basis that Respondent would negotiate concerning its decision to
rotate BATAs and that such negotiations would be done in conformity with
the Statute and Article 4 of the parties collective bargaining
agreement. If Respondent did not view the rotation as a change in
conditions of employment, why then did it agree to engage in
negotiations concerning the rotation. That issue was resolved by its
capitulation in entering into the settlement agreement in the initial
case. I agree with the General Counsel that Respondent's position is
dissembling. First, Respondent admits an obligation to bargain
concerning the impact and implementation of a subject, enters into an
agreement memorializing that position, an agreement by the way, which
was made possible only by the Union's settlement of a charge found
meritorious by the Regional Office, engages in negotiations concerning
some previously contested items but decides that it does not want to
honor the agreement where item 5 is concerned. Inasmuch as Respondent
refused to negotiate concerning item 5 it is found that Respondent's
action constitutes a repudiation of that agreement and violates section
7116(a)(1) and (5) of the Statute. See Great Lakes Program Service
Center, Social Security Administration, Department of Health and Human
Services, 9 FLRA 499 (1982); Veterans Administration Hospital,
Danville, Illinois, 4 FLRA 432 (1980).
Respondent, asserts that it met its obligation to bargain in this
matter since it met in a good-faith effort to reach agreement. It
contends, that under Bureau of Prisons, Lewisburg Penitentiary,
Lewisburg, Pennsylvania, 11 FLRA 639 (1983) the fact it was not
persuaded to change its position during negotiations does not constitute
a showing of bad faith.
The Lewisburg case is inapplicable since no Memorandum of
Understanding was involved in that case. Here it is clearly established
by Respondent's position in settling Case No. 4-CA-30042 that it would
engage in impact and implementation bargaining and that at least
implicitly, it had an obligation to engage in impact bargaining
concerning the rotation of BATAs. Anything less than complete bargaining
on the impact and implementation apparently would not be in accord with
the agreement it entered into in May 1983. This is not a situation
under section 7106 where Respondent elects to negotiate, since its
election to negotiate was exercised when it entered the Memorandum of
Understanding. In this same vein, Respondent entered in negotiations
over other aspects of the rotation of BATAs thereby buttressing the
opinion that a change in conditions of employment had occurred.
Finally, meeting but affirmatively refusing to negotiate does not
satisfy the obligation to bargain as Respondent seems to suggest. Cf.,
Library of Congress, 9 FLRA 427 (1982).
In rejecting the May 1983 Memorandum of Understanding and assuming
that it had no obligation to bargain consistent with that memorandum
Respondent now maintains that no adverse impact occurred when it
exercised management rights herein. I disagree. A foreseeable impact
clearly exists since the record indicates errors are incorporated into
the employees rating process. Clearly the Union saw potential adverse
impact and presented its proposals pertinent to such impact.
The General Counsel argues that the proposal offered by the Union was
negotiable and that this matter falls within the class of cases where
agencies must bargain over the dissemination or communications of
determinations to employees because such dissemination or communication
in no way interferes with managements abilities to make the
determinations, and as such are matters which are fully negotiable.
Citing Department of the Army, Fort Monmouth, New Jersey, 13 FLRA 426
(1983); Bureau of Public Debt, 3 FLRA 768 (1980); Federal Deposit
Insurance Corporation, Chicago Region, 7 FLRA 217 (1981); Office of
Personnel Management, Washington, D.C., 3 FLRA 783 (1980); Department
of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982).
Turning to the General Counsel's argument that the record
demonstrates that the Union's final proposal did not attempt to give it
the right to determine what constitutes an error nor did it seek any
input into that determination. The Union proposal here appeared to be
no more than a procedural requirement seeking to establish that once an
error has been defined by the agency, the employee would be told the
definition of the error in a reasonably intelligible manner. The
proposal certainly goes to the impact of Respondent's decision to rotate
BATAs, particularly because the major concern of the Union here was to
prevent the lack of uniformity of application of the system of errors.
Thus, Respondent was obligated to bargain with the Union on this
proposal unless the Union's proposal (if adopted) would substantially,
or excessively, interfere with management's right to determine the
errors. See U.S. Customs Service, Region II, 11 FLRA 209 (1983);
Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982)
(D.C. Cir. March 13, 1984), or unless a government-wide regulation or
Statute left no discretion to the agency in the "choice" of the
procedure. See U.S. Customs, Region II, 11 FLRA 209 (1983); Bureau of
Alcohol, Tobacco, and Firearms, 8 FLRA 547 (1982); March AFB,
Riverside, California, 13 FLRA No. 44, 13 FLRA 255 (1983).
A review of the Union's proposal indicates that it did not interfere
with the Respondent's right to determine errors, and that the proposal
concerning the definition of "errors" which would affect employee
evaluations fell within the duty to bargain. Furthermore, Respondent
raised no government-wide regulation with which the proposal is
incompatible or irreconcilable. As the General Counsel notes, the
Union's proposal, if accepted, does not require Respondent to adopt any
input from the Union or employees on the definition of error. To the
contrary, the proposal simply provides a means for the employee or Union
to know what the errors are and how they are to be applied. Knowledge
of what an error is and its application in a consistent manner indeed
might reduce adverse impact of rotating BATAs, while leaving
management's decision-making unaffected.
Accordingly, in view of the foregoing and the conclusion that
Respondent has violated section 7116(a)(1) and (5) of the Statute, by
declaring a union proposal non-negotiable and refusing to negotiate
thereon although a reasonably foreseeable impact existed, /7/ I
recommend the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's regulations and section 7118 of the Statute, it is hereby
ordered that the Social Security Administration, Baltimore, Maryland
shall:
1. Cease and desist from:
(a) Failing or refusing to negotiate in good faith with the
American Federation of Government Employees, AFL-CIO, the
employees' exclusive collective bargaining representative by
declaring to the following proposal concerning the rotation of
BATAs non-negotiable:
Technicians subject to quality assessment by the BATA will be
given an appropriate list of errors by management, each defined in
such a manner that all affected parties have a common
understanding of what they are and how they will be applied . . .
. Any error will be applied to all affected employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request of the American Federation of Government
Employees, AFL-CIO, the employees' exclusive collective bargaining
representative, negotiate in good faith, to the extent consonant
with law and regulations, concerning the impact and implementation
of the proposal concerning the rotation of BATAs.
(b) Post at all of its facilities where employees represented
by the American Federation of Government Employees, AFL-CIO, the
employees' exclusive representative, are located, copies of the
attached Notice marked "Appendix", on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by an appropriate official and shall be
posted and maintained by him for 60 consecutive days thereafter,
in conspicuous places, including bulletin boards and all other
places where notices to employees are customarily posted. The
Commissioner shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director of
Region 4, Federal Labor Relations Authority, 1776 Peachtree
Street, NW., Suite 501 -- North Wing, Atlanta, GA 30309, in
writing within 30 days from the date of the Order as to what steps
have been taken to comply herewith.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: December 24, 1984
Washington, DC
FOOTNOTES
(1) The record does not show what happened to the other two proposals
subject to unfair labor practice charges.
(2) The proposal at issue is:
Technicians subject to quality assessment by the BATA will be
given an appropriate list of errors by management, each defined in
such a manner that all affected parties to this agreement have a
common understanding of what they are and how they will be
applied.
Any error definition will be applied consistently to all
affected employees throughout the SEPSC.
(3) See 182nd Tactical Air Support Grouup, Illinois Air National
Guard, The Adjutant General of Illinois, Springfield, Illinois, 10 FLRA
381 (1982).
(4) Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 22 FLRA No. 10 (1986).
(5) Based on our decision in this case, we find it unnecessary to
consider the Respondent's contentions that the parfties were at a
bargaining impasse.
(6) Based on the May 23, 1983 Memorandum of Understanding, I find
that Respondent's waiver argument lacks merit.
(7) In light of the above findings, Respondent's Motion to Dismiss is
denied.
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 fail and refuse to bargain in good faith with the
American Federation of Government Employees, AFL-CIO by declaring the
following proposal concerning the rotation of BATAs non-negotiable:
Technicians subject to quality assessment by the BATA will be
given an appropriate list of errors by management, each defined in
such a manner that all affected parties to this Agreement have a
common understanding of what they are and how they will be
applied. Any error will be applied consistently to all affected
employees throughout the SEPSC.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL bargain collectively with the American Federation of
Government Employees, AFL-CIO on all proposals concerning the
implementation of the rotation of BATAs and the impact thereof upon
employees adversely affected, including the proposal set forth above.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remaiin posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 4, whose
address is: 1776 Peachtree Street, NW., Suite 501 -- North Wing,
Atlanta, GA 30309 and whose telephone number is: (404) 881-2324.
23 FLRA NO. 95
NAGE, Service Employees International Union and Missouri National
Guard, Case No. 0-NG-1300 (Decided October 31, 1986)
STATUTE
7105(a)(2)(E)
7106(b)(1) and (3)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Procedure
Review of Proposals
Authority Generally Does Not Consider Parts Separately
Subjects of Bargaining, At Election of the Agency
Method and Means of Performing Work
Uniforms
Requirement that Employees Wear Uniforms
Type of Uniform
Where Purpose Is to Identify Person as an Agency Employee
Where Purpose Is to Foster Military Discipline
DIGEST NOTES
A proposal is nonnegotiable which provides that National Guard
civilian technicians will be given the option of wearing standardized
civilian attire rather than the military uniform. The decision to
require civilian technicians to wear a uniform represents management's
exercise of its right to determine the method and means of performing
work under section 7106(b)(1). However, negotiations over the specific
type of uniform to wear may or may not interfere with management's
rights depending on the circumstances. In one case where the purpose of
requiring employees to wear uniforms was to allow ready identification
of employees for security purposes, negotiations over the specific type
of uniform did not interfere with management's rights. However, in this
case the purpose is very different. Here the purpose of requiring
civilian technicians to wear uniforms is to foster military discipline,
promote uniformity, encourage esprit de corps, increased the readiness
of the military forces for early deployment and enhance identification
of the National Guard as a military organization. Given this context,
the type of uniform, i.e., a military uniform, is critical to achieving
the purpose for which the agency has adopted the uniform requirement.
Case No. 0-NG-1300
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO
Union
and
MISSOURI NATIONAL GUARD
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 one Union proposal. The proposal, which appears in the
Appendix to this Decision, essentially provides that National Guard
civilian technicians will be given the option of wearing standardized
civilian attire rather than the military uniform. Based on the
following, we find the proposal nonnegotiable.
II. Positions of the Parties
The Union asserts that its proposal is an appropriate arrangement for
employees adversely affected by the Agency's decision to require
civilian technicians to wear the military uniform and is negotiable
under section 7106(b)(3) of the Statute. In support of its contention,
it relies on the Authority's decision in American Federation of
Government Employees, Local 217 and Veteran's Administration Medical
Center, Augusta, Georgia, 21 FLRA No. 13 (1986). It characterizes that
decision as standing for the proposition that, while the decision to
require employees to wear a uniform may be a management right, the type
of uniform is negotiable as an appropriate arrangement. It asserts
that, in light of its decision in Veterans Administration, the Authority
should reconsider its previous decisions on the issue of National Guard
civilian technicians wearing the military uniform and requests that the
Authority conduct a hearing on the matter. It further asserts that,
when measured against the criteria which the Authority has articulated
for determining whether a matter is negotiable as an appropriate
arrangement, /1/ this proposal constitutes an arrangement for adversely
affected employees which does not excessively interfere with the
Agency's right to determine its internal security practices. /2/
The Agency notes that the Authority has held that the requirement
that civilian technicians wear the military uniform is a methods and
means of performing work within the meaning of section 7106(b)(1) of the
Statute. For example, Division of Military and Naval Affairs, State of
New York, Albany, New York Council, Association of Civilian Technicians,
15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of
Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied
106 S.Ct. 137 (1985). It argues that the Union's proposal in this case
is not an appropriate arrangement because it excessively interferes with
the Agency's right under section 7106(b)(1) in that it would totally
eliminate the right to determine the methods and means of performing
work.
III. Analysis and Conclusions
A. The Circumstances in Veterans Administration, 21 FLRA
No. 13, Are Distinguishable from Those Present Here
In the Veterans Administration case, the record established that the
purpose of requiring employees to wear a uniform was to allow ready
identification of employees for security purposes. In that context, the
Authority found that negotiation over the specific type of uniform did
not interfere with the purpose for which the uniform requirement was
adopted. However, the purpose of lthe uniform requirement, insofar as
National Guard technicians are concerned, is different. The National
Guard Bureau requires technicians to wear the military uniform to foster
military discipline, promote uniformity, encourage esprit de corps,
incrrease the readiness of the military forces for early deployment and
enhance identification of the National Guard as a military organization.
/3/ Given that context, the type of uniform, i.e., a military uniform,
is critical to achieving the purpose for which the Agency has adopted
the uniform requirement.
In view of the different circumstances present in the two cases, no
reconsideration of the Authority's previous determinations in the
National Guard cases is called for and the Union's request for a hearing
is denied.
B. The Union's Proposal Does Not Constitute an Appropriate
Arrangement
The Union has identified several instances where it contends that
employees have been adversely affected as a result of the Agency's
requirement that they wear the military uniform. Assuming that the
Union's contentions are accurate, the Authority finds that, in view of
the relationship between the military nature of the uniform and the
purpose for which the uniform requirement was adopted, a proposal
allowing employees to elect to wear a nonmilitary uniform would negate
the Agency's right to determine the methods and means of performing
work. A proposal which in this manner totally abrogates the exercise of
a management right excessively interferes with the right and is not
negotiable as an appropriate arrangement under section 7106(b)(3). See
American Federation of Government Employees, AFL-CIO, Local 3186 and
Department of Health and Human Services, Office of Social Security Field
Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 1).
This is not to say, however, that under all circumstances proposed
exceptions to the uniform requirement must be found non-negotiable. See
National Association of Government Employees, Local R3-84, SEIU, AFL-CIO
and District of Columbia Air National Guard, 23 FLRA No. 73 (1986), in
which the Authority found negotiable a proposal which excepted employees
from the uniform requirement when engaged in specified labor-management
activitgies. Thus, some portions of the Union's proposal which seek
specific exceptions to the uniform requirement might be found
negotiable, if severed from a proposed overall option of wearing
nonmilitary attire. We do not consider this question further here. The
Authority generally does not consider parts of a proposal separately,
unless the parties specifically so request, which was not done in the
present case. See Local 32, American Federation of Government Employees
v. FLRA, 774 F.2d 498, 505 (D.C. Cir. 1985).
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Union's petition for review be, and it hereby is,
dismissed.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA No. 4 (1986).
(2) Contrary to the Union's statement, the Agency has not asserted
that the proposal conflicts with its right under section 7106(a) to
determine its internal security practices.
(3) See Division of Military and Naval Affairs, State of New York,
Albany, New York, 15 FLRA 288 (1984).
APPENDIX
Section 12.
A. Excepted Technicians throughout the State shall wear an
agreeed-upon Standard Civilian Attire (SCA).
B. Exception: Excepted Technicians who wish to remain in the
military uniform shall, within 30 days from the date of approval of this
Agreement, or 30 days from the date of employment, whichever comes
later, notify the Technician Personnel Officer (TPO), in writing, of
their intent to remain in the military uniform. Upon receipt of such
notice by the TPO, they shall remain in the military uniform for the
life of this Agreement.
C. The military uniform will continue to be worn by all excepted
Technicians:
(1) When engaged in recruiting/retention activities, provided the
Technicians have advance knowledge of such activities;
(2) When serving as a crew member or non-crew member, or riding as a
passenger in a military aircraft;
(3) During all higher headquarters inspections or announced visits of
officials higher than State Headquarters;
(4) When in TDY status to a military installation, unless such wear
is exempted by policy guidance or regulation from higher authority;
(5) When working in Technician status in support of UTAs, AT, or any
other military function involving Drill-Status Guardsmen (DSGs) in a
military duty status; and
(6) When actively serving on a Base Defense Force.
D. Neither the Military uniform nor the SCA will be worn by
Technicians:
(1) When in an official travel status while traveling by commercial
or private transportation;
(2) When attending courses of instruction in a Technician status at
locations other than military installations, facilities or complexes,
except as required by the facility conducting the course;
(3) When serving as labor representatives while engaged in labor
agreement negotiations; and
(4) While participating as data collectors during a Federal Wage
System survey.
E. The Parties agree that the provisions of this Section of this
Article will be strictly adhered to and that they will provide mutual
support when correcting violations that might occur.
F. All SCA items of wear will be purchased, maintained and replaced
at the personal expense of the Technician.
G. SCA, specified as follows for all members of the bargaining unit,
will be uniform in style and color:
(1) Blue shirt with either long or short sleeves --
(A) When worn, SCA shirt will always be tucked in at the waist;
(B) A blue name tape, 1"X6", stenciled or embroidered with the
Technician's last name, in black if stenciled, or black thread if
embroidered, will be worn over the right pocket of the shirt, or in a
similar position on the shirt if it has no pocket;
(C) The SCA shirt may be of cotton poplin, twill, chambray, nylon or
knit.
(2) Full-length blue SCA trousers or slacks, or skirts, will be worn
-- those with belt loops will be worn with a plain black belt, leather,
knit, or woven, with a plain open-face buckle. Blue jeans will not be
worn.
(3) A blue jacket may be worn when required for an individual
Technician's comfort, and a name tape of the same style and markings
used on the SCA shirt will be worn in the same place on the jacket.
(4) As required by prevailing climatic conditions, a blue coat of
fingertip, or knee length, or an SCA parka with or without a hood, may
be worn when required for the comfort of the individual Technician.
(5) When out of doors, the following type black or blue headgear may
be worn --
(A) Baseball-type cap, or
(B) In cold weather, a knit stocking cap.
Local Commanders may, at their discretion, restrict wear of headgear
on the flight lines.
(6) Footwear will be in a standardized black color, low quarter or
ankle length shoes, boots, or insulated boots;
(A) socks will be black of any weight preferred;
(B) overshoes may be worn when required and will be of standard plain
design, pullover, buckle or zippered.
(7) Undershirts, if worn, will be plain, white, of T-shirt design,
circular neck, without ornamentation of any kind, and must always be
worn tucked into the trouser, slack or skirt waist.
(8) Blue sweaters, pullover, cardigan style, or zippered, with or
without sleeves, may be worn for the comfort of the individual
Technician.
(9) Ponchos, raincoats or rain suits may be worn when required by
foul weather conditions, and will be safety yellow.
(10) Technicians who wear the SCA and who continue to work during a
pregnancy will wear the SCA modified for maternity wear; Technicians
who wear the military uniform and who continue to work during a
pregnancy will follow the provisions of the appropriate AR or AFR.
(11) No ornamentation other than the name tape specified in G(1)(B)
and (3) above, no insignia of military rank, no display or membership
pins, buttons, jewelry or like items will be worn on the SCA items of
wear at any time.
H. It will be the responsibility of each Technician who wears the
SCA to maintain his personal attire in a serviceable and presentable
manner and condition and he will replace frayed, faded, torn, indelibly
spotted, or chemically eroded items with least possible delay.
I. Military grooming standards will be adhered to by all
Technicianss at all times, to enable achievement of a smooth and rapid
transition of Technicians to military status in emergencies, in keeping
with the missions of the Missouri National Guard and of the Agency;
grooming standards will be as specified in the appropriate AR or AFR.
J. No mixture of military uniform items and SCA items, or of normal
civilian non-military, non-SCA items and SCA items will ever be
permitted and wear of any mixed attire will be forcefully discouraged by
both Parties except for required safety items.
K. If Technicians select the SCA, the military uniforms issued to
them in excess of their regular military allowance will be turned in to
their military unit within 30 days after the date the SCA-wear option
becomes effective at their work location.
L. The Parties agree that the provisions of this Section of this
Article will be strictly adhered to and that they will provide mutual
support for making corrections of violations that might occur.
23 FLRA NO. 94
OPM and AFGE, Local 32, Case No. 3-CA-50464 (Decided October 31,
1986)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Refusal to Negotiate
Lunch Breaks
Procedure
Forums
Interpretation and Application of Contract Provision
Waiver of Rights
Contract Provision Governing Alternate Work Schedules
DIGEST NOTES
The union waived its rights to bargain over the agency's decision to
change lunch schedules to ensure adequate telephone coverage when it
agreed to a contract provision governing alternate work schedules.
Therefore the agency did not violate section 7116(a)(1) and (5) when it
changed an established past practice that allowed unit employees to take
their one hour lunch break anytime between 11:30 a.m. through 1:30 p.m.
to one that required that the lunch break be at a fixed time, either
11:30 a.m. or 12:30 p.m. Should there be disagreement on contract
interpretation, the forum for resolution of such issues is the grievance
and arbitration procedures established by the parties in their
collective bargaining agreement.
Case No. 3-CA-50464
OFFICE OF PERSONNEL MANAGEMENT
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, under
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. Briefs for the Authority's consideration were
filed by the Respondent and by the General Counsel. The complaint
alleges that the Respondent violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute) by
unilaterally changing a past practice of permitting employees in the
Office of Personnel Management's Job Information and Testing Center
(Respondent JIC) to take their lunch break at any time between 11:30
a.m. and 1:30 p.m. and by refusing to negotiate on the decision and its
impact and implementation on unit employees. For the reasons stated
below, we find no merit to these allegations and will dismiss the
complaint in its entirety. /*/
II. The Facts
The American Federation of Government Employees, Local 32, AFL-CIO
(Union) is the exclusive representative of Respondent's professional
General Schedule and nonprofessional Wage Grade and General Schedule
employees in the Washington, D.C. metropolitan area. On June 7, 1985,
Respondent JIC held a staff meeting at which time unit employees were
reminded of JIC policy requiring that two or three employees be
available from 11:30 a.m. through 1:30 p.m. in order to answer telephone
calls. They were asked to voluntarily cover the telephones during these
hours.
The parties agree that the Respondent's policy of allowing employees
to take their one hour lunch break anytime between 11:30 a.m. through
1:30 p.m. had become an established past practice. The Respondent,
without notifying the Union, unilaterally implemented a written lunch
schedule on July 14 for JIC employees. The written lunch schedule
directed specific employees to take their one hour lunch break at either
11:30 a.m. or 12:30 p.m. and resulted in five or six employees becoming
available for the required telephone coverage. Subsequently, by letter
dated July 24, 1985, the Union requested bargaining over Respondent's
decision to change lunch breaks as well as its impact and implementtion.
The Respondent refused to negotiate over its decision to schedule lunch
breaks.
The parties' negotiated collective bargaining agreement includes an
Alternative Work Schedule Experiment agreement in which paragraphs F and
G of section III entitled "Tour of Duty" provide:
F. In making schedule adjustments to accommodate coverage and
operational requirements, the use of volunteers, or other
voluntary methods, shall be the preferred means of resolving
conflicts. If such means do not serve to provide a resolution,
other methods may be adopted which are fair and equitable to the
employees involved.
G. Management will determine in advance all coverage
requirements necessary. Such determinations shall be subject to
the grievance procedure.
III. Positions of the Parties
The Respondent argues that the adjustment in lunch schedules did not
constitute a unilateral change in an established past practice, but
rather was a reaffirmation in writing of an existing policy and long
established practice to ensure the coverage of telephones between 11:30
a.m. and 1:30 p.m. It contends the only change that occurred was that
employees could no longer adjust their lunch schedules between 11:30
a.m. and 1:30 p.m. Even assuming that there was a change in past
practice, the Respondent argues that bargaining over any adjustments in
lunch schedules was waived by the Union under the parties' negotiated
collective bargaining agreement. Additionally, the Respondent argues
that any dispute concerning differing and arguable interpretations of
the provisions in the parties' agreement should be pursued by the Union
under the parties' negotiated grievance and arbitration procedure and
not through an unfair labor practice procedure.
The General Counsel argues that the change in lunch schedules to
ensure adequate telephone coverage went beyond a reaffirmation of the
Respondent's policy. Rather, the change was a permanent assignment of
employees concerning their non-work schedule, for example, when
employees must take their lunch breaks. The General Counsel contends
that this is a unilateral change in a negotiable condition of
employment. Further, the General Counsel argues that paragraphs F and G
of section III in the negotiated agreement do not establish a clear and
unmistakable waiver by the Union of its right to negotiate over the
subject matter since those provisions are silent on the scheduling of
lunch breaks.
IV. Analysis
A. Change in Conditions of Employment
It is clear from the parties' stipulation of facts that the
Respondent changed an established past practice that allowed unit
employees to take their one hour lunch break anytime between 11:30 a.m.
through 1:30 p.m. to one that required that the lunch break be at a
fixed time, either 11:30 a.m. or 12:30 p.m. As acknowledged by the
Respondent, employees could no longer adjust their lunch hour as had
been their previous practice.
B. Waiver
In our view, by entering into agreement with Respondent on paragraphs
F and G noted above, the Union clearly and unmistakably waived its right
to bargain over the Respondent's subsequent decision to change lunch
schedules to ensure adequate telephone coverage. In so concluding, we
view the Tour of Duty contract provision as constituting agreement that
the Respondent can determine coverage requirements, which dictate the
lunch hour scheduling at issue in this case, and that the forum for the
resolution of such determiniations is the grievance procedure. By
agreeing to these provisions, the Union waived its right to prior
negotiations on such a scheduling change. See Defense Logistics Agency,
Defense General Supply Center, Richmond, Virginia, 20 FLRA No. 62
(1985).
V. Conclusion
We have considered all the facts and circumstances of this case,
including the positions of the parties, and conclude that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute, as alleged.
Accordingly, we shall dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-50464 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, Concurring:
I agree with the conclusion of my colleagues that the complaint must
be dismissed. However, I base my conclusion on a finding that, in the
circumstances, no unilateral change in conditions of employment took
place. I reach this finding as follows. It is stipulated that there
was an established practice at the Activity for employees to take their
one hour lunch break "anytime from 11:30 a.m. through 1:30 p.m. as long
as two or three employees were available for telephone coverage."
(Stipulation Section 6(b), emphasis added.) Clearly, the right of the
employees to set times of their lunch hour was not unconditional. An
employee's ability to select "anytime" during that two-hour period was
conditioned on the availability of employees for telephone coverage.
The requirement for adequate telephone coverage was a part of the
established practice.
The collective bargaining agreement provides, among other things,
that the use of volunteers, or other voluntary methods, shall be the
preferred means of resolving conflicts in making schedule adjustments
(section III, Paragraph F), and that management will determine in
advance all coverage requirements necessary, subject to the grievance
procedure. (Section III, paragraph G.) The Activity's supervisor,
between June 7 and July 15, 1985, observed no phone coverage on several
occasions between 12:30 p.m. and 1:30 p.m.; on June 14, 1985, pursuant
to the above contract provisions, employees were reminded of the need to
voluntarily check with co-workers before leaving for lunch to ensure
adequate phone coverage. (Stipulation Sections 7 and 8.) Thus,
management sought voluntary employee action to meet the coverage
requirements. On July 15, 1985, the supervisor implemented the written
lunch schedule whereby specific employees were directed to take their
one hour lunch break at either 11:30 a.m. or 12:30 p.m. in order to
insure adequate telephone coverage. (Stipulation Section 9.) Apparently
concluding that "voluntary methods" had not "serve(d) to provide" a
resolution of the problem management then made "schedule adjustments to
accommodate coverage and operational requirements."
These actions did not constitute a unilateral change in conditions of
employment. Instead, they amounted to nothing more than an attempt by
management to insure that the existing requirement for adequate
telephone coverage was met in accordance with the provisions of the
collective bargaining agreement.
If the Union believes that the Activity failed to comply with the
provisions and procedures of the collective bargaining agreement in this
instance, it may, of course, resort to the negotiated grievance
procedure. As noted, for example, section III, paragraph G subjects
determinations of coverage requirements to the grievance procedure.
Also, such issues as whether volunteers or a voluntary method of
coverage were tried, whether they were successful, and whether the other
method eventually adopted by management (i.e., the setting of hours) was
fair and equitable would all appear to be subject to the grievance
procedure.
Since I find that no violation of the Statute has been established
because there was not a unilateral change in a condition of employment,
I find it unnecessary to reach the waiver issue addressed by my
colleagues.
Issued, Washington, D.C., October 31, 1986
/s/ Henry B. Frazier, III, Member
FOOTNOTES
(*) Member Frazier's separate opinion is set forth, infra.
23 FLRA NO. 93
NTEU Chapter 52 and IRS, Austin District, Case No. 0-NG-1163 (Decided
October 30, 1986)
STATUTE
7105(a)(2)(E)
7114(c)(1), (2), (3), (4)
7117
SUBJECT MATTER INDEX ENTRIES
Collective Bargaining Agreement
Agreement Provisions that Are Contrary to Law or Regulation
Ratification/Approval of Agreement
Agency's Head's Review of Local Supplemental Agreements
Time Limits Under 7114(c)(2)
Time Limits Established Under 7114(c)(4)
Negotiability
Procedure
Agency Head's Disapproval of Agreement
Local Supplemental Agreements
Time Limits
DIGEST NOTES
The time limits for approval by an agency head of a local
supplemental agreement is either the time limit established under
section 7114(c)(4), or in the absence of such an established limit, the
30-day time limit provided by section 7114(c)(2). Section 7114(c) of
the Statute establishes a process for approval of negotiated agreements
by agencies. Section 7114(c)(1) provides that an agreement between an
agency and an exclusive representative "shall be subject to approval by
the head of the agency." Section 7114(c)(2) establishes a 30-day time
limit for this approval process. However, the agency by agreement with
the exclusive representative, by internal agency regulation, or other
means can designate officials below the level of the agency head to
exercise the approval authority referred to in section 7114(c)(1). In
addition, section 7114(c)(3) provides that an agreement automatically
becomes effective and binding on the parties on the expiration of the
30-day period prescribed in section 7114(c)(2), if the agency head (or
the agency head's designee) has not acted to approve or disapprove the
agreement within that period.
Section 7114(c)(4) supplements the provisions of section 7114(c)(1),
(2) and (3). Under section 7114(c)(4), the agency and the exclusive
representative may negotiate procedures for approving locally negotiated
agreements subject to a higher level controlling agreement. In the
absence of such a negotiated approval procedure, section 7114(c)(4) also
authorizes an agency to establish such procedures under its regulations.
Therefore, while Congress has provided in section 7114(c)(2) that 30
days is sufficient time to accomplish review of a collective bargaining
agreement, under section 7114(c)(4) the parties to the controlling
national agreement or the agency by regulations, may prescribe an
approval procedure, including a different time limit, for review of
local agreements. A time limit established under section 7114(c)(4)
supplants the 30-day time limit contained in section 7114(c)(2) which
otherwise would apply. Where, however, neither the controlling
agreement nor agency regulations prescribe any time limit for completion
of review by the agency head or a designee, the time limit mentioned in
section 7114(c)(2) and (3) applies.
The validity of provisions in a supplemental agreement that became
effective when the agency head failed to disapprove the provision within
the prescribed time limit, may be raised in appropriate proceedings such
as grievance or unfair labor practice proceedings. If the agreement
provisions are found to be violative of the Statute or any other
applicable law, rule or regulation, they would be void and
unenforceable.
Case No. 0-NG-1163
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 52
Union
and
INTERNAL REVENUE SERVICE AUSTIN DISTRICT
Agency
ORDER DISMISSING PETITION FOR REVIEW
This matter 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 reason set forth
below, the Union's appeal must be dismissed.
From the Union's petition for review and the Agency's statement of
position, it appears that the local parties signed a negotiated
agreement on May 10, 1985. It also appears that a controlling national
agreement between the Internal Revenue Service and the National Treasury
Employees Union was in effect at that time. The local parties'
agreement was submitted for agency head approval under section
7114(c)(4) of the Statute. The Agency head's designee disapproved a
number of provisions of the agreement. The written disapproval was
served on the Union by mail on July 23, 1985. In a motion subsequently
filed with the Authority the Union took the position that the Agency
head's disapproval was not timely under section 7114(c). In its
response to the Union's motion, the Agency indicated that neither the
controlling national agreement nor the Agency's regulations contain any
time limits for Agency head disapproval of local supplemental
agreements. /*/
Section 7114(c) of the Statute establishes a process for approval of
negotiated agreements by agencies. Section 7114(c)(1) provides that an
agreement between an agency and an exclusive representative "shall be
subject to approval by the head of the agency." Section 7114(c)(2)
establishes a 30-day time limit for this approval process. However, the
agency by agreement with the exclusive representative, by internal
agency regulation, or other means can designate officials below the
level of the agency head to exercise the approval authority referred to
in section 7114(c)(1). In addition, section 7114(c)(3) provides that an
agreement automatically becomes effective and binding on the parties on
the expiration of the 30-day period prescribed in section 7114(c)(2), if
the agency head (or the agency head's designee) has not acted to approve
or disapprove the agreement within that period.
Section 7114(c)(4) supplements the provisions of section 7114(c)(1),
(2), and (3). Under section 7114(c)(4), the agency and the exclusive
representative may negotiate procedures for approving locally negotiated
agreements subject to a higher level controlling agreement. In the
absence of such a negotiated approval procedure, section 7114(c)(4) also
authorizes an agency to establish such procedures under its regulations.
Therefore, while Congress has provided in section 7114(c)(2) that 30
days is sufficient time to accomplish review of a collective bargaining
agreement, under section 7114(c)(4) the parties to the controlling
national agreement or the agency by regulations, may prescribe an
approval procedure, including a different time limit, for review of
local agreements. A time limit established under section 7114(c)(4)
supplants the 30-day time limit contained in section 7114(c)(2) of the
Statute which otherwise would apply. Where, however, neither the
controlling agreement nor agency regulations prescribe any time limit
for completion of review by the agency head or a designee, the time
limit mentioned in section 7114(c)(2) and (3) applies. Compared to
having no time limit, reading the Statute to apply the 30-day limit of
those subsections where the parties themselves have not provided
otherwise best accelerates the review process and ensures that locally
negotiated agreements become effective as expeditiously as possible.
In this case, neither the controlling national agreement nor the
Agency's regulations provide any time limits for review of the parties'
locally negotiated agreement. Thus, the 30-day time limit of section
7114(c)(2) is applicable. The local parties' supplemental agreement was
executed on May 10, 1985, and submitted for agency head review and
approval. However, the Agency's disapproval was not served on the Union
until July 23, 1985, or 73 days after the agreement was executed.
Therefore, under section 7114(c)(3) of the Statute, since the Agency's
disapproval was not served on the Union within the 30-day period
prescribed in section 7114(c)(2), the local agreement went into effect
on June 10, 1985, the 31st day after it was executed.
Since the entire agreement, as negotiated and executed by the local
parties, became effective on June 10, 1985, the Agency's subsequent
disapproval does not raise a negotiability dispute concerning the terms
of such agreement which is cognizable under section 7117 of the Statute.
Our conclusion that this case does not present a negotiability
dispute does not, of course, mean that any provisions in the agreement
which are contrary to the Statute or any other applicable law, rule or
regulation, are enforceable. Rather, as the Authority has repeatedly
held in like cases, a question as to the validity of such provisions may
be raised in other appropriate proceedings (such as grievance
arbitration and unfair labor practice proceedings) and, if the agreement
provisions are found to be violative of the Statute or any other
applicable law, rule or regulation, they would be void and
unenforceable. See American Federation of Government Employees,
AFL-CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal,
Alabama, 4 FLRA 361 (1980), motion for reconsideration denied, 4 FLRA
363 (1981). These requirements are applicable to agency head review of
all collective bargaining agreements, including local agreements which
are subject to national or other controlling agreements at higher levels
of an agency, as is involved in this case. National Federation of
Federal Employees, Local 1862 and Department of Health, Education and
Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona,
3 FLRA 182 (1980); American Federation of Government Employees,
AFL-CIO, Local 1625 and Fleet Combat Training Center, Atlantic, U.S.
Department of the Navy, 14 FLRA 162 (1984).
Since the Union's petition for review does not meet the conditions
for review under section 7117 of the Statute and section 2424.1 of the
Authority's Rules and Regulations, and apart from other considerations,
it is dismissed.
Issued, Washington, D.C., October 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In view of the result in this case the Authority finds it
unnecessary to rule separately on the Union's motion or on the
timeliness of the Union's response to the Agency's Statement of
Position.
23 FLRA NO. 92
NFFE, Local 1453 and Kenneth A. Crawford, an Individual, Case No.
4-CO-20022; NFFE, Local 1453 and Clara Mae Dixon, an Individual, Case
No. 4-CO-30012 (Decided October 30, 1986)
STATUTE
7114(a)(1)
7116(b)(1) and (8)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Duty of Fair Representation
Analysis of
Executive Order 11491 Case Law Applicable
Statute's Standard vs. NLRA's Standard
Grievance Procedure
Failure to Inform Grievant of Change in Status of Grievance
Failure to File Grievance Absent Employee Request
Negligent and Inept Representation
Standard for Determining a Breach
Arbitrary/Bad Faith Action Resulting in Disparate Treatment
Union Violations
Otherwise Refuse to Comply with the Statute
7114(a)(1)
DIGEST NOTES
The standard for determining whether an exclusive representative 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 reviewed the development
of the duty of fair representation under Executive Order 11491 and the
Statute and differentiated it from the similar obligation section 9(a)
of the NLRA, under which the concept of the duty of fair representation
developed in the private sector. The second sentence of section
7114(a)(1) of the Statute -- which has no counterpart in the NLRA --
imposes certain duties upon a labor organization when it acquires the
right of an exclusive representative set forth in the first sentence.
The union did not violate section 7116(b)(1) and (8) when it failed
to inform one employee of a change in the status of his grievance and
failed to file a grievance for another employee who was terminated but
who did not specifically request the union to file. Although the union
may have been negligent or inept in its representation of the employees,
mere negligence does not support the finding that the duty of fair
representation has been breached under section 7114(a)(1). In order to
find a section 7114(a)(1) violation, 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.
Case No. 4-CO-20022
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and
KENNETH A. CRAWFORD, AN INDIVIDUAL
Charging Party
Case No. 4-CO-30012
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and
CLARA MAE DIXON, AN INDIVIDUAL
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the General Counsel to the attached Decision of
the Administrative Law Judge. The Respondent filed an opposition to the
General Counsel's exceptions. The consolidated complaint alleged that
the Respondent (the Union) breached its "duty of fair representation" as
required by section 7114(a)(1) of the Federal Service Labor-Management
Relations Statute (the Statute) and thereby violated section 7116(b)(1)
and (8) of the Statute.
II. Facts and Judge's Findings
Case No. 4-CO-20022 (Kenneth A. Crawford). Employee Crawford was
being assisted by the Union in a grievance about his proposed
suspension. Without Crawford's knowledge, the agency (Veterans
Administration) had returned an attempted "third step" grievance request
to the Union, advising it that the proper procedure to follow was to
refile the grievance at step one. The Judge found that the Union failed
to inform Crawford of the status of his grievance, but that the evidence
did not support a finding that the Respondent "refused" to provide such
information. The Judge stated that "there is no refusal because there
was no specific request actually communicated to the Union." The Union
took no further action on the grievance.
Case No. 4-CO-30012 (Clara Mae Dixon). Employee Dixon was informed
that she was to be terminated and asked the Union President to help her.
She was referred to the Chief Steward. At their first meeting, the
Chief Steward asked Dixon to come back once she received her letter of
discharge. When Dixon came back with her letter, the Chief Steward
asked Dixon to get her personnel file and come back later. Dixon came
back, but the Chief Steward was not in the office. On her last day of
work, Dixon went to the Union President's office. Following the
President's offer to review "quite a few papers" and "quite a few
serious charges" against her, Dixon replied that she had more papers to
get from home and would return. She did not return and did not
specifically request that the Union file a grievance on her behalf. The
Judge did not credit Dixon's claim that the Union stated that there was
nothing it would do.
III. Judge's Decision
The Judge noted that while the Authority has addressed the question
of an exclusive representative's duty under section 7114(a)(1) of the
Statute to represent employees "without regard to labor organization
membership," it has not addressed the duty under that section to
represent employees "without discrimination."
The Judge analyzed at length the private sector experience under the
general provisions of the National Labor Relations Act (the NLRA), as
amended. The Supreme Court in Vaca v. Sipes, 386 U.S. 171 at 190
(1967), stated that:
A breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith.
As the Judge pointed out, the Federal Courts and the National Labor
Relations Board (NLRB) have differed widely in interpreting what
constitutes conduct that is "arbitrary, discriminatory, or in bad
faith."
The Judge rejected the proposed standard advanced by the General
Counsel that mere negligence or ineptitude is sufficient to establish
that a union has been "arbitrary" and thus breached its duty. He also
rejected as imprecise the NLRB's standard that "something more than
negligence" must be shown to establish a breach of duty. The Judge
concluded that in order to show that a union has breached its duty of
fair representation under the Statute, the General Counsel must prove
that the union has "deliberately and unjustifiably refused or failed to
represent a bargaining unit employee." The Judge applied this standard
to the facts of each case.
Crawford. As to employee Crawford, the Judge found that while the
Union may be faulted as ineffective or inept in its actions regarding
Crawford's grievance, the General Counsel failed to prove that the Union
deliberately and unjustifiably failed or refused to represent him. The
Judge thus found no breach by the Union of its duty of fair
representation and no violation of the Statute.
Dixon. As to employee Dixon, the Judge found that Dixon had not
fully cooperated with the Union in an effort to grieve her case and that
she did not in fact request the Union to file a grievance on her behalf.
He found that the Union had not failed or refused to represent Dixon
and thus did not breach its duty or violate the Statute.
IV. Positions of the Parties
The General Counsel excepts to the standard used by the Judge to
determine the extent of the Union's duty of fair representation under
the Statute and to the Judge's application of this standard to the
facts. The General Counsel maintains that negligence alone is
sufficient grounds for finding a violation.
The Respondent Union generally supports the standard applied by the
Judge. It points also to the fact that, while the Union took no action
to refile Crawford's grievance, Crawford knew in sufficient time before
his suspension that the grievance had to be refiled, but did not do so.
V. Analysis
We are in substantial agreement with the Judge's rationale and with
his ultimate conclusions. /1/ For the reasons that follow, we find that
the Union did not violate the Statute in the circumstances of either of
these consolidated cases. While the Authority has addressed an
exclusive representative's alleged breach of its duty of fair
representation based on union membership considerations, /2/ we have not
yet fully addressed the nature of an exclusive representative's duty of
fair representation where union membership is not a factor. /3/ We must
first determine what standard to apply in deciding whether the duty has
been met.
The duty of an exclusive representative to fairly represent all unit
employees arises under the second sentence of section 7114(a)(1) of the
Statute. See Appendix. While the first sentence of section 7114(a)(1)
is comparable to section 9(a) of the NLRA, under which the concept of
the duty of fair representation developed in the private sector, that
sentence sets forth certain rights of representatives which must be
accorded to a labor organization which has achieved the status of
exclusive representative for an appropriate bargaining unit. The second
sentence of section 7114(a)(1) -- which has no counterpart in the NLRA
-- imposes certain duties upon a labor organization when it acquires the
right of an exclusive representative set forth in the first sentence.
/4/
The second sentence of section 7114(a)(1) is virtually identical to
the second sentence of Section 10(e) of Executive Order 11491, as
amended (see Appendix), which was interpreted as "imposing certain
obligations upon a labor organization when it acquires the rights of an
exclusive representative." See, for example, United States Department of
the Navy, Naval Ordnance Station, Louisville, Kentucky, 3 FLRC 686, 690
(1975). Since the provisions of the Statute and the Executive Order are
virtually identical, and when Congress enacted the Statute it adopted
the language of the Executive Order without comment, the Executive Order
case law is relevant. In American Federation of Government Employees,
Local 2126, AFL-CIO, San Francisco, California, 1 FLRA 993 (1979), the
Authority held that the exclusive representative, by refusing a request
to act as an advisor, "did not act arbitrarily or perfunctorily or in
bad faith, and thus did not breach its duty of fair representation." In
American Federation of Government Employees, AFL-CIO, Local 987, 3 FLRA
715 (1980), it was held that "mere negligence will not support a finding
that the duty (of fair representation) has been breached." In Local
R7-51, National Association of Government Employees (NAGE), A/SLMR No.
896, 7 A/SLMR 775 (1977), the Assistant Secretary held that the "duty of
fair representation is breached only when the exclusive representative's
conduct is arbitrary, discriminatory, or in bad faith."
Under the Executive Order, therefore, a union's duty of fair
representation included not only the prohibition on discrimination
expressly set forth in section 10(e), but also the obligation to
represent employees without arbitrariness or bad faith implicit in that
section. In our view, Congress intended the Authority to apply a
similar standard under the analogous provision in section 7114(a)(1) of
the Statute. The Eleventh Circuit's decision in Warren v. Local 1759,
American Federation of Government Employees, 764 F.2d 1395, 1396, 1399
n.5 (11th Cir.), cert. denied, 106 S.Ct. 527 (1985), supports our
conclusion that the second sentence of section 7114(a)(1) is the source
of the duty of fair representation in the Federal sector. But see Pham
v. Local 916, American Federation of Government Employees, 799 F.2d 634,
638-39 (10th Cir. 1986), petition for rehearing filed (October 8, 1986).
Based upon the clear language of the Statute and the applicable
legislative history, /5/ we find that where union membership is not a
factor, the standard for determining whether an exclusive representative
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. As discussed above, this standard is
consistent with that used in Executive Order cases and with that used by
the National Labor Relations Board in deciding similar cases. See
Office and Professional Employees International Union, Local No. 2,
AFL-CIO, 268 NLRB 1353 (1984).
VI. Conclusion
As to Kenneth A. Crawford, the Authority finds that the General
Counsel has not established that the Union deliberately and
unjustifiably treated him differently from other bargaining unit
employees. There is no showing that the Union's actions in failing to
notify Crawford of the return of his grievance or to take any action to
renew it at a different step constituted other than mere negligence or
miscommunication.
As to Clara Mae Dixon, the Authority also finds that the General
Counsel has not established that the Union deliberately and
unjustifiably treated her differently from other bargaining unit
employees. In this regard, there is no showing that the Union did
anything other than express views on the nature of the evidence against
Dixon.
Accordingly, the Authority finds that the Union did not violate
section 7114(a)(1) of the Statute, and did not violate section
7116(b)(1) and (8) of the Statute. Therefore, we shall dismiss the
consolidated complaint.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 4-CO-20022
and 4-CO-30012 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Section 7114(a)(1) provides:
Section 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership.
Section 10(e) of Executive Order 11491, as amended, provided in
pertinent part:
Sec. 10. Exclusive recognition.
. . . . . . .
(e) When a labor organization has been accorded exclusive
recognition, it is the exclusive representative of employees in
the unit and is entitled to act for and negotiate agreements
covering all employees in the unit. It is responsible for
representing the interests of all employees in the unit without
discrimination and without regard to labor organization membership
. . . .
Case No. 4-CO-20022
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and
Case No. 4-CO-30012
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and
CLARA MAE DIXON, AN INDIVIDUAL
Charging Party
Patrick J. Riley, Esq.
For the Respondent
Roy W. McIntosh
For the Charging Party
Barbara S. Liggett
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. Section 7101 et seq. It was instituted by the Regional Director
of the Fourth Region of the Federal Labor Relations Authority.
The charge in Case No. 4-CO-20022 was filed on August 5, 1982, by
Kenneth A. Crawford, an individual (hereinafter referred to as
Crawford), against the National Federation of Federal Employees, Local
1453 (hereinafter referred to as the Union or Respondent. The charge in
Case No. 4-CO-30012 was filed on February 14, 1983, by Clara Mae Dixon,
an individual (hereinafter referred to as Dixon), against the Union. On
May 18, 1983, an Order Consolidating Cases, Amended Consolidated
Complaint and Amended Notice of Hearing issued, which was further
amended at the hearing in this matter. The complaint alleges that
Respondent violated section 7116(b)(1) and (8) of the Statute, when it
failed and refused to represent Crawford and Dixon, and thereby failed
and refused to comply with the provisions of section 7114(a)(1) of the
Statute. Essentially, the issue is whether or not the Union breached
its "duty of fair representation" to Crawford or Dixon, or both.
A hearing was held in Miami, Florida at which time the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by the Respondent and General Counsel have been duly considered.
Upon the consideration of the entire record /6/ in this case,
including my evaluation of the testimony and evidence presented at the
hearing, and from my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and recommended
order.
Findings of Fact
1. The Veterans Administration, herein called VA, is an agency
within the meaning of Section 7103(a)(3) of the Statute. The VA Medical
Center, Miami, Florida, herein called VAMC, is an administrative
subdivision within the VA and an activity within the meaning of Section
2421.4 of the Rules and Regulations of the Authority.
2. National Federation of Federal Employees and Local 1453 are labor
organizations within the meaning of Section 7103(a)(4) of the Statute.
Prior to October 1, 1981, NFFE, Local 1453 was the exclusive
representative of certain VAMC employees. On October 1, 1983 certain
units at the VA were consolidated in Case No. 3-UC-11. Local 1453
became part of a consolidation of NFFE locals known as the Council of
Veterans Administration Locals.
3. At all times material herein, the following persons were agents
of Respondent: Elnora B. Weaver (President), Mary Vanaman (Fourth Vice
President and Secretary), Jeanette Cottle (Chief Steward), Benny Dykes
and Preston Jackson (Area Stewards).
Case No. 4-CO-20022 (Kenneth A. Crawford)
4. Kenneth Crawford was employed at the VAMC as GS-16 Purchasing
Agent from December 1979 through July 1982. He is now employed by the
U.S. Postal Service. His immediate supervisor at the VAMC was Frank
Tiano, Chief of Purchasing and Contracts. Tiano reported to Walter
Whittaker, Assistant Chief of Supply and to Wayne Hart, Chief of Supply.
Hart reported to T. C. Doherty, the VAMC Director.
5. According to Crawford, Tiano had promised him a day off on
Friday, March 5, 1982. This was cancelled and at Crawford's request
Union Chief Steward Cottle met with Tiano and Crawford on about March 3
about the matter, together with Maggie Smith, Tiano's assistant. The
result was that management took the position it had a right to cancel
days off for the good of the service when it was necessary to do so.
The next day, Crawford became ill and reported to the VA hospital "in
the evening" where he was able to obtain a "two week duty excuse"
covering the period from March 5 through March 18 or 19. Crawford
described his illness as a "service-connected injury" which flares up
from time to time. He was not any more specific. Crawford, whom I
found to be intelligent, competent and aggressive, chose not to directly
inform his supervisor about the reasons for his failure to report to
work. If credited, Crawford merely told the doctor to inform the
administrative duty officer who would, in turn inform the service of his
absence (Tr. 48). When he eventually (at 11:30 the evening of March 4)
called his supervisor he was told he was being placed on AWOL.
Apparently his shift began at 8:00 p.m. and carried over to Friday,
March 5. It is not clear whether this is the shift he originally had
been given off, or whether it is a shift actually beginning the evening
of March 5.
In any event, one thing led to another and Crawford's next dispute
with the VA concerned his insistence on using sick leave and LWOP during
his absence and VA's refusal to grant him LWOP in lieu of annual leave.
Union steward Cottle assisted Crawford at some of his meetings with
supervisory officials.
6. A different account of what happened may be gleaned from G.C.
Exh. No. 5, a proposed suspension (for 15 days) dated March 29. This
document accuses Crawford of the following:
a. On March 3, 1982 you contacted Mrs. Maggie Smith, stating
that you needed four hours of annual leave and that you would come
to work by 12:30 PM or call. You did not report for work or call
and were charged 4 hours of Absence Without Leave (AWOL).
b. You did not follow proper procedures in requesting sick
leave on March 5, 1982 in that you did not request sick leave
until 1:00 PM and Medical Center Policy 05-36-77 dated August 10,
1977 requires you to call in within two hours of the beginning of
your tour of duty. You were therefore charged 5 hours of Absence
Without Leave (AWOL).
c. You did not follow proper procedures in requesting leave
for March 5, 1982 through March 12, 1982 in that you have failed
to submit an SF-71 covering this period of time as requested by
Mr. Tiano, your immediate supervisor, and as required by Medical
Center Policy 05-36-77 dated August 10, 1977.
d. You were charged Absence Without Leave for the period of
March 5, 1982 through March 12, 1982 for failing to properly
request leave.
On the second page of the proposed suspension notice, Crawford
indicated that he desired the Union to be given a copy of the letter.
On the same day, March 29, he sent a second memo to the Union requesting
its assistance but failed to indicate the reason for his request.
(Having previously obtained the assistance of Cottle by merely
telephoning her, it appears to me that Crawford was attempting to
"document" his attempt to obtain Union assistance by these memos.) In
any event, he talked to Chief Steward Cottle and Mary Vanaman (a paid
secretary of the Union) on April 6 and Vanaman typed a request for an
extension of time in which he responded to the proposed suspension.
Hart replied on April 26 granting an extension of time until close of
business on April 30. Crawford's rebuttal dated April 30 was prepared
by himself and typed by Vanaman. I credit Cottle's testimony that she
did not review it.
7. By memo dated May 6, Hart informed Crawford that he was being
suspended for 7 days, May 12 through to May 18. He was also told he had
a right to file a grievance which "must be submitted through your
supervisor not later than fifteen (15) calendar days after you receive
this suspension." (Under the current agreement, then in effect, an
employee had 30 days.) I credit Crawford's testimony, and discredit
Cottle, that she suggested to Crawford that he file his grievance at the
Step Three level with the Director. (See last paragraph of G.C. Exh.
No. 9.) By memo dated May 20, Crawford prepared and signed a grievance
which was submitted with a cover letter from the Union to Director T. C.
Doherty. By memo dated May 26, Doherty returned the grievance to the
Union but did not notify Crawford of this fact. The memo advised the
Union that the proper procedure was to file the grievance at Step One
with the Chief of Supply Service.
8. Crawford testified that in June and July he attempted to contact
Cottle, and she acknowledges these attempts. Except for Crawford's own
testimony, the evidence does not establish that his purpose was to
inquire about the status of his grievance. He never really stated in
any phone calls that this is all he was seeking; he didn't leave any
message at the Union office; and he didn't memorialize in writing his
intended purpose. He could have been seeking help in connection with
more serious problems he was having at the same time, as noted in the
next paragraph. Nevertheless, it was logical and quite natural for him
to be inquiring about his grievance, so I accept his testimony that this
was his purpose. More importantly, during this period no Union official
attempted to contact Crawford and tell him about Doherty's refusal to
accept the grievance at Step Three.
9. By memo dated June 24, Crawford was notified by Hart that VAMC
proposed to remove him based on a number of incidents, including
insubordination and AWOL, occurring between May 7 and June 1 (G.C. Exh.
No. 10). The testimony does not indicate that Crawford sought the
Union's assistance with these incidents until after his removal was
proposed. On about July 5 or 6 he found Cottle in the Union office.
She said Vanaman was on vacation so she couldn't provide clerical help.
She suggested he submit a handwritten response to Doherty, which he did
on July 7. On July 22 Doherty issued a decision to remove Crawford
(G.C. Exh. No. 12). Although his decision made reference to the prior
suspension, I believe the General Counsel is mistaken when suggesting
inferentially that but for the prior suspension perhaps the penalty here
would be something less than removal. To suggest this conclusion is to
ignore the allegations of insubordination contained in the proposed
removal letter.
10. On an unspecified date, Vanaman told Crawford that Weaver had
received a reply from Doherty. On July 26, 1982, Crawford went to the
Union office and confronted Weaver about the letter from Doherty that
Vanaman had mentioned to him. Crawford asked if she was aware of the
letter and if she had a copy of it. Weaver looked through several files
and found the letter dated May 26, 1982. Crawford read the letter and
asked why someone had not informed him so that they could go back to
Steps One and Two. Weaver replied that the Union had followed the
correct procedure, and that if Crawford believed what Doherty was saying
in the letter, then he should not be in the Union office he should be
downstairs with management. Weaver threw the file folder designated
"Kenneth Crawford" to Crawford and told him to get out, that there was
nothing the Union could do. I am unable to credit Weaver's testimony
that she never discussed Doherty's letter with Crawford.
11. The Complaint alleges in paragraph 9 that on several occasions
in June and July after the grievance was filed, (1) Crawford attempted
unsuccessfully to contact the Union for the purpose of inquiring about
the status of his grievance, and (2) that the Union officials failed and
refused to provide him with such information, and (3) took no further
action with respect to the grievance. As to (1) I credit Crawford's
testimony and conclude that this allegation is supported by the
evidence. As to (2) I find that the Union failed to inform Crawford of
the status of his grievance; however, the evidence does not support a
finding that Respondent refused to provide such information. There is
no refusal because there was no specific request actually communicated
to the Union. As to (3), there is no dispute that the Union took no
further action on the grievance. No attempt was made to refile at Step
One or to ask Doherty to reconsider his Step Three decision.
12. Factually, Respondent's defense is simply to explain what
happened from its viewpoint and to attempt to rebut some of Crawford's
assertions. To this end, Counsel for Respondent produced two witnesses:
Union President Weaver and Chief Steward Cottle. (Mary Vanaman was out
of the state and unavailable to testify.) Except where there testimony
was in direct conflict with Crawford's, I found them both to be
basically honest and forthright. Although I have accepted Crawford's
testimony that he was attempting to contact Cottle, I do not find that
she was intentionally avoiding any contact with him. A careful review
of the entire record, including the exhibits, shows that whenever
Crawford really wanted to get ahold of a Union official he was able to
do so. The fact remains, however, that the Union officials failed to
communicate with him. I am unable to accept Weaver's explanation that
she didn't tell Crawford because she didn't see him. What is more
likely, as her counsel suggests, is that she never even thought to
contact Crawford. Weaver also testified that she didn't go back to the
Director because she thought that would have been futile. What is more
likely is either that she too readily accepted management decisions in
order to avoid confrontations, or she really thought it was correct to
file at Step Three. But, she did not request arbitration and offered no
explanation as to why she didn't refile the grievance at Step One.
Finally, as to Weaver's testimony that she made "an honest mistake," I
do not accept her own characterization of the Union's inaction. Her
repetition of this phrase seemed more contrived -- for the purpose of
this hearing -- than genuine. (When she threw Crawford's file at him
and told him to get out, she certainly was not admitting any mistake.)
With respect to Cottle, her testimony was more confused than evasive and
in many respects more believable than Weaver or Crawford. I accept her
explanation that she assumed Crawford received a copy of Doherty's reply
because he signed his grievance and because he did all his own writing
and kept copies of all the pertinent documents. I believe this
describes Crawford accurately. I do not believe she was aware of
Doherty's reply until preparing for this hearing. I do not agree with
the General Counsel that her testimony (Tr. 194-198) was contradictory.
Even Crawford appeared to believe that Cottle was unaware of the Doherty
response (Tr. 68, lines 10-12).
Case No. 4-CO-30012
13. On December 8, 1982, Dixon, an employee at the VAMC since
February 8, 1982, was informed by Assistant Chief of Nursing Elizabeth
Hamlet, that her performance as a nursing assistant was unsatisfactory
and that she would be terminated on January 25, 1983. The following
day, Dixon went to see Weaver who was on duty at the time. Dixon told
Weaver she was going to be discharged, and asked Weaver if she could
help her. Weaver told her this was Chief Steward Cottle's job and told
her to see Cottle (Tr. 102, lines 19-20). Dixon went to Cottle and
explained her situation. Cottle told Dixon to come back when she had
received the letter of discharge.
14. On January 14, 1983, Dixon received a notice of discharge (G.C.
Exh. No. 14). After receiving the notice Dixon met Cottle on or about
January 21 enroute to the bathroom and followed her into the bathroom
where she showed Cottle the discharge notice. I credit Cottle that she
told Dixon to get her file from personnel and meet Cottle later in the
Union office (Tr. 102, lines 15-16). Cottle went to the Union office
and waited but Dixon did not appear. I do not credit Dixon's version
that Cottle reviewed her "papers" and said there's nothing she could do.
/7/
15. On January 25, her last day of work, Dixon came to Weaver's
office accompanied by Queenie Johnson. Dixon had quite a few papers
with her which Weaver examined and then commented that "you have quite a
few serious charges here against you." According to Weaver, Dixon
replied, "Well, they are all lies." Weaver then offered to get together
and see what could be done to get the matter resolved, but Dixon said
she had more materials at home which she would obtain and then return in
a few days. She did not return. Again, I do not credit Dixon's version
that Weaver merely responded (allegedly like Cottle) that there was
nothing she could do. /8/
16. I also find, based upon my review of Dixon's testimony, that
while she sought the assistance of the Union, she did not specifically
request the Union officials to file a grievance as alleged in the
Complaint.
17. From June 16, 1978 until June 4, 1982, a collective bargaining
agreement (G.C. Exh. No. 21) between the Union and VAMC (herein called
the Local Agreement) governed the rights and obligations of the parties.
An Interim Agreement (G.C. Exh. No. 22) defined the rights of the
parties between June 4, 1982 and January 12, 1983, the effective date of
the current collective bargaining agreement (G.C. Exh. No. 20) between
NFFE and the Veterans Administration (herein called the Master
Agreement). Each of these agreements contains a negotiated grievance
procedure which was effective during the periods set forth above. The
grievance procedures in the Local Agreement and the Interim Agreement
specifically provided that the grievance procedures did not apply to the
termination or separation of probationary employees. (G.C. Exh. No. 21,
Article XII, Section 1; G.C. Exh. No. 22, Grievance Procedure,
Paragraph 2(f)). However, the current Master Agreement is silent as to
probationary employees. Because they are not specifically excluded, the
Union argues that they are included. The VA, however, apparently argues
that probationary employees are excluded in Article 6, Section 2 because
they come within the category of statutory exclusions encompassed by
Section 7121(c)(4) of the Statute which states that any negotiated
grievance procedure shall not apply to grievances concerning "any
examination, certification, or appointment."
Discussion of the Applicable Case Law
Insofar as I have been able to determine, this is a case of first
impression concerning a union's duty of fair representation under the
Federal Service Labor-Management Relations Statute. In my opinion, this
straightforward facts presented here present the Authority with an
opportunity to chart a course and enunciate the appropriate standard to
be followed in future cases in which the exclusive representative is
charged with negligence or ineptitude. For this reason, I have elected
to present a detailed analysis of the history surrounding the duty of
fair representation. To this end I have been assisted by an excellent
brief submitted by Respondent's counsel, whose main thesis and detailed
research have been incorporated herein to the maximum extent possible,
as modified and expanded to reflect my own views.
A. Evolution of the Duty of Fair Representation
In 1944, the Supreme Court held in a racial discrimination case
arising under the Railway Act (45 U.S.C. Section 151 et seq.) that a
bargaining representative had a "duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts, without
hostile discrimination against them." Steele v. Louisville & Nashville
RR Co., et al., 323 U.S. 192 (1944); see also Tunstall v. Brotherhood
of Locomotive Firemen, 323 U.S. 210 (1944). And, in The Wallace
Corporation v. NLRB, 323 U.S. 248, 255, the Supreme Court observed that
a union, by its selection as bargaining representative, became "the
agent of all the employees, charged with the responsibility of
representing their interests fairly and impartially." Subsequently, the
Supreme Court extended this duty to unions certified under the National
Labor Relations Act, as amended, (herein the NLRA) 29 U.S.C. Section 141
et seq. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).
The National Labor Relations Board, hereinafter referred to as the
NLRB, decided in 1962 that Section 7 of the NLRA gives employees the
"right to be free from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting their employment."
Miranda Fuel Company, Inc., 140 NLRB 181, 185. Thus, the NLRB concluded
that a breach of the duty of fair representation constituted an unfair
labor practice. The Miranda decision, however, was denied enforcement
by a divided Second Circuit, 326 F.2d 172 (1963).
In Humphrey v. Moore, 375 U.S. 325, 349 (1966), Moore, on behalf of
other aggrieved employees, sought to enjoin the implementation of a
decision by the Union and the Company to dovetail seniority lists. The
Supreme Court held that it was proper to institute such suit in a State
Court under Section 301 of the NLRA, but that federal law governed. In
a passing reference to the NLRB's Miranda decision, the Court stated:
Although there are differing views on whether a violation of
the duty of fair representation is an unfair labor practice under
the Labor Management Relations Act, it is not necessary for use to
resolve that difference here. Even if it is, or arguably may be,
an unfair labor practice, the complaint here alleged that Moore's
discharge would violate the contract and was therefore within the
cognizance of federal and state courts, . . . subject, of course,
to the applicable federal law. (Footnotes omitted).
In discussing a union's duty of fair representation the Supreme Court
quoted from its earlier decision in Ford v. Huffman, as follows:
A wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of purpose in
the exercise of its discretion. Id., at 338. Just as a union
must be free to sift out wholly frivolous grievances which would
only clog the grievance process, so it must be free to take a
position on the not so frivolous disputes.
As to the merits, the Supreme Court held that (1) "the union acted
upon wholly relevant consideration, not upon capricious and arbitrary
factors," and (2) "the union took its position honestly, in good faith
and without hostility or arbitrary discrimination." Accordingly, the
Supreme Court found no breach of the duty of fair representation.
In 1967 the Supreme Court had an opportunity to further elaborate on
the duty of fair representation in its landmark decision of Vaca v.
Sipes, 386 U.S. 171 (1967). A principal issue resolved by the Court was
that the NLRB's Miranda decision did not preempt the State Court from
jurisdiction over suits by individuals under Section 301, and that the
NLRB's "tardy assumption of jurisdiction" over the duty of fair
representation cases by virtue of its Miranda decision did not "oust the
courts of their traditional jurisdiction to curb arbitrary conduct by
the individual employee's statutory representative." Id. at 183. In
discussing the standard against which to determine whether a union has
violated its duty of fair representation, the Court at (190) stated
that:
A breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith.
See Humphrey v. Moore, supra; Ford Motor Co. v. Huffman, supra.
Four years later in Motor Coach Employees v. Lockridge, 403 U.S. 274
(1971), the Court reaffirmed the Vaca standard. In order for an
employee to make out a claim of breach by his union "(h)e must have
proved 'arbitrary or bad-faith conduct' on the part of the Union." Id.
at 299, citing Vaca, supra, 386 U.S. at 193. While discussing
preemption principles in Lockridge, the Court explained that "the duty
of fair representation was judicially evolved . . . to enforce fully the
important principle that no individual union member may suffer
invidious, hostile treatment at the hands of the majority of his
coworkers," and that "the very distinction . . . between honest,
mistaken conduct, on the one hand, and deliberate and severely hostile
and irrational treatment, on the other hand, needs strictly to be
maintained." Id. at 301. (Emphasis mine.)
B. Conflict Among the Federal Courts in the Application of
the Vaca standard.
As noted above, the Vaca standard is "arbitrary, discriminatory, or
in bad faith." In this regard the Courts have had very little problem
with determining when a union's conduct is discriminatory or in bad
faith. There is no question that the duty has been violated when the
evidence demonstrates that the union did not pursue a grievance due to
personal animosity, internal political rivalry, invidious discrimination
or some other form of intentional misconduct. The problem arises in
determining when such conduct is "arbitrary." /9/ Unfortunately, there
have been some conflicting opinions issued by lower federal courts
concerning the type of conduct which comes within the meaning of
"arbitrary." The reason for the conflict seems to stem from the fact
that the Supreme Court in Vaca also used the word "perfunctory"
elsewhere in its decision. /10/ As a result, some courts consider
perfunctory to be synonymous with arbitrary or at least included within
the definition of arbitrary. Ruzicka v. General Motors Corp., 523 F.2d
306 (6th Cir. 1975) (Ruzicka I), clarified 649 F.2d 1207 (1981) (Ruzicka
II); Robesky v. Quantas Empire Airways, Ltd., 573 F.2d 1082, 1089-91
(9th Cir. 1978). While the courts agree that simple negligence is
insufficient to give rise to a breach of duty claim, the courts differ
with each separate set of facts on the amount or degree of negligence,
if any, required to come within the meaning of "arbitrary" or
"perfunctory." Compare Dutrisac v. Caterpillar Tractor Co., 511 F. Supp.
719 (N.D. Cal. 1981) with Hoffman v. Lonza Inc., 658 F.2d 519 (1981).
The 1981 Dutrisac decision essentially follows the Ruzicka principle
that a showing of bad faith is not an essential element in any claim of
unfair representation. In Dutrisac, the union steward processed a
grievance to the third step but then failed to timely file a request for
arbitration for a discharged employee. The court concluded that in a
case of a terminated employee, where a determination had been made by
the union that the grievance had some merit, "no matter how innocently
the time limit was missed, such conduct cannot constitute 'mere'
negligence." Id. at 727. Since missing the deadline deprived the
employee of his exclusive forum to challenge his discharge, the
steward's failure to act was arbitrary conduct constituting a breach of
the duty of fair representation. /11/ On the other hand, a different
result was obtained in Hoffman a case involving essentially the same
facts. There, the Seventh Circuit concluded that applicable law
required proof of intentional misconduct on the part of the union.
Since the union simply "forgot" to perfect the grievant's appeal to
arbitration, a breach of duty had not been shown. Citing Lockridge, at
299, the Court concluded that the duty of fair representation was not
breached "without substantial evidence of fraud, deceitful action or
dishonest conduct." /12/ Accord, Graf v. Eglin, Joliet and Eastern
Railway Co., 697 F.2d 771 (7th Cir. 1983); Superczynski v. P.T.O.
Services, Inc., 706 F.2d 200 (7th Cir. 1983); Medlin v. Boeing Vertol
Co., 620 F.2d 957, 961 (3rd Cir. 1980). See also, Cannon v.
Consolidated Freightways Corp., 524 F.2d 290 (7th Cir. 1975).
Thus, we have the broad standard of Ruzicka and Dutrisac line of
cases, and we have a more narrow standard as exemplified by the
Lockridge and Hoffman line of cases. More recently, we have another
lower federal court decision which, in my opinion, is worthy of
consideration and discussion.
In Lewis v. American Postal Workers Union, 561 F. Supp. 1141 (W.D.
Va. 1983), a steward processed a grievance at the early steps of a
grievance procedure but failed to file timely at Step Three. The
Grievance was denied as untimely, and the union elected not to go to
arbitration and so advised Lewis. Chief Judge James C. Turk reviewed a
number of court opinions on the duty of fair representation, including
those applicable in the Fourth Circuit. /13/ He also pointed to the
lack of uniformity among the courts by citing certain other cases. /14/
He then concluded as follows:
The court concludes, after having reviewed the foregoing
authorities, that some degree of conscious misfeasance or
dereliction is contemplated by the "arbitrary" standard as set
forth in Vaca. Thus, the courts' reluctance to find liability for
purely negligent acts results from the attempt to implement this
distinction. The other two elements of Vaca -- bad faith and
discrimination -- clearly contemplate distasteful action of the
type noted before unions may be held liable. "Arbitrary" or
"perfunctory" treatment of grievances may also be condemned on
such grounds, when it rests on indifference or slovenliness -- in
short, when the union has completely abdicated its
responsibilities to union members. Thus, when a shop steward
misses a deadline because he just does not care, his union may be
liable for breaching the duty of fair representation. Negligent
handling of a grievance, however, when it results not from a total
lack of interest therein, but from an honest mistake or
carelessness, is not actionable. Like the negligent tortfeasor in
any other area of negligence law, the negligent shop steward has
not committed a wrong of the sort contemplated by Vaca.
Applying these principles to this case, the court concludes
that (Steward) Morrison's failure to file the grievance resulted
not from indifference or slovenliness, but from honest mistake or
carelessness. Plaintiff, when deposed, testified as to no facts
which would suggest otherwise. In fact, as the court already has
noted, plaintiff testified at his deposition that he and Morrison
were on good terms, and that the latter missed the deadline only
because, at worse, he was unfamiliar with the grievance procedure.
Further, the court has already held that no evidence supports
plaintiff's contention that the grievance was handled against a
general backdrop of perfunctoriness.
It appears to me that what the Lewis court is saying is that the
broad standard of Ruzicka and Dutrisca is incorrect because negligent
acts are not intentional acts of misconduct. At the same time, Lewis
gives new meaning to the "arbitrary and perfunctory" language of Vaca by
recognizing that there may be circumstances where intentional misconduct
ought to be imputed to the union where it is shown that the union, by
its conduct and behavior, has completely abdicated its responsibilities
to its members. By settling on the phrase "some degree of conscious
misfeasance or dereliction," the Lewis court essentially is adopting the
Lockridge and Hoffman line of cases requiring evidence of intentional
misconduct. In the process of reaching this result, however, the court
has done the same thing as many other courts have done; it has used new
terminology and, in effect, new word-tests.
In light of the foregoing, it seems clear that the "absence of clear
standards and the extremely broad approach taken by some courts have
operated to adversely affect national labor policy in several important
ways" /15/ because "unions have considered it more prudent to process
clearly nonmeritorious grievances all the way through the grievance
procedure and on to arbitration, lest they be accused of breaching their
duty of fair representation." /16/ Since we are living in a very
litigious society these days, the result has been clogged grievance and
arbitral channels, a proliferation of cases before the NLRB and the
courts, and an expenditure of a substantial amount of time and financial
resources by management and union officials. It is these factors which
the Authority should consider in deciding what test or standard should
be followed in federal sector cases.
C. The NLRB's View that Something More Than Negligence is
Required for Union Action or Inaction to be Considered
"Arbitrary."
In 1974, the NLRB issued a most significant decision in Great Western
Unifreight /17/ in which it concluded as follows:
From the above court and Board decisions, it is clear that
negligent action or nonaction of a union by itself will not be
considered to be arbitrary, irrelevant, invidious, or unfair so as
to constitute a breach of the duty of fair representation
violative of the Act. Something more is required. In the instant
case, the modified complaint merely alleges only that the
Respondent negligently failed and refused to timely process the
meritorious grievance to the serious detriment of the Charging
Party. Nothing more is charged. Absent an allegation showing
something more than negligence alone, we conclude that the
negligent conduct of the Respondent alleged herein does not
constitute by itself a breach of the duty of fair representation
in violation of Section 8(b)(1)(A) of the Act.
In its discussion of prior cases the NLRB cited a case /18/ in which
the union failed to refer for employment an employee whom it had
neglected to register at the hiring hall. "Mere forgetfulness or
inadvertent error," the NLRB held, "is not the type of conduct that the
principles of Miranda were intended to reach." Also cited by the NLRB
was a First Circuit decision /19/ involving a union's negligence in
failing to discover a defect in an employer's machine with the result an
employee was injured. The court held that the NLRA, as amended,
"imposes upon the exclusive representative only a duty of good faith
representation, not a general duty of due care."
From the foregoing, it would appear that the NLRB -- whose decisions,
of course, are not binding upon the Authority -- has chosen a narrow
standard more in accord with the Lockridge-Hoffman-Lewis approach.
D. Decisions of the FLRA Interpreting the Federal Service
Labor-Management Relations Statute.
Section 7114(a)(1) of the Statute provides that a labor organization
is "responsible for representing the interests of all employees in the
unit it represents without discrimination and without regard to labor
organization membership." To date, the cases issued by the Authority
interpreting the Statute /20/ have only involved representing employees
"without regard to labor organization membership." Tidewater Virginia
Federal Employees Metal Trades Council/IAM, Local 441, 8 FLRA No. 47 8
FLRA 217 (March 19, 1982); /21/ American Federation of Government
Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (October 8,
1982); National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 519
(November 23, 1982); and Overseas Education Association, 11 FLRA No.
75, 11 FLRA 377 (1983).
In only one case has the Authority had an opportunity to address the
issue of whether negligence alone violates the duty of fair
representation. American Federation of Government Employees, Local 987,
3 FLRA No. 115, 3 FLRA 717 (1980). But that case sheds no light on the
subject because the Authority adopted the Chief Judge's decision without
comment, except to say that its decision "was based solely on the basis
of E.O. 11491, as amended" and "does not prejudge in any manner either
the meaning or application of related provisions in the new Statute or
the result which would be reached by the Authority if the case had
arisen under the Statute rather than the Executive Order." Accordingly,
to the extent the General Counsel relies on this case as precedent, such
reliance is misplaced. /22/ However, as I indicated at the beginning of
this decision the present case presents an opportunity for the Authority
to establish its own standard.
E. The General Counsel's Position on the Applicable
Standard.
In her brief, Counsel for the General Counsel concedes that federal
courts do not consistently agree on the essential elements of the duty
of fair representation" and that "mere negligence by the union in
processing a grievance does not rise to the level of misconduct
necessary to support an action for a breach of the duty of fair
representation . . . " She notes, however, that gross negligence by a
union in processing a grievance is the type of "arbitrary" conduct
needed to establish a breach of the duty of fair representation."
(Citing, Robesky, Ruzicka, Dutrisac, supra.)
With specific reference to Crawford (Case No. 4-CO-20022), the
General Counsel's brief states:
As the Sixth Circuit stated in Ruzicka, supra, "(W)hen a union
makes no decision as to the merit of an individual's grievance but
merely allows it to expire by negligently failing to take a basic
and required step toward resolving it, the union has acted
arbitrarily and is liable." /23/
And, in reference to Dixon (Case No. 4-CO-30012), the brief states:
Thus, Counsel for the General Counsel asserts that the Union's
callous indifference to Dixon's plight is yet another example of a
case where the individual interest at stake is strong and the
union's failure to perform a ministerial act completely
extinguishes the employee's right to pursue his claim. Under the
circumstances, there is no public policy to be furthered by
shielding the Union from consequences of its failure to discharge
its duty to fairly represent Dixon. See, e.g., Dutrisac, and
Robesky, supra. Counsel for the General Counsel urges the
Administrative Law Judge to conclude, as the court concluded in
Dutrisac, supra "that the union should be responsible for a total
failure to act that is unexplained and unexcused."
There is no question, therefore, that the General Counsel is asking
the Authority to adopt a more stringent and broader standard for federal
employee unions than what the NLRB has adopted for unions representing
employees in the private sector.
F. The Respondent's Position on the Applicable Standard.
Respondent submits that the proper standard is intentional misconduct
as stated by the Seventh Circuit in Hoffman, supra. That circuit
explicitly set forth the standard in Graf, supra, 697 F.2d at 778, as
follows:
The union has a duty to represent every worker in the
bargaining unit fairly but it breaches that duty only if it
deliberately and unjustifiably refuses to represent the worker.
In his brief, Counsel for Respondent sets forth the following
arguments:
There are at least three reasons why a broader standard would
be inappropriate. First, a broader standard would permit the FLRA
continually to impose what it would have done in the same
situation. Such intervention would be destructive of good
bargaining relationships since an agency would never be sure that
the negotiated grievance procedure was viable or final. In
addition, the union's representation would be undermined. It
would constantly act as if it were under review, causing inhibited
exercise of its discretion. Employees would turn to the FLRA in
droves when dissatisfied with the outcome of their grievances.
Eventually, the union would lose its significance and become too
weak to act effectively or at all. The unions must be permitted
to exercise discretion freely, to review grievance procedure and
policies routinely, and to correct admitted mistakes in grievance
handling when they occur. (There should be no naive or idealistic
impression that mistakes will not occur.)
Second, it is necessary to protect the union's financial
resources and thereby its effectiveness. Federal sector labor
organizations cannot compel the payment of dues. Often they
represent units which dwarf their dues-paying membership. A
broader standard, that the General Counsel no doubt advocates,
will deplete the union's meager coffers, especially when the
General Counsel is seeking monetary relief for the charging
parties as here.
Finally, the CSRA explicitly states "without discrimination" in
Section 7114(a)(1). It does not say "arbitrary" as it could have
since Vaca was decided well before the CSRA was enacted. It is
difficult to imagine "discrimination" in any sense other than
intentional and deliberate. The existing case law is helpful for
sake of analysis but the private sector statutes are silent with
respect to the duty. The CSRA is not. The statutory language
itself should control the breach of the duty of fair
representation in the federal sector.
Counsel's brief also discusses the 1983 decision of the Seventh
Circuit in Graf, supra, where the court reexamined and adhered to its
1981 decision in Hoffman v. Lanza, inc. Daniel Graf was a discharged
employee who requested his union representative to file an appeal which
had to be filed within 60 days in accordance with the grievance
procedure. The union representative wrote out the appeal by hand and
stuck it in his pocket together with several others only to find after
60 days had expired that it was still there in his pocket. The union
agent testified that his failure to submit the appeal was inadvertent.
There was no evidence of bad motive. It was clear to the court that the
agent's failure to dig Graf's appeal out of his pocket was pure
negligence. But the court said that the union agent's "lapse of memory"
does not signify such a "reckless indifference to Graf's interests that
it can be called intentional misconduct." In its brief, Counsel also
made these comments about the Graf decision:
The appellate court also considered a few practical
considerations in reaching a narrow standard of liability. First,
competence is in the union's self-interest. Union officers "must
render an adequate level of 'constituent service' to retain
(their) position(s)." 697 F.2d at 778. And in turn the union must
have competent stewards if it expects to remain the exclusive
representative of the employees. Thus, both the stewards/officers
and the union have incentives to exercise care and diligence in
handling of grievances independent of incentives provided by the
potential for liability.
Secondly, union officers are not professional advocates. They
are hourly workers who perform the duties of stewards, on a
part-time, unpaid basis. They cannot be held to the same standard
as attorneys.
Finally, Counsel points out that under Section 7121(b)(3)(B) of the
Statute, negotiated grievance procedures must provide federal employees
with the right to present grievances on their own behalf. "If bargaining
unit members cannot trust the Local to represent their interests, they
will file their own grievances. They will question whether they are
receiving any value for their union dues. If they conclude that they
are not, they will elect new officers or seek to decertify. Thus, it is
in the union's best interest for its agents to do the best that it can
for the bargaining unit."
Conclusions of Law
A. Rejecting the General Counsel's Broad Standard.
I believe the Authority should reject, as I do, the broad standard of
Ruzicka and Dutrisac whereby negligence may serve as a basis for
concluding that a union's conduct is arbitrary. First, such a standard
misinterprets the Supreme Court's decision in Vaca and completely
ignores Lockridge where the Supreme Court stated that "the very
distinction . . . between honest, mistaken conduct, on the one hand, and
deliberate and severely hostile and irrational treatment, on the other
hand, needs strictly to be maintained." As the Lewis court stated:
"some degree of conscious misfeasance or dereliction is contemplated by
the 'arbitrary' standard as set forth in Vaca." As the First Circuit
said in Brough, supra, the exclusive representative has a duty of good
faith representation and not a "general duty of due care."
Second, not all bargaining units in the federal sector are composed
of employees at the higher GS-grade levels; some are composed mainly of
employees at the lower end of the GS-grade scale. Similarly, not all
employees are well-educated, intelligent and sophisticated. Some
bargaining units are composed primarily of employees of minority status,
especially if located in certain geographical areas. These are facts of
life which have to be recognized because, as the court said in Graf,
"union officers are not professional advocates. They are hourly workers
who perform the duties of stewards on a part-time, unpaid basis. They
cannot be held to the same standard as attorneys." With this in mind, I
believe it would be unfair to impose such a broad standard and such a
high duty of care upon federal employee union representatives.
B. Rejecting the NLRB's Standard for the Private Sector.
With respect to the NLRB's test of proving "something more than
negligence," I conclude that it has both advantages and disadvantages.
On the one hand, it has the advantage of eliminating "mere negligence"
cases from the NLRB's case flow while at the same time not precisely
defining "something more" and leaving this to case-by-case litigation.
On the other hand, it has the disadvantage of encouraging litigation to
flesh out the meaning and the parameters of "something more" which by
itself lacks specificity. While the NLRB may conclude that its test is
appropriate in the private sector, I am inclined to advocate an even
narrow standard in the federal sector.
C. Adopting a Narrow Standard for Federal Sector
Employees.
As noted at the beginning of this decision, the Supreme Court has
held that "federal law governs." Therefore, the Vaca standard followed
by the courts and the NLRB is the applicable standard for cases arising
under the Federal Service Labor-Management Relations Statute. That
standard requires finding a breach of the duty of fair representation
where the union's conduct is arbitrary, discriminatory or in bad faith.
/24/ To the extent that some confusion has arisen as to the kinds of
conduct deemed "arbitrary," I agree with, and adopt, the excellent
analysis of the Seventh Circuit Court of Appeals in its 1981 decision in
Hoffman v. Lanza, 658 F.2d 519 (1981) where the court concluded that the
Vaca standard required a finding of intentional misconduct before a
union may be found to have breached its duty. When the Seventh Circuit
in Graf, supra, recently reconsidered its Hoffman decision, it restated
the test as follows:
The union has a duty to represent every worker in the
bargaining unit fairly but it breaches that duty only if it
deliberately and unjustifiably refuses to represent the worker.
Respondent persuasively argues that the Authority should adopt this
standard. I agree for the following reasons.
First of all, my reading of the Supreme Court decisions cited herein
convinces me, as it did the Seventh Circuit and other courts, that the
Supreme Court was speaking of intentional union misconduct. In Graf the
use of the word "deliberately" adds nothing to its previous Hoffman
standard because this is a synonym for "intentionally." However, the use
of the word "unjustifiably" is a helpful addition because it separates
intentional acts into two categories: justifiable and unjustifiable.
In the former category may be included a union's decision, based upon a
rational and reasonable exercise of judgment, not to file a grievance at
Step One, to settle grievances at any stage, or not to go to arbitration
on every grievance. /25/ In the latter category may be included those
cases where the courts have rejected the union's explanation for its
conduct, instead finding the conduct or inaction was based upon
invidious and irrelevant considerations, bad faith, hostility, fraud,
deceitful action, dishonesty, or irrational treatment -- all of which
come within the meaning of unjustifiable." /26/ Frankly, I don't think
it should make too much difference whether the Authority adopts the
Hoffman language of "intentional misconduct" or the Graf language of
"deliberately and unjustifiably." I am inclined to prefer the latter
simply because it is more specific and should be easier to apply.
The adoption of a narrow standard for federal employee unions is
consistent with the trend today towards less regulation by the
government. It also reflects a desire to be sensitive to the peculiar
problems of federal employee unions. As Respondent points out, federal
unions cannot compel the payment of dues and they often represent units
which draw their dues-paying membership. Utilization of grievance
procedures requires a union to have competent representatives. Resort
to arbitration requires financial resources. Not every bargaining unit
provides either the manpower or the money. For this reason, the
Authority should limit its involvement in a federal employee union's
internal affairs to determining only whether the union is representing
all employees in unit fairly; i.e., without discrimination. If
employees are not satisfied with how well they are being represented,
they can vote for new officers or seek to decertify the union and,
perhaps choose another union. In my opinion the Authority should not
follow the example of those courts which have become unnecessarily
involved in looking over the shoulder of union representatives and
second-guessing their judgment. Rather, the Authority should limit its
intervention to those cases where the General Counsel has proven that
the union has deliberately and unjustifiably refused or failed to
represent a bargaining unit employee. It is this standard which I shall
apply herein.
D. Case No. 4-CO-20022 (Kenneth A. Crawford)
Section 7118 of the Statute provides that a "preponderance of the
evidence" is required in order to find a labor organization has engaged
in an unfair labor practice. The Consolidated Complaint alleges in
paragraph 9 that (1) on several occasions in June and July after the
grievance was filed, Crawford attempted unsuccessfully to contact the
Union for the purpose of inquiring about the status of his grievance,
and (2) that the Union officials failed and refused to provide him with
such information, and (3) that Respondent took no further action with
respect to the grievance.
As to (1) I credit Crawford's testimony and conclude that this
allegation is supported by the evidence. As to (2) I find that the
Union failed to inform Crawford of the status of his grievance;
however, the evidence does not support a finding that Respondent refused
to provide such information. There is no refusal because there was no
specific request actually communicated to the Union. As to (3) there is
no dispute that the Union took no further action on the grievance. No
attempt was made to refile at Step One, or to ask Doherty to reconsider
his Step Three decision, or to go to arbitration, or take any other
action. Rather, the Respondent's President simply took no action at
all. /27/ The issue, therefore, is whether the Union's undisputed
failure to take any further action with respect to Crawford's grievance
is the kind of conduct which constitutes a breach of duty of fair
representation.
As discussed and concluded above, the Vaca standard of "arbitrary,
discriminatory, or in bad faith" is applicable here, and in order to
prove a breach of the duty of representation the General Counsel must
prove by a preponderance of the evidence that the union "deliberately
and unjustifiably" failed or refused to represent an employee. Applying
this standard to the instant facts, the suggestion is why did the Union
fail to take any action? The answer, as suggested by Respondent's
counsel, is quite clear. This is a classic case of ineffective and
inept representation, but even if the Union's conduct were characterized
as negligence, it would not be actionable. There is absolutely no
evidence to suggest that the Union's inaction was malicious,
discriminatory or in bad faith. There is no evidence of hostility
towards Crawford by Weaver, who hardly knew him, or by Cottle, who
represented him in meetings and gave him assistance both with his
suspension and his subsequent removal. There is no evidence that the
Union's failure to take any further action on the grievance was
motivated by an intent to discriminate against Crawford or an intent to
treat him unfairly. In short, there is an absence of evidence to serve
as a basis for imputing to the Union an intention on its part to
deliberately and unjustifiably fail to represent Crawford properly.
What happened here is that Union President Weaver received Doherty's
denial of the grievance filed at Step Three and she simply concluded it
was futile to "go back to the Director" (TR 132). It apparently did not
even occur to her to attempt to refile at Step One or to notify Crawford
so that he could do so.
On the basis of the foregoing and my review of the entire record, I
conclude that the General Counsel has not proven by a preponderance of
the evidence that Respondent deliberately and unjustifiably failed to
inform Crawford or to take any further action on the grievance. For
this reason I do not find that Respondent breached its duty of fair
representation. Accordingly, I find and conclude that Respondent did
not fail to comply with Section 7114(a)(1) in violation of Section
7116(b)(8), and did not interfere with, restrain and coerce employees in
the exercise of their rights guaranteed under the Statute, in violation
of Section 7116(b)(1).
Case No. 4-CO-30012 (Clara Mae Dixon)
Section 7118 of the Statute provides that a "preponderance of the
evidence" is required in order to find that a labor organization has
engaged in an unfair labor practice. For the reasons set forth above in
paragraphs 13-16, supra, I find that the General Counsel has not
established by a preponderance of the evidence that Dixon asked the
Union to file a grievance on her behalf. Assuming, arguendo, that
Dixon's request for "help" may be construed as a request to file a
grievance, I do not find that the Union either failed or refused to file
the grievance. /28/ Cottle did not refuse to file a grievance but,
rather, asked Dixon to return when she actually received a written
letter of discharge. Dixon did return but, after talking to Weaver,
said she had to get more papers from home. This time she did not return
and, therefore, did not fully cooperate. Weaver did not tell her there
was nothing she could do. On these facts, I find and conclude that
Respondent did not fail or refuse to represent Dixon. /29/ Therefore,
Respondent did not breach its duty of fair representation and thereby
violate Section 7116(b)(1) and (8) as alleged.
Ultimate Conclusions
Having found that Respondent did not engage in any unfair labor
practices by the actions and conduct described above, and therefore has
not violated Section 7116(a)(1) and (8) as alleged in the Amended
Consolidated Complaint, I recommend that the Authority issue the
following:
ORDER
That the Complaints in Case Nos. 4-CO-20022 and 4-CO-30012 be, and
they hereby are, DISMISSED.
/s/ FRANCIS E. DOWD
Administrative Law Judge
Dated: March 23, 1984
Washington, D.C.
FOOTNOTES
(1) We find it unnecessary to, and do not, adopt the Judge's comments
as to the comparative economic strength of Federal unions or the ability
of their representatives.
(2) See, for example, National Treasury Employees Union and National
Treasury Employees Union Chapter 204, 18 FLRA No. 36 (1985); National
Treasury Employees Union and National Treasury Employees Union Chapter
121, 16 FLRA 717 (1984), reversed sub nom. National Treasury Employees
Union v. FLRA, No. 85-1053 (D.C. Cir. Sept. 2, 1986), petition for
rehearing filed (October 17, 1986); and National Treasury Employees
Union, 10 FLRA 519 (1982), aff'd sub nom. National Treasury Employees
Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983).
(3) In a recent decision, American Federation of State, County, and
Municipal Employees, Local 2477, AFL-CIO, 22 FLRA No. 85 (1986),
petition for review filed sub nom. American Federation of State, County
and Municipal Employees v. FLRA, No. 86-1450 (D.C. Cir. Aug. 12, 1986),
the Authority adopted its Judge's finding that the union failed to
comply with its duty of fair representation. However, that case
involved a union's admitted refusal to provide legal representation to
an employee who had engaged in statutorily protected activity.
(4) National Treasury Employees Union, 16 FLRA 717 at 733; National
Treasury Employees Union, 10 FLRA 519 at 533-4.
(5) See National Treasury Employees Union v. FLRA, where the D.C.
Circuit stated (721 F.2d at 1406):
Section 7114(a)(1) . . . means exactly what it says.
Furthermore, there is absolutely nothing in the legislative
history or in any case law construing the Statute to support the
Union position (interpreting section 7114(a)(1) to codify the duty
of fair representation as it has developed in the private sector,
and by interpreting 'fair representation' to be synonymous with
'adequate representation.').
(6) The General Counsel filed a Motion to Correct Transcript
containing 103 proposed corrections. The Respondent filed opposition to
45 of the proposed corrections. To the extent that the General
Counsel's motion has been granted fully or partially, the transcript has
been corrected accordingly. To the extent that the motion has been
denied, the transcript remains unchanged. Counsel have been notified in
writing of my rulings with respect to each of the proposed corrections.
(7) If Cottle had said she could not do anything, I believe it is
more likely she would have given a reason; e.g., because you have a
nonmeritorious case or because you are a probationary employee.
(8) After Dixon filed an unfair labor practice charge on February 14,
1983, Counsel for Respondent instructed the Union to file a grievance
anyway and to request the VAMC to waive its untimeliness. The VAMC
denied the grievance as untimely on the ground that the current
Agreement did not apply to probationary employees (See G.C. Exh. Nos. 16
and 17).
(9) Webster's Third New International Dictionary (1971) defines
"arbitrary" as "depending upon choice or discretion . . . arising from
unrestrained exercise of the will, caprice, or personal preference, . .
. based upon random or convenient selection or choice rather than on
reason on nature . . . (as) given to willful irrational choices and
demands." Black's Law Dictionary (1979) defines "arbitrary" as "done
capriciously or at pleasure; without adequate determining principle;
not founded in the nature of things; nonrational; not done or acting
according to reason or judgment; depending upon the will alone, . . . "
In my opinion, a common thread running through the foregoing definitions
is that an arbitrary act is a willful act and, therefore an intentional
act. I see nothing in these definitions to equate arbitrariness with
negligence.
(10) See the following language in Vaca (at p. 194): "In a case such
as this, when (the grievant) supplied the Union with medical evidence
supporting his position, the Union might well have breached its duty had
it ignored (his) complaint or had it processed the grievance in a
perfunctory manner." Earlier (at p. 191) the Court used the word
"arbitrarily" as a modifier when it stated as follows: "Though we
accept the proposition that a union may not arbitrarily ignore a
meritorious grievance or process it in perfunctory fashion, we do not
agree that the individual employee has an absolute right to have his
grievance taken to arbitration regardless of the provisions of the
applicable collective bargaining agreement." The same language was later
repeated in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568-59
(1976) (which did not cite Lockridge), and in Electrical Workers v.
Foust, 442 U.S. 42, 47 (1979).
(11) Counsel for General Counsel relies on the Ruzicka and Dutrisac
line of cases in arguing that gross negligence constitutes the type of
"arbitrary" conduct needed to establish a breach of the duty of fair
representation. In her brief, counsel observed that the Dutrisac court
acknowledged that fair representation suits would weaken the financial
stability of unions, which might, in turn, impair their ability to
function effectively. Thus, the court stated: "For this reason, we
limit our holding that union negligence may breach the duty of fair
representation of cases in which the individual interest at stake is
strong and the union's failure to perform a ministerial act completely
extinguishes the employee's right to pursue his claim."
(12) Counsel for Respondent relies on the Lockridge and Hoffman line
of cases in arguing for an "intentional misconduct" standard.
(13) Griffin v. International Union, U.A.W., 469 F.2d 181, (4th Cir.
1972); Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th
Cir. 1980); Del Costello v. International Brotherhood of Teamsters, 510
F. Supp. 716 (D. Md. 1981).
(14) Ethier v. United States Postal Service, 590 F.2d 733 (8th Cir.)
(union not liable when steward filed grievance one day too late due to
misunderstanding of time requirement), cert. denied, 444 U.S. 826
(1979); Foust v. International Brotherhood of Electrical Workers, 572
F.2d 710, 714-16 (10th Cir. 1978) (evidence would support jury finding
that untimely filing of grievance was "arbitrary, unreasonable and a
breach of duty." 572 F.2d at 716), reversed on other ground, 442 U.S. 42
(1979); Coe v. United Rubber, Cork, Linoleum and Plastic Workers of
America, 571 F.2d 1349, 1350-51 (5th Cir. 1978) (careless or inadvertent
misnumbering of employee's grievance by union, affording employer
defense of untimeliness, held not "arbitrary"); Schum v. South Buffalo
Railway Co., 496 F.2d 328 (2d Cir. 1974) (union breached duty of fair
representation when, through "lack of diligence," it allowed time period
for filing appeal to second step of grievance procedure to lapse);
Baker v. Unit Parks Co., 487 F. Supp. 1313, 1315 (W.D. Okla. 1980)
(union breached duty by its "total failure to act" after being apprised
by employee of existence of grievance); Ruggirello v. Ford Motor Co.,
411 F. Supp. 758, 760-71 (E.D. Mich. 1976) (union breached duty when it
never instituted formal grievance on employee's behalf, relying instead
on informal adjustment methods, and grievance was ultimately rejected as
being untimely).
(15) NLRB General Counsel Memo No. 79-55, Labor Relations Yearbook --
1979, at 341-342 (1979).
(16) Id. at p. 2.
(17) General Truck Drivers, Chauffeurs and Helpers Union, Local No.
692, IBT (Great Western Unifreight System) and Marion Boyd Lee, 209 NLRB
No. 52. The current Board is also following the test that "something
more than mere negligence" is required. See Office and Professional
Employees International Union, Local No. 2, AFL-CIO, 268 NLRB No. 207
(Feb. 29, 1984).
(18) Local 18, International Union of Operating Engineers, 144 FLRA
1365 (1963).
(19) Brough v. United Steelworkers of America, 437 F.2d 748.
(20) For Authority decisions concerning Executive order 11491, see
National Treasury Employees Union, Chapter 202, 1 FLRA No. 104, 1 FLRA
910 (1979); and Federal Aviation Science and Technological Assn. Div.,
NAGE, 2 FLRA No. 103, 2 FLRA 802 (1982).
(21) In Tidewater there was a brief discussion of negligence and
perfunctoriness but the case really turned on the fact the union acted
in bad faith in accord with its well-entrenched policy of not initiating
grievances for nonunion members. Absent such evidence of bad faith, it
is a matter of speculation as to whether the Authority would have
adopted the General Counsel's request to use the broad Ruzicka test.
(22) Also misplaced is the General Counsel's reliance on Overseas
Education Association, 11 FLRA No. 75, 11 FLRA 377 (1983), a case in
which the Union refused to assist an employee, who was seeking
information about a grievance, because of his nonmembership in the
Union. Because this case involved discriminatory conduct, and not
negligence, it is inapposite.
(23) But, see Journeyman Pipe Fitters Local 392 v. NLRB, 712 F.2d 225
(6th Cir. 1983), a recent decision by the same Circuit Court which
authored Ruzicka. The Court found that a union which failed to maintain
a list of job applicants as a means of referring employees through its
exclusive hiring hall did not breach its duty of fair representation.
The Court noted an absence of evidence of "hostility," "discriminatory
motive," lack of "good faith," and concluded that, at worst, Sullivan
(the business agent) exercised poor judgment. The Court then said:
"Negligence, poor judgment or ineptitude are insufficient, standing
alone, to establish a breach of the duty of fair representation. NLRB
v. American Postal Workers, Union, 618 F.2d 1249, 1254 (8th Cir. 1980)."
(24) Accordingly, I reject Respondent's argument, supra, that some
significance should be placed in the fact that Section 7114(a)(1) does
not use the word "arbitrary." Counsel cites no legislative history to
support the contention that the phrase "without discrimination" in
Section 7114(a)(1) was intended by Congress to narrow the Vaca standard
in any way. Moreover, Section 7114(a)(1) entitles a union which has
been accorded exclusive recognition the right to act for all unit
employees. In Humphrey v. Moore, supra, 375 U.S. 335, 342, the Supreme
Court noted that the duty of fair representation has its implied
statutory basis in the union's role as "exclusive" bargaining agent with
"exclusive power to represent all employees of a bargaining unit."
(25) The Supreme Court has recognized that a union has such
discretion. See, for example, Vaca supra, at pp. 191-193.
(26) Excluded from this category is union conduct or inaction
resulting from gross or mere negligence, an honest mistake, ineptitude,
poor judgment or carelessness.
(27) Both VAMC and the Union demonstrated their ignorance of the
applicable grievance procedure. Thus, the suspension memo to Crawford
(G.C. Exh. No. 8) erroneously instructed him that he had to file his
grievance within 15 calendar days. Actually the new Master Agreement
then in effect provided a grievant with 30 days in which to file. Thus,
when Weaver received Doherty's May 26 memo she (or Crawford) still could
timely file at Step One. It's not clear from this record whether
Weaver's decision not to refile at Step One was influenced by her
unfamiliarity with the new contract which was not distributed until
March (see G.C. Exh. No. 2 Attachment) or whether she may have been
misled by the agency's erroneous instructions as to the 15-day filing
period.
(28) In view of this decision, I do not have to decide whether a
Union may violate its duty of fair representation by refusing to file a
grievance even though the Authority might later conclude that the
grievance procedure is inapplicable because Congress did not intend
grievance and arbitration procedures negotiated under the Statute to
cover grievances concerning the termination of probationary employees.
See U.S. Department of Labor, Labor-Management Relations Administration,
Cleveland, Ohio, 13 FLRA No. 109 (Jan. 16, 1984) in which the Authority
apparently acquiesced in the Circuit Court's decision in United States
Department of Justice, Immigration and Naturalization Service, 709 F.2d
724 (D.C. Cir. 1983).
(29) Assuming, arguendo, that this record would support a factual
finding that Respondent failed and refused to file a grievance for
Dixon, I would nevertheless be unable, on this record, to impute to
Respondent an intent to deliberately and unjustifiably refuse to
represent Dixon in violation of its duty of fair representation.
23 FLRA NO. 91
NTEU and Dep't of the Treasury, U.S. Customs Service, Case No.
0-NG-934 (Decided October 29, 1986)
STATUTE
7105(a)(2)(E)
7114(c)
7117(a)(1)
SUBJECT MATTER INDEX ENTRIES
Government-Wide Rule or Regulation
Found to be Government-Wide Regulation
FPM Supplement 335-1, subchapter S5-3
Negotiability
Positions, Filling of
Crediting Plans
Contents of Crediting Plans
Disclosure of Crediting Plans
Blanket Disclosure vs. Case by Case Determination
Freedom of Information Act, Disclosure Under
FPM Chapter 335, subchapter 1-4, Requirement 3
FPM Letter 335-15
FPM Supplement 335-1, subchapter S5 and 6
5 U.S.C. section 552(b)(2)
DIGEST NOTES
A proposal is nonnegotiable that requires the blanket disclosure of
existing agency crediting plans without regard to whether release of
those plans would undermine the fairness and validity of the selection
procedure. Although subchapter S5-3 of FPM Supplement 335-3 generally
encourages agencies to provide candidates for selection with information
about job requirements and rating procedures used to evaluate them,
subsection (c) provides that "Crediting plans and rating procedures . .
. should not be released . . . if, in the agency's view, such release
would undermine the fairness and validity of the selection procedure."
Moreover, FPM Letter 335-15 explains that while FPM Supplement 335-1 is
intended to allow agencies to provide candidates with information about
the measurement process, "(a)n explicit decision is necessary to
determine whether crediting plans and related rating information are
releasable." FPM Supplement 335-1 is a Government-wide rule or
regulation within the meaning of section 7117(a)(1) of the Statute since
it is generally applicable to the Federal civilian work force in that it
applies to all General Schedule Wage Grade jobs. Consequently, the
proposal is nonnegotiable because it is contrary to a Government-wide
rule or regulation.
Case No. 0-NG-934
NATIONAL TREASURY EMPLOYEES UNION
Union
and
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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). The issue presented
concerns the negotiability of the following provision contained in the
parties' locally executed agreement which was disapproved during review
of that agreement by the Agency head under section 7114(c) of the
Statute: /1/
Existing crediting plans will be disclosed to the union upon
request.
II. Positions of the Parties
The Agency contends that subchapters S5-3 and S6-1 of Federal
Personnel Manual (FPM) Supplement 335-1 and FPM Letter 335-15 do not
permit a blanket disclosure of crediting plans but require agencies to
make a case-by-case determination as to whether releasing its plans
would give candidates an unfair advantage or compromise the utility of
its selection process. The Agency claims that disclosure of its
crediting plans would reduce their utility by (1) making it difficult
for the Agency to verify nonquantitative information presented by
applicants having access to the plans, and (2) resulting in applicants
creating similar applications which would generate similar scores. It
argues that these sections of the FPM are Government-wide regulations
within the meaning of section 7117(a)(1). The Agency claims that the
provision would conflict with the cited regulations and is, therefore,
outside the duty to bargain.
The Union contends that the release of crediting plans pursuant to
the disputed provision will not result in an unfair advantage to any
candidate or compromise the utility of the selection procedure. The
Union argues that the provision is, therefore, not inconsistent with the
FPM and is within the duty to bargain.
III. Analysis and Conclusion
The Union's proposal would require the Agency to disclose any
existing crediting plan to the Union upon request. In National Treasury
Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs
Service, Region II, 11 FLRA 209, 212-13 (1983), reversed on other
grounds sub nom. U.S. Customs Service, Region II v. FLRA, 739 F.2d 829
(2d Cir. 1984), /2/ the Authority held that FPM Supplement 335-1,
subchapter S6, and FPM Letter 335-15, which revised FPM Supplement
335-1, subchapter S5, authorize release of crediting plans where the
release would not create any unfair advantage to some candidates or
compromise the utility of the selection process. However, a
determination as to whether release of crediting plans would create an
unfair advantage or compromise the utility of the selection process
depends upon the particular circumstances present and, consequently,
should be made by an agency on a case-by-case basis. Although
subchapter S5-3 of FPM Supplement 335-1 generally encourages agencies to
provide candidates for selection with information about the job
requirements and rating procedures used to evaluate them, subsection (c)
of that subchapter provides:
Crediting plans and rating procedures for the evaluation of
candidates' experiences should not be released as a means of
providing information about job requirements if, in the agency's
view, such release would undermine the fairness and validity of
the selection procedure. In such instances, information may be
extracted from crediting plans to meet the requirements of
subparagraph a, above.
Additionally, FPM Letter 335-15 explains that FPM Supplement 335-1 is
intended to allow agencies to provide candidates with information about
characteristics to be measured and about the measurement process through
"vacancy announcements or through making available crediting plans or
related information which will not compromise requirements for security
and control." However, the FPM Letter further provides that "(a)n
explicit decision is necessary to determine whether crediting plans and
related rating information are releasable."
Nothing in the language of the Union's proposal would limit the
Agency's obligation to comply with a Union request for disclosure of
crediting plans where such disclosure would be contrary to the
requirements of the FPM. Since the Union's proposal would authorize a
blanket disclosure of existing Agency crediting plans without regard to
whether release of those plans would undermine the fairness and validity
of the selection procedure, we find that the proposal is inconsistent
with subchapter S5-3(c) of FPM Supplement 335-1.
Next, we must determine whether FPM Supplement 335-1, subchapter S5-3
constitutes a "Government-wide rule or regulation" within the meaning of
section 7117(a)(1) of the Statute which would bar negotiations on a
conflicting union proposal. In U.S. Customs Service, Washington, D.C.,
discussed in footnote 2, the Authority found FPM Chapter 335, subchapter
1-4, in which the Office of Personnel Management (OPM) set forth its
determination of the policies necessary to ensure that agency promotion
procedures are based on merit, to be a Government-wide rule or
regulation. /3/ Requirement 3 of subchapter 1-4 provides that
"(m)ethods of evaluation for promotion and placement . . . must be
consistent with instructions in FPM Supplement 335-1." FPM Supplement
335-1 contains instructions to agencies from OPM concerning the "use" of
evaluation procedures in accordance with Requirement 3 of FPM Chapter
335, subchapter 1-4. See FPM Supplement 335-1, subchapter S1-1. Also,
Requirement 3 is generally applicable to the Federal civilian work force
in that it applies to "all General Schedule and Wage Grade jobs." See
FPM Letter 335-15. Accordingly, we find that subchapter S5-3 of FPM
Supplement 335-1 constitutes a Government-wide rule or regulation within
the meaning of section 7117(a)(1) of the Statute. Since the Union's
proposal is inconsistent with subchapter S5-3, it is outside the duty to
bargain. /4/
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, the Union's petition for review is dismissed.
Issued, Washington, D.C., October 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Agency withdrew its disapproval of Article 12, Sections 1A,
4A, 6C and 6D; Article 15; Article 16, Sections 2, 3, 8, 10A, 10C,
16A, and 17A; Article 17, Section 13; Article 20, Section 7; and
Article 24, Section 6C. The Union withdrew its appeal as to the
Agency's disapproval of Article 20, Section 9E; Article 22, Section 9;
and Article 24, Sections 6A and 6B. Consequently, these provisions will
not be considered further here.
(2) In U.S. Customs Service, Region II, the Second Circuit reversed
the Authority's holding that the content of the crediting plans at issue
in that case was within the duty to bargain. In Department of the
Treasury, U.S. Customs Service v. Federal Labor Relations Authority, 762
F.2d 1119 (D.C. Cir. 1985), reversing National Treasury Employees Union
and Department of the Treasury, U.S. Customs Service, Washington, D.C.,
11 FLRA 247 (1983), the D.C. Circuit reached the same result as the
Second Circuit regarding the negotiability of the content of crediting
plans but for different reasons. In The Montana Air Chapter of
Association of Civilian Technicians and U.S. Department of the Air
Force, Montana Air National Guard, 19 FLRA No. 112 (1985), the Authority
concurred in the result reached by both courts as to the negotiability
of the content of crediting plans, but adopted the rationale of the D.C.
Circuit. However, neither the decision of the Second Circuit nor the
D.C. Circuit addressed the negotiability of the disclosure of crediting
plans.
(3) The D.C. Circuit's decision, which reversed the Authority's
holding in U.S. Customs Service, Washington D.C. as to the negotiability
of the content of crediting plans, did not disagree with the Authority's
finding that FPM Chapter 335, subchapter 1-4 is a Government-wide rule
or regulation.
(4) We note that in National Treasury Employees Union v. U.S. Customs
Service, No. 84-5754 (D.C. Cir. Sept. 26, 1986), the D.C. Circuit
recently sustained an agency's denial of a union's request under the
Freedom of Information Act for disclosure of the agency's crediting
plans. In finding that the crediting plans constitute materials
"related solely to the internal personnel rules and practices of an
agency" which are exempt from disclosure under 5 U.S.C. Section
552(b)(2), the D.C. Circuit agreed with the agency's contention that
release of the plans could compromise the agency's evaluation process.
The court found, slip op. at 7-8, that "advance knowledge of the plans
by applicants would allow and induce at least some of them to embellish
-- or perhaps even fabricate -- their backgrounds to suit the
appropriate crediting plan."
23 FLRA NO. 90
AFGE, Council of Locals No. 214 and Dep't of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, Case No.
0-NG-1002 (Decided October 24, 1986)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Allegation of Nonnegotiability
Withdrawal of Allegation
DIGEST NOTES
Where the agency withdrew its allegation of nonnegotiability
following a remand of the case from the U.S. Court of Appeals for the
District of Columbia, there was no longer an issue in the case as to
whether the proposal is within the duty to bargain. Accordingly, the
Authority dismissed the petition for review.
Case No. 0-NG-1002 19 FLRA No. 23
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
LOCALS NO. 214
Union
and
DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Agency
ORDER DISMISSING PETITION FOR REVIEW
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
AFGE, AFL-CIO, Council of Locals No. 214 v. FLRA, No. 85-1500 (D.C. Cir.
August 26, 1986), reversing and remanding the Authority's decision in
American Federation of Government Employees, AFL-CIO, National Council
Locals No. 214 and Department of the Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 23 (July 22,
1985).
On October 15, 1986, the Agency noting that the Air Force Logistics
Command and AFGE Council No. 214 have signed a Memorandum of Agreement
finalizing their renegotiated Master Labor Agreement, filed a request
with the Authority asking to withdraw its allegation of
nonnegotiability.
Inasmuch as the Agency has withdrawn its allegation of
nonnegotiability concerning the Union's proposal, there is no longer an
issue as to whether the proposal in this case is within the parties'
duty to bargain under the Statute. See e.g. International Association
of Machinists and Aerospace Workers, Lodge 2424 and Department of the
Army, Aberdeen Proving Ground, Maryland, 23 FLRA No. 42 (1986); and
American Federation of Government Employees, AFL-CIO, Local 1900 and
Department of the Army, Headquarters, Fort Devens, Massachusetts, 21
FLRA No. 116 (1986). Moreover, the Authority has been advised
telephonically by AFGE that no issue in the case remains outstanding as
the parties have signed a Memorandum of Agreement which: (1)
incorporates into their renegotiated Master Labor Agreement the proposal
which had been at issue in AFGE's petition for review; (2) and resolves
all other related issues.
Accordingly, and apart from other considerations, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., October 24, 1986
/s/ Harold D. Kessler
Director of Case Management
23 FLRA NO. 89
Dep't of the Treasury, IRS, Wichita District, Wichita, Kan. and NTEU,
Case No. 7-CA-30514 (Decided October 22, 1986)
STATUTE
7116(a)(1) and (2)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Discrimination (7116(a)(2))
Disclosure of Confidential Taxpayer Information
Discipline
Unique Circumstances Precluding Discipline
Inadequate Employee Notice of their Authority to Act
Information
Confidential Information
Taxpayer Information Disclosure
Procedures for Obtaining Information
Adequate Employee Notice: Disclosure of Confidential Info.
Remedy
Explain Procedures for Disclosure of Confidential Information
Recommend Employees for Quality Step Increase
26 U.S.C. section 6103
DIGEST NOTES
Employees did not have adequate notice that they lacked sufficient
authorization for the disclosure of confidential taxpayer information to
union attorneys in the course of preparing for a grievance proceeding,
the U.S. Court of Appeals for the District of Columbia ruled. National
Treasury Employees Union v. FLRA, 791 F.2d 183 (D.C. Cir. 1986). The
court agreed with the Authority that 26 U.S.C. section 6103 prohibits
the disclosure of confidential taxpayer information by employees for
personnel matters absent appropriate authorization for disclosure.
However, the court determined that in the "unique circumstances" present
in the case, the two employees did not have fair notice that the
disclosure to their union lawyers was unlawful. The court noted that
the employees submitted a written request to their supervisor for
information relevant to an employee grievance. The supervisor, who was
not authorized to permit disclosure of taxpayer information, essentially
told the employees to disclose the information contained in their
"dailies" to one another, without obtaining appropriate authorization.
This behavior, along with prevalent uncertainty about the process for
obtaining authorization for disclosure of taxpayer information in
connection with an employee grievance, led the court to its conclusion.
Consequently, the Court held that the agency violated section 7116(a)(1)
and (2) when it disciplined the employees for disclosure of confidential
taxpayer information to their union attorneys. The Authority, accepting
the court's opinion as the law of the case, issued a decision and order
on remand.
Case No. 7-CA-30514 (17 FLRA 485)
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, WICHITA
DISTRICT, WICHITA, KANSAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
DECISION AND ORDER ON REMAND
On April 15, 1985, the Authority issued its Decision and Order in the
above-entitled proceeding. The Authority found that the Respondent had
not committed an unfair labor practice by disciplining two employees for
disclosure of confidential taxpayer information to non-employee union
lawyers in the course of preparation for a grievance proceeding. The
Authority, in agreement with the Administrative Law Judge, found that
the disclosure by the two employees violated section 6103 of the
Internal Revenue Code, 26 U.S.C. Section 6103 (1982), and pertinent
Internal Revenue Service regulations, because the employees had not
obtained the requisite authorization for such disclosures. The
Authority determined, therefore, that the Respondent had not violated
section 7116(a)(1) and (2) of the Statute /*/ by disciplining the two
employees. Department of the Treasury, Internal Revenue Service,
Wichita District, Wichita, Kansas, 17 FLRA 485 (1985).
Thereafter, on May 23, 1986, the U.S. Court of Appeals for the
District of Columbia Circuit reversed the Authority's Decision and
remanded the matter to the Authority for proceedings consistent with the
court's opinion. National Treasury Employees Union v. FLRA, 791 F.2d
183 (D.C. Cir. 1986). The Court agreed with the Authority that 26
U.S.C. Section 6103 prohibits the disclosure of confidential taxpayer
information by employees for personnel matters absent appropriate
authorization for disclosure. However, the court determined that in the
"unique circumstances" present in this case, the two employees did not
have fair notice that the disclosure to their union lawyers was
unlawful. 791 F.2d at 184. The court noted that the employees
submitted a written request to their supervisor for information relevant
to an employee grievance. Specifically, employees Bates and Moore
requested copies of the Revenue Officer Dailies, or daily work records,
for four employees, including Bates and Moore. The court stated that
the supervisor, who was not authorized to permit disclosure of taxpayer
information, essentially told the two employees to disclose their own
dailies to each other, without obtaining appropriate authorization. Id.
at 187. This behavior, along with prevalent uncertainty about the
process for obtaining authorization for disclosure of taxpayer
information in connection with an employee grievance, led the court to
the conclusion that the employees did not have adequate notice that they
lacked sufficient authorization for their subsequent disclosure of their
dailies to their union lawyers. Id. In these circumstances, the court
determined that the Respondent committed an unfair labor practice by
orally admonishing the employees for the disclosure to their union
lawyers.
The Authority accepts the court's opinion as the law of the case and,
consistent with that opinion, shall issue an order to remedy the unfair
labor practice. The court suggested (791 F.2d at 188-89 n.11) that a
possible remedial provision would be a requirement that the Respondent
post signs explaining the prohibition in 26 U.S.C. Section 6103 on
disclosure of taxpayer information, and the procedure for obtaining
authorization for disclosure. While the Authority's Order does not
contain such a provision, we note that nothing in this Decision and
Order precludes the Respondent from notifying its employees in an
appropriate manner of the prohibition on unauthorized disclosure of
taxpayer information, and of the procedure for obtaining proper
authorization for such disclosure. We encourage the Respondent to do
so.
We further note that the record discloses that employee Moore's
supervisor refused to recommend Moore for a high quality step increase
because of his disclosure of taxpayer information to the union lawyers.
17 FLRA at 509. See also NTEU v. FLRA, 791 F.2d at 185 n.3. Consistent
with the court's opinion, our Order requires the Respondent to recommend
Moore for a high quality step increase and to consider and act upon the
recommendation without regard to his disclosure to the union lawyers,
since he lacked adequate notice that he did not have authorization to
make the disclosure.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Treasury, Internal Revenue
Service, Wichita District, Wichita, Kansas, shall:
1. Cease and desist from:
(a) Disciplining employees for unauthorized disclosure of
confidential taxpayer information to non-employee attorneys in
connection with an employee grievance, where the employees lack adequate
notice that they have not obtained sufficient authorization to disclose
the information.
(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) Recommend employee Moore for a high quality step increase, and
consider and act upon the recommendation without regard to his
disclosure of taxpayer information in connection with an employee
grievance, since he lacked adequate notice that he did not have
sufficient authorization to make the disclosure.
(b) Post at its facility where employees in the bargaining unit 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 an appropriate official of the Respondent, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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 herewith.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) Section 7116(a)(1) and (2) provides:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment(.)
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discipline employees for unauthorized disclosure of
confidential taxpayer information to non-employee attorneys in
connection with an employee grievance, where the employees lack adequate
notice that they have not obtained sufficient authorization to disclose
the information.
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 recommend employee Moore for a high quality step increase,
and will consider and act upon the recommendation in connection with an
employee grievance, since he lacked adequate notice that he did not have
sufficient authorization to make the disclosure.
(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 by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for Region VII, Federal Labor Relations Authority, whose
address is: 535 16th Street, Suite 310, Denver, Colorado, 80202 and
whose telephone number is: (303) 837-5224.
23 FLRA NO. 88
U.S. Naval Ordnance Station and IAM Local Lodge 830 (Mulhall,
Arbitrator), Case No. 0-AR-1123 (Decided October 22, 1986)
STATUTE
7106(a)(2)(B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Award Set Aside
Award Contrary to 7106(a)(2)(B)
Exceptions Asserted in Appeal
Award Contrary to 7106(a)(2)(B)
Overtime Assignment
Determination of Whether Particular Employee is Qualified
Establishment of the Qualifications Required for Overtime
Remedy
Backpay
8 hours of Overtime Pay
Negotiability
Assign Work
Elements of the Right to Assign Work
Determine Whether Particular Employees Meet Qualifications
Establish Qualifications of Each Job
DIGEST NOTES
The arbitrator ruled that under the parties' collective bargaining
agreement, management was obligated to have offered overtime work of
assisting the operator of the electron beam welding equipment to the
grievant. The agency had maintained that grievant was not offered the
overtime because, as a general welder, he was not qualified.
Nevertheless, the arbitrator awarded the grievant 8 hours of overtime
pay.
In its exceptions, the agency contended that the award was contrary
to section 7106(a)(2)(B). In setting aside the award, the Authority
found that the arbitrator's award negated the exercise by management of
its rights to establish qualifications and to determine whether
particular employees meet those qualifications. Thus the award
improperly interfered with management's right to assign work under
section 7106(a)(2)(B).
Case No. 0-AR-1123
U.S. NAVAL ORDNANCE STATION
Activity
and
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL
LODGE 830
Union
DECISION
I. STATEMENT OF THE CASE
This case is before the Authority on exceptions to the award of
Arbitrator W. Thomas Mulhall filed by the Department of the Navy (the
Agency) under section 7122(a) of the Federal Service Labor-Management
Relations 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 on the issue of
whether the Activity violated the parties' collective bargaining
agreement by its assignment of overtime. The grievant was a general
purpose welder and the overtime to which he claimed entitlement had been
assigned to two electron beam welders because the overtime work was
scheduled to be done on electron beam welding equipment. Specifically,
one of the electron beam welders was assigned to operate the equipment
and the other was assigned to assist. At arbitration the Activity
explained that the grievant was not considered for the disputed overtime
assignment because as a general purpose welder he was not qualified to
perform the electron beam welding work. The Union disputed the
Activity's determination that the employee assigned to assist the
primary welder must also be a qualified electron beam welder. The Union
maintained that the assistant performed duties for which the grievant
was entirely qualified and argued that therefore the grievant was
entitled to have been offered the disputed overtime assignment.
The Arbitrator agreed with the Union. He found that the record did
not indicate that the duties of the assistant were of the same
specialized nature required of the primary electron beam welder. To the
contrary he found that the work performed by the assistant was
completely within the skills of the grievant and that the grievant was
qualified to perform the work. The Arbitrator ruled that under the
parties' collective bargaining agreement provisions on the distribution
of overtime, management was obligated to have offered the overtime work
of assisting the operator of the electron beam welding equipment to the
grievant. The Arbitrator concluded that the grievant was wrongfully
deprived of the assignment. Accordingly, as his award, the Arbitrator
sustained the grievance and awarded the grievant 8 hours of overtime
pay.
III. EXCEPTIONS
As one of its exceptions, the Agency contends that the award is
contrary to management's right to assign work in accordance with section
7106(a)(2)(B) of the Statute. Specifically, the Agency argues that the
award substitutes the judgment of the Arbitrator for that of management
in determining the qualifications necessary to perform certain work and
in determining whether the grievant possessed those qualifications.
IV. ANALYSIS AND CONCLUSIONS
We agree with the Agency. In United States Marine Corps, Marine
Corps Logistics Base, Albany, Georgia and American Federation of
Government Employees, Local 2317, 23 FLRA No. 52 (1986), in which the
arbitrator found, contrary to the determination of management, that the
grievant had the skills necessary to perform the overtime work in
dispute and ordered that the grievant be assigned such work, we
concluded that the award was contrary to management's right to assign
work under section 7106(a)(2)(B) of the Statute. More specifically, we
found that the arbitrator had negated the exercise by management of the
rights encompassed by section 7106(a)(2)(B) to establish qualifications
and to determine whether particular employees meet those qualifications
and, therefore, we set aside the award.
In this case we similarly conclude for the reasons set forth in
Marine Corps Logistics Base, Albany, Georgia, that the award is contrary
to management's right to assign work under section 7106(a)(2)(B). The
grievant was not considered for the disputed overtime assignment because
management had determined that he was not qualified. Thus, the
Arbitrator in this case has negated the exercise by management of the
rights to establish qualifications and to determine whether particular
employees meet those qualifications. The Arbitrator has not merely
enforced a procedure of the parties' collective bargaining agreement by
which employees previously judged by management to be equally qualified
will be selected to perform certain work. Instead, he has enforced the
agreement to improperly interfere with management's right to assign work
in accordance with section 7106(a)(2)(B) of the Statute.
V. DECISION
Accordingly, for these reasons, the Arbitrator's award is set aside.
/*/
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In view of this decision, it is not necessary that we address the
Agency's other exceptions.
23 FLRA NO. 87
VA and AFGE, National Council of VA Locals, Case No. 3-CA-30727
(Decided October 22, 1986)
STATUTE
7116(a)(1), (6) and (8)
7118
7119(c)
7119(c)(5)(C)
7122(a) and (b)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Finality of Awards
FSIP Interest Arbitration Awards
Federal Service Impasses Panel
Interest Arbitration
Award (7122) rather than "Final Action" (7119(c)(5)(C))
Travel and Per Diem Expenses Awarded
Unfair Labor Practices
Agency Violations
Refusal to Cooperate in Impasse Proceeding
Comply with FSIP Order
Otherwise Refuse to Comply with the Statute
7122(b)
Procedure
Forums
ULP Proceedings vs. Appeal of FSIP Interest Arb. Award
Motion to Strike
Matter Not Alleged in Complaint
Remedy
Reimburse Union for Travel and Per Diem Expenses
Reimburse Employees for Travel and Per Diem Expenses
DIGEST NOTES
An award resulting from interest arbitration proceedings ordered by
FSIP is an arbitration award subject to section 7122 and not a "final
action" of the Panel within the meaning of section 7119(c)(5)(C), even
if the arbitrator is the Executive Director of FSIP. Appeal of such an
award is subject to the same requirements for appeals of other
arbitration awards under section 7122. Should an agency fail to comply
with awards resulting from FSIP ordered interest arbitration, the agency
violates section 7116(a)(1) and (8). Also, an agency failure to comply
with such an award constitutes a failure to cooperate with Panel
procedures which is a violation of section 7116(a)(1) and (6).
The agency violated section 7116(a)(1) and (6) when it failed to
comply with the travel and per diem requirements of an award rendered as
a result of FSIP ordered interest arbitration. As a remedy, the
Authority ordered the agency to reimburse the union for travel and per
diem expenses it previously paid employees who were engaged in the
preparation and/or negotiation of a new collective bargaining agreement.
The Authority granted the agency's motion to strike in so far as it
concerned a violation of 7116(a)(1) and (8) because the complaint in the
case did not allege such a violation.
Case No. 3-CA-30727
VETERANS ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF VA
LOCALS
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 and the General Counsel. The case involves an
alleged violation of section 7116(a)(1) and (6) of the Federal Service
Labor-Management Relations Statute (the Statute) when the Respondent
notified the Charging Party and the Federal Service Impasses Panel (the
Panel) that it would not comply with the Arbitrator's Opinion and
Decision in Veterans Administration, Washington, D.C. and National
Council of VA Locals, AFGE, 83 FSIP 46, concerning the payment of travel
and per diem expenses.
II. Background
During ground rules negotiations for the parties' first master
collective bargaining agreement, the Charging Party requested the
assistance of the Panel in resolving an impasse, principally on the
matter of payment for travel and per diem expenses. There was some
disagreement among the parties as to whether the matter was properly
before the Panel. The Respondent argued that the Charging Party's
proposals regarding travel and per diem expenses were not negotiable
and, also, that the issue should be resolved by the Authority, not the
Panel. The parties were subsequently able to complete negotiations on
the ground rules except for the matter of travel and per diem expenses.
Thereafter, the Panel referred these issues to its Executive Director
for arbitration. The Executive Director was given "the authority to
mediate . . . (and to) dispose of (any remaining unresolved issues) by
(1) issuing a decision resolving some or all of the issues and (2)
declining to hear some or all of the issues until such time as any
threshold negotiability issues are resolved in an appropriate forum." On
July 15, 1983, the Executive Director issued his "Arbitrator's Opinion
and Decision" in which he ordered the Respondent to adopt the Charging
Party's proposals providing for reimbursement of travel and per diem
expenses to employees engaged in preparation for bargaining as well as
actual negotiations. /1/ Following receipt of the Arbitrator's Opinion
and Decision, the Respondent informed the Panel and the Charging Party
that it would not comply with the decision. The Respondent also
petitioned the Panel to withdraw the Opinion and Decision following
issuance of the United States Supreme Court's decision in Bureau of
Alcohol, Tobacco and Firearms (BATF) v. Federal Labor Relations
Authority, 464 U.S. 89 (1983), which the Panel declined to do. A
petition for reconsideration filed by the Respondent was similarly
denied by the Panel. During the ensuing negotiations between the
parties for their master agreement, the parties stipulated that the
Charging Party paid approximately $50,000 for travel and per diem
expenses to its union/employee negotiators, which payment otherwise
would have come from the Respondent's appropriated funds.
III. Positions of the Parties
The Respondent moves for dismissal of the unfair labor practice
allegation on the basis that the issues raised involve negotiability
questions over which the Panel does not have jurisdiction. It argues
that both the Authority and the Panel recognized that a legitimate
negotiability question was involved because of actions taken in other,
unrelated proceedings involving the negotiability of travel and per diem
payments. The Respondent also raises certain arguments regarding the
cost of travel and per diem payments -- specifically, that such payments
are inconsistent with the agency's statutory right to determine its
budget and that there is no statutory authorization for such
expenditures.
The Charging Party argues generally that payment of travel and per
diem expenses is a negotiable condition of employment, that the Panel
properly asserted jurisdiction over the impasse, and consequently that
the failure to comply with the Arbitrator's Opinion and Decision
violated the Statute.
The General Counsel argues that the failure and refusal to comply
with the express provisions of section 7119(c) of the Statute /2/
constituted a failure and refusal to cooperate in impasse decisions in
violation of section 7116(a)(1) and (6) of the Statute. Both the
General Counsel and the Charging Party request that the Authority order
the Respondent to comply with the Arbitrator's Opinion and Decision.
The General Counsel also argues that because the Arbitrator's Opinion
and Decision resulted from a Panel-directed arbitration proceeding and
nothing contained in the parties' stipulation indicated that timely
exceptions to the award had been filed under section 7122(a) of the
Statute, the award became final and binding within the meaning of
section 7122(b). /3/ The failure to abide by a final and binding
arbitration award was alleged to constitute a violation of section
7116(a)(1) and (6) of the Statute as well. The Respondent objected to
this allegation and filed a motion to strike the argument contained in
the General Counsel's brief on the basis that the allegation was not
contained in the amended charge against the Respondent, was not alleged
in the complaint, and was not referenced in the parties' stipulation of
facts. The General Counsel opposed the motion to strike on the grounds
that the arguments are legal in nature and rely solely on the facts
contained in the stipulation.
IV. Analysis
A. Type of Proceeding
As a preliminary matter, the Authority must decide whether the
Arbitrator's Opinion and Decision in 83 FSIP 46 is a Panel decision
within the meaning of section 7119 of the Statute, as the parties have
characterized it, or whether it is an arbitration award resulting from
Panel-directed interest arbitration. For the reasons which follow, we
find that it is the latter.
As noted above, after receiving the Charging Party's request for
assistance, the Panel referred certain unresolved issues to its
Executive Director for arbitration. Specifically, the arbitrator was
given the authority to first mediate the issues and, failing resolution
on that basis, to dispose of any issues that remained by either issuing
a decision or declining to hear the issues until any threshold
negotiability issues were resolved in an appropriate forum. On the
basis of his authority, the arbitrator issued an Arbitrator's Opinion
and Decision in which he directed the parties to adopt the Charging
Party's proposals relating to the payment of various travel and per diem
expenses. In our view, this decision constituted an arbitration award
rendered in an interest arbitration proceeding to which the parties had
been directed by the Panel. This is evident from both the Panel's
communications to the parties referring the matter to mediation and
arbitration and from the language of the Opinion and Decision itself.
While the parties may have viewed the decision in 83 FSIP 46 as a Panel
decision, we find that the Opinion and Decision was an interest
arbitration award under section 7122 of the Statute and not a "final
action" of the Panel within the meaning of section 7119(c)(5)(C) of the
Statute. /4/
B. Failure to Comply -- Section 7116(a)(1) and (6)
Violation
In United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 154 (1984), aff'd
sub nom. Department of the Air Force v. Federal Labor Relations
Authority, 775 F.2d 727 (6th Cir. 1985), the Authority concluded that a
failure to comply with a final and binding interest arbitration award
which resulted from the Panel's granting of the parties' request to
resolve their dispute through the use of interest arbitration was not
only inconsistent with the requirements of section 7122(b) and therefore
a violation of section 7116(a)(1) and (8) of the Statute, but also
constituted a failure to cooperate with impasse procedures and decisions
in violation of section 7116(a)(1) and (6) of the Statute. In this
case, the Panel directed the parties to interest arbitration to resolve
the impasse that arose in their negotiations and an award was
subsequently issued directing the parties to adopt certain proposals
regarding the payment of travel and per diem expenses. We find that the
Respondent's conceded failure to comply with the award rendered as a
result of this process violated section 7116(a)(1) and (6) of the
Statute because the Respondent failed to cooperate in Panel procedures.
C. Motion to Strike
The Respondent filed a motion to strike the General Counsel's
argument, first articulated in its post-stipulation brief to the
Authority, that the Respondent's failure to comply with a final and
binding arbitration award also constituted a violation of section
7116(a)(1) and (6) of the Statute. As we noted in connection with the
Wright-Patterson case, a failure to comply with an interest arbitration
award which has become final and binding in the absence of timely filed
exceptions is a violation of section 7116(a)(1) and (8) of the Statute.
In the complaint in this case, the General Counsel did not allege a
violation of section 7116(a)(1) and (8) of the Statute based on the
failure to comply with an arbitration award. Therefore, to the extent
that the General Counsel is now attempting to argue a new violation of
the Statute, the motion to strike is granted. On the other hand, to the
extent that the General Counsel is alleging that the failure to comply
with the award constitutes noncompliance with the requirements of
section 7119 of the Statute, we find that such conduct was properly
alleged as a section 7116(a)(1) and (6) violation because it
demonstrates a failure to cooperate with Panel procedures. Therefore,
to this extent, the motion to strike is denied. /5/
V. Remedy
To remedy the unfair labor practice conduct, the Authority will order
the Respondent to comply with the Arbitrator's Opinion and Decision in
83 FSIP 46, and to give it retroactive effect. See Wright-Patterson.
As the arbitrator directed the parties to adopt proposals requiring the
payment of travel and per diem expenses, our order requires that the
Respondent make such payments. In this connection, the stipulated
record indicates that it was the Charging Party that made payments the
Respondent otherwise would have made from its appropriated funds.
Therefore, consistent with the Authority's decision in, for example,
Department of the Treasury, Internal Revenue Service, Columbia District,
Columbia, South Carolina, 22 FLRA No. 28 (1986), petition for review
filed sub nom. Department of the Treasury, Internal Revenue Service,
Columbia District, Columbia, South Carolina v. FLRA, No. 85-1467 (D.C.
Cir. Aug. 22, 1986), we will further order the Respondent to make whole
the Charging Party for the expenses it incurred in paying the travel and
per diem expenses of bargaining unit employees who acted as its
negotiators while engaged in preparation for bargaining as well as
actual negotiations over the master agreement. Additionally, if there
are any bargaining unit employees who either did not receive payments to
which they were entitled or were not compensated fully for such
expenses, the Respondent also will be ordered to reimburse them for the
travel and per diem expenses they incurred upon their submission of
properly documented claims for such payments. The payments that are
here being ordered must be consistent with law and regulation, including
the Federal Travel Regulations.
VI. Conclusion
We find that the Respondent's failure to comply with the Arbitrator's
Opinion and Decision in Case No. 83 FSIP 46 constituted a failure to
cooperate in impasse procedures in violation of section 7116(a)(1) and
(6) of the Statute. Therefore, we shall order the Respondent to comply
with the Opinion and Decision and pay travel and per diem expenses as
outlined above.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Veterans Administration shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse procedures by
refusing to comply with the Arbitrator's Opinion and Decision in Case
No. 83 FSIP 46.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the Arbitrator's Opinion and Decision in Case No. 83
FSIP 46.
(b) Make the American Federation of Government Employees, National
Council of VA Locals whole for the costs it incurred in paying the
travel and per diem expenses of bargaining unit employees who acted as
its negotiators while engaged in preparation for bargaining as well as
actual negotiations over the master agreement, for which the employees
otherwise would have been reimbursed by the Respondent.
(c) Pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments in connection with preparation for bargaining as well as
actual negotiations over the master agreement, to the extent that such
expenses have not been reimbursed by the American Federation of
Government Employees, National Council of VA Locals.
(d) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Administrator 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.
(e) 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.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Other issues were resolved during the mediation phase of the
proceeding and are not at issue in this case.
(2) Section 7119(c) provides that any final action of the Panel
"shall be binding on such parties during the term of the agreement,
unless the parties agree otherwise."
(3) Section 7122(b) of the Statute provides that an arbitration award
shall be final and binding unless exceptions are filed within a
prescribed time period, and that an agency shall take the actions
required by an award that has become final and binding.
(4) See Department of the Air Force, Flight Test Center, Edwards Air
Force Base, California and Interdepartmental Local 3854, American
Federation of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), in
which the Authority determined, among other things, that an arbitrator's
opinion and decision resulting from Panel-directed interest arbitration
was an arbitration award and not a final action of the Panel under
section 7119 of the Statute. Any argument the Respondent wished to
raise concerning the Panel's jurisdiction in this matter could have been
raised in exceptions to the award filed under section 7122 of the
Statute.
(5) The parties' mischaracterization of the arbitration award may
have resulted from the Panel's and the arbitrator's procedures. The
arbitration award was forwarded to the parties with a cover letter on
Panel letterhead signed by Howard Solomon as "Executive Director." The
first page of the Arbitrator's Opinion and Decision contains the heading
"Before the Federal Service Impasses Panel," and Mr. Solomon signed the
Opinion and Decision as "Executive Director and Arbitrator." Further,
the signature page of the decision contains the phrase "By direction of
the Panel." A clearer explanation of the Panel's procedures might have
avoided the parties' reference to the arbitration award as a Panel
decision.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to cooperate in impasse procedures by
refusing to comply with the Arbitrator's Opinion and Decision in Case
No. 83 FSIP 46.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the Arbitrator's Opinion and Decision in Case No.
83 FSIP 46.
WE WILL make the American Federation of Government Employees,
National Council of VA Locals whole for the costs it incurred in paying
the travel and per diem expenses of bargaining unit employees who acted
as its negotiators while engaged in preparation for bargaining as well
as actual negotiations over the master agreement, for which the
employees otherwise would have been reimbursed by us.
WE WILL pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments in connection with preparation for bargaining as well as
actual negotiations over the master agreement, to the extent that such
expenses have not been reimbursed by the American Federation of
Government Employees, National Council of VA Locals.
(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, Room 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
23 FLRA NO. 86
Columbus Air Force Base Exchange, Columbus Air Force Base, Miss. and
NFFE, Case No. 4-RO-50034 (Decided October 22, 1986)
STATUTE
7116(e)
SUBJECT MATTER INDEX ENTRIES
Representation
Procedure
Review of Regional Director's Decision
Mere Disagreement with FLRA R.D. Not a Basis for Review
DIGEST NOTES
The Authority dismissed an application for review of a Regional
Director's Decision and Order on Objections where the application
expressed mere disagreement with the Regional Director's findings, which
were based on precedent and were not shown to be clearly erroneous or to
have prejudicially affected the rights of any party.
Case No. 4-RO-50034
COLUMBUS AIR FORCE BASE EXCHANGE, COLUMBUS AIR FORCE, BASE,
MISSISSIPPI
Activity
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
Labor Organization
ORDER DENYING APPLICATION FOR REVIEW
On September 5, 1986, the Columbus Air Force Base Exchange, Columbus
Air Force Base, Mississippi (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 Objections in the above-named case. The Regional Director set
aside an election and directed that another be conducted because she
concluded that objectionable conduct occurred on the part of the
Activity which improperly affected the results of the election. The
National Association of Government Employees (NAGE) filed an opposition
to this application for review. In its application for review, the
Activity contends that compelling reasons exist within the meaning of
section 2422.17(c) of the Authority's Rules and Regulations for granting
this application.
The Authority has consistently held that during the course of a
representation campaign, an activity must assume a neutral posture and
any statements issued by the Activity must conform to the requirements
of section 7116(e) of the Statute. United States Department of Justice,
United States Immigration and Naturalization Service, 9 FLRA 253 (1982);
Department of the Air Force, Air Force Plant Representative Office,
Detachment 27, Fort Worth, Texas, 5 FLRA 492 (1981).
Upon consideration of the Activity's application for review,
including its supporting arguments, the Authority concludes that no
compelling reason exists for granting the application. Rather, the
application expresses mere disagreement with the Regional Director's
findings, which are based on precedent and have not been shown to be
clearly erroneous or to have prejudicially affected the rights of any
party.
Accordingly, pursuant to section 2422.17(f)(3) of the Authority's
Rules and Regulations IT IS ORDERED that the application for review of
the Regional Director's Decision and Order on Objections be, and it
hereby is, denied.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
23 FLRA NO. 85
HHS, SSA and SSA Field Operations, Region II and AFGE, Local 2369,
Case No. 2-CA-50323 (Decided October 22, 1986)
STATUTE
7116(a)(1)
7116(e)
7118
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations
Interference, Restraint, Coercion
Derogatory Statements
Statements By Supervisor or Management Official
Derogatory Remarks
Cursing Union Official
Official Time
For Not Obtaining Prior Approval Before Using Official Time
Personal Opinion
Cursing that Was Not Anti-Union
DIGEST NOTES
The activity's area director did not violate section 7116(a)(1) when
he cursed the union's second vice-president for not obtaining prior
approval for official time used in interviewing a grievant. The
situation was an emotionally one in which the union representative also
cursed. The Judge found that the area director did not attempt to
thwart the union representative from speaking to the grievant or
otherwise declare or imply that the union representative should abstain
from pursuing his union duties. In adopting the Judge's decision, the
Authority stressed that it did not view the supervisor's remarks in any
way constituting the kind of expression which is authorized by section
7116(e). Rather, the Authority's conclusion was based on the focus and
import of the remarks as found by the Judge.
Case No. 2-CA-50323
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS,
REGION II
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practice alleged in the complaint and recommending that
the complaint be dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, /*/ conclusions, and recommended Order dismissing the
complaint. The Authority does not view the supervisor's remarks in this
case as in any way constituting the kind of expression which is
authorized by section 7116(e) of the Statute. The Authority's
conclusion is based on the focus and import of the remarks as found by
the Administrative Law Judge.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-50323 be, and it
hereby is, dismissed.
Issued, Washington, D.C. October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 2-CA-50323
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS,
REGION II
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369
Charging Party
Richard Matthews
Al Lipovsky
For the Respondent
Susan M. Roche, Esquire
Edgar A. Jones, Esquire
For the General Counsel
Joseph Calafut,
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on August 29,
1985 by the Regional Director for the Federal Labor Relations Authority,
New York, N.Y., a hearing was held before the undersigned on October 9,
1985 at New York, N.Y.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is
based on a First Amended Charge filed on July 18, 1985 by American
Federation of Government Employees, AFL-CIO, Local 2369 (herein called
the Union) against Department of Health and Human Services, Social
Security Administration, and Social Security Administration, Field
Operations, Region II (herein collectively called Respondent).
The Complaint alleged, in substance, that on or about May 1, 1983
Respondent's Area V Director, Arne Tornquist, made a derogatory
anti-union remark in a telephone conversation to a Union representative
who was preparing to represent a grievant in a hearing before said Area
Director, all of which allegedly violated Section 7116(a)(1) of the
Statute.
Respondent's Answer, dated September 23, 1985, denied the aforesaid
allegation as well as the commission of any unfair labor practice.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /1/
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 American Federation of Government
Employees, AFL-CIO has been the exclusive representative of a
consolidated nationwide unit of Respondent's employees, including all
employees located in the District and Branch Offices of Social Security
Administration in the states of New York and New Jersey, with specified
exclusions.
2. At all times material herein the American Federation of
Government Employees, AFL-CIO has delegated to the National Council of
Social Security Administration Field Operations Locals (Council)
authority to act with representatives for collective bargaining on
behalf of certain of Respondent's employees, including those employed at
the Toms River, New Jersey Branch Office, and Respondent has so
recognized the Council for that purpose.
3. At all times material herein the Union has acted as agent for the
Council for the purposes of collective bargaining for certain of
Respondent's employees, including employees at the Toms River, New
Jersey Branch, and Respondent has recognized the Union for that purpose.
4. Both the Social Security Administration and American Federation
of Government Employees, AFL-CIO, are parties to an agreement covering a
nationwide unit of employees, including employees at the Toms River, New
Jersey Branch. Said agreement contains a provision in Article 30,
Section 4, as well as Appendix F, Part G, which states as follows: /2/
"Unless otherwise arranged, union representatives for field
offices will be required to request and arrange with appropriate
management officials in advance of their usage of official time by
using the SSA-75."
5. Record facts show that on May 1, 1985 Alan H. Cannizzaro was
employed as a claims representative at Respondent's Bridgeton, New
Jersey Branch. He was the on-site representative for Bridgeton Branch,
as well as second vice-president of the Union herein. His duties
included handling grievances on behalf of employees, attendance at
arbitration hearings, and filing unfair labor practice charges.
6. On May 1, 1985 Cannizzaro went to the Toms River, New Jersey
Branch of Respondent to speak with employee Patricia D'Elia. He wanted
to investigate a charge brought against D'Elia by management re misusing
her title as a government official. Cannizzaro planned to represent the
employee in connection with a proposal to suspend her for a day.
7. When the Union representative arrived at the Branch he was met by
Joseph E. Lynch, the Operations Supervisor who asked why Cannizzaro was
there. The latter explained he wanted to see employee D'Elia; that he
was on official time signed by his supervisor. Lynch testified he knew
that the Union official represented D'Elia re her proposed suspension,
and he was aware that Area Director Arne Tornquist had been assigned to
the matter. Since Lynch believed that this Area Director would be the
proper official to authorize official time, he telephoned Tornquist to
ascertain whether the Director had given approval therefor. Tornquist
explained that he did not sanction official time for Cannizzaro's visit,
and he told Lynch to put the Union representative on the phone.
8. A telephone conversation ensued between Tornquist and Cannizzaro
re the purpose of the latter's visit to the Toms River Branch. /3/ The
Union official told the Director he had an approved SSA-75 /4/ which was
signed by his supervisor. Tornquist said it had to be sanctioned by the
hearing official /5/ before the supervisor could approve it.
Cannizzaro, who was upset at the confrontation, said he didn't give a
shit, he would do as he pleased. Upon rhetorically asking Cannizzaro if
the Union representative considered himself real big in the Union now,
Tornquist said that Cannizzaro was just a little "union shit".
Cannizzaro replied he didn't appreciate being called such a name, and he
then called the Area Director a "fat fuck".
After being asked by Tornquist if he intended to file an unfair labor
practice against the Director, Cannizzaro said he probably would do so.
Tornquist replied that the Union official should go ahead and do so;
that Cannizzaro had not made one stick yet. Cannizzaro stated he could
leave and return later but it would just be a waste of time and money;
that he gets paid for filing grievances and unfair labor practices. The
Area Director told the Union representative he was a waste to the agency
and interfered with its mission, but that Cannizzaro should stay there
and "do what you have to do -- meet with the employee and leave nice and
early."
9. After the telephone conversation Cannizzaro met with Patricia
D'Elia. He explained what occurred and asked her if she wanted him to
withdraw from the case. D'Elia stated she did not want Cannizzaro to
withdraw.
10. Thereafter Cannizzaro wrote letters to Paul Dudak, Area Director
IV, and Alex Bussy, Assistant Regional Commissioner. He mentioned what
transpired during his conversation with Tornquist, as well as the fact
that the latter called him a "little union shit". Cannizzaro complained
about Tornquist's behavior and asked that another person be appointed to
hear D'Elia's grievance so the employee could get a fair and unbiased
decision. A reply from Dudak stated that management makes its own
determination and would exercise its authority on this issue.
Conclusions
The simple issue herein is whether Area Director's remarks to Union
representative Cannizzaro, during a telephone conversation on May 1,
1985, were coercive in nature and violated Section 7116(a)(1) of the
Statute.
General Counsel contends that Cannizzaro was engaged in protected
activity at the time, /6/ that, although no explicit threat was made by
Tornquist, his comments implied that the Union official's right to
conduct his duties was "under attack"; that the statements interfered
with Cannizzaro's right to conduct his legitimate representational
activities.
The Authority has had occasion to consider several cases wherein
statements by supervisors were made to employees which were allegedly
coercive in nature. In determining if remarks by management interfered
with protected activity, and tended to coerce, the test is whether an
employee could reasonably infer coercion from the statement by a
supervisor. Federal Mediation and Conciliation Service, 9 FLRA No. 31.
Such determination is not based on the employer's intention or the
perception of the involved employee -- either of which may properly be
characterized as subjective in nature.
General Counsel has alluded to several cases in support of its
position that Tornquist's statements to Cannizzaro constituted
interference with the latter's functions as a union representative. In
particular, reference is made to U.S. Army Military Traffic Management
Command, Eastern Area, Bayonne, N.J., 16 FLRA No. 123; Social Security
Administration, Baltimore, Maryland, 14 FLRA No. 80; Department of the
Treasury, Internal Revenue Service, Louisville District, 11 FLRA No. 64.
The undersigned has reviewed the cited cases but is not persuaded
that they are determinative in deciding the matter at hand.
In U.S. Army Military Traffic Management Command, supra, a union
steward, who had received a formal reprimand for failing to work on
assignments, requested additional official time to prepare his reply.
The deputy, to whom he made the request, asked "why don't you stop this
Union nonsense and do your job like you're supposed to do instead of
like you were in 82"? It was held that this implied disapproval of the
steward's unionism and chilled the exercise of his right to join or
assist a labor organization. In the case at bar the Area Director was
concerned with the failure of Cannizzaro to obtain his prior approval to
confer with the grievant. He did not attempt to thwart the Union
representative from speaking to D'Elia, nor did he suggest that
Cannizzaro should cease his representational functions. I do not
conclude that, as in the cited case, such "chilling" effect resulted
from Tornquist's calling the representative a "little union shit" or
that the latter was a waste to the agency.
It was concluded in the Social Security Administration case, supra,
that a supervisor's threat to throw the union representative out of his
office, and his preventing a grievance meeting between the
representative and an employee, was violative of 7116(a)(1). The case
at bar presents a different situation. Tornquist did not prevent the
meeting between Cannizzaro and D'Elia, nor did he interfere with the
right of the Union representative to confer with the employee. In the
cited case the management official refused to verify the fact that the
union agent had already received permission to see the grievant.
Moreover, the record showed that the conduct displayed by management was
not an isolated incident but part of a larger problem in the office.
In the Internal Revenue Service, Louisville District case, supra, the
union steward was criticized by a chief of one of the employer's
division for calling the personnel office on behalf of an employee. /7/
The Chief upbraided the steward, stating the latter was "out of line";
that he sticks his nose into things and causes trouble -- that he had
done it again. These remarks, it was held, would be interpreted by a
reasonable employee to constitute management hostility toward the
steward's contacting the personnel office on behalf of an employee and
toward his representational activities. I view the aforesaid factual
situation far removed from the one at bar. The management official in
the cited case evinced a clear hostility to the efforts of the steward
to engage in his union duties and act on behalf of an employee who felt
aggrieved. Moreover, he admonished the steward to refrain from getting
involved in such representation. While Tornquist, in the instant case,
was upset that Cannizzaro had not solicited his approval beforehand, the
record does not support the conclusion that the Director declared or
implied that Cannizzaro should abstain from pursuing his
representational duties.
It is urged herein that calling Cannizzaro a "little union shit" was
anti-union in nature, and that the union official would necessarily
think twice before deciding to continue as D'Elia's representative.
This remark, however, was not made in the context of open hostility to
the Union. Neither was it made, in my opinion, in a deliberate attempt
to discourage Cannizzaro from continuing his representational duties.
The statement flowed from Tornquist's apparent slight at not being
contacted before Cannizzaro went to Toms River to see the grievant. As
such, the remark -- made solely to the Union official -- disparaged the
latter as a private conversation, and it may well be deemed an
expression of Tornquist's personal views rather than a position of
agency management. The language used by the Area Director, as well as
the cursing of the latter by Cannizzaro, may well have exceeded the
bounds of proper expression. However, passions were seemingly high,
and, in respect to the statement by Tornquist, I conclude any taint of
disparagement did not justify the conclusion that a reasonable man would
be coerced into discontinuing his representation of an aggrieved
employee. In sum, it is concluded that the Area Director's remarks did
not constitute interference, restraint or coercion and were not
violative of Section 7116(a)(1) of the Statute. See Army and Air Force
Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No. 69; Oklahoma
City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
FLRA No. 32.
It is therefore recommended that the Authority issue the following
Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 2-CA-50323 be,
and the same hereby is, dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Dated: February 19, 1986
Washington, D.C.
FOOTNOTES
(*) In response to the General Counsel's contention in its exceptions
that the cases relied upon by the Judge were not dispositive, the
Authority notes a recent case which involves similar facts and the same
determination. Department of the Air Force, 63rd Civil Engineers
Squadron, Norton Air Force Base, California, 22 FLRA No. 91 (1986).
(1) Subsequent to the hearing Respondent filed two motions with the
undersigned: (a) Motion, and an amendment thereto, to correct portions
of Respondent's post hearing brief, (b) Motion to Strike portions of
General Counsel's brief.
The Motion, and its amendment, to correct portions of Respondent's
brief constitute spelling and grammatical changes. No objection was
interposed thereto. Said Motion is granted as requested.
The Motion to Strike portions of General Counsel's Brief is based on
the fact that said brief refers to an article of a collective bargaining
agreement; that said agreement was never received in evidence and thus
no reference should have been made thereto. Apart from the fact that
said article of the agreement was acknowledged by Respondent's witness,
the undersigned has relied solely upon matters contained in the record
in his decision. The said Motion is denied. See Internal Revenue
Service, 16 FLRA No. 119.
(2) Although General Counsel neglected to introduce the agreement in
evidence, the Respondent's Area Director, Arne Tornquist, testified to
the existence of the agreement, as well as the quoted provision
requiring advance approval of the usage of official time by union
representatives.
(3) Several versions of this conversation were testified to by the
witnesses. The facts set forth herein represent the credited version
thereof.
(4) Approval of this form is official authorization to represent
someone at another office or location.
(5) Tornquist was the third-step grievance official who would
ultimately act as the hearing officer re D'Elia's grievance.
(6) Cannizzaro's intercession on behalf of employee D'Elia, and his
effort to discuss her grievance as a Union representative, are clearly
protected activities. Moreover, a union representative is entitled to
freedom to process grievances without harassment. However, the right is
not absolute. See Philadelphia Naval Shipyard, 4 FLRA No. 38.
(7) The employee, working at location A, had been selected to work at
location B. The steward was attempting to intercede for the employee in
an effort to have the job itself moved to location A so the employee
would not be required to move.
Case No. 0-AR-1233
Social Security Administration Mid-America Program Service Center
Activity
and
American Federation of Government Employees, National Council of
Social Security Payment Center Locals
October 22, 1986
DECISION
This matter is before the Authority on an exception to the award of
Arbitrator Joseph J. Nitka filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's decision is denied.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1234
National Archives and Record Administration, National Personnel
Records Center (Civilian Personnel Records), St. Louis, Missouri
Activity
and
American Federation of Government Employees, Council 260, Local 2928
Union
October 22, 1986
DECISION
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 and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., October 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1219
American Federation of Government Employees, Local 2187
Union
and
U.S. Army Engineer District Pittsburgh, Pennsylvania
Activity
October 14, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Samuel Spencer Stone filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 14, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1216
Panama Canal Commission
Agency
and
International Organization of Masters, Mates and Pilots
Union
October 14, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Donald P. Crane filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1169
Social Security Administration U.S. Department of Health and Human
Services Boston Region
Activity
and
American Federation of Government Employees, AFL-CIO, Local 1164
Union
October 14, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Albert G. Murphy filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C. October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1212
Social Security Administration Mid-America Program Service Center
Activity
and
American Federation of Government Employees, Local 1336
Union
October 9, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator John R. Thornell filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Order Denying Request for Reconsideration of 22 FLRA NO. 2)
Case No. 0-AR-1054
Patent and Trademark Office
Agency
and
Patent Office Professional Association
Union
October 9, 1986
ORDER DENYING REQUEST FOR RECONSIDERATION
I. STATEMENT OF THE CASE
This matter is before the Authority at this time on a request filed
by the Agency seeking reconsideration of the Authority's decision of
June 4, 1986, modifying the award of Arbitrator Robert B. Lubic.
II. BACKGROUND
In his award the Arbitrator determined that an earlier interest
arbitration award, as to which the Authority dismissed the Agency's
exceptions as untimely filed, was final and binding and that the Agency
was obligated to implement that award. In its exceptions to Arbitrator
Lubic's award, the Agency first contended that to the extent the award
was based on a negotiability determination it was deficient. The
Authority agreed and modified the award to strike that determination as
a basis for directing the Agency to implement the earlier award. The
Agency also contended that the award was deficient to the extent that
the Arbitrator enforced the interest arbitration award on the basis of
section 7122(b) of the Statute. The Agency argued that the disputed
provision of the interest arbitration award was inconsistent with
section 7106(a) of the Statute and consequently was not enforceable
under section 7122(b). The Authority denied the exception stating that
under the terms of section 7122(b), the interest arbitration award
"became final and binding and the Agency for all purposes was
unequivocally obligated to take the actions required by the award." Slip
op. at 4.
III. AGENCY'S REQUEST
In its request for reconsideration, the Agency essentially argues
that the Authority's decision is deficient because it fails to recognize
that the disputed provision in the interest arbitration award is
nonnegotiable and void ab initio. In support of its position, the
Agency essentially reiterates arguments made before the Authority in its
exception contending that the award was not enforceable under section
7122(b).
IV. ANALYSIS AND CONCLUSIONS
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to move for
reconsideration of a decision of the Authority. Here, however, 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 essentially constitute nothing more
than disagreement with the merits of the Authority's decision and an
attempt to relitigate the matter.
V. DECISION
Accordingly, the Agency's request for consideration is denied. /*/
Issued, Washington, D.C., October 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
/*/ The Agency's request for a stay of the Arbitrator's award is
likewise denied.
23 FLRA No. 84
H.Q., U.S. Army Training Center and Fort Jackson, Fort Jackson, S.C.
and Leroy W. Howell, An Individual, Case No. 4-CA-50066 (Decided
October 21, 1986)
STATUTE
7103(a) (10)
7116(a) (1) and (8)
7118
SUBJECT MATTER INDEX ENTRIES
Arbitration
Grievability - Arbitrability
Bargaining Unit Status of Grievant
Procedure
Forums
Clarification of Unit Determinations
Unfair Labor Practices
Interference
Statement that Grievant is a Supervisor
Procedure
Forums
Clarification of Unit Determinations
Not Germane to ULP Determination
DIGEST NOTES
An agency does not impede or obstruct the submission of unresolved
grievances to binding arbitration or otherwise violate the Statute by
maintaining a Position in processing an employee's grievance that the
employee is a supervisor, even if the agency later is found to have been
incorrect. Consequently, the agency did not violate section 7116(a)(1)
when it advised an employee that he could not file a grievance under the
terms of the applicable collective bargaining agreement because he was
not a bargaining unit employee. There was no evidence that any
management official, by statement or act, attempted to interfere with,
restrain, or coerce the employee from filing further appeals under the
negotiated grievance procedure.
An arbitrator may make a factual determination regarding the
bargaining unit status of a grievant in the course of deciding whether
the arbitrator has jurisdiction to resolve the grievance under the
negotiated grievance procedure. However, the negotiated grievance
procedure and arbitration may not be used in place of a clarification of
unit petition, i.e., the arbitrator may not determine the bargaining
unit status of an individual where the issue of status is not a
collateral question of grievability but instead is the essential issue
of the grievance.
Although it is appropriate in certain circumstances for an ALJ to
make unit determinations within the context of an unfair labor practice
proceeding, an ALJ should not determine the supervisory status of an
employee where, as in this case, the status of the employee is not
germane or necessary to his ULP determination.
Case No. 4-CA-50066 HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER
AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA
Respondent
and LEROY W. HOWELL, AN INDIVIDUAL
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Decision of the Administrative Law Judge filed by the
Charging Party, Leroy W. Howell. 1/ The complaint alleged that the
Respondent had violated section 7116(a)(1) of the Statute by advising
Howell that he could not file a grievance under the terms of the
applicable collective bargaining agreement because he was not a
bargaining unit employee. The issue before the Authority is whether the
Judge properly dismissed the complaint.
II. Background
On September 21, 1984, Howell sent a letter to his supervisor stating
that the letter served as official notification that he was grieving his
change in duty hours and requesting that the individual who was the
local union president represent him. The union president felt that he
could only represent Howell as an individual since Howell, in the
president's view, was a supervisor. Howell's supervisor returned what
he termed the "letter of grievance" for clarification, stating in
addition that Howell was a supervisor and must file the grievance under
the Department of the Army grievance procedure. In response to the
request for clarification, Howell replied, identifying the reply as step
1 of the "grievance procedure," seeking reinstatement of his previous
duty hours. He also requested clarification of the status of his
position as supervisory or nonsupervisory and again requested by name to
be represented by the local union president. Howell's immediate
supervisor maintained his original position that Howell was a supervisor
and could not file a grievance under the negotiated procedure.
Subsequently, Howell's supervisor processed the grievance under the
agency grievance procedure and denied the grievance at the first step.
He also stated, as to the request for representation, that the local
union president could be a personal representative under the agency
procedure, but could not represent Howell under the negotiated grievance
procedure.
After the rejection of his grievance by his immediate supervisor,
Howell filed the unfair labor practice charge against the Respondent
alleging that it had interfered with his right to file a grievance under
the negotiated grievance procedure. Howell did not pursue his grievance
under the negotiated grievance procedure. This choice appears to have
been made freely by Howell. There is no evidence that any management
official, by statement or act, attempted to interfere with, restrain, or
coerce Howell from filing further appeals under the negotiated grievance
procedure. And more specifically, there is no evidence that any
official of the Respondent indicated to Howell that Respondent would
have refused to participate in or respond to the invocation of further
grievance and arbitration procedures had he or the Union chosen to
invoke them. However, the Post Commander indicated in a subsequent
letter to Howell that he also supported the position taken by Howell's
supervisor.
III. The Judge's Decision
The Judge dismissed the complaint on the basis that Howell was a
supervisor and that consequently the Respondent did not violate the
Statute by refusing to process his grievance under the negotiated
grievance procedure.
IV. Exceptions
The Charging Party filed exceptions to the Judge's dismissal of the
complaint essentially arguing that the Judge erred by determining that
he, Howell, was a supervisor.
V. Analysis
The Authority adopts the Judge's conclusion that the complaint must
be dismissed, but not for the reasons stated by the Judge. Instead, the
Authority finds that there was no violation in the circumstances of this
case because the Respondent did nothing more than assert and maintain
its position that Howell was a supervisor who was not covered by -- and
therefore could not process a grievance under -- the negotiated
grievance procedure. An agency does not impede or obstruct the
submission of unresolved grievances to binding arbitration or otherwise
violate the Statute by maintaining a position in processing an
employee's grievance that the employee is a supervisor, even if the
agency later is found to have been incorrect. See Harry S. Truman
Memorial Veterans Administration Hospital, Columbia, Missouri, 11 FLRA
516 (1983), in which the Authority held that an agency has not impeded
or obstructed the submission of unresolved grievances to binding
arbitration merely by asserting that the matter in dispute was not
grievable or arbitrable.
In this case, the essence and substance of the Respondent's conduct
was an assertion of its position that the grievance was not subject to
the negotiated grievance procedure. Although the Respondent acted on
the dispute under the terms of the agency grievance procedure, the
General Counsel has failed to establish that the Respondent impeded or
obstructed the processing of the grievance under the negotiated
procedure. Rather, it would appear that Howell's immediate supervisor
merely maintained his original position that Howell, as a supervisor,
could not file a grievance under the negotiated procedure. In this
regard, the Authority notes that after the rejection of his grievance on
that basis, Howell did not attempt to continue processing the grievance
under the subsequent steps of the negotiated grievance procedure or seek
to have the Union invoke arbitration on his behalf. Instead, he
directly filed an unfair labor practice charge.
It is unlikely that had Howell pursued his grievance and exhausted
his appeals under the negotiated grievance procedure, that the matter
would have been resolved in arbitration. Both the Union and the Agency
were in agreement that he was a supervisor. /2/ Nevertheless, the only
avenue available to him under the Statute and the parties' collective
bargaining agreement was to exhaust the steps of the negotiated
grievance procedure and then attempt to persuade the Union to invoke
arbitration to resolve his grievance over the change in his hours of
work. If Howell had succeeded, the arbitrator would have had for
resolution the collateral threshold grievability/arbitrability issue
concerning whether Howell was in the bargaining unit or excluded as a
supervisor.
The Authority has held in this regard that an arbitrator may make a
factual determination regarding the bargaining unit status of a grievant
in the course of deciding whether the arbitrator has jurisdiction to
resolve the grievance under the negotiated grievance procedure.
National Archives and Records Service, General Services Administration
and Local 2578, American Federation of Government Employees, AFL-CIO, 9
FLRA 381, 383 (1982). The Authority cautioned, however, that the
negotiated grievance procedure and arbitration may not be used in place
of a clarification of unit petition. The Authority has found that an
arbitrator may not determine the bargaining unit status of an individual
where the issue of status is not a collateral question of grievability
but instead is the essential issue of the grievance. Office of Hearings
and Appeals, Social Security Administration, Department of Health and
Human Services ana Local 3615, American Federation of Government
Employees, AFL-CIO, 20 FLRA No. 96 (1985). Of course, the Union never
invoked arbitration and the Respondent never indicated that it would
refuse to participate in such a proceeding.
While we thus agree with the Judge's conclusion that the complaint
must be dismissed, we conclude that he need not and should not have made
a unit determination as to Howell's status and resolved the case on that
basis. It is appropriate in certain circumstances for an Administrative
Law Judge to make unit determinations within the context of an unfair
labor practice proceeding. 3/ However, in this matter the Judge's
supervisory status finding was not germane or necessary to his unfair
labor practice determination, and should not have been made in the
context of this proceeding. Rather, a question of an individual's
bargaining unit status and entitlement to use the negotiated grievance
procedure is a question of grievability and arbitrability for resolution
by an arbitrator when the question is raised as a collateral issue to a
grievance otherwise properly brought under the negotiated grievance
procedure. See, for example, Harry S. Truman Memorial Veterans
Administration Hospital, Columbia, Missouri, 11 FLRA 516 (1983).
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and accordingly affirms those rulings. The Authority has
considered the Judge's Decision, the positions of the parties and the
entire record, and adopts the Judge's findings and conclusions only to
the extent consistent with this decision. For the reasons set forth
above, we conclude that the Respondent's continued insistence that
Howell was a supervisor and was not entitled to use the negotiated
grievance procedure was not violative of the Statute. Thus, the
complaint must be dismissed.
ORDER
The complaint in Case No 4-CA-50066 is dismissed. Issued,
Washington, D.C., October 21, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 4-CA-50066 HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER
AND FORT JACKSON, FORT JACKSON, SOUTH CAROLINA
Respondent
and LEROY W. HOWELL, AN INDIVIDUAL
Charging Party Michael T. Russell, Esquire Ms. Virginia Combs
For the Respondent Richard S. Jones, Esquire
For the General Counsel Mr. Leroy W. Howell
Pro se 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 Sec.
7101 et seq., 1/ and the Final Rules and Regulations issued thereunder,
5 C.F.R. Sec. 2423.1, et seq., concerns whether Mr. Leroy W. Howell was
a supervisor within the meaning of Sec. 3 (a)(10) of the Statute. For
reasons set forth hereinafter, I find that Mr. Howell was a supervisor
and, accordingly, Respondent did not violate Sec. 16(a)(1) by refusing
to entertain Mr. Howell's grievance under the negotiated grievance
procedure. 2/ This case was initiated by a charge filed on November 1,
1984 (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on
January 25, 1985 (G.C. Exh. 1(c)), the hearing to be held on March 19,
1985, at a place to be designated; and by Order dated February 21,
1985, the place of hearing was designated (G.C. Exh. 1(f)), pursuant to
which a hearing was duly held on March 19, 1985, in Columbia, South
Carolina, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and were afforded opportunity
to present oral argument. At the close of the hearing, April 22, 1985,
was fixed as the date for mailing post-hearing briefs and the General
Counsel and Respondent 3/ each timely filed a brief, received on, or
before, April 24, 1985, which have been carefully considered. Based
upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings and conclusions:
Findings and Discussion
Sec. 3(a)(10) of the Statute defines "supervisor" as follows:
"(10) "supervisor" means an individual employed by an agency
having authority in the interest of the agency to hire, direct,
assign, promote, reward, transfer, furlough, layoff, recall,
suspend, discipline, or remove employees, to adjust their
grievances, or to effectively recommend such action, if the
exercise of the authority is not merely routine or clerical in
nature but requires the consistent exercise of independent
judgement, except that, with respect to any unit which includes
firefighters or nurses, the term "supervisor" includes only those
individuals who devote a preponderance of their employment time to
exercising such authority;"
Mr. Leroy W. Howell, the Charging Party, has been employed at Fort
Jackson since October 29, 1967. In 1982, Mr. Howell's title was "Lead
Sports Specialist"; but on August 8, 1982, his title was changed to
"Supervisory Sports Specialist" (G.C. Exh. 2). At that time, Mr.
Howell was, as he testified,". . . in charge of the Morale Support
Gymnasium (Lee Field House). I had control of the Gymnasium, 1 managed
the gymnasium, I directed the work force there and I had a staff which
comprised of sometimes 8 to 10 military and 3 civilians. . . ." (Tr.
35). In December, 1982, Mr. Howell left Fort Jackson for an overseas
assignment which was expected to last at least three years; however,
because of illness, Mr. Howell returned to Fort Jackson in January,
1984, in a sick leave status, and underwent heart by-pass surgery in
January, 1984, and in July, 1984, had double hernia surgery. As a
result, except for limited periods and restricted activity, Mr. Howell
did not return to full duty, full time until late August, 1984.
When Mr. Howell left for overseas duty his position of Supervisory
Sports Specialist remained encumbered for him upon his return from the
overseas assignment. The position of Supervisory Sports Specialist was
filled in the fall of 1983 by Dr. Carporvitz (Tr. 158). In December,
1983, the Physical Activities Branch (Res. Exh. 8), now Recreation
Division (Res. Exh. 7), gave up Lee Field House (Moral Support
Gymnasium) and received another building, Perez Center, several blocks
from Lee Field House (Tr. 172); however, in December the Perez Center
was being used temporarily by the Nursery (Tr. 226). It was planned
that Perez Center would be operated as a health spa type facility for
physical fitness and, specifically, be designed and constructed to
provide privacy, especially for females (Tr. 172A). Extensive
renovation was undertaken and the Perez Center was not opened until May,
1984 (Tr. 172-172A).
Initially, Dr. Carporvitz, as had Mr. Howell prior to his departure,
was in charge of Lee Field House and had under his supervision Messrs.
Cook and Trakas (both GS-5's), Mr. Mitchell (GS-3) and two full-time
military physical fitness specialists (an E-5 and an E-3), which was
essentially the same complement as had been directed by Mr. Howell -
indeed both Mr. Cook and Mr. Trakas had been under Mr. Howell's
supervision and, while Mr. Howell testified he had three civilians, Mr.
Mitchell did not come over into Sports until 1983. With the loss of Lee
Field House, in December, Dr. Carporvitz was placed in charge of
Outdoors Recreation and of Perez Center, although, as noted, Perez
Center did not become an operating facility until May, 1984, and Messrs.
Cook, Trakas and Mitchell, after the loss of Lee Field House, worked
entirely on grounds maintenance and on Outdoors Recreation facilities.
Lt. Colonel Gibson, Mr. Howell's and Dr. Carporvitz's overall
supervisor (Tr. 154) testified, without contradiction, that Dr.
Carporvitz functioned as a supervisor (Tr. 135, 162, 163, 164, 166,
167). Mr. John Everett, who, as Sports Director, had been Mr. Howell's
immediate supervisor, left in August, 1983 (Tr. 129, 130). He was
succeeded by Mr. William John Rashleigh who began work in January, 1984,
shortly before Mr. Howell returned (Tr. 221). At, or shortly after, Mr.
Rashleigh's arrival, Mr. Trakas was transferred to Mr. Rashleigh's
supervision (Tr. 183, 222).
Col. Gibson, a very credible witness, testified that when Mr. Howell
arrived in January, 1984, he offered him one of two positions: either
Dr. Carporvitz's position (new Perez Fitness Center and Outdoor
Recreation) or Supervisor of Weston Lake. Col. Gibson stated that Mr.
Howell indicated that he wanted his old position back, which was
essentially the one that Dr. Carporvitz had, and that he, Col. Gibson,
said ". . . fine, you have that, and Dr. Carporvitz will go out to
Weston Lake". (Tr. 172B).
4/ Accordingly, Mr. Howell, nominally took over both the Perez Center
and Outdoor Recreation in January, 1984; however, because Mr. Howell
was on sick leave, and shortly thereafter had heart by-pass surgery, he
was unable to undertake the coordination and supervision of the
extensive renovation project to get the Perez facility ready for
operation (Tr. 174). Subsequently, Col. Gibson decided to recruit a
full time manager for the Perez Fitness Center and to remove those
duties from Mr. Howell, leaving him with Programming and Supervising
the Outdoor facility section (Tr. 174). Mr. Howell testified that he
did not "even" report for work until March 15, 1984, "or somewhere
around there". (Tr. 92). From the time Mr. Howell reported to work,
only Mr. Cook remained full time under his supervision, although from
time to time military personnel were assigned on detail and, later,
during the summer, he had CETA employees. Mr. Cook left in June, 1984
(Tr. 84), for employment with the Columbia Post Office (Tr. 133). Mr.
Trakas' job had been abolished shortly before Mr. Cook's departure (Tr.
201) and when Mr. Cook left, Mr. Trakas, on a non-competetive basis,
"rolled over" to the vacant position (Tr. 176-177) so that Mr. Howell's
staff remained at one full time civilian employee. As noted above, Mr.
Howell was on sick leave again from July 17 to August 27, 1984 (Tr. 91).
At least two other full time positions are authorized for Mr.
Howell's staff but due to lack of appropriations remain unfilled (Tr.
178-179). With the beginning of the new fiscal year in October, 1984,
recruitment was undertaken to fill one of the authorized Recreation Aid
slots. Mr. Howell testified that Mr. Rashleigh recommended that he,
Howell, hire a Mr. Russell (Rusty) Smith (Tr. 51); but Mr. Howell knew
that Mr. Smith had had trouble with his supervisors and, after
interviewing Mr. Smith, Mr. Howell declined to hire Mr. Smith and asked
for a new list with at least three names on it (Tr. 52-53). The
recruitment action was on-going at the time of the hearing; but it is
clear that Mr. Howell has the responsibility to select, and will select,
the new member of his staff (Tr. 178-179). Col. Gibson stated that,
because of the continuing shortage of appropriated funds, the position
will now be filled as a non-appropriated fund position.
Conclusions
It is clear that Mr. Howell's position description clothes him with
all authority of a supervisor. General Counsel asserts that
notwithstanding his apparent authority, i.e., the duties specified in
his job description, Mr. Howell has never exercised sufficient authority
to constitute him a supervisor. Thus, General Counsel asserts that Mr.
Howell has never made an annual performance appraisal for any employee.
Mr. Cook stated that Mr. Howell was his supervisor; but was "not sure"
and couldn't remember (Tr. 134) whether Mr. Howell ever signed any of
his performance appraisals. Mr. Rashleigh testified that he had seen a
performance appraisal for Mr. Cook signed by Mr. Howell before Mr.
Howell left for his overseas assignment (229-230). While it is true
that no performance appraisal for Mr. Cook signed by Mr. Howell was
introduced as an exhibit, it is at least equally significant that no
performance appraisal for any employee, i.e., Cook, Trakas, Mitchell or
full-time military sports specialists, was shown to have been made after
Mr. Howell was made a supervisor on August 8, 1982, and prior to his
departure for Europe in December, 1982. Stated otherwise, Mr. Howell
was a supervisor only from August 8, 1982, until his departure in
December, 1982, and there is no evidence whatever that performance
appraisals were made by any other supervisor for any employee under his
supervision after he became a supervisor in August until he left in
December, which would have detracted seriously from his having been a
true supervisor. On the other hand, if no performance appraisals were
"due" during this period, the fact that Mr. Howell had no occasion to
appraise employees would be meaningless.
It is true that Mr. Howell has not made a performance appraisal for
Mr. Trakas since Mr. Trakas was assigned to him in June, 1984; but the
record is clear that he has not done so for the simple reason that none
was "due" for Mr. Trakas. It is also clear that Mr. Howell will
appraise Mr. Trakas in the future. More important, Mr. Howell, as Mr.
Cook's then first line supervisor, did decide three grievances which had
been filed by Mr. Cook 5/ (Res. Exh. 2, 3 and 4). Mr. Howell testified
that he told Col. Gibson ". . . I can help you get rid of those
hang-over grievances" (Tr. 61); and Mr. Howell wrote the draft of each
letter. The fact that Mr. Kinlaw, then a Labor Relations Specialist,
put each in proper format does not detract from the fact that Mr. Howell
made each decision (Tr. 258 - 259). Mr. Howell prepares schedules for
his employees and, in doing so, can and does change the normal duty
hours to meet changing needs. Having scheduled Mr. Cook's hours, Mr.
Howell, shortly before Mr. Cook left Fort Jackson in June, 1984,
declined to change his hours in the belief that two week notice was
required (Tr. 247). Mr. Rashleigh believed the Regulations permitted
hours of duty to be changed without two weeks notice and changed Mr.
Cook's hours when he was needed to handle a boxing smoker. When Mr.
Cook filed a grievance, Mr. Howell declined to act as the step 1
supervisor ". . . because . . . I think he agreed with the grievance and
therefore didn't want to be involved in making a judgement" (Tr. 229)
and Mr. Rashleigh acted on it (Tr. 229, 247-248). However, even in
this instance, Mr. Howell exhibited independent judgment by refusing to
take action he believed wrong even though his supervisor disagreed and
Union President Brown agreed with Mr. Rashleigh's action (Tr. 248).
Mr. Trakas testified that Mr. Howell is his supervisor; Mr. Howell
does direct the work of Mr. Trakas, detailed military, and CETA
employees; Mr. Howell can, and does recommend overtime (Tr. 248-249);
and Mr. Howell has shown wholly independent judgment in selecting a new
employee for his staff. Mr. Howell has the authority to exercise all
functions of a supervisor, has exercised such authority when required,
e.g., in deciding grievances and employing a new staff member, and will
exercise other authorized supervisory duties as they arise, e.g., making
employee appraisals. The fact that a supervisor has only one employee
under his supervision does not mean that such person is not a supervisor
within the meaning of the Statute. Headquarters III Corps and Fort
Hood, Fort Hood, Texas, 13 FLRA No. 84, 13 FLRA 479 (1983); The
Adjutant General, Delaware National Guard, 9 FLRA No. 1, 9 FLRA 3, 9
(1982). Here, of course, Mr. Howell not only supervises one full-time
employee, Mr. Trakas, but a second full-time employee is being recruited
for his staff, with a third full-time slot being authorized and awaiting
only the availability of funds. In addition, Mr. Howell supervises
military personnel on detail 6/ and CETA, or equivalent, employees.
Accordingly, I conclude that Mr. Howell was, and is, a supervisor
within the meaning of the Statute and, therefore, was not subject to the
terms of the negotiated agreement and Respondent did not violate the
Statute by refusing to entertain his grievance under the negotiated
agreement. Therefore, I recommend that the Authority adopt the
following:
ORDER
The Complaint in Case No. 4-CA-50066 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 20, 1985
Washington, DC
FOOTNOTES FROM DECISION AND ORDER
1/ The Respondent filed a motion to dismiss the exceptions. However,
no basis is provided for dismissing the exceptions under the Authority's
Rules and Regulations.
2/ Similarly, since there was no disagreement between the exclusive
representative and the activity -- the parties to the collective
bargaining relationship -- concerning the composition of the unit for
which the Union was certified, a clarification of unit (CU) proceeding
would be unavailable. See section 2422.1(d) of the Authority's Rules
and Regulations, which only provides for the filing of a CU petition "by
an activity or agency or by a labor organization which is currently
recognized by the activity or agency as an exclusive representative."
3/ See, for example, Internal Revenue Service Seattle District, 12
FLRA 324 (1983) and National Archives and Records Service and National
Archives Trust Board, General Services Administration, Washington, D.C.,
9 FLRA 413 (1982), wherein the Authority found that management violated
section 7116(a)(1) and (8) of the Statute by removing employees from
dues withholding in the erroneous belief that the employees had become
supervisors.
FOOTNOTES FROM DECISION
1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
as "Sec.16(a)(1)".
2/ Mr. Howell declined to process his grievance under the Department
of Army grievance procedure. (Tr. 20).
3/ Respondent submitted a single copy of its brief, entitled "Closing
Argument" rather than an original and four copies required by Sec.
2423.25 of the Regulations.
4/ Dr. Carporvitz left abruptly at the end of January, 1984 (Tr. 221)
for a better paying position in Manila (Tr. 199-200).
5/ The grievances appear to have been filed March 19, 1984. In view
of Mr. Howell's absence on sick leave, it is understandable that Mr.
Cook was uncertain who his supervisor was at that time. Each of Mr.
Howell's decisions is dated 3 March 1984 which date obviously is
incorrect. In all probability the date of each decision was March 30,
1984, or possibly April 2-5, as each was received by the Civilian
Personnel Office on April 5, 1984, at 3:15 p.m.
6/ In view of the wording of the Statute which excludes "a member of
the uniformed services" as an employee (Sec. 3(a)(2)) and the definition
of supervisor to supervise "employees", if a person supervises only
military personnel, that person is not a supervisor within the meaning
of the Statute; however, if that person supervises one or more
employees, then the supervisory authority over military personnel may
also be considered.
23 FLRA NO. 83
Dep't of the Air Force, Eielson Air Force Base, Alaska and AFGE, Case
No. 9-CA-30009 (Decided October 16, 1986)
STATUTE
7103(a)(14)
7114(b)(2)
7116(a)(1) and (5)
7118
SUBJECT MATTER INDEX ENTRIES
Negotiability
Compelling Need
Issue Concerning Organizational Level
Unfair Labor Practices
Agency Violations
Refusal to Negotiate
Exchange and Concession Privileges for Civilians
Conditions of Employment
Adequate Living Conditions in Central Alaska
Remedies
Status Quo Ante
Criteria, Violation Involved
Bargaining Unit Employees
Significant Effect on Working Conditions
Violation Based on Agency's Failure to Negotiate
Substance of Decision
DIGEST NOTES
Employee patronage privileges at a base exchange in central Alaska
(including the main exchange, groceteria, gas station, and furniture
store) and base concessions (including a beauty shop, barber shop,
laundromat, and movie theatre) are matters concerning conditions of
employment within the meaning of section 7103(a)(14). The agency
granted employees these privileges originally to insure that employees
maintain adequate living conditions in connection with their employment
and so that the agency could maintain a sufficient and stable civilian
workforce. To deny employees these privileges, which the agency sought
to do, would require many employees to regularly commute distances --
for routine household necessities -- of at least 26 mile round trip, in
winter conditions which are difficult and dangerous. Therefore the
agency violated sections 7106(a)(1) and (5) by refusing to negotiate
over the change in conditions of employment.
Contrary to the agency's contention, its denial of the privileges was
not based on a compelling need. Under section 7114(b)(2), an agency is
obligated to provide representatives at the level of bargaining who are
authorized to negotiate and enter into agreements on all matters within
the scope of negotiations. This statutory obligation cannot be obviated
by an agency's internal regulations or the delegation of control over
the subject matter to management officials at an organizational level
other than the level of bargaining.
A status quo ante remedy is appropriate where management unilaterally
terminated base exchange and concession privileges of civilian employees
who lived and worked in a remote area of Alaska, a matter affecting
conditions of employment. Where management refuses to negotiate over a
change involving negotiable terms and conditions of employment, a status
quo ante remedy is appropriate, absent special circumstances, in order
not to render meaningless the mutual obligation to negotiate.
Case No. 9-CA-30009
DEPARTMENT OF THE AIR FORCE EIELSON AIR FORCE BASE, ALASKA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1836, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority on exceptions filed by the
Respondent to the attached Decision of the Administrative Law Judge.
The Charging Party (the Union) has filed an opposition. The case
concerns whether the Respondent failed and refused to bargain in
violation of section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by terminating
patronage privileges for civilian employees at the Base Exchange and
concessions at Eielson Air Force Base in September 1982.
We concur with the Judge's conclusion that the Respondent violated
the Statute as alleged, and his recommended remedy, with modified
reasoning.
II. Background
The Respondent's facility, Eielson Air Force Base (the Base), is
located in the middle of Alaska, about 26 miles east/southeast of
Fairbanks and 300 miles from the Canadian border. In January 1983 its
workforce included about 3000 military personnel and about 350 civilian
employees. The Union is the exclusive representative for about 230 of
the Respondent's civilian employees, including nonappropriated fund
employees.
As found by the Judge, for about 17 years prior to 1982, the
Respondent had a practice of granting its civilian employees patronage
privileges at the Base Exchange (including the main exchange,
groceteria, gas station, and furniture store) and Base concessions
(including a beauty shop, barber shop, laundromat, and movie theater).
The privileges were extended to employees who lived off-base and more
than 13 miles from Fairbanks (more than halfway toward the Base along
the main highway -- the "Old Richardson Highway" -- between the Base and
Fairbanks).
According to the record, the Respondent started the practice of
granting the Exchange and concession privileges to civilian employees
because there were few if any shopping and service facilities then
available to employees living off-base, in the vicinity of the Base.
Although these facilities were present in Fairbanks, the roads between
Fairbanks and the vicinity of the Base were difficult and especially
dangerous for travel in winter months. For these reasons, it was
difficult for employees at the Base to maintain adequate standards of
living without the Exchange and concession privileges. The Respondent
granted the privileges for these reasons in order to maintain a
sufficient and stable civilian force and routinely requested of the
Alaskan Air Command that the privileges be continued for these reasons.
The existence of these privileges had been described in an Alaskan Air
Command pamphlet which purported to provide "prospective employees with
information about the Air Force mission, and living and working
conditions in Alaska."
On April 22, 1981, the Respondent notified the Union that action had
been initiated to extend Exchange privileges through December 31, and
that negotiations should begin for an extension beyond that date. The
Union was asked for its position on continuing or changing the method of
extending Exchange privileges. The Union requested negotiations with
respect to the privileges, but did not submit a written position. At a
subsequent negotiation session in December 1981, covering a range of
other matters, the Respondent offered its reasons for terminating the
Exchange privileges and the Union offered its reasons for continuing the
established past practice. At the conclusion of this meeting the
parties agreed to this Memorandum of Understanding (MOU):
The agency determination to withdraw limited Exchange
Privileges to civilian employees is based upon compelling need to
avoid undue impairment to military personnel resulting from
programmed increases due to mission change. However, the parties
agree that the present convenience should continue until such time
that the agency's study shows the adverse impact and affords the
Union opportunity to accept or reject the study.
The Respondent's study of the situation, once completed, was provided
to the Union in June 1982, with notice that the Exchange privileges
would end on July 30, 1982. The study concluded that the termination of
the Exchange privileges was necessary to ensure adequate service for
military personnel and because substitute facilities were available
off-base -- primarily at North Pole, Alaska, 13 miles toward Fairbanks
on the Richardson Highway. The Union advised the Respondent that it
disagreed with the study and requested negotiations.
The parties met in late July 1982. The Union explained its
objections to the study and the termination of the Exchange privileges,
and reasserted its bargaining rights. The Respondent rejected the
bargaining request, taking the position it had no duty to bargain. The
Respondent asserted that the parties had already agreed, under the MOU
of December 1981, that the termination of the Exchange privileges was
nonnegotiable, because the Exchange privileges did not concern
conditions of employment. The Respondent stated that the Exchange
privileges would end on July 30, 1982. The Respondent assured the Union
that it would coordinate the procedures used for the change and that the
concession privileges would continue.
In August 1982, the Respondent advised the Union that the concession
privileges would also be terminated and changed the effective date from
July 30 to September 30, 1982. The Respondent terminated the Exchange
and concession privileges in September 1982.
The Judge decided that the Respondent violated section 7116(a)(1) and
(5) of the Statute as alleged in the complaint. He concluded that the
Exchange and concession privileges concerned conditions of employment of
the employees under section 7103(a)(14) of the Statute. He also
concluded that negotiations on the privileges were not barred by a
"compelling need" for agency regulations -- Department of Defense
Directives and Department of the Air Force Regulations -- under section
7117 of the Statute. To remedy the violation, he recommended that the
Respondent be ordered to reinstate the privileges it terminated in
September 1982 and to negotiate over the terminations as requested by
the Union.
III. Positions of the Parties
The Respondent argues that the continuation of the Exchange and
concession privileges did not concern conditions of employment under
section 7103(a)(14) of the Statute. It argues that a compelling need
exists for Agency regulations, Department of Defense Directives and Air
Force Regulations, so as to bar negotiations on the privileges at the
level of exclusive recognition and that the Judge erred in deciding
these compelling need issues under section 7117 of the Statute in the
unfair labor practice proceeding. For these reasons the Respondent
argues that it was not obligated to negotiate on the continuation of the
privileges. Assuming that it was obligated to negotiate on these
matters, the Respondent argues that it discussed the matters with the
Union so as to fulfill its duty to negotiate. The Union supports the
Judge's decision.
IV. Analysis
A. Did the termination of the employees' privileges at the
Base Exchange and concessions concern the employees'
conditions of employment under section 7103(a)(14) of
the Statute?
In Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA No. 23 (1986), we explained the two
basic factors which determine whether a matter proposed for negotiations
involves a condition of employment of bargaining unit employees:
(1) Whether the matter proposed to be bargained pertains to
bargaining unit employees; and
(2) The nature and extent of the effect of the matter proposed
to be bargained on working conditions of those employees.
Applying the Antilles analysis to the matters at issue in this case,
it is apparent that the first factor is satisfied. The Union has sought
negotiations on the terminations of existing privileges for employees it
represents in a unit of exclusive recognition.
Regarding the second factor, while the privileges here are directly
analogous to the privileges in Antilles, the circumstances of the
privileges in this case differ from the circumstances in Antilles. In
Antilles, the Union sought to create new privileges at the agency's
retail, recreational, and medical facilities. The Union provided no
evidence and the record failed to reveal how employees' access to the
facilities was related to the employees' working conditions. For these
reasons, in Antilles, we held that the privileges were not concerned
with the employees' conditions of employment so as to be within the
agency's duty to bargain.
The privileges in this case had been continued over a long period of
time and had been described as a part of "living and working conditions
in Alaska." They were established by the Respondent because they were
necessary in order to ensure that employees could maintain adequate
living conditions in connection with their employment and so that the
Respondent could maintain a sufficient and stable civilian workforce.
The hearing testimony shows that some employees have located their homes
along the Old Richardson Highway southeast of the Base toward the
Canadian border. Although commercial facilities have been developed at
North Pole, Alaska, 13 miles northwest of the Base, these employees' use
of the commercial facilities would require regular commuting distances
-- for routine household necessities -- of at least 26 miles round trip,
in winter conditions which are difficult and dangerous.
On the basis of these facts and circumstances, the second factor in
the test set forth in Antilles has been met. The matter proposed to be
bargained, the extent and manner in which the Exchange and concession
privileges will be terminated, concerns conditions of employment under
section 7103(a)(14) of the Statute. See Department of the Army, Dugway
Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986); U.S. Department of
Justice, U.S. Immigration and Naturalization Service, 14 FLRA 578
(1984).
B. Do Agency regulations for which a compelling need
exists bar negotiations on the termination of the
privileges?
In Antilles and Overseas Education Association, Inc. and Department
of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Union
Proposal 5), petition for review filed, Overseas Education Association
v. FLRA, No. 86-1491 (D.C. Cir. September 3, 1986), the agencies argued
that the parties could not negotiate the matters at issue because
control over the subject matter had not been delegated to management
officials at the level of bargaining. The Respondent offers essentially
the same argument in this case. As we explained in Antilles and
reiterated in Office of Dependents Schools, an agency may not foreclose
bargaining on an otherwise negotiable matter because authority does not
reside at the level of exclusive recognition.
Under section 7114(b)(2) of the Statute, an agency is obligated to
provide representatives at the level of bargaining who are authorized to
negotiate and enter into agreements on all matters within the scope of
negotiations. For example, American Federation of Government Employees,
AFL-CIO, Local 1409 and U.S. Army Adjutant General, Publications Center,
Baltimore, Maryland, 18 FLRA No. 68 (1985). This statutory obligation
to provide authorized representatives for negotiations cannot be
obviated by an agency's internal regulations. In contrast, the matters
which such authorized representatives can negotiate, that is, the scope
of bargaining at the level of negotiations, may be limited by internal
regulations for which a compelling need exists under section 7117 of the
Statute. See, for example, National Federation of Federal Employees,
Local 1429 and U.S. Department of the Army, Letterkenny Army Depot, 23
FLRA No. 13 (1986) (the agency regulation at issue set the number of
hours which local management could authorize for an excused absence).
The Respondent's argument that the Judge could not decide whether a
compelling need exists for its regulations is inapposite because the
argument concerns the organizational level to which authority had been
delegated rather than compelling need. Even assuming that this argument
was relevant to this case, the position urged by the Respondent is
inconsistent with established Authority precedent. In Defense Logistics
Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub
nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985),
the Authority held that compelling need determinations may appropriately
be decided in an unfair labor practice proceeding. But see United
States Army Engineer Center v. FLRA, 762 F.2d 409 (4th Cir. 1985),
reversing U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707
(1984). We reaffirmed this conclusion with further reasoning in
Aberdeen Proving Ground, Department of the Army, 21 FLRA No. 100 (1986),
petition for review filed Aberdeen Proving Ground, Department of the
Army v. FLRA, No. 86-2577 (4th Cir. June 26, 1986).
C. Does the Respondent fulfill its duty to bargain?
As found by the Judge, the Respondent discussed its decision to
terminate the Exchange privileges with the Union in December 1981 and
July 1982. However, the Respondent rejected the Union's request for
negotiations stating, at all times, that it would not negotiate on the
termination of the privileges. Agreeing with these findings of the
Judge and his finding that the Respondent's interpretation of the
parties' MOU of December 1981 is untenable, we concur with his
conclusion that the Respondent failed to fulfill its statutory duty to
bargain.
V. Conclusion; remedy
The termination of the Exchange and concession privileges at issue in
this case concerned conditions of employment of employees under section
7103(a)(14) of the Statute. Agency regulations do not bar negotiations
on the privileges by the Respondent at the level of exclusive
recognition. The Respondent failed to fulfill its duty to bargain on
these matters. Accordingly, we conclude that the Respondent violated
section 7116(a)(1) and (5) of the Statute as alleged in the complaint.
The Authority has previously determined that where management has
made a unilateral change in a negotiable term and condition of
employment, effectuation of the purposes and policies of the Statute
requires imposition of status quo ante remedies, absent special
circumstances, in order not to render meaningless the mutual obligation
to negotiate. Veterans Administration, West Los Angeles Medical Center,
Los Angeles, California, 23 FLRA No. 37 (1986) (n.3 and accompanying
text). The Respondent has not excepted to the Judge's recommended
status quo ante remedy and it has not shown that special circumstances
exist so as to negate the imposition of such a remedy. In these
circumstances we decide that a status quo ante remedy is warranted.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of the Air Force, Eielson Air Force Base, Alaska,
shall:
1. Cease and desist from:
(a) Unilaterally terminating Exchange and concession privileges at
Eielson Air Force Base for employees represented by the American
Federation of Government Employees, Local 1836, AFL-CIO, without first
providing the American Federation of Government Employees, Local 1836,
AFL-CIO, with the opportunity to negotiate these changes.
(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 to effectuate the purposes
and policies of the Federal Service Labor-Management Relations Statute:
(a) Restore the Exchange and concession privileges for employees
represented by the American Federation of Government Employees, Local
1836, AFL-CIO, which existed prior to the termination of the privileges
in September 1982.
(b) Notify and, upon request, negotiate with the American Federation
of Government Employees, Local 1836, AFL-CIO, concerning any change in
Exchange and concession privileges for employees represented by the
American Federation of Government Employees, Local 1836, AFL-CIO.
(c) Post at its facility copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commander, Eielson Air Force
Base, Alaska, 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 Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
IX, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.
Issued, Washington, D.C., October 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee,Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally terminate the Exchange and concession
privileges at Eielson Air Force Base for employees represented by the
American Federation of Government Employees, Local 1836, AFL-CIO,
without first affording the American Federation of Government Employees,
Local 1836, AFL-CIO, with the opportunity to negotiate these changes.
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 restore the Exchange and concession privileges for employees
represented by the American Federation of Government Employees, Local
1836, AFL-CIO, which existed prior to the termination of the privileges
in September 1982.
WE WILL notify and, upon request, negotiate with the American
Federation of Government Employees, Local 1836, AFL-CIO, concerning any
change in Exchange and concession privileges for employees represented
by the American Federation of Government Employees, Local 1836, AFL-CIO.
(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 94103-9991, and
whose telephone number is: (415) 995-5000.
Case No. 9-CA-30009
DEPARTMENT OF THE AIR FORCE, EIELSON AIR FORCE BASE, ALASKA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1836, AFL-CIO
Charging Party
Major Charles L. Brower, Esquire
For the Respondent
Stefanie Arthur, 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 IX, Federal Labor Relations Authority, San
Francisco, California against the Department of the Air Force, Eielson
Air Force Base, Alaska (Respondent), based on charges filed by the
American Federation of Government Employees, Local 1836, AFL-CIO
(Charging Party or Union). The complaint alleged, in substance, that
Respondent violated sections 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
Statute), by refusing to negotiate with the Union regarding the
Respondent's decision to discontinue limited base exchange privileges
enjoyed by certain employees in the bargaining unit represented by the
Union and by unilaterally discontinuing such privileges. /1/
Respondent's answer, or stipulation, admitted the jurisdictional
allegations relating to the Respondent, Charging Party, and the filing
of the charges, but denied any violation of the Statute.
A hearing was held in Fairbanks, Alaska. The Respondent, and the
General Counsel, FLRA were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and the General Counsel filed helpful briefs, and the proposed findings
have been adopted in whole or in substance where found supported by the
record as a whole. Based on the entire record, /2/ including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
Congressional Interest in Military Exchanges
Military exchanges are essential to the morale and esprit de corps of
military personnel. They insure that adequate supplies of household
necessities are available at reasonable rates to persons in the military
service who are unable to select the location in the world where they
perform their duties. /3/ Consequently, various subcommittees of the
U.S. House of Representatives Armed Services Committee (HASC) have, over
the years, shown considerable concern about the use of military exchange
by unauthorized patrons. (R.Ex. 9, p. 12344).
In consonance with the recommendations of a subcommittee of the HASC,
and in order to curb abuses found by that subcommittee, the military
services jointly issued in 1949 the Armed Services Exchange Regulations
(ASER), forerunner of the current Department of Defense Directive (DODD)
1330.9 (R.Ex. 9, p. 12349). The subcommittee, then as today, was
especially interested in establishing uniform guidelines under which all
armed forces exchanges would operate (R.Ex. 9, pp. 12349-50).
In 1957 a HASC subcommittee expressed considerable concern regarding
the seemingly liberal interpretation prevalent in the services in
granting deviations from both the list of authorized exchange resale
items and the list of authorized exchange patrons (R.Ex. 9, p. 12355,
3rd and 7th paragraphs). Similarly, in 1970 a HASC subcommittee
concluded that with respect to exchange operations, the Office of the
Secretary of Defense (OSD) was providing too little direct policy
determination and very limited surveillance (R.Ex. 9, p. 12354).
Consequently, pursuant to the recommendations of the subcommittee, the
ASER was amended to require that all deviations from the regulations be
approved by the Assistant Secretary of Defense (Manpower and Reserve
Affairs) and the HASC itself (R.Ex. 9, p. 12356; R.Ex. 10, p. 15162;
and R.Ex. 11, p. 16635, last partial paragraph).
Finally, in 1972 yet another HASC subcommittee considered, among
other things, the issue of deviations from the ASER. The subcommittee
concluded,
(T)he office of the Assistant Secretary of Defense (MRA) has
clearly established the desirable philosophy of complete
justification of each deviation; and, . . . the services are now
properly aware of the desires of the subcommittee and OSD
regarding stringent application of deviation authorizations. In
view of the effective action taken, this subcommittee concludes
that approval of each deviation by the House Armed Services
Committee is no longer required.
Accordingly, the subcommittee recommends the previous authority
of the service Secretaries to authorize deviations, without
further delegation, should be restored. (R.Ex. 11, p. 16636).
The Regulations
Department of Defense Directive (DODD) 1400.6, dated February 15,
1980, entitled, "DOD Civilian Employees in Overseas Areas," (R.Ex. 7),
applies to civilian employees in Alaska; DODD 1330.9, dated July 8,
1980, entitled, "Armed Services Exchange Regulations", (R.Ex. 6), sets
forth uniform policies relating to the operation of the Army, Navy, Air
Force, and Marine exchanges; and Air Force Regulation 147-14, dated
November 15, 1978, entitled, "Army and Air Force Exchange Operating
Policies", (G.C. Ex. 2), sets forth the operating policies of the Army
and Air Force Exchange Service (AAFES).
Since at least November 15, 1978 Air Force Regulation (AFR) 147-14,
paragraph 2-10 has provided that in Alaska, among other places, limited
exchange and motion picture theater privileges may be extended to the
following persons and organizations:
a. Civilian employees with transportation agreements and their
dependents who are employees of the U.S. Government including
those paid from nonappropriated funds.
b. Specific categories of personnel or organizations
authorized by the responsible commander when determined to be in
the best interest of the mission of the command concerned . . .
(G.C. Ex. 2).
Appendix D to AFR 147-14 is to be used in evaluating requests for
exceptions to normal patronage rules. (Tr. 158). The criteria includes
personal hardship, whether adequate commercial retail facilities are
available, and the degree of difficulty involved in visiting such
facilities. Appendix D also indicates that requests from installation
commanders for exceptions are to go through command channels to the
appropriate Secretary of the Department concerned for approval. (R.Ex.
3).
Pursuant to DODD 1330.9, DOD civilian employees, working on, but
residing off, Alaskan military reservations are granted limited
privileges of the fountain, snack bar, and restaurant when the local
commanding officer determines that these facilities are not conveniently
available from other sources. Only the Secretary of the Military
Department (the Air Force in this case) may grant deviations involving
patron privileges, and then only if deviation is necessary to alleviate
individual hardship. The Directive requires that such deviations be
reviewed annually and that a report be submitted specifying such
deviations and their justifications.
Section 1-100 of DODD 1330.9 provides that "supplementary rules,
regulations, and directives of the Military Departments, not in conflict
with these regulations shall remain in full force and effect." /4/
(R.Ex. 6, par. 1-100, 1-102, 2-201.6). The Air Force specifically
issued amendments to its regulation, AFR 147-14, following the revision
of DODD 1330.9 in July 1980 and at that time only changed paragraph 2-10
so as to insert the word "limited" before "exchange and motion picture
theater privileges" (G.C. Ex. 2; "Interim Action" attachment at p. 2).
As noted, Department of Defense Directive Number 1400.6, dated
February 15, 1980, entitled, "DOD Civilian Employees in Overseas Areas",
applies to civilian employees in Alaska and provides as follows in
paragraph C. 4 and 5.:
4. In making a determination of the numbers and types of U.S.
employees for overseas areas, the Military Service Commander shall
consider the ability of the command to ensure adequate housing;
subsistence; and medical, commissary, exchange, laundry,
transportation, and other essential facilities and services.
Except when required to meet unexpected emergency conditions, an
overseas commander shall not request recruitment from the United
States unless the command can provide such facilities to meet
health and decency standards.
5. In those overseas areas where DoD employees cannot enjoy
the facilities of the civilian community without restriction or
where appropriate and adequate facilities do not exist or are not
readily available, the military commander shall allocate
facilities under the commander's jurisdiction in accordance with a
standard of eligibility that provides equitable treatment to both
military and civilian personnel recruited from the United States.
Since at least July 1969, an Alaskan Air Command pamphlet has
purported to provide "prospective employees with information about the
Air Force Mission, and living and working conditions in Alaska." (G.C.
Ex. 7). The pamphlet was last revised in 1981. (G.C. Ex. 8). The
pamphlet states under "Base Exchange, Theater, Commissary, and Club
Privileges," in part, as follows:
"Employees residing 13 or more miles south of Fairbanks have
limited exchange and theater privileges at Eielson AFB."
Once a new recruit in the "lower 48" is tentatively selected for
employment, he or she is sent the pamphlet either by the designated
sponsor, the personnel office, or the new employee receives it from the
personnel office upon arrival in Alaska. (Tr. 246-247; 223-224).
The Collective Bargaining Agreement
Article Seven, section 3 of the collective bargaining agreement
between Respondent and the Charging Party, dated December 1979,
provides:
It is further agreed and understood that any prior benefits,
practices and understandings which have been mutually acceptable
to the parties which are not specifically covered by this
agreement shall not be changed without the parties first meeting
and conferring on the subject. (R.Ex. 4).
The Practice
Prior to June 28, 1982, and for at least seventeen years prior to
that date, unit employees of Respondent who resided thirteen or more
miles /5/ south of Fairbanks, Alaska, along the Old Richardson Highway
/6/ enjoyed certain limited base exchange privileges at Eielson Air
Force Base.
The privileges afforded these employees included, inter alia, the use
of the Base Exchange, gas station, furniture store, theater, laundromat,
beauty shop, and dry cleaners (Tr. 6). /7/ In order to use the various
exchange and concession facilities, proper identification was required.
Respondent issued each employee who lived within the designated area an
identification card marked "limited exchange" and "theater" which
authorized use of the various facilities by such employees and their
dependents. (Tr. 47). Approximately 103 of the 230 unit employees
enjoyed these privileges.
Presumably, Respondent's requests to continue the Base Exchange
privileges for civilian employees residing 13 or more miles south of
Fairbanks was routinely approved on an annual basis for a number of
years. /8/
Current Events
In January 1981, Major Argentino Font, Jr., Director of Personnel,
Eielson Air Force Base, received correspondence from the Alaskan Air
Command requesting that Eielson submit its annual request for exceptions
regarding exchange privileges. Major Font reviewed AFR 147-14 and
Appendix D /9/ and questioned whether an exception request could still
be justified under the listed criteria. He advised the Alaskan Air
Command of his concerns and of the obligations imposed by the negotiated
agreement. (Tr. 146-155). By letter dated April 20, 1981 the Alaskan
Air Command advised Respondent as follows:
1. You are granted authority to extend the waiver for limited
exchange privileges to those nonappropriated and appropriated fund
employees who reside south of 13-mile Old Richardson Highway
through 31 December 1981. The purpose of this extension is to
allow sufficient time to negotiate this practice with the union,
and determine if the conditions within the civilian community
justify further extension.
2. The Civilian Personnel Office Labor Relations Staff is
available to assist and advise you in this action.
By letter dated April 22, 1981 Respondent's labor relations officer,
Josh Malone, notified the Union president, Mary Metzger, that action had
been initiated to extend Base Exchange privileges through December 31,
1981, and that negotiations should begin for any extension beyond
December 31, 1981. The Union was asked to provide by August 31, 1981
its position in writing with respect to justification for continuation
or changes in the method of extending Base Exchange privileges. (G.C.
Ex. 9). By letter dated August 31, 1981, the Union, by Metzger,
requested negotiations with respect to the Base Exchange privileges, but
did not submit a written position (G.C. Ex. 10).
The parties met on or about December 18, 1981. Several
representatives of each side were present. Local Union president Mary
Metzger, national Union representative Robert Nogler, and Respondent's
Director of Personnel Major A. Font served as primary spokespersons for
the respective parties. Three topics were addressed at this meeting:
renegotiation of the parties' collective bargaining agreement, an unfair
labor practice charge which the union had filed concerning worker's
compensation, and Base Exchange privileges (Tr. 49:19-50:30). When the
topic of Base Exchange privileges was broached, management offered its
reasons for proposing to terminate civilian Base Exchange privileges,
and the Union offered its reasons for continuing the established past
practice (Tr. 51, 162-165).
The December meeting culminated with the execution of a Memorandum of
Understanding by Union president Metzger and Base Commander Colonel
Carol Hughes which provided as follows:
The agency determination to withdraw limited Exchange
Privileges to civilian employees is based upon compelling need to
avoid undue impairment to military personnel resulting from
programmed increases due to mission change. However, the parties
agree that the present convenience should continue until such time
that the agency's study shows the adverse impact and affords the
Union opportunity to accept or reject the study. (G.C. Ex. 11).
The term "convenience" was used by both parties in an apparent effort
to avoid a dispute at the time over whether Base Exchange privileges are
a condition of employment. (Tr. 167). Thereafter, by letter dated June
26, 1982, Respondent forwarded to the Union the study which it had
prepared. Respondent also notified the Union of its intent to
discontinue Base Exchange privileges effective July 30, 1982. Referring
to the Memorandum of Understanding, Major Font asked Ms. Metzger to
reply by July 16, 1982. He stated, "If your response rejects the study,
please ensure your position and rationale are included." (G.C. Ex. 12(a)
and (b)).
By letter dated July 15, 1982, Metzger notified Respondent that the
Union disagreed with the study and requested negotiations on the
subject. No further explanation was given. (G.C. Ex. 13).
The parties met on or about July 22, 1982. The Union attempted to
explain its objections to the study as well as to the termination of the
Base Exchange privileges (Tr. 58-59, 113-114). When Union
representative Metzger asserted her position that the Base Exchange
privileges were a condition of employment over which the Union was
entitled to negotiate, Respondent broke off the meeting. Respondent
maintained that it had no obligation to bargain with the Union
concerning the termination of Base Exchange privileges. Respondent was
of the opinion that the parties, by referring to the exchange privileges
in the December 18, 1981 Memorandum of Understanding as a "convenience",
had agreed that the exchange privileges were not conditions of
employment. (Tr. 198-199). Therefore, Respondent viewed Ms. Metzger's
July 22, 1982 contention that exchange privileges were conditions of
employment as a 180 degree reversal. Respondent took the position that
the purpose of the July 22, 1982 meeting was to simply insure that the
exchange privileges would be terminated in accordance with the
procedures agreed upon by the parties in the December 18, 1981
Memorandum of Understanding. (Tr. 178-179). Major Font stated his
intention to commence implementation on July 30; however, he assured
Metzger that he would get back to her "on the procedural aspects of how
we were to implement the decision to terminate" (Tr. 181). During the
meeting, Font informed the Union that the concessions -- beauty shop,
barber shop, laundromat and theater -- were not included in the change
(Tr. 59). /10/ Major Font later advised Mrs. Metzger in early August
that all concession privileges, other than the snack bar and cafeteria,
would also be terminated. He stated, among other things, that there was
no impact and that he would be coordinating on the changes sometime in
the future.
Shortly after the July 22, 1982 meeting the Union requested the
assistance of a federal mediator. When that proved unsuccessful, on
August 17, 1982 the Union contacted the Federal Services Impasses Panel
(G.C. Ex. 14). The Union requested the Respondent to continue the
current Base Exchange privileges until a FSIP decision issued (G.C. Ex.
15; Tr. 60-63).
Sometime after the meeting of July 22, 1982, Respondent changed the
termination date from July 30, 1982 to September 30, 1982. (G.C. Ex.
20). On September 1, 1982, while Metzger was away for three weeks of
preplanned leave (from approximately August 20 to September 7, 1982),
Respondent contacted Union vice president Herman Smith to "coordinate"
with him the distribution of two memoranda from Base Commander Hughes
concerning Base Exchange privileges. The first of these documents was a
memorandum from Respondent advising employees that the privileges would
be terminated effective September 30, 1982, together with Respondent's
reasons therefor (G.C. Ex. 16). The second document concerned retrieval
and reissuance of identification cards (G.C. Ex. 17). Although
reluctant to do so in the absence of Mrs. Metzger, Smith did initial the
memoranda upon Font's assurance that it was only for coordination -- "to
let you know that we're going to implement this" (Tr. 118).
The memoranda were distributed to the employees, and those affected
by the changes were reissued new identification cards (Tr. 66-67).
Meanwhile, the parties submitted their respective positions to the
FSIP. On October 26, 1982, the Panel declined jurisdiction on grounds
that the matter involved threshold questions concerning the employer's
obligation to bargain, including underlying questions of fact (G.C. Ex.
22), a position which was reiterated by the Panel in its November 19,
1982 denial of the Union's request for reconsideration (G.C. Ex. 23;
24).
On October 12, 1982, the Union filed the instant unfair labor
practice charge; thereafter, on November 10, a first amended charge was
filed.
Discussion, Conclusions, and Recommendations
The General Counsel contends that Respondent violated section
7116(a)(1) and (5) of the Statute by refusing to bargain with the Union
concerning a change in working conditions of employees in the unit, i.e.
termination of limited Base Exchange privileges, including base exchange
and/or concession facilities, and its implementation of that change on
or about September 1, 1982.
Respondent defends on the basis that exchange privileges are not
conditions of employment, and, therefore, Respondent Eielson was
lawfully entitled to unilaterally terminate such privileges without
first bargaining with the Union. Alternatively, Respondent contends
that even if exchange privileges are conditions of employment, it had no
duty to bargain about the decision to discontinue such privileges
because such bargaining would be inconsistent with DODD 1330.9, an
agency regulation for which there is a compelling need. Finally,
Respondent contends that even if exchange privileges are conditions of
employment, and even if Respondent's duty to bargain about the decision
to discontinue exchange privileges was not barred by DODD 1330.9,
Respondent fulfilled its duty to bargain as evidenced by the December
18, 1981 Memorandum of Understanding.
Condition of Employment
The duty to bargain under the Statute extends only to "conditions of
employment," /11/ i.e., personnel policies, practices, and matters
affecting working conditions. In construing that statutory phrase, the
Authority has found proposals which concern matters directly affecting
"the work situation and employment relationship" of bargaining unit
employees to be within the duty to bargain. See National Federation of
Federal Employees Local 1363 and United States Army Garrison, Youngson,
Korea, 12 FLRA No. 125 (1983). Respondent contends that employee access
to shopping facilities, convenience stores, movie theaters, beauty
shops, laundromats, and dry cleaning establishments maintained for the
morale, welfare, and recreation of military personnel is not a part of
the work situation or the employment relationship and could only be
enjoyed by bargaining unit employees while in a non-duty status.
In the circumstances of the present case, the matter of limited base
exchange privileges is a condition of employment within the meaning of
section 7103(a)(14) of the Statute. In National Federation of Federal
Employees, Local 1363 and Headquarters, U.S. Army Garrison, Youngson,
Korea, 4 FLRA No. 23 (1980), the Authority held that the matter of
ration control was a condition of employment since it was directly
related to reasonable standards of health and decency which the agency
required as a precondition for employment in an overseas command. In
that case, as here, DOD Directive 1400.6 was involved. In the present
case, the updated version of DOD Directive 1400.6 identifies adequate
commissary, exchange, and laundry facilities as being among the
essential facilities and services necessary to be provided "to meet
health and decency standards" before an overseas commander (including
Alaska) will request recruitment of personnel from the United States.
/12/ Under this regulation, where DOD employees cannot enjoy the
facilities of the civilian community without restriction or where
appropriate and adequate facilities do not exist or are not readily
available, the military commander is required to allocate facilities to
accord equitable treatment to both military and civilian personnel.
Respondent contends that because its study showed that civilians can
enjoy the facilities of the civilian community without restriction and
adequate facilities do exist and are available off base, it has not
created a precondition of employment and the Eielson commander was freed
in this instance of the duty imposed by DOD Directive 1400.6. This
argument goes to the merits of whether or not facilities are to be
provided in this instance and is an appropriate matter for resolution
through the bargaining process. It is not relevant to the determination
of whether limited base exchange privileges is the kind of matter which
is a condition of employment and within the scope of bargaining.
In this instance the matter of limited base exchange privileges,
i.e., adequate and available commissary, exchange, laundry, and other
essential facilities and services, is a condition of employment. It is
directly related to "health and decency standards" which is a
precondition to civilian employment in Alaska. Therefore, such matter
involves personnel policies, practices, and matters affecting working
conditions of unit employees and is within the scope of bargaining under
section 7117 of the Statute. National Federation of Federal Employees,
Local 1363 and Headquarters, U.S. Army Garrison, Youngson, Korea, supra.
The duty to negotiate in good faith under the Statute requires that a
party meet its obligation to negotiate prior to making changes in
established conditions of employment, during the term of a collective
bargaining agreement, absent a clear and unmistakable waiver of
bargaining rights. Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9 (1981).
Apart from Respondent's obligation to bargain on this matter
generally, the record discloses that not only have certain unit
employees had limited base exchange privileges for at least seventeen
years, but the agency has been actively involved in its effectuation
during that period, i.e., issuing the necessary identification cards,
securing annual approval, and holding it out since 1969 in the Alaskan
Air Command pamphlet as an attribute of employment. It is well settled
that privileges, once granted, may over time mature into established
practives tantamount to conditions of employment and that such
established past practices may not be changed by Respondent without
affording the Union its statutory right to notice and the opportunity to
bargain concerning the changes. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA 413 (1980);
Social Security Administration, Mid-America Service Center, Kansas City,
Missouri, 9 FLRA No. 33 (1982).
Compelling Need
Respondent contends that even if exchange privileges are conditions
of employment, it had no duty to negotiate the decision to terminate the
privileges. Respondent claims that DOD Directive 1330.9, an agency
regulation for which a compelling need exists, prohibits the Eielson AFB
commander from extending those privileges to the Eielson civilian
employees, as only the Secretary of the Air Force is empowered to extend
such privileges. Respondent also asserts that a compelling need exists
for these regulations inasmuch as they implement a mandate from
Congress. /13/
With respect to Respondent's reliance upon DOD directive 1330.9,
(R.Ex. 6), nothing in that regulation prohibits negotiations with the
Union regarding the extension of Base Exchange privileges nor requires
that the privileges be withdrawn. An agency is required to bargain to
the full extent of its discretion under both agency and government-wide
regulations. See, National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980);
National Treasury Employees Union and Internal Revenue Service, 6 FLRA
552 (1981); Department of the Navy, Long Beach Naval Shipyard, 7 FLRA
362 (1981); American Federation of Government Employees and General
Services Administration, 11 FLRA No. 54 (1983). The Authority has also
held that lacking total discretion, an agency's duty to bargain extends
to making appropriate requests to third parties for approval to
implement the negotiated agreement. See American Federation of
Government Employees, Local 32 and Office of Personnel Management, 8
FLRA No. 87 (1982).
In the instant case although Section 2-201.6 of the DOD Directive
provides that civilian employees in Alaska working on but not residing
on military reservations "shall be entitled to the privileges of the
fountain, snack bar, and restaurant when the local commanding officer
determines that these facilities are not conveniently available from
other sources", nothing in the Directive indicates that such are the
exclusive facilities to which civilians may have access. See DOD
Directive 1400.6 (R.Ex. 7). Section 1-102.6 of DOD Directive 1330.9
specifically provides that deviations involving patron privileges may be
granted by the Secretaries of the military departments and although
delegation of such authority is prohibited, Section 1-100 provides that
"supplementary rules, regulations, and directives of Military
Departments, not in conflict with these regulations shall remain in full
force and effect." Both before and after issuance of DOD Directive
1330.9 on July 8, 1980, the Air Force had a regulation, AFR 147-14,
paragraph 2-10 (G.C. Ex. 2) which provides that in Alaska, among other
places, limited exchange and motion picture theater privileges may be
extended to specific categories of personnel authorized by the commander
and, as noted, set out a procedure for securing waivers from the
Secretary.
The fact that authority to grant waivers has been retained at the
Secretary level does not relate to the bases for finding that a proposal
is not within the duty for bargain under section 7117 of the Statute,
i.e. inconsistency with Federal law, Government-wide rule or regulation,
or agency regulation to which a compelling need exists. Under section
7114(b)(2) of the Statute, the duty of an agency to negotiate in good
faith includes the obligation "to be represented at the negotiations by
duly authorized representatives prepared to discuss and negotiate on any
condition of employment." Thus, the Statute clearly requires the parties
to provide representatives who are empowered to negotiate and enter into
agreements on all matters within the scope of negotiations in the
bargaining unit. National Treasury Employees Union and Department of
the Treasury, Internal Revenue Service, 13 FLRA No. 93 (1983).
More basically, as reflected in the facts, Respondent relies on
various recommendations of subcommittees of the House Armed Services
Committee for its compelling need defense. While it may be prudent for
the Department of Defense to follow such recommendations, as it
apparently has, Respondent has furnished no evidence that these
Congressional recommendations constitute the legislative history of a
public law, or otherwise legally constitute "a mandate to the agency . .
. under law or other outside authority . . . . " Compare National
Federation of Federal Employees, Local 1669 and Arkansas Air National
Guard, 13 FLRA No. 37 (1983). Since Respondent's evidence does not meet
the criteria established by the Authority, it has failed to demonstrate
compelling need for DOD Directive 1330.9. Thus, Respondent has made no
showing to support a finding that the matter of the limited base
exchange privileges in issue is outside the duty to bargain under
section 7117 of the Statute.
Extent of Bargaining
As an additional defense to the unfair labor practice charge,
Respondent contends that in December of 1981 it fulfilled any obligation
to bargain with the Union. Respondent argues that its negotiations with
the Union resulted in the Memorandum of Understanding (MOU) in which the
Union agreed with Respondent's decision to terminate such privileges,
reserving only its right to produce evidence to the contrary if it
rejected a subsequent management study.
It is well settled that the waiver of a statutory right must be clear
and unmistakable. Department of the Air Force, Scott Air Force Base,
supra. Nothing in the December 18 agreement either on its face or as
explained through evidence of the December 16 discussions, evidences the
Union's waiver of its statutory right to bargain concerning termination
of Base Exchange privileges. The plain language of the MOU gives the
Union the right to accept or reject the study. The MOU is silent with
respect to any subsequent negotiations or requirements to come forward
with evidence rebutting the study. Absent a clear statement that the
Union agreed that no further negotiations would take place and that it
was required to come forward with evidence if it rejected the study, it
cannot be found that the Union waived its right to engage in
negotiations. Office of Program Operations, Social Security
Administration, San Francisco Region, 10 FLRA No. 36 (1982). Nor, in my
view, does the case involve essentially differing and arguable
interpretations of the MOU.
It is undisputed that upon receipt of the study, in July 1982, the
Union requested to bargain; that the parties met on July 22 in order to
discuss the issue; and that Respondent refused to bargain with the
Union concerning the change. In that regard, both Ford and Metzger
agreed that their efforts to address the substance of the study and to
state their reasons for opposing the change were met with derision.
Indeed, Font concedes that Respondent had no intention of negotiating
with the Union -- that they were going to proceed on the basis of the
MOU to terminate the limited Base Exchange privileges and that the only
matter remaining was implementation of the agency's decision. No
negotiations concerning the change took place on July 22 nor at any time
thereafter concerning the termination of Base Exchange privileges.
Thus, it is clear that Respondent refused to negotiate with the Union
concerning the termination of the limited Base Exchange privileges.
In addition, Respondent failed to negotiate with the Union concerning
the implementation of the change in Base Exchange privileges. Although
Major Font insists that he committed himself to get back to Mrs. Metzger
regarding implementation, he did not do so. Instead, over a month
later, when Metzger was away on leave, he contacted Herman Smith and
informed Smith that he only wanted him to "coordinate" implementation.
Font admitted that he was not engaged in implementation bargaining with
Smith, and conceded that he would not have been open to any alternative
plans. The implementation memoranda were distributed following such
"coordination" with Smith.
Under these circumstances, it is clear that Respondent failed and
refused to bargain with the Union concerning implementation of the
change in Base Exchange privileges. Respondent's refusal to bargain
concerning the termination of Base Exchange privileges or the
implementation thereof constitute unfair labor practices in violation of
Section 7116(a)(1) and (5) of the Statute.
As discussed above, the evidence establishes that at the July 22
meeting, Major Font specifically indicated that the concessions were not
involved in the termination of Base Exchange privileges which had been
previously discussed; in fact, the concessions were not even included
in the study prepared following the December 1981 MOU. Thus, Respondent
was obligated to give the Union adequate notice and the opportunity to
bargain when it determined that concession privileges would also be
included in the scope of the change. Major Font advised Metzger in
early August that the concession privileges, other than the snack bar
and cafeteria, would also be terminated, but simply informed her, among
other things, that no impact would be involved, and management would be
coordinating on the change. The "coordination" was accomplished as
stated above. Under such circumstances, Respondent clearly did not meet
its obligation to give the Union advance notice and the opportunity to
bargain over these changes in conditions of employment, including the
termination of base laundry and dry cleaning facilities. Respondent
thereby also committed unfair labor practices in violation of Section
7116(a)(1) and (5) of the Statute.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
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 Department of the Air Force, Eielson
Air Force Base, Alaska shall:
1. Cease and desist from:
(a) Unilaterally terminating limited base exchange and
concession privileges to unit employees who reside 13 or more
miles south of Fairbanks, Alaska, along the Old Richardson
Highway, without affording the American Federation of Government
Employees, Local 1836, AFL-CIO, the employees' exclusive
representative, the opportunity to bargain concerning such a
decision.
(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) Rescind the memoranda dated September 2, 1982 relating to
the termination of civilian employee exchange privileges and
restore all conditions of employment related to limited base
exchange and concession privileges which were in effect prior to
such changes.
(b) Notify the American Federation of Government Employees,
Local 1836, AFL-CIO, the employees' exclusive representative, of
any decision to terminate the limited base exchange and concession
privileges of certain unit employees and, upon request, bargain in
good faith concerning the decision to do so.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander,
Eielson Air Force Base, Alaska and shall be posted and maintained
by him for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Commander shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, Region IX, Federal Labor Relations Authority, San
Francisco, California, in writing, within 30 days from the date of
this order, as to what steps have been taken to comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: March 19, 1984
Washington, D.C.
FOOTNOTES
(1) The Regional Director's motion to withdraw that portion of the
consolidated complaint pertaining to Case No. 9-CA-20210, an unrelated
matter, was granted. The Regional Director approved a settlement
agreement in that case on January 12, 1984.
(2) Respondent's post-hearing motion that official notice be taken of
Respondent's Exhibit A, a letter from the Honorable Melvin Price,
Chairman of the House Committee on Armed Services, to Mr. Tom Garnett,
Director of Labor Management Relations, Department of Defense, enclosing
a letter to the Honorable Barbara Jean Mahone, Chairman, Federal Labor
Relations Authority, is granted.
(3) R.Ex. 9. pp. 12350-54, sets forth a brief history of the origin
and purpose of the exchange service.
(4) Respondent takes the position that AFR 147-14 and DODD 1330.9 are
"in conflict" to the extent that AFR 147-14 allows the "responsible
commander" to grant privileges whereas under DODD 1330.9 only the
Secretary of the Air Force has authority to grant privileges to civilian
employees. However, as noted, the additional requirements of Appendix D
of AFR 147-14 appear consistent with DODD 1330.9 in that approval by the
Secretary is also required for exceptions to normal patronage rules.
This Appendix also sets forth a model form for such a request should be
prepared for forwarding through channels.
(5) During the long and difficult winter months, driving is often
very difficult due to the cold temperatures, snow, ice, and fog. (Tr.
32-34). The 13 mile limitation was imposed because it was the half-way
mileage point between Fairbanks and Eielson Air Force Base. Eielson is
located approximately 26 miles south of Fairbanks. For those who lived
north of the 13 mile limit, it was closer for them to go to Fairbanks.
(Tr. 148-149). For those who lived south, it was closer to use the Base
Exchange. Some unit employees live ten to fifteen miles south of
Eielson and thus 35 or 40 miles south of Fairbanks along isolated
country roads. (Tr. 32). North Pole, Alaska is approximately 11-12
miles north of Eielson Air Force Base between Fairbanks and Eielson.
(Tr. 32). The community has grown considerably in recent years and has
some commercial facilities, including at least one modern grocery store.
(6) The Richardson Highway, both the new and the old, begins in
Fairbanks and runs south past Eielson to the Canadian border. There are
few towns in the area south of Fairbanks, and addresses are often
referred to in relation to mileage on the Richardson Highway (Tr. 32).
(7) The various facilities which are part of the Base Exchange -- the
main exchange, the groceteria, the gas station, and the furniture store
-- as well as the so-called concessions -- beauty shop, barber shop,
laundromat, and theater -- will be referred to as limited exchange
privileges except where the distinction between Base Exchange and
concession facilities is material.
(8) The record does not reflect whether the approval was gained at
the Alaskan Air Command or Secretary of the Air Force level. Respondent
argues that it was at the Alaskan Air Command level in violation of DODD
1330.9. See fn. 4.
(9) Major Font testified that he was not aware of DODD 1330.9 until
sometime after June 1982. (Tr. 186).
(10) Although denying such a representation to the Union, Font admits
that the subject of the concessions was raised and concedes that at the
time of the meeting he believed that an ID card could be issued which
would allow the civilians access to the concessions, but not the base
exchange facilities (Tr. 177). Font also acknowledged that following
the July meeting Metzger clearly believed that the concessions would be
retained (Tr. 182).
(11) Section 7103(a)(14) of the Statute defines "conditions of
employment" as follows:
Section 7103. Definitions; application
(a) For the purpose of this chapter --
. . . . . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions . . . .
(12) Unexpected emergency situations are an exception, but are not
alleged or shown to exist in the present case.
(13) In this regard, the Authority's Rules and Regulations provide:
Section 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the
following illustrative criteria:
. . . . . . .
(c) The rule or regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implementation is essentially nondiscretionary in
nature.
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 unilaterally terminate limited base exchange and
concession privileges to unit employees who reside 13 or more miles
south of Fairbanks, Alaska, along the Old Richardson Highway, without
affording the American Federation of Government Employees, Local 1836,
AFL-CIO, the employees' exclusive representative, the opportunity to
bargain concerning such a decision.
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 rescind the memoranda dated September 2, 1982 relating to the
termination of civilian employee exchange privileges and restore all
conditions of employment related to limited base exchange and concession
privileges which were in effect prior to such changes.
WE WILL notify the American Federation of Government Employees, Local
1836, AFL-CIO, the exclusive representative, of any decision to
terminate the limited base exchange and concession privileges of certain
unit employees and, upon request, bargain in good faith concerning the
decision to do so.
(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: 530 Bush Street, Room 542, San Francisco, California
94108 and whose telephone number is: (415) 556-8106.
23 FLRA NO. 82
Marine Corps Logistics Base, Barstow, California and AFGE, Local
1482, Case No. 8-CA-50418 (Decided October 16, 1986)
STATUTE
7104(f)(2)(A)
7116(a)(1) and (8)
7118
7131(c)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Agency Violations: Interference, Restraint, Coercion
Meetings with FLRA Agents
Agency Violations: Otherwise Refuse to Comply with the Statute
7104(f)(2)(A)
7131(c)
Discipline
Abuse of Official Time
Meeting with FLRA Agents
Union Official
Investigations of Unfair Labor Practices
FLRA General Counsel's Authority
Conduct of an Investigation
Official Time
Meeting with FLRA Agents
DIGEST NOTES
The activity did not violate section 7116(a)(1) and (8) when it
disciplined the union president after discovering his unauthorized visit
to the union office where he met with a FLRA agent concerning pending
unfair labor practice matters. Under section 7104(f)(2)(A), the General
Counsel is empowered to determine the manner in which investigations are
to be conducted, including the site of related interviews. Moreover,
under section 7131(c), employees are entitled to official time for the
purposes of participating in the processing of unfair labor practice
charges. However such rights are not paramount to both the mission of
an agency and its responsibility to monitor the activities of its work
force.
Neither the union president nor the FLRA agency informed management
that they would be meeting off base. Yet Authority agents had always
previously notified management when they wished to talk to the union
president or any other unit employee. The activity had never denied the
Authority the opportunity to meet with employees on official time nor
penalized unit employees for meeting with Authority agents. Finally,
although the union president was entitled to 75 percent official time
under the parties' collective bargaining agreement, the agreement did
not authorize him to conduct union representational functions at the
off-base union office without prior permission from management.
Considering all the facts and circumstances, the Judge found that the
activity's actions of reprimanding the union president and charging him
with 35 minutes AWOL were not based on his meeting with the Authority's
agent but rather his actions in leaving the premises without prior
permission in violation of the parties' agreement.
Case No. 8-CA-50418
MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, 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 not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision, and the
Respondent filed an opposition to the 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), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions, and recommendation that the complaint
be dismissed.
In agreement with the Judge, we specifically find that the reprimand
and 35 minutes AWOL charged to the employee were not based on the Union
President's activity in meeting with an Authority agent, but rather on
his actions in leaving the premises without prior permission in
violation of the Respondent's interpretation of the
collective-bargaining agreement. Therefore, we conclude, in agreement
with the Judge, that the Respondent did not violate the Statute as
alleged in the complaint. Accordingly, we shall dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-50418 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 8-CA-50418
MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO
Charging Party
Jonathan S. Leving, Esquire
For the General Counsel
William M. Petty, Esquire
Major Charles Dorman
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.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on July 11, 1985, by the
American Federation of Government Employees, Local 1482, AFL-CIO,
(hereinafter called the Union or Local 1482), a Complaint and Notice of
Hearing was issued on October 31, 1985 by the Regional Director for
Region VIII, Federal Labor Relations Authority, Los Angeles, California.
The Complaint alleges that the Marine Corps Logistics Base, Barstow,
California, (hereinafter called the Respondent), violated Sections
7116(a)(1) and (8) of the Federal Service Labor-Management Relations
Statute, (hereinafter called the Statute), by issuing a letter of
reprimand to Mr. Dale Boyce and charging him with thirty-five minutes of
AWOL for meeting during official hours with an agent of the Federal
Labor Relations Authority for purposes of providing evidence in a
pending unfair labor practice proceeding.
A hearing was held in the captioned matter on December 18, 1985, in
Los Angeles, California. All parties were afforded the opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted briefs on January 31 and 29, 1986,
respectively, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The American Federation of Government Employees, (hereinafter called
the AFGE), was certified on October 12, 1982, "as the exclusive
representative in a national consolidated unit of the United States
Marine Corps., Washington, D.C., which includes" the graded and ungraded
employees of the Respondent's Barstow, California installation. Local
1482, the charging party, is the AFGE local representative at Barstow.
The AFGE and the Respondent are parties to a master collective
bargaining labor agreement which became effective April 27, 1985, and
which provides in Article 8, Section 3, that the Local Union President
at Barstow will be entitled to 75% official time to perform
representational functions. The contract further provides in Article 8,
Section 4 as follows:
Stewards and local officers appointed to represent unit
employees will represent employeed at the activity as designated.
Official time will be approved only for representational functions
performed at the activity where the representative is employed
except:
(a) to attend hearings before the FLRA, MSPB, or an arbitrator
concerning a dispute involving employees of the activity where the
representative is employed; or
(b) when representation off the work premises by the individual
has been approved, in writing, by the commanding officers of the
activities involved.
With respect to Article 8, Section 4, the record establishes that the
Respondent has interpreted this provision as prohibiting the Union
President to utilize official time for purposes of conducting
representational functions at the union hall located off the base in
Barstow, California. The record further establishes that Union
President Dale Boyce had been informed of the Respondent's
interpretation of Article 8, Section 4, prior to the events underlying
the instant complaint.
On May 28, 1985, Union President Dale Boyce was informed by the union
secretary located in the off-base Barstow, California union office that
Ms. Linda Gonzalez, (hereinafter referred to as Ms. L. Gonzalez), an
agent of the Federal Labor Relations Authority, had called and wanted
him (Mr. Boyce) to call her the next day at the Respondent's Civilian
Personnel Office (CPO) at 12:30 p.m. /2/ Inasmuch as Mr. Boyce was
scheduled to meet with Respondent's representatives the next morning at
the Civilian Personnel Office he decided to personally meet there with
Ms. L. Gonzalez rather than telephone her.
On May 29, 1985, Mr. Boyce reported for work at 7 a.m. /3/ After
working for two hours, Mr. Boyce approached Mr. Kenneth Graham,
supervisor of the welding shop, and requested six hours of official time
to perform various representational duties. According to Mr. Boyce,
after telling Mr. Graham what union business he would be working on the
rest of the day and where he could be found he left his work site for
the remainder of the day. Further, according to Mr. Boyce he did not
tell Mr. Graham that he was meeting with Ms. L. Gonzalez later in the
afternoon. He could not swear to it, but he might have mentioned that
he "was going to see Linda Gonzalez at CPO".
After departing from his work station Mr. Boyce met with various
management representatives, including Supervisory Labor Relations
Specialist Esther Gonzales. During the course of the meeting with Ms.
Gonzales, Mr. Boyce mentioned, according to Ms. Gonzales, that he was
going to talk to Ms. L. Gonzalez to which Ms. Gonzales replied that she
had an appointment with her around noontime. According to Ms. Gonzales
there was no discussion of what Mr. Boyce and Ms. L. Gonzalez were to
talk about. Finally, Ms. Gonzales testified, without contraction, that
Mr. Boyce never told her that he was going to have a meeting with Ms. L.
Gonzalez.
Around noon Ms. L. Gonzalez arrived at the CPO for her scheduled
meeting with Ms. Esther Gonzales. Prior to starting the scheduled
meeting Ms. L. Gonzalez met and spoke to Mr. Boyce out in the hall about
certain unfair labor practices she was investigating. Inasmuch as Mr.
Boyce's files were in the off-base union office in Barstow, they agreed
to meet there after Ms. L. Gonzalez finished her business with the
Activity representatives. Ms. L. Gonzalez estimated that the meeting
would last approximately one to two hours. At Mr. Boyce's suggestion,
it was agreed that Ms. L. Gonzalez would call him at the union hall when
she finished her business with the Activity officials. Ms. Esther
Gonzales acknowledges that she observed Mr. Boyce and Ms. L. Gonzalez
talking.
Ms. L. Gonzalez then proceeded with her scheduled meeting with
Activity representatives Ms. Esther Gonzales and Mr. Rich Schultz.
During the course of the meeting Ms. L. Gonzalez informed Mr. Schultz
and Ms. Esther Gonzales that if she had time she would like to meet with
Mr. Boyce. When the meeting concluded at approximately 3 p.m. Ms. L.
Gonzalez asked Ms. Esther Gonzales for a telephone number where she
could contact Mr. Boyce. When Ms. Gonzales replied "Do you want the
union office in the Repair Division", Ms. L. Gonzalez responded that she
wanted the off-premises union office in Barstow.
Ms. L. Gonzalez then telephoned Mr. Boyce at the Barstow union
office, informed him that her meeting with the Activity representatives
was over, and that she was on her way. Ms. L. Gonzalez then told the
Activity representatives that she was going to the union office in
Barstow to talk to Mr. Boyce and departed the CPO. The union office in
Barstow is approximately a 15 minute ride from the CPO.
Prior to departing the CPO Ms. L. Gonzalez did not tell the Activity
representatives the specific reason that she was meeting with Mr. Boyce.
Upon arriving at the union office, Ms. L. Gonzalez proceeded to discuss
certain pending unfair labor charges with Mr. Boyce.
At no time did Mr. Boyce inform management that he was leaving the
installation to go to the union office in Barstow. Similarly, at no
time did he tell management of his scheduled appointment with the
Authority representative at the union office in Barstow.
On June 4, 1985, after being informed that Mr. Boyce had been at the
union office in Barstow on May 29, 1985, Mr. Graham, Mr. Boyce's
supervisor, conducted an investigative discussion with Mr. Boyce
regarding his whereabouts on May 29, 1985. During the course of the
investigative discussion, Mr. Graham made it clear that his only concern
was Mr. Boyce's violation of Article 8, Section 4 of the collective
bargaining agreement which according to the Respondent's interpretation
prohibited Mr. Boyce from conducting union representational functions at
the off-base union office without prior permission from management.
On May 26, 1985, Mr. Boyce was given a letter of reprimand and
charged with 35 minutes of AWOL. The letter reads in pertinent part as
follows:
a. On 29 May 1985 at approximately 1455, I was informed by CPO
that you had been contacted by phone at the Union Hall in Barstow
by a representative from the Federal Labor Relations Authority.
The representative was to meet with you at the Union Hall.
b. On 4 June 1985, this matter was discussed with you. You
denied receiving a phone call. I had previously advised you that
the Master Labor Agreement, Article 8, Section 4, provides that
official time will be approved only for representational functions
performed at the activity, etc. I had also advised you on 23 May
1985 that you were not authorized to go to the Barstow Union
Office on official time. You contend that this article does not
apply to you as President of the Union. The reasons you offer on
your whereabouts on 29 May 1985 are not acceptable; therefore,
you have been carried on unauthorized absence status for 35
minutes on 29 May 1985. /4/
The record further establishes that the Respondent and the Authority
have been involved in numerous unfair labor practices and that the
Respondent always released employees on official time when informed by
Authority agents that they wished to talk to such employees in
connection with Authority proceedings. Prior to the events underlying
the instant complaint the Authority never met with an employee on
official time without clearing it with the Respondent. Further, it was
always the Authority agent and not the employee who notified the
Respondent that a meeting was going to be held with an employee.
Discussion and Conclusions
The General Counsel points out that the Authority has held that (1)
the granting of official time to employees pursuant to Section 7131(c)
of the Statute for purposes of participating in the processing of unfair
labor practice charges is within the unreviewable discretion of the
Regional Director or the Regional Director's agents, and (2) that
Section 7104(f)(2)(A) of the Statute specifically empowers the General
Counsel to determine the manner in which investigations are to be
conducted, including the situs of interviews related thereto.
Relying on the foregoing and the fact that the Authority's agent had
informed the Respondent that he was going to meet with Mr. Boyce, the
General Counsel takes the position that the Respondent violated Sections
7116(a)(1) and (8) of the Statute when it reprimanded Mr. Boyce and
charged him with 35 minutes AWOL for his actions in meeting with the
Authority's representative on May 29, 1985 in the Union's off-base
office in Barstow.
The Respondent's counsel, who agrees with the General Counsel's
conclusions with respect to the state of the law, takes the position
that in the absence of prior notice from either the Authority's agent or
Mr. Boyce that Mr. Boyce was going off the base to meet the Authority's
agent in connection with pending unfair labor practices, Mr. Boyce
violated the provisions of the collective bargaining contract as
interpreted by Respondent. According to the Respondent the reprimand
and the 35 minute AWOL were based upon Mr. Boyce's actions in violating
the contract by leaving the base without permission and was unrelated to
the fact that he subsequently met with the Authority's agent for
purposes of discussing pending unfair labor practices.
Inasmuch as the General Counsel has correctly summarized the state of
the law and since Respondent appears to acknowledge same, the sole issue
remaining for resolution is whether, as contended by the Respondent,
under the particular facts of this case Respondent was at liberty to
reprimand and impose a 35 minute AWOL on Mr. Boyce for leaving the
Respondent's premises without permission to prepare for a subsequent
meeting with an Authority agent.
The record establishes that the Respondent and the Union were parties
to a collective bargaining agreement which contained various provisions
concerning the awarding and use of official time by the Union's
President in connection with representational activities. According to
Respondent's interpretation of such provisions, which interpretation had
previously been made known to Union President Boyce, the Union President
was not allowed to utilize official time to conduct representational
activities off the base without prior management permission. The record
further establishes that at all times prior to the instant events
Authority agents when desiring to talk to the Union President or any
other unit employee in connection with a matter of Authority interest
had always given prior notice to management. The record also
establishes that the Respondent had never denied Authority agents the
opportunity to meet with unit employees on official time, nor does it
appear that the Respondent had ever in the past penalized unit employees
for meeting with Authority agents. Finally, the record establishes that
aside from telling Respondent about 3 p.m. on May 29, 1985 that she, the
Authority agent, was on her way to the union office in Barstow to meet
Mr. Boyce, no other notice of the meeting was given to Respondent.
In view of the above facts, I find that the Respondent did not
violate the Statute when it disciplined Mr. Boyce after discovering his
unauthorized visit to the union office in Barstow. In reaching this
conclusion, I find that while the Authority's agents certainly have a
right to meet with employees on official time and to determine where
such meetings will be held, such rights are not paramount to both the
mission of an agency and its responsibility to monitor the activities of
its work force. Here there is no evidence of prior notice of the
meeting or that Mr. Boyce had received permission to go to the union
office in Barstow as required by Respondent's interpretation of the
contract.
Having left the Respondent's premises without prior permission in
defiance of Respondent's announced interpretation of the official time
provisions of the collective bargaining contract and without prior
notice to Respondent from either himself or the Authority's agent that
his actions were for purposes of meeting with the Authority's agent to
discuss a pending unfair labor practice, I find that under the
circumstances the Respondent did not violate the Statute when it
subsequently gave Mr. Boyce a letter of reprimand and a 35 minute AWOL
for such conduct. I further find that the reprimand and 35 minute AWOL
were not based on Mr. Boyce's activity in meeting an Authority agent but
rather his actions in leaving the premises without prior permission in
violation of the Respondent's interpretation of the collective
bargaining agreement.
In sum I find that while the Authority's agents are free to conduct
investigations on official time and determine where such investigations
should be held, sensible administration not to mention common courtesy
require advance notice so that an Agency can make appropriate
arrangements to carry out the mission of the Agency and its
responsibility of knowing at all times the whereabouts of its employees.
Accordingly, I recommend that the Authority adopt the following order
dismissing the complaint in its entirety.
ORDER
It is hereby Ordered that the Complaint in Case No. 8-CA-50418 should
be, and hereby is, dismissed in its entirety.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: March 11, 1986
Washington, D.C.
FOOTNOTES
(1) The Union withdrew its appeal as to one additinal proposal
concerning the removal of probationary employees. This proposal will
not be considered further here.
(2) 5 C.F.R. Section 300.103(a) reads in pertinent part:
Section 300.103 Basic Requirements
(a) Job analysis. Each employment practice of the Federal
Government generally, and of individual agencies, shall be based
on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform
the duties and responsibilities; and
(3) The factors that are important in evaluating candidates.
The job analysis may cover a single position or group of
positions, or an occupation or group of occupations, having common
characteristics.
(3) In finding these proposals within the duty to bargain, the
Authority makes no judgment as to their merits.
FOOTNOTES
(1) The Charging Party excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge observed the witnesses
while they testified. The Authority will not overrule a Judge's
resolution with respect to credibility unless a clear preponderance of
all the relevant evidence demonstrates that such resolution was
incorrect. The Authority has examined the record carefully, and finds
no basis for reversing the Judge's credibility findings.
(2) Ms. L. Gonzalez had made an appointment to Meet Mr. Rick Schultz,
Labor Relations Specialist and Ms. Esther Gonzales, Supervisory Labor
Relations Specialist around 12 p.m. on May 29, 1985 in connection with
pending unfair labor practice charges that she was investigating. Both
Mr. Schultz and Ms. Gonzales testified that Ms. L. Gonzalez prior to her
arrival at the Barstow CPO never informed them of her intention or
desire to meet with Mr. Boyce. Ms. L. Gonzalez did not testify at the
hearing.
(3) Mr. Boyce's work hours are from 7 a.m. to 3:30 p.m.
(4) It appears that in awarding Mr. Boyce a 35 minute AWOL,
Respondent calculated the time from 2:55 p.m. when it discovered he was
off the premises to the 3:30 p.m. quitting time, reasoning that the
Authority agent could not have met with Mr. Boyce before such quitting
time.
23 FLRA NO. 81
Franklin Lodge No. 2135, IAM and Bureau of Engraving and Printing,
U.S. Dep't of the Treasury (Blackwell, Arbitrator), Case No. 0-AR-1101
(Decided October 16, 1986)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Award Modified
Award Contrary to Applicable Law
5 U.S.C. section 5544
Award Contrary to Appropriate Regulation
5 C.F.R. part 532, subpart E
Exceptions Asserted in Appeal
Award Contrary to Applicable Law
5 U.S.C. section 5544
Award Contrary to Appropriate Regulation
5 C.F.R. part 532, subpart E
Premium Pay
Overtime
Hour of Work for Determining Overtime Eligibility
Regularly Scheduled Workdays -- Employee in Nonpay Status
Prevailing Rate Employee (5 U.S.C. section 5349)
5 C.F.R. section 532.503 and 532.503(a)(1)
5 C.F.R. 551.401(b)
5 C.F.R. part 551
5 C.F.R. section 551.501
5 C.F.R. section 532.503(b)(3)
29 U.S.C. section 201 et seq. (Fair Labor Standards Act)
DIGEST NOTES
The arbitrator found that in view of the grievant's one day furlough,
the agency was obligated to omit the grievant from Saturday work
scheduled in the same week. The grievant, a prevailing rate employee (5
U.S.C. section 5349), would have been compensated at the straight-time
rate under the circumstances rather than the overtime rate for Saturday
work. Since the agency did not omit the grievant from the Saturday
work, the arbitrator held that its actions constituted a mishandling of
the grievant's rights in violation of the parties' collective bargaining
agreement which was not offset by the grievant choosing to not exercise
certain other option available to him. As his award, the arbitrator
sustained the grievance and directed that the agency pay the grievant at
the overtime rate for work performed on that Saturday.
In its exceptions the agency contended that the award was contrary to
law and applicable regulation. In modifying the award, the Authority
held that the award of overtime to the grievant who had not actually
been in pay status for more than 40 hours in the week, was contrary to 5
U.S.C. section 5544 and 5 C.F.R. part 532, subpart E. Although the
arbitrator could properly determine that the activity had violated the
parties' agreement, he could not properly enforce the agreement in
fashioning a remedy for the violation to direct the payment of overtime
pay to the grievant when not authorized by law.
Employees, as the grievant in this case, whose pay is fixed and
adjusted in accordance with prevailing rates under 5 U.S.C. section
5349, are entitled to overtime pay pursuant to 5 U.S.C. section 5544 and
5 C.F.R. part 532, subpart E. As relevant to this case, an employee is
entitled to overtime pay for hours of work in excess of 40 hours in a
week. In determining whether an employee is entitled to overtime pay
for work performed in excess of 40 hours in a week, 5 C.F.R. section
532.503(b)(3) provides that all hours of regularly scheduled workday
during which an employee is in a nonpay status, such as on furlough, are
not to be considered hours of work in determining whether the employee
is entitled to overtime pay for work performed in excess of 40 hours in
a week. Because the grievant was furloughed the first day of the week,
by working 8 hours of Saturday, the hours of work of the grievant only
equaled rather than exceeded 40 hours in the disputed workweek.
Accordingly, payment of overtime to the grievant for the hours of work
on Saturday was precluded by law and regulation.
Case No. 0-AR-1101
FRANKLIN LODGE NO. 2135 INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Union
and
BUREAU OF ENGRAVING AND PRINTING U.S. DEPARTMENT OF THE TREASURY
Agency
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Fred Blackwell filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations. The Union filed an opposition.
/1/
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case arose as a result of a year-end shutdown
at the Agency. During the period of the shutdown, employees were given
the option of requesting annual leave or leave without pay, of
scheduling sick leave, if appropriate, or of being furloughed, a nonpay
status. The grievant, a prevailing rate employee under 5 U.S.C. Section
5349, did not exercise any leave option and was furloughed for the day
of Monday, December 31, 1984. He was in a holiday pay status on
Tuesday, January 1, 1985, and a regular pay status for the following
regularly scheduled workdays of Wednesday, Thursday, and Friday. On
January 2, the Agency posted a work schedule for Saturday, January 5,
which included the grievant. The grievant and other employees who had
been in a furlough status on December 31 were advised that to receive
overtime pay for Saturday, they had to change their status on Monday,
December 31, from furlough to annual leave in order that their Saturday
work would be in excess of 40 hours of work in an administrative
workweek. The procedures governing Saturday work also provided an
employee the option of removing his or her name from the assignment
list. The grievant did not change his furlough status of December 31.
He also did not remove his name from the Saturday schedule and instead
worked 8 hours on Saturday, January 5. When he was compensated at
straight-time rates, he filed a grievance which was submitted to
arbitration claiming that the Agency's refusal to pay him at the
overtime rate for the 8 hours of Saturday work violated Article 6,
section 6 of the parties' collective bargaining agreement. Article 6,
section 6 provides that "(a)ll work performed on Saturday or Sunday will
be paid at overtime rates."
The Arbitrator generally agreed with the Agency that Article 6,
section 6 could not be applied without reference to other provisions of
the agreement and to applicable law and regulation governing the payment
of overtime pay. Nevertheless, he determined that in this case the
Agency had violated the agreement. He found that in view of the
grievant's furlough, the Agency was obligated to have omitted the
grievant from the Saturday work schedule and that the failure to take
such action constituted a mishandling of the grievant's rights in
violation of Article 6, section 6. He further found that this
mishandling was not offset by the grievant choosing not to remove his
name from the Saturday work schedule and not convert his furlough status
of December 31 to annual leave. The Arbitrator therefore ruled that in
these circumstances the grievant's Saturday work on January 5
constituted overtime work under the provisions of Article 6, section 6.
Accordingly, as his award, the Arbitrator sustained the grievance and
directed the Agency to pay the grievant at the overtime rate for the
work performed on Saturday, January 5, 1985.
III. EXCEPTION
In its exception the Agency primarily contends that the award of
overtime pay to the grievant is contrary to applicable law and
regulation governing the payment of overtime pay to prevailing rate
employees. The Agency argues that under governing law and regulation,
the grievant could be paid overtime pay only if his hours of work,
counting his work hours on Saturday, January 5, exceeded 40 hours in the
administrative workweek. The Agency maintains that under 5 CFR Section
532.503, all regularly scheduled workdays during which an employee is in
a nonpay status are not considered hours of work in determining whether
the employee is entitled to overtime pay for work performed in excess of
40 hours in the week. Thus, the Agency asserts that the grievant's work
on Saturday did not exceed 40 hours in the workweek and that
consequently the Arbitrator's enforcement of the parties' collective
bargaining agreement to compel payment of overtime pay for such work is
deficient.
IV. ANALYSIS AND CONCLUSIONS
We agree with the Agency. Employees, as the grievant in this case,
whose pay is fixed and adjusted in accordance with prevailing rates
under 5 U.S.C. Section 5349, are entitled to overtime pay pursuant to 5
U.S.C. Section 5544 and 5 CFR part 532, subpart E. As relevant to this
case, an employee is entitled to overtime pay for hours of work in
excess of 40 hours in a week. In determining whether an employee is
entitled to overtime pay for work performed in excess of 40 hours in a
week, 5 CFR Section 532.503(b)(3) provides as follows:
Hours during which an employee is absent from duty on leave
without pay during a time when he/she otherwise would have been
required to be on duty shall not be considered hours of work in
determining whether he/she is entitled to overtime pay for work
performed in excess of eight hours in a day or 40 hours in a week.
In view of this provision, we similarly find that all hours of a
regularly scheduled workday during which an employee is in a nonpay
status, such as on furlough, are not to be considered hours of work in
determining whether the employee is entitled to overtime pay for work
performed in excess of 40 hours in a week. In terms of this case,
Monday, December 31, 1984, cannot be considered in determining whether
the grievant was entitled to overtime pay for work performed in excess
of 40 hours in the workweek in dispute because he was in a nonpay status
on that day as a result of having been furloughed. Thus, by working 8
hours on Saturday, January 5, 1985, the hours of work of the grievant
only equaled rather than exceeded 40 hours in the disputed workweek.
Thus, under 5 U.S.C. Section 5544 and 5 CFR part 532, subpart E, payment
of overtime pay to the grievant for the hours of work on Saturday,
January 5 was precluded by law and regulation. /2/
Accordingly, the Arbitrator's award of overtime pay to the grievant
for the hours of work on Saturday, January 5, 1985, is deficient as
contrary to 5 U.S.C. Section 5544 and 5 CFR part 532, subpart E.
Although the Arbitrator could properly determine that the Activity had
violated Article 6, section 6, he could not properly enforce that
provision in fashioning a remedy for the violation to direct the payment
of overtime pay to the grievant when not authorized by law. See, for
example, Social Security Administration and American Federation of
Government Employees, AFL-CIO, 16 FLRA 552 (1984) (holding that while an
arbitrator could properly find that an agency's denial of a within-grade
increase was in violation of the parties' agreement, he could not
properly fashion a remedy which was contrary to applicable law).
Furthermore, the payment of overtime pay is not authorized as an award
of backpay under the Back Pay Act, 5 U.S.C. Section 5596, because there
is no unwarranted action that directly resulted in the grievant not
working overtime and receiving overtime pay when he otherwise would have
done so.
V. DECISION
For these reasons, the Arbitrator's award is modified to strike the
direction to pay the grievant the overtime rate for his work on
Saturday, January 5, 1985. /3/
Issued, Washington, D.C. October 16, 1986.
/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 exception
was untimely. However, the Authority has determined that under section
2425.1(b) and 2429.22 of the Authority's Rules and Regulations, the
Agency's exception was timely filed.
(2) Prevailing rate employees who are nonexempt under the Fair Labor
Standards Act (FLSA), 29 U.S.C. Section 201 et seq., are also eligible
for overtime pay under the provisions of FLSA as implemented for Federal
employees in 5 CFR part 551 and are entitled to be paid overtime under
the provisions which provide them the greater overtime benefit. 5 CFR
Section 532.503(a)(1). It is uncertain whether the grievant is a
nonexempt employee under FLSA. However, assuming that he is nonexempt,
payment of overtime pay to the grievant for the hours of work on
Saturday, January 5 was likewise precluded under FLSA. Employees who
are not exempt are entitled to overtime pay for all hours of work in
excess of 40 hours in a workweek. 5 CFR Section 551.501. However, paid
periods of nonwork for holidays are not considered hours of work under
FLSA. 5 CFR Section 551.401(b). Consequently, with the paid holiday of
January 1, 1985, included in the disputed workweek, payment of overtime
pay to the grievant was precluded under FLSA and implementing
regulations regardless of the Arbitrator's view of the Activity's
treatment of the grievant in relation to Monday, December 31.
(3) In view of this decision, it is not necessary that the Authority
address the other contentions of the Agency in its exception.
23 FLRA NO. 80
Dep't of the Army, Dugway Proving Ground, Dugway, Utah and NAGE,
Local R14-62, Case No. 7-CA-50559 (Decided October 14, 1986)
STATUTE
7103(a)(14)
7105(g)(3)
7116(a)(1) and (5)
7118(a)(7)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practices
Conditions of Employment
Non-Housekeeping Quarters
Assignment to Bachelors
Facilities, Equipment and Services
Non-Housekeeping Quarters
Geographical Bachelor
Refusal to Negotiate
Non-Housekeeping Quarters
Remedy
Status Quo Ante
Disruptive to Agency Operations
Make Whole for Increase Expenses
DIGEST NOTES
The past practice of assigning government-owned, on-post,
non-housekeeping quarters to geographical bachelors is a condition of
employment within the meaning of section 7103(a)(14) at the activity's
remote installation located approximately 45 miles from the nearest
community where limited housing was available. To reach the activity's
installation requires more than an hour commute over a mountain pass
which is either impassable or extremely hazardous during winter storms.
Geographical bachelors (i.e. civilian employees with dependents who are
eligible for family quarters and may or may not be on the waiting list
for such quarters, and who live at the activity's installation but
maintain and commute on weekends to and from a primary residence outside
the installation) had been afforded such housing for approximately 10
years. Although the activity stated that the installation was not a
hardship station, the activity nevertheless conceded that the
availability of housing had a significant impact on civilian employee
recruitment and retention. There was a financial benefit to residing in
on-post housing because those employees had reduced daily commuting
costs. Accordingly, the activity's failure to bargain over a change in
the established practice of assigning government-owned, on-post quarters
to geographical bachelors was a violation of section 7116(a)(1) and (5).
A status quo ante remedy was not warranted for the activity's failure
to negotiate a change in its housing policy for bachelors at a remote
installation. To carry out such a remedy would require the eviction of
other bona fide residence from available activity housing who replaced
the evicted bachelors. Further, the activity offered all of the evicted
bachelors alternative housing so none were actually foreclosed from
continuing on the same work schedule. Instead, the Authority ordered
that the activity make whole the affected employees for their increased
expenses suffered as a result of their eviction.
Case No. 7-CA-50559
DEPARTMENT OF THE ARMY DUGWAY PROVING GROUND DUGWAY, UTAH
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations. The complaint alleged that the Respondent refused to
bargain over a change in the established practice with regard to the
assignment of government-owned, on-post, non-housekeeping quarters to
"geographical bachelors" in violation of section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute).
II. Background
The National Association of Government Employees, Local R14-62,
(Charging Party), is the exclusive representative of the Respondent's
professional employees. It represents approximately 75 of the
Respondent's 747 civilian employees.
The Respondent, Dugway Proving Ground (DPG), is a remote installation
located approximately 45 miles from the nearest community, Tooele, Utah,
where limited housing is available. To reach this community requires
more than an hour commute over a mountain pass which is either
impassable or extremely hazardous during winter storms. DPG is 80 miles
from Salt Lake City, Utah, where a wide variety of housing is available.
There is no housing other than government housing at DPG. Due to this
remote location and the lack of locally-available housing, 250 family
quarters were constructed, and it was required that certain of those
quarters be provided to civilian employees. Other quarters were
constructed for the use of transient and permanent civilian and military
personnel.
Civilian employees at DPG fall into three categories for assignment
of government housing: (1) married civilians with families who are
eligible for family quarters; (2) "bona fide bachelors" (i.e.,
unmarried civilian employees) who are provided non-housekeeping quarters
if available; and (3) "geographical bachelors" (i.e., civilian
employees with dependents who are eligible for family quarters and may
or may not be on the waiting list for such quarters, and who live on DPG
but maintain and commute on weekends to and from a primary residence
outside DPG). The third group and the practice that developed regarding
their housing is the subject of the present case.
On May 9, 1975, DPG issued DPG Regulation 210-7, establishing
priorities for assignment of non-housekeeping quarters (private room
quarters where housekeeping services are not provided) to military and
civilian personnel. Since at least the issuance of that regulation,
geographical bachelors have been provided, upon request, with, at a
minimum, the single occupancy non-housekeeping quarters, thereby
permitting such employees to reside on DPG during the workweek and
commute to their primary residence outside DPG on weekends. Since 1980
these employees have been permitted to work a Monday through Thursday
schedule (10 hours per day).
The initial assignment to non-housekeeping quarters is made by DPG on
an "as available" basis. Under DPG Regulation 210-7, bona fide
bachelors have a higher priority for assignment of non-housekeeping
quarters than geographical bachelors. However, once assigned to such
quarters, the geographical bachelors were not required to vacate the
quarters when new bona fide bachelor employees arrived at the base.
This practice initially developed during a period when DPG had excess
non-housekeeping quarters. This excess no longer existed by January,
1985.
On May 20, 1985, the Commanding Officer informed the three unions
with bargaining unit employees at DPG, including the Charging Party,
that it might be necessary to evict some of the geographical bachelors
in order to provide space for the bona fide bachelors. At that time
there were 48 geographical bachelors, 10 of whom are part of the
Charging Party's bargaining unit. The Commanding Officer followed this
up with a letter to the geographical bachelors evicting them from the
non-housekeeping quarters. This action resulted in the filing of an
unfair labor practice charge that was withdrawn after the Commanding
Officer offered to suspend the eviction action pending review of the
matter by an ad hoc committee and to include union representatives on
the committee. The parties stipulated that the Charging Party's
membership on the committee did not constitute a waiver of its right to
bargain over the proposed change in quarters policy, and that collective
bargaining, as defined by the Statute, did not occur at the meeting.
A majority of the Ad Hoc committee recommended that dual occupancy
dormitory rooms in another building be offered to the geographical
bachelors which would permit their relocation from the single occupancy,
non-housekeeping quarters and use of those quarters by bona fide
bachelors. The Charging Party filed a Minority Opinion with the
Commanding Officer suggesting alternate methods of handling the problem.
The Commanding Officer essentially adopted the majority's
recommendations.
The Commanding Officer informed the Charging Party of his decision to
evict the geographical bachelors on August 5, 1985. On August 6, 1985,
the Charging Party requested to bargain over the Commanding Officer's
decision and submitted an initial proposal to maintain the status quo.
On the same date, the Commanding Officer issued letters to all the
geographical bachelors, including those represented by the Charging
Party. The letter required geographical bachelors to vacate their
quarters and offered dormitory rooms at a higher cost. On the next day,
August 7, 1985, DPG responded to the Charging Party's request to
bargain, stating, "It is the position of this agency that we have
negotiated this issue in question in accordance with applicable statutes
to the limits of our authority. We will have to request a determination
on the negotiability of the regulation through our chain of command to
Headquarters, Department of Army." /1/ No further discussion took place
between the parties. The geographical bachelors were evicted on or
about August 23, 1985.
Of 847 Department of Army civilian employees, 437 occupy DPG family
housing, bachelor officer quarters, or dormitories. Over 400 employees
commute on a daily basis. As stipulated by the parties, the relative
isolation of DPG and the lack of available housing has resulted in a
significant impact on civilian employee recruitment and retention and
has placed DPG at a competitive disadvantage with Tooele Army Depot
where limited facilities are available. Therefore, the possible
availability of housing at DPG is used as a recruitment inducement.
III. Positions of the Parties
The Respondent argues that offering surplus quarters to geographical
bachelors was never considered a condition of employment. The Respondent
noted the Authority's finding in United States Department of Justice,
United States Immigration and Naturalization Service, 14 FLRA 578
(1984), that the assignment of government-owned housing, in the
circumstances of that case, was a condition of employment. However, the
Respondent contends that none of the criteria applied by the Authority
in that case were applicable to the geographical bachelors at DPG. The
Respondent notes that DPG has never been declared a hardship station and
that none of the employees are assigned to serve there as in the cited
case. The Respondent also claims that while there is no housing other
than government-owned in the immediate area, there must be adequate
housing in the commuting area because the majority of the DPG employees
commute to work. The Respondent also argues that it cannot be fairly
said that the housing at DPG was constructed for the benefit and use of
civilian employees because military personnel would have priority if the
mission required an increase in their numbers. Finally, the Respondent
alleges that while the Commanding Officer exercised his discretion in
making the quarters available to geographical bachelors, he was not
delegated the responsibility to make assignments under regulation as in
United States Department of Justice, United States Immigration and
Naturalization Service.
The General Counsel contends that a past practice of assigning
geographical bachelors in the unit to non-housekeeping quarters existed,
and that this practice is a condition of employment. The General
Counsel notes that since 1975 these geographical bachelors have been
provided with quarters during their normal workweek, and that they have
not been required to vacate these quarters when employees with higher
priority arrived at the facility. The General Counsel notes that the
Respondent acknowledged this practice in its regulatory scheme and has
consistently followed it for the ten year period preceding the change on
August 23, 1985.
The General Counsel argues further that the practice is a matter
affecting conditions of employment because it was integrally involved
with the employment of unit employees. The General Counsel claims that
it meets the test applied by the Authority in previous cases for the
following reasons: DPG is a remote location; the assignment of housing
is directly related to the facility's recruitment and retention program;
and, the policy was a direct outcome of the Commander's local
discretion.
Therefore, the General Counsel contends that the unilateral change in
the policy, which is both an established practice and a condition of
employment, violated section 7116(a)(1) and (5) of the Statute.
Finally, the General Counsel submits that a status quo ante order with
backpay to make whole employees who were required to reside in higher
cost quarters and/or commute on a daily basis as a consequence of the
Respondent's unlawful conduct is the only appropriate remedy.
IV. Analysis
A. Was there an Established Past Practice of Assigning
Government-Owned, On-Post, Non-Housekeeping Quarters to
Geographical Bachelors?
Since 1975, as set forth in the Respondent's regulations (DPG 210-7),
the priority for assignment of non-housekeeping quarters has included
geographical bachelors, and the record reflects that geographical
bachelors resided in these quarters until their eviction on August 23,
1985. The Authority concludes, based on the facts set out above, which
are not disputed by the Respondent, that the assignment of
non-housekeeping quarters to the category of employees referred to as
geographical bachelors constituted an established practice at DPG.
B. Is the Past Practice of Assigning Government-Owned
On-Post, Non-Housekeeping Quarters to Geographical
Bachelors a Condition of Employment?
The Authority concludes for the reasons set forth below that the
assignment of non-housekeeping quarters to geographic bachelors is a
condition of employment within the meaning of section 7103(a)(14) of the
Statute. In our recent decision, Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA No. 23
(1986), we described two basic considerations in deciding whether a
particular proposal involved a condition of employment: (1) whether the
matter proposed to be bargained pertains to bargaining unit employees;
and (2) the nature and extent of the effect of the matter proposed to be
bargained on working conditions of those employees. As to the second
consideration, there must be a direct connection between the proposal
and the work situation or employment relationship of bargaining unit
employees.
As to the first consideration, in this case it is undisputed that the
practice of assigning non-housekeeping quarters to geographical
bachelors involved bargaining unit employees. Moreover, any bargaining
unit employee meeting the definition of geographical bachelor was
eligible. Therefore, the established past practice pertains to
bargaining unit employees.
With respect to the second consideration, we conclude that the
General Counsel has established a direct connection between the practice
of assigning non-housekeeping quarters to geographical bachelors and
their work situation or employment relationship. The parties stipulated
that government housing was constructed with the proviso that a portion
be set aside for civilian use because of the remote location of DPG.
The relative isolation and lack of available housing resulted in a
significant impact on civilian employee recruitment and retention, and
the potential availability of housing was used as a recruitment
inducement. Further, there was a financial benefit to residing in
on-post housing because those employees had reduced daily commuting
costs. Moreover, there is a connection between hours of work and
geographical bachelors' assignment to the housing because the
geographical bachelors were permitted to work a four day week (ten hours
per day) which increased the amount of time spent with their families.
In sum, the practice of assigning non-housekeeping quarters to
geographical bachelors pertains to bargaining unit employees and has a
direct effect on the working conditions of those employees. The
practice constitutes a condition of employment of bargaining unit
employees.
V. Conclusion
Having concluded that the practice of assigning government-owned,
on-post, non-housekeeping quarters to geographical bachelors is a
condition of employment, the Authority finds that Respondent's failure
to bargain upon request with the Charging Party over its change
constitutes a failure to bargain in good faith in violation of section
7116(a)(1) and (5) of the Statute.
VI. Remedy
As noted above, the General Counsel requested, in addition to a cease
and desist order, both status quo ante relief and a make whole order to
reimburse those unit employees unlawfully affected by the eviction. We
conclude that status quo ante relief, limited to reinstitution of the
practice of assigning single occupancy, non-housekeeping quarters to
geographical bachelors, as supplemented by an order requiring the
parties to negotiate and give retroactive effect to any agreement
reached, will best effectuate the purposes and policies of the Statute.
/2/
In carrying out its statutory functions, the Authority has wide
discretion to fashion remedies under section 7105(g)(3) and section
7118(a)(7) of the Statute. /3/ In this case, the General Counsel
requests a status quo ante remedy that would require the eviction of any
bona fide bachelor who replaced an evicted geographical bachelor. Such
a requirement would have an obvious disruptive effect on the agency's
operations as well as on the employees involved, Further, the Respondent
offered all of the evicted geographical bachelors alternative housing at
DPG so none were actually foreclosed from continuing on the same work
schedule. In view of these facts, we conclude that displacement of any
bona fide bachelor residing in the disputed quarters is unwarranted.
While not ordering eviction of the bona fide bachelors to make room
for geographical bachelors, we view as appropriate that affected
employees be made whole for increased expenses resulting from the
Respondent's improper action. In our view, a determination of these
expenses can best be made by ordering the Respondent, upon request, to
negotiate with the Union with respect to the change in conditions of
employment involved in this case. Thereafter, Respondent shall make
whole affected employees for their increased expenses suffered as a
result of their eviction, consistent with applicable law and taking into
account the agreement resulting from the negotiations we are ordering,
applied retroactive to the date of the eviction.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is ordered that the Department of
the Army, Dugway Proving Ground, Dugway, Utah, shall:
1. Cease and desist from:
(a) Refusing to negotiate with the National Association of Government
Employees, Local R14-62, the exclusive representative of certain of its
employees, concerning a change in the practice of assigning
government-owned, on-post, non-housekeeping quarters to geographical
bachelors in the bargaining unit.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reinstate the past practice of assigning government-owned,
on-post, single occupancy, non-housekeeping quarters to geographical
bachelors.
(b) Make available to the evicted bargaining unit geographical
bachelors any equivalent vacant non-housekeeping quarters.
(c) Negotiate, upon request, over the change in conditions of
employment which resulted in the unlawful eviction of bargaining unit
geographical bachelors, and make them whole for their increased expenses
suffered as a result of their eviction, consistent with applicable law
and taking into account the agreement resulting from the negotiations
the Authority is ordering, applied retroactive to the date of the
eviction.
(d) Negotiate in good faith, upon request, over any proposed change
in the practice of assigning government-owned, on-post, non-housekeeping
quarters to geographical bachelors in the bargaining unit represented
exclusively by the National Association of Government Employees, Local
R14-62.
(e) Post at Dugway Proving Ground, Dugway, Utah, in all facilities
where bargaining unit employees are located, copies of the attached
notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer, 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 ensure that such
notices are not altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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 with it.
Issued, Washington, D.C., October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Respondent was referring to Army Regulation (AR) 210-11,
Billeting Operations, which provided for quarters assignment priorities.
For purposes of this case, the Respondent is not asserting that a
compelling need exists for this regjlation. Also, as noted previously,
Respondent stipulated that (1) the Charging Party's membership on the Ad
Hoc committee did not waive any right to bargain over the changes, and
(2) collective bargaining did not occur at the committee meetings.
(2) Reinstitution of the practice shall include making available to
the evicted unit geographical bachelors any vacant equivalent quarters.
(3) See, for example, the discussion in footnote 4 of Veterans
Administration, Washington, D.C. and Veterans Administration Medical
Center and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 64
(1986).
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate with the National Association of
Government Employees, Local R14-62, the exclusive representative of
certain of our employees, concerning a change in the practice of
assigning government-owned, on-post, non-housekeeping quarters to
geographical bachelors in the bargaining 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
Statute.
WE WILL REINSTATE the past practice of assigning government-owned,
on-post, single occupancy, non-housekeeping quarters to geographical
bachelors.
WE WILL make available to the evicted bargaining unit geographical
bachelors any equivalent vacant non-housekeeping quarters.
WE WILL negotiate, upon request, over the change in conditions of
employment which resulted in the unlawful eviction of bargaining unit
geographical bachelors and, make them whole for their increased expenses
suffered as a result of their eviction, consistent with applicable law
and taking into account the agreement resulting from the negotiations
the Authority is ordering, applied retroactive to the date of the
eviction.
WE WILL negotiate in good faith, upon request, over any proposed
change in the practice of assigning government-owned, on-post,
non-housekeeping quarters to geographical bachelors in the bargaining
unit represented exclusively by the National Association of Government
Employees, Local R14-62.
(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 VII, whose address is: 535 16th Street, Suite 310,
Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.
23 FLRA NO. 79
NFFE, Local 29 and Kansas City District, Corps of Engineers, Kansas
City, Mo., Case No. 0-NG-1050 (Decided October 14, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(B) and (C)
7117(a)(1)
SUBJECT MATTER INDEX ENTRIES
FPM Supplement 335-1
Negotiability
Management Rights
Fill Positions
Minimum Area of Consideration
Positions, Filling of
Area of Consideration
Rate Bargaining Unit Employees Prior to Expanding Area
Crediting Plans
Job Analysis
Weight Given Knowledge, Skills, Abilities
5 C.F.R. section 300.103(a)
Rating Panels
Requirement to Use
5 C.F.R. 335.103
DIGEST NOTES
A proposal is negotiable that requires the agency to consider unit
employees for vacant positions prior to expanding the minimum area of
consideration to include other appropriate sources. The proposal does
not violate management's right to select under section 7106(a)(2)(C).
(proposal 1)
Proposals are nonnegotiable that set forth the weight that knowledge,
skills, abilities and other factors (KSAOs) are to be given in
evaluating candidates for positions, although the proposals do not
define the applicable KSAOs. One section of the proposal would apply
the same point scale to each KSAO -- that is, under the proposal, each
of the KSAOs is presumed to be of equal value in evaluating the
candidate under the crediting plan. Another section would establish the
respective weights to be given to the supervisory evaluation and the
candidates' responses, and would add additional specified points to a
candidate's overall rating based upon education and performance rating.
The proposals are not in any way based on job analysis which shows a
connection between the proposals and the positions for which the
candidates are applying. Accordingly, the proposals are inconsistent
with 5 C.F.R. section 300.103(a). (proposals 2(a), 2(b) and 3(b))
A proposal is within the duty to bargain that requires the agency to
(1) rate and rank bargaining unit applicants prior to expanding the area
of consideration for a position and (2) use a panel for the rating and
ranking process where there are three or more qualified bargaining unit
applicants. The proposal is not intended to require the agency from
expanding the area of consideration. Thus the proposal is a negotiable
procedure which does not directly interfere with management rights.
Case No. 0-NG-1050
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29
Union
and
KANSAS CITY DISTRICT, CORPS OF ENGINEERS, KANSAS CITY, MISSOURI
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 three Union proposals. /1/
II. Union Proposal 1
ARTICLE 14
Section 3. a. It is agreed that the Employer will utilize, to
the maximum extent possible, the knowledge, skills and ability of
its employees. Therefore, consideration will be first given
bargaining unit employees in the filling of bargaining unit
positions. The employer will not solicit applications from
outside the minimum area of consideration, the Kansas City
District, or call for an OPM register of candidates if three or
more highly/best qualified candidates are identified within the
minimum area of consideration.
b. If the minimum area of consideration fails to yield at
least three best qualified candidates or, if after consideration
is given to best qualified candidates within the bargaining unit,
the employer may expand the area of consideration to all the
highly qualified candidates within the bargaining unit, if
necessary. After consideration of the highly qualified unit
employees, the employer may expand the area of consideration to
other appropriate sources, if necessary. (Within this proposal,
only the underscored portion is in dispute.)
A. Positions of the Parties
The Agency states that, if both sections (a) and (b) of Union
Proposal 1 are considered together, the proposal is negotiable under the
Authority's holding in American Federation of Government Employees,
AFL-CIO, Local 331 and Veterans Administration Hospital, Perry Point,
Maryland, 2 FLRA 427 (1980). However, the Agency contends that, because
it made no allegation that section (b) of the proposal was outside the
duty to bargain, the Authority should consider the negotiability of
section (a) alone. It argues that section (a) of the proposal violates
its right to select under section 7106(a)(2)(C) of the Statute in that
it would prohibit the Agency from expanding the area of consideration or
selecting from any appropriate source.
The Union contends that both sections (a) and (b) were presented to
the Agency and that both sections should, therefore, be considered in
determining the negotiability of Union Proposal 1. It argues that the
proposal does not prevent management from expanding the area of
consideration after first considering unit employees and is within the
duty to bargain.
B. Analysis and Conclusion
The Authority rejects the Agency's contention that only section (a)
should be considered in determining the negotiability of Union Proposal
1. Section (b) of the Union's proposal qualifies the language of
section (a) -- that is, section (b) provides that the Agency may expand
the area of consideration to additional sources after first considering
the sources described in section (a). We find that the proposal should,
therefore, be read as a whole. The Agency's contention that the
proposal should not be read in its entirety because it declared only
section (a) of the proposal to be nonnegotiable is without merit.
We find, as conceded by the Agency, that Union Proposal 1 is to the
same effect as the proposal that the Authority found to be within the
duty to bargain in the VA Hospital, Perry Point case. The proposal in
that case similarly would have required the agency to consider unit
employees for vacant positions prior to expanding the minimum area of
consideration. The Authority held that the proposal in VA Hospital,
Perry Point did not violate the agency's right to make selections from
any appropriate source in that it only required the agency to give
consideration to, but not to select, unit employees for vacant
positions. Accordingly, for the reasons set forth more fully in VA
Hospital, Perry Point, Union Proposal 1 is within the duty to bargain.
III. Union Proposals 2 and 3
ARTICLE 14
(Union Proposal 2)
Section 4 -- Crediting Plan.
a. The Employer will establish ad hoc committees for the
purpose of establishing the levels of knowledge, skills and
ability (KSAs) for each job element (crediting plan), to be used
in rating and ranking applicants. The Union will be notified
prior to the establishment of such committees and may recommend
unit employees for membership on the committee. At a minimum,
committee members must have occupied a position at a grade
equivalent to the grade at which the position will be filled and
must be capable of making an informed decision regarding the job
elements, criteria and qualifications pertinent to the
occupational field of the position.
b. The Crediting Plan will be based solely on job-related
criteria and must be consistent with the major job elements in the
performance standards for the position. The committee will
establish four levels of rating for each job element of the
Crediting Plan. These four levels will be expressed as narrative
statements of the KSAs necessary to obtain a particular level.
These levels are as follows:
(1) Outstanding -- candidates KSAs in this element exceed
expectations to such an extent that it warrants special
consideration: 4 Points
(2) Superior -- candidates KSAs in this element are clearly
above that expected of a fully competent employee: 3 Points
(3) Satisfactory -- candidates KSAs in this element are
expected to be that of a fully competent employee: 2 Points
(4) Marginal -- candidates KSAs in this element are weak but of
some value: 1 Point
For Wage Grade positions, the Crediting Plans will have an
additional section for "Basic Eligibility," listing the set of
approved standard KSA elements in OPM Handbook X-118C and will
describe both the 2 point (barely acceptable) and 1 point (weak
but of some value), levels for each element. (Within this
proposal, only the underscored portion is in dispute.)
(Union Proposal 3)
Section 5 -- Candidate Evaluation.
a. The Employer will rate and rank all bargaining unit
applicants prior to expanding the area of consideration and/or
when two or more unit employees apply for a position to be filled.
The Employer will establish a rating and ranking panel on all
positions where there are three or more qualified bargaining unit
applicants. The Union will be notified prior to the establishment
of such a panel and may recommend unit employees for membership on
the panel. At a minimum, panel members must have occupied a
position at a grade equivalent to the grade at which the position
will be filled and must be capable of making an informed decision
regarding the job elements, criteria and qualifications relative
to the crediting plan and not be a candidate for the position.
All materials used by rating and ranking panels shall be sanitized
of names and social security numbers.
b. The candidate evaluation will consist of two parts. The
first part will be the supervisor's appraisal which will consist
of a "Task Level Questionnaire", in which the supervisor will
identify one of the four narrative levels of each job element,
which closest describes the candidates demonstrated knowledge,
skill or ability. The second part of the candidate evaluation
will be the candidate's questionnaire, in which the candidate will
provide a narrative description of his/her knowledge, skills, or
ability for each job element. The candidate's questionnaire will
then be compared against the crediting plan for his/her rating on
each job element. A mathematical average will be computed for the
supervisor's questionnaire (SQ), and the candidate's questionnaire
(CQ); each will then be placed in the following formula to arrive
at the candidate's overall rating, ((SQ x .25) + (CQ x .75)) x 25
equals Overall rating. To the overall rating points will be
added, as follows:
DEGREE POINTS
PhD equals 10
MS or MA equals 7
BS or BA equals 5
Associate Degrees equals 2
12-60 Credit Hours equals 1
PERFORMANCE RATING POINTS
Exceptional equals 3
Highly Successful equals 2
Fully Successful equals 1
Candidates and their ratings will be listed on the Selection
and Referral List in numerical order, with the highest rated
candidate first and lowest rated candidate last. In cases where
two or more candidates have the same numerical rating, the service
computation date will be used as a tie-break with the most senior
listed first. (Within this proposal, only the underscored portion
is in dispute.)
A. Positions of the Parties
The Agency contends that Union Proposals 2 and 3 would require it to
negotiate concerning the content of crediting plans in violation of its
rights under section 7106(a)(2)(B) and (C) of the Statute to determine
the personnel by which agency operations will be performed and to make
selections for appointments. The Agency also incorporates arguments
made by the Office of Personnel Management (OPM) concerning the
Authority's decision in National Treasury Employees Union and NTEU
Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA
209 (1983), enforcement denied sub nom. U.S. Customs Service, Region II
v. Federal Labor Relations Authority, 739 F.2d 829 (2d Cir. 1984). OPM
contends that bargaining over the content of crediting plans (1)
violates management's rights to select, assign work, and determine the
personnel by which agency operations will be conducted; and (2) is
inconsistent with various laws and Government-wide regulations,
including 5 C.F.R. Section 335.103 and Federal Personnel Manual (FPM)
Supplement 335-1.
The Union contends that Proposals 2 and 3 can be distinguished from
the proposals in U.S. Customs Service, Region II. It argues that the
proposals in that case specifically defined the evaluation criteria and
measurement tools by which candidates would be ranked but that the
proposals in dispute here leave those determinations to a
management-appointed committee. The Union argues that subsection (b) of
Proposal 2 here merely states the number of rating levels to be applied
in judging candidates based on the knowledge, skills, abilities and
other factors (KSAOs) which the committee has determined to be relevant.
The Union claims, therefore, that Proposal 2 reserves greater authority
to the Agency than the proposals in U.S. Customs Service, Region II. It
further argues that subsection (b) of Proposal 3 is also distinguishable
from the proposals in that case because the proposal leaves the bulk of
the overall rating to the committee's assessment of a candidate's KSAOs
and a supervisory evaluation -- both management determinations. It also
argues that subsection (a) of Proposal 3 is not concerned with the
content of the Agency's crediting plan at all, and does not prevent
management from expanding the area of consideration or selecting a
candidate from any other appropriate source. Also, the Union disputes
the arguments contained in the OPM statement.
B. Analysis and Conclusions
Union Proposals 2 and 3 concern the process by which the Agency
evaluates candidates for positions -- that is, the Agency's "crediting
plan." In The Montana Air Chapter of Association of Civilian Technicians
and U.S. Department of the Air Force, Montana Air National Guard, 19
FLRA No. 112 (1985), the Authority adopted the decision of the United
States Court of Appeals for the District of Columbia Circuit in
Department of the Treasury, U.S. Customs Service v. Federal Labor
Relations Authority, 762 F.2d 1119 (D.C. Cir. 1985) and held that a
proposal which assigned points for crediting plan purposes solely on the
basis of seniority was inconsistent with 5 C.F.R. Section 300.103(a).
/2/ The Authority found that section 300.103(a) required that crediting
plans, like other employment practices, be derived from a job analysis,
and that the union had not demonstrated that any job analysis had been
conducted which linked seniority to success in the particular
position(s) in question.
The Union contends that Proposals 2 and 3 in dispute here are
different than the type of proposals in Montana Air National Guard
because its proposals allow the Agency to determine the KSAOs relevant
to the position. However, while the proposals in dispute here do not
define the applicable KSAOs, they do set forth how much weight those
KSAOs are to be given in evaluating candidates. For example, subsection
(b) of Proposal 2 would apply the same point scale to each KSAO -- that
is, under the proposal, each of the KSAOs is presumed to be of equal
value in evaluating the candidate under the crediting plan.
Additionally, subsection (b) of Proposal 3 would establish the
respective weights to be given to the supervisory evaluation and the
candidates' responses, and would add additional points to a candidate's
overall rating based upon education and performance ratings. Contrary
to the Union's contentions, these provisions are not procedures but
instead concern the substantive aspects of the Agency's crediting plan.
As to subsection (b) of Proposal 2, nothing in the Union's
submissions would indicate that its proposed assignment of equal weight
to all KSAOs is in any way derived from a job analysis. Additionally,
the Union has not demonstrated that subsection (b) of Proposal 3 is
based on a job analysis which shows a connection between performance in
a current position or degrees held by a candidate and success in the
position(s) for which candidates are applying. 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,
21 FLRA No. 115 (1986). Accordingly, for the reasons set forth in the
Montana Air National Guard decision, subsection (b) of Proposal 2 and
subsection (b) of Proposal 3 are inconsistent with 5 C.F.R. Section
300.103(a) and are outside the duty to bargain under section 7117(a)(1)
of the Statute. In view of this decision, it is unnecessary for us to
decide whether those sections also violate management's rights or are
inconsistent with the laws and regulations cited by OPM.
The Agency, in its Statement of Position, does not state any specific
objection to subsection (a) of Union Proposal 3. Rather, the Agency
makes only general objections concerning the content of crediting plans.
Subsection (a) of Proposal 3, however, is not concerned with the
content of the Agency's crediting plan. Instead, subsection (a)
discussed above, would require the Agency to (1) rate and rank
bargaining unit applicants prior to expanding the area of consideration
for a position and (2) use a panel for the rating and ranking process
where there are three or more qualified bargaining unit applicants. The
Union states that its proposal is not intended to require the Agency to
select a unit employee and does not preclude the Agency from expanding
the area of consideration. Union Response at 3-4, 10. We agree with
the Union's interpretation and find that, like Union Proposal 1,
subsection (a) of Proposal 3 constitutes a procedure which does not
directly interfere with the Agency's rights. Additionally, because
subsection (a) is not concerned with the content of the Agency's
crediting plan, we find that the arguments raised in the OPM statement
are inapplicable. Accordingly, we conclude that subsection (a) of Union
Proposal 3 is within the duty to bargain.
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning Union Proposal 1 and subsection
(a) of Union Proposal 3. /3/ IT IS FURTHER ORDERED that the Union's
petition for review as to Union Proposal 2 and as to subsection (b) of
Union Proposal 3 be, and it hereby is, dismissed.
Issued, Washington, D.C., October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Union withdrew its appeal as to one additional proposal
concerning the removal of probationary employees. This proposal will
not be considered further here.
(2) 5 C.F.R. Section 300.103(a) reads in pertinent part:
Section 300.103 Basic Requirements
(a) Job analysis. Each employment practice of the Federal
Government generally, and of individual agencies, shall be based
on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform
the duties and responsibilities; and
(3) The factors that are important in evaluating candidates.
The job analysis may cover a single position or group of
positions, or an occupation or group of occupations, having common
characteristics.
(3) In finding these proposals within the duty to bargain, the
Authority makes no judgment as to their merits.
Case No. 0-AR-1227
Sacramento Air Logistics Center McClellan Air Force Base
Activity
and
American Federation of Government Employees, Local 1857, AFL-CIO
Union
October 7, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Emily Maloney filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, that the award is contrary to
any law, rule, or regulation, or that the award is deficient on other
grounds similar to those applied by Federal courts in private sector
labor-management relations.
Accordingly, the Agency's exceptions are denied. /*/
Issued, Washington, D.C., October 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Agency's request for a stay is likewise denied.
Case No. 0-AR-1217
Department of the Army New Orleans Corps of Engineers
Activity
and
National Federation of Federal Employees, Local 1124
Union
October 7, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Samuel J. Nicholas filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1214
American Federation of Government Employees, Local 2309
Union
and
Social Security Administration
Agency
October 7, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Sidney J. Kronish filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1190
Food and Nutrition Service U.S. Department of Agriculture
Agency
and
National Treasury Employees Union, Chapter 226
Union
September 29, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Charles E. Donegan filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, that the award is contrary to
any law, rule, or regulation, or that the award is deficient on other
grounds similar to those applied by Federal courts in private sector
labor-management relations.
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1160
Social Security Administration Boston Region
Activity
and
American Federation of Government Employees, Local 1164
Union
September 29, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator David R. Bloodsworth filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute and
part 2425 of the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, that the award is contrary to
any law, rule, or regulation, or that the award is deficient on other
grounds similar to those applied by Federal courts in private sector
labor-management relations.
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1158
Federal Deposit Insurance Corporation
Agency
and
National Treasury Employees Union
Union
September 29, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator John P. McGury filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, that the award is contrary to
any law, rule, or regulation, or that the award is deficient on other
grounds similar to those applied by Federal courts in private sector
labor-management relations.
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 0-AR-1137
Marine Corps Logistics Base Barstow, California
Activity
and
American Federation of Government Employees, Local 1482
Union
September 29, 1986
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Joseph Gentile filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
Upon careful consideration of the entire record before the Authority,
the Authority concludes 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.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
23 FLRA NO. 78
DOJ, U.S. Marshals Service and Int'l Council of U.S. Marshals Service
Locals, AFGE (Hewitt, Arbitrator), Case No. 0-AR-977 (Decided October 7,
1986)
STATUTE
7116(d)
7121(d)
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Election of Remedy
Grievance Barred
Matter Raised Under EEO Procedures
"Matter" Within the Meaning of Section 7121(d)
"Prohibited Personnel Practice"
Exceptions Asserted in Appeal
Award Contrary to Section 7121(d)
5 U.S.C. Section 2302(a)(2)(A)(iii) and 2302(b)(1)
29 U.S.C. Section 631 and 633a
42 U.S.C. Section 2000e-16
DIGEST NOTES
The grievance concerned the suspension of the grievant for malicious
false statements and for an unexcused absence. The activity proposed a
5-day suspension. Subsequently, the grievant amended a previously filed
ULP charge to claim that the activity was threatening him with
disciplinary action as a reprisal against him for protected activity.
He then filed a formal complaint under statutory EEO procedures alleging
he had been discriminated against because of his race and age and
demanding that he not be suspended as proposed. Several months later,
the activity issued a final decision suspending the grievant for 5 days.
The grievant then filed a grievance which was submitted to arbitration
protesting the suspension as discriminatory and not for just cause.
Before the arbitrator, the activity argued that the grievance was
barred, under Section 7121(d), by the earlier-filed EEO complaint and
under Section 7116(d) by the earlier-filed amended ULP charge. The
arbitrator acknowledged that the EEO complaint was the employee's option
because it was filed before the grievance and expressly concerned the
suspension action. He however found that the grievant had exercised his
option under Section 7121(d) only as to the issue of discrimination. He
ruled that the issue of whether the suspension was for just cause had
not been raised elsewhere and therefore was not precluded by the Section
7121(d) or Section 7116(d). On that issue he sustained only the
unexcused absence charge and reduced the suspension to 1 day.
In its exception the agency contended that the award was contrary to
Section 7121(d). The agency argued that the grievance was barred by the
earlier filed EEO complaint and that the matter the grievant elected to
raise under the statutory procedure was the matter of his suspension
allegedly because of his race and age, a prohibited personnel practice
under 5 U.S.C. Action 2302(b)(1). The Authority held that there was an
election by the grievant to raise the matter under the statutory EEO
procedures, therefore, the matter was prohibited from being relitigated
under the negotiated grievance procedure. Section 7121(d) provides that
when an employee affected by a prohibited personnel practice under
Section 2302(b)(1) has timely raised the matter under an applicable
statutory procedure, the matter subsequently may not be raised as a
grievance. The Authority has identified two conditions of Section
7121(d) which must be met in order for a grievance to be precluded: 1)
The matter which is the subject of the grievance is the same matter
initiated under the statutory procedure; and 2) the matter was earlier
raised by the employee timely initiating an action under the statutory
procedure. Both conditions were met in this case. The term "matter" as
used in Section 7121(d) refers not to the issue or claim of prohibited
discrimination, but rather, to the suspension action. The Authority
found that the matter raised both by the grievance and the formal
complaint of discrimination was the suspension, either proposed or
final, of the grievant.
The term "matter" described in Section 7121(d) pertains to prohibited
personnel practices under Section 2302(b)(1). In turn, Section 2302(b)
describes prohibited personnel practices in terms of "any personnel
action" with "personnel action" defined in Section 2302(a)(2)(A)(iii) to
include a suspension for 14 days or less. Section 2302(b)(1) prohibits
any employee who has authority to take, direct others to take,
recommend, or approve any personnel action from discriminating with
respect to such personnel action authority. Thus a personnel action is
central to the prohibited practice of Section 2302(b)(1) and
specifically encompasses recommended and approved personnel actions.
Case No. 0-AR-977
U.S. DEPARTMENT OF JUSTICE UNITED STATES MARSHALS SERVICE
Activity
and
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS, AFGE
Union
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Thomas L. Hewitt filed by the Department of Justice (the
Agency) under section 7122(a) of the Federal Service Labor-Management
Relations Statute and part 2425 of the Authority's Rules and
Regulations. The Union filed an opposition and the Office of Personnel
Management filed a brief as an amicus curiae.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the suspension of the grievant
for malicious false statements and for an unexcused absence. On
December 28, 1983, the Activity proposed to suspend the grievant for 5
days. On January 3, 1984, the grievant amended a previously filed
unfair labor practice charge to claim that the Activity was threatening
him with disciplinary action as a reprisal against him for protected
activity. On January 4, 1984, he filed a formal complaint under
statutory equal employment opportunity (EEO) procedures alleging he had
been discriminated against because of his race and age and demanding
that he not be suspended as proposed. On March 27, 1984, the Activity
issued a final decision suspending the grievant for 5 days. On April
23, 1984, the grievant filed a grievance which was submitted to
arbitration protesting that the suspension was discriminatory and not
for just cause.
In the proceeding before the Arbitrator, the Activity argued that
under section 7121(d) of the Statute, /1/ the grievance was barred by
the earlier-filed EEO complaint. The Activity also argued that under
section 7116(d) of the Statute, the grievance was barred by the
earlier-filed amended unfair labor practice charge. The Arbitrator
acknowledged that the EEO complaint was filed before the grievance and
expressly concerned the suspension action. The Arbitrator found that
"(t)he EEO complaint is therefore recognized as the employee's option in
this case." However, the Arbitrator further found that the grievant had
exercised his option under section 7121(d) only as to the issue of
discrimination in the matter. He ruled that the issue of whether the
suspension was for just cause had not been raised elsewhere and
therefore was not precluded by section 7121(d). He similarly ruled that
the issue of just cause in the matter was also not precluded by section
7116(d). On the issue of just cause, the Arbitrator determined that
only the unexcused absence charge was sustained and he reduced the
suspension to 1 day.
III. EXCEPTIONS
In its exceptions the Agency contends that the award is contrary to
section 7121(d) of the Statute. /2/ Specifically, the Agency argues
that the grievance was barred by the grievant's earlier filing of a
formal complaint of discrimination under statutory EEO procedures. The
Agency maintains that contrary to the finding of the Arbitrator, the
matter the grievant elected to raise under the statutory procedure was
the matter of his suspension allegedly because of his race and age, a
prohibited personnel practice under 5 U.S.C. Section 2302(b)(1). /3/
Thus, the Agency asserts that the raising of the matter of his
suspension subsequently under the negotiated grievance procedure was
precluded by section 7121(d) which provides the employee an option, but
bars use of both procedures.
IV. ANALYSIS AND CONCLUSIONS
Section 7121(d) effectively provides that when an employee affected
by a prohibited personnel practice under section 2302(b)(1) has timely
raised the matter under an applicable statutory procedure, the matter
subsequently may not be raised as a grievance. In American Federation
of Government Employees, Local 3230, AFL-CIO and Equal Employment
Opportunity Commission, 22 FLRA No. 44 (1986), the Authority identified
the two conditions of section 7121(d) which must be met in order for a
grievance to be precluded:
1. The matter which is the subject of the grievance is the
same matter which is the subject of the action initiated under the
statutory procedure, and
2. Such matter was earlier raised by the employee timely
initiating an action under the statutory procedure.
In this case we conclude that both of the conditions of section
7121(d) were met and that consequently the matter before the Arbitrator
was precluded by the Statute from being raised as a grievance.
Specifically, we find in this case that the term "matter" as used in
section 7121(d) refers not to the issue or claim of prohibited
discrimination, but, rather, to the suspension action. The term
"matter" described in section 7121(d) pertains to prohibited personnel
practices under section 2302(b)(1). In turn, section 2302(b) describes
prohibited personnel practices in terms of "any personnel action" with
"personnel action" defined in section 2302(a)(2)(A)(iii) to include a
suspension for 14 days or less. Section 2302(b)(1) prohibits any
employee who has authority to take, direct others to take, recommend, or
approve any personnel action from discriminating with respect to such
personnel action authority. Thus, a personnel action is central to the
prohibited practice of section 2302(b)(1) and specifically encompasses
recommended and approved personnel actions. Accordingly, we find that
the matter raised both by the grievance and the formal complaint of
discrimination was the suspension, either proposed or final, of the
grievant.
As noted, the Arbitrator acknowledged that the EEO complaint
expressly concerned the suspension action. The complaint expressly
referenced the suspension action and the grievant in the complaint
expressly requested as corrective action that he not be suspended as
proposed. This is in contrast to the situation presented in EEOC, 22
FLRA No. 44. In that case there was no express reference in the EEO
complaint to the suspension action over which the grievance was filed
and no requested corrective action in the complaint relating to that
suspension. Accordingly, we agreed with the arbitrator that the matters
raised by the EEO complaint and the grievance in that case were
different and denied the exception contending otherwise.
In summary, there was an election by the grievant, the aggrieved
employee, to raise the matter in this case under the statutory EEO
procedures. The Authority has recognized that a primary purpose and
effect of election-of-remedy provisions of the Statute is to prevent
relitigation of a matter in another forum after a choice of procedures
in which to raise the matter has been made by the aggrieved party. See
U.S. Department of Justice, United States Marshals Service and
International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA No.
60 (1986). Slip op. at 4. Thus, since it is undisputed that the
complaint was filed first, the matter raised by the grievant in his
formal EEO complaint was prohibited from being relitigated under the
negotiated grievance procedure. Consequently, the grievance before the
Arbitrator was precluded by the Statute from consideration.
V. DECISION
For these reasons, the award is deficient as contrary to section
7121(d) of the Statute and is set aside. /4/
Issued, Washington, D.C., October 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Section 7121(d) pertinently provides:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also falls
under the coverage of the negotiated grievance procedure may raise
the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first.
(2) The Agency also contends that the award is contrary to section
7116(d) of the Statute.
(3) Section 2302(b)(1) pertinently provides:
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not, with
respect to such authority --
(1) discriminate for or against any employee or applicant for
employment --
(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15
of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
631, 633a)(.)
(4) In view of this decision, it is not necessary that we address the
Agency's other exception to the award.
23 FLRA NO. 77
AFGE, Local 3511 and VA, Audie L. Murphy Memorial Veterans Hospital,
San Antonio, Tex., Case No. 6-CO-50043 (Decided September 30, 1986)
STATUTE
7116(b)(1), (5) and (8)
7122(a) and (b)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practice
Union Violations
Failure to Comply With Arbitration Award
Refusal to Comply with Section 7122
Remedy
Fully Comply With Arbitrator's Award
Contact Television Stations -- Request Announcements
Place Local Newspaper Advertisements
DIGEST NOTES
The Authority held that the union violated Section 7116(b)(8) when it
failed and refused to comply with the requirements of Section 7122 by
refusing to fully implement an arbitration award after its exceptions to
the arbitrator's award had been denied by the Authority. The Authority
held that there was no question as to whether the union had complied
with the award since the union admitted that it had not done so. The
union defended its failure and refusal to comply by reiterating an
argument previously made in an exception that was considered and denied
by the Authority. A party to an arbitrator's award must implement such
an award, when timely filed exceptions to the award have been denied by
the Authority. The failure or refusal by a party to implement such an
award constitutes a violation of Section 7116(a)(1) and (8) or Section
7116(b)(1) and (8). The Authority ordered that the union fully comply
with the award which included requirements that the union purchase
newspaper advertisements and contact local television stations with a
request that they announce that the union's previously broadcast
accusations were erroneous.
Calhoun Dissent. Chairman Calhoun concurred in the Authority's
conclusion that the union failed to comply with the arbitration award
and therefore violated Section 7116(b)(8). However, Chairman Calhoun
dissented from the Order of this decision stating: "I do not believe
that the policies and purposes of the Statute will be effectuated at
this time by ordering the (union) to purchase ads in local newspapers .
. . or contact the local television stations for the purpose of having
them announce that previously broadcast accusations of the union were
erroneous . . . While the publication and broadcast remedy may well be
proper in other cases, the extraordinary nature of that remedy coupled
with the passage of time leads me to conclude that it is inappropriate
here."
Case No. 6-CO-50043
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3511, AFL-CIO
Respondent
and
VETERANS ADMINISTRATION AUDIE L. MURPHY MEMORIAL VETERANS HOSPITAL,
SAN ANTONIO, TEXAS
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 General Counsel filed a brief for
the Authority's consideration.
The complaint alleges that the Respondent Union violated section
7116(b)(1), (5) and (8) of the Statute by failing and refusing to comply
with the provisions of section 7122 of the Statute by refusing to fully
comply with an arbitrator's award to which exceptions were filed and
which had been subsequently denied by the Authority.
II. The Facts
The Veterans Administration and the American Federation of Government
Employees, AFL-CIO have been parties to a master agreement covering a
nationwide consolidated unit, including employees of the Audie L. Murphy
Memorial Veterans Hospital, San Antonio, Texas (Activity). The Activity
has recognized the Respondent Union as the local representative of AFGE
for the purposes of collective bargaining and representation of a unit
of Activity employees.
On October 5, 1983, the Activity filed a grievance alleging that the
Respondent Union had violated Articles 6 and 24 of the master agreement
by, among other things, issuing a news release which made libelous and
defamatory attacks upon management and employees of the facility
concerning the disposal of certain material. On June 25, 1984,
Arbitrator Harry L. Johnson issued an award finding that the Union had
violated the agreement as alleged and sustaining the Activity's
grievance. As a remedy, the Arbitrator directed the Union to take the
following actions:
1. Purchase a one-half page ad in all San Antonio daily
newspapers stating clearly and without ambiguity, a) that what was
found in the autopsy room did not contain any human tissue; b)
that the action taken by the officials of AFGE was in violation of
the VA/AFGE Master Agreement; and c) that in the future, the
terms/conditions of the contract will be followed.
2. Write a letter addressed to all employees retracting all
allegations in this case and post the letter with a copy of the
advertisement on both bulletin boards used by AFGE for a period of
sixty (60) days.
3. Write a letter to Management committing President Garcia
and Vice President Fenstermacher and Local 3511 to the provisions
of the VA/AFGE Master Agreement with the assurance that, in the
future, all matters that concern the Local will be brought to the
attention of Management in accordance with the Master Agreement.
4. Forward a copy of the letters in 2 & 3 along with a copy of
the paid advertisement to Television Stations Channels 4, 5, and
12, requesting them to announce that Union's charges which they
broadcast were erroneous.
5. Complete the above tasks on or before July 16, 1984, at
4:30 p.m. with copies to Management.
The Respondent Union filed timely exceptions to the Arbitrator's
award with the Authority alleging that the award was contrary to law,
including the Constitution of the United States, and the master
agreement. The Activity filed an opposition, contending that the
Union's arguments constituted nothing more than disagreement with the
Arbitrator's findings of fact and his interpretation and application of
the agreement. The Authority found, after careful consideration of the
record, including the submissions of the parties, that the Union had
failed to establish that the arbitrator's award was deficient on any of
the grounds set forth in section 7122(a) of the Statute. Accordingly,
the Authority denied the Union's exceptions. Audie L. Murphy Memorial
Veterans Hospital, Veterans Administration, San Antonio, Texas and
American Federation of Government Employees, Local 3511, San Antonio,
Texas, Case No. 0-AR-812, issued April 23, 1985.
On June 17, 1985, the Activity requested the Respondent Union to
comply with the arbitrator's award by July 19, 1985. The Union's
President and Vice President advised the Activity that the Union would
not comply with that portion of the award which required the Union to
purchase ads in the daily papers and to contact the local television
news media. The Union asserted that the arbitrator's award violated its
constitutional rights. The Union has failed and refused and continues
to fail and refuse to comply with the arbitrator's award.
III. Positions of the Parties
The General Counsel's position is that the Respondent Union's refusal
to implement the arbitration award is violative of section 7116(b)(1),
(5) and (8) of the Statute. The General Counsel asserts that the
Respondent Union presented the same arguments regarding the
unconstitutionality of the arbitration award to the Authority in its
exceptions to the award. The Authority considered the Union's
exceptions and rejected them. Since the Union's exceptions to the
arbitration award were dnied by the Authority, the award is final and
binding and the Union is required to implement the award pursuant to
section 7122 of the Statute. Thus, the Union's refusal to do so is
violative of the Statute.
Neither the Union nor the Activity filed briefs or arguments in the
case.
IV. Analysis
In this case, there is no question as to whether the Respondent Union
has complied with the arbitrator's award. The Respondent Union admits
that it has not done so. The Union defends its failure and refusal to
comply with the award by reiterating an argument previously made in an
exception that was considered and denied by the Authority.
It is well established that a party to an arbitrator's award must
implement such an award, when timely filed exceptions to the award have
been denied by the Authority, and that the failure or refusal by a party
to implement such an award constitutes a violation of section 7116(a)(1)
and (8) of the Statute. See Department of the Treasury, United States
Customs Service, New York Region, New York, New York, 21 FLRA No. 119
(1986); U.S. Department of Justice and Department of Justice, Bureau of
Prisons, (Washington, D.C.) and Federal Correctional Institution
(Danbury, Connecticut), 20 FLRA No. 5 (1985), enforced sub nom. U.S.
Department of Justice and Department of Justice, Bureau of Prisons v.
FLRA, 792 F.2d 25 (2d Cir. 1986); General Services Administration,
Washington, D.C., 18 FLRA No. 52 (1985); United States Marshals
Service, 13 FLRA 351 (1983), enforced sub nom. United States Marshals
Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985).
Based on the foregoing precedent, the Authority finds that the
Respondent Union was required to implement the arbitration award which
became final and binding within the meaning of section 7122(b) of the
Statute upon the Authority's denial of the Respondent Union's
exceptions.
V. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties. The Authority concludes
that the Respondent Union violated section 7116(b)(8) of the Statute by
failing and refusing to comply with the requirements of section 7122 of
the Statute by refusing to fully implement the arbitration award of
Arbitrator Harry L. Johnson rendered on June 25, 1984, when its
exceptions to the arbitrator's award had been denied by the Authority.
In the circumstances of this case, the Authority finds it unnecessary to
pass upon whether such conduct was also violative of section 7116(b)(1)
and (5) 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
ordered that the American Federation of Government Employees, Local
3511, AFL-CIO, shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement the June 25, 1984
arbitration award of Arbitrator Harry L. Johnson rendered in Audie L.
Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio,
Texas and American Federation of Government Employees, Local 3511, San
Antonio, Texas, Arbitration File No. 84K/02774.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Fully comply with the June 25, 1984 award of Arbitrator Harry L.
Johnson, including purchasing the required one-half page ad in all San
Antonio daily newspapers and contacting the local television stations as
directed requesting that they announce that the previously broadcast
accusations of the Union were erroneous.
(b) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Veterans Administration, Audie L. Murphy Memorial Veterans Hospital 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 3511, AFL-CIO, 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 members and other employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(c) Submit appropriate signed copies of such Notices to the Director,
Audie L. Murphy Memorial Veterans Hospital, Veterans Administration, for
posting in conspicuous places where notices to unit employees are
customarily posted, where they shall be maintained for a period of 60
consecutive days from the date of posting.
(d) 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 herewith.
Issued, Washington, D.C., September 30, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissent of Chairman Calhoun
I agree that Respondent's refusal to comply with the arbitration
award in this case violates section 7116(b)(8) of the Statute. However,
contrary to my colleagues, I do not believe that the policies and
purposes of the Statute will be effectuated at this time by ordering the
Respondent to purchase ads in local newspapers in the San Antonio area
or contact the local television stations for the purpose of having them
announce that previously broadcast accusations of the Union were
erroneous. Indeed, I believe that compliance with the order may well
exacerbate rather than remedy the problem. Nearly three years have
passed since the underlying grievance in this case was filed and
undoubtedly the incident has long since passed from the public
consciousness. While the publication and broadcast remedy may well be
proper in other cases, the extraordinary nature of that remedy coupled
with the passage of time leads me to conclude that it is inappropriate
here.
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
/*/ Chairman Calhoun dissents from the Order in this decision.
APPENDIX
NOTICE TO ALL MEMBERS AND OTHER 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
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT fail or refuse to fully implement the June 25, 1984
arbitration award of Arbitrator Harry L. Johnson rendered in Audie L.
Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio,
Texas and American Federation of Government Employees, Local 3511, San
Antonio, Texas, Arbitration File No. 84K/02774.
WE WILL fully comply with the June 25, 1984 award of Arbitrator Harry
L. Johnson, including purchasing the required one-half page ad in all
San Antonio daily newspapers, and contacting the local television
stations as directed requesting that they announce that the previously
broadcast accusations of the Union were erroneous.
(Union)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VI, whose address is: Federal Office Building, 525
Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone
number is (214) 767-4996.
23 FLRA NO. 76
AFGE, HUD Council 222 and HUD, Case No. 0-NG-887 (Decided September
30, 1986)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Competitive Areas
Reduction-In-Force
Conditions of Employment
Non-Unit Employees
Competitive Areas
5 CFR 351.402(b)
51 Fed. Reg. 318, 321 (1986)
DIGEST NOTES
Two proposals concerning the establishment of competitive areas for
reduction-in-force purposes are nonnegotiable. The Authority has
determined in circumstances where OPM regulations setting forth the
criteria for defining competitive areas were applicable, that as a
practical matter most competitive areas sought to be bargained would of
necessity contain non-unit employees. As proposals seeking to define
competitive areas would thereby directly determine the working
conditions of non-unit employees, such proposals would be outside the
duty to bargain. The agency herein, has alleged -- without
contradiction -- that both proposals in dispute would, because of the
application of OPM regulations, directly affect the working conditions
of non-unit employees. The proposals are therefore outside the duty to
bargain.
Case No. 0-NG-887
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HUD COUNCIL 222
Union
and
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
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 two proposals concerning the establishment of
competitive areas for reduction-in-force (RIF) purposes. For the
reasons set forth below, we conclude that both proposals are
nonnegotiable.
II. Threshold Issue
The Agency contends that the Union's appeal is not properly before
the Authority for review under section 2424.3 of the Authority's Rules
and Regulations because the issues involved in this appeal "apparently
had been settled at the bargaining table and a full agreement had been
reached." The Agency asserts that the parties had concluded binding
arbitration to resolve certain impassed bargaining issues without the
Union's having requested a written allegation of nonnegotiability from
the Agency concerning the two disputed proposals, and that the Union's
negotiability appeal filed six weeks after bargaining had concluded
should not be permitted.
We conclude that the Agency's contention must be rejected. The
record discloses that the Union requested a written determination of
nonnegotiability from the Agency concerning the two disputed proposals
on July 15, 1983, which was after the parties had completed an impasse
arbitration proceeding but before they executed their collective
bargaining agreement on September 7, 1983. Having received no resonse
to its request for a written determination, the Union, on August 8,
1983, filed its petition for review pursuant to section 2424.3 of the
Authority's Rules and Regulations. On August 12, 1983, the Agency
served its written determination of nonnegotiability on the Union.
Since the Agency provides no support for its contention that the parties
had reached agreement on the two proposals at issue in this case and
since the Union's petition for review was otherwise timely filed with
the Authority, we conclude that the appeal is properly before us for
review.
III. The Union's Proposals
Competitive Areas Proposal 1
The competitive areas for reduction in force shall be
determined by negotiation on a case-by-case basis according to
management needs.
Competitive Areas Proposal 2
Headquarters. The competitive area for Headquarters is the
commuting area, headquarters wide.
IV. Positions of the Parties
The Agency contends that the two proposals in dispute are
indistinguishable and should be decided as if they were one proposal.
In each instance, the Agency asserts that there is no duty to bargain
concerning a proposed competitive area for RIF purposes which includes
non-unit employees and that a competitive area consisting only of
bargaining unit employees would be inconsistent with the requirements of
5 CFR Section 351.402(b), a Government-wide regulation.
The Union contends that Proposal 1 would not require the Agency to
establish any particular competitive area or require a RIF to be
confined to any organizational entity, and that OPM "standards" are
within an agency's discretion in certain respects. The Union asserts
that the application of Proposal 2 in a RIF would have an effect mainly
on unit employees and that the proposal's indirect effect on non-unit
employees does not render it outside the duty to bargain.
V. Analysis and Conclusions
We conclude that both proposals concerning the definition of
competitive areas are nonnegotiable. In our Decision and Order on
Remand in American Federation of Government Employees, Local 32, AFL-CIO
and Office of Personnel Management, 22 FLRA No. 49, slip opinion at 6-7
(1986), appeal filed, No. 86-1447 (D.C. Cir. Aug. 11, 1986), /1/ we
determined, in circumstances where OPM regulations setting forth the
criteria for defining competitive areas were applicable, that as a
practical matter most competitive areas sought to be bargained would of
necessity contain non-unit employees. /2/ In that case we concluded
that as proposals seeking to define competitive areas would thereby
directly determine the working conditions of non-unit employees, such
proposals would be outside the duty to bargain. In this case, the
Agency has alleged -- without contradiction by the Union -- that both
proposals in dispute would, because of the application of the OPM
regulations, directly affect the working conditions of non-unit
employees. Accordingly, consistent with our Decision and Order on
Remand in Office of Personnel Management, we hold that both proposals
are outside the duty to bargain. /3/
VI. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Union's petition for review be, and it hereby is,
dismissed.
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) In Local 32, American Federation of Government Employees v. FLRA,
774 F.2d 498 (D.C. Cir. 1985), the D.C. Circuit had remanded the
Authority's prior decision in that case, 14 FLRA 754 (1984), for further
consideration.
(2) See 5 CFR 351.402(b), 51 Fed. Reg. 318 at 321 (1986).
(3) Additionally, to the extent that the term "management needs" in
Proposal 1 would not include the Agency's need to comply with the
requirements of applicable OPM regulations in the establishment of
competitive areas, it would be nonnegotiable for that reason as well.
23 FLRA NO. 75
NAGE, Local R14-77 and VA Medical Center, Grand Junction, CO, Case
No. 0-NG-1204 (Decided September 30, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(B)
7117
7131(b) and (d)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Management Rights
Assign Work
Official Time
Specifically Scheduled Hours In Union Office
Official Time
Representational Activity
Anticipated Abuse of Official Time Does Not Change Status of
Negotiable Subject of Bargaining
Union Representative Covered By Master Agreement In Negotiation of
Supplemental Agreement
Representative Performs Duties on Behalf of Other Bargaining Unit
Members
DIGEST NOTES
A proposal which provides for specifically scheduled hours in the
union office on a weekly basis for the union president and the chief
steward and which also provides that the parties are to "work out" the
scheduled times in the future, does not interfere with management's
rights to assign work under Section 7106(a)(2)(B). The agency contended
that the proposal removed its discretion to assign work since it
requires specifically scheduled hours to perform representational
duties. The Authority held that while the proposal calls for the union
officers to be granted specifically scheduled hours in the union office,
it also provides that the parties will work out scheduled times in the
future. Thus, the proposal does not itself schedule which hours the
union officers will spend in the union office. Rather, the proposal
allows the parties to make adjustments as necessary. The Authority
found that the agency's claim was merely speculative and that it failed
to show that the use of official time under the proposal will interfere
with the assignment or accomplishment of its work.
A proposal which provides for specifically scheduled hours in the
union office on a weekly basis for certain union officers is not
inconsistent with Section 7131(d). Section 7131(d) authorizes the
negotiation of official time for labor-management related
representational matters such as contract administration, participation
in grievance arbitration and the like. The Authority found that the
proposal specifically provides that only representational duties will be
performed during the times scheduled in the union office. The proposal
is clearly consistent with the requirements of Section 7131(d).
Further, an agency cannot remove an otherwise negotiable proposal from
the bargaining table simply because the agency expects that, if agreed
upon, the proposal would provide the opportunity for some abuse. Such
speculation provides no basis for finding a proposal nonnegotiable.
A proposal concerning official time for union representatives is
negotiable even though the union representative to which it applies is
not covered by the supplemental agreement sought to be negotiated.
Under Section 7131(d) a union representative is entitled to official
time to represent fellow bargaining unit employees in an amount the
parties agree to be reasonable, necessary and in the public interest.
The Authority held that although the union representative is not himself
covered by the supplemental agreement, he is a member of a bargaining
unit (covered by a master agreement) to which the supplemental agreement
and the disputed proposal would apply. Thus, the proposal is negotiable
insofar as it grants the union representatives official time to perform
representational duties on behalf of other members of the bargaining
unit of which they are members.
Case No. 0-NG-1204
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-77
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER, GRAND JUNCTION, CO
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 Labor-Management
Relations Statute (the Statute) and concerns the negotiability of the
following Union proposal:
Article X, Section 9 (b)
The Union President will be granted two (2) specifically
scheduled hours in the Union office per week and the Chief Steward
will be granted three (3) specifically scheduled hours in the
Union office per week. It is agreed that only representational
duties will be performed during these scheduled times. The
scheduled times will be worked out between the parties after the
completion of this Supplemental Agreement.
We hold that the proposal is within the statutory duty to bargain.
II. Positions of the Parties
The Agency contends the proposal is nonnegotiable because it violates
sections 7106(a)(2)(B) and 7131(d) of the Statute; the governing master
agreement; and, finally, because it pertains to an employee who is not
covered by the master agreement.
The Union argues that the proposal is negotiable since it is
consistent with the terms of the governing master agreement and because
it pertains only to bargaining unit employees. The Union also argues
that the proposal would not prevent the Agency from assigning work under
section 7106(a)(2)(B) of the Statute.
III. Analysis
A. Management's right to "assign work" is not a bar to
negotiability.
The proposal provides for specifically scheduled hours in the Union
office on a weekly basis for the Union President and the Chief Steward.
The parties are to "work out" these scheduled times in the future.
The Agency has the burden of demonstrating that granting official
time will interfere with the accomplishment of its assigned work.
Overseas Federation of Teachers and Department of Defense Dependent
Schools, Mediterranean Region, APO New York, 21 FLRA No. 81 (1986);
Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA No.
89 (1985), petition for review filed sub nom. National Association of
Government Employees, Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir.
January 7, 1986). In this case the Agency contends that the proposal
removes its discretion to assign work under section 7106(a)(2)(B) since
the proposal requires "specifically scheduled hours" to perform
representational duties. The Agency relies on National Treasury
Employees Union and NTEU Chapter 80 and Department of the Treasury,
Internal Revenue Service, Central Region, 8 FLRA 197 (1982); American
Federation of Government Employees, Local 2094, AFL-CIO and Veterans
Administration Medical Center, New York, New York, 19 FLRA No. 120
(1985). In each of these cases the Authority found proposals
nonnegotiable that specifically allocated to bargaining unit employees
fifteen minute periods at the beginning and end of each workday to
perform particular functions -- packing/unpacking files, reaching duty
stations, performing personal hygiene and changing clothes -- not
associated with the work normally performed by those employees. The
Authority held that each of those proposals removed management's
discretion to assign work under section 7106(a)(2)(B) of the Statute.
Even apart from the consideration that this proposal is concerned
with representational activities, which are statutorily sanctioned as
discussed in B, below, the proposal here is substantially different from
those in Internal Revenue Service and Veterans Administration Medical
Center, and warrants an opposite conclusion. While the proposal calls
for the Union's President and Chief Steward to be granted specifically
scheduled hours in the Union office, it also provides that the parties
will work out scheduled times in the future. Thus, the proposal does
not itself schedule which hours the Union President and Chief Steward
will spend in the Union office. Rather, the proposal allows the parties
to make adjustments as necessary. The Agency's claim is merely
speculative; it has failed to show that the use of official time under
the proposal will interfere with the assignment or accomplishment of its
work.
B. The proposal is consistent with section 7131(d) of the
Statute.
Section 7131(d) authorizes the negotiation of official time for
labor-management related representational matters such as contract
administration, participation in grievance arbitration and the like.
Veterans Administration Medical Center, 19 FLRA No. 120, slip op. at 3.
The disputed proposal specifically provides that "only representational
duties" will be performed during the times scheduled in the Union
office. As such, the proposal is clearly consistent with the
requirements of section 7131(d) of the Statute.
Despite the express language of the proposal, the Agency argues that
the Union President and Chief Steward will use negotiated official time
to conduct internal union business prohibited by section 7131(b) of the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio,
2 FLRA 4 (1979). An agency cannot remove an otherwise negotiable
proposal from the bargaining table simply because the agency expects
that, if agreed upon, the proposal would provide the opportunity for
some abuse. Such speculation provides no basis for finding a proposal
nonnegotiable. We decide here only the negotiability issues presented
under section 7105(a)(2)(E) of the Statute concerning whether the
proposal is consistent with applicable law and regulation and,
therefore, within the duty to bargain.
C. The parties' master agreements do not require a finding
of nonnegotiability.
1. Background
This appeal arose from negotiations for a supplemental agreement to a
master agreement covering nonprofessional and GS professional employees
(Agreement 1). NAGE and the Veterans Administration are also parties to
a master agreement covering registered nurses (Agreement 2). The Agency
argues that this appeal is inappropriate because it violates Article 6,
Section 14 of Agreement 1. Further, the Agency contends that the
proposal is nonnegotiable because it applies to an employee not covered
by Agreement 1.
2. Claimed violation of Agreement 1.
The Agency's claim that the proposal is not appropriate for inclusion
in a local supplemental agreement under the Agency's interpretation of
the provisions of Master Agreement 1 does not raise negotiability issues
under section 7117 of the Statute. Rather, it raises a question for
resolution through whatever procedures Agreement 1 establishes for
contract interpretation disputes. National Treasury Employees Union,
Chapter 153 and Department of the Treasury, U.S. Customs Service, Region
II, 21 FLRA No. 102, slip op. at 6 (1986).
3. Claim that proposal applies to an employee not covered
by Agreement 1.
The Agency argues the proposal is nonnegotiable since it arose from
negotiations supplemental to Agreement 1, but the Union President to
whom it applies is a registered nurse subject to the terms of Agreement
2. This argument is without merit. Under section 7131(d) of the
Statute a Union representative is entitled to official time to represent
fellow bargaining unit employees in an amount the parties agree to be
reasonable, necessary and in the public interest. See, for example,
American Federation of Government Employees, Local 1698 and Department
of the Navy, Aviation Supply Office Consolidated Civilian Personnel
Division, 17 FLRA 557, 559 (1985). Although not himself covered by
Agreement 1, the Union President is a member of a bargaining unit to
which Agreement 1 and the disputed proposal would apply. Thus, the
proposal is negotiable insofar as it grants the Union President and
Chief Steward official time to perform representational duties on behalf
of other members of the bargaining unit of which they are members.
Compare American Federation of Government Employees, AFL-CIO, Local 2225
and U.S. Department of Defense, Naval Air Rework Facility, Norfolk,
Virginia, 19 FLRA No. 22 (1985).
IV. Conclusions
For the reasons stated above, the Authority concludes that the
proposal is consistent with management's right to assign work and the
requirements of section 7131(d) of the Statute. The claim that the
proposal is barred by Agreement 1 does not state a ground pertaining to
the negotiability of the proposal under the Statute. Finally, the
proposal only concerns conditions of employment of bargaining unit
employees.
V. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall, upon request, or as otherwise
agreed to by the parties, bargain concerning the Union's proposal. /*/
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In deciding that the proposal is within the duty to bargain we
make no judgment on its merits.
23 FLRA NO. 74
NAGE, SEIU and VA Medical Center, Brockton/West Roxbury, MA, Case No.
0-NG-1142 (Decided September 30, 1986)
STATUTE
7105(a)(2)(E)
7106(a)(2)(B)
7117(c)
7131(a), (b) and (d)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Management Rights
Assign Work
Official Time
Proposal Allows Accommodations for Scheduling of Work and Official
Time
Official Time
Internal Union Business
Representational Activity Not Internal Union Business
Representational Activities
Anticipated Abuse of Official Time Does Not Change Status of
Negotiable Subject of Bargaining
To Expedite Grievance Matters
DIGEST NOTES
A proposal which provides that a union officer will be granted
official time to enable her to expedite all matters of a grievable
nature is negotiable and does not concern internal union business. The
Authority held that with certain limitation, an agency and a union must
negotiate on the amount of official time available for an employee
representing that union. One of the limitations is the prohibition in
Section 7131(b) against conducting internal union business on official
time. The definition of internal union business is narrowly drawn,
however, and relates to the institutional structure of the union.
Activities involving labor-management contacts, as well as preparation
for them, are not internal union business. Official time for union
representatives to engage in contract negotiations -- over and above the
official time to which they are otherwise entitled for that purpose
under Section 7131(a) -- and to prepare for such negotiations is
negotiable under Section 7131(d). The union's proposal specifically
addresses official time for the activities of its Secretary so as to
enable her to expedite all grievable matters. Participation in
grievance proceedings and preparation for them do not relate to the
institutional structure of the union. They are at the heart of the
representational activities for which official time may be negotiated.
Further, an agency cannot remove a negotiable item from the bargaining
table because it expects it to be abused. Other proceedings are
available to remedy such abuse if it occurs.
A proposal which provides that a union officer will be granted
official time to enable her to expedite all matters of a grievable
nature does not interfere with management's rights to assign work under
Section 7106(a)(2)(B). While authorizing official time for
representational purposes necessarily affects management's ability to
assign work, there is nothing in the union's proposal that would permit
the union's secretary to use official time authorized by the proposal so
as to disregard the needs of the agency to assign work to her at
particular times. The proposal would not prevent the agency from making
whatever accommodations may be necessary between the scheduling of work
assignments and the scheduling of official time.
Case No. 0-NG-1142
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER BROCKTON/WEST ROXBURY, MA
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
The Union filed a petition for review under 5 U.S.C. Section
7105(a)(2)(E) challenging the Agency's allegation that the following
proposal was not negotiable:
The V.A. shall allow sufficient time in the regular work week
for the elected Secretary (of the local Union) to perform
(his/her) duties as required to expedite all matters of a
Grievable nature.
II. Positions of the Parties
The Agency argues that the proposal violates 5 U.S.C. Section 7131(b)
by requiring official time for internal union business. It also asserts
that the proposal violates its right to assign work under 5 U.S.C.
Section 7106(a)(2)(B). The Union counters that the Agency has not
demonstrated a "compelling need" as required by 5 C.F.R. Section
2424.11. /1/
III. Analysis and Conclusions
In disagreement with the Agency, we find the proposal negotiable and
within the duty to bargain under 5 U.S.C. Section 7131(d).
A. The Proposal Does Not Concern Internal Union Business
With certain limitations, an agency and a union must negotiate on the
amount of official time available for an employee representing that
union. 5 U.S.C. Section 7131(d). One of the limitations is the
prohibition in 5 U.S.C. Section 7131(b) against conducting internal
union business on official time. The definition of internal union
business is narrowly drawn, however, and relates to the institutional
structure of the union. American Federation of Government Employees,
AFL-CIO, Local 2823 and Veterans Administration Regional Office,
Cleveland, Ohio, 2 FLRA 4 (1979).
Activities involving labor-management contacts, as well as
preparation for them, are not internal union business. For this reason,
official time for union representatives to engage in contract
negotiations -- over and above the official time to which they are
otherwise entitled for that purpose under 5 U.S.C. Section 7131(a) --
and to prepare for such negotiations is negotiable under 5 U.S.C.
Section 7131(d). See American Federation of Government Employees,
AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461, 462-63
(1984). See also American Federation of Government Employees, AFL-CIO,
Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather
Air Force Base, California, 3 FLRA 305, 309 (1980). We did not address
what constituted "preparation" for labor-management contacts in that
case, but held this would be more appropriately resolved by the parties
during negotiations or by an arbitrator in the context of a specific
case. We expressly excluded from the definition of "preparations"
matters which involved the internal business of the union.
The Union's proposal specifically addresses official time for the
activities of its Secretary so as to enable her to expedite all
grievable matters. Participation in grievance proceedings and
preparation for them do not relate to the institutional structure of the
Union. They are at the heart of the representational activities for
which official time may be negotiated under 5 U.S.C. Section 7131(d).
The Agency asserts that the Union Secretary is working and will
continue to work on internal union business rather than the grievable
matters proposed. The Agency points to an unfair labor practice charge
which was filed by the Union within a few weeks of the negotiability
petition and which summarizes the Secretary's duties:
She is also a part time Steward on occasion. She does filing,
types grievances and other office duties.
The Union asserts that the Secretary handles grievances during her
duty hours resulting in their earlier resolution.
The Agency's argument anticipates that the Secretary will use
negotiated official time for internal union business. An agency cannot
remove a negotiable item -- one that is consistent with applicable law
and regulation -- from the bargaining table because it expects it to be
abused. Other proceedings -- such as a disciplinary action, an unfair
labor practice proceeding, or a grievance -- are available to remedy
such abuse if it occurs. See, for example, American Federation of
Government Employees, Local 1778, AFL-CIO, 10 FLRA 346, 350-351 (1982);
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, Local 3231, 11 FLRA 7
(1983). We appreciate the Agency's concern with the difficulty in
particular situations of distinguishing between the Secretary's
representational activities and internal union business. However, as we
said in Mather, these distinctions are best drawn at the bargaining
table or through arbitration.
The purpose of this negotiability proceeding is to decide if the
Union's proposal is inconsistent with applicable law and regulation and
therefore outside the duty to bargain. 5 U.S.C. Section 7117(c). The
proposal concerns official time for the Union's Secretary to work on
grievances. Since participation in and preparation for grievance
proceedings are not internal union business, bargaining on this proposal
is not precluded by the prohibition against conducting internal union
business on official time.
B. The Proposal Does Not Interfere With Management's Right
To Assign Work
In support of its assertion that the proposal is nonnegotiable, the
Agency adverts to the proposal's effect on management's right to assign
work under 5 U.S.C. Section 7106(a)(2)(B). The Agency here states only
the obvious. If the Secretary performs representational activities on
official time, the Agency is prevented from assigning work to that
employee during that time. The Agency's reliance on American Federation
of Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 4 FLRA
384 (1980) is misplaced. In that case, the union proposal addressed the
time an employee would qualify with weapons on a firing range and would
practice to maintain qualifications. The proposal would have required
the agency to assign certain types of work to certain employees to the
exclusion of other responsibilities. We held that the proposal was not
negotiable under 5 U.S.C. Section 7106(a)(2)(B) because it violated
management's right to assign work.
The Marshals Service case is not on point. While authorizing
official time for representational purposes necessarily affects
management's ability to assign work, there is nothing in the Union's
proposal that would permit the Union's Secretary to use the official
time authorized by the proposal so as to disregard the needs of the
Agency to assign work to her at particular times. That is, the proposal
would not prevent the Agency from making whatever accommodations may be
necessary between the scheduling of work assignments and the scheduling
of official time. See National Federation of Federal Employees, Local
541 and Veterans Administration Hospital, Long Beach, California, 12
FLRA 270, 273-275 (1983).
IV. Order
The Agency must, upon request (or as otherwise agreed to by the
parties), bargain concerning the Union's proposal. /2/
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) In its allegation of nonnegotiability the Agency used the term,
"compelling reason," when conveying its view that the proposal was in
conflict with 5 U.S.C. Section 7131(b). The Union misconstrued this as
a "compelling need" argument and argued that the Agency had not met the
compelling need criteria in 5 C.F.R. Section 2424.11 to exclude its
proposal from bargaining.
We find no indication in the record that by use of the term
"compelling reason," the Agency intended to advance a compelling need
argument to support its allegation of nonnegotiability. For this
reason, we will not address this issue further.
(2) In deciding that the proposal is within the duty to bargain, we
make no judgment on its merits.
23 FLRA NO. 73
NAGE, Local R3-84, SEIU and District of Columbia Air National Guard,
Case No. 0-NG-1237 (Decided September 30, 1986)
STATUTE
7105(a)(2)(E)
7106(b)(1) and (3)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Conditions for Review
Proposal Alleged to be Inconsistent With 32 U.S.C. Section 709
National Guard Technicians
Maintenance of Military Status
Technicians' Representational Activity Does Not Concern the
Performance of Technician Duties or Affect Military Status 32 U.S.C.
Section 709
Uniform Requirement
Exemption for Employees Performing Representational Activity
Official Time
Preparation for Labor-Management Activity
National Guard Technicians
Time to Change From Military to Civilian Attire
Subjects of Bargaining
At Election of Agency
Methods and Means of Performing Work
National Guard Technicians
Representational Activity Not Performance of Technician Duties
Uniforms
Technician Personnel Regulation, Section 302.7
DIGEST NOTES
A proposal which exempts National Guard Technicians from the agency's
uniform requirement during the performance of representational activity,
does not conflict with the agency's rights to determine the methods and
means of performing work under Section 7106(b)(1). The Authority held
that the proposal's exceptions to the agency's uniform requirement
concerned labor-management activity -- the joint efforts of employees,
the union, and the agency's management officials in setting and
administering technicians' conditions of employment. The activities do
not constitute employee performance of technician duties and thus, does
not conflict with management's rights to determine the method and means
of performing such duties. The Statute protects the rights of employees
to serve as union representatives in order to promote the public
interest in collective bargaining. To achieve that objective, the
Statute frees employees functioning as union representatives from many
of the constraints to which they would otherwise be subject as employees
so as to enable them to represent the interests of the bargaining unit.
The Authority further held, that (1) the union's proposal did not
conflict with 32 U.S.C. Section 709, which mandates that technicians
must maintain military status in the National Guard to retain
technicians positions, because the proposal did not concern the
performance of technicians duties and did not in any way affect unit
employees' military status; and (2) the agency's purpose in imposing
the uniform requirement would not be furthered by applying the
requirement to technicians when they are involved in labor-management
activities.
A proposal which provides that National Guard Technicians will have
time to change from military to civilian attire when they shift between
technicians' duties and labor-management activity is negotiable. The
proposal complemented another proposal which exempted technicians
involved in labor-management activity from the agency's uniform
requirement. The Authority held that the proposal was similar to
proposals which provide official time for union representatives to
prepare for labor-management relations activities.
Case No. 0-NG-1237
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R3-84, SEIU,
AFL-CIO
Union
and
DISTRICT OF COLUMBIA AIR NATIONAL GUARD
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes 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 raises issues concerning the negotiability of a single Union
Proposal.
II. Union Proposal
ARTICLE V
UNION RIGHTS
Section 4. In order not to breach the statutory duty of Fair
representation to all bargaining unit employees without regard to
union membership the parties agree to the following:
A. Officers and Stewards will not be required to wear the
military uniform while:
1. Performing representational duties.
2. Representing the Union in a third party proceeding.
3. Serving as a member of the Union's negotiating team.
4. Appearing as a witness in any third party proceeding.
5. Representing the Union on a committee established by the
Employer.
6. Attending a labor/management training session.
B. Employees in the bargaining unit will not be required to
wear the military uniform while:
1. Processing a personnel grievance under the negotiated
grievance procedure.
2. Appearing as a grievant or witness before a third party
proceeding.
3. Appearing as an observer at contract negotiations.
4. Attending a labor/management session.
C. Reasonable time will be allowed officers, stewards and
employees to change in and out of the military uniform under the
circumstances stated in subsection (A-B) of this Article.
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to bargain
because (1) the Union has waived its right to bargain on the proposal;
(2) the proposal is inconsistent with 32 U.S.C. Section 709; (3) the
proposal is inconsistent with the Agency's right to determine the
"methods and means" of performing its work under section 7106(b)(1) of
the Statute, as such right was explained in Division of Military and
Naval Affairs, State of New York, Albany, New York and New York Council,
Association of Civilian Technicians, 15 FLRA 288 (1984), aff'd New York
Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d
Cir. 1985), cert. denied 106 S.Ct. 137 (1985); and (4) the proposal is
not an "appropriate arrangement" under section 7106(b)(3) of the
Statute. The Union disputes the Agency's arguments and asserts that the
proposal is within the Agency's duty to bargain.
B. Analysis and Conclusions
1. Did the Union waive its right to bargain?
The Agency asserts that the Union waived its right to negotiate this
proposal when the Union agreed to allow the Agency to end a practice
established under an expired collective bargaining agreement. Under
that practice technicians were allowed to wear civilian attire when they
were performing their technician duties. The issue raised by the
Agency's contention is essentially one of contractual interpretation.
To the extent the parties are in dispute as to the intended application
of their agreement regarding the wearing of the military uniform, that
dispute should be resolved through other appropriate procedures. The
existence of that dispute does not preclude us from, nor require us to
delay, deciding whether the Union's proposal is nonnegotiable under the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302
(1984).
2. Does the proposal conflict with the Agency's rights
under section 7106(b)(1)?
The Agency asserts that the proposal is inconsistent with its rights
under section 7106(b)(1) of the Statute as explained by the Authority in
Division of Military and Naval Affairs. We conclude that the proposal
does not conflict with the Agency's rights under section 7106(b)(1).
Our reasons, which are interrelated and discussed fully below, are
these: first, the labor-management activities covered by the proposal
do not concern the performance of the Agency's work within the meaning
of section 7106(b)(1) of the Statute; second, the Agency's purpose in
imposing the uniform requirement would not be furthered by applying the
requirement to technicians when they are involved in labor-management
activities.
In Division of Military and Naval Affairs, supra, 15 FLRA 288, the
Authority held that decisions on whether National Guard technicians must
wear military attire while performing technicians' duties were
negotiable only at the election of the Agency because these decisions
concerned the right to determine the "methods and means" of performing
work under section 7106(b)(1) of the Statute. The Authority reached
that conclusion, as explained in the decision, in view of the unique
status National Guard technicians have as compared to other Federal
civilian employees. As a result of their essential role in achieving
mobilization of the parttime Guard into a military force and their
functions in performing technician duties, they must possess a highly
developed sense of esprit de corps and military discipline which the
Authority found was furthered by the wearing of military attire. This
reasoning does not apply to the proposal here.
The proposal's exceptions to the Agency's uniform requirement concern
labor-management activities -- the joint efforts of employees, the
Union, and the Agency's management officials in setting and
administering technicians' conditions of employment. These activities
do not constitute employee performance of technician duties. They are
not the Agency's "work." National Federation of Federal Employees, Local
541 and Veterans Administration Hospital, Long Beach, California, 12
FLRA 270, 274 (1983); American Federation of Government Employees,
AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant
General Publication Center, St. Louis, Missouri, 14 FLRA 438, 440-41
(1984). When acting as union representatives employees are serving in a
different capacity than when they are performing the duties of their
positions. The Statute protects the rights of employees to serve as
union representatives in order to promote the public interest in
collective bargaining. To achieve that objective, the Statute frees
employees functioning as union representatives from many of the
constraints to which they would otherwise be subject as employees so as
to enable them to represent the interests of the bargaining unit. See,
for example, United States Air Force, Davis-Monthan Air Force Base,
Tucson, Arizona and American Federation of Government Employees, Local
2924, AFL-CIO, 20 FLRA No. 84 (1985).
Indeed, that difference is incorporated in the Agency's own
regulations. Technician Personnel Regulation, Section 302.7. That
section provides that it is "inappropriate" for a unit employee to wear
the military uniform when negotiating a collective bargaining agreement.
Like the negotiation of a collective bargaining agreement, the other
labor-management activities encompassed by the Union's proposal are
different from regular technician duties. Our rationale for finding
that the requirement that National Guard technicians wear the military
uniform while performing technician duties constituted a "method or
means" of performing work, as stated in Division of Military and Naval
Affairs, does not apply here. The Union's proposal, therefore, does not
conflict with the Agency's right to determine the methods and means of
performing its work under section 7106(b)(1) of the Statute. See also
162nd Tactical Fighter Group, Arizona Air National Guard, Tucson,
Arizona, 21 FLRA No. 90 (1986) (technicians participating in Authority
proceedings on official time as requested by the Authority's General
Counsel cannot be required to wear the military uniform in these
proceedings).
Subsection C complements subsections A and B by providing that
technicians will have time to change their attire when they shift
between technicians' duties and labor-management activity. This part of
the proposal is similar to those proposals which provide official time
for union representatives to prepare for labor-management relations
activities. See, for example, Association of Civilian Technicians,
Granite State Chapter and The Adjutant General, State of New Hampshire,
7 FLRA 241 (1981). For the reasons set forth in that decision, we find
that subsection C is negotiable.
3. Does the proposal conflict with 32 U.S.C. Section 709?
The Agency asserts that 32 U.S.C. Section 709 mandates that
technicians must maintain military status in the National Guard to
retain employment in technician positions. It argues that the proposal
treats technicians as civilian employees so as to contradict this
requirement.
As detailed in Part 2, the Union's proposal does not concern the
performance of technician duties and does not in any way affect unit
employees' military status. Accordingly, the Agency's argument
concerning this statutory provision is misplaced.
4. Is the proposal an "appropriate arrangement" under
section 7106(b)(3) of the Statute?
The Agency's arguments concerning whether the proposal amounts to an
appropriate arrangement under section 7106(b)(3) are premised on its
view that the proposal conflicts with its rights under section
7106(b)(1). See National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). Since we
have decided that the proposal does not conflict with the Agency's
rights under section 7106(b)(1), we need not address whether the
proposal is negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute.
III. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning the Union proposal. /*/
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding the Union's proposal to be negotiable, the Authority
expresses no opinion on the merits of that proposal.
23 FLRA NO. 72
Hawaii Federal Employees Metal Trades Council and Pearl Harbor Naval
Shipyard, Case No. 0-NG-1303 (Decided September 30, 1986)
STATUTE
7105(a)(2)(E)
7117(c)(2)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Procedure
Timeliness
DIGEST NOTES
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 procedures, the time
limit established in Section 7117(c)(2) may not be extended or waived by
the Authority. The union's petition for review was dismissed as
untimely filed because it failed to comply with the provisions of the
Statute and the Authority's rules and regulations, applicable to the
computation of time limits.
Case No. 0-NG-1303
HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
Union
and
PEARL HARBOR NAVAL SHIPYARD
Agency
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 be extended or
waived by the Authority.
The documents the Union submitted with its petition for review
indicate the Agency's allegation that the proposal in question is
nonnegotiable is dated July 7, 1986. A notation on the Agency's
allegation shows that it was served on the Union by hand delivery on
July 8, 1986, which is also the date of receipt indicated by the Union's
date stamp affixed to the allegation. Therefore, under section 2424.3
of the Authority's Rules and Regulations as well as section 2429.21
which also is applicable to computation of the time limit here involved,
the petition for review had to be filed, that is, received in the
national office of the Authority, not later than the close of business
on July 23, 1986. /*/ However, the petition was not filed with the
Authority at its national office in Washington, D.C., until July 25,
1986.
Accordingly, as the Union's petition for review was untimely filed,
and apart from other considerations, it is hereby dismissed.
For the Authority
Issued, Washington, D.C., September 30, 1986.
/s/ Harold D. Kessler
Director of Case Management
FOOTNOTES
(*) Consistent with section 2429.22 of the Authority's rules of
procedure, five days is added to the filing period only when "the notice
or paper (i.e., the Agency's allegation of nonnegotiability) is served .
. . by mail."
23 FLRA NO. 71
VA Central Office, Washington, D.C. and VA Medical Center,
Cincinnati, Ohio and AFGE, Local 2031, Case Nos. 5-CA-40056 and
5-CA-40059 (Decided September 30, 1986)
STATUTE
7116(a)(1), (5) and (8)
7118
7131(a) and (d)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practice
Agency Violations
Refusal to Comply With Section 7131(a)
Official Time
Negotiation of Local Supplementary Agreements
Employee-Negotiator Need Not Be Stationed At Local Facility
Negotiation of Local Agreements Encompassed by Section 7131(a)
DIGEST NOTES
The Authority held, contrary to the Judge, that the agency violated
Section 7116(a)(1) and (8) when it refused to provide official time to
unit employees to represent the union in local supplemental negotiations
which was their right pursuant to Section 7131(a). The issue was
whether a unit employee who is not stationed at the site of the local
supplemental negotiations is entitled to official time to represent the
union. The Authority concluded that where parties at the level of
exclusive recognition have authorized local supplemental negotiations,
Section 7131(a) entitles any employee in the unit to official time to
represent the union at the local negotiations, unless the parties have
agreed otherwise. The language of Section 7131(a) requires that "any
employee representing an exclusive representative in the negotiation of
a collective bargaining agreement shall be authorized official time" so
long as such employee is in the bargaining unit involved. The official
time provisions of Section 7131(a) encompasses the negotiation of local
supplemental agreements, when authorized by the parties at the level of
exclusive recognition. Any unit employee representing the union at
local supplemental negotiations is entitled to official time regardless
of whether the employee is stationed at the location which is the
subject of local negotiations.
Case Nos. 5-CA-40056, 5-CA-40059
VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C. AND VETERANS
ADMINISTRATION MEDICAL CENTER, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2031, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions to the attached Chief Administrative Law Judge's Decision
filed by the General Counsel. The Respondent filed an opposition to the
General Counsel's exceptions. The consolidated complaint alleged that
the Respondent, Veterans Administration Central Office, Washington, D.C.
and Veterans Administration Medical Center, Cincinnati, Ohio, violated
section 7116(a)(1), (5) and (8) of the Statute by refusing to grant
official time for certain negotiations to agents of the Charging Party,
American Federation of Government Employees, Local 2031, AFL-CIO (Local
2031), and by changing a past practice of granting such official time
without providing Local 2031 with notice and an opportunity to bargain
concerning such change.
II. Background
The Charging Party, Local 2031, is an agent of the American
Federation of Government Employees, AFL-CIO which is the certified
exclusive representative at the national level for a consolidated unit
of nonprofessional employees at various Veterans Administration
facilities throughout the country. Local 2031 functions as the local
representative of some of the employees in the nationwide consolidated
unit. As found by the Chief Judge, the charges in this case arose when
a supervisory official of the Respondent, located in Cincinnati, Ohio,
refused to grant requests for official time on two separate occasions to
representatives of Local 2031 employed at his facility. The official
time was requested to negotiate a local supplementary agreement on
behalf of employees in the nationwide consolidated unit located at a
separate facility, the Veterans Administration Outpatient Clinic, in
Columbus, Ohio. The local supplemental agreement was provided for by
the terms of the parties' master agreement.
The section 7116(a)(1) and (5) portion of the complaint alleged that
the Respondent unilaterally changed a past practice of granting official
time to Union negotiators for local bargaining. The Chief Judge noted
that official time was granted for two sets of negotiations involving
four days over a period of 26 months. One day was unprecedential, and
the other three were granted by an official under unusual circumstances
detailed more fully in the Chief Judge's Decision.
III. Chief Administrative Law Judge's Decision
The Chief Judge concluded that the Authority's decision in
Interpretation and Guidance, 7 FLRA 682 (1982), which determined that
the official time provisions of section 7131(a) of the Statute do not
encompass negotiations below the level of exclusive recognition which
are designed to create local agreements to supplement a master
agreement, is controlling in this case. The Chief Judge determined that
the negotiations in this case were not encompassed by section 7131(a)
and recommended that the alleged violations of section 7116(a)(1) and
(8) of the Statute be dismissed.
The Chief Judge also concluded that application of the Authority's
decision in Interpretation and Guidance, supra, rendered irrelevant the
Respondent's contention that local Union representatives employed at one
facility were not entitled to official time either statutorily or by the
terms of the parties' Master Agreement to represent employees at a
separate and independent facility where the Union representatives are
themselves not employed. The Chief Judge also recommended that the
section 7116(a)(5) allegation be dismissed. He noted that official time
could become a condition of employment if it is consistently granted for
an extended period with the knowledge and consent of responsible
supervisors. He concluded that the General Counsel had failed to
demonstrate that the authorization of official time for such bargaining
had become a condition of employment by virtue of an established past
practice under this standard.
IV. Positions of the Parties
The General Counsel excepts to the Chief Judge's finding that
negotiations at the Columbus Outpatient Clinic were not encompassed by
section 7131(a) because they were limited to that facility and were
conducted by local officials. It also excepts to the finding there was
no binding past practice for providing official time for
Cincinnati-based representatives to negotiate with management of the
Outpatient Clinic.
The Respondent's Opposition to Exceptions supports the findings and
conclusions of the Chief Judge.
V. Analysis
The issue raised by this case is whether a unit employee who is not
stationed at the site of the local supplemental negotiations is entitled
to official time to represent the union. In our view, where the parties
at the level of exclusive recognition have authorized local supplemental
negotiations, section 7131(a) entitles any employee in the unit to
official time to represent the union at local negotiations, unless the
parties have agreed otherwise. /1/
The language of section 7131(a) requires that "(a)ny employee
representing an exclusive representative in the negotiation of a
collective bargaining agreement . . . shall be authorized official time
. . . . " (emphasis added) so long as such employee is in the bargaining
unit involved. We have held that the official time provisions of
section 7131(a) encompass the negotiation of local supplemental
agreements, when authorized by the parties at the level of exclusive
recognition. See Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 17
(1985), decided subsequent to the issuance of the Chief Judge's Decision
in this case. Our holding that the official time provisions of section
7131(a) encompass negotiation of local supplemental agreements followed
the decision of the United States Court of Appeals for the District of
Columbia circuit in AFGE v. FLRA, supra. In that case, the court
reversed the Authority's decision in Interpretation and Guidance, supra.
The court also noted that the Supreme Court, in BATF v. FLRA, 464 U.S.
89 (1983) "did not question the characterization of the negotiations of
. . . local issues as 'collective bargaining,' and thus did not
recognize the master-local distinction . . . " 750 F.2d at 147.
Pursuant to the plain language of the Statute and consistent with
Authority precedent, any unit employee representing the union at local
supplemental negotiations is entitled to official time regardless of
whether the employee is stationed at the location which is the subject
of local negotiations. /2/ In the circumstances of this case, it
follows that the Respondent, located in Cincinnati, Ohio, denied a
statutory entitlement to employees who requested official time to
represent the Union at local supplemental negotiations on behalf of
employees of the Outpatient Clinic in Columbus, Ohio, a part of the
consolidated collective bargaining unit. Accordingly, the Respondent
violated section 7116(a)(1) and (8) of the Statute.
The Authority finds it unnecessary to pass on the Chief Judge's
conclusion that the Respondent did not violate section 7116(a)(1) and
(5) of the Statute, as alleged, by unilaterally departing from a past
practice of providing official time to its employees to serve as union
representatives in bargaining with the Veterans Administration
Outpatient Clinic. Inasmuch as official time under the circumstances is
a statutory right pursuant to section 7131(a), the existence or
nonexistence of a past practice is irrelevant.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Chief Judge made at the hearing, finds that no prejudicial error
was committed, and thus affirms those rulings. The Authority has
considered the Chief Judge's Decision and the entire record in these
cases, and adopts his findings and conclusions only to the extent that
they are consistent with our decision.
We find that the Respondent violated section 7116(a)(1) and (8) of
the Statute when it refused to provide official time to unit employees
to represent the Union in local supplemental negotiations which was
their right pursuant to section 7131(a) of the Statute.
Accordingly, we shall issue the following order to remedy the conduct
found to have violated the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Veterans Administration Central Office, Washington, D.C., and
Veterans Administration Medical Center, Cincinnati, Ohio, shall:
1. Cease and desist from:
(a) Refusing to grant official time pursuant to section 7131(a) of
the Federal Service Labor-Management Relations Statute to its employees
who are representatives of American Federation of Government Employees,
Local 2031, AFL-CIO, in negotiations for local supplemental agreements
authorized by the parties' master agreement.
(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:
(a) Upon request of American Federation of Government Employees Local
2031, AFL-CIO, grant official time pursuant to section 7131(a) of the
Statute to its employees who are representatives of the Union in
negotiations for local supplemental agreements authorized by the
parties' master agreement.
(b) Make whole unit employees who were denied official time to
represent the Union in negotiations for a local supplemental agreement
pursuant to the parties' master agreement and who were entitled to
official time under the terms of section 7131(a) of the Statute.
(c) Post at its facilities at Veterans Administration Medical Center,
Cincinnati, Ohio, and Veterans Administration Outpatient Clinic,
Columbus, Ohio, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Director, Veterans Administration Medical
Center, Cincinnati, Ohio, 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
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 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 with the Order.
Issued, Washington, D.C. September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to grant official time pursuant to section 7131(a)
of the Federal Service Labor-Management Relations Statute to our
employees who are representatives of American Federation of Government
Employees Local 2031, AFL-CIO, in negotiations for local supplemental
agreements authorized by our master agreement.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request of American Federation of Government Employees
Local 2031, AFL-CIO, grant official time pursuant to section 7131(a) of
the Statute to our employees who are representatives of the Union in
negotiations for local supplemental agreements authorized by our master
agreement.
WE WILL make whole unit employees who were denied official time to
represent the Union in negotiations for a local supplemental agreement
pursuant to our master agreement and who were entitled to official time
under the terms of section 7131(a) of the Statute.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose
telephone number is: (312) 353-6306.
Case Nos. 5-CA-40056, 5-CA-40059
VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C. AND VETERANS
ADMINISTRATION MEDICAL CENTER, CINCINNATI, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2031, AFL-CIO
Charging Party
Russell C. Henry, Esquire
For the Respondent
John Gallagher, Esquire
Arlander Keys, Esquire
For the General Counsel Federal Labor Relations Authority
Before: JOHN H. FENTON
Chief 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, U.S. Code, 5 U.S.C. Section
7101 et seq. It arose upon the filing of unfair labor practice charges
by Local 2031, AFGE, on November 17 and 18 and amended charges filed on
December 12, 1983. The Complaint and Notice of Hearing was issued by
the Regional Director of FLRA's Chicago Region in January 31, 1984. At
issue are whether Respondent unlawfully refused to grant official time
to agents of Local 2031 who participated in negotiations, and whether it
abandoned a past practice of granting such time without providing the
Union with notice and an opportunity to bargain concerning such change.
A hearing was held on April 9, 1984, in Cincinnati, Ohio. The
parties were afforded full opportunity to adduce evidence and to examine
and cross-examine witnesses. Upon the entire record I make the
following findings.
Findings of Fact
The Veterans Administration Medical Center in Cincinnati, Ohio (the
Medical Center) and the Veterans Administration Outpatient Clinic in
Columbus, Ohio (the Outpatient Clinic) are separate and distinct
facilities within the Veterans Administration. Each has its own
Director, budget and mission, and functions independently of the other.
They are about 100 miles apart. On February 28, 1980, the American
Federation of Government Employees, AFL-CIO, (AFGE) was certified as the
exclusive bargaining representative of a unit of nonprofessional
employees at various locations throughout the country, including the
Medical Center. On October 16, 1980, AFGE was certified as the
exclusive representative of nonprofessional personnel at the Outpatient
Clinic, and they became a part of the nationwide consolidated unit,
which includes about 115,000 employees at over 225 facilities.
On March 13, 1980, shortly after the consolidation occurred, AFGE's
Director of its Contract and Appeals Division wrote VA's Director of
Labor-Management Relations Service, informing him that the "National
Office is the level of the exclusive recognition and as such is the
appropriate party for the Agency to notify whenever any changes are
proposed anywhere in the unit at any level." He also designated the
officers of the National VA Council as AFGE's representatives for the
purpose of negotiating any changes in personnel policies, practices and
regulations. In a companion letter of the same day, he acknowledged the
inconvenience of negotiating all proposed changes at any level solely at
the new level of national recognition, and expressed AFGE's willingness
to discuss alternatives. /3/
On October 22, 1980, shortly after the Outpatient Clinic was added to
the consolidated unit, AFGE National Vice President Kenneth Walsh wrote
Personnel Officer James Doherty of the Outpatient Clinic, designating
President Lonnie Carter of Local 2031 and Vice President Robert Barker
of Local 2031 as representatives of the Outpatient Clinic employees in
Columbus. /4/ Both are employees of the Cincinnati Medical Center. On
February 12, 1982, Walsh again designated Carter as the representative
for Outpatient Clinic employees and named Barker and Secretary-Treasurer
Brenda Smith as alternate representatives.
On June 24, 1981, Carter, Barker and Smith negotiated, in Cincinnati,
with the Columbus Personnel Chief, regarding a merit promotion plan for
Columbus Outpatient Clinic employees. They were granted official time.
However, a memorandum of understanding signed that day by the Union
officials and the Personnel Chiefs for the Medical Center and the
Outpatient Clinic recites that the grant of official time would set no
precedent because the Columbus Chief came to Cincinnati, and that Local
2031 "reserves the right for official time" for meetings with Outpatient
Clinic management in Columbus. These negotiations continued, in
Columbus, on July 15, 16 and 17 and were broadened to include a safety
program and EEO policy. Official time was approved for this purpose by
Sidney Stell, Acting Labor Relations Officer of the Medical Center, for
President Carter and Secretary-Treasurer Smith.
There were no other negotiations between AFGE and Columbus Outpatient
Clinic management until August 31 and September 1, 1983. They were
initiated by Acting Personnel Officer Eleanor Farington and dealt with
revisions in policies concerning safety, the Employee Attitude
Committee, Employee Assistance and Official Time. Farington's letter to
Carter expressly stated that two Union negotiators would be afforded
official time by stating that there would be two negotiators present for
management, and that the two observers requested by the union would be
limited to five hours each for the ten hours scheduled for negotiations.
As was the custom because the two facilities are separate, Carter
applied for official time for such purpose to Labor Relations Officer
Francis J. Wyborski of the Medical Center. On August 30, Wyborski
denied Carter's request on the ground that the Outpatient Clinic is a
separate facility under its own management, that the Medical Center has
no employees at the Clinic, and that the "Master Agreement does not
provide for official time for employees to travel between facilities to
engage in union activities." /5/
Farington initiated further negotiations for November 1, 1983, and
Carter again sought official time for himself and Smith. On October 27,
Acting Labor Relations Officer Sidney Stell denied the request on the
ground that neither "the Master Agreement nor the Local Supplemental
Agreement authorizes official time for local union representatives to
participate in negotiations at another facility which is not under the
control of the VA Medical Center, Cincinnati, Director." On November 1,
Carter and Smith negotiated the Outpatient Clinic's absence and leave
policy. The Medical Center placed them on leave without pay for the
period of such absence.
The Master Agreement contains a number of provisions relevant to the
question whether Carter and Smith, as employees of the Cincinnati
Medical Center, are entitled to official time for their participation in
negotiations at the Columbus Outpatient Clinic. Thus, the "parties" to
the contract are defined in the Preamble as the Veterans Administration
(Agency) and the American Federation of Government Employees/National
Veterans Administration Council of Veterans Administration Locals
(Union). Article 2 defines Union as AFGE, as represented by the Council
at the National level or by a single local at the individual field
facility level, and defines Employer as VA Central Office at the
national level or local management at the individual field facility
level. In addition "individual facility" is defined in Article 2,
Section 3, as any establishment which is under the direction of local
management officials, so as to make it clear that the Medical Center and
the Outpatient Clinic are separate facilities. Article 4, entitled
Mid-term Bargaining, describes National Level Negotiations, Local
Bargaining on National Changes and Local Level Changes. It provides
that all VA-initiated changes above the individual facility level will
be forwarded to the designated Council Representative and that the
parties will negotiate national level changes in Washington, D.C. Four
Council representatives are to receive official time and per diem for
such negotiations and for preparing for them.
Section 4, entitled Local Bargaining on National Changes, states
that:
On all policies and directives or other changes for which the
VA meets its bargaining obligations at the national level, local
bargaining at individual facilities will be restricted to local
implementation unless there was agreement at the national level to
provide for local bargaining on the national subject. Local union
representatives shall receive official time for all time spent in
mid-term negotiations as provided under 5 U.S.C. Section 7131(a).
Section 5, entitled Local Level Changes, states that:
Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request, the parties will negotiate as
appropriate. The Union representative shall receive official time
for all time spent in negotiations as provided under 5 U.S.C.
Section 7131(a).
Article 5 concerns Local Supplemental Agreements. It permits local
bargaining on subjects which are not covered by the Master Agreement, or
which will not bring about a conflict with that agreement's provisions
or impair its implementation. It provides for negotiation of one local
supplement to the controlling Master Agreement at the request of either
party and gives union negotiators limited amounts of official time for
such purposes
Article 8 provides specific amounts of official time for the National
VA Council President, the two Vice Presidents and the 15 District
Representatives for their representational activities. In Section 5 it
provides that:
Official time for local union officers and/or stewards will be
a proper subject for local supplemental bargaining.
Section 1 thereof, in Note 2, requires that Union officials obtain
prior clearance from the Personnel Officer before engaging in any
representational activity at a facility other than where they are
employed.
The Parties' Position
The General Counsel contends that the failure to place Local 2031
President Lonnie Carter and Secretary-Treasurer Smith on official time
for the negotiations on August 31, September 1 and November 1, at the
Outpatient Clinic constituted noncompliance with Section 7131(a) and
therefore violated Section 7116(a)(1) and (8). The General Counsel also
contends that the same conduct constituted a unilateral change in an
established practice of granting official time to employees of the
Cincinnati Outpatient Clinic management, in violation of Section
7116(a)(1) and (5).
With respect to the first alleged violation, the General Counsel
acknowledges that the right to official time set forth in Section
7131(a) does not encompass negotiations which occur below the level of
exclusive recognition and are designed to fashion local agreements
supplementing a national, controlling agreement. /6/ However, the
General Counsel argues that the instant negotiations were mid-term
negotiations "which took place at the level of recognition between
management representatives of the Outpatient Clinic and AFGE's duly
designated representatives." Thus, in essence, the General Counsel
contends that these negotiations were conducted pursuant to Article 4,
Section 5, which has to do with Mid-term Bargaining of Local Level
Changes. That Section directs local management to forward proposed
changes to the designated local union official and provides that the
"parties" will, upon request, negotiate as appropriate," with official
time entitlement flowing to the union representatives. As the term
"parties" is defined in the preamble as VA and AFGE/National VA Council
of VA Locals, the General Counsel asserts that the contract recognizes
that these negotiations were conducted by local management officials, as
agents of VA and local union officials as agents of AFGE/Council. Thus
their status as officers of Local 2031 is but a confusing irrelevancy,
and they are by law entitled to official time for negotiations which
took place at the national level of exclusive recognition. As best I
understand it, I take the General Counsel to be arguing that
negotiations pursuant to Article 4, Section 5, fit within the rubric of
negotiations at the level of exclusive recognition subject to official
time as described by the Authority in Interpretation and Guidance (7
FLRA 682):
However, it should be emphasized that the official time
provisions of Section 7131(a) do encompass negotiations at the
level of exclusive recognition including negotiation of "local
issues" as part of the national or controlling (master) agreement.
With respect to the second alleged violation, the General Counsel
contends that the granting of official time for the negotiations on June
24 and July 15, 16 and 17, 1981, ripened into a condition of employment,
i.e. it was a practice "consistently exercised for an extended period
with the knowledge and consent of responsible supervisors." It therefore
could not be changed, as it undeniably was, without first affording the
Union an opportunity to engage in bargaining. /7/
Respondent's major defense is that the language of the Master
Agreement, with its repeated references to "single facilities," to
"local issues" and to "local representatives" was meant to permit
bargaining below the level of recognition, only on issues confined to a
single facility, i.e. that local bargaining takes place between the
managers of a single facility and union representatives who are "local,"
i.e. who are employed at that facility. Pointing to its intention to
end the work disruptions, and the travel and per diem costs which then
attended movement of Union representatives from one facility to another
under the Authority's construction of the Statute, Respondent asserts
that the Master Agreement was designed to structure labor management
relations so that national issues would be handled by officers of the VA
Council and District Representatives, and local issues would be handled
by local officials who were employed at the single and separate facility
to be covered by the negotiations. It points to no evidence of
agreement on such a structure, except for the contract's language,
asserting that "pure and simple logic dictates" that permitting local
representatives to handle matters at more than one facility creates an
"intermediate level of activity . . . (which) . . . was not part of the
negotiated scheme and is contrary to the Master Agreement."
Notwithstanding this argument, Respondent in fact did not refuse (and
is not accused of refusing) to recognize Carter and Smith as the
designated Union representatives for the Columbus negotiations (although
it now argues they were not properly designated). Rather, it argues
that they were not entitled to official time for such negotiations (even
though Columbus management had indicated it would be available) because
the contract makes no provisions for bargaining away from the union
representative's facility. As an alternative much less vigorously
pursued, it contends that Section 7131(a) does not grant official time
for local bargaining, and that these negotiations, whether they arose
pursuant to Article 4, Section 5 or to Article 5, Section 2, were local
in nature and thus below the level of exclusive recognition necessary
for official time entitlement. In this respect it asserts that there is
no meaningful distinction between the two sections of the national
contract: each would yield a supplemental agreement resolving local
issues and each is therefore concerned with local bargaining. It
follows, says Respondent, that the issue of entitlement to official time
is governed by Section 7131(d), which consigns the matter to
negotiations, and thus converts this dispute to one of contract
interpretation for resolution by an arbitrator rather than FLRA.
On the issue of unilaterally ending a practice of granting official
time for such negotiations, Respondent again contends that the Master
Agreement eliminated any requirement to bargain concerning conditions of
employment at the Outpatient Clinic. Thus there can be no refusal to
bargain over a practice which the Union has bargained away, and the
question whether there was an established practice becomes irrelevant.
Discussion and Conclusions
The alleged violation of Section 7116(a)(1) and (8) is based on
Section 7131(a), which requires that "any employee representing an
exclusive representative in the negotiation of a collective bargaining
agreement . . . shall be authorized official time for such purposes . .
. during the time the employee otherwise would be in a duty status."
A literal reading of such language, standing alone, would strongly
suggest that local union negotiators, bargaining pursuant to the
agreement of the parties to collective bargaining at the national level
of exclusive recognition, would be "representing an exclusive
representative in the negotiation of a collective bargaining agreement"
and therefore "shall be authorized official time for such purposes . . .
. " The logistics of national bargaining and the presence of myriad
local problems which are most sensibly and economically resolved at the
local level by negotiators most familiar with them and their
ramifications in that segment of the unit, virtually dictate that
national agreements will provide for local negotiation of supplementary
agreements. As noted, nothing in Section 7131(a) suggests that Congress
intended that such a practical accommodation to the realities of
bargaining at many and disparate working locations would preclude
entitlement to official time. However, the Federal Labor Relations
Authority has construed such language, in the light of other provisions
of the Statute, as limiting entitlement to negotiating time spent at the
level of exclusive recognition.
In Interpretation and Guidance, 7 FLRA 682, the Authority was
confronted with the question whether Section 7131(a) applies to
negotiation of a local agreement which supplements a national or
controlling (master) agreement. Quoting from Section 7103(a)(12) of the
Statute, and underscoring its most significant language the Authority
said:
Thus entitlement to official time under Section 7131(a) of the
Statute flows to any employee representing an exclusive
representative in the negotiation of a "collective bargaining
agreement," which "is any agreement that is entered into as a
result of the performance of the mutual obligation of the parties
to bargain in a good-faith effort to reach agreement with respect
to conditions of employment affecting employees in the appropriate
unit." Hence, unless what is being negotiated meets this
definition of "collective bargaining agreement," the official time
provisions of section 7131(a) do not apply.
Parties at the level of exclusive recognition, who are under
the mutual obligation to bargain with respect to conditions of
employment affecting employees in an appropriate unit, may agree
to authorize representatives below the level of recognition to
supplement provisions of the national controlling master
agreement. Thus, local supplemental agreements are negotiated
voluntarily pursuant to the agreement of the parties at the level
of exclusive recognition and not pursuant to a "mutual obligation"
to bargain.
Accordingly, the official time provisions of section 7131(a) .
. . do not encompass negotiations below the level of exclusive
recognition which are designed to create local agreements to
supplement a national or controlling (master) agreement. However,
it should be emphasized that the official time provisions . . . do
encompass negotiations at the level of exclusive recognition,
including negotiation of "local issues" as part of the national or
controlling (master) agreement.
Thus, the Authority has clearly said that the mutual obligation to
bargain exists here only at the national level, and that any arrangement
there made for the resolution of local issues through local bargaining
of supplemental agreements creates voluntary bargaining to which no
official time entitlement attaches. I take the emphasis placed on the
phrase "in the appropriate unit" to mean that bargaining can only be
deemed to occur at the national level if the agenda includes terms and
conditions of employment which affect the entire unit, i.e. it is
coextensive with the unit. I base this inference on the fact that
bargaining which concerns any segment of a unit obviously also arises in
a unit, and affects terms in the unit. The Authority must have meant
more -- that only the negotiations at the national table discharge the
mutual obligation to bargain and therefore carry the right to official
time. Put another way, the national negotiators cannot provide for
their agents at a lower level to bargain about problems more limited in
scope than the unit itself, for an agreement which would become a part
of, or an amendment to, the controlling agreement, and thereby delegate
downward the mutual obligation to bargain and the concomitant right to
official time for the employees representing the union.
I make this effort to deal with the semantic confusion engendered by
the terms employed because it is my conclusion that such arrangements
are precisely what this national agreement attempted to create. The
national agreement, in Article 5, explicitly provides for "negotiations
below the level of exclusive recognition which are designed to create
local agreements to supplement a national agreement." Were it clear that
the Columbus negotiations were intended to result in a "local
supplementary agreement," the inquiry would be over. Such negotiations
are quite literally covered by the Authority's above-quoted language,
and they clearly would not be encompassed by Section 7131(a).
It is not clear, however, that the Columbus bargaining was pursuant
to Article 5, as opposed to the "local" bargaining provisions of Article
4. That Article addresses mid-term bargaining, and by its terms would
appear to affect the national segment. In addition, it provides for
regular reopening whereas a local supplementary agreement can be
negotiated only once. It literally provides in Section 4 for "Local
Bargaining on National Changes" where there was agreement at the
national level for local bargaining on a national subject. It also
provides for official time "as provided under 5 U.S.C. Section 7131(a)."
In Section 5 it deals with "Local Level Changes," and provides that
proposed changes initiated by local management at a single facility are
to be forwarded to the designated local union official and that, upon
request, "the parties" will negotiate as appropriate. Recall that the
General Counsel hangs his hat on this last quote, contending that "the
parties," as defined in the controlling agreement, are the VA and the
AFGE/National VA Council, and that negotiators operating under Section 5
not only represent those parties (as would always be the case), but are,
by operation of law, "the parties" so as to elevate the negotiations
which in fact are conducted at the local facility by local officials to
the national level. Note further that Section 5 also provides for union
negotiators to receive official time "as provided under 5 U.S.C. Section
7131(a)," indicating that the parties believed (or desired) that Section
to apply.
If Sections 4 and 5 of Article 4 were designed to create local
supplemental agreements (and we do not know how such bargaining would be
memorialized) then they would duplicate Article 5. In order to avoid
redundancy, and to recognize that both Section 4 and Section 5 are in an
Article which describes the procedures for mid-term modification of the
controlling agreement, I conclude that they contemplate negotiations
which look to amendment of the controlling agreement. I assume that
Section 5 governs here if Article 5 does not, since those negotiations
were initiated by local management and were limited to terms and
conditions at a single facility. Because Article 5 permits local
bargaining only on matters not covered by the National Agreement, and
Article 4, Section 4 permits "local" bargaining only on "a national
subject" which the parties at the national level have agreed may be
negotiated at the local level, I conclude that Article 4, Section 5 must
have to do with the only subject left uncovered: matters governed by
the national agreement which management wishes to change at a single
location. If it is not designed to deal with such matters, I fail to
see its purpose. Perhaps, as the General Counsel's argument suggests,
the intent was that the local union representative was merely to receive
such proposals, and any bargaining was then to take place between the
national negotiators named by the controlling agreement. Perhaps, as
General Counsel actually argues, local negotiators were then to
substitute for their national level counterparts, so as to elevate what
appears to be local bargaining conducted at a single facility to the
national level of exclusive recognition.
My reading of Interpretation and Guidance, supra, requires a finding
that, even if the parties intended to raise bargaining of the kind
contemplated by Article 4, Section 5, to the national level, so as to be
encompassed by Section 7131(a), they are powerless to do so. I feel
constrained to come to this conclusion because of the analysis I have
already made of the literal meaning and the sense of the Authority's
decision. To recapitulate, the Authority held that Section 7131(a)
encompasses negotiations "at the level of exclusive recognition,
including negotiation of 'local issues' as part of the . . . controlling
agreement" (Emphasis mine). The converse is that local issues which are
not negotiated as part of the overall negotiations are excluded from
such coverage. Thus, national bargaining that does not resolve local
issues, but instead provides for their later resolution at some lower
level cannot operate to shift the level of recognition downward so as to
create "local negotiations" which are conducted "in an appropriate unit"
pursuant to the "mutual obligation to bargain." The Authority's holding
that negotiations for local supplemental contracts are "voluntary" in
nature must control the result here, unless a meaningful distinction can
be drawn between local bargaining which "supplements" a master agreement
and local bargaining which changes or "amends" a master agreement. In
the light of the Authority's guidance the difference appears to be more
semantic than real. In either instance local agents of the national
parties are permitted to flesh out or change the controlling agreement
as it applies to a particular locality. Such negotiations thus run
counter to, or offend, the very same notions of collective bargaining
that led the Authority to reject the contention that local supplemental
bargaining should be covered by official time. Thus, they in fact also
occur at a level below that of exclusive recognition and are concerned
with employment conditions affecting only a part of the appropriate
unit. They are functionally the same. By definition, the combination
of low level of discussion and narrow focus of impact renders such
negotiations "voluntary", and thus precludes the application of Section
7131(a) because such "discussions" do not discharge the mutual
obligation to bargain concerning terms affecting employees in an
appropriate unit.
It follows that the negotiations at the Columbus Outpatient Clinic
were not encompassed by Section 7131(a), as they were limited to that
facility and were conducted by local union officials. For the same
reasons the questions whether those officials were duly designated
representatives of AFGE/VA National Council, and whether they could in
any event represent employees at a facility where they do not work, are
rendered irrelevant. I therefore recommend that the allegations of
violations of Section 7116(a)(1) and (8) be dismissed. /8/
Finally, I find no merit to the allegation that Respondent has
unilaterally departed from a practice of granting official time to union
negotiators for local bargaining, in violation of Section 7116(a)(1) and
(5).
Official time for such purposes can, of course, become a condition of
employment. But that only occurs if a practice of doing so is
consistently exercised for an extended period with the knowledge and
consent of responsible supervisors. See Department of Defense,
Department of the Navy, Polaris Missile Facility, Atlantic, Charleston,
South Carolina, 6 FLRA 372. The practice here in question involved
high-ranking personnel and labor relations officials. It consisted of:
1. Negotiations on June 24, 1981, for which official time was
provided by the Personnel Chief, expressly on the ground that the
bargaining took place in Cincinnati and would not set a precedent
for future Columbus negotiations.
2. Negotiations on July 15, 16 and 17, 1981 for which official
time was provided by the Acting Labor Relations Director.
3. Negotiations on August 31, September 1 and November 1,
1983, for which official time was refused.
Thus, official time was, in fact, granted for two sets of
negotiations (involving four days) which occurred over the course of
some 26 months prior to the refusal. One day was nonprecedential, and
the other three were covered by a grant from an official, in an acting
capacity, who appears to have acted inconsistently with his absent
superior's written reservations in the earlier instance. At best, two
sets of negotiations can be viewed as having been covered by official
time. This is hardly a consistent exercise over an extended period.
Nor is the rather regular grant of official time for the other
representational purposes relevant. Respondent did so until the 1982
execution of the Master Agreement. It never drew the line, as it did on
one of the two occasions here, at such travel for representational
reasons. I would therefore not find a practice of providing official
time for Cincinnati-based representatives to handle grievances and like
matters in Columbus to constitute a binding practice respecting
negotiations. Accordingly, I also recommend that the Section 7116(a)(1)
and (5) allegation be dismissed.
In view of these findings and conclusions, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. Section
2423.29:
ORDER
IT IS HEREBY ORDERED that the consolidated complaint in Case Nos.
5-CA-40056 and 5-CA-40059 be dismissed in its entirety.
/s/ JOHN H. FENTON
Chief Administrative Law Judge
Dated: December 6, 1984
Washington, D.C.
FOOTNOTES
(1) In a case involving these same parties, the Authority dismissed
section 7116(a)(1) and (8) allegations when V.A. Cincinnati denied
official time, travel expenses and per diem allowances to three of its
employees who represented the Union in negotiating a dues withholding
agreement covering employees at the Outpatient Clinic in Columbus. The
Authority reached this conclusion because the parties at the level of
exclusive recognition had not agreed to authorize the local negotiations
for a dues withholding agreement. Veterans Administration, Cincinnati,
Ohio, 19 FLRA No. 19 (1985). The Authority referred to American
Federation of Government Employees v. FLRA, 750 F.2d 143 (D.C. Cir.
1984), where the court held that a mutual obligation to bargain exists
at the local level once the parties agree in the master agreement to
such local negotiations, thus triggering the provisions of section
7131(a).
(2) This conclusion does not conflict with the Authority's decision
in U.S. Naval Space Surveillance Systems, Dahlgren, Virginia, 12 FLRA
731 (1983), aff'd sub nom. American Federation of Government Employees,
Local 2096 v. FLRA, 738 F.2d 633 (4th Cir. 1984). There it was held
that an activity has no obligation under section 7131(a) to grant
official time or under section 7131(d) to negotiate concerning the
authorization of official time for any of its employees to represent the
union in collective bargaining on behalf of employees of a separate and
independent activity. Similarly, in United States Department of
Defense, Department of the Air Force, San Antonio Air Logistics Center,
Kelly Air Force Base, Texas, 15 FLRA 998 (1984), it was determined that
an activity has no obligation under section 7131(a) to grant official
time to an employee who is not a member of the bargaining unit involved
in the negotiations. See also United States Air Force, 2750th Air Base
Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 7 FLRA 738 (1982).
(3) I reserved ruling on the admissibility of these two documents.
They are hereby admitted as Respondents Exhibits 1 and 2.
(4) Walsh said that, "(i)n the very near future, Local 2031 will be
nominating and electing stewards to represent employees in Columbus,
Ohio, on day to day problems."
(5) The Master Agreement relied upon by management in denying
official time became effective on August 13, 1982, one year after the
negotiations for which official time was authorized and a year before
the negotiations for which it was denied.
(6) Interpretation and Guidance, 7 FLRA 682.
(7) Again, I take it that this is an alternative theory of violation
which would apply only in the event that Section 7131(a) is found
inapplicable to these negotiations. If the union representatives were
entitled to official time as a statutory grant, then it is difficult to
understand what bargaining obligation Respondent would have to
discharge. There would, of course, be a clear unilateral change, i.e. a
change without any notice or discussion, but there could be no
obligation to bargain in good faith about the Respondent's willingness
to comply with Congress' mandate.
(8) None of this addresses the question whether Respondent breached a
clear contractual commitment to make "local bargaining on national
subjects" subject to official time. The General Counsel did not allege
an unfair labor practice founded in breach of contract, rather he
alleged a statutory violation based on a contract provision which
allegedly elevated the instant bargaining to the level of exclusive
recognition.
23 FLRA NO. 70
Overseas Federation of Teachers and DOD Dependents Schools,
Mediterranean Region, Case No. 0-NG-999 (Decided September 29, 1986)
STATUTE
7117(c)
SUBJECT MATTER INDEX ENTRIES
Negotiability
Procedure
Timeliness
Agency Refusal to Provide Allegation of Nonnegotiability
Fifteen-Day Time Limit Inapplicable
Request Concerned Subject of Agency's Previous Response
Subject of Dispute Concerns Previous Allegation
Second Request for Allegation Re Same Proposals
Outside Time Limits
DIGEST NOTES
The Authority held that the substance of the dispute between the
parties concerns the agency's previous allegation that the four
proposals were nonnegotiable. The union's second appeal from that
allegation was outside the time limits set forth in Section 2424.3 of
the Authority's regulations. 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. The union's first petition for review was dismissed as
untimely filed because it failed to comply with the provisions of the
Statute and the Authority's rules and regulations, applicable to the
computation of time limits. Subsequently, the union again requested a
written declaration of nonnegotiability from the Agency with respect to
the same four proposals which had been subject to the dismissal
referenced above. The agency informed the union that the request was
the same as that to which it had previously responded and that it would
not provide the union with a new allegation. The union then filed this
negotiability appeal seeking review of the four proposals. The
Authority has held that a union may file a petition for review of
negotiability issues without a prior written agency allegation where the
union has requested such an allegation and the agency has failed to
provide it. The requirement that a petition for review must be filed
within 15 days from the date of service on the union of an agency
allegation does not apply in such circumstances. The fact that the
union filed its petition approximately 75 days after it had requested a
written allegation from the agency, would not, therefore render its
petition untimely and would not, in and of itself, provide a basis for
dismissing the union's appeal. The Authority found that the record
demonstrated that the union's petition sought review of the agency's
earlier allegation, which was previously provided to the union. Where a
petition for review is filed concerning an agency's allegation of
nonnegotiability which is only a restatement of a prior allegation, and
no changes in the substance or language of the proposal have been
effectuated during the period between the allegations, the petition
seeks review of the earlier allegation. Therefore, the union's second
appeal of the agency's allegation was also untimely.
Case No. 0-NG-999
OVERSEAS FEDERATION OF TEACHERS
Union
and
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS MEDITERRANEAN REGION
Agency
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.
From the record in this case it appears that on November 14, 1983,
the Agency served on the Union by mail its allegation of
nonnegotiability with respect to the four Union proposals here in
dispute. Since, under section 7117(c) of the Statute and section 2424.3
of the Authority's Rules and Regulations, the time limit for filing a
petition for review is fifteen days after the date the Agency's
allegation is served on the Union, the Union's petition for review was
due in the national office of the Authority on December 5, 1983. The
Union's petition for review was not filed with the Authority until
December 12, 1983 and so the Authority dismissed the case on the basis
that it was untimely filed. Overseas Federation of Teachers and
Department of Defense Dependents Schools, Mediterranean Region, 13 FLRA
721 (1984), Request for Reconsideration denied, 15 FLRA 1047 (June 13,
1984).
On February 28, 1984, the Union again requested a written declaration
of nonnegotiability from the Agency with respect to the same four
proposals which had been subject to the dismissal referred to above.
The Agency informed the Union that the Union's request was the same as
that to which it had responded by its allegation in November, 1983, that
it had stated its position to the Union at that time, and that it would
not provide the Union with a new allegation. On May 14, 1984, the Union
filed the instant negotiability appeal with the Authority seeking review
of the four proposals. It claims that the appeal is timely under a
proviso to section 2424.3 of the Authority's Rules and Regulations,
which permits an appeal to be filed after an agency allegation is
requested and the agency has failed to provide it.
The Authority has held that a union may file a petition for review of
negotiability issues without a prior written agency allegation where the
Union has requested such an allegation and the agency has failed to
provide it. The requirement that a petition for review must be filed
within 15 days from the date of service on the Union of an agency
allegation of nonnegotiability does not apply in such circumstances.
See, for example, National Treasury Employees Union and NTEU Buffalo
District Joint Council and Internal Revenue Service, Buffalo District
(and the cases consolidated therewith), 3 FLRA 337 (1980). The fact
that the Union filed its petition for review on May 14, 1984,
approximately seventy-five days after it had requested a written
allegation from the Agency, would not, therefore, render its petition
untimely and would not, in and of itself, provide a basis for dismissing
the Union's appeal.
However, the record demonstrates that the Union's petition, in
essence, seeks review of the Agency's earlier allegation, which the
Agency provided to the Union in November, 1983. The Authority has held
that "where a petition for review is filed concerning an agency's
allegation of nonnegotiability which is only a restatement of a prior
allegation, and no changes in the substance or language of the proposal
have been effectuated during the period between allegations, the
petition seeks review of the earlier allegation." American Federation of
Government Employees, AFL-CIO, Local 1336 and Department of Health and
Human Services, Social Security Administration, 21 FLRA No. 1 (1986).
While, strictly speaking, the Agency did not in this case provide the
Union with a second written allegation, it made clear to the Union that
its position taken in the earlier allegation had not changed,
reaffirming its previous position with respect to the four Union
proposals at issue. Moreover, as already noted, the record indicates
that the proposals in the present appeal were the same ones that had
been subject to the Agency's November, 1983 allegation of
nonnegotiability. There had been no change in either the substance or
the language of the proposals between November, 1983, and February 28,
1984. Compare American Federation of Government Employees, AFL-CIO,
Local 2303 and Metropolitan Washington Airports, Federal Aviation
Administration, U.S. Department of Transportation, 17 FLRA 17 (1985),
petition for review filed sub nom. American Federation of Government
Employees, AFL-CIO v. Federal Labor Relations Authority, No. 85-1248
(D.C. Cir. April 25, 1985) (recombination of various parts of proposals
previously declared nonnegotiable did not constitute a change in the
substance or language of the proposals). It must be concluded that the
substance of the dispute between the parties concerns the Agency's
November, 1983, allegation that the four proposals are nonnegotiable.
As noted above, the Union's first appeal, filed on December 12, 1983,
was untimely. All the more so, the Union's second appeal from that
allegation, filed with the Authority on May 14, 1984, was outside the
time limits set forth in section 2424.3 of the Authority's regulations
and, therefore, untimely.
ORDER
As the Union's petition for review was untimely filed, and apart from
other considerations, it is hereby dismissed.
For the Authority,
Issued, Washington, D.C., September 29, 1986.
/s/ Harold D. Kessler
Director of Case Management
23 FLRA NO. 69
AFGE, Local 1631 and VA Medical Center, Chillicothe, Ohio (Immundo,
Arbitrator), Case No. 0-AR-1172 (Decided September 29, 1986)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
Arbitration
Exceptions Asserted in Appeal
Award Contrary to Law and Regulation
Arbitrator Failed to Grant Retroactive Temporary Promotion and
Backpay
Temporary Promotion
Higher Graded Position
Employee Must Meet Minimum Qualification Requirements
DIGEST NOTES
The issue presented at arbitration was whether management had
violated the parties' collective bargaining agreement by not temporarily
promoting the GS-3 graded grievant to a GS-5 position. The arbitrator
found that the grievant had satisfactorily performed some of the duties
of the GS-5 position for a 10-month period and concluded that by not
detailing the grievant to the higher-graded position, management
violated the spirit of a provision of the parties' agreement relating to
equitable, nondiscriminatory treatment of employees. However, the
arbitrator further found, that the grievant was not eligible for
promotion to GS-5 under civil service qualification standards. The
arbitrator therefore concluded that management did not violate
applicable provisions of the parties' agreement by not temporarily
promoting the grievant. Finding that no remedy could be applied for a
violation of the spirit of a provision of the parties' agreement, the
arbitrator denied the grievance.
In its exception to the arbitrator's award, the union contended the
award is deficient because the arbitrator failed to award the grievant a
retroactive temporary promotion and backpay for the period of time he
found that the grievant was assigned duties for a GS-5 position. The
Authority held that the exception failed to establish that the award was
contrary to law or regulation. To the contrary, the award was strictly
in accordance with civil service law and regulation. The Authority has
recognized that in order for an employee to be properly promoted
consistent with civil service law and regulation, whether temporarily or
permanently, the employee must meet at the time of the promotion the
minimum qualification requirements for the position to which the
employee is to be promoted. The arbitrator specifically found that the
grievant did not meet the minimum qualification requirements for
promotion to GS-5.
Case No. 0-AR-1172
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1631
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER,CHILLICOTHE, OHIO
Activity
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Louis V. Immundo, Jr. filed by the Union under section
7122(a) of the Federal Service Labor-Management Relations 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 where the
Arbitrator framed the issue as whether management violated the parties'
collective bargaining agreement by not temporarily promoting the
grievant, a clerk-stenographer, GS-3, to the position of
secretary-stenographer, GS-5. The Arbitrator found that the grievant
performed some of the duties of the GS-5 position for a 10-month period
and that she apparently performed those duties in a satisfactory manner.
The Arbitrator concluded that by not detailing the grievant to the
higher-graded position, management violated the spirit of Article 10 of
the parties' collective bargaining agreement relating to equitable,
nondiscriminatory treatment of employees. However, the Arbitrator
further found, based on a determination by the Office of Personnel
Management, that the grievant was not eligible for promotion to GS-5
under X-118 civil service qualification standards. The Arbitrator
therefore concluded that management did not violate Article 16 of the
parties' agreement by not temporarily promoting the grievant to the GS-5
position. Finding that no remedy could be applied for a violation of
the spirit of Article 10, the Arbitrator, as his award, denied the
grievance.
III. EXCEPTION
In its exception the Union contends that the award is contrary to law
and regulation. Essentially, the Union argues that the award is
deficient because the Arbitrator failed to award the grievant a
retroactive temporary promotion and backpay for the period of time he
found that she was assigned the duties of the GS-5 position.
IV. ANALYSIS AND CONCLUSIONS
We conclude that the exception fails to establish that the award is
contrary to law or regulation. To the contrary, the award is strictly
in accordance with civil service law and regulation. The Authority has
recognized that in order for an employee to be properly promoted
consistent with civil service law and regulation, whether temporarily or
permanently, the employee must meet at the time of the promotion the
minimum qualification requirements for the position to which the
employee is to be promoted. For example, Veterans Administration, VA
Medical Center, Muskogee, Oklahoma and American Federation of Government
Employees, Local 2250, 20 FLRA No. 48 (1985) (and cases cited in the
decision). As noted, the Arbitrator in concluding that the Activity did
not violate the parties' agreement specifically found that the grievant
did not meet the minimum qualification requirements for promotion to
GS-5. Accordingly, while we do not condone management's inequitable
treatment of the grievant as found by the Arbitrator, we are constrained
to conclude that the award denying the grievance is not deficient as
alleged.
V. DECISION
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
23 FLRA NO. 68
Portsmouth Naval Shipyard and Dep't of the Navy (Wash., D.C.) and
IPFTE, Local 4, Case No. 1-CA-30290 (Decided September 29, 1986)
STATUTE
7102
7103(a)(14)
7116(a)(1) and (2)
7116(d)
7118 and 7118(a)(4)
7121(a)
SUBJECT MATTER INDEX ENTRIES
Unfair Labor Practice
Agency Violations
Discrimination
Access to Administrative Grievance Procedure
Union Members Denied Access
5 CFR Section 771.204 Does Not Allow Agency to Discriminate Among
Employees
Interference, Restraint, Coercion Statement
Union Members Denied Access to Administrative Grievance Procedure
Procedure
Jurisdiction
Matter Not Barred by Section 7116(d)
Issues In Complaint Differ From Issues In Grievance
Timeliness
Complaint Not Time-Barred
Unlawful Rule Maintained Throughout 6-Months Prior to Filing
Remedy
Reinstate and Process the Grievance
5 CFR Section 771.204(b)
DIGEST NOTES
The Authority held that it is a violation of Section 7116(a)(1) and
(2) to deny employees access to an administrative grievance procedure
because they are represented by a union in an appropriate unit and
covered by a collective bargaining agreement. The administrative
grievance procedure is a condition of employment as it is a personnel
matter or practice established by rule or regulation for resolving
disputes affecting employee working conditions. Section 7116(a)(1) and
(2) clearly prohibits discrimination between unit and non unit employees
with respect to conditions of employment based solely on bargaining unit
status. There is no indication in the Statute or its legislative
history that Congress intended for there to be any exceptions to this
prohibition other than those which derive from the Statute itself.
While 7121(a)(1) provides, with certain exceptions, that the grievance
procedures of a collective bargaining agreement are to be the exclusive
procedures for resolving grievances which fall within its coverage, it
does not prohibit employees from using the agency grievance procedure to
raise issues outside the scope of the negotiated grievance procedure.
Thus, while the Statute does not mandate the scope of an administrative
grievance procedure, once such a grievance procedure is established,
unit employees may not be denied access to it solely on the basis of
their status as members of a unit covered by a collective bargaining
agreement.
The agency violated Section 7116(a)(1) when it informed an employee
that since he was represented by the union and covered by a collective
bargaining agreement, he could not utilize the agency's administrative
grievance procedure. The Authority held that the statements would
reasonably be expected to cause a unit employee to conclude that he was
being denied access to the agency grievance procedure, a privilege
available to nonunit employees, solely because his exclusive
representative successfully negotiated a collective bargaining
agreement. The statement would discourage the exercise of an employee's
protected right to engage in collective bargaining.
Section 5 CFR Section 771.204 does not permit an agency to
discriminate among its employees. OPM's regulations permit agencies to
extend the coverage of the agency grievance procedure to bargaining unit
employees to the extent consistent with the provisions of Section 7121.
That is, to the extent such matters do not fall within the coverage of
the negotiated grievance procedure, they may be contested through
administrative procedures. Nothing in the regulation permits the agency
to deny access to unit employees for matters which are not covered by
the negotiated procedure.
Case No. 1-CA-30290
PORTSMOUTH NAVAL SHIPYARD AND DEPARTMENT OF THE NAVY (WASHINGTON,
D.C.)
Respondents
and
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
LOCAL 4, AFL-CIO-CLC
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the General
Counsel. The complaint alleged that the refusal by the Respondents
Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.),
hereafter also referred to separately as Respondent Shipyard and
Respondent Navy, to permit a bargaining unit employee access to its
agency grievance procedure because the employee was covered by a
collective bargaining agreement and represented by a Union constituted a
violation of section 7116(a)(1) and (2) of the Statute. The complaint
further alleged that Respondent Shipyard committed a separate
independent violation of section 7116(a)(1) of the Statute when its
agent informed a unit employee that he could not utilize the Agency
grievance procedure since he belonged to a unit covered by a collective
bargaining agreement.
II. Facts
An employee of the Respondents in a unit represented by the Charging
Party applied for a job outside that unit. When the applicant received
a notice that he was ineligible for the position, he sought to grieve
this rating through the parties' negotiated grievance procedure. The
grievance was rejected by Respondent Shipyard on the ground that the
negotiated grievance procedure permitted appeal of a rating only for a
position within his own bargaining unit. Therefore, he was informed
that he could not grieve a rating in conjunction with an application for
a position outside his unit under the negotiated procedure. The
employee next filed a grievance under the Agency grievance procedure.
/1/ Respondent Shipyard denied this grievance solely on the ground that
Respondent Navy's Civilian Personnel Instruction (CPI) denied access to
the Agency grievance procedure to a bargaining unit employee covered by
a negotiated agreement. Respondent Shipyard informed the employee that,
because of his "status," there was no formal procedure available to him
for appealing or grieving his rating.
III. Administrative Law Judge's Decision
The Judge concluded that the complaint should be dismissed since the
parties' negotiated grievance procedure arguably could have covered the
employee's grievance, and the issue sought to be raised by the General
Counsel was essentially one of contract interpretation unsuitable for
resolution as an unfair labor practice.
The Judge further found that nothing in the Statute requires matters
excluded from a negotiated grievance procedure to be subject to the
agency grievance procedure, and the Office of Personnel Management's
(OPM) regulations governing agency grievance procedures /2/ grant an
agency discretion in deciding whether or not it will extend coverage of
its administrative grievance procedure to bargaining unit employees.
The Judge found that Congress envisioned a dual procedure in section
7121 of the Statute, a negotiated grievance procedure for unit employees
and an agency grievance procedure for nonunit employees. The Judge
concluded, therefore, that even if the parties' contract did not cover
the grievance, the Respondents' refusal to accept the unit employee's
administrative grievance based solely on the employee's status as a
member of a bargaining unit which had a collective bargaining agreement
was consistent with the statutory scheme and was not violative of the
Statute.
IV. Positions of the Parties
The General Counsel contends in his exceptions that the Judge erred
in concluding that the case involved differing and arguable
interpretations of the collective bargaining agreement, since the
parties stipulated that the employee's grievance was not covered by the
parties' negotiated grievance procedure. The General Counsel also
argues that as the Agency grievance procedure is a mechanism for
resolving employee disputes which arise in the workplace, to the extent
such disputes are not within the coverage of the negotiated grievance
procedure, access to an agency procedure is a working condition of unit
employees. The General Counsel maintains, therefore, that the
Respondents' policy of denying access to its administrative grievance
procedure solely on the basis of the employee's status as a member of a
bargaining unit, without consideration of the scope of the negotiated
grievance procedure, violates section 7116(a)(1) and (2) of the Statute.
The Respondents filed a Memorandum in Opposition to the General
Counsel's exceptions which supported the Judge's Decision. /3/
V. Analysis
A. Threshold Questions
The Respondents asserted, both at the hearing and in their brief to
the Judge, that the complaint was barred by the provisions of section
7116(d) of the Statute, and that it was also time-barred by section
7118(a)(4) of the Statute. The Judge did not address these issues in
his Decision, and Respondents did not thereafter file an exception with
regard to the Judge's failure to do so. As these matters were properly
presented to the Judge by motion and argument, and raise questions
regarding the Authority's jurisdiction, they will be addressed. /4/
1. Section 7116(d) of the Statute /5/
The Union filed an institutional grievance on July 15, 1982. That
grievance sought to contest the Agency's interpretation of the
negotiated grievance procedure and its administrative grievance
procedure which resulted in the creation of a "no man's land" with
respect to a unit employee's ability to grieve merit promotion actions
in connection with applications for positions outside the bargaining
unit. The Union's grievance did not raise the issue sought to be
addressed by this case, specifically, whether Respondents' conduct
constituted interference and discrimination with regard to employee
terms and conditions of employment in derogation of section 7102 and
section 7116(a)(1) and (2) of the Statute. The complaint in this case
is not barred by the provisions of section 7116(d) of the Statute since
the issues raised by the complaint differ from those raised by the
earlier grievance. /6/
2. Section 7118(a)(4) of the Statute /7/
We conclude that the complaint is not time-barred by the operation of
section 7118(a)(4)(A) of the Statute. The maintenance and continued
enforcement of a rule barring unit employees from access to the agency's
grievance procedure, not merely the application of that rule to the
grievant, is the violation charged in the complaint. The violation
alleged is a continuing one and not time-barred by the provisions of
section 7118(a)(4)(A) of the Statute since Respondents continued to
maintain the rule within the six months preceding the filing of the
unfair labor practice charge. /8/
B. The Unfair Labor Practice Allegations
1. Contract Interpretation
The Judge erred in recommending the dismissal of the complaint based
on his conclusion that the negotiated grievance procedure arguably could
have covered the employee's grievance. The parties stipulated
otherwise, stating that the employee's grievance was not covered by the
parties' negotiated grievance procedure. We do not find that there is
any issue regarding grievability/arbitrability in this case where there
is no dispute between the parties.
2. Access to the Administrative Grievance Procedure
The Authority concludes that it is a violation of section 7116(a)(1)
and (2) of the Statute to deny employees access to an administrative
grievance procedure because they are represented by a union in an
appropriate unit and covered by a collective bargaining agreement. The
agency's administrative grievance procedure is a condition of employment
as it is a personnel matter or practice established by rule or
regulation for resolving disputes affecting employee working conditions.
/9/ Section 7116(a)(1) and (2) of the Statute clearly prohibits
discrimination between unit and nonunit employees with respect to
conditions of employment based solely on bargaining unit status. There
is no indication in the Statute or its legislative history that Congress
intended for there to be any exceptions to this prohibition other than
those which derive from the Statute itself. While section 7121(a)(1) of
the Statute provides, with certain exceptions, that the grievance
procedures of a collective bargaining agreement are to be the exclusive
procedures for resolving grievances which fall within its coverage, it
does not prohibit employees from using the agency grievance procedure to
raise issues outside the scope of the negotiated grievance procedure.
Thus, while the Statute does not mandate the scope of an administrative
grievance procedure, once such a grievance procedure is established,
unit employees may not be denied access to it solely on the basis of
their status as members of a unit covered by a collective bargaining
agreement. We thus find that Respondents' policy of discriminating
between represented and unrepresented employees regarding access to the
Agency grievance procedure is prohibited by the Statute.
The Authority rejects the Respondent's contention that 5 C.F.R.
Section 771.204 issued by OPM permits the Agency to discriminate among
its employees. OPM's regulations permit agencies to extend the coverage
of the agency grievance procedure to bargaining unit employees to the
extent consistent with the provisions of section 7121 of the Statute.
That is, to the extent such matters do not fall within the coverage of
the negotiated grievance procedure, they may be contested through
administrative procedures. Nothing in the regulation permits
Respondents to deny access to unit employees for matters which are not
covered by the negotiated procedure.
The complaint also alleged, and the Authority finds, that Respondent
Shipyard independently violated section 7116(a)(1) of the Statute when
it informed an employee that since he was represented by the Union and
covered by a collective bargaining agreement, he could not utilize the
Agency's administrative grievance procedure. The standard by which to
determine interference, restraint or coercion within the meaning of
section 7116(a)(1) of the Statute is whether, under the circumstances,
the employer's conduct may reasonably tend to coerce or intimidate the
employee, or, in the case of a statement, whether the employee could
reasonably have drawn a coercive inference from the statement. See
Department of the Treasury, United States Customs Service, Region IV,
Miami, Florida, 19 FLRA No. 114 (1985). See also Federal Mediation and
Conciliation Service, 9 FLRA 199, 208 (1982); Department of the
Treasury, Internal Revenue Service, Louisville District, 11 FLRA 290,
297 (1983). The Respondent Shipyard's statements would reasonably be
expected to cause a unit employee to conclude that he was being denied
access to the agency grievance procedure, a privilege available to
nonunit employees, solely because his exclusive representative
successfully negotiated a collective bargaining agreement. We find that
the statement would discourage the exercise of an employee's protected
right to engage in collective bargaining in violation of section
7116(a)(1) of the Statute.
C. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
made by the Judge at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision and the entire record, including the parties'
contentions, and adopts the Judge's findings and conclusions only to the
extent consistent with this decision.
The Authority concludes that both Respondents violated section
7116(a)(2) of the Statute by discouraging membership in a labor
organization by discrimination in connection with conditions of
employment. This statutory violation is based on Respondents'
maintenance of a rule or regulation which excludes employees who are
members of a bargaining unit and covered by a collective bargaining
agreement from utilizing the Respondents' administrative grievance
procedure regarding matters not covered by the grievance/arbitration
procedure in their existing collective bargaining agreement. The
Authority further finds that, by such acts, the Respondents committed
independent violations of section 7116(a)(1) of the Statute. The
Authority also concludes that Respondent Portsmouth Naval Shipyard
separately violated section 7116(a)(1) of the Statute by interfering
with, restraining, or coercing employees in the exercise of rights
guaranteed in section 7102 of the Statute when it informed a unit
employee that, because he was covered by a collective bargaining
agreement, he could not utilize the Respondent's grievance procedure to
grieve the merit rating he had received when he applied for a position
outside his bargaining unit.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that:
A. Respondents Portsmouth Naval Shipyard and Department of the Navy
(Washington, D.C.) shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of the
International Federation of Professional and Technical Engineers, Local
4, AFL-CIO-CLC, the exclusive representative of a unit of the Shipyard's
employees, or any other labor organization, by maintaining a rule which
prohibits their bargaining unit employees from utilizing the agency
grievance procedure to grieve matters not covered by their negotiated
grievance procedure solely on the basis of the employee's inclusion
within a bargaining unit covered by a collective bargaining agreement.
(b) Interfering with, restraining, or coercing employees in the
exercise of their right to engage in collective bargaining assured by
the Federal Service Labor-Management Relations Statute by enforcing a
rule or regulation which prohibits their bargaining unit employees from
utilizing the agency grievance procedure to grieve matters not covered
by their negotiated grievance procedure solely on the basis of their
status as employees within a bargaining unit covered by a collective
bargaining agreement.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of any right under 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) Reinstate and process on the merits under the Agency's grievance
procedure the grievance filed by Richard C. Russell, a unit employee,
concerning his Merit Promotion rating for the position of Education
Specialist.
(b) Post at Respondents' facility at Portsmouth Naval Shipyard copies
of the attached Notice marked Appendix A on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commander of the Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, or a designee, and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and 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) Notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply.
B. Respondent Portsmouth Naval Shipyard shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in the
exercise of their right to engage in collective bargaining assured by
the Federal Service Labor-Management Relations Statute by making
statements to unit employees to the effect that solely because they are
covered by a collective bargaining agreement, they cannot utilize the
Agency's administrative grievance procedure to grieve a matter not
covered by their negotiated grievance procedure.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facility copies of the attached Notice marked
Appendix B on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commander of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
or a designee, and shall be posted in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted, and maintained for 60 consecutive days thereafter.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 1-CA-30290
PORTSMOUTH NAVAL SHIPYARD AND DEPARTMENT OF THE NAVY (WASHINGTON,
D.C.)
Respondent
and
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
LOCAL 4, AFL-CIO-CLC
Charging Party
Steven Sharfstein, Esquire
For the Respondent
Peter E. Dow, 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. 7101,
et seq., /10/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. Section 2423.1 et seq., concerns, in essence, whether it is an
unfair labor practice to deny a bargaining unit employee access to
Respondent's administrative grievance procedure because the employee is
represented by a union in an appropriate unit and is covered by a
collective bargaining agreement which, of course, contains a negotiated
grievance and arbitration procedure. This case was initiated by a
charge filed on August 17, 1983 (G.C. Exh. 1A), which named only the
Portsmouth Naval Shipyard and alleged violations of Section 16(a)(1),
(5), (7) and (8) of the Statute; and a First Amended Charge filed on
February 6, 1984 (G.C. Exh. 1C), which named for the first time the
United States Navy as a party, as well as the Portsmouth Naval Shipyard,
and alleged violations of Section 16(a)(1) and (2) of the Statute. The
Complaint and Notice of Hearing issued on February 13, 1984 (G.C. Exh.
1E), and fixed the date of hearing for April 6, 1984; and, pursuant
thereto, a hearing was duly held on April 6, 1984, in Portsmouth, New
Hampshire, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved and presented oral argument. At the close of the hearing, May
31, 1984, was fixed as the date for mailing post-hearing briefs which
time was subsequently extended, upon timely motion of Respondent, for
good cause shown, as to which General Counsel did not object, to June
22, 1984. Respondent and General Counsel each timely mailed an
excellent brief, received on or before June 25, 1984, which have been
carefully considered. Upon the basis of the entire record, /11/ I make
the following findings and conclusions:
Findings
There is no dispute as to the facts which were presented wholly by
exhibits and by stipulation.
1. On April 29, 1983, Mr. Richard C. Russell, an engineering
technician employed by the Portsmouth Naval Shipyard in the bargaining
unit represented by the International Federation of Professional and
Technical Engineers, Local 4, AFL-CIO-CLC (hereinafter referred to as
"Local 4"), received a "Notice of Rating on Competitive Promotion
Examination" (dated April 28, 1983) for the position of Education
Specialist as follows:
"Ineligible . . .
"Your application does not show that you meet the minimum
experience requirements." (Jt. Exh. F).
The position for which Mr. Russell had applied, Education Specialist,
(Announcement No. 83-31-18), was outside the bargaining unit represented
by Local 4 and was in a separate and distinct bargaining unit
represented by another union. /12/
2. On May 9, 1983, Mr. Russell filed a grievance. (Jt. Exh. G),
pursuant to Article 7, Section 11 of the parties' current agreement (Jt.
Exh. E). In response to the printed statement, "The following states
the specific reason(s) why I feel my rating is incorrect," Mr. Russell
stated:
"My education, training, and related experience were not
correctly evaluated." (Jt. Exh. G).
Under, "The following relief is desired," Mr. Russell stated:
1. Reevaluate my application, giving proper consideration to
my education, training, and related experience.
2. If my rating is less than "HIGHLY QUALIFIED," furnish
specific reasons, in writing, identifying the area(s) where I fail
to qualify." (Jt. Exh. G).
3. On May 13, 1983, Mr. Russell's grievance, under the negotiated
grievance procedure, was rejected by the Shipyard for the reasons that,
"1. . . . the position you applied for is not subject to the
provisions of reference (a) (Agreement between the International
Federation of Professional and Technical Engineers and the
Portsmouth Naval Shipyard -- Jt. Exh. E). Therefore, enclosure
(1) (earned rating grievance) is rejected and returned without
action." (Jt. Exh. H).
4. On May 20, 1983, Mr. Russell, in view of the Shipyard's rejection
of his grievance under the negotiated grievance procedure, filed a
grievance (Jt. Exh. I) under the Shipyard's administrative grievance
procedure (NAVSHIPYD PTSMH INST 12770.1H (Jt. Exh. D)). On May 25,
1983, the Shipyard rejected this grievance for the reason:
" . . . that paragraph 7, of reference (a) (NAVSHIPYD PTSMH
INST 12770.1H) /13/ specifically states that employees having
access to negotiated grievance procedures are not covered by this
instruction. /14/ Your grievance is, therefore, rejected and
returned without no further action." (Jt. Exh. J).
5. On May 31, 1983, Mr. Russell requested an extension of any time
limits applicable either to an administrative grievance or to a
grievance under the negotiated agreement pending advice from Mr. Joseph
R. Evans, Head, Employee Relations Division (Jt. Exh. K) which was
granted (Jt. Exh. M). Also on May 31, 1983, Mr. Russell requested Mr.
Evans to advise him of the appropriate procedure by which he, "a member
of the IFPTE bargaining unit, may submit an appeal or grievance,
relating to a promotion action to a non-unit position . . . so that the
appeal or grievance will be accepted and resolved." (Jt. Exh. L; Stip.
Tr. 61-62). By letter dated June 9, 1983 (Jt. Exh. N), Mr. Evans
responded that there " . . . is no formal procedure available to you for
appealing or grieving this promotion action . . . . " (Jt. Exh. N;
Stip. Tr. 62).
6. By letter dated June 17, 1983, Mr. Russell advised Mr. Kautz that
he was referring this matter to the Federal Labor Relations Authority
as, he asserted, that Mr. Evans' " . . . decision (that there is no
formal procedure available to you for appealing or grieving this
promotion action) violates federal law . . . . " (Jt. Exh. O). In
addition, Mr. Russell requested a further extension of the applicable
time limit pending final adjudication of this issue which was granted by
letter dated June 22, 1983, (Jt. Exh. P) (" . . . ten days following a
decision by the FLRA to continue processing your grievance.") (Jt. Exh.
P)).
7. Article 7 of the parties' current agreement (Jt. Exh. E), is the
negotiated grievance procedure. Section 1 provides, in part, as
follows:
"Section 1. This Article provides the exclusive procedure for
the settlement of employee, Employer and Union grievances. A
grievance means any complaint:
"a. By any employee concerning any matter relating to the
employment of the employee;
. . . . " (Jt. Exh. E, Art. 7, Sec. 1a)
"Section 2. Only the following types of actions are
specifically excluded from the provisions of Articles 7 and 9
(Arbitration) . . .
. . .
"d. Any examination, certification, or appointment;
. . . . " (Jt. Exh. E, Art. 7, Sec. 2d)
"Section 11. Earned Rating Grievances.
. . .
"d. Should the decision of Code 170 be unsatisfactory to the
employee, the matter may be taken to arbitration if so elected by
the Union." (Jt. Exh. E, Art. 7, Sec. 11d)
Nothing contained in Article 7 purports to exclude Mr. Russell's
grievance; however, Article 23, entitled "MERIT PROMOTION AND PLACEMENT
PROGRAM," which, in part, provides in Section 1 that, "The provisions of
this Article apply only to the filling of unit positions by unit
employees . . . . " (Emphasis supplied), in Section 17 provides as
follows:
"Section 17. An employee dissatisfied with an earned rating in
connection with his/her application for promotion to a unit
position may grieve in accordance with the provisions of Article
7, Section 11 of the Agreement." (Jt. Exh. E, Art. 23, Sec. 17)
(Emphasis supplied).
Mr. Evans, in his letter dated June 9, 1983 (Jt. Exh. N), made it
clear that he relied upon the provision of Article 23, Section 17 for
his conclusion that, " . . . you are barred from utilizing the
negotiated grievance procedure to resolve your displeasure with the
promotion action of an American Federation of Government Employees
(AFGE) unit position." (Jt. Exh. N). Mr. Evans further stated that,
"Access to the Department of the Navy (Administrative) Grievance
Procedure " . . . is disallowed by controlling Department of the Navy
regulation, Civilian Personnel Instruction (CP1) 771 . . . Based upon
this regulation, you, as a member of the IFPTE bargaining unit, are
precluded from utilizing the Navy (Administrative) Grievance Procedure
because (1) IFPTE has been accorded exclusive recognition, and (2) a
negotiated contract is currently in effect." (Jt. Exh. N).
8. Although the parties stipulated that,
" . . . the Union has concurred with the shipyard's position
that the grievance procedure in the current collective bargaining
agreement is as asserted by the shipyard not applicable" (Tr. 61),
such "stipulation" is not a stipulation of fact, which would be binding
on the undersigned, but, rather, is a conclusion of law, which is not
binding on the undersigned. Indeed, General Counsel stated at the
hearing, " . . . I think . . . that an argument could be made . . . that
this particular grievance may have been arbitrable under the contract"
(Tr. 12) and, "I can make an eloquent argument, I'm sure, why it should
be grievable under their contract . . . . " (Tr. 22); more important,
Respondent's Brief states that, " . . . it is Respondent Department of
the Navy's position that this matter could have been raised under the
negotiated procedure . . . . " (Respondent's Brief, p. 26, n. 41)
(Emphasis supplied).
Conclusions
It is not contended, nor may it be, that denial of access to an
agency's administrative grievance procedure for a matter subject to a
negotiated grievance procedure constitutes an unfair labor practice, for
that is plainly what the Statute mandates (" . . . the procedures (i.e.,
the negotiated procedures) shall be the exclusive procedures for
resolving grievances which fall within its coverage" Section 21(a)(1))
and what the agreement of the parties provides ("This Article provides
the exclusive procedure for the settlement of . . . grievances" (Jt.
Exh. E, Art. 7, Sec. 1)). All other considerations aside, the
threshold, and controlling, issue is whether the grievance, from which
this case arises, was subject to the parties negotiated grievance
procedure. Questions of arbitrability are, pursuant to Section 21(a)(1)
of the Statute, and Article 9, Section 3 of the parties' agreement (Jt.
Exh. E), to be determined by an arbitrator; but it is both necessary
and proper to determine herein whether the record clearly shows /15/
that Mr. Russell's grievance was not subject to the parties' negotiated
grievance procedure. Respondent Shipyard determined that it was not and
Local 4 concurred (Stip., Tr. 61); but no arbitrator has so determined
and, for reasons set forth hereinafter, I conclude that the record fails
to show clearly that Mr. Russell's grievance was not subject to the
negotiated grievance procedure.
First, the Shipyard appears to have given scant attention to the
grievance itself. To the contrary, Mr. Evans, in his response of June
9, 1983 (Jt. Exh. N), characterized Mr. Russell's grievance as " . . .
displeasure with the promotion action . . . . ", whereas Mr. Russell's
grievance, while it related, certainly, to a position outside the
bargaining unit, did not reach "promotion action," i.e., selection or
non-selection; but rather it was the rating itself which the grievance
asserted was incorrect for the reasons that,
"My education, training, and related experience were not
correctly evaluated" (Jt. Exh. G)
and the relief, and only relief, requested was:
"1. Reevaluate my application . . .
"2. If my rating is less than "HIGHLY QUALIFIED", furnish
specific reasons, in writing, identifying the area(s) where I fail
to qualify." (Jt. Exh. G).
Had Mr. Russell's grievance been resolved on its merits and had he
prevailed, /16/ he would, simply, have been rated "Highly Qualified" on
the Notice of Rating on Competitive Promotion Examination.
Second, Article 7, together with Article 9 (Arbitration), sets forth
a wholly complete grievance procedure. While Section 2d of Article 7
excludes, "Any examination, certification, or appointment" it has not
been asserted by Respondent Shipyard that the "Notice of Rating on
Competitive Promotion Examination" issued to Mr. Russell falls within
this exemption. Quite to the contrary, the Shipyard treated this as "an
earned rating," albeit under Article 23, Section 17; And if it were "an
earned rating" under Article 23, Section 17, it seems inescapable that
it was equally "an earned rating" under Section 11 of Article 7.
Article 7, Section 11, provides, in part, that:
"a. If an employee is dissatisfied with an earned rating, such
dissatisfaction must be made verbally known . . . . " (Jt. Exh. E,
Art. 7, Sec. 11a).
and if the dissatisfaction is not resolved to the satisfaction of the
employee, " . . . the matter may be taken to arbitration if so elected
by the Union" (Jt. Exh. E, Art. 7, Sec. 11d). Mr. Russell, a member of
Local 4's bargaining unit, as a member of the bargaining unit received a
rating with which he was dissatisfied. The fact that the job, for which
the rating was sought and given, was outside the bargaining unit does
not alter the fact that a bargaining unit member received a rating which
he asserted was not correct and which he sought to have corrected
pursuant to Article 7, Section 11 of the parties agreement. Cf.
Veterans Administration Hospital, Lexington, Kentucky, 2 FLRA No. 110, 2
FLRA 878 (1980).
Third, Article 23 is entitled "MERIT PROMOTION AND PLACEMENT PROGRAM"
and in Section 1 provided, in part, that
"The provision of this Article apply only to the filling of
unit positions by unit employees . . . . " (Jt. Exh. E, Art. 23,
Sec. 1) (Emphasis supplied).
Section 17 of Article 23, provides that:
"An employee dissatisfied with an earned rating in connection
with his/her application for promotion to a unit position may
grieve in accordance with the provisions of Article 7, Section 11
of the AGREEMENT." (Jt. Exh. E, Art. 23, Sec. 17) (Emphasis
supplied).
By its language, Section 17, supra, does not purport to qualify,
limit, or modify Article 7, Section 11; but, rather, provides that an
earned rating for promotion to a unit position may be grieved pursuant
to Article 7, Section 11.
What does Article 7, Section 11, itself, encompass? Is the coverage
of Article 7, Section 11 modified or limited by Article 23, Section 17?
Was Mr. Russell's grievance, to correct a rating, cognizable under
Article 7? However stated, the question of arbitrability must be
resolved by an Arbitrator. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80, 11 FLRA 456 (1983).
The Shipyard may be entirely correct; but it may be wrong. Indeed, as
noted above, Respondent Department of the Navy's position is " . . .
that this matter could have been raised under the negotiated procedure."
It would be improper for me to resolve the question of arbitrability,
Department of the Navy, Portsmouth Naval Shipyard, supra, and I
expressly decline to do so.
Does the Union's concurrence with the Shipyard's position that Mr.
Russell's grievance was not subject to the negotiated grievance
procedure effectively bypass, or negate, the determination of
arbitrability as a necessary predicate for the unfair labor practice
allegation? Section 3 of Article 9 of the parties' agreement provides,
in part, that
"Questions that cannot be resolved by the Employer and the
Union as to whether or not a grievance is subject to arbitration
under this AGREEMENT shall be referred to an arbitrator for
decision . . . . " (Jt. Exh. E, Art. 9, Sec. 3).
It is true that the parties purport to have resolved that Mr.
Russell's grievance is not subject to arbitration under their Agreement;
/17/ but it is clear that Local 4 "concurred" with the Shipyard's
position only for the purpose of this proceeding and, indeed, made no
final resolution that the grievance was not subject to arbitration under
the negotiated agreement but, to the contrary, preserved the right to
proceed under the negotiated procedure. The parties made no agreement
which would have excluded all such disputes from the negotiated
procedure. /18/ Nor may the parties confer jurisdiction by agreement.
National Treasury Employees Union, Chapter 208, 4 FLRA No. 31, 4 FLRA
215, 216 (1980) (there the Agency denied a grievance as non-grievable
because it was specifically excluded by Section 21(c)(2) of the Statute;
subsequently, the Agency advised the Union that the matter was
non-grievable because it was non-negotiable and, pursuant to the
parties' agreement, the Union's recourse was to the Authority; the
Union then filed a negotiability appeal to the Authority; and the
petition was dismissed).
Where the unfair labor practice alleged is bottomed on differing and
arguable interpretations of a collective bargaining agreement, here,
specifically, as to whether Mr. Russell's grievance to correct an earned
rating was subject to the negotiated grievance procedure, it has long
been recognized that the remedy lies within the grievance machinery of
the negotiated agreement, rather than through the unfair labor practice
procedures. General Services Administration, Region 5, Public Buildings
Services, Chicago Field Office, A/SLMR No. 528, 5 A/SLMR 424 (1975);
Federal Aviation Administration, Muskegon Air Traffic Control Tower,
A/SLMR No. 534, 5 A/SLMR 457 (1975); Department of Army, Watervliet
Arsenal, Watervliet, New York, A/SLMR No. 624, 6 A/SLMR 127 (1976);
Aerospace Guidance and Metrology Center, Newark Air Force Station,
Newark, Ohio, A/SLMR No. 677, 6 A/SLMR 361 (1976); Division of Military
and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8
FLRA 307, 322 (1982); Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80, 11 FLRA 456 (1983);
Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA
No. 90, 11 FLRA 516 (1983); Department of Defense, Department of the
Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA
No. 41, 13 FLRA 239 (1983). For this reason alone, I recommend that the
Complaint herein be dismissed.
Should the Authority determine, contrary to my conclusion, that Local
4's concurrence with the Shipyard's position that Mr. Russell's
grievance was not subject to the negotiated grievance procedure negates
determination of arbitrability as a necessary predicate to the unfair
labor practice allegation, or should an arbitrator determine that Mr.
Russell's grievance is not subject to the negotiated grievance
procedure, I nevertheless conclude that Respondent's denial of access to
its administrative grievance procedure does not constitute an unfair
labor practice in violation of Section 16(a)(1) or (2) of the Statute.
Section 21 of the Statute provides, in part, as follows:
"(a)(1) Except as provided in paragraph (2) of this subsection,
any collective bargaining agreement shall provide procedures for
the settlement of grievances, including questions of
arbitrability. Except as provided in subsections (d) and (e) of
this section (1(d) relates to prohibited personnel practices under
Section 2302(b)(1); and (e) relates to matters covered under
Sections 4303 and 7512), the procedures shall be the exclusive
procedures for resolving grievances which fall within its
coverage.
"(2) Any collective bargaining agreement may exclude any matter
from the application of the grievance procedures which are
provided for in the agreement." (5 U.S.C. Section 7121(a)(1) and
(2)) (Emphasis supplied).
The Conference Report accompanying the final version of the bill
which was subsequently enacted and signed into law stated with regard to
Section 21(a) as follows:
"A. EXCLUSIVITY OF GRIEVANCE PROCEDURE
"Senate section 7221(a) provides that, except for certain
specified exceptions, an employee covered by a collective
bargaining agreement must follow the negotiated grievance
procedures rather than the agency procedures available to other
employees not covered by an agreement. House section 7121(a) does
not limit the employee to the negotiated procedures in the case of
any type of grievance.
"The House recedes.
. . .
"C. SCOPE OF GRIEVANCE PROCEDURES
"The Senate provides that the coverage and scope of the
grievance procedures shall be negotiated by the parties (section
7221(a)). House section 7121(a) does not authorize the parties to
negotiate over the coverage and scope of the grievances that fall
within the bill's provisions but prescribes those matters which
would have to be submitted, as a matter of law, to the grievance
procedures. The Conference report follows the House approach with
an amendment. All matters that under the provisions of law could
be submitted to the grievance procedure shall in fact be within
the scope of any grievance procedure negotiated by the parties
unless the parties agree as part of the collective bargaining
process that certain matters shall not be covered by the grievance
procedures." (Emphasis supplied). Legislative History of the
Federal Service Labor-Management Relations Statute, Title VII of
the Civil Service Reform Act of 1978, 96th Cong. 1st Sess.,
Subcommittee on Postal Personnel and Modernization of the
Committee on Post Office and Civil Service, H.R. Committee Print
No. 96-7 at p. 825 (hereinafter, referred to as "Legislative
History," followed by the page number of the bound legislative
history). (Conference Report, H.R. Report No. 95-1717, 95th
Cong., 2nd Sess.). /19/
See also, American Federation of Government Employees, AFL-CIO, Local
2782, 6 FLRA No. 56, 6 FLRA 314, 322 (1981).
In National Federation of Federal Employees, Local 15, 9 FLRA No. 56,
9 FLRA 478 (1982), the Authority stated,
" . . . While the Army's regulations may limit the scope of the
Agency's grievance procedures, such regulations may not be applied
in a manner inconsistent with the broad scope negotiated grievance
procedures allowed under section 7121 of the Statute. Under
section 7121 a negotiated grievance procedure extends to all
matters which under the provisions of law could be covered unless
the parties agree through collective bargaining to a procedure
having a narrower coverage . . . . " (9 FLRA at 479).
The scope of administrative grievance procedures is subject to
government-wide regulation emanating from the Office of Personnel
Management. 5 C.F.R. Section 771.204 provides as follows:
"Section 771.204 Employee coverage.
"(a) Required coverage. Except as provided in Section
771.206(b), this part shall cover all non-bargaining unit
employees of the agency.
"(b) Discretionary coverage. An agency may extend the coverage
of this part to bargaining unit employees consistent with the
provisions of 5 U.S.C. 7121, or to applicants for employment with
the agency." (Jt. Exh. B. See, also, the wholly like provision of
the Federal Personnel Manual, Chapter 771, Agency Administrative
Grievance System, Section 2-5 a and b (Jt. Exh. A)) (Emphasis
supplied). /20/
Department of the Navy Regulation, CP1 771 (OPNAVNOTE 12771 (Jt. Exh.
C) provides, in part as follows:
"III. Employee Coverage.
"This regulation applies to all DON employees except for:
. . .
"(5) A bargaining unit employee covered by a negotiated
contract.
. . . . " (Jt. Exh. C).
OPM's government-wide regulations require that agency grievance
procedures cover all non-bargaining unit employees; /21/ but OPM's
Regulations do not require that an agency's administrative grievance
procedure cover bargaining unit employees. To the contrary, 5 C.F.R.
Section 771.204(b) specifically provides that it is discretionary
whether an agency extend coverage of its administrative grievance
procedure to bargaining unit employees. Thus, the Regulation states,
"(b) Discretionary coverage. An agency may extend the coverage
. . . to bargaining unit employees consistent with the provisions
of 5 U.S.C. 7121 . . . . " (5 U.S.C. Section 771.204(b)).
The Federal Personnel Manual sets forth precisely the same coverage
and by way of guidance states that,
"(1) This means that the agency has the option to extend
coverage for bargaining unit employees under the administrative
procedure on those matters that are mutually excluded from
negotiated grievance procedures . . . . "
The government-wide regulation is controlling and is lawful; and it
grants absolute discretion to each agency to extend, or not to extend,
coverage of its administrative grievance procedure to bargaining unit
employees covered by a collective bargaining agreement. The Department
of the Navy's exercise of the discretion granted, to exclude bargaining
unit employees covered by a negotiated contract, was neither
discriminatory, in violation of Section 16(a)(2) of the Statute, nor did
it interfere with, restrain, or coerce any employee in the exercise by
the employee of any right assured by Section 2, in violation of Section
16(a)(1) of the Statute.
Congress intended that,
" . . . All matters that under the provisions of law could be
submitted to the grievance procedure shall in fact be within the
scope of any grievance procedure negotiated by the parties . . . .
" (Legislative history, p. 825).
Unless, as it provided in Section 21(a)(2), " . . . the parties agree
as part of the collective bargaining process that certain matters shall
not be covered by the grievance procedures" (Legislative history, p.
825). Nevertheless, it was the intent of Congress, as it provided in
Section 21(a), that,
" . . . an employee covered by a collective bargaining
agreement must follow the negotiated grievance procedures rather
than the agency procedures available to other employees not
covered by an agreement . . . . " (Legislative history, p. 825).
Where unions have sought to limit exclusivity by broadening the
option to select a statutory appeals procedure the Authority has held
such proposals not within the duty to bargain. Thus, in American
Federation of Government Employees, AFL-CIO, Local 2955, 5 FLRA No. 86,
5 FLRA 617 (1981), the Authority held,
" . . . we find, in agreement with the Agency, that the
disputed provision purports to grant to bargaining unit employees
the option to choose either the negotiated grievance procedure or
a statutory procedure with respect to 'any matter' covered by the
grievance procedure. This is clearly inconsistent with section
7121(a)(1) of the Statute which permits such option only in very
limited circumstances: that is, where the grievance falls within
the coverage of either section 7121(d) or (e) of the Statute. In
all other situations, notwithstanding the possible existence of an
otherwise applicable statutory procedure, the negotiated procedure
must be the exclusive procedure for resolving grievances which
fall within its coverage." (5 FLRA at 620).
To like effect, see, also: American Federation of Government
Employees, AFL-CIO, Local 2904, 7 FLRA No. 28, 7 FLRA 188 (1981).
As "all matters that under the provisions of law could be submitted
to the grievance procedure shall in fact be within the scope of any
grievance procedure negotiated by the parties" (Legislative history, p.
825) and as "the negotiated procedure must be the exclusive procedure
for resolving grievances which fall within its coverage" (AFGE, Local
2955, supra), it may well be that there is not even a duty to bargain as
to extension of agency grievance procedures to matters excluded from the
negotiated procedures pursuant to Section 21(a)(2) of the Statute; but
whether there is, or is not, a duty to bargain is not an issue before me
and I express no opinion in that regard. Clearly, pursuant to OPM's
government-wide Regulation, Respondent Department of the Navy in its
discretion could have elected to extend its administrative grievance
procedure to matters other than those provided in Section 21(d) or (e)
of the Statute, but it chose not to do so. Respondent did not violate
either Section 16(a)(1) or (2) of the Statute by excluding "A bargaining
unit employee, covered by a negotiated contract" (Jt. Exh. C) as
Congress plainly stated that, " . . . an employee covered by a
collective bargaining agreement must follow the negotiated grievance
procedures rather than the agency procedures available to other
employees not covered by an agreement . . . . " (Legislative history, p.
825).
Congress envisioned a dual procedure. A negotiated grievance
procedure for employees represented and covered by collective bargaining
agreements; and an agency grievance procedure for employees not covered
by a collective bargaining agreement. If, pursuant to Section 21(a)(2),
any matter is excluded from application of the negotiated grievance
procedure by agreement, presumptively the parties intend that such
matter be excluded as a grievable or arbitrable matter. cf., Textile
Worker's Union of America v. Lincoln Mills, 353 U.S. 448 (1957); United
Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960);
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363
U.S. 574 (1960); and United Steelworkers of America v. Enterprise Wheel
and Car Corp., 363 U.S. 593 (1960). /22/ Congressman Ford in his
post-enactment remarks, stated, in part, as follows:
"The labor organization is required to meet a duty of fair
representation for all employees . . . The costs involved in the
procedure, which may well involve arbitration, are high. Although
the basic House approach of stating in the statute the scope of
the procedure was followed, the conferees also adopted a provision
aimed solely at allowing the exclusive representative, at its
option, to propose and agree to a reduced coverage for the
negotiated grievance procedure -- perhaps for financial reasons .
. . . " (Legislative history, pp. 997-998).
Nothing in the Statute requires that any matter excluded from a
negotiated grievance procedure pursuant to Section 21(a)(2) must be
subject to an agency's administrative grievance procedure; OPM's
government-wide regulation grants each agency absolute discretion as to
whether its administrative grievance procedure will be extended to
bargaining unit employees covered by a collective bargaining agreement;
and Respondent's lawful exercise of the discretion accorded, by 5 C.F.R.
Section 771.204(b), to exclude bargaining unit employees covered by a
negotiated contract did not violate Section 16(a)(1) or (2) of the
Statute.
In point of fact, this case does not involve a matter that would, in
any event, have been subject to the administrative grievance procedure
because it involved a procedure available to employees not covered by an
agreement; but, quite to the contrary, relates to a job opportunity in
a bargaining unit other than the Local 4's covered by a collective
bargaining agreement. Local 4 very correctly perceived the
desirability, if not the necessity, of seeking a solution through
coordinated negotiations with the other unions and the Shipyard.
In view of my conclusions, it is unnecessary to reach other issues
raised, including the assertions that the charge was not timely filed
against Respondent (Respondent's Brief, p. 12) or that the instant
matter is barred by Section 16(d) of the Statute (Respondent's Brief, p.
15), and I express no opinion whatever with respect thereto.
Having found that Respondents did not violate either Section 16(a)(1)
or 16(a)(2) of the Statute by denying a bargaining unit employee covered
by a collective bargaining agreement access to its administrative
grievance procedure, it is recommended that the Authority adopt the
following:
ORDER
The Complaint in Case No. 1-CA-30290 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: February 25, 1985
Washington, D.C.
FOOTNOTES
(1) Respondents conceded during the hearing that the employee's
grievance fell within the scope of the Agency grievance procedure.
Transcript at 18, lines 4-16.
(2) 5 C.F.R. Section 771.204(b) provides, in pertinent part:
. . . . . . .
(b) Discretionary coverage. An agency may extend the coverage
of this part to bargaining unit employees consistent with the
provisions of 5 U.S.C. 7121, or to applicants for employment with
the agency.
(3) The General Counsel moved to strike from Respondents' brief any
portion which contested either the findings of fact by the Judge or the
parties' stipulations of fact. Thereafter, the Respondents filed an
opposition to the General Counsel's Motion to Strike. Since the
Authority will consider only those facts properly before it and will not
permit a party to unilaterally withdraw from a stipulation, it is
unnecessary to pass on the General Counsel's Motion to Strike.
(4) The Judge did not reach Respondents' jurisdictional arguments but
recommended dismissal of the case on substantive grounds. The Judge
should have addressed the jurisdictional issues raised before him. By
so doing, the Judge would have provided a better record for Authority
review and would avoid a possibility that the Authority would be
required to remand the case for additional findings.
(5) Section 7116(d) of the Statute provides, in pertinent part:
Section 7116. Unfair labor practices