15 FLRA 104; FLRA 1-CA-838; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasse Procedures and Decisions
DIGEST NOTES
The Authority held that the agency did not violate Sec. 7116(a)(1),
(5), (6) and (8) of the Statute when it failed to adopt language in its
collective bargaining agreement specified in a final decision and order
of the Federal Service Impasses Panel. Since the prescribed language
would permit the technicians the option of wearing either a military
uniform or agreed-upon civilian attire when performing civilian
technician duties, it interfered with management's right under Sec.
7106(b)(1) of the Statute to determine the "means" of performing work.
NATIONAL GUARD BUREAU,
MAINE AIR NATIONAL GUARD
(AUGUSTA, MAINE)
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3013, AFL-CIO
Case No. 1-CA-838
10 FLRA 583
This proceeding is before the Authority upon remand by the U.S. Court
of Appeals for the First Circuit. This case was before the court on
petition for review of a Decision and Order of the Authority /1/ in
which the Respondent had been found to have violated section 7116(a)(1)
and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) by its refusal to cooperate in a final decision and order of
the Federal Service Impasses Panel (the Panel) /2/ which involved the
attire to be worn by National Guard technicians when performing civilian
technician duties. Inasmuch as the circumstances involved in this case
are similar in all relevant and material respects to those in Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA 158 (1982), remanded sub nom. State of New York v. FLRA, 696 F.2d
202 (2nd Cir. 1982), the Authority upon remand of State of New York
requested, and the court ordered, remand of the instant case. Pursuant
to the Court's remand, the Authority issued a "Notice of Reopened
Proceedings and Request for Statements of Position" with respect to the
issue of whether the attire which National Guard technicians wear while
engaged in their daily duties as civilian technicians is a matter which
is negotiable only at the election of the agency pursuant to section
7106(b)(1) of the Statute.
Upon careful consideration of the entire record, including the
parties' contentions, /3/ the Authority makes the following
determinations. /4/
The Authority finds that the facts and positions of the parties
involved herein are substantially similar to those set forth in the
Authority's Decision and Order Upon Remand issued in Division of
Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
No. 65 (1984), wherein the Authority found that the determination by the
National Guard Bureau that technicians must wear the military uniform
while performing technician duties constitutes management's choice of a
"methods, and means of performing work" within the meaning of section
7106(b)(1) of the Statute. For the reasons expressed in State of New
York the Authority finds that the failure of the Respondent to cooperate
in the final decision and order of the Federal Service Impasses Panel
did not constitute a violation of section 7116(a)(1) and (6) of the
Statute.
IT IS ORDERED that the complaint in Case No. 1-CA-838 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ National Guard Bureau, Maine Air National Guard (Augusta, Maine),
10 FLRA 583 (1982).
/2/ Maine Air National Guard, Bangor, Maine, and Local 3013, American
Federation of Government Employees, AFL-CIO, Case No. 80 FSIP 52(a)
(1981).
/3/ The National Guard Bureau, on behalf of the Respondent, filed a
response which included affidavits from the Adjutants General of several
states and the Charging Party filed its statement of position. The
General Counsel of the Authority filed a consolidated statement of
position in this case.
/4/ The General Counsel and the Charging Party filed motions to
strike affidavits from the Adjutants General of several states which, as
indicated above, were submitted by the National Guard Bureau on behalf
of the Respondent, as well as all references thereto and arguments which
address matters other than the relationship between technician attire
and section 7106(b)(1) of the Statute contained in the National Guard
Bureau's statement of position. In view of the limited scope of the
court's remand, as reflected in the Authority's ensuing request for
statements of position, only those statements, arguments and reasons
which relate to section 7106(b)(1) of the Statute have been considered
herein, including those set forth in the affidavits submitted.
Accordingly, the motions are granted to that extent.
The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue, as set forth in the Authority's Notice
of Reopened Proceedings and Request for Statements of Position. For the
same reason, the Charging Party's request that oral argument be
conducted in this matter is denied.
/5/ This Order shall supersede our earlier Order in this matter.
15 FLRA 103; FLRA 2-CA-182; August 9, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasses Procedures and Decisions
DIGEST NOTES
The determination that civilian technicians must wear military
uniforms while performing technician duties is a matter which is
negotiable only at the election of the agency under Sec. 7106(b)(1).
Accordingly, the agency did not violate Sec. 7116(a)(1) and (6) when it
failed to cooperate in a final FSIP decision and order which provided
technicians with the option of wearing either the military uniform or an
agreed-upon standard civilian attire.
PUERTO RICO AIR NATIONAL GUARD
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665
Case No. 2-CA-182
8 FLRA 480
This proceeding is before the Authority upon remand by the U.S. Court
of Appeals for the First Circuit. This case was before the court on
petition for review of a Decision and Order of the Authority /1/ in
which the Respondent had been found to have violated section 7116(a)(1)
and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) by its refusal to cooperate in a final decision and order of
the Federal Service Impasses Panel (the Panel) /2/ which involved the
attire to be worn by National Guard technicians when performing civilian
technician duties. Inasmuch as the circumstances involved in this case
are similar in all relevant and material respects to those in Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA 158, remanded sub nom. State of New York v. FLRA, 696 F.2d 202 (2d
Cir. 1982), the Authority upon remand of State of New York requested,
and the court ordered, remand of the instant case. Pursuant to the
court's remand, the Authority issued a "Notice of Reopened Proceedings
and Request for Statements of Position" with respect to the issue of
whether the attire which National Guard technicians wear while engaged
in their daily duties as civilian technicians is a matter which is
negotiable only at the election of the agency pursuant to section
7106(b)(1) of the Statute.
Upon careful consideration of the entire record, including the
parties' contentions, /3/ the Authority makes the following
determinations. /4/
The Authority finds that the facts and positions of the parties
involved herein are substantially similar to those set forth in the
Authority's Decision and Order Upon Remand issued in Division of
Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
No. 65 (1984), /5/ wherein the Authority found that the determination by
the National Guard Bureau that technicians must wear the military
uniform while performing technician duties constitutes management's
choice of "methods, and means of performing work" within the meaning of
section 7106(b)(1) of the Statute. For the reasons expressed in State
of New York the Authority finds that the failure of the Respondent to
cooperate in the final decision and order of the Panel did not
constitute a violation of section 7116(a)(1) and (6) of the Statute.
IT IS ORDERED that the complaint in Case No. 2-CA-182 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Puerto Rico Air National Guard and National Federation of Federal
Employees, Local 1665, 8 FLRA 480 (1982).
/2/ Puerto Rico Air National Guard, Santurce, Puerto Rico, and Local
1665, National Federation of Federal Employees. Case No. 78 FSIP 62
(1978).
/3/ The National Guard Bureau, on behalf of the Respondent, filed a
consolidated response which included affidavits from the Adjutant's
General of several states and the Charging Party filed its statement of
position. The General Counsel of the Authority also filed a
consolidated statement of position in this case.
/4/ The General Counsel filed a motion to strike affidavits from the
Adjutants General of several states which, as indicated above, were
submitted by the National Guard Bureau on behalf of the Respondent, as
well as all references thereto and arguments which address matters other
than the relationship between technician attire and section 7106(b)(1)
of the Statute contained in the National Guard Bureau's statement of
position. In view of the limited scope of the court's remand, as
reflected in the Authority's ensuing request for statements of
positions, only those statements, arguments and reasons which relate to
section 7106(b)(1) of the Statute have been considered herein, including
those set forth in the affidavits submitted. Accordingly, the motion is
granted to that extent.
The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue, as set forth in the Authority's Notice
of Reopened Proceedings and Request for Statements of Position.
/5/ In this regard, the National Guard Bureau's consolidated response
was filed on behalf of the Respondent in this case as well as, among
others, the respondent in State of New York. The General Counsel also
submitted a single statement of position with respect to this case, and,
among others, State of New York.
/6/ This Order shall supersede our earlier Order in this matter.
15 FLRA 102; FLRA 9-CA-44, 9-CA-95; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasse Procedures and Decisions
DIGEST NOTES
The Authority held that the agency did not violate Sec. 7116(a)(1),
(5), (6) and (8) of the Statute when it failed to adopt language in its
collective bargaining agreement specified in a final decision and order
of the Federal Service Impasses Panel. Since the prescribed language
would permit the technicians the option of wearing either a military
uniform or agreed-upon civilian attire when performing civilian
technician duties, it interfered with management's right under Sec.
7106(b)(1) of the Statute to determine the "means" of performing work.
STATE OF CALIFORNIA NATIONAL GUARD
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCALS R12-125, R12-132, R12-146, R12-150 and
R12-105
Case Nos. 9-CA-44, 9-CA-95
8 FLRA 54
This proceeding is before the Authority upon remand by the U.S. Court
of Appeals for the Ninth Circuit. This case was before the court on
petition for review of a Decision and Order of the Authority /1/ in
which the Respondent had been found to have violated section 7116(a)(1)
and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) by its refusal to cooperate in final decisions and orders of
the Federal Service Impasses Panel (the Panel) /2/ which involved the
attire to be worn by National Guard technicians when performing civilian
technician duties. Inasmuch as the circumstances involved in this case
are similar in all relevant and material respects to those in Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA 158 (1982), remanded sub nom. State of New York v. FLRA, 696 F.2d
202 (2nd Cir. 1982), the Authority upon remand of State of New York
requested, and the court ordered, remand of the instant case. Pursuant
to the court's remand, the Authority issued a "Notice of Reopened
Proceedings and Request for Statements of Position" with respect to the
issue of whether the attire which National Guard technicians wear while
engaged in their daily duties as civilian technicians is a matter which
is negotiable only at the election of the agency pursuant to section
7106(b)(1) of the Statute.
Upon careful consideration of the entire record, including the
parties' contentions, /3/ the Authority makes the following
determinations. /4/
The Authority finds that the facts and positions of the parties
involved herein are substantially similar to those set forth in the
Authority's Decision and Order Upon Remand issued in Division of
Military and Naval Affairs.State of New York, Albany, New York, 15 FLRA
No. 65 (1984), /5/ wherein the Authority found that the determination by
the National Guard Bureau that technicians must wear the military
uniform while performing technician duties constitutes management's
choice of a "methods, and means of performing work" within the meaning
of section 7106(b)(1) of the Statute. For the reasons expressed in
State of New York the Authority finds that the failure of the Respondent
to cooperate in the final decision and order of the Panel did not
constitute a violation of section 7116(a)(1) and (6) of the Statute.
IT IS ORDERED that the consolidated complaints in Case Nos. 9-CA-44
and 9-CA-95 be, and they hereby are, dismissed in their entirety.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ State of California National Guard, 8 FLRA 54 (1982).
/2/ California National Guard, Sacramento, California and Locals
R12-125, R12-132, R12-146 and R12-150, National Association of
Government Employees, Case Nos. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 and
78 FSIP 49 (1978); California National Guard, Fresno Air National Guard
Base, Fresno, California and Local R12-105, National Association of
Government Employees, Case No. 77 FSIP 70 (1979).
/3/ The National Guard Bureau, on behalf of the Respondent, filed a
consolidated response which included affidavits from the Adjutants
General of several states and the Charging Party filed its statement of
position. The General Counsel of the Authority also filed a
consolidated statement of position in this case.
/4/ The General Counsel filed a motion to strike affidavits from the
Adjutants General of several states which, as indicated above, were
submitted by the National Guard Bureau on behalf of the Respondent, as
well as all references thereto and arguments which address matters other
than the relationship between technician attire and section 7106(b)(1)
of the Statute contained in the National Guard Bureau's statement of
position. In view of the limited scope of the court's remand, as
reflected in the Authority's ensuing request for statements of
positions, only those statements, arguments and reasons which relate to
section 7106(b)(1) of the Statute have been considered herein, including
those set forth in the affidavits submitted. Accordingly, the motion is
granted to that extent.
The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue, as set forth in the Authority's Notice
of Reopened Proceedings and Request for Statements of Position.
/5/ In this regard, the National Guard Bureau's consolidated response
was filed on behalf of the Respondent in this case as well as, among
others, the respondent in State of New York. The General Counsel also
submitted a single statement of position with respect to this case, and,
among others, State of New York.
/6/ This Order shall supersede our earlier Order in this matter.
15 FLRA 101; FLRA 9-CA-49; August 9, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasses Procedures and Decisions
DIGEST NOTES
The determination that civilian technicians must wear military
uniforms while performing technician duties is a matter which is
negotiable only at the election of the agency under Sec. 7106(b)(1).
Accordingly, the agency did not violate Sec. 7116(a)(1) and (6) when it
failed to cooperate in a final FSIP decision and order which provided
technicians with the option of wearing either the military uniform or an
agreed-upon standard civilian attire.
STATE OF NEVADA NATIONAL GUARD
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-130 AND R12-145
Case No. 9-CA-49
7 FLRA 245
This proceeding is before the Authority upon remand by the U.S. Court
of Appeals for the Ninth Circuit. This case was before the court on
petition for review of a Decision and Order of the Authority /1/ in
which the Respondent had been found to have violated section 7116(a)(1)
and (6) of the Federal Service Labor-Management Relations Statute (the
Statute) by its refusal to cooperate in a final decision and order of
the Federal Service Impasses Panel (the Panel) /2/ which involved the
attire to be worn by National Guard technicians when performing civilian
technician duties. Inasmuch as the circumstances involved in this case
are similar in all relevant and material respects to those in Division
of Military and Naval Affairs, State of New York, Albany, New York, 8
FLRA 158 (1982), remanded sub nom. State of New York v. FLRA, 696 F.2d
202 (2nd Cir. 1982), the Authority upon remand of State of New York
requested, and the court ordered, remand of the instant case. Pursuant
to the court's remand, the Authority issued a "Notice of Reopened
Proceedings and Request for Statements of Position" with respect to the
issue of whether the attire which National Guard technicians wear while
engaged in their daily duties as civilian technicians is a matter which
is negotiable only at the election of the agency pursuant to section
7106(b)(1) of the Statute.
Upon careful consideration of the entire record, including the
parties' contentions, /3/ the Authority makes the following
determinations. /4/
The Authority finds that the facts and positions of the parties
involved herein are substantially similar to those set forth in the
Authority's Decision and Order Upon Remand issued in Division of
Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
No. 65 (1984), /5/ wherein the Authority found that the determination by
the National Guard Bureau that technicians must wear the military
uniform while performing technician duties constitutes management's
choice of a "methods, and means of performing work" within the meaning
of section 7106(b)(1) of the Statute. For the reasons expressed in
State of New York the Authority finds that the failure of the Respondent
to cooperate in the final decision and order of the Panel did not
constitute a violation of section 7116(a)(1) and (6) of the Statute.
IT IS ORDERED that the complaint in Case No. 9-CA-49 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ State of Nevada National Guard, 7 FLRA 245 (1981).
/2/ Nevada National Guard, Carson City, Nevada, and Locals R12-130
and R12-145, NAGE, 76 FSIP 68(a) (1979).
/3/ The National Guard Bureau, on behalf of the Respondent, filed a
consolidated response which included affidavits from the Adjutant's
General of several states and the Charging Party filed its statement of
position. The General Counsel of the Authority also filed a
consolidated statement of position in this case.
/4/ The General Counsel filed a motion to strike affidavits from the
Adjutants General of several states which, as indicated above, were
submitted by the National Guard Bureau on behalf of the Respondent, as
well as all references thereto and arguments which address matters other
than the relationship between technician attire and section 7106(b)(1)
of the Statute contained in the National Guard Bureau's statement of
position. In view of the limited scope of the court's remand, as
reflected in the Authority's ensuing request for statements of
positions, only those statements, arguments and reasons which relate to
section 7106(b)(1) of the Statute have been considered herein, including
those set forth in the affidavits submitted. Accordingly, the motion is
granted to that extent.
The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue, as set forth in the Authority's Notice
of Reopened Proceedings and Request for Statements of Position.
/5/ In this regard, the National Guard Bureau's consolidated response
was filed on behalf of the Respondent in this case as well as, among
others, the respondent in State of New York. The General Counsel also
submitted a single statement of position with respect to this case, and,
among others, State of New York.
/6/ This Order shall supersede our earlier Order in this matter.
15 FLRA 100; FLRA 9-CA-514; August 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasse Procedures and Decisions
DIGEST NOTES
The Authority held that the agency did not violate Sec. 7116(a)(1),
(5), (6) and (8) of the Statute when it failed to adopt language in its
collective bargaining agreement specified in a final decision and order
of the Federal Service Impasses Panel. Since the prescribed language
would permit the technicians the option of wearing either a military
uniform or agreed-upon civilian attire when performing civilian
technician duties, it interfered with management's right under Sec.
7106(b)(1) of the Statute to determine the "means" of performing work.
MILITARY DEPARTMENT,
STATE OF OREGON,
OREGON ARMY AND AIR
NATIONAL GUARD,
SALEM, OREGON
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2986, AFL-CIO
Case No. 9-CA-514
8 FLRA 541
This proceeding is before the Authority upon remand by the U.S. Court
of Appeals for the Ninth Circuit. This case was before the court on
petition for review of a Decision and Order of the Authority /1/ in
which the Respondent had been found to have violated section 7116(a)(1),
(5), (6) and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by its refusal to cooperate in final decisions and
orders of the Federal Service Impasses Panel (the Panel) /2/ which
involved the attire to be worn by National Guard technicians when
performing civilian technician duties. Inasmuch as the circumstances
involved in this case are similar in all relevant and material respects
to those in Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 158 (1982), remanded sub nom. State of New York
v. FLRA, 696 F.2d 202 (2nd Cir. 1982), the Authority upon remand of
State of New York requested, and the court ordered, remand of the
instant case. Pursuant to the court's remand, the Authority issued a
"Notice of Reopened Proceedings and Request for Statements of Position"
with respect to only the issue of whether the attire which National
Guard technicians wear while engaged in their daily duties as civilian
technicians is a matter which is negotiable only at the election of the
agency pursuant to section 7106(b)(1) of the Statute.
Upon careful consideration of the entire record, including the
parties' contentions, /3/ the Authority makes the following
determinations. /4/
The Authority finds that the facts and positions of the parties
involved herein are substantially similar to those set forth in the
Authority's Decision and Order Upon Remand issued in Division of
Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
No. 65 (1984), /5/ wherein the Authority found that the determination by
the National Guard Bureau that technicians must wear the military
uniform while performing technician duties constitutes management's
choice of a "methods, and means of performing work" within the meaning
of section 7106(b)(1) of the Statute. For the reasons expressed in
State of New York the Authority finds that the failure of the Respondent
to cooperate in the final decision and order of the Panel did not
constitute a violation of section 7116(a)(1), (5), (6) and (8) of the
Statute.
IT IS ORDERED that the complaint in Case No. 9-CA-514 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Military Department, State of Oregon, Oregon Army and Air
National Guard, Salem, Oregon, 8 FLRA 541 (1982).
/2/ Oregon Army/Air National Guard, Salem, Oregon, and Local 2986,
American Federation of Government Employees, AFL-CIO, Case No. 77 FSIP
53 (1978); and Oregon Army/Air National Guard, Salem, Oregon, and Local
2986, American Federation of Government Employees, AFL-CIO, Case No. 79
FSIP 4 (1979).
/3/ The National Guard Bureau, on behalf of the Respondent, filed a
consolidated response which included affidavits from the Adjutants
General of several states and the Charging Party filed its statement of
position. The General Counsel of the Authority also filed a
consolidated statement of position in this case.
/4/ The General Counsel and the Charging Party filed motions to
strike affidavits from the Adjutants General of several states which, as
indicated above, were submitted by the National Guard Bureau on behalf
of the Respondent, as well as all references thereto and arguments which
address matters other than the relationship between technician attire
and section 7106(b)(1) of the Statute contained in the National Guard
Bureau's statement of position. In view of the limited scope of the
court's remand, as reflected in the Authority's ensuing request for
statements of position, only those statements, arguments and reasons
which relate to section 7106(b)(1) of the Statute have been considered
herein, including those set forth in the affidavits submitted.
Accordingly, the motions are granted to that extent.
The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue, as set forth in the Authority's Notice
of Reopened Proceedings and Request for Statements of Position.
/5/ In this regard, the National Guard Bureau's consolidated response
was filed on behalf of the Respondent in this case as well as, among
others, the respondent in State of New York. The General Counsel also
submitted a single statement of position with respect to this case, and,
among others, State of New York.
/6/ This Order shall supersede our earlier Order in this matter.
15 FLRA 99; FLRA 4-CA-300; August 9, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4800. Otherwise Refuse to Comply with Statute
7500. OFFICIAL TIME
DIGEST NOTES
In accordance with the decision of the Supreme Court in Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 104 S.cT. 439 (1983), the
Authority dismissed the allegations in the complaint pertaining to the
agency's failure and refusal to reimburse its employees for their travel
and per diem expenses and vacated its prior order in that regard.
FLORIDA NATIONAL GUARD
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-91
Case No. 4-CA-300
5 FLRA 365
On March 20, 1981, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with section 7131(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1), (6), and (8) of the Statute when it failed and refused to
provide employee Ronald L. Meier official time in connection with
Federal Service Impasses Panel impasse proceedings held on August 22 and
23, 1979. In addition, the Authority found that the Respondent failed
and refused to comply with section 7131(a) of the Statute in violation
of section 7116(a)(1), (6), and (8) of the Statute when it failed and
refused to provide related travel and per diem expenses. Thereafter,
the Respondent petitioned the United States Court of Appeals for the
Eleventh Circuit for review of the Authority's Decision.
The Court granted Respondent's petition for review and denied the
Authority's cross-application for enforcement of the Authority's order
on March 7, 1983, Florida National Guard v. FLRA, 699 F.2d 1082 (11th
Cir.), cert. denied, 104 S.Ct. 524 (1983). In its decision, the
Eleventh Circuit concluded that the obligation of an agency under
section 7131(a) of the Statute to provide official time to an employee
representing an exclusive representative in the negotiation of a
collective bargaining agreement does not encompass the payment of travel
expenses and a per diem allowance.
Pursuant to the decision of the United States Court of Appeals for
the Eleventh Circuit, and in accord with the decision of the Supreme
Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439
(1983), the Authority dismisses the allegations of the complaint
pertaining to the Respondent's failure and refusal to reimburse its
employees for their travel and per diem expenses and hereby vacates its
prior Order in this regard. Accordingly, the Authority shall issue the
following Order and require that the accompanying Notice To All
Employees be posted in this matter.
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 Florida National Guard, Jacksonville,
Florida, shall:
1. Cease and desist from:
(a) Failing and refusing to provide Ronald Meier, or any Agency
employee, official time for time engaged in representing the National
Association of Government Employees, Local R5-91, the employees'
exclusive representative, during Union-Agency negotiations of a
collective bargaining agreement or attendance at an impasse proceeding,
equal to what an employee engaged in official Agency business would be
entitled.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representative Ronald Meier official time of 7 3/4
hours per day for the performance of his representational duties on
August 22 and 23, 1979, and adjust the annual leave charged to him for
both days accordingly.
(b) Post at all of its offices in Jacksonville, Florida where unit
employees are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt to
such forms, they shall be signed by the Adjutant General, or his
designee, 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
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, Region IV, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 4-CA-300 be, and
it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1), (6), and (8) of the Statute based on the failure and refusal
to reimburse employee Ronald L. Meier for his travel and per diem
expenses.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide to Ronald Meier, or any Agency
employee, official time for time engaged in representing the National
Association of Government Employees, Local R5-91, the employees'
exclusive representative, during Union-Agency negotiations of a
collective bargaining agreement or attendance at an impasse proceeding,
equal to what an employee engaged in official Agency business would be
entitled.
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 provide Union representative Ronald Meier official time of 7
3/4 hours per day for the performance of his representational duties on
August 22 and 23, 1979, and adjust the annual leave charged to him for
both days accordingly.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region IV, whose
address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta,
GA 30309, and whose telephone number is (404) 881-2324.
15 FLRA 98; FLRA O-NG-927; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2709. Contents of Petition: Requirements
DIGEST NOTES
As the union failed to comply with several procedural requirements
contained in the Authority's rules and regulations within the time limit
provided, the Authority dismissed the appeal.
ANTILLES CONSOLIDATED
EDUCATION ASSOCIATION
and
ANTILLES CONSOLIDATED
SCHOOL SYSTEM
Case No. O-NG-927
This matter is before the Authority on a petition for review of
negotiability issues filed by the Union pursuant to section 7117(c)(2)
of the Federal Service Labor-Management Relations Statute and section
2424.1 of the Authority's Rules and Regulations. For the reasons stated
below, it has been determined that the Union's petition for review must
be dismissed.
By Authority letter dated December 12, 1983, the Union was informed
that preliminary examination of the petition for review had disclosed a
number of apparent deficiencies in meeting certain requirements of the
Authority's rules of procedure. The Authority was informally advised by
the Union that it never received the Authority's December 12, 1983,
letter and the Authority was unable to ascertain whether it was, in
fact, delivered to the Union. Accordingly, by letter dated March 26,
1984, the Authority advised the Union that it must provide an explicit
statement of the meaning attributed to the disputed proposals and notify
the Authority as to whether the negotiability issues are also involved
in an unfair labor practice proceeding in order to comply with sections
2424.4(a)(2), 2424.4(a)(4) and 2424.5 of the Authority's Rules and
Regulations.
The Union was also advised in the Authority's letter that further
processing of the appeal was contingent upon compliance with the
designated provisions of the Authority's Regulations. In this regard,
the Union was informed of the specific actions that had to be taken to
comply and complete the appeal, and was afforded time in which to take
those actions. Finally, the Union was advised that failure to comply
with the cited requirements within the time limit provided could result
in dismissal of the appeal.
The Union has made no submission within the time limit provided.
Accordingly, the appeal is hereby dismissed for failure to comply
with the Authority's Regulations.
For the Authority.
Issued, Washington, D.C., August 9, 1984
Jan K. Bohren
Executive Director/Administrator
15 FLRA 97; FLRA O-NG-665; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2210. Mandatory Subject of Bargaining
DIGEST NOTES
A proposal is negotiable that would require management to stay a
reduction-in-force action pending the outcome of an appeal to the Merit
Systems Protection Board of a questionable or otherwise prohibited
personnel practice or action. The proposal would merely delay
management from acting but would not prevent the agency from acting at
all in exercising its management rights.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1900
and
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Case No. O-NG-665
This petition for review comes before the Federal Labor Relations
Authority pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises the question
of the negotiability of the following Union proposal: /1/
In the event an affected employee appeals a questionable or
otherwise prohibited personnel practice or action, management
agrees to stop RIF action until the employee has exercised the
right to appeal to the Merit Systems Protection Board and a
decision has been rendered by that Board.
Upon careful consideration of the entire record, including the
contentions of the parties, the Authority makes the following
determination. The proposal would require management to stay a
reduction-in-force (RIF) action pending the outcome of an appeal to the
Merit Systems Protection Board (MSPB) of a questionable or otherwise
prohibited personnel practice or action. Consequently, the proposal
would merely delay management from effectuating a reduction-in-force
until the Merit Systems Protection Board issues a decision. In National
Treasury Employees Union and Department of the Treasury, U.S. Customs
Service, 9 FLRA 629 (1982), reversed and remanded sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d
669 (D.C. Cir. 1983), decision on remand September 28, 1983, the
Authority determined on remand that Proposal 2, which would stay
execution of an adverse personnel action pending, inter alia, appeal to
the Merit Systems Protection Board, constitutes a negotiable procedure.
The Authority made this determination based on the reasoning in the
Court's Opinion and the Authority's decision in American Federation of
Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982), that a proposal which merely delayed but did
not prevent the agency from acting at all to exercise a specified
management right is within the duty to bargain. The proposal herein is
materially to the same effect as the proposal in the National Treasury
Employees Union case.
Accordingly, for the reasons stated in National Treasury Employees
Union, IT IS ORDERED that the Agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning the Union's proposal. /2/
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Authority hereby grants the Union's request to amend its
petition for review to reflect its proposal as amended since it was the
amended proposal to which the Agency addressed its statement of
position.
/2/ In deciding that the proposal is within the duty to bargain, the
Authority makes no judgment as to its merits.
15 FLRA 96; FLRA O-NG-539; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2011. Conditions of Employment
2210. Mandatory Subjects of Bargaining
2210.05 Appropriate Arrangements
DIGEST NOTES
A proposal which would require that bargaining on ground rules should
start "forthwith" is negotiable as ground rules constitute a necessary
step in "meeting at reasonable times and convenient places" as required
by Sec. 7114 of the Statute. Therefore, ground rules affect the
conditions of employment of bargaining unit employees and, consequently,
are within the agency's duty to bargain.
A proposal which seeks more union negotiators than the number
designated by management and which also seeks official time for the
additional negotiators is negotiable as Sec. 7131(a) of the Statute does
not limit the number of negotiators which as union can designate and
Sec. 7131(d) expressly provides for official time for "any employee
representing an exclusive representative" in "any amount" the parties
agree to be "reasonable, necessary, and in the public interest".
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
and
U.S. ENVIRONMENTAL PROTECTION AGENCY
Case No. O-NG-539
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
relating to the negotiability of two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
We (the union) demand that bargaining (on ground rules) begin
forthwith.
With respect to this proposal, the Agency argues that the obligation
to bargain is limited to conditions of employment affecting bargaining
unit employees, and that since ground rules do not fall within this
category, the bargaining obligation does not attach. However, in
agreement with the Union, the Authority concludes that ground rules do
affect conditions of employment of bargaining unit employees.
Consequently, they are within the Agency's obligation to bargain. /2/
In this regard, in Department of Defense Dependent Schools and Overseas
Education Association, 14 FLRA No. 40 (1984) where the Authority found
an obligation to bargain over ground rules, the Authority stated:
In performing their mutual obligation to bargain in good faith,
the parties ordinarily would need to make certain preliminary
arrangements such as the scheduling of the time, place, length and
agenda of the meetings. This is a necessary step in "meeting at
reasonable times and convenient places" as required by section
7114 of the Statute. The fact that some parties mutually agree to
set such preliminary arrangements apart and call them ground rules
negotiations does not separate them from the collective bargaining
process and the parties' mutual obligation to bargain in good
faith. (Footnote omitted.)
Further, in Department of Health and Human Services, Region VII,
Kansas City, Missouri and National Treasury Employees Union, 14 FLRA No.
46 (1984) the Authority found that the agency therein had failed to meet
its obligation to bargain in good faith when it refused the union's
request to execute a written memorial of previously agreed-upon ground
rules. Thus, based upon Department of Defense Dependents Schools and
Department of Health and Human Services, Region VII, and the reasons
stated therein, Union Proposal 1, herein, is within the Agency's duty to
bargain.
We (the union) propose to have three negotiators.
It appears from the record that, for the negotiations to which Union
Proposal 2 would apply, the Agency has advised the Union that it intends
to have a single negotiator. Under such circumstances, the Agency
asserts, the Union's proposal conflicts with section 7131(a) of the
Statute which "precludes a number of employee negotiators in excess of
the number of management representatives." /3/
The Agency's view that "the number of employees representing an
exclusive representative in collective bargaining is entirely dependent
on the number of individuals representing the agency" misconstrues the
Statute. The operative effect of section 7131(a) is to automatically
entitle union negotiators to official time in any number which does not
exceed the number designated by management. The purpose of section
7131(a) was to put exclusive representatives on a more equal footing
with management, since, as Congress noted, management negotiators were
almost without exception on official time when fulfilling that function.
/4/ Thus, section 7131(a) does not limit the number of negotiators
which a union can designate: it only limits the number who will be
entitled to official time for negotiations.
However, there is no indication that Congress intended to preclude
negotiation of official time beyond that authorized as an entitlement in
section 7131(a). To the contrary, section 7131(d) of the Statute
expressly provides that, except for that already granted in the
preceding subsections of section 7131, official time shall be granted by
the agency for, inter alia, "any employee representing an exclusive
representative" in "any amount" the parties agree to be "reasonable,
necessary, and in the public interest." Hence, Union Proposal 2, seeking
more Union negotiators than the number designated by management and also
seeking official time for those additional negotiators is within the
Agency's duty to bargain pursuant to section 7131(d) of the Statute.
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
and 2. /5/
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency's claim that the petition is not properly before the
Authority because no request was made by the Union for a written
allegation from the Agency cannot be sustained. It is well established
that an unsolicited written allegation may provide the basis for
initiating an appeal to the Authority. See, e.g., International
Brotherhood of Electrical Workers, AFL-CIO, Local 121 and Department of
the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10
FLRA 198 (1982). In this case, the Union filed its appeal of the
Agency's unsolicited written allegation within the time limits
established by section 2424.3 of the Authority's Rules and Regulations.
/2/ While the Agency contends that Union Proposal 1 is not
sufficiently specific and limited because the term "ground rules" is not
further defined in the proposal, it is clear from the record that the
parties are in essential agreement as to the definition of the term and
the Agency was not prejudiced by the brevity of the proposal.
/3/ The Agency also contends that Union Proposal 2 is insufficiently
specific and delimited to permit a negotiability determination.
However, the Agency interpreted the proposal as seeking both additional
Union negotiators and official time for those negotiators, and based on
its statement of position, and the Union's explanation of the proposal,
it appears that the Agency's interpretation is congruent with the
Union's intent in presenting the proposal. Hence, the full record
provides a sufficient basis for a negotiability determination.
/4/ See statement of Congressman CLAY of Missouri on the House floor
during debate on the "Udall compromise." 124 CONG.REC. 29188 (1978).
/5/ In finding Union Proposals 1 and 2 within the duty to bargain,
the Authority makes no judgment as to their merits.
15 FLRA 95; FLRA O-AR-365; August 9, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
DIGEST NOTES
The dispute in this matter concerns the grievant's claim for
compensatory time for travel outside his normal duty hours. The
arbitrator ruled that the parties' agreement required that the activity
schedule travel during the basic work week if administratively
controllable as it was in this instance. Accordingly, the arbitrator
ruled that the activity violated the parties' agreement by scheduling
the travel on the weekend. In its exceptions, the agency contended that
the award is contrary law. The legal basis for granting compensatory
time arises under 5 U.S.C. 5543 and such time can only be awarded for
compensable "hours of employment" under 5 U.S.C. 5542(b)(2). In setting
aside the award, the Authority held that travel time away from one's
duty station does not constitute "hours of employment" for which
overtime or compensatory time may be granted unless the travel results
from an event which could not be controlled administratively.
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138
Case No. O-AR-365
This matter is before the Authority on exceptions to the award of
Arbitrator Jonas B. Katz filed by the Department of the Air Force (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 dispute in this matter concerns the grievant's claim for
compensatory time for travel outside his normal duty hours. The claim
arose when the grievant was required to travel on the weekend for a
temporary duty assignment in Korea. The issue before the Arbitrator was
whether the Activity violated the parties' collective bargaining
agreement when it denied the grievant's claim.
The Arbitrator agreed with the Activity's contention that under 5
U.S.C. 5542 and 5543, time spent in a travel status away from one's duty
station does not constitute hours of employment for which overtime or
compensatory time may be granted unless the travel results from an event
which could not be scheduled or controlled administratively. He also
agreed that in this case the grievant's travel was administratively
controllable. However, the Arbitrator ruled that 5 U.S.C. 5542 and 5543
were not dispositive because the parties' agreement required that the
Activity schedule travel during the basic work week if "administratively
controllable" or unless "mission requirements dictate otherwise." He
concluded that since the grievant's travel was administratively
controllable and there was no showing of a mission requirement that the
travel be scheduled outside normal duty hours, the Activity violated the
agreement by scheduling the travel on the weekend. The Arbitrator
therefore awarded the grievant 24 hours compensatory time.
In its exceptions, the Agency contends that the award is contrary to
5 U.S.C. 5542(b)(2). The Authority agrees. The legal basis for
granting an employee compensatory time arises under 5 U.S.C. 5543 and,
as previously indicated by the Authority, such time can only be awarded
for compensable "hours of employment" under 5 U.S.C. 5542(b)(2). Social
Security Administration, Denver, Colorado and American Federation of
Government Employees, Local 1802, AFL-CIO, 8 FLRA 89 (1982). Under 5
U.S.C. 5542(b)(2)(B)(iv), travel time is not compensable hours of
employment unless the event which necessitated the travel is one which
could not be scheduled or controlled administratively. U.S. Department
of Labor and National Council of Field Labor Locals, American Federation
of Government Employees, 10 FLRA 491 (1982).
In this case, as acknowledged by the Arbitrator, the grievant's
travel was scheduled and controlled administratively by the Activity.
Consequently, the grievant's travel time did not constitute compensable
hours of employment under section 5542(b)(2) for which overtime pay or
compensatory time could be granted. /1/ Therefore, while the Arbitrator
had considerable latitude in fashioning a remedy for the Activity's
violation of the parties' agreement, his award of 24 hours of
compensatory time is contrary to 5 U.S.C. 5542(b)(2).
Accordingly, the award is hereby set aside.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 5542(b)(2) governs this case because it is apparent from
the record that the grievant is an employee exempt from coverage under
the Fair Labor Standards Act.
15 FLRA 94; FLRA O-NG-813; August 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2201. Subjects of Bargaining
2201 At Election of Agency
2201.10 Methods and Means of Performing Work
DIGEST NOTES
The agency's determination that technicians must wear military
uniforms when performing technician duties constitutes management's
choice of a "methods and means of performing work" within the meaning of
Sec. 7106(b)(1) of the Statute and is negotiable only at the election of
the agency. Since the agency has elected not to bargain on technician
attire, the union's proposal is nonnegotiable.
ASSOCIATION OF CIVILIAN TECHNICIANS
and
WISCONSIN ARMY NATIONAL GUARD,
MADISON, WISCONSIN
Case No. O-NG-813
The petition for review in this case comes before the Authority
pursuant to section 7106(a)(2)(D) and (e) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents an issue
concerning the negotiability of one multi-part Union proposal which is
set forth in an Appendix to this decision. Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determination.
The Union's proposal in this case, which concerns the attire National
Guard technicians will wear when performing technician duties, raises
the regulations, that civilian technicians wear military uniforms when
performing technician duties constitutes a "methods, and means of
performing work" within the meaning of section 7106(b)(1) of the
Statute. This issue is the same as that which was presented in the
Authority's decision and order upon remand in Division of Military and
Naval Affairs, state of New York, 15 FLRA No. 65 (1984). In that
decision the Authority concluded that because the determination by the
National Guard Bureau that technicians must wear military uniforms when
performing technician duties constituted management's choice of a
"methods, and means of performing work" within the meaning of section
7106(b)(1) of the Statute, the uniform wearing requirement, although
bargainable at the election of the Agency, was not within the duty to
bargain. Thus, based on Division of Military of Naval Affairs, State of
New York, and the reasons and cases contained therein, the Authority
concludes that the Agency's determination in the instant case that
technicians must wear military uniforms when performing technician
duties constitutes a "methods, and means of performing work" within the
meaning of section 7106(b)(1) of the Statute and is negotiable only at
the election of the Agency. Since the Agency in this case has elected
not to bargain on technician attire, the Union's proposal herein is not
within the duty to bargain. /1/
Accordingly, 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., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
ARTICLE XXIV
DRESS CODE
SECTION 1-- POLICY
a. Wisconsin Army National Guard Excepted Technicians, whose
positions are included in the bargaining unit, will wear Standard
Civilian Attire while performing their day-to-day technician duties,
except on days or situations as defined in this article. The Standard
Civilian Attire must be neat, clean, and in good condition as might be
reasonably expected under various working conditions.
b. No mixture of military clothing, either issued or purchased, will
be permitted to be worn with the Standard Civilian Attire.
SECTION 2-- STANDARD CIVILIAN ATTIRE
a. The Standard Civilian Attire must meet safety requirements, and
will consist of the items listed below:
(1) Shirts, light or heavy weight, work or dress type, long or short
sleeve. One or two pockets with or without flap or button. Shirt must
be tucked inside trousers. In hot weather, shirt may be removed when
authorized by the appropriate supervisor providing a plain white
"T-shirt" is being worn.
(2) Blouses, button-front with collar, either long or short sleeve.
(3) Trousers, work or dress type, full length regular cut, for male
employees. Slacks or skirt for female employees.
(4) Jacket, lined or unlined, waist or hip length, zipper or button
front.
(5) Vest, outdoor type.
(6) Coat, outdoor type, hip or knee length, zipper or button front.
(7) Suits, dress, with or without vest.
(8) Coveralls, light or heavyweight, long or short sleeve.
(9) Parka, with hood, arctic type.
(10) Sweater, zipper or button front, long sleeve, or pull over vest
type.
(11) Necktie, four-in-hand type.
(12) Headgear, hat or cap, or scarf for female, and appropriate to
work being performed and attire worn.
(13) Shoes, work or dress type.
(14) Overshoes and rubbers. (Insulated boots may be worn by
maintenance type employees during extremely cold temperatures when not
in violation of any safety rule or regulation. The color is optional.)
(15) Socks or stockings. (Hose for females, sheer or semi-sheer,
with or without seams and a shade complimentary to the attire being
worn.)
(16) Belts, leather type with buckle.
SECTION 3-- REQUIREMENTS FOR MILITARY UNIFORM: Wisconsin Army
National Guard Excepted Technicians are required to wear the appropriate
military uniform, in accordance with applicable directives, when
performing duties in a technician status on the following conditions or
situations:
a. Attending courses of instruction in technician status at military
installations when required by the installation commander.
b. When performing scheduled recruiting duties as their primary
function.
c. When representing the WIARNG during funerals and such special
functions as parades, inaugurations, and other special military
ceremonies.
d. When performing crew member duties, and personnel on flying
status when in military aircraft.
e. When representing the National Guard in any meeting with the
Governor, the legislature or any member or committee thereof, in a court
of law, or any city or country governmental body.
f. When representing the National Guard in any public relations,
public affairs, community action or charitable activity, when mutually
agreed between the Association and the Employer.
g. When bearing firearms.
SECTION 4-- GROOMING STANDARDS: It is expected that all technicians
will present themselves in a neat, clean and well groomed appearance.
SECTION 5-- SAFETY EQUIPMENT: The Employer will continue to provide
all safety equipment (safety shoes, safety glasses, etc.) as authorized
by CTA 50-900 or other documents authorizing issuance of such items to
technicians.
/1/ Based on the Authority's conclusion that the proposal is outside
the duty to bargain pursuant to section 7106(b)(1) it is unnecessary to
consider the additional Agency contention that a compelling need exists
for its regulation requiring the wearing of the military uniform.
15 FLRA 93; FLRA O-AR-386; August 9, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1652.01 Disagreement with Arbitrator's Reasoning
DIGEST NOTES
The issue submitted to the arbitrator in this matter is whether the
activity violated the representation rights provisions of the parties'
collective bargaining agreement by refusing to permit requested union
representation during the activity's investigatory interviews of four
grievants. The arbitrator concluded that three grievants had no
reasonable belief that the examinations might result in discipline and
denied their grievances, but that the fourth grievant had such
reasonable belief and ordered that her statements be excluded from any
disciplinary action against her. In its first exception, the agency
contended that the award exceeds the scope of the issue presented but
the Authority held that exception provided no basis for review. In its
second exception, the agency contended that the arbitrator's finding was
0ased in part on a nonfact. The Authority held that this exception
constitutes nothing more than disagreement with the arbitrator's
findings of fact as to whether one grievant requested representation.
The union, in its exceptions, contended that the award is contrary to
Sec. 7114(a)(2)(B) and does not draw its essence from the parties'
agreement because the arbitrator erroneously applied a subjective test
to whether the grievants had a reasonable belief that the examinations
might result in discipline. However, the award specifically refers to
"objective" tests of such reasonable belief. Consequently, the
Authority held that the union's exceptions constitute nothing more than
disagreement with the arbitrator's reasoning and conclusions.
Accordingly, the Authority denied the exceptions of both the agency and
the union.
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
and
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 93
Case No. O-AR-386
This matter is before the Authority on exceptions to the award of
Arbitrator Edwin R. Render filed by the Agency and the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
The parties submitted to the Arbitrator the issue of whether the
Activity violated the representation rights provision of the parties'
collective bargaining agreement /1/ by refusing to permit requested
union representation during the Activity's investigatory interviews of
the four grievants. In the instances of Grievants Wills, Malanowski,
and Taraska the Arbitrator essentially concluded that no reasonable
belief that the examinations might result in discipline had been
substantiated and the Arbitrator denied their grievances. As to
Grievant Rodriguez the Arbitrator concluded that such reasonable belief
had been substantiated, and he sustained her grievance insofar as it
requested that her statements be excluded from any disciplinary action
against her.
The Agency in its first exception to the award contends that the
award exceeds the scope of the issue presented. In support of this
exception, the Agency's argument is that the Arbitrator mentions in the
course of his discussion of the matter an initial incident when no
interviews were conducted because of requests for union representation.
Because the grievance was sustained only to the extent of the statements
of Grievant Rodriguez that were made during the interviews specifically
in dispute, this exception provides no basis for finding the award
deficient.
In its second exception the Agency contends that the Arbitrator's
finding that Grievant Taraska, whose grievance the Arbitrator denied,
requested union representation is based on a nonfact. However, this
exception constitutes nothing more than disagreement with the
Arbitrator's finding of fact as to whether Grievant Taraska requested
representation and provides no basis for finding the award denying her
grievance deficient.
The Union in its exceptions contends that the award is contrary to
section 7114(a)(2)(B) of the Statute /2/ and does not draw its essence
from the collective bargaining agreement because the Arbitrator
erroneously applied a subjective test to whether the grievants had a
reasonable belief that the examinations might result in discipline.
Citing Internal Revenue Service, Hartford District Office, 4 FLRA 237
(1980), enforced sub nom. Internal Revenue Service v. FLRA, 671 F.2d 560
(D.C. Cir. 1982), the Union argues that under section 7114(a)(2)(B) the
reasonable prospect of discipline must be determined from objective
circumstances.
The Authority concludes that the Union's exceptions provide no basis
for finding the award deficient. The Arbitrator in his discussion
accompanying his award specifically cited IRS, Hartford and specifically
concluded that
the standard to be used in ascertaining whether an employee
"reasonably believes" that discipline might be imposed is one of
relying upon "objective" considerations, including such external
evidence as the facts, the affected employee's conduct and other
surrounding circumstances.
The basis for the Union's contention is the Arbitrator's mention of
subjective considerations in his discussion accompanying the award.
However, because these references do not substantiate that the
Arbitrator's ultimate determination that Grievants Wills, Malanowski,
and Taraska had no reasonable belief that the examinations may have
resulted in discipline is contrary to either section 7114(a)(2)(B) or
the collective bargaining agreement, the Authority finds that the Union
has not established that the denial of the grievances is deficient.
Rather, these exceptions in essence constitute nothing more than
disagreement with the reasoning and conclusions of the Arbitrator in
arriving at his award denying those grievances.
Accordingly, the exceptions of both the Agency and the Union are
denied.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The parties stipulated that the agreement revision is a
restatement of section 7114(a)(2)(B) of the Statute.
/2/ Section 7114(a)(2)(B) provides:
(2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
15 FLRA 92; FLRA O-AR-432; August 9, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusion
DIGEST NOTES
The Authority is without jurisdiction to review exceptions to an
arbitration award where the award relates to a matter that is similar to
those covered under 5 U.S.C. 7512, including reductions in pay or grade,
and which has arisen under the personnel system governing professional
employees of the agency's Department of Medicine and Surgery (appointed
under 38 U.S.C.chapter 73), which is "another personnel system" within
the meaning of Sec. 7121(f).
VETERANS ADMINISTRATION
MEDICAL CENTER, CHILLICOTHE, OHIO
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1631, AFL-CIO
Case No. O-AR-432
This matter is before the Authority on exceptions to the award of
Arbitrator Fred E. Kindig 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. /1/ In his award, the Arbitrator
found that the Activity acted improperly when it retroactively rescinded
the promotions of four physician assistants /2/ and demoted them to
their previous grade and pay level. For the reasons that follow, the
Authority is without jurisdiction to review the Agency's exceptions and
the exceptions therefore must be dismissed.
Section 7122(a) of the Statute pertinently provides:
Either party to arbitration under this chapter may file with
the Authority on 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 /3/ include matters similar to those covered under 5 U.S.C.
7512 which arise under other personnel systems. Matters covered under
section 7512 are specified adverse actions including a
reduction-in-grade and a reduction-in-pay. Under section 7121(f)
judicial review of an arbitration award relating to similar matters that
have arisen under another personnel system may be obtained in the same
manner and on the same basis as that of a final decision in such a
matter under applicable appellate procedures. In terms of this case,
the award relates to a matter that is similar to those covered under
section 7512 and has arisen under the personnel system governing
professional employees of the agency's Department of Medicine and
Surgery engaged in direct patient care, which is "(an)other personnel
syste(m)" within the meaning of section 7121(f). /4/ Therefore, the
Arbitrator's award relates to a matter described in section 7121(f), and
under section 7122(a) exceptions to the award may not be filed with the
Authority. Consequently, the Authority is without jurisdiction to
review the exceptions and accordingly they are dismissed.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union filed an opposition which was untimely and therefore
has not been considered by the Authority.
/2/ It is not contested that these employees are professional
employees in the agency's Department of Medicine and Surgery who have
been appointed under 38 U.S.C.chapter 73.
/3/ Section 7121(f) pertinently provides:
In matters similar to those covered under sections 4303 and
7512 of this title which arise under other personnel systems and
which an aggrieved employee has raised under the negotiated
grievance procedure, judicial review of an arbitrator's award may
be obtained in the same manner and on the same basis as could be
obtained of a final decision in such matters raised under
applicable appellate procedures.
/4/ See S. Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978) (in which
the Senate Governmental Affairs Committee in explaining the provision of
"other personnel systems" in what became section 7121(e)(1) of the
Statute used title 38, United States Code as an example). However, the
correction of assertedly erroneous promotions does not concern the
disciplining of Department of Medicine and Surgery personnel for
professional misconduct which has been held to be precluded from
grievance and arbitration. VA Medical Center, Northport, New York v.
FLRA, 732 F.2d 1128 (2d Cir. 1984); VA Medical Center, Minneapolis,
Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983).
15 FLRA 91; FLRA O-AR-490; August 9, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1704. Reversal
DIGEST NOTES
The dispute in this matter concerns overtime pay for standby time on
an isolated, uninhabited island where it was necessary for the grievant
to stay on the island for three days until picked up by a helicopter.
Although the activity paid for actual overtime work performed, it
refused the grievant's request to pay for eight hours of standby time
for each day on the island. The arbitrator awarded the grievant
compensation for standby time since he concluded that the practical
effect of the assignment was to compel the grievant to remain on the
island when not performing actual work. In its exceptions, the agency
contended that the arbitrator's award is contrary law considering that
the activity did not officially order the grievant to be in standby
status. The Authority set aside the award since under the Federal
Employees Pay Act, 5 U.S.C. 5542(a), employees' assignments must require
them to hold themselves in readiness to perform work in order for such
employees to be entitled to overtime compensation for standby duty.
Standby status does not result from geographic isolation alone. Rather,
under 5 CFR 550.143(a)(1) a "standby" requirement " . . . must be
definite and the employee must be officially ordered to remain at his
station. The employee's remaining at his station must not be merely
voluntary, desirable, or a result of geographic isolation . . . ".
NAVAL AMPHIBIOUS BASE
LITTLE CREEK, VIRGINIA
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Case No. O-AR-490
This matter is before the Authority on an exception to the award of
Arbitrator Robert W. Foster 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.
The dispute before the arbitrator in this matter concerned a claim
for overtime pay for standby time. The grievant was assigned to repair
a generator on an isolated, uninhabited island in Chesapeake Bay with
transportation to and from the island to be provided by helicopter. The
Activity estimated that the work would take 20 regular work hours and
assigned the grievant to the island for a three-day period. Since there
was no means of leaving the island after completion of each day's work,
it was necessary for the grievant to stay on the island until he was
picked up on the third day. The Activity authorized overtime pay for
any actual generator repair work that might be needed in addition to the
estimated regular hours, but refused the grievant's request for overtime
pay for eight hours of standby time for each day on the island. The
grievant filed a grievance and proceeded to perform the assigned work.
The dispute subsequently was submitted to arbitration.
The Arbitrator rejected the Activity's contention that since standby
duty was neither ordered nor authorized the grievant was not in a
standby status while assigned to the island. The Arbitrator determined
that employees are entitled to standby pay for periods they are confined
to an area and are subject to being called upon to perform work. The
Arbitrator found that employees on assignments similar to the grievant's
had been paid for standby time in the past and that while the Activity
may not have intended to require the grievant to be on standby, the
practical effect of the assignment was that he was compelled to remain
on the island when not performing actual work, ready to perform work
when the need arose or when called. The Arbitrator concluded that the
grievant was entitled to compensation for standby time and therefore
directed the Activity to pay the grievant for eight hours of standby
time at the overtime rate for each 24-hour period he was on the island.
In its exception, the Agency contends, among other things, that the
Arbitrator's award of overtime compensation is contrary to the Federal
Employees Pay Act, 5 U.S.C. 5542(a). The Authority agrees.
The legal basis for payment of overtime compensation for time spent
in a standby status on other than a regular basis derives from 5 U.S.C.
5542(a), which provides, in part:
(H)ours of work officially ordered or approved in excess of 40
hours in an administrative workweek, or . . . in excess of 8 hours
in a day, performed by an employee are overtime work and shall be
paid for, except or otherwise provided by this subchapter. . . .
Standby time, compensable as "hours of work" under 5 U.S.C. 5542(a),
is defined in FPM Supplement 990-2, Book 610, Subchapter S1-3d as
follows:
. . . Standby time consists of periods in which an employee is
officially ordered to remain at or within the confines of his
station, not performing actual work but holding himself in
readiness to perform actual work when the need arises or when
called.
In Department of the Interior, U.S. Geological Survey, Conservation
Division, Gulf of Mexico Region, Metairie, Louisiana and American
Federation of Government Employees, Local 3457, AFL-CIO, 9 FLRA 543
(1982), the Authority held that under 5 U.S.C. 5542(a) and 5 CFR 550.111
employees' assignments must require them to hold themselves in readiness
to perform work in order for such employees to be entitled to overtime
compensation for standby duty. /1/
With respect to what constitutes a requirement that an employee
"standby," 5 CFR 550.143(a)(1) provides:
The requirement must be definite and the employee must be
officially ordered to remain at his station. The employee's
remaining at his station must not be merely voluntary, desirable,
or a result of geographic isolation. . . .
Thus, it is clear that standby duty must be officially ordered or
otherwise definitely required by the employee's assignment and that
standby status does not result from geographic isolation alone.
In this case, the Arbitrator essentially determined that the grievant
was on standby because he was confined to the island after completing
his regular work and was thereby compelled to hold himself in readiness
to perform additional work. However, contrary to the Arbitrator's
determination, while the grievant had to remain on the island due to its
isolated location and relative inaccessibility, he was not thereby
compelled to perform standby duty.
Standby duty must be officially ordered or required by the assignment
and, as acknowledged by the Arbitrator, the Activity did not officially
order or even intend to require the grievant to hold himself in
readiness to perform any work outside his regular duty hours. Rather,
the Activity clearly informed the grievant prior to his departure that
he was not required to be in a standby duty status during the time on
the island. Nor did the nature of the grievant's assignment definitely
require the performance of standby duty. On the contrary, as indicated
above, the Activity specifically estimated the time necessary to
accomplish the generator repair assignment as requiring only regular
work hours and provided for the payment of overtime in the event that
any additional actual work might be necessary to complete the task.
Thus, the requirement that standby duty must be officially ordered or
definitely required by the employee's assignment was not met in the
grievant's case.
Consequently, the grievant was not entitled to overtime pay for
standby time under 5 U.S.C. 5542(a). Accordingly, the Arbitrator's
award of overtime compensation is contrary to 5 U.S.C. 5542(a) and is
hereby set aside.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Authority also noted that the Comptroller General had reached
the same conclusion concerning the interpretation and application of
those provisions. See, e.g., 52 Comp.Gen. 794 (1973); 57 Comp.Gen. 496
(1978).
15 FLRA 90; FLRA O-AR-337; August 9, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1650. No Basis for Review
1652.01 Disagreement with Arbitrator's Reasoning
DIGEST NOTES
The dispute in this case concerned whether grievant had performed the
duties of a higher-grade position for an extended period of time such
that he was entitled to a temporary promotion under the provisions of
the parties' agreement. The arbitrator: (1) found that grievant had
performed the duties of a higher-graded position; (2) determined that
grievant was entitled to have been temporarily promoted under the
provisions of the parties' agreement; (3) ordered grievant
retroactively promoted with backpay for the period involved; and (4)
awarded grievant entitlement to the benefits of grade and pay retention
of 5 U.S.C.subchapter VI. In its first exception, the agency contended
that the arbitrator exceeded his authority by making a classification
determination precluded by Sec. 7121(c)(5) of the Statute. The
Authority found that this exception provided no basis for finding the
award deficient since a grievance pertaining to whether a grievant is
entitled to a promotion does not directly concern the classification of
any position within the meaning of Sec. 7121(c)(5). In its second
exception, the agency contended that the award was deficient because the
date chosen by the arbitrator to begin the retroactive promotion is
erroneous under the terms of the parties' agreement. The Authority
found that this exception constituted nothing more than disagreement
with the arbitrator's interpretation and application of the temporary
promotion provision of the parties' agreement and denied the exception,
the agency contended that the award of grade and pay retention benefits
was contrary to 5 U.S.C.subchapter VI. The Authority found the award
deficient as contrary to 5 U.S.C.subchapter VI as the grade and pay
provisions of 5 U.S.C. 5362-5363 specifically apply to an employee who
has been downgraded by placement in another position as the result of a
reclassification action. Additionally, OPM under 5 U.S.C. has
consistently provided that an employee serving under a temporary
promotion may not retain a grade or pay rate held during the temporary
promotion. Consequently, the Authority modified the award.
GEORGIA AIR NATIONAL GUARD,
165th TACTICAL AIRLIFT GROUP,
SAVANNAH, GEORGIA
and
GEORGIA ASSOCIATION OF
CIVILIAN TECHNICIANS
Case No. O-AR-337
This matter is before the Authority on exceptions to the award of
Arbitrator Geo. Savage King 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. /1/
The dispute in this matter concerns the grievant's claim that he had
performed the duties of a higher-grade position for an extended period
that entitled him to a temporary promotion under the provisions of the
parties' collective bargaining agreement. The Arbitrator determined
that the grievant had performed the duties of a higher-grade position
for an extended period for which under the parties' agreement he should
have been temporarily promoted. Accordingly, as his award the
Arbitrator essentially ordered the grievant retroactively promoted with
backpay for the period from November 1, 1978 to June 30, 1980. The
Arbitrator also awarded the grievant entitlement to the benefits of
grade and pay retention of 5 U.S.C.subchapter VI.
In its first exception the Agency essentially contends that the
Arbitrator made a classification determination precluded by section
7121(c)(5) of the Statute and in so doing exceeded his authority. The
Authority has expressly held that a grievance pertaining to whether the
grievant was entitled to a promotion does not directly concern the
classification of any position within the meaning of section 7121(c)(5).
Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and
American Federation of Government Employees, Local 987, 10 FLRA 410
(1982). The Authority therefore concludes that this exception provides
no basis for finding the award deficient, and accordingly the exception
is denied.
In its second exception the Agency essentially contends that the
award is deficient because the date chosen by the Arbitrator to commence
the retroactive promotion is erroneous under the terms of the parties'
collective bargaining agreement. However, this exception constitutes
nothing more than disagreement with the Arbitrator's interpretation and
application of the temporary promotion provision of the agreement, and
accordingly this exception is denied. See American Federation of
Government Employees, Local 148, Council of Prison Locals and Bureau of
Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, 7 FLRA 95 (1981).
In its third exception, the Agency contends that the award of grade
and pay retention benefits is contrary to 5 U.S.C.subchapter VI. The
Authority agrees.
As noted, the Arbitrator in conjunction with his award of a
retroactive temporary promotion also awarded the grievant entitlement to
the benefits of retention of the grade and pay of the higher-grade
position on his retroactive return to his officially appointed position.
The grade and pay provisions of 5 U.S.C. 5362-5363 specifically apply,
as is here relevant, to an employee who has been downgraded by placement
in another position as the result of reduction-in-force procedures or
has been downgraded as the result of a reclassification action.
Furthermore, the Office of Personnel Management under 5 U.S.C. 5365 /2/
not only has not extended such provisions to the situation occurring in
this case, but moreover has consistently provided that an employee
serving under a temporary promotion may not retain a grade or pay rate
held during the temporary promotion. 5 Cfr part 536. Consequently, the
Authority concludes that the award is deficient in this respect as
contrary to 5 U.S.C.subchapter VI and must be modified. Accordingly,
the award is modified by striking "and with the benefit of the Grade and
Pay Retention provisions of Section 5362, Public Law 95-454 (1978)."
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Office of Personnel Management filed an amicus curiae brief.
/2/ Section 5365(a) directs the Office of Personnel Management (OPM)
to prescribe regulations implementing the purpose of the subchapter, and
section 5365(b) authorizes OPM in certain respects to extend under such
regulations the application of all or portions of the provisions of the
subchapter.
15 FLRA 89; FLRA 3-CA-20788; August 8, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
4800. Otherwise Refuse to Comply with Statute
DIGEST NOTES
Three supervisors met with approximately 30 employees for about 20
minutes in order to inform the employees of a pending
reduction-in-force; handed out a memo regarding the RIF; and responded
to all questions by either referring to the memo or told employees that
the answer would be provided later. Since the agency did not afford the
exclusive representative an opportunity to be present at the meeting
which was a "formal" meeting within the meaning of Sec. 7114(a)(2)(A) at
which "any personnel policy or practice or other general conditions of
employment" was discussed, the Authority held that the agency violated
Sec. 7116(a)(1) and (8).
Where the agency did not afford the exclusive representative an
opportunity to be present at a meeting with unit employees that was
called solely to transmit information and not to deal directly with
employees concerning conditions of employment, the Authority held that
the agency did not violate Sec. 7116(a)(1) and (5) because the agency
did not bypass the union.
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
Case No. 3-CA-20788
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts and the parties' contentions, the Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) when its agents, Craig Nickerson and
Michael Ehrman, conducted a meeting on June 22, 1982 at which they
failed to afford the Union an opportunity to be present, thereby
bypassing the Union and failing to comply with section 7114(a)(2)(A) of
the Statute. /1/
The stipulated record reflects that on June 22, 1982, Nickerson and
Ehrman, both Division Directors in the Office of Urban Rehabilitation,
called a meeting at which all employees present in the Officer were
required to attend. In addition to Nickerson and Ehrman, the meeting,
which commenced 15 minutes after it was called, was attended by
approximately 30 employees and at least two additional supervisors. It
was held outside Nickerson's office in an open area and was conducted
jointly by Nickerson and Ehrman. No Union representatives were present.
The purpose of the meeting was to inform the employees of a pending
reduction-in-force (RIF), and a memo regarding the RIF was handed out to
all employees present. Questions asked at the meeting were responded to
by Ehrman and Nickerson who either referred the employees present to the
memo or told them the answer would be provided later. The meeting
lasted approximately 20 minutes and no minutes were kept.
Upon consideration of all the factors relevant to the circumstances
of the instant case, the Authority concludes that the June 22, 1982
meeting was "formal" within the meaning of section 7114(a)(2)(A). /2/
Thus, the stipulated record establishes that the meeting was conducted
by two second level supervisors of the bargaining unit employees in
attendance; at least two other management representatives were present;
prepared materials concerning the RIF were passed out at the meeting;
and attendance was mandatory. Turning next to the question of whether
the subject matter discussed at the meeting concerned "any grievance, or
any personnel policy or practices or other general conditions of
employment," the Authority notes that there is no dispute that the
pending RIF falls within such subject matter. Accordingly, the
Authority concludes that the meeting held on June 22, 1982 was a formal
discussion within the meaning of section 7114(a)(2)(A). Thus, the
Respondent's failure to provide the exclusive representative with an
opportunity to be present at a meeting which constituted a formal
discussion of matters within the meaning of section 7114(a)(2)(A) of the
Statute was violative of section 7116(a)(1) and (8).
However, the Authority finds that the Respondent did not bypass the
Union at the meeting in violation of section 7116(a)(1) and (5) of the
Statute. Thus, the purpose of the meeting was solely to transmit
information to the employees. The stipulated record is devoid of any
evidence that the Respondent attempted to deal directly with the
employees with respect to their conditions of employment. /3/
Accordingly, this allegation of the complaint must be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
U.S. Department of Housing and Urban Development shall:
1. Cease and desist from:
(a) Failing to provide the exclusive representative, American
Federation of Government Employees, with an opportunity to be present at
formal discussions with bargaining unit employees at which personnel
policies and practices or other conditions of employment are discussed.
(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) Post at its facilities, located at 4551 7th Street, S.W.,
Washington, D.C., copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by an appropriate official and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegation of the complaint
in Case No. 3-CA-20788 be, and it hereby is, dismissed.
Issued, Washington, D.C., August 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail to provide the exclusive representative, American
Federation of Government Employees, with an opportunity to be present at
formal discussions with bargaining unit employees at which personnel
policies and practices or other conditions of employment are discussed.
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)
By: (Signature) (Title)
Dated: . . .
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: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8452.
/1/ Section 7114(a)(2)(A) reads as follows:
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more 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(.)
/2/ See Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982); Defense Logistics Agency, Defense Depot Tracy,
Tracy, California, 14 FLRA No. 78 (1984).
/3/ See Internal Revenue Service (District, Region, National Office,
Unit), 11 FLRA No. 23 (1982) affirmed sub nom. National Treasury
Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984).
15 FLRA 88; FLRA O-NG-973; August 3, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal was within the duty to bargain. Accordingly, the
Authority dismissed the petition for review.
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LODGE 81
and
DEPARTMENT OF THE ARMY,
ROCK ISLAND ARSENAL
Case No. O-NG-973
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the federal service labor-management relations statute on a petition
review of a negotiability issue filed by the Union.
The record before the Authority indicates that the local parties
executed a collective bargaining agreement and submitted it to the
agency head for review and approval pursuant to section 7114(c) of the
Statute. The agency head disapproved a provision of the agreement
concerning the rescheduling of the employees' pre-scheduled basic
workweek. The Union then sought the Authority's determination, pursuant
to section 7117 of the Statute and section 2424.1 of the Authority's
Rules and Regulations, as to whether the disputed proposal was within
the duty to bargain. Subsequently, in a letter dated April 6, 1984, the
Agency withdrew the allegation of nonnegotiability.
Since the Agency has withdrawn the allegation concerning the Union's
proposal, there is no longer an issue as to whether the proposal is
within the parties' duty to bargain under the Statute. Accordingly, and
apart from other considerations,
IT IS HEREBY ORDERED that the instant petition for review be
dismissed.
For the Authority.
Issued, Washington, D.C., August 3, 1984
Jan K. Bohren, Executive
Director/Administrator
15 FLRA 87; FLRA 3-CA-2646; August 1, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4800. Otherwise Refuse to Comply with Statute
DIGEST NOTES
The Authority held that under Sec. 7114(a)(2)(A), the right of an
exclusive representative to be represented at formal discussions exists
when there is: (a) a discussion; (2) which is formal; (3) between one
or more representatives; (4) concerning any grievance of any personnel
policy or practices or other general conditions of employment. The
absence of any one of these criteria is fatal to a complaint alleging
that an agency has failed to accord an exclusive representative its
right to be represented. In determining formality, the Authority will
consider the totality of facts and circumstances presented. A grievance
within the meaning of Sec. 7114(a)(2)(A) does not encompass a statutory
appeal. Personnel policy or practices are general rules applicable to
agency personnel, not discrete actions taken with respect to individual
employees. General conditions of employment subsumes personnel policy
or practices, i.e., formal discussions are limited to those discussions
(other than grievance meetings) which concern conditions of employment
affecting employees in the unit generally.
The Authority held that the agency's pre-trial interview of a
potential witness, who is an employee, in preparation for a scheduled
hearing before MSPB did not constitute a formal discussion within the
meaning of Sec. 7114(a)(2)(A). Therefore, the agency's failure to
provide the union with an opportunity to be represented was not
violative of Sec. 7116(a)(1) and (8).
In a dissenting opinion, one Member concluded that the agency's
pre-trial interview of a potential witness, who was an employee, in
preparation for a scheduled hearing before MSPB constituted a formal
discussion within the meaning of Sec. 7114(a)(2)(A). Thus the agency's
failure to provide the union with an opportunity to be represented
violated Sec. 7116(a)(1) and (8). The Member agreed with the majority
that the interview did not concern a grievance but, rather, concerned a
statutory appeal. However, the Member differed with the majority's
finding that the interview was not a discussion "concerning . . . any
personnel policy or practice . . . ". A meeting which has significance
for, or is related to, an agency's personnel policy or practice is one
that concerns such policy or practice. The interview was a discussion
concerning the application of personnel policy or practices. The
application of a personnel policy or practice that led to the imposition
of discipline in this instance could have an effect on unit employees
generally. Also, considering the totality of the facts and
circumstances, the interview was "formal" within the meaning of Sec.
7114(a)(2)(A).
BUREAU OF GOVERNMENT FINANCIAL
OPERATIONS, HEADQUARTERS
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 202
Case No. 3-CA-2646
13 FLRA No. 5
On September 15, 1983, the Authority issued its decision in the
above-entitled case finding that the Respondent, Bureau of Government
Financial Operations, Headquarters, had not violated section 7116(a)(1)
and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) and ordering that the complaint be dismissed. More
specifically, the Authority concluded, based on Internal Revenue Service
and Brookhaven Service Center, 9 FLRA 930 (1982) (Brookhaven), that the
Respondent was not obligated under section 7114(a)(2)(A) of the Statute
/1/ to afford the Union, the National Treasury Employees Union and
National Treasury Employees Union, Chapter 202, the opportunity to be
present at an interview of a unit employee in preparation for a hearing
before the Merit Systems Protection Board (MSPB).
Subsequent to the issuance of the Authority's decision herein, the
Union petitioned for review of the Authority's decision in the U.S.
Court of Appeals for the District of Columbia Circuit (No. 83-2180).
Thereafter, the Authority filed a motion to remand in order "to address
with more particularity in a supplemental decision the application of
Brookhaven to the facts and circumstances of the instant case," which
motion was granted by the Court. Before addressing the application of
Brookhaven to the instant case, however, it will be helpful to review
the facts presented in Brookhaven and the conclusions reached therein.
The situation presented in Brookhaven, which was based upon a
stipulation of facts, involved meetings with unit employees for the
purpose of enabling the respondent to prepare its case for a pending
unfair labor practice proceeding and for an upcoming arbitration hearing
conducted pursuant to the parties' collective bargaining agreement. The
Authority determined that the meetings in question did not constitute
"formal discussions" within the meaning of section 7114(a)(2)(A) of the
Statute at which the union was entitled to be represented. In so doing,
the Authority noted that not all meetings with unit employees constitute
formal discussions under that section. /2/ Based on the facts presented
in Brookhaven, the Authority reached the conclusion that the meetings,
which the Authority characterized as fact gathering sessions, did not
constitute formal discussions on the basis that attendance thereat was
not mandatory and that no agenda had been established by the respondent
to discuss matters involving general conditions of employment or
specific changes in job duties. /3/ Thus, the Authority found the
respondent did not unlawfully deny the Union the opportunity to be
present at the interview in question. In addition, the Authority found
that the respondent did not unlawfully question its employees. /4/
In the instant case, as observed by the Administrative Law Judge and
noted by the Authority in its September 15, 1983 decision, the sole
question before the Authority is whether the interview in question was a
"formal discussion" within the meaning of section 7114(a)(2)(A) of the
Statute.
Section 7114(a)(2)(A) of the Statute provides that an exclusive
representative shall be given the opportunity to be represented at a
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
conditions of employment. In order for that right to attach, therefore,
all elements set forth in that section must be found to exist: (1) a
discussion; (2) which is formal; (3) between one or more
representatives of the agency and one or more employees in the unit or
their representatives; (4) concerning any grievance or any personnel
policy or practices or other general conditions of employment. While
the Authority did not separately address each of these elements in
Brookhaven, more recent cases have separately analyzed one or more of
these elements. Thus, for example, in Defense Logistics Agency, Defense
Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority
addressed the elements of subject matter and formality, concluding that
even though the meeting concerned a condition of employment, it was not
formal in nature. Similarly, in Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region, 10
FLRA 172 (1982), the Authority separately addressed who was present at
the meeting, whether the meeting was formal, and the subject matter of
the meeting, concluding that the meeting therein was a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. The
Authority reaffirms herein this analytical approach for determining
whether a right to union representation exists under section
7114(a)(2)(A), i.e., examination of the statutory elements based upon
the facts presented in each case.
Turning to the instant case, the question raised is whether a
pre-trial interview of a potential witness in preparation for a
scheduled hearing before MSPB constitutes a formal discussion within the
meaning of section 7114(a)(2)(A) at which the Union should have been
given an opportunity to be represented. For the reasons which follow,
we conclude that it was not.
The facts of the present matter, set forth in greater detail in the
Judge's Decision, indicate that James Lewis, an employee of the
Respondent, was called to the Office of Personnel by a Labor Relations
Specialist where he was questioned concerning a pending hearing before
MSPB regarding an appeal filed by a co-worker. Lewis had witnessed an
incident which was apparently considered in the proposed dismissal of
the co-worker, Philip Murphy. As found by the Judge, Lewis was
interviewed by an attorney who was to represent the Respondent at
Murphy's MSPB hearing and two Labor Relations Specialists. During the
course of a meeting which lasted approximately 20 to 30 minutes, the
attorney asked Lewis a number of questions concerning his observations
of the incident in which Murphy was involved.
Under the circumstances noted above, the Authority concludes that the
interview of Lewis by an attorney in preparation of Respondent's case
for Murphy's MSPB hearing did not concern "any grievance, personnel
policy or practices or other general conditions of employment" and was
not "formal" within the meaning of section 7114(a)(2)(A) of the Statute.
With respect to the subject matter of the discussion, first, the
meeting did not concern a grievance as that term is used in section
7114(a)(2)(A). While section 7103(a)(9) of the Statute contains a broad
definition of "grievance," /5/ the applicable legislative history of the
Statute indicates that Congress did not intend it to be all-inclusive.
/6/ Rather, a union's right to be represented at a formal discussion
concerning a grievance pursuant to section 7114(a)(2)(A) must be read in
the context of the Statute as a whole which consistently distinguishes
between grievances and statutory appeals procedures. With respect to
this distinction, see generally section 7121 of the Statute. In
particular, sections 7121(d) and 7121(e) of the Statute /7/ provide that
an employee may raise certain issues under a statutory appeals procedure
or under the negotiated grievance procedure, but not both. Further,
section 7114(a)(5) of the Statute draws distinctions between negotiated
grievance procedures and other forums. /8/ Moreover, the United States
Court of Appeals for the Ninth Circuit reversed a decision of the
Authority in which the Authority held that a meeting to discuss an Equal
Employment Opportunity (EEO) complaint concerned a "grievance" within
the meaning of section 7114(a) since an EEO complaint fell within the
broad definition of section 7103(a)(9) of the Statute. /9/ In its
decision, the Court, noting that the EEO complaint was filed pursuant to
statutory procedures of the Equal Employment Opportunity Commission
(EEOC), decided that the EEO claim of discrimination did not constitute
a "grievance" within the meaning of section 7114(a)(2)(A). In this
regard, the Court stated, " . . . the EEOC procedures involved in this
case are not controlled by 5 U.S.C. 7114(a)(2)(A) because they are
separate and distinct from the grievance process to which 5 U.S.C. 7103
and 7114 are directed." Thus, the Authority finds, based on the
distinctions in the Statute and its legislative history noted above, and
the Court decision in the IRS, Fresno case, supra, that a grievance
within the meaning of section 7114(a)(2)(A) does not encompass a
statutory appeal. /10/ In the instant case, the meeting was held solely
in connection with a statutory appeal-- namely, an MSPB appeal.
Accordingly, the Authority concludes that the meeting did not concern a
"grievance" within the meaning of section 7114(a)(2)(A) of the Statute.
Second, the meeting between Lewis and the Respondent's
representatives did not concern "any personnel policy or practices." In
this regard, the record is clear that the meeting was limited to
questioning Lewis regarding his observations related to a discrete
incident relied upon by the Respondent in proposing a dismissal action
concerning another employee. There was no discussion of any personnel
policy or practice. The meeting was held for the sole purpose of
preparing Respondent's representatives for a hearing before MSPB on the
other employee's appeal. Further, the personnel policies and practices
referred to in section 7114(a)(2)(A) are general rules applicable to
agency personnel, not discrete actions taken with respect to individual
employees. The language of Sec. 7114(a)(2)(A) refers to " . . .
personnel policy or practices or other general conditions of employment.
. . . " Use of the phrase "or other" indicates that 'general' refers
back to "personnel policy or practice." Had Congress not intended
'general conditions of employment,' to subsume personnel policy or
practice, it would have omitted the word 'other.' This interpretation is
bolstered by Representative Udall's sectional analysis /11/ which
clearly states if a discussion does not concern conditions of employment
which affect employees in the unit generally, and is not a grievance,
the union has no right to representation under section 7114(a)(2)(A).
The agency staff personnel were interviewing Mr. Lewis to ascertain the
facts concerning Mr. Murphy's actions; they were not discussing general
personnel policy or practices. /12/
Finally, the meeting cannot be said to have involved any "other
general condition of employment." Section 7103(a)(14) of the Statute
defines "conditions of employment" as " . . . personnel policies,
practices, and matters, whether established by rule, regulation, or
otherwise, affecting working conditions(.)" However, the legislative
history of section 7114(a)(2)(A) of the Statute clearly indicates the
Congressional intent that formal discussions are limited to those
discussions (other than grievance meetings) "which concern conditions of
employment affecting employees in the unit generally." /13/ As noted
above, the meeting was concerned solely with the questioning of a
witness to an event which served as a basis for the proposed adverse
action against another employee.
Therefore, the Authority concludes that the subject matter of the
meeting between Lewis and Respondent's representatives did not involve a
grievance or any personnel policy or practices or other general
conditions of employment-- at least one of which must be present as a
prerequisite for finding that the subject matter of the discussion falls
within the purview of section 7114(a)(2)(A) of the Statute.
Moreover, the Authority concludes that the interview of Lewis was not
"formal" in nature. In Department of Health and Human Services, Social
Security Administration, Bureau of Field Operations, San Francisco,
California, 10 FLRA 115 (1982), the Authority noted a number of factors
relevant to a determination of whether meetings, alleged to be formal
discussions within the meaning of section 7114(a)(2)(A) of the Statute,
are in fact "formal" in nature. Thereafter, in Defense Logistics
Agency, Defense Depot Tracy, Tracy, California, supra, the Authority
emphasized that such factors were not intended to be exhaustive, and
that other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of facts and circumstances presented.
The Judge herein found that the interview of Lewis constituted a
formal meeting because the meeting was initiated by management, was held
in an area apart from the employee's normal work area, and was marked by
the taking of notes by "high level" representatives of the Respondent.
In disagreeing with the Judge's conclusion that the meeting in question
was formal in nature, the Authority notes particularly that the meeting
was called by staff t specialists who did not have any supervisory or
managerial responsibility over the employee being interviewed; that the
meeting was held in a staff specialist's office and not in the office of
anyone in the employee's chain of supervision and no one in that chain
attended the meeting; and that there was no clear finding that Lewis'
continued presence at the meeting was mandatory. Additionally, the
record does not establish that there was any advance notice of the
meeting or that any formal agenda was prepared and distributed prior to
the interview. /14/
In summary, section 7114(a)(2)(A) rights arise only when all of the
statutory criteria exist. That is, there must be a discussion which is
formal in nature between one or more representatives of the agency and
one or more employees or their representatives in an exclusively
represented bargaining unit concerning grievances, personnel policy or
practices, or other general conditions of employment. The absence of
any one of these criteria is fatal to a complaint alleging that an
agency has failed to accord an exclusive representative its right to be
represented. As noted above, in the instant case at least two of these
criteria are not met. The subject matter of the meeting did not involve
a grievance, personnel policy or practices, or other general conditions
of employment. In addition, the totality of the facts and circumstances
does not establish that the meeting was formal in nature.
Having found that the interview of Lewis by the Respondent's
representatives was not a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute, the Authority concludes that the
Respondent's failure to provide the Union with an opportunity to be
represented was not violative of section 7116(a)(1) and (8) of the
Statute, and the Judge's finding to the contrary must be set aside.
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-2646 be, and
it hereby is, dismissed.
Issued, Washington, D.C., August 1, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Haughton, concurring in part and dissenting in part:
Today the Authority issues a supplemental decision in the instant
case. As a result of reconsideration by the Authority of the issues
presented, today's decision changes the earlier analysis but reaches the
same conclusion. While I generally support the analysis my colleagues
set forth, I believe its application must lead to the conclusion that
the Respondent violated section 7116(a)(1) and (8) of the Statute by not
affording the Union the opportunity to be present at a pre-MSPB hearing
interview between the Respondent's representative and a bargaining unit
employee. In the decision issued on September 15, 1983, the Authority
found that the interview of the employee did not constitute a formal
discussion based on its earlier decision in Internal Revenue Service and
Brookhaven Service Center, 9 FLRA 930 (1982). In Brookhaven the
Authority concluded
(T)he . . . meetings did not constitute formal discussions
within the meaning of section 7114(a)(2)(A). Rather, they were
fact-gathering sessions between a representative of the Respondent
and a unit employee wherein management was merely seeking
information to aid in the preparation of its cases for
presentation at proceedings before a third-party neutral, in the
same manner as an exclusive representative may gather the facts
from employees prior to such proceedings.
Brookhaven, at 933. Because the Authority regarded the interview in
the instant case as such a "fact-gathering session," it did not
separately consider whether, for example, the meeting in question here
was "formal" in nature or concerned "any grievance or any personnel
policy or practices or other general conditions of employment."
The Authority today does not rest on the use of "fact-gathering" as a
determinant in deciding cases arising under section 7114(a)(2)(A) but
reaffirms the approach used in more recent cases where the specific
statutory language is analyzed and applied to the facts of each case.
When this is done the conclusion must be that there was, in fact, a
"formal" discussion within the meaning of section 7114(a)(2)(A) and it
did concern "personnel policy or practices" as provided in that section.
The majority finds that the interview in question did not concern
"any grievance or any personnel policy or practices or other general
conditions of employment." I agree with the majority's finding that the
interview here did not concern a grievance but, rather, concerned a
statutory appeal. I must differ, however, with the finding that the
interview was not a discussion "concerning . . . any personnel policy or
practices. . . . "
In the absence of any specific legislative history on this particular
phrase, it must be given its ordinary meaning. Thus, a meeting which
has significance for, or is related to, an agency's personnel policy or
practice is one that concerns such policy or practice.
It is clear from the record that the agency proposed the dismissal of
an employee following that employee's participation in an altercation
with a supervisor. The action proposed either must have been based on
the application of some existing personnel policy or practice, or itself
established a personnel policy or practice. In either event, it follows
that the proposed dismissal action concerned a personnel policy or
practice. It is also clear that the interview concerned that same
policy or practice. That is, the purpose of the interview was to
discuss the situation that formed the basis of the Respondent's action
and to provide the Respondent with information with which to defend the
action before MSPB. Therefore, I find that the interview was a
discussion "concerning" the application of "personnel policy or
practices."
It is important to emphasize that the application of the previously
existing or newly-established personnel policy or practice that led to
the imposition of discipline in this instance could have an effect on
unit employees generally. For example, if dismissal or discipline of a
unit employee is proposed at some future date, the way in which the
Respondent has previously applied a personnel policy or practice could
have precedential effect and thus would be a concern to the Union in
fulfilling its representational responsibilities. For this reason, the
interview also concerned the interests of employees in the unit
generally. /15/
Furthermore, I find based on the record that the interview herein was
"formal" within the meaning of section 7114(a)(2)(A) of the Statute.
The interview was held away from the employee's desk in the office of
the Respondent's labor relations specialist, the interview lasted
approximately 20 to 30 minutes, and notes of the interview were taken.
Additionally, the record indicates that the interview was more than
simply a spontaneous or informal meeting but was a planned effort to
elicit information from the particular employee. Indeed the employee
was not called in for questioning until Respondent's representatives
learned the employee was scheduled to appear at the MSPB hearing in the
capacity of a Union witness. Finally, it would be hard to say that the
meeting was entirely voluntary in light of the witness' testimony that
the Respondent's agents told him "it would be in the best interest of
everybody if he cooperated, but he did not have to." See p. 3 of the
Judge's Decision in this matter. Bureau of Government Financial
Operations, Headquarters, 13 FLRA No. 5 (1983). Therefore, based on the
totality of the facts and circumstances presented here, I am of the view
that the interview in question meets the test of formality as defined by
the Authority in previous decisions. /16/
In sum, I find that the interview here was formal and concerned a
personnel policy or practice. I also find that a discussion took place
between one or more representatives of the agency and an employee in the
unit. Therefore, based on the entire record, and in consideration of
the specific statutory language, I conclude that the Union was entitled
to be represented at the interview under section 7114(a)(2)(A) of the
Statute and that the Respondent's failure to afford the Union an
opportunity to be represented there constituted a violation of section
7116(a)(1) and (8) of the Statute.
Issued, Washington, D.C., August 1, 1984
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
KEESLER TECHNICAL TRAINING CENTER,
KEESLER AIR FORCE BASE, MISSISSIPPI
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 943
Case No. O-AR-708
This matter is before the Authority on exceptions to the award of
Arbitrator Jack Clarke 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., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
PORTSMOUTH NAVAL SHIPYARD
and
FEDERAL EMPLOYEES METAL TRADES COUNCIL
Case No. O-AR-748
This matter is before the Authority on exceptions to the award of
Arbitrator Albert J. Hoban 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., July 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Sec. 7114. Representation rights and duties
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more 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 conditions of employment(.)
/2/ The Authority specifically noted the following statement of
Representative Clay of Missouri concerning the word "formal":
The word "formal" was inserted before "discussion" in order to
make clear the intention that this subsection does not require
that an exclusive representative be present during highly
personal, informal meetings such as counseling sessions . . .
124 Cong.Rec. 29187 (1978).
/3/ We disagree, therefore, with our colleague's characterization of
Brookhaven as set forth in his separate opinion. However, in order to
clarify any possible ambiguity along these lines, we are issuing this
Supplemental Decision and Order in the instant case.
/4/ In this regard, the Authority discussed the precautions agency
management must take prior to conducting interviews of unit employees in
preparation for third party proceedings. The Authority found, from the
facts of the case, that the manner in which the employees were
questioned did not constitute an independent violation of section
7116(a)(1) of the Statute. Thus, the employees had been advised prior
to the meetings as to their purpose, that they were under no obligation
to be interviewed and that they would not be subject to reprisals from
agency management regardless of whether they consented to be
interviewed. Moreover, the Authority concluded that the General Counsel
had not established that the questioning of employees was done in a
coercive context or exceeded its legitimate scope and purpose of
otherwise interfered with employees' rights under the Statute.
/5/ Section 7103(a)(9) provides that:
(9) 'grievance' means any complaint--
(A) by any employee concerning any matter relating to the
employment of the employee;
(B) by any labor organization concerning any matter relating to
the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement; or
(ii) any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment(.)
/6/ In this regard, the House Committee on Post Office and Civil
Service noted in its Report accompanying H.R. 11280 with regard to the
definition of "grievance" in section 7103(a)(9), which is identical to
that contained in section 7103(a)(9) of the Statute:
It should be noted that, although this subsection is virtually
all-inclusive in defining "grievance," section 7121 excludes
certain grievances from being processed under a negotiated
grievance procedure, thereby limiting the net effect of the term.
H.R. Rep. No. 95-1403, 95th Cong. 2d Sess. 40 (1978), reprinted in
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 686
(1979).
/7/ Sections 7121(d) and (e) state that:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also fails
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. Selection of
the negotiated procedure in no manner prejudices the right of an
aggrieved employee to request the Merit Systems Protection Board
to review the final decision pursuant to section 7702 of this
title in the case of any personnel action that could have been
appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in
any other matter involving a complaint of discrimination of the
type prohibited by any law administered by the Equal Employment
Opportunity Commission.
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other
personnel systems applicable to employees covered by this chapter
may, in the discretion of the aggrieved employee, be raised either
under the appellate procedures, if any, applicable to those
matters, or under the negotiated grievance procedure, but not
both. An employee shall be deemed to have exercised his option
under this subsection to raise a matter either under the
applicable appellate procedures or under the negotiated grievance
procedure at such time as the employee timely files a notice of
appeal under the applicable appellate procedures or timely files a
grievance in writing in accordance with the provisions of the
parties' negotiated grievance procedure, whichever event occurs
first.
(2) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, an arbitrator shall be
governed by section 7701(c)(1) of this title, as applicable.
/8/ Section 7114(a)(5) of the Statute provides that:
(5) The rights of an exclusive representative under the
provisions of this subsection shall not be construed to preclude
an employee from--
(A) being represented by an attorney or other representative,
other than the exclusive representative, of the employee's own
choosing in any grievance or appeal action; or
(B) exercising grievance or appellate rights established by
law, rule, or regulation; except in the case of grievance or
appeal procedures negotiated under this chapter.
/9/ Internal Revenue Service, Fresno Service Center, Fresno,
California, 7 FLRA 371 (1981); rev'd sub nom Internal Revenue Service,
Fresno Service Center, Fresno, California v. Federal Labor Relations
Authority, 706 F.2d 1019 (9th Cir. 1983).
/10/ Such a determination is consistent with those rights
specifically granted an exclusive representative under section 7121(b)
of the Statute and those granted employees under section 7114(a)(5) of
the Statute. Thus, section 7121(b) of the Statute provides an exclusive
representative the sole right to represent an employee in connection
with a grievance filed pursuant to a negotiated grievance procedure and
it provides an exclusive representative the right to be present during a
negotiated grievance proceeding should the employee elect to present a
grievance on his own behalf, while section 7114(a)(5) of the Statute
gives an employee the option of being represented by an attorney or by a
representative of the employee's own choosing, other than the exclusive
representative. In any grievance or appellate action initiated in any
forum other than through a negotiated grievance procedure.
Section 7121(b) of the Statute provides that:
(b) Any negotiated grievance procedure referred to in
subsection (a) of this section shall--
(1) be fair and simple,
(2) provide for expeditious processing, and
(3) include procedures that--
(A) assure an exclusive representative the right, in its own
behalf or on behalf of any employee in the unit represented by the
exclusive representative, to present and process grievances;
(B) assure such an employee the right to present a grievance on
the employee's own behalf, and assure the exclusive representative
the right to be present during the grievance proceeding; and
(C) 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.
/11/ In his sectional analysis of the "Udall substitute,"
Representative Udall, in describing the proposed section 7114 stated:
The reported section 7114 provides the right of representation
for any discussion between one or more representatives of the
agency and one or more unit employees or their representatives
concerning any grievance, personnel policy or practice, or other
conditions of employment. By inserting the word "general" before
"conditions of employment," the substitute limits the right of
representation to those formal discussions (other than grievance
discussions) which concern conditions of employment affecting
employees in the unit generally. 124 Cong.Rec. 29184 (1978).
/12/ The thrust of our colleague's theory in dissenting on this point
is that since Respondent's action in terminating Murphy must have been
based on the application of a personnel policy or practice, it follows
that an interview of a witness to the event which ultimately led to the
termination necessarily "concerned" this same underlying personnel
policy or practice. Given the facts of this case, such an analysis is
strained at best. While the Respondent's action in terminating Murphy
may have been taken pursuant to some personnel or practice of Respondent
(and this is not at all clear from the record), we cannot find that an
interview, in preparation for an MSPB hearing, of a witness to an event
which led to the termination was a discussion concerning this same
personnel policy or practice. Any connection between the policy and the
interview is simply far too attenuated.
/13/ See n. 11, supra.
/14/ See, e.g., Department of Health and Human Services, Social
Security Administration, Bureau of Field Operations, San Francisco
Region, 10 FLRA 120 (1982); Veterans Administration Medical and
Regional Office Center, Cheyenne, Wyoming, 13 FLRA No. 70 (1983);
Department of Health and Human Services, Social Security Administration,
14 FLRA No. 5 (1984); Defense Logistics Agency, Defense Depot Tracy,
Tracy, California, 14 FLRA No. 78 (1984); Department of Health and
Human Services, Social Security Administration, San Francisco Region,
San Francisco, California, 14 FLRA No. 96 (1984), wherein the Authority
applying a number of factors relevant to a determination of whether
meetings are in fact "formal" in nature, concluded that on the basis of
the facts in the record it had not been established that the meetings in
question were formal discussions within the meaning of section
7114(a)(2)(A) of the Statute.
/15/ While the interview may also have concerned general conditions
of employment, I find it unnecessary to decide this issue in light of my
conclusion that the interview concerned a personnel policy or practice
affecting employees in the unit generally.
/16/ See Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), in which the Authority identified some of the
factors to be considered in determining whether a meeting is "formal" in
nature; and Defense Logistics Agency, Defense Depot Tracy. Tracy,
California, 14 FLRA No. 78 (1984), wherein the Authority held that the
totality of facts and circumstances presented in each case will be
considered in determining formality. See also Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 15 FLRA No. 15 (1984) wherein the Authority found a
meeting to be a formal discussion, noting among other things that the
staff meeting was called and conducted by the Branch Office Manager and
that the branch employees were required to attend; Internal Revenue
Service (District, Region, National Office Unit), 11 FLRA No. 23 (1983)
aff'd sub nom. National Treasury Employees Union v. Federal Labor
Relations Authority, No. 83-1295 (D.C. Cir. Jan. 26, 1984), in which the
Authority concluded that interviews with unit employees which were
initiated by management; were conducted by management officials with a
number of unit employees; required attendance of the employees; and
followed a formal agenda were formal within the meaning of the Statute;
and Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 10 FLRA 172 (1982), wherein the
Authority found meetings with a unit employee to be formal discussions
based o4 the fact that the meetings were structured in accordance with
the requirements of the parties' negotiated grievance procedure, and
that records of the meetings were made and copies given to the employee
involved.
15 FLRA 86; FLRA 8-CA-20268; July 31, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4800. Otherwise Refuse to Comply with Statute
DIGEST NOTES
The Authority found that the agency violated Sec. 7116(a)(1) and (5)
of the Statute when it merged two bargaining units, following the
expiration of the parties' agreement, and allowed the union only one
representative despite the union's notification of its intention to
designate separate sector representatives at the agency's San Diego
office and what had previously been the Long Beach office. It is
established that: (1) following the expiration of an agreement, either
party may terminate matters in the agreement relating to permissive
subjects of bargaining; (2) a union has the statutory right to
designate its own representatives when dealing with agency management in
the performance of its responsibilities under the Statute; and (3) a
union may elect to bargain over such a matter, which is permissive in
nature. The designation of sector representatives contained in the
parties' expired agreement constituted a permissive subject of
bargaining. Consequently, while the agency may have elected to bargain
over such a matter and incorporate the agreed-upon provisions in the
terms of a collective bargaining agreement, once that agreement expired,
the union was then free to terminate that particular practice.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
SAN DIEGO, CALIFORNIA
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Case No. 8-CA-20268
The Administrative Law Judge issued his 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, the General
Counsel and the Charging Party 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 hereby adopts the
Judge's findings, conclusions and recommended Order, as modified below.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by refusing to recognize representatives
designated by the Professional Airways Systems Specialists (PASS). The
Respondent takes the position that its action was consistent with
provisions contained in a collective bargaining agreement relative to
the designation of union representatives.
In 1981, PASS was certified as the exclusive representative for a
unit of employees previously represented by the Federal Aviation Science
and Technological Association (FASTA). The Respondent and FASTA had
negotiated an agreement in 1977, with a two-year duration and automatic
annual renewals thereafter, which provided for the designation of
representatives consistent with the Respondent's organization structure.
Specifically, Article 7, Section 3 of that agreement provided as
follows:
In addition, the Union may designate one sector representative
at each airway facilities sector. The designation shall be in
writing. At the sector representative's option, he/she may
designate, in writing, an alternate to act for him/her when he/she
is absent. Only the sector representative, or in his/her absence
the designated alternate, may deal with the sector manager and/or
his/her designee. During any meeting where the sector manager is
accompanied by other management representatives, the sector
representative may be accompanied by his/her designated alternate
or other representatives so as to allow the Union the same number
of participants at the meeting.
Following its certification, PASS notified the Respondent that it
would be represented by one representative for the Airway Facilities
Sector (AFS) located in San Diego, and one representative for the Long
Beach AFS. Subsequently, the Respondent merged the Long Beach AFS into
the San Diego AFS. PASS advised the Respondent that it would continue
to be represented by separate representatives for the San Diego AFS and
for what had previously been the Long Beach AFS. PASS in turn was
notified by the Respondent that it would only recognize one
representative, for the new San Diego AFS, in accordance with Article 7,
Section 3 of the FASTA agreement.
The Judge determined, relying on the Authority's Decision in U.S.
Nuclear Regulatory Commission, 6 FLRA 18 (1981), that the Respondent and
PASS were obligated to continue "to the maximum extent possible" the
practice of one representative per sector as established in Article 7,
Section 3 of the expired FASTA agreement, which the Judge found had
become a condition of employment. The Judge found, however, that the
Respondent, by merging the two sectors, had changed an underlying
condition of PASS' representation, thereby rendering it impossible to
follow literally the language of Article 7, Section 3 without impairing
rights which PASS had prior to the merger and which rights were
envisioned under that provision of the agreement. Accordingly, the
Judge found that under such circumstances PASS was free to insist upon
its representational rights under the Statute, including the right to
designate its own representatives, and that the Respondent's refusal to
recognize separate representatives therefore constituted a violation of
section 7116(a)(1) and (5) of the Statute.
In agreement with the Judge's conclusion, but for the reasons set
forth below, the Authority finds that the Respondent's conduct herein
was violative of section 7116(a)(1) and (5) of the Statute.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA No. 89 (1984), the Authority held, in part, that following
the expiration of an agreement, either party may terminate those matters
contained in their agreement relating to permissive subjects of
bargaining. That is, where agency management has elected to bargain
concerning a matter covered under section 7106(b)(1) of the Statute and
the parties have reached agreement thereon or where the parties have
reached agreement on a matter which is outside the required scope of
bargaining under the Statute, either party may elect not to be bound
thereby upon the expiration of the agreement. In that case, and in
Department of Transportation, Federal Aviation Administration, Los
Angeles, California, 15 FLRA No. 21 (1984), the Authority determined
that provisions related to a waiver of bargaining rights under the
Statute were permissive in nature and did not survive the expiration of
the agreement where one party exercised its right to terminate the
practice. In so finding, the Authority distinguished between permissive
subjects of bargaining which can be terminated by either party upon the
expiration of an agreement and those personnel policies, practices, or
other matters affecting working conditions, such as were identified in
Nuclear Regulatory Commission and the decisions cited therein, which
relate to negotiable conditions of employment and which continue
following the expiration of an agreement, to the maximum extent
possible, absent an express agreement to the contrary or unless modified
in a manner consistent with the Statute.
As to the nature of the bargaining obligation with respect to the
designation of union representatives, the Authority has previously held
that an exclusive representative has the statutory right to designate
its own representatives when dealing with agency management in the
performance of its responsibilities under the Statute, but that an
exclusive representative may elect to bargain over such a matter, which
is permissive in nature. See American Federation of Government
Employees, AFL-CIO, 4 FLRA 272 (1980). See also Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 10 FLRA 281 (1982). The Authority finds, in the instant case,
that the designation of sector representatives contained in Article 7,
Section 3 of the expired FASTA agreement constituted a permissive
subject of bargaining. Thus, while FASTA may have elected to bargain
over such a matter and incorporate the agreed-upon provisions in the
terms of a collective bargaining agreement, once that agreement expired,
the exclusive representative was then free to terminate that particular
practice. When PASS notified the Respondent of its intention to
designate separate sector representatives at the San Diego AFS and what
had previously been the Long Beach AFS, PASS was exercising its
statutory right to designate its own representatives and, at the same
time, was indicating that it no longer wished to be bound by the
practice which FASTA had elected to negotiate. Therefore, when the
Respondent refused to recognize PASS' designated representatives, it
violated section 7116(a)(1) and (5) of the Statute. /1/
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 Department of Transportation, Federal Aviation Administration,
San Diego, California, shall:
1. Cease and desist from:
(a) Refusing to recognize the representatives designated by the
Professional Airways Systems Specialists, the exclusive representative
of its employees.
(b) In any like or related manner interfering with restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its San Diego and Long Beach facilities, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Such forms shall be signed by the San Diego Airway
Facilities Sector Manager, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., July 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse to recognize the representatives designated by the
Professional Airways Systems Specialists, the exclusive representative
of our employees.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Activity)
By: (Signature) (Title)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071 and whose telephone number is: (213) 688-3805.
Malachy T. Coghlan, Esq. and
Gary W. Baldwin, Esq., on the brief
For the Respondent
Woody N. Peterson, Esq. and
Joseph E. Kolick, Jr., Esq., on the brief
For the Charging Party
Deborah S. Wagner, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq.
Upon an unfair labor practice charge filed by the Professional
Airways Systems Specialists (herein referred to as PASS or the Union) on
May 3, 1982 against the Department of Transportation, Federal Aviation
Administration, San Diego, California (herein referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region VIII, issued a Complaint and Notice of Hearing on
July 30, 1982 alleging Respondent violated section 7116(a)(1) and (5) of
the Statute by refusing to recognize the Union's designated
representative for the Long Beach, California, area.
A hearing on the Complaint was conducted on October 7, 1982 in Los
Angeles, California, at which time all parties were represented by
counsel and afforded full opportunity to adduce evidence, call, examine
and cross-examine witnesses and argue orally. Briefs were filed by all
parties and have been duly considered.
Upon the entire record in this matter, including the Stipulation of
Facts submitted by the parties, and from my evaluation of the evidence I
make the following findings of fact and conclusions of law:
Background and Events
On December 31, 1981 PASS was certified as the exclusive collective
bargaining representative for various of Respondent's employees
including employees located at Respondent's Airway Facilities Sectors
(AFS) in San Diego and Long Beach, California. /2/ Prior to PASS's
certification on December 31, 1981, the same employees were represented
by the Federal Aviation Science and Technological Association/National
Association of Government Employees (FASTA). While FASTA was the
employees' representative, it negotiated a collective bargaining
agreement with Respondent, effective 1977, which was still in effect
until PASS succeeded FASTA as the employees' representative.
In January 1982 the Union advised Respondent that it would be
represented by one representative for the San Diego AFS, and one
representative for the Long Beach AFS.
In April 1982 Respondent's Long Beach AFS merged into Respondent's
San Diego AFS and became a part of the San Diego AFS.
On or about April 26, 1982 the Union informed Respondent that upon
completion of the Long Beach-San Diego AFS merger, the Union would
continue to be represented by one representative for the San Diego AFS
and one representative for what was formerly the Long Beach AFS.
On or about April 26, 1982 Respondent, through John Tompkins, Sector
Manager at Respondent's San Diego AFS, notified the Union that upon
completion of the Long Beach-San Diego AFS merger, Respondent would
recognize only one representative for the new San Diego AFS.
Respondent, through Tompkins, advised the Union that he would not
recognize two sector level representatives for the newly formed San
Diego AFS, relying on Article 7, Section 3, of the collective bargaining
agreement between Respondent and FASTA, the former exclusive
representative. Individual unit level representatives would continue to
be recognized as in the past and as described in Article 7, Section 2(d)
of the FASTA contract.
Article 7 of the FASTA contract, entitled "Rights and
Responsibilities," provides, in relevant part:
"Section 1. The Employer agrees to recognize the officers and
duly designated representatives of the Union as established by
this agreement.
"Section 2.
(a) The Union may designate one representative and an alternate
for each field maintenance party office;
(b) The Union may designate up to three (3) representatives and
up to three (3) alternates in each FAA region for those employees
whose normal work site is in the regional office;
(c) The Union may designate one representative and an alternate
for each watch to deal with first and second level supervisors at
air route traffic control center sectors;
(d) The Union may designate one representative and one
alternate for each sector field office, radar unit, communication
unit, data unit, navaids unit, environmental support unit, and
combination unit, to deal with first and second level supervisors
at non-air route traffic control center sectors.
"Section 3. In addition, the Union may designate one sector
representative at each airway facilities sector. The designation
shall be in writing. At the sector representative's option,
he/she may designate, in writing, an alternate to act for him/her
when he/she is absent. Only the sector representative, or in
his/her absence the designate alternate, may deal with the sector
manager and/or his/her designee. During any meeting where the
sector manager is accompanied by other management representatives,
the sector representative may be accompanied by his/her designated
alternate or other representatives so as to allow the Union the
same number of participants at the meeting.
"Section 4. The Union may designate one regional
representative and one alternate to act in the absence of the
regional representative. . . .
"Section 15. Each Union representative or his/her designee
referred to in Section 2(a), 2(b), and Section 3 shall be granted
up to eight (8) hours of excused absence to receive orientation on
the meaning of the Articles of this agreement.
"Section 16. Union representatives shall be authorized to
perform and discharge on official time, if otherwise in a duty
status, the duties and responsibilities which may be assigned to
them under the terms of this agreement."
Discussion and Conclusions
Counsel for the General Counsel and counsel for the Union allege
Respondent violated the Statute when, after Long Beach and San Diego
were merged into one AFS, Respondent refused to continue to recognize a
separate representative for each location. Respondent contends its
actions were permissible in that: after the merger of Long Beach and
San Diego into one AFS, only one AFS remained; the terms of the FASTA
agreement were binding on Respondent and PASS; and pursuant to Article
7, Section 3 of the FASTA agreement, the Union was limited to one
representative per sector.
It has been long held under Executive Order 11491, as amended, and
the Statute that a union has the right to determine its own
representatives to deal with management. Internal Revenue Service,
Omaha District Office, 4 A/SLMR 494 (1974); Utah Army National Guard,
Salt Lake City, Utah, 8 A/SLMR 70 (1978); Philadelphia Naval Shipyard,
4 FLRA No. 38 (1980); American Federation of Government Employees,
AFL-CIO, 4 FLRA No. 39 (1980); and Department of the Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA
281 (1982). While under the Statute the selection of a representative
is not a matter over which a union is required to bargain with an
employer, it is nevertheless a permissive subject of bargaining. Thus,
in American Federation of Government Employees, AFL-CIO, supra, the
Authority found that a union did not violate the Statute when it refused
to bargain with an employer regarding proposals which generally required
the union "to designate its representatives from prescribed
organizational levels and segments when dealing with agency management
in the performance of certain representational functions." After holding
the proposal to be outside the union's required scope of bargaining, the
Authority stated:
"This is not to say, however, that a union may not, if it so
elects, bargain over such matters. Indeed, there is merit to
formalizing the bargaining relationship to the extent that it
would lead to stability at the workplace and, in fact, many
collective bargaining agreements in the Federal sector provide for
a formalized bargaining relationship."
Respondent, relying on the Authority's decision in U.S. Nuclear
Regulatory Commission, 6 FLRA 18 (1981), urges that the "bargaining
relationship" was formalized in Article 7, Section 3 of the FASTA
agreement and that agreement is binding on PASS. In Nuclear Regulatory
Commission the American Federation of Government Employees (AFGE)
represented various of the agency's employees and a negotiated agreement
gave AFGE the right to use bulletin boards, except for posting material
which reflected "adversely on individuals, organizations or activities
of the Federal Government." The National Treasury Employees Union (NTEU)
replaced AFGE as the certified collective bargaining agent and
thereafter the agreement between AFGE and the agency terminated.
Subsequently, the agency removed from bulletin boards material posted by
NTEU, citing the restrictions noted above contained in the negotiated
agreement between AFGE and the agency pertaining to adverse material.
NTEU filed an unfair labor practice charge and the General Counsel
issued a complaint contending the agency's actions unilaterally changed
existing conditions of employment and a past practice. The Authority
held:
" . . . the clause relating to bulletin boards in the expired
agreement created a condition of employment which remains binding
in its entirely despite the agreement's expiration and the change
of exclusive representative. In the Authority's opinion, the
purposes and policies of the Statute are best effectuated by a
requirement that existing personnel policies, practices, and
matters affecting working conditions to continue, to the maximum
extent possible, upon the expiration of a negotiated agreement,
absent an express agreement to the contrary or unless modified in
a manner consistent with the Statute. Such a result fosters
stability in Federal labor-management relations, which is an
underlying purpose of the Statute. See Department of Defense,
Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky, 4 FLRA No. 100 (1980); and Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA No. 5 (1980). We see no distinction in the
circumstances of this case where there had been a change in the
exclusive representative since the expiration of the agreement.
The stability of the new bargaining relationship is enhanced by a
required maintenance of existing personnel policies and practices,
and matters affecting working conditions pending the negotiation
of a new agreement."
I conclude that under Nuclear Regulatory Commission, Respondent and
PASS were obligated to continue "to the maximum extent possible" the
practice under Article 7, Section 3 which, like the clause relating to
bulletin boards in Nuclear Regulatory Commission, created a binding
condition of employment.
Counsel for the General Counsel and counsel for the Union would limit
the application of Nuclear Regulatory Commission by excluding its
application from any matter concerning a statutory right or the
statutory relationships between the parties. I see nothing in Nuclear
Regulatory Commission which suggests such a distinction. Indeed, the
language used by the Authority in that case points to a contrary
conclusion. Thus, as cited above, the Authority found in a similar
situation, that continuing the policies, practices and matters
concerning working conditions "to the maximum extent possible", fosters
stability in labor management relations. Such language is quite broad
and I discern nothing therein which would indicate the principle would
not be applicable when the issue is one of honoring a union's
contractual commitment regarding its "bargaining relationship." While,
as counsel for the Union points out, this approach may well be different
from that followed under the National Labor Relations Act, there is no
indication given in Nuclear Regulatory Commission that the Authority is
inclined to approach the matter in a manner whereby the express waiver
of a statutory right concerning a union's relationship with an employer
would be treated differently from any other contractual term and
condition of employment. /3/
However, Respondent herein revised its organizational design after
PASS became the collective bargaining agent of Respondent's employees by
changing two independent Sectors into one when the Long Beach AFS and
San Diego AFS were merged into the San Diego AFS. Thus, Respondent's
organizational arrangement on which the "bargaining relationship" was
originally based substantially changed an underlying condition for the
Union's representation of employees. The Authority in Nuclear
Regulatory Commission did not hold that conditions of employment should
be maintained without limitation. Rather, the Authority held that such
conditions of employment should be continued "to the maximum extent
possible."
I conclude in the case herein that it is not possible to follow
literally the language of Article 7, Section 3 of the agreement without
seriously impairing a right the Union had at the time the personnel
policies and matters affecting conditions of employment under the FASTA
agreement were transferred to PASS. When the FASTA agreement was
executed the representational arrangement was obviously coextensive with
Respondent's organizational structure. Under the FASTA agreement the
parties clearly envisioned separate representatives for the two
locations and indeed, in January 1982 PASS notified Respondent that it
would utilize separate representatives. However, the merger by
Respondent destroyed an essential condition directly relating to the
Union's representational rights. Since the employer's reorganization no
longer made it possible to give effect to Article 7, Section 3 and
respect the Union's representational rights as envisioned under the
agreement as executed, the Union was thereafter free to insist on its
representational rights under the Statute relative to how it wished to
represent employees at the Long Beach and San Diego locations.
Viewed another way, the practice regarding representation, regardless
of the literal language Article 7, Section 3, was to have separate Union
representatives at Long Beach and San Diego. Under Nuclear Regulatory
Commission, the Authority held that personnel policies, practices and
matters affecting working conditions should continue in effect after the
expiration of a contract "to the maximum extent possible," which
continuance "fosters stability in Federal labor-management relations."
Thus, the object of continuing to maintain existing personnel policies,
practices and matters affecting working conditions is to foster
stability in labor-management relations. It seems clear that keeping
available a Union representative to assist in the resolution of disputes
at each of the Long Beach and San Diego facilities would be more
conducive to fostering labor-management stability than to adhere to a
literal interpretation of Article 7, Section 3 of the agreement.
Approached from this perspective I would conclude that Respondent was
obligated to continue recognizing separate Union representatives at the
Long Beach and San Diego facilities "absent an express agreement to the
contrary or unless modified in a manner consistent with the Statute."
Nuclear Regulatory Commission, supra.
Respondent also suggests, by reference to Department of
Transportation, Federal Aviation Administration, Western Region, 7
A/SLMR 972 (1977), that the matter of refusing to recognize the Union's
representative concerns a differing and arguable interpretation of the
parties' negotiated agreement and, as such, should not be deemed
violative of the Statute. However, in the case herein the underlying
issue concerns the effect of a changed condition on the applicability of
a prior employment practice and not merely a matter of interpretation of
the agreement FASTA had with Respondent. Therefore, I reject
Respondent's argument.
Accordingly, in the circumstances herein I conclude that Respondent,
by refusing to recognize separate Union representatives at both the Long
Beach and San Diego facilities, has violated section 7116(a)(1) and (5)
of the Statute.
Having found that Respondent has engaged in conduct prohibited by
section 7116(a)(1) and (5) of the Statute, I recommend that the
Authority issue the following:
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Transportation, Federal
Aviation Administration, San Diego, California, shall:
1. Cease and desist from:
(a) Refusing to recognize separate representatives at the Long
Beach and San Diego facilities designated by the Professional
Airways Systems Specialists, the exclusive representative of its
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 Federal Service Labor-Management Relations
Statute:
(a) Post at its Long Beach and San Diego 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 Airway Facilities Sector Manager 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 Sector
Manager shall take reasonable steps to insure 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 that Regional Director, Region VIII, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: March 14, 1983
Washington, D.C.
WE WILL NOT refuse to recognize separate representatives at the Long
Beach and San Diego facilities designated by the Professional Airways
Systems Specialists, the exclusive representative of our employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Agency or Activity)
BY: (Signature)
DATED: . . .
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 VIII, Federal Labor Relations Authority, 350
South Figueroa Street, 10th Floor, Los Angeles, California 90071, and
whose telephone number is: (213) 688- 3805.
/1/ Under these circumstances, and contrary to the Judge, the
Authority finds it unnecessary to pass upon the effect, if any, of the
Respondent's merging the Long Beach AFS into the San Diego AFS on PASS'
designation of representatives.
/2/ Some of these preliminary facts are taken from non-controversial
evidence received in a companion case litigated by the parties before
the undersigned on the same day the case herein was heard. Department
of Transportation, Federal Aviation Administration, Los Angeles,
California, (8-CA-20260, OALJ-83-64, March 11, 1983).
/3/ Counsel for the General Counsel also argues that where either
party to an agreement entered into before the effective date of the
Statute objects to a continuation of a provision which is inconsistent
with the Statute, then that provision will be deemed unenforceable,
citing Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 10 FLRA 172 (1982). The argument
is without merit since the provision under consideration herein is not
inconsistent with the Statute. A union's right to designate its own
representative and to elect to formalize that right in a collective
bargaining agreement was not affected by the Statute. Cf. American
Federation of Government Employees, AFL-CIO, supra and Department of
Transportation, Federal Aviation Administration, Western Region, 7
A/SLMR 972 (1977).
15 FLRA 85; FLRA O-NG-570; July 31, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2600. Conditions for Review
2601. Proposal Alleged to be Inconsistent with Federal Law
DIGEST NOTES
A proposal is nonnegotiable which requires that the agency authorize
the payment of per diem and/or travel expenses for the purpose of taking
the Certified Public Accountant (CPA) examination. The Training Act (5
U.S.C.Chapter 41) is the basic authority for use of appropriate funds to
train government employees. Examinations which are not an integral part
of a course of instruction, or an examination process which is not
itself designed to impart knowledge and skills to examinees, are not
within the definition of "training" in the Act. Thus, it appears that
the CPA examination is not covered by the Training Act and there is no
authorization for reimbursement of such costs consistent with law.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3529
and
DEFENSE CONTRACT AUDIT AGENCY
CHICAGO, ILLINOIS
Case No. O-NG-570
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
relating to the negotiability of the following Union proposal:
F. Absence from duty for taking the CPA and Bar Examinations
will be authorized without loss of pay or charge to leave, as it
has been determined that such professional qualifications are in
the best interests of the Agency. Excused absence may be
authorized for taking other types of professional examinations
upon the determination by the Regional Director that such
professional qualification is in the best interest of the Agency.
Excused time will include time required to travel to and from the
point of the examination (and any other required personal
attendance), but not to exceed a total of sixteen (16) hours
travel time. Per diem and/or travel expenses will be authorized
to sit for the CPA Examination.
Upon careful consideration of the entire record, the Authority makes
the following determination. /1/ The Union proposal requires that the
Agency authorize the payment of per diem and/or travel expenses for the
purpose of taking the Certified Public Accountant (CPA) examination.
The Agency contends the proposal is nonnegotiable based on National
Treasury Employees Union and Department of the Treasury, Internal
Revenue Service, 6 FLRA 508 (1981). In that case, Proposal 1 had the
effect of reimbursing attorneys for all costs incurred in attending
continuing legal education courses. The Authority held that the
proposal violated Federal law and therefore was outside the duty to
bargain under section 7117(a)(1) of the Statute. In so holding, the
Authority noted that the Training Act (5 U.S.C.Chapter 41) established
the legal basis for reimbursement. Specifically, that Act limits
reimbursement to necessary expenses for training directly related to
official duties.
The Union contends that the Training Act, and thereby the decision in
Internal Revenue Service, is inapposite to the issue here of whether an
agency may authorize payment of per diem and/or travel expenses incident
to taking the CPA examination because the Union contends the CPA
examination is not subject to the special requirements established for
training under that Act.
The Training Act, as stated previously, is the basic authority for
use of appropriated funds to train government employees. /2/
Examinations which are not an integral part of a course of instruction,
or an examination process which is not itself designed to impart
knowledge and skills to examinees, are not within the definition of
"training" in the Act. /3/ However, the fact that the examination in
question is not covered by the Training Act means that there is no
authorization for reimbursement of such costs consistent with law. /4/
It would appear, based upon the facts in this case, that the examination
herein is not "training" reimbursable under the Training Act.
Therefore, based on Internal Revenue Service and the reasons stated
therein, the Authority concludes that the instant proposal would
conflict with the statutory limitations of the Training Act as
implemented by relevant regulation and is outside the duty to bargain as
inconsistent with that law.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10), IT IS ORDERED that the petition for review
be, and it hereby is, dismissed.
Issued, Washington, D.C., July 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency requests that the Authority dismiss the Union's
petition for review. It contends that the Authority does not have the
jurisdiction to decide the instant case because the Comptroller General
is the final arbiter in matters of pay. However, under the Statute, the
Authority has complete authority to decide all issues concerning the
negotiability of a union proposal. Accordingly, the Agency's request
for dismissal of the Union's petition on this basis is denied.
/2/ 55 Comp.Gen. 759, 760 (1976) and Comptroller General Decision,
B-187525 (Oct. 15, 1976).
/3/ 5 U.S.C. 4101(4) provides as follows:
(4) "training" means the process of providing for and making
available to an employee, and placing or enrolling the employee
in, a planned, prepared, and coordinated program, course
curriculum, subject, system, or routine of instruction or
education, in scientific, professional, technical, mechanical,
trade, clerical fiscal, administrative, or other fields which are
or will be directly related to the performance by the employee of
official duties for the Government, in order to increase the
knowledge, proficiency, ability, skill, and qualifications of the
employee in the performance of official duties(.)
In this regard, see Comptroller General decisions, note 2, supra;
see also Federal Personnel Manual (FPM) Chapter 410, 6-3d(5)(a), which
states, in pertinent part:
(a) An examination fee may be paid if the examination is used
as a diagnostic tool to determine deficiencies in knowledges and
skills needed by an employee for the performance of official
duties so as to ascertain his/her training needs when the agency
is unable to determine those needs through supervisory evaluation
or other available agency appraisal system or when such evaluation
or appraisal system would be more costly. The cost of an
examination would not otherwise be payable except when the cost of
the examination is inextricably mixed with the cost of a program
of training or when the examination process itself is designed to
impart knowledges and skills to the examinee(.)
/4/ See 55 Comp.Gen. 759, 760-61, which states:
While 5 U.S.C. 4109 . . . authorizes agency payment of some or
all training costs, and while the implementing regulation
contained in the Federal Personnel Manual, ch. 410, Sec. 6-1(a)
permits an agency head to define "necessary training expenses" for
the purpose of payment of those expenses, an agency head is not
authorized to expand the statutory definition of "training" or to
pay for items not contemplated by that definition. Because an
examination such as the one here involved (bar examination) does
not fall within the definition of training, no reimbursement is
possible for fees charged for an examination or for allied costs,
such as travel and per diem, incurred while taking an exam which
is not part of a regular course of instruction.
15 FLRA 84; FLRA O-AR-497; July 31, 1984.
DIGEST HEADINGS
ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation
DIGEST NOTES
The dispute in this matter concerned the filling of a GS-12 Railroad
Safety Inspector (Hazardous Materials) position. The arbitrator found
that the agency had a duty under the parties' agreement to give special
consideration to unit employees who applied for voluntary reassignments
to different geographical locations. The arbitrator determined that the
agency failed to give special consideration to the internal candidates
and had considered the fact that it would have to pay the moving
expenses of internal candidates as a reason for their nonselection. The
arbitrator, consequently sustained the grievance and directed that the
agency reassign the grievant, if he desired, and pay appropriate
expenses. The agency filed exceptions. The Authority found that the
award was defective as it: (1) directed the agency to reassign the
grievant to Fort Worth, an action contrary to Sec. 7106(a)(2)(A) of the
Statute; and (2) directed the agency to vacate its selection and select
the grievant for the Fort Worth position, an action contrary to Sec.
7106(a)(2)(C) of the Statute. The Authority accordingly modified the
award to provide for rerunning the selection and to provide that any
action involving the incumbent employee must be in accordance with Sec.
7106(a) of the Statute and the corrective action provisions of the
Federal Personnel Manual, chapter 335, appendix A, section A-4B.
UNITED STATES DEPARTMENT
OF TRANSPORTATION, FEDERAL
RAILROAD ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2814
Case No. O-AR-497
This matter is before the Authority on exceptions to the award of
Arbitrator Seymour Strongin filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations.
The dispute in this matter concerned the filling of a GS-12 Railroad
Safety Inspector (Hazardous Materials) position in Fort Worth, Texas.
The list of "Best Qualified" applicants included two external
candidates, i.e., applicants who were not employed by the Agency, and
three internal candidates, i.e., Agency employees. The dispute arose
when the Agency selected one of the external candidates to fill the
position rather than the grievant, the most senior of the internal
candidates.
The Arbitrator found that while the Agency had a statutory right to
make a selection from any appropriate source, the Agency also had a duty
under the parties' collective bargaining agreement to give special
consideration in filling vacancies to unit employees who applied for
voluntary reassignments to different geographical locations. The
Arbitrator determined that the Agency not only failed to give special
consideration to the internal candidates for the Fort Worth vacancy as
required by the parties' agreement, but considered the fact that it
would have to pay the moving expenses of the internal candidates as a
reason for their nonselection. The Arbitrator therefore sustained the
grievance and directed that the Agency reassign the grievant, if he
desires, to Fort Worth with payment of appropriate expenses. The
Arbitrator further provided that the Agency could then fill the vacancy
created by the grievant's reassignment in an appropriate manner and that
the present incumbent of the Fort Worth position could either fill that
vacancy or eventually be placed in another available and appropriate
position.
In its exceptions, the Agency contends, among other things, that the
award violates section 7106(a) of the Statute. The Authority agrees.
It is well-established that an arbitrator's award may not interpret
or enforce a provision of a collective bargaining agreement so as to
deny the authority of an agency to exercise its statutory rights under
7106(a) of the Statute, or so as to result in the substitution of the
arbitrator's judgment for that of the agency in the exercise of those
rights. Veterans Administration Hospital, Lebanon, Pennsylvania and
American Federation of Government Employees, AFL-CIO, Local 1966, 11
FLRA No. 43 (1983). Section 7106(a)(2)(A) of the Statute reserves to
management officials the right to assign employees. Section
7106(a)(2)(C) reserves to management the right in filling positions to
make selections from among properly ranked and certified candidates or
from any other appropriate source.
Thus, in terms of this case, while the Arbitrator had considerable
latitude in fashioning a remedy for the Agency's violation of the
parties' agreement, his award is deficient in two respects. First, to
the extent the award directs the Agency to reassign the grievant to Fort
Worth the award is contrary to section 7106(a)(2)(A) and second, to the
extent the award directs the Agency to vacate its selection and select
the grievant for the Fort Worth position the award is contrary to
section 7106(a)(2)(C).
Therefore, the Arbitrator's award is modified to provide the
following remedy in place of that ordered by the Arbitrator:
The Agency shall rerun the selection action for the Railroad
Safety Inspector (Hazardous Materials) GS-12 position in Fort
Worth, Texas. The rerunning of the selection action by the Agency
and any action involving the incumbent employee must fully conform
with controlling law and regulation and the parties' collective
bargaining agreement. More particularly, the rerunning of the
selection action and any action involving the incumbent employee
must be in accordance with section 7106(a) of the Federal Service
Labor-Management Relations Statute and the corrective action
provisions of Federal Personnel Manual chapter 335, appendix A,
section A-4b.
Issued, Washington, D.C., July 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
15 FLRA 83; FLRA O-AR-742; July 27, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limits for Filing Exceptions
DIGEST NOTES
A request for clarification which, as in this case, does not result
in a modification of the award by the arbitrator, does not alter the
time limits for filing exceptions with the Authority. Thus the period
in which a party may file exceptions to the arbitrator's award began on
the date the award was served on the filing party. Since the agency did
not file its exceptions with the Authority within the prescribed time
period, its exceptions were untimely filed and the Authority dismissed
the agency's exceptions.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1547
and
DEPARTMENT OF THE AIR FORCE,
LUKE AIR FORCE BASE, ARIZONA
Case No. O-AR-742
This case is before the Authority on exceptions to the award of
Arbitrator David Goodman filed on behalf of the Activity by the
Department of the Air Force (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 reasons stated
below, it has been determined that the exceptions must be dismissed as
untimely filed.
The Arbitrator's award is dated September 23, 1983, and appears to
have been served on the parties by mail on the same day. A dispute
subsequently arose between the parties concerning the Activity's
compliance with the remedy ordered by the Arbitrator and the Union
requested assistance from the Arbitrator in an attempt to resolve the
matter. The Arbitrator responded by letter of March 1, 1984,
essentially advising the parties that the intent of the remedy set forth
in his September 23, 1983, award was clear. The Agency filed exceptions
with the Authority on March 30, 1984, asserting, among other things,
that the alleged deficiencies in the award arose with the Arbitrator's
letter of March 1, 1984.
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 of September 23, 1983, had to be filed with the
Authority no later than the close of business on October 28, 1983.
Thus, it immediately and clearly appears that the exceptions filed by
the Agency on March 30, 1984, are untimely. The Agency, however, takes
the position that its exceptions are timely, assertedly because the time
period began with the Arbitrator's response of March 1, 1984.
As the Agency recognizes, the Authority has held in the circumstances
of a case in which the arbitrator, in response to a clarification
request, modified the award in such a way as to give rise to alleged
deficiencies, that the filing period began with the modification. /3/
In this case, however, the Arbitrator did not modify his award. Rather,
as indicated above, the Arbitrator essentially advised the parties of
the clear intent of the award.
Thus, the time limits for filing exceptions to the Arbitrator's award
in this case began on the date the award was served on the parties,
i.e., September 23, 1983, and expired on October 28, 1983. Therefore,
the exceptions filed by the Agency on March 30, 1984, are untimely.
Accordingly, the Agency's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 27, 1984
Jan K. Bohren
Executive Director/Administrator
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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/ United States Department of the Interior, Bureau of Land
Management, Eugene District Office and National Federation of Federal
Employees, Local 1911, 6 FLRA 401, 403 n.2 (1981).
15 FLRA 82; FLRA O-AR-763; July 27, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limit for Filing Exceptions
DIGEST NOTES
As the union's exceptions were untimely filed and as the Authority is
not empowered to extend or waive the time limit for filing exceptions to
arbitrators' awards, the exceptions were dismissed.
U.S. ARMY ELECTRONICS RESEARCH
AND DEVELOPMENT COMMAND, FORT
MONMOUTH, NEW JERSEY
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
Case No. O-AR-763
This case is before the Authority on exceptions to the award of
Arbitrator Peter Florey 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 reasons stated
below, it has been determined that the exceptions must be dismissed as
untimely filed.
The Arbitrator's award is dated February 28, 1984, and appears to
have been served on the parties by mail on the same day. Subsequently,
the Union requested that the Arbitrator reconsider his denial of the
Union's request for attorney fees and the Agency requested that the
Arbitrator clarify other aspects of the award. The Arbitrator responded
by letter of March 30, 1984, essentially advising the parties that his
award was final and that he did not deem it necessary to either
reconsider the denial of attorney fees or to otherwise clarify the
award. The Union filed the instant exceptions with the Authority on
April 30, 1984.
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 with the Authority no
later than the close of business on April 2, 1984. Thus, it immediately
and clearly appears that the exceptions filed by the Union on April 30,
1984, are untimely. The Union, however, asserts that the award was not
final until the Arbitrator denied the Union's request for
reconsideration on March 30, 1984.
The Authority has held that a post-award request for clarification
and the mere possibility of modification of the award by the Arbitrator
does not deprive the award of finality and render the award
interlocutory. /3/ Similarly, the post-award requests of the parties in
this case did not render the Arbitrator's award interlocutory. The
Authority has also held in the circumstances of a case in which the
Arbitrator, in response to a clarification request, modified the award
in such a way as to give rise to alleged deficiencies, that the filing
period began with the modification. /4/ In this case, however, the
Arbitrator did not modify his award. Rather, as indicated above, the
Arbitrator simply advised the parties that his award of February 28,
1984, was final and denied the Union's request for reconsideration and
the Agency's request for clarification.
Thus, the time limits for filing exceptions to the award in this case
began on the date the award was served on the parties, i.e., February
28, 1984, and expired on April 2, 1984. Therefore, the exceptions filed
by the Union on April 30, 1984, are untimely.
Accordingly, the Union's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 27, 1984
Jan K. Bohren
Executive Director/Administrator
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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/ Portsmouth Naval Shipyard and Federal Employees Metal Trades
Council, AFL-CIO, 5 FLRA No. 28 (1984); American Federation of
Government Employees, AFL-CIO, Local 1612 and U.S. Department of
Justice, Bureau of Prisons, U.S. Medical Center for Federal Prisoners,
Springfield, Missouri, 6 FLRA 5 (1981).
/4/ United States Department of the Interior, Bureau of Land
Management, Eugene District Office and National Federation of Federal
Employees, Local 1911, 6 FLRA 401, 403 n.2 (1981).
15 FLRA 81; FLRA O-NG-995; July 24, 1984.
DIGEST HEADINGS
2500. NEGOTIABILITY: PROCEDURE
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the parties' duty to bargain.
Accordingly, the Authority dismissed the petition for review.
FEDERAL EMPLOYEES METAL TRADES COUNCIL
and
PORTSMOUTH NAVAL SHIPYARD
Case No. O-NG-995
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record before the Authority in this case indicates that during
the course of negotiations, the Activity declared a Union proposal
concerning the use of annual leave by employees not required for work
during the holiday curtailment period covering November 23, December 24
and December 31, 1984, to be nonnegotiable. The Union filed the instant
petition for review with the Authority, pursuant to section 2424.3 of
the Authority's Rules and Regulations, as to whether the disputed
proposal was within the duty to bargain. Subsequently in a letter to
the Authority dated June 26, 1984, the Department of the Navy (the
Agency) withdrew the Activity's allegation of nonnegotiability.
Since the Agency has withdrawn the 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.
Accordingly, and apart from other considerations, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 24, 1984
Jan K. Bohren
Executive Director/Administrator
15 FLRA 80; FLRA 8-CA-1195; July 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4800. Otherwise Refuse to Comply with Statute
DIGEST NOTES
The Authority adopted the ALJ's decision that the agency, after
giving assurances that none of the information contained in a statement
given by an employee would be used against him in any administrative
proceeding initiated by the agency, did not violate Sec. 7116(a)(1) and
(8) of the Statute when it denied his request for union representation
and conducted an investigatory interview. An agency's express grant of
immunity is sufficient to dispel any reasonable fear of disciplinary
action directed toward the employee based on his statement at the
interview. Consequently, no need existed for union representation at
the meeting and the denial of representation was not violative of Sec.
7114(a)(2)(B) of the Statute.
U.S. IMMIGRATION AND NATURALIZATION
SERVICE, SAN DIEGO, CALIFORNIA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2544
Case No. 8-CA-1195
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. Exceptions were filed by the General
Counsel and the Charging Party.
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, conclusions and recommendation that the complaint
alleging a violation of section 7116(a)(1) and (8) of the Statute be
dismissed. /1/
IT IS ORDERED that the complaint in Case No. 8-CA-1195 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Richard T. Linnemann, Esq.
For the Respondent
Patricia F. Mayer, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute or Act). It is based on a
charge filed on July 1, 1981 by American Federation of Government
Employees, AFL-CIO, Local 2544 (herein called the Union), against United
States Immigration and Naturalization Service, San Diego, California
(herein called the Respondent).
A Complaint and Notice of Hearing, based on said charge, was issued
on October 31, 1981 by the Regional Director for the Federal Labor
Relations Authority, Los Angeles, California Region. The said Complaint
alleged, in substance, that on or about April 9, 1981 Respondent failed
to comply with 5 U.S.C. 7114(a)(2)(B)(i)(ii) by denying the request of
employee Gregory Reed for union representation during the conduct by
Respondent's agents of an investigatory interview of said Reed, as well
as conducting the interview, despite the denial of such request - all in
violation of Section 7116(a)(1) and (8) of the Statute herein.
Respondent filed an answer dated November 20, 1981 in which it
admitted Reed was denied union representation as alleged, but it averred
that the employee was granted immunity from administrative or
disciplinary action based on his answers in connection with said
investigation, and thus Reed was not entitled to such representation.
The alleged violations of Section 7116(a)(1) and (8) of the Statute were
denied in Respondent's answer.
A hearing was held before the undersigned on March 22, 1982 at San
Diego, California. All parties were represented thereat, and 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. /2/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
1. Respondent operates border patrol sectors with stations at
various locations throughout the United States. The station involved in
this proceeding is located at Tucson, Arizona. Employed thereat are 25
patrol agents and 3 supervisors. A regional commissioner is responsible
for the operation of particular sectors, and said individual reports to
the Commissioner of the Immigration and Naturalization Service.
2. At all times material herein the Union has been, and still is,
the exclusive representative of employees assigned to the Border Patrol
Sectors, including the Border Patrol Agents stationed at Tucson,
Arizona. /3/
3. The Office of Professional Responsibility (OPR) is the internal
investigative branch of the U.S. Immigration and Naturalization Service.
It is responsible for investigating alleged misconduct on the part of
employees of INS. The Director of OPR reports to the Commissioner of
the Service.
4. Conduct of the Border Patrol Agents is regulated by provisions
contained in the Operations Instructions of the Service - 287.10, (G.C.
Exhibit No. 3) which sets forth the obligations of the employees to
report any acts of misconduct committed by fellow agents. The
Instructions also refers to disciplinary action which could be taken
against employees who fail to report such misconduct.
5. The general practice, as followed by OPR investigators who are
investigating alleged misconduct, is to interview agents regarding the
allegations, write a report of their findings, and submit same to the
regional and central offices. The interviewers also reach conclusions
regarding their findings, and they make recommendations as to whether
disciplinary action should be taken. Disciplinary measures are
determined by the Deputy Chief Patrol Agent at the sector level. /4/
6. In the spring of 1981 certain allegations were made concerning
possible misconduct on the part of the Border Patrol Agents at Tucson,
Arizona. The alleged misconduct involved the following: (a) failure by
an agent, who was allegedly drinking, to make a report of the theft of a
Border Patrol vehicle by a Border Patrol Agent; (b) drinking at the
Tucson Patrol Sector; (c) sexual activities by Patrol Agents with
females which occurred on the premises during a drinking party. /5/
7. Arrangements were made for four OPR investigators to interview
the Patrol Agents allegedly involved in such misconduct at Tucson during
March and April, 1981. Seven such agents at Tucson were to be
interviewed by the OPR representatives. Respondent notified the Patrol
Agents, in writing, that they were required to appear before OPR
investigators at an administrative investigation and give testimony
regarding alleged misconduct as specified. /6/
8. On April 9, 1981 Patrol Agent Gregory Reed reported for duty at
the Tucson Sector. His supervisor directed him to report to the sector
headquarters and talk to OPR representatives. En route thereto Reed met
Marvin J. Foust, President of the Union. Since Reed assumed /7/ the OPR
men would be questioning him as to the alleged misconduct by fellow
agents, he asked Foust to come along and act as his union
representative. At headquarters they met OPR investigators Anthony
Medici and Patrick Comey who informed Reed they wished to take a
statement from him as a witness to alleged misconduct by other Patrol
Agents. Medici and Comey asked why Foust was present, and Reed replied
that Foust was his union representative. The OPR investigators stated
that Reed would be given immunity from disciplinary action; that the
statement would not be used as a basis for any such discipline, although
the immunity did not extend to criminal violations. They informed Reed
that, in view of the immunity, he could not have a union representative
present at the interview. Further, Reed was advised that if he refused
to give a statement freely and voluntarily, he could be charged with
insubordination. Reed continued to declare that he wanted union
representation.
9. Since neither Reed nor Foust ever heard of the immunity to be
given the employee, and had not received anything in writing prior to
April 9, Foust left to call the Union's Vice-President. Upon his return
to the room, Foust attempted to accompany Reed during the investigation
but was told to leave. The employee repeated his request for union
representation. It was denied and Reed agreed to give a statement under
protest. /8/
10. After Foust departed from the room Medici and Comey commenced
their investigation which took the form of questions posed to Reed and
answers elicited from him. All of such queries and responses, as well
as comments made by the participants, were taped. /9/ At the outset the
OPR representatives informed Reed they desired to take his statement
regarding his knowledge of the October 13, 1980 incident in which
unauthorized civilian females were at the Tucson, Arizona Sector
Headquarters, their possible sexual activity with Border Patrol Agents
thereat, and the consumption of alcoholic beverages at the time by the
agents and the said civilian females. The OPR men also stated to Reed,
in part, as follows:
"No administrative proceedings will be instituted against you
on the basis of any statement you make in the interview.
Therefore, any statement you make relative, make at this time
relative to the aforementioned allegations of misconduct and the
fruits thereof will not be used against you in any administrative
proceeding initiated by the Service."
11. The interview of Reed lasted about one hour. While it was in
progress Foust spoke to Deputy Chief Patrol Agent Edwin W. Barnette and
related what had transpired. Barnette stated that Medici and Comey
could not grant administrative immunity; that Barnette was the
disciplinary officer, and the OPR representatives had no authority to
grant the immunity. Whereupon Barnette, accompanied by Foust, went to
confer with OPR Associate Deputy Director Howard Dobbs. The Union
representative asked Dobbs to show him something in writing which would
support OPR's right to grant administrative immunity. Dobbs showed
Foust a page in a book which made reference to such immunity. /10/ The
Associate Deputy Director went into the interviewing room. He asked
Reed if use immunity had been explained to him and that he was not a
subject of the investigation. Reed acknowledged this had been done.
12. In respect to the basis for granting administrative immunity to
Patrol Agent Reed, OPR official Dobbs testified that he relied upon the
memorandum dated June 26, 1979 addressed to PRR Investigators from OPR
Director Paul N. Kirby. This memo (Respondent's Exhibit No. 4) set
forth an example of a recent investigation whereat a witness feared
possible disciplinary action if he testified, and the witness therefore
invoked "Weingarten". /11/ Kirby's memo explained that "use immunity"
was granted the individual, thus removing the "Weingarten" entitlement.
Dobbs further testified that he also relied upon a document
(Respondent's Exhibit No. 5) which he considered to be a "bargaining
proposal" by management regarding granting immunity to a witness who has
a reasonable basis for believing his testimony may subject him to
disciplinary action. He deemed that this represented management's
position in this regard.
General Counsel contends that the refusal by Respondent to allow
employee Gregory Reed to have a union representative present at the
investigative interview on April 9, 1981 was violative of Section
7116(a)(1) and (8) of the Statute. It posits this contention on the
right accorded such employee under Section 7114(a)(2)(B)(i) of the
Statute, as well as the decisional law enunciated in NLRB v. Weingarten,
supra (footnote 11). With respect to the immunity from any disciplinary
action based on Reed's statement, which was accorded him by Respondent,
the General Counsel insists it should not serve as a tenable defense to
the denial of union representation at the interview. Apart from
maintaining that no statutory or regulatory authority supports the grant
of immunity, it is argued that a "Weingarten" right must be deemed
separate and distinct from an offer of immunity; that though Reed
consented to the investigation and did not remain silent, he did not
waive his right to representation. Thus, asserts the General Counsel,
the immunity would never alleviate a reasonable fear of discipline and
can have no effect upon the employee's right to a representation as set
forth in NLRB v. Weingarten, supra.
It is the position of Respondent that, by virtue of the express
assurances given Reed before the investigation, no rights of the
employee were infringed. The employer insists the immunity accorded the
Patrol Agent-- no disciplinary action toward him based on his answers or
the fruits thereof-- necessarily removes any fear of discipline on the
part of the employee. Since the latter cannot reasonably believe the
examination may result in disciplinary action, no right exists as to
representation. Thus, the refusal to permit his union representative to
attend the investigation on April 9, 1981 was not violative of the
Statute.
Thus, the central and primary issue is posed as follows: whether a
grant by the employer of administrative immunity to an employee from
disciplinary action, as a result of his answers during an examination,
negates a reasonable fear of such discipline so as to disentitle the
employee to union representation thereat.
In the public sector rights of representation vest under Section 7114
of the Statute. It is provided under 7114(a)(2) as follows:
"An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation."
The employee's right to union representation, under this statutory
provision was examined by the Authority in Internal Revenue Service,
Washington, D.C., and Internal Revenue Service, Hartford District
Office, 4 FLRA No. 37 (1980). The Authority adopted the rationale set
forth by Administrative Law Judge Salvatore Arrigo in the cited case
concerning the crucial determination as to whether an employee
"reasonably believes" he faces discipline due to the examination by an
employer. Judge Arrigo concluded that it must be determined if the
interview was one in which the risk of discipline reasonably inheres.
The test, therefore, is whether in light of external evidence a
reasonable person would decide that disciplinary action might result
from the examination. Adopting the standard set forth in the Weingarten
case, supra, the Authority has held that whether reasonable grounds
exist for fearing ultimate discipline directed toward an employee must
depend upon objective considerations. It cannot be based upon the state
of mind of the employee or his subjective feelings in this regard.
The U.S. Court of Appeals, District of Columbia Circuit, in enforcing
on February 12, 1982 (No. 80-2423) the Authority's decision in the
Hartford case, supra, adopted the view that in determining whether a
fear of discipline exists-- so as to justify union representation-- one
must rely upon external evidence, and not individual motivations, as the
touchstone for such determination. In this respect, the Court embraced
the conclusions reached by the 5th Circuit Court of Appeals in Lennox
Industries, Inc. v. NLRB, 637 F.2d 340, 106 LRRM 2687 that if the
interview is designed to elicit information which might reasonably
result in discipline-- either immediately or at sometime in the future--
a union representative is required if requested. In this respect, it is
not determinative whether disciplinary action is "probable" or
"seriously considered".
It thus becomes important, as well as decisive, to determine herein
whether Patrol Agent Reed could have "reasonably believed" that
disciplinary action toward him might result from the April 9 interview.
A factor is present in the instant case which did not appear in either
Weingarten or Hartford. Respondent /12/ declared to Reed, and included
such declaration in the taped interview, that the employee would be
given immunity from disciplinary action based on his disclosures during
the examination. The Patrol Agent was assured, after he requested union
representation, that none of the information contained in the statement
given by him on April 9, would be used against him in any administrative
proceeding initiated by the Service. Accordingly, the request for union
representation was deemed unnecessary and denied.
While no grant of immunity was made in the Hartford case, it is noted
that the 5th Circuit Court of Appeals made passing reference to such
factor. The Court, in concluding that Revenue Officer Robert Daley
could have reasonably feared discipline as a consequence of the
interview to which he was subjected and denied union representation,
commented as follows:
"Furthermore, Daley could not be assured that he would not be
subject to discipline as the result of the interview. In this
context, the statements of the inspectors that Daley was not the
subject of the interview, and that the interview was aimed at
another party, could not eliminate the risk that Daley might be
placed in jeopardy as a consequence of something he said to them."
Moreover, the said Court's decision noted the comparison to Spartan
Stores, Inc. v. N.L.R.B. 628 F.2d 953 (6th Cir. 1980). In the latter
case the employer told an employee, who was called to a meeting to
discuss a problem involving the "mess in the lunchroom" and damaged
vending machines, that he would not be disciplined as a result of the
meeting. The employee, who refused to participate in an interview
without his union steward, was discharged. The Court concluded that a
reasonable person in the employee's position would not have reasonably
feared that the conversation might result in his discipline. It
determined that to find a violation under the circumstances would
constitute an unwarranted expansion of the Weingarten doctrine beyond
the contours and limits established by the Supreme Court.
The dictum by the Circuit Court in the Hartford case, as well as the
holding in the Spartan case, supra, convinces me that an express
immunity against disciplinary action-- as a result of a statement made
by an employee-- relieves any reasonable fear of such discipline.
Applying such rationale as declared in the public sector, as well as the
holding of the cited case in the private sector, I am persuaded that, in
the case at bar, it cannot be said that the "risk of discipline
reasonably inheres". Inasmuch as the OPR agents specifically assured
/13/ Reed that no administrative proceeding would be taken against him
by reason of the interview, the employee had no basis to fear
disciplinary conduct. In this posture, and since Section 7114(a)(2) of
the Statute sets forth, as a sine quo non to union representation, that
a reasonable belief exists concerning disciplinary action, no right
inured to Reed for a union representative to be present on April 9.
In an effort to overcome the effect of the immunity given Reed
herein, the General Counsel makes several contentions. It argues that,
based on an analogy to be drawn from the decision in U.S. Postal Service
v. N.L.R.B. 241 NLRB No. 18, 100 LRRM 1520 (1979) the Weingarten right
to have a union representative present at an interview should be viewed
separately and distinctly from any offer of immunity. Further, general
Counsel asserts Respondent has not shown any statutory or regulatory
authority to support the validity of the immunity offered herein-- that
no legal support exists for the said immunity.
Having reviewed the U.S. Postal Service decision, I cannot subscribe
to the view that it supports General Counsel's position regarding the
separability of the "Weingarten" right from a grant of immunity. The
National Labor Relations Board held, in the Postal Service case, that by
signing a waiver of Miranda rights an employee did not waive his right
to union representation as enunciated in the Weingarten case. Such a
ruling is clearly understandable since Miranda involved criminal
proceedings which are not involved in the case at hand. Thus, the Board
correctly adverted to the "significant differences in the foundation and
scope of Miranda and Weingarten rights." We are concerned herein solely
with administrative discipline, and the immunity granted to Reed was
coextensive therewith. Thus, I reject the argument that, by analogy to
be drawn from the U.S. Postal Service case, the right to union
representation remains unaffected by any grant of immunity.
With respect to the argument that no statutory authority exists for
the granting of immunity, I am persuaded that specific authorization, by
way of statute or regulation, is not a requirement for the exercise
thereof. The statutory provisions (8 USC 1103(a)(b) which sets forth
the powers and duties of the Attorney General and the Commissioner /14/
of the Service include the power and right to control, direct and
supervise employees in the Service. Moreover, he is authorized "to
perform such acts as may be necessary for carrying out his authority"
under the Statute. The right to grant immunity is necessarily implicit
and inherent in the exercise of one's powers and duties on behalf of an
agency. Further, the directive of June 26, 1979 by the OPR Director is,
in my opinion sufficient authorization-- and more than an opinion as
asserted by General Counsel-- for the action taken by the investigators.
Since the granting of immunity to Reed, moreover, was approved and
adopted by Respondent, I am satisfied that it was not illusory as
maintained by General Counsel; that it was properly granted to the
employee and binding upon the grantor.
Accordingly, and on the basis of the foregoing, I conclude that the
grant of immunity to Patrol Agent Gregory Reed by Respondent was
sufficient to dispel any reasonable fear of disciplinary action directed
toward him based on his statement at the April 9, 1981 interview. Thus,
since no need existed for union representation thereat, I find that the
denial thereof was not violative of Section 7114(a) and (8) of the
Statute. Therefore, I recommend the Complaint herein be dismissed in
its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: August 16, 1982
Washington, D.C.
/1/ Compare Department of the Navy, Norfolk Naval Base, Norfolk,
Virginia, 14 FLRA No. 97 (1984), wherein the Authority (Chairman Mahone
concurring) adopted the Judge's conclusion in the specific circumstances
of the case that the denial of an employee's request for union
representation at an investigative interview constituted a failure to
comply with section 7114(a)(2)(B) and therefore a violation of section
7116(a)(1) and (8) of the Statute, although the employee was told prior
to the meeting that no disciplinary action against him was then
contemplated, since the employee received no firm assurance that his
statements during the interview would not lead to disciplinary action
against him at a later date, and the employee otherwise had a reasonable
basis for fearing such discipline.
/2/ Subsequent to the hearing both parties filed a Motion to Correct
the Transcript. Thereafter, General Counsel filed an Opposition to
Respondent's Motion to Correct Transcript only insofar as it sought to
insert the words "San Clemente" after the word "the" at page 75, line 6
of the Transcript. It was contended the added words introduced new
evidence and went beyond the testimony of the witness. Since no
supporting proof has been furnished the undersigned that the testifying
witness used the designation "San Clemente" and it does not so appear in
the transcript, I shall deny Respondent's Motion to add "San Clemente"
after "the" on page 75, line 6. In all other respects Respondent's
Motion to Correct Transcript, as well as General Counsel's motion for
correction, are granted. The transcript is accordingly corrected as
reflected in Appendix attached to this decision.
/3/ The National Border Patrol Council of American Federation of
Government Employees, AFL-CIO executed a collective bargaining agreement
with U.S. Immigration and Naturalization Service on September 30, 1976.
This agreement, which has expired, covered the employees at the Tucson,
Arizona station. Since the Council lost a representation election on
June 1, 1979, Respondent avers it is subject to a question concerning
representation. In this respect, Respondent would challenge the Union's
right to negotiate with the agency although the dispute is still pending
before the Authority. Respondent does not, however, contend-- nor do I
conclude-- that these events affect the right of the Union to represent
the employees herein.
/4/ Record facts disclose that, in the past, an agent in Texas and an
El Centro, California agent had been disciplined for failing to report
misconduct of other employees.
/5/ The sole criminal allegation involved drinking on an Indian
reservation.
/6/ Notification to one of the Patrol Agents reflects he was advised
that his statement would not be used against him in a criminal
proceeding; that a willful failure to testify could result in
disciplinary action based on insubordination. Further notice to another
agent advised him of his right to be represented by the Union. It would
appear from the record herein that these notifications were also given
to the other Patrol Agents whose alleged misconduct was under
investigation.
/7/ No prior notice had been given Reed that he would be called as a
witness or that OPR planned to take his statement in regard to any
alleged misconduct.
/8/ The taped interview (page 2) includes a comment by the
interviewer that, since Reed agreed to submit to the interview, it was
not under protest. I am satisfied, and find, that such comments and
answers by Reed did not vitiate his request for union representation at
the interview.
/9/ The record thereof, as it pertains to the issues involved herein,
is set forth in Respondent's Exhibit No. 2.
/10/ This particular writing was, in essence, management's position
on granting use immunity, and is reflected in Respondent's Exhibit No.
4, infra.
/11/ Referring to the right of an employee to have union
representation during the course of his examination or interview. NLRB
v. J. Weingarten, Inc., 420 U.S. 251 (1975).
/12/ The Complaint herein alleges, and thereby concedes, that the OPR
investigators who granted immunity to Reed before taking his statement
were agents of Respondent and acting on its behalf at the time.
/13/ In its brief General Counsel describes the grant of immunity
herein as casual and haphazard. I disagree and conclude it was in clear
and express terms.
/14/ Under the Statute the Commissioner is charged with all the
responsibility and authority in the administration of the Service which
are conferred upon the Attorney General-- the individual charged with
its administration and enforcement.
15 FLRA 79; FLRA 8-CA-1051; July 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
DIGEST NOTES
An agency's policy regarding fees for Freedom of Information Act (5
U.S.C. 552) requests does not become a condition of employment simply
because the exclusive representative elects to seek information under
the FOIA and, consequently, is treated as part of the general public.
In so concluding, the Authority noted that the union could have
received, pursuant to Sec. 7114(b)(4) of the Statute, free of charge, a
copy of requested information which was necessary and relevant to enable
it to fulfill its responsibilities as an exclusive representative.
Accordingly, the Authority adopted the ALJ's decision that the agency
did not violate Sec. 7116(a)(1) and (5) when it treated the exclusive
representative, in response to its FOIA request, as a member of the
general public and charged it fees for the information.
UNITED STATES FORCES KOREA/EIGHTH
UNITED STATES ARMY
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
Case No. 8-CA-1051
The Administrative Law Judge issued his 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. The General Counsel
filed exceptions to the Judge's Decision and a brief in support thereof.
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, conclusions and recommendation that the complaint be
dismissed, for the reasons stated below.
An exclusive representative's need for information to fulfill its
representation rights and duties under the Statute has been provided for
by Congress in section 7114(b)(4) of the Statute. /1/ The Authority has
held that a request for information meeting the criteria of section
7114(b)(4) must be honored in a timely manner, Bureau of Prisons,
Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA No. 111 (1983),
and, in contrast to the provisions of the Freedom of Information Act
(FOIA), which authorizes the charging of fees, a copy of the information
provided to the exclusive representative under section 7114(b)(4) must
be furnished free of charge, Veterans Administration Regional Office,
Denver, Colorado, 10 FLRA 453, 456-57 (1982).
This case involves the Respondent's change in policy with respect to
charging fees for certain information requested by and provided to the
Charging Party under the FOIA rather than under the provisions of
section 7114(b)(4) of the Statute. Prior to the action giving rise to
the complaint, the Respondent had established policies on providing
information requested under the FOIA and on charging fees for such
requests. Such policies were applied to the Charging Party as if it
were a member of the general public. The Respondent's new policy with
respect to charging fees for information requested under the FOIA has
also been applied to the Charging Party as a member of the public.
It is the Authority's view that the policy regarding fees for FOIA
requests did not become a condition of employment simply because the
Charging Party, having itself elected to seek information under the FOIA
and consequently been treated as part of the general public, also
happens to have been the exclusive representative for a unit of the
Respondent's employees. On this basis, the Authority concludes that the
Respondent did not change a condition of employment so as to give rise
to a duty to bargain. /2/ In so concluding, we note that the Charging
Party could have received, pursuant to section 7114(b)(4) of the
Statute, free of charge, a copy of requested information which was
necessary and relevant to enable it to fulfill its responsibilities as
an exclusive representative under the Statute. Accordingly, we find
that the Respondent did not violate section 7116(a)(1) and (5) of the
Statute.
IT IS ORDERED that the complaint in Case No. 8-CA-1051 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Sam Horn, Esquire
Major Vincent C. Nealey
For the Respondent
Gerald M. Cole, Esquire
For the General Counsel
Mr. Don C. Terrill
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq., and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August
11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on April 24, 1981, by Local 1363, National
Federation of Federal Employees (hereinafter called NFFE or the Union),
a Consolidated Complaint /3/ and Notice of Hearing was issued on July 6,
1981, by the Regional Director for Region VIII, Federal Labor Relations
Authority, Los Angeles, California. The Consolidated Complaint alleges
that United States Forces Korea/Eighth United States Army (hereinafter
called the Respondent or Army), violated Section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (hereinafter
called the Statute or Act), by virtue of its actions in the Freedom of
Information Act (FOIA) and receive various and sundry requested
documents without being assessed any costs for the preparation of such
requested documents.
A hearing was held in the captioned matter on October 28, 1981, in
Seoul, Korea. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The parties submitted briefs on
December 14, 1981, 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.
The Union is the certified representative of the four units of
Respondent's employees. /4/ Mr. Don Terrill is President of the Union.
Commencing in late 1979 or early 1980, Mr. Terrill submitted numerous
requests for information under the Freedom of Information Act (FOIA),
which, prior to April 2, 1981, were all honored by the Respondent
without any charge being assessed therefor. Thus, the record indicates
that Mr. Terrill submitted 39 FOIA requests in 1980 and 26 FOIA requests
during the first three months of 1981. No fees were charged for the
aforementioned requests because the search and duplication costs did not
exceed $30 per request. /5/ Mr. Terrill signed the requests as Union
President.
On March 18, 1981, Mr. Terrill, in his capacity as President of the
Union, submitted an FOIA request concerning the Chosun Gift Shop file.
As was his past custom, Mr. Terrill requested that he be informed prior
to any search for the requested information if the request would be
subject to any fees. In reply to the FOIA request the Respondent, by
letter dated April 2, 1981, informed Mr. Terrill, in pertinent part, as
follows:
Information available to this office reveals that you have
submitted 26 requests for records under the Freedom of Information
Act during the period 1 January 23 March 1981. We are pleased to
provide the information to you, but in view of the cumulative
amount of file search and reproduction costs associated with
processing these requests (which now exceed $30.00), this and
future requests will be chargeable.
The basis for assessing the search reproduction fees is
contained in DOD Directive 5400.7, DOD Freedom of Information Act
Program, effective 3 November 1980, as published in the Federal
Register, Vol. 45, No. 236, Friday, December 5, 1980, Rules and
Regulations. The directive provides in subpart G - Fee Schedule,
Section 286.60, General Provisions, paragraph (b)(2), that
multiple requests from a single requestor or from those acting in
behalf of a single requestor may create a situation in which
waiver should be denied by the component. /6/
On April 3, 1981, Mr. Terrill wrote a letter to the Respondent
wherein he requested that fees be waived for the instant as well as
future FOIA requests and pointed out that he could have requested the
information pursuant to Section 7114(b)(4) of the Statute without being
responsible for any costs. Mr. Terrill further pointed out that he had
been receiving FOIA requests within 10 days and if forced to utilize the
rights accorded the Union by Section 7114(b)(4) of the Statute he would
except similar timely action. failing timely action of its future
requests for information, Mr. Terrill made it clear that he intended to
file ULP charges alleging refusal to bargain in good faith.
Subsequently, on April 5, 1981, Mr. Terrill sent letter to the Civilian
Personnel Officer wherein he made it clear that the Union considered the
"waiver of fees" to be a negotiable matter and intended to file an
unfair labor practice if Respondent continued to change past practice
and charge fees for the FOIA requests which individually were under
$30.00. On April 10, 1981, Respondent informed the Union that it
intended to adhere to the position set forth in its April 2, 1981
letter.
The record reveals that Army Regulation AR 340-17, which is
applicable to FOIA requests, incorporated in the record as Respondent's
Exhibit R-2, provides in pertinent part as follows:
2. A refusal to waive charges by the official responsible for
the initial decision on the request for the record may be appealed
to the head of the DOD component or his designee for purposes of
final approval.
According to Mr. James McGill, a Command Records Administrator, who,
among other things, is responsible for handling FOIA requests addressed
to the Respondent, that when the "cumulative threshold" of requests
exceeds $30.00 it is Respondent's policy to charge for the FOIA requests
thereafter. Mr. McGill's interpretation of DOD Directive 5400.7 is
based upon a telephone conversation he had with a Mr. Anderson who heads
the Department of Army's Freedom of Information Act program. The
information received from Mr. Anderson was subsequently verified by a
telegram which reads as follows:
Phone conversation between Mr. Anderson and Mr. McGill, subject
as above, subject being Freedom of Information Act, 25 March 1981.
When direct search and duplication costs for a single FOIA
waived. However, when multiple requests are made by a single
requestor or organization, the threshold becomes cumulative; once
the threshold is reached, fees may be charged for all search and
duplication costs above $30.
The General Counsel takes the position that Respondent by virtue of
its actions in changing its policy of waiving FOIA fees for Union
requests under $30.00, unilaterally altered an established condition of
employment in violation of Section 7116(a)(1) and (5) of the Statute.
Respondent, on the other hand, relying on Section 7117(a)(2) of the
Statute takes the position that inasmuch as DOD Directive 5400.7 was
issued by the Department of Defense, an agency within the meaning of 5
U.S.C. 7103(a)(3), it was under no obligation to bargain with the Union
concerning actions taken pursuant to the directive in the absence of a
determination that no compelling need existed for the regulation.
Alternatively, Respondent, relying on Section 7116(d) of the Statute,
contends that the complaint should be dismissed because Respondent's
adverse action can be attacked under an existing appeals procedure.
Additionally, Respondent urges dismissal of the complaint on the grounds
that the Union is not entitled to free data and that the FOIA requests
are not "conditions of employment" over which Respondent is obligated to
bargain with the Union before instituting changes therein.
Prior to reaching the technical defenses relied upon by the
Respondent as grounds for dismissing the complaint, a threshold question
must be answered, namely, is the use of the rights set forth in the FOIA
a "condition of employment" over which Respondent is obligated to give
the Union notice and an opportunity to bargain prior to making changes
in the procedures, etc., it will utilize in fulfilling FOIA requests for
information. In considering the answer to this question it must be
borne in mind that such issues as (1) the propriety of charging fees for
information requested for intelligent bargaining and whether (2) the
information requested involved herein does in fact concern the
information necessary for intelligent bargaining, are not involved in
the instant proceeding. Thus, as noted above, the sole issue for
determination is whether the Respondent's year and one quarter practice
of waiving fees under FOIA ripened into a "condition of employment" over
which Respondent had an obligation to bargain prior to instituting any
changes therein.
The Statute defines a "condition of employment" to mean "personnel
policies, practices and matters, whether established by rule,
regulation, or otherwise affecting working conditions, except that such
term does not include policies, practices, and matters . . . (C) to the
extent such matters are specifically provided for by Federal Statute."
There is no doubt, and I do not understand any party to be contending
to the contrary, that the request for information involved herein was
made pursuant to the Freedom of Information Act, 5 U.S.C. 552, which
accords the public the right to secure information within an agency's
possession. In such circumstances it would appear that under a literal
reading of the Statute that the denial of the requested information to
the Union, absent the payment of a set fee, whether contrary to a past
established practice or not, does not constitute a change in an
established "condition of employment" over which the Respondent is
obligated to bargain. The cases cited by the General Counsel in support
of its position are distinguishable in that the past practices involved
in such cases which rose to, or subsequently ripened into, conditions of
employment, were practices which did not have their respective origins
in a Federal Statute. Thus, the use of the internal mail system and an
agency's typewriters were practices which were unrelated to any
particular rights accorded by Federal Statutes. Such rights or
practices were the product of the parties historical collective
bargaining relationship.
Moreover, the use of the FOIA procedure herein is not a practice
unique to the Union, but rather is a right accorded to the public at
large, of which the Union is a member. Although it is true that the
Union was granted numerous requests for information free of charge for
approximately fifteen months, there is no showing that the granting of
such free information was in any way related to its status as the
exclusive representative of Respondent's employees rather than its
standing or status as a member of the general public. In such
circumstances it is only entitled to the rights which flow from the FOIA
Statute to the General Public. To hold otherwise would result in giving
the Union preferential status over other members of the general public.
In this latter respect, the provisions of the FOIA make it clear that
while an agency is encouraged to make documents or information available
at little or no fees, an agency may in its discretion charge for the
direct cost involved in making the search and duplication necessitated
by the information request. To the extent that one may argue that
Respondent's action in charging for multiple requests is violative of
the FOIA provisions, the Union's only recourse is utilization of the
appeals procedure set forth in the FOIA, the final step of which is the
appeal of an agency head's adverse decision to the U.S. District Court.
/7/
Having found and concluded that the Respondent did not violate the
Statute as alleged, it is recommended that the Federal Labor Relations
Authority issue the following order pursuant to 5 C.F.R. 2423.29(c):
It is hereby ordered that the complaint in Case No. 8-CA-1051 be, and
hereby is dismissed.
BURTON S. STERNBURG
Administrative Law Judge
Dated: January 13, 1982
Washington, D.C.
/1/ Section 7114(b)(4) provides:
Sec. 7114. 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; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
/2/ See, e.g., Department of the Navy, Naval Construction Battalion
Center, Port Hueneme, California, 14 FLRA No. 60 (1984).
/3/ The Consolidated Complaint originally included a number of other
allegations set forth in Case Nos. 8-CA-992, 8-CA-1052 and 8-CA-1098.
During the course of the hearing the parties reached settlement
agreements in the aforementioned cases and upon motion duly made, the
cases were severed from the Consolidated Complaint. Accordingly, the
hearing was confined solely to the allegations set forth in Case No.
8-CA-1051.
/4/ The certified units are as follows: Career and
career-conditional nonprofessional employees of the Department of the
Army in the Republic of Korea; Career and career-conditional
professional employees of the Department of the Army in the Republic of
Korea; Career and career-conditional nonprofessional employees of the
Department of the Navy in the Republic of Korea; and Career and
career-conditional employees of the Joint U.S. Military Assistance
Group-korea (JUSMAG-K) in the Republic of Korea.
/5/ Many of the aforementioned 65 FOIA requests involved information
to which the Union was entitled under Section 7116(b)(4) of the Statute,
i.e. information necessary for intelligent bargaining.
/6/ Section 286.60 of DOD Directive 5400.7, entitled General
Provisions, reads in pertinent part as follows:
(b) Fee Assessment. (1) Minimum fee shall not be charged.
(2) When direct search and duplication costs for a single FOIA
request total less than $30.00, fees should be waived
automatically. The DOD Components, however, may set aside the
automatic waiver provision when, on the basis of good evidence the
Component can demonstrate that waiver of fees is not in the public
interest. Multiple requests from a single requestor in an effort
to take advantage of the waiver may create a situation in which
waiver should be denied by the Component.
/7/ The fact that the Respondent's actions in denying the requested
information, absent payment of the requisite fees, may have been under
the DOD and Army implementing regulations does not alter the foregoing
conclusions since such regulations merely track the FOIA in all
pertinent respects. Cf. 5 U.S.C. 552(4)(A), 4(B), and (6), wherein FOIA
provides for the charging of fees and a final appeal to the District
Court when requests for information are denied by the head of an agency.
15 FLRA 78; FLRA 3-CA-20285; July 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4800. Otherwise Refusal to Comply with Statute
DIGEST NOTES
The Authority found that the agency did not violate Sec. 7116(a)(1)
and (8) of the Statute by failing to grant an employee's request for
representation by the union as required by Sec. 7114(a)(2)(B) of the
Statute during a meeting with two inspectors concerning the employee's
threats against other employees where the meeting at issue was not an
"examination" within the meaning of Sec. 7114(a)(2)(B) of the Statute.
The Authority found that: (1) the meeting was not designed to "ask
questions, elicit additional information, have the employee admit his
alleged wrongdoing, or explain his conduct"; (2) at the start of the
meeting the employee was told that the purpose of the meeting was to
advise him that he had committed a crime by making threats and to warn
him about making threats; and (3) when the employee began to respond to
the warning, he was advised not to say anything but that he should just
listen and acknowledge that he understood what was being said.
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE,
and
NATIONAL TREASURY EMPLOYEES UNION
Case No. 3-CA-20285
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 Charging Party's exceptions. The
Respondent filed cross-exceptions and the Charging Party filed an
opposition to the Respondent's cross-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 adopts the Judge's
findings, conclusions and recommended order to the extent consistent
herewith.
The complaint alleges that the Department of the Treasury, Internal
Revenue Service (the Respondent) violated section 7116(a)(1) and (8) of
the Statute /1/ by failing to grant a request by an employee, Tatum, for
representation by the National Treasury Employees Union (the Union) as
required by section 7114(a)(2)(B) of the Statute /2/ during a meeting
with two inspectors concerning Tatum's threats against other employees.
In agreement with the Judge, the Authority concludes that the meeting at
issue was not an "examination" of Tatum within the meaning of section
7114(a)(2)(B) of the Statute. Thus, as found by the Judge, the meeting
was to warn Tatum about threats he had made. Management found the
warning necessary to protect other unit personnel while action was going
forward to discipline or remove Tatum. As further found by the Judge,
it was not designed "to ask questions, elicit additional information,
have the employee admit his alleged wrongdoing, or explain his conduct."
Thus, Tatum was told before the meeting that the purpose was "to talk to
him for about two minutes . . . to warn him about threats," and at the
start of the meeting he was again told that the purpose of the meeting
was to advise him he had committed a crime by making threats and to warn
him about making threats. Further, it is noted that when Tatum began to
respond to the warning, he was advised not to say anything but that he
should just listen and acknowledge that he understood what was being
said. In all the circumstances, the Authority finds that there was no
"examination" and that the complaint must be dismissed. /3/
IT IS ORDERED that the complaint in Case No. 3-CA-20285 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
David E. Pryor, Esquire
For the Respondent
Patricia Armstrong, Esquire
For the Charging Party
Patricia Eanet Dratch, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C. against the Department of the Treasury, Internal
Revenue Service (the Respondent). The complaint alleged, in substance,
that Respondent violated section 7116(a)(1) and (8) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the
Statute), by failing to comply with section 7114(a)(2)(B) when employee
Craig Tatum requested to be represented by the Union during a
conversation he had with two inspectors concerning threats he had
allegedly made against fellow employees. Respondent's answer admitted
to the meeting at which Tatum requested to be represented by the Union,
but denied that a conversation occurred or that Respondent had violated
the Statute.
A hearing was held in this matter in Washington, D.C. The
Respondent, Charging Party, 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. Based on the entire record herein, including my
observation of the witnesses and their demeanor, the exhibits, other
relevant evidence adduced at the hearing, and the briefs filed by the
Respondent and the Charging Party, I make the following findings of
fact, conclusions of law, and recommendations.
Craig Tatum was employed as a clerk-typist for Respondent for
approximately three years until April 19, 1982 (Tr. 9). He was a member
of an appropriate unit of Respondent's employees represented exclusively
by the National Treasury Employees Union. When Tatum was initially
employed by Respondent, a background investigation conducted by
Respondent disclosed that he had falsified a portion of his employment
application. Tatum was interviewed concerning this matter by inspectors
of Respondent's Internal Security Division, IRS Inspection Service, /4/
and disciplinary action involving a suspension for a period of time was
subsequently taken against him. (Tr. 11, 15, 119-120).
Beginning in September 1981, the Employee Plans Technical Branch,
which assists management in areas of disciplinary action and labor
relations, began receiving complaints about Tatum's behavior. (Tr. 106,
116-117). A file was established concerning these complaints. (Tr.
118).
The Internal Security Division also began receiving reports about
Tatum's behavior in September 1981. He had reportedly torn some
curtains down. Secretaries in his office also reportedly felt
threatened on one or two occasions. (Tr. 79-80).
Tatum's supervisor, Charles Logan, had reprimanded Tatum for his
conduct. Logan advised Tatum in a series of memoranda that, if he
continued to disrupt the office, it could result in more severe
disciplinary action. (Tr. 16, 42).
In early November 1981, Logan telephoned Inspector C. A. Barg of the
Internal Security Division. Logan advised Inspector Barg that Tatum had
caused office disruptions and verbally abused or threatened Logan and
other employees in a series of incidents. Logan also remarked that
Tatum had recently been treated in a mental hospital. Logan stated that
the office incidents warranted attention by Internal Security, although
he knew that personnel was taking some action against Tatum. Inspector
Barg stated he would contact personnel to ascertain the status of such
action, but so long as Tatum's actions involved no destruction of
government property or bodily injury, Internal Security would not
intervene in the matter. (Tr. 33-34, 43-44, 75; Respondent's Exh. 1).
On December 2, 1981, Grant Jones, a co-worker of Tatum, threw a
bottle of typewriter fluid into Tatum's trash basket. Tatum reacted
violently. He took up a fighting stance, accused Jones of narrowly
missing his head, and threatened Jones with bodily harm. Supervisor
Logan separated the two individuals, spent ten to fifteen minutes trying
to calm Tatum down, and, later on in the day, separately interviewed
both employees. (Tr. 34). Meanwhile, Jones submitted a memorandum to
the employees relations office concerning Tatum's threat. (Tr. 112).
Supervisor Logan subsequently contacted the employee relations office
and suggested that, in view of Tatum's constant abuse and disruption,
the latest incident should be reported to the Inspection Service. The
employee relations office agreed. The Internal Security Division,
Inspection Service was subsequently contacted by Logan and employee
relations personnel. It was decided that, since Logan had not been able
to stop Tatum's threats, Internal Security Division inspectors would
warn Tatum about making threats, in hopes of having the necessary effect
of stopping or curtailing such activity and protecting other employees.
It was agreed that no questions would be asked about the threats during
such warning. They determined that a warning of this nature would not
jeopardize other personnel action being taken against Tatum, since the
facts concerning such matters were already in management's possession.
(Tr. 34-35, 44-45, 61, 106-108, 113-115).
Although a record was being made of the contacts concerning the
threats by Tatum, the Internal Security Division did not open an
investigation of Tatum. The latest threat was not considered serious
enough to warrant criminal prosecution, since no physical assault or
bodily harm was involved, and the indication that Tatum had been treated
for mental instability also made prosecution unlikely. Internal
Security was also aware that management was taking personnel action
against Tatum. It preferred that management handle the problem in this
manner. (Tr. 52, 57, 75, 81, 85).
On December 8, 1981 two inspectors of the Internal Security Division,
Inspector C. A. Barg and Special Investigator Albert Anderson, arrived
in Mr. Tatum's work area. They advised supervisor Logan that they were
there to warn Tatum against making threats. Thereafter, they approached
Tatum at his desk. (Tr. 36). They identified themselves, and Inspector
Barg stated that they wanted to talk to him for about two minutes in
private to warn him about threats. /5/ Inspector Barg asked Tatum to go
with the inspectors to the back office or hallway. (Tr. 46, 89, 97).
Tatum said he did not want to leave and wanted to have his union
representative present. /6/ (Tr. 11, 22-23; General Counsel's Exhibit
1(i)).
At this point, Irving Porter, a tax law specialist who had a desk
next to Tatum's, intervened. Porter identified himself as the area vice
president of the Union. (Tr. 23). One of the inspectors told Porter
that it was not a Union matter. (Tr. 23, 30). Tatum said he was
calling his Union representative, and he placed a call to Joseph
Bothwell, the Union's chief steward. (Tr. 12, 30, 46, 90). Porter
remarked to the inspectors that Tatum "wants a representative and he has
the right to have a steward present." (Tr. 30). After Tatum indicated
that he was unable to reach the chief steward, Inspector Barg again
asked to talk to him in private in the back office or hallway. (Tr.
46). Porter advised Tatum not to go anywhere or say anything. (Tr.
90). Obviously irritated at the continuing intrusions of Porter, one of
the inspectors then showed Porter his badge, asked him for his name,
room, and telephone number, and indicated that he should not interfere
in the matter. When Tatum still refused to accompany the inspectors,
the inspectors requested Logan to order Porter and the other two
employees to leave the area for a break. (Tr. 24, 36, 90). Before
Porter left the area, he advised Tatum not to answer any questions and
stated that he would be back with a Union representative. (Tr. 13, 37).
At no time did Tatum specifically request Porter to represent him, nor
did Porter specifically request to stay and act as Tatum's
representative. (Tr. 91).
After all the other employees left the office, Inspector Barg advised
Tatum that the inspectors were there at the direction of their
supervisor and the U.S. Attorney's Office to talk to him for about two
minutes to advise him that he had committed a crime under Title 18,
United States Code, by making a threat toward an IRS employee, and to
warn him about making threats. Tatum stood up, yelled, cursed, and
demanded to know whom he had threatened, when, and whether the
inspectors were referring to Jones. (Tr. 47-48, 64, 72-73, 102-103).
Inspector Barg replied that they were referring to any threat he had
made; that he had threatened numerous IRS employees in the past;
specifically Mr. Logan, who was worried for his personal safety; and
that's why they were there to advise him. (Tr. 64, 102). Tatum replied
that he had threatened Grant Jones because Jones had thrown something at
him. Tatum also said that Logan was harrasing him because of typing
errors. (Tr. 64, Respondent's Exhibit 1). The inspectors advised Tatum
not to say anything; that, just as Porter had advised him, he should
not say anything; that he should just listen and acknowledge that he
understood what they were saying. (Tr. 51, 90-91).
Inspector Barg continued to advise Tatum that no matter who threw
what, it was still against the law; that he had committed a crime by
making a threat toward an IRS employee; that he could be arrested;
that they were there to warn him not to do it again; that, if he made
another threat or assault against an IRS employee, they would open an
investigation, and he could be arrested and subject to criminal
prosecution. (Tr. 47, 66, 73, 90, 100). The inspectors did not request
any information about the threats. (Tr. 51, 69-70, 93).
Tatum stated he had a complaint to make against supervisor Logan and
proceeded to make loud and abusive remarks concerning Logan. Inspector
Barg opened up his notebook at this point, but after listening awhile,
advised Tatum to consolidate his complaint into a written report and
forward it to them. No notes were taken during the meeting. (Tr. 49,
91-92, 95). The meeting with Tatum lasted about ten minutes. (Tr. 48).
As the meeting concluded, Porter returned with the acting Union steward
for the area. (Tr. 25).
The inspectors subsequently advised supervisor Logan and Ms.
Lehrkinder, labor relations specialist, that they had warned Tatum.
(Tr. 38, 109). Once the inspectors returned to their office, Inspector
Barg wrote a contact memorandum concerning the meeting. (Tr. 52). The
memorandum stated, in part, as follows:
On 12/8/81, Inspectors Barg and Anderson contacted Tatum and
informed him of the threat and assault statutes regarding IRS
employees. Tatum appeared to be excited and acted abnormal.
Tatum acknowledged that he threatened Jones, but stated Jones
threw something at him. Tatum also stated that he was harrassed
by his supervisor for his typing errors. (Respondent's Exhibit
1).
The memorandum was not disseminated outside the Internal Security
Division. (Tr. 54). The purpose of the memorandum was to maintain a
chronology of events in the reference file. If Tatum made another
threat, Internal Security would present the memorandum to the U.S.
Attorney showing that he had made a threat on a previous occasion and
had, in fact, acknowledged making a prior threat. The memorandum would
be a vital part of the background discussion with the U.S. Attorney
concerning criminal prosecution of any subsequent threat. (Tr. 59,
73-74).
Mr. Tatum was removed from his position on April 19, 1982. (Tr. 10).
One of the reasons given for his removal was the incident with Grant
Jones on December 2, 1981. (Tr. 114). No information from the December
8, 1981 meeting was considered in making the decision to remove Mr.
Tatum. (Tr. 109).
Section 7114(a)(2)(B) of the Statute provides:
An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at . . . any
examination of an employee in the unit by a representative of the
agency in connection with an investigation if (i) the employee
reasonably believes that the examination may result in
disciplinary action against the employee; and (ii) the employee
requests representation.
Thus, for union representation to be applicable to a meeting, /7/
there must be (1) an examination, (2) of an employee in the unit, (3) by
a representative of the agency, (4) in connection with an investigation,
(5) the employee reasonably believes that the examination may result in
disciplinary action against the employee, and (6) the employee requests
representation.
Starting with the last element first, it has been found above that
the employee requested representation.
The penultimate element is whether the employee reasonably believed
that the examination may result in disciplinary action against him.
Tatum had previously been warned, in effect, that the next incident of
misconduct would bring severe disciplinary action. He had engaged in
such alleged misconduct. Now he was confronted by two inspectors from
the Inspection Service. He knew from personal experience that the
Inspection Service investigated employee misconduct. He also knew from
personal experience that disciplinary action could result or follow from
an investigative interview by the Inspection Service. I conclude that
Tatum reasonably believed that his meeting with the two inspectors might
result in disciplinary action against him. However, in the absence of a
finding that the meeting, etc., is an examination in connection with an
investigation, the fact that the employee might fear discipline is of no
import. /8/ Absent such an examination, the protective role of a union
representative, which is to attempt to clarify the facts, suggest other
employees who may have knowledge of them, and make sure the employer
does not initiate or impose punishment unjustly, /9/ is inapplicable.
The next element is whether the meeting was "in connection with an
investigation" to determine whether or not disciplinary action was
warranted. Here the inspectors themselves were not investigating
whether Tatum should be disciplined for his misconduct. This was being
determined by the personnel office. The Inspection Service had already
ruled out prosecution. However, their meeting with Tatum was,
nevertheless, a part of an agreed upon agency approach to the
misconduct. The inspectors were to try to stop any further misconduct
by issuing a warning to Tatum, while, at the same time, the personnel
office would continue to process the agency's disciplinary action.
Under all the circumstances, I find that the meeting was "in connection
with an investigation" to determine whether disciplinary action was
warranted.
There is now no dispute as to the next element, that the inspectors
were "representative(s) of the agency" within the meaning of section
7114(a)(2)(B). /10/
The last, and most critical element being considered here in reverse
order, is whether the meeting was "an examination." An employee who is
advised that he has committed a crime, and warned that he will be
prosecuted for any further threat, could reasonably be expected to
respond by making statements denying, admitting, or explaining his
actions, just as the employee did here. It is reasonable in such
circumstances to envision a discussion of an employee's conduct which
could lead to discipline. Therefore, it has been held that, in such
circumstances, the employee's right to union representation attaches.
/11/ I would find that principle applicable here if the record also
showed that the warning procedure was designed and used by the agency as
part of an investigative effort to obtain information which could lead
to discipline, or was otherwise an "examination." A preponderance of the
evidence, however, does not show this.
While personnel action was going forward to discipline or remove
Tatum, some action was believed to be necessary in the interim to
protect other unit personnel. Therefore, it was decided to have the
Inspection Service issue Tatum a warning-- to inform him plainly and in
the strongest possible terms that another threat on his part would bring
the swift reprisal of a criminal investigation and possible prosecution.
This meeting was designed to issue a warning, and not to ask questions,
elicit additional information, have the employee admit his alleged
wrongdoing, or explain his conduct. This is unlike the usual concept of
an examination, which is an orderly attempt to obtain information by
asking questions or otherwise attempting to gain or elicit responses
from an employee. /12/
A meeting to issue a warning of this type was remedial rather than
investigatory in nature. It was more closely analogous to either a
counseling session /13/ or a meeting held for the sole purpose of
imposing discipline /14/ that to an examination. /15/ The fact that the
employee voluntarily responded to the explanation of the reasons for the
warning with an admission of one of the threats did not convert the
meeting to an examination. /16/ The nature and focus of the meeting did
not change. The inspectors adhered to the original design and purpose
of the meeting. Although the inspectors did subsequently make a note of
Tatum's admission in their files, the information was not provided to
the officials involved, or used in the subsequent disciplinary action.
Under all the circumstances, I conclude that no "examination" was
conducted. The record demonstrates that the warning was issued as part
of the agency's remedial and supervisory response to the employee's
conduct. It was issued to protect other employees until disciplinary
action could be taken. It was not part of an investigative effort
calculated to form a basis for taking disciplinary or other
job-affecting actions against the employee.
For the foregoing reasons, I conclude that the meeting in question
did not fall within the purview of section 7114(a)(2)(B) of the Statute
and that a preponderance of the evidence does not establish a violation
of section 7116(a)(1) and (8) as alleged. Based on the foregoing
findings and conclusions, I recommend that the Authority adopt the
following order:
IT IS HEREBY ORDERED that the Complaint in Case No. 3-CA-20285 be,
and it hereby is, dismissed.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 21, 1982
Washington, D.C.
/1/ Section 7116(a)(1) and (8) provides:
Sec. 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;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(a)(2)(B) provides:
Sec. 7114. Representation rights and duties
(2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
/3/ See United States Air Force, 2750th Air Base Wing Headquarters,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10
FLRA 97 (1982).
/4/ The Internal Security Division, IRS Inspection Service is a
professional investigative service for all IRS offices. It investigates
charges of employee misconduct, including alleged threats, assaults,
embezzlement, and bribery, and alleged breaches of the employee
integrity regulations, the IRS Code of Conduct. (Tr. 87-88).
/5/ Tatum and a co-worker, Irving Porter, testified that the
inspectors said they wanted to ask Tatum some questions. Based on the
entire record, I credit the contrary testimony of the inspectors in this
respect.
/6/ The inspectors testified that Tatum did not specifically ask for
a representative. However, Respondent's answer admitted that Tatum
requested to be represented by the Union. Although the admission is
conclusive evidence, I also credit Tatum's testimony in this respect,
based on the entire record and, particularly, the ensuing events, and
find that he did request Union representation.
/7/ The titling of the meeting is irrelevant to whether statutory
rights attach. Federal Aviation Administration, St. Louis Tower,
Bridgeton, Missouri, 6 FLRA No. 116 (1981).
/8/ Internal Revenue Service and Internal Revenue Service, Detroit
District, 5-CA-719, 5-CA-729, OALJ-81-137, decision of Judge Burton S.
Sternburg (July 21, 1981).
/9/ NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689, 2692-2693
(1975).
/10/ Internal Revenue Service, Washington, D.C. and Internal Revenue
Service, Hartford District Office, 4 FLRA No. 37 (1980), rev. denied;
enforcement granted, D.C. Cir. No. 80-2423 (Feb. 12, 1982).
/11/ Cf. Federal Aviation Administration, St. Louis Tower, Bridgeton,
Missouri, 6 FLRA No. 116, 6 FLRA 678 (1981).
/12/ Cf. Department of Treasury, Internal Revenue Service, 8 FLRA
No. 72, 8 FLRA 327 (1982).
/13/ See, e.g., Internal Revenue Service, Detroit, Michigan, 5 FLRA
No. 53 (1981); U.S. Department of the Treasury, Internal Revenue
Service, 8 FLRA No. 72 (1982); Library of Congress, Case No. 3-CA-741,
OALJ-82-96, decision of Judge Samuel A. Chaitovitz (June 21, 1982).
Contra Federal Aviation Administration, St. Louis Tower, Bridgeton,
Missouri, 6 FLRA No. 116 (1981).
/14/ See, e.g., United States Air Force, Wright-Patterson Air Force
Base, Ohio, 3-CA-736, 737, 738, 805, OALJ-81-135, decision of Judge
Isabelle R. Cappello, pp. 8-9 (July 15, 1981).
/15/ See, e.g., Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Hartford District Office, 4 FLRA No. 37
(1980), rev. denied; enforcement granted, D.C. Cir. No. 80-2423 (Feb.
12, 1982); U.S. Department of the Navy, U.S. Marine Corps, Marine Corps
Logistics Base, Albany, Georgia, 4 FLRA No. 54 (1980); U.S. Customs
Service, Region VII, Los Angeles, California, 5 FLRA No. 41 (1981);
Lackland Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA
No. 53 (1981).
/16/ Cf. United States Air Force, Wright-Patterson Air Force Base,
Ohio, Case No. 5-CA-715, OALJ-81-081, decision of Judge Alan W. Heifetz
(April 6, 1981) at pp. 9-11.
15 FLRA 77; FLRA O-AR-398; July 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
DIGEST NOTES
The grievant in this dispute sought the compensation of a
higher-graded position. The arbitrator ruled that Sec. 7121(c)(5) did
not apply as the matter does not involve the reclassification of the
grievant; the grievant should be compensated at the higher rate; and
denied attorney fees. In its exceptions, the agency contended that the
award was contrary to Sec. 7121(c)(5) because the grievance directly
concerned the classification of the grievant's position and was not the
result of a reduction-in-grade or pay. The Authority set aside the
award and held that the award is contrary to Sec. 7121(c)(5) because
there is a direct interconnection between the grievance and the
classification of the grievant's position and, also, because the effect
of the award is to reclassify the grievant for pay purposes at a
higher-graded level.
OVERSEAS EDUCATION ASSOCIATION
and
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Case No. O-AR-398
This matter is before the Authority on an exception to the award of
Arbitrator Donald P. Goodman 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.
According to the Arbitrator, the grievant, who was appointed to a
Class I position and had never been a Class II, filed a grievance
stating: "Since my duties as a Class I Counselor are equivalent of
those of a Class II Counselor, my salary should also be equivalent of a
Class II Counselor." In response to the claim that this grievance was
precluded by section 7121(c)(5) of the Statute, /1/ the Arbitrator ruled
that section 7121(c)(5) did not apply and that the grievance was
arbitrable. In this respect the Arbitrator explained "that the real
grievance is one of proper pay and not necessarily one having to do with
position classification although there is an interconnection." On the
merits of the grievance, the Arbitrator determined that the grievant is
not receiving the proper rate of pay and ruled that she has been and is
entitled to receive the pay rate for Class II Counselors. As to his
award the Arbitrator stated that he "is not reclassifying the Grievant,"
but at the same time in denying attorney fees he stated that "(t)he
effect of this award is to reclassify the Grievant for pay purposes as a
Class II Guidance Counselor."
In its exception the Agency contends that the award is contrary to
section 7121(c)(5) of the Statute. In support the Agency essentially
argues that the grievance directly concerned the classification of the
grievant's position and was not the result of her reduction-in-grade or
pay.
The Authority finds that the award is contrary to section 7121(c)(5)
of the Statute. It is clear that the substance of the grievance before
the Arbitrator was whether the duties performed by the grievant should
be compensated at the pay rate for the higher-grade position and that,
in the Arbitrator's own words, the effect of his award is to reclassify
the grievant for pay purposes at the higher-grade level. Therefore,
because of this direct "interconnection" between the grievance and the
reclassification "effect" of the award (to use the Arbitrator's own
words), it must be found, despite the Arbitrator's assertion that he
only awarded equal pay for equal work, that the grievance and the award
concern the classification of a position within the meaning of section
7121(c)(5) precluding such matters from grievance and arbitration. See
Federal Aviation Administration, Department of Transportation, Tampa,
Florida and Federal Aviation Science and Technological Association,
National Association of Government Employees, Tampa, Florida, 8 FLRA 532
(1982). Accordingly, the award by finding the grievance arbitrable and
by resolving the grievance on the merits is deficient and is set aside.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7121(c)(5) provides:
(c) The preceding subsections of this section shall not apply
with respect to any grievance concerning--
(5) the classification of any position which does not result in
the reduction in grade or pay of an employee.
15 FLRA 76; FLRA O-AR-334; July 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation
7500. Official Time
DIGEST NOTES
A grievance was filed by the grievant disputing the agency's
accounting of official time between his positions as Eastern Regional
Vice President and First Vice President of Local 1917. The arbitrator
found that the agency's action in denying official time to the grievant
for representational activities in excess of 416 hours per year was not
justified and directed remedial action with respect to the grievant and
with respect to other employees similarly situated. He also expressly
retained jurisdiction over the matter for the limited purpose of
deciding any disputes as to the directed remedy. The agency, in its
exception, contended that the arbitrator exceeded his authority. The
Authority found that: (1) the award was deficient since the issue as
stipulated by the parties for resolution pertained solely to the
agency's accounting of official time for the grievant; and (2) the
arbitrator exceeded his authority when he awarded relief under the
parties' agreement to "other employees similarly situated," as well as
to the grievant. Consequently, the authority modified the award by
striking "and to other employees similarly situated" from it.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION
AND NATURALIZATION SERVICE COUNCIL
and
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Case No. O-AR-334
This matter is before the Authority on exceptions to the award of
Arbitrator Steven J. Goldsmith 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/
A grievance was filed in this case by the grievant disputing the
Activity's accounting of official time between his positions as Eastern
Region Vice President and First Vice President of Local 1917. The
grievance demanded that any official time taken in the grievant's
capacity as local vice president not be charged against the hour
allotment for the regional vice president, and the grievance stated that
it covered "all past and future unauthorized charges of representation
time against the Eastern Vice President's allotment of 416 hours." The
grievance was not resolved and was submitted to arbitration on the
following stipulated issue:
Is the Agency justified in denying official time to (the
grievant) for Union representational activities in excess of
twenty per cent or four hundred and sixteen hours per year? If
not, what shall the remedy be?
The Arbitrator determined that the Activity's action was not
justified. In addition, with respect to a remedy, the Arbitrator stated
as follows:
I am aware that only the rights of (the grievant) were
litigated" here; not those of any other Union official. However,
to avoid the necessity for an additional arbitration, (should the
parties fail to agree on relief, if any, for other officials), I
have granted the Union's request for a remedy for employees
"similarly situated" to (the grievant).
Accordingly, as his award the Arbitrator directed certain remedial
action with respect to the grievant and with respect to other employees
similarly situated. The Arbitrator in his award also expressly retained
jurisdiction over this matter for a limited time for the limited purpose
of deciding any disputes as to the directed remedy.
As one of its exceptions, the Agency contends that the Arbitrator
exceeded his authority. Specifically, the Agency principally argues
that the scope of relief granted by the Arbitrator was in excess of his
contractual authority by deciding issues not raised or otherwise
presented to him at the hearing and by granting relief to persons who
did not file a grievance. It is the Agency's position that the
Arbitrator should have confined his award to the issue stipulated by the
parties which was concerned solely with the use of official time by the
grievant.
The Authority has indicated that an award may be found deficient as
in excess of the arbitrator's authority when the arbitrator awards
relief to employees who did not file grievances on their own behalf or
who did not have the union file grievances for them. See Internal
Revenue Service, Birmingham District Office and National Treasury
Employees Union, NTEU Chapter 12, 6 FLRA 143 (1981) (citing Hotel
Employees Union v. Michelson's Food Services, 545 F.2d 1248 (9th Cir.
1976)). In terms of this case, the Authority concludes that the award
is deficient. The Agency has substantiated that the issue as stipulated
by the parties for resolution pertained solely to the Activity's
accounting of official time for the grievant. Furthermore, it is
unsubstantiated that either the parties' collective bargaining
agreement, see IRS, Birmingham, 6 FLRA at 147, or the Arbitrator's
purpose of avoiding an additional arbitration authorized the Arbitrator
"to transform the proceeding into a sort of class action on behalf of
all employees . . . who were similarly situated," see Michelson's Food
Services, 545 F.2d at 1253. In these circumstances the Authority finds
that the Arbitrator decided an issue not presented to him when he
awarded relief under the parties' collective bargaining agreement to
"other employees similarly situated," as well as to the grievant, and
that consequently the Arbitrator exceeded his authority. Accordingly,
the award is modified by striking "and to other employees similarly
situated" in paragraphs 2-3 of the award and by striking "and other
employees similarly situated" in paragraph 4 of the award. /2/
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In its opposition the Union asserts that the Agency's exceptions,
which were filed by Department of Justice, should be dismissed because
Immigration and Naturalization Service, and not Department of Justice,
was a "party" to the arbitration. However, the Authority finds that the
exceptions in this case have been properly filed by Department of
Justice on behalf of its component bureau the Immigration and
Naturalization Service and in accordance with part 2425 of the
Authority's Rules and Regulations.
/2/ The Agency also filed an exception to the Arbitrator's retention
of jurisdiction. Because the Agency fails to establish that the
retention of jurisdiction for 30 days for the limited purpose of
resolving any dispute over the remedy is deficient, this exception is
denied.
15 FLRA 75; FLRA O-AR-643; July 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limits for Filing Exceptions
DIGEST NOTES
The fact that an arbitrator retains jurisdiction of a matter to
resolve problems that might arise concerning the award does not deprive
the award of finality or extend the time limit for filing exceptions to
the award with the Authority. Nor does a request for clarification and
the mere possibility of modification of the award by the arbitrator
render the award interlocutory. Unless the arbitrator, in response to
the request, modifies the award in such a way as to give rise to alleged
deficiencies, the time period for filing exceptions with the Authority
begins on the date that the award is served on the filing party and not
with the arbitrator's response to the request.
SAN ANTONIO REAL PROPERTY
MANAGEMENT AGENCY
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3782
Case No. O-AR-643
This matter is before the Authority on exceptions to the award of
Arbitrator John A. Bailey filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and 2425.1 of the
Authority's Rules and Regulations. For the reasons stated below, it has
been determined that the exceptions must be dismissed as untimely filed.
The Arbitrator's award in this case is dated November 17, 1982, and
appears to have been served on the parties by mail on the same day. In
his award, the Arbitrator found that the Activity had not violated the
parties' collective bargaining agreement, as interpreted by the
Arbitrator, and denied the Union's grievance. The Arbitrator also
retained jurisdiction of the matter to resolve any dispute concerning
application of the award. The Union subsequently invoked the
Arbitrator's retained jurisdiction, contending that management had not
complied with the Arbitrator's interpretation of the agreement in a
number of instances. By letter of July 12, 1983, the Arbitrator
essentially found that the Activity had not violated the award as
alleged, denied the Union's complaint and referred the parties to
pertinent language in his November 17, 1982 award. On August 16, 1983,
the Union again wrote to the Arbitrator, this time requesting
clarification of the award as interpreted and applied in the
Arbitrator's July 12 letter. The Arbitrator responded by letter of
August 29, 1983, essentially reiterating pertinent portions of his
award. The Union then filed the instant exceptions with the Authority
on September 27, 1983.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1(b) of the Authority's Rules and Regulations, as amended, /2/
which amendments are applicable to exceptions to arbitration awards
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 of November 17, 1982 had to be
filed with the Authority by the close of business on December 21, 1982.
Thus, it immediately and clearly appears that the exceptions filed by
the Union on September 27, 1983 are untimely. The Union, however,
apparently takes the position that its exceptions are timely filed from
the Arbitrator's award "as clarified" by his letter of August 29, 1983.
As the Authority recently held in Portsmouth Naval Shipyard and
Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA No. 28 (1984),
the fact that an arbitrator retains jurisdiction of a matter to resolve
problems that might arise concerning the award does not deprive the
award of finality or extend the time limit for filing exceptions to the
award with the Authority. Nor does a request for clarification and the
mere possibility of modification of the award by the arbitrator render
the award interlocutory. Unless the arbitrator, in response to the
request, modifies the award in such a way as to give rise to alleged
deficiencies, the time period begins with the award and not with the
arbitrator's response to the request.
In terms of this case, the Arbitrator did not modify his November 17,
1982 award in any way in response to the Union's request. Rather, in
his responses, the Arbitrator essentially reiterated pertinent portions
of his award and determined, contrary to the Union's allegations, that
the Activity had complied with the award. Thus, the time limit for
filing exceptions to the Arbitrator's award began on the date the award
was served on the parties, i.e., November 17, 1982, and expired on
December 21, 1982. The exceptions filed by the Union on September 27,
1983 are therefore untimely.
Accordingly, the Union's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 24, 1984
Jan K. Bohren, Executive
Director/Administrator
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendme4ts Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
Stat. 47, 48 (1984)) to provide that the time limit for filing
exceptions to an arbitrator's award begins on the date of the award is
served on the filing party.
/2/ 49 Fed.Reg. 22623 (1984).
15 FLRA 74; FLRA O-AR-555; July 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work
DIGEST NOTES
The dispute in this matter concerned the adoption by the agency of
new criteria governing eligibility for incentive awards. The union
filed a grievance. The Arbitrator determined that: (1) the dispute was
arbitrable; (2) the new criteria had been adopted without notification
or bargaining with the union; (3) adoption and modification of policies
governing the incentive awards program were negotiable matters; and (4)
the agency had violated the master and local agreements. Consequently,
he ordered that: (1) the grievance be sustained; (2) the employer give
reasonable notice to the union if it proposed to use or modify any
criteria governing incentive awards; (3) the employer to bargain
concerning any modifications of criteria governing incentive awards. In
its exception, the agency contended that the award is contrary to Sec.
7105(a)(2)(E) of the Statute. The Authority found that the award is not
contrary to Sec. 7105(a)(2)(E) of the Statute as negotiability disputes
that arise between an agency and a union under Sec. 7117(c)(1) must be
resolved by the Authority as required by Sec. 7105(a)(2)(E). However,
the Authority has expressly held that an integral aspect of management's
right to direct employees under Sec. 7106(a)(2)(A) and its right to
assign work under Sec. 7106(a)(2)(B) is to prescribe the standards which
an employee must attain in order to be eligible for a reward for
superior performance. Thus, the arbitrator could not properly order the
agency to negotiate with the union concerning the decision of the agency
to modify the criteria governing incentive awards. Therefore, the
Authority found that the award was deficient as contrary to Sec.
7106(a)(2)(A) and (B) of the Statute and modified the award accordingly.
LOUIS A. JOHNSON VETERANS
ADMINISTRATION MEDICAL CENTER,
CLARKSBURG, WEST VIRGINIA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2384
Case No. O-AR-555
This matter is before the Authority on an exception to the award of
Arbitrator Dennis R. Nolan 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 dispute in this matter concerns the adoption by the Activity of
new criteria governing the eligibility for incentive awards. The Union
filed a grievance that was submitted to arbitration claiming that the
Activity violated provisions of the master and local collective
bargaining agreements by failing to negotiate with the Union before
modifying the criteria for the awards. Thus, the Arbitrator framed the
issues as follows: "A. Is the dispute arbitrable? B. If the dispute is
arbitrable, did the Employer violate the collective bargaining agreement
by adopting new criteria governing eligibility for incentive awards
without bargaining with the Union? If so, what shall the remedy be?"
After determining the dispute to be arbitrable, the Arbitrator
determined that the new criteria had been adopted without notification
to or bargaining with the Union. After considering the relevant
provisions of the master and local agreements, /1/ as well as the
Statute, the FPM and an FPM Bulletin, the Arbitrator determined that the
adoption and modification of policies governing the incentive awards
program are negotiable matters. Consequently, the Arbitrator ruled that
the Activity had violated its obligations under the master and local
agreements and ordered as follows:
The grievance is sustained insofar as it alleges that the
Employer adopted new criteria governing incentive awards in August
1982 without notifying or bargaining with the Union.
The Employer is ordered to give reasonable notice to the Union
if it proposes to use any criteria governing incentive awards
other than those applied prior to August 1982, or if it proposes
to modify those criteria.
The Employer is further ordered, upon request by the Union, to
bargain with the Union in good faith concerning any modification
or substitution of criteria governing incentive awards.
In its exception the Agency contends that the award is contrary to
the Statute. Specifically, the Agency maintains on the basis of
Interpretation and Guidance, 11 FLRA No. 107 (1983), that the award is
contrary to section 7105(a)(2)(E) of the Statute which provides: "The
Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-- resolve issues
relating to the duty to bargain in good faith under section 7117(c) of
this title(.)" The Authority in the Interpretation and Guidance
addressed the question of whether the Federal Service Impasses Panel has
the authority to resolve questions concerning the obligation to bargain
which arise after the Panel has asserted jurisdiction over an impasse in
negotiations pursuant to section 7119 of the Statute. The Authority
concluded that section 7119 does not authorize the Panel to resolve
issues as to whether there is an obligation to bargain. Rather, section
7105(a)(2)(E) requires that the Authority resolve such issues. The
Agency's position in support of this exception is essentially that
because the Authority concluded that the Panel was precluded by the
Statute from resolving issues concerning the obligation to bargain, the
Arbitrator was likewise precluded from resolving whether the criteria
governing incentive awards are within the duty to bargain.
The Authority concludes with respect to this contention of the Agency
that the award is not contrary to section 7105(a)(2)(E) of the Statute.
In the Interpretation and Guidance upon which the Agency relies the
Authority said, in pertinent part:
Specific provisions of the Statute provide for the resolution
by the Authority of disputes relating to the parties' obligation
to bargain. Thus, section 7105(a)(2)(E) of the Statute makes it
clear that the Authority is required to resolve issues relating to
the duty to bargain in good faith under section 7117(c) which
specifically contemplates an appeal "to the Authority." In order
to implement this statutory imperative, Part 2424 of the
Authority's Rules and Regulations sets forth the procedures for
union appeals to the Authority from agency allegations that the
duty to bargain in good faith does not extend to matters proposed
to be bargained. Therefore, it is clear that, based on the plain
language of the Statute as implemented in the Authority's Rules
and Regulations, negotiability issues which arise during the
collective bargaining process must be resolved through appeal to
the Authority. (Footnote omitted.)
Clearly, therefore, negotiability disputes which arise between an
agency and an exclusive representative under section 7117(c)(1) /2/ must
be resolved by the Authority as required by section 7105(a)(2)(E). /3/
Consequently, such disputes may not be resolved by an arbitrator in the
guise of a grievance under the negotiated grievance procedure contained
in the collective bargaining agreement between the exclusive
representative and the agency.
Of course, disputes relating to the meaning and application of
provisions of the parties' collective bargaining agreement, including
provisions therein dealing with the obligation to bargain, are subject
to resolution under the negotiated grievance procedure and a
negotiability appeal is not the proper forum in which to resolve such
disputes. See, e.g., National Federation of Federal Employees, Local
1430 and Department of the Navy, Northern Division, U.S. Naval Base,
Philadelphia, Pennsylvania, 9 FLRA 1086, 1087 (1982); American
Federation of Government Employees, AFL-CIO, Local 1931 and Department
of the Navy, Naval Weapons Station, Concord, California, 2 FLRA 182, 183
(1979). Therefore, the dispute concerning the meaning and application
of the collective bargaining agreement in this case was raised under the
negotiated grievance procedure and the parties quite properly did not
submit the matter to the Authority under the negotiability appeals
procedures.
Further, nothing prevents an arbitrator from considering the meaning
and applicability of relevant Federal law and regulations when resolving
a grievance under the negotiated grievance procedure. Indeed, where
exceptions to an arbitration award are filed with the Authority, section
7122 authorizes the Authority to take such action as it considers
necessary with respect to an arbitration award which it finds deficient
because the award is contrary to any law, rule or regulation. To avoid
such findings of deficiency by the Authority, an arbitrator must
perforce consider any relevant law, rule or regulation when fashioning a
grievance arbitration award in the Federal sector.
In this case, the Arbitrator was asked to resolve a grievance
properly before him of whether the Activity's actions violated
negotiated provisions of the collective bargaining agreements. In the
course of doing so, he considered whether the criteria governing
incentive awards were within the duty to bargain under the provisions of
the master and local agreements and collaterally, under relevant
provisions of law and regulation. Contrary to the Agency's contention,
the Authority finds that the Statute in no manner precluded the
Arbitrator from considering the collateral issue of whether, under
relevant statute and regulations, the obligation to bargain extends to
criteria governing incentive awards. Thus, the Arbitrator properly
considered the relevant laws, rules and regulations relating to the
obligation to bargain in the course of resolving the grievance before
him of whether the Activity's actions violated a negotiated clause of
the collective bargaining agreement. See National Archives and Records
Service, General Services Administration and Local 2578, American
Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982).
Although the Arbitrator was not prohibited by the Statute from
considering the collateral issue of the obligation to bargain in the
course of resolving the grievance, his conclusion in that regard, of
course, must be consistent with the Statute and relevant decisions of
the Authority and the determination is subject to review by the
Authority on the filing of an exception contending that the award is
deficient under section 7122(a) of the Statute. See id. at 383. In
this respect the Authority has expressly held that an integral aspect of
management's exercise of its right to direct employees under section
7106(a)(2)(A) and its right to assign work under section 7106(a)(2)(B)
is to prescribe the standards which an employee must attain in order to
be eligible for a reward for superior performance. National Treasury
Employees Union and Internal Revenue Service, 14 FLRA No. 77 (1984)
(proposals 1-2). Thus, in terms of this case, the Arbitrator could not
properly order the Activity to negotiate with the Union concerning the
decision of the Activity to modify the criteria governing incentive
awards. Consequently, the Authority finds that the award is deficient
as contrary to section 7106(a) of the Statute to the extent that it
subjects the Activity's decision to modify the criteria governing
incentive awards to negotiation. See Commander, 554th Combat Support
Group (TAC), Nellis Air Force Base, Las Vegas, Nevada and American
Federation of Government Employees, Local 1199, AFL-CIO, Nellis Air
Force Base, 14 FLRA No. 14 (1984). Accordingly, the award is modified
to provide as follows:
The grievance is sustained insofar as it alleges that the
Employer adopted new criteria governing incentive awards in August
1982 without notifying the Union and affording it an opportunity
to bargain on impact and implementation.
The Employer is ordered to give reasonable notice to the Union
if it proposes to use any criteria governing incentive awards
other than those applied prior to August 1982 or if it proposes to
modify those criteria.
The Employer is further ordered, upon request by the Union, to
bargain with the Union in good faith concerning the impact and
implementation of any modification or substitution of criteria
governing incentive awards.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ As the Arbitrator said in his award:
. . . More pertinently, the parties themselves agreed to
negotiate about such changes. Article 4, Section 5 of the Master
Agreement is the clearest statement of the duty to negotiate:
"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." At least two other provisions of that Agreement
state the same obligation in different language (Preamble, Section
2 and Article 6, Section 6), as do two provisions of the Local
Agreement (Articles II and XXXII).
/2/ Section 7117(c)(1) reads as follows:
Except in any case to which subsection (b) of this section
applies, if an agency involved in collective bargaining with an
exclusive representative alleges that the duty to bargain in good
faith does not extend to any matter, the exclusive representative
may appeal the allegation to the Authority in accordance with the
provisions of this subsection.
/3/ Section 7105(a)(2)(E) reads as follows:
(a)(2) The Authority shall, to the extent provided in this chapter
and in accordance with regulations prescribed by the Authority--
(E) resolve issues relating to the duty to bargain in good faith
under section 7117(c) of this title(.)
15 FLRA 73; FLRA O-NG-561; July 24, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.35 Disciplinary Action
2152.40 Assign Work
DIGEST NOTES
A proposal is nonnegotiable that would give employees the option to
remain silent in any discussion with management that might result in
discipline. The proposal would immunize employees from discipline for
refusing to account for their work or prior conduct. Management, at
least in part, exercises its authority to assign work and to direct
employees by holding employees accountable for meeting the standards set
by management for their performance. Accountability encompasses
management's right to an explanation from an employee as to why he or
she is unable or unwilling to meet established standards of performance,
since mere statistical data alone may be insufficient. Such conclusion
is equally applicable to circumstances where an employee is called to
account for failure to meet prescribed standards of conduct or for other
derelictions which may result in discipline but do not rise to the level
of criminal conduct. Thus the proposal interferes with management's
rights to direct employees and to take disciplinary action against
employees under Sec. 7106(a)(2)(A); to assign work under Sec.
7106(a)(2)(B). (provision 1)
Although management's right to direct employees (Sec. 7106(a)(2)(A))
and to assign work (Sec. 7106(a)(2)(B)) encompasses the right to receive
an explanation from an employee for his substandard performance or
conduct, such right does not, under appropriate circumstances, vitiate
an employee's right to representation under Sec. 7114(a)(2)(B).
(footnote 3)
A proposal is negotiable that would include within the negotiated
grievance procedure certain actions resulting from the application of
management-established critical elements and performance standards to an
employee. (provision 2)
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
and
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
Case No. O-NG-561
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of two provisions of a local agreement
disapproved by the Agency head pursuant to section 7114(c) of the
Statute. /1/ Upon careful consideration of the entire record, including
the parties' contentions, the Authority makes the following
determinations. /2/
Article 5, Section 6.
In any discussion with management that an employee believes
might result in action against himself/herself, the employee shall
have the right to remain silent. However, remaining silent does
not bar the EMPLOYER from proceeding with any action deemed
appropriate.
In agreement with the parties, the Authority finds that the issue
raised by Provision 1 is essentially the same as that which was
presented in International Brotherhood of Electrical Workers, AFL-CIO,
Local 1186 and Navy Public Works Center, Honolulu, Hawaii, 4 FLRA 217
(1980), enforcement denied, Navy Public Works Center, Pearl Harbor,
Honolulu, Hawaii v. Federal Labor Relations Authority, 678 F.2d 97 (9th
Cir. 1982). That is, both the provision in this case and the proposal
examined by the court in Navy Public Works Center would have precluded
disciplining an employee for refusing to account for his or her actions,
i.e., for insubordination, but would not have prevented imposition of
discipline for the underlying conduct giving rise to the discussion. In
light of the decision of the Ninth Circuit, the Authority concludes that
the instant provision does not establish a negotiable procedure under
section 7106(b)(2) of the Statute. Rather, by totally immunizing
employees from disciplinary action for refusing to answer questions
concerning their official duties in discussions which they believe may
result in disciplinary proceedings, the provision directly interferes
with substantive management rights.
In this regard, in National Treasury Employees Union and Department
of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
nom. National Treasury Employees Union v. Federal Labor Relations
Authority, 691 F.2d 553 (D.C. Cir. 1982), the Authority noted that there
is "a direct relationship between the content of performance standards
and the identification of critical elements and the right of an agency
to direct employees under section 7106(a)(2)(A) of the Statute and to
assign work under section 7106(a)(2)(B) of the Statute." In other words,
management, at least in part, exercises its authority to assign work and
to direct employees by holding the employees accountable for meeting the
standards set by management for the performance of that work. The
Authority now concludes that accountability encompasses management's
right to an explanation from an employee as to why he or she is unable
or unwilling to meet established standards of performance, since mere
statistical data alone may be insufficient. Such conclusion is equally
applicable to circumstances where an employee is called to account for
failure to meet prescribed standards of conduct or for other
derelictions which may result in discipline but do not rise to the level
of criminal conduct. /3/
Thus, Provision 1, by giving employees the option to remain silent in
circumstances out of which discipline may result, directly interferes
with management's right to direct employees and assign work. Moreover,
by immunizing employees from discipline for refusing to account for
their work or prior conduct, Provision 1 also prevents management from
acting at all with respect to the right under section 7106(a)(2)(A) of
the Statute to take disciplinary action against employees. Hence, in
agreement with the rationale of the Ninth Circuit's decision in Naval
Public Works Center, supra, the Authority finds Provision 1 to be
outside the Agency's duty to bargain.
Article 20, Section 3.
Performance standards and critical elements shall be fair and
equitable, job related and consistent with the classification
standards for the job. Any employee who believes the application
of a standard or critical element does not meet the above criteria
shall be allowed to grieve through the grievance procedure of this
agreement. In resolving grievances involving critical elements
and standards the Council representatives may direct requests for
access to said elements and standards to the supervisor, to aid in
resolving the complaint. Such record of critical elements and
performance standards for all employees within the area concerned
in the complaint shall be made available. The appropriate Council
representative will limit such requests to cases in which there is
a bona fide complaint regarding critical elements and performance
standards. (Only the underscored sentence of the provision is in
dispute.)
The Agency contends that insertion of the words "the application of"
immediately before the words "critical elements" in the disputed
sentence is necessary to bring Provision 2 into compliance with the
Authority's holding in American Federation of Government Employees,
AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence
Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981),
enforced sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
1982, cert. denied, 103 S.Ct. 2085 (1983). In that decision the
Authority stated that a negotiated grievance procedure may extend to
actions resulting from the application of management-established
critical elements and performance standards to an employee. In this
respect, the Union asserts that the disputed sentence is not intended to
extend the reach of the negotiated grievance procedure beyond the
boundaries established in the immediately preceding standards. Such an
interpretation is consistent with the language of the provision itself
and is adopted for purposes of this decision. Hence, contrary to the
Agency's contention, the Authority finds that the provision would not
extend the coverage of the grievance procedure beyond those matters
found to be appropriate in Saint Lawrence Seaway Development
Corporation. Therefore, based on Saint Lawrence Seaway Development
Corporation and the reasons stated therein, Provision 2 is within the
Agency's obligation to bargain. See also American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 3 FLRA 784 (1980) (Union Proposal 5).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
relates to Provision 1 be, and it hereby is, dismissed. IT IS FURTHER
ORDERED that the Agency shall rescind its disapproval of Provision 2,
which was bargained and agreed to by the parties at the local level.
/4/
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency withdrew a declaration of nonnegotiability concerning
a third provision of the agreement.
/2/ The Union's contention that the collective bargaining agreement
is binding on the parties as executed because the Agency head's
disapproval was not served on the Union within 30 days from the date the
agreement was executed cannot be sustained. The record indicates that
the agreement was executed on August 5, 1981, and that the Agency head's
disapproval was served on the Union, within the meaning of sections
2429.27(b) and (d) of the Authority's Rules and Regulations (i.e.,
deposited in the mail by certified mail) on September 4, 1981, exactly
30 days from the date the agreement was executed. The Union's
contention that the Agency's statement of position was untimely filed
also cannot be sustained. Section 2424.6 of the Authority's Rules and
Regulations provides that the time limit for filing a statement of
position is 30 days after the date of receipt of a copy of the petition
by the Agency head. In this case, the Union's petition was received by
the Agency head on September 17, 1981, and the statement was filed on
October 16, 1981.
/3/ The right to receive an explanation for substandard performance
or conduct does not, under appropriate circumstances, vitiate an
employee's right to representation pursuant to section 7114(a)(2)(B) of
the Statute.
/4/ In finding Provision 2 to be within the duty to bargain, the
Authority makes no judgment as to its merits.
15 FLRA 72; FLRA 9-RA-8, 9-RA-9; July 24, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3150. Representation Unit Determination
3151.01 Community of Interest
3153. Special Situations
3153.15 Reorganization
DIGEST NOTES
The agency filed a petition asserting a good faith doubt that the
union continued to represent a majority of the employees in the existing
units in view of two reorganizations which occurred since the units were
certified. The agency also contended that the reorganizations
substantially affected the scope and character of such units so that
they were no longer appropriate. The Authority found that the agency's
assertion of a good faith doubt was justified where: (1) the union had
not requested negotiations with respect to conditions of employment at
any time since it became the exclusive bargaining representative of the
employees; (2) during the time that the union had been the exclusive
representative, no grievances were filed or processed with the exception
of one grievance filed shortly before the hearing in this case and (3)
only 5 of 200 employees were on dues withholding at the time of the
hearing and no stewards were ever designated to represent the employees
in either unit.
The Authority found that although the two reorganizations which
occurred altered the number of employees in the bargaining units, the
mission, scope and character of the Western Regional Office did not
substantially change. The Authority also found that former HCRS
employees accreted to units exclusively represented by the union, and
that employees in the units continue to share a community of interest.
Moreover, the units continue to promote effective dealings and
efficiency of agency operations and, therefore, remain appropriate for
the purpose of exclusive recognition. The Authority concluded that it
will effectuate the purposes and policies of the Statute to afford the
employees in such units the opportunity to express their desires with
respect to continued exclusive representation by the union.
The Authority found that the following units were appropriate for the
purpose of exclusive recognition: (1) All professional employees of the
agency's Western Regional Office, excluding non-professional employees,
management officials, supervisors, employees engaged in Federal
personnel work other than in a purely clerical capacity, and guards;
and (2) All non-professional classified employees of the Western
Regional Office, excluding professional employees, management officials,
supervisors, employees engaged in Federal personnel work other than in a
purely clerical capacity, and guards.
DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
WESTERN REGIONAL OFFICE
SAN FRANCISCO, CALIFORNIA
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1, INDEPENDENT
Case Nos. 9-RA-8, 9-RA-9
Upon petitions duly filed under section 7111(b)(1) of the Federal
Service Labor-Management Relations Statute (the Statute), a hearing was
held before a hearing officer of the Authority pursuant to the
Authority's Decision on Request for Review remanding the matter to the
Acting Regional Director. /1/ The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this consolidated case, including the
parties' contentions, the Authority finds:
The Activity/Petitioner filed the instant petitions asserting a good
faith doubt that the incumbent labor organization, National Federation
of Federal Employees, Local 1 (the Union), continues to represent a
majority of the employees in the existing exclusive bargaining units in
view of two reorganizations which have occurred since the units were
certified in 1971. It also contends that the reorganization
substantially affected the scope and character of such units so that the
units no longer remain appropriate. /2/
The Union was certified in 1971 as the exclusive representative for
two units of employees of the National Park Service (NPS) in San
Francisco, California, one including all professionals, and the second
including all non-professionals.
A reorganization took place on June 30, 1972, which eliminated more
than one-half of the total employee complement, reducing the
professional unit by 80 percent. Another reorganization, on February 9,
1981, merged the employees of the Heritage Conservation and Recreation
Service (HCRS), formerly located in Denver, Colorado, with the Western
Regional Office, located in San Francisco, California, thereby
increasing the size of both units. These reorganizations, the Activity
asserts, substantially changed the nature, character, and scope of the
original bargaining units. In addition, the Activity asserts that it
has a good faith doubt with respect to the continued majority status of
the Union. In support of its assertion, the Activity notes, inter alia,
that: (1) the Union has never negotiated a collective bargaining
agreement for either unit; (2) despite the fact that the parties
entered into a dues withholding agreement, only 5 of a total of over 200
employees from both units are presently on dues withholding; (3)
negotiations have never taken place concerning changes in conditions of
employment; (4) there are no stewards representing the employees of
either unit; (5) only one grievance has been filed over the years; and
(6) none of the Union's officers is employed by the NPS.
The Acting Regional Director dismissed the petitions, finding that
they were not supported by adequate objective evidence to establish a
reasonable basis for doubting the Union's majority status or that the
recent reorganization substantially affected the scope and character of
the units to the extent they no longer are appropriate. Thereafter, the
Authority granted the Activity's request for review, finding, contrary
to the Acting Regional Director, that the Activity's assertions
reasonably support a good faith doubt, based on objective
considerations, of the Union's continued majority status as well as the
current appropriateness of the units, and remanded the matter to the
Acting Regional Director. Subsequently, a hearing was conducted in
order to establish a full and complete record with respect to all
issues.
As to the continued appropriateness of the exclusively recognized
units, the evidence leads the Authority to the conclusion that although
the two reorganizations which occurred altered the number of employees
in the bargaining units, nevertheless the mission, scope and character
of the Western Regional Office did not substantially change.
Thus, the primary mission of the Regional Office has been, and
continues to be, to provide administrative support for the operation of
National Parks in California, Hawaii, Nevada, and part of Arizona. This
includes planning for the acquisition and development of Federal lands
and water areas for recreational purposes. The mission also includes
providing archaeological services to Federal agencies involved in
construction efforts.
According to the Activity's personnel management specialist, the
mission of the abolished HCRS was "to provide planning and financial
assistance to state and local governments, and also to provide
enterprise, in the area of outdoor recreation, and also to provide
heritage conservation services to develop and provide historic
conservation services to outside groups." The record reveals that
although the missions of both the Regional Office and the former HCRS
are now pursued by the Regional Office, no dilution of the primary
mission of the Regional Office has taken place by the addition of the
HCRS functions and its former employees to the Regional Office's
operation.
In sum, the record supports a finding that the reorganization which
moved HCRS into the Park Service was done to reduce the scope of
functions that the HCRS had been performing and did not change the
mission of the Regional Office. In this connection, according to
statements attributed to the Secretary of the Interior at the time of
the reorganization, "the emphasis was now more on going towards
supporting the existing national parks than being involved in the
alternative mission."
The units represented by the Union at the Regional Office were
substantially larger than the HCRS which was abolished and transferred
into it. The transfer added only two new job classifications to the
Regional Office bargaining unit, covering only one employee each. All
other job classifications encumbered by former HCRS employees already
existed in the Regional Office. Prior to the reorganization, HCRS
employees were in job classifications similar to those in the Regional
Office, such as historian, architect, outdoor recreation planner, and
clerk-typist. Of some 32 sub-units of the various divisions within the
Regional Office, only one is composed entirely of former HCRS employees,
and only three contain more former HCRS employees than Regional Office
employees. Essentially, the employees were merged into the Regional
Office and, in fact, many of the former HCRS employees occupy positions
that were vacant Regional Office positions. Currently there are
approximately 29 employees in the professional employee bargaining unit
of the Regional Office, of which 9, or 31 percent, were former HCRS
employees. There are now about 129 nonprofessional employees, of which
27, or 21 percent, were formerly with HCRS. Originally there were 92
professional and 12 non-professional employees at HCRS. All employees
of the Regional Office are governed by the same personnel policies,
including promotion, reduction-in-force and pay policies; are
physically located in the same building and share common facilities;
and all are under the supervision of the Regional Director. In these
circumstances, the Authority is persuaded that the addition of employees
to the Regional Office because of the reorganization merely eliminated
the separate function of the office from which the employees were
transferred, and strengthened and reinforced the continuing mission of
the Regional Office. Accordingly, the Authority finds that former HCRS
employees accreted to units exclusively represented by the Union, and
that employees in the units continue to share a community of interest.
Moreover, the units continue to promote effective dealings and
efficiency of agency operations. Thus, such units remain appropriate
for the purpose of exclusive recognition under the Statute and their
scope and character have not been substantially changed by the foregoing
circumstances. See Department of the Interior, National Park Service,
Mid-Atlantic Regional Office, Philadelphia, Pennsylvania, 11 FLRA No.
104 (1983).
With respect to the Activity's assertion of a good faith doubt that
the Union continues to represent a majority of employees in the existing
exclusively recognized bargaining units, the Authority finds that the
Union has not requested negotiations with respect to conditions of
employment at any time since it became the exclusive bargaining
representative of the employees in 1971. Also, during the time that the
Union has been the exclusive representative, no grievances have been
filed or processed with the exception of one grievance filed shortly
before the hearing in this case. Finally, only 5 of 200 employees were
on dues withholding at the time of the hearing and no stewards ever have
been designated to represent the employees in either unit.
The Authority concludes that the foregoing circumstances are
sufficient to support a good faith doubt by the Activity/Petitioner as
to the purposes and policies of the Statute to afford the employees in
such units the opportunity to express their desires with respect to
continued exclusive representation by that labor organization.
Based on the foregoing, the Authority finds that the following units
are appropriate for the purpose of exclusive recognition within the
meaning of the Statute:
All professional employees of the Western Regional Office,
excluding non-professional employees, management officials,
supervisors, employees engaged in Federal personnel work other
than in a purely clerical capacity, and guards.
All non-professional classified employees of the Western
Regional Office, excluding professional employees, management
officials, supervisors, employees engaged in Federal personnel
work other than in a purely clerical capacity, and guards.
An election by secret ballot shall be conducted among the employees
in the units described above as soon as feasible. The appropriate
Regional Director shall supervise or conduct the election, as
appropriate, subject to the Authority's Rules and Regulations. Eligible
to vote are those in the voting groups who were employed during the
payroll period immediately preceding the date below, including employees
who did not work during that period because they were out ill, or on
vacation, or on furlough, including those in the military service who
appear in person at the polls. Ineligible to vote are employees who
have quit or were discharged for cause since the designated payroll
period and who have not been rehired or reinstated before the election
date. Those eligible shall vote on whether or not they desire to be
represented for the purpose of exclusive recognition by the National
Federation of Federal Employees, Local 1, Independent.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Western Regional Office, National Park Service, San Francisco,
California, 10 FLRA 502 (1982).
/2/ Section 2422.1(c) of the Authority's Rules and Regulations states
that an activity or an agency may file a petition seeking to clarify a
representation matter "where (it) has a good faith doubt, based on
objective considerations, that the currently recognized or certified
labor organization represents a majority of the employees in the
existing unit or that, because of a substantial change in the character
and scope of the unit, it has a good faith doubt that such unit is now
appropriate." See also section 2422.2(b) of the Authority's Rules and
Regulations to the same effect.
15 FLRA 71; FLRA O-NG-652; July 24, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2152. Management Rights
2152.01 Hire Employees
2152.05 Assign Employees
2152.15 Lay Off Employees
2152.20 Retain Employees
2152.40 Assign Work
2152.60 Filling Positions
2210. Mandatory Subjects of Bargaining
2210.05 Appropriate Arrangements
DIGEST NOTES
A proposal is nonnegotiable that would require the agency to grant a
male employee annual leave or leave without pay for up to thirty
consecutive days to aid in the care of his wife or minor children.
Since the proposal removes management's discretion to deny requested
leave in the circumstances described, it would effectively nullify the
agency's ability to determine when assigned work will be performed and
thus violates management's right, pursuant to Sec. 7106(a)(2)(B) to
assign work. (proposal 1)
A proposal is within the duty to bargain that provides that in the
event of a RIF, existing vacancies will be used to the maximum extent
possible to place employees in continuing positions, who would otherwise
be separated from the employer, provided the employee is qualified and
can properly perform the duties of the position. Given the union's
explanation that the proposal is hortatory rather than mandatory, the
proposal does not interfere with the agency's right to assign, hire,
layoff and retain employees pursuant to Sec. 7106(a)(2)(A), or fill
positions from other appropriate sources pursuant to Sec. 7106(a)(2)(C).
Nor does the proposal violate 5 CFR 7.1 and FPM Chapter 335, Subchapter
1-4, which require retention of discretion by agencies with respect to
making selections from various appropriate sources of candidates.
Rather, the proposal constitutes an appropriate arrangement within the
meaning of Sec. 7106(b)(3) of the Statute. (proposal 2)
A proposal is nonnegotiable that provides that where an injured
employee has been deemed able to return to work by competent medical
authority, the agency must assign the employee his/her regular duties
or, alternatively, duties which are compatible with the employee's
condition. Since, under certain circumstances the proposal would
require the agency to tailor the duties assigned to an employee, the
proposal interferes with the agency's right under Sec. 7106(a)(2)(B) to
assign work. (proposal 3)
A proposal is nonnegotiable that would prevent the agency from making
collateral duty assignments such as Motor Pool Officer or Property
Officer to nonunit personnel. The proposal interferes with management's
right to assign work under Sec. 7106(a)(2)(B). (proposal 4)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL
COUNCIL OF MARSHALS SERVICE LOCALS
and
U.S. MARSHALS SERVICE
Case No. O-NG-652
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issue presented
is the negotiability of four Union proposals. /1/
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
Article 21, Paternity Leave
A male employee may be on annual leave or leave without pay for
up to thirty (30) consecutive days to aid in the care of his wife
or minor children.
The record indicates that the proposal would require that under
specified circumstances, the Agency grant an employee's request for
annual leave or leave without pay without regard to the necessity for
the employee's service during the period covered by the request. As the
Authority noted, in National Treasury Employees Union and Department of
the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980),
affirmed sub nom. National Treasury Employees Union v. Federal Labor
Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), the right "to assign
work" pursuant to section 7106(a)(2)(B) of the Statute "includes the
right to assign general continuing duties, to make specific periodic
work assignments to employees, to determine when such assignments will
occur and to determine when the work which has been assigned will be
performed." Since Union Proposal 1 removes management's discretion to
deny requested leave in the circumstances described, it would
effectively nullify the Agency's ability to determine when assigned work
will be performed and thus violates management's right, pursuant to
section 7106(a)(2)(B) of the Statute, "to assign work." /2/
Article 27, Section 9, Reduction-In-Force
In the event a RIF occurs: Existing vacancies will be used to
the maximum extent possible to place employees in continuing
positions, who would otherwise be separated from the Employer,
provided the employee is qualified and can properly perform the
duties of the position.
The Union states that this proposal is not intended to require either
the filling of vacant positions or placement of bargaining unit
employees who would otherwise be separated in vacant positions. Hence,
it maintains that the proposal is hortatory rather than mandatory.
Given the Union's explanation as to the intent of the proposal and
given that neither the proposal on its face nor the accompanying record
indicates that the proposal is intended to be applied in a manner which
is not in compliance with law or regulation, the Authority finds that
the proposal is materially to the same effect as Provision 2 in American
Federation of Government Employees, AFL-CIO, Local 1692 and Department
of the Air Force, Mather Air Force Base, California, 8 FLRA 194 (1982).
Like the provision in Mather AFB, under this proposal the Agency would
retain its full statutory discretion with respect to whether to utilize
existing vacancies in order to retain employees who would otherwise be
separated. Thus, contrary to the Agency's contentions, Union Proposal 2
does not interfere with the Agency's right to assign, hire, layoff and
retain employees pursuant to section 7106(a)(2)(A) of the Statute, or
fill positions from other appropriate sources pursuant to section
7106(a)(2)(C). Nor does the proposal violate 5 CFR 7.1 and FPM Chapter
335, Subchapter 1-4, which require retention of discretion by agencies
with respect to making selections from various appropriate sources of
candidates. As noted, under the proposal the Agency retains full
discretion in this regard. Based on the foregoing, the Authority finds
that Union Proposal 2 constitutes an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute and is within the duty to
bargain. /3/
Article 33, Section 3, Health and Safety
When an employee is injured on the job and is sent to a medical
facility for treatment, the Employer and the affected employee
agree to accept the determination made by competent medical
authority at the facility as to whether the employee should return
to work. However, the Employer retains the right to require an
employee to undergo a fitness-for-duty examination, at the
Employer's expense, at a later time. If the employee does not
agree with the determination of a competent medical authority,
then it will be at the employee's expense and time to dispute this
finding, subject to the regulations of the OWCP.
The Union characterizes this proposal as being conceptually no
different than a proposal that an injured employee be assigned to "light
duties." Thus, the intent of the proposal is that where an employee has
been deemed able to return to work by competent medical authority, the
Agency must assign the employee his/her regular duties or,
alternatively, duties which are compatible with the employee's
condition. However, in National Federation of Federal Employees, Local
1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3
FLRA 142 (1982), the Authority held a proposal which would under certain
circumstances require the Agency to tailor the duties assigned to an
employee to be outside the duty to bargain. Based upon the Union's
characterization, this proposal is materially to the same effect as the
proposal in that case. For the reasons expressed in Air Force Contract
Management Division, Hagerstown, the Authority finds that Union Proposal
3 would interfere with the Agency's right pursuant to section
7106(a)(2)(B) to assign work and is not within the duty to bargain. /4/
Article 35, Section 2, Assignment of Personnel
Collateral duty assignments such as Motor Pool Officer,
Property Officer, etc., shall be made in accordance with the
procedures set out in Section 3.
Section 3 of Article 35, to which this proposal makes reference,
essentially provides that if the Agency does not utilize the competitive
procedures outlined in Section 1 of that Article, assignments will be
made on the basis of seniority. The competitive procedures established
by that Article provide as follows:
(a). All qualified employees in an office shall be considered
for the assignment.
(b). Qualified employees shall be ranked in accordance with
the annual performance rating.
(c). The selecting official may select any rated employee or
no employee at all.
Among other things, the Agency contends, without controversion, that
the proposal would prevent it from assigning such work to nonunit
personnel. The Agency's interpretation as to the effect of the proposal
is neither incompatible with the language of the proposal, nor, as
noted, is it controverted by the Union. In view of this, it is adopted
for purposes of this decision. In view of this interpretation, the
proposal is materially to the same effect as Union Proposal VI in
National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981),
which the Authority found to be inconsistent with management's right to
assign work pursuant to section 7106(a)(2)(B) of the Statute. For the
reasons expressed in FAA, Union Proposal 4 is not within the duty to
bargain. /5/
Accordingly, 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 with respect to Union Proposals 1, 3, 4 and the
23 proposals referred to in note 1, supra. IT IS FURTHER ORDERED that
the Agency shall upon request (or as otherwise agreed to by the parties)
bargain on Union Proposal 2.
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union's petition originally included 27 proposals. However,
based upon the record, the parties have resolved their dispute as to 23
of those proposals since the filing of the petition. Accordingly, there
is no longer an issue as to whether those proposals are within the duty
to bargain.
/2/ In view of this disposition, it is unnecessary to discuss the
various other contentions as to the nonnegotiability of this proposal
which were raised by the Agency.
/3/ In determining that this proposal is within the duty to bargain,
the Authority makes no judgment as to its merits.
/4/ In view of this disposition, it is unnecessary to address the
Agency's other contentions as to the nonnegotiability of the proposal.
/5/ In view of this disposition, it is unnecessary to address the
Agency's other contentions as to the nonnegotiability of the proposal.
15 FLRA 70; FLRA O-NG-540; July 24, 1984.
DIGEST HEADINGS
300. DEFINITIONS: "Conditions of Employment"
2000. NEGOTIABILITY
2601. Proposal Alleged to be Inconsistent with Government-wide Rules
or Regulations
DIGEST NOTES
Pursuant to 5 U.S.C. 3551, any person who enters upon duty under Sec.
502(f) of Title 32 is provided certain specific reemployment rights.
Consequently, a proposal which concerns employee entitlement in
restoration or reemployment rights to vacant or occupied positions
within the bargaining unit when the employee voluntarily converts from a
technician position to the Active Guard Reserve Program is nonnegotiable
as it concerns matters which are expressly excluded from the definition
of "conditions of employment" by 7103(a)(14)(C) of the Statute.
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
and
DELAWARE NATIONAL GUARD
Case No. O-NG-540
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issue presented
is the negotiability of the following Union proposal:
Prior to an employee voluntarily converting his present
position and status to the AGR Program, he/she will be informed
and will sign a statement of acknowledgment that he/she
understands that, should a termination of tour of duty occur,
he/she will not be entitled to restoration or re-employment rights
to vacant or occupied positions within the bargaining unit.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
The proposal is concerned with the entitlement of an employee to
restoration or reemployment rights to vacant or occupied positions
within the bargaining unit, when the employee voluntarily converts from
a technician position to the Active Guard Reserve (AGR) Program.
Based on the record, the Agency has asserted that under law employees
voluntarily converting from a technician position to the AGR Program
have certain restoration rights. Specifically, the Agency claims that
participation in the AGR Program is duty performed under section 502(f)
of Title 32, /1/ which duty entitles an employee to reemployment to the
position held by the employee when called to duty. On its face, the
specific language of 5 U.S.C. 3551 supports the Agency's contention.
/2/ The Union, to the contrary, claims 5 U.S.C. 3551 does not apply to
employees participating in the AGR Program. However, the Union has not
supported this contention.
Under the Statute, matters "specifically provided for by Federal
statute" are expressly excluded from the definition of "conditions of
employment" in section 7103(a)(14)(C) and hence, are not within the duty
to bargain. See e.g., Association of Civilian Technicians, Pennsylvania
State Council and the Adjutant General, Department of Military Affairs,
Commonwealth of Pennsylvania, 3 FLRA 49 (1980). Since, based on the
record, under Federal law any person who enters upon duty under section
502(f) of title 32 is specifically provided certain reemployment rights
under 5 U.S.C. 3551, the Union's proposal is expressly excluded by
section 7103(a)(14)(C) from the definition of "conditions of employment"
and, therefore, is not within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's
petition for review be, and it hereby is, dismissed. /3/
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 502 of Title 32 provides as follows:
Sec. 502. Required drills and field exercises
(f) Under regulations to be prescribed by the Secretary of the
Army or Secretary of the Air Force, as the case may be, a member
of the National Guard may--
(1) without his consent, but with the pay and allowances
provided by law; or
(2) with his consent, either with or without pay and
allowances; be ordered to perform training or other duty in
addition to that prescribed under subsection (a). Duty without
pay shall be considered for all purposes as if it were duty with
pay.
/2/ 5 U.S.C. 3551 in relevant part provides as follows:
Sec. 3551. Restoration; Reserves and National Guardsmen
An employee as defined by section 2105 of this title or an individual
employed by the government of the District of Columbia, permanent or
temporary indefinite, who is ordered to active duty or to duty under
sections 502-503 of title 32 as a Reserve of the armed forces or member
of the National Guard is entitled, on release from duty within the time
limits specified in section 9(g) of the Military Selective Service Act
of 1967 (50 U.S.C.App. 459(g)), to be restored to the position held by
him when ordered to duty(.)
/3/ In view of its decision herein, the Authority finds it
unnecessary to address the Agency's other arguments concerning the
nonnegotiability of the proposal.
15 FLRA 69; FLRA O-AR-667; July 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1652.01 Disagreement with Arbitrator's Reasoning
DIGEST NOTES
The dispute in this matter concerns the agency's refusal to allow a
union representative, who was not an agency employee, access to the
agency's premises because of his prior disorderly conduct. The
Arbitrator found that the agency violated the parties' collective
bargaining agreement by not recognizing the individual as the union's
representative and permitting him reasonable access to unit employees.
In its exceptions, the agency argued that the award was contrary to law,
arbitrary, contradictory and otherwise faulty; and that the arbitrator
exceeded his authority and based his conclusion on a nonfact and the
award did not draw its essence from the parties' agreement. The
Authority held that the agency's exceptions constitutes nothing more
than disagreement with the arbitrator's findings of fact, his reasoning
and conclusions, and generally with his interpretation and application
of the parties' agreement. The Authority denied the exceptions as they
do not provide a basis for finding the award deficient.
GENERAL SERVICES ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 236
Case No. O-AR-667
This matter is before the Authority on exceptions to the award of
Arbitrator Roger P. Kaplan 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 dispute in this matter concerned the Agency's conduct toward the
Union's designated representative, a former employee of the Agency who
had been removed from employment for disorderly conduct while acting as
a Union official. The dispute arose when the Agency refused to allow
the individual, now a non-employee national union representative, access
to the Agency's premises, and refused to deal with him in this capacity.
The Arbitrator found that the Agency violated the parties' collective
bargaining agreement by not permitting the representative reasonable
access to unit employees and by not recognizing him as a representative.
The Arbitrator therefore directed the Agency to recognize the
individual as a union representative and permit him to have access to
unit employees. The Arbitrator noted, however, that he did not condone
the individual's prior misconduct and added an admonishment that as a
Union representative the individual had a responsibility to act in
accordance with accepted labor relations practices and could not act
with impunity.
In its exceptions, the Agency argues that the Arbitrator erred in
concluding that the Agency violated the parties' agreement by not
permitting the Union representative access to Agency employees; that
the Arbitrator's rejection of the Agency's justification for not dealing
with the Union representative was contrary to law, arbitrary,
contradictory and otherwise faulty; and that the Arbitrator's finding
that the Agency violated the parties' agreement by not recognizing the
Union representative was beyond the Arbitrator's authority, was based on
a nonfact, and did not draw its essence from the parties' agreement.
Upon consideration of the entire record before the Authority, the
Authority concludes that the Agency has failed to establish that the
Arbitrator's award is in any way deficient. It is clear that the Agency
is merely attempting to relitigate the merits of the case before the
Authority and that the thrust of the Agency's assertions essentially
constitutes nothing more than disagreement with the Arbitrator's
findings of fact, his specific reasoning and conclusions, and generally
with his interpretation and application of the parties' agreement.
Consequently, the exceptions do not provide any basis for finding the
award deficient. See Federal Correctional Institution, Petersburg,
Virginia and American Federation of Government Employees, Local 2052, 13
FLRA No. 27 (1984).
Accordingly, the Agency's exceptions are denied. /1/
Issued, Washington, D.C., July 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In denying the exceptions, the Authority emphasizes that such
denial shall not be construed as condonation of the Union
representative's past misconduct and also endorses the Arbitrator's
admonishment that the representative cannot act "with impunity." See
Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and
American Federation of Government Employees (AFL-CIO), Local No. 3399,
14 FLRA No. 20 (1984).
15 FLRA 68; FLRA O-AR-773; July 18, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limit for Filing Exceptions
DIGEST NOTES
As the union's exceptions were untimely filed and as the Authority is
not empowered to extend or waive the time limit for filing exceptions to
arbitrators' awards, the Authority dismissed the exceptions.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3787
and
SOCIAL SECURITY ADMINISTRATION,
HARLINGTON, TEXAS
Case No. O-AR-773
This case is before the Authority on exceptions to the award of
Arbitrator Bernard Marcus 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 reasons stated
below, it has been determined that the exceptions must be dismissed as
untimely filed.
The Arbitrator's undated award appears to have been served on the
parties by mail in March 1984, and received on April 2, 1984.
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 section 2429.21 of the
Rules and Regulations, which is also applicable to computation of the
time limit here involved, any exceptions to the Arbitrator's award in
this case had to be filed with the Authority no later than the close of
business on May 1, 1984. However the exceptions were not filed until
May 10, 1984. Therefore, the exceptions were untimely filed.
Accordingly, as the Union's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 18, 1984
Jan K. Bohren
Executive Director/Administrator
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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).
15 FLRA 67; FLRA 1-CA-20325; July 18, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4100. Interference, Restraint, Coercion
4200. Discrimination as to Conditions of Employment
4500. Refusal to Negotiate
DIGEST NOTES
A branch chief's statement that the removal of stools used by customs
inspectors was due to the filing of a grievance by an employee at
another location who had been denied the use of a stool, tended to
coerce and restrain employees in the exercise of their rights under the
Statute and, therefore, violated Sec. 7116(a)(1), the Authority held in
adopting the ALJ's decision.
The agency did not violate Sec. 7116(a)(1) and (2) when it removed
stools used by custom inspectors although the respondent first learned
of the use of stools in a grievance proceeding at another location, the
Authority held in adopting the ALJ's decision. The removal was based
solely on the respondent's desire for uniformity of working conditions
throughout the region.
The use of stools by customs employees engaged in inspectional duties
concerns a method and means of performing work under Sec. 7106(b)(1).
For example, customs inspectors are required to insure that no parcels
are moved along the floor and outside the employees' visual range, a
function which could not be accomplished while seated. Also custom
inspectors must be able to react immediately to potentially dangerous
situations without being hindered by the presence of stools in the
baggage inspection area. Consequently the activity's decision to remove
the stools was outside the required scope of bargaining. The union was
notified in advance of the activity's decision to remove the stools, but
failed to request bargaining over the impact and implementation of the
activity's decision. Therefore, the Authority held that the respondent
did not violate Sec. 7106(a)(1) and (5).
U.S. CUSTOMS SERVICE
REGION I
(BOSTON, MASSACHUSETTS)
and
NATIONAL TREASURY EMPLOYEES UNION
Case No. 1-CA-20325
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
file; by the Respondent and the General Counsel, and both parties also
filed oppositions to the other's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), 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. /1/ Upon consideration of
the Judge's Decision and the entire record, the Authority hereby adopts
the Judge's findings, conclusions and recommended Order, excepts as
modified below.
In agreement with the Judge, the Authority finds that the statements
made by the Respondent's Montreal Branch Chief to employees concerning
the purported reason for the removal of stools used by customs
inspectors in Montreal, i.e., because of the filing of a grievance by an
employee in the Boston District who had been denied the use of a stool,
tended to coerce and restrain employees in the exercise of rights
guaranteed by the Statute in violation of section 7116(a)(1). In
reaching such a conclusion, the Authority finds that the Montreal Branch
Chief was acting as an agent of the Respondent, at which level there
exists the unit of exclusive recognition involved herein, and that
therefore the Branch Chief's conduct was binding upon the Respondent.
Department of Health and Human Services, Social Security Administration,
Office of Program Operations and Field Operations, Sutter District
Office, San Francisco, California, 5 FLRA 504, 505 n.2 (1981).
The Authority also adopts the Judge's dismissal of that portion of
the complaint alleging a violation of section 7116(a)(1) and (2) of the
Statute on the basis that the removal of stools in Montreal was due to
the filing of the grievance in Boston. The Judge found that the removal
was based solely on the Respondent's desire for uniformity of working
conditions throughout the region even though it was made pursuant to
information disclosed during the grievance proceeding to the effect that
stools were being used by employees in Montreal. In the Authority's
view, the General Counsel has failed to establish that the removal of
stools in Montreal was as a reprisal for the exercise of any protected
activity or was motivated by union animus. Rather, as found by the
Judge, although the Respondent first learned of the apparent
inconsistency in policy regarding the use of stools by customs
inspectors during the grievance proceeding, it took action to remove
stools in Montreal which was motivated solely by the Respondent's desire
for a uniform practice within the region. Under these circumstances,
the Authority finds that the Respondent's action in removing the stools
did not itself constitute a violation of section 7116(a)(1) and (2) of
the Statute.
Finally, with regard to the allegation that the Respondent violated
section 7116(a)(1) and (5) of the Statute by unilaterally removing the
stools without affording the Charging Party an opportunity to bargain
over the decision or its impact and implementation, the Authority finds
that the use of stools constituted a method or means of performing work
within the meaning of section 7106(b)(1) of the Statute. /2/ While the
Judge sought to distinguish the use of stools during "down time," i.e.,
when no passengers were being processed, from their use during such time
as employees were performing their inspectional duties, it appears from
the record that, employees were engaged in inspectional activities even
during periods referred to as "down time." Thus, the record evidence
discloses that even when the inspectors were not actually processing
passengers or performing physical inspections of passengers' baggage,
they were nonetheless required to be at their duty stations to observe
passengers approaching the inspection area. Where there were no
passengers to be processed, employees were permitted to leave their duty
stations and could avail themselves of an officer's lounge or other
facilities at the airport. The record further indicates that, in
addition to observing approaching passengers, the inspectors were
required to ensure that no parcels were being moved along the floor and
outside the employees' visual range, a function which could not be
accomplished while seated, and also to be able to react immediately to
potentially dangerous situations without being hindered by the presence
of stools in the baggage inspection area. On this basis, the Authority
finds that the use of stools by employees engaged in inspectional duties
concerned a method or means of performing such work at all times
relevant herein and that therefore the Activity's decision to remove
them was outside the required scope of bargaining under section
7106(b)(1) of the Statute. /3/ Of course, the Respondent was obligated
to notify the Charging Party in advance of the elimination of the stools
and to afford the Charging Party an opportunity to bargain over the
impact and implementation of such a change. The record reveals that the
Charging Party was so notified, but failed to request bargaining over
its impact and implementation, seeking instead to bargain over the
decision itself by proposing that the use of stools be retained.
Accordingly, the Respondent cannot be found to have violated section
7116(a)(1) and (5) in this respect and this aspect of the complaint
shall be dismissed.
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 U.S. Customs Service, Region I, Boston,
Massachusetts shall:
1. Cease and desist from:
(a) Making statements which tend to interfere with, restrain or
coerce its employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
(b) In any other 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) Post at the Montreal Pre-Clearance Station copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Commissioner of Region I, or his designee, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure 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 I, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-20325
insofar as it alleges any other violations of the Statute be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 18, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT make statements which tend to interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL NOT in any other like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Statute.
(Activity)
By: (Signature) (Title)
Dated: . . .
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, Massachusetts 02116 and whose
telephone number is: (617) 223-0920.
Martin J. Ward, Esquire
Ms. Lorraine Iovanni
For the Respondent
Richard D. Zaiger, Esquire
James R. Collins, Esquire
For the General Counsel
Mr. William P. Milton, Jr.
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on July 14, 1982, by the
National Treasury Employees Union, (hereinafter called the NTEU or
Union), a Consolidated Complaint and Notice of Hearing was issued on
October 29, 1982, by the Regional Director for Region I, Federal Labor
Relations Authority, Boston, Massachusetts. /4/ The Complaint alleges
that the U.S. Customs Service, Region I, Boston, Massachusetts,
(hereinafter called the Customs Service or Respondent), violated
Sections 7116(a)(1), (2) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by virtue of its
actions (1) in removing the stools used by employees at the Montreal
Pre-Clearance Station in retaliation for the filing of a grievance, and
(2) failing to give the Union advanced notice of its decision to remove
the stools and an opportunity to bargain over both the substance of the
change and the impact and implementation of the change. At the hearing,
over the objection of Counsel for the Respondent, the General Counsel
was granted permission by the undersigned Administrative Law Judge to
amend the complaint to further allege that the Respondent committed an
independent 7116(a)(1) violation by virtue of the action of one of its
supervisors in telling unit employees that the stools were removed
because of problems caused by the filing of a grievance. /5/
A hearing was held in the captioned matter on January 19, 1983, in
Boston, Massachusetts. All parties were afforded the full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted post-hearing briefs on March 21, 1983, which
have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, and the stipulations of the parties, I
make the following findings of fact, conclusions and recommendations.
The Union is the exclusive bargaining representative of Respondent's
non-professional employees assigned to Respondent's Region I which
includes among others, the custom inspectors working at the Boston,
Massachusetts and Montreal, Canada, airports.
Mr. Edward Pacewicz, an inspector assigned to Region I's Boston,
Massachusetts office, on an unspecified date received a job related
injury which forced him out on sick leave for an unspecified period of
time. Upon his return to work Mr. Pacewicz was assigned a number of
jobs which did not involve standing on his feet for long periods of
time. Subsequently, Mr. Pacewicz was assigned to work on the passenger
belts at Logan Airport in Boston, where he inspected the hand baggage,
etc. of incoming passengers from foreign countries. After a period of
time Mr. Pacewicz presented a doctor's certificate which indicated that
he should not be on his feet for a long period of time and requested the
use of a stool while he was performing his inspectional duties at Logan
Airport. Respondent agreed to allow him to use a stool for a two week
trial period with the understanding that the practice of using stools
while performing the duties of a customs inspector would be reassessed
at the end of such period.
At the end of the two week trial period, according to the credited
testimony of Mr. John Linde, District Director of Customs for the Boston
District, it was determined that the use of stools while performing the
job of a custom inspector was not a wise practice since it might hamper
the reactions of the inspectors to emergency situations, such as
discovering weapons or narcotics. According, to Mr. Linde there have
been occasions when passengers have attempted to swallow small amounts
of narcotics which inspectors have discovered in their possession.
Additionally, passengers have attempted to push small packages or
baggage along the outside of the baggage belts with their feet. If an
inspector was sitting down he would not be able to observe or see such a
maneuver.
Upon the basis of the above conclusions, the Respondent denied Mr.
Pacewicz the further use of a stool while performing his duties as a
customs inspector. Mr. Pacewicz then filed a grievance which proceeded
to the third step of the grievance procedure. In support of its
position on the grievance, the Union, in the third step of the grievance
procedure, pointed out that stools were used by custom inspectors
working in the clearance area of the Montreal airport.
After the third-step grievance meeting had been held on April 13,
1982, Ms. Lorraine Iovanni, an Employee Relations Specialist, who had
been in attendance at the grievance meeting, telephoned Mr. Hubert
Papelian, Branch Chief in Montreal, informed him of the grievance
meeting and inquired whether it was a fact that stools were being used
in Montreal. Mr. Papelian informed Ms. Iovanni that stools were being
used in Montreal.
Thereafter, Ms. Iovanni contacted Mr. Edward Dunford, Regional
Director of Inspection and Control, who was Mr. Papelian's supervisor,
and advised him of the grievance concerning the refusal to allow Mr.
Pacewicz to utilize a stool and the fact that she had verified that
stools were being used in Montreal. Mr. Dunford then contacted Mr.
Papelian for purposes of further verifying the fact that stools were
being used in Montreal. He informed Mr. Papelian that the reason for
his inquiry was that a grievance concerning the use of stools had been
filed in Boston.
Mr. Dunford then met with Mr. William Griffin, Region I Commissioner,
and discussed the grievance and the fact that stools were being utilized
in Montreal. Mr. Dunford recommended that the stools be taken out of
Montreal so that there would be a uniform policy throughout the Region.
Mr. Griffin agreed with the recommendation of Mr. Dunford.
On April 26, 1982, Mr. Dunford called Mr. Papelian and informed him
that the Regional Commissioner had directed him to instruct Mr. Papelian
to remove the stools from the Montreal Inspection area.
On April 27, 1982, Mr. Papelian sent a letter to Mr. Craig Jehle,
Secretary of NTEU Chapter 148 which read as follows:
This letter is to notify you in accordance with Article 37 of
the National Agreement that effective May 2, 1982, the use of
stools in the Customs work areas during inspection or down time
will not be permitted. This action is taken in order to bring
this location into conformity with the standard practice at all of
the other airports within Region I. /6/
Subsequently, in response to a letter from the Union, Respondent by
letter dated May 4, 1982, agreed to delay the removal of the stools
until May 18, 1982. The letter went on to remind the Union that "if the
Union wishes to negotiate the implementation impact on proposed changes,
the Union must submit written proposals to Management."
On May 12, 1982, Mr. Jehle, in his capacity as Secretary-Treasurer of
the Union wrote a letter to Mr. Papelian which read as follows:
This letter is to notify you that in accordance with Article 37
of the National Agreement that N.T.E.U. wishes to submit a
proposal concerning the change of status quo and stools in the
Customs work area. N.T.E.U. proposes that stools remain for use
at Montreal International Airport.
On May 12, 1982 the parties met for purposes of negotiation. The
Union's proposal was a reiteration of its May 12th letter from Mr. Jehle
to Mr. Papelian. The Respondent refused to accept the Union's proposal
and maintained that the stools would be removed. At the close of the
hearing both parties acknowledged that they were at impasse.
On May 13, 1982, Mr. Jehle wrote a letter to Mr. Papelian which read
as follows:
In reference to your proposal that stools be removed from the
Customs work areas on May 18, 1982, please be advised that an
impasse has been reached and the matter referred to the Federal
Mediation and Conciliation Services by N.T.E.U. N.T.E.U. expects
that the proposal will not be implemented until the satisfactory
completion of mediation. In the absence of mutual agreement,
implementation before an impasse order or decision has been
received will constitute grounds for an unfair labor practice
charge.
On May 17, 1982, the Union requested the assistance of the Federal
Mediation and Conciliation Service. Management refused to get involved
with the Federal Mediation and Conciliation Service and on May 18, Mr.
Papelian wrote Mr. Jehle a letter which read as follows:
This is to notify you that it is my view that your proposal
presented at our meeting of May 12, 1982, asking that the stools
remain in the Customs work area is non-negotiable. Accordingly,
the stools are to be removed effective this date.
According to the stipulation of the parties, the stools were removed
from the Customs area in the Montreal airport on May 18, 1982.
Mr. Jehle testified that on two occasions, the first being during the
period April 27-May 12, 1982, and the second being during the meeting of
May 12, 1982, Mr. Papelian attributed the removal of the stools to the
Union's action in filing the grievance in Boston. Thus, according to
Mr. Jehle, during the period between April 27-May 12, 1982, at a time
when he and Mr. Papelian were discussing the stools, "Mr. Papelian
prefaced his remarks by stating and his more or less words were, you
have done this to yourselves, the stools are going to be removed because
of Union activity elsewhere." Further, according to Mr. Jehle, Mr.
Papelian "then went on to say that he had received the word from his
boss to remove the stools, and that even though he didn't want them to
go, and if it were up to him they wouldn't go, he was going to remove
the stools."
On May 12, 1982, during the negotiations and in answer to an argument
put forth by Mr. Jehle, according to the testimony of Mr. Jehle, Mr.
Papelian stated "His boss had told him that the stools were going to go
because of Union activity elsewhere". In response to a clarifying
question from the undersigned administrative law judge concerning Mr.
Papelian's alleged reference to Union activity, Mr. Jehle stated, that
Mr. Papelian stated "not directly": "His words were, because of the
grievance in Boston the stools were going to go, yes".
According to Mr. Charles Dolan, a customs inspector who was in
attendance at the May 12, 1982, meeting, either Mr. Papelian or Mr.
Machniak, a supervisory inspector, "said that this was a result of what
happened in Boston". Mr. Dolan further testified that "the comment that
I remember being made was, you people brought this on yourselves." Mr.
Dolan acknowledged that he was aware that a grievance had been filed in
Boston and that the subject of stools being used in Montreal was raised.
On cross examination Mr. Dolan acknowledged that the recollection
contained in his pre-trial statement was a more accurate account of what
occurred at the May 12, 1982 meeting. In his pre-trial statement Mr.
Dolan stated "I recall Mr. Papelian mentioning at some point that this,
elimination of the stools, was all your fault, that this was due to one
of your buddies in Boston making noise and screwing all of you people".
Mr. Papelian denies ever attributing the removal of the stools in
Montreal to the grievance filed in Boston. However, he acknowledges
telling or passing on information to the Union "that a grievance had
been raised in Boston by an employee that wished to use the stools, and
he stated that fact that stools were utilized in Montreal".
With respect to the stools, the record evidence indicates that they
were owned by the Respondent and used by the Montreal Customs employees
since 1978. Additionally, according to Mr. Papelian's testimony the
stools were used by a majority of the customs inspectors only during
their "down time", when inspections were not being conducted.
The General Counsel takes the position that the Respondent (1)
violated Section 7116(a)(1), (2) and (8) of the Statute by removing the
stools in Montreal in retaliation for the action of Mr. Pacewicz in
filing a grievance, (2) violated Section 7116(a)(1) by informing two
employees that the stools were removed because a grievance was filed in
Boston, and (3) violated Sections 7116(a)(1) and (5) by refusing to
bargain over the substance of the decision to remove the stools.
Respondent, on the other hand, urges dismissal of the complaint in
its entirety. Thus, the Respondent contends (1) that removal of the
stools was based solely on a decision to have uniformity within its
regions, (2) that no coercive statements were made by Mr. Papelian and
(3) that the substance of the decision to remove the stools was a
non-bargainable matter since it related to the technology of doing the
work, and therefore its refusal to bargain thereon was not violative of
the Statute. Additionally, Respondent takes the position that even
assuming that the substance of the decision to remove the stools was a
bargainable matter, the Union waived its right to bargaining thereon
when it limited its original bargaining request on the removal of the
stools to impact and implementation of the change in conditions of
employment.
With respect to the reasons for the removal of the stools from the
Montreal Airport, I find based upon the credited testimony of Mr.
Dunford, whose testimony is corroborated in pertinent part by Ms.
Iovanni, that the removal of the stools from Montreal was pursuant to
information disclosed in the third step of Mr. Pacewicz grievance and
based solely on Respondent's desire to have uniform working conditions
throughout Region I of the Customs Service. /7/ Accordingly, I shall
recommend that the Section 7116(a)(1) and (2) allegation of the
complaint be dismissed in its entirety.
With respect to the alleged Section 7116(a)(1) violation predicated
upon Mr. Papelian's statements to Mr. Jehle and Mr. Dolan, I find, based
upon the credited testimony of Mr. Jehle and Mr. Dolan that Mr. Papelian
couched his statements to them with regard to the removal of the stools
from the Montreal airport in such terms as to give them the impression
that the removal of the stools was attributable to the action of Mr.
Pacewicz in exercising his Statutory right to file a grievance. In such
circumstances, I find that the Respondent violated Section 7116(a)(1) of
the Statute since such action has a tendency to coerce and restrain
employees in the exercise of their rights under the Statute.
Turning now to the remaining allegation of the complaint, i.e.
Respondent's refusal to bargain over the substance of the decision to
remove the stools from the Montreal airport, I find, in agreement with
the General Counsel, that the NTEU did not waive its rights to bargain
with respect to the substance of the decision to remove the stools by
virtue of its letter of May 12, 1982, wherein it cited Article 37 of the
collective bargaining agreement which deals with impact bargaining as
the authority for its request to bargain. Thus, it is noted (1) that
the NTEU was responding to Respondent's notice of the change dated April
27, 1982, wherein the Respondent cited Article 37 as the authority for
its notice, and (2) that both the NTEU's May 12th response and
subsequent demands made during the ensuing negotiations and/or
discussions encompassed requests for substance bargaining, namely
retention of the status quo. In such circumstances it can hardly be
said that the NTEU clearly and unmistakably waived its rights to bargain
over the substance of Respondent's decision to remove the stools. In
reaching the above conclusion I have considered the Authority's decision
in Department of the Treasury, U.S. Customs Service, Region I, Boston,
Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100,
and concluded, contrary to the contention of Respondent, that the facts
therein are clearly distinguishable from those in the instant case.
Having determined that the Union did not waive its rights to
substance bargaining, it must now be decided whether the use of stools
falls within the meaning of "technology, methods, and means of
performing work" as set forth in Section 7106(b)(1) of the Statute. If
so, it is a management right, which is only bargainable at the option of
the Respondent.
In the above connection, the record evidence indicates that the
stools were used by a majority of the employees during their "down
time", i.e. when no passengers were being processed. To the extent that
the stools were being used at a time when no work was being performed it
can hardly be argued that the use of the stools was part of "the
technology, methods, and means of performing work". Accordingly, I find
that the use of stools while on "down time" was a condition of
employment which Respondent could not change without first giving the
NTEU notice and an opportunity to bargain over the substance of its
decision to remove same. By failing to give the Union an opportunity to
bargain over the substance of its decision to remove the stools used by
the customs inspectors during their "down time" Respondent violated
Sections 7116(a)(1) and (5) of the Statute.
However, to the extent the stools were utilized by the customs
inspectors while performing their inspectional duties, I find that the
use of stools falls within the "technology, methods, and means of
performing work", and that Respondent was under no obligation to bargain
with the Union with respect to the substance of its decision to remove
the stools. In reaching this conclusion I rely on the uncontested
testimony of Mr. John Linde, District Director of Customs for the Boston
district concerning the necessity for customs inspectors to be standing
so that they can immediately react and/or respond to emergency
situations such as the discovery of weapons or narcotics and prevent the
use of such weapons or the swallowing of narcotics. Additionally,
according to Mr. Linde, a customs inspector utilizing a stool would not
be able to see a passenger's feet and prevent the passenger from kicking
a parcel along the floor past the inspection belt or counter.
Having concluded that the Respondent (1) violated Section 7116(a)(1)
of the Statute by virtue of the actions of Mr. Papelian in making
statements which gave the impression that the stools were removed from
the Montreal airport because of the filing of the Boston grievance, and
(2) violated Sections 7116(a)(1) and (5) of the Statute by virtue of its
actions in refusing to bargain over the substance of its decision to
remove the stools used by customs inspectors during their down time, it
is hereby recommended that the Authority issue the following order
designed to effectuate the purposes and policies of the Statute.
It is further recommended that all other allegations of the Complaint
be dismissed in their entirety.
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 U.S. Customs Service, Region I, Boston,
Massachusetts, shall:
1. Cease and desist from:
(a) Making statements to unit employees which carry the
impression that changes in conditions of employment were
attributable to, or in retaliation for, the action of a fellow
employee in utilizing his statutory right to file a grievance.
(b) Refusing to bargain with the National Treasury Employees
Union, the exclusive representative of its employees, with respect
to the substance of its decision to remove the stools used by
customs inspectors during periods of time when they were not
performing inspectional duties.
(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 Statute.
(a) Replace the stools formerly used by the customs inspectors
during their non-inspectional duty time at the Montreal, Canada,
airport and thereafter, upon request by the National Treasury
Employees Union, bargain with the National Treasury Employees
Union concerning the substance of any decision to remove the
stools.
(b) Post at its facilities in Montreal, Canada 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 the Region I Commissioner for Customs 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 Commissioner shall take reasonable steps to insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: May 17, 1983
Washington, D.C.
WE WILL NOT remove the stools used by customs inspectors during the
time they are not performing inspectional duties without giving the
National Treasury Employees Union, the exclusive representative of our
employees, an opportunity to bargain over the substance of any decision
to remove such stools from the inspectional areas at the Montreal,
Canada, airport.
WE WILL NOT make statements to unit employees which carry the
impression that changes in conditions of employment were attributable
to, or in retaliation for, the action of an employee in utilizing his
statutory right to file a grievance.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL replace the stools formerly used by customs inspectors during
their non-inspectional duty time at the Montreal, Canada, airport and
thereafter, upon request by the National Treasury Employees Union,
bargain with such Union concerning the substance of any decision to
remove the stools.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 One,
whose address is: 441 Stuart Street, Ninth Floor, Boston,
Massachusetts, and whose telephone number is: (617) 223-0920.
/1/ The Authority specifically adopts the Judge's ruling with respect
to granting the General Counsel's motion to amend the complaint at the
hearing. Thus, as found by the Judge, the amendment was based upon the
same factual circumstances underlying the complaint; the Respondent was
apprised prior to the hearing that the General Counsel possessed
information supporting the additional allegation; and, contrary to the
Respondent's claim that it was prejudiced by an inability to secure
rebuttal witnesses, at no time did the Respondent seek a postponement to
secure such witnesses.
/2/ Section 7106(b)(1) provides in pertinent part as follows:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the technology,
methods, and means of performing work(.)
/3/ See International Organization of Masters, Mates and Pilots and
Panama Canal Commission, 13 FLRA No. 87 (1983); National Treasury
Employees Union and U.S. Customs Service, Washington, D.C., 8 FLRA 3
(1982); 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); and National
Treasury Employees Union and Internal Revenue Service, 6 FLRA 522
(1981).
/4/ Case No. 1-CA-20326, which had been consolidated with the
captioned case, 1-CA-20325, was, upon motion by the General Counsel,
severed from the proceedings at the beginning of the hearing.
Accordingly, paragraphs 6(a), 6(b) and 8(a) were deleted from the
complaint and no testimony thereon was presented at the hearing.
/5/ Counsel for the Respondent in his post hearing brief has renewed
his objections to my action in granting the General Counsel's motion to
amend the outstanding complaint to allege for the first time an
independent 7116(a)(1) violation. Inasmuch as the amendment is based on
the same factual circumstances underlying the original complaint, i.e.,
the removal of the stools for a discriminatory reason, and since,
admittedly, Respondent's counsel was put on notice several weeks prior
to the hearing that General Counsel possessed statements from witnesses
supporting the alleged 7116(a)(1) violation of the Statute. I reaffirm
my original decision that under all the circumstances the amendment was
proper. To the extent that Counsel for the Respondent now contends that
he was prejudiced by the fact that he was unable to secure a necessary
rebuttal witness at such later date, it should be noted that at no time
during the proceeding did Counsel for Respondent request a continuance
to secure such rebuttal witnesses.
/6/ Article 37 of the National Agreement is entitled "Impact
Bargaining" and provides for Impact Bargaining when the Respondent
exercises its "management rights as set forth in the Civil Service
Reform Act."
/7/ Contrary to the contention of the General Counsel I do not
believe that a different conclusion is in order because the decision to
remove the stools occurred shortly after responsible officials of the
Respondent became aware of the grievance. Admittedly, it was the Boston
grievance which first made the Respondent aware of the existence of the
stools in Montreal and prompted Respondent to order the removal of the
stools for purposes of uniformity within Region I. However, while the
timing does make the case suspicious, suspicion alone does not establish
a violation of the Statute. This is particularly true in the absence of
any probative evidence indicating that Mr. Dunford had prior knowledge
of the existence and/or use of the stools in Montreal. In this latter
context, the record evidence, particularly the inquiries by Ms. Iovanni
and Mr. Dunford concerning the actual existence of the stools in
Montreal, belies prior knowledge.
15 FLRA 66; FLRA 3-CA-2071; July 18, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICES: AGENCY
4800. Otherwise Refuse to Comply with Statute
6800. Remedies
DIGEST NOTES
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(8) of the Statute by its refusal to pay affected Power
House employees covered by the grievance the 8% environmental
differential pay ordered in a final and binding arbitral award rendered
by the Federal Mediation and Conciliation Service.
Where neither the evidence nor the ALJ's decision provided a basis to
support any additional remedy, the Authority modified the ALJ's remedy
to include only that the agency be ordered to pay the environmental
differential set forth in the arbitrator's award.
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Case No. 3-CA-2071
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices 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 Charging Party filed an opposition thereto.
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, conclusions /1/ and recommended Order, as modified
herein. /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Navy Public Works Center, Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the final and binding arbitral
award in Decision No. F-FMCS-8, dated August 11, 1980.
(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) Implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying the affected Power House employees
covered by the grievance the eight percent environmental differential
retroactive to March 9, 1975.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by an authorized representative and
shall be posted and maintained 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) Notify the Regional Director, Region III, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., July 18, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to comply with the final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 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 implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees covered
by the grievance the eight percent environmental differential
retroactive to March 9, 1975.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region III, Federal Labor Relations Authority, whose
address is: 1111 18th Street, NW, Room 700, P.O. Box 33758, Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8507.
Dennis K. Reischl
For the Respondent
Sally M. Armstrong, Esq.
For the Charging Party
Heather Briggs, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of an unfair labor practice charge filed March 9, 1981, with the Federal
Labor Relations Authority. Consequently, on July 9, 1981, the Regional
Director issued a complaint alleging that the Navy Public Works Center,
Norfolk, Virginia, has failed and refused to comply with an arbitrator's
award and, by such conduct, has violated Sections 7116(a)(1), (5) and
(8) of the Statute. Respondent denies that allegation.
A hearing was held on September 23, 1981, in Norfolk, Virginia, at
which opening statement were made and documentary evidence and a
stipulation of facts were entered into the record. Post hearing briefs
have been filed by all parties. Upon the entire record, I make the
following findings, conclusions and recommended order:
On January 21, 1980, the employees working in Building P-1, the Navy
Public Works Center Power House, filed a grievance contending that they
work with and are exposed to airborne asbestos fibers. Accordingly,
they sought retroactive hazardous duty pay and an order that appropriate
protective measures be taken.
The applicable Collective Bargaining Agreement obligates Respondent
for environmental differential pay under conditions described in
Appendix J of the Federal Personnel Manual Supplement 532-1. That
Appendix provides that a retroactive environmental differential of eight
percent is to be paid to employees:
working in an area where airborne concentrations of asbestos
fibers may expose employees to potential illness or injury and
protective devices or safety measures have not practically
eliminated the potential for such personal illness or injury.
The matter was submitted to binding arbitration at which evidence was
adduced, argument presented, and an on-site inspection made by the
Arbitrator. On August 11, 1980, the Arbitrator issued an award
sustaining the grievance "to the extent indicated in the findings." The
Arbitrator devised a remedy which gave Respondent two alternatives. The
first was to negotiate a settlement, compromising on the total
retroactive amount due. The Arbitrator stated, in this regard:
The Arbitrator is aware that employees in other Craft units of
the Public Works Center that work with asbestos are paid the
environmental differential as a result of negotiations with the
Union. These resolutions apparently take into account the fact
that employee exposure to the hazard varies from time to time.
This award should encourage, rather than discourage, a negotiated
settlement for the Power House employees.
Failing a negotiated settlement, the Arbitrator ordered that within
30 days a scientific sampling of the air be taken in the Power House "so
as to determine whether concentrations of airborne fibers are present in
the Power House atmosphere." Further, he ordered that if "such
concentrations are found to be present, affected Power House employees
will be paid the eight percent environmental differential retroactive to
March 9, 1975."
By letter dated August 22, 1980, Respondent notified the Union that
in regard to the arbitration award, it was Respondent's position that it
would not negotiate a settlement but, rather, it would elect to conduct
a study of the ambient air in Building P-1. Respondent conducted the
tests on August 25-28 and September 4 and 5, 1980. The results of the
tests were then analyzed by Respondent and incorporated into a report.
On September 11, 1980, Respondent advised the Union in writing that
it would not pay the environmental differential on grounds that:
. . . the exposure levels (as found by the report) are well
below the OSHA standard, and generally are of the same order or
magnitude as the background samples. Therefore, there is no legal
basis or obligation for payment of environmental differential pay
to the employees of P-1 who were involved in the grievance . . .
No exceptions to the Arbitrator's award were filed by either party.
Respondent has continued to refuse to pay the eight percent retroactive
environmental differential.
The threshold question to be determined in this case is the nature
and extent of Respondent's obligation under the Arbitrator's decision
and award. To resolve that question requires a limited examination of
the decision and award. That inquiry must be limited because, as noted
previously, no exceptions to the award were filed by either party and,
in as much as this is an unfair labor practice proceeding, that award is
not before me for substantive review. /3/
At the outset of his decision, the Arbitrator noted that the
grievance contends that the employees are "exposed to airborne asbestos"
and that they desire to be compensated for "their exposure to Asbestos".
The grievance did not mention any levels of exposure.
In the "Background" section of his decision, the Arbitrator noted the
cumulative and carcinogenic effects of asbestos exposure. He then
referenced the mandate of the Occupational Safety and Health Act of 1970
for a national consensus standard and the 1972 Department of Labor
Asbestos Standard. He then stated:
Each of these items is, to some degree involved in this
grievance. However, it is the exposure to airborne concentrations
of asbestos fibers that is at the base of the complaint here.
The Arbitrator then discussed the Labor Department's 1972 Standard
which provided for a reduction in permissible exposure to take place in
1976. Prior to the 1976 Standard taking effect, the Labor Department
proposed an even lower standard, which, for reasons unknown, never
issued as a final regulation, and the 1976 Standard has, to this time,
remained in effect. In discussing the progress of the state of the art,
the Arbitrator highlighted a study, produced in April 1980, by the
Asbestos Work Group, a joint effort of technicians from the Occupational
Safety and Health Administration (OSHA) and the National Institute for
Occupational Safety and Health (NIOSH). The following is a portion of
his quote of Item 4 of the study:
. . . all levels of asbestos exposure studied to date have
demonstrated asbestos-related disease, and a linear relationship
appears to best describe the shape of the dose-response curve.
These considerations led the committee to conclude that there is
no level of exposure below which clinical effects do not occur . .
. . (T)he absence of a threshold is further indicated by the
dramatic evidence of asbestos-related disease in members of
asbestos-worker households and in persons living near
asbestos-contaminated areas. These household and community
contacts involved low level and/or intermittent casual exposure to
asbestos . . .
The Arbitrator next pointed out that, pursuant to an Executive Order,
the Department of the Navy adopted the prevailing OSHA standard in
regard to permissible levels of airborne asbestos fibers. He noted that
in 1974, the Civil Service Commission found asbestos to be a hazardous
substance and he then referenced the Federal Personnel Manual provision
for the eight percent differential and the parties' collective
bargaining agreement referring to the differential. Finally he cited a
study by Respondent of the ambient air in Building P-1 done shortly
after the grievance had been filed.
Several arguments were made to the Arbitrator and they were set forth
in his decision. Only those pertinent to this case are repeated. The
Union argued that "any concentration of airborne asbestos fibers is
hazardous" and that employees are entitled to the differential "for
exposure" to those fibers. Management, on the other hand, argued that
the Navy was obliged only to meet the OSHA standard and "Because the
fiber count is less than that required by the OSHA standard, . . . it is
not required to pay the eight percent rate differential . . . "
The following findings of the Arbitrator are pertinent to the issues
raised in this proceeding:
Management is not correct when it claims that the
concentrations of airborne asbestos fibers set out in 29 CFR
1910.1001 (the OSHA standard) are to be used to determine whether
the 8% environmental differential should be paid to employees
working in Building P-1. The OSHA standard, at whatever level, is
designed to reduce the hazard. The environmental differential is
to provide compensation for exposure to the hazard. Clearly, FPM
Supplement 532-1, Appendix J does not establish a definite level,
but states that the differential will be paid to employees,
"working in an area where airborne concentrations of asbestos
fibers may expose employees to potential illness or injury . . .
The 1980 OSHA-NIOSH study . . . stated that any concentrations
of airborne fibers in the workplace is inherently hazardous to
those employees exposed to that work environment.
(The Arbitrator then found specifically that the exposure
standards set by Federal regulation and the intent of Appendix J
to the FPM Supplement are not interdependent.)
The issue, then, is whether there are concentrations of
airborne asbestos fibers in the ambient air of the Power House . .
.
The Arbitrator's visit to the Power House was revealing but not
conclusive. Visual inspection could, in no manner, reveal whether
the ambient air contained concentrations of asbestos fibers.
Certainly, the broken insulation, the mysterious grey matter on
the grating and the evidence of a major rip-out all indicate the
possibility of concentrations of airborne asbestos fibers.
However, it is clear that such a determination can only be made on
the basis of air samples obtained through competent and accepted
sampling techniques.
Counsel for both the Charging Party and for the General Counsel argue
that the award of the Arbitrator is clear and unambiguous, that
Respondent has failed to comply with the award in that it has failed and
refused to pay employees the environmental differential, and that
Respondent should be ordered to do so.
On the other hand, Respondent argues that based on its interpretation
of the award it has complied with it in good faith, and that the dispute
in this matter arises out of differing but reasonably arguable
interpretations of the terms of the award. According to Respondent the
award requires it to pay only "for exposure to 'concentrations' of
asbestos in the workplace. That is, to pay for exposure to some level
or amount of asbestos which is concentrated-- i.e., elevated,
densified-- above the general atmosphere which normally exists away from
the workplace." Further, Respondent avers that compensation is to be
paid only for exposure at or above the OSHA standard.
While Respondent's argument is intriguing, I do not find it
convincing. First of all, in his decision, the Arbitrator specifically
rejected Respondent's claim that the OSHA standard should be
determinative. By rejecting that argument, the Arbitrator implicitly
accepted the Union's argument that exposure to any concentration of
asbestos would be compensable. He made specific reference in his
findings to the 1980 OSHA-NIOSH study which found "any concentration" to
be inherently hazardous. He quoted a conclusion of the study that
"there is no level of exposure below which clinical effects do not occur
. . . ", and he found that the OSHA standard was designed to reduce the
hazard and not to indicate a level below which the hazard should be
found not to exist. Moreover, the Arbitrator saw the issue to be
"whether there are concentrations of airborne asbestos fibers in the
ambient air of the Power House . . . ", and, refusing to rely on his
layman's-eye-view of the situs, he concluded that a scientific study of
the air would be the only method by which the indicated "possibility" of
concentrations could be confirmed as an actuality. Thus, taking the
decision and award of the Arbitrator as a whole, there is no reasonable
basis for concluding other than that Respondent would be obligated to
pay the differential if the study demonstrated any concentrations of
airborne asbestos fibers.
The second prong of Respondent's argument that the award may be
interpreted in more than one way rests on its definition of the word
"concentrated" as meaning elevated or densified. However, the proper
interpretation of any word depends upon the context in which that word
is used. And given the context of use in this case, it is quite clear
that Respondent has chosen a definition of the word which is not
germane. In the first place, the Arbitrator did not refer to
"concentrated" asbestos; his reference was to "concentrations" of
asbestos. Concentrated asbestos, like concentrated orange juice, would
refer to a product which is strengthened by the removal of diluents or
extraneous materials. Concentrations of matter in a solution, mixture
or dispersion, on the other hand, would refer to the relative content of
a component that may be expressed in percentage by weight or by volume
as, for example, in parts per million or in grams per liter. /4/ The
only reasonable interpretation of the Arbitrator's award is that the
alternative of a test was designed to reveal only whether the ambient
air contained any concentrations of asbestos fibers, regardless of how
concentrated those asbestos fibers might be found to be. To construe
the award otherwise would fly in the face of the Arbitrator's finding
that the OSHA standard should not be determinative, and it would render
meaningless his background discussion of the cumulative and carcinogenic
effects of asbestos exposure.
On brief, Respondent's position was summarized as follows:
Accordingly, when Respondent determined, based upon the test
results, that not a single one of the P-1 employees was being
exposed to any level of airborne asbestos greater than that found
in the general outside atmosphere, it properly declined to pay
differential for a hazardous exposure to asbestos.
Based on the clear reading of the award and the evidence presented by
Respondent's own study, that position cannot be sustained. The only
question presented by the Arbitrator was whether airborne concentrations
of asbestos fibers were present in Building P-1; he did not direct a
study of general background air. Moreover, the study did not portray
the general outside atmosphere; it only measured a background sample
taken atop the Industrial Hygiene Lab at the Norfolk Shipyard. That
background sample took 2.17 hours and measured 260 liters of air. A
concentration /5/ of 0.13 fibers per cubic centimeter was found to be
present. What that sample shows is merely that such concentrations also
exist at that site in particular. Of interest though, is the data on
page 6 of the Sampling Data Sheet which seems to indicate that at least
one sample would indicate a higher exposure inside Building P-1. In
measuring the personal breathing zone of a Mr. Laughlin, a boilermaker
changing valve wheels at all levels of the plant, technicians sampled an
identical 260 liters of air over an identical 2.17 hours and found 0.16
fibers per cubic centimeter. However, in the remarks column, it states,
"Short Sampling Period due to personnel assigned tasks outside of Power
Plant." No such remarks appeared beside the sample taken for the same
period of time at the Industrial Hygiene Lab to explain why that sample
would be valid while the one taken from Mr. Laughlin would not be. The
record also does not explain away the inconsistencies between other
samples showing higher concentrations such as the one on page 1,
involving a boilermaker on top of Boiler #62, taken over 1.58 hours,
measuring 190 liters, finding 0.34 fibers per cubic centimeter, and with
the remark, "Not ideal sample-- sampling too short for 8-hour exposure
evaluation"; and the one on page 3 involving a Boiler Plant Operator on
top of Boiler #59 and that same Boiler #62, taken over 7.42 hours,
measuring 890 liters, finding 0.23 fibers per cubic centimeter, and
noting no remarks on the sample. In short, Respondent's study shows
that airborne concentrations of asbestos fibers are certainly present in
Building P-1 and that, incidentally, those concentrations are, at least
at times, greater than those found in the outside atmosphere at one
particular location at the Shipyard. /6/
I conclude that the award of the Arbitrator is clear and unambiguous
in its direction that if the study demonstrates that any concentrations
of airborne fibers are present in the Power House, then affected Power
House employees are to be paid the eight percent environmental
differential retroactive to March 9, 1975. Further, I conclude that the
study did in fact demonstrate the existence of such concentrations;
that, nevertheless, Respondent has failed and refused to pay that
differential; and that having so failed and refused to pay, Respondent
has failed and refused to comply with an arbitrator's award and has
thereby violated Sections 7116(a)(1), (5) and (8) of the Statute. /7/
Accordingly, I recommend that the Authority adopt the following:
ORDERED, that the Navy Public Works Center, Norfolk, Virginia shall:
1. Cease and desist from:
(a) Failing and refusing to comply with a final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees the
eight percent environmental differential retroactive to March 9,
1975, and make whole the Union and affected employees for any
other losses suffered as a result of Respondent's failure and
refusal to implement that award.
(b) Post at its 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 an
authorized representative and shall be posted and maintained in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) 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 with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: November 13, 1981
Washington, D.C.
WE WILL NOT fail or refuse to comply with the final and binding
arbitral award in Decision No. F-FMCS-8, dated August 11, 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
Statute.
WE WILL implement the August 11, 1980, award of the Arbitrator in
Decision No. F-FMCS-8 by paying affected Power House employees the eight
percent environmental differential retroactive to March 9, 1975, and
make whole the Union and affected employees for any other losses
suffered as a result of our failure and refusal to implement that award.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region III, whose
address is: 1111 18th Street, NW, Suite 700, Washington, DC 20036 and
whose telephone number is (202) 653-8452.
/1/ See U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935
(1982). In so concluding, the Authority finds it unnecessary to pass
upon the Judge's further finding that the Respondent also failed to
bargain in good faith in violation of section 7116(a)(1) and (5) of the
Statute.
/2/ While the Judge recommended that the Respondent also "make whole
the Union and affected employees for any other losses suffered as a
result of Respondent's failure and refusal to implement that award," the
Authority shall order only that the Respondent be ordered to pay the
environmental differential in accordance with the arbitrator's award, as
neither the evidence nor the Judge's decision establish a basis to
support any additional remedy.
/3/ Cf. Section 7122 of the Statute entitled, "Exceptions to arbitral
awards".
/4/ See, Webster's Third New International Dictionary, (unabridged
ed. 1971).
/5/ The term "concentration" is employed as a heading on the Sampling
Data Sheet complied at Respondent's instance. Its use in this manner is
consistent with the conclusion, reached above, as to the meaning of that
word as it was used in the Arbitrator's award.
/6/ This conclusion does not take into account samples, taken during
the study of insulators, wearing special protective equipment and
conducting asbestos ripouts, which showed exposure to concentrations of
from 1.5 to 4.3 fibers cubic centimeter.
/7/ Having reached this conclusion, I need not address the issue
whether, if the award is indeed ambiguous, the proper remedy is to
return the matter to the Arbitrator for clarification.
15 FLRA 65; FLRA 1-CA-19; July 17, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasses Procedures and Decision
DIGEST NOTES
The determination by the National Guard Bureau that civilian
technicians must wear military uniforms while performing technician
duties constitutes management's choice of a "methods, and means of
performing work" within the meaning of Sec. 7106(b)(1). A "means" is in
essence anything used to attain or make more likely the attainment of a
desired end, and in the context of Sec. 7106(b)(1), refers to "any
instrumentality, including an agent, tool, device, measure, plan, or
policy used by the agency for accomplishing or furthering of the
performance of its work. While National Guard technicians were granted
status as Federal Employees by the National Guard Technicians Act of
1968, it is clear that Congress intended to organize and administer the
technician program within the military framework of the National Guard.
The ability of the part-time Guard to mobilize into an effective
full-time military force is directly dependent upon the full-time
technician workforce. The requirement for civilian technicians to wear
uniforms is used to foster military discipline, promote uniformity,
encourage esprit de corps, increase the readiness of military forces for
early deployment and enhance identification of the National Guard as a
military organization. Because the traditional means of instilling
esprit de corps and military discipline, such as drill, military
courtesy and protocol, are not available for use with personnel who are
employed technically in a civilian status, the wearing of the military
uniform becomes indispensable as a constant reminder to technicians that
they are members of an organization which is essentially military and
subject to mobilization at a moment's notice.
The Authority held that the respondent did not violate Sec.
7116(a)(1) and (6) for failing to adopt language in its collective
bargaining agreement specified in a final decision and order of the
Federal Service Impasses Panel. Since the prescribed language would
permit technicians the option of wearing either a military uniform or
agreed-upon civilian attire when performing civilian technician duties,
it interfered with management's right under Sec. 7106(b)(1) to determine
the "means" of performing work.
DIVISION OF MILITARY AND NAVAL
AFFAIRS, STATE OF NEW YORK,
ALBANY, NEW YORK
and
NEW YORK COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS
Case No. 1-CA-19
8 FLRA 158
This case is back before the Authority as a result of a remand by the
U.S. Court of Appeals for the Second Circuit. See State of New York,
Division of Military and Naval Affairs v. FLRA, 696 F.2d 202 (2nd Cir.
1982). In the Authority's original Decision, /1/ the Respondent was
found to have violated section 7116(a)(1) and (6) of the Federal Service
Labor-Management Relations Statute (the Statute) by its refusal to
cooperate in a final decision and order of the Federal Service Impasses
Panel (the Panel) /2/ which required the parties to adopt language in
their collective bargaining agreement permitting National Guard
technicians the option of wearing either a military uniform or
agreed-upon civilian attire when performing civilian technician duties,
with agreed-upon exceptions to cover circumstances for which the wearing
of the uniform may be required. In finding a violation, the Authority
relied upon State of Nevada National Guard, 7 FLRA 245 (1981), another
unfair labor practice decision in which it rejected contentions that
negotiations over technician attire in these circumstances were
inconsistent with applicable law including the U.S. Constitution and the
National Guard Technicians Act of 1968 (32 U.S.C. 709, also referred to
as the Technicians Act) or that negotiations were barred by an agency
regulation for which a compelling need existed. In that case, no
specific argument was raised based on the management rights provisions
of Executive Order 11491, as amended, or of the Statute. The court, in
reviewing the Authority's decision in Division of Military and Naval
Affairs, State of New York, noted that the Authority's decision in State
of Nevada National Guard did not deal with the question of whether the
requirement that technicians wear military uniforms while performing
technician duties constituted a methods and means of performing work
within the meaning of section 7106(b)(1) of the Statute. /3/ However,
the court found that such question had properly been raised, but not
addressed in the administrative proceedings before the Authority in
Division of Military and Naval Affairs, State of New York. The court
stated that the lack of a determination on that question was significant
in view of the Authority's decision in National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
255 (1979) wherein the Authority held, inter alia, that a requirement
that uniformed Customs Officers wear nameplates constituted a means of
performing work. Thus, the court remanded the instant case to the
Authority "to develop a full record appropriate for judicial review as
to whether the attire the technicians should wear while engaged in their
daily duties as civilians is a non-negotiable matter under Section
7106(b)."
The Authority then issued a "Notice of Reopened Proceedings and
Request for Statements of Position" in which it referred to the court's
remand and direction that it "consider whether the attire which National
Guard technicians wear while engaged in their daily duties as civilian
technicians is a matter which is negotiable only at the election of the
agency pursuant to section 7106(b)(1) of (the Statute)." The Authority
requested "each of the parties to submit a statement of position with
respect to this issue only, including any and all arguments in support
thereof." In this regard, the National Guard Bureau, on behalf of the
Respondent, filed a consolidated response which included affidavits from
the Adjutants General of several states and the Charging Party filed its
statement of position. The General Counsel of the Authority also filed
a consolidated statement of position in this case. Upon careful
consideration of the entire record on this issue, the Authority makes
the following determinations. /4/
At the outset, the Authority must consider the General Counsel's
motion to strike affidavits from the Adjutants General of several states
which, as indicated above, were submitted by the National Guard Bureau
in behalf of the Respondent, as well as all references thereto and
arguments which address matters other than the relationship between
technician attire and section 7106(b)(1) of the Statute contained in the
National Guard Bureau's statement of positions. In view of the limited
scope of the court's remand, as reflected in the Authority's ensuing
request for statements of position, only those statements, arguments and
reasons which relate to section 7106(b)(1) of the Statute have been
considered herein, including those set forth in the affidavits
submitted. Accordingly, the motion is granted to that extent.
The National Guard Bureau contends in essence that because the
requirement to wear the military uniform is directly and integrally
related to the ability of the technician workforce to carry out its role
or functions and duties in pursuit of the overall military mission of
the National Guard, it constitutes a "methods, and means of performing
work." The General Counsel and the Charging Party, on the other hand,
contend principally that wearing the military uniform has no direct and
integral relationship to accomplishment of the technicians' duties while
such employees are in their civilian status. They assert that in the
absence of such a relationship, the military uniform does not constitute
a method or means of performing work within the meaning of section
7106(b)(1) of the Statute.
For the reasons which follow, the Authority concludes, in agreement
with the National Guard Bureau, that the requirement for civilian
technicians to wear the military uniform at all times does constitute a
"methods, and means of performing work" within the meaning of section
7106(b)(1) of the Statute.
In U.S. Customs Service, Region VIII, 2 FLRA 255 (1979), the
Authority, as previously noted, determined that the requirement for
uniformed Customs Officers to wear nameplates as part of their uniform
for purposes of identification constituted a means of performing work
within the meaning of section 7106(b)(1) of the Statute. In reaching
this decision the Authority, applying general rules of statutory
construction, determined that a "means" is in essence anything used to
attain or make more likely the attainment of a desired end, and in the
context of section 7106(b)(1), refers to "any instrumentality, including
an agent, tool, device, measure, plan, or policy used by the agency for
the accomplishing or furthering of the performance of its work."
Turning to the instant case, it is uncontroverted in the record that
the National Guard is a military organization with dual state and
Federal military missions. Specifically, upon state mobilization it
provides the State Governments with military units organized, equipped
and trained to function in the protection of life and property, and the
preservation of peace, order and public safety under the command of
state authorities. /5/ In this role it has been defined as "the modern
militia reserved to the States by Art. I, Section 8, Cl. 15, 16 of the
Constitution," Maryland v. United States, 381 U.S. 41, 46 (1965).
Furthermore, as an integral part of the national defense when Federally
mobilized, it provides the Federal Government with combat units, combat
support units and qualified personnel for active military duty, to
support augmentation requirements, to fulfill war and contingency
commitments, and to perform such peacetime military missions as are
compatible with training requirements and maintenance of mobilization
readiness. /6/ In addition, National Guard units must always be ready
for Federal mobilization to assist in controlling domestic civil
disorders. 10 u.s.c. 331 et seq.
Within this military organization National Guard technicians function
in three capacities in their respective units: They perform full-time
civilian work; they perform military training and duty; and they are
continuously available to enter active state or Federal military duty
whenever mobilized. See H. Rep. No. 1823, 90th Cong., 2d Sess. 2,
reprinted in 1968 U.S. CODE & AD. NEWS 3318, 3319.
However, while these technicians were granted status as Federal
civilian employees by the Technicians Act, it is clear that Congress
intended to organize and administer the technician program within the
military framework of the National Guard. This intent is reflected in,
for example, specific provisions in the Technicians Act which condition
the technicians' civilian employment status on maintenance of military
membership in the National Guard. 32 U.S.C. 709(b). As a consequence,
technicians are automatically separated from their civilian technician
employment if they cease to hold the military grade specified for their
technician position or if they are separated from the National Guard for
any reason. 32 U.S.C. 709(e)(1); State of Tennessee v. Dunlap, 426
U.S. 312 (1976).
Moreover, in this respect, the U.S. Court of Appeals for the D.C.
Circuit recently had occasion to examine the legislative history of the
National Guard Technicians Act of 1968 in American Federation of
Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
Authority, 730 F.2d 1534 (1984), aff'g American Federation of Government
Employees, AFL-CIO, Local 2953 and National Guard Bureau, Office of the
Adjutant General, Nebraska, 7 FLRA 87 (1981). In that case, the court
upheld the Authority's decision that a proposal to preclude the use of
military appraisals when establishing reduction in force retention
registers for technicians was outside the duty to bargain. The court
relied heavily on its conclusion that the technician workforce was
established primarily to enable the National Guard to carry out its
military mission and that technicians were granted Federal civilian
employment status in order to make them eligible for Federal retirement
and fringe benefits and coverage under the Federal Tort Claims Act.
Specifically, the court found that "the primary mandate of the
(Technicians) Act is to insure that the military capability of the guard
is effective and efficient" and further that there is "no obligation to
trade on the essential mission of the National Guard at the bargaining
table." 730 F.2d at 1546.
Other courts similarly have relied upon this interrelationship
between the duties performed by technicians and the ability of the
National Guard to maintain its combat readiness. In Bruton v. Schnipke,
404 F.Supp. 1032 (E.D. Mich. 1975) for example, the court concluded that
the requirement that civilian technicians wear military uniforms was
rationally related to the National Guard's purpose, based on its view
that technician employment is essentially military in nature. In this
regard, in the court's opinion denying an earlier motion for a
preliminary injunction, (Bruton v. Schnipke, 370 F.Supp. 1157, 1163
(E.C. Mich. 1974)), the court stated:
The National Guard is a military organization. Its functions
are primarily military. The reason for its existence is primarily
military. All of the testimony supports the conclusion that
technicians function in a more military fashion if they wear the
military uniform. Indeed, it is because wearing the uniform
requires (technicians) to perform their work in a military way
that they object. It does not seem unreasonable to have military
work performed in a military manner. Given the National Guard's
purpose and function the Court cannot say that the regulation is
not reasonably related to the National Guard's purpose.
Likewise, in Syrek v. Pennsylvania Air National Guard, 437 F.Supp.
236 (W.D. Pa. 1977) the court determined that application of military
grooming standards to civilian technicians was reasonably related to the
National Guard's interest in assuring its combat readiness. The court
found that Congress, by its decision to organize and administer the
technician program within the military framework of the National Guard,
as well as to create an extremely close connection between the
technicians' civilian and military status, had placed great emphasis on
uniformity, discipline and esprit de corps in the technician program.
In reaching its conclusion the court stated: /7/
(T)echnicians perform their duties on military equipment using
military procedure in a military environment. The requirement
that civilian technicians, as a part of the overall disciplinary
requirements of their jobs, comply with Air Force hair standards
is reasonably related to assuring the combat readiness of the
Guard, which is the technicians; primary purpose.
Moreover, the court in Klotzbach v. Callaway, 473 F.Supp. 1337 (W.D.
N.Y. 1979), finding Bruton and Syrek to be controlling, also determined
that because of the clear interrelationship between technicians' duties
and the effective function of the Guard it was rational for the Guard to
establish standards of appearance, including dress requirements, for
technicians. In so concluding the court stated: /8/
Congress has chosen to administer the technician program within
the military framework of the Guard and to give technicians dual
status as civilians and military personnel. The legislative
history of the Act indicates that Congress contemplated a single
technician position, which "would entail a composite of
inseparable, simultaneous military and civilian duties."
(Citations omitted.) This intent is reflected in the statutory
requirement of enrollment in the Guard as a condition of
employment as a technician. Although the plaintiff would like a
clear division between civilian duties and military duties, this
simply is not possible because of the dual qualification aspect of
the position.
In the instant case, the record shows that the National Guard Bureau
uses the requirement for civilian technicians to wear military uniforms
to foster military discipline, promote uniformity, encourage esprit de
corps, increase the readiness of the military forces for early
deployment and enhance identification of the National Guard as a
military organization. In this regard for example, it is undisputed in
the record that the ability of the part-time Guard to mobilize into an
effective full-time military force is directly dependent upon the
full-time technician workforce. Moreover, the record before the
Authority indicates that because technicians are already in uniform,
National Guard unit commanders have the technician workforce itself
available for instant deployment in response to any disaster or civil
assistant request while mobilization of the part-time Guardspersons is
in process. /9/
However, due to the unique status of technicians as compared to other
Federal employees, and as a result of the essential role they play in
achieving rapid mobilization of the part-time Guard into a military
force, technicians must possess a highly developed sense of esprit de
corps and military discipline which enables them to be instantaneously
convertible to active military status. But, because the traditional
means of instilling esprit de corps and military discipline, such as
drill, military courtesy and protocol, are not available for use with
personnel who are employed technically in a civilian status, the wearing
of the military uniform becomes indispensable as a constant reminder to
technicians that they are members of an organization which is
essentially military and subject to mobilization at a moment's notice.
In addition to the vital role technicians play in effectuating rapid
mobilization and deployment of the Guard, they are also statutorily
responsible for training the part-time National Guard. 32 U.S.C.
709(a)(1). Specifically, the record indicates that the purpose of this
training is to enable the National Guard to achieve a high degree of
military readiness and that such training frequently occurs during the
technician's workweek. /10/ As a consequence, the uniform wearing
requirement is utilized by the National Guard to create the most
realistic military environment possible in order for such military
training to be successful.
Therefore, based on the foregoing, and consistent with the judicial
determinations supporting the conclusion that there is a direct and
integral relationship between the uniform wearing requirement and the
duties technicians perform in furtherance of the overall military
mission of the National Guard, discussed above, we find the
determination by the National Guard Bureau that technicians must wear
the military uniform while performing technician duties constitutes
management's choice of a "methods, and means of performing work" within
the meaning of section 7106(b)(1) of the Statute. Thus, while this
requirement may be bargained at the election of the agency, it is not
within the duty to bargain.
Consequently, in the circumstances of this case, the failure of the
Respondent to cooperate in the final decision and order of the Federal
Service Impasses Panel did not constitute a violation of section
7116(a)(1) and (6) of the Statute.
IT IS ORDERED that the complaint in Case No. 1-CA-19 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 158 (1982).
/2/ State of New York, Division of Military and Naval Affairs,
Albany, New York and New York Council, Association of Civilian
Technicians, Inc., 78 FSIP 32 (1979).
/3/ Section 7106(b)(1) provides, in pertinent part, as follows:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the . . . methods,
and means of performing work(.)
/4/ The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue framed by the court.
/5/ National Guard Brief at 5.
/6/ Id. at 6.
/7/ Syrek v. Pennsylvania Air National Guard, supra, at 240.
/8/ Klotzbach v. Callaway, supra, at 1343.
/9/ National Guard Brief, Exhibit B at 7.
/10/ National Guard Brief, Exhibit A at 7-8.
/11/ This Order shall supersede our earlier Order in this matter.
15 FLRA 64; FLRA O-AR-415; July 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1650. No Basis for Review
1700. Implementation of Award
1701. Clarification and Interpretation
DIGEST NOTES
The dispute in this matter concerned whether the grievant had been
improperly denied a noncompetitive promotion. The arbitrator: (1)
found that grievant was entitled to have been noncompetitively promoted;
(2) ordered that the grievant be retroactively promoted with backpay;
and (3) ordered the payment of reasonable attorney fees. In its first
exception the agency contended that the award violated Sec. 7121(c)(5)
of the Statute. The Authority found that this exception provided no
basis for finding the award deficient since a grievance and an award
pertaining to whether the grievant was entitled to a noncompetitive
promotion as a result of the grievant's position being upgraded do not
concern the classification of any position within the meaning of Sec.
7121(c)(5) of the Statute. In its second exception the union contended,
relying on the provisions of the Back Pay Act, that the arbitrator's
denial of attorney fees is not in accordance with the standards
established by 5 U.S.C. 7701(g). Since the arbitrator failed to provide
an articulated decision as part of his denial of attorney fees, the
Authority remanded the award to the parties to have them obtain a
clarification and interpretation by the arbitrator concerning his denial
of attorney fees and to articulate fully his specific findings on all
pertinent statutory provisions.
U.S. ARMY MISSILE
READINESS COMMAND
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
Case No. O-AR-415
This matter is before the Authority on exceptions to the award of
Arbitrator John A. Griffin 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. /1/
The Arbitrator stated the dispositive issue as whether the grievant
had been improperly denied a noncompetitive promotion. The Arbitrator
essentially determined that in November 1979 the grievant's position was
upgraded because of additional duties and responsibilities and that the
grievant was entitled at that time to have been noncompetitively
promoted. Accordingly, as his award the Arbitrator ordered the grievant
retroactively promoted with backpay and also ordered the payment of
reasonable attorney fees.
In its first exception the Agency contends that the award violates
section 7121(c)(5) of the Statute which precludes grievances concerning
the classification of any position which does not result in the
reduction in grade or pay of an employee. However, the Authority has
expressly determined that a grievance and an award pertaining to whether
the grievant was entitled to a noncompetitive promotion as a result of
the grievant's position being upgraded do not concern the classification
of any position within the meaning of section 7121(c)(5) of the Statute.
Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and
American Federation of Government Employees, Local 987, 10 FLRA No. 69
(1982). Accordingly, this exception provides no basis for finding the
award contrary to section 7121(c)(5) of the Statute and is denied.
In its second exception the Agency contends that the Arbitrator's
award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. 5596.
Specifically, the Agency argues that the award of attorney fees is not
in accordance with the standards established under 5 U.S.C. 7701(g)
which govern an award of attorney fees by an arbitrator under the Back
Pay Act.
In International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for
the first time addressed in detail the statutory requirements regarding
awards of attorney fees by arbitrators. The Authority held that under
the applicable standards of the Back Pay Act, an arbitrator must provide
a fully articulated, reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis upon which the reasonableness of the
amount was determined when fees are awarded. In this case the
Arbitrator's award of fees is not in accordance with these standards.
However, the Arbitrator's determination was made without the benefit of
the instruction and guidance provided by United States Army Support
Command, Hawaii. Consequently, the Authority shall remand the award to
the parties to have them obtain a clarification and interpretation of
the award of attorney fees by the Arbitrator.
Accordingly, pursuant to section 2425.4 of the Authority's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award of attorney
fees to articulate fully specific findings on all pertinent statutory
provisions.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Exceptions submitted by the grievant were not timely filed and
therefore are dismissed.
15 FLRA 63; FLRA O-AR-403; July 17, 1984.
DIGEST HEADINGS
100 GENERAL PROVISION
200. Effect of the Statute on Existing Laws, Agreements and
Procedures
1000. ARBITRATION
1600. Ground for Review
1601. Award Conflicts with Applicable Law
1750. Remedies
1751. Arbitrator's Authority
DIGEST NOTES
The dispute in this matter concerns the filling of a supervisory
position. The arbitrator found that the parties' collective bargaining
agreement covers employee promotions to supervisory positions and that
the agency violated the agreement. In its first exception, the agency
contended that the award is contrary to law since promotion procedures
for non-bargaining unit positions, such as supervisory positions, are
outside the obligation to bargain and the agency did not elect during
negotiations of the agreement to bargain on promotion procedures for
supervisory promotions. The Authority held that although promotion
procedures for supervisory positions are outside the obligation to
bargain, an agency is not prohibited from bargaining on such a matter.
Since the parties negotiated a merit promotion plan and the arbitrator
expressly determined that the plan encompasses supervisory positions,
the Authority concluded that the agency's first exception provides no
basis for finding the award deficient as it fails to establish that the
award is contrary to law.
In its second exception, the agency contended that the arbitrator
violated law by requiring that the agency make a selection to fill the
reannounced position. The Authority held that the exception provided no
basis for finding that award contrary to management's right since the
award does not require the agency to make an actual selection.
The fact that the parties' collective bargaining agreement was
negotiated under the terms of E.O. 11491 is immaterial for purposes of
this decision. The dispute arose and the award was issued after the
effective date of the Statute. Also, the bargaining obligation with
respect to promotion procedures has remained unchanged under the
Statute. (footnote 1)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Case No. O-AR-403
This matter is before the Authority on exceptions to the award of
Arbitrator Harold C. White 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 dispute in this matter concerns the filling of a supervisory
equal opportunity specialist position. A grievance was filed and
submitted to arbitration claiming that the Agency violated the parties'
collective bargaining agreement in filling the position. The Arbitrator
found that by posting the vacancy announcement for 22 days, the Agency
violated the agreement provision providing for a maximum posting period
of 20 days. In so ruling the Arbitrator rejected the Agency's argument
that the negotiated merit promotion plan of the agreement, including the
20-day rule, was not intended to apply to supervisory positions. To the
Arbitrator it was clear that negotiated promotion procedures are
permitted to encompass supervisory positions and that the parties'
agreement covers employee promotions to supervisory positions. As a
remedy the Arbitrator directed the Agency to repost the vacancy and
proceed through the selection process to fill the vacancy.
In its first exception the Agency contends that the award is contrary
to law. Specifically, the Agency maintains that promotion procedures
for non-bargaining unit positions, such as supervisory positions, are
outside the obligation to bargain. The Agency further maintains that,
with respect to this collective bargaining agreement, it elected not to
bargain on promotion procedures for supervisory positions.
The Authority concludes that this exception provides no basis for
finding the award deficient. Although promotion procedures for
supervisory positions are outside the obligation to bargain, an agency
is not prohibited from bargaining on such a matter and therefore may
bargain on and agree to promotion procedures for supervisory positions
as part of its collective bargaining agreement. /1/ Clearly, once
included as part of the collective bargaining agreement, promotion
procedures for supervisory positions may properly be enforced through
arbitration. See Local 1917, American Federation of Government
Employees and United States Immigration and Naturalization Service,
Eastern Region, 13 FLRA No. 19 (1983). Therefore, the Authority finds
that with the parties having negotiated a merit promotion plan and with
the Arbitrator having expressly determined that the plan encompasses
supervisory positions and having directed the Agency to meet its
negotiated obligations, the Agency's exception fails to establish that
the award is contrary to law. The Agency's contention, that the
agreement language fails to evidence a clear and unmistakable intention
on the part of the Agency to have supervisory positions encompassed by
the negotiated merit promotion plan, constitutes nothing more than
disagreement with the Arbitrator's interpretation of the agreement and
provides no basis for finding the award deficient. E.g., Overseas
Education Association and Department of Defense Dependents Schools
(DODDS), Pacific Region, 13 FLRA No. 89 (1983).
In its second exception the Agency contends that the Arbitrator
violated law by requiring that the Agency make a selection to fill the
reannounced position. However, on its face the award only requires that
the Agency repost the position and proceed through the selection
process. In addition, the Arbitrator specifically stated that the
corrective action should conform to established procedures. Thus, the
award does not require the Agency to make an actual selection to fill
the position, and no basis is provided for finding the award contrary to
management's right to select in filling positions. See Adjutant
General, State of Oklahoma, Air National Guard and American Federation
of Government Employees, Will Rogers Air National Guard Local 3953, 8
FLRA No. 23 (1982).
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The fact that the parties' collective bargaining agreement in
this case was negotiated under the terms of E.O. 11491 is immaterial for
purposes of this decision. The dispute arose and the award was issued
after the effective date of the Statute. Moreover, the bargaining
obligation with respect to promotion procedures has remained unchanged
under the Statute. Compare International Association of Fire Fighters,
Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980) (Proposal
3) with Texas ANG Council of Locals, AFGE and State of Texas National
Guard, 4 FLRC 153 (1976).
15 FLRA 62; FLRA O-AR-292; July 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation
DIGEST NOTES
The dispute in this matter concerned the suspension of grievant for
14 days on charges of failure to obey an order, insubordination, and
dereliction in the performance of her duties. The arbitrator: (1)
found that the suspension was not for sufficient cause; (2) sustained
the grievance; (3) set aside the suspension; (4) awarded the grievant
backpay for the salary improperly withheld by reason of the suspension;
and (5) denied the union's request for an award of attorney fees. In
its exception the union contended, relying on the provisions of the Back
Pay Act, that the arbitrator's denial of attorney fees is not in
accordance with the standards established by 5 U.S.C. 7701(g)(1). Since
the arbitrator failed to provide an articulated decision as part of his
denial of attorney fees, the Authority remanded the award to the parties
to have them obtain a clarification and interpretation by the arbitrator
concerning his denial of attorney fees and to articulate fully his
specific findings on all pertinent statutory provisions.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2667
and
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Case No. O-AR-292
This matter is before the Authority on an exception to the award of
Arbitrator James M. Harkless 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. The Agency filed an opposition.
The dispute in this matter concerns the grievant's 14-day suspension
on charges of failure to obey an order, insubordination, and dereliction
in the performance of her assigned duties. A grievance was filed and
submitted to arbitration protesting the suspension. The Arbitrator
determined that the suspension was not for sufficient cause.
Accordingly, he sustained the grievance, set aside the suspension, and
awarded the grievant backpay for the salary that was improperly withheld
by reason of the suspension. However, he denied the Union's request for
an award of attorney fees because he determined that the grievant's
conduct warranted an admonishment. The Union has filed an exception to
the Arbitrator's denial of attorney fees.
In its exception the Union contends that the denial of attorney fees
is contrary to the Back Pay Act, 5 U.S.C. 5596. Specifically, the Union
argues that the award is not in accordance with the standards
established under 5 U.S.C. 7701(g) regarding awards of attorney fees.
Specifically, the Union maintains that the Arbitrator essentially held
that an award of attorney fees was not justified because the grievant's
conduct warranted an admonishment and that this ruling is inconsistent
with section 7701(g)(1), which provides other criteria for determining
when an award of attorney fees is warranted. Further, the Union claims
that the refusal to grant attorney fees is inconsistent with the
standards established under section 7701(g)(1) by the Merit Systems
Protection Board which provide that an award of attorney fees is
warranted when an employee is substantially innocent of charges brought
against the employee or when a suspension was initiated in bad faith.
In International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for
the first time addressed in detail the statutory requirements regarding
awards of attorney fees by arbitrators. The Authority held that under
the applicable standards of the Back Pay Act, an arbitrator must provide
a fully articulated, reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis upon which the reasonableness of the
amount was determined when fees are awarded. In this case the
Arbitrator's award is not in accordance with these standards. However,
the Arbitrator's determination was made without the benefit of the
instruction and guidance provided by United States Army Support Command,
Hawaii. Consequently, the Authority shall remand the award to the
parties to have them obtain a clarification and interpretation of the
determination by the Arbitrator to deny an award of attorney fees.
Accordingly, pursuant to section 2425.4 of the Authority's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award regarding
attorney fees to articulate fully specific findings on all pertinent
statutory provisions.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
15 FLRA 61; FLRA 7-CU-40001; July 17, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3020. Appeals to the Authority
DIGEST NOTES
Where an application for review of a FLRA Regional Director's
Decision on Petition for Clarification of Unit advanced no compelling
reason for the review and merely expressed disagreement with the
Regional Director's findings, the Authority denied the application for
review.
AIR FORCE ACCOUNTING
AND FINANCE CENTER
LOWRY AIR FORCE BASE, COLORADO
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2040
Case No. 7-CU-40001
On June 1, 1984, the Air Force Accounting and Finance Center, Lowry
Air Force Base, Colorado (Petitioner), 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
support thereof, the Petitioner contends that compelling reasons within
the meaning of section 2422.17(c) of the Authority's Rules and
Regulations exist for granting its application. /1/
Upon consideration of the Petitioner's application for review,
including all arguments in support thereof, the Authority concludes that
no compelling reasons exist for granting the application. Rather, the
application in essence expresses mere disagreement with the Regional
Director's findings, which have not been shown to be clearly erroneous.
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 Petition for Clarification
of Unit be, and it hereby is, denied.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 2422.17(c) provides:
(c) The Authority may grant an application for review only
where it appears that compelling reasons exist therefor.
Accordingly, an application for review may be granted only upon
one or more of the following grounds:
(1) That a substantial question of law or policy is raised
because of (i) the absence of, or (ii) a departure from Authority
precedent;
(2) That there are extraordinary circumstances warranting
reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error;
or
(4) That the Regional Director's decision on a substantial
factual issue is clearly erroneous and such error prejudicially
affects the rights of a party.
15 FLRA 60; FLRA O-AR-242; July 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1650. No Basis for Review
1652. Non-Statutory Exclusions
1652.01 Disagreement with Arbitrator's Reasoning
1652.05 Exceptions Not Supported by Sufficient Facts and
Circumstances
1700. Implementation of Award
1701. Clarification and Interpretation
DIGEST NOTES
The dispute in this matter concerned whether management had violated
the provisions of its upward mobility program in not considering the
grievant's completion of Zoology 602a in filling an upward mobility
nursing position. The arbitrator: (1) found that management had
violated the provisions of the upward mobility program in not
considering grievant's course completion; (2) provided as a remedy that
grievant be reimbursed for expenses incurred while participating in the
program and, additionally, should grievant have suffered a reduction in
earnings as a result of not having been selected for the training
position that he be paid the amount of reduction sustained; and (3)
expressly provided for his retention of jurisdiction "in the event the
parties cannot determine and arrive at the remedy prescribed". The
agency, pursuant to the retention of jurisdiction, filed a request for
clarification and the arbitrator clarified the remedy. The arbitrator
also subsequently clarified the award to expressly deny attorney fees.
In its first exception, the union contended that the clarification by
the arbitrator of the remedy was invalid as it substantially modified
the award and because the arbitrator was functus officio since the
clarification was issued pursuant to an ex parte request by the agency.
The Authority found that the union did not establish that the
clarification substantially modified the award nor did they establish
that the doctrine of functus officio applied as the arbitrator had
retained jurisdiction to resolve precisely the difficulty that arose and
simply clarified the remedy already prescribed.
In its second exception, the union contended that the grievant,
pursuant to the Back Pay Act, 5 U.S.C. 5596, was entitled to have been
retroactively selected for the upward mobility position. The Authority
denied the exception as the arbitrator expressly refused to make the
determination, necessary in order for the grievant to have been
retroactively selected for promotions under the Back Pay Act, that but
for the agency's violation, the grievant would have been selected for
the position.
In its third exception the agency contended that the arbitrator's
denial of attorney fees was contrary to the Back Pay Act. Since the
arbitrator failed to provide an articulated decision as part of his
denial of attorney fees, the Authority remanded the award to the parties
to have them obtain a clarification and interpretation by the arbitrator
concerning his denial of attorney fees and to articulate fully his
specific findings on all pertinent statutory provisions.
AUDIE L. MURPHY VETERANS
ADMINISTRATION HOSPITAL,
SAN ANTONIO, TEXAS
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL NO. 3511
Case No. O-AR-242
This matter is before the Authority on exceptions to the award of
Arbitrator Albert V. Carter 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. The Agency filed an opposition.
The parties submitted to arbitration the issue of whether management
had violated the provisions of its upward mobility program in not
considering the grievant's completion of Zoology 602a in filling an
upward mobility nursing position. The Arbitrator determined that
management had violated provisions of the upward mobility program in not
considering the grievant's course completion and prescribed the
following as a remedy for the violation:
The Grievant shall be reimbursed for the cost of tuition,
registration, textbooks, and uniforms required, incurred by him
while participating in the program at his own expense because of
not being selected as a trainee by the Employer. In addition,
should the Grievant have suffered a reduction in earnings as a
direct result of not having been selected for the training
position announced, he shall be paid the amount of such reduction
sustained.
In conjunction with his award, the Arbitrator expressly provided that
he would retain jurisdiction in this case "in the event the parties
cannot determine and arrive at the remedy prescribed."
Pursuant to the Arbitrator's retention of jurisdiction, the Activity
requested a clarification of the remedy which the Arbitrator had
prescribed, and the Arbitrator clarified the remedy to specify the time
frame involved and to specify that the corrective action with respect to
the selection action is to reannounce the position with proper
consideration given to completion of the require zoology course. In
addition, he restated that should the grievant have suffered a reduction
in earnings as a direct result of not having been selected for the
training position announced, he shall be paid the amount of such
reduction sustained. The Arbitrator subsequently further clarified the
award to expressly deny attorney fees.
In its first exception the Union contends that the clarification by
the Arbitrator of the remedy is invalid. Specifically, the Union argues
that the Arbitrator's "clarification" is invalid because it
substantially modified the award and, in any event, that the
clarification is invalid because the Arbitrator was functus officio in
that the clarification was issued pursuant to the ex parte request of
the Activity and not the joint request of both parties.
The Authority concludes that the Union has failed to establish that
the Arbitrator's clarification is invalid. The Union has not
substantiated that the Arbitrator's clarification of the remedy
substantially modified the award. Likewise, the Union has not
substantiated that the doctrine of functus officio applies in this case
since the Arbitrator expressly retained jurisdiction to resolve
precisely the difficulty which arose and the Arbitrator on the basis of
this retention provision simply clarified the remedy already prescribed.
In its second exception the Union maintains that the grievant was
entitled to have been retroactively selected for the upward mobility
position, pursuant to the Back Pay Act, 5 U.S.C. 5596.
However, it is well established that in order for the grievant to
have been entitled to be retroactively selected for the upward mobility
position, the Arbitrator must have expressly determined that but for the
Activity's violation, the grievant originally would have been selected
for the position. See, e.g., American Federation of Government
Employees, Local 2811 and U.S. Government District Office, Social
Security Administration, St. Paul, Minnesota, 7 FLRA 618, 620 (1982).
In this case the Arbitrator specifically refused to make this
determination when he clarified the corrective action prescribed with
respect to the selection for the upward mobility position. Accordingly,
the Union's exception is denied.
In its third exception the Union contends that the Arbitrator's
denial of attorney fees is contrary to the Back Pay Act. In
International Brotherhood of Electrical Workers and United States Army
Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for the
first time addressed in detail the statutory requirements regarding
awards of attorney fees by arbitrators. The Authority held that under
the applicable standards of the Back Pay Act, an arbitrator must provide
a fully articulated, reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis upon which the reasonableness of the
amount was determined when fees are awarded. In this case the
Arbitrator's award is not in accordance with these standards. However,
the Arbitrator's determination was made without the benefit of the
instruction and guidance provided by United States Army Support Command,
Hawaii. Consequently, the Authority shall remand the award to the
parties to have them obtain a clarification and interpretation of the
determination by the Arbitrator to deny an award of attorney fees.
Accordingly, pursuant to 2425.4 of the Authority's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award regarding
attorney fees to articulate fully specific findings on all pertinent
statutory provisions.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
15 FLRA 59; FLRA O-NG-744; July 17, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2151.10 Organization
2152.50 Determine Personnel
2200. Subjects of Bargaining
2201. At Election of Agency
2201.01 Number, Types and Grades of Employees
DIGEST NOTES
A proposal is negotiable that merely acknowledges that higher levels
within the agency have elected to impose upon local management certain
limitations in the exercise of its right to determine its
"organization," and only requires that local management adhere to
whatever higher level agency regulations apply at the time it takes any
action affecting its "organization". The disputed proposal does not
violate management's rights under Sec. 7106(a)(1) to determine its
"organization"; under Sec. 7106(a)(2)(B) to determine the "personnel"
by which agency operations are conducted; under Sec. 7106(b)(1) to
determine the "numbers, types, and grades of employees" assigned.
A proposal that merely requires local management to adhere to agency
regulations does not interfere with management's right although the
regulation does not provide for a waiver of its requirements. The
absence of a waiver provision is, in itself, an exercise of managerial
discretion. The proposal would not bar modification of the regulation
to provide for the granting of waivers. (footnote 2)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
and
ARMY MISSILE AND MUNITIONS
CENTER AND SCHOOL, REDSTONE
ARSENAL, ALABAMA
Case No. O-NG-744
The petition for review in this case comes from the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises an issue
concerning the negotiability of the following Union proposal.
MMCS (the Agency) agrees to comply with the provisions of AR
(Army Regulation) 570-4 and changes thereto, regarding the
occupancy of military and civilian TDA (Table of Distribution and
Allowance) spaces.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The Agency describes the cited regulation as follows: /1/
AR 570-4 Manpower Management, . . . is applicable to all
elements of the Army and deals with the use and mix of manpower
resources available to perform the Army mission, to include the
military force, the Federal civilian work force, and services
obtained by contract.
With regard to the "mix" of civilian and military resources, the
Authority noted in American Federation of Government Employees, AFL-CIO,
Local 3742 and Department of the Army, Headquarters, 98th Division
(Training), Webster, New York, 11 FLRA No. 42 (1983) (Union Proposal 8)
that when an agency establishes the ratio between military and civilian
positions in an organizational element, it is exercising its right,
pursuant to section 7106(a)(1) of the Statute, to determine its
"organization."
However, the disputed proposal herein does not violate the Agency's
right to determine its organization. Further, contrary to the Agency's
contentions, this proposal would not interfere with the Agency's right,
pursuant to section 7106(a)(2)(B) of the Statute, to determine the
"personnel" by which Agency operations are conducted, or with the
Agency's right, pursuant to section 7106(b)(1), to determine the
"numbers, types, and grades of employees" assigned. Rather, the
disputed proposal merely acknowledges that higher levels within the
Agency have elected to impose upon local management certain limitations
in the exercise of its right to determine its "organization," and only
requires that local management adhere to whatever higher level Agency
regulations apply at the time it takes any action affecting its
"organization." /2/
A proposal to the same effect was before the Authority in American
Federation of Government Employees, AFL-CIO, National Council of EEOC
Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982)
(Union Proposal 1). The cited proposal sought to require management to
exercise its right, pursuant to section 7106(a)(2)(B) of the Statute, to
make contracting out determinations in conformity with whatever
applicable laws and regulations exist at the time of the action. In
finding the proposal within the duty to bargain, the Authority noted
that its provisions " . . . would contractually recognize external
limitations on management's right but would not establish, either
expressly or by incorporation, any substantive limitations on
management." Hence, based on Equal Employment Opportunity Commission,
and the reasons cited therein, since the disputed proposal in this case
would likewise only contractually recognize higher level limitations on
local management's right, it is within the duty to bargain. /3/
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 disputed
proposal.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Agency Statement of Position at 1.
/2/ In this connection, the Agency contends that the proposal
interferes with management's right because the cited regulation does not
provide for a waiver of its requirements. However, the absence of a
waiver provision is, in itself, an exercise of managerial discretion,
and the proposal would not bar modification of the regulation to provide
for the granting of waivers.
/3/ In finding the disputed proposal within the duty to bargain, the
Authority makes no judgment as to its merits.
15 FLRA 58; FLRA O-NG-712; July 17, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2600. Conditions for Review
2602. Proposal Alleged to be Inconsistent with Government-wide Rule
or Regulation
2650. Compelling Need Determination
DIGEST NOTES
A proposal which would require that an employee on temporary duty in
a technician status away from their regular duty station shall be
assigned quarters based on their civilian grade as contrasted with their
military grade is nonnegotiable as it is inconsistent with an agency
regulation for which there is a compelling need. The agency regulation,
TPR 900 (935.1), encompasses a mandate from Congress that National Guard
Technicians in travel status will occupy government quarters based on
their military grade.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 3004
and
DEPARTMENT OF THE ARMY
AND AIR FORCE,
NATIONAL GUARD BUREAU
Case No. O-NG-712
This petition for review comes before the Federal Labor Relations
Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of
the Federal Service Labor-Management Relations Statute (the Statute) and
raises the question of the negotiability of the following Union
proposal. /1/
Section a. Employees on temporary duty in a technician status
away from their designated duty station are required to utilize
adequate government quarters when available based on their
civilian grade.
Section j. A certificate of non-availability will be requested
from the billeting officer if adequate quarters, commensurate with
civilian pay grade, are not available. If denied, such denial
shall be requested in writing. If written denial is not issued,
employees should contact their immediate supervisor or a
management official at their home station for guidance and/or
assistance.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
In agreement with the Agency, the Authority finds that the Union's
proposal is not within the duty to bargain.
The disputed portions of the proposal require that employees on
temporary duty in a technician status away from their regular duty
station shall be assigned quarters based on their civilian grade as
contrasted with their military grade. Thus, the proposal is
substantively identical in effect to Union Proposal 2 which was before
the Authority in National Federation of Federal Employees, Local 1669
and Arkansas Air National Guard, 13 FLRA No. 37 (1983), appeal docketed
sub nom. NFFE Local 1669 v. FLRA, Case No. 83-2229 (D.C. Cir. 1983). In
that case, the Authority held the proposal outside the duty to bargain
because the Agency regulation, TPR 900 (935.1), met the criterion for
establishing compelling need for agency rules and regulations under
section 2424.11(c) of the Authority's Rules and Regulations. In that
regard, based upon the report accompanying the "Department of Defense
Appropriations Bill, 1982," which included a directive to the Department
of Defense to the effect that National Guard Technicians in travel
status would occupy government quarters based on their military grade,
the Authority found that the Agency was placed under a mandate from
Congress. Hence, based on the Arkansas Air National Guard decision and
the reasons stated therein, the instant proposal is outside the duty to
bargain since it is inconsistent with an Agency regulation (TPR 900
(935.1)) for which there is a compelling need. /2/
Accordingly, 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union's petition for review originally contained 7 proposals.
However, during the pendency of this appeal, the parties reached
agreement on all but the disputed portions of Article 13. The Authority
hereby grants the Union's request to withdraw the other 6 proposals.
Further, the Agency's contention that the Union's petition for review
should be dismissed for inadequate service and/or untimeliness cannot be
sustained. In this regard, the Authority finds that the Union's service
of its petition upon the Agency's disapproving official is adequate
service pursuant to section 2424.4(a)(4)(b) of the Authority's Rules and
Regulations, and, insofar as it appears from the record, the Union filed
its appeal within the appropriate time period prescribed by sections
2424.3 and 2429.22 of the Authority's Rules and Regulations. Finally,
the Authority concludes, contrary to the Agency's assertion, that the
Union's statement that the "intent of (its) proposals are clear on their
face" is accurate and thus constitutes sufficient compliance with
section 2424.4(a)(2) of the Authority's Rules and Regulations.
/2/ In view of its decision herein, the Authority finds it
unnecessary to address the Agency's additional contention regarding the
nonnegotiability of the proposals.
15 FLRA 57; FLRA O-NG-884; July 16, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2530. Bargaining Request
DIGEST NOTES
In the absence of a duty to bargain between the parties,
negotiability disputes are not appropriate for resolution by the
Authority. Thus, where the Regional Director determined in an unfair
labor practice case that the union failed to submit a proposal within a
reasonable time and the agency, therefore, did not have an obligation to
bargain over the proposal, the Authority dismissed a related
negotiability petition for review of the proposal.
NATIONAL TREASURY EMPLOYEES
UNION
and
INTERNAL REVENUE SERVICE,
KANSAS CITY SERVICE CENTER,
KANSAS CITY, MISSOURI
Case No. O-NG-884
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute).
The record indicates that the Union sought to negotiate over the
Agency's changes in certain incentive award criteria. The Agency
refused to bargain with the Union over the proposal which is the subject
of the instant appeal alleging, among other things that under the
circumstances it had fulfilled its obligation to bargain. /1/ In
response to the Agency's refusal to bargain over the proposal, the Union
filed the instant appeal and an unfair labor practice charge alleging
that the Agency committed an unfair labor practice by implementing an
incentive award program without first bargaining over the Union's
proposals. Pursuant to section 2424.5 of the Authority's Rules and
Regulations, the Union elected to proceed with the unfair labor practice
charge and to suspend further action on the negotiability appeal.
Upon investigation, the Regional Director concluded that further
proceedings on the Union's charge were not warranted. Specifically, the
Regional Director determined that the Union did not submit the proposal
which is the subject of the instant appeal until after the Agency had
implemented the proposed changes. The Regional Director, therefore,
concluded that the Union failed to submit the proposal within a
reasonable time and, thus, the Agency did not have an obligation to
bargain over the proposal. No appeal of the Regional Director's
determination was taken to the General Counsel.
In the absence of a duty to bargain between the parties, issues as to
whether a particular proposal is inconsistent with applicable law, rule
or regulation are not appropriate for resolution by the Authority.
National Federation of Federal Employees, Local 1363 and Headquarters,
U.S. Army Garrison, Yongsan, Korea, 8 FLRA 200 (1982), and National
Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 8 FLRA 134 (1982). Thus, based upon the
Regional Director's determination of no obligation on the part of the
Agency to bargain, which was not appealed by the Union, it is concluded
that any negotiability issue which might have been raised in the instant
appeal is now moot.
Accordingly, 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., July 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
(DECISION AND ORDER ON REMAND OF 8 FLRA No. 97)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 32
and
OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C.
Case No. O-NG-157
(8 FLRA 460)
On May 7, 1982, the Authority issued its Decision and Order in the
above-entitled proceeding in which it found that Proposal VI, which
provided that an employee demoted through no fault of his/her own be
selected to fill the first vacancy at his/her former grade level, was
inconsistent with section 7106(a)(2)(C) of the Statute and, therefore,
was not within the Agency's duty to bargain. American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 8 FLRA 460 (1982).
Thereafter, on March 13, 1984, the U.S. Court of Appeals for the
District of Columbia Circuit reversed the Authority's decision with
respect to Proposal VI and remanded the decision for the entry of an
order requiring bargaining. Local 32, AFGE, AFL-CIO v. Federal Labor
Relations Authority, 728 F.2d 1526, 1530 (D.C. Cir. 1984). The
Authority then filed with the Court a motion for leave to file a
petition for rehearing out of time in order to request that, upon
processing of the Court-ordered remand, the Authority be allowed to
consider whether the proposal was inconsistent with a Government-wide
rule or regulation, an issue raised in the case and not resolved by the
Court, but found dispositive in an analogous Authority decision,
Decision and Order on Remand in American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 7 FLRA 91 (1983), petition for review granted,
702 F.2d 1183 (D.C. Cir. 1983), which issued after the time had passed
for filing a petition for rehearing. The Authority's motion was denied
on June 27, 1984. Local 32, AFGE, AFL-CIO v. FLRA, No. 82-1756 (D.C.
Cir. 1984).
Thus, the Authority accepts the Court's opinion as the law of the
case and, consistent with that opinion, and, 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 proposal VI. /2/
Issued, Washington, D.C., July 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
(SUPPLEMENTAL DECISION AND ORDER TO 9 FLRA No. 40)
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE DISTRICT
and
NATIONAL TREASURY EMPLOYEES UNION
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
JACKSONVILLE AND ATLANTA DISTRICTS
and
NATIONAL TREASURY EMPLOYEES UNION
Case Nos. 4-CA-498, 4-CA-561
9 FLRA 333
On June 30, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with section 713(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1) and (8) of the Statute, based on its refusal to provide
official time to employees Wayne Pierce, Calvin Barnlund, and Orville
Guinn in connection with negotiations conducted between the parties on
May 15, 1980. The Authority further found that the Respondent's denial
of the reimbursement of travel and per diem expenses related to such
negotiations for these employees also constituted a failure and refusal
to comply with section 7131(a) in violation of section 7116(a)(1) and
(8) of the Statute. Thereafter, the Respondent petitioned the United
States Court of Appeals for the Eleventh Circuit for review of the
Authority's decision.
The Court stayed its review of the Authority's decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision insofar as it pertained to
travel and per diem expenses. The motion was granted by the United
States Court of Appeals for the Eleventh Circuit on February 27, 1984.
Pursuant to the Order of the United States Court of Appeals for the
Eleventh Circuit, the Authority dismisses the allegations of the
complaint pertaining to the Respondent's failure and refusal to
reimburse its employees for their travel and per diem expenses and
hereby vacates its prior Order in this regard. Accordingly, the
Authority shall issue the following Order and require that the
accompanying Notice To All Employees be posted in this matter.
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 Respondent Department of Treasury,
Internal Revenue Service, Jacksonville and Atlanta Districts shall:
1. Cease and desist from:
(a) Failing and refusing to provide Calvin Barnlund, Wayne Pierce and
Orville Guinn, or any other bargaining unit employees, while engaged in
representing the National Treasury Employees Union, the employees'
exclusive representative, during negotiation of a collective bargaining
agreement, official time for such participation including necessary
travel time during the employees' regular work hours and when the
employees would otherwise be in a work or paid leave status.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representative Wayne Pierce official time for the
performance of his collective bargaining duties on May 14 and 15, 1980,
and make him whole for any annual leave he may have utilized on such
dates.
(b) Post at its various offices in the Atlanta and Jacksonville
Districts wherein 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
Director of the Jacksonville and Atlanta Districts, respectively, or
their designees, 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 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, Region IV, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the section 7116(a)(5) allegation of the
consolidated complaint be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the consolidated complaint be, and it
hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure and refusal to
reimburse employees Wayne Pierce, Calvin Barnlund and Orville Guinn for
their travel and per diem expenses.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide to Calvin Barnlund, Wayne
Pierce and Orville Guinn or any other bargaining unit employees, while
engaged in representing the National Treasury Employees Union, the
employees' exclusive representative, during negotiation of a collective
bargaining agreement, official time for such participation 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.
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 provide Union representative Wayne Pierce official time for
the performance of his collective bargaining duties on May 14 and 15,
1980, and make him whole for the annual leave he may have utilized on
the above dates.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region IV, whose
address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta,
GA 30309, and whose telephone number is (404) 881-2324.
(ORDER DENYING MOTION FOR
RECONSIDERATION OF 9 FLRA
No. 36)
UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
BORDER PATROL COUNCIL
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2455
and
INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS
Case Nos. 6-CA-48, 6-CA-49,
63-CA-565, 63-RO-6
9 FLRA No. 36
This case is before the Authority on a motion for reconsideration
filed by the International Brotherhood of Police Officers (IBPO) on July
9, 1984, seeking reconsideration of the Authority's Supplemental
Decision and Order and Direction of Second Election of May 31, 1984.
For the reason set forth below, the motion must be denied.
Section 2429.17 of the Authority's Rules and Regulations, effective
September 10, 1981, 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 ten (10) days after
service of the Authority's decision or order . . . .
The Authority's Supplemental Decision and Order and Direction of
Second Election was dated and served on the IBPO by mail on May 31,
1984. Therefore, under section 2429.17 of the Authority's Rules and
Regulations, and sections 2429.21 and 2429.22, which are also applicable
to the computation of the time limit here involved, the IBPO's motion
for reconsideration was due in the national office of the Authority
before the close of business on June 18, 1984. Since, as indicated
above, the IBPO's motion was not filed until July 9, 1984, it is clearly
untimely and must be denied.
Accordingly, for the reason set forth above,
IT IS ORDERED that the motion for reconsideration in this case be,
and it hereby is, denied.
For the Authority.
Issued, Washington, D.C., July 18, 1984
Jan K. Bohren
Executive Director/Administrator
PENNSYLVANIA STATE COUNCIL,
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
and
THE ADJUTANT GENERAL OF PENNSYLVANIA
Case No. O-AR-304
This matter is before the Authority on exceptions to the award of
Arbitrator James L. McEwen 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
MARINE CORPS AIR GROUND COMBAT
CENTER, 29 PALMS, CALIFORNIA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2018, AFL-CIO
Case No. O-AR-319
This matter is before the Authority on exceptions to the award of
Arbitrator Robert M. Leventhal 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.
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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
and
U.S. CUSTOMS SERVICE
Case No. O-AR-364
This matter is before the Authority on exceptions to the award of
Arbitrator James M. Harkless filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
MID-AMERICA PROGRAM SERVICE CENTER,
SOCIAL SECURITY ADMINISTRATION,
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, KANSAS CITY, MISSOURI
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, (NATIONAL COUNCIL OF
SOCIAL SECURITY PAYMENT CENTER
LOCALS), LOCAL 1336
Case No. O-AR-376
This matter is before the Authority on exceptions to the award of
Arbitrator Gladys W. Gruenberg 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION V
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3400
Case No. O-AR-522
This matter is before the Authority on exceptions to the award of
Arbitrator Ann Harmon Miller 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.
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 7112(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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1438
Case No. O-AR-628
This matter is before the Authority on exceptions to the award of
Arbitrator David L. Beckman 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA PROGRAM SERVICE CENTER
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
Case No. O-AR-736
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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF PROGRAM SERVICE CENTERS,
SOCIAL SECURITY ADMINISTRATION
and
NATIONAL COUNCIL OF SOCIAL SECURITY
PAYMENT CENTER LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. O-AR-737
This matter is before the Authority on exceptions to the award of
Arbitrator Anne Harmon Miller 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
and
SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA PROGRAM SERVICE CENTER
Case No. O-AR-754
This matter is before the Authority on exceptions to the award of
Arbitrator Charles A. Fleming 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., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
OMAHA VETERANS ADMINISTRATION
MEDICAL CENTER, OMAHA, NEBRASKA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2270, AFL-CIO
Case No. O-AR-767
This matter is before the Authority on exceptions 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 exceptions are denied.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ It is noted that the Union had previously submitted another
proposal which is the subject of a separate negotiability appeal.
/2/ In so ordering, the Authority makes no judgment as to the merits
of Proposal VI and of course does not pass upon the question of whether
the proposal was inconsistent with a Government-wide rule or regulation,
an issue raised in the case and not resolved by the Court.
15 FLRA 56; FLRA O-NG-861; July 16, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2705. Moot
DIGEST NOTES
Where the Regional Director determined that no duty to bargain
existed between the parties, a determination which was not appealed by
the union, the Authority found that any negotiability issue which might
have been raised in the instant appeal is now moot. Consequently, the
union's petition for review was dismissed.
NATIONAL TREASURY EMPLOYEES
UNION
and
INTERNAL REVENUE SERVICE,
KANSAS CITY SERVICE CENTER,
KANSAS CITY, MISSOURI
Case No. O-NG-861
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute).
The record indicates that the union sought to negotiate over an
Agency change in certain incentive award criteria. The Agency refused
to bargain with the Union over the proposal which is the subject of the
instant appeal alleging, among other things, that under the
circumstances it had fulfilled its obligation to bargain. /1/ In
response to the Agency's refusal to bargain over the proposal, the Union
filed the instant appeal and an unfair labor practice charge alleging
that the Agency committed an unfair labor practice by implementing an
incentive award program without first bargaining over the Union's
proposals. Pursuant to section 2424.5 of the Authority's Rules and
Regulations, the Union elected to proceed with the unfair labor practice
charge and to suspend further action on the negotiability appeal.
Upon investigation, the Regional Director concluded that further
proceedings on the Union's charge were not warranted. Specifically, the
Regional Director determined that the Agency did not have an obligation
to bargain over the Union's proposal which is the subject of the instant
appeal since the Union's proposal did not concern matters the Agency had
proposed to change. That is, while the Agency did propose to revise its
incentive award criteria, it did not propose to revise those aspects of
the incentive award program which the Union's proposal concerned. Since
the Agency had not proposed to revise those aspects of the incentive
award program which the Union's proposal addressed, the Regional
Director concluded that the Agency did not have an obligation to
bargain. No appeal of the Regional Director's determination was taken
to the General Counsel.
In the absence of a duty to bargain between the parties, issues as to
whether a particular proposal is inconsistent with applicable law, rule
or regulation are not appropriate for resolution by the Authority.
National Federation of Federal Employees, Local 1363 and Headquarters,
U.S. Army Garrison, Yongsan, Korea, 8 FLRA 200 (1982), and National
Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 8 FLRA 134 (1982). Thus, based upon the
Regional Director's determination of no obligation on the part of the
Agency to bargain, which was not appealed by the Union, it is concluded
that any negotiability issue which might have been raised in the instant
appeal is now moot.
Accordingly, 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., July 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ It is noted that the Union submitted a second proposal which is
the subject of a separate negotiability appeal.
15 FLRA 55; FLRA O-NG-709; July 16, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct
2152.35 Disciplinary Action
2152.40 Assign Work
DIGEST NOTES
A proposal is nonnegotiable that would improperly establish a
condition (providing an employee with formal or on-the-job training)
that the agency must meet before it could exercise its right under Sec.
7106(a)(2) to direct and assign work to employees and to discipline
employees based on substandard performance or nonperformance of their
job duties. The exercise of management's rights to assign training and
to determine the duties and functions which could be subject to
performance appraisals is neither a "procedure" nor an "appropriate
arrangement" under Sec. 7106(b)(2) or (3).
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32
and
OFFICE OF PERSONNEL MANAGEMENT
Case No. O-NG-709
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issue presented
is the negotiability of one Union proposal. Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determination.
Reassignees who are given work for which they have not been
given either formal or on-the-job training will not suffer any
adverse impact or negative or punitive action for their inability
to perform that work. The work will be returned to the supervisor
who will see that the employee receives training before assigning
that work in the future to that employee. This also applies to
documented inconsistent information received on any aspect of the
work. All reassignees will be given adequate reference materials
and forms for processing their work. Management will assure and
make every attempt to provide on-the-job training which includes,
but is not limited to, a detailed explanation of applicable
procedures, legal precedents and governing rules and regulations.
The Authority concludes that the disputed proposal herein would
improperly establish a condition (providing an employee with formal or
on-the-job training) upon the Agency's rights pursuant to section
7106(a)(2) of the Statute to direct and assign work to employees and to
discipline employees based on their substandard performance or
nonperformance of their job duties. In this respect, the proposal in
this case is to the same effect as the disputed proposal in 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 proposal in that case conditioned management's exercise of its
right to determine the duties to be subject to performance appraisals on
the prior exercise of management's right to determine whether employees
were to be assigned formal training. The Authority found that this
proposal directly interfered with the exercise of management's rights
pursuant to section 7106(a) of the Statute. Specifically, the Authority
determined in the cited case that the proposal concerned the substantive
exercise of management's rights to assign training and to determine the
duties and functions which would be subject to performance appraisals
and was neither a "procedure" nor an "appropriate arrangement" which is
negotiable under 7106(b)(2) or (3) of the Statute. Hence, based on Otis
Air Force Base, and the reasons and cases cited therein, the disputed
proposal herein is not within the duty to bargain. /1/
Accordingly, 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., July 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Based upon the Authority's conclusion that the proposal is
outside the duty to bargain under section 7106(a)(2), it is unnecessary
to consider other Agency contentions concerning the negotiability of the
proposal.
15 FLRA 54; FLRA O-NG-996; July 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the duty to bargain. Accordingly, the
Authority dismissed the union's petition for review.
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL 4
and
PORTSMOUTH NAVAL SHIPYARD
Case No. O-NG-996
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record before the Authority in this case indicates that during
the course of negotiations, the Activity declared a Union proposal
concerning the use of annual leave by employees not required for work
during the holiday curtailment period covering November 23, December 24
and December 31, 1984, to be nonnegotiable. The Union filed the instant
petition for review with the Authority, pursuant to section 2424.3 of
the Authority's Rules and Regulations, as to whether the disputed
proposal was within the duty to bargain. Subsequently in a letter to
the Authority dated June 26, 1984, the Department of the Navy (the
Agency) withdrew the Activity's allegation of nonnegotiability.
Since the Agency has withdrawn the 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.
Accordingly, and apart from other considerations, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 53; FLRA O-NG-997; July 13, 1984.
DIGEST HEADINGS
2500. NEGOTIABILITY: PROCEDURE
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the parties' duty to bargain.
Accordingly, the Authority dismissed the petition for review.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2024, AFL-CIO
and
PORTSMOUTH NAVAL SHIPYARD
Case No. O-NG-997
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record before the Authority in this case indicates that during
the course of negotiations, the Activity declared a Union proposal
concerning the use of annual leave by employees not required for work
during the holiday curtailment period covering November 23, December 24
and December 31, 1984, to be nonnegotiable. The Union filed the instant
petition for review with the Authority, pursuant to section 2424.3 of
the Authority's Rules and Regulations, as to whether the disputed
proposal was within the duty to bargain. Subsequently in a letter to
the Authority dated June 26, 1984, the Department of the Navy (the
Agency) withdrew the Activity's allegation of nonnegotiability.
Since the Agency has withdrawn the 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.
Accordingly, and apart from other considerations, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 52; FLRA O-NG-1008; July 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2702. Timeliness
DIGEST NOTES
An agency head's disapproval of provisions in a locally executed
agreement pursuant to a review under Sec. 7114(c) of the Statute is an
allegation of nonnegotiability for purposes of appeal to the Authority.
Consequently, as the union's petition for review was filed more than 15
days after the service of the agency's allegation of nonnegotiability,
the Authority held that the petition was untimely filed under Sec.
2424.3 of its rules and regulations.
NEW YORK STATE NURSES ASSOCIATION
and
UNITED STATES OF AMERICAN VETERANS
ADMINISTRATION (BRONX MEDICAL CENTER)
Case No. O-NG-1008
This matter is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute and section
2424.3 of the Authority's Rules and Regulations, on a petition for
review of negotiability issues filed by the Union. For the reasons
stated below, the Union's petition for review must be dismissed as
untimely filed.
Under 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 that the duty to bargain in good faith does
not extend to the matter proposed to be bargained is served on the
Union. Further, section 2429.22 of the Authority's Regulations provides
for an extra five days to be added to the prescribed period when the
document which triggers the running of such period is served on the
other party by mail.
The record before the Authority in this case indicates that the
parties forwarded a locally executed collective bargaining agreement to
the agency head for review and approval pursuant to section 7114(c) of
the Statute. During such review, the agency head disapproved certain
provisions in the negotiated agreement by letter dated May 9, 1984.
Therefore, under the above-cited provisions, since the Agency's
allegation in this case was apparently served on the Union by mail, the
Union's petition for review was due to be filed with the Authority
before the close of business on May 29, 1984. Since the Union's
petition for review was not filed until June 4, 1984, it is clearly
untimely and must be dismissed on that basis.
Accordingly, the Union's petition for review is hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 51; FLRA O-NG-669; July 13, 1984.
DIGEST HEADINGS
2500. NEGOTIABILITY: PROCEDURE
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
DIGEST NOTES
Where the agency withdrew its allegation of nonnegotiability
concerning the union's proposals, there was no longer an issue as to
whether the proposals are within the parties' duty to bargain.
Accordingly, the Authority dismissed the petition for review.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 153
and
U.S. AIR FORCE,
MACDILL AIR FORCE BASE, FLORIDA
Case No. O-NG-669
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 the negotiability issues filed by the Union.
From the submissions of the parties, the record before the Authority
in this case indicates that during the course of negotiations, the Union
submitted proposals concerning the Agency's proposed Civilian Potential
Appraisal System and a proposal to establish a joint labor-management
committee to review the Agency's implementation of the proposed Civilian
Potential Appraisal System. The Agency alleged the Union's proposals to
be nonnegotiable. The Union then sought the Authority's determination,
pursuant to section 7117(a) of the Statute and section 2424.1 of the
Authority's Rules and Regulations, as to whether the disputed proposals
are within the duty to bargain. Subsequently, in a letter dated May 11,
1984, the Agency withdrew, "without prejudice to future cases," its
allegation of nonnegotiability.
Since the Agency has withdrawn its 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, IT IS HEREBY
ORDERED that the instant petition for review be dismissed.
Issued, Washington, D.C., July 13, 1984
Harold D. Kessler,
Director, Case Management
15 FLRA 50; FLRA O-NG-701; July 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the duty to bargain. Accordingly, the
Authority dismissed the union's petition for review.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1384
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 3245th
AIR BASE GROUP (AFSC),
HANSCOM AIR FORCE BASE,
MASSACHUSETTS
Case No. O-NG-701
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 the negotiability issues filed by the Union.
From the submissions of the parties, the record before the Authority
in this case indicates that during the course of negotiations, the Union
submitted two proposals. One proposal required that the Agency's
proposed Civilian Potential Appraisal System not be implemented. The
second proposal added an element to the Agency's Job Performance
Appraisal System. The Agency alleged the Union's proposals to be
nonnegotiable. The Union then sought the Authority's determination,
pursuant to section 7117(a) of the Statute and section 2424.1 of the
Authority's Rules and Regulations, as to whether the disputed proposals
were within the duty to bargain. Subsequently, in a letter dated May
11, 1984, the Agency withdrew, "without prejudice to future cases," its
allegation of nonnegotiability.
Since the Agency has withdrawn its 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, IT IS HEREBY
ORDERED that the instant petition for review be dismissed.
Issued, Washington, D.C., July 13, 1984
Harold D. Kessler,
Director, Case Management
15 FLRA 49; FLRA O-NG-672; July 10, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.05 Assign Employees
DIGEST NOTES
A proposal is nonnegotiable that would require management to utilize
the procedures of 5 CFR Part 351 (RIF procedures) to accomplish certain
reassignments not involving a RIF. Under the RIF regulations, relative
retention standing of competing employees results from a comparison of
non-job related factors such as the employee's tenure, entitlement to
veterans preference and each employee's seniority. Use of these RIF
procedures for non-RIF reassignments could result in the reassignment of
an employee other than the one identified by management and therefore
prevent the agency from determining which employees to reassign. Thus,
the proposal violates the agency's right under Sec. 7106(a)(2)(A) to
assign employees.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 29
and
DEPARTMENT OF THE ARMY,
KANSAS CITY DISTRICT,
CORPS OF ENGINEERS,
KANSAS CITY, MISSOURI
Case No. O-NG-672
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises a question
concerning the negotiability of the following Union proposals:
Management Initiated/Directed Reassignments
Section 1. Management may initiate or direct a reassignment of
any employee, with the employee's written consent; in the absence
of the employee's written consent, the following procedure shall
be followed:
(a) An employee who management proposes to initiate or direct
to be reassigned is entitled to -
(1) At least 30 days advance written notice, stating in detail
the specific reasons of the imposing action (sic).
(2) A reasonable time, but not less than 7 working days, to
answer orally and in writing and to furnish affidavits and other
documents to support his/her response.
(3) Be represented by a representative.
(4) A written decision and the specific detailed reasons
therefor, at the earliest practicable date.
(5) Copies of all material used to support the proposal and
decision.
(b) Management must utilize the procedures of 5 Cfr part 351,
if the reassignment would require releasing or changing the
employee's competitive level or if the reassignment would be
outside the employee's local commuting area.
(The underscored portion of the proposal is in dispute.)
Upon careful consideration of the entire record, including the
parties' contentions, /1/ the Authority makes the following
determinations. The Union's proposal would require management to apply
the reduction-in-force (RIF) procedures prescribed by part 351 of title
5, Code of Federal Regulations to accomplish certain reassignments not
involving a RIF.
In agreement with the Agency, the Authority concludes that this
proposal violates the Agency's right, pursuant to section 7106(a)(2)(A)
of the Statute, to assign employees. In this regard, it is well settled
that this right includes the discretion to determine which employee will
be assigned. American Federation of Government Employees, AFL-CIO and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 604, 613 (1980), enforced sub nom. Department of Defense v. Federal
Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The disputed proposal
herein, however, effectively divests the Agency of such discretion.
Specifically, application of the cited RIF regulations as proposed
would determine which employees are to be reassigned based on which ones
have the lowest "retention standing." Under the RIF regulations the
relative retention standing of competing employees results from a
comparison of such non-job related factors as each employee's tenure,
i.e., whether an employee is in a probationary or permanent status, each
employee's entitlement to veterans preference, and each employee's
seniority. /2/
Thus, the use of the procedures set forth in the RIF regulations as
required by the proposal could result in the reassignment of an employee
other than the one identified by management if the latter employee had a
higher retention standing than others in the same competitive level.
Therefore, because the proposal would, in certain circumstances, prevent
the Agency from determining which employees to reassign and, indeed,
would dictate employee selection based on criteria not wholly related to
the job to be filled, it is inconsistent with the right, pursuant to
section 7106(a)(2)(A) of the Statute, to assign employees and is not
within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union's motion that the Agency's Statement of Position be
dismissed as being untimely filed cannot be sustained. The record in
this case indicates that the Agency filed its statement with the
Authority within the time limits prescribed by section 2424.6 and
2429.21 of the Authority's Rules and Regulations.
/2/ See 5 CFR 351.401 (1984)
15 FLRA 48; FLRA 6-CU-3005; July 10, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3051. Types of Petitions
3051.15 Clarification of Unit
3200. Employee Categories and Classifications
3201. Confidential Employee
3203. Management Official
3204. Personnel Work In Other Than A Purely Clerical Capacity
DIGEST NOTES
An Animal Health Technician (Instructor), a highly trained individual
whose actions assist in implementing, as opposed to shaping, the
agency's policies, is not a management official within the meaning of
Sec. 7103(a)(11) of the Statute as he currently does not exercise duties
or responsibilities which require or authorize him to formulate,
determine, or influence the policies of the agency.
Although his supervisor, the Director of the Tick Eradication
Program, is engaged in labor management relations, an Animal Health
Technician (Instructor) is not a confidential employee within the
meaning of Sec. 7103(a)(13) of the Statute as there is no evidence to
indicate that he serves in a confidential capacity to his supervisor.
An Animal Health Technician (Instructor) is not engaged in personnel
work in other than a purely clerical capacity within the meaning of Sec.
7112(b)(3) of the Statute where the record indicates that the
individual: (1) is classified as the agency's Training Officer, but
actually functions as a training instructor with only superficial
involvement in course development and no authority to perform formal
employee evaluations; and (2) is not involved in any other manner with
personnel work.
The Authority clarified a unit of all nonsupervisory Animal Health
Technicians and Clerical Employees of the U.S. Department of
Agriculture, Veterinary Services, Tick Eradication Program, Laredo by
including in that unit an Animal Health Technician (Instructor) who,
with minor exceptions, shares the same working conditions and is
governed by the same personnel policies as other unit employees.
Additionally, the Authority found that such inclusion would not create a
conflict of interest with the employee's official duties.
TICK ERADICATION PROGRAM, VETERINARY SERVICES
ANIMAL AND PLANT HEALTH INSPECTION SERVICE
UNITED STATES DEPARTMENT OF AGRICULTURE /1/
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL UNION 3106, AFL-CIO
Case No. 6-CU-30005
Upon a petition duly filed with the Authority under section
7111(b)(2) of the Federal Service Labor-Management Relations Statute
(the Statute), a hearing was held before a hearing officer of the
Authority. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority finds: The American Federation of
Government Employees, Local Union 3106, AFL-CIO (AFGE) was certified as
the exclusive bargaining representative for a unit of all nonsupervisory
Animal Health Technicians and Clerical Employees of the U.S. Department
of Agriculture, Veterinary Services, Tick Eradication Program, Laredo,
Texas. Essentially, the petition seeks to clarify the bargaining unit
status of Tom Deats, Animal Health Technician (Instruction), GS-704-09
who the Petitioner contends should be excluded from the unit based on
the fact that he is either a management official, confidential employee,
or an employee engaged in Federal personnel work in other than a purely
clerical capacity. Thus, the Petitioner concluded that Deats does not
have a clear and identifiable community of interest with the other
bargaining unit employees and that his duties would result in a conflict
of interest.
Deats as the Activity's Safety and Training Officer reports directly
to the Director of the Tick Eradication Program. He is responsible for
conducting various training courses such as Tick Identification,
Defensive Driving, First Aid, Pesticides and Equipment, and Dipping Tank
Maintenance for GS-07 Tick Inspectors. In determining which courses to
teach, Deats is advised by the Director of the Tick Eradication Program,
the Director of Field Operations, and the Tick Inspectors' Supervisors
as to the particular educational needs of the employees. While he does
have some leeway in developing the courses to be taught, the subject
matter of the courses is normally determined by his superiors or comes
from established overseeing the Occupational Health and Safety of the
Activity's employees. In this regard, he follows the procedures
outlined in the Animal and Plant Health Inspection Safety Manual in
investigating problem areas and submits his reports to the Director with
recommendations of what might be done to alleviate the problems. These
recommendations are reviewed by the Director and others and may or may
not be followed. He also is a member of several safety committees and
councils which deal with safety matters on a state-wide level.
The Authority finds that Deats is not a management official within
the meaning of section 7103(a)(11) of the Statute. /2/ In the lead case
of Department of the Navy, Automatic Data Processing Selection Office, 7
FLRA 172 (1981), the Authority interpreted the statutory definition of
"management official" to include those individuals who: (1) create,
establish or prescribe general principles, plans, or courses of action
for an agency; (2) decide upon or settle upon general principles, plans
or courses of action for an agency; or (3) bring about or obtain a
result as to the adoption of general principles, plans or courses of
action for an agency. Applying these criteria to the instant case, the
Authority finds that Deats is a highly trained individual whose actions
assist in implementing, as opposed to shaping, the Activity's policies.
Thus, while the incumbent as the Activity's Training Officer does have
some leeway in developing the courses to be taught, the courses and
subject matter are determined by his superiors. Further, as the
Activity's Safety Officer, while he is responsible for investigating
safety problem areas, he does so within established procedures and his
recommendations must be reviewed and approved by several levels of
authority. It follows that Deats currently does not exercise duties or
responsibilities which require or authorize him to formulate, determine,
or influence the policies of the Activity within the meaning of section
7103(a)(11) of the Statute as interpreted by the Authority.
Accordingly, the Authority finds that Deats is not a management
official.
Nor does the Authority find that Deats is either a confidential
employee within the meaning of section 7103(a)(13) of the Statute, /3/
or an employee engaged in personnel work in other than a purely clerical
capacity within the meaning of section 7112(b)(3) of the Statute. In
this regard, while the record establishes that Deats' supervisor, the
Director of the Tick Eradication Program is engaged in Labor-Management
Relations, there is no evidence to indicate that Deats serves in a
confidential capacity to him. /4/ Further, the record indicates that
although Deats is classified as the Activity's Training Officer, he
actually functions as a training instructor with only superficial
involvement in course development and no authority to perform formal
employee evaluations. The record also indicates that Deats is not
involved in any other manner with personnel work. Accordingly, the
Authority finds that Deats is neither a confidential employee nor an
employee engaged in personnel work in other than a purely clerical
capacity. Based on the above, the Authority finds that as Deats is
neither a management official, confidential employee nor an employee
engaged in personnel work in other than a purely clerical capacity, his
inclusion in the unit would not create a conflict of interest with his
official duties. Further, relying on record evidence the Authority
finds that Deats, with minor exceptions shares the same working
conditions and is governed by the same personnel policies as other unit
employees. Consequently, the Authority shall order that Deats be
included in the certified bargaining unit.
IT IS ORDERED that the unit sought to be clarified be, and it hereby
is, clarified by including in said unit Tom Deats, Animal Health
Technician (Instruction), GS-704-09.
Issued, Washington, D.C., July 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The name of the Petitioner appears as amended at the hearing.
/2/ Section 7103(a)(11) of the Statute defines a "management
official" as:
. . . an individual employed by an agency in a position the
duties and responsibilities of which require or authorize the
individual to formulate, determine, or influence the policies of
the agency(.)
/3/ Section 7103(a)(13) of the Statute defines a "confidential
employee" as:
. . . an employee who acts in a confidential capacity with
respect to an individual who formulates or effectuates management
policies in the field of labor-management relations(.)
/4/ Headquarters, 1947th Administrative Support Group, U.S. Air Force
Washington, D.C., 14 FLRA No. 43, at p. 6 (1984) and Pennsylvania Army
National Guard, 8 FLRA 691 (1982).
15 FLRA 47; FLRA 3-CU-99; July 10, 1984.
DIGEST HEADINGS
100. GENERAL PROVISIONS
250. Jurisdictional Matters
3000. REPRESENTATION
3020. Appeals to the Authority
3300. Post Election Matters
3310. Certification
DIGEST NOTES
A CU petition filed after completion of the certification process
will not ordinarily be permitted to overturn the results of voluntary
pre-election agreements entered into by the parties with the approval of
an FLRA Regional Director, absent at the very least, a showing that the
duties or functions of established positions or job classifications
covered in such agreements have undergone meaningful change after the
unit was certified. Accordingly, the Authority dismissed a CU petition
seeking to clarify the established unit by adding the incumbents of
approximately 123 positions. Prior to the election, and after lengthy
and careful deliberations involving the assistance and approval of an
FLRA Regional Director, the parties had agreed that the particular
duties and functions of the positions were either confidential or
supervisory/managerial in nature and therefore excluded from the unit.
Since there had been no showing that the duties and functions of the
positions at issue changed in the time between the union's certification
as exclusive representative and its filing of the CU petition, the
Authority dismissed the petition.
The Authority rejected an agency's request that the exclusive
representative's certification be revoked as such action would be
inappropriate. However, the Authority did not decide whether or not it
has the discretion to revoke a labor organization's certification for
reasons other than those specified in Sec. 7120. (footnote 5)
FEDERAL TRADE COMMISSION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2211, AFL-CIO
Case No. 3-CU-99
Upon a petition duly filed with the Authority under section
7111(b)(2) of the Federal Service Labor-Management Relations Statute
(the Statute), a hearing was held before a hearing officer of the
Authority. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon careful consideration of the entire record, including the
parties' contentions, an amicus curiae brief submitted by the Office of
Personnel Management (OPM) /1/ and a reply thereto by the Petitioner
(AFGE), /2/ the Authority finds:
On December 17, 1980, AFGE filed a petition in Federal Trade
Commission, Case No. 3-RO-91, /3/ seeking an election among the
Activity's nonprofessional and technical employees. The parties were in
dispute as to the voting eligibility of approximately 143 incumbents of
positions that the Activity argued should be excluded from the unit
sought. During the ensuing four months, with the close guidance of the
Authority's Regional Office, the parties met on several occasions. The
list of positions in dispute was gradually narrowed down, and eventually
the parties, with the approval of the Regional Director, agreed as to
the inclusion or exclusion of all positions at issue, based upon
criteria of the Statute. At the election, the ballots of 21 employees
were challenged, some of whom occupied positions that had originally
been in dispute. All the challenges were resolved to the satisfaction
of the Regional Director, and AFGE was certified on June 17, 1981, as
the exclusive bargaining representative for a unit of "all
nonprofessional and technical full and part-time employees of the
Federal Trade Commission located in the Washington, D.C. area."
Thereafter, on July 1, 1981, AFGE filed the instant petition, seeking
to clarify its established unit by adding the incumbents of
approximately 123 positions. /4/ A hearing on the matter was held, and
the case was transferred to the Authority for decision. Of the 123
positions now sought to be added by AFGE, AFGE had agreed prior to the
election that all were to be excluded from the unit, approximately 44 as
being supervisory and/or managerial, and the remainder as being
confidential, and had similarly agreed upon the resolution of all
challenged ballots. AFGE contends that, while the Activity takes the
position that the parties had agreed to "permanently exclude" the
positions here in question, this was not the Union's intent. The
Activity contends, however, that the parties, with the assistance and
approval of the Regional Director, had agreed on an eligibility list
based on a factual analysis of the duties performed by the incumbent of
each disputed position, and argues that AFGE should therefore be
precluded from filing a petition seeking to add such incumbents to the
certified bargaining unit. OPM, in its amicus curiae brief, urges that
AFGE's conduct is so reprehensible that the Authority should not only
dismiss the petition, but should also revoke AFGE's certification.
The Authority finds that the petition should be dismissed. In our
view, a Clarification of Unit (CU) petition is not an appropriate
vehicle for in effect overturning a pre-election agreement of the nature
involved herein. That is, a CU petition filed after completion of the
certification process will not ordinarily be permitted to overturn the
results of voluntary pre-election agreements entered into by the parties
with the approval of the Regional Director, absent at the very least, a
showing that the duties or functions of established positions or job
classifications covered in such agreements have undergone meaningful
change after the unit was certified. On the contrary, the parties here
agreed, after lengthy and careful deliberations, and with the assistance
and approval of the Regional Director, that the particular duties and
functions of the existing positions at issue were either confidential or
supervisory/managerial in nature, based upon criteria of the Statute,
and therefore should be excluded. Moreover, all challenged ballots were
voluntarily resolved before AFGE was certified. There has been no
showing that the duties and functions of the positions at issue have
changed in the time between AFGE's certification as exclusive
representative and its filing of the CU petition.
Accordingly, in the circumstances set forth above, the Authority
finds that it would not effectuate the purposes and policies of the
Statute to review the status of the positions in question, and therefore
shall dismiss the instant petition. /5/ See e.g., National Guard
Bureau, Massachusetts Air National Guard, Barnes Municipal Airport, 4
FLRA 83 (1980).
IT IS ORDERED that the petition in Case No. 3-CU-99 be, and it hereby
is, dismissed.
Issued, Washington, D.C., July 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ OPM was permitted to participate as an amicus curiae by the
Authority pursuant to section 2429.9 of the Authority's Rules and
Regulations.
/2/ The Activity's motion to strike AFGE's reply is denied, as the
reply was filed with the specific permission of the Authority by letter
dated July 27, 1982.
/3/ The Authority takes official notice of the facts developed in
Case No. 3-RO-91, pursuant to section 2429.5 of the Authority's Rules
and Regulations.
/4/ While the parties refer to the number as 127, the actual lists
submitted to the hearing officer show 123 positions in dispute.
/5/ Assuming without deciding that the Authority has discretion to
revoke a labor organization's certification for reasons other than those
specified in section 7120 of the Statute, the Authority concludes that
such action would be inappropriate in the circumstances of this case and
therefore denies OPM's request that AFGE's certification be revoked
herein.
15 FLRA 46; FLRA O-AR-766; July 5, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusions
1651.05 Suspension for More than 14 Days
DIGEST NOTES
The dispute in this matter concerned the suspension of the grievant
for 30 days and the award, by the arbitrator of attorney fees. The
agency filed exceptions to the award of attorney fees. As the Authority
is without jurisdiction to review exceptions where the arbitrator's
award relates to the suspension of a grievant for more than 14 days, a
matter covered by 5 U.S.C. 7512, and as review of an arbitration award
relating to such matters must be obtained pursuant to 5 U.S.C. 7703, the
Authority dismissed the exceptions.
INTERNAL REVENUE SERVICE,
NEWARK DISTRICT OFFICE
and
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 60
Case No. O-AR-766
This matter is before the Authority on exceptions to the award of
Arbitrator William J. Fallon filed by the Activity under section 7122(a)
of the Federal Service Labor-Management Relations Statute and section
2425.1 of the Authority's Rules and Regulations. For the reasons set
forth below, the Authority is without jurisdiction to review the
Activity's exceptions and they must be dismissed on that basis.
In this case, the Arbitrator found that the Activity's removal of the
grievant was not for such cause as would promote the efficiency of the
service and reduced the penalty to a 30-day suspension. The Arbitrator
subsequently granted the Union's application for attorney fees. The
Activity then filed the instant exceptions to the award of attorney's
fees.
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).
The matters described in section 7121(f) of the Statute include those
covered under 5 U.S.C. 7512 which applies to specified adverse actions,
including removals and suspensions for more than 14 days. Pursuant to
section 7121(f), review of an arbitration award relating to such matters
must be obtained in accordance with 5 U.S.C. 7703, i.e., in the same
manner and under the same conditions as judicial review of a final
decision of the Merit Systems Protection Board.
Since the Arbitrator's award relates to a matter covered by 5 U.S.C.
7512, the removal of the grievant, under section 7122(a) of the Statute
the Authority is without jurisdiction to review the Activity's
exceptions. Rather, judicial review of the Arbitrator's award may be
sought pursuant to 5 U.S.C. 7703.
Accordingly, and apart from other considerations, the Activity's
exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 5, 1984
Harold D. Kessler, Director, Case
Management
(ORDER DENYING MOTION FOR
RECONSIDERATION OF CASE
No. O-AR-548)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3234
and
SOCIAL SECURITY ADMINISTRATION,
SIOUX CITY, IOWA
Case No. O-AR-548
This case is before the Authority on a motion for reconsideration
filed by the Union on February 27, 1984, seeking reconsideration of the
Authority's Decision and Order of February 7, 1984. For the reason set
forth below, the motion must be denied.
Section 2429.17 of the Authority's Rules and Regulatio4s, effective
September 10, 1981, 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 . . . .
The Authority's Decision and Order was dated and served on the union
by mail on February 7, 1984. Therefore, under section 2429.17 of the
Authority's Rules and Regulations, and sections 2429.21 and 2429.22,
which are also applicable to the computation of the time limit here
involved, the Union's motion for reconsideration was due in the national
office of the Authority before the close of business on February 22,
1984. Since, as indicated above, the Union's motion was not filed until
February 27, 1984, it is clearly untimely and must be denied.
Accordingly, for the reason set forth above,
IT IS ORDERED that the Union's motion for reconsideration in this
case be, and it hereby is, denied.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 45; FLRA O-AR-780; July 5, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651.01 Action Based on Unacceptable Performance
DIGEST NOTES
Where the arbitrator's award relates to a matter covered by Sec.
7121(f) of the Statute including those covered under 5 U.S.C. 4303 which
applies to adverse actions based on unacceptable performance, the
Authority is without jurisdiction to review the grievant's exceptions.
Rather, pursuant to Sec. 7121(f) of the Statute, review of an
arbitration award relating to such matters must be obtained in
accordance with 5 U.S.C. 7703, i.e., in the same manner and under the
same conditions as judicial review of a final decision of the Merit
Systems Protection Board.
U.S. PATENT AND TRADEMARK OFFICE
and
PATENT OFFICE PROFESSIONAL ASSOCIATION
Case No. O-AR-780
This matter is before the Authority on exceptions to the award of
Arbitrator Joseph A. Sickles filed by the Activity under section 7122(a)
of the Federal Service Labor-Management Relations Statute and section
2425.1 of the Authority's Rules and Regulations. For the reasons set
forth below, the Authority is without jurisdiction to review the
Activity's exceptions and they must be dismissed on that basis.
The dispute in this matter arose when the grievant received a notice
of proposed removal for unsatisfactory performance pursuant to 5 U.S.C.
4303. The Arbitrator found that the proposed removal was not a final
agency action and therefore not properly grievable; moreover, based on
the Activity's subsequent actions, that the grievance was moot. The
Activity then filed the instant exceptions with the Authority.
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).
The matters described in section 7121(f) of the Statute include those
covered under 5 U.S.C. 4303 which applies to adverse actions based on
unacceptable performance. Pursuant to section 7121(f), review of an
arbitration award relating to such matters must be obtained in
accordance with 5 U.S.C. 7703, i.e., in the same manner and under the
same conditions as judicial review of a final decision of the Merit
Systems Protection Board.
Since the Arbitrator's award in this case involves a matter directly
related to a matter covered by 5 U.S.C. 4303, under section 7122(a) of
the Statute the Authority is without jurisdiction to review the
Activity's exceptions. Rather, judicial review of the Arbitrator's
award may be sought pursuant to 5 U.S.C. 7703.
Accordingly, and apart from other considerations, the Activity's
exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., July 5, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 44; FLRA 9-DR-40001; July 2, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3058. Request for Review
DIGEST NOTES
Where the union's application for review of the Regional Director's
decision expressed mere disagreement with the Regional Director's
findings and where those findings were not shown to be clearly
erroneous, the Authority found that no compelling reasons existed for
granting the union's application. Consequently, the Authority denied
the union's application for review of the Regional Director's decision.
DEPARTMENT OF THE ARMY
LETTERMAN ARMY MEDICAL CENTER
NUTRITION CARE DIVISION
PRESIDIO OF SAN FRANCISCO, CALIFORNIA
and
WILLIE D. HARRIS
and
NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO
Case No. 9-DR-40001
On May 8, 1984, the National Maritime Union of America, AFL-CIO
(Intervenor), 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 in the above-named
case. In support thereof, the Intervenor contends that compelling
reasons within the meaning of section 2422.17(c) of the Authority's
Rules and Regulations exist for granting its application. /1/
Upon consideration of the Intervenor's application for review,
including all arguments in support thereof, the Authority concludes that
no compelling reasons exist for granting the application. Rather, the
application expresses mere disagreement with the Regional Director's
findings which have not been shown to be clearly erroneous.
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 be, and it hereby is, denied.
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 2422.17(c) provides:
(c) The Authority may grant an application for review only where it
appears that compelling reasons exist therefor. Accordingly, an
application for review may be granted only one or more of the following
grounds:
(1) That a substantial question of law or policy is raised because of
(i) the absence of, or (ii) a departure from, Authority precedent;
(2) That there are extraordinary circumstances warranting
reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error; or
(4) That the Regional Director's decision on a substantial factual
issue is clearly erroneous and such error prejudicially affects the
rights of a party.
15 FLRA 43; FLRA 3-CA-719, 3-CA-889, 3-CA-970; July 2, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
6500. UNFAIR LABOR PRACTICE: PROCEDURE
6800. Remedies
6810. For Agency Violations
DIGEST NOTES
An agency had no duty to bargain with the union before issuing
internal directives to subordinate elements concerning its paid parking
program where the level of exclusive representation was not at the
agency level, the Authority held in adopting the ALJ's decision. Absent
any showing that the agency prevented its subordinate element from
fulfilling its duty to bargain with the union at the level of exclusive
recognition, the Authority found that the agency did not violate
7116(a)(1) and (5) by issuing directives concerning implementation of
the paid parking program.
Questions concerning the existence of a compelling need for
regulations issued at the agency or primary national subdivision level
so as to bar negotiations on inconsistent proposals and the level of
exclusive recognition may appropriately be decided in an unfair labor
practice proceeding. Where compelling need is raised as an affirmative
defense in an unfair labor practice proceeding, management is required,
as it would be in a negotiability proceeding, to come forward with
affirmative support for that assertion. A subordinate element within
the agency refused to bargain concerning two union proposals solely on
the basis that they were nonnegotiable under agency wide directives.
But the subordinate element neither asserted nor established the
existence of a compelling need for such agency regulation. Therefore,
the Authority concluded that the subordinate element failed to meet its
duty to bargain with the union to the extent of its discretion in
implementing the Government-wide paid parking program and therefore
violated 7116(a)(1) and (5).
Where an activity violated the Statute by failing to negotiate
concerning the implementation of a Government-wide paid parking program,
but subsequently the Government-wide program was suspended, the
Authority found it unnecessary to order the activity to negotiate
regarding the matter.
HARRY DIAMOND LABORATORIES
and
DEPARTMENT OF THE ARMY
and
DEPARTMENT OF DEFENSE
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO
and
OFFICE OF PERSONNEL MANAGEMENT
Case Nos. 3-CA-719, 3-CA-889,
3-CA-970
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had not engaged
in the unfair labor practices alleged in the consolidated complaint and
recommending that the consolidated complaint be dismissed in its
entirety. The General Counsel and the Charging Party 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 hereby adopts the
Judge's findings, conclusions and recommendations, as modified herein.
The consolidated complaint alleged in part that the Respondents
Department of Defense (DOD) and Department of the Army (DOA) violated
section 7116(a)(1) and (5) of the Statute /1/ by issuing directives
concerning implementation of the paid parking program, thereby
interfering with the collective bargaining relationship between Harry
Diamond Laboratories (HDL) and the Charging Party, American Federation
of Government Employees, AFL-CIO, Local 2 (the Union). It further
alleged that HDL also violated section 7116(a)(1) and (5) of the Statute
by implementing the paid parking program at that facility without
bargaining with the Union concerning its implementation and impact on
bargaining unit employees.
The Judge concluded that DOD and DOA did not violate section
7116(a)(1) and (5) of the Statute as alleged. The Authority agrees.
Thus, the Union is not the exclusive representative of a unit of
employees at the DOD or DOA level, but exclusively represents an
appropriate unit of employees at HDL, a subordinate level within the
agency. Inasmuch as the duty of an agency under the Statute is to
negotiate with an exclusive representative of an appropriate unit of its
employees concerning conditions of employment affecting them, except as
provided otherwise by Federal law and regulation, including
Government-wide regulation, and therefore DOD and DOA would have been
required to bargain to the extent of their discretion in implementing
the Government-wide paid parking program if exclusive recognition had
existed at those levels, /2/ the Authority concludes that they had no
duty to bargain with the Union before issuing internal directives to
subordinate elements concerning the paid parking program. /3/ Moreover,
in the absence of any showing that DOD or DOA prevented their
subordinate element, HDL, from fulfilling its duty to bargain with the
Union at the level of exclusive recognition, /4/ the Authority finds
that the consolidated complaint must be dismissed to the extent it
alleges that DOD and DOA violated section 7116(a)(1) and (5) of the
Statute. /5/
The Judge further found that HDL had provided the Union with adequate
notice that the paid parking program would be instituted as required by
Government-wide regulations, and had bargained in good faith with the
Union concerning those aspects of the paid parking program that were
within HDL's discretion. The Authority adopts the Judge's findings and
conclusions in this regard, except as indicated below.
The Authority cannot agree with the Judge's conclusion that HDL
properly refused to bargain concerning certain Union proposals (e.g.,
the appropriate monthly parking rate for HDL employees and the exemption
of certain employees from coverage) on the basis that those matters were
controlled by DOD and DOA regulations. In this regard, the Judge found
that HDL's duty to bargain did not extend to matters subject to DOD's
agency-wide regulation unless the Authority determined that no
compelling need existed for the DOD regulation, a determination which
the Judge concluded could not be made in an unfair labor practice
proceeding. However, after the Judge issued his Decision herein, the
Authority concluded that questions concerning the existence of a
compelling need for regulations issued at the agency or primary national
subdivision level so as to bar negotiations on inconsistent proposals at
the level of exclusive recognition may appropriately be decided in an
unfair labor practice proceeding, and that where compelling need is
raised as an affirmative defense in an unfair labor practice proceeding,
management is required, as it would be in a negotiability proceeding, to
come forward with affirmative support for that assertion. See Defense
Logistics Agency (Cameron Station, Virginia), supra n.3. See also U.S.
Army Engineer Center and Fort Belvoir, 13 FLRA No. 116 (1984). Since
HDL refused to bargain concerning two Union proposals solely on the
basis that they were nonnegotiable under DOD directives, but neither
asserted nor established the existence of a compelling need for such
agency regulation, the Authority concludes that HDL thereby failed to
meet its duty to bargain with the Union to the extent of its discretion
in implementing the Government-wide paid parking program and therefore
violated section 7116(a)(1) and (5) of the Statute. Department of
Housing and Urban Development, 9 FLRA 136 (1982); Veterans
Administration Central Office, Veterans Administration Medical Center,
Long Beach, 9 FLRA 325 (1982).
With regard to an appropriate order to remedy such unfair labor
practice, however, the Authority concludes that, inasmuch as there is no
regulation in effect at this time requiring the collection of parking
fees, /6/ it is unnecessary to order that the Respondent negotiate
regarding this matter.
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 Harry Diamond Laboratories shall:
1. Cease and desist from:
(a) Failing or refusing to bargain with the American Federation of
Government Employees, Local 2, AFL-CIO, the exclusive representative of
its employees, before implementation of any paid parking program which
may be established by Government-wide rule or regulation.
(b) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receiving
such forms, they shall be signed by an appropriate official of the
Respondent and shall be posted and maintained by such official for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and all 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 other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Acting Regional Director, Region III, in
writing, within 30 days from the date of this Order, as to what steps
are being taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the consolidated
complaint alleging violations of the Statute by the other named
Respondents be, and they hereby are, dismissed.
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to bargain with the American Federation of
Government Employees, Local 2, AFL-CIO, the exclusive representative of
our employees, before implementation of any paid parking program which
may be established by Government-wide rule or regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Statute.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 Acting
Regional Director, Region III, Federal Labor Relations Authority, whose
address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8452.
Doris O. Hildreth
On brief: John W. Mulholland
For the Charging Party
Joseph M. Davis, Esquire
For Harry Diamond Laboratories
Samuel S. Horn, Esquire
For the Department of the Army and
For the Department of Defense
Stuart M. Foss, Esquire
For the Intervenor
Erick J. Genser, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
This proceeding, under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. /7/ and the Final Rules and Regulations
issued thereunder, Federal Register, Vol. 45, No. 12, January 29, 1980,
5 C.F.R. 2415.1 et seq., is a further chapter in the continuing saga of
President Carter's paid parking program for government employees. I am
fully aware that: a) On February 5, 1981, the Authority, without
passing on the merits of the dispute, dismissed the negotiability appeal
in Case No. O-NG-229 which directly involved the paid parking
implemented at Harry Diamond Laboratories. American Federation of
Government Employees, AFL-CIO, Local 2 and Department of the Army, Harry
Diamond Laboratories, Adelphi, Maryland, 5 FLRA No. 13 (1981). However,
the Authority stated, in part, that,
"Furthermore, issues as to whether, in the circumstances of
this case, the Agency would have an obligation to bargain on
matters concerning the general subject of paid parking, apart from
the particular paid parking program which is the subject of the
proposals disputed in the instant appeal, may properly be raised
in the unfair labor practice procedures under section 7118 of the
Statute. Cf. American Federation of Government Employees,
AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 4 FLRA No. 93 (1980)."
b) On March 3, 1981, the United States District Court for the
District of Columbia (per Judge Harold H. Greene) granted a permanent
injunction enjoining the government from continuing the parking fee
program, holding that the program had been illegally instituted by
former President Carter without approval of Congress as required by the
Energy Policy and Conservation Act of 1975. American Federation of
Government Employees v. Freeman, C.A. No. 79-2955 (U.S. DC DC, March 3,
1981).
In addition, most of the legal contentions involved in this
consolidated case were decided by Judge Arrigo in three decisions issued
on December 22, 1980, which are more particularly described hereinafter.
I have given careful consideration to Judge Arrigo's decisions, agree
therewith, and, fully to the extent that he has decided issues also
raised in this case, I intend to follow and to apply his decisions. The
decisions are as follows: Defense Contract Administration Services
Region, Boston, Massachusetts; Commander, Fort Devens, Fort Devens,
Massachusetts; Defense Logistics Agency, Washington, D.C.; Department
of Defense, Washington, D.C. and National Association of Government
Employees, Local R1-210, Case Nos. 1-CA-212, 1-CA-298, 1-CA-299 and
1-CA-300 (December 22, 1980) (hereinafter, also, referred to as
"DCASR"); Boston District Recruiting Command, Boston, Massachusetts;
96th U.S. Army Reserve Command, Hanscom Air Force Base, Massachusetts;
Department of the Army, Washington, D.C.; Department of Defense,
Washington, D.C. and American Federation of Government Employees,
AFL-CIO, Local 1900, Case Nos. 1-CA-206, 1-CA-207, 1-CA-208, 1-CA-209,
1-CA-303, 1-CA-304 (December 22, 1980) (hereinafter, also, referred to
as "Boston District"); and Department of the Army and American
Federation of Government Employees, AFL-CIO, Case No. 3-CA-766 (December
22, 1981) (hereinafter, also, "Department of the Army").
The charge in Case No. 3-CA-719 was filed on December 5, 1979 (G.C.
Exh. 1(a)) alleging violations of Secs. 16(a)(1), (5) and (8) of the
Statute by Harry Diamond Laboratories (hereinafter, also, "HDL"); the
charge in Case No. 3-CA-889 was filed on February 21, 1980 (G.C. Exh.
1(c)) alleging a violation of Sec. 16(a)(1) of the Statute by Department
of the Army (hereinafter, also, "DA") and a First Amended Charge was
filed on April 7, 1980 (G.C. Exh. 1(e)) which alleged, in addition to
Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; the charge
in Case No. 3-CA-970 was filed on March 14, 1980 (G.C. Exh. 1(g))
alleging a violation of Sec. 16(a)(1) of the Statute by the Department
of Defense (hereinafter, also, "DOL") and a First Amended Charge was
filed on April 7, 1980 (G.C. Exh. 1(i)) which alleged, in addition to
Sec. 16(a)(1), a violation of Sec. 16(a)(5) of the Statute; and an
Order Consolidating Cases, Complaint and Notice of Hearing issued on
April 30, 1980, alleging violations of Secs. 16(a)(1) and (5) of the
Statute and set the hearing for July 30, 1980. (G.C. Exh. 1(k)). On
May 20, 1980, an order issued rescheduling the hearing for July 23,
1980, pursuant to which a hearing was duly held on July 23, 1980, before
the undersigned, in Washington, D.C.
At the commencement of the hearing the Motion of the Office of
Personnel Management to Intervene was granted.
All parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein; and the parties were afforded
full opportunity to present oral argument at the conclusion of the
testimony, which right was waived by each party. At the close of the
hearing, August 25, 1980, was fixed as the date for mailing post-hearing
briefs, which time was subsequently extended, by motion and for good
cause shown, to September 12, 1980. Each party, i.e. the Charging
Party, Counsel for the General Counsel, Harry Diamond Laboratories,
Department of Defense and Department of the Army, and Office of
Personnel Management, timely filed an excellent brief, received on or
before September 16, 1980, which have been carefully considered. Upon
the basis of the entire record, /8/ including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
1. DOD is an agency within the meaning of Sec. 3(a)(3) of the
Statute; DA is a primary subdivision of DOD within the meaning of Sec.
2421.5 of the Rules and Regulations; HDL is a subordinate activity of
DA within the meaning of Sec. 2421.4 of the Rules and Regulations;
American Federation of Government Employees, AFL-CIO, Local 2
(hereinafter, also, referred to as "Union") is a labor organization
within the meaning of Sec. 3(a)(4) of the Statute; and the Union is,
and has been since the early 1960's, the certified exclusive
representative of HDL's guard force and janitorial employees in separate
bargaining units; however, at no time material was there any collective
bargaining agreement between the Union and HDL, although HDL and the
Union were, at such time, engaged in negotiations looking toward a
comprehensive bargaining contract for employees in the affected units.
2. On October 16, 1979, HDL was advised by DA that it was to be
included in the paid parking program (G.C. Exh. 5). DA directed HDL
that, beginning November 1, 1979, it must begin charging a monthly fee
for parking private vehicles on the installation. The fee for HDL,
"based on appraisals made by the Office, Chief of Engineers and . . .
approved by GSA . . . " (G.C. Exh. 5) was fixed as $10.00 per month.
3. Prior to receipt of DA's notification of October 16, HDL had been
led to believe it would be exempt from the paid parking program. Thus,
in May, 1979, after announcement of the paid parking program at Federal
installations, a program was initiated at HDL to determine what, if any,
effect this program would have on it. HDL's review of Office of
Management and Budget (OMB) Circular A-118 (G.C. Exh. 2) showed that the
program specifically applied to those installations "in densely
populated urban locations where commercial practice is to charge for the
use of parking spaces." (G.C. Exh. 2). HDL is located in the Hillandale
residential area of Montgomery and Prince Georges Counties, a low
density, suburban, and primarily residential area. In addition, the
nearest commercial parking facility is located more than 5 miles from
the HDL site in downtown Silver Spring. Moreover, in August, 1979, HDL
received a message that most Army installations would be exempted from
the paid parking program (Tr. 79).
4. On October 17, Mr. Joseph M. Davis, of the HDL legal office,
personally told Mr. Douglas H. Kershaw, National Representative of the
American Federation of Government Employees, that HDL was to be included
in the paid parking program (Tr. 67).
5. On October 19, Mr. Kershaw was provided a copy of the DOD
Memorandum (Directive), dated October 11, 1979, Subject: Implementation
of Personnel Parking Facilities Program (G.C. Exh. 17) which, inter
alia, on an attachment entitled "Monthly Parking Charges", dated October
4, 1979, showed the monthly charge for HDL as $10.00 per month
representing "one half appraised monthly rate or $10.00 whichever is
larger per OMB Circular A-118 . . . . " (G.C. Exh. 17, Enclosures) and
the DA TWX of October 15, 1979 (G.C. Exh. 5), which, inter alia, stated
that the monthly charges, including the $10.00 per month fee for HDL,
were "based on appraisals . . . . " Mr. Kershaw, at request of HDL's
chief spokesman, Ms. Hering, made two "off the cuff" proposals: a) that
HDL charge bargaining unit employees the same fee as was being charged
in commercial parking lots adjacent to the HDL complex (obviously, as
HDL and the Union well knew, there were no commercial parking lots
adjacent to the HDL complex and Union was proposing, in reality, that no
charge be made for bargaining unit employees); and b) that shift
employees be exempted from the paid parking requirement.
6. On October 22, 1979, HDL requested a 120 day delay in
implementing the program, a primary justification being that, "Because
of the late notification . . . our negotiating team has been unable to
conduct meaningful discussions with union representatives concerning
this change in general working conditions. To implement this program
prior to reaching agreement or going to impasse with the union on this
matter, will not only have an adverse impact upon our present
negotiations but may also subject the activity to an Unfair Labor
Practice . . . . " (G.C. Exh. 10)
7. Also on October 22, 1979, HDL submitted an appeal for exemption
from the requirements of the paid parking program (G.C. Exh. 8).
8. Both the request for delay and the appeal for exemption were
indorsed by higher headquarters (G.C. Exhs. 22a-22c, 20a-20d) but were
denied by DOD on November 19, 1979 (G.C. Exhs. 9c, 21). As to delay in
implementation, DOD stated, in part, "Delay in implementation . . .
should be avoided in view of the requirements of the OMB Circular . . .
) /10/ and as exemption stated, in part, "The Department of Defense does
not have authority to exempt military installations . . . except as
specified in OMB Circular A-118 and the draft DoD directive. None of
the requests received to date have been justified for exemption on the
basis of these regulations . . . . "
9. On October 25, 1979, HDL's draft implementing instructions, dated
October 24, 1979, (G.C. Exh. 4) were hand-carried to Mr. Kershaw's
office by Ms. Hering; however, Mr. Kershaw was not present and he
testified that, as he noted on the draft copy, he received the document
at 0800, October 26, 1979 (Tr. 51-52). The parties discussed HDL's
draft on October 26. At the outset, Mr. Kershaw, as he readily
admitted, stated that one of the simplest ways to avoid implementation
of paid parking was to talk it to death, his assumption being that it
could not be implemented while negotiations were in progress; but Ms.
Hering told Mr. Kershaw that HDL was under direct orders to implement
the program on November 1 and that it would be implemented on that date.
Mr. Kershaw was advised that HDL had submitted a formal appeal
requesting exemption and Mr. Kershaw proposed several times that
negotiations be suspended on implementation because he was confident HDL
would be excluded; however, Ms. Hering insisted that negotiations
continue because she believed a response on the appeal would not be
received by November 1. After a caucus, Mr. Kershaw presented several
counter proposals. Again, Mr. Kershaw proposed that the monthly rate be
equal to that charged by commercial lots in the vicinity and there was
discussion of "vicinity", Mr. Kershaw proposing "three blocks" and HDL
"five miles" (Tr. 53). Mr. Kershaw also renewed his proposal that all
shift workers be exempt (Tr. 53) (management had, in fact, already
agreed to Mr. Kershaw's October 19 proposal and its October 24 draft had
exempted "Shiftworkers" as well as "those on weekend duty"; "Personnel
on temporary duty not to exceed 2 weeks" and "Part-time volunteers, such
as Red Cross or Travelers Aid personnel, Gray Ladies, or thrift shop
helpers, etc."; and "Official visitors, including employment
applicants, parking up to a limit of 3 hours." (G.C. Exh. 4, par. 5))
and management responded that they were exempt and that the afternoon
shift of the janitors were exempt because they met the criteria, which I
agreed, and that would leave approximately 20 people left in the janitor
force that would be subject to paid parking" (Tr. 54). Mr. Kershaw
further proposed that Union visitors park free; that WG-3's and below
be exempt; and that the daily fee be 45[. Management asserted that it
had no control over exempting union visitors, that DOD and DA
regulations required that anything over three hours be charged for and
had proposed a daily fee of $1.50 but, in response to Mr. Kershaw's
proposal of 45[ made a counter proposal of $1.25. The Union agreed to
encourage carpooling and/or use of mass transportation but declined to
urge Union employees not to park in the surrounding residential area.
Mr. Kershaw stated that management "indicated at that first session"
that the monthly rate "was non-negotiable" (Tr. 58). Management had
proposed that payment be permitted in cash, by money order or by payroll
deduction. Ms. Hering told Mr. Kershaw she would have to check with
payroll to see if payroll deductions was a feasible proposal. At the
end of the January 26 session, several issues remained outstanding,
including payroll deductions, exemptions for WG-3's and Union visitors,
daily charge and Union support in discouraging unit employees from
parking in residential areas. Mr. Kershaw advised Ms. Hering he would
contact her the following Monday, October 29, concerning his
availability for further discussions.
10. Mr. Kershaw did not contact Ms. Hering on October 29 as he had
agreed to do at the conclusion of the October 26th meeting. On October
30, Ms. Hering attempted to reach Mr. Kershaw at his office but he was
not in and did not respond to her message that he call regarding another
negotiating meeting.
11. Ms. Hering called Mr. Kershaw again on October 31 and, again,
left a message for him to call her. Late in the afternoon of October
31, Mr. Kershaw returned Ms. Hering's call and she told him she would
meet with him that evening but Mr. Kershaw said he was not available and
suggested negotiating by telephone and, accordingly, the issues, which
had been left unresolved at the close of the October 26 meeting, were
discussed by telephone. Ms. Hering testified that, "we declared two of
them (open Union proposals) non-negotiable based on the DOD Directives"
(Tr. 194); however, she did not identify the two proposals declared
non-negotiable on October 31st. /11/ Ms. Hering on October 31 did
advise Mr. Kershaw that paid parking would be implemented the following
day, November 1 (Tr. 184-185).
12. HDL issued "Interim Parking Fee Policy", dated October 30, 1979
(G.C. Exh. 6), effective November 1, 1979, which, inter alia, set forth
a daily rate of $1.00 per day, which was less than HDL's counterproposal
to the Union on October 26 of $1.25, and provided for payment by check
although, by inference cash appears acceptable. /12/
13. Further meetings were held on November 9 and 21 on paid parking
but, on November 21, further negotiations were suspended until January
25, 1980, although parking, by the Union's earlier declination to
discuss the matter, was not discussed until February 9, 1980, and
thereafter.
14. OMB Circular No. A-118, "Federal Employee Parking Facilities",
was issued on August 13, 1979 (G.C. Exh. 2), although, as Mr. Francis B.
Roche, Director for Real Property and Natural Resources, Office of the
Assistant Secretary of Defense for Manpower, Reserve Affairs and
Logistics, testified, OMB had issued an initial draft in April, 1979,
subsequently followed by a second and third draft reflecting comments
and input from various agencies, including the Department of Defense,
and DOD knew by about July 16, 1979, "approximately what this final
circular would look like (Tr. 108).
15. General Services Administration issued Federal Property
Management Regulations, Temporary Regulation D-65, on September 6, 1979.
16. DOD issued a draft Instruction on September 18, 1979 (G.C. Exh.
16) and its Directive on October 11, 1979, implementing the personnel
parking facilities program encompassing all military installations,
facilities, and properties, whether owned or leased, in the United
States, its territories and possessions and the Commonwealth of Puerto
Rico and, further, to all space in Government-owned or leased buildings
assigned to DOD components by the GSA or to buildings leased by DOD
components (G.C. Exh. 17). Mr. Roche testified that there was no
difference in content, only semantical changes, between the Instruction
and the Directive, although the Instruction did not carry the weight of
a DOD Directive. The Department of the Army was, specifically, an
addressee of each. Enclosure (2) to the Directive, dated October 4,
1979, listed the monthly parking fee for HDL as $10.00. /13/
17. Lieutenant Colonel Paul T. Gerard, Department of the Army, Law
Enforcement Division, Director of Human Resources Development, Office of
the Deputy Chief of Staff for Personnel, testified that on the day he
reported for duty, July 23, 1979, he attended a meeting of a steering
group, chaired by Mr. Roche, whose function was to "come up with DOD
guidelines for implementing "the paid parking program within the DOD;
that he served as an adviser on this group from July 23 until the first
of October, 1979; and that he had replaced another person from DA who
had been on this team (Tr. 90-91). Colonel Gerard further testified
that after he received the DOD Instruction in September, he "submitted
some comments in the latter part of September to the Office of the Chief
of Staff, United States Army" (Tr. 92) and that these comments were
consolidated with other comments from DA staff and forwarded to DOD;
that in the latter part of September he began work on a draft interim
changes of Army Regulations 210-4 to incorporate provisions for paid
parking; and that a draft of AR-210-4 "Interim Change", implementing
the DOD Directive of October 11, 1979, was distributed by DA on October
17 and 19, 1979 (G.C. Exhs. 11, 12, 13). Colonel Gerard explained that
he received the DOD Directive late in the afternoon on Friday, October
12, 1979; that over the weekend he worked on his rough draft of AR
210-4 to conform to the DOD Directive and to prepare something to send
to concerned installations on Monday, October 15; and that a TWX (G.C.
Exh. 5) was issued on October 15, 1979 (Tr. 94).
18. Colonel Clifton R. Goodwin, at the time of the hearing Director
of the Systems Engineering and Technology Directorate, United States
Army Research and Development Command, Electronics Research and
Development Command, and from February, 1977, to December 4, 1979, had
been Commander of HDL, testified that Lieutenant Colonel, then Major,
Gerard had called him on October 16, 1979, to alert him to the fact that
a message had been sent designating HDL as one of the installations
where paid parking would be initiated (Tr. 78-79); that immediately
thereafter he had gone to the message center and found the TWX, General
Counsel's Exhibit 5 (Tr. 79); that no prior communication on paid
parking had been received by HDL, except a message received in August
that it was thought that Army installations might be exempted. A copy
of the DOD Directive of October 11, 1979, was transmitted to various
commanders, including HDL, on October 17, 1979, together with a copy of
draft interim change to AR 210-4 (G.C. Exh. 11). The printed version of
AR 210-4 was issued November 16, 1979 (G.C. Exh. 15).
19. By letter dated September 20, 1979, Mr. William C. Valdes,
Acting Deputy Assistant Secretary of Defense (Civilian Policy),
transmitted to Mr. Kenneth T. Blaylock, National President of American
Federation of Government Employees, a copy of DOD's Instruction and
asked, "that you review the draft Instruction and forward any comments
to reach this office by the close of business on October 3 at the
latest." (Res. Exh. 1). Mr. Ronald D. King, AFGE's Director of Contract
and Appeals Division, declined Mr. Valdes' offer of national
consultation and instead, suggested negotiation of DOD's Instruction.
(Res. Exh. 2).
For reasons well stated by Judge Arrigo in DCASR, supra, which I
fully adopt,
"There is no contention that the OMB and GSA regulations on
paid parking are negotiable matters. Indeed, it is clear that
these regulations are Government-wide regulations within the
meaning of Section 7117(a)(1) of the Statute, and, as such, no
duty to bargain is required regarding the subject matter contained
therein. However, the OMB parking regulation, while setting forth
various specific instructions on paid parking, required GSA and
all agencies to issue instructions relative to the implementation
of the OMB regulation. DOD was, therefore, obligated to adopt the
specific requirements of OMB and GSA but, nevertheless, was left
discretion as to various practices and procedures relating to the
implementation of the OMB and GSA regulations.
"Sections 7117(a)(2) and (3) of the Statute govern an agency's
duty to bargain with a union with regard to matters encompassed by
agency wide regulations. Thus, under the Statute, an agency or a
primary national subdivision of an agency is obligated to bargain
with a union regarding matters encompassed by their regulations
only where the union represents the majority of employees in the
agency or primary national subdivision, or when the Authority has
determined under 7117(b) of the Statute that no compelling need
exists for the regulation . . .
"In the case herein DOD's parking regulation of October 11,
1979 and DOA's regulation of October 19, 1979 were applicable to
all their subordinate bodies and I conclude the DOD regulation was
an 'agency' regulation and the DOA regulation was a regulation
issued by a 'primary national subdivision of such agency' within
the meaning of Section 7117(a)(3) of the Statute. Further, the
Union herein /14/ does not represent a majority of the employees
in DOD or DOA nor has the Authority determined that no compelling
need exists for the DOD or DOA regulations in effect, the issue
having never been presented to the Authority for such a
determination. Accordingly, I conclude that prior to their
issuance, neither DOD nor DOA was obligated to bargain . . .
regarding the matters which were the subject of the parking
regulations referred to herein.
"However, the DOD and DOA regulations were not self
implementing. Rather, in order to be effectuated, components
subordinate to DOD and DOA were required to implement them as they
would affect employees within their jurisdiction. The regulations
did not provide for all possible contingencies and, therefore,
various areas of discretion were left to the judgement of
management at the level of actual employee location and union
representation.
"The Authority has held in National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA No. 119, that 'to the extent that an agency has discretion
with respect to a matter affecting conditions of employment of its
employees, that matter is within the duty to bargain of the
agency.' Clearly, the paid parking program at the Facility is a
condition of employment. Accordingly, I conclude that management
was obligated under the Statute to negotiate . . . to whatever
extent management had discretion under applicable Government-wide
and agency regulations in the implementation of the paid parking
at the Facility." (DCASR, supra, pp. 12-14) (footnotes omitted)
(To like effect, see, also, Boston District, supra; Department of
the Army, supra.)
As noted above, I fully ascribe to Judge Arrigo's conclusions, set
forth above, and the application of those conclusions to the particular
facts of this case are discussed hereinafter. But first, is a further
contention by the General Counsel concerning compelling need (General
Counsel's Brief, pp. 16-19), an issue also considered in detail by Judge
Arrigo in Boston District, supra. For reasons well stated by Judge
Arrigo in Boston District, supra, which I fully adopt, I conclude that a
determination of "compelling need" may not be made in an unfair labor
practice proceeding. Judge Arrigo noted, in part, as follows:
"Under section 7117(a)(2) and (3) of the Statute, an agency or
a primary national subdivision of an agency is not obligated to
bargain with a union regarding matters encompassed by their
regulations unless a union represents the majority of employees in
the agency or national primary subdivision or unless the Authority
has determined, under section 7117(b) of the Statute, that no
compelling need exists for the regulation . . . The Union herein
(AFGE) does not represent the majority of employees in DOD or DOA
. . .
" . . . an examination of the legislative history of the
Statute discloses the following explanation given by Senator
Morris Udall on September 13, 1978 regarding the meaning of
section 7117 ultimately enacted into law, termed the 'substitute'
bill . . . :
"'The substitute's section 7117 makes Government-wide rules and
regulations an absolute bar to negotiations (subsection (a)(1)).
"'Subsection (a)(2) of the substitute provides that agency
rules or regulations are a bar to negotiations, subject to
subsection (a)(3), unless a finding of "no compelling need" for
the rule or regulation is made by the Authority (as determined
under regulations prescribed by the Authority);
" . . . the terms of section 7117 were meant to apply generally
to all situations where an agency defends against a demand to
negotiate on a matter by interposing the existence of an
appropriate regulation.
"Counsel for the General Counsel also suggests . . . that if
the agency regulations stands as a bar to negotiations, then the
proceeding herein served to put the issue of compelling need
before the Authority for determination. In my view neither the
Statute nor the Authority's regulations appear to envision this
approach. Indeed, section 7117(b)(3) of the Statute provides that
where a hearing is held to make a determination of compelling
need, it, ' . . . shall not include the General Counsel as a
party.' Accordingly, to combine a compelling need determination
with an unfair labor practice proceeding, where the General
Counsel has the responsibility of presenting the evidence in
support of the complaint and carries the burden of proving the
allegations of the complaint, would run contrary to Statutory
prohibition. Therefore, Counsel for General Counsel's contention
is rejected." (Boston District, supra, pp. 13-15) (footnotes
omitted).
For reasons set forth above, an agency regulation, whether issued by
an agency, such as DOD, or by a primary national subdivision, such as
DA, is not subject to negotiation unless the Authority has determined,
pursuant to Sec. 17(b), that no compelling need exists for such rule or
regulation. General Counsel's assertion that, "DOD and Department of
the Army must demonstrate that a compelling need exists for specific
provisions of their regulations which extend beyond the dictates of the
Government-wide regulations . . . " (General Counsel Brief, p. 16), is
without merit and is rejected. To the contrary, such regulations bar
negotiations unless and until the Authority, pursuant to Sec. 17(b)
determines that no compelling need exists for such rule or regulation.
As set forth above, there was a duty to bargain with the Union as to
matters not precluded by express provisions of Government-wide
regulations or the regulations issued by DOD and DA. In this case, HDL,
as the unit of exclusive recognition, was obligated to bargain with the
Union.
It must be recognized at the outset that this case involves a
Government-wide regulation, OMB Circular No. A-118 (August 13, 1979,
G.C. Exh. 2), supplemented by a further Government-wide regulation, GSA
Temporary Regulation D-65 (September 6, 1979, G.C. Exh. 3), which, inter
alia, provided that the paid parking program would be effective November
1, 1979. Both the DOD Instruction of September 18, 1979 (G.C. Exh. 16)
and the Directive of October 11, 1979 (G.C. Exh. 17) provided for
implementation of monthly fees beginning November 1, 1979. The
effective date of implementation of the program, November 1, 1979, was
not subject to negotiation by HDL inasmuch as the date of implementation
had been fixed by OMB's Government-wide regulations as well as by agency
regulation.
HDL received notice on October 16, 1979, that it was to be included
in the paid parking program; on October 17, 1979, HDL advised the
Union; and on October 19, 1979, HDL gave the Union copies of DA's TWX
of October 15 and DOD's Directive of October 11, 1979, and discussed the
matter with Mr. Kershaw who gave HDL's Chief negotiator two
"off-the-cuff" proposals. The parties did not meet again until October
26, 1979; however, on October 22, HDL: a) requested a 120 day delay in
implementing the paid parking program, a primary justification being to
allow completion of discussions with the Union; and b) filed an appeal
for exemption. At the October 26, 1979, meeting HDL told the Union that
the paid parking program would be implemented, pursuant to direct orders
from higher headquarters, on November 1; the parties did enter upon
meaningful negotiations but at the end of the October 26th session
several items were unresolved. Although HDL was ready and willing to
meet at any time convenient for the Union, Mr. Kershaw declined to meet
over the weekend and told HDL's Chief negotiator that he would contact
her the following Monday, October 29, concerning his availability for
further discussions. Mr. Kershaw did not call on Monday, October 29,
could not be reached on October 30, was still not in his office on
October 31 and did not return Ms. Hering's calls until late in the
afternoon on October 31. Mr. Kershaw refused Ms. Herings' offer to meet
that night but, at Mr. Kershaw's request, there ensued a discussion by
telephone. General Counsel is quite correct that negotiations were not
fully completed by November 1, 1979, when HDL implemented paid parking.
Indeed, as noted above, on one item, the daily rate, HDL placed into
effect a daily rate which was less ($1.00) than its last counter
proposal to the Union on October 26 ($1.25), and on another, method of
payment, obviously, there had been no resolution of Union's proposal for
payroll deductions. Nevertheless, under the circumstances I find no
failure on the part of HDL to bargain in good faith. First, the Union
failed to avail itself of the opportunity to continue negotiations.
Second, the monthly rate for HDL had been fixed by DOD's Directive Enc.
2 and DA's TWX (G.C. Exh. 5) and Union's proposal for exemption of
employees based on wage grade was precluded by the DOD Directive as well
as DA's TWX and draft interim changes of AR 210-4 so that HDL's
declaration, on October 26 and/or October 31, that these matters were
not negotiable was correct. Nor were these proposals germane to impact
and implementation of the regulations, cf., Delaware Army and Air
National Guard, Case No. 23-CA-104 (ALJ, April 1981), but were, in fact,
an attempt to "negotiate" the regulation which was not subject to
negotiation unless and until the Authority should determine that no
compelling need existed for the regulation. Third, the Union evinced a
total lack of good faith as shown, inter alia, by its conceded objective
to "talk it to death" and by its failure and refusal to meet after
October 26. Fourth, HDL had, to the full extent possible, taken every
action available to it. Thus, HDL had requested an extension of time
for implementation of the program; had requested exemption; and had
met with the Union to negotiate the matters left to its discretion by
the regulations, i.e., impact and implementation of the regulations, and
was available and ready to continue negotiations but Union failed and
refused to meet. Fifth, HDL continued to meet with the Union after
November 1st. Accordingly, I find no failure by HDL to negotiate in
good faith nor did HDL violate the Statute by implementing the paid
parking program on November 1, 1979.
Section 17(a) of the Statute wholly excludes from the duty to bargain
"any Federal law or any Government-wide rule or regulation". Although
not raised and, therefore not decided, I assume that if a
Government-wide rule or regulation were effective immediately,
bargaining on impact and implementation, at least prior to
implementation, would be precluded.
Here, while OMB issued a Government-wide regulation on August 13,
1979 (Circular No. A-118, G.C. Exh. 2), this regulation was not in all
respects dispositive of all aspects of the paid parking program and, in
particular as to military installations recognized the unique problems
and in Paragraph 11 provided, in part, that, "The Secretary of Defense
shall establish regulations at non-GSA controlled military installations
consistent with this circular and the GSA regulations issued in
conformance with this circular." Nevertheless, OMB by Government-wide
regulations, had provided that the paid parking program should be made
effective November 1, 1979, and the duty to bargain, pursuant to Sec.
17(a)(1) or (2), must not be "inconsistent with . . . any
Government-wide rule or regulation". Accordingly, November 1, 1979,
having been fixed by Government-wide regulation as the date of
implementation of the paid parking program, the date of implementation
of the program was not negotiable and DOD was obligated to act in
conformance with the Government-wide regulation.
Pursuant to Sec. 17(a)(2) and (3), as noted above, DOD and DA may
issue regulations which are subject to bargaining only if: a) an
exclusive representative represents not less than a majority of the
employees in the issuing agency (DOD) or primary national subdivision
(DA) or b) the Authority has determined that no compelling need exists
for the rule or regulation. Neither condition pertains here. The fact
that DOD's regulation narrowed the areas of discretion left both to DA
and/or to management at the level of actual employee location and union
representation is immaterial. The duty to bargain did not extend to
matters subject to DOD's agency-wide regulation unless and until the
Authority should determine that no compelling need exists for the rule
or regulation.
Where, as here, some discretion was left by DOD's regulation, I have
found, in full agreement with Judge Arrigo's decisions in DCASR and
Boston District, that there is both a right and an obligation to
negotiate on those areas of discretion left to the judgment of
management at the level of actual employee location and union
representation. General Counsel asserts that DOD and DA acted in such a
manner that the Union was deprived of the opportunity to bargain and,
therefore DOD and DA violated Sec. 16(a)(1) by denying Union a
meaningful opportunity to bargain with HDL.
OMB's Government-wide regulation on paid parking issued on August 13,
1979 (G.C. Exh. 2); GSA's Temporary Regulation D-65 issued on September
6, 1979 (G.C. Exh. 3); and DOD's Instruction issued on September 18,
1979 (G.C. Exh. 16). The transmittal stated, inter alia, "The enclosed
draft DOD Instruction is intended to implement OMB Circular A-118 . . .
. " The Instruction provided, in part, that,
"1. This Instruction applies to the Office of the Secretary of
Defense, the Military Departments, and the Defense Agencies
(hereafter referred to as 'DOD Components').
"2. Its provisions encompass all military installations,
facilities, and properties in the United States, its territories
and possessions, the Commonwealth of Puerto Rico, and the Canal
Zone whether owned or leased."
"This Instruction is effective immediately. Forward two copies
of implementing documents to the Assistant Secretary of Defense
(Manpower, Reserve Affairs and Logistics) within 60 days of the
date of this Instruction." (G.C. Exh. 16).
Although the record shows that comments were submitted to DOD by,
among others, DA, and that DOD issued its Directive on October 11, 1979,
(G.C. Exh. 17), the Instruction, by its terms, was effective when
issued, implemented OMB Circular A-118, and was obligatory to all DOD
Components. Whether an agency rule or regulation is not before me. It
was, in either event, an agency implementation of OMB Circular A-118;
AFGE was, pursuant to Sec. 13 of the Statute, informed and permitted
reasonable time to present its views; and all DOD Components, including
DA, were given notice, as of September 18, 1979, of the parking program
to be implemented November 1, 1979.
The record firmly shows that DOD issued its Instruction with
expedition after issuance of GSA's regulation, which was an essential
prerequisite, and that its Instruction, provided full notice to all DOD
Components on September 18, 1979, of its implementation of OMB Circular
A-118 beginning November 1, 1979. DOD, obviously, acted with all
reasonable dispatch and its Instruction afforded the maximum notice
possible to all DOD Components of the implementation of OMB Circular
A-118. Inasmuch as the DOD Instruction implemented OMB Circular A-118,
it cannot be said that implementation was deferred by DOD pending
issuance of its Directive on October 11, 1979, and/or that by delay in
issuance of the Directive until October 11, 1979, DOD deprived the Union
of a meaningful opportunity to bargain with HDL.
The record shows that DA, although it submitted comments to DOD on
the DOD Instruction, gave no notice to HDL either that HDL was to be
included in the paid parking program or of the DOD Instruction. Indeed,
the record shows that DA's first notice to HDL was on October 15, 1979
(G.C. Exh. 5), and was received by HDL on October 16, 1979. As noted
above, the DOD Instruction implemented OMB Circular A-118 and DA, since
a component activity performed the appraisal (See, G.C. Exhs. 18 and
19), knew by September 18, 1979, that an appraisal had been made of fair
rental rates for outside parking at HDL. The failure of DA to give HDL
notice, after receipt of the DOD Instruction, of the implementation of
OMB Circular A-118 did, wholly without justification, severely restrict
the Union's opportunity to bargain since, as the result of DA's failure
to give notice to HDL of the DOD Instruction, HDL was not given notice
until October 15, 1979, that it was to be included in the paid parking
program effective November 1, 1979. Nevertheless, under the
circumstances, I do not find that DA's failure to give HDL notice of the
DOD Instruction, although without justification, deprived the Union of a
meaningful opportunity to bargain with HDL so as to constitute a
violation of 16(a)(1) of the Statute. First, perhaps contrary to my
brother Judge Arrigo's conclusion in Department of the Army, supra, that
"DOA inherently was given wide discretion in establishing and
effectuating the details of the plan it chose to have implemented at its
installations" (p. 9), I can perceive very little discretion left to DA
/15/ and/or HDL. Second, HDL gave Union notice on October 17, 1979, and
the parties met on October 19 and 26. Within the time available prior
to the date of implementation, November 1, 1979, there was an
opportunity for meaningful negotiations on the limited areas subject to
negotiations, thwarted only by Union's failure and refusal to meet and
negotiate. Third, implementation of the paid parking program at HDL on
November 1, 1979, was controlled, in any event, by OMB Circular A-118,
the DOD Instruction and the DOD Directive, subject, at most, to
negotiations as to a daily rate and method of payment and HDL continued
negotiations with the Union after November 1, 1979, until negotiations
were suspended by Union.
Accordingly, I do not find that DA's delay is giving notice to HDL
deprived the Union of a meaningful opportunity to bargain with HDL.
Pursuant to the injunction of the Authority in Case No. O-NG-229,
supra, I have considered "issues as to whether, in the circumstances of
this case, the Agency would have an obligation to bargain on other
matters concerning the general subject of paid parking". I have serious
reservations as to what issues, "apart from the particular paid parking
program which is the subject of the proposals disputed in the instant
appeal" remained for consideration. As an alternative basis I further
conclude, as the Authority concluded in the negotiability appeal in this
case, that this proceeding was rendered moot by the discontinuance of
the paid parking program at HDL. This case, unlike DCASR and Boston
District, supra, did not involve a refusal to bargain by HDL. To the
contrary, the parties did bargain both before and after November 1,
1979, and, although I have found that, under the circumstances, DA's
failure to give HDL notice of DOD's Instruction, which failure did
severely restrict the Union's opportunity to bargain, did not deprive
the Union of a meaningful opportunity to bargain with HDL. Even if I
were wrong in this conclusion, DA's failure to give a more timely notice
to HDL was rendered moot by the discontinuance of the paid parking
program at HDL.
Having found no violation of Secs. 16(a)(1) or (5) of the Statute by
Harry Diamond Laboratories, Department of Defense, or Department of the
Army; or, in the alternative, that if the Department of the Army
violated Sec. 16(a)(1) of the Statute by its failure to give Harry
Diamond Laboratories prompt and timely notice of Department of Defense's
Instruction implementing, on September 18, 1979, OMB Circular A-118,
such violation was, in any event rendered moot by the discontinuance of
the paid parking program at Harry Diamond Laboratories, I recommend that
the Authority issue the following,
IT IS HEREBY ORDERED that the Complaint in Case Nos. 3-CA-719,
3-CA-889, and 3-CA-970 be, and it hereby is, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 18, 1981
Washington, D.C.
/1/ Section 7116(a)(1) and (5) provides:
Sec. 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 an 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(.)
/2/ See Department of Housing and Urban Development, 9 FLRA 136
(1982).
/3/ See Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA
No. 86 (1983), appeal docketed, No. 83-2017 (D.C. Cir. Sept. 26, 1983).
/4/ The Judge found, and the Authority agrees, that the Union was not
deprived by DOD or DOA of a meaningful opportunity to bargain with HDL.
/5/ Compare Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA 26
(1982); Department of the Interior, Water and Power Resources Service,
Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982).
/6/ During the pendency of the instant case before the Authority, the
United States District Court for the District of Columbia ruled that the
paid parking plan, as embodied in OMB Circular A-118, was invalid, and
ordered that the GSA regulation be set aside and its enforcement
permanently enjoined. American Federation of Government Employees,
AFL-CIO, et al. v. Freeman, 510 F.Supp. 596 (D.D.C. 1981). Thereafter
GSA revised the regulation to suspend the collection of parking fees in
accordance with the injunction. (46 F.R. 40191 (1981)). The District
Court's decision was subsequently reversed. American Federation of
Government Employees, AFL-CIO, et al. v. Carmen, Civil Action No.
81-1244 (D.C. Cir. Dec. 15, 1981). However, President Reagan has stated
that the collection of parking fees will not be reinstated. Statement
by the President on Parking Fees for Federal Employees, 17 Weekly Comp.
of Pres. Doc. 1378 (Dec. 17, 1981).
/7/ For convenience of reference, Sections of the Statute are, also,
referred to hereinafter without inclusion of the initial "71", e.g.,
Section 7116(a)(1) will be referred to as "16(a)(1)".
/8/ Counsel for General Counsel filed a Motion to Correct Transcript,
received on September 12, 1980, to which no opposition was filed and,
finding the requested corrections wholly proper, the motion is granted
and the transcript is hereby corrected as follows:
Page Line Change As Corrected
52 1 "10-24-79" "10-26-79"
99 2 "November 1979" "November 1977"
110 1 "General Counsel "General Counsel
Exhibit 30" Exhibit 3"
/9/ Obviously, the facts are interrelated, but as respects the
obligation of each entity under the Statute, the facts pertinent to
Department of Defense and Department of the Army are separately stated.
/10/ I am aware that in the Boston District case, supra, the paid
parking program was, apparently despite quite specific instructions to
implement the program by November 1, 1979, deferred until December 1,
1979.
/11/ By inference, it is assumed that one item declared
non-negotiable on October 31 was Mr. Kershaw's commercial lot in the
vicinity rate proposal but the date of a telephone conversation given
was October 25 (Tr. 190) not October 31. As a practical matter, the
Union's proposal that WG-3's and below be exempted and the commercial
rate in the vicinity had been declared non-negotiable, inasmuch as Mr.
Kershaw testified that management "indicated" that the monthly rate "was
non-negotiable" (Tr. 58) and as to WG-3 and below exemption, "They
rejected it . . . Because they had no authority as the regulations
issued." (Tr. 55). Accordingly, the only fully open Union proposals
after October 26 were: a) daily rate and b) method of payment, in
particular, payroll deductions.
/12/ The only reason for hesitation is that the Union had proposed
payment by cash or money order, and such alternatives are wholly absent
from HDL's Interim Parking Fee Policy implementation and the record does
not show agreement that either cash or money orders would be accepted;
nevertheless, it strains credulity to believe that cash would not be
acceptable, e.g., "visitors who exceed the three hours free-parking
limit will be required to exit at building 200 and to pay a $1.00 fee at
that time."
/13/ Pursuant to memorandum of August 3, 1979, to Chief of Engineers,
Department of the Army Commander, Naval Facilities Engineering Command
(G.C. Exh. 18); appraisal for HDL was dated August 31, 1979 (G.C. Exh.
19) (Estimated fair rental rate for outside parking $15.00 - rates in
Wheaton, MD $16.00 less $1.00 = $15.00).
/14/ I am aware that DCASR did not involve the American Federation of
Government Employees; but Boston District, supra, and Department of the
Army, supra, did, and Judge Arrigo in each of those cases specifically
found that AFGE did not represent the majority of employees in DOD or
DOA. The record here is fully in accord and I, also, find that AFGE did
not represent a majority of employees in DOD or DA.
/15/ DA's regulation, pursuant to Sec. 17(a)(2) and (3), issued by a
primary national subdivision of DOD would not be subject to the duty to
bargain unless the Authority had determined that no compelling need
exists for the regulation; however, AR 210-4, as stated by the
Intervenor, "made no changes of any significance, but rather was in
nearly all respects a verbatim republication of Respondent Defense's
instruction in the format used for directives of the Respondent Army."
(Intervenor's Brief, pp. 15-16).
15 FLRA 42; FLRA O-AR-246; July 2, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1704. Reversal
1750. Remedies
1754. Backpay
DIGEST NOTES
The dispute in this matter concerned the agency's termination of the
payment of a 4% environmental differential to pest controllers for
exposure to toxic chemicals. The arbitrator found that payment was not
warranted as there was no exposure to any unusually severe hazard within
the meaning of FPM Supp. 532-1 and Appendix J but, having found that the
agency violated the parties' agreement, ordered, as his award,
retroactive payment of an environmental differential to redress the
agency's failure to consult with the union. The agency filed
exceptions. The Authority found that the award was contrary to the Back
Pay Act and FPM Supplement 532-1 and Appendix J as: (1) FPM Supp. 532-1
authorizes payment of an environmental differential only when employees
are performing duties that expose them to a hazard, physical hardship,
or working conditions of an unusually severe nature listed in Appendix
J, therefore, the pest controllers were not entitled to environmental
differential pay; (2) the Back Pay Act authorizes an award of backpay
by an arbitrator only to remedy an unjustified or unwarranted personnel
action that has resulted in the withdrawal of a differential that the
pest controllers would otherwise have received; and (3) the arbitrator
expressly ruled that the pest controllers were not being exposed to any
unusually severe hazard which would entitle them to environmental pay.
Consequently, the Authority modified the award to strike the sentence
that awarded retroactive environmental differential pay to the pest
controllers.
DEPARTMENT OF THE AIR FORCE,
GRIFFISS AIR FORCE BASE
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2612
Case No. O-AR-246
This matter is before the Authority on exceptions to the award of
Arbitrator Dale S. Beach filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. /1/ The Union filed
an opposition.
The dispute in this matter concerns the Activity's termination in
1979 of the payment of a 4% environmental differential to pest
controllers for exposure to poisons (toxic chemicals). The termination
was on the advice of the Activity's environmental engineering office
which concluded that environmental differential pay was not warranted or
authorized under FPM Supp. 532-1 and Appendix J. A grievance was filed
and submitted to arbitration on the issues of whether payment of an
environmental differential was warranted and whether the Activity had
violated the parties' collective bargaining agreement and personnel
policy by failing to consult with the Union regarding the termination of
environmental differential pay.
The Arbitrator determined as to payment of the differential that
there was no exposure to any unusually severe hazard within the meaning
of FPM Supp. 532-1 and Appendix J and that consequently the pest
controllers were not entitled to have had their environmental
differential pay continued. However, the Arbitrator did find that the
Activity violated the agreement and personnel policy when it failed to
consult with the Union, and as his award in this respect the Arbitrator
ordered as follows:
As redress for this violation Griffiss Air Force Base shall pay
each Pest Controller a sum of money equal to 4% of his pay for the
period from the date of discontinuance in October-November 1979 to
February 24, 1981, the date of this arbitration hearing.
In its exceptions the Agency essentially contends that by ordering
retroactive payment of an environmental differential to redress a
failure to consult with the Union, the award is contrary to the Back Pay
Act and FPM Supp. 532-1 and Appendix J. The Authority agrees.
FPM Supp. 532-1, subchap. S8-7(f) makes it clear that payment of an
environmental differential is only authorized when employees are
performing assigned duties which expose them to a hazard, physical
hardship, or working condition of an unusually severe nature listed in
Appendix J. Consequently, on the basis of the Arbitrator's ruling that
the pest controllers were not being exposed to poisons (toxic chemicals)
as described in Appendix J, the pest controllers were not entitled to
have been paid an environmental differential and payment by the Activity
of an environmental differential was not warranted or authorized. See,
e.g., Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater
Virginia Metal Trades Council, AFL-CIO, 10 FLRA No. 70 (1982).
Likewise, the Back Pay Act makes it clear in terms of this case that an
award of backpay by the Arbitrator is only authorized to remedy an
unjustified or unwarranted personnel action that has resulted in the
withdrawal of a differential that the pest controllers would otherwise
have received. 5 U.S.C. 5596(b)(1)(A)(i) (1982); see, e.g., Veterans
Administration Hospital and American Federation of Government Employees,
Lodge 2201, 4 FLRA 419 (1980). Therefore, with the Arbitrator expressly
ruling that the pest controllers were not being exposed to any unusually
severe hazard which would entitle them to environmental differential
pay, the Activity's failure to consult regarding the termination of
environmental differential pay did not and could not result in an
unwarranted withdrawal of a differential which the employees were
entitled to have otherwise received. Although the Arbitrator had
considerable latitude in fashioning a remedy for the Activity's
violation of the agreement, the Arbitrator's award of backpay in the
amount of a 4% environmental differential as "redress" for the violation
is deficient as contrary to FPM Supp. 532-1 and the Back Pay Act.
Accordingly, the award is modified by striking the following sentence
of the award:
As redress for this violation Griffiss Air Force Base shall pay
each Pest Controller a sum of money equal to 4% of his pay for the
period from the date of discontinuance in October-November 1979 to
February 24, 1981, the date of this arbitration hearing.
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Office of Personnel Management filed a brief as an amicus
curiae and the Union filed a response.
15 FLRA 41; FLRA O-AR-240; July 2, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusion
1652.01 Disagreement with the Arbitrator's Reasoning
DIGEST NOTES
The dispute in this matter concerns the activity's transfer of two
employees from one local office to another. A grievance was filed and
submitted to arbitration claiming that the activity's conduct violated
the parties' collective bargaining agreement. The arbitrator determined
that the activity's conduct did not violate the agreement. In its
exceptions, the union claimed that the activity denied the employees the
right to be represented by the union and wrongfully withheld information
from the union in violation of Sec. 7116(a)(1), (5) and (8) and that the
activity held formal discussions with employees without providing the
union advance notice and an opportunity to be present in violation of
Sec. 7114(a)(1) and Sec. 7114(a)(2)(A). The Authority concluded the
union's contention that the arbitrator failed to find that the
activity's conduct violated the parties' agreement, constitutes nothing
more than disagreement with the arbitrator's interpretation of the
agreement and provides no basis for finding the award deficient.
Furthermore, the Authority held that the union's contention that the
award cannot be upheld because the activity's disputed conduct allegedly
constitutes unfair labor practices under the Statute is misplaced and
cannot provide a basis for finding the award deficient. Section 7116(d)
provides that issues which can be raised under a grievance procedure
may, at the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice but not under both
procedures.
THE PHILADELPHIA REGIONAL OFFICE,
DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3186
Case No. O-AR-240
This matter is before the Authority on exceptions to the award of
Arbitrator Stanley H. Sergent, Jr. filed by the Union under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Agency filed an opposition.
The dispute in this matter concerns the Activity's transfer of two
employees from one local office to another. A grievance was filed and
submitted to arbitration claiming that the Activity's conduct violated a
number of provisions of the parties' collective bargaining agreement.
The Arbitrator considered the pertinent provisions of that agreement and
determined in the circumstances presented that there was no basis for
finding that the Activity's conduct in any manner violated the
agreement. Accordingly, as his award, he denied the grievance.
In its first exception the Union contends that the Arbitrator denied
the employees and the Union rights set forth in sections 7114 and 7116
of the Statute. Specifically, the Union claims that the Activity denied
employees their right to be represented by the Union and denied the
Union its right of representation and that the Arbitrator therefore
wrongfully upheld the Activity's conduct in violation of section
7116(a)(1), (5), and (8) of the Statute. The Union further claims that
information about the transfer was wrongfully withheld from it in
violation of section 7116(a)(1), (5), and (8) and that formal
discussions with employees were held by the Activity without advance
notice to the Union and without providing the Union an opportunity to be
present in violation of section 7114(a)(1) and 7114(a)(2)(A) of the
Statute.
The Authority concludes that this exception provides no basis for
finding the award deficient under the Statute. To the extent that it is
contended that the award is contrary to the Statute because the
Arbitrator failed to find the Activity's conduct violative of the
collective bargaining agreement, such contention constitutes nothing
more than disagreement with the Arbitrator's interpretation of the
agreement and provides no basis for finding the award deficient. See,
e.g., Immigration and Naturalization Service, Department of Justice,
U.S. Government and American Federation of Government Employees, Local
No. 1656, 7 FLRA No. 83 (1982). Furthermore, the Union's contention
that the award cannot be upheld because the Activity's disputed conduct
allegedly constitutes unfair labor practices under the Statute is
misplaced and cannot provide a basis for finding the award deficient.
Section 7116(d) of the Statute provides that "issues which can be raised
under a grievance procedure may, in the discretion of the aggrieved
party, be raised under the grievance procedure or as an unfair labor
practice under this section, but not under both procedures." As noted,
the sole issue submitted to and resolved by the Arbitrator was whether
the Activity's conduct violated the parties' collective bargaining
agreement as claimed by the Union. Thus, in this case, the Union opted
to file a grievance rather than an unfair labor practice charge. In so
doing, the Union chose to rely upon alleged contract violations rather
than provisions of the Statute. In accordance with section 7116(d),
that choice now precludes the Union from alleging that the same conduct
constitutes unfair labor practices. It follows that the Union's choice
of the grievance forum also precludes the unfair labor practice
allegations from being raised for the first time before the Authority as
a basis for finding the resulting arbitration award deficient.
In its other exceptions the Union contends that the central fact
underlying the award is erroneous and that the award does not draw its
essence from the collective bargaining agreement. However, these
exceptions merely constitute disagreement with the Arbitrator's
interpretation of the agreement and provide no basis for finding the
award deficient.
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
15 FLRA 40; FLRA 7-CU-30010; July 2, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3200. Employee Categories and Classifications
3203. Management Officials
DIGEST NOTES
The Authority found that a Management Analyst who reviews the
agency's work practices and policies which he may change to improve the
efficiency of the agency's operation and who can commit agency funds and
resources through direct negotiations with vendors servicing the agency
is a management official, within the meaning of Sec. 7103(a)(11) of the
Statute, as his responsibilities require and authorize him to formulate,
determine, or influence the policies of the agency.
Management Analysis and Space Program Analysts, highly trained
professionals whose actions assist in implementing, as opposed to
shaping, the agency's policies, are not management officials within the
meaning of Sec. 7103(a)(11) of the Statute as they do not exercise
duties or responsibilities which require or authorize them to formulate,
determine or influence the policies of the agency.
INTERNAL REVENUE SERVICE
KANSAS CITY SERVICE CENTER
and
NATIONAL TREASURY EMPLOYEES UNION
Case No. 7-CU-30010
Upon a petition duly filed with the Federal Labor Relations Authority
under section 7111(b)(2) of the Federal Service Labor-Management
Relations Statute (the Statute), a hearing was held before a hearing
officer of the Authority. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority finds: The National Treasury
Employees Union (NTEU) was certified as the exclusive representative for
a consolidated unit of all nonprofessional employees of the Internal
Revenue Service Centers, The Data Center, Detroit, Michigan, The
National Computer Center, Martinsburg, West Virginia, and all
professional and nonprofessional General Schedule and Wage Grade
employees, including seasonal (WAE) and part-time employees employed by
the Internal Revenue Service, North Atlantic Service Center, Andover,
Massachusetts. Essentially, the petition seeks to clarify the
bargaining unit status of Maida Bluhm, Management Analyst, GS-343-11
(Compliance Activity Coordinator, Compliance Division); Charles Ball,
Management Analyst, GS-343-11 (Resources Management Division); John
Hatfield, Space Program Analyst, GS-301-11 (Resources Management
Division); and Penrod Turk, Space Program Analyst, GS-301-11 (Resources
Management Division) based on the Activity's allegation that they are
management officials /1/ and must be excluded from the unit. /2/ In the
lead case of Department of the Navy, Automatic Data Processing Selection
Office, 7 FLRA 172 (1981), the Authority interpreted the statutory
definition of "management official" to include those individuals who:
(1) create, establish or prescribe general principles, plans, or courses
of action for an agency; (2) decide upon or settle upon general
principles, plans or courses of action for an agency; or (3) bring
about or obtain a result as to the adoption of general principles, plans
or courses of action for an agency. Applying these criteria to the
instant case, the Authority finds that Charles Ball is a management
official and shall order his exclusion from the bargaining unit. Thus,
the record establishes that Ball's major function is the review of the
Activity's work practices and policies which he may change to improve
the efficiency of the Activity's operations. In this regard he has
developed the Activity's Underreporter Program and the Travel Management
Program and can commit Activity funds and resources through direct
negotiations with vendors servicing the Activity. It follows that his
responsibilities require and authorize him to formulate, determine, or
influence the policies of the Activity within the meaning of section
7103(a)(11) of the Statute as interpreted by the Authority.
With respect to the other alleged management officials, the Authority
finds that they are professionals whose actions assist in implementing,
as opposed to shaping, the Activity's policies. The record establishes
that Bluhm's /3/ major function is the implementation of the automation
program involving the existing manual system as it pertains to the
microcomputers in the Compliance Division of the Activity and that Turk
and Hatfield are engaged in the routine planning and utilization of
designated space for placement of new equipment. As these incumbents do
not exercise any duties and responsibilities which require or authorize
them to formulate, determine, or influence the policies of the Activity,
they are not management officials within the meaning of section
7103(a)(11). Accordingly, the Authority finds that these incumbents
should remain in the bargaining unit.
IT IS ORDERED that the unit sought to be clarified herein be, and it
hereby is, clarified by excluding from said unit Charles Ball,
Management Analyst, GS-343-11 (Resources Management Division) and by
including in said unit Maida Bluhm, Management Analyst, GS-343-11
(Compliance Activity Coordinator, Compliance Division); John Hatfield,
Space Program Analyst, GS-301-11 (Resources Management Division); and
Penrod Turk, Space Program Analyst, GS-301-11 (Resources Management
Division).
Issued, Washington, D.C., July 2, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7103(a)(11) of the Statute defines a "management
official" as:
. . . an individual employed by an agency in a position the
duties and responsibilities of which require or authorize the
individual to formulate, determine, or influence the policies of
the agency . . . .
/2/ During the course of the hearing, the parties stipulated that
incumbents in certain job classifications should be removed from
consideration herein. The Authority deems such stipulations to be
motions to amend the petition which are hereby granted.
/3/ The Activity contends that Bluhm is only a temporary employee and
should be excluded from the unit. The record indicates and the
Authority finds that while Bluhm may be on detail to her present
position which will expire in a short period of time, she does have a
permanent position and is a full-time permanent employee of the
Activity.
15 FLRA 39; FLRA O-AR-787; June 29, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusion
DIGEST NOTES
Where the arbitrator's award relates to a matter covered by Sec.
7121(f) of the Statute, including those covered under 5 U.S.C. 7512
which applies to specific adverse actions, including removals, the
Authority is without jurisdiction to review the grievant's exceptions.
Rather, pursuant to Sec. 7121(f) of the Statute, review of an
arbitration award relating to such matters must be obtained in
accordance with 5 U.S.C. 7703, i.e., in the same manner and under the
same conditions as judicial review of a final decision of the Merit
Systems Protection Board.
FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
and
PORTSMOUTH NAVAL SHIPYARD
Case No. O-AR-787
This matter is before the Authority on exceptions to the award of
Arbitrator John T. Conlon filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute and section
2425.1 of the Authority's Rules and Regulations. For the reasons set
forth below, the Authority is without jurisdiction to review the Union's
exceptions and they must be dismissed on that basis.
In the instant case, the Arbitrator found that the grievant's removal
was for just cause and accordingly, as his award, denied the grievance.
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).
The matters described in section 7121(f) of the Statute include those
covered under 5 U.S.C. 7512 which applies to specified adverse actions,
including removals. Pursuant to section 7121(f), review of an
arbitration award relating to such matters must be obtained in
accordance with 5 U.S.C. 7703, i.e., in the same manner and under the
same conditions as judicial review of a final decision of the Merit
Systems Protection Board.
Since the Arbitrator's award relates to a matter covered by 5 U.S.C.
7512, the removal of the grievant, under section 7122(a) of the Statute
the Authority is without jurisdiction to review the Union's exceptions.
Rather, the grievant may seek judicial review of the Arbitrator's award
pursuant to 5 U.S.C. 7703.
Accordingly, and apart from other considerations, the Union's
exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 38; FLRA O-AR-741; June 29, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusions
1651.05 Suspension for More than 14 Days
DIGEST NOTES
As the Authority is without jurisdiction to review exceptions where
the arbitrator's award relates to the suspension of a grievant for more
than 14 days, a matter covered by 5 U.S.C. 7512, and as review of an
arbitration award relating to such matters must be obtained pursuant to
5 U.S.C. 7703, the Authority dismissed the exceptions.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3882
and
FEDERAL PRISON SYSTEM,
RAY BROOK, NEW YORK
Case No. O-AR-741
This matter is before the Authority on exceptions to the award of
Arbitrator Dale S. Beach filed on behalf of the Activity by the
Department of Justice (the Agency) under section 7122(a) of the Federal
Service Labor-Management Relations Statute and section 2425.1 of the
Authority's Rules and Regulations. For the reasons set forth below, the
Authority is without jurisdiction to review the Agency's exceptions and
they must be dismissed on that basis.
In the instant case, the Arbitrator found that the grievant's removal
was not for just and sufficient cause and accordingly, as his award,
reduced the discipline to a 60-day suspension and ordered the grievant
reinstated.
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).
The matters described in section 7121(f) of the Statute include those
covered under 5 U.S.C. 7512 which applies to specified adverse actions,
including removals and suspensions for more than 14 days. Pursuant to
section 7121(f), review of an arbitration award relating to such matters
must be obtained in accordance with 5 U.S.C. 7703, i.e., in the same
manner and under the same conditions as judicial review of a final
decision of the Merit Systems Protection Board.
Since the Arbitrator's award relates to a matter covered by 5 U.S.C.
7512 under section 7122(a) of the Statute the Authority is without
jurisdiction to review the Agency's exceptions. Rather, the Agency may
seek judicial review of the Arbitrator's award pursuant to 5 U.S.C.
7703.
Accordingly, and apart from other considerations, the Agency's
exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 37; FLRA O-AR-726; June 29, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1500. Review of Arbitration Awards
1551. Eligibility to Assert Exceptions
1552. Time Limits for Filing Exceptions
DIGEST NOTES
The Authority dismissed the union's exceptions because they were
untimely filed.
Only parties in the proceeding before the arbitrator are entitled to
file exceptions to the arbitrator's award with the Authority. Since the
grievant did not participate as a "party" in the proceeding before the
arbitrator, she was not entitled to file an exception.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
and
SOCIAL SECURITY ADMINISTRATION
Case No. O-AR-726
This case is before the Authority on exceptions to the award of
Arbitrator James V. Altieri filed by the grievant 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
reasons stated below, it has been determined that the exceptions must be
dismissed.
The Arbitrator's award is dated January 24, 1984, and appears to have
been served on the parties, i.e., the Union and the Agency, by mail on
the same day.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1(b) 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 with the Authority no
later than the close of business on February 27, 1984. However, the
exceptions were not filed until February 28, 1984. Therefore, the
exceptions were untimely filed.
Moreover, it is well-established that under the Authority's Rules and
Regulations only the parties in the proceeding before the arbitrator are
entitled to filed exceptions to the arbitrator's award with the
Authority. /3/ Since it appears that the grievant did not participate
as a "party" in the proceeding before the Arbitrator, she was not
entitled to file the instant exceptions.
Accordingly, the exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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/ Social Security Administration, Headquarters Bureaus and Offices
in Baltimore and SSA Local 1923, American Federation of Government
Employees, AFL-CIO, 2 FLRA 37 (1979).
15 FLRA 36; FLRA O-AR-675; June 29, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limit for Filing Exceptions
DIGEST NOTES
Where the parties requested clarification of an arbitrator's award
and the arbitrator in his clarification essentially found that the
agency had misinterpreted the award and, additionally, provided some
further explanation of the intent of the remedy that had been ordered
but did not modify it, the Authority found that the agency was
essentially seeking review of the original award. Consequently, since
the agency's exceptions were untimely filed and as the Authority is not
empowered to extend or waive the time limit for filing exceptions to
arbitrators' awards, the Authority dismissed the exceptions.
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
KELLY AIR FORCE BASE, TEXAS
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1617
Case No. O-AR-675
This case is before the Authority on exceptions to the award of
Arbitrator Joe D. Woodward filed by the Department of the Air Force (the
Agency) on behalf of the Activity 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 reasons stated below, it
has been determined that the Agency's exceptions must be dismissed as
untimely filed.
The Arbitrator's award in this case is dated June 14, 1983, and
appears to have been served on the parties by mail on the same day. A
dispute subsequently arose concerning the Agency's compliance with a
portion of the award. In September 1983, the parties requested
clarification of that part of the award from the Arbitrator. The
Arbitrator responded on October 28, 1983, stating, among other things,
that it appeared that his June 14 award was clear, concise and not open
to misinterpretation and rejecting the Agency's interpretation of the
disputed portion of the award. However, the Arbitrator also provided
further explanation of the intent of the remedy he had ordered. The
Agency then filed the instant exceptions with the Authority on November
28, 1983.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1(b) 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 of June 14, 1983 had to be filed with the Authority
by the close of business on July 18, 1983. Thus, it immediately and
clearly appears that the exceptions filed by the Agency on November 28,
1983 are untimely. However, the Agency asserts that since its
exceptions were filed within 30 days of the date of the Arbitrator's
clarification they should be considered timely.
As the Agency recognizes, the Authority has held in the particular
circumstances of a case where the arbitrator, in response to a
clarification request, modified his award in such a way as to give rise
to alleged deficiencies, that the time limit for filing exceptions began
with the modified award. /3/ In this case, however, it is clear that in
his clarification of October 28 the Arbitrator did not modify his award
of June 14, 1983 so as to give rise to the deficiencies alleged in the
Agency's exceptions. Rather, as indicated above, the Arbitrator
essentially found that the Agency has misinterpreted the award and while
he provided some further explanation of the intent of the remedy that
had been ordered, he did not modify it. Thus, the Agency in essence is
seeking Authority review of the June 14, 1983 award and the exceptions
filed on November 28, 1983 therefore are clearly untimely.
Accordingly, the Agency's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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/ U.S. Department of the Interior, Bureau of Land Management,
Eugene District Office and National Federation of Federal Employees,
Local 1911, 6 FLRA 401, 403 n.2 (1981).
15 FLRA 35; FLRA O-NG-679; June 29, 1984.
DIGEST HEADINGS
2500. NEGOTIABILITY: PROCEDURE
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
DIGEST NOTES
Where the agency withdrew its allegation of nonnegotiability
concerning the union's proposal's, there was no longer an issue as to
whether the proposal is within the parties' duty to bargain.
Accordingly, the Authority dismissed the petition for review.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 31st COMBAT
SUPPORT GROUP, HOMESTEAD
AIR FORCE BASE, FLORIDA
Case No. O-NG-679
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
From the submissions of the parties, the record before the Authority
in this case indicates that during the course of negotiations, the Union
submitted a proposal that the Agency's proposed Civilian Potential
Appraisal System not be implemented. The Agency alleged the Union's
proposal to be nonnegotiable. The Union then sought the Authority's
determination, pursuant to section 7117(a) of the Statute and section
2424.1 of the Authority's Rules and Regulations, as to whether the
disputed proposal was within the duty to bargain. Subsequently, in a
letter dated May 11, 1984, the Agency withdrew, "without prejudice to
future cases," its allegation of nonnegotiability.
Since the Agency has withdrawn its allegation concerning the Union's
proposal, there is no longer an issue as to whether the proposal is
within the parties' duty to bargain under the Statute.
Accordingly, and apart from other considerations, IT IS HEREBY
ORDERED that the instant petition for review be dismissed.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler,
Director, Case Management
15 FLRA 34; FLRA O-NG-700; June 29, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the duty to bargain. Accordingly, the
Authority dismissed the union's petition for review.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 3245th AIR
BASE GROUP, HANSCOM AIR
FORCE BASE, MASSACHUSETTS
Case No. O-NG-700
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
From the submissions of the parties, the record before the Authority
in this case indicates that during the course of negotiations, the Union
submitted a proposal that the Agency's proposed Civilian Potential
Appraisal System not be implemented. The Agency alleged that Union's
proposal to be nonnegotiable. The Union then sought the Authority's
determination, pursuant to section 7117(a) of the Statute and section
2424.1 of the Authority's Rules and Regulations, as to whether the
disputed proposal was within the duty to bargain. Subsequently, in a
letter dated May 11, 1984, the Agency withdrew, "without prejudice to
future cases," its allegation of nonnegotiability.
Since the Agency has withdrawn its allegation concerning the Union's
proposal, there is no longer an issue as to whether the proposal is
within the parties' duty to bargain under the Statute.
Accordingly, and apart from other considerations, IT IS HEREBY
ORDERED that the instant petition for review be dismissed.
Issued, Washington, D.C., June 29, 1984
Harold D, Kessler,
Director, Case Management
15 FLRA 33; FLRA O-AR-777; June 29, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1500. Review of Arbitration Awards
1552. Time Limits for Filing Exceptions
DIGEST NOTES
The Authority dismissed the union's exceptions because they were
untimely filed.
U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF CONSOLIDATED
SOCIAL SECURITY ADMINISTRATION LOCALS
Case No. O-AR-777
This case is before the Authority on exceptions to the award of
Arbitrator John S. Herrick filed by 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 reasons stated
below, it has been determined that the Agency's exceptions must be
dismissed as untimely filed.
The Arbitrator's award in this case is dated April 9, 1984, and
appears 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(b) 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 with the Authority no
later than the close of business on May 14, 1984. However, the Agency's
exceptions were not filed until May 17, 1984.
Accordingly, as the Agency's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
(ORDER GRANTING MOTION FOR
RECONSIDERATION OF 7 FLRA
No. 13)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2782
and
DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS,
WASHINGTON, D.C.
Case No. O-NG-352
7 FLRA No. 13
This case is back before the Authority pursuant to the Union's motion
for reconsideration of the Authority's May 11, 1984, Decision and Order
on Remand in American Federation of Government Employees, AFL-CIO, Local
2782 and Department of Commerce, Bureau of the Census, Washington, D.C.,
7 FLRA No. 13 (1983), petition for review granted, 702 F.2d 1183 (D.C.
Cir. 1983).
The Authority has determined, pursuant to section 2429.17 of its
Rules and Regulations, that the motion should be, and it hereby is,
granted so that the Authority may consider the Union's "Supplementary
Statement of Position" which was submitted pursuant to section 2429.26
of the Rules and Regulations. Further, pursuant to section 2429.26, the
Bureau of the Census is granted 15 days from the date of this Order to
file a response to the Union's supplementary statement of position,
attached to its motion for reconsideration, stating in full any response
which it wishes the Authority to consider.
Finally, pursuant to section 2429.17 of the Rules and Regulations,
the Authority's Decision and Order on Remand is hereby stayed pending
completion of the proceeding on remand.
Issued, Washington, D.C., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE,
FEDERAL PRISON SYSTEM, FEDERAL
CORRECTIONAL INSTITUTION,
ASHLAND, KENTUCKY
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS,
LOCAL 1286
Case No. O-AR-614
This matter is before the Authority on exceptions to the award of
Arbitrator Frank A. Keenan filed by the Activity 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 Activity 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 Activity's exceptions are denied.
Issued, Washington, D.C., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Brazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE,
1947th ADMINISTRATIVE SUPPORT GROUP
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES - GRAPHIC ARTS INTERNATIONAL
UNION, COUNCIL OF HEADQUARTERS, USAF
LOCALS, AFL-CIO
Case No. O-AR-713
This matter is before the Authority on exceptions to the award of
Arbitrator Millard Cass 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., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
and
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON,
LOCAL 916
Case No. O-AR-730
This matter is before the Authority on exceptions to the award of
Arbitrator Ross Groshong 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., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, BOSTON REGION,
BOSTON, MASSACHUSETTS
and
LOCAL 1164, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
Case No. O-AR-733
This matter is before the Authority on exceptions to the award of
Arbitrator Frank S. McDonnell, Jr. 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., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12
and
U.S. DEPARTMENT OF LABOR
Case No. O-AR-739
This matter is before the Authority on exceptions to the award of
Arbitrator Paul J. Fasser, Jr. 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., June 22, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
Case No. O-AR-740
This matter is before the Authority on exceptions to the award of
Arbitrator Robert H. Mount 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., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF AIR FORCE, HEADQUARTERS
WARNER ROBINS AIR LOGISTICS CENTER (AFLC),
ROBINS AIR FORCE BASE, GEORGIA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
Case No. O-AR-746
This matter is before the Authority on exceptions to the award of
Arbitrator Marvin A. Griffin 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., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION V
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3400
Case No. O-AR-747
This matter is before the Authority on exceptions to the award of
Arbitrator James P. Martin 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., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
HEADQUARTERS XVIII AIRBORNE
CORPS AND FORT BRAGG
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1770
Case No. O-AR-750
This matter is before the Authority on exceptions to the award of
Arbitrator Herbert V. Rollins 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., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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).
15 FLRA 32; FLRA O-NG-803; June 29, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
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 proposal is within the duty to bargain. Accordingly, the
Authority dismissed the union's petition for review.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2840, AFL-CIO
and
U.S. AIR FORCE, BLYTHEVILLE
AIR FORCE BASE, BLYTHEVILLE,
ARKANSAS
Case No. O-NG-803
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record before the Authority indicates that during the course of
negotiations between the Activity and the Union, the Activity alleged a
Union proposal concerning the use of the Agency's proposed Civilian
Potential Appraisal System in personnel actions involving bargaining
unit employees was nonnegotiable. The Union then sought the Authority's
determination, pursuant to section 7117 of the Statute and section
2424.1 of the Authority's Rules and Regulations, as to whether the
disputed proposals were within the duty to bargain. Subsequently, in a
letter dated May 11, 1984, the Agency withdrew, "without prejudice to
future cases," the Activity's allegation of nonnegotiability.
Since the Agency has withdrawn the allegations concerning the Union's
proposal, there is no longer an issue as to whether the proposal is
within the parties' duty to bargain under the Statute.
Accordingly, and apart from other considerations, the Union's
petition for review is hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 29, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 31; FLRA O-AR-652; June 28, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1500. Review of Arbitration Awards
1552. Time Limits for Filing Exceptions
DIGEST NOTES
The Authority dismissed the union's exceptions because they were
untimely filed.
DEPARTMENT OF THE ARMY,
U.S. ARMY TROOP SUPPORT AGENCY
AND FORT LEE, VIRGINIA
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1178
Case No. O-AR-652
This case is before the Authority on exceptions to the award of
Arbitrator James C. Oldham filed on behalf of 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 reasons stated below, it has been determined that the Union's
exceptions must be dismissed as untimely filed.
The Arbitrator's award in this case is dated September 3, 1983, and
appears to have been served on the Union by mail on the same day.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1(b) 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 with the Authority no
later than the close of business on October 7, 1983. However, the
Union's exceptions were not filed until October 14, 1983.
Accordingly, as the Union's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 28, 1984
Harold D. Kessler, Director, Case
Management
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 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).
15 FLRA 30; FLRA O-AR-491; June 27, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1400. Arbitrability
1650. No Basis for Review
1652.01 Disagreement with Arbitrator's Reasoning
DIGEST NOTES
The dispute in this matter concerned the grievance procedure of the
parties' collective bargaining agreement negotiated under the Order and
the scope of that procedure. The arbitrator determined that: (1) the
agency had not violated the parties' agreement; (2) that the grievance
procedure of the parties' agreement negotiated under the Order applied;
and (3) the Union's allegation of a violation of the Statute was not
covered by that procedure and was accordingly not arbitrable. In its
first exception, the union contended that the award is deficient to the
extent that the arbitrator found the grievance not to be arbitrable.
The Authority found that this exception constituted disagreement with
the arbitrator's interpretation and application of the collective
bargaining agreement and consequently provided no basis for finding the
award deficient. In its second exception, the union contended that the
award, to the extent that the grievance was found not to be arbitrable
is contrary to Sec. 7121 of the Statute. The Authority found that this
exception failed to establish that the award is contrary to the Statute
as the arbitrator ruled that the grievance procedure negotiated under
the Order and not the procedure negotiated under the Statute applied to
this matter. Therefore, no provision of the Statute would make an
otherwise nonarbitrable matter subject to arbitration.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2600
and
GENERAL SERVICES ADMINISTRATION,
REGION 10
Case No. O-AR-491
This matter is before the Authority on exceptions to the award of
Arbitrator John H. Abernathy 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. /1/
The grievance in this matter was filed in May 1981 under the parties'
collective bargaining agreement, which had been negotiated under
provisions of Executive Order No. 11491 (the Order), claiming a
violation of the agreement and a violation of section 7116(a)(5) and (8)
of the Statute by the Activity in its denial of official time. The
grievance was submitted to arbitration and heard by the Arbitrator in
November 1982 at which time the Arbitrator noted two significant events:
the execution of a new collective bargaining agreement by the Agency
and Union in May 1982 and the signing by the Agency and Union of a
memorandum of understanding in September 1982 respecting the processing
of grievances filed prior to the new collective bargaining agreement.
The Arbitrator also noted the argument of the Activity that the
grievance was not arbitrable to the extent it claimed a violation of the
Statute. It was the Activity's position that the grievance procedure of
the parties' collective bargaining agreement negotiated under the Order
applied in this case and the scope of that procedure was limited to the
interpretation and application of that agreement. As his award the
Arbitrator determined that the Activity had not violated the agreement.
He further essentially determined in agreement with the Activity that
the grievance procedure of the parties' agreement negotiated under the
Order applied and that the Union's allegation of a violation of the
Statute was not covered by that procedure and was accordingly not
arbitrable.
In its first exception the Union contends that the award is deficient
to the extent that the Arbitrator found the grievance not to be
arbitrable. The Union argues that the intent of the parties in the
memorandum of understanding was to bring all pending grievances under
the broad-scope of the Statute. This exception, however, merely
constitutes disagreement with the Arbitrator's interpretation and
application of the collective agreement of the parties to find otherwise
and consequently provides no basis for finding the award deficient. See
Letterkenny Army Depot and National Federation of Federal Employees,
Local 1429, 5 FLRA 272 (1981).
In its second exception the Union contends that the award to the
extent that the grievance was found not to be arbitrable is contrary to
section 7121 of the Statute. In support the Union again argues that the
grievance procedure of the collective bargaining agreement negotiated
under the Statute applied and that consequently the award imposes a
reduction in the scope of that procedure in violation of section 7121.
The Authority concludes that this exception fails to establish that
the award is contrary to the Statute. As has been noted, the Arbitrator
ruled that the grievance procedure negotiated under the Order and not
the procedure negotiated under the Statute applied to this matter. In
these circumstances the Authority has expressly determined that no
provision of the Statute would make an otherwise nonarbitrable matter
subject to arbitration. Veterans Administration Hospital, Muskogee,
Oklahoma and American Federation of Government Employees, Local 2250, 12
FLRA No. 90 (1983).
Accordingly, the exceptions are denied.
Issued, Washington, D.C., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Activity filed an opposition which was untimely and has not
been considered.
15 FLRA 29; FLRA 7-CU-20004; June 27, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3150. Representation Unit Determination
3153. Special Situations
3153.15 Reorganization
DIGEST NOTES
As a result of a reorganization, the attorneys and attorney support
personnel who performed the Agency's Enforcement Division work and the
job function were transferred from the Regional Office of the Agency
which was subject to the control and direction of the Regional
Administrator, to the Agency's Office of the Regional Counsel of the new
Office of Legal Enforcement Counsel (OLEC) which is subject to the
control and direction of the Agency's General Counsel in Washington,
D.C. The Authority found that when the attorneys and the support
personnel were transferred, they ceased to share a community of interest
with their former units consisting of professional and nonprofessional
employees of various regions that are represented by the petitioning
labor organization. Whereas, prior to the reorganization, the employees
were intermingled with other regional employees, after the
reorganization the staff was consolidated into a contiguous area on the
one floor in an Agency office that was separate and distinct from the
Regional Office employees. Also the attorneys and support personnel are
assigned tasks which they had not performed prior to the reorganization.
The determination and administration of personnel policies, practices
and matters affecting the working conditions of unit employees for
Regional employees have remained with the discretion of the Regional
Administrator whereas the Regional Counsel is the chief management
official with such powers for Regional Counsel employees. In the event
of a reduction-in-force, there is no overlap between the competitive
areas for the Regional Office employees and the employees of the Office
of the Regional Counsel.
ENVIRONMENTAL PROTECTION AGENCY
REGION VIII, DENVER, COLORADO
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3607, AFL-CIO
Case No. 7-CU-20004
Upon a petition duly filed with the Authority under section
7111(b)(2) of the Federal Service Labor-Management Relations Statute
(the Statute), a hearing was held before a hearing officer of the
Authority. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon consideration of the entire record, including the parties'
contentions, the Authority finds: Petitioner American Federation of
Government Employees, AFL-CIO (AFGE) represents consolidated units of
professional employees and nonprofessional employees of the
Environmental Protection Agency (EPA). The professional unit
encompasses all eligible professional employees of EPA at 1819 Pershing
Road, Chicago, Illinois; in Region VIII; and in the Raleigh, Durham,
Chapel Hill area of the National Environmental Research Center, Triangle
Park, North Carolina. The unit of nonprofessional employees includes
eligible nonprofessionals at EPA Headquarters; at Regions I, II, III,
V, and VIII; and at certain other EPA locations and offices. AFGE
Local 3607 represents the components of these consolidated units at
Regional VIII in Denver, Colorado. The petition seeks to clarify
whether the units at Region VIII, and therefore the consolidated units,
should encompass the professional employees and nonprofessional
employees who are employed within the Office of Regional Counsel in
Denver.
The petition was filed in connection with a reorganization of EPA's
legal functions. As initiated in 1981 and implemented in 1982, the
Agency's Enforcement Division, which was concerned with cases brought
against polluting sources under environmental statutes, was abolished.
At EPA headquarters, the Enforcement Division's legal functions were
absorbed by a new Office of Legal and Enforcement Counsel (OLEC) headed
by the Agency's General Counsel. The offices of the Enforcement
Division in the EPA's ten Regions, which included "sections" and
"branches," were also abolished. The attorneys and attorney support
personnel who performed the Enforcement Division's legal work were all
transferred from the Regional Offices to the Offices of Regional
Counsel.
Prior to these changes, the attorneys and attorney support personnel
(including clericals and paralegals) in each Region's Enforcement
Division were considered employees of the Regions. They reported to and
were subject to the control and direction of office supervisors and
managers who in turn were subject to the control and direction of the
Regional Administrators. Separate Offices of Regional Counsel existed
in each Region staffed by attorneys who served as counsel to the
Regional Administrators. When transferred to the Offices of Regional
Counsel, the former Enforcement Division attorneys and attorney support
personnel reported to and were subject to the control and direction of
the Regional Counsels, who were subject to the control and direction of
the General Counsel in Washington, as head of the OLEC. They became
employees of the OLEC in Washington with duty stations at their regional
locations and were no longer considered employees of the Regions.
These developments were implemented in stages at EPA during 1982. In
January 1982, the offices of the Enforcement Division at Region VIII
were abolished and the legal functions of the Division were absorbed by
the Office of Regional Counsel. The attorneys and one paralegal who
performed these functions were initially detailed to the Office of
Regional Counsel. Other personnel of the Enforcement Division's offices
were transferred to other offices of Region VIII. In or around June
1982, before the petition was filed, the legal personnel from Region
VIII were formally transferred to the Office of Regional Counsel in
Denver and formally became employees of the OLEC.
The employees who were transferred to the Office of Regional Counsel
in Denver had been part of the Petitioner's consolidated bargaining
units when they were employees of the Regional Office in the Enforcement
Division. The attorneys were in the professional unit and the paralegal
was in the nonprofessional unit. Employees of the Office of Regional
Counsel was not included in the units. /1/ The petition, which is
opposed by the EPA, seeks to clarify the professional and
nonprofessional units so as to include the eligible employees of the
Office of the Regional Counsel in Denver.
For the reasons indicated below, the Authority finds that when the
attorneys and the paralegal were transferred to the Office of Regional
Counsel and became employees of the OLEC, they ceased to be included in
the units. No other attorneys or attorney support personnel remained
employees of the Regional Office under the control and direction of its
chief management official, the Regional Administrator. When the
attorneys and the paralegal had been employees of the Enforcement
Division, they were intermingled with other Region VIII employees.
However, after the reorganization and their transfer to the OLEC and the
Office of Regional Counsel, the Regional Counsel's enlarged staff
(including the transferred employees) was consolidated into a contiguous
area on the ninth floor of the Agency's office space in Denver separate
and distinct from the Regional Office employees.
From the time that the attorneys were detailed to the Office of
Regional Counsel, the Regional Counsel and the succeeding Acting
Regional Counsel integrated them into the office's work. While the
attorneys continued to perform enforcement functions in particular
"media" areas such as air pollution or the control of solid wastes,
their work in the Office of Regional Counsel became diversified across
media areas. They were also assigned tasks which had been performed by
the Office of Regional Counsel before the reorganization, providing
advice to the Regional Office on proposed regulations, reviewing state
environmental programs, dealing with Indian affairs, and providing
advice on personnel and labor-management relations matters. Their new
duties do not comport with their Enforcement Division position
descriptions and, accordingly, at the time of the hearing, new position
descriptions were being prepared under the direction of the Acting
Regional Counsel. The paralegal's transfer to the Office of Regional
Counsel also involved a change in duties. Within the Enforcement
Division, she worked on cases and performed legal research. In the
Office of Regional Counsel, her duties are predominantly in the areas of
docketing and case tracking. Her position description in the
Enforcement Division is no longer accurate for her duties in the Office
of Regional Counsel.
For personnel and labor-management relations matters, the chief
management official for these personnel when they were employed in the
Enforcement Division was the Regional Administrator. Although the level
of recognition for the consolidated units is at the national level,
those parties have delegated substantial responsibilities to their
respective local representatives for labor-management relations matters.
Accordingly, the determination and administration of personnel
policies, practices and matters affecting the working conditions of unit
employees in Region VIII have remained within the discretion of the
Regional Administrator. This discretion includes the authority to
decide grievances under negotiated grievance procedures at the final
step before arbitration. For the employees of the Office of Regional
Counsel, the chief management official is the Regional Counsel, who has
decision-making authority in matters such as adverse actions,
discipline, the assignment of training, leave approvals, performance
appraisals, position descriptions, promotions, incentive awards, travel
orders and similar matters. While Region VIII's personnel office
provides personnel assistance to the Office of Regional Counsel, this
service is ministerial and technical in nature and analogous to services
provided by a host organization to a tenant. In addition, whereas the
Regional Administrator did have some administrative control over the
budget of the Office of Regional Counsel before the reorganization,
thereafter the Regional Counsels have been given separate budget
authority. In the event of a reduction-in-force, there is no overlap
between the competitive areas for the Regional Office employees and the
employees of the Office of Regional Counsel in Denver.
Based on the above, it has not been shown that the employees of the
Office of Regional Counsel in Denver share a clear and identifiable
community of interest with Region VIII's employees so that they should
be included in Petitioner's units. As regards the administrative,
organizational and budgetary separation of Region VIII and the Office of
Regional Counsel, which predated and was reinforced by the
reorganization, and in consideration of the previous separation of the
Office of Regional Counsel from Petitioner's bargaining units, it also
has not been shown that inclusion of employees of the Office of Regional
Counsel in such units would promote effective dealings or efficiency of
the Agency's operations. Accordingly, the petition, which seeks to
accomplish that result, does not meet the criteria set forth in section
7112(a)(1) of the Statute /2/ and must be dismissed.
IT IS ORDERED that the petition in case No. 7-CU-20004 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 27, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ At the beginning of the hearing, the parties stipulated that
employees of the Office of Regional Counsel historically had not been
considered as being part of either unit. Late in the hearing, the
Petitioner contended that the stipulation was incorrect. The hearing
officer permitted the Petitioner to proffer documentary support and
testimony to this effect, but refused to amend the stipulation. Based
on a review of the record in its entirety, the Authority concludes,
consistent with the parties' stipulation, that the employees of the
Regional Counsel's Office have never been included in either unit.
/2/ Section 7112(a)(1) of the Statute provides:
Sec. 7112. Determination of appropriate units for labor
organization representation
(a)(1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in
order to ensure employees the fullest freedom in exercising the
rights guaranteed under this chapter, the appropriate unit should
be established on an agency, plant, installation, functional, or
other basis and shall determine any unit to be an appropriate unit
only if the determination will ensure a clear and identifiable
community of interest among the employees in the unit and will
promote effective dealings with, and efficiency of the operations
of, the agency involved.
15 FLRA 28; FLRA O-AR-657; June 27, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1550. Procedure
1552. Time Limit for Filing Exceptions
DIGEST NOTES
Neither the retention of jurisdiction by an arbitrator in order to
resolve questions or problems that might arise concerning the award nor
a party's request for clarification of an award and the mere possibility
of modification of the award by the arbitrator renders an award
interlocutory or extend the time limit for filing exceptions.
Consequently, since the agency's and the union's exceptions were
untimely filed and as the Authority is not empowered to extend or waive
the time limit for filing exceptions to arbitrators' awards, the
exceptions were dismissed.
PORTSMOUTH NAVAL SHIPYARD
and
FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Case No. O-AR-657
This case is before the Authority on exceptions to the award of
Arbitrator John P. McCrory separately filed on behalf of the Activity
and 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 reasons stated below, it has been
determined that the exceptions of both parties must be dismissed as
untimely filed.
The Arbitrator's award in this case is dated July 28, 1983, and
appears to have been served on the parties by mail on the same date. In
the award, the Arbitrator retained jurisdiction "for a period of 90 days
to resolve any issue which may arise with respect to this award." The
Activity submitted two requests for clarification and the Union
submitted one such request to the Arbitrator within the 90-day period.
On October 21, 1983, while those requests were pending before the
Arbitrator, the Activity filed its exceptions to the award with the
Authority. On October 25 and 26, 1983, the Arbitrator responded to the
parties' requests for clarification, essentially reiterating
determinations set forth in his July 28 award. The Union filed its
exceptions to that award with the Authority on November 23, 1983. The
Activity renewed its exceptions by submissions of November 9 and 25,
1983.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1(b) of the Authority's Rules and Regulations, as amended, /2/
which amendments are applicable to exceptions to arbitration awards
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 of July 28 had to be filed with the
Authority by the close of business on August 31, 1983. Thus, it
immediately and clearly appears that the exceptions filed by the
Activity on October 21, 1983, and by the Union on November 23, 1983, are
untimely. Indeed, the Union admits as much in its exceptions, advising
the Authority that it was only filing in the event the Authority
determined that the time limit had not expired. The Activity, however,
appears to take the position that its exceptions are timely because the
Arbitrator retained jurisdiction of the case for 90 days and the time
limit for filing exceptions did not begin to run at least until the
expiration of the retention period.
In arbitration cases that have come before the Authority, it is not
uncommon for an arbitrator to have retained jurisdiction for a period of
time to resolve questions or problems that might arise concerning the
award. However, retention for such purpose does not render an award
interlocutory or extend the time limit for filing exceptions. /3/ Nor
does a party's request for clarification of an award and the mere
possibility of modification of the award by the arbitrator render the
award interlocutory. /4/ The Authority has, however, held in the
particular circumstances of the case where an arbitrator, in response to
a clarification request, modifies the award in such a way as to give
rise to alleged deficiencies, the filing period begins with the modified
award. /5/ In this case, however, the Arbitrator did not modify his
award in any way as to give rise to the deficiencies alleged in the
parties' exceptions. Indeed, the Activity, in its submissions of
November 9 and 25, 1983, states that the Arbitrator's responses to the
parties' requests did not affect the basis upon which the Activity had
predicated its October 21, 1983, exceptions.
Thus, the time limit for filing exceptions to the Arbitrator's award
in this case began on the date the award was served on the parties,
i.e., July 28, 1983, and expired on August 31, 1983. The exceptions
filed by the Activity and the Union therefore are untimely.
Accordingly, the Activity's and Union's exceptions are hereby
dismissed.
For the Authority.
Issued, Washington, D.C., June 27, 1984
Harold D. Kessler, Director, Case
Management
/1/ Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
Stat. 47, 48 (1984)) to provide that the time limit 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/ See, Social Security Administration and American Federation of
Government Employees, Local 1164, AFL-CIO, 14 FLRA No. 70, n.1 (1984).
/4/ See, e.g., American Federation of Government Employees, AFL-CIO,
Local 1612 and U.S. Department of Justice, Bureau of Prisons, U.S.
Medical Center for Federal Prisoners, Springfield, Missouri, 6 FLRA 5
(1981).
/5/ U.S. Department of the Interior, Bureau of Land Management,
Eugene District Office and National Federation of Federal Employees,
Local 1911, 6 FLRA 401, 403 n.2 (1981).
15 FLRA 27; FLRA 5-CA-455, 5-CA-842; June 26, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4600. Refusal to Cooperate in Impasses Procedures and Decisions
4800. Otherwise Refuse to Comply with Statute
6500. UNFAIR LABOR PRACTICE: PROCEDURE
6800. Remedies
6810. For Agency Violations
7500. OFFICIAL TIME
DIGEST NOTES
The activity's refusal to implement an arbitration award rendered in
an ex parte interest arbitration proceeding which had been approved by
the Federal Service Impasses Panel as an appropriate procedure for
resolving the parties' negotiation impasse, constituted a violation of
Sec. 7116(a)(1), (6) and (8). Under Sec. 7122(a), either party to
interest arbitration may file exceptions to an arbitrator's award with
the Authority. Where a party seeks to challenge the propriety of an
arbitration award, the appropriate mechanism for doing so is through the
filing of exceptions to that award under the provisions of Sec. 7122(a).
Absent the timely filing of exceptions, the award becomes final and
binding and agencies are required to take such action as required by the
award. A failure to take the actions required by the award constitutes
noncompliance with Sec. 7122(b) and is therefore a violation of the
Statute. To allow a party which has not filed exceptions to an award to
defend its failure to implement that award in a subsequent unfair labor
practice proceeding on grounds that should have been raised as
exceptions to the award under Sec. 7122, would circumvent the procedures
provided in Sec. 7122(a) and frustrate Congressional intent with respect
to the finality of arbitration awards.
Under Sec. 7118(a)(7)(B) of the Statute, the Authority is empowered
to issue an order requiring that an agreement "be given retroactive
effect"; under Sec. 7118(a)(7)(D), to require "such other action as
will carry out the purpose of this chapter; under Sec. 7105(g)(3), to
require an agency to take any remedial action the Authority considers
appropriate to carry out the policies of the Statute. Accordingly, the
Authority required the activity to incorporate into the parties'
collective bargaining agreement the terms of the arbitration award
rendered in an ex parte interest arbitration proceeding which had been
approved by the Federal Service Impasses Panel, retroactive to the date
that the award became final and binding.
The Authority required the activity to grant official time pursuant
to Sec. 7131(a) to three employees who served as the union's
representatives in an ex parte interest arbitration proceeding which had
been approved by the Federal Service Impasses Panel. While Sec. 7131(a)
contains a limitation on the number of union representatives to be
authorized official time thereunder, the Authority concluded that it
would be inconsistent with the purposes and policies of the Statute if
the respondent's refusal to be represented at the foregoing proceeding
could be used as a basis to deny a reasonable number of union
representatives official time to which they could otherwise have been
entitled.
Pursuant to Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104
S.Ct. 439 (1983), the Authority concluded that the respondent did not
fail or refuse to comply with the provisions of Sec. 7131(a) by denying
travel and per diem expenses to employees who represented the union in
interest arbitration proceedings.
The Authority adopted the ALJ's conclusion that there is no basis for
a collateral attack on the jurisdiction of an arbitration panel in an ex
parte interest arbitration proceeding which had been approved by the
Federal Service Impasses Panel. (Footnote 1)
UNITED STATES AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
and
COUNCIL 214, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 5-CA-455
UNITED STATES AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case No. 5-CA-842
The Administrative Law Judge issued his Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaints, 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.
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, conclusions and recommended Order, as modified below.
The complaint in Case No. 5-CA-842 alleged a violation of section
7116(a)(1), (5), (6) and (8) of the Statute based upon the Respondent's
refusal to implement an arbitration award rendered in an ex parte
interest arbitration proceeding which had been approved by the Federal
Service Impasses Panel as an appropriate procedure for resolving the
parties' negotiation impasse. The Judge found that the Respondent's
noncompliance with the validly obtained arbitrator's award-- which he
concluded had become final and binding in the absence of duly filed
exceptions and was not subject to review in an unfair labor practice
proceeding-- constituted a per se violation of section 7116(a)(1), (5),
(6) and (8). The Judge also concluded, with regard to the complaint in
Case No. 5-CA-455, that the Respondent's refusal to grant official time
and travel and per diem to three employee representatives for their
attendance at the arbitration proceeding, pursuant to section 7131(a) of
the Statute, constituted a violation of section 7116(a)(1) and (8) of
the Statute.
The Authority finds, in agreement with the Judge, /1/ that the
Respondent's refusal to implement the arbitration award constituted a
violation of section 7116(a)(1), (6) and (8) of the Statute. As the
Judge noted, section 7122(a) of the Statute provides that either party
to an arbitration may file exceptions to an arbitrator's award with the
Authority. /2/ That Congress intended this procedure to apply to awards
rendered in interest arbitration proceedings, such as involved in the
instant case, was made clear by the following explanatory comments of
the House Committee on Post Office and Civil Service contained in its
Report accompanying H.R. 11280: /3/
Section 7122 sets forth the procedures under which a party may
obtain review by the Authority of an arbitrator's award. The
procedures apply in the case of either an award in an arbitration
resulting from an impasse proceeding under section 7119(b) . . .
or an award in a grievance proceeding under section 7121 . . . .
Congress further provided in section 7122(b) of the Statute that
where no exceptions to an award have been filed within a prescribed time
the award becomes final and binding and agencies are required to take
such actions as are necessary to implement the award. /4/
Consistent with the foregoing, the Authority finds that where a party
seeks to challenge the propriety of an arbitration award, the
appropriate mechanism for doing so, as Congress clearly intended, is
through the filing of exceptions to that award under the provisions of
section 7122(a) of the Statute. Where a party fails to avail itself of
this procedure within the allotted time period, the award becomes final
and binding and an agency is required to take such actions as are
required by the award. In such circumstances, a failure to take the
actions required by the award constitutes noncompliance with section
7122(b) and is therefore a violation of the Statute. To allow a party
which has not filed exceptions to an award to defend its failure to
implement that award in a subsequent unfair labor practice proceeding on
grounds that should have been raised as exceptions to the award under
section 7122, such as in this case, would circumvent the procedures
provided in section 7122 (a) and frustrate Congressional intent with
respect to the finality of arbitration awards. In this regard, as
stated by the Committee on Conference in its Report which accompanied
the bill ultimately enacted and signed into law: /5/
The House provides that if no exception to an arbitrator's
award is filed with the Authority, the award "shall be final and
binding" (section 7122(b)). The Senate contained no comparable
provision. The conferees adopted the House provision. The intent
of the House in adopting this provision was to make it clear that
the awards of arbitrators, when they become final, are not subject
to further review by any other authority or administrative body,
including the Comptroller General.
In the instant case, the Authority finds that the Respondent was
required to implement the award, which the Judge found was validly
obtained, and to which no exceptions had been filed within the period
prescribed in section 7122(b), and which therefore became "final and
binding" within the meaning of that provision of the Statute. The
Respondent's failure to do so thus constitutes a violation of section
7116(a)(1) and (8) of the Statute. See U.S. Army Health Clinic, Fort
Ritchie, Maryland, 9 FLRA 935 (1982). /6/ See also U.S. Soldiers' and
Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984) with regard to
when an arbitrator's award becomes "final and binding." The Authority
further finds that, inasmuch as the interest arbitration award in this
case resulted from the Federal Service Impasses Panel's granting the
parties' request to resolve their negotiation dispute through the use of
interest arbitration, the Respondent's refusal to comply with the award
constitutes a failure to cooperate with impasse procedures and decisions
in violation of section 7116(a)(6) of the Statute. /7/
To remedy the foregoing unfair labor practices, the Judge ordered the
Respondent, inter alia, to implement the terms of the interest
arbitration award retroactive to its effective date and to make the
Union and employees whole for any monetary losses suffered as a result
of Respondent's refusal to implement the award. The Respondent contends
that the Authority has no power to order such a remedy because it "would
be compelling agreement to terms which management has not agreed which
were established by a method that was not agreed to." In the Authority's
view, it will effectuate the purposes and policies of the Statute to
require the Respondent to incorporate the terms of the award in the
parties' agreement retroactive to the date that the award became final
and binding, subject to any agreement which may have been reached by the
parties concerning any matter contained in the award following its
issuance, and until modified in a manner consistent with the Statute.
In this connection, the Authority concludes that its wide discretion to
fashion appropriate remedies for violations of the Statute /8/
encompasses such a remedial order. This conclusion is further
buttressed by the fact that the Authority is empowered by section
7118(a)(7)(B) of the Statute to issue an order requiring that an
agreement "be given retroactive effect" in similar circumstances, and by
section 7118(a)(7)(D) to require "such other action as will carry out
the purpose of this chapter." Accordingly, the Judge's recommended Order
is adopted to this extent and shall be modified accordingly.
With respect to the complaint in Case No. 5-CA-455, the Judge found
that the refusal to grant official time and travel and per diem to the
three employees who were stipulated by the parties as having served at
the interest arbitration hearing as the Union's witnesses and designated
negotiators constituted a violation of section 7116(a)(1) and (8) of the
Statute, and that the employees should be made whole with respect
thereto. The Authority adopts the Judge's conclusion with respect to
the failure to grant officials time to the designated negotiators.
Thus, inasmuch as the interest arbitration proceeding was authorized by
the Federal Service Impasses Panel to resolve the parties' negotiation
impasse, the three employees serving as the Union's representatives were
entitled to official time pursuant to section 7131(a) of the Statute.
/9/ While section 7131(a) contains a limitation on the number of union
representatives to be authorized official time thereunder, the Authority
concludes that it would be inconsistent with the purposes and policies
of the Statute if the Respondent's refusal to be represented at the
foregoing proceeding could be used as a basis to deny a reasonable
number of Union representatives official time to which they would
otherwise have been entitled.
However, with regard to the Judge's further finding of a violation
based on the Respondent's refusal to grant the employees' requests for
travel and per diem expenses, the United States Supreme Court concluded
in Bureau of Alcohol Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983),
issued subsequent to the Judge's Decision herein, 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. Pursuant to that decision and
for the reasons set forth by the Court, the Authority concludes that the
Respondent did not fail or refuse to comply with the provisions of
section 7131(a) of the Statute by denying travel and per diem expenses.
Accordingly, that portion of the complaint shall be dismissed.
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse procedures and
decisions, and to implement a final offer arbitration award rendered on
May 20, 1980, by a panel authorized by the Federal Service Impasses
Panel.
(b) Failing and refusing to authorize and provide official time to
employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
their participation under section 7131(a) of the Statute as the
designated representatives of Council 214, American Federation of
Government Employees, AFL-CIO, their exclusive representative, at a
final offer arbitration proceeding.
(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 Statute:
(a) Incorporate the terms of the arbitration award which became final
and binding on June 19, 1980, into the collective bargaining agreement
between the Air Force Logistics Command and the American Federation of
Government Employees, AFL-CIO, subject to any agreement which may have
been reached by the parties concerning any matter contained in the award
following its issuance, and until modified in a manner consistent with
the Statute.
(b) Provide Union representatives Jack Stickradt, Jerre Harvard and
Donald Cook official time for the performance of their representational
duties on February 4 and 5, 1980, and make them whole for any annual
leave they may have utilized on those dates.
(c) 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 Commander, Air Force Logistics
Command, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to 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 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.
IT IS FURTHER ORDERED that the portion of the complaint in Case No.
5-CA-455 found not to have violated the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C., June 26, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to cooperate in impasse procedure and
decisions, and to implement a final offer arbitration award rendered on
May 20, 1980, by a panel authorized by the Federal Service Impasse
Panel.
WE WILL NOT fail or refuse to authorize and provide official time to
employees Jack Stickradt, Jerre Harvard and Donald Cook, as a result of
their participation under section 7131(a) of the Statute as the
designated representatives of Council 214, American Federation of
Government Employees, AFL-CIO, their exclusive representative, at a
final offer arbitration proceeding.
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 incorporate the terms of the award which became final and
binding on June 19, 1980, into our collective bargaining agreement with
the American Federation of Government Employees, AFL-CIO, subject to any
agreement which may have been reached concerning any matter contained in
the award following its issuance, and until modified in a manner
consistent with the Statute.
WE WILL provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them whole
for any annual leave they may have utilized on those dates.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 whose address is:
175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
whose telephone number is (312) 353-6306.
David W. Kerber, Esquire
For the Respondent
Janet Wachter
For the Charging Party
Gregory A. Miksa, Esquire
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of unfair labor practice charges filed on March 21, 1980, and December
1, 1980, with the Federal Labor Relations Authority. Consequently, on
December 11, 1980, the Acting Regional Director, Region V, of the
Authority issued a complaint alleging that Respondent violated Sections
7116(a)(1) and (8) of the Statute by failing or refusing to grant
official time, travel and per diem for employees designated by the Union
as negotiators and/or witnesses as a final offer arbitration hearing
held on February 4 and 5, 1980. Then, on January 26, 1981, the Regional
Director, Region V, of the Authority issued a complaint alleging that
since on or about June 19, 1980, Respondent has violated Sections
7116(a)(1), (5), (6), and (8) of the Statute by failing to negotiate in
good faith with the Union, failing to cooperate in impasses procedures
and decisions, and failing to implement a final offer arbitration
decision rendered on May 20, 1980, by a panel approved by the Federal
Service Impasses Panel. At the same time, these cases were consolidated
for hearing.
A hearing was held on March 19, 1981, in Dayton, Ohio. All parties
were afforded full opportunity to examine witnesses and to introduce
evidence. Post hearing briefs have been filed and considered. /10/
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions and
recommendations:
On January 13, 1978, the American Federation of Government Employees,
AFL-CIO (AFGE or the Union), was certified as the exclusive
representative of a consolidated unit of employees at the Air Force
Logistics Command (AFLC or Respondent). Negotiations began on the
collective bargaining agreement in June of that year and continued
throughout the summer. The Federal Mediation and Conciliation Service
(FMCS) was subsequently called to attempt to resolve certain outstanding
matters between the parties.
During the first week of October, 1978, the parties met in
Washington, D.C. with representatives of the FMCS who suggested that,
rather than submitting impassed matters to the Federal Service Impasses
Panel (FSIP), they resolve their contract differences by the novel use
of binding interest arbitration. The parties agreed to this approach
and they entered into a written agreement providing for a tripartite
panel (the Panel) to arbitrate disputed remaining issues in their
collective bargaining negotiations. FMCS transmitted this agreement to
FSIP for its authorization of the tripartite panel as a proper
alternative to direct FSIP consideration of impassed issues. On October
12, 1978, FSIP authorized this use of outside arbitration as requested.
The agreement, which was signed by the parties, witnessed by
Commissioners of the FMCS and approved by FSIP, provides, inter alia:
5. The arbitration panel shall decide only issues which are
negotiable. In the event of a dispute over negotiability, the
arbitration panel shall not presently decide such issue, but shall
retain jurisdiction pending determination of the negotiability of
that issue.
6. The arbitration panel shall have sole discretion to decide
questions of procedure.
8. The decision of the arbitration panel shall be the final
offer of one of the parties on each article, with no
modifications.
9. The decision of the arbitration panel shall be final and
binding on the parties, and further rights of appeal are hereby
waived by the parties except that all articles must be in
conformance with law and Executive Order.
Thereafter, the parties selected Robert J. Ables as chairman of the
tripartite arbitration panel, along with two other members. On November
2, 1978, the parties met with Mr. Ables. During that meeting, a
question was raised whether the term "issue", as used in the agreement,
equated with the term "article" or whether an "article" might contain
several "issues". This distinction became crucial in light of the
parties' next meeting with Mr. Ables on November 13, 1978, a meeting
which became the focus of this proceeding. The question raised at that
meeting was whether, as to matters reserved as nonnegotiable but later
found to be negotiable, there would be one or possibly two further
hearings which would follow the initial hearing on matters which were
immediately agreed to be negotiable.
Respondent's position at that November 13, 1978 meeting was that, in
view of paragraph 8 of the agreement which required a decision, up or
down on an entire article, it did not want to have piecemeal hearings on
any one article since it envisioned the possibility of choosing the
Union's proposal on one "issue" in an article and Respondent's position
on another "issue" within the same article. Respondent feared that such
a split on "issues" might result in two or more parts of an "article"
which did not necessarily mesh. Moreover, the AFLC knew that even if it
reserved an issue as nonnegotiable, its determination might be overruled
by the Department of Defense (DOD) which had the right to review that
determination. In addition, the Union had the right to appeal AFLC's or
DOD's nonnegotiability determination to the Federal Labor Relations
Council (the Authority's precursor). This raised the possibility that
after the Panel's initial hearing, DOD might find an "issue" negotiable
prior to the time that the Federal Labor Relations Council (or later,
the Authority) might rule on other "issues" contained in the same
"article". Again, AFLC did not want two hearings but sought, instead,
to have one hearing only after all "issues" had had their negotiability
finally determined. Respondent believes that it offered, and that the
Union accepted, a compromise which would allow the Panel to consider
part of an article, the part that was negotiable, at one hearing and
then, once after all the negotiability disputes were settled, there
would be one other hearing to rule on the items which had been declared
negotiable by DOD and the Federal Labor Relations Council.
On the other hand, the Union takes the position that no agreement was
reached at this November 13, 1978, meeting of the parties and Mr. Ables.
As will be covered in more detail below, Mr. Ables would later find
that no "meeting of the minds" took place at this meeting on the
question.
Two pieces of correspondence have some bearing on this November 13,
1978, meeting. On November 21, 1978, Respondent wrote to Mr. Ables "to
confirm our understanding of the procedures to be followed in our
interest arbitration as agreed upon at the conclusion of that meeting."
Paragraph 3 of the letter stated:
. . . Those issues which management declares nonnegotiable will
not be considered by the tripartite panel during the hearings
scheduled for 4-8 December 1978. The remaining negotiable
sections of those Union proposals and corresponding management
sections will be heard by the tripartite panel, and such residual
proposals shall be subject to a decision on an all or nothing
basis on each article . . .
Paragraph 5 contained the following:
Finally, the panel will retain jurisdiction over those issues
declared nonnegotiable by management which are subsequently found
to be negotiable by either the Department of Defense or the
Federal Labor Relations Council. A hearing on those issues found
to be negotiable will take place only after all outstanding
negotiability issues have been finally decided by either the
Defense Department or the Council (or its successor under Title
VII of the Civil Service Reform Act).
The Union representative wrote to Mr. Ables on November 29, 1978,
commenting on Respondent's letter of the 21st:
" . . . I do not disagree with most of the procedures outlined
in that letter. However, I am in disagreement with some of the
provisions stated in paragraph 4 of that letter.
Paragraph 4 of Respondent's letter did not concern the issue of
whether there should be more than one subsequent hearing after the
hearing scheduled to be held in December of 1978.
In the meantime, the parties exchanged final offers on November 17,
1978, and the AFLC declared certain union proposals nonnegotiable by
letter dated November 29, 1978.
Beginning on December 4, 1978, the parties appeared before the Panel
and presented testimony and arguments concerning issues agreed by both
parties to be negotiable as well as, and without objection by the AFLC,
negotiable portions of articles otherwise reserved as nonnegotiable. At
the close of the hearings, the parties adopted Mr. Ables' suggestion
that a scaled down negotiating team convene in his office rather than
the Panel deciding on either the Union's or the Employer's proposals.
As a result, all of the negotiable issues were settled by the parties
and no decision was rendered by the Panel.
On December 29, 1978, the Union requested an agency head
negotiability determination from the Department of Defense regarding the
proposals declared nonnegotiable by its subordinate command, the AFLC.
Not having received a response from DOD within the time limits under
rules of the Authority's predecessor, on April 5, 1979, the Union sought
Authority review of the declarations of nonnegotiability.
On May 2, 1979, the parties' basic collective bargaining agreement,
which contained matters settled after the close of the Panel hearing in
December, became effective. On May 17, 1979, DOD filed its position
paper with the Authority in which it upheld some, and overruled other
AFLC declarations of nonnegotiability.
Shortly after DOD reversed some of AFLC's declarations, the Union
requested Mr. Ables to reconvene the Panel to hear those issues declared
negotiable by DOD. On July 18. 1979, Mr. Ables wrote to Respondent
requesting a meeting of the parties on August 22 in order to discuss the
matter. Respondent wrote back on July 31 agreeing to the meeting but
opposing the Union's request for further hearings until all issues of
negotiability had been settled. All parties attended the meeting on
August 22 and thereafter furnished Mr. Ables with written statements of
their positions as to further hearings.
On October 24, 1979, Mr. Ables, with the concurrence of the Union
Panel member on November 2, 1979, rendered his determination of the
parties' dispute, granting the Union's request for a reopening of the
Panel's hearings on the issues declared negotiable by DOD and scheduling
those hearings to begin on December 3, 1979.
After receiving Mr. Ables' decision, Respondent took the position
that a material breach of the interest arbitration agreement had
occurred and that the breach had been supported by Mr. Ables. As a
result, on November 14, 1979, Respondent notified the Union, Mr. Ables,
and FSIP that it was rescinding the interest arbitration agreement and
would leave resolution of the remaining impasses to the FSIP.
On November 23, 1979, the Union wrote to FSIP asking it to reaffirm
the Panel's authority to proceed. Respondent forwarded its position on
December 7, 1979. FSIP communicated to the parties on December 18
stating that the case was closed and that therefore it was denying the
request to rule on the jurisdiction of the Panel and was not, itself,
reasserting jurisdiction over the matter.
In the meantime, Mr. Ables had written to the Authority requesting
that it make an expedited decision on the negotiability appeals pending
before it and which involved the parties. He requested the Authority to
rule by February 4, 1980, on all, or as many of the issues as possible
by that date because the Panel intended to begin hearings at that time.
The parties were sent copies of this correspondence. Mr. Ables referred
to this letter in his next communication to the parties on January 16,
1980, wherein he reiterated that hearings would commence on February 4
and that he was informed by the Authority that the parties could expect
a decision on the negotiability appeals before that date.
By letter dated January 28, 1980, Respondent notified Mr. Ables that
it did not consider the Panel to have any further authority, that it
would not participate in the hearing scheduled for February 4, and that
it would not consider binding any decision which might result from the
hearing.
On January 31, 1980, the Authority issued its negotiability decision
on all open issues in Case No. O-NG-40, Air Force Logistics Command and
American Federation of Government Employees, 2 FLRA No. 77.
On February 4 and 5, 1980, the Panel held hearings at which testimony
was adduced and evidence received. No representatives of Respondent
were present. However, Jack Stickradt, Jerre Harvard and Donald Cook,
all employees of Respondent, were in attendance at these hearings
serving as witnesses and designated negotiators on behalf of the Union
during the time they otherwise would have been in duty status on the
days the hearings were conducted. These employees, and the Union on
their behalf, requested of and were denied by Respondent official time,
travel and per diem for their attendance at those hearings. /11/
On March 6, 1980, Mr. Ables sent AFLC a copy of the transcript of the
proceedings conducted on February 4 and 5, and recommended that it file
a post hearing brief. The AFLC elected to return the transcript
disclaiming that it was a party. It filed no brief.
The Panel issued its decision on May 20, 1980. No exceptions to that
decision were filed. However, on June 16, 1980, the Union moved the
Authority to enforce the Panel's award. This motion was opposed by AFLC
on July 24, 1980. On December 1, 1980, the Union filed an unfair labor
practice charge in Case No. 5CA-842. On December 10, 1980, the
Authority issued its decision at 4 FLRA No. 96 denying the Union's
motion and ruling that the only appropriate forum for adjudicating an
allegation of refusal to implement the Panel's award is through the
unfair labor practice procedure. The Panel's award has not been
implemented by Respondent.
Timeliness of the charge in 5-CA-842
As the date the alleged unfair labor practice began, the General
Counsel selected June 19, 1980, which is 30 days after the Panel issued
its decision in the interest arbitration. This is within six months of
the charge which was filed by the Union on December 1, 1980. However,
Respondent urges three grounds upon which it believes that the charge
was not timely filed in accordance with Section 7118(a)(4)(A) of the
Statute. /12/
Relying on Machinists Local Lodge 1424 v. NLRB /13/, Respondent
argues that any finding of an unfair labor practice on June 19, 1980,
must be predicated on a determination of the lawfulness of its
"rescission" of the interest arbitration agreement in November of 1979,
and that, therefore, the charge should have been filed within 6 months
of November, 1979. I do not believe Machinists compels that conclusion
nor do I believe that the period of limitations began to run in November
1979.
In Machinists, the NLRB alleged that the execution of a collective
bargaining agreement containing a union security clause was an unfair
labor practice because the Union did not then represent a majority of
the employees covered by the agreement. It also alleged that the
continued enforcement of the agreement was a separate unfair labor
practice. The charges were filed 10 and 12 months after the execution
of the contract. The employer argued that the complaints were barred by
the limitations proviso of Section 10(b) of the National Labor Relations
Act, as amended, /14/ which is similar to Section 7118(a)(4)(A).
Although it was conceded that any unfair labor practice concerning the
execution of the collective bargaining agreement was time barred, the
Board contended that the parties' continued enforcement of the union
security clause within the limitations period was itself a violation and
that evidence as to the unlawful execution of the agreement was relevant
to the assessment of conduct within the 6 month period of limitation.
The Supreme Court agreed with the employer that since the illegality of
continued enforcement of the contract derived from the illegality of its
execution, which occurred outside the 6 month period of limitation, a
charge based on continued enforcement must be filed within the same
period, that is, 6 months from the date of execution. The Court stated:
. . . in applying rules of evidence as to the admissibility of
past events, due regard for the purposes of Sec. 10(b) requires
that two different kinds of situations be distinguished. The
first is one where occurrences within the six-month limitations
period in and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events may be
utilized to shed light on the true character of matters occurring
within the limitations period; and for that purpose Sec. 10(b)
ordinarily does not bar such evidentiary use of anterior events.
The second situation is where conduct occurring within the
limitations period can be charged to be an unfair labor practice
only through reliance on an earlier unfair labor practice. There
the use of the earlier unfair labor practice is not merely
"evidentiary", since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with
illegality that which was otherwise lawful. And where a complaint
based upon that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice. 45 LRRM at 3214-3215.
Respondent argues that the instant case falls within the second
situation cited by the Court and that the General Counsel "must rely on
the alleged unfair labor practice in November of 1979, to infuse with
illegality what otherwise is a legal act (i.e., refusing to comply with
an arbitration award to which you were not party). /15/ However, the
two cases are not similar. Here, Respondent's conduct in November,
1979, is not alleged to constitute an unfair labor practice. The only
conduct complained of is the refusal, from and after June 19, 1980, to
implement the decision of the Panel. While Respondent may argue that
the events of November, 1979, are relevant to its defense against the
charge, /16/ evidence of such events is not prerequisite to sustaining
the charge. Clearly, the conduct alleged on June 19, 1980, in and of
itself might constitute an unfair labor practice. The case at bar falls
within the first kind of situation cited in Machinists, not the second.
Respondent next argues that the charge is untimely in that, if the
interest arbitration award became binding at all, it did so on May 20,
1980, since the interest arbitration agreement provides for no right of
appeal. However, paragraph 9 of the agreement cannot be construed as a
complete waiver of appeal rights. It states that the decision of the
Panel shall be final and binding on the parties and that further rights
of appeal are waived "except that all articles must be in conformance
with law and Executive Order." In order to give those words any meaning,
that paragraph must be construed to afford some sort of appeal, albeit a
limited one. This paragraph foreshadowed Section 7122 of the Statute in
that it merely provided that the decision of the Panel would be final
and binding in the absence of exceptions on certain grounds.
Similarly, Section 7122(a)(1) of the Statute provides, as a standard
of review, the inquiry whether an award is "contrary to any law, rule,
or regulation"; and Section 7122(b) provides that if no exceptions are
filed within 30 days, the arbitrator's award "shall be final and
binding". The provisions of the interest arbitration agreement are not
inconsistent with those of the Statute. The Panel's award was not
binding at least until the passage of thirty days from the date of its
issuance.
I conclude that the charge in Case No. 5-CA-842 was timely filed and,
having done so on the basis of the discussion above, I need not reach
the question whether the period of limitations was tolled by the Union's
motion to the Authority for enforcement of the Panel's award.
Collateral attack on the Panel's jurisdiction
In order to reach questions concerning rights of the parties at
various times preceding the date of the instant charges, the question
whether the jurisdiction of the Panel may be subject to collateral
attack must be resolved. I am persuaded that, on the facts of this
case, a collateral attack may not be made. /17/
Respondent argues that the common law applies to the interest
arbitration agreement reached in the fall of 1978 and not the body of
federal law spawned by the Supreme Court's decision in Textile Workers
Union v. Lincoln Mills of Ala. /18/ Even assuming that that argument is
tenable, the common law does not support Respondent's argument that it
may collaterally attack the Panel's jurisdiction and, from there, argue
that it had a right to withdraw from the interest arbitration agreement
at any time prior to the award. Both parties voluntarily submitted
their disputes to the Panel. Both participated to the extent of
appearing at hearings in December of 1978 and thereafter reaching
agreement on numerous contractual provisions. No question of the
Panel's jurisdiction arose until the summer of 1979 when the Union
requested hearings on issues declared negotiable by DOD. The question
of jurisdiction was raised at the meeting of the parties before Mr.
Ables in August of 1979 and the parties presented their views on the
matter in writing to him. In short, both parties had their "day in
court" on this question. Where the question of jurisdiction is raised
and litigated by the parties, the judgment should be conclusive as
between them and should preclude collateral attack. See, Stoll v.
Gottlieb, 305 U.S. 165 (1938). A contractual provision that findings of
a third party shall be final and conclusive on the parties is valid and
enforceable unless impeached on grounds of fraud or such gross mistake
to imply bad faith. See, United States v. Moorman, 338 U.S. 457, 461
(1950). The record is devoid of such evidence. The allegation of a
material breach on the part of the Union /19/ is not grounds for
allowing a collateral attack. As the Court stated in Rochdale Village,
Inc. v. Public Service Emp., Etc.: /20/
While under principles of general contract law a material
breach may discharge the non-breaching party of all contractual
obligations, see, Restatement of Contracts, Sec. 397, the strong
presumption of arbitrability in the labor relations area prevents
a breach-created discharge of the contractual duty to arbitrate
disputes arising "under" the contract.
Finally, paragraph 6 of the agreement specifically gave the Panel
"sole discretion to decide questions of procedure." Any question going
to the manner in which negotiable issues were to be decided was an issue
within the scope of the arbitration agreement and its resolution,
therefore, was for the arbitrator. Rochdale, supra. Respondent's
dissatisfaction with the resolution of that question could properly be
remedied only by filing exceptions to the decision of the Panel.
The unfair labor practice
Section 7122(a) of the Statute provides that exceptions to any
arbitrator's award may be filed by either party to the arbitration.
Section 7122(b) provides that:
If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period beginning
on the date of such award, the award shall be final and binding.
An agency shall take the actions required by an arbitrator's final
award. The award may include the payment of backpay (as provided
in section 5596 of this title).
The Statute, on its face, and the legislative history of this
provision make it clear that there is to be no distinction made between
grievance and interest arbitration. The section-by-section analysis of
the House of Representatives' version of the Statute noted:
Section 7122 sets forth the procedures under which a party may
obtain review by the Authority of an arbitrator's award. The
procedures apply in the case of either an award in an arbitration
resulting from an impasse proceeding under section 7119(b), as
added by the bill, or an award in a grievance proceeding under
section 7121, as added by the bill. /21/
That the merits of an arbitrator's award are not subject to review in
an unfair labor practice proceeding is the only conclusion to be drawn
from the following language of the Conference Committee during its
consideration of the Statute:
The House provides that if no exception to an arbitrator's
award is filed with the Authority, the award "shall be final and
binding" (section 7122(b)). The Senate contained no comparable
provision. The conferees adopted the House provision. The intent
of the House in adopting this provision was to make it clear that
the awards of arbitrators, when they become final, are not subject
to further review by any other authority or administrative body,
including the Comptroller General. /22/
The parties properly entered into binding interest arbitration under
the auspices of the FSIP and in accordance with the then extent
provisions of section 17 of Executive Order 11491. /23/ This use of
binding arbitration with approval of FSIP was carried over in Section
7119(b) of the Statute. /24/ As noted above, Section 7122(b) of the
Statute provides that once an arbitrator's award becomes final, an
agency shall take the actions required by the award. I conclude that
where, as here, the evidence demonstrates agency noncompliance with a
validly obtained arbitrator's award which has become final and binding
in the absence of duly filed exceptions, that award is not subject to
review in an unfair labor practice proceeding and such noncompliance is,
per se, a violation of Sections 7116(a)(1), (5), (6), and (8) of the
Statute. /25/
Official time
The parties have stipulated that the three employees, named in the
charge, requested official time, travel and per diem in order to attend
the hearings before the Panel which were conducted on February 4 and 5,
1980, in Washington, D.C., and that those requests were denied by
Respondent. Respondent argues that it was not a party to those hearings
and therefore it was under no obligation to grant official time to the
employees. In addition, Respondent argues that the Statute does not
expressly provide for travel and per diem and that the Authority's
interpretation in 2 FLRA No. 31, that entitlement to official time
carries with it entitlement to travel and per diem, is in error and
should be overruled.
The pertinent statutory provision is Section 7131(a) of Title 5,
United States Code, and provides:
Any employee representing an exclusive representative in the
negotiation of a collective bargaining agreement under this
chapter shall be authorized official time for such purposes,
including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of
employees for whom official time is authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
In view of the findings and conclusions reached earlier that the
award of the Panel was valid and cannot be collaterally attacked, I am
constrained to conclude that Respondent was a party to the hearings held
on February 4 and 5, 1980, notwithstanding its decision not to attend
them. Its nonattendance cannot vitiate its obligation to provide
official time in accordance with the Statute.
Respondent's invitation to "overrule" the Authority's interpretation
of the Statute in 2 FLRA No. 31 is not the first addressed to an
Administrative Law Judge. Not unsurprisingly, I decline to interrupt
the unanimity with which my colleagues have turned down such entreaties.
Unless and until such time as a decision of the Authority is overruled
by a court of competent jurisdiction, an Administrative Law Judge is
obliged to follow it.
Respondent next argues that the Union is only entitled to so many
representatives at the negotiation sessions or impasse proceedings as
management has designated for such purposes and, that since management
sent no one to the hearings on February 4 and 5, the Union is entitled
to official time for none of its representatives. That argument must be
rejected as reducing the statutory provision to a nullity. It is a
basic rule of statutory construction that a legislative enactment must
be construed so as to give it meaning. To accept Respondent's argument
would be to interpret the Statute as providing for official time only if
management is willing to bargain. The duty to bargain is mandatory as
is the duty to provide official time. The only limitation as to numbers
assumes that in order to meet its obligation to bargain, management will
send at least one person to the table. Where, as here, management
declines to attend a hearing which is capable of being conducted ex
parte, management acts at its peril and the only practical limitation on
the number of union representatives should be a rule of reason. Since
there were at least four management representatives appearing for
Respondent at the hearings conducted in December of 1978, it was
reasonable for the Union to expect management to bring at least as many
as the three representatives as were brought by the Union, if management
decided to attend the February, 1980, hearings at all. Accordingly, I
find Respondent's failure and refusal to grant official time, travel and
per diem to Messrs. Stickradt, Cook and Harvard, to violate Sections
7116(a)(1) and (8) of the Statute.
The remedy
The Union and the General Counsel seek a status quo ante remedy.
Respondent argues against such a remedy on grounds (1) that it did not
have adequate notice of the issues to be heard at the February 4 and 5
hearings; (2) that imposition of the Panel's award would not effectuate
the purposes of the Statute; (3) that the Union cannot receive a remedy
as a result of actions it took after the contract was repudiated; and
(4) that the Authority may not properly order implementation of
contractual terms which Respondent had no part in developing.
Resort to arbitration as the preferred means for resolving
labor-management disputes received its highest judicial imprimatur from
the United States Supreme Court in the Steelworkers Trilogy. /26/ That
Court decreed that the scope of review of an arbitrator's award should
be extremely narrow, that doubt as to whether an agreement to arbitrate
covers a particular subject should be resolved in favor of coverage, and
that an award should not be set aside for reasons of contractual
interpretation where that question has been resolved by the arbitrator.
As noted above, the parties entered into binding arbitration consistent
with the provisions of the Executive Order then in effect; that by
terms of paragraph 6 of the agreement, procedural questions were to be
decided at the sole discretion of the Panel; and, that under the
Statute, the procedure for review of an interest arbitration award is no
different from that for grievance arbitration. Since questions of
procedural due process were properly before the arbitrator, from whose
decision no exceptions were taken, they are not properly raised now to
argue against specific performance as a remedy.
After the decisions by the Supreme Court in the Steelworkers Trilogy,
the question whether an arbitrator's award is enforceable was answered
in the affirmative by the Fourth Circuit in Winston-Salem Printing
Pressman and Assistant Union v. Piedmont Publishing Co. /27/ Interest
arbitration has been recognized both under the Executive Order and the
Statute, and its enforceability is a necessary concomitant to continued
reliance on it as a means for expeditious settlement of labor disputes.
Arbitration arising under public sector labor law does not warrant an
approach different from that taken in the private sector. The Federal
Labor Relations Council recognized that parallel considerations obtain,
/28/ and they continue today. To hold that an arbitrator's award is not
enforceable (or here, not to grant a status quo ante remedy) is to
encourage parties to walk away from an agreed upon process whenever they
might become dissatisfied with its substance or procedure.
Respondent's argument that the Union should have gone to the FSIP to
mitigate its damages instead of proceeding to the arbitration hearing
must be rejected. The arbitration hearing was conducted with the
approval of FSIP and in lieu of direct FSIP involvement. Repudiation of
the interest arbitration agreement by Respondent was a calculated risk
taken at its peril. Having waived its right to file exceptions to the
award, Respondent cannot now equitably argue that it should not suffer
the consequences of its election.
Finally, Respondent argues that the Authority lacks the power to
order a status quo ante remedy, citing H. K. Porter v. NLRB. /29/
Although the Court in that case held that the obligation to bargain in
good faith did not give the NLRB the right to compel concessions or
judge the substantive terms of a collective bargaining agreement, that
is not the case where a party seeks implementation of the award of an
arbitrator. In that instance, both parties have agreed on the method by
which their disputes are to be resolved and the only issue is whether
they are to reap the benefit of their bargain. No "concession" is
involved, only specific enforcement of an agreement already freely
entered into by the parties.
Giving due consideration to all of the facts and arguments raised in
these cases, I can find no justification to withhold a status quo ante
remedy. Furthermore, I conclude that such a remedy is appropriate
because it is the only meaningful and effective way to remedy the
violation and the record fails to establish that such a remedy would
create a serious disruption of Respondent's operations. /30/ Having
found and concluded that Respondent has violated 5 U.S.C. 7116(a)(1),
(5), (6) and (8), I recommend that the Federal Labor Relations Authority
issue the following order pursuant to 5 C.F.R. 2423.29(c):
ORDERED, that the United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Failing and refusing to authorize and provide official
time, travel and per diem to employees Jack Stickradt, Jerre
Harvard and Donald Cook, pursuant to the provisions of 5 U.S.C.
7131(a), while they are engaged in representing Council 214,
American Federation of Government Employees, AFL-CIO, their
exclusive representative, at final offer arbitration hearings.
(b) Failing and refusing to negotiate in good faith with the
American Federation of Government Employees, AFL-CIO; to
cooperate in impasses procedures and decisions; and to implement
a final offer arbitration decision rendered on May 20, 1980, by a
panel approved by the Federal Service Impasses Panel.
(c) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them
whole for the annual leave they utilized on those dates and, upon
submission of an appropriate voucher, pay to them whatever travel
and per diem expenses an employee engaged in official Agency
business would be entitled.
(b) Implement the May 20, 1980, award of the Panel, effective
retroactively to June 20, 1980, and make whole the Union and
employees for any pecuniary or other losses suffered as a result
of Respondent's refusal to implement that award on June 20, 1980.
(c) Post at its 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 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 are customarily posted. Reasonable steps shall be taken
to ensure that the notices are not altered, defaced or covered by
any other material.
(d) 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 with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: June 22, 1981
Washington, D.C.
WE WILL NOT fail or refuse to authorize and provide official time,
travel and per diem to employees Jack Stickradt, Jerre Harvard and
Donald Cook while they are engaged in representing Council 214, American
Federation of Government Employees, AFL-CIO, their exclusive
representative, at final offer arbitration hearings.
WE WILL NOT fail or refuse to negotiate in good faith with the
American Federal of Government Employees, AFL-CIO: to cooperate in
impasses procedures and decisions; or to implement a final offer
arbitration decision rendered on May 20, 1980, by a panel approved by
the Federal Service Impasses Panel.
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 provide Union representatives Jack Stickradt, Jerre Harvard
and Donald Cook official time for the performance of their
representational duties on February 4 and 5, 1980, and make them whole
for the annual leave they utilized on those dates and pay to them
whatever travel and per diem expenses an employee engaged in official
Agency business would be entitled.
WE WILL implement the May 20, 1980, award of the arbitration panel
approved by the Federal Service Impasses Panel, effective retroactively
to June 20, 1980, and make whole the Union and employees for any
pecuniary or other losses suffered as a result of our not implementing
that award on June 20, 1980.
(Agency or Activity)
By: (Signature)
Dated: . . .
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
Suite A-1359, 175 West Jackson Boulevard, Chicago, Illinois 60604.
/1/ In reaching his conclusion, the Judge found, and the Authority
agrees, that the charge in Case No. 5-CA-842 had been timely filed based
upon the date the arbitration award became final and binding under
section 7122(b) of the Statute. In this regard, see U.S. Soldiers' and
Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984). The Authority
also adopts the Judge's conclusion that there is no basis for a
collateral attack in the instant proceeding on the jurisdiction of the
arbitration panel.
/2/ Section 7122(a) of the Statute provides in pertinent part as
follows:
Sec. 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award pursuant
to the arbitration(.)
/3/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 56 (1978), reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 702
(1979). Section 7122 of the Statute, as finally enacted and signed into
law, in all material respects is essentially as reported out of the
House Post Office and Civil Service Committee and there is no indication
in the legislative history that the stated intent of the House Post
Office and Civil Service Committee with respect to section 7122 of H.R.
11280 was not also the consensus of the Congress.
/4/ Section 7122 (b), as amended by the Civil Service Miscellaneous
Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98 Stat. 47, 48
(1984), provides as follows:
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period beginning
on the date the award is served on the party, the award shall be
final and binding. An agency shall take the actions required by
an arbitrator's final award. The award may include the payment of
backpay (as provided in section 5596 of this title).
/5/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
in Legislative History, supra n. 3, at 826.
/6/ In view of this conclusion, the Authority finds it unnecessary to
pass upon the Judge's further finding that the Respondent also thereby
violated section 7116(a)(5) of the Statute.
/7/ The Authority notes the decision in Ables v. United States, 2
Cl.Ct. 494 (1983), aff'd, No. 83-1218 (Fed. Cir. Jan. 17, 1984), in
which the chairman of the arbitration panel involved herein sought
payment for services rendered in connection with the ex parte
arbitration proceeding. While it may be unclear whether and under what
circumstances an arbitrator may collect payment for such services, such
an issue is separate and distinct from questions concerning the
obligation to implement awards rendered in ex parte proceedings, with
which the Authority is here concerned.
/8/ Section 7105(g)(3) of the Statute provides:
(g) In order to carry out its functions under this chapter, the
Authority may--
(3) require an agency or a labor organization to cease and
desist from violations of this chapter and require it to take any
remedial action it considers appropriate to carry out the policies
of this chapter.
See also section 7118(a)(7) of the Statute.
/9/ Section 7131(a) provides:
Sec. 7131. Official time
(a) Any employee representing an exclusive representative in
the negotiation of a collective bargaining agreement under this
chapter shall be authorized official time for such purposes,
including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of
employees for whom official time is authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
/10/ Counsel for the General Counsel's unopposed Motion to Correct
Transcript is granted.
/11/ The parties stipulated these facts as well as the fact that
Council 214, American Federation of Government Employees, AFL-CIO, since
November 20, 1979, has been and is not an agent of the American
Federation of Government Employees at the activity and facilities of
Respondent.
/12/ That section provides:
Except as provided in subparagraph (B) of this paragraph, no
compliant shall be issued based on any alleged unfair labor
practice which occurred more than 6 months before the filing of
the charge with the Authority.
/13/ 362 U.S. 411, 45 LRRM 3212 (1960).
/14/ 29 U.S.C. 160(b) which, in pertinent part provides:
. . . no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board . . .
/15/ Respondent's brief at p. 20.
/16/ Cf., NLRB v. McCready & Sons, Inc., 83 LRRM 2674, 2676 (1973).
/17/ Notwithstanding this conclusion, I adhere to my original ruling
which allowed into the record evidence which is relevant to a collateral
attack. I am not persuaded that a collateral attack on an arbitrator's
decision would never lie. Query, would it be an unfair labor practice
not to implement an arbitrator's award obtained by fraud, deceit or
other chicanery? What if shortly after the period for filing exceptions
lapsed, a party discovered that the arbitrator had been unlawfully
influenced by the other party? Is it incumbent upon the discovering
party to take affirmative action in some forum or may that party sit
back until the malefactor seeks to take some action in the nature of
enforcing the suborned award? A certain amount of evidence must be
received in order to determine whether facts exist which might form the
basis of a successful collateral attack.
/18/ 353 U.S. 448, 40 LRRM 2113 (1957).
/19/ It is doubtful that a material breach could be found merely from
the Union's request that the Panel reconvene.
/20/ 605 F.2d 1290, 1297 (2nd Cir. 1979).
/21/ Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978,
Committee Print No. 96-7, Committee on Post Office and Civil Service,
House of Representatives, 96th Cong., 1st Sess., Nov. 19, 1979, p. 702.
/22/ Id. at 826.
/23/ That section provides, in pertinent part:
Negotiation impasses. When voluntary arrangements, including
the services of the Federal Mediation and Conciliation Service . .
. fail to resolve a negotiation impasse, either party may request
the Federal Service Impasses Panel to consider the matter. The
Panel . . . may recommend procedures to the parties for the
resolution of the impasse . . . Arbitration . . . may be used by
the parties only when authorized or directed by the Panel.
/24/ Where voluntary arrangements fail to resolve a negotiation
impasse subsection (2) provides:
the parties may agree to adopt a procedure for binding
arbitration of the negotiation impasse, but only if the procedure
is approved by the (Federal Service Impasse) Panel.
/25/ It is an unfair labor practice under Section 7116(a) for an
agency:
(1) to interfere with, restrain, or coerce any employee in the
exercise 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;
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/26/ United Steelworkers v. American Mfg. Co., 363 U.S. 564, 46 LRRM
2414 (1960); United Steelworkers v. Warrior and Gulf Navigation Co.,
363 U.S. 574, 46 LRRM 2416 (1960); United Steelworkers v. Enterprise
Wheel and Car Corp., 363 U.S. 593, 46 LRRM 2423 (1960).
/27/ 393 F.2d 221 (1968). The Court expressly rejected the opposite
view taken in Boston Printing Pressman's Union v. Potter Press, 241 F.2d
787 (1st Cir. 1957), a case decided prior to the Steelworkers Trilogy.
Public sector recognition of binding interest arbitration renders Potter
Press inapposite regardless of the extent to which it still may have
some vitality in the private sector.
/28/ See, Community Services Administration, FLRC No. 76A-149, 5 FLRC
728 (1977).
/29/ 397 U.S. 99, 73 LRRM 2561 (1970).
/30/ San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
Texas, 5 FLRA No. 22 (1981).
15 FLRA 26; FLRA 3-CA-20561; June 26, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICES: AGENCY
4100. Interference, Restraint, Coercion
4800. Otherwise Refuse to Comply With Statute
DIGEST NOTES
A final and binding arbitrator's award is one in which either no
exceptions were filed during the prescribed time period following the
service date of such award or one in which timely exceptions, pursuant
to Sec. 7122(a) of the Statute, were filed and the Authority has
resolved the pending exceptions. The Authority, therefore, adopted the
ALJ's decision that the agency, having filed timely exceptions, did not
violate Sec. 7116(a)(1) and (8) of the Statute by its refusal to comply
with the arbitrator's award. An agency is only required by Sec. 7122(b)
to "take the actions required by an arbitrator's final award".
Consequently, as the award did not become "final and binding" within the
meaning of Sec. 7122(b) of the Statute until the Authority issued its
decision resolving the agency's exceptions, the Authority dismissed the
complaint.
U.S. SOLDIERS' AND AIRMEN'S HOME
WASHINGTON, D.C.
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3090, AFL-CIO
Case No. 3-CA-20561
The Administrative Law Judge issued his 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. Thereafter, both the General Counsel
and the Charging Party filed exceptions to the Judge's Decision, and the
Respondent filed separate oppositions thereto.
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, conclusions and recommendation that the complaint be
dismissed.
The complaint alleged that the Respondent's failure and refusal to
comply with an arbitrator's award constituted noncompliance with the
provisions of section 7122(b) of the Statute in violation of section
7116(a)(1) and (8) of the Statute. /1/ As stipulated by the parties,
the Respondent filed timely exceptions to the arbitrator's award with
the Authority. /2/ Those exceptions were still pending for resolution
by the Authority, when the unfair labor practices charges involved
herein were filed. The Judge therefore concluded that the Respondent
had not failed or refused to comply with the provisions of section
7122(b) of the Statute. In this regard, the Judge found that section
7122(b) requires only that an agency shall take the action required by a
"final" award, and provides that an arbitrator's award becomes final and
binding if no timely exceptions to the award are filed with the
Authority pursuant to section 7122(a) of the Statute. Thus, since the
Respondent herein had filed timely exceptions to the arbitrator's award
with the Authority, the Judge concluded that the Respondent was not
required to implement the award pending the Authority's resolution of
those exceptions. The Authority agrees.
Section 7122 of the Statute, as amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Sec. 4, 98
Stat. 47, 48 (1984), provides:
Sec. 7122. Exceptions to arbitral awards
(a) 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). If upon review the
Authority finds the award is deficient--
(1) because it is contrary to any law, rule, or regulation; or
(2) on other grounds similar to those applied by federal courts
in private sector labor-management relations; the Authority may
take such action and make such recommendations concerning the
award as it considers necessary, consistent with applicable laws,
rules, or regulations.
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30 day period beginning
on the date the award is served on the party, the award shall be
final and binding. An agency shall take the actions required by
an arbitrator's final award. The award may include the payment of
back pay (as provided in section 5596 of this title).
The language of section 7122(b) makes it clear that an agency must
take the actions required by an arbitrator's award once that award has
become final, and defines a final and binding arbitrator's award as one
to which no exceptions are filed during the prescribed time following
the service date of such award. Accordingly, where no timely exceptions
to an arbitrator's award have been filed under section 7122(a) of the
Statute, an agency's subsequent failure or refusal to implement the
award has been found to constitute a violation of section 7116(a)(1) and
(8) of the Statute. See U.S. Army Health Clinic, Fort Ritchie,
Maryland, 9 FLRA No. 133 (1982). Similarly, once an agency's timely
filed exceptions to an arbitrator's award have been denied by the
Authority, the agency must implement such award, and therefore a
subsequent failure or refusal to do so also constitutes a violation of
section 7116(a)(1) and (8) of the Statute. See United States Marshals
Service, 13 FLRA No. 60 (1983), appeal docketed, No. 83-7973 (9th Cir.
Dec. 30, 1983). Such conclusion is consistent with the intent of
Congress with respect to the finality of arbitrators' awards, as
expressed by the Committee on Conference in its Report which accompanied
the bill ultimately enacted and signed into law: /3/
The House provides that if no exception to an arbitrator's
award is filed with the Authority, the award "shall be final and
binding" (section 7122(b)). The Senate contained no comparable
provision. The conferees adopted the House provision. The intent
of the House in adopting this provision was to make it clear that
the awards of arbitrators, when they become final, are not subject
to further review by any other authority or administrative body,
including the Comptroller General.
Conversely, where exceptions to an arbitrator's award have been filed
under section 7122(a) of the Statute within the time limits specified in
section 7122(b), such award, by definition, has not become "final and
binding." Since an agency is only required by section 7122(b) to "take
the actions required by an arbitrator's final award", a failure to
comply with the award until the pending exceptions have been resolved by
the Authority cannot constitute noncompliance with that section and
therefore is not a violation of section 7116(a)(1) and (8) of the
Statute. As noted by the Judge, a contrary conclusion could result in
the Authority's reaching the conflicting conclusions that an agency has
committed an unfair labor practice by refusing to comply with an
arbitrator's award and the issuance of an affirmative order requiring
compliance, on the one hand, and, on the other hand, that exceptions to
the same award are meritorious and that the award must be set aside
under section 7122(a).
Inasmuch as the Respondent herein filed timely exceptions to binding"
within the meaning of section 7122(b) of the Statute until the Authority
issued its decision resolving the exceptions, /4/ the Respondent was not
required during the period of time encompassed by the complaint herein
to take the action required in the award and, therefore, did not violate
section 7116(a)(1) and (8) of the Statute as alleged. Accordingly, the
complaint shall be dismissed.
IT IS ORDERED that the complaint in Case No. 3-CA-20561 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 26, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Major Glen H. Schlabs, Esquire
For the Respondent
Eileen Hamamura Miller, Esquire
For the General Counsel
Donald M. MacIntyre, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
This case arose as an unfair labor practice proceeding under
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder. It was transferred to
the Office of Administrative Law Judges for decision on a stipulated
record.
The complaint, dated July 29, 1982, alleges that from on or about
March 25, 1982, the Respondent failed and refused to comply with the
provisions of 5 U.S.C. 7122(b) of the Statute by failing and refusing to
comply with an arbitrator's award; and further that by reason of the
foregoing the Respondent committed unfair labor practices in violation
of Sections 7116(a)(1) and (8) of the Statute.
The Respondent denies violating the provisions of Section 7122(b) of
the Statute on the ground that the award in question was not final and
binding within the meaning of Section 7122(b).
Based upon the entire record herein, including the stipulation of
facts, stipulated exhibits, and briefs filed by the parties, I make the
following findings of fact, conclusions and recommendation.
On or about September 24, 1981, and November 6, 1981, the Respondent
and the Charging Party participated as parties in an arbitration
proceeding presided over by Arbitrator Nicholas H. Zumas. The
arbitration case, entitled "In the Matter of Arbitration Between U.S.
Soldiers' and Airmen's Home, and American Federation of Government
Employees, Local 3090, FMCS Case No. 81-K-18940, Grievant: Josie
Simpkins," resulted in the issuance of a March 25, 1982 award in favor
of the Grievant. The Grievant, a nursing assistant, had been charged
with misconduct associated generally with alleged acts of patient abuse.
The award resolved certain credibility issues in favor of the Grievant.
It provided that she be reinstated within ten days of the award with
seniority unimpaired, and with back pay less deduction for outside
earnings.
On April 22, 1982, the Respondent filed timely exceptions to the
award in accordance with Section 7122(b) of the Statute, but did not,
and has not, requested a stay of the award. The Respondent has not
complied with the award, and as of this date the Authority has not ruled
on exceptions filed.
Section 7116(a)(8) of the Statute makes it an unfair labor practice
for an agency "to otherwise fail or refuse to comply with any provision
of this chapter." Counsel for the General Counsel contends that the
Respondent's failure to comply with the March 25, 1982 arbitration award
was violative of Section 7122(b) of the Statute, and that as a result
Respondent violated Sections 7116(a)(1) and (8).
Section 7122 provides the following with respect to arbitral awards:
Sec. 7122. Exceptions to arbitral awards.
(a) 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). If upon review the
Authority finds that the award is deficient--
(1) because it is contrary to any law, rule, or regulation; or
(2) on other grounds similar to those applied by Federal courts
in private sector labor-management relations; the Authority may
take such action and make such recommendations concerning the
award as it considers necessary, consistent with applicable laws,
rules, or regulations. /5/
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period beginning
on the date of such award, the award shall be final and binding.
An agency shall take the actions required by an arbitrator's final
award. The award may include the payment of backpay (as provided
in section 5596 of this title).
Section 2429.8 of the Regulations (5 C.F.R. 2429.8) provides:
Sec. 2429.8 Stay of Arbitration Award; requests.
(a) A request for a stay shall be entertained only in
conjunction with and as a part of an exception to an arbitrator's
award filed under Part 2425 of this subchapter. The filing of an
exception shall not itself operate as a stay of the award involved
in the proceedings.
(b) A timely request for a stay of an arbitrator's award to
which an exception has been filed shall operate as a temporary
stay of the award. Such temporary stay shall be deemed effective
from the date of the award and shall remain in effect until the
Authority issues decision and order on the exception, or the
Authority or its designee otherwise acts with respect to the
request for the stay.
(c) A request for a stay of an arbitrator's award will be
granted only where it appears, based upon the facts and
circumstances presented, that:
(1) There is a strong likelihood of success on the merits of
the appeal; and
(2) A careful balancing of all the equities, including the
public interest, warrants issuance of a stay.
On November 20, 1981, the Authority proposed a revision of Section
2429.8 to provide that the timely filing of an exception to an
arbitration award would automatically stay such award until the
Authority resolved the exception. 46 Fed.Reg. 57056 (1981). The
revised Section 2429.8 would have contained the following language:
Sec. 2429.8 Stay of Arbitration Award.
The filing of an exception to an arbitrator's award under Part
2425 of this subchapter shall operate as a stay of the award.
Such stay shall be deemed effective from the date of the award and
shall remain in effect until the Authority resolves the exception.
The explanation accompanying the proposed revision noted:
Under Sec. 2429.8 of the Authority's final rules and
regulations, the Authority will entertain a request for a stay of
an arbitration award only in conjunction with and as part of an
exception to an arbitrator's award filed under part 2425 of the
rules and regulations. The proposed revision would more
accurately reflect the provisions and intent of section 7122(b) of
the Federal Service Labor-Management Relations Statute (5 U.S.C.
7122(b)) . That section provides that if an exception to an award
is not filed with the Authority during the 30 day period beginning
on the date of the award, then the award becomes final and binding
and whatever action is required by the final award must be taken.
Therefore, the Statute implicitly provides for a stay of the award
when exceptions have been timely filed with the Authority and the
proposed revision reflects that provision. Likewise, the change
facilitates the administration of the Statute, since it would
avoid questions concerning compliance with an award which may be
subsequently set aside or modified as a result of the exceptions
filed.
On August 25, 1982, the Authority withdrew the proposed revision, and
provided the following explanation:
The Authority has carefully considered all of the comments
received on the proposed revision from agencies, labor
organizations, and law firms. Based on those comments and further
consideration of the matter, the Authority has determined that the
provisions of the Federal Service Labor-Management Relations
Statute, including those specifically related to arbitration, are
best served by retaining Sec. 2429.8 of the Authority's rules and
regulations as currently in effect. The proposed revision
therefore is withdrawn. 47 Fed.Reg. 38133 (1982).
It is noted that the Authority did not, in its withdrawal of the
proposed revision, repudiate the interpretation of Section 7122(b)
reflected in the November 20, 1981 comment accompanying the proposed
revision.
This case necessarily turns upon the threshold question of whether or
not the conduct of the Respondent was violative of Section 7122(b) of
the Statute. Only on this basis may the provisions of Section
7116(a)(1) and (8) be invoked. /6/ Section 7122(b) does not
specifically or otherwise accord a final and binding effect to
arbitrator's awards during the period when the Authority is resolving
exceptions timely filed under the provisions of Section 7122(b), and the
terminology utilized in Section 7122(b) does not address the issue of
whether there is a duty to comply with an arbitrator's award while a
case is pending before the Authority after the timely filing of
exceptions. Further, the terms of Section 7122(b) do not specifically
address the question of deference to be accorded to arbitration awards
during the period when timely filed exceptions are being resolved.
In order for a violation of Section 7116(a)(8) to exist it must be
shown that the Respondent failed or refused to comply with a provision
of the Statute. As noted the Statute does not specifically impose an
obligation of the type alleged in the complaint. This interpretation
was recognized by the Authority in its November 20, 1981 issuance
relating to the proposed revision of Section 2429.8 of the Regulations.
It is true that Section 2429.8 does appear to accord a binding effect
to such awards pending resolution of exceptions in cases wherein a stay
has not been granted; however, it is clear from the terms of Section
2429.8, that a failure to obtain a stay pending resolution of exceptions
does not automatically confer finality to an arbitration award.
This case is unlike U.S. Army Health Clinic, Ft. Ritchie, Maryland, 9
FLRA No. 133 (August 16, 1982). In the cited case the award had a final
and binding effect within the meaning of Section 7122(b) because timely
exceptions were not filed by the U.S. Army Health Clinic. Thus,
violations of Section 7116(a)(1) and (8) were appropriately based upon a
failure to comply with Section 7122(b).
Similarly, this case is unlike a refusal to give effect to a decision
of the Federal Service Impasses Panel. Such conduct is made an unfair
labor practice by Section 7116(a)(6). In such cases the duty to comply
is mandated by the Statute. Thus, even assuming that Section 2429.8 of
the Regulations accords a final and binding effect to an arbitration
award in cases wherein timely exceptions are filed and a stay is not
obtained, the contravention of the terms of Section 2429.8, a regulatory
provision, may not, without a corresponding failure to comply with the
Statute, rise to the level of an unfair labor practice. /7/
The underlying theory of the complaint in this case necessarily
suggests that an agency may be found guilty of an unfair labor practice
for refusal to obey an arbitrator's award pending resolution of
exceptions, even though the resolution of such exceptions might, under
the provisions of Section 7122(a), result in the setting aside or
modification of the award by the Authority. It is conceivable that
under such a theory an agency charged with a failure to comply with an
arbitrator's award might be found guilty of an unfair labor practice for
failure to comply, and also be absolved from any responsibility to
comply with the award because of a favorable determination in the
separate appeal of the arbitration award. Since the issue of compliance
would be pending before the Authority, and the Office of Administrative
Law Judges, inconsistent dispositions might easily result.
Problems posed in this area of concern were recognized by the
Authority in the November 20, 1981 statement relating to the proposed
revision of Section 2429.8 of the Regulations. Also, the Authority must
have been considering the possibility of such incongruous results during
the formulation of its decision in Headquarters, U.S. Army
Communications Command, et al., Fort Huachuca, Arizona, 2 FLRA 785
(1980). In Fort Huachuca the Authority noted the following with respect
to cases involving issues concerning compliance with arbitration awards:
There are ready means under the Statute for resolving this type
of dispute . . . . (W)here appropriate, the unfair labor practice
procedures under section 7116 of the Statute may be used when
there is a dispute concerning an alleged failure of a party to
abide by a final and binding arbitration award. /8/
This policy position has been reaffirmed by the Authority. General
Statement of Policy or Guidance, 3 FLRA 623 (1980); Department of the
Air Force, Air Force Logistics Command, 4 FLRA No. 96 (1980); Council
of District Office Locals, American Federation of Government Employees,
San Francisco Region, AFL-CIO, 5 FLRA No. 100 (January 15, 1982, Order
Denying Petition for Enforcement). See also United States Marshals
Service, Case No. 3-CA-2800, OALJ 82-78 (Decision of Administrative Law
Judge Salvatore J. Arrigo, June 23, 1982).
These authorities reflect that only a failure or refusal to comply
with a final and binding arbitration award may be made the basis of an
unfair labor practice charge and complaint.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-20561, be,
and it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: November 24, 1982
Washington, D.C.
/1/ Section 7116(a)(1) and (8) provides:
Sec. 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;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ However, the Respondent did not request a stay of the award under
section 2429.8 of the Authority's Rules and Regulations.
/3/ H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 826
(1979).
/4/ The exceptions filed by the Agency were denied by the Authority
on March 18, 1983 in U.S. Soldiers' and Airmen's Home, 11 FLRA No. 117
(1983).
/5/ After final decision or order of the Authority has been issued, a
party to the proceeding before the Authority who can establish
extraordinary circumstances, may move for reconsideration of such final
decision or order (5 C.F.R. 2429.17).
/6/ The complaint alleges a violation of Section 7116(a)(1) only as a
derivative of the alleged violation of Section 7116(a)(8).
/7/ The complaint herein does not allege that the Respondent violated
Section 2429.8 of the Regulations as such an infraction would not,
without an accompanying violation of the Statute, constitute an unfair
labor practice within the meaning of Section 7116(a)(8).
/8/ In a footnote to the cited portion of the Fort Huachuca case the
Authority pointed out that judicial review and enforcement of orders
issued by the Authority in such proceedings may then be sought under
Section 7123(a) and (b) of the Statute.
15 FLRA 25; FLRA O-NG-651; June 26, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.25 Other Disciplinary Action
2500. Procedure
2550. Agency Head Allegation of Nonnegotiability
DIGEST NOTES
Two proposals are nonnegotiable which would permit the union to
appoint members to a board which would render judgments on accusations
against employees with regard to traffic violations whether they involve
official or privately-owned vehicles. Contrary to the union's
assertions, the proposals are not procedural in nature under Section
7106(b)(2), but would impinge on the agency's right to make substantive
determinations upon which the decision to take disciplinary action is
made. A determination of guilt is a prerequisite and, thus, integrally
related to a decision to take disciplinary action. The imposition of a
penalty by an agency because an employee has engaged in traffic
violations under circumstances where there is a nexus between the
violation and an employee's job is a disciplinary action within the
meaning of Section 7106(a)(2), and, hence, involves the exercise of a
reserved management right.
Where the agency failed to respond to the union's request for a
written allegation of nonnegotiability, the agency constructively
declared the proposal to be nonnegotiable thereby giving rise to the
union's right to appeal to the Authority pursuant to Section 7117(c) of
the Statute and Section 2424 of the Authority's rules and regulations.
(Footnote 1)
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1363
and
U.S. ARMY GARRISON,
YONGSAN, KOREA
Case No. O-NG-651
This petition for review comes before the Authority pursuant to
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations
Statute (the Statute) and raises questions relating to the negotiability
of two Union proposals, the texts of which are set forth in the Appendix
to this Decision. Upon careful consideration of the entire record,
including the parties' contentions, the Authority makes the following
determinations. /1/
The two Union proposals which are the subject of the instant petition
are alternative proposals dealing with the establishment and operation
of a three member board to adjudge allegations of traffic violations
involving bargaining unit employees. The only different between the two
proposals is the composition of the board. In Union Proposal A the
board would be composed of two members appointed by the Agency and one
appointed by the Union. In Union Proposal B all three would be
appointed by the Union. As explained by the Union, the proposals are
intended to make the Union an effective party to, and participant in,
judgments rendered on accusations against employees with regard to
traffic violations whether they occurred on-duty, off-duty, on-post, or
off-post and whether they involved official or privately-owned vehicles.
The imposition of a penalty by an agency because an employee has
engaged in a traffic violation under circumstances where there is a
nexus between the violation and an employee's job, e.g., as in the
present case where an official vehicle is involved, is a disciplinary
action within the meaning of section 7106(a)(2) of the Statute and,
hence, involves the exercise of a management right. /2/ In National
Treasury Employees Union and NTEU Chapter 70 and Department of the
Treasury, Internal Revenue Service, Atlanta Service Center, Georgia, 8
FLRA 37 (1982) (Union Proposal 5), the Authority held that a proposal
which would require that penalties relating to suspension of parking
privileges be discussed with the union prior to their imposition was a
negotiable procedure under section 7106(b)(2) of the Statute. /3/ In so
holding the Authority specifically noted that the proposal did not
prevent the agency from acting at all with respect to disciplining
employees and did not limit the penalties which the agency could impose.
In the present case, however, contrary to the Union's assertion, the
proposals are not procedural in nature but would impinge upon the
Agency's right to make substantive determinations pursuant to which the
decision to take disciplinary action is made. /4/ In the circumstances
to which the proposals would apply, a determination of guilt is a
prerequisite and, thus, integrally related to a decision to take
disciplinary action. Inasmuch as the proposals would make the Union a
participant in judging the guilt of employees accused of traffic
violations where a nexus exists between an alleged traffic violation and
the employee's job, they would, necessarily, directly interfere with
management's substantive determinations to take disciplinary action
pursuant to its statutory right. In this regard the proposals are to
the same effect as the proposal considered by the Authority in National
Federation of Federal Employees, Local 1431 and Veterans Administration
Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). In that
case the Authority, relying on reasoning set forth in 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), enforced sub nom. National
Federation of Federal Employees v. FLRA, 681 F.2d 886 (D.C. Cir. 1982),
found that inasmuch as a proposal would allow the union to interject
itself into the decision-making process with respect to various
management rights, it would directly interfere with those rights. For
the reasons expressed in VAMC, East Orange and Homestead Air Force Base,
the Authority finds that the proposals herein are not within the duty to
bargain.
Accordingly, 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. /5/
Issued, Washington, D.C., June 26, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
(3) Reports of traffic violations wherein the person accused is an
employee in a bargaining unit represented by Local 1363, a National
Federation of Federal Employees, will be considered by a Board of three
persons. Two Board members shall be appointed by the agency and one
shall be a bargaining unit employee appointed by Local 1363. It is this
Board who, by majority vote by secret ballot, shall consider and judge
the guilt or innocence of the accused employee.
(a) The Board shall consider the employee to be innocent until proven
guilty. The Board and its members shall have the duty to conduct
hearings and the authority to administer oaths and to require the
presence of any person employed by or assigned to the agency whose
presence is considered by a majority of the Board to be necessary to the
investigation and consideration of the charge. The Board's decision
does not prevent the employee from initiating grievance proceedings over
that decision. Board members representing Local 1363 shall be on
official time while carrying out the duties of the Board and shall be
entitled to official travel, if required, to carry out those duties.
(b) The employee shall have the right to attend the hearing regarding
his case and the right to representation by any person of his choosing,
including representation by Local 1363, if he so requests. If that
representative is a member of a bargaining unit represented by Local
1363, that person shall have the same right to official time and travel
as the employee defendant. The employee shall have the right to
introduce testimony, affidavits, and evidence of any nature which he
feels is relevant to consideration of his case. The employee shall have
the right to confront and examine his accusers and the witnesses against
him, and the Board shall compel the presence of such persons and place
them under oath if within the limits of its authority under subparagraph
(a) above. Any employee who appears as a defendant at a hearing before
the Board shall be entitled to the use of official time, to include
reasonable amounts of official time for the preparation of his defense
and for travel to and from the hearing, for that purpose; and shall be
entitled to official travel, if required, to attend the hearing.
(3) Reports of traffic violations wherein the person accused is an
employee in a bargaining unit represented by Local 1363, National
Federation of Federal Employees, will be considered by a Board of three
bargaining unit employees apponted by Local 1363. It is this Board who,
by majority vote by secret ballot, shall consider and judge the guilt or
innocence of the accused employee.
(a) The Board shall consider the employee to be innocent until proven
guilty. The Board and its members shall have the duty to conduct
hearings and the authority to administer oaths and to require the
presence of any person employed by or assigned to the agency whose
presence is considered by a majority of the Board to be necessary to the
investigation and consideration of the charge. The Board's decision
does not prevent the employee from initiating grievance proceedings over
that decision. Board members representing Local 1363 shall be on
official time while carrying out the duties of the Board and shall be
entitled to official travel, if required, to carry out those duties.
(b) The employee shall have the right to attend the hearing regarding
his case and the right to representation by any person of his choosing,
including representation by Local 1363, if he so requests. If that
representative is a member of a bargaining unit represented by Local
1363, that person shall have the same right to official time and travel
as the employee defendant. The employee shall have the right to
introduce testimony, affidavits, and evidence of any nature which he
feels is relevant to consideration of his case. The employee shall have
the right to confront and examine his accusers and the witnesses against
him, and the Board shall compel the presence of such persons and place
them under oath if within the limits of its authority under subparagraph
(a) above. Any employee who appears as a defendant at a hearing before
the Board shall be entitled to the use of official time, to include
reasonable amounts of official time for the preparation of his defense
and for travel to and from the hearing, for that purpose; and shall be
entitled to official travel, if required, to attend the hearing.
/1/ Contrary to the Agency's assertion, the Authority finds that the
Agency, by its failure to respond to the Union's request for an
allegation, constructively declared the proposals to be nonnegotiable
thereby giving rise to a right of appeal to the Authority by the Union
pursuant to section 7117(c) of the Statute and part 2424 of the
Authority's Rules and Regulations. See American Federation of
Government Employees, AFL-CIO, Local 3028 and Department of Health and
Human Services, Public Health Service, Alaska Area Native Health
Service, 13 FLRA No. 112 (1984) at page 2.
/2/ Section 7106(a)(2) of the Statute provides, in relevant part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(A) to . . . take other disciplinary action against such
employees(.)
/3/ Section 7106(b)(2) of the Statute provides:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)
/4/ See American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
603 (1980), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied
sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
/5/ In view of this decision, it is unnecessary to address the other
arguments raised by the Agency with respect to the negotiability of the
proposal.
14 FLRA 29; FLRA 7-RO-30003; June 13, 1984 (Motion for
Reconsideration).
U.S. FISH AND WILDLIFE SERVICE
FINANCE CENTER, DENVER, COLORADO
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2053
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case No. 7-RO-30003
14 FLRA No. 29
This matter is before the Authority on a motion for reconsideration
of the Authority's Decision and Direction of Election in U.S. Fish and
Wildlife Service Finance Center, Denver, Colorado, 14 FLRA No. 29
(1984), filed by the U.S. Department of the Interior on behalf of the
Activity, U.S. Fish and Wildlife Service Finance Center, Denver,
Colorado. The Intervenor, American Federation of Government Employees,
AFL-CIO, filed a response in opposition.
In its Decision, the Authority concluded that the unit sought, which
encompassed all eligible employees within a separate and distinct
centralized financial and informational organization located at the U.S.
Fish and Wildlife Service Finance Center, Denver, Colorado, is an
appropriate unit for the purpose of exclusive recognition. In so
concluding, the Authority found that the unit satisfied the three
criteria set forth in section 7112(a)(1) of the Federal Service
Labor-Management Relations Statute (the Statute). The motion for
reconsideration alleges in essence that the Authority misstated facts
and failed to consider the record evidence in determining and applying
the three criteria set forth in section 7112(a)(1) of the Statute.
Section 2429.17 of the Authority's Rules and Regulations provides, in
part, that a party who "can establish . . . extraordinary circumstances
. . . may move for reconsideration" of an Authority decision. Based
upon review of the Agency's arguments in support of its motion, the
Authority concludes that no extraordinary circumstances warranting
reconsideration have been established. Rather, the arguments made in
support of the motion merely constitute disagreement with the merits of
the Authority's Decision.
Accordingly, IT IS ORDERED that the motion for reconsideration of the
Authority's Decision and Direction of Election herein be, and it hereby
is, denied. /3/
Issued, Washington, D.C., June 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/3/ Subsequent to filing the instant motion for reconsideration, the
Department of the Interior, on behalf of the Activity, requested a stay
of the Decision and Direction of Election. The request is hereby
denied.
15 FLRA 24; FLRA 4-CU-20004; June 14, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3051. Types of Petitions
3051.15 Clarification of Unit
3150. Representation Unit Determination
3151. Criteria
3153. Special Situations
3153.01 Accretion
3153.15 Reorganization
DIGEST NOTES
The union sought to clarify its existing unit, consisting of some 600
professional and nonprofessional employees of the agency's Oak Ridge
Operations Office (ORO) and its Technical Information Center (TIC), both
of which are located in Oak Ridge Tennessee by including in that unit
six previously unrepresented employees of the Clinch River Breeder
Reactor Project Office (CRBRPO). The Authority, by applying the
criteria mandated by Sec. 7112(a)(1) of the Statute, held that accretion
of the six CRBRPO employees to the currently certified unit was not
appropriate as they do not share a distinct community of interest. The
Authority determined, noting particularly the unique conditions of
employment within CRBRPO arising from the commingling of Federal and
non-Federal employees, that: (1) at no time have the two groups of
employees at issue been integrated, either physically or functionally;
and (2) the employees of CRBRPO continue after the reorganization to
perform identifiably distinct functions, work in a different location
under different supervision, and have no functional interchange with the
employees in the certified unit represented by the union. Moreover,
effective dealings and efficiency of agency operations would not be
promoted by including CRBRPO employees in the bargaining unit because of
their physical and functional separation and their functional
commingling with non-Federal employees.
U.S. DEPARTMENT OF ENERGY
OAK RIDGE OPERATIONS OFFICE
OAK RIDGE, TENNESSEE
and
OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 510, AFL-CIO
Case No. 4-CU-20004
Upon a petition duly filed with the Authority under section
7111(b)(2) of the Federal Service Labor-Management Relations Statute
(the Statute), a hearing was held before a hearing officer of the
Authority. The Authority has reviewed the hearing officer's rulings
made at the hearing and finds that they are free from prejudicial error.
The rulings are hereby affirmed.
Upon the entire record in this case, including the parties'
contentions, the Authority finds: The Petitioner, Office and
Professional Employees International Union, Local 510, AFL-CIO (the
Union) seeks to clarify the unit for which it is certified as exclusive
representative by including in that unit certain previously
unrepresented employees of the Clinch River Breeder Reactor Project
Office (CRBRPO). The existing bargaining unit consists of some 600
professional and nonprofessional employees of the Department of Energy's
Oak Ridge Operations Office (ORO) and its Technical Information Center
(TIC), both of which are located in Oak Ridge, Tennessee. /1/
The Union contends that as a result of a reorganization in April of
1981, employees of CRBRPO now share a clear and identifiable community
of interest with employees of ORO and that certain employees of CRBRPO
should now be accreted to the existing unit. The Activity opposes the
requested clarification, contending that while, as a result of the
reorganization, CRBRPO is now organizationally subordinate to ORO,
CRBRPO and ORO continue to be engaged in separate and distinct missions
that are not functionally integrated, the employees of the two
organizations do not share a community of interest, and the inclusion of
the CRBRPO employees sought would not promote effective dealings or
efficiency of agency operations.
The record shows that the mission of ORO includes the production of
nuclear weapons components in support of national defense programs, the
supply of enriched uranium to fuel nuclear power plants in the United
States and abroad, and energy research and development. CRBRPO has as
its specific mission the design, construction, and operation of a
demonstration breeder reactor power plant. The Department of Energy
(DOE) has entered into cooperative agreements with private utility
companies as well as with the Tennessee Valley Authority (TVA) to
provide certain products and services necessary to complete the project.
Under an arrangement approved by the Congressional Joint Committee on
Atomic Energy in 1976, CRBRPO's project staff is composed of employees
from differing sources including DOE, private utility companies, and the
TVA. CRBRPO employs some 210 individuals, 20 of whom are Federal
employees. Of these 20, approximately six are sought to be included in
the existing professional/nonprofessional unit.
Employee work groups within CRBRPO are organized according to skill
groupings without regard to an individual's organizational affiliation.
Thus, for example, professional engineers employed by DOE work alongside
and in some instances supervise the work of engineers employed by either
private utility companies or the TVA. DOE employees working in other
specialized skill groupings receive day-to-day supervisory direction
from non-Federal employees. The record reveals that line supervisors
and managers may counsel or admonish employees employed by organizations
other than their own. Supervisors and managers make recommendations
concerning the performance of employees assigned to them, irrespective
of the employees' ultimate organizational affiliation.
As a result of the 1981 reorganization, primary decision making
authority for both CRBRPO and ORO now resides with the Manager of ORO.
Thus, rather than reporting directly to DOE Headquarters, the Director
of CRBRPO now reports to the Manager of ORO. As a further result of the
reorganization, a number of key supervisors and managers previously
employed by ORO have been reassigned to positions of responsibility with
CRBRPO or hold dual appointments in both organizations.
The record reveals that, apart from the changes enumerated above, the
1981 reorganization has had little discernible impact upon the
conditions of employment of either CRBRPO or ORO employees. Thus,
employees of CRBRPO continue to occupy a separate physical facility some
three miles distant from ORO Headquarters, perform essentially the same
work in furtherance of the same mission of CRBRPO, and operate under the
same day-to-day supervision as they had previously. Moreover, the
record discloses almost no interchange between the employees of CRBRPO
and those of ORO. While it appears that ORO's Organization and
Personnel Division provides personnel/labor relations services for both
organizations, this was also true prior to the reorganization.
In deciding questions concerning accretion, the Authority is bound by
the three criteria for determining the appropriateness of any unit, as
mandated by section 7112(a)(1) of the Statute; that is, the Authority
may determine any unit to be appropriate only if the determination will
ensure a clear and identifiable community of interest among the
employees in the unit and will promote effective dealings with, and
efficiency of the operations of, the agency involved. See, e.g.,
International Communication Agency, 5 FLRA 97 (1981). In the instant
case, as noted above, at no time have the two groups of employees at
issue herein been integrated, either physically or functionally, and
noting particularly the unique conditions of employment within CRBRPO
arising from the commingling of Federal and non-Federal employees, the
Authority concludes that accretion of the six CRBRPO employees to the
currently certified unit is not appropriate. In this regard, inasmuch
as the employees of CRBRPO continue after the reorganization to perform
identifiably distinct functions, work in a different location under
different supervision, and have no functional interchange with the
employees in the certified unit represented by the Union, the Authority
concludes that they do not share a distinct community of interest with
such employees. Moreover, for the reasons set forth above, including
the physical and functional separation of the CRBRPO employees and their
functional commingling with non-Federal employees, it is concluded that
effective dealings and efficiency of agency operations would not be
promoted by including CRBRPO employees in the bargaining unit
exclusively represented by the Petitioner. Accordingly, OPEIU's
petition for clarification of unit shall be dismissed. See General
Services Administration, National Capital Region, 5 FLRA 285 (1981).
/2/
IT IS ORDERED that the Petition in Case No. 4-CU-20004 be, and it
hereby is dismissed.
Issued, Washington, D.C., June 14, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/2/ Compare department of the navy, naval Hospital, submarine base
bangor clinic, bremerton, washington, 15 FLRA NO. 23 (1984) (employee
administratively transferred along with their function into a different
activity were accreted into an existing bargaining unit, as requested by
the gaining activity and the labor organization exclusively representing
that activity's employees, inasmuch as the inclusion of such employees
in the established bargaining unit satisfied the three criteria of
section 7112(A)(1) of the statute), and federal aviation administration,
aviation standards national field office, 15 FLRA
15 FLRA 23; FLRA 9-RO-30020; June 14, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3150. Representation Unit Determination
3153. Special Situations
3153.01 Accretion
DIGEST NOTES
As a result of a reorganization employees of the Branch Clinic at
Bangor were organizationally transferred from the Commander of Subbase
Bangor to the Commander of the Naval Hospital, Bremerton, Washington.
Although employees at the Branch Clinic at Bangor did not physically
move, are under the same immediate supervision and perform the same work
as they performed prior to the reorganization, the Authority held that
the employees accreted into the respective professional and
non-professional employee units at the Naval Hospital. The Bangor
employees are organizationally and functionally integrated into the
Naval Hospital's structure because administrative, personnel and labor
relations functions are centralized at the Naval Hospital level. The
employees at the Bangor clinic and employees at the Naval Hospital share
common overall working conditions; have similar position
classifications and job requirements; are in the same area of
consideration for merit promotions; and are in the same competitive
area for reductions-in-force. Accordingly, Bangor Clinic employees
share a community of interest with employees in the Naval Hospital
units, and a unit of those employees, as clarified, will promote
effective dealings and efficiency of agency operations.
DEPARTMENT OF THE NAVY
NAVAL HOSPITAL
SUBMARINE BASE BANGOR CLINIC
BREMERTON, WASHINGTON
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, DISTRICT LODGE 160, LOCAL
LODGE 282
and
AMERICAN FEDERATION OF GOVERNMENT
employees, AFL-CIO, LOCAL 48
Case No. 9-RO-30020
Upon a petition duly filed under section 7111(b)(1) of the Federal
Service Labor-Management Relations Statute (the Statute), a hearing was
held before a hearing officer of the Authority. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, including the contentions of the
parties, /1/ the Authority finds: The Petitioner, International
Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge
160, Local Lodge 282 (IAM), seeks to exclusively represent all
non-professional general schedule employees at the Naval Regional
Medical Clinic, Submarine Base Bangor (Subbase Bangor), excluding all
professional employees, management officials, supervisors and employees
described in section 7112(b)(2), (3), (4), (6) and (7) of the Statute.
The Intervenor, American Federation of Government Employees, AFL-CIO,
Local 48 (AFGE) is the exclusive representative of two units of Activity
employees: (1) all professional employees of the Naval Regional Medical
Center, Bremerton, Washington (now called the Naval Hospital, Bremerton,
Washington), including employees of the Branch Clinic, Puget Sound Naval
Shipyard, Bremerton, Washington, and employees of the Branch Clinic,
Naval Undersea Warfare Engineering Station, Keyport, Washington,
excluding non-professional employees, management officials, supervisors,
employees of the Naval Hospital, Whidbey Island, Washington, employees
of the Naval Regional Medical Clinic, Seattle, Washington, employees of
the Branch Hospital, Adak, Alaska, and employees described in section
7112 (b)(2), (3), (4), (6) and (7) of the Statute; and (2) all
non-professional employees of the Naval Hospital, Bremerton, Washington,
including employees of Branch Clinic Puget Sound Naval Shipyard,
Bremerton, Washington, excluding professional employees, management
officials, supervisors, employees of the Branch Clinic, Naval Undersea
Warfare Engineering Station, Keyport, Washington, employees of the Naval
Hospital, Whidbey Island, Washington, employees of the Naval Regional
Medical Clinic, Seattle, Washington, employees of the Branch Hospital,
Adak, Alaska and employees described in section 7112(b)(2), (3), (4),
(6) and (7) of the Statute. The AFGE units are covered by a multi-unit
negotiated agreement, effective May 25, 1983, for a duration of three
years.
The Activity argues that the proposed unit of non-professional
employees is inappropriate because the employees sought accreted to the
Naval Hospital bargaining unit exclusively represented by AFGE. It
contends, in addition, that the petitioned-for unit would fragment the
existing unit and would not ensure a clear and identifiable community of
interest nor promote effective dealings and efficiency of agency
operations, which are requirements for exclusive units under section
7112(a)(1) of the Statute. /2/ AFGE contends that it represents the
employees at the Bangor Clinic through accretion and that such employees
are covered under the parties' current multi-unit negotiated agreement.
On or about October 1, 1982, the Branch Clinic at Bangor was
organizationally transferred from the Commander at Subbase Bangor to the
Commander of the Naval Hospital, Bremerton, Washington. /3/ This
transfer of function was completed in August 1983. The employees of the
Branch Clinic at Bangor have not physically moved, are under the same
immediate supervision and perform the same work as they performed prior
to the reorganization. However, substantial organizational and
operational changes have occurred. Thus, the officer-in-charge (OIC) of
the Bangor Clinic now reports to the Commander of the Naval Hospital
instead of to the Subbase Commander, and the OIC now is considered a
department head of the Naval Hospital. Further, the Bangor Clinic
employees are now covered under the Naval Hospital's personnel policies
and practices. They share the same competitive area for
reductions-in-force and are in the same area of consideration for merit
promotions as other Naval Hospital employees. Also, all administrative,
personnel and labor relations services are centralized at the Naval
Hospital, and Bangor Clinic employees' personnel files have been
physically located at the Naval Hospital facility since the
reorganization. Bangor Clinic employees have the same position
classifications as other employees of the Naval Hospital, and have the
same accreditation requirements; thus, jobs are interchangeable among
employees at the hospital and its clinics, and at least one transfer has
occurred from the hospital to the Bangor Clinic. Further, the employees
at the Bangor Clinic have regular contact with employees at the Naval
Hospital concerning patient care, supplies and training.
Based on the foregoing, the Authority finds that following the
Activity's reorganization of October 1, 1982, the employees of the
Bangor Clinic, including the non-professional employees whom IAM here
seeks to represent in a separate bargaining unit, accreted to the
respective units of professional and non-professional employees at the
Naval Hospital exclusively represented by AFGE. It is clear that Bangor
Clinic employees are organizationally and functionally integrated into
the Naval Hospital's structure because, as noted, administrative,
personnel and labor relations functions are centralized at the Naval
Hospital level. Further, the Authority notes that the employees of the
Bangor Clinic and the employees in the AFGE units share common overall
working conditions; have similar position classifications and job
requirements; are in the same area of consideration for merit
promotions; and are in the same competitive area for
reductions-in-force. Therefore, it is concluded that the Bangor Clinic
employees share a community of interest with employees in the Naval
Hospital units, and that those units, as clarified, will promote
effective dealings and efficiency of agency operations. See U.S.
International Trade Commission, New York Office, 8 FLRA 283 (1982). /4/
Having concluded that the employees at the Bangor Clinic accreted
into the respective professional and non-professional AFGE units, it
follows that the unit of non-professional employees sought in the
petition filed by the IA, herein is not appropriate for the purpose of
exclusive representative inasmuch as these employees do not share a
community of interest separate and distinct from the other Naval
Hospital employees exclusively represented by AFGE. That petition,
therefore, shall be dismissed.
IT IS ORDERED that the respective professional and non-professional
employee units for which the American Federation of Government
Employees, AFL-CIO, Local 48 holds exclusive recognition at the Naval
Hospital, Bremerton, Washington, be, and they hereby are, clarified to
include in such respective units all eligible employees of the Branch
Clinic, Bangor, Washington, who were organizationally transferred to the
Naval Hospital, Bremerton, Washington from the command of the Submarine
Base Bangor on October 1, 1982.
IT IS FURTHER ORDERED that the petition in Case No. 9-RO-30020
seeking to represent the non-professional employees at the Branch
Clinic, Bangor, Washington, in a separate unit be, and it hereby is,
dismissed.
Issued, Washington, D.C., June 14, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The opeiu was certified as the exclusive representative on March
6, 1981, for a unit defined as follows: all professional and non
professional employees of the department of energy's oak ridge
operations and technical information center, excluding employees
represented by other labor organizations in exclusive units, management
officials, supervisors and employees described in 5 usc 7112(B)(2), (3),
(4), (6), and (7).
/1/ The brief filed by the American Federation of Government
Employees, AFL-CIO, Local 48 was untimely filed and therefore was not
considered by the Authority.
/2/ Section 7112(a)(1) provides:
Sec. 7112. Determination of appropriate units for labor
organization representation
(a)(1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in
order to ensure employees the fullest freedom in exercising the
rights guaranteed under this chapter, the appropriate unit should
be established on an agency, plant, installation, functional, or
other basis and shall determine any unit to be an appropriate unit
only if the determination will ensure a clear and identifiable
community of interest among the employees in the unit and will
promote effective dealings with, and efficiency of the operations
of, the agency involved.
/3/ It does not appear that prior to the transfer the employees of
the Bangor Clinic were exclusively represented by any labor
organization.
/4/ Compare U.S. Department of Energy, Oak Ridge Operations Office,
Oak Ridge, Tennessee, 15 FLRA No. 24 (1984), (accretion was denied
because there was no community of interest between the employees at
issue and those already in the unit, after a reorganization), and
Federal Aviation Administration, Aviation Standards National Field
Office, 15 FLRA No. 14 (1984) (none of the labor organizations involved
sought to accrete any previously represented employees into their own
units of exclusive recognition).
15 FLRA 22; FLRA O-AR-612; June 13, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1704. Reversal
DIGEST NOTES
The dispute in this matter concerned the termination of a
probationary employee. The arbitrator determined that the matter was
not arbitrable but he denied the grievance on its merits. The union
contended in its exceptions that the award is contrary to law. The
Authority held that the award, by finding the grievance arbitrable and
resolving the grievance on the merits, was deficient in its entirety as
coverage by a negotiated grievance procedure concerning the separation
of a probationary employee is precluded by 5 U.S.C. 3321 and 5 Cfr part
315, subpart H. Accordingly, the award was set aside.
VETERANS ADMINISTRATION MEDICAL
CENTER, KERRVILLE, TEXAS
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2281
Case No. O-AR-612
This matter is before the Authority on exceptions to the award of
Arbitrator John A. Bailey 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.
The dispute in this case concerns the separation of the grievant
during her probationary period. A grievance was filed and submitted to
arbitration contesting the separation. The Arbitrator determined that
the matter was arbitrable, but he denied the grievance on its merits.
As one of its exceptions, the Union contends that the award is
contrary to law. Because the Authority has determined, for the reasons
which follows, that the instant grievance was not arbitrable, it need
not address the merits of the Union's exceptions.
In Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
3342, 14 FLRA No. 33 (1984), the Authority specifically held on the
basis of the rationale and conclusion of the court in Department of
Justice, Immigration and Naturalization Service v. Federal Labor
Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee is precluded by governing law and regulation.
Thus, in terms of this case, the Authority concludes that the award, by
finding the grievance arbitrable and resolving the grievance on the
merits, is deficient in its entirety as contrary to the statutory and
regulatory scheme set forth in 5 U.S.C. 3321 and 5 Cfr part 315, subpart
H. Accordingly, the award is set aside.
Issued, Washington, D.C., June 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
15 FLRA 21; FLRA 8-CA-20260; June 13, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
6500. UNFAIR LABOR PRACTICE: PROCEDURES
6800. Remedies
6810. For Agency Violations
DIGEST NOTES
The Authority has previously established the principle that where
agency management elects to bargain over a matter covered under Sec.
7106(b)(1), i.e., "permissive" subjects of bargaining rather than
"mandatory" subjects of bargaining, and the parties reach agreement
thereon, either party retains the right to unilaterally terminate such a
provision upon the expiration of the agreement. Similarly, where
parties have reached agreement on matters which are outside the required
scope of bargaining under the Statute, either party may elect not to be
bound by such provisions upon the agreement's expiration. In this case,
therefore, when the exclusive representative indicated that it no longer
wished to be bound by a waiver of its right to negotiate a change in
watch schedules of unit employees contained in an expired collective
bargaining agreement, management could no longer insist upon the
continuation of that waiver provision. Consequently, when the agency
refused to bargain with the union, insisting that under the expired
collective bargaining agreement its bargaining obligation was limited to
consultation rather than negotiation of a change in watch schedules, the
agency violated Sec. 7116(a)(1) and (5), the Authority found.
Where the agency posted a letter to unit employees in a read and
initial binder concerning the decrease in the number of employees in a
particular watch schedule consisting of rotating shifts, and the agency
required input directly from the employees in establishing new or
alternative schedules, the agency bypassed the exclusive representative
in violation of Sec. 7116(a)(1) and (5), the Authority held in adopting
the ALJ's conclusion.
A status quo ante remedy is not feasible in this case, the Authority
held. The violation found involved the failure to negotiate a change in
the staffing level of watch schedules. The preexisting level no longer
existed at the time the agency found it necessary to alter the watch
schedule due to the resignation of one of the six employees.
Accordingly, rather than a status quo ante remedy, the Authority found
that a bargaining order was appropriate.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
LOS ANGELES, CALIFORNIA
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, LOCAL 503
Case No. 8-CA-20260
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as 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
had not engaged in certain other alleged unfair labor practices and, in
effect, recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent, the General Counsel and the Charging Party
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 hereby adopts the
Judge's findings, conclusions, and recommended Order, only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by failing to bargain over a change in watch
schedules for unit employees and by bypassing the exclusive
representative, the Professional Airways System Specialists, Local 503
(PASS) in dealing directly with unit employees. Citing Authority
precedent, the Judge found that a change in watch schedules is a matter
concerning which an agency is obligated to negotiate with an exclusive
representative, absent a clear and unmistakable waiver of bargaining
rights. In this case, the Judge found that the Respondent's obligation
to bargain over the change was limited to consultation rather than
negotiation by virtue of provisions contained in an expired collective
bargaining agreement negotiated by the Respondent and PASS' predecessor,
the Federal Aviation Science and Technological Association (FASTA) in
which FASTA had clearly and unmistakably waived its right to negotiate
over changes in the watch schedule. /1/ Relying on the Authority's
decision in U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981), the
Judge found that the Respondent and PASS were obligated to continue, to
the maximum extent possible, the provisions contained in the expired
FASTA agreement which limited the Respondent's obligation to one of
consultation over the change in the watch schedule. The Judge further
found, based on the record, that the Respondent had in fact fulfilled
its obligation to consult and concluded that the Respondent had not
violated section 7116(a)(1) and (5) of the Statute, as alleged in the
complaint.
With respect to the allegation of a bypass, however, the Judge found
that the Respondent had violated section 7116(a)(1) and (5) of the
Statute by dealing directly with unit employees concerning the
development of alternative watch schedules.
As noted above, the Judge relied upon the Authority's decision in
Nuclear Regulatory Commission in reaching the conclusion that the
Respondent and PASS were bound by the waiver provisions contained in the
expired FASTA agreement. In Nuclear Regulatory Commission, and the
decisions cited therein, the Authority determined that existing
personnel policies, practices and matters affecting working conditions
(i.e., negotiable conditions of employment) contained in a negotiated
agreement continue, to the maximum extent possible, upon the expiration
of that agreement, absent an express agreement to the contrary to unless
modified in a manner consistent with the Statute. The Authority
determined that such a result fosters stability in Federal
labor-management relations. Thereafter, in Federal Aviation
Administration, Northwest Mountain Region, Seattle, Washington and
Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89
(1984), a case involving the Federal Aviation Administration, PASS and
the same expired FASTA agreement as is involved herein, the Authority
reaffirmed the principle enunciated in Nuclear Regulatory Commission
with respect to the maintenance of existing conditions of employment
established pursuant to the mutual obligation to negotiate over
"mandatory" subjects of bargaining. However, the Authority
distinguished such matters from those which relate to "permissive"
subjects of bargaining and concluded that where agency management has
elected to bargain over a matter covered under section 7106(b)(1) of the
Statute and the parties reach agreement thereon, either party retains
the right to unilaterally terminate such a provision upon the expiration
of the agreement. Similarly, the Authority concluded that where parties
have reached agreement on matters which are outside the required scope
of bargaining under the Statute, either party may elect not to be bound
by such provisions upon the agreement's expiration. In reaching this
result, the Authority noted that where parties have elected to bargain
over "permissive" subjects of bargaining and have reached agreement
thereon, stability in Federal labor-management relations can be achieved
during the life of the parties' agreement while preserving each party's
right to terminate such matters upon the expiration of that agreement.
The Authority further noted that such a result is also consistent with
Congressional intent that in any subsequent negotiations, either party
may elect not to bargain over permissive subjects.
Applying the above principles in Federal Aviation Administration,
Northwest Mountain Region, the Authority determined that the waiver of
bargaining rights contained in Article 54, Section 2 of the expired
FASTA agreement, cited here at n. 1, supra, constituted a permissive
subject of bargaining which was binding during the life of the agreement
but was terminable by either party upon the expiration of the agreement.
Accordingly, the Authority concluded that when PASS indicated that it
no longer wished to be bound by such provision but desired instead to
exercise its bargaining rights as the exclusive representative of unit
employees, management could no longer insist upon the continuation of
the waiver provision which contained a limitation on its bargaining
obligation. The same conclusion must be reached in this case, which
involves the identical provision of the expired FASTA agreement and the
identical assertion by PASS of its right to negotiate rather than
consult about the change in the watch schedule. Similarly, with respect
to the waiver of bargaining rights contained in Article 37 (supra, n.
1), which specifically refers to changes in the watch schedule, the
Authority concludes that such a waiver provision also constituted a
permissive subject of bargaining and, upon expiration of the agreement,
terminated when PASS indicated its intent to no longer be bound by the
provision which required only consultation but instead sought to
exercise its right to negotiate. Accordingly, the Respondent could not
then have insisted upon following the practices contained in these
expired agreement provisions so as to preclude bargaining over the
change in the watch schedule. In sum, the Authority finds that the
provisions contained in Article 54, Section 2 and Article 37 of the
expired FASTA agreement concerned permissive subjects of bargaining and
that the waiver of bargaining rights contained therein were no longer
binding on the parties once PASS indicated that it no longer wished to
be bound by such practices.
Having found that the waiver of bargaining rights contained in
Articles 54 and 37 of the expired FASTA agreement were no longer binding
on PASS and the Respondent, the Authority concludes that the Respondent
had a statutory obligation to provide prior notice to PASS and afford it
an opportunity to negotiate over the change in the watch schedule. /2/
See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
9 (1981) and U.S. Customs Service, Region V, New Orleans, Louisiana, 9
FLRA 116 (1982). The record reveals in this regard that the Respondent
refused to bargain with PASS, upon the latter's request, insisting
instead that its bargaining obligation was limited to consultation. The
Authority finds under these circumstances that the Respondent's refusal
to fulfill its duty to bargain constitutes a violation of section
7116(a)(1) and (5) of the Statute.
With respect to the allegation that the Respondent had bypassed the
exclusive representative, PASS, by dealing directly with unit employees,
the Authority adopts the Judge's conclusion that such conduct violated
section 7116(a)(1) and (5) of the Statute. The record reveals in this
connection that the watch schedule involved herein, consisting of
rotating shifts staffed by six employees on a continuous basis, was
disrupted by the resignation of one employee and therefore necessitated
action by the Respondent to ensure that all shifts in the watch schedule
would continue to be covered at all times. The record further indicates
that, instead of fulfilling its statutory duty to bargain with PASS, as
found above, and despite receiving specific notice from the president of
PASS that he was the authorized representative of PASS for such purpose,
the Respondent required unit employees to provide direct input
concerning the development of a new watch schedule and solicited their
assistance in establishing alternative schedules, one of which was
adopted and put into effect over the objections of PASS' president. The
Authority concludes that the Respondent's direct dealings with unit
employees concerning changes in their conditions of employment as set
forth above constituted an unlawful bypass of PASS, the employees'
exclusive representative, in violation of section 7116(a)(1) and (5) of
the Statute. In this connection, see Social Security Administration,
Baltimore, Maryland, 9 FLRA 909 (1982), wherein the Authority found that
management's conduct in meeting directly with unit employees concerning
the development of their performance standards while denying the
exclusive representative an opportunity to bargain about the manner in
which such employee participation would be provided constituted a
violation of section 7116(a)(1) and (5) of the Statute. /3/
To remedy the unfair labor practice conduct found herein, the General
Counsel and PASS requested rescission of the change in the watch
schedule and a return to the status quo ante. In the Authority's view,
such a remedy is not feasible where the preexisting watch schedule was
based on a staffing level of six employees, which level no longer
existed at the time that the Respondent found it necessary to alter the
watch schedule due to the resignation of one of the six employees.
Rather, the Authority finds that it will effectuate the purposes and
policies of the Statute to order that the Respondent, upon request, must
negotiate with PASS concerning changes in the unit employees' watch
schedule.
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 Department of Transportation, Federal Aviation Administration,
Los Angeles, California, shall:
1. Cease and desist from:
(a) Changing the watch schedule of unit employees without
affording the Professional Airways Systems Specialists, Local 503,
the employees' exclusive representative, an opportunity to
negotiate over such change.
(b) Bypassing the Professional Airways Systems Specialists,
Local 503, the exclusive representative of its employees, by
dealing directly with unit employees concerning personnel
policies, practices and matters affecting their working
conditions.
(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) Upon request, negotiate with the Professional Airways
Systems Specialists, Local 503, concerning changes in the unit
employees' watch schedule.
(b) Post at its Los Angeles TRACON facility, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Such forms shall be signed by the Los
Angeles Airway Facilities Sector Manager, or his designee, and
shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., June 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT change the watch schedule of unit employees without
affording the Professional Airways Systems Specialists, Local 503, the
exclusive representative of our employees, an opportunity to negotiate
over such change.
WE WILL NOT bypass the Professional Airways Systems Specialists,
Local 503, the exclusive representative of our employees, by dealing
directly with unit employees concerning personnel policies, practices
and matters affecting their working conditions.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate with the Professional Airways
Systems Specialists, Local 503, concerning changes in the unit
employees' watch schedule.
(Activity)
By: (Signature) (Title)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071 and whose telephone number is: (213) 688-3805.
Malachy T. Coghlan, Esq. and
Gary W. Baldwin, Esq., on the brief
For the Respondent
Woody N. Peterson, Esq. and
Joseph E. Kolick, Jr., Esq., on the brief
For the Charging Party
Deborah S. Wagner, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq.
Upon an unfair labor practice charge filed by the Professional
Airways Systems Specialists, Local 503 (herein referred to as the Union)
against the Department of Transportation, Federal Aviation
Administration, Los Angeles, California (herein referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region VIII, issued a Complaint and Notice of Hearing on
July 29, 1982 alleging Respondent violated section 7116(a)(1) and (5) of
the Statute by unilaterally changing the work hours of certain unit
employees and bypassing the Union by conducting meetings with unit
employees outside the presence of any Union representative. /4/
A hearing on the Complaint was conducted on October 7, 1982 in Los
Angeles, California, at which time all parties were represented by
counsel and afforded full opportunity to adduce evidence, call, examine
and cross-examine witnesses and argue orally. Briefs were filed by all
parties and have been duly considered. /5/
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 and conclusions of law:
Background and Events
On December 31, 1981 the Professional Airways Systems Specialists
(PASS) was certified as the exclusive collective bargaining
representative for various of Respondent's employees including Automated
Radar Terminal Systems (ARTS) Electronic Technicians located at
Respondent's Los Angeles TRACON facility. Prior to PASS's certification
on December 31, 1981, the same employees were represented by the Federal
Aviation Science and Technological Association/National Association of
Government Employees (FASTA). While FASTA was the employees'
representative, it negotiated a collective bargaining agreement with
Respondent, effective 1977, which was still in effect when PASS
succeeded FASTA as the employees' representative.
Local 503 is a constituent of PASS. At least since the time PASS was
certified, and at all times material herein, Elton Sapp was President of
Local 503. As Local Union President Sapp alone was authorized to
negotiate with management on behalf of the Union with regard to local
labor-management relations at the Los Angeles TRACON facility. In
January 1982 Sapp notified Respondent that he had designated certain
individuals as "Unit Reps" (Unit Representatives) for various units
within the Los Angeles TRACON, naming himself and George Woo as Unit
Representatives for ARTS employees. Actually Sapp served as Unit
Representative and Woo served as Alternate Unit Representative in Sapp's
absence. As an Alternate Unit Representative Woo was not authorized to
negotiate on behalf of the Local or process employee grievances. While
it is not entirely clear from the evidence precisely what duties Woo had
when acting as a Unit Representative, it appears that his function was
limited to simply being available to discuss with employees any job
problems they might have if Sapp was not available. /6/ Woo was also
Secretary-Treasurer of the Local with responsibilities limited to
keeping minutes of meetings and fiscal bookkeeping.
The ARTS unit was composed of six employees called "watchstanders"
who covered a seven day, around-the-clock work schedule. In early March
1982 one of the six employees tendered his resignation. Apparently
Respondent decided not to replace the employee and a schedule had to be
designed to cover the workweek with five rather than six employees.
Accordingly, on March 15, 1982 Don Jefferis, ARTS unit supervisor,
posted a letter dated March 12 to ARTS unit employees in a Read and
Initial Binder concerning the decrease of watchstanders. /7/ The letter
stated, inter alia: "I require input (verbal or written) from each
technician regarding a new watch schedule." The letter further stated:
"This information is required immediately due to pending resignation of
a watchstander." Attached to the letter was a then current schedule that
Jefferis had modified for use until a new schedule became effective.
When the five remaining watchstanders became aware that the work
would now be performed by five rather than six employees, they attempted
to design a workable schedule. /8/ Four or five models were developed
and passed from shift to shift for comment by the watchstanders and
eventually reduced to two proposed schedules. The proposals were given
to Sapp who met with Jefferis on March 22 to discuss the matter. /9/
The meeting lasted approximately one-half hour during which time Sapp
presented Jefferis with one of the proposed schedules and informed him
that four of the five watchstanders expressed a willingness to work with
it. Jefferis reviewed the schedule and indicated his objection to the
presence of certain "short turnaround" aspects of the proposal.
Jefferis said he'd study the proposal and attempt to develop a different
schedule and present it to the crew to see if they liked it. Sapp
replied that Jefferis should bring any proposal to him for discussion
and he, in turn, would take it back to the crew, get their reaction and
report back to Jefferis. Jefferis indicated he'd reach a decision on
the matter as soon as possible and let Sapp know of his decision no
later than March 29.
Thereafter, Jefferis reviewed Sapp's proposed schedule and another of
his own which required four technicians to cover the shifts. On March
25, 1982 Jefferis went to the TRACON work area "to inform the people
that were available at that time what (his) next step was going to be."
Jefferis showed his four technician schedule to George Woo, informed him
that he was going to put the schedule into effect and asked Woo for his
comments. Woo indicated his objection to the proposal based upon the
manner in which weekend work was scheduled. While Jefferis was talking
to Woo, technician Al Davis came into the area and Jefferis also showed
him the proposed schedule. /10/
On March 28, 1982 Jefferis posted his four technician schedule noting
that the new watch schedule would be effective June 27, 1982. After
seeing the schedule, technician Stephen Herbst went to Jefferis and told
him that the schedule was a difficult one to work and he didn't like it.
Jefferis told Herbst to "come up with something else" if he could and
Herbst said he would try.
On March 30, 1982, Woo went to Jefferis' office and told Jefferis
that if the posted technician schedule was modified by adding a "second
week of days," the schedule would be substantially improved. /11/
Jefferis agreed and added that the modification would make it easier for
him to assign work. However, Jefferis indicated to Woo that he wouldn't
do anything about the schedule until other watchstanders had an
opportunity to see it.
Sapp had been absent from work on sick leave from March 23 through
March 29, 1982. By letter dated March 31 Sapp provided Jefferis, and
Jefferis' immediate supervisor, Wallace Ward, with the following letter:
"This letter is to inform you that it is necessary for us to
meet immediately to further negotiate the ARTS watch schedule.
The schedule filed in the read binder dated March 28, 1982 is not
one of the schedules that we discussed at our last meeting (March
22, 1982).
"If this schedule dated 3/28/82, is implemented it will be in
violation of the Federal Service Labor-Management Relations
Statute. (Specifically Chapter 71 of TITLE 5 of the U.S. Code, 1.
Section 7114(a)(1) and (2)(A). 2. Section 7116(a)(5)).
"As exclusive representative of PASS, I am the sole bargaining
agent in any matter affecting working conditions of personnel In
the arts unit. since no agreement to the proposed policy change
was made between us, the schedule dated 3/28/82 is unacceptable
and another meeting is necessary to resolve a bargaining
agreement.
Please notify me in writing by April 2, 1982 as to your
intentions."
On April 1, 1982 Jefferis and James Lougheed, Assistant Sector
Manager of the Los Angeles Airway Facilities Sector, went to Sapp's work
station to discuss the watch schedule as modified by Woo's suggestion.
Lougheed said he was under the impression that the Woo schedule was
acceptable to everyone and asked why it could not be adopted. Sapp
replied he didn't know for a fact that the Woo schedule was acceptable
to everyone since he hadn't had an opportunity to talk to the entire
crew about the matter. Sapp indicated that if the crew agreed to the
schedule, even if he personally didn't, then the Woo schedule could be
implemented. Sapp told Lougheed that he would talk to the crew and get
back to him on April 4, which arrangement was acceptable to Lougheed.
On April 5, 1982 Sapp wrote and delivered a letter to Lougheed's
office concerning the watch schedule situation. /12/ In the letter Sapp
inter alia, rejected the Woo schedule, indicating that he had concluded
his discussions with the crew and four of the five employees preferred a
schedule which had all employees working 5 days followed by 2 days off,
in order to avoid hardship to employees and their families. /13/ Sapp
further stated that he had not yet received a reply to his March 31
letter, supra, and indicated he wished to be notified by April 12 as to
Lougheed's "intentions."
On April 6, 1982 Jefferis and Sapp had another meeting regarding the
watch schedule. /14/ Jefferis informed Sapp that he felt he had fully
consulted on the watch schedule issue and would not negotiate on the
matter with the Union. Sapp replied that management's obligation was to
negotiate with the Union and not merely consult. Jefferis replied that
he received word from his supervisor, Ward, that the only requirement
Respondent had with PASS was the requirement under the "old" FASTA
contract, to consult. Sapp stated he still didn't have a reply from his
March 31 letter, supra, and Jefferis responded it wasn't necessary for
him to reply and, if he did, he'd do so "when he was damn good and
ready." Jefferis then terminated the meeting.
On April 8, 1982 Jefferis posted the Woo schedule in the Read and
Initial Binder. An accompanying letter informed employees that after he
posted the March 28 watch schedule, Jefferis received a suggestion from
Woo, "ARTS Unit Union Rep.", relating to the scheduling of watches which
was reflected in the new schedule. The letter indicated that the new
schedule would be effective July 11, 1982.
On April 13, 1982 Lougheed met with Sapp and attempted to assure him
that Jefferis had considered all alternatives for the watch schedule.
Lougheed asked Sapp what "hardships" Sapp was referring to in his March
31 letter, supra, and Sapp replied that he and another employee would
have hardships brought on by the watch schedule. Thereafter, by letter
dated April 20, 1982, Jefferis informed Sapp, inter alia, that the
schedule Sapp submitted on March 22 was "carefully considered" but
rejected, citing the reasons therefore. The letter also noted that the
schedule posted on April 8 "was adopted from information supplied by
Woo, "ARTS Unit Union Rep.".
On April 28, 1982 the Union filed the present unfair labor practice
charge.
Relevant Contract Provisions
Since September 1982 Respondent and the Union have been engaging in
negotiations for a national agreement. However, during the period
relevant hereto at the Los Angeles TRACON, the parties were "working
with" or "working under" the 1977 FAA/FASTA agreement, supra. /15/
Article 54 of that agreement provides:
"Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
"Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this
agreement."
Regarding watch schedules and shift assignments, Article 37 of the
agreement provides, in relevant part:
"Section 1. The basic watch schedule is concerned only with
regular, recurring shift or work assignments and is defined as the
days of the week, hours of the day, rotation of shifts, and change
in regular days off. Assignments of individual employees to the
watch schedule are not considered as changes to the basic watch
schedule. The basic watch schedule will not be changed without
prior consultation with the Union. In developing the basic watch
schedule, the sector manager/sector field office chief or their
designee shall meet with the Union representative and carefully
consider his/her views and recommendations concerning the
schedule. The objective of this meeting or meetings shall be to
carefully and thoroughly examine the alternatives and options
available as suggested by the Union representative."
Positions of the Parties
Counsel for the General Counsel and the Union essentially allege that
Respondent violated the Statute by failing to negotiate in good faith
with the Union and bypassing the Union by dealing directly with
employees on the watch schedule change. Respondent denies it was
obligated to negotiate with the Union over the change and maintains its
obligation to the Union was only to consult on the matter. Respondent
contends that, in any event, its dealings with Union Representative Sapp
and Alternate Unit Representative Woo constituted negotiation on the
change and further contends that the evidence is insufficient to
establish a bypass.
Discussion
Clearly a change in work schedules is a matter over which an agency
is obligated to negotiate with the collective bargaining representative,
absent a clear and unmistakable waiver of bargaining rights. U.S.
Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982);
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2 (1981); and National Treasury Employees Union, Chapter 66 and
Internal Revenue Service Kansas, City Service Center, 1 FLRA 927 (1979).
Respondent contends that such a waiver can be found in the FAA/FASTA
agreement, supra, and urges that the Union is bound by the waiver.
Counsel for the General Counsel and the Union contend that any waiver of
statutory bargaining rights found in the FASTA agreement should not be
held to bind PASS, the successor union to FASTA.
In my view this issue is controlled by the Authority's decision in
U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981). In that case the
American Federation of Government Employees (AFGE) represented various
of the agency's employees and a negotiated agreement gave AFGE the right
to use bulletin boards, except for posting material which reflected
"adversely on individuals, organizations or activities of the Federal
Government." The National Treasury Employees Union (NTEU) replaced AFGE
as the certified collective bargaining agent and thereafter the
agreement between AFGE and the agency terminated. Subsequently, the
agency removed from bulletin boards material posted by NTEU, citing the
restrictions noted above contained in the negotiated agreement between
AFGE and the agency pertaining to adverse material. NTEU filed an
unfair labor practice charge and the General Counsel issued a complaint
contending the agency's actions unilaterally changed existing conditions
of employment and a past practice. The Authority held:
" . . . the clause relating to bulletin boards in the expired
agreement created a condition of employment which remains binding
in its entirety despite the agreement's expiration and the change
of exclusive representative. In the Authority's opinion, the
purposes and policies of the Statute are best effectuated by a
requirement that existing personnel policies, practices, and
matters affecting working conditions to continue, to the maximum
extent possible, upon the expiration of a negotiated agreement,
absent an express agreement to the contrary or unless modified in
a manner consistent with the Statute. Such a result fosters
stability in Federal labor-management relations, which is an
underlying purpose of the Statute. See Department of Defense,
Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky, 4 FLRA No. 100 (1980); and Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA No. 5 (1980). We see no distinction in the
circumstances of this case where there had been a change in the
exclusive representative since the expiration of the agreement.
The stability of the new bargaining relationship is enhanced by a
required maintenance of existing personnel policies and practices,
and matters affecting working conditions pending the negotiation
of a new agreement."
In the case herein FASTA, by executing Articles 54 and 37 in their
agreement with Respondent, clearly and unmistakably waived its right to
negotiate on changes in the watch schedule and opted to be consulted
instead. The testimony of Herbert Beard who participated on behalf of
Respondent in the negotiations giving rise to the FASTA agreement
strongly supports this conclusion. Thus, Beard testified that during
negotiations, FASTA consciously accepted consultation in place of its
right to negotiate schedule changes in order to obtain an immediate
agreement for dues withholding.
I further conclude that, under the Authority's holding in Nuclear
Regulatory Commission, supra, PASS and Respondent were obligated to
continue "to the maximum extent possible" those practices which flowed
from Articles 54 and 37 of the agreement which, like the clause relating
to bulletin boards in Nuclear Regulatory Commission, created a binding
condition of employment. Indeed Sapp and Jefferis both acknowledged
that employment practices were governed by the FASTA agreement.
Counsel for the General Counsel and counsel for the Union seek to
distinguish Nuclear Regulatory Commission from the case herein by
attempting to limit the application of Nuclear Regulatory Commission to
contract provisions which establish or define personnel policies,
practices and terms and conditions of employment while excluding any
waiver of a statutory right or matter concerned solely with the
statutory relationships between the parties.
I see nothing in Nuclear Regulatory Commission which suggests such a
distinction. Indeed, the language used by the Authority in that case
points to a contrary conclusion. Thus, as cited above, the Authority
found in a similar situation that continuing the policies, practices and
matters concerning working conditions "to the maximum extent possible"
fosters stability in labor management relations. Such language is quite
broad and I discern nothing therein which would indicate the principle
would not be applicable when the issue is one of honoring a waiver of a
union's right to negotiate in a specific situation, noting particularly
that the predecessor union received a checkoff clause in return
therefore. While, as counsel for the Union points out, this approach
may well be different from that followed under the National Labor
Relations Act, there is no indication given in Nuclear Regulatory
Commission that the Authority is inclined to approach the matter in a
manner whereby the express waiver of a statutory right concerning a
union's relationship with an employer would be treated differently from
any other contractual term and condition of employment. Accordingly, I
conclude that Respondent's obligation herein was limited to consultation
with the Union regarding the change in the ARTS work schedule.
Although neither the General Counsel nor the Union has argued that
Respondent in fact did not consult with the Union on the matter, I
nevertheless conclude, based upon the evidence herein, that Respondent
fulfilled its obligation to consult with the Union concerning the change
in the watch schedule. /16/ Thus, Respondent met with Sapp on March 22,
1982, received the Union's proposal, discussed it and gave Sapp its
reasons why it found the Union's proposal unacceptable. Thereafter,
Respondent was available to Sapp for further discussion at all times
prior to deciding what schedule to adopt and indeed, sought him out on
two occasions to discuss the matter. In my view Respondent thus
satisfied its contractual obligation to consult with the Union on the
change. Sapp's insistence on procedures more consonant with
negotiations then consultations could not expand Respondent's obligation
under the contract.
However, while Respondent may have been obligated only to consult and
not negotiate with the Union on the change, this did not obviate
Respondent's obligation under the Statute to deal only with the Union on
the matter and not bypass the Union and deal directly with unit
employees. The contract did not grant any such privilege to Respondent
/17/ and no clear and unmistakable waiver of the Union's right not to be
bypassed was otherwise evident from the evidence presented. /18/ The
Union may have been bound by a waiver of its right to negotiate on
schedule changes, but that waiver should be narrowly construed and not
operate to permit an otherwise prohibited act which tends to deprecate
the Union and erode whatever strength of persuasion it retained through
its right of consultation. This is especially true where, as herein,
the Union was seeking to utilize (indeed maximize) whatever rights it
had to deal with the employer. PASS would have had the right to
negotiate on the schedule change but for the existence of the
contractual waiver noted above. However, neither PASS nor FASTA waived
the right to be the only representative of the employees which are
prescribed by the Statute. I conclude such direct dealings undermined
and impaired the Union's status as exclusive representative. See
Department of Health, Education and Welfare, Social Security
Administration, 1 FLRA 508 (1979) and Iowa National Guard and National
Guard Bureau, 8 FLRA 500 (1982). As stated by the Federal Labor
Relations Council in Department of the Navy, Naval Air Station, Fallon,
Nevada, 3 FLRC 698 at 700 (1975):
" . . . when a labor organization has been selected as the
exclusive representative of employees in an appropriate unit,
agency management must deal with it only, to the exclusion of
other labor organizations and without engaging in direct
negotiations with unit employees over matters within the scope of
the collective bargaining relationship. To permit otherwise would
allow agency management to avoid the responsibility owed to the
exclusive representative to treat it as the only formal
representative who speaks for all unit employees."
Thus, I conclude that while Respondent was not obligated to negotiate
with the Union on the watch schedule change, this did not privilege
Respondent to deal directly with unit employees (or with other labor
organizations) on the change, a matter "within the scope of the
collective bargaining relationship."
Notwithstanding such absence of any right to deal directly with
employees on the watch schedule change, Jefferis: solicited comments
from ARTS unit employees by posting the letter in the Read and Initial
Binder on March 15, 1982; showed his proposed schedule to watchstander
Woo and solicited his comments; also showed his proposal to
watchstander Davis at that same time; asked watchstander Herbst, while
discussing a schedule on March 28, to "come up with something else" if
he could; on March 30 discussed with Woo a modification Woo suggested,
indicating that comments on the schedule by other watchstanders would
also be considered; and ultimately adopted a large measure of Woo's
proposal. /19/ In these circumstances I conclude that Jefferis'
contacts with unit employees as stated above constituted a bypass of the
Union in violation of section 7116(a)(1) and (5) of the Statute.
Respondent contends that when dealing with Woo, Jefferis was dealing
with the Union since Woo was the Alternate Unit Representative for the
ARTS unit and Sapp was absent from work at that time. I find and
conclude that Woo was not acting on behalf of the Union when discussing
the watch schedule change with Jefferis. I do not credit Jefferis'
testimony that he believed he was dealing with the Union when discussing
the schedule change with Woo. Rather, I find that Jefferis considered
Woo only as an interested watchstander. It is clear from the evidence
that Woo was not authorized to negotiate with Respondent on behalf of
the Union and Respondent was never informed that Woo had any such
authority. During his first meeting with the Union on this matter on
March 22, 1982, Jefferis was informed by Sapp that proposals should be
brought to Sapp for discussion and Sapp would contact the ARTS crew.
Although Sapp was on sick leave from March 23 through March 29 there is
no evidence or claim of any overriding exigency which would justify
Respondent dealing with other than the designated Union representative
about the matter. /20/ Further, Jefferis acknowledged in his testimony
that when he went to the TRACON work area on March 25 and talked to Woo
and Davis, he went "to inform the people that were available at that
time what (his) next step was going to be." Clearly Jefferis was not
seeking out Woo as a Union representative but rather expected to discuss
the matter with any watchstander on duty. Indeed, Jefferis' own
testimony regarding his meeting with Woo on March 30 indicates he was
aware that Woo was presenting "his" plan and not the Union's.
Having found that Respondent has engaged in conduct prohibited by
section 7116(a)(1) and (5) of the Statute, I recommend that the
Authority issue the following:
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Transportation, Federal
Aviation Administration, Los Angeles, California, shall:
1. Cease and desist from:
(a) Bypassing the Professional Airways System Specialists, the
exclusive representative of its employees, and dealing directly
with unit employees concerning personnel policies and practices
and matters affecting working conditions relative to changing
watch schedules.
(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 Federal Service Labor-Management Relations
Statute:
(a) Post at Los Angeles TRACON 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 Airway Facilities Sector Manager 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 Sector
Manager shall take reasonable steps to insure 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 that Regional Director, Region VIII, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: March 11, 1983
Washington, D.C.
WE WILL NOT bypass the Professional Airways Systems Specialists, the
exclusive representative of our employees, and deal directly with unit
employees concerning personnel policies and practices and matters
affecting working conditions relative to changing watch schedules.
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)
BY: (Signature)
DATED: . . .
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 VIII, Federal Labor Relations Authority, 350
South Figueroa Street, 10th Floor, Los Angeles, California 90071, and
whose telephone number is: (213) 688-3805.
/1/ The relevant contract provisions provide as follows:
Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this Agreement.
Section 1. The basic watch schedule is concerned only with
regular, recurring shift or work assignments and is defined as the
days of the week, hours of the day, rotation of shifts, and change
in regular days off. Assignments of individual employees to the
watch schedule are not considered as changes to the basic watch
schedule. The basic watch schedule will not be changed without
prior consultation with the Union. In developing the basic watch
schedule, the sector manager/sector field office chief or their
designee shall meet with the Union representative and carefully
consider his/her views and recommendations concerning the
schedule. The objective of this meeting or meetings shall be to
carefully and thoroughly examine the alternatives and options
available as suggested by the Union representative.
/2/ The record indicates in this connection that the Respondent was
placed in the position of having to effect a change in the existing
watch schedule when the number of employees previously manning the
schedule was reduced by the resignation of one employee.
/3/ Compare U.S. Department of the Air Force, 47th Air Base Group
(ATC), Laughlin Air Force Base, Texas, 4 FLRA 469 (1980), wherein the
Authority adopted the Judge's conclusion that management's discussions
with unit employees did not constitute an unlawful bypass of the
exclusive representative because the conversations were conducted solely
to disseminate and gather necessary personal information and did not
concern conditions of employment affecting employees in the unit
generally; management did not solicit or entertain proposals from unit
employees; management did not attempt to negotiate or deal directly
with unit employees in order to obtain their agreement with management's
position; and management did not attempt thereby to put pressure on the
union to take a certain course of action. Compare also Kaiserslautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA No. 184 (1982), wherein the Authority found
thatmanagement's polling of employees for the purpose of gathering
information to support its application for school accreditation by an
independent accrediting agency did not constitute unlawful direct
dealings with employees over matters affecting their conditions of
employment.
/4/ The allegations appear as amended at the hearing.
/5/ Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
/6/ Sapp testified that a Unit Representative was "someone . . . that
other employees could go to and speak about problems that might arise."
Woo testified that in Sapp's absence he "would handle any problems that
might come up with people in our Unit."
/7/ Posting notices on the Read and Initial Binder was the primary
means of communication between Jefferis and watchstanders who are
required to check the binder at the beginning of each watch and initial
each new notice to indicate it had been read.
/8/ It is not clear whether this attempt was directly the result of
Jefferis' letter in the Read and Initial Binder or the remaining
watchstanders began their attempt before Jefferis' notice was posted.
/9/ The following is a composite of the credited portions of Sapp's
and Jefferis' testimony.
/10/ This version of the March 25 incident is a composite of the
credited testimony of Jefferis and Woo.
/11/ Jefferis' testimony on this meeting characterizes Woo's
modification in terms of "he . . . had a plan" and "his plan."
/12/ Sometime between April 1 and April 5, Lougheed approached Sapp
toward the conclusion of Sapp's shift and attempted to discuss
scheduling but Sapp refused, indicating he was "too tired" to do so at
that time.
/13/ Such a schedule is similar to the one Sapp proposed to Jefferis
on March 22, supra.
/14/ I credit Sapp's version of this meeting in that it was more
complete, less conclusionary in expression and was more in accord with
the other facts of this case. However, Sapp's testimony is also less
than a model of clarity in various respects.
/15/ Sapp testified the parties were "working with" the agreement and
Jefferis testified they were "working under" the agreement.
/16/ See Article 37 of the collective bargaining agreement, supra,
which defines "consultation."
/17/ Article 37 of the FASTA agreement indicates that alternatives
and options suggested by the Union would be examined.
/18/ The record contains some testimony which could be interpreted to
support the existence of a past practice whereby Respondent had
previously sought out employees' opinions when watch schedules were to
be changed in the past. However, in order to establish a past practice
the evidence must show that the practice was consistently exercised for
an extended period of time and the parties were aware that such a
practice was being followed. Internal Revenue Service and Brookhaven
Service Center, 6 FLRA 713 (1981). In the case herein the testimony
adduced in this regard was essentially conclusionary in nature and no
testimony was adduced which indicated the collective bargaining agent
was aware that employee opinions or suggestions were sought in the past.
I further note that Respondent made no contention in its amendment to
the complaint, arguments at the hearing, or in its brief that such a
past practice existed.
/19/ Indeed, counsel for Respondent relies, in part, on the contacts
between Jefferis and Woo to support its contention that Respondent, in
fact, negotiated with the Union over the watch schedule change even
though it was only obligated to consult.
/20/ The schedule finally adopted was not posted until April 8, to
become effective July 11, 1982.
15 FLRA 20; FLRA O-NG-923; June 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2702. Timeliness
DIGEST NOTES
An agency head's disapproval of a provision in a locally executed
agreement pursuant to a review under Sec. 7114(c) of the Statute is an
allegation of nonnegotiability for purposes of appeal to the Authority.
Consequently, as the union's petition for review was filed more than 15
days after the service of the agency's allegation of nonnegotiability,
the Authority held that the petition was untimely filed under Sec.
2424.3 of its rules and regulations.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2142, AFL-CIO
and
DEPARTMENT OF THE ARMY,
CORPUS CHRISTI ARMY DEPOT,
CORPUS CHRISTI, TEXAS
Case No. O-NG-923
This matter is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute (5 U.S.C. 7101
et seq.) and section 2424.1 of the Authority's Rules and Regulations (5
C.F.R. 2424.1) on a petition for review of negotiability issues filed by
the Union. For the reasons indicated below, the Union's petition must
be dismissed.
From the record before the Authority, it appears that on July 7,
1983, the parties forwarded a locally executed collective bargaining
agreement to the agency head for review and approval pursuant to section
7114(c) of the Statute. During such review, the agency head disapproved
two provisions in the negotiated agreement by letter dated August 5,
1983. Apparently, the parties met and continued bargaining in an
attempt to find alternative language for the proposals which were
declared nonnegotiable. The parties requested assistance from the
Federal Mediation and Conciliation Service but were unable to reach
agreement and resolve the dispute and reached impasse on October 21,
1983. The Union did not request another allegation from the agency but
sought the Authority's determination as to whether the disputed
proposals were within the parties' duty to bargain.
In its statement of position, the Agency asserts that the Union's
petition for review should be dismissed as untimely. In support of its
assertion the Agency argues that since the only written allegation of
nonnegotiability was the August 5, 1983, disapproval, the time limit for
filing a petition for review began to run on that date. The Authority
agrees.
Section 2424.3 of the Authority's Rules and Regulations, which
implements section 7117(c)(2) of the Statute, provides, in pertinent
part:
The time limit for filing a petition for review is fifteen (15)
days after the date the agency's allegation that the duty to
bargain in good faith does not extend to the matter proposed to be
bargained is served on the exclusive representative . . . .
It is well-established that the agency head's disapproval of a
provision in a locally executed agreement pursuant to a review under
section 7114(c) of the Statute is an allegation of nonnegotiability for
purposes of appeal to the Authority. American Federation of Government
Employees, AFL-CIO, Local 1052 and United States Army Engineer Center,
Fort Belvoir, Virginia, 6 FLRA 460 (1981). Since the agency head's
disapproval in this case was served on the Union by mail on August 5,
1983, under section 2424.3 of the Authority's Rules and Regulations as
well as section 2429.22 which is also applicable to the computation of
the time limit here involved, any appeal from that allegation had to be
filed with the Authority no later than August 29, 1983, in order to be
considered timely. Since the Union's petition for review was not filed
until November 7, 1983, it is clearly untimely and must be dismissed on
that basis.
Accordingly, and apart from other considerations, IT IS ORDERED that
the Union's petition for review in this case be, and it hereby is,
dismissed. /1/
Issued, Washington, D.C., June 13, 1984
Harold Kessler, Director, Case
Management
/1/ This dismissal is without prejudice. That is, if the matters
proposed to be negotiated continue in dispute between the parties, an
allegation may be requested in writing and a petition for review duly
filed by the Union with the Authority in accordance with section 2424.3
of the Authority's Rules and Regulations.
15 FLRA 19; FLRA O-NG-960; June 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2702. Timeliness
DIGEST NOTES
Where the union's petition for review of the agency's allegation that
the duty to bargain does not extend to the matter proposed is untimely,
the Authority dismissed the union's petition.
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 226
and
U.S. DEPARTMENT OF AGRICULTURE,
FOOD AND NUTRITION SERVICE
Case No. O-NG-960
This matter is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute and section
2424.3 of the Authority's Rules and Regulations, on a petition for
review of a negotiability issue filed by the Union. For the reasons
stated below, the Union's petition for review must be dismissed as
untimely filed.
Under 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 that the duty to bargain in good faith does
not extend to the matter proposed to be bargained is served on the
Union. Further, section 2429.22 of the Authority's Regulations provides
for an extra five days to be added to the prescribed period when the
document which triggers the running of such period is served on the
other party by mail.
The Agency's allegation in this case was apparently served on the
Union by mail by letter dated February 9, 1984. Therefore, under the
above-cited provisions, the Union's petition for review was due to be
filed with the Authority before the close of business on February 29,
1984. Since the Union's petition for review was not filed until March
2, 1984, it is clearly untimely and must be dismissed on that basis.
Accordingly, and apart from other considerations, the Union's
petition for review is hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 18; FLRA O-NG-947; June 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2705. Moot
DIGEST NOTES
Where the agency contends, without refutation by the union, that
mutual agreement was reached on the matter which is the subject of the
appeal, the case is moot. Consequently, the Authority dismissed the
union's petition for review.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
and
U.S. MARINE CORPS,
MARINE CORPS LOGISTICS BASE,
BARSTOW, CALIFORNIA
Case No. O-NG-947
This matter is before the Federal Labor Relations Authority pursuant
to section 7105(a)(2)(D) of the Federal Service Labor-Management
Relations Statute on a petition for review of a negotiability issue
filed by the Union. For the reason indicated below, the Union's
petition for review must be dismissed.
From the submissions of the parties in the record before the
Authority, it appears that on or about November 2, 1983, the Union
received a copy of a proposed change to Base Order P5500.2C, Ch. 8
concerning the mandatory use of seat belts by civilian employees while
driving on the base. The Union requested to negotiate the need for the
proposed change, as well as its impact and implementation. According to
the Agency, the parties met on January 30, 1984, and negotiated and
executed a Memorandum of Understanding covering the disputed proposal.
By letter dated January 27, 1984, and filed with the Authority on
February 3, 1984, the Union sought the Authority's determination as to
whether a compelling need exists for the regulation in question.
In its statement of position, the Agency contends that the parties'
Memorandum of Understanding has rendered the instant case moot. The
Union has not responded to the Agency's statement of position.
Under these circumstances, that is, that the Agency contends without
refutation by the Union that mutual agreement was reached on the matter
which is the subject of the instant appeal, it is concluded that there
is no longer an issue as to whether the Union's proposal is within the
parties' duty to bargain under the Statute. Thus, this case has been
rendered moot.
Accordingly, and apart from other considerations, the Union's
petition for review is hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 13, 1984
Harold D. Kessler, Director, Case
Management
(MOTION FOR RECONSIDERATION OF 13
FLRA No. 119)
OVERSEAS FEDERATION OF TEACHERS
and
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, MEDITERRANEAN REGION
Case No. O-NG-937
(13 FLRA No. 119)
This case is before the Authority on a motion for reconsideration
filed by the Union on March 27, 1984, seeking reconsideration of the
Authority's Order of January 31, 1984, dismissing the Union's petition
for review.
Section 2429.17 of the Authority's Rules and Regulations, effective
September 10, 1981, 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 . . . .
The Authority's Order was dated and served on the Union's
representative in Washington, D.C. by mail on January 31, 1984.
Therefore, under section 2429.17 of the Authority's Rules and
Regulations, and sections 2429.21 and 2429.22, which are also applicable
to the computation of the time limit here involved, the Union's motion
for reconsideration was due in the national office of the Authority
before the close of business on February 15, 1984. Since, as indicated
above, the Union's motion was not filed until March 27, 1984, it is
clearly untimely and must be denied.
Accordingly, the Union's motion for reconsideration is hereby denied.
For the Authority.
Issued, Washington, D.C., June 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 17; FLRA O-NG-897; June 13, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2250. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of
DIGEST NOTES
Where the agency withdrew its allegation of nonnegotiability
concerning the union's proposals, there was no longer an issue as to
whether the proposal is within the parties' duty to bargain.
Accordingly, the Authority dismissed the petition for review.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1113
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 325th COMBAT
SUPPORT GROUP (TAC),
TYNDALL AIR FORCE BASE, FLORIDA
Case No. O-NG-897
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record before the Authority indicates, that the local parties
executed a collective bargaining agreement and submitted it to the
agency head for review and approval pursuant to section 7114(c) of the
Statute. The agency head disapproved several provisions of the
agreement concerning Union membership on the Base Suggestion Awards
Committee and the Base Incentive Awards Board as contrary to law and
agency regulation. The Union then sought the Authority's determination,
pursuant to section 7117 of the Statute and section 2424.1 of the
Authority's Rules and Regulations, as to whether the disputed proposals
were within the duty to bargain. Subsequently, in a letter dated April
25, 1984, 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 proposal is
within the parties' duty to bargain under the Statute. Accordingly, and
apart from other considerations,
IT IS HEREBY ORDERED that the instant petition for review be
dismissed.
For the Authority.
Issued, Washington, D.C., June 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 16; FLRA O-AR-734; June 13, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1650. No Basis for Review
1651. Statutory Exclusions
1651.05 Suspension for More than 14 Days
DIGEST NOTES
The Authority is without jurisdiction to review the agency's
exceptions where the arbitrator's award relates to the suspension of a
grievant for more than 14 days, a matter covered by 5 U.S.C. 7512.
Consequently, the Authority dismissed the exceptions.
SOCIAL SECURITY ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Case No. O-AR-734
This case is before the Authority on exceptions to the award of
Arbitrator Seymour Strongin, filed by the Activity under 7122(a) of the
Federal Service Labor-Management Relations Statute and part 2425 of the
Authority's Rules and Regulations. For the reason set forth below, the
Activity's exceptions must be dismissed.
In this case, the Arbitrator rescinded the Activity's 30 day
suspension of the grievant.
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 those covered under 5 U.S.C. 7512 which, in turn,
applies to specified adverse actions including suspensions for more than
14 days. Review of an arbitration award relating to such matters must
be obtained in accordance with 5 U.S.C. 7703, i.e., in the manner and
under the same conditions as if the matter involved had been decided by
the Merit Systems Protection Board.
Since the Arbitrator's award in this case relates to a matter covered
by 5 U.S.C. 7512, i.e., the suspension of a grievant for more than 14
days, under section 7122(a) of the Statute, exceptions to the award may
not be filed with the Authority. Rather, the Activity may seek judicial
review of the Arbitrator's award pursuant to 5 U.S.C. 7703.
Consequently, the Authority is without jurisdiction to review the
Activity's exceptions.
Accordingly, the Activity's exceptions are hereby dismissed.
For the Authority.
Issued, Washington, D.C., June 13, 1984
Harold D. Kessler, Director, Case
Management
15 FLRA 15; FLRA 8-CA-366; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.40 Assign Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
4800. Otherwise Refuse to Comply with the Statute
DIGEST NOTES
The agency met its duty to bargain in good faith where it notified
the union of a proposed change in job duties of certain unit employees
prior to a monthly labor-management meeting; where the agency received
four counterproposals from the union which the agency discussed with the
union; where the agency agreed to the union's first counterproposal and
agreed to consider or implement its second counterproposal at an
unspecified future date; and where the agency correctly declared the
other two counterproposals to be nonnegotiable as contrary to
management's right to assign work under Sec. 7106(a)(2)(B).
Accordingly, in disagreement with the ALJ, the Authority found that the
agency did not violate Sec. 7116(a)(1) and (5) by its alleged failure to
notify the exclusive representative and afford it an opportunity to
bargain over the impact and implementation of the management proposed
changes in job duties.
Although a meeting only lasted about 15 minutes, the meeting was a
formal discussion within the meaning of Sec. 7114(a)(2)(A). The meeting
was initiated by management and was conducted in a central location by
the head official in the branch office while another supervisor may have
been in attendance; unit employees were required to attend the meeting;
the meeting was called for the specific purpose of announcing changes
directly affecting unit employees' conditions of employment; and after
the announcement, several employees discussed the subject with the
Branch Manager. Since the exclusive representative was not apprised of
the meeting and given an opportunity to be present, the Authority, in
agreement with the ALJ, found that the agency violated Sec. 7116(a)(1)
and (8).
Proposals are nonnegotiable which would have required a claims
representative with the lowest pending backlog to perform certain work
and would prohibit the agency from assigning new job duties to certain
claims representatives for more than sixty days. The proposals directly
interfere with management's right under Sec. 7106(a)(2)(B) to assign
work.
OFFICE OF PROGRAM OPERATIONS
FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS,
SAN FRANCISCO REGION
Case No. 8-CA-366
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Exceptions to the Judge's Decision were filed by the Respondent.
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 were hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified below.
The complaint alleged that the Respondent violated section 7116(a)(1)
and (5) of the Statute by unilaterally changing the job duties of Title
XVI Claims Representatives at its Indio, California Branch Office
without first notifying the Charging Party and affording it an
opportunity to bargain over the impact and implementation of the
aforementioned change, and additionally violated section 7116(a)(1), (5)
and (8) of the Statute by conducting a meeting with unit employees
concerning conditions of employment without first notifying the Charging
Party and giving it an opportunity to be present at the meeting. /1/
As found by the Judge, the Charging Party's representative received a
written agenda from the Respondent's District Manager for a monthly
labor-management meeting. Among the items contained in the District
Manager's agenda was a proposal that would require Title XVI Claims
Representatives at its Indio Branch Office to perform additional duties;
i.e., to complete certain medical forms that previously had been the
work of Title II Claims Representatives at the same branch office. The
Charging Party responded to the District Manager's proposal by
submitting an agenda for the up-coming labor-management meeting which
contained four written counterproposals. At that meeting, the parties
discussed the District Manager's proposal and the Charging Party's first
proposal, and also agreed to consider hiring another Title II Claims
Representative, as the Charging Party requested in its second proposal,
but indicated that this could not be done immediately. With respect to
the Charging Party's third proposal, which would have required the
Respondent to detail a District Office Title XVI Claims Representative
with the lowest pending backlog to work on certain other matters, and
its lowest pending backlog to work on certain other matters, and its
fourth proposal, which would have prohibited the agency from assigning
new job duties to Title XVI Claims Representatives for more than sixty
days, the District Manager took the position that these proposals raised
matters which were management's rights and that he had no intention of
bargaining on such items.
A few days later, pursuant to a directive from the District Manager
to implement the change in assignments, the Respondent's Indio,
California Branch Manager called a staff meeting which was held in the
all-purpose room and attended by unit employees and possibly another
supervisor. At the meeting, the Branch Manager announced that
henceforth Title XVI Claims Representatives would be required to perform
additional duties; i.e., perform work previously assigned to the Title
II Claims Representatives. After the announcement, several employees
discussed the subject with the Branch Manager, explaining why they
believed the assignment of additional duties to them was inequitable.
It is undisputed that the Charging Party was not apprised of the
aforementioned meeting, which lasted about 15 minutes, and that its
representative was not in attendance.
In disagreement with the Judge, the Authority finds that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute by
its failure to notify the Charging Party and afford it an opportunity to
bargain over the impact and implementation of certain changes in the job
duties of Title XVI Claims Representatives. The record shows that the
Charging Party was notified of the Respondent's proposed change in the
job duties of certain unit employees prior to a monthly labor-management
meeting; that it prepared and submitted four counterproposals; and
that it subsequently met and discussed such items items with the
Respondent. The record further indicates that the Respondent agreed to
the Charging Party's first proposal, agreed to consider or implement its
second proposal at an unspecified future date, and took the position
that the Charging Party's third and fourth proposals were, in substance,
nonnegotiable. Based upon the foregoing, the Authority finds that the
Respondent met its duty to bargain in good faith with respect to the
first two proposals. Additionally, the Authority finds that proposals
three and four, which would require a Claims Representative with the
lowest pending backlog to perform certain work and would prohibit the
agency from assigning new job duties to certain Claims Representatives
for more than sixty days, respectively, directly interfere with
management's right under section 7106(a)(2)(B) of the Statute /2/ to
assign work, and therefore were outside the Respondent's duty to
bargain. See American Federation of Government Employees, AFL-CIO and
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2
FLRA 603 (1980) (Union Proposal XVI), affirmed 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). See also National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 6 FLRA
508 (1981) (Union Proposal V). Accordingly, that portion of the
complaint shall be dismissed.
However, the Authority agrees with the Judge's conclusion that the
staff meeting with unit employees at the Indio Branch Office was a
formal discussion under section 7114(a)(2)(A) /3/ of the Statute. /4/
Thus, the meeting was initiated by management and was conducted in a
central office location by the head official in the Branch Office while
another supervisor may have been in attendance; unit employees were
required to attend the meeting; and the meeting was called for the
specific purpose of announcing changes directly affecting unit
employees' conditions of employment. While the meeting only lasted
about 15 minutes, the Authority concludes that it was "formal" in nature
and, under the circumstances, the exclusive representative was entitled
to be apprised of such meeting and given an opportunity to be present.
See, e.g., Internal Revenue Service (District, Region, National Office
Unit), 11 FLRA No. 23 (1983). Accordingly, the Authority finds that the
Respondent violated section 7116(a)(1) and (8) of the Statute because of
its failure to comply with section 7114(a)(2)(A). /5/
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 Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, shall:
1. Cease and desist from:
(a) Holding or conducting formal discussions with bargaining unit
employees without first providing the American Federation of Government
Employees, AFL-CIO, Council of Social Security District Office Locals,
San Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, appropriate advance notice and an opportunity to be
represented at such formal discussions.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees, AFL-CIO,
Council of Social Security District Office Locals, San Francisco Region,
on behalf of the American Federation of Government Employees, AFL-CIO,
and afford it the opportunity to be represented at formal discussions
with bargaining unit employees.
(b) Post at its facilities at the Social Security Branch Office,
Indio, California, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Branch Manager, or his designee,
and shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of the complaint found
to be without merit be, and they hereby are, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT hold or conduct formal discussions with bargaining unit
employees without first providing the American Federation of Government
Employees, AFL-CIO, Council of Social Security District Office Locals,
San Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, appropriate advance notice and an opportunity to be
represented at such formal discussions.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Council of Social Security District Office Locals, San
Francisco Region, on behalf of the American Federation of Government
Employees, AFL-CIO, and afford it the opportunity to be represented at
formal discussions with bargaining unit employees.
(Activity)
Dated: . . . By: . . .
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority whose address
is: 350 Figueroa Street, 10th Floor, Los Angeles, CA 90071, and whose
telephone number is: (213) 688-3805.
Patricia F. Mayer and
Joseph Swerdzewski, Esqs.
For the General Counsel
Wilson G. Schuerholz
For the Respondent
Jeffrey H. Dasteel,
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
Pursuant to a Consolidated /6/ Complaint and Notice of Hearing issued
on April 30, 1980 by the Regional Director for the Federal Labor
Relations Authority, Los Angeles, California Region, a hearing was held
before the undersigned on November 19, 1980 at Palm Springs, California.
The proceeding arose under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (herein called
the Statute). It is based upon a first amended charge filed on April
28, 1980 by American Federation of Government Employees, AFL-CIO,
Council of Social Security District Office Locals, San Francisco,
California (herein called the charging party or the Union) against
Office of Program Operations, Social Security Administration, San
Francisco, California Region (herein called Respondent).
The complaint alleged, in substance, that Respondent engaged in
certain unfair labor practices within the meaning of section 7116(a)(1),
(5) and (8) of the Statute, by unilaterally changing the job duties of
the Title XVI claims representative at its Indio, California Branch
Office, without first notifying the union, and affording it an
opportunity to bargain; and, by conducting a meeting with unit
employees on February 4, 1980, concerning conditions of employment,
without first notifying the Union and giving it an opportunity to be
present.
Respondent filed an Answer in which it denied the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine and
cross-examine witnesses. Thereafter timely briefs were filed with the
undersigned which have been duly considered.
Upon the entire record in this case, 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.
At all times material herein the Union has been the collective
bargaining representative of the employees employed at Respondent's
Indio, California Branch office.
Around January 23, 1980, Victoria Doyle, then the Union
representative for the Palm Springs District Office received a written
agenda from Palm Springs District Manager, Martin Semel, for a monthly
upcoming labor-management meeting. Doyle as union representative in
Respondent's Palm Springs District was charged with the responsibility
of negotiating with management. Among the items contained in Semel's
agenda was a proposal that "Title XVI claims representatives do the
medical part of the interview and development in concurrent claims," at
the Indio, California, Branch Office, a part of the Palm Springs
District. This proposal required the Title XVI claims representatives
rather than the Title II claims representatives who had formerly done
such work, to complete the necessary medical forms for concurrent
claims.
The record disclosed that concurrent claims are those claims filed
for benefits under both disability programs administered by Respondent.
Title II claims representatives work involves standard Social Security
Disability Benefit payments while Title XVI claims representatives
completed interview forms related solely to the Supplemental Security
Income Program. Although claimant's must establish disability to be
entitled to payment under either program the portions of forms required
to be filled out by claims representatives differ, because eligibility
requirements for payment under the programs are different. The
eligibility of one being determined on economic need and the other on
actual disability if the claimant has Social Security coverage. In any
event, medical disability must be established by the claimant on either
form, but certain differences exist as to what is required in filling
out either of the forms. Title XVI claims representatives were not
required to have knowledge of "date of onset" since payment of those
claims were commenced as of the date of application and not date of
injury, illness or disability. On the other hand, "date of onset" is
extremely critical to Title II claims, since payment can be made to a
claimant retroactively for an entire year, depending on how the form is
completed. According to the record, establishment of a correct date of
onset of disability can be difficult and in addition a determination as
to whether a claimant has engaged in substantial employment since the
alleged date of disability must also be made.
Concurrent claims, by claimant's seeking determination as to
eligibility for Title II and Title XVI benefits were generally completed
prior to January 1980 in the Indio office by Title II claims
representatives. Although on rare occasions prior to the incidents
giving rise to this matter Title XVI claims representatives did complete
concurrent claims, on a voluntary basis.
In addition to submitting a Union agenda, Doyle on January 24, 1980
responded by submitting four written counterproposals relating to the
handling of concurrent claims in Indio. The counterproposals were:
1. Extensive training be given the Title XVI CRs on form SSA 3368
specifically question 1, 20-40 being met.
2. The next available hiring slot in the District be directed toward
obtaining a T2 CRfor the Indio Branch Office.
3. The D.O. Title XVI CRwith the lowest pending (until such time as
the D.O. redets are released) be detailed twice a week to work on the
B.O. redet listings.
4. Your proposed change put in effect not to exceed 60 days.
In the counterproposal, Doyle also requested bargaining on the
proposed changes.
On January 31, 1980 Doyle and Semel met. One of the agenda subjects
discussed was the handling of concurrent claims in the Indio office and
Samel's January 23, 1980 proposal. Semel and Doyle began by discussing
the Union's first counterproposal. Doyle requested that training be
given to the Title XVI claims representatives on question one on the
Disability Report, or Form 3368. Semel agreed to this proposal. They
then proceeded to discuss counterproposal two. Again Semel agreed to
consider, in the future, hiring another Title II claims representatives
for Indio, and informed Doyle that at that time no hiring could be done.
Exactly what was said next by the parties is in dispute. According
to Doyle, when they reached counterproposal three, Semel informed her
that this issue was a "management right" and that he would "do what he
wanted". Doyle then asserted her right to bargain and Semel replied: "
. . . he was not bargaining, he had not been bargaining and he would not
ever bargain." Semel testified that when the parties reached the Union's
counterproposal four he did say to Doyle that he would not bargain. /7/
Further, it appears that the parties did discuss the duration of the
change, however, Semel said that he could not bargain. Although the
parties' remained in the meeting and discussed other unrelated matters
there was no further discussion relating to the counterproposals.
Upon leaving the meeting, Doyle telephoned the Indio office to ask
employees there to inform her the moment any change was put into effect.
Shortly after the meeting Semel also called the Indio Office Branch
Manager Ramon Velarde and told him to make the claims representative
change in assignments. Semel, at that time, instructed Velarde to give
the claims representatives "whatever training was necessary."
The Title XVI claims representatives continued to work on concurrent
claims for approximately six-months thereafter before discontinuing that
assignment.
On approximately February 4, 1980, at the beginning of the work day,
Mr. Ramon Velarde, Respondent's Indio Branch Manager called a staff
meeting at which the claims representatives, data review technicians and
possibly Tom Freeland, a supervisor in the Indio office, were present.
Velarde told the staff that commencing that day at 9:00 A.M., the Title
XVI claims representatives would be required to complete all medical
documentation necessary for concurrent claims filed in the Indio office.
Claims representative Carol Cofflin recalls that Velarde told the group
that the change was temporary depending on how many interviews were
coming in.
After Velarde made this announcement to the staff, several employees
discussed the subject with Velarde, and explained to him that, in their
view, the imposition of this additional duty seemed inequitable. These
employees, emphasized that the new task would add significant time to a
Title XVI claims representative's duties which already required nearly
an hour for every new claim interview, whereas the Title II claim
interview took only fifteen minutes. /8/ In response, the claims
representatives were told by Velarde that the Title II claims
representatives needed assistance, and that this was the procedure which
would now be followed in the office. There were no instructions on how
to complete the forms, and the particular items on the forms were not
discussed. The entire meeting, according to the recollections of those
who testified lasted between five and fifteen minutes. There was no
training given as to how the medical forms were to be filled out.
Shortly after the February 4, 1980 meeting, Doyle received a
telephone call from an unidentified employee in the Indio Branch Office
informing her that the change had been announced at a staff meeting that
morning and "that they were to implement the change immediately."
The task of completing the medical forms for concurrent claims
involves completing four separate forms. The Disability Report, or Form
3368, requires fifteen to forty-five minutes to complete; the Work
Activity Report, or Form 821, requires an additional five to thirty
minutes to complete; the Vocational Report, or Form 5369, ten to thirty
minutes; and the Medical Release, or Form 827, a few minutes. On the
average, the medical forms take thirty to forty-five minutes to
complete.
Prior to the change announced on February 4, 1980, the Title XVI
claims representatives had completed the medical forms for Title XVI
claims on only an occasional basis, only two to three times a month for
Title XVI claims. In addition, Title XVI claims representatives had
completed the concurrent forms approximately ten times a month. Pat
Block a Title XVI claims representative in the Indio Office testified
that she completed these forms only once a month. However, after
February 4, 1980 Title XVI claims representatives became responsible for
completing all medical forms, consequently, their duties were increased
substantially. As Block testified, completing the concurrent forms four
or five times each week increased here responsibilities sixteen to
twenty times in this area. Another Title XVI claims representative in
the Indio office, Carol Cofflin testified that completing the concurrent
forms twenty times per month more than doubled the number of times she
was required to fill out such forms.
With this change in assignment all Title XVI claims representatives
were responsible for filling out each of the four medical forms
(Disability Report, Work Activity Report, Vocational Report and Medical
Release) for each concurrent medical claim; these numbered
approximately twenty per week. The new assignment, according to Cofflin
meant four to six additional medical claims a week, each claim requiring
an average of forty-five minutes of additional work for an average of
three to four extra hours of work per week, in addition to all their
other duties. Cofflin also testified that during that period of time
when there were only three Title XVI claims representatives, a Title XVI
claims representative had to complete six to seven concurrent medical
claims per week because almost every claim coming into the office was a
concurrent claim. /9/ Cofflin further asserted that in cases where the
claimant was not sure of his qualifications, the office policy, or at
least the practice among claims representatives was to take the Title II
medical portion as well, making the claim concurrent in nature. Thus,
purely Title XVI claims were only occasionally or rarely processed.
With regard to experience, Cofflin stated that those Title XVI claims
representatives who happened to have had previous Title II experience
had an advantage over those who did not; and, there were indeed, Title
XVI claims representatives in the office who had no previous Title II
experience. Lacking experience these Title XVI claims representatives
had to become concerned with accurately filling out the portion of the
forms concerning date of onset of disability to ensure that the claimant
received proper benefits. This new responsibility required extensive
interviewing by the claims representative since, as previously stated,
the claims representative's initial determination could result in the
grant or denial of substantial amounts of benefits to a particular
claimant based on the date of onset. Finally, as Respondent asserts,
the new assignments to Title XVI claims representatives did indeed
create much more work for them, a result which management desired to
achieve.
The parties' usually met on a monthly basis and bargained, coming to
mutual agreement on various Union proposals according to Union
representative Doyle. Doyle further testified that she had engaged in
back and forth bargaining with Assistant District Manager, Esther Mata.
Doyle also testified that she bargained with management over such
subjects as: procedures to be followed in shipping old files to
storage. In which instance the Union presented written proposals which
were negotiated accepted and implemented by management; the
alpha-breakdown for the date review technicians where the Union
presented a breakdown supported by written statistical information which
was accepted, almost to the letter, and implemented by management; the
updating of the emergency manual on safety procedures and training on
how employees were to keep track of the quantity of their work; and,
(DOWR training) where management agreed and gave the training.
Respondent agreed that the parties had bargained at that level.
Thus, according to Semel, the parties had indeed reached mutual
agreement on a union counterproposal concerning the alpha breakdown for
the date review technicians. He also stated that he had agreed to
follow up on a union proposal to look into hygiene in the Indio Branch
restrooms; and, that in response to Union proposals to conduct safety
training, he agreed to give the training. Further, Semel agreed that he
had met with the Union on a monthly basis. /10/ Even at the January 31,
1980, meeting where the subject of concurrent claims had been discussed,
Doyle, on behalf of the Union, made a proposal over which she and Semel
bargained, and to which Semel ultimately agreed. Thus, it appears that
the parties had bargained back and forth until they began to discuss
counterproposal three.
Respondent presented witnesses to show the bargaining relationship
between the parties and that the Master Agreement limits the union's
rights to consultation at the District level. /11/ Area Director
Marjorie Lee testified that she participated in negotiations of the
Master Agreement, particularly Article 1 which defines the wording of
the Agreement. According to Lee, her understanding of the relationship
between the union and management at the District level was that the
parties were to consult, and she maintained that this was reflected in
the Master Agreement "negotiations shall take place only at the Regional
and District levels." She also stated, without pointing to any
particular section of the contract, that the parties had agreed at
contract negotiations to limit their relationship to one of
consultation. Lee also testified that Article 1 which sets forth the
definition of consultation in Section 7 was a definitional section only,
to be used to interpret the terms of the Master Agreement.
Lee further pointed out that the contract provided for negotiations
at Article 15, Sections (A) and (C); rest periods and overtime) and at
Article 18, Section A (use of leave) of the Master Agreement. Lee was
unable to point to any provision in the Master Agreement which provided
for district level consultations. She stated that the contract was
silent on this point. Finally, Lee testified that there was no existing
written understanding of what the union-management relationship was in
Palm Springs, and that she had never observed or participated in any
dealings between the Palm Springs District Director and the Union.
Respondent submits that the instant situation revolves around the
parties interpretation of the San Francisco Master Collective Bargaining
Agreement and what that agreement provides for concerning bargaining at
the District level. Respondent, therefore, contends that the
appropriate resolution of the matter as to the meaning of the Master
Agreement, is through the procedures established in the agreement. In
Respondent's opinion, its obligation at the District level under the
Master Agreement is limited to consultation. The argument here is
identical to that made in Department of Health and Human Services,
Social Security Administration, Office of Program Operations and Field
Operations, Sutter District Office, San Francisco, California, 5 FLRA
No. 63 (April 1981). There the Respondent contended that it was not
obligated to negotiate with the union, only consult. In that case the
identical collective bargaining agreement was at issue. However, the
Authority found that the Sutter District office involved in that matter
was acting as an agent for the Region, and as such, its actions were
binding upon the Region. The question in this matter is not one of
definition of "consultation" or "negotiation" as Respondent would urge,
but one of whether Respondent had an obligation, when making changes in
terms and conditions of employment to meet with and bargain with the
union at the level at which the changes occurred. An argument that the
terminology of the collective bargaining agreement constitutes a waiver
is outdated. Unless there is mutual agreement to limit an obligation to
bargain the obligation is clearly to "negotiate" rather than as
Respondent contends to consult. Report and Recommendations on the
Amendments to Executive Order 11491, as amended from the Federal Labor
Relations Council, January 1975 at 41-42. The wording of the contract
in this matter does not constitute a waiver. Moreover, as
Administrative Law Judge Arrigo stated after reviewing this same
collective bargaining agreement in the Sutter case, supra, I do not find
that the union waived its statutory right to negotiate on the matters at
issue herein. I am compelled to follow the Authority's reasoning in the
Sutter case, in the instant matter and find no waiver herein.
Likewise, Respondent's argument that assuming that there is an
obligation to bargain on the District level, the subject matter herein
is non-negotiable is rejected. /13/ Although certain reserved rights of
management are set out in section 7106 of the Statute, Agencys are not
relieved of the obligation to bargain concerning impact and
implementation of those changes. Even assuming a reserved right was
exercised herein, impact on employees in this matter can clearly be seen
through increased work loads, training, duration, and the like and
Respondent refused to negotiate regarding those impacts.
Respondent asserts in its brief that it appropriately informed and
dealt with the union concerning the assignment of Title XVI claims
representatives to complete the medical portion of the concurrent
claims, and that the union ended the negotiation process. I disagree.
While Respondent notified the exclusive representative that it intended
to change the duties of Title XVI claims representatives and reviewed
its proposals related to impact and implementation bargaining it did not
engage in good faith negotiations with regard to such impact and
implementation. The record clearly establishes that the District
Officer Manager Semel refused to pursue the Union's last two
counterproposals stating that he "was not bargaining, he had never
bargained, and he would never bargain." Semel's actions, therefore,
prevented the parties from further discussing any aspect of the change
after only two of the Union's counterproposals had been reviewed.
Furthermore, after not reaching agreement and refusing to engage in any
give and take bargaining concerning the counterproposals Semel
immediately telephoned the Indio office and instructed Velarde to
implement the changes. Case law is well settled that an Agency may not
alter terms and conditions of employment in the absence of agreement or
impasse following good faith bargaining. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980);
U.S. Department of the Treasury, Internal Revenue Service, New Orleans
District, 8 A/SLMR No. 497, A/SLMR No 1043 (1978). In this case the
parties were engaged in what appeared to be good faith negotiations
concerning the change in assignment for Title XVI claims representatives
when Respondent decided that it had no obligation to bargain about
certain aspects of the assignments, but merely to consult or exchange
views. Respondent through its actions clearly refused to explore
through the bargaining process what impact there might be. Nor can
Respondent contend that the parties' were not bargaining, for the record
clearly reveals that bargaining had occurred at the monthly
union-management meetings. Concluding unilaterally that it had no
further obligation to negotiate and implementing changes that had never
been agreed upon or which on no impasse had been reached clearly
violates section 7116(a)(1) and (5) of the Statute. /14/
The General Counsel contends that the February 4, 1980 meeting
between Branch Manager Ramon Velarde and unit employees constituted a
formal discussion within the meaning of section 7114(a)(2)(A) of the
Statute, and that the Union was therefore entitled to advance notice and
an opportunity to be represented. Respondent, on the other hand,
contends that the meeting was merely to relay a decision to employees.
The key to whether a meeting is a formal discussion under section
7114(a)(2)(A) of the Statute is whether it concerns personnel policies,
practices and other general working conditions of employment. Cf.
Department of Health, Education and Welfare, Region IV, Atlanta, Georgia
and Department of Health and Human Services, Region IV, Atlanta,
Georgia, 5 FLRA No. 58 (1981). Without question general working
conditions of employment were discussed at this meeting. First,
employees were told that their work load would be increased a
substantial number of times through added duties. Secondly, both the
significant new work load and training were discussed between the
employees involved and Branch Manager Velarde. Where personnel
policies, practices and other general conditions of employment are
discussed the exclusive representative is entitled to be represented.
Failure to allow such presence constitutes a violation of section
7116(a)(1) and (8) of the Statute. Accordingly, it is found that the
February 4, 1980 meeting held to discuss general working conditions
without informing the exclusive representative and allowing an
opportunity for it to be present violated the Statute.
In view of the foregoing, it is recommended that the Authority adopt
the following Order:
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that Office of Program Operations,
Field Operations, Social Security Administration, San Francisco Region,
shall:
1. Cease and desist from:
(a) Changing the job duties of the Title XVI claims
representatives or any unit employee in the Indio Branch Office
without first notifying the American Federation of Government
Employees, Council of Social Security District Office Locals,
AFL-CIO, or any other exclusive representative of such change and
affording it the opportunity to negotiate concerning the
implementation and impact of such changes on affected unit
employees.
(b) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices without notifying and affording the American
Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, or any other exclusive
representative, the opportunity to be represented at formal
discussions between management and employees concerning personnel
policies and practices and other general conditions of employment.
(c) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate only with the American
Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, or any other exclusive
representative of its employees, with regard to personnel policies
and practices, or other matters affecting the general working
conditions of employees at the Social Security Branch Office,
Indio, California.
(b) Notify the American Federation of Government Employees,
Council of Social Security District Office Locals, AFL-CIO or any
other exclusive representative, of and afford it the opportunity
to be represented at formal discussions between management and
unit employees, as their representative, concerning personnel
policies and practices, or other matters affecting general working
conditions of employees in the unit.
(c) Post at its Social Security Branch Office, Indio,
California facility, 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 the
Director, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. The Director shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(d) 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.
ELI NASH, JR.
Administrative Law Judge
Dated: May 19, 1981
Washington, D.C.
WE WILL NOT change work assignments of Title XVI claims
representatives without first notifying the American Federation of
Government Employees, Council of Social Security District Office Locals,
AFL-CIO, or any other exclusive representative and affording it the
opportunity to bargain concerning the implementation of such changes and
their impact on adversely affected employees.
WE WILL NOT conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies and
practices or other matters affecting general working conditions of
employees in the unit, without notifying and affording the American
Federation of Government Employees, Council of Social Security District
Office Locals, AFL-CIO, the exclusive representative of our employees,
the opportunity to be represented at such discussions.
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, upon request, meet and negotiate in good faith only with the
American Federation of Government Employees, Council of Social Security
District Office Locals, AFL-CIO, with respect to personnel policies and
practices, or other matters affecting the general working conditions of
employees in the Social Security Branch Office, Indio, California.
(Agency or activity)
(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 8,
whose address is 350 South Figueroa Street, 10th Floor, Los Angeles, CA
90071, and whose telephone number is: 213-688-3805.
/1/ At all times material herein the Charging Party has represented
certain employees on behalf of the American Federation of Government
Employees, AFL-CIO, in the Respondent's San Francisco Region, including
its Indio, California Branch Office.
/2/ Section 7106(a)(2)(B) provides:
Sec. 7106. Management rights
(a) Subject to subjection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(B) to assign work(.)
/3/ Section 7114(a)(2)(A) provides as follows:
Sec. 7114. Representation rights and duties
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit of their
representatives concerning any grievance or any personnel policy
or practices or other general conditions of employment(.)
/4/ In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA No. 24 (1982), the Authority identified some of the factors to
be considered in determining whether a meeting with unit employees is in
fact "formal" in nature.
/5/ As the Order below fully remedies the violation found herein, the
Authority finds it unnecessary to decide whether such conduct also
violated section 7116(a)(5) of the Statute. Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 10 FLRA No. 36 (1982).
/6/ Cases Nos. 8-CA-342, 8-CA-343, and 8-CA-344, were severed from
the instant matter at the hearing.
/7/ Doyle's notes of the meeting show that Semel refused to bargain
over counterproposal three and four.
/8/ The difference in time required, occurs because Title XVI claims
require that the claimant disclose certain information concerning
income, resources, living arrangements, and number of people in the home
to establish entitlement under that program while Title II claimants are
required only to establish sufficient quarters of coverage which are
shown on the individual's Social Security earnings record.
/9/ Concurrent claims are normally filed for the protection of a
claimant, in the event he or she did not have sufficient quarters or
coverage to allow payment of Title II benefits.
/10/ Respondent only disagrees as to the nature of these meetings.
According to Semel the monthly consultation meetings involved "getting
together with the Union to discuss any changes that we may have in
working conditions, personnel policies and practices; in consulting
with one another, (sic) getting each other's view points before making a
decision as to what the change should be." Doyle maintains that the
purpose of the monthly meetings was to bargain.
/11/ A Palm Springs Supplemental Agreement exists but, has never been
executed or put into effect, and the parties have never operated under
it. That document is allegedly the subject of many pending grievances.
/12/ Article 1, Sections 6 and 7 of the Master Agreement provide as
follows:
6. Negotiation is a meeting between the parties wherein they
seek written agreement, and, in lieu thereof, seek third party
assistance to reach agreement.
7. Consultation is the process whereby the appropriate
official shall notify the Union of proposed changes in personnel
policies, practices and matters affecting working conditions
within that official's jurisdiction. The parties will fully
explore and consider each other's views before taking Decisive
action. Except in emergencies, short deadlines, or similar
situations the receiving party will be notified adequately in
advance of a change to prepare its views and suggest changes to
the party desiring a change. The Council may consult in person at
reasonable times, on request, with appropriate officials, on
personnel policy matters and at all times present its views in
writing.
/13/ American Federation of Government Employees, AFL-CIO, Local
2879, 2 FLRA No. 93 (1980) cited by Respondent is distinguishable on the
facts and involves a question of national negotiations on a
negotiability issue.
/14/ Respondent contends that the change in assignment was not a
change in conditions of employment. In my view, nothing can be more
clearly a change in employment or working conditions where additional
duties increase an employees work load some 20 percent.
15 FLRA 14; FLRA 6-RA-20004; June 8, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3051. Types of Petitions
3051.10 Representation Petition
3150. Representation Unit Determination
3151. Criteria
3152. Scope
3152.05 Organizational
3153. Special Situations
3153.15 Reorganization
DIGEST NOTES
The Authority held that the reorganization which resulted in the
establishment of AVN did not substantially change the character and
scope of the units represented by AFGE Local 2133, AFGE Local 3433 and
NAFSE, respectively, and that these units should continue to be
exclusively represented by these unions as the units of employees
represented in FSNFO were transferred intact into AVN; the employees
continue to be serviced by the Aeronautical Center; have the same
overall reporting structure; receive policy guidance from the same
office; and the employees perform the same duties under the same
immediate supervision and in the same physical location as they did
prior to the reorganization.
The Authority held that the employees represented by AFGE Local 2555
must be clarified to exclude those employees assigned to the Honolulu
and Tokyo FIFOs as these employees are now assigned to AVN's Flight
Programs Division, have a different reporting structure, are in a
different employing jurisdiction and are serviced by a different
personnel office.
The Authority held that the reorganization has substantially changed
the character and scope of the units represented by AFGE Local 3028 so
that the agency is no longer obligated to recognize the union as the
exclusive representative of such units since the employees are now
serviced by the Aeronautical Center for personnel and labor relations
matters; are in a different employing jurisdiction; are subject to
different personnel policies and practices; have different reporting
lines and different overall supervision; and have a new and expanded
mission.
The Authority held that the reorganization has substantially altered
the character and scope of the unit represented by NAGE Local R8-14 so
that the agency is no longer under an obligation to continue to
recognize the union as the exclusive representative in this unit as the
employees now report to a different supervisory structure, are in a
different employing jurisdiction, have expanded responsibilities, and
are assigned to a division together with other AVN employees.
The Authority held that the character and scope of the unit of
employees represented by AFGE Local 2335 was substantially changed as a
result of the reorganization and the agency is no longer obligated to
recognize the union as the exclusive representative of such unit as the
employees are in a different employing jurisdiction, are serviced by a
different personnel office, have a different reporting structure, and
are functionally merged with other AVN employees.
The Authority held that the unit of employees represented by NNFE
Local 1340 must be clarified to exclude the approximately 60 employees
who were organizationally transferred into AVN as such employees have
been placed in a different employing jurisdiction, are serviced by a
different personnel office, have a different reporting structure, and
are functionally merged with other AVN employees.
The Authority held that the evidence was insufficient to establish
that, as a result of the reorganization, the employees previously
represented in such units had been added or accreted to any remaining
units of exclusive recognition, or that they had been combined with
other employees so as to create a new appropriate unit warranting an
election.
FEDERAL AVIATION ADMINISTRATION
AVIATION STANDARDS NATIONAL FIELD OFFICE
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2123
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2335
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2555
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3028
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3433
NATIONAL ASSOCIATION OF FLIGHT
STANDARDS EMPLOYEES
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-14
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1340
Case No. 6-RA-20004
Upon a petition duly filed under section 7111(b)(2) of the Federal
Service Labor-Management Relations Statute (the Statute), a hearing was
held before a hearing officer of the Authority. The hearing officer's
rulings are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, including the parties'
contentions, the Authority finds:
The petition herein was filed by the Activity pursuant to section
2422.2(b) of the Authority's Rules and Regulations on the basis that an
internal agency reorganization substantially changed the character and
scope of nine existing bargaining units so as to render them no longer
appropriate for the purpose of exclusive recognition under the Statute.
/1/ The issue before the Authority is whether the record supports the
Activity's contention that the reorganization substantially changed the
scope and character of the nine existing bargaining units in question.
The record reveals that the Federal Aviation Administration (FAA) is
organizationally comprised, in part, of a number of regions which, along
with the Mike Monroney Aeronautical Center in Oklahoma City, report
directly to the FAA Administrator. There are also a number of offices,
services and a Technical Center in Atlantic City which report through
one of five Associate Administrators to the FAA Administrator. On July
1, 1982, a reorganization occurred within FAA under which several
existing components were administratively transferred into a new
Aviation Standards National Field Office (AVN). Headquartered in
Oklahoma City, AVN is a tenant organization of the Mike Monroney
Aeronautical Center (Aeronautical Center). The mission of AVN is to
promote safety of flight by assuring the adequacy and accuracy of air
navigation facilities; to develop and standardize flight procedures;
to provide for the maintenance and engineering of the FAA aircraft
fleet; and to provide regulatory and standards development.
Organizationally, AVN consists of an Office of the Director; an
Executive Staff; and three divisions-- Regulatory Support, Flight
Programs, and Aircraft Maintenance and Engineering. Each division
contains various subordinate branches, and the Flight Programs Division
also contains eleven Flight Inspection Field Offices (FIFOs) at various
locations worldwide. The establishment of AVN brought together several
components of the FAA which contained the units of exclusive recognition
that are the subject of the petition herein. Specifically, AVN
organizationally merged 585 positions of the Flight Standards National
Field Office (FSNFO), including its ten FIFOs, which previously had been
located in the Office of Flight Operations; approximately 60 positions
in the Aircraft Services Branch, physically located in and formerly
organizationally a component of the FAA Technical Center in Atlantic
City, New Jersey; 319 positions of the Aircraft Services Base at the
Aeronautical Center; and 58 positions from both the Flight Inspection
District Office and Maintenance Base located in FAA's Alaskan Region.
In sum, 1021 positions were administratively transferred into AVN.
As noted above, nine units of exclusive recognition existed in the
FAA components which were administratively transferred to form AVN.
Four unions represent the nine units as follows: the National
Association of Flight Standards Employees (NAFSE), certified as the
exclusive representative on July 31, 1978, represents in a single unit
various employees of the Regulatory Support and Flight Programs
Divisions, formerly located in FSNFO, as well as employees of the
Atlantic City, Frankfurt, Los Angeles, Minneapolis and Seattle FIFOs,
and certain employees of the Atlantic FIFO; the American Federation of
Government Employees, AFL-CIO (AFGE) Local 2123, which was granted
recognition on June 14, 1963, represents a unit of employees at the
Atlanta FIFO Maintenance Base; AFGE Local 3433, certified on November
26, 1973, represents a unit of employees at the Battle Creek FIFO; AFGE
Local 2555, recognized on January 3, 1968, represents employees of the
Honolulu and Tokyo FIFOs in a single unit; AFGE Local 2335 was
certified on September 14, 1976, and represents aircraft inspection
personnel at the FAA Technical Center in Atlantic City; the National
Federation of Federal Employees (NFFE) Local 1340, certified on August
17, 1979, represents a unit consisting of 760 employees at the Technical
Center in Atlantic City, approximately 60 of whom were organizationally
transferred to AVN; the National Association of Government Employees
(NAGE) Local R8-14, recognized on May 19, 1969, represents a unit of
wage grade employees at the Aircraft Services Base, located at the
Aeronautical Center; and AFGE Local 3028 represents two units in the
Alaskan Region-- aircraft mechanics at the Anchorage Aircraft
Maintenance Base, recognized on September 10, 1968, and employees of the
Anchorage FIFO, which unit was granted recognition on June 10, 1966.
The Activity takes the position that these nine bargaining units are
no longer appropriate as a result of the reorganization which
established AVN for the following reasons: the Activity's components
which had granted exclusive recognition with respect to the foregoing
bargaining units no longer exist following the reorganization; the
employees in each of the units do not share a community of interest
separate and distinct from the employees in the other units or from
other AVN employees; and the administration of nine separate units with
potentially as many different collective bargaining agreements would not
promote effective dealings and efficiency of agency operations. The
Activity further argues that a unit consisting of all eligible AVN
employees would constitute an appropriate unit under the Statute. The
unions argue essentially that the reorganization did not change the
scope and character of the existing units so as to render them
inappropriate for purposes of exclusive recognition.
Section 7135(a)(1) of the Statute provides for the continuation of
exclusive recognitions in existence before the effective date of the
Statute. /2/ Where an agency seeks to challenge the continuation of an
exclusively recognized unit, it may do so by filing a petition pursuant
to the Authority's Rules and Regulations, such as that filed by the
Activity herein under section 2422.2(b), set forth at n.1, supra. In
the instant case, the Activity claimed that an internal reorganization
had rendered inappropriate nine preexisting units of exclusive
recognition. The Authority therefore must determine, based on the
record evidence, whether the reorganization has substantially changed
the character and scope of any of the units so that the Activity is no
longer required to recognize the incumbent labor organization(s) as the
exclusive representative(s) of the employees in such unit(s). See,
e.g., Department of the Interior, National Park Service, Mid-Atlantic
Regional Office, Philadelphia, Pennsylvania, 11 FLRA No. 104 (1983).
See also Western Regional Office, National Park Service, San Francisco,
California, 10 FLRA No. 86 (1982). The effect of the reorganization on
each unit in question will be examined in turn below.
As noted above, the creation of AVN merged four existing
organizational components. First, with regard to the Flight Standards
National Field Office, the record indicates that prior to the
reorganization, this component was located in the Office of Flight
Operations and consisted of seven branches and ten FIFOs (all those
which are currently in existence with the exception of the Anchorage
FIFO). Units of exclusive recognition existed in certain branches and
the ten FIFOs by the unions which continued to represent the employees
after the reorganization. /3/ Additionally, the record indicates that
certain of these units existed in FSNFO's predecessor, so that several
of the units which were transferred to AVN and which the Activity claims
to be no longer appropriate as a result of the establishment of AVN
existed in two predecessor organizations.
Prior to the reorganization, FSNFO reported to the Associate
Administrator for Aviation Standards who reported to the FAA
Administrator. Personnel services for FSNFO employees were provided by
the Aeronautical Center and FSNFO constituted a separate employing
jurisdiction. Policy guidance for FSNFO was provided by the Office of
Flight Operations. Following the reorganization, the employees formerly
in FSNFO and now in AVN continue to be serviced by the Aeronautical
Center, and AVN similarly reports to the Associate Administrator for
Aviation Standards who reports to the FAA Administrator. Policy
guidance continues to be provided by the Office of Flight Operations.
In terms of working conditions, the record further reveals that the
employees of the former FSNFO continue to perform the same duties, under
the same immediate supervision, and in the same physical location as
prior to the reorganization. The competitive area for
reductions-in-force is the local commuting area, as is the area of
consideration for certain merit promotion positions. The area of
consideration for other merit promotion positions is AVN-wide.
In the Authority's view, the scope and character of the units of
exclusive recognition represented by AFGE Local 2123 at the Atlanta FIFO
Maintenance Base; AFGE Local 3433 at the Battle Creek FIFO; and NAFSE
in the Regulatory Support and Flight Programs Divisions, the Atlantic
City, Frankfurt, Los Angeles, Minneapolis and Seattle FIFOs and part of
the Atlanta FIFO were not substantially changed by the reorganization
which resulted in the establishment of AVN. Thus, the units of
employees previously represented in FSNFO were transferred intact into
AVN; the employees continue to be serviced by the Aeronautical Center;
have the same overall reporting structure; receive policy guidance from
the same office; and the employees perform the same duties under the
same immediate supervision and in the same physical location as they did
prior to the reorganization. Under these circumstances, the Authority
finds that the reorganization did not substantially change the character
and scope of these existing units and that they should continue to be
exclusively represented by AFGE Local 2123, AFGE Local 3433 and NAFSE,
respectively. /4/
With regard to the employees in the Tokyo and Honolulu FIFOs, the
record reveals that they have been represented, along with other
employees located elsewhere in the Pacific, in a single unit by AFGE
Local 2555 since 1968. In 1981, the employees assigned to the Tokyo and
Honolulu FIFOs were transferred into FSNFO and thereafter into AVN.
Prior to 1981, the employees in the Tokyo and Honolulu FIFOs were part
of FAA's Western-pacific Region. As such, they reported through the
Region to the FAA Administrator, were in the Region's employing
jurisdiction and were serviced by the Region's personnel division.
Since the establishment of AVN, these employees are now assigned to
AVN's Flight Programs Division, have a different reporting structure,
are in a different employing jurisdiction and are serviced by a
different personnel office. In view of these factors, the Authority
finds that the unit of employees represented by AFGE Local 2555 must be
clarified to exclude those employees assigned to the Tokyo and Honolulu
FIFOs. /5/ In so concluding, the Authority does not pass upon whether
the unit represented by AFGE Local 2555, excluding such employees,
continues to be appropriate for the purpose of exclusive recognition
inasmuch as that question has not been raised herein and the record
therefore contains insufficient evidence on which to base a
determination.
The second component which was merged into AVN consisted of two units
of employees represented by AFGE Local 3028 and located in FAA's Alaskan
Region: The Aircraft Maintenance Unit which was recognized in 1968 and
the Anchorage FIFO originally recognized in 1966. When AVN was created,
these two units of employees were established as the Anchorage FIFO
which is organizationally a part of AVN's Flight Programs Division, as
are the other ten FIFOs, and which now reports through Flight Programs
to the Director of AVN who in turn reports to the FAA Administrator.
Prior to the reorganization, the employees reported through the Region
to the FAA Administrator, were serviced by the Region's personnel
division, and were in the Region's employing jurisdiction. Now, the
employees are serviced by the Aeronautical Center for personnel and
labor relations matters; are in a different employing jurisdiction;
are subject to different personnel policies and practices; have
different reporting lines and different overall supervision; and have a
new and expanded mission. Based upon the foregoing, the Authority finds
that the reorganization has substantially changed the character and
scope of these units so that the Activity is no longer obligated to
recognize AFGE Local 3028 as the exclusive representative of such units.
The third component to become a part of AVN was the Aircraft Services
Base in which NAGE Local R8-14 has represented a unit of wage grade
employees since 1969. Located physically in and formerly
organizationally a component of the Mike Monroney Aeronautical Center in
Oklahoma City, the Aircraft Services Base was essentially reconstituted
in AVN as part of the Aircraft Maintenance and Engineering Division, one
of AVN's three divisions. Additionally, two units which were formerly
assigned to the FAA Technical Center in Atlantic City, and which will be
discussed more fully below, were transferred organizationally into this
Division. The Aircraft Maintenance and Engineering Division has
technical authority over the maintenance functions performed in the
FIFOs. One branch of the Division (AVN-310) performs this function for
nine FIFOs, which another branch (AVN-350) performs the function for the
Atlantic City FIFO, and yet a third branch (AVN-330) handles the
Oklahoma City FIFO. Additionally, this Division has expanded the scope
of its responsibilities by exercising a maintenance function over
additional FAA aircraft. Prior to the reorganization, the Aircraft
Services Base reported to the Director of the Aeronautical Center who
reported to the FAA Administrator. The reorganization altered this
reporting line so that now the Division reports to the Director of AVN
who reports to the Associate Administrator for Aviation Standards who in
turn reports to the Administrator. Both before and after the
reorganization, the Aeronautical Center provided personnel services,
although the employees were a part of the Aircraft Services Base
employing jurisdiction prior to the reorganization, while they are now a
part of AVN's employing jurisdiction.
The Authority finds that the reorganization has substantially altered
the character and scope of this unit. Thus, the employees now report to
a different supervisory structure, are in a different employing
jurisdiction, have expanded responsibilities, and are assigned to a
division together with other AVN employees. Under these circumstances,
the Authority finds that the Activity is under no obligation to continue
to recognize NAGE Local R8-14 as the exclusive representative in this
unit.
The fourth component from which employees were transferred into AVN
is the FAA Technical Center in Atlantic City, New Jersey. As noted
previously, there were two units of exclusive recognition which were
affected by the transfer: a unit of employees represented by AFGE Local
2335; and approximately 60 employees in a larger unit represented by
NFFE Local 1340, which continues to represent the approximately 700
employees who did not functionally transfer into AVN. Although
physically located at the Technical Center, these employees were
organizationally transferred into the Aircraft Maintenance and
Engineering Division, which, as noted above, also contains employees
previously assigned to the Aircraft Services Base. Prior to the
reorganization, the Personnel Management Division at the Technical
Center provided personnel and labor relations services to the employees
in these units, whereas the Aeronautical Center is now performing this
function. Additionally, these employees, who were previously part of
the Technical Center employing jurisdiction, are now a part of the AVN
employing jurisdiction. The reporting lines are different inasmuch as
the employees currently report through AVN to the Administrator, whereas
previously they had reported through the Technical Center to the
Associate Administrator for Development and Logistics who then reported
to the Administrator.
In the Authority's view, the character and scope of the unit of
employees represented by AFGE Local 2335 was substantially changed as a
result of the reorganization and the Activity is no longer obligated to
recognize Local 2335 as the exclusive representative of such unit.
Thus, the employees are in a different employing jurisdiction, are
serviced by a different personnel office, have a different reporting
structure, and are functionally merged with other AVN employees. As to
the unit of employees represented by NFFE Local 1340, the Authority
finds that such unit must be clarified to exclude therefrom the
approximately 60 employees who were organizationally transferred into
AVN. Thus, such employees have been placed in a different employing
jurisdiction, are serviced by a different personnel office, have a
different reporting structure, and are functionally merged with other
AVN employees.
To summarize, the Authority finds that following the establishment of
AVN, the units of exclusive recognition represented by AFGE Local 2123
in the Atlanta FIFO Maintenance Base; AFGE Local 3433 in the Battle
Creek FIFO; and NAFSE in the Regulatory Support and Flight Programs
Divisions, the Atlantic City, Frankfurt, Los Angeles, Minneapolis and
Seattle FIFOs, and part of the Atlanta FIFO, remain substantially
unchanged and that the Activity is required to continue to recognize
them for the purpose of exclusive recognition under the Statute.
Accordingly, the RA petition shall be dismissed with respect to these
units. The Authority further finds that the reorganization has
substantially changed the character and scope of the two units
represented by AFGE Local 3028 in the Anchorage FIFO; NAGE Local R8-14
in the Aircraft Maintenance and Engineering Division; and AFGE Local
2335 in the Aircraft Maintenance and Engineering Division, and therefore
the Activity is no longer required to recognize the respective labor
organizations as the exclusive representatives of the employees in those
units. Accordingly, the petition shall be granted with respect to these
units. Additionally, with regard to these units, the evidence presented
was insufficient to establish that, as a result of the reorganization,
the employees previously represented in such units had been added or
accreted to any remaining units or exclusive recognition, or that they
had been combined with other employees so as to create a new appropriate
unit warranting an election. /6/ Finally, the Authority shall clarify
the unit represented by AFGE Local 2555 to exclude employees of the
Tokyo and Honolulu FIFOs, and the unit represented by NFFE Local 1340 to
exclude employees organizationally transferred into AVN. /7/
IT IS HEREBY ORDERED that the petition in Case No. 6-RA-20004
challenging the continued appropriateness of the unit of employees
assigned to the Aircraft Maintenance Unit in Anchorage, Alaska, for
which the American Federation of Government Employees, Local 3028 was
granted recognition in 1968; the unit of employees in the Anchorage,
Alaska, Flight Inspection District Office, for which the American
Federation of Government Employees, Lodge (Local) 3028 was granted
recognition in 1966; the unit of wage grade employees in the Aircraft
Services Base, for which the National Association of Government
Employees, Local R8-14 was granted recognition in 1969; and the unit of
General Schedule employees in the Quality Control Section, Aviation
Facilities Division, National Aviation Facilities Experimental Center,
Atlantic City, New Jersey, for which the American Federation of
Government Employees, Local 2335 was certified on September 14, 1976,
be, and it hereby is, granted.
IT IS FURTHER ORDERED that the unit of employees assigned to the
Tokyo and Honolulu Flight Inspection Groups, the Manila Avionics
Maintenance and Calibration Unit, and the Aircraft Management Branch,
for which the American Federation of Government Employees, Lodge (Local)
2555 was granted recognition on January 3, 1968, be clarified to exclude
therefrom the employees assigned to the Tokyo and Honolulu Flight
Inspection Field Offices in the Aviation Standards National Field
Office.
IT IS FURTHER ORDERED that the consolidated unit of nonprofessional
employees of the staff and line divisions of the National Aviation
Facilities Experimental Center, for which the National Federation of
Federal Employees, Local 1340 was certified on August 7, 1979, be
clarified to exclude therefrom the employees assigned to the Aviation
Standards National Field Office.
IT IS FURTHER ORDERED that the petition in Case No. 6-RA-20004 to the
extent that it challenges the continued appropriateness of the
bargaining units represented by the American Federation of Government
Employees, AFL-CIO, Local 2123, the American Federation of Government
Employees, AFL-CIO, Local 3433; and the National Association of Flight
Standards Employees be, and it hereby is, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 2422.2(b) of the Authority's Rules and Regulations
provides as follows:
Sec. 2422.2 Contents of petition; procedures for consolidation
of existing exclusively recognized units; filing and service of
petition; challenges to petition.
(b) Activity or agency petition seeking clarification of a
matter relating to representation; employee petition for an
election to determine whether a labor organization should cease to
be an exclusive representative. (1) A petition by an activity or
agency shall be submitted on a form prescribed by the Authority
and shall contain . . . a statement that the activity or agency
has a good faith doubt, based on objective considerations, that
the currently recognized or certified labor organization
represents a majority of the employees in the existing unit, or a
statement that because of a substantial change in the character
and scope of the unit, the agency or activity has a good faith
doubt that such unit is now appropriate. Attached to the petition
shall be a detailed explanation of the reasons supporting the good
faith doubt.
See also section 2422.1(c) of the Authority's Rules and Regulations
to the same effect.
/2/ Section 7135(a)(1) of the Statute provides as follows:
Sec. 7135. Continuation of existing laws, recognitions,
agreements, and procedures
(a) Nothing contained in this chapter shall preclude--
(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful
agreement between an agency and an exclusive representative of its
employees, which is entered into before the effective date of this
chapter(.)
/3/ The record indicates that the Oklahoma City FIFO, previously
represented by AFGE, was, on some unspecified date, decertified.
/4/ See, e.g., Defense Contracts Administration Services Region,
Boston, Massachusetts, 8 FLRA No. 66 (1982), with respect to the
Singer-Link and IBM Owego units.
/5/ See United States Department of the Navy, Naval Avionics Center,
Indianapolis, Indiana, 11 FLRA No. 98 (1983), and cases cited therein.
/6/ While it has been found that certain units are no longer in
existence and that, therefore, the Activity is under no obligation to
recognize the exclusive representatives with respect to the employees
formerly in these units, it is noted that this finding would not
preclude the exclusive representatives involved herein, or any other
within the agency from seeking, through an appropriate clarification of
unit petition, a determination as to whether or not any of these
employees have accreted to any existing exclusively recognized unit at
the Activity, which none of the labor organizations here sought to do,
or for any labor organization to seek through an appropriate petition a
determination as to whether or not a new unit (or units) appropriate for
the purpose of exclusive recognition, have been established as a result
of the establishment of AVN.
/7/ In view of the foregoing findings, noting particularly that
certain units have remained appropriate following the establishment of
AVN, the appropriateness of an AVN-wide unit.
15 FLRA 13; FLRA 2-CU-30007; June 8, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3200. Employee Classifications
3206. Supervisors
DIGEST NOTES
The Authority held that employees in the classifications of Medical
Administration Specialist, Supervisory Medical Clerk, Supervisory
Correspondence Clerk, Supervisory File Clark, Supervisory Mail Clerk,
Medical Administration Specialist, are supervisors within the meaning of
Sec. 7103(a)(10) because they perform one or more of the following
supervisor functions that require the consistent exercise of independent
judgment: assign and direct work; effectively recommend discipline for
subordinates; effectively recommend the hiring and removal of
subordinates; effectively recommend the promotions and awards for
subordinates; adjust grievances of subordinates.
VETERANS ADMINISTRATION MEDICAL CENTER
BRONX, NEW YORK
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
Case No. 2-CU-30007
Upon a petition duly filed with the Authority under section
7111(b)(2) of the Federal Service Labor-Management Relations Statute
(the Statute), a hearing was held before a hearing officer of the
Authority. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority finds: The American Federation of
Government Employees, (AFGE) was certified as the exclusive
representative for a consolidated unit of all non-professional
employees, full-time, part-time, and temporary of the Veterans
Administration. Essentially, the petition herein seeks to clarify the
bargaining unit status of approximately 11 employees. /1/
The Activity contends that the incumbents in the following job
classifications are supervisors within the meaning of section
7103(a)(10) of the Statute, /2/ and should be excluded from the unit:
Medical Administration Specialist, GS-301-09; Supervisory Medical
Clerk, GS-679-07; Supervisory Medical Clerk, GS-679-06; Supervisory
Correspondence Clerk, GS-309-06; Supervisory File Clerk, GS-305-05;
and Supervisory Mail Clerk, GS-305-05. Of these, the record establishes
that the incumbent in the job classification of Medical Administration
Specialist, GS-301-09 assigns and directs work, and has effectively
recommended the hiring and removal of, and promotions and discipline for
subordinates; that the incumbents in the job classification of
Supervisory Medical Clerk, GS-679-07 assign and direct work, and have
effectively recommended discipline for subordinates; that the
incumbents in the job classification of Supervisory Medical Clerk,
GS-679-06 assign and direct work, have effectively recommended the
hiring and removal of, and promotions, discipline and awards for
subordinates, and have adjusted grievances of subordinates; that the
incumbent in the job classification of Supervisory Correspondence Clerk,
GS-309-06 assigns and directs work, has effectively recommended
promotions and discipline for subordinates, and has adjusted grievances
of subordinates; that the incumbent in the job classification of
Supervisory File Clerk, GS-305-05 assigns and directs work, and has
effectively recommended hiring of and discipline for subordinates; and
that the incumbent in the job classification of Supervisory Mail Clerk,
GS-305-05 assigns and directs work and has effectively recommended
promotions for subordinates. The Authority further finds that the above
duties are not merely routine or clerical in nature, but require the
consistent exercise of independent judgment. Accordingly, the
incumbents in the job classifications listed above are supervisors
within the meaning of section 7103(a)(10) of the Statute and shall be
excluded from the unit.
IT IS ORDERED that the unit sought to be clarified herein is hereby
clarified by excluding from said unit the employees in the following job
classifications: Medical Administration Specialist, GS-301-09;
Supervisory Medical Clerk, GS-679-07; Supervisory Medical Clerk,
GS-679-06; Supervisory Correspondence Clerk, GS-309-06; Supervisory
File Clerk, GS-305-05; and Supervisory Mail Clerk, GS-305-05.
IT IS FURTHER ORDERED that with regard to the job classification of
Supervisory Program Clerk, GS-303-07, sought to be excluded herein, the
petition be, and it hereby is, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ During the course of the hearing the parties stipulated that
certain employees were not supervisors and should be included in the
unit. The Authority deems such stipulations to be motions to amend the
petition which are hereby granted.
Further, one of the positions in dispute was stipulated by the
parties to be vacant: Supervisory Program Clerk, GS-303-07. The
Authority will not make eligibility determinations for vacant positions.
U.S. Army Materials and Mechanics Research Center, 11 FLRA No. 46
(1983) at n. 3. Accordingly, the Authority shall order that the
petition be dismissed to the extent that it seeks to clarify the unit
eligibility of this position.
/2/ Section 7103(a)(10) of the Statute defines a "supervisor" as:
. . . 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 judgment(.)
15 FLRA 12; FLRA O-NG-781; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.25 Remove Employees
2152.30 Reduce in Grade
DIGEST NOTES
A proposal which would prevent the agency from terminating or
demoting an employee without first reassigning the employee to a new
position is nonnegotiable as it would interfere with management's right,
pursuant to Sec. 7106(a)(2)(A) of the Statute, to reduce in grade or pay
or remove an employee.
NATIONAL LABOR RELATIONS BOARD
UNION
and
NATIONAL LABOR RELATIONS BOARD,
OFFICE OF THE GENERAL COUNSEL
Case No. O-NG-781
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
relating to the negotiability of the following Union proposal. Upon
careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determination.
No employee shall be reduced in grade as a result of a
performance-based adverse action unless such employee has first
been reassigned to an available noncompetitive position for which
the employee is qualified and could reasonably be expected to
demonstrate acceptable performance. No employee shall be removed
from employment as a result of a performance-based adverse action
unless such employee has first, where applicable, been reduced in
grade as a result of his/her performance to a grade level the
employee could reasonably be expected to demonstrate acceptable
performance. Further, no employee will be removed from employment
if a position exists for which the employee is qualified and could
reasonably be expected to demonstrate acceptable performance.
This proposal is materially to the same effect as Union Proposal 1 in
American Federation of Government Employees, Local 1760 and Department
of Health and Human Services, Social Security Administration Northeast
Program Service Center, 9 FLRA 1025 (1982). The proposal in that case
would have prevented the Agency from terminating or demoting an employee
without first allowing the employee to work in a like graded position.
The Authority concluded that the proposal interfered with the Agency's
rights to assign, remove, or reduce employees in grade or pay pursuant
to section 7106(a)(2)(A) of the Statute by placing a condition upon the
exercise of those rights. /1/ In the same way, the instant proposal
improperly places a condition, i.e., reassignment to a new position,
upon the Agency's right to reduce in grade or pay or remove an employee.
Thus for the reasons set forth in greater detail in Social Security
Administration Northeast Program Service Center, the instant proposal is
also inconsistent with section 7106(a)(2)(A) of the Statute and is
outside the duty to bargain.
Accordingly, 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., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
15 FLRA 11; FLRA O-NG-667; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2011. Conditions of Employment
DIGEST NOTES
Regulations promulgated by the National Guard Bureau require that
technicians' military assignments, to the extent possible, involve the
same duties as their corresponding civilian technician positions, i.e.,
the military and civilian assignments must be "compatible," so that
technicians are performing the same work as civilians as they would
undertake as military members subsequent to mobilization. A proposal
that concerns the period of time that a technician may remain in an
incompatible military assignment concerns matters related to the
military aspects of technician employment. The Authority has previously
held that proposals relating to military aspects of technician
employment is totally mandated by law and, therefore, is not a
"condition of employment" within the meaning of Sec. 7103(a)(14). Since
the proposal does not concern a condition of employment, it is outside
the duty to bargain.
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-87
and
KANSAS ARMY NATIONAL
GUARD, TOPEKA, KANSAS
Case No. O-NG-667
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises an issue
concerning the negotiability of the following Union proposal. /1/
Union recognizes managements (sic) position concerning
compatibility. However, as the past policy, of allowing 6 months
for a technician, who voluntarily changes technician positions, to
become compatible, and the proposed policy, of requiring immediate
compatibility when a technician changes technician positions, are
both discriminatory insofar as the regulation concerning
compatibility, allows technicians who hold military ranks of
officers, 1 year (12 months), during which time they do not have
to be compatible.
Union proposes that all technicians who voluntarily change
technician positions, will have 1 year (12 months), from the time
of technician change, in which to become compatible.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The employees represented by the Union herein are National guard
technicians who, as a condition of their civilian employment, must
become and remain military members of the National Guard and must
maintain the military grade specified for their technician positions.
32 U.S.C. 709(b), 709(e)(1). In this connection, a regulation
promulgated by the National Guard Bureau (NGB) requires that
technicians' military assignments, to the extent possible, involve the
same duties as their corresponding civilian technician positions, i.e.,
the military and civilian assignments must be "compatible," so that
technicians are performing the same work as civilians as they would
undertake as military members subsequent to mobilization.
The proposal herein resulted from a change in Agency policy governing
the compatibility requirement. Previously, when a change in technician
assignment resulted in incompatibility with the technician's military
assignment, there was a six month grace period to allow reassignment to
a compatible military position. The new policy requires that civilian
and military assignments be compatible on the effective date of the
change affecting the technician's assignment. The proposal, however,
would allow a technician to remain in an incompatible military
assignment for a period of up to one year after having voluntarily
changed his or her civilian assignment. Thus, the disputed proposal
concerns matters related to the military aspects of technician
employment. In Association of Civilian Technicians, Pennsylvania State
Council and the Adjutant General, Department of Military Affairs,
Commonwealth of Pennsylvania, 3 FLRA 50 (1980), the Authority noted,
with regard to a portion of a Union proposal establishing procedures to
be used by National Guard technicians in appealing appraisals of
military performance, that the military aspect of technician employment
is totally mandated by law and, therefore, is not a "condition of
employment" within the meaning of section 7103(a)(14) of the Statute.
Consequently, the part of the proposal concerning the military
performance appraisals was held to be outside the duty to bargain.
Hence, the disputed proposal herein, which addresses the timing of
military assignments which must be made to maintain compatibility
between military and civilian functions, likewise concerns the military
aspect of technician employment and is, for the reasons set forth in
Department of Military Affairs, Commonwealth of Pennsylvania, also
outside the duty to bargain.
Accordingly, 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., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union withdrew a second proposal in its Reply Brief to the
Agency's Statement of Position. Therefore, that proposal is not
considered here.
15 FLRA 10; FLRA O-NG-647; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.05 Assign Employees
2152.25 Remove Employees
2152.30 Reduce in Grade
2152.40 Assign Work
2201. Subjects of Bargaining at Election of Agency
2201.15 Not Conditions of Employment of Bargaining Unit Employees
DIGEST NOTES
A proposal which would limit the operation of materials handling
equipment by packers only to those times when a "qualified operator" is
available, is nonnegotiable as it is inconsistent with management's
right, under Sec. 7106(a)(2)(B) of the Statute, to assign work.
Additionally, the Authority noted that matters relating to the
classification of positions are excluded from the definition of
conditions of employment by Sec. 7103(a)(14)(B) of the Statute and as
this proposal would affect the classification of the packer positions it
is outside the duty to bargain. (Proposal 1)
A proposal which seeks to bargain over the types of employees who may
fill packer positions by preventing possession of a license of operate
materials handling equipment from being a qualification requirement for
the positions is negotiable only at the election of the agency pursuant
to Sec. 7106(b)(1) of the Statute. Since the agency has elected not to
bargain on the proposal, it is not within the duty to bargain.
(Proposal 2)
LABORERS INTERNATIONAL UNION,
LOCAL 1276, AFL-CIO
and
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
Case No. O-NG-647
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
relating to the negotiability of two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
If licensed, will only operate material handling equipment such
as forklift, vacuum lift, and small gantry only in the absence of
a qualified operator and only to accomplish the immediate work
assignment.
The record indicates that the two proposals herein were offered in
response to the implementation by the Agency of a new position
description for the "packer" position. Among the duties described in
the new description is one involving the operation of materials handling
equipment, including the machinery listed in Union Proposal 1. The
Union describes the purpose of its proposals as preventing "any
misunderstanding" concerning when a packer could be assigned to operate
materials handling equipment. Moreover, the Union asserts that Union
Proposal 1 is consistent with the Office of Personnel Management (OPM)
Job Grading Standard for Packer which makes no reference to operation of
materials handling equipment nor "does it allow for dual title of Packer
Forklift Operator."
Union Proposal 1, however, by limiting the operation of materials
handling equipment by packers only to those times when a "qualified
operator" is unavailable, is to the same effect as the proposal which
the Authority found to be inconsistent with the management right,
pursuant to section 7106(a)(2)(B) of the Statute, "to assign work" in
National Labor Relations Board Union, Local 19 and National Labor
Relations Board, Region 19, 2 FLRA 775 (1980). The Authority concluded
that the proposal in that case, which conditioned the assignment of
specified work to one employee upon the absence of another employee,
"would eliminate the discretion inherent in management's right to assign
work(.)" Hence, based upon National Labor Relations Board, Region 19,
and the reasons and case cited therein, Union Proposal 1 herein is
likewise outside the duty to bargain.
As to the Union's assertion that Union Proposal 1 is consistent with
the applicable OPM Job Grading Standard, in that the standard does not
include operating materials handling equipment among the duties of the
packer occupation, it is noted that OPM states its "standards do not
prescribe agency organization of work or the content of positions." /2/
Thus, the absence of a specific duty among those listed for a particular
function in the standard for an occupation does not preclude the
assignment of such unlisted duty to an employee. In any event, matters
relating to the classification of positions are excluded from the
definition of "conditions of employment" by section 7103(a)(14)(B) of
the Statute and are outside the duty to bargain.
No incidental licensing will become a requirement in either selection
or performance appraisal.
Union Proposal 2 attempts to limit the qualifications requirements
that the Agency may establish in rating candidates for vacancies in the
packer occupation. In this respect, the proposal is to the same effect
as the Union Proposals which were before the Authority in National
Federation of Federal Employees, Local 1332 and U.S. Army Materiel
Development and Readiness Command (DARCOM), 3 FLRA 200 (1980). The
Authority found the proposals in that case, which sought to prescribe
the training, experience, and qualifications to be possessed by
employees assigned as alcohol and drug abuse counselors, to be intended
to determine the "types" of employees who could be assigned as
counselors. Therefore, it was concluded that the proposals were
negotiable only at the agency's election pursuant to section 7106(b)(1)
of the Statute. In like manner, Union Proposal 2, herein, seeks to
bargain over the types of employees who may fill packer positions by
preventing possession of a license to operate materials handling
equipment from being a qualification requirement for the positions.
Consequently, since the Agency has elected not to bargain on the
proposal it is not within the duty to bargain.
Accordingly, 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., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency's motion to dismiss the petition for review, based on
the Union's failure to request in writing an allegation of
nonnegotiability, is hereby denied. It is now well established that a
union may properly initiate a timely negotiability appeal to the
Authority upon receipt of an unsolicited written allegation of
nonnegotiability from the agency. See, e.g., New York State Nurses
Association and Veterans Administration Medical Center, Bronx, New York,
11 FLRA No. 94 (1983).
/2/ Federal Personnel Manual Supplement 512-1, Job Grading System for
Trades and Labor Occupations, Part 1, Explanation of Job Grading System,
(1981), p.8.
15 FLRA 9; FLRA O-NG-616; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2011. Conditions of Employment
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work
DIGEST NOTES
A proposal is negotiable that concerns the manner in which the agency
will provide for employee participation in establishing performance
standards, but does not prevent the agency from establishing such
standards pursuant to its management rights. The proposal is a
procedure that insures employee/supervisor communications and
participation on performance standards as required by 5 U.S.C.
4302(a)(2). That section requires that performance appraisal systems
"encourage employee participation in establishing performance standards"
but does not specify the form which employee participation must take.
Consequently, the manner in which a particular agency provides for such
employee participation is within the agency's discretion and, therefore,
within the duty to bargain to the extent that it would not prevent the
agency from establishing performance standards and critical elements
pursuant to its statutory rights to direct employees and assign work
under Sec. 7106(a)(2). (proposal 1)
A proposal is nonnegotiable that provides for discipline of
management officials who exhibit any anti-union animus. Proposals for
disciplining management officials for violations of rights of employees
are unrelated to conditions of employment of bargaining unit employees
because it concerns the discipline of persons outside the bargaining
unit. (proposal 2)
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430
Case No. O-NG-616
and
DEPARTMENT OF THE NAVY,
NORTHERN DIVISION, U.S. NAVAL
BASE, PHILADELPHIA, PENNSYLVANIA
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
The identification of performance elements and the
establishment of performance standards shall be a joint planning
communication process between the employee with the aid of the
steward and the supervisor. Employees and their supervisors shall
meet at least once each year to discuss performance standards and
critical elements for the next rating year. The shop steward is
entitled to be present at, and a party to, such discussions.
The Agency argues that the intent of the proposal is ambiguous and
that, if the proposal is construed as requiring bargaining over
identification of performance elements and establishment of performance
standards, it is outside the duty to bargain. On the other hand, if the
proposal is intended only to require that employees be informed
concerning the performance elements and standards applicable to their
performance appraisals, the Agency will withdraw its determination of
nonnegotiability. /2/ In its response to the Agency's Statement of
Position the Union further explains the purpose of this proposal as
being "to propose a procedure that insures employee/supervisor
communications and participation on performance standards as required by
5 United States Code Section 4302(a)(2)." /3/
In National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 769, 778 (1980), affirmed sub nom.
NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority
section 4302(a)(2) of the CSRA requires that performance
appraisal systems "encourage employee participation in
establishing performance standards" but does not specify the form
which such employee participation must take. Consequently, among
other significant aspects of performance appraisal systems, the
manner in which a particular agency provides for such employee
participation is within the agency's discretion and, therefore,
within the duty to bargain to the extent that it would not prevent
the agency from establishing performance standards and critical
elements pursuant to its statutory rights to direct employees and
assign work. (Footnote omitted.)
Based on the record in the present case, we find that nothing in the
proposal would require the negotiation of performance elements or
standards, or would prevent the Agency from establishing such elements
and standards pursuant to its statutory rights to direct employees and
to assign work. Rather, in our view, the previously quoted intent of
the Union, as well as the express language of the proposal which calls
only for a "joint planning communication process" comprised of
"discussions," is fully consistent with the test set forth in our
decision in Bureau of the Public Debt, as quoted in pertinent part
above.
Accordingly, inasmuch as the proposal is concerned with the manner in
which the Agency will provide for employee participation in establishing
performance standards, but does not prevent the Agency from establishing
such standards pursuant to its management rights, it is within the duty
to bargain for the reasons stated in the Bureau of the Public Debt
decision. /4/
The Employer agrees that anti-union animus will not be
tolerated within the command.
The employer and union agree that a critical labor management
relations element for management officials is an element that
impacts adversely on any unit member, (sic) therefore any
anti-union animus exhibited by any management official shall be
cause for reassignment, downgrade or removal of the offending
management official.
Union Proposal 2 is to the same effect as the proposal found to be
outside the duty to bargain in National Association of Government
Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air
Force Base, Illinois, 7 FLRA 710 (1982), which required that management
consider union recommendations in disciplining management officials and
supervisors "for violations of the rights of employees." In that case,
the Authority found the proposal to be unrelated to conditions of
employment of bargaining unit employees because it concerned the
discipline of persons outside the bargaining unit. Union Proposal 2
likewise addresses the disciplining of management officials, who are
outside the unit. Hence, based on 375th Air Base Group, and the reasons
and case cited therein, it is outside the duty to bargain under the
Statute.
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 Proposal 1.
IT IS FURTHER ORDERED that the petition for review as it pertains to
Union Proposal 2 be, and it hereby is, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency withdrew its nonnegotiability determination as to a
third proposal. Therefore, the appeal of that determination is now moot
and will not be considered by the Authority.
/2/ Agency Statement of Position at 1-2.
/3/ Union Reply Brief at 1.
/4/ In deciding that Union Proposal 1 is within the duty to bargain,
the Authority makes no judgment as to its merits.
15 FLRA 8; FLRA O-NG-564; June 8, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2600. Conditions for Review
2601. Proposal Alleged to be Inconsistent with Federal Law
DIGEST NOTES
A proposal which seeks official time for persons outside the
bargaining unit for which a new collective bargaining agreement is to be
negotiated is nonnegotiable as the official time entitlement, under Sec.
7131(a) of the Statute, accrues only to an employee, serving as a
representative of a union, who is a member of the bargaining unit to
which the right to negotiate the bargaining agreement applies.
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION
and
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION
Case No. O-NG-564
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents an issue
relating to the negotiability of the following Union proposal.
Union negotiators will be authorized official time for
prenegotiation meetings and official time for meetings held on
Mondays and/or Fridays during the negotiation process. The period
of time of actual negotiations will be official duty time. This
includes unit and non-unit members. (The underlined sentence is
in dispute.)
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The record reveals that the Union introduced the disputed proposal as a
ground rule prior to the negotiation of a new collective bargaining
agreement with one element of the Agency to which the Union is certified
as exclusive representative. The "non-unit members" referred to in the
proposal are employed outside the bargaining unit in other components of
the Agency. The Agency contends that it is not obligated to bargain
over the granting of official time to any employees who are employed
outside the bargaining unit for which the collective bargaining
agreement is to be negotiated. The Union, on the other hand, argues
that the words "(a)ny employee" in section 7131(a) of the Statute /1/
authorize official time for negotiators both within and outside the
bargaining unit.
A similar position to the Union's herein was urged by the Authority's
General Counsel in United States Air Force, 2750th Air Base Wing
Headquarters, Air Force Logistics Command, Wright-Patterson AFB, Ohio
and Wright-Patterson AFB Fire Fighters Local F-88, International
Association of Fire Fighters, AFL-CIO, 7 FLRA 738 (1982). However, the
Authority concluded, "consistent with the overall scheme of the Statute
. . . that official time entitlement under section 7131(a) accrues only
to an employee, serving as a representative of an exclusive
representative, who is a member of the bargaining unit to which the
right to negotiate the bargaining agreement applies." Thus, based on
2750th Air Base Wing Headquarters and the reasons stated therein, the
instant proposal, seeking official time for persons outside the
bargaining unit for which a new collective bargaining agreement is to be
negotiated, is outside the Agency's duty to bargain to the extent it
seeks official time for non-unit employees.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7131(a) provides, in pertinent part:
Sec. 7131. Official time
(a) Any employee representing an exclusive representative in
the
negotiation of a collective bargaining agreement under this chapter
shall be authorized official time for such purposes . . . .
15 FLRA 7; FLRA 2-CA-720, 2-CA-715; June 6, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
6800. Remedies
6810. For Agency Violations
DIGEST NOTES
The Authority held that the activity violated Sec. 7116(a)(1) and (5)
when it unilaterally changed the method of handling traffic and
non-traffic offenses at its shipyard without first affording the
exclusive representative an opportunity to negotiate the impact and
implementation of the change.
Neither a status quo ante order nor a make whole order was
appropriate to remedy the respondent's violation of not affording the
union an opportunity to negotiate the impact and implementation of a
change in the method of handling traffic and non-traffic offenses at the
respondent's shipyard, the Authority held. The nature and circumstances
of the unfair labor practice must be balanced against the disruption to
government operations which would be caused by directing a return to the
status quo ante. The decision to change the method of handling traffic
and non traffic offenses over which the union sought impact bargaining
emanated from higher levels of management and affected 35 other
activities at the naval base, in addition to the respondent shipyard. A
requirement to reinstate the prior system would prevent uniform traffic
administration at the naval base. The alternative of reinstating the
prior system on the entire base pending impact bargaining would be
inappropriate because it would have an effect on 35 other tenant
activities at the base and hence would extend far beyond the operation
of the respondent activity that committed the unfair labor practice. On
the other hand, the violation committed did not result in a great
inconvenience or hardship to adversely affected employees. Finally, a
make whole remedy is not appropriate because there has been no showing
that any losses suffered were related to the respondent's refusal to
bargain since another system for regulating offenses was in place prior
to implementation of the new system and there is no evidence to suggest
that losses through fines under the new system would not have occurred
under the previous system.
An exclusive representative may satisfy its obligation to demand
impact and implementation bargaining by means of a verbal request, the
ALJ concluded in a decision adopted by the Authority.
PHILADELPHIA NAVAL SHIPYARD
DEPARTMENT OF THE NAVY
and
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS,
LOCAL 3
Case No. 2-CA-720
PHILADELPHIA NAVAL SHIPYARD
DEPARTMENT OF THE NAVY
and
PHILADELPHIA METAL TRADES COUNCIL
Case No. 2-CA-715
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in certain unfair labor practices as alleged in the complaint,
/1A/ and recommending that it be ordered to cease and desist therefrom
and take certain affirmative action. The General Counsel filed
exceptions to the Judge's recommended Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the 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.
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute when it instituted a new "Magistrate System,"
described more fully in his Decision, without bargaining over the impact
and implementation of the new system. The Authority agrees, for the
reasons stated by the Judge.
To remedy the violation, the Judge ordered the Respondent to cease
and desist from the unfair labor practices found, give the exclusive
representative notice and an opportunity to bargain concerning the
impact and implementation of the new system, and post the customary
notice to its employees. The Judge concluded that neither a status quo
ante remedy nor a make-whole order was appropriate in the circumstances.
While the Authority has determined that in some cases a status quo ante
remedy may be warranted for a refusal to negotiate over impact and
implementation, Federal Correctional Institution, 8 FLRA No. 111 (1982)
(issued after the Judge's Decision herein), the Authority agrees with
the conclusion of the Judge that such remedy is not appropriate herein.
Thus, applying the standards of Federal Correctional Institution, the
nature and circumstances of the unfair labor practice must be balanced
against the disruption to government operations which would be caused by
directing a return to the status quo ante. It is noted that the
decision to institute the magistrate system over which the Union sought
impact and implementation bargaining emanated from higher levels of
management and affected 35 tenant activities at the Philadelphia Naval
Base, in addition to the Respondent Philadelphia Naval Shipyard. Thus,
a requirement to reinstitute the prior system as to the Shipyard, as
sought by the General Counsel and rejected by the Judge, clearly would
prevent uniform traffic administration at the Base. The alternative of
reinstating the prior system on the entire base pending impact
bargaining would be inappropriate because it would have an effect on the
35 other tenant activities at the Base and hence would extend far beyond
the operations of the Respondent which committed the unfair labor
practice. On the other hand, the record does not suggest great
inconvenience or hardship to adversely affected employees as a result of
the unilateral implementation of the system. Moreover, the record
suggests that the Respondent's failure to negotiate over the impact and
implementation of the new system, while violative of the Statute, may
have resulted at least in part from confusion rather than willfulness.
In view of the foregoing, the Authority concludes that a prospective
bargaining order, giving the employees' exclusive representative an
opportunity to present proposals concerning the impact and
implementation of the decision to institute the magistrate system, will
fully remedy the violation in this case and will effectuate the purposes
and policies of the Statute.
Finally, in adopting that portion of the Judge's Decision denying
reimbursement to employees adversely affected by the new procedure, it
is noted that there has been no showing that any losses suffered were
related to the Respondent's refusal to bargain since another system for
regulating offenses was in place prior to implementation of the new
system and there is no evidence to suggest that losses through fines
under the magistrate system would not have occurred under the system
which existed previously. Accordingly, a make-whole remedy is not
appropriate.
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 Philadelphia Naval Shipyard, Department
of the Navy, shall:
1. Cease and desist from:
(a) Instituting changes in the method of handling traffic and
non-traffic offenses at the Philadelphia Naval Shipyard, without first
affording the International Federation of Professional and Technical
Engineers, Local 3, and Philadelphia Metal Trades Council, the exclusive
bargaining representatives of employees in their respective bargaining
units, an opportunity to bargain concerning the procedures to be
observed in implementing such changes and appropriate arrangements for
employees adversely affected thereby.
(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:
(a) Upon request, bargain with the International Federation of
Professional and Technical Engineers, Local 3, and Philadelphia Metal
Trades Council concerning the procedures to be observed in instituting
changes in the method of handling traffic and non-traffic offenses and
appropriate arrangements for employees adversely affected thereby.
(b) Post at its facility at Philadelphia Naval Shipyard the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Shipyard Commander, or his designee, and shall be posted 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) Notify the Regional Director of Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT institute changes in the method of handling traffic and
non-traffic offenses at the Philadelphia Naval Shipyard without first
affording the International Federation of Professional and Technical
Engineers, Local 3, and Philadelphia Metal Trades Council, the exclusive
representatives of our employees, an opportunity to bargain concerning
the procedures to be observed in implementing such changes and
appropriate arrangements for employees adversely affected thereby. 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,
bargain with the International Federation of Professional and Technical
Engineers, Local 3, and Philadelphia Metal Trades Council concerning the
procedures to be observed in instituting changes in the method of
handling traffic and non-traffic offenses, and appropriate arrangements
for employees adversely affected thereby.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 241, New York, New York 10278 and whose
telephone number is: (212) 264-4934.
Joseph J. Dallas,
Jerry Snyder, Esq.
For the Respondent
Lee Mingledorff, Esq.
Nina Schwartz, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
This proceeding arises under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Act). On
December 22, 1980 a charge was filed in Case No. 2-CA-720 by
International Federation of Professional and Technical Engineers, Local
3 (herein called IFPTE) against Philadelphia Naval Shipyard, Department
of the Navy (herein called Respondent). On December 18, 1980 a charge
was filed in Case No. 2-CA-715 by Philadelphia Metal Trades Council
(herein called PMTC) against the aforesaid Respondent.
Pursuant to an Order Consolidating Cases, /1/ Complaint and Notice of
Hearing issued on February 27, 1981 by the Regional Director for the
Federal Labor Relations Authority, New York, N.Y. Region, a hearing was
held before the undersigned on May 20, 1981 at Philadelphia, PA.
Based upon the aforesaid charges it was alleged in the Consolidated
Complaint that Respondent, on December 15, 1980, implemented a change to
a U.S. Magistrate System in respect to traffic and parking violations;
that Respondent implemented such change without affording IFPTE or PMTC
an opportunity to negotiate the procedures, implementation and impact of
such system, that Respondent, in fact, did refuse to negotiate thereon
despite a request by said unions to do so-- all in violation of Sections
7116(a)(1) and (5) of the Act.
Respondent's answer, dated March 19, 1981, denied the aforesaid
allegations and that it committed 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 General Counsel filed a brief with
the undersigned which has been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings, conclusions and
recommendations:
1. At all times material herein IFPTE has been, and still is, the
exclusive bargaining representative of all non-supervisory technical and
professional employees in Respondent's Planning Department (Codes 240
thru 270, and Code 202), Production Engineering Division (Code 385);
upgraded non-supervisory personnel, Reproduction Branch, Planning
Department (Code 202); non-supervisory graded technical employee of the
Combat Systems Office (Code 190).
2. At all times material herein PMTC has been, and still is, the
exclusive bargaining representative of all non-supervisory ungraded
employees who are employed by Respondent, excluding ungraded employees
in units where exclusive recognition has been granted to other labor
organizations.
3. Approximately 30,000 employees are engaged at the Naval Base in
Philadelphia, PA. Of this amount, about 10,600 individuals are employed
by the Respondent, Philadelphia Naval Shipyard, which is a tenant
activity. There are about 35 other activities occupying a similar
status. Respondent recognizes and negotiates with six labor
organizations as the exclusive representatives of various unit employee.
Bargaining does not take place by the unions with the Naval Base, and
all requests to bargain must be made to the appropriate command of the
particular activity.
4. Various operations at Respondent which involve police actions,
fire maintenance, mail, et al, are under the employer's administrative
department. The police division handles the parking traffic program at
the Shipyard and the Naval Base. This is in accord with the delegation
by the Commander of the Naval Base of responsibility for administering
and enforcing traffic regulations to the Commander of the Naval
Shipyard.
5. In August 1980, /2/ management held a meeting with the various
union representatives to discuss a proposed new parking system. As an
ancillary matter, Commander Moyers informed the union officials that a
Magistrate System was planned. However, no details were imparted to
those in attendance, nor did the union representatives request
negotiations thereon at that time.
6. As called by Richard R. Britt, Head of Labor Relations for
Respondent, a meeting was held by management with union officials on
November 12 to inform the latter of the new Magistrate System. Britt
explained it would cover traffic-type offenses. However, he did not
list which offenses would constitute violations nor indicate the
correlative penalties or fines. Management was unable to inform the
union agents the exact date when the new system would be implemented.
Several matters, in connection therewith, were raised by the union
representatives. A question was posed as to whether employees, who are
required to appear in court, would be charged for annual leave.
Further, it was posed as to whether "double jeopardy" would prevail if
an employee received a fine in court and was also disciplined at the
base. Several union officials stated to Britt that they desired to
negotiate these matters as well as the implementation of the Magistrate
System. /3/ Britt testified that he told the union representatives
that, in his opinion, the Magistrate System was non-negotiable since it
was beyond his control as it was imposed upon Respondent by the
ComnavBase; that the Admiral was telling the Shipyard it would have
such a system.
7. During the week following the aforesaid meeting Frank McHale,
representative of PMTC, spoke to Britt re the negotiability of the
Magistrate Court System. McHale asked the management official if he
intended to negotiate any proposals and Britt replied it was
non-negotiable.
8. Under date of November 18 the ComnavBase sent out a TWX advising
all "Navacts" that commencing December 15 all traffic (including
parking) violations on the base would be referred to Federal
Magistrate's Court for disposition; that non traffic offenses committed
by civilians and retired military personnel would also be similarly
referred to said Court.
9. A letter dated December 3 was sent from James McGinley,
President, Local F-61 IAFF, to Rear Admiral C. A. Brettschneider
requesting negotiation re the impact and implementation of the proposed
Magistrate System.
10. It was announced in the December 7 issue of the Beacon /4/ that
"in accordance with Department of Defense instructions, the Philadelphia
Naval Base will begin a Federal Magistrate Program beginning on December
15."
11. In the December 12 issue of the Beacon it was specified, for the
first time, which acts by employees (traffic and non-traffic) were
deemed offenses and would require the appearance of the offender in
Federal Court. Alongside of each such offense was listed the
correlative fine to be imposed therefor.
12. Prior to the imposition of this system the union represented
employees at the police station for traffic infractions. Individuals
charged with such acts might have their parking sticker revoked, but
fines were not levied. Under the Magistrate System both penalties could
result. Non-traffic offenses were handled via the grievance procedures,
and employees who were such offenders might have union representation.
Penalties in these instances could involve reprimands, warnings,
suspension, or removal. Under the Magistrate System /5/ an individual
might be subject to such punishments and be fined by the Court.
Representation by the union in the latter tribunal was no longer
feasible, and fines imposed by the Magistrate were not grievable.
13. Record facts reflect that on December 12, during contract
negotiations between the unions and management, Michael Ricci,
corresponding secretary of PMTC, asked Britt to negotiate the impact and
implementation of the Magistrate System. Further, Respondent's labor
relations specialist replied that the matter was not negotiable.
14. The Magistrate Court System was put into effect on December 15,
and no negotiation took place between the parties with respect to its
impact or implementation.
15. By memo dated December 16 the ComnavBase referred McGinley's
letter of December 3 (requesting negotiation of the Magistrate System)
to the Commander of the Shipyard for appropriate action.
16. Under date of December 23 Britt returned McGinley's letter to
him, stating it was erroneously forwarded to the Shipyard for action.
17. In a letter dated January 5, 1981 Joseph J. Dallas, Senior Labor
Relations Advisor for Department of the Navy, wrote McGinley re his
request of December 3 to negotiate "the implementation and impact of the
Federal Magistrate Court Program on conditions of employees in your
bargaining unit." Dallas stated that the "employer" for the unit
employees is the Commander, Naval Shipyard, Philadelphia; that,
therefore, the Commander, Naval Base Philadelphia has no obligation to
bargain re the Magistrate Programs; that if the Shipyard Commander
chooses to issue implementing instructions, his representative will
afford an opportunity to bargain on impact and implementation.
While conceding it may have an obligation to bargain over the impact
and implementation of the Magistrate System, Respondent insists it did
not flout its duty in this regard. Thus, it contends that no request
was made to negotiate the system's impact or implementation; that
assuming arguendo such a request was made, it was not in writing and
therefore the employer should not be faulted for failing to so
negotiate.
It is clear that although certain decisions in respect to operations,
or the change thereof, are reserved for management, it is incumbent upon
the latter to negotiate with the bargaining representative as to their
impact and implementation. Federal Railroad Administration, 4 A/SLMR
No. 497. This principle is well established in the public sector, and
it is qualified in the main only to the extent that the impact is
significant to warrant fulfilling such obligation. Thus, an employer is
required to notify the representative, before it effects any change in
operation, and afford the union an opportunity to bargain concerning the
implementation thereof. Internal Revenue Service, Washington, D.C., 4
FLRA No. 68.
In respect to the change instituted by Respondent herein concerning
the Magistrate System, it is noted that the Authority has had occasion
to consider a case wherein an employer adopted such a system with
respect to traffic and parking violation. It was held in Department of
the Air Force, Malmstrom Air Force Base, Montana, 2 FLRA No. 2 that
while the decision to institute such a procedure was reserved to
management, the latter was obliged to bargain over its impact and
implementation. Since, in the cited case, the employer had not afforded
the bargaining representative an opportunity to negotiate the Magistrate
System's impact and implementation, it was concluded that management had
failed to bargain as required under the Order. /6/
The chief contention of the Respondent herein is that no request was
made to bargain over the impact and implementation of the Magistrate
System at the Shipyard. The facts herein belie this argument. Union
witnesses testified credibly that, at the November 12 meeting with
management, they requested of Britt that the impact and implementation
of the new system be negotiated. Britt's testimony reflecting he deemed
the Magistrate procedure to be non-negotiable leaves little room for an
inference that he was referring solely to the decision to institute the
new system. This is buttressed by the conversation a week later between
PMTC representative McHale and Britt regarding the matter. When asked
by the union official whether he intended to negotiate any proposals,
Britt replied the matter was non-negotiable.
Respondent's insistence that it would have negotiated the change if
it had received a request to do so is not persuasive. Thus, no
affirmative response was made by the Shipyard to union agent McGinley's
written request of December 12, 1980 to negotiate the impact and
implementation of the Magistrate Program. The employer had a clear
opportunity to comply with its obligation in this regard, and the
request to bargain was explicit and in writing. Its failure to do so
comports with the conclusion, which I reach, that Britt's statement in
which he declared the Magistrate System non-negotiable was referable to
impact and implementation as well as the decision itself. The entire
thrust of Britt's declarations re the new Court System was to the effect
that no negotiations were, in fact, in order; that no duty was imposed
upon Respondent to bargain at all. Neither do I conclude that IFPTE or
PMTC - the charging parties - were obliged to make a written request to
negotiate as opposed to an oral one. No cases have been cited to the
undersigned which would support such a conclusion. Moreover, past
decisions reflect that the bargaining agents have satisfied their
obligation to demand bargaining re impact and implementation by means of
a verbal request in this regard. Department of Health, Education and
Welfare, SSA, BRSI, Northeastern Service Center, 8 A/SLMR 894.
Accordingly, and on the basis of the foregoing I am constrained to
conclude that a request was made to bargain re the impact and
implementation of the Magistrate System with the bargaining
representations of the employees in the appropriate units herein; that
Respondent refused and failed to negotiate thereon; and that by such
refusal it has violated Sections 7116(a)(1) and (5) of the Act.
General Counsel seeks a remedy, inter alia, which restores the status
quo in respect to the traffic and non-traffic violations occurring at
the Shipyard. He requests that (1) the Respondent be directed to
rescind the implementation of the Magistrate System as it applies to
employees represented by IFPTE and PMTC; (2) Respondent make whole
employees within such units who were adversely affected by reason of
such implementation.
(1) While it has been held proper to grant a status quo remedy where
impact and implementation bargaining is ordered, /7/ I do not deem such
remedy is appropriate in the case at bar. The regulation herein
emanated from higher level management, Department of Defense via the
naval base, and it was made applicable to over 30 other tenants or
activities stationed at the base. As such, the Magistrate System was
imposed over the Shipyard by a higher level, and thus Respondent had no
control over its imposition. Since neither the Department of Defense
nor the Naval Base is a party Respondent, no jurisdiction vests herein
which warrants or justifies ordering either entity to rescind the System
implemented at the Shipyard. Moreover, Respondent is in no position to
revoke the procedure by virtue of the fact that it has merely followed
directions from higher level management. See decision of Judge
Salvatore J. Arrigo in 1-CA-206 et seq., OALJ-81-023 where, in the
"parking cases", a status quo ante remedy was denied as unwarranted.
/8/ Also, see and compare General Services Administration, 6 FLRA No.
77.
(2) Nor do I conclude that it is proper to order Respondent to make
whole employees adversely affected by the new procedure. While a
bargaining order re impact and implementation is warranted, I do not
view a make whole remedy as appropriate under the circumstances. Apart
from the fact that fines are paid into the Court, and beyond the control
of the Shipyard, such a remedy is seemingly not justified where the
decision re the System was not made by the Respondent. Thus, I find the
case of Department of Transportation et al, 8 FLRA 674 to be
distinguishable from the facts herein. In the cited case the order ran
against the higher level management, which was the Respondent therein,
and that entity was ordered to direct the subordinate activity (Dulles
International Airport) to make whole employees adversely affected by
parking permit fees which were exacted. But in the instant case the
decision was not made by the Shipyard. Since the higher levels were not
party Respondent, I cannot order them to make such direction.
Accordingly, I shall not fashion a remedy which reimburses adversely
affected employees as requested by the General Counsel. /9/
Having concluded that Respondent violated Sections 7116(a)(1) and (5)
of the Act, it is recommended the Federal Labor Relations 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 Philadelphia Naval Shipyard shall:
1. Cease and desist from:
(a) Instituting a "Magistrate System" as the method of handling
traffic and non-traffic offenses at the Philadelphia Naval
Shipyard, without first affording the International Federation of
Professional and Technical Engineers, Local 3, and Philadelphia
Metal Trades Council, the exclusive bargaining representatives of
employees in their particular appropriate units a reasonable
opportunity to bargain, to the extent consonant with law and
regulations, on the procedures to be observed in implementing such
System and the impact of the System on adversely affected
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 actions:
(a) Upon request by the International Federation of
Professional and Technical Engineers, Local 3, and Philadelphia
Metal Trades Council, bargain, to the extent consonant with law
and regulations, concerning the procedure to be observed in
instituting a Magistrate System as the method of handling traffic
and non-traffic offenses, and on the impact such System will have
on adversely affected employees.
(b) Post at its facility at Philadelphia Naval Shipyard 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 the Shipyard Commander, and shall be
posted thereafter in conspicuous places, including bulletin boards
and other places where notices to employees are customarily
posted. The Shipyard Commander shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: September 9, 1981
Washington, DC
WE WILL NOT institute a "Magistrate System" as the method of handling
traffic and non-traffic offenses at Philadelphia Naval Shipyard without
first affording the International Federation of Professional and
Technical Engineers, Local 3, and Philadelphia Metal Trades Council, a
reasonable opportunity to bargain, to the extent consonant with law and
regulations, on the procedures to be observed in implementing such
System and the impact on adversely affected 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, bargain with International Federation of
Professional and Technical Engineers, Local 3, and Philadelphia Metal
Trades Council, to the extent consonant with law and regulations,
concerning the procedures to be observed in instituting a "Magistrate
System" as the method of handling traffic and non-traffic offenses, and
on the impact of such System on adversely affected employees.
Agency or Activity
By: (Signature)
Dated: . . .
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 for the Federal Labor Relations Authority whose
address is: Room 241, 26 Federal Plaza, New York, New York 10278; and
telephone number is (212) 264-3934.
/1A/ At the hearing, upon a motion by the General Counsel with no
objection from the Respondent, the Judge severed Case Nos. 2-CA-679 and
2-CA-855 from this proceeding.
/1/ Both 2-CA-270 and 2-CA-715 were consolidated with cases 2-CA-679
and 2-CA-855 by an order dated May 12, 1981. Subsequent thereto, and
prior to the hearing, both 2-CA-679 and 855 were settled. A motion by
the General Counsel at the hearing to sever 2-CA-679 and 2-CA-855 from
this proceeding was granted by the undersigned.
/2/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1980.
/3/ While Britt denies that any specific requests were made to so
negotiate, I credit the contrary testimony adduced from union officials
William Rheil, Howard J. Landry, and George Wilent.
/4/ A publication issued weekly by the Shipyard and sent to all its
employees.
/5/ The system is under the Federal District Court's jurisdiction.
The Magistrate is an official of the Court, and fines collected are
deposited with U.S. Treasury.
/6/ The obligation imposed upon an employer in the public sector to
negotiate or bargain with the bargaining representative under Executive
Order 11491, as amended, is continued under the Act herein.
/7/ San Antonio Air Logistics Center (AFLC) Kelly Air Force Base,
Texas, 5 FLRA No. 22 (1981).
/8/ General Counsel suggests that this remedy can be accomplished by
having the Commander direct that citations not be referred to the
Magistrate, but be processed under the administrative system. Even such
a procedure, as directed by Respondent, flouts the regulation as imposed
from above and would constitute an improper revocation of the System
itself.
/9/ The other cases cited in support of a make whole order are not
apposite. No provision was made therein for such a remedy.
15 FLRA 6; FLRA 8-CA-1121; June 6, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4100. Interference, Restraint, Coercion
4500. Refusal to Negotiate
DIGEST NOTES
The Authority held that the agency did not violate Sec. 7116(a)(1)
and (5) of the Statute when it allegedly implemented a unilateral change
in working conditions affecting unit employees in its Phoenix and Las
Vegas Field Zones without first providing adequate notice and an
opportunity to bargain to the union concerning the impact and
implementation of such change in employee working conditions where the
evidence indicated that: (1) the union was notified of an intended
change in terms and conditions of employment of unit employees at two of
the agency's facilities; (2) the changes were drafted as a complete
plan and were accompanied by a letter setting forth a deadline by which
the union's response was to be made, clearly demonstrating the agency's
intention to implement such changes; and (3) the union was provided
adequate notice and an opportunity to request bargaining prior to the
implementation of the agency's changes.
GENERAL SERVICES ADMINISTRATION
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case No. 8-CA-1121
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, /1/ the
Authority finds:
The complaint alleges that on or about May 1, 1981, the General
Services Administration (the Respondent) unilaterally implemented a
change in working conditions affecting unit employees in its Phoenix and
Las Vegas Field Zones without first providing adequate notice to the
American Federation of Government Employees, AFL-CIO (AFGE), the
employees' exclusive representative, and an opportunity to bargain
concerning the impact and implementation of such change in employee
working conditions in violation of section 7116(a)(1) and (5) of the
Statute. /2/
The stipulated record indicates that since September 10, 1980, the
AFGE has been certified as the exclusive representative of two
consolidated units of professional and non-professional employees,
respectively, of the General Services Administration, including
employees located in Phoenix, Arizona, and the Las Vegas Field Office,
Las Vegas, Nevada. At all times relevant herein, there existed no
negotiated agreement between the parties with respect to the national
consolidated units.
By cover letter dated April 6, 1981, the Respondent transmitted to
AFGE a document known as Transmittal Letter No. 23, entitled "Special
Operations Response Teams." The stipulated record further indicates that
Transmittal Letter No. 23, which established procedures and guidelines
relative to special operations response teams, had a substantial impact
on the Federal Protective Officers in the AFGE's exclusive unit located
in the Phoenix and Las Vegas Field Zones. The April 6, 1981 letter
indicated that any response AFGE wished to make should be individual to
be contacted, but did not indicate whether or when implementation of
Transmittal Letter No. 23 would actually take place.
The April 6, 1981 letter was received by AFGE on or about April 14,
1981, and thereafter, by letter dated April 29, 1981, AFGE requested
that the parties discuss and bargain over, inter alia, the impact and
implementation of Transmittal Letter No. 23. Also on April 29, 1981,
the Director of the Federal Protective Service for the Respondent's
Region 9 notified employees at the Phoenix and Las Vegas Field Zones by
letter that Transmittal Letter No. 23 would be implemented on May 1,
1981. The record further indicates that implementation did in fact
occur on that date.
The General Counsel takes the position that the Respondent's April 6,
1981 letter attached to Transmittal Letter No. 23 did not provide
adequate notice to AFGE of an intended change in working conditions,
since it did not indicate either that the transmittal letter was in fact
to be implemented or the specific date of implementation. The General
Counsel further argues that, even if the April 6, 1981 letter
constituted sufficient notice of the Respondent's intent to implement,
AFGE was not provided with a reasonable opportunity to bargain prior to
actual implementation. The Respondent contends that the April 6, 1981
letter was sufficient notice to AFGE of its intended change in working
conditions, and clearly set a response deadline of April 21, 1981, with
the address, telephone number and name of the person to whom AFGE's
response should be directed, thereby providing sufficient time for AFGE
to request bargaining.
It is well-established that a union must be given adequate notice by
agency management and an opportunity to request bargaining over the
impact and implementation of changes in working conditions affecting
unit employees. /3/ The question here presented is whether the
Respondent's notification on April 6, 1981, of an intended change in the
terms and conditions of employment of unit employees constituted
adequate notice under the Statute to have enabled AFGE to request
bargaining.
For the reasons which follow, the Authority finds that AFGE was
provided adequate notice and an opportunity to request bargaining prior
to the implementation of Transmittal Letter No. 23, and that the
Respondent's conduct in implementing the changes contained therein was
not violative of the Statute.
As previously stated, AFGE was notified of an intended change in
terms and conditions of employment of unit employees at two of the
Respondent's facilities. In the Authority's view, these changes which
were drafted as a complete plan and which were accompanied by a letter
setting forth a deadline by which AFGE's response was to be made,
clearly demonstrated the Respondent's intention to implement such
changes. While the General Counsel argues that the failure to specify
an implementation date constituted a failure to provide adequate notice,
the Authority concludes to the contrary since it could clearly be
ascertained that implementation was forthcoming, and the period of time
given for a response was reasonable. It was then incumbent upon AFGE to
request bargaining, if it so desired, or to at least request more time
to respond, if necessary. Under these circumstances, the Respondent's
April 29, 1981 directive that Transmittal Letter No. 23 be implemented
at the Phoenix and Las Vegas Field Zones effective May 1, 1981, and its
implementation on that date, cannot be found to have violated the
Statute. Accordingly, the Authority shall order that the complaint be
dismissed in its entirety. /4/
IT IS ORDERED that the complaint in Case No. 8-CA-1121 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The General Counsel moved to strike portions of the Respondent's
brief on the ground that it contains factual material not included in
the stipulation. In reaching its decision in the instant case, the
Authority has, of course, considered only facts contained in the
stipulation, and therefore the motion to strike is denied.
/2/ Section 7116(a)(1) and (5) provides:
Sec. 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;
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ See, e.g., Internal Revenue Service (District, Region and
National Office Unit and Service Center Unit), 10 FLRA 326 (1982).
/4/ See United States Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, Texas, 8 FLRA 623 (1982) and U.S.
Department of the Air Force, Air Force Systems Command, Electronic
Systems Division, Hanscom AFB, Massachusetts, 5 FLRA 637 (1981).
15 FLRA 5; FLRA O-NG-623; June 6, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work
DIGEST NOTES
A proposal is nonnegotiable that requires critical elements to be the
same for positions which are essentially the same. The proposal would
prevent management from determining that the critical elements of
particular positions would not be the same because, in management's
judgment, the circumstances relating to work performance in them warrant
the establishment of different critical elements. Thus the proposal
interferes with management's right under Sec. 7106(a)(2) to direct
employees and assign work. (proposal 1)
A proposal is nonnegotiable that would allow the union to be present
at management meetings relating to the development or revision of
performance standards. Although the role of the union might be a purely
passive one that would not entail participation in internal management
deliberations, such presence would nevertheless interfere with
management's right to freely engage in internal discussion and
deliberation prior to making decisions. Hence, the proposal would
interfere with the agency's decision-making process in the exercise of
management's right to direct employees and to assign work under Sec.
7106(a)(2). (proposal 2)
A proposal is nonnegotiable that prevents the agency from
establishing performance standards based on production goals unless
certain conditions described in the proposal exist. The proposal
interferes with the agency's right to direct employees and assign work
under Sec. 7106(a)(2)(A) and (B). (proposal 3)
A proposal is nonnegotiable that defines the level of performance
required to achieve a particular summary rating because it interferes
with management's rights under Sec. 7106(a)(2) to direct employees in
the agency and to assign work. (proposal 4)
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2302
and
U.S. ARMY ARMOR CENTER,
FT. KNOX, KENTUCKY
Case No. O-NG-623
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of four Union proposals. /1/ Upon careful consideration
of the entire record, including the parties' contentions, the Authority
makes the following determinations. /2/
Positions which are essentially the same shall have the same
critical elements.
This proposal would establish substantive limitations on the Agency's
discretion to identify the critical elements for certain positions. In
this regard it is to the same effect as a proposal which was before the
Authority in National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 6 FLRA 9 (1981). In that case the Authority, relying
upon two previous decisions, /3/ found that a proposal which restricted
management in its designation of critical elements interfered with
agency's rights under section 7106(a)(2) of the Statute to direct
employees and to assign work. The present proposal, by requiring
critical elements to be the same for positions which are "essentially
the same," would prevent management from determining that the critical
elements of particular positions should not be the same because, in
management's judgment, the circumstances relating to work performance in
them warrants the establishment of different critical elements. For the
reasons fully set forth in Saint Lawrence Seaway Development Corporation
and Bureau of the Public Debt, Union Proposal 1 is outside the duty to
bargain. /4/
The Union shall be allowed to have an observer present in the
development or revision of all measures of performance.
Determinations as to the content of performance standards are an
exercise of management's rights under section 7106(a)(2) to direct
employees and to assign work. Bureau of the Public Debt, see n. 3,
supra. The Authority has found that the right of management officials
to take actions under section 7106(a) of the Statute encompasses not
only the right to act but also the right to discuss and deliberate on
the relevant factors upon which decisions concerning such actions are to
be based. See 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) (Union
Proposals 1 and 3), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d
886 (D.C. Cir. 1982). Union Proposal 2 would require that the Union be
present at management meetings relating to the development or revision
of performance standards. The Union contends that the role of the
observer would be a purely passive one and that, given this
circumstance, the proposal would not entail active participation in
internal management deliberations. Contrary to the Union's contention
the Authority concludes that such presence, regardless of whether active
or passive in nature, would interfere with the Agency's right to freely
engage in internal discussion and deliberation prior to making decisions
to take actions which come within the purview of section 7106(a) of the
Statute. Hence, with respect to the proposal in this case, it would
interfere with the decision-making process with respect to the exercise
of the Agency's right to direct employees and to assign work and,
therefore, is outside the duty to bargain.
Production studies or goals shall not be translated into
performance standards, e.g. work units per person unless the
following conditions are fully satisfied:
(1) The work performed is repetitive and capable of being done
uniformly by all workers in the unit being measured.
(2) Job content is constant throughout the appraisal period.
(3) The method of operation, service and work units produced is
capable of being objectively, reliably, validly and accurately
measured.
(4) The work units to be measured are equivalent.
The proposal is substantively identical to Union Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
No. 1 (1984). For the reasons expressed therein as well as in the cases
relied upon therein, the Authority finds that this proposal would
interfere with the Agency's right to direct employees and to assign work
and, therefore, is outside the duty to bargain.
Appendix (UB) - Performance Rating Levels. The range of
overall performance shall be one of the four ratings defined
below. The overall rating shall be arrived at by considering the
total performance of the employee by using only the rating of
elements as prescribed in Section 4B(1) above.
Outstanding - Performance which meets performance standards for
all critical elements and exceeds standards for a majority of
major elements.
Satisfactory - Performance which needs improvement in one or
more critical elements. Performance in relation to these elements
of such quality it would be expected of a proven competent
employee.
Marginal - Performance which needs improvement in one or more
critical elements. Performance in relation to performance
standards is less than expected of a competent employee.
Unsatisfactory - Performance which fails to meet performance
standards for one or more critical elements. Performance is
clearly unacceptable and corrective action is needed.
As explained by the Union, this proposal defines the level of
performance required to achieve a particular summary rating. Thus, this
proposal is to the same effect as a portion of the proposal in American
Federation of State, County and Municipal Employees, AFL-CIO, Council 26
and U.S. Department of Justice, 13 FLRA No. 96 (1984), which the
Authority held to be outside the duty to bargain because it interfered
with management's rights under section 7106(a)(2) of the Statute to
direct employees in the agency and to assign work. Based on Department
of Justice and for the reasons fully stated therein, it is concluded
that the instant proposal is outside the duty to bargain. /5/
Accordingly, 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., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In its response to the petition for review, the Agency withdrew
its allegation that a fifth proposal concerned with studies bearing on
performance standards was nonnegotiable. Accordingly, there is no
longer an issue as to whether the proposal is within the duty to
bargain.
/2/ Contrary to the Agency's assertion that the petition was untimely
filed, the Authority finds that the petition was timely submitted with
respect to the Union's written request for a written allegation of
nonnegotiability. In this regard, under section 2424.3 of the
Authority's Rules and Regulations, a union has the right to request in
writing that an agency serve it with such written allegation. American
Federation of Government Employees, AFL-CIO, Local 3385 and Federal Home
Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981).
/3/ American Federation of Government Employees, AFL-CIO, Local 1968
and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981), aff'd sub nom. AFGE,
Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1981), cert. denied, 103
S.Ct. 2085 (1983), and National Treasury Employees Union and Department
of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub
nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
/4/ Cf. American Federation of Government Employees, AFL-CIO, Local
32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784
(1980) (Union Proposal 5) wherein the Authority found that, insofar as a
proposal would establish a general, nonquantitative requirement by which
the application of performance standards could be evaluated as opposed
to dictating the actual content of the performance standards, such
proposal was negotiable.
/5/ In view of this determination, the Authority finds it unnecessary
to address the Agency's additional contentions regarding the
negotiability of this proposal.
15 FLRA 4; FLRA O-NG-602; June 6, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work
DIGEST NOTES
A proposal which would prevent management from accepting and
assigning additional work to bargaining unit employees unless it can be
established that such additional work can be accomplished without resort
to overtime or to temporary augmentation of the unit workforce is
nonnegotiable as it is inconsistent with management's right, pursuant to
Sec. 7106(a)(2)(B) of the Statute, to assign work. (Proposal 1)
A proposal which would permit the union to participate in determining
when additional work could be assigned to an organizational element of
the agency is nonnegotiable as it is inconsistent with management's
right, pursuant to Sec. 7106(a)(2)(A) and (B) of the Statute, to direct
employees and to assign work. (Proposal 2)
A proposal which concerns the reassignment of bargaining unit
employees to other positions within the bargaining unit based on
seniority is nonnegotiable as it is inconsistent with management's
right, under Sec. 7106(a)(2)(A) of the Statute, to assign employees.
(Proposal 3)
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-89
and
DEPARTMENT OF THE ARMY, HEADQUARTERS,
U.S. ARMY AIR DEFENSE CENTER AND
FORT BLISS, TEXAS
Case No. O-NG-602
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of three Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Proposal 14: Prior to accepting military pay records from WSMR
(White Sands Missile Range) or any other agency/activity outside
the Fort Bliss complex, employer will provide the union with
evidence that the D&P (Determinations and Processing) unit is
fully capable, without OT (overtime) or detailing additional
employees, of assuming additional pay records.
Union Proposal 1, in effect, would prevent management from accepting
and assigning additional work to bargaining unit employees unless it can
be established that such additional work can be accomplished without
resort to overtime or to temporary augmentation of the unit workforce.
In this respect, Union Proposal 1 is to the same effect as Union
Proposal V in National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA 508 (1981) which precluded
the assignment of additional cases to designated employees who had
"unmanageable" workloads. In finding that proposal inconsistent with
the management right pursuant to section 7106(a)(2)(B) of the Statute
"to assign work," the Authority noted that the proposal would, in
certain circumstances, " . . . prevent the Agency from making case
assignments to employees." Similarly, Union Proposal 1, herein, would
impose a condition upon the assigning of work and is, therefore, for the
reasons stated in Internal Revenue Service, not within the Agency's duty
to bargain.
Proposal 15: Employer and Union will mutually agree upon
management indicators utilized to determine capability of the FAD
(Finance and Accounting Division), Fort Bliss, to assume
additional pay records.
Union proposal 2, in effect, would permit the Union to participate in
determining when additional work could be assigned to an organizational
element of the Agency. In American Federation of Government Employees,
AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service,
District of Columbia, 9 FLRA 1004 (1982), with regard to Union Proposal
3, the Authority stated: "The right to determine the quantity of work
to be performed by employees is encompassed within management's
statutory rights to direct employees and assign work." Further, in
National Federation of Federal Employees, Local 1431 and Veterans
Administration Medical Center, East Orange, New Jersey, 9 FLRA 998
(1982), involving a proposal which would have placed a union
representative on two committees "established by Agency management to
review, make recommendations, and take action with respect to matters
involving the exercise of management rights under section 7106 of the
Statute," the Authority found that union membership on such committees
"would thereby impair the flexibility which Congress intended management
officials to have under the Statute." In like manner, Union Proposal 2,
herein, seeks Union participation in the process of determining when
additional work will be assigned to bargaining unit employees, which
determination is encompassed within the management rights pursuant to
section 7106(a)(2)(A) and (B) to direct employees and to assign work.
Thus, based on U.S. Marshals Service and Veterans Administration Medical
Center, East Orange, and the reasons and cases cited therein, Union
Proposal 2 is outside the Agency's duty to bargain.
Proposal 24: All lateral transfers will be assigned on basis
of seniority within FAD (Finance and Accounting Division) when
there are more applications for transfer than there are positions
available.
It is clear from the record that Union Proposal 3 concerns the
reassignment of bargaining unit employees to other positions within the
bargaining unit based on seniority. Substantially similar requirements
concerning the use of seniority were involved in Union Proposals IV, V
and VI in American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
604 (1980), enforced sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982), which proposals the Authority
held to be inconsistent with management's right pursuant to
7106(a)(2)(A) of the Statute to assign employees. Hence, based on Air
Force Logistics Command, and the reasons stated therein, Union Proposal
3 is outside the Agency's duty to bargain.
Accordingly, 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., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency contended that the Union's petition for review was
untimely filed and consequently should be dismissed. However, under
sections 2424.3 and 2429.22 of the Authority's Rules and Regulations,
the petition was timely filed and, therefore, is properly before the
Authority.
15 FLRA 3; FLRA O-AR-455; June 6, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
DIGEST NOTES
An arbitrator's award that vacated the selection of two positions and
directed the activity to rerun the action and to select from certain
employees is contrary the Statute and the FPM. Under FPM Chapter 335
appendix A section A-4, incumbent employees in such cases are to be
retained in the position pending correction action unless it is
specifically determined that the incumbent could not originally have
been properly selected. Also, by limiting the selection to certain
employees, the award interferes with management's right under Sec.
7106(a)(2)(C) to select from among a group of properly ranked and
certified candidates for promotion or from any other appropriate source.
U.S. ARMY, ABERDEEN
PROVING GROUND COMMAND,
ABERDEEN, MARYLAND
and
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, LODGE 2424
Case No. O-AR-455
This matter is before the Authority on exceptions to the award of
Arbitrator Robert J. Ables 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 Arbitrator in this case determined that the Activity had
improperly adopted the procedures by which it filled two positions at
WG-7. Accordingly, the Arbitrator vacated the two selections for the
positions and essentially directed the Activity to rerun the selection
action and to select from the WG-6 drivers, including the incumbents, in
the movements section at the time of the grievance.
In its exceptions the Agency primarily contends that the award is
contrary to section 7106(a)(2)(C) of the Statute and FPM chapter 335,
appendix A, section A-4. The Authority agrees.
The Authority has repeatedly held that incumbent employees in these
cases are entitled, pursuant to FPM chapter 335, appendix A, section
A-4b, to be retained in the positions pending corrective action unless
it is specifically determined that the incumbents could not originally
have been properly selected. E.g., Defense Contract Administration
Services Management Area (DCASMA), Cedar Rapids, Iowa and American
Federation of Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94
(1983). Likewise, the Authority has expressly held that section
7106(a)(2)(C) provides for management's right to select from among a
group of properly ranked and certified candidates for promotion or from
any appropriate source. U.S. Army Infantry Center, Ft. Benning, Georgia
and American Federation of Government Employees, Local 54, AFL-CIO, 12
FLRA No. 38 (1983). Therefore, in terms of this case, the award is
deficient as contrary to FPM chapter 335, appendix A, section A-4b to
the extent that it orders the positions vacated in advance of corrective
action without finding that the incumbents could not properly have been
originally selected. Similarly, by ordering that the Activity select
from among the original WG-6 drivers, the award precludes a selection
from any other appropriate source and consequently is deficient as
contrary to section 7106(a)(2)(C). For these reasons, the award is
modified to provide the following remedy in place of that ordered by the
Arbitrator in paragraphs 1-3 of his decision: /1/
The Activity shall rerun the selection action for the WG-7
positions in this case. The rerunning of the selection action by
the Activity and the action involving the incumbent employees must
fully conform with controlling law and regulation and the parties'
collective bargaining agreement. In particular, the rerunning of
the selection action must be in accordance with applicable merit
promotion procedures. In addition, the action involving the
incumbent employees must be in accordance with the corrective
action provisions of FPM chapter 335, appendix A, section A-4b.
Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In view of this decision, it is not necessary that the Authority
resolve the Agency's other exception to the award.
15 FLRA 2; FLRA O-AR-378; June 6, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation
DIGEST NOTES
The dispute in this matter concerns the promotion of a GS-11 employee
to a GS-12 supervisory position and his subsequent lateral reassignment
to a nonsupervisory GS-12 bargaining unit position before he completed
his supervisory probationary period. The union filed a grievance
challenging the reassignment. The arbitrator ruled that: (1) the
agency is not precluded from reassigning a supervisory employee who does
not satisfactorily complete the prescribed probationary period to a
nonsupervisory position at the same grade level; (2) the agency's
filling of the nonsupervisory GS-12 position by lateral assignment was
in violation of the parties' agreement; (3) if the agency wanted the
position filled at a GS-12 level, competitive procedures must be used.
In an exception, the union contended that the award, insofar as the
reassignment to the nonsupervisory position is concerned, is contrary to
law. The Authority denied the exception since 5 U.S.C. 3321 provides on
behalf of an employee a minimum entitlement to be assigned to a position
of no lower grade than the position the employee left and in no way
prohibits an agency from assigning an employee to a position of the same
grade as the supervisory or management position. In an exception, the
agency contended that the award is contrary to Sec. 7106(a)(2)(C) of the
Statute. The Authority found that: (1) the award, to the extent that
it required the agency to fill the position competitively, is deficient
as Sec. 7106(a)(2)(C) provides for management's right, in filling
positions, to select from any appropriate source and modified the award
to provide, as a remedy, that the agency rerun the selection action for
the nonsupervisory position by announcing the position and proceeding
under applicable merit promotion procedures.
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
and
NATIONAL TREASURY EMPLOYEES UNION
Case No. O-AR-378
This matter is before the Authority on exceptions to the award of
Arbitrator Edwin R. Render filed by both the Agency and the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
The dispute in this matter concerns the promotion of a GS-11 revenue
officer to GS-12 supervisory revenue officer and his subsequent lateral
reassignment to a nonsupervisory GS-12 bargaining unit position before
he completed his supervisory probationary period. A grievance was filed
and submitted to arbitration challenging the reassignment. The
Arbitrator first ruled in disagreement with the Union that the Activity
is not precluded from reassigning a supervisory employee who does not
satisfactorily complete the prescribed probationary period to a
nonsupervisory position at the same grade level. However, the
Arbitrator further determined that the Activity's filling of the
nonsupervisory GS-12 position in the bargaining unit by lateral
reassignment was in violation of the parties' collective bargaining
agreement. He ruled that under the agreement the Activity was required
to have used competitive procedures. Accordingly, he declared the
awarding of the GS-12 position to the reassigned employee a violation of
the agreement and directed that if the Activity wanted the position
filled at GS-12, competitive procedures must be used.
The Union in its exception to the award essentially contends that the
award is contrary to 5 U.S.C. 3321 insofar as the Arbitrator ruled that
the activity could permissiveLy reassign the employee to a
nonsupervisory GS-12 position despite not having satisfactorily
completed his probationary period for the GS-12 supervisory position.
Section 3321 pertinently provides that employees who do not
satisfactorily complete the prescribed probationary period for a
supervisory or managerial position "shall be returned to a position of
no lower grade and pay than the position from which the individual was
transferred, assigned, or promoted." The Union in support of its
exception contends as to promotions that the statutory provision
requires the employee to be returned to the same grade from which the
employee was promoted. To the contrary the Authority finds that section
3321 provides on behalf of the employee a minimum entitlement to be
assigned to a position of no lower grade than the position the employee
left; the provision in no manner prohibits an agency from assigning
such an employee to a position of the same grade as the supervisory or
managerial position. See also 5 CFR 315.907. Accordingly, the Union's
exception is denied.
The Agency in its exception contends that the award is contrary to
section 7106(a)(2)(C) of the Statute. The Authority agrees.
The Authority has expressly held that section 7106(a)(2)(C) provides
for management's right to select from among a group of properly ranked
and certified candidates for promotion or from any appropriate source.
U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation
of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983).
Therefore, in terms of this case, the award to the extent that it
requires the Activity to fill the position competitively is deficient as
contrary to section 7106(a)(2)(C) and must be modified accordingly.
Therefore, the award is modified to provide the following remedy in
place of that ordered by the Arbitrator:
The Activity shall rerun the selection action for the
nonsupervisory GS-12 bargaining unit position in this case by
announcing the position and proceeding under applicable merit
promotion procedures. The rerunning of the selection action by
the Activity and the action involving the incumbent employee must
fully conform with controlling law and regulation and the parties'
collective bargaining agreement. In particular, the action
involving the incumbent employee must be in accordance with the
corrective action provisions of FPM chapter 335, appendix A,
section A-4b. In addition, the filling of the position must be in
accordance with section 7106(a) of the Statute and FPM chapter
335, subchapter 1-4, Requirement 4.
Issued, Washington, D.C., June 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA No. 36; Case Nos. 6-CA-48, 6-CA-49, 63-CA-565, 63-RO-6; May
31, 1984 (Supplemental Decision and Direction of Second Election).
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2455
INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS
Case Nos. 6-CA-48, 6-CA-49,
63-CA-565, 63-RO-6
On June 29, 1982, the Authority issued a Decision and Order and
Direction of Second Election in the above-entitled proceeding,
concluding in Case Nos. 6-CA-48, 6-CA-49, and 63-CA-565, essentially
that the Respondent had engaged in unfair labor practices in violation
of section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally changing working
conditions during the pendency of a question concerning representation,
where the record failed to establish that such changes were required
consistent with the necessary functioning of the agency. The Authority
ordered that the Respondent cease and desist from such conduct and take
certain affirmative actions to remedy the violations. In Case No.
63-RO-6, the Authority sustained various objections by the American
Federation of Government Employees, AFL-CIO, National Border Patrol
Council, to a representation election, based on the Respondent's conduct
during the election campaign. Accordingly, the Authority ordered that
the election be set aside and a second election be conducted in the
bargaining unit.
The Respondent filed a petition for review in the United States Court
of Appeals for the Fifth Circuit, of that portion of the Authority's
decision finding unfair labor practices in Case Nos. 6-CA-48 and
63-CA-565 and the Authority filed a cross-application for enforcement of
its order in that court. No review was sought by Respondent in Case No.
6-CA-49. Petitioner International Brotherhood of Police Officers (IBPO)
filed a petition for review in the Fifth Circuit Court of Appeals,
seeking review of the Authority's direction of second election in Case
No. 63-RO-6. On March 19, 1984, the Fifth Circuit issued its decision
in these two cases, which had been consolidated for review by the court.
/1/ In its decision the court denied enforcement of the Authority's
order in Case Nos. 6-CA-48 and 63-CA-565, finding that Respondent had
not committed unfair labor practices in those cases. The court also
dismissed IBPO's petition for review of the Authority's direction of
second election in Case No. 63-RO-6, ruling that it did not have subject
matter jurisdiction over the petition.
Subsequent to the issuance of the court's decision, the Department of
Justice and the IBPO filed motions with the Authority seeking either to
vacate the direction of second election or, alternatively, to reconsider
and remand the matter to the Authority's Regional Director for
appropriate action. Thereafter, the American Federation of Government
Employees filed an opposition to the motions. Essentially, the Justice
Department and IBPO allege that various objections to the election which
the Authority found to have merit cannot now be sustained because the
conduct which was found to be objectionable was the same conduct which
formed the basis of unfair labor practice allegations which the court
found were not violative of the Statute. In its original decision, the
Authority had addressed the distinction between conduct which may be
objectionable but may not rise to the level of an unfair labor practice.
In this connection, the Authority stated as follows:
The acts and conduct of agency management during an election
campaign, even where they are not violative of the unfair labor
practice provisions of section 7116(a) of the Statute, may
nonetheless constitute objectionable conduct requiring the
election to be set aside if such conduct interfered with the
employees' freedom of choice therein.
In sustaining various objections to conduct affecting the election,
the Authority determined that such conduct had in fact interfered with
the employees' freedom of choice, and therefore required the election to
be set aside and a new election held. In the Authority's view, nothing
contained in the motions filed by the Justice Department and the IBPO
warrants a different result. Noting further the court's dismissal of
IBPO's petition for review of the Authority's direction of second
election, the Authority finds no basis on which to grant the motions and
they are hereby denied. /2/
Further, the Authority accepts the court's opinion as the law of the
case and, consistent with that opinion, now finds in Case Nos. 6-CA-48
and 63-CA-565 that Respondent did not commit unfair labor practices in
violation of section 7116(a)(1) and (5) of the Statute by unilaterally
changing working conditions during the pendency of a question concerning
representation. Accordingly, the Authority hereby issues the following
Order and Direction of Second Election, and requires that the
accompanying Notice To All Employees be posted in this matter. With
respect to the timing of the second election, the Authority finds that,
should the parties mutually agree to waive the sixty-day waiting period
from the date of posting of the unfair labor practice notice, it will
effectuate the purposes and policies of the Statute to permit the
parties to do so. Therefore, the Direction of Second Election herein
has been modified accordingly.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the United States Department
of Justice, United States Immigration and Naturalization Service shall:
1. Cease and desist from:
(a) Unilaterally altering or changing established past
practices concerning coffee breaks at the Laredo Station.
(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) Rescind the February 5, 1979 announced change in the
established practice of allowing Border Patrol Agents in the
Laredo Station to take coffee breaks.
(b) Post at its Laredo Station facilities copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Such forms shall be signed by the head of
the Laredo Station, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to 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 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 complaints in Case Nos. 6-CA-48 and
63-CA-565 be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the objections not previously sustained by
the Authority be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that, pursuant to sections 2422.20(i) and
2429.16 of the Authority's Rules and Regulations and section 7105 of the
Statute, the election conducted in the nationwide unit in 1979, be, and
it hereby is, set aside and a second election be conducted pursuant to
the Direction of Second Election set forth below.
An election by secret ballot shall be conducted among the employees
in the unit set forth in the Agreement for Consent or Directed Election
in Case No. 3-RO-6 approved on March 27, 1979, as soon as feasible, but
not earlier than sixty (60) days from the date of posting of the
attached Notice To All Employees, unless the parties mutually agree to
waive the sixty-day waiting period. In that case, they shall be
permitted to proceed immediately. The appropriate Regional Director
shall supervise or conduct, as appropriate, the election subject to the
Authority's Rules and Regulations. Eligible to vote are those in the
unit who were employed during the payroll period immediately preceding
the date below, including employees who did not work during the period
because they were out ill, or on vacation or on furlough, including
those in the military service who appear in person at the polls.
Ineligible to vote are employees who quit or were discharged for cause
since the designated payroll period and who have not been rehired or
reinstated before the election date. Those eligible to vote shall vote
whether they desire to be represented for the purpose of exclusive
recognition by the American Federation of Government Employees, AFL-CIO,
National Border Patrol Council; by the International Brotherhood of
Police Officers; or by neither. Issued, Washington, D.C., May 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT unilaterally alter or change established past practices
concerning coffee breaks at the Laredo Station.
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 rescind the February 5, 1979 announced change in the
established practice of allowing Border Patrol agents in the Laredo
Station to take coffee breaks.
(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, Region VI, Federal Labor Relations Authority, whose
address is: Room 450, Downtown Post Office, Bryan and Ervay Streets,
Dallas, Texas 75221 and whose telephone number is: (214) 767-4996.
/1/ U.S. Dept. of Justice, Immigration and Naturalization Service v.
FLRA, No. 82-4312, and Int'l Bhd. of Police Officers v. FLRA, No.
82-4317.
/2/ The Authority similarly denies IBPO's request for oral argument
in this matter noting that the record herein provides a sufficient basis
to enable the Authority to render its decision.
13 FLRA No. 25; Case No. 4-CU-30; May 24, 1984 (Supplemental
Decision).
U.S. ARMY MISSILE COMMAND
REDSTONE ARSENAL
HUNTSVILLE, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1858
Case No. 4-CU-30
On September 27, 1983, the Authority issued its Decision and Order
Clarifying Unit in U.S. Army Missile Command, Redstone Arsenal,
Huntsville, Alabama, 13 FLRA No. 25 (1983). In that decision, the
Authority ordered, among other things, that the unit be clarified by
excluding from said unit the incumbents in the job classification
General Engineer, GS-801-14.
Subsequent thereto, the parties have informed the Authority that it
was not their intent to litigate the bargaining unit status of all
incumbents in the above classification. Accordingly, the Authority will
clarify its previous decision to determine the bargaining unit status of
only those incumbents who testified at the hearing. Therefore, the
Authority shall issue an amended Order as follows: /1/
IT IS ORDERED that the unit sought to be clarified herein be, and it
hereby is, clarified by excluding from said unit the following employees
in the job classification of General Engineer, GS-801-14: Dean
Christianson, Richard Eppes, Jr., Gene Gilbertson, Lester Ross, Joe
Walters, Thomas Wetheral, Gerald Smith, Charles Snead, James R.
Harchanko, Jack Sanders, Billy Drake, John Liston, Albert Fortner, and
Bobby Collier; and by additionally excluding from the unit all
incumbents in the following job classifications: Aerospace Engineer,
GS-861-15, with the below exception; General Engineer, GS-801-15;
Mechanical Engineer, GS-830-13; Mechanical Engineer, GS-830-14; Patent
Attorney, GS-1222-14; Historian, GS-170-13; Physical Scientist,
GS-1301-14; Physicist, GS-1310-13; Research Aerospace Engineer,
GS-861-15; Research Chemical Engineer, GS-893-15; Research Chemist;
GS-1320-15 and Research Physicist, GS-1310-14.
IT IS FURTHER ORDERED that the unit sought to be clarified herein be,
and it hereby is, clarified by including in said unit William Malcolm,
Aerospace Engineer, GS-861-15, and the incumbents in those remaining job
classifications listed in the Appendix not explicitly excluded above.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Aerospace Engineer, GS-861-13
Aerospace Engineer, GS-861-14
Aerospace Engineer, GS-861-15
Chemist, GS-1320-14
Ceramic Engineer, GS-892-13
Electrical Engineer, GS-855-13
Electrical Engineer, GS-855-14
Electrical Engineer, GS-855-15
General Engineer, GS-801-13
General Engineer, GS-801-15
Historian, GS-170-13
Materials Engineer, GS-806-13
Materials Engineer, GS-806-14
Mathematician, GS-1520-13
Mechanical Engineer, GS-830-13
Mechanical Engineer, GS-830-14
Patent Advisor, GS-1221-14
Patent Attorney, GS-1222-14
Physical Scientist, GS-1301-14
Physicist, GS-1310-13
Physicist, GS-1310-14
Research Aerospace Engineer, GS-861-13
Research Aerospace Engineer, GS-861-14
Research Aerospace Engineer, GS-861-15
Research Chemical Engineer, GS-893-15
Research Chemist, GS-1320-14
Research Chemist, GS-1320-15
Research Physicist, GS-1310-14
Dean Christianson, General Engineer, GS-801-14
Richard Eppes, Jr., General Engineer, GS-801-14
Gene Gilbertson, General Engineer, GS-801-14
Lester Ross, General Engineer, GS-801-14
Joe Walters, General Engineer, GS-801-14
Thomas Wetheral, General Engineer, GS-801-14
Gerald Smith, General Engineer, GS-801-14
Charles Snead, General Engineer, GS-801-14
James R. Harchanko, General Engineer, GS-801-14
Jack Sanders, General Engineer, GS-801-14
Billy Drake, General Engineer, GS-801-14
John Liston, General Engineer, GS-801-14
Albert Fortner, General Engineer, GS-801-14
Bobby Collier, General Engineer, GS-801-14
/1/ AFGE further inquired as to the bargaining unit status of Albert
V. Stevens, General Engineer, GS-801-14, job description number 1116.
As Albert V. Stevens did not testify at the hearing, the Authority makes
no finding as to his inclusion or exclusion from the unit.
14 FLRA No. 106; Case No. O-AR-417; May 31, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1700. Implementation of Award
1701. Clarification and Interpretation DIGEST NOTES
The dispute in this matter concerned a claim for environmental
differential pay. The arbitrator remanded the case to the parties so
that they could negotiate the exact amount of backpay and ruled that
payment of attorney fees would be "triggered" by retroactive payments
made under the award. In a supplemental award, the arbitrator ordered
payment of backpay and directed that the amount of attorney fees be
adjusted to account for the supplemental proceedings. The agency filed
an exception. The Authority determined that the arbitrator's award of
attorney fees was not in accordance with the standards established in
International Brotherhood of Electrical Workers and United States Army
Support Command, Hawaii, 14 FLRA No. 90 (1984). Consequently, the
Authority remanded the award to the parties with the direction that they
request the arbitrator to clarify and interpret his award of attorney
fees so as to articulate fully his specific findings on all pertinent
statutory provisions.
NAVAL AIR DEVELOPMENT
CENTER, DEPARTMENT OF THE NAVY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1928, AFL-CIO
Case No. O-AR-417
This matter is before the Authority on an exception to the award of
Arbitrator Peter Florey 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.
The parties submitted to arbitration a claim for environmental
differential pay. The Arbitrator as his award remanded the case to the
parties, essentially to negotiate the exact amount of backpay, and ruled
that payment of attorney fees will be "triggered" by retroactive
payments made under the award. In a supplemental award the Arbitrator
directed payment of backpay and directed that the amount of attorney
fees be adjusted to account for the supplemental proceedings. The
Agency has filed an exception to the award of attorney fees. /1/
In its exception the Agency contends that the award of attorney fees
is contrary to the Back Pay Act, 5 U.S.C. 5596. Specifically, the
Agency argues that the award of attorney fees is not in accordance with
the standards established under 5 U.S.C. 7701(g) which govern an award
of attorney fees under the Back Pay Act.
In International Brotherhood of Electrical Workers and United States
Army Support Command, Hawaii, 14 FLRA No. 90 (1984), the Authority for
the first time addressed in detail the statutory requirements regarding
awards of attorney fees by arbitrators. The Authority held that under
the applicable standards of the Back Pay Act, an arbitrator must provide
a fully articulated, reasoned decision setting forth the specific
findings supporting the determination on each pertinent statutory
requirement, including the basis upon which the reasonableness of the
amount was determined when fees are awarded. In this case the
Arbitrator's award of fees is not in accordance with these standards.
However, the Arbitrator's determination was made without the benefit of
the instruction and guidance provided by United States Army Support
Command, Hawaii. Consequently, the Authority shall remand the award to
the parties to have them obtain a clarification and interpretation of
the award of attorney fees by the Arbitrator.
Accordingly, pursuant to section 2425.4 of the Authority's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award of attorney
fees to articulate fully specific findings on all pertinent statutory
provisions. Issued, Washington, D.C., May 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Union has opposed the Agency's exception on various
procedural grounds. On review of the exception and the opposition, the
Authority concludes that the exception is not procedurally deficient as
alleged by the Union.
14 FLRA No. 105; Case No. 8-CA-1263; May 30, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
4800. Otherwise Refuse to Comply with Statute DIGEST NOTES
A document was not relevant and necessary within the meaning of Sec.
7114(b)(4) to negotiations of subjects within the scope of collective
bargaining. Contrary to the union belief, the requested document did
not contain information pertaining to union representation and the time
allowed for an employee to obtain a steward upon being stopped for a
random gate search of an employee's vehicle at a military base conducted
pursuant to the Internal Security Act of 1950. Accordingly, the
Authority adopted the ALJ's decision that the agency did not violate
Sec. 7116(a)(1), (5) and (8) when it refused to furnish the union with
the documents.
MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
Case No. 8-CA-1263
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.
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, conclusions and recommendation that the complaint be
dismissed.
In the course of a continuing dispute between the parties with
respect to random gate searches which are periodically conducted on
vehicles entering and leaving Respondent's facility, the American
Federation of Government Employees, Local 1482, AFL-CIO (the Union), on
May 27, 1981, requested in writing that the Respondent furnish it a copy
of a document, the Commanding General's directive to the Provost
Marshall's Office dated April 28, 1981. This request, as well as a
subsequent request for the directive made by the Union on June 8, was
rejected by the Respondent, who alleged it was an "intra-management"
communication.
The Judge found, and the Authority agrees, that the Union requested
the Commanding General's directive because it believed the document
contained information pertaining to entitlement to a Union
representative and the time allowed for an employee to obtain a steward
upon being stopped for a random gate search. The evidence further
established that such information was not contained in the document.
Therefore, in agreement with the Judge, the Authority finds that the
requested document was not relevant and necessary within the meaning of
section 7114(b)(4) of the Statute. /1/
Accordingly, the Respondent did not violate the Statute when it
refused to furnish the Union with the Commanding General's directive to
the Provost Marshall's Office dated April 28, 1981. See Director of
Administration, Headquarters, U.S. Air Force, 6 FLRA 110 (1981).
IT IS ORDERED that the complaint in Case No. 8-CA-1263 be, and it
hereby is, dismissed. Issued, Washington, D.C., May 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 8-CA-1263
Joseph Swerdzewski, Esq.
For the General Counsel
Richard A. Schultz, Esq.
For the Respondent
Before: ELI NASH, JR.
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.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 1482, AFL-CIO (herein referred to as the
Union), on August 24, 1981 against the Marine Corps Logistics Base,
Barstow, California (herein referred to as Respondent), the General
Counsel of the Authority, by the Regional Director for Region 8, issued
a Complaint and Notice of Hearing on October 19, 1981 alleging that
since on or about May 27, 1981, Respondent violated section 7116(a)(1),
(5), and (8) of the Statute by failing to comply with section 7114(b)(4)
in that it did not supply certain information which was reasonably
available and necessary to full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
The Complaint also alleged that the refusal to supply such information
constituted a failure to bargain in good faith. Respondent's Answer
denied the commission of any unfair labor practices.
A hearing on the Complaint was conducted on January 14, 1982 in
Barstow, California at which time all parties were represented and
afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses, and argue orally. Briefs were filed by
Respondent and Counsel for the General Counsel.
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, conclusions of law, and
recommendation:
Pursuant to the Internal Security Act of 1950, which is the basic law
involving internal security on military bases, random gate searches at
the Base are periodically conducted on vehicles entering and leaving the
Base. According to Major William C. Pedrick, the Provost Marshall at
the Base approximately 18 to 24 such random searches have been conducted
since his tenure began at the Base in March 1981, to the date of the
hearing. The random searches involved both civilian and military
employees.
The Vehicle Search Program, as it is formally called, is a security
method used to prevent the introduction of narcotics, control
substances, weapons, and to prevent the theft of government property
from the Base. Each random gate search is conducted pursuant to a
written order from the Base Commanding Officer to the Provost Marshall.
That order states the specific date, time, and location of each search.
Each employee of the Base who desires to obtain driving and parking
privileges on the Base is required on a Form 5560 to state that he or
she "will submit to a search of my vehicle as may be ordered by
competent authority." Also, signs containing relevant portions of the
Internal Security Act of 1950 are posted on the facility.
Since random gate searches apparently escalated beginning around
February 1981, the Union assigned second vice-president and steward Dale
Boyce the primary responsibility for representing employees on actions
taken as a result of the gate searches. A substantial number of
grievances were filed concerning gate searches conducted in February
through April 1981. At least one of those grievances involving employee
Trujillio was subsequently scheduled for arbitration. Those grievances
basically involved employee reprimands resulting from discovery of
certain proscribed objects or from an employee's refusal to submit to a
search. In addition, several unfair labor practices were filed
involving these searches.
Sometime around May 26, 1981, Steward Boyce met with Major Pedrick
for the purpose of discussing the loss of the vehicle sticker at a gate
search of employee Carey. The incident with Carey occurred much earlier
and apparently the 15-day period for filing a grievance under the
collective bargaining agreement had expired. However, Carey
subsequently filed an unfair labor practice charge concerning the
incident which resulted in his sticker loss. Loss of sticker results in
an employee losing his driving and parking privileges at the Base.
Apparently Carey's conduct was rather severe, as Pedrick testified that
only two stickers had been removed during the gate searches.
During the meeting, Pedrick handed Boyce a letter dated April 30,
1981, which stated why Carey's sticker was scrapped. The letter
indicated that the authority for suspending driving privileges was
contained in "CG's directive to PMO of April 28, 1981."
According to Boyce, he then asked Pedrick what was contained in CG's
directive to PMO of April 28, 1981. Pedrick related in an offhand way
what was contained in the document. Pedrick then apparently proceeded
to read from the document, but according to Boyce read so fast that
Boyce could not write all that he had read. After Pedrick read the
document Boyce asked for a copy. Pedrick responded that he did not know
if he could give the document to Boyce and that Boyce should go through
proper channels. Boyce also recalls that Pedrick said, in response to a
question of what would happen if an employee would be given 6 minutes to
get a union steward and, at that time, if he did not have a steward the
employee would either have to submit to a gate search or lose the
sticker. Boyce states that he was curious where Pedrick got the
authority to do this. Clearly the authority for the search was
contained in the April 28, 1981 directive.
Boyce states that at that time he was handling cases pertaining to
employee grievances and was trying to enforce Article 14 of the
collective bargaining agreement concerning parking at the Base. /2/
Although Boyce testified that several other matters were involved, the
parties were dealing with Article 14, at the time. Interestingly, when
Boyce was shown a copy of a February 12, 1981 authorization which in
camera review established follows the identical format and procedures
contained in the May 27, 1981 request for information, he stated that it
did "not look like what Major Pedrick quoted to me." Thus, he could
establish no relationship between this almost identical document and the
requested information. On cross-examination Boyce testified that the
document he was requesting contained guidelines as to "what would
happen" if an employee requested a steward.
Major Pedrick denies that he read Boyce anything from the April 28,
1981, directive, but states that the two talked in general terms as to
the directions he had received from the Commanding General. Pedrick
does recall Boyce asking for a copy of the CG to PMO dated April 28,
1981, but states that he would not release it.
With regard to search authorizations, Pedrick assumed that the
authorization would be somewhat similar to a search warrant. He also
stated that in a criminal case an individual would be entitled to
receive such a warrant. Pedrick added that, after the fact, he saw
nothing in the document requested which could jeopardize internal
security.
Subsequently, on May 27, 1981, Boyce requested a copy of the CG's
directive to PMO of 28 April 1981. Boyce had not previously requested
this directive because prior to the meeting with Pedrick, he did not
know it existed.
On June 3, 1981, Boyce received a denial of his request for
information because the directive requested by him was an
"intra-management communication" not available to non-managerial
officials. Boyce had no communications with management officials
concerning clarification of his request on whether or not it was indeed
relevant and necessary information.
On June 8, 1981 a second request for the directive was made by the
Union. This request was also rejected by management on the same basis
as the initial denial.
Scores of cases under the Executive Order, the Statute and private
sector law establish that a labor organization has a right to
information solely within an employer's possession which is necessary
and relevant to the representational responsibilities and to the
administration of the parties collective-bargaining agreement. Also,
the Authority has recently stated in several cases that under section
7114(b)(4) of the Statute such an obligation extends to the processing
of an employee grievance. Veterans Administration Regional Office,
Denver, Colorado, 10 FLRA No. 78 (1982); Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA No. 100 (1982).
While the key element to furnishing information such as sought herein
is its relevance, Respondent in an ultrazealous attempt to exercise its
power raised a myriad of issues which had no connection with this matter
whatsoever. Notwithstanding the fact that this matter could very easily
have been resolved, even during hearing, Respondent engaged in conduct,
while not violative of the Statute most certainly is not within its
spirit and intent.
In its brief, Respondent quotes language from United States Air
Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio, 4 FLRA No. 70 (1980) that:
Among equals, each party should deal with the other with
directness and dignity appropriate to partners on a equal footing,
one party should not be required to continually pursue the others
murky intent, with no regard of how specious and irrelevant that
intent might be.
Although adopting that language, Respondent most certainly did not
apply such candor in this matter.
Respondent's zeal, in my view, has cost the government a considerable
amount of time, money, and effort to defend a matter which could very
easily have been solved by making a good faith effort to inform the
Union, outside a combative posture it assumed in this matter, that the
information which it sought was not contained in the directive or by
merely making the Union aware that the directive was merely an
authorization from the commanding general to conduct the April searches.
Such a position could in no way compromise Respondent's internal
security. The end result is that after considerable expense to the
government, a resolution of the matter in this proceeding regardless of
whether an unfair labor practice is found makes the Union aware of what
was contained in the directive. In this matter there is, however, a
loser, the government.
In review, Respondent steadfastly asserts that the April 23, 1981
letter involved internal security. Nevertheless, Respondent's own
witness testified that revealing this letter, after the fact, would not
violate internal security. I agree. Clearly this directive or letter
contained no element of internal security and the same type letter had
already been offered and placed into evidence at a previous Merit
Systems Protection Board hearing. Respondent was even unwilling to
inform the Union that this was the same type directive that was earlier
introduced. Even an offer of the above information would have been
sufficient to settle the matter for it would have revealed to the Union
that it sought information which was not contained in documented form as
Steward Boyce had thought.
Respondent further contends that the information sought was
"intra-management communications," but without any justification for
this position. While not determinative, it might well be that some
"intra-management communications" might be necessary and relevant to
policing an agreement and which the exclusive representative might be
entitled to be furnished under section 7114(b)(4). Respondent made no
effort to discover whether or not this was the case.
Respondent also argues that the request had no relationship to any
pending grievances and argues that it was not necessary for
representational functions. It should be brought to Respondent's
attention that there were numerous actions being considered by the Union
at the time of the May 27, 1981 request including grievances, potential
arbitration and unfair labor practices. All matters within the ambit of
the collective bargaining agent's responsibility.
Unfortunately for the Union, the in camera review of the document
coupled with Boyce's testimony failed to establish that the document was
indeed relevant to any collective bargaining or representational need at
that time. The test for relevancy must be measured against the nature
of the request. Boyce's request was based on his conversation with
Major Pedrick, in which Boyce recalls Pedrick reading from a document or
directive indicating that an employee caught up in a random gate search
who requested Union representation would have 6 minutes to obtain a
steward or, if not, submit to a search or have his decal scratched.
Pedrick denies that he read from any directive or document and states
that his comments were merely a general discussion with Boyce concerning
Union representation. Boyce confirmed this by stating that an almost
identical directive which he was shown at the hearing was not what
Pedrick discussed with him. I credit Pedrick that the statement was
made in general conversation and not read from a directive. I also
credit Boyce that his interest was in the area of entitlement to a union
representative and the time allowed for an employee to obtain a steward
upon being stopped for a random gate search, in finding that the
directive was not relevant or necessary to the purpose for which he
admittedly sought the information.
As previously stated, Respondent's conduct herein is not in my view
compatible with the spirit and intent of the Statute. However, since
the requested information is found not to be relevant to administering
the collective bargaining agreement, the General Counsel's theory that
Respondent did not engage in good faith bargaining must be rejected.
In light of the above, specifically since it is found that the
directive was not relevant it is found that Respondent did not violate
section 7116(a)(1), (5), and (8) by refusing to furnish the April 28,
1981 directive to the Union.
Accordingly, it is recommended that the Authority dismiss the
Complaint in the instant matter, in its entirety. /3/
ELI NASH, JR.
Administrative Law Judge
Dated: November 24, 1982
Washington, DC
/1/ Section 7114(b)(4) of the Statute provides:
(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; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
/2/ Article 14, Section 1 provides:
Employees will be afforded the opportunity of parking their
private vehicles aboard the Base during the employees' working
hours, as close to their work area as possible, providing the
vehicle and driver are properly registered at the Provost
Marshall's Office.
/3/ The general counsel's unopposed Motion to Correct Transcript is
granted.
14 FLRA No. 104; Case No. O-NG-965; May 30, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2550. Agency Head Allegation of Nonnegotiability
2554. Withdrawal, Effect of DIGEST NOTES
Where the agency withdrew the activity's allegation of
nonnegotiability concerning the union's proposal, there was no longer an
issue as to whether the proposal is within the duty to bargain.
Accordingly, the Authority dismissed the petition for review.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1994
DEPARTMENT OF DEFENSE,
MILITARY ENTRANCE PROCESSING STATION,
BOSTON, MASSACHUSETTS
Case No. O-NG-965
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
From the submissions of the parties, the record before the Authority
in this case indicates that during the course of negotiations, the Union
submitted proposals concerning the procedures for collecting
administrative fees from bargaining unit employees who had made
unauthorized/unofficial toll calls. The Activity alleged the Union's
proposal to be nonnegotiable. The Union then sought the Authority's
determination, pursuant to section 7117(a)(1) of the Statute and section
2424.1(a) of the Authority's Rules and Regulations, as to whether the
disputed proposal was within the duty to bargain. Subsequently, in a
letter dated April 6, 1984, the Agency withdrew the Activity's
allegation of nonnegotiability.
Since the Agency has withdrawn the Activity's allegation concerning
the Union's proposal, there is no longer an issue as to whether the
proposal is within the parties' duty to bargain under the Statute.
Accordingly, and apart from other considerations,
IT IS HEREBY ORDERED that the instant petition for review be
dismissed. For the Authority. Issued, Washington, D.C., May 30, 1984
Harold D. Kessler, Director, Case
Management
14 FLRA No. 103; Case No. O-NG-929; May 30, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2702. Timeliness DIGEST NOTES
The Authority dismissed a negotiability appeal where the union did
not correct certain deficiencies in its appeal within the time limits
provided by an Authority letter notifying the union of the deficiencies.
ANTILLES CONSOLIDATED
EDUCATION ASSOCIATION
ANTILLES CONSOLIDATED
SCHOOL SYSTEM
Case No. O-NG-929
This matter is before the Authority on a petition for review of
negotiability issues filed by the Union pursuant to section 7117(c)(2)
of the Federal Service Labor-Management Relations Statute and section
2424.1 of the Authority's Rules and Regulations. For the reasons stated
below, it has been determined that the Union's petition for review must
be dismissed.
By Authority letter dated December 12, 1983, the Union was informed
that preliminary examination of the petition for review had disclosed a
number of apparent deficiencies in meeting certain requirements of the
Authority's rules of procedure. The Authority was informally advised by
the Union that it never received the Authority's December 12, 1983,
letter and the Authority was unable to ascertain whether it was in fact
delivered to the Union. Accordingly, by letter dated March 26, 1984,
the Authority advised the Union that it must provide an explicit
statement of the meaning attributed to the disputed proposals and notify
the Authority as to whether the negotiability issues are also involved
in an unfair labor practice proceeding in order to comply with sections
2424.4(a)(2), 2424.4(a)(4) and 2424.5 of the Authority's Rules and
Regulations.
The Union was also advised in the Authority's letter that further
processing of the appeal was contingent upon compliance with the
designated provisions of the Authority's Regulations. In this regard,
the Union was informed of the specific actions that had to be taken to
comply and complete the appeal, and was afforded time in which to take
those actions. Finally, the Union was advised that failure to comply
with the cited requirements within the time limit provided could result
in dismissal of the appeal.
The Union has made no submission within the time limit provided.
Accordingly, the appeal is hereby dismissed for failure to comply with
the Authority's Regulations. For the Authority. Issued, Washington,
D.C., May 30, 1984
Harold D. Kessler, Director, Case
Management
14 FLRA No. 102; Case No. 2-CA-808; May 30, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work DIGEST NOTES
Where the practical effect of the union's proposal would be to set
the quantity and quality of output that the agency can expect from its
employees, the proposal is nonnegotiable as it conflicts with the
agency's rights, under section 7106(a)(2)(A) and (B) of the Statute, "to
direct" and "assign work" to employees. Consequently, the agency did
not violate Sec. 7116(a)(1) and (5) of the Statute by failing and
refusing to negotiate concerning the union's proposal and by
implementing the changes.
INTERNAL REVENUE SERVICE AND
BROOKHAVEN SERVICE CENTER
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU, CHAPTER 99
Case No. 2-CA-808
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, accompanying exhibits and contentions of
the parties, the Authority finds:
The complaint alleges that the Respondent, Internal Revenue Service
and Brookhaven Service Center, violated section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute) /1/
by failing and refusing to bargain with the National Treasury Employees
Union and NTEU, Chapter 99 (the Union) concerning certain changes in
conditions of employment and by unilaterally implementing such changes.
The Respondent notified the Union of its proposed changes in
performance expectations for data transcribers in the Data Conversion
Branch. Subsequently, the Union proffered proposals on the changes for
bargaining. The parties bargained and were able to reach agreement on
certain matters. The Respondent refused to bargain concerning one of
the Union's proposals, asserting that the proposal was outside the duty
to bargain. Respondent implemented the changes approximately two weeks
later while refusing to bargain on the disputed proposal.
The sole issue in this case is whether the Respondent properly
refused to bargain concerning the proposal on the basis that it was
outside the duty to bargain. In this regard, the changes proposed by
the Respondent pertained to "performance expectations" for data
transcribers, who were employed by the Respondent in measured, data
processing work on a seasonal basis. The Respondent had developed
measures of average performance for the transcribers by the type of
their work and their grade levels, which included estimates of quantity
of output and error rates. It planned to expect performance rates from
individual transcribers from the beginning of their seasonal employment
as follows: after the first week of employment a transcriber would be
expected to perform at 80 percent of the average; after the second week
the expectation level would be 90 percent of the average; and after the
third week a transcriber would be expected to reach 100 percent of the
average. A transcriber who did not reach these levels in the allotted
time would risk not being retained. Success would improve a
transcriber's opportunity for promotion.
The Union's proposal would have changed the time frames for these
expectations, as follows: eighty (80) percent of average performance
would be expected after 16 weeks; ninety (90) percent would be expected
after 20 weeks; and one hundred (100) percent would be expected after
24 weeks. The Respondent contends that the practical effect of the
proposal is to set the quantity and quality of output it can expect from
its employees and that, as such, the proposal conflicts with its rights
"to direct" and "assign work" to employees under section 7106(a)(2)(A)
and (B) of the Statute. /2/ The Authority agrees.
By setting performance levels for employees which differ from the
levels that the Respondent planned to implement, the disputed proposal
has the same effect as the proposal held to conflict with the rights "to
direct" employees and "assign work" to employees under section
7106(a)(2)(A) and (B) of the Statute in National Treasury Employees
Union and NTEU, Chapter 27 and Internal Revenue Service, Austin Service
Center, 11 FLRA No. 58 (1983), citing National Treasury Employees Union
and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
(1980), affirmed sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). See also
American Federation of Government Employees, AFL-CIO, Local 1923 and
Department of Health and Human Services, Social Security Administration,
12 FLRA No. 6 (1983), wherein the Authority held that proposals which
would require negotiation on the quantity and timeliness of employees'
work product conflicted with section 7106(a)(2)(A) and (B) of the
Statute. Based on Austin Service Center, Bureau of the Public Debt, and
Department of Health and Human Services, supra, and for the reasons
stated therein, the disputed proposal in the instant case is outside the
duty to bargain. Accordingly, it cannot be concluded that the
Respondent violated section 7116(a)(1) and (5) by failing and refusing
to negotiate concerning the Union's proposal and by implementing the
changes.
IT IS ORDERED that the complaint in Case No. 2-CA-808 be, and it
hereby is, dismissed. Issued, Washington, D.C., May 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 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;
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Section 7106(a)(2)(A) and (B) of the Statute provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in
the agency or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
14 FLRA No. 101; Case No. O-NG-745; May 30, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.45 Contract Out
2540. Bargaining DIGEST NOTES
A proposal is negotiable which would allow the union an opportunity
to be present at informational meetings (pre-bid and bid-opening
conferences) which are open to the general public. The proposal does
not violate management's right under Sec. 7106(a)(2)(B) because the
meetings are not wholly management related meetings at which the
management aspects of the contracting out issue are either discussed or
acted on. (proposal 1)
A proposal is negotiable that provides a procedure to assure that the
data upon which a contracting out determination will be based is valid
and prepared in accordance with existing external limitations on
management's right. The proposal does not violate management's right
under Sec. 7106(a)(2)(B) to contract out. The provision is not
concerned with the administrative appeal procedure established by OMB
Circular A-76 whereby all directly affected parties to a contracting out
determination, including Federal employees and their unions, bidders and
offerors, may appeal cost comparison decisions. (proposal 2)
A proposal is nonnegotiable which establishes the effective date of a
collective bargaining agreement to be the date of approval by the
parties instead of the date the agency head approves the contract or the
31st day subsequent to the execution date. Section 7114(c) provides
that an agency head has 30 days to approve or disapprove an agreement.
(proposal 3)
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1263
DEFENSE LANGUAGE INSTITUTE,
PRESIDIO OF MONTEREY, CALIFORNIA
Case No. O-NG-745
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of three provisions of a negotiated
agreement disapproved by the Agency pursuant to section 7114(c) of the
Statute. /1/ Upon careful consideration of the entire record, including
the parties' contentions, the Authority makes the following
determinations. /2/
Article 30, Section 2:
When the decision is to proceed with a proposal, the Employer
will continually apprise the Union of the status of the proposal.
The Union will be furnished a copy of each specification and
contract at the same time invitations for bids are mailed to
bidders. Also, the Union shall be furnished dates and times of
pre-bid and bid opening conferences and shall have the right to
have a union representative present at the conferences. (Only the
underscored portion is in dispute.)
The Agency contends that Union Provision 1 is substantially identical
to Union Proposal 3 which was found to be nonnegotiable in 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), affirmed sub nom. National
Federation of Federal Employees v. Federal Labor Relations Authority,
681 F.2d 886 (D.C. Cir. 1982). That proposal, like the one at issue in
the present case, required the union to be notified of certain pre-bid
and bid opening conferences and be permitted to have representatives at
such conferences. Based on the record before it in that case the
Authority found the proposal to be inconsistent with management's right
pursuant to section 7106(a)(2)(B) of the Statute "to make determinations
with respect to contracting out." Specifically, the Authority relied
upon the agency's uncontroverted claim that the pre-bid and bid opening
conferences referred to in the union's proposal were "wholly management
related meetings at which the management aspects of the contracting out
issue are either discussed or acted on." Thus, the Authority concluded,
in that case, such involvement of the exclusive representative in those
sessions where agency officials are engaged in management deliberation
and discussion as part of their decision-making process would directly
interfere with management's right to make determinations with respect to
contracting out.
However, based on the record in the present case we must reach a
different result. That is, the record in this case indicates that the
pre-bid and bid opening conferences involved in Union Provision 1 are
not wholly management related meetings, but are informal meetings open
to any member of the general public who wants to gather information
about the bidding process and the contract in question. The record does
not establish that allowing the Union an opportunity to be present at
these informational meetings which are open to the general public (as
contrasted with the "wholly management related meetings" at issue in the
Homestead Air Force Base case) will interfere with management's right
pursuant to the Statute to make determinations with respect to
contracting out. Therefore, as the Agency has not established that
Provision 1 would interfere with management's rights under the Statute,
it is within the Agency's obligation to bargain. /3/
Article 30, Section 2D:
Subsequent to opening of the bid and before a contract is
awarded, the Union shall be provided all data concerning the
"in-house" estimate of cost of the work to be performed. The
Union will be given ten (10) workdays, which may be extended upon
request, to review the "in-house" estimate and other pertinent
data and to comment on and/or challenge the validity of the data.
"All data will be corrected where the Union demonstrates that it
is not valid or prepared in accordance with existing directives."
(Only the underscored portion is in dispute.)
In agreement with the Union, the Authority finds that Union Provision
2 is not inconsistent either with management's right pursuant to section
7106(a)(2)(B) of the Statute "to make determinations with respect to
contracting out" or with OMB Circular A-76 as claimed by the Agency.
This provision would not establish, either expressly or by
incorporation, any particular limitation on management's right to make
contracting out determinations. Rather, the provision only would
provide a contractual procedure to assure that the data upon which a
contracting out determination will be based is valid and prepared in
accordance with existing external limitations on management's right,
including OMB Circular A-76. Thus, this provision is not inconsistent
with section 7106(a)(2)(B) of the Statute. See American Federation of
Government Employees, AFL-CIO, National Council of EEO Locals and Equal
Employment Opportunity Commission, 10 FLRA No. 1 (1982) (Union Proposal
1), appeal docketed, No. 82-2310 (D.C. Cir. Nov. 1, 1982).
Further, this provision is not concerned with the administrative
appeal procedure established by OMB Circular A-76 whereby all directly
affected parties to a contracting out determination, including Federal
employees and their unions, bidders and offerors, may appeal cost
comparison decisions. Instead, the record indicates that this provision
is intended to establish a separate procedure, preliminary to the OMB
Circular A-76 appeal procedure, for the Union, on behalf of employees
who would be adversely affected by a decision to contract out, to
challenge the cost data upon which the contracting out determination
will be based. After completion of the negotiated procedure, the Union,
as well as any directly affected party within the meaning of OMB
Circular A-76, could utilize the A-76 administrative appeal procedure.
Consequently, Union Provision 2 is within the duty to bargain under the
Statute. /4/
Article 21, Section 1:
This agreement and any subsequent amendments and supplements
thereto shall become effective on the date of approval by the
Parties. This approval shall be subject to timely higher
headquarters post audit review of the Agreement to assure
conformance with applicable laws, executive orders, and
regulations of appropriate authority. If not approved by the
headquarters, those changes that are necessary will be returned to
the Parties for renegotiations. (Only that portion underscored is
in dispute.)
Section 7114(c) of the Statute specifically provides that an agency
head has 30 days to approve or disapprove a collective bargaining
agreement executed at the level of recognition. /5/ In the absence of
such approval or disapproval within the 30-day period, the agreement
becomes effective on the 31st day and is binding on the parties
thereafter, subject to the provisions of the Statute and any other
applicable law, rule, or regulation. E.g., National Federation of
Federal Employees, Local 1862 and Department of Health, Education and
Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona,
3 FLRA 181 (1980). Union Provision 3, however, by establishing the date
of execution as the effective date of the agreement, instead of either
the date the Agency head approves the contract or the 31st day,
whichever comes first, as provided in Section 7114(c) of the Statute is
inconsistent with that section. Therefore, Union Provision 3 is outside
the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review relating to the
two provisions concerning which the Agency withdrew its allegations of
nonnegotiability and to Union Provision 3 be, and it hereby is,
dismissed. IT IS FURTHER ORDERED that the Agency shall rescind its
disapproval of Union Provisions 1 and 2 which were bargained on and
agreed to by the parties at the local level. Issued, Washington, D.C.,
May 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ During the pendency of this case, the Union withdrew portions of
its petition as to six provisions. The issues as to these six
provisions will not be considered further herein. The Agency withdrew
its allegations of nonnegotiability with respect to two other provisions
of the negotiated agreement. The issues as to these two provisions,
therefore, have been rendered moot and will not be considered further
herein.
/2/ The Union's contention that the disputed contract provisions have
gone into effect because the Agency head did not serve his disapproval
on the Union within the 30-day time period established in section
7114(c) cannot be sustained. The record indicates that the agreement
was executed by the parties on August 10, 1982, and the Agency head's
disapproval was served on the Union in accordance with section
2429.27(d) of the Authority's Rules and Regulations, i.e., deposited in
the mail on September 8, 1982, or within the 30-day period established
in section 7114(c). Consequently, the Agency head's disapproval was
timely.
/3/ In finding Union Provision 1 to be negotiable, the Authority
makes no judgment as to its merits.
/4/ In finding Union Provision 2 to be negotiable, the Authority
makes no judgment as to its merits.
/5/ Section 7114(c) of the Statute provides, in relevant part:
Sec. 7114. Representation rights and duties
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation. . . .
14 FLRA No. 100; Case No. O-NG-715; May 30, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2700. Petition for Review
2705. Moot DIGEST NOTES
Where the union elected to proceed under the unfair labor practice
charge and to suspend further action on the negotiability appeal, and
where the General Counsel had determined that the agency had no
obligation to bargain at the local level, except for impact and
implementation proposals, the Authority found that the negotiability
issue raised in the appeal was moot and dismissed the petition for
review.
NATIONAL ASSOCIATION OF AGRICULTURE
EMPLOYEES, BRANCH 11
DEPARTMENT OF AGRICULTURE
Case No. O-NG-715
The petition for review in this case comes be fore the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute).
This appeal was filed based on the Agency's allegation that it did
not have an obligation to bargain over the establishment of lunch
periods with the petitioning local Union. The Union also filed an
unfair labor practice charge alleging that the Agency had committed an
unfair labor practice by unilaterally implementing lunch periods without
engaging in impact and implementation bargaining with the Union.
Pursuant to section 2424.5 of the Authority's Rules and Regulations, the
Union elected to proceed with the unfair labor practice charge and to
suspend further action on the negotiability appeal.
Upon investigation, the Regional Director concluded that further
proceedings on the Union's charge were not warranted. The Union
thereupon appealed the Regional Director's determination to the General
Counsel. The General Counsel denied the Union's appeal, noting that the
Union was a local component of a nationwide unit and that, unless
altered by mutual agreement, the duty to bargain concerning conditions
of employment therefore existed only at the national level. The General
Counsel further noted that the Union's national president had delegated
authority to local components to bargain about the impact and
implementation of the establishment of lunch periods, but had also
expressly stated that "national policy changes shall be negotiated at
the national level." Therefore, the General Counsel concluded that the
Agency did not violate the Statute, because the local union had only
sought to bargain over the establishment of lunch periods, a matter to
which the Agency's duty to bargain at the local component level did not
extend, but had not sought to negotiate related impact and
implementation matters.
In the absence of a duty to bargain between the parties, issues as to
the scope of bargaining are not appropriate for resolution by the
Authority. National Federation of Federal Employees, Local 1363 and
Headquarters, U.S. Army Garrison, Yongsan, Korea, 8 FLRA 200 (1982), and
National Federation of Federal Employees, Local 1363 and Headquarters,
U.S. Army Garrison, Yongsan, Korea, 8 FLRA 134 (1982). Thus, inasmuch
as the General Counsel has determined that there was no obligation on
the Agency to bargain at the local level, except for impact and
implementation proposals, the Authority concludes that the negotiability
issue raised in the instant appeal is now moot.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulation, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., May 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
14 FLRA No. 99; May 25, 1984.
DIGEST HEADINGS
500. GENERAL STATEMENT OF POLICY OR GUIDANCE
650. Standards Governing Issuance
651. Questions More Appropriately Resolved by Other Means DIGEST
NOTES
A finding concerning the duty to bargain over proposals which define
competitive areas is governed by particular circumstances presented by
the record developed by the parties in individual cases. Accordingly,
the Authority denied a request for a general ruling from the Federal
Service Impasses Panel since such questions can more appropriately be
resolved on a case by case basis.
The Federal Service Impasses Panel (the Panel), pursuant to section
2429.4 of the Authority's Rules and Regulations, /1/ has requested that
the Authority issue a general ruling on certain issues which have arisen
in proceedings before it. Specifically, the Panel seeks rulings on the
following issues:
1. Did the Authority intend by its decision in International
Federation of Professional and Technical Engineers, AFL-CIO, NASA
Headquarters Professional Association and National Aeronautics and
Space Administration, Washington, D.C., 8 FLRA No. 46 (1982), to
exclude from the duty to bargain those proposals which define
competitive areas for purposes of a reduction-in-force?
2. If not, are proposed competitive areas which satisfy
applicable regulatory requirements (i.e., are defined in
organizational and geographic terms) within the obligation to
bargain even though they typically include at least some employees
who are not members of the designated bargaining unit? That is,
an administrative authority or geographical area normally
encompasses persons who are not considered "employees" under
section 7103(a)(2) of the Statute (e.g., supervisors and
management officials) as well as employees who are either members
of other bargaining units or unorganized.
The Authority has carefully considered the Panel's request and has
determined that the questions raised can more appropriately be resolved
on a case by case basis. In this regard, a finding with respect to the
duty to bargain over proposals which define competitive areas is
governed by the particular circumstances presented by the record
developed by the parties in individual cases. See American Federation
of Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 14 FLRA No. 98 (1984), issued this date.
Accordingly, IT IS ORDERED that the Panel's request for a general
ruling be, and it hereby is, denied. Issued, Washington, D.C., May 25,
1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 2429.4 provides, in pertinent part:
Sec. 2429.4 Referral of policy questions to the Authority.
Notwithstanding the procedures set forth in this subchapter,
the General Counsel, the Assistant Secretary, or the Panel may
refer for review and decision or general ruling by the Authority
any case involving a major policy issue that arises in a
proceeding before any of them.
14 FLRA No. 98; Case No. O-NG-914; May 25, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.15 Not Conditions of Employment of Bargaining Unit Employees
DIGEST NOTES
A proposal which would define a competitive area within the agency
for purposes of reduction in force and which, the agency asserts without
dispute from the union, would encompass non-bargaining unit employees as
well as bargaining unit employees is nonnegotiable as it would directly
determine conditions of employment of non-unit employees.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 32, AFL-CIO
OFFICE OF PERSONNEL MANAGEMENT
Case No. O-NG-914
The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute) and
presents issues concerning the negotiability of the following Union
proposal:
The Competitive Area shall be the Washington Metropolitan Area.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The proposal seeks to define a competitive area within the Agency for
purposes of reduction in force. The Agency asserts, and the Union does
not dispute, that the proposed competitive area would encompass
non-bargaining unit employees in addition to bargaining unit employees.
The Agency contends, based upon this fact, that it has no obligation to
bargain over the proposal.
It is well established that the duty to bargain does not extend to
matters concerning positions and employees outside the bargaining unit.
International Federation of Professional and Technical Engineers,
AFL-CIO, NASA Headquarters Professional Association and National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
FLRA 212 (1982) and cases cited therein at note 5. However, an agency
generally may bargain over such matters if it so chooses. See, e.g.,
American Federation of Government Employees, AFL-CIO, Local 2 and
Department of the Army, Military District of Washington, 4 FLRA 450
(1980). Insofar as the proposal herein would directly determine
conditions of employment of non-unit employees, it concerns matters
beyond the representation rights of the Union and is not within the
Agency's obligation to bargain. Service Employees' International Union,
AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 686 (1982).
By way of contrast, the Authority has in two types of cases found
that proposals seeking to define competitive areas were within the duty
to bargain. The circumstances involved in those cases, however, were
materially distinguishable from those present in the instant case.
Thus, in National Treasury Employees Union and Department of Health and
Human Services, Region IV, 11 FLRA No. 53 (1983) (Union Proposal 1), the
Authority held that a proposed competitive area was within the duty to
bargain. In so holding, the Authority considered the only issue raised
by the agency: whether negotiation of the proposal was barred by virtue
of conflict with an agency regulation for which a compelling need
existed. The applicability of the proposal to non-bargaining unit
employees was not asserted by the agency as a ground for precluding
negotiation of the proposal, and, hence, was not considered by the
Authority. /1/ In another set of circumstances the Authority also held
a proposed competitive area to be within the duty to bargain.
Association of Civilian Technicians, Pennsylvania State Council and
Pennsylvania Army and Air National Guard, 14 FLRA No. 6 (1984) (Union
Proposal 1). In that case, the proposal effectively would have limited
the competitive area to the bargaining unit and the Authority found that
the agency had not asserted, nor was it otherwise apparent, that the
proposal was inconsistent with laws or regulations applicable to
National Guard technicians. /2/
Since, in this case, the record establishes that the proposal would
directly determine conditions of employment of employees not within the
bargaining unit, it must be concluded that the proposal is
nonnegotiable. Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations, IT IS ORDERED that the petition for
review be, and it hereby is, dismissed. Issued, Washington, D.C., May
25, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ It is now well established that the parties bear the burden of
creating the record upon which the Authority will resolve negotiability
disputes placed before it. National Federation of Federal Employees,
Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir.
1982).
/2/ In this regard 5 CFR, Part 351, which generally governs
reductions in force in the Federal service does not apply to National
Guard technicians. 5 CFR 351.201(f).
14 FLRA No. 97; Case No. 3-CA-1966; May 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4100. Interference, Restraint, Coercion
4200. Discrimination
4800. Otherwise Refuse to Comply with the Statute
6000. UNFAIR LABOR PRACTICE: PROCEDURE
6550. Charge DIGEST NOTES
A meeting is an "examination within the meaning of 7114(a)(2)(B) for
which a firefighter "reasonably" believes might result in discipline,
the ALJ ruled in a decision adopted by the Authority. The facts
indicate that the employee was being investigated for insubordination
which is generally considered a serious matter for firefighters and one
which could result in the loss of life on the job. The firefighter knew
that another employee had been admonished for similar alleged
insubordination. Furthermore, the seriousness of the inquiry was
emphasized by instructions that the firefighter report to the station
chief's office to which he had never before been summoned; that the
captain and the station chief were awaiting his arrival; that no
assurance whatsoever were made that the inquiry were less serious than
the firefighter envisioned; and that another station chief had
instructed the firefighter not to attend the meeting without a union
representative.
When the activity refused to provide an opportunity for the exclusive
representative to be represented at an "examination" of a firefighter's
alleged insubordination, it violated Sec. 7114(a)(2)(B) and 7116(a)(8),
the ALJ held in a decision adopted by the Authority. Because the
activity took disciplinary action against the firefighter for his
refusal to attend the meeting without a union representative present,
the activity interfered with, restrained, coerced and discriminated
against the employee in and for his exercise of protected rights
provided in Sec. 7102 which is a violation of Sec. 7116(a)(1) and Sec.
7116(a)(2).
In a concurring opinion, one Member agreed that under Sec.
7114(a)(2)(B) an employee is entitled to have union representation
present at an investigatory examination for which he reasonably believes
that the examination was likely to result in the imposition of
discipline. However, the Member stressed that the reasonableness of the
belief must be based on objective rather than subjective criteria. When
a management representative who is about to conduct the interview gives
assurances to the employee that the imposition of discipline is not
contemplated, then that employee's continued belief to the contrary can
only be characterized as subjective, and therefore, unreasonable. Under
such circumstances, the employee's refusal to proceed with the interview
in the absence of a union representative would no longer be protected
conduct, and any disciplinary action imposed on the basis of such a
refusal would be justified.
Although certain allegations raised in the complaint were not
specifically raised in the pre-complaint charge, the events alleged in
the charge and complaint were closely related. Accordingly, there was
no basis for the dismissal of the allegations in the complaint on the
ground that they were not set forth in the charge, the ALJ ruled in a
decision adopted by the Authority.
The activity did not violate Sec. 7114(a)(2)(B) by refusing to allow
an employee reasonable time to confer with a union representative prior
to a meeting called for the sole purpose of advising the employee that
disciplinary action would be taken against him, the ALJ concluded in a
decision adopted by the Authority. There was no "examination" within
the meaning of Sec. 7114(a)(2)(B) of the employee; no questions were
asked the employee and an investigation was not contemplated.
DEPARTMENT OF THE NAVY
NORFOLK NAVAL BASE
NORFOLK, VIRGINIA
MICHAEL DAVID CULP
Case No. 3-CA-1966
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices as 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
had not engaged in certain other alleged unfair labor practices and, in
effect, recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), 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.
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 Norfolk Naval Base; Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the Norfolk Naval Base,
Norfolk, Virginia, to take part in an examination or investigative
interview in connection with an investigation, without union
representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
(b) Discriminating against Michael David Culp in any manner in order
to discourage membership in, or activities on behalf of, the American
Federation of Government Employees, AFL-CIO, Local 2225.
(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) Expunge from Michael David Culp's personnel records, all copies
of a letter of reprimand dated February 24, 1981, addressed to Michael
David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk Naval
Base, Norfolk, Virginia.
(b) Post at its facilities at the Norfolk Naval Base, Norfolk,
Virginia, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Such forms shall be signed by the
Commander of the Norfolk Naval Base, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, 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 portion of the complaint in Case No.
3-CA-1966 found not to have violated the Statute be, and it hereby is,
dismissed. Issued, Washington, D.C., May 24, 1984
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Chairman Mahone, concurring:
I agree with my colleagues and the Administrative Law Judge, that
under the particular facts of this case, /1A/ the Charging Party's
belief that the investigatory examination was likely to result in the
imposition of discipline, was reasonable. Accordingly, pursuant to
section 7114(a)(2)(B) of the Statute, he was entitled to insist upon
having a union representative present at such an interview, and any
disciplinary action taken against him for his refusal to submit to the
interview in the absence of a union representative would result in the
violation of section 7116(a)(1) and (8).
However, I am writing separately in order to stress that our decision
today does nothing to change the requirement that the reasonableness of
the belief be based on objective rather than subjective criteria. In
this regard, it must be emphasized that, in the usual case, when the
management representative who is about to conduct the interview gives
assurances to the employee that the imposition of discipline is not
contemplated, then that employee's continued belief to the contrary can
only be characterized as subjective, and therefore, unreasonable. Under
such circumstances, the employee's refusal to proceed with the interview
in the absence of a union representative would no longer be protected
conduct, and any disciplinary action imposed on the basis of such a
refusal would be justified. Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT require any bargaining unit employee of the Norfolk Naval
Base, Norfolk, Virginia, to take part in an examination or investigative
interview in connection with an investigation, without union
representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
WE WILL NOT discriminate against Michael David Culp in any manner in
order to discourage membership in, or activities on behalf of, the
American Federation of Government Employees, AFL-CIO, Local 2225.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees of the Norfolk Naval Base, Norfolk, Virginia, in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute.
WE WILL expunge from Michael David Culp's personnel records all
copies of a letter of reprimand dated February 24, 1981, addressed to
Michael David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk
Naval Base, Norfolk, Virginia.
(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) 653-8507.
Case No.: 3-CA-1966
Dennis K. Reischl
For the Respondent
Sharon Prost, Esquire
Peter Robb, Esquire
For the General Counsel
Before: LOUIS SCALZO
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. 7101 et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
It was alleged in the complaint that the Department of the Navy,
Norfolk Naval Base, Norfolk, Virginia (Respondent), failed to comply
with Section 7114(a)(2)(B) of the Statute by issuing a February 24, 1981
letter of reprimand to Mr. Michael D. Culp (Charging Party), a GS-5
Firefighter, assigned to Station 1, Norfolk, Naval Base, because Mr.
Culp refused a January 23, 1981 request to go to the office of Station
Chief J. R. Davis, unaccompanied by a Union representative, for the
purpose of participating in a discussion with Station Chief Davis
concerning Mr. Culp's job performance and job attitude. The issuance of
the reprimand was alleged to constitute an unfair labor practice within
the meaning of Section 7116(a)(1), (2) and (8) of the Statute.
It was also alleged that the Respondent failed to comply with Section
7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and a Union
representative a reasonable time in which to confer prior to attending a
meeting with Station Chief Davis concerning Mr. Culp's earlier refusal
to participate in the discussion, and further that the failure to permit
time to confer constituted an unfair labor practice within the meaning
of Sections 7116(a)(1), and (8) of the Statute. /1/
Counsel representing the Respondent moved for dismissal of the
complaint on the ground that none of the allegations raised in the
complaint were first raised by the Charging Party in a charge or amended
charge. Counsel representing the Respondent also argued that Mr. Culp
could have had no reasonable belief that the discussion sought by
Station Chief Davis might result in disciplinary action against him, and
that as a result, his refusal to meet with the Station chief was not
protected under the provisions of Section 7114(a)(2)(B). In response to
the alleged failure to allow time to confer with a Union representative
it was argued that the Respondent had no obligation under the provisions
of Section 7114(a)(2)(B) to allow Mr. Culp time in which to confer with
a Union representative in advance of meeting scheduled merely to
announce a pending disciplinary action. Respondent argued that counsel
for the General Counsel failed to sustain the burden of proving the
alleged unfair labor practices by a preponderance of the evidence.
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. Post-hearing briefs were received
from counsel representing the General Counsel and counsel representing
the Respondent. These have been duly considered. Based upon the entire
record herein, including my observations of the witnesses and their
demeanor, the exhibits and other relevant evidence adduced at the
hearing, /2/ and the briefs, I make the following findings of fact,
conclusions and recommendations:
Employee Insubordination Reported to Station Chief Davis
During the morning of January 23, 1981, Lead Firefighter (Captain)
Donald Wilson instructed Mr. Culp to perform certain duties involving
stripping and waxing floors in the watch office and kitchen of Fire
Station 1, Norfolk Naval Base. (Tr. 29-30, 121). Captain Wilson also
assigned certain unspecified duties of a similar nature to Firefighter
David Tindel. (Tr. 128-129). A dispute arose between Captain Wilson
and Mr. Culp, and between Captain Wilson and Mr. Tindel, concerning the
performance of work assigned. A heated discussion lasting "a few
minutes" ensued between Mr. Culp and Captain Wilson while the work was
being performed. (Tr. 30-32). The exchange involved threatening words
uttered by both participants (Tr. 31-32), and was not like any other
earlier discussion had by Captain Wilson and Mr. Culp. (Tr. 31-32).
/3/ Mr. Tindel also made remarks constituting insubordination to Captain
Wilson. (Tr. 123, 128, 137). Mr. Tindel admitted making "hot-tempered"
remarks that he should not have made (Tr. 131), and that his exchange
with Captain Wilson was serious in nature. (Tr. 132). At least some of
Mr. Tindel's insubordination occurred in the presence of Mr. Culp. (Tr.
31-32).
As a result of the insubordination described, Captain Wilson reported
details of his encounters with Mr. Culp and Mr. Tindel to Station Chief
Davis (Tr. 122) and requested Chief Davis to meet with the two
employees. He testified:
I just asked him if he would have a talk, and if there was a a
problem, to get it in the air and find out what was going on.
(Tr. 124).
Station Chief Davis described Captain Wilson's report in similar
terms, and indicated that Captain Wilson's problem with Mr. Culp had
been a continuing one. (Tr. 89-90, 110). Station Chief Davis testified
that he hoped to have a discussion with Mr. Culp concerning Mr. Culp's
insubordination, but that he did not then contemplate disciplinary
action. (Tr. 107-108).
It was established that in cases involving insubordination it was a
normal procedure to inquire into the matter for the purpose of
determining appropriate action. (Tr. 118, 147). Insubordination by
firefighters toward lead firefighters was considered a potentially
serious matter. It was felt that disobedience could possibly result in
loss of life during firefighting activity. (Tr. 111-112).
Station Chief Davis Takes Action to Inquire Into Reports of
Insubordination
Later in the morning of January 23rd, Station Chief Davis asked
Captain Wilson to summon Mr. Tindel to his office. (Tr. 138). Mr.
Tindel knew, without his having to ask, that he was being summoned
because of his insubordination earlier that morning. (Tr. 139).
Station Chief Davis made inquiry concerning his conduct, received Mr.
Tindel's response, and then admonished him. (Tr. 90-91, 114, 116,
124-126, 132). In concluding his meeting with Mr. Tindel, Station Chief
Davis requested him to ask Mr. Culp to report to him. While enroute
down a flight of stairs leading to the upstairs section of the Fire
Station where the Station Chief's office was located, Mr. Tindel told
Mr. Culp that he had been admonished and that Station Chief Davis wanted
to see him. (Tr. 32-33). /4/ Because Mr. Culp did not report
immediately, Captain Wilson was dispatched by Station Chief Davis to
summon Mr. Culp. (Tr. 91-92, 125-126, 134). Captain Wilson was told by
Mr. Culp that he (Mr. Culp) was trying to contact a Union
representative. (Tr. 134). Captain Wilson then proceeded back upstairs
toward Station Chief Davis' office and Mr. Culp followed a few minutes
later. (Tr. 134). There was no indication that Captain Wilson denied
or otherwise advised Mr. Culp that a Union representative would not be
needed.
Station Chief Davis and Captain Wilson were waiting for Mr. Culp in
Chief Davis' office. (Tr. 34). Mr. Culp became apprehensive when he
saw them. Due to the circumstances, particularly the fact that he had
never been summoned to Station Chief Davis' office before (Tr. 104,
113), he worried that some administrative action might be taken against
him (Tr. 34-35). /5/
Chief Davis started to explain the purpose of the meeting, but Mr.
Culp stated that he wanted to have a Union representative present during
the meeting (Tr. 34, 92, 97, 125-126). Mr. Culp testified that Chief
Davis agreed at this point to allow a Union representative to be
present, and that he then left and went downstairs. (Tr. 34). Station
Chief Davis testified that he instructed Mr. Culp to "wait right here
and let me go see", and that he did not give Mr. Culp permission to have
a Union representative present. (Tr. 92, 97). Captain Wilson's
testimony differed substantially from that of Station Chief Davis. He
related that Station Chief Davis made no response at all, and that Mr.
Culp left them and went downstairs. (Tr. 125-126).
On the basis of the record it is possible to conclude that Mr. Culp's
request for a Union representative was not immediately questioned by
Station Chief Davis, although conflict exists concerning whether Station
Chief Davis acquiesced when Mr. Culp said that he would not attend the
meeting unaccompanied by a Union representative.
Request Made for Union Representative to Attend Meeting and
Subsequent Cancellation of Request by Respondent
Mr. Culp requested that Mr. Jack Overby, Chief Steward of American
Federation of Government Employees, AFL-CIO, Local 2225, be made
available for the meeting with Station Chief Davis. (Tr. 28). Local
2225, is the exclusive bargaining representative of firefighters
employed at the Norfolk Naval Base. Mr. Culp made the request by
phoning Station Chief B. R. Todd, the supervisor in charge of Fire
Station 3, as Mr. Overby worked in Fire Station 3 under Station Chief
Todd. (Tr. 35-37). Chief Todd agreed to see that Mr. Overby attended
the meeting. A few minutes later Chief Todd phoned Mr. Culp and warned
him not to attend the meeting with Station Chief Davis until Mr. Overby
arrived to assist Mr. Culp. (Tr. 36-38, 49).
Chief Todd informed Mr. Overby early in the afternoon of January 23rd
that he was needed by Mr. Culp at Fire Station 1. (Tr. 63-64). While
enroute to Fire Station 1, Mr. Overby was instructed by radio to return
to Fire Station 3. (Tr. 63-65). Upon his return Station Chief Todd
told Mr. Overby to return to work. (Tr. 65). The record disclosed that
Assistant Fire Chief Umphlett, who was Station Chief Davis' supervisor,
admitted that he canceled Mr. Culp's earlier request that Mr. Overby be
allowed to go to Fire Station 1 to represent Mr. Culp during the meeting
with Station Chief Davis. (Tr. 97-98).
Basis of Disciplinary Action Taken
Station Chief Davis sought counsel from his supervisor, Assistant
Fire Chief Umphlett, when Mr. Culp refused to meet with him. (Tr.
92-93). Assistant Chief Umphlett asked whether disciplinary action was
contemplated, and when told that such was not intended, Chief Umphlett
noted that under the terms of the collective bargaining agreement, Mr.
Culp was not entitled to a Union representative unless disciplinary
action was intended. He recommended that Station Chief Davis advise Mr.
Culp of this, and then, "see if he'll come up to your office." (Tr.
93-94).
Station Chief Davis approached Mr. Culp with a copy of the collective
bargaining agreement in his hand. He advised Mr. Culp that according to
the agreement he did not need a representative, that no disciplinary
action was contemplated, and that he just wanted to talk to Mr. Culp.
(Tr. 38, 50-51, 94-95, 134-135, 142-143). Mr. Culp insisted upon a
Union representative being present, and stated that he would attend when
the representative requested arrived. (Tr. 39, 135, 143). Station
Chief Davis informed Mr. Culp three or four times that he was refusing
(Tr. 39), advised him that he was failing to obey orders (Tr. 94-95),
and gave Mr. Culp a direct order to go to his (Station Chief Davis')
office to discuss the matter. (Tr. 135). Mr. Culp insisted that he was
not refusing and that he would go when the representative arrived. (Tr.
39).
Station Chief Davis again sought advice from Assistant Chief
Umphlett, who in turn sought counsel from those higher in the chain of
command. (Tr. 95-96). They were advised to arrange a meeting with Mr.
Culp to inform him that a proposed disciplinary action would be filed
against him for failing to comply with a verbal order. (Tr. 96). Mr.
Culp was then informed by Station Chief Davis that Mr. Culp would, at
this point, need a Union representative, that Mr. Overby would be
summoned, and that the matter was turning into a disciplinary action for
failing to obey a direct order. (Tr. 41, 96). Station Chief Davis
phoned Station Chief Todd and requested that Mr. Overby be allowed to
represent Mr. Culp. (Tr. 98).
Mr. Culp Formally Advised of Proposed Disciplinary Action and
Disciplinary Action Taken
The Charging Party contends that upon the arrival of Mr. Overby,
Station Chief Davis ordered him and Mr. Overby to his office
immediately, and that a request made by Mr. Culp for time to explain the
situation to Mr. Overby was refused. (tr. 41-42). Mr. Overby's
testimony was similar except that he could not recall whether he or Mr.
Culp made the initial request for time in which to confer. (Tr. 68-69,
74-75). Station Chief Davis testified that he asked Mr. Overby and Mr.
Culp if they were ready, that he received an affirmative response from
them, and that they then all went up to Station Chief Davis' office.
(Tr. 98, 99). He denied that there was any request to confer prior to
his meeting with Mr. Overby and Mr. Culp. (Tr. 99). Captain Wilson and
Mr. Tindel corroborated Chief Davis in part. (Tr. 127-128, 136, 143,
145-146). However, Captain Wilson stated that he did not hear anything
that was said between Station Chief Davis, Mr. Overby and Mr. Culp
before they proceeded upstairs. (Tr. 130). Although it is not
necessary to decide this factual issue, it is nevertheless determined
that the testimony of Mr. Culp and Mr. Overby should be credited. This
conclusion is reached as a result of Captain Wilson's statement that he
heard no conversation of the type described by Station Chief Davis,
before the group proceeded upstairs; on the fact that such a request
would have been made in the normal course of events; on proof of the
expedited arrangements made by Station Chief Davis to schedule a meeting
with Mr. Overby in attendance; and lastly on factors relating to the
demeanor of witnesses.
The witnesses for the General Counsel and Charging Party all
testified that at the meeting which followed, Station Chief Davis
announced that he planned to recommend that Culp be disciplined for
failing to comply with a direct order, and that Station Chief Davis then
refused repeated requests to discuss details of the matter, or to
respond to questions concerning the subject. It was conclusively
established that Station Chief Davis asked no questions and made no
inquiry concerning Mr. Culp's alleged insubordination. (Tr. 73).
On February 24, 1981, Mr. Culp received a letter of reprimand from
Assistant Fire Chief Fred T. Richardson, Norfolk Naval Base, for delay
in carrying out Station Chief Davis' instructions on January 23, 1981.
(G.C. Exh. 2). It included the following as a basis for the reprimand:
At approximately 1420 on 23 January 1981, Station 1 Fire Chief
J. R. Davis instructed you to come to his office. Chief Davis
wanted to discuss with you job performance and attitude toward
your job. You informed Chief Davis that you would not see and
talk with him unless you had your union representative with you.
Chief Davis told you that he did not think it was necessary to
have a representative present. Chief Davis again instructed you
to come to his office, to which you replied, "I will when my union
representative comes, and he has not come yet." You did not report
to Chief Davis' office as you were instructed to do.
It was ordered that a copy of the reprimand be filed in Mr. Culp's
Official Personnel Folder for a period not to exceed two years.
With respect to Respondent's motion to dismiss the complaint on the
ground that none of the allegations raised in the complaint were first
raised by the Charging Party in a charge or amended charge, it is noted
that the charge, insofar as it is pertinent here, alleged that the
Respondent, through the conduct of Station Chief Davis on January 23,
1981, failed to comply with the provisions of Section 7114(a)(2)(B)(ii),
and violated Sections 7116(a)(1) and (8), by refusing to discuss with
Mr. Culp and a Union representative, a disciplinary action which Station
Chief Davis intended to initiate against Mr. Culp. /6/
In Defense Logistics Agency, 5 FLRA No. 21 (February 12, 1981), the
Authority adopted the following language to describe the nature and
function of a charge:
In the private sector, the Supreme Court and many Circuit
Courts have upheld the NLRB's view that a charge is not a pleading
and does not require the specificity of a pleading. It merely
serves to initiate Board investigation to determine whether a
complaint shall be issued (citing authority). (Administrative Law
Judge Decision at page 19, footnote 19).
It does not appear that the Authority has yet ruled specifically on
the degree of relationship required between allegations in a
pre-complaint charge and allegations in a complaint. In a case arising
under the Executive Order, the Assistant Secretary approved an
Administrative Law Judge decision holding that the inclusion of an
allegation in a complaint when not previously included in the charge, is
permitted so long as it is "even rather remotely encompassed by any
language of the original charge. . . ." Department of the Air Force
Headquarters, Air Force Flight Test Center, Edwards Air Force base,
California, A/SLMR 255 (March 14, 1973).
In a Statute case now pending before the Authority, Administrative
Law Judge Burton S. Sternberg noted the following on the basis of
private sector authority:
"(I)t is well established that a complaint need not be confined
to . . . the specific matters set forth in a charge. Additional
allegations may be included in a complaint as long as such
allegations bear a relationship to the charge and are closely
related to the events complained of in the charge. /7/
In this case events leading to pertinent portions of the charge, and
the allegations of the complaint, emanated from Mr. Culp's January 23,
1981, refusal to respond to Chief Davis' directive to go to Station
Chief Davis' office unaccompanied by a Union representative. Both the
charge and the complaint pertain to elements of the factual picture
developed as a result of Mr. Culp's refusal. The conduct of Station
Chief Davis and Mr. Culp is involved in the allegations set forth in the
charge and in the allegations of the complaint. The proposal to
discipline Mr. Culp is a common factual segment of both, and the charge
and the complaint refer to a failure to comply with the provisions of
Section 7114(a)(2)(B) with respect to conduct arising out of Chief
Davis' handling of the unsuccessful effort to compel Mr. Culp to go to
the meeting unaccompanied by a Union representative. Inasmuch as the
events alleged in the charge and the complaint are closely related, no
basis exists for dismissal of the allegations of the complaint on the
ground that they were not set forth in the charge.
Sections 7116(a)(1), (2) and (8) of the Statute provide:
(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;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Section 7102 of the Statute sets forth certain employee rights
including the right to form, join, or assist any labor organization, or
to refrain from any such activity, freely and without fear of penalty or
reprisal, and further that each employee shall be protected in the
exercise of such right. Section 7114(a)(2)(B) provides:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
The threshold question posed in this case is whether Station Chief
Davis sought to subject Mr. Culp to an "examination" within the meaning
of Section 7114(a)(2)(B). That is, a determination as to whether
violations of Section 7116(a)(1), (2) and (8) occurred depends upon
whether or not Mr. Culp's insistence upon the presence of a Union
representative involved a right protected by Section 7114(a)(2)(B).
The legislative history of Section 7114(a)(2)(B) discloses that it
was enacted in response to the decision of the Supreme Court in National
Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959
(1975). Weingarten held, inter alia, that under the National Labor
Relations Act an employee has the right to the presence of a union
representative at "an investigative interview which he reasonably
believes may result in the imposition of discipline." Prior to the
enactment of the Statute there existed no comparable right under
Executive Order 11491, to representation during an investigative
interview. This is spelled out in Federal Labor Relations Council
Statement on Major Policy Issue No. 75P-2 (December 2, 1976), 4 FLRC
709.
The Authority has determined that only objective facts relating to
the interview of an employee, as distinct from an employee's subjective
feelings, may be considered in answering whether an employee reasonably
believed that discipline might result from the interview. Internal
Revenue Service, Washington, D.C., and Internal Revenue Service,
Hartford District Office, 4 FLRA No. 37 (September 26, 1980); Lackland
Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA No. 60
(April 17, 1981). Also, the mere characterization of a meeting as a
"counseling session" would not operate to remove it from the protection
of the Statute. Federal Aviation Administration, St. Louis Tower,
Bridgeton, Missouri, 6 FLRA No. 116 (September 24, 1981). In the
Federal Aviation Administration case the Authority held that the
designation of a meeting as "an interview, investigation or counseling,"
is immaterial, and that an employee is entitled under Section
7114(a)(2)(B), to union representation whenever the circumstances
underlying a meeting make it reasonable to envision that a discussion of
an employee's conduct might lead to discipline.
The facts adduced in this case indicate that an "investigation"
within the meaning of Section 7114(a)(2)(B) was initiated by Station
Chief Davis following Captain Wilson's report of insubordination on the
part of Mr. Culp and Mr. Tindel. Captain Wilson asked Station Chief
Davis to inquire into the matter. Mr. Culp's prior insubordination had
been a continuing problem to management. Station Chief Davis
acknowledged that although he did not then contemplate taking any
disciplinary action, he wanted to inquire into the allegations made by
Captain Wilson, and that such an inquiry was needed to determine
appropriate action. Such investigations or inquiries were a normal
procedure in such cases, as insubordination by firefighters was
considered a serious matter generally, and one which could result in
loss of life on the job. On the basis of the foregoing it is clear that
an investigation into the conduct of Mr. Culp was in progress when Mr.
Culp was summoned to Station Chief Davis' office by Mr. Tindel, and
Captain Wilson.
The record also discloses that Station Chief Davis sought to subject
Mr. Culp to an examination in connection with the investigation.
Respondent does not dispute the fact that Station Chief Davis sought to
question Mr. Culp concerning the alleged misconduct reported by Captain
Wilson. It also appeared that objective facts in the record indicate
that Mr. Culp reasonably believed that the examination sought might
result in disciplinary action against him. Mr. Culp was aware of his
own insubordination and that of Mr. Tindel. Being an experienced
firefighter, he would necessarily have been aware of the serious nature
of insubordination in the type of work being performed. He was advised
by Mr. Tindel that Station Chief Davis wanted to see him, and further
that Mr. Tindel had been admonished in connection with the matter. The
seriousness of the inquiry was emphasized by Captain Wilson's request
that he report to Station Chief Davis' office, by the fact that he had
never before been summoned to Station Chief Davis' office, and by the
fact that he had experienced an earlier confrontation with Captain
Wilson. These factors also tended to tie tightly together his
perceptions concerning the underlying reason for the summons, since Mr.
Tindel and Captain Wilson were the other principal actors in the
conflict which had erupted earlier that day.
Captain Wilson's failure to respond to Mr. Culp's statement that he
(Mr. Culp) was trying to contact a Union representative would have
provided no assurance whatsoever that the inquiry was less serious than
Mr. Culp envisioned, and the picture of Captain Wilson and Station Chief
Davis awaiting Mr. Culp's arrival in Chief Davis' office quite naturally
would have led to a strengthening of his belief that the examination
might result in disciplinary action.
It appeared that although a serious factual dispute exists as to
whether Station Chief Davis acquiesced when Mr. Culp initially requested
that a Union representative be present, the record does indicate that
nothing was then said by Station Chief Davis which could have served to
lessen Mr. Culp's concern and apprehension. Assuming Station Chief
Davis' version of the facts to be true, it must be concluded that
Station Chief Davis' reaction could conceivably have served to provide
an additional basis for Mr. Culp's concern.
The final element leading Mr. Culp to a conclusion that he was in
danger of disciplinary action is reflected in the fact that Station
Chief Todd instructed Mr. Culp not to attend the meeting with Station
Chief Davis without a Union representative. This advice, emanating as
it did from the same relative management level as that from which
Station Chief Davis was speaking, would have necessarily provided an
additional basis for Mr. Culp's belief.
Under the circumstances outlined it is immaterial that Respondent
reached the conclusion that the Union had no right to be represented.
Station Chief Davis' position was a legal one. He advised Mr. Culp that
since no formal disciplinary action was then intended, Mr. Culp was not
entitled to a representative. /8/ This argument neglects to take into
consideration the fact that the results of the examination of Mr. Culp
were then unknown, and further that from Mr. Culp's point of view it
would have been important to have representation during the
investigative stage, when possible administrative decisions were being
formulated. Station Chief Davis merely said that disciplinary action
was not then contemplated. This points out the obvious. Seldom, if
ever, is disciplinary action contemplated at the outset of an inquiry.
Here, the facts indicated that the reason for the examination was to
receive Mr. Culp's side of the story. Neither Mr. Culp, nor Station
Chief Davis had any way of knowing the final results of his inquiry, or
the disposition of the matter, prior to the examination of Mr. Culp.
Moreover, Mr. Culp received no firm assurance that his statements during
the interview would not lead to disciplinary action against him.
There was an affirmative obligation on the part of the Respondent to
provide the exclusive representative an opportunity to be present during
the examination, and an affirmative obligation to take no administrative
action to otherwise interfere with the exercise of this right. Lackland
Air Force Base Exchange, Lackland Air Force Base, Texas, supra; U.S.
Department of the Navy, U.S. Marine Corps, Marine Corps Logistics Base,
Albany, Georgia, 4 FLRA No. 54 (September 30, 1980). On the basis of
the foregoing it is concluded that the failure to provide an opportunity
for the exclusive representative to be represented at the examination
under circumstances outlined herein constituted a failure to comply with
the provisions of Section 7114(a)(2)(B). Since disciplinary action
taken against Mr. Culp related closely to Mr. Culp's insistence upon
Section 7114(a)(2)(B) rights, it must also be concluded that the
disciplining of Mr. Culp also constituted a failure to comply with
Section 7114(a)(2)(B).
It follows therefore that the taking of disciplinary action against
Mr. Culp violated Section 7116(a)(1) in that it interfered with,
restrained, and coerced Mr. Culp in his exercise of rights provided in
Section 7102 of the Statute. The same conduct constitutes a violation
of 7116(a)(8) in that it represents a failure on the part of the
Respondent to comply with the provisions of Section 7114(a)(2)(B).
In order to establish a violation of Section 7116(a)(2) there must be
a showing that the alleged victim of discrimination was engaging in
protected activity, that the agency had knowledge of such activity, and
that the agency took action because of anti-union animus. United States
Department of Labor, 1 FLRA No. 120 (September 28, 1979); Veterans
Administration Center, Leavenworth, Kansas, 1 FLRA No. 111 (September
20, 1979); U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA No.
108 (September 13, 1979). The element of discriminatory motivation
needed to establish a Section 7116(a)(2) violation may be inferred from
circumstantial evidence. U.S. Customs Service, Region IV, Miami,
Florida, supra, Veterans Administration Center, Leavenworth, Kansas,
supra.
The Authority has also held that in examining discrimination where an
employee asserts a facially lawful business justification for the
alleged discriminatory action, it would examine such cases through an
analysis similar to that used by the United States Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 529 U.S. 274
(1977) (involving conduct protected by the United States Constitution).
The Authority stated that the burden is on the General Counsel to make a
prima facie showing that the employee had engaged in protected activity
and that the prohibited conduct was a motivating factor in the
administrative action taken by the agency. Once this is established,
the agency may avoid responsibility only by showing by a preponderance
of the evidence that it would have reached the same decision or taken
the same action even in the absence of protected activity. Internal
Revenue Service, Washington, D.C., 6 FLRA No. 23 (June 17, 1981);
Veterans Administration, Medical and Regional Office Center, White River
Junction, Vermont, 6 FLRA No. 68 (August 5, 1981).
In this case disciplinary action was taken ostensibly because Mr.
Culp refused to attend the examination; however, the record is clear
that he did not refuse to attend the examination. He refused to attend
unless a right accorded under Section 7114(a)(2)(B) was first recognized
and extended to him. Since his refusal was wedded to his insistence on
the Section 7114(a)(2)(B) right, it must be concluded that disciplinary
action taken against Mr. Culp was predicated, at least in part upon Mr.
Culp's insistence upon a protected right, and not solely because of Mr.
Culp's refusal to respond to Station Chief Davis' order to participate
in the examination.
This is further evidenced by the fact that Station Chief Davis became
incensed by Mr. Culp's continued insistence upon the presence of a Union
representative, by statements made in an attempt to compel Mr. Culp to
attend without a Union representative, and by the apparent causal
relationship between Mr. Culp's insistence upon his right, and Station
Chief Davis' immediate initiation of steps leading to the subsequent
reprimand of Mr. Culp. Since there was no showing by Respondent that
the questioned disciplinary action would have been taken against Mr.
Culp even if Mr. Culp had not been engaged in protected activity, it
follows that the Respondent's conduct also constituted an unfair labor
practice violative of Section 7116(a)(2) of the Statute. Internal
Revenue Service, Washington, D.C., supra.
Turning to allegations that the Respondent failed to comply with
Section 7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and
Mr. Overby reasonable time to confer prior to attending their meeting
with Station Chief Davis, it is noted that Section 7114(a)(2)(B) would
not be applicable in the absence of an "investigation," or an
"examination" within the meaning of Section 7114(a)(2)(B). The record
demonstrated that Station Chief Davis' meeting with Mr. Culp and Mr.
Overby, involved no investigative effort on the part of the agency.
There was no examination of Mr. Culp, no questions were addressed to
him, and there is no indication in the record, that any investigation
into the prior insubordination was then contemplated. In fact, Station
Chief Davis refused a request to discuss the case at this point. He had
already decided that action should be taken against Mr. Culp for
refusing to obey his order. The meeting with Mr. Culp and Mr. Overby
was arranged solely for the purpose of advising Mr. Culp that
disciplinary action would be taken. The Respondent was under no
obligation to give the Union an opportunity to be represented at a
meeting wherein Station Chief Davis merely advised Mr. Culp and Mr.
Overby that disciplinary action was being initiated against Mr. Culp.
See United States Air Force, 2750th Air Base Wing Headquarters, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
5-CA-736, 737, 738 and 805 (OALJ-81-135, July 15, 1981).
In view of the foregoing, it is unnecessary to determine whether,
under the provisions of Sections 7114(a)(2)(B), Mr. Culp would have been
entitled to a reasonable time to confer with Mr. Overby prior to meeting
with Station Chief Davis.
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 Norfolk Naval Shipyard, Norfolk, Virginia, shall:
1. Cease and desist from:
(a) Requiring any bargaining unit employee of the Norfolk Naval
Shipyard, Norfolk, Virginia, to take part in an examination or
investigative interview in connection with an investigation,
without union representation, if such union representative has
been requested by the employee, and if the employee reasonably
believes that the examination or investigative interview may
result in disciplinary action against such employee.
(b) Discriminating against Michael David Culp in any manner in
order to discourage membership in, or activities on behalf of,
American Federation of Government Employees, AFL-CIO, Local 2225.
(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) Expunge from Michael David Culp's personnel records, all
copies of letter of reprimand dated February 24, 1981, addressed
to Michael David Culp by Assistant Fire Chief Fred T. Richardson,
Norfolk Naval Base, Norfolk, Virginia.
(b) Post at its facilities at the Norfolk Naval Base, 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 the Commander of
the Norfolk Naval Base and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places where notices
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
LOUIS SCALZO
Administrative Law Judge
Dated: October 16, 1981
Washington, D.C.
WE WILL NOT interfere with, restrain or coerce any bargaining unit
employee of the Norfolk Naval Base, Norfolk, Virginia in the exercise of
rights assured by the Federal Service Labor-Management Relations Statute
by requiring any bargaining unit employee to take part in an examination
or investigative interview in connection with an investigation, without
union representation, if such representation has been requested by the
employee, and if the employee reasonably believes that the examination
or investigative interview may result in disciplinary action against
such employee.
WE WILL NOT discriminate against any bargaining unit employee of the
Norfolk Naval Base, Norfolk, Virginia, in any manner in order to
discourage membership in, or activities on behalf of, American
Federation of Government Employees, AFL-CIO, Local 2225.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees of the Norfolk Naval Base, Norfolk, Virginia, in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute.
WE WILL expunge from Michael David Culp's personnel records all
copies of letter of reprimand dated February 24, 1981, addressed to
Michael David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk
Naval Base, Norfolk, Virginia.
(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 3,
whose address is: 1133 15th Street, N.W., Suite 300, Washington, D.C.,
20005, and whose telephone number is: (202) 653-8452.
/1A/ The specific events which support the reasonableness of his
belief are summarized by the Administrative Law Judge at page 11 of his
decision.
/1/ In Paragraph 18 of the complaint it was alleged that, "by the
acts and conduct alleged above, Respondent has engaged in and is
engaging in unfair labor practices in violation of Section 7116(a)(1),
(2) and (8) of the Statute." This broad language was limited, as
outlined herein, by the complaint, and by counsel for the General
Counsel. See Tr. 14-20, and post-hearing brief filed by counsel for the
General Counsel.
/2/ Under authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R. 2423.19(r) the following corrections are made in
the hearing transcript:
page 132 line 3 change "on the first offense" to "in the first
instance"
Page 168 Line 6 Change "matter" To "nature"
/3/ The record reflects that on the same day Mr. Culp was also
involved in another pattern of insubordination with Captain Wilson
concerning the performance of work by another firefighter. (Tr.
121-122).
/4/ Mr. Tindel was called as a witness by the Respondent. He was
vague about what he said to Mr. Culp, but did corroborate Mr. Culp's
testimony to the effect that Mr. Tindel told Mr. Culp that Chief Davis
had admonished him. (Tr. 147-150).
/5/ The record disclosed that Mr. Culp and Station Chief Davis had a
discussion prior to January 23, 1981, concerning the subject of "getting
along with Captain Wilson," and concerning management problems. (Tr.
103-104).
/6/ Counsel for the General Counsel acknowledged that the second
portion of the charge dealing with an incident occurring on January 25,
1981, had no bearing on this case. (Tr. 10).
/7/ Bureau of Land Management, Richfield District Office, 7-CA-247
(OALJ-81-086, April 10, 1981).
/8/ G.C. Exh. 2, the letter of reprimand, reflects that Station Chief
Davis merely expressed his personal opinion "that he did not think it
was necessary to have a Union representative present."
14 FLRA No. 96; Case No. 9-CA-578; May 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICES: AGENCY
4500. Refusal to Negotiate DIGEST NOTES
The Authority determined that meetings which: (1) were not initiated
solely by the agency, but rather resulted from the agreement reached
between the agency and the union to notify the employees of a change in
their hours of work; and (2) were conducted by the employees' first
level supervisor separately with each employee in an informal manner
with no advance written notice or pre-planned agenda, are not formal
discussions within the meaning of Sec. 7114(a)(2)(A) of the Statute.
Consequently, the Authority found that the agency did not violate Sec.
7116(a)(1), (5) and (8) of the Statute when it held such meetings.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
SAN FRANCISCO, CALIFORNIA
AFGE COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS
SAN FRANCISCO REGION
Case No. 9-CA-578
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. Exceptions to the
Judge's Decision were filed by the General Counsel.
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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and Recommended Order,
as modified herein.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), the Authority noted a number of factors relevant to
a determination of whether meetings, alleged to be "formal discussions"
within the meaning of section 7114(a)(2)(A) of the Statute, are in fact
"formal" in nature. Thereafter, in Defense Logistics Agency, Defense
Depot Tracy, Tracy, California, 14 FLRA No. 78 (1984), the Authority
emphasized that such factors were not intended to be exhaustive, that
other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of facts and circumstances presented.
In the instant case, in finding that the General Counsel had failed
to prove by a preponderance of the evidence that the meetings involved
were formal discussions within the meaning of section 7114(a)(2)(A) of
the Statute, the Judge listed numerous factors she considered relevant
to making such a determination. Although the Authority specifically
does not pass upon the relevance of all the factors listed, the
Authority concludes, in agreement with the Judge, that the meetings
involved herein were not formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute. In finding that the meetings were
not "formal" in nature, the Authority notes particularly that they were
not initiated solely by the Respondent, but rather resulted from the
agreement reached between the Respondent and the Union to notify the
employees of a change in their hours of work. /1A/ Further, the
meetings were conducted by the employees' first level supervisor
separately with each employee in an informal manner with no advance
written notice or pre-planned agenda.
IT IS ORDERED that the complaint in Case No. 9-CA-578 be, and it
hereby is, dismissed in its entirety. Issued, Washington, D.C., May 24,
1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 9-CA-578
Wilson Schuerholz,
Vince Morgante,
Patricia Jeanne Howze,
Before: ISABELLE R. CAPPELLO
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp.
III, 1979) (hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq.,
5 C.F.R. 2421 et seq.
The Charging Party (hereinafter also referred to as the "Union")
filed the charge that initiated this proceeding on July 9, 1980. /1/ On
September 30, the Regional Director, Region IX, of the Federal Labor
Relations Authority (hereinafter, the "Authority") issued a Complaint
and Notice of Hearing based on the Union's charge.
The Complaint alleges that Respondent (also referred to as "SSA")
committed unfair labor practices in violation of Section 7116(a)(1),
(5), and (8) of the Statute. /2/ The violations allegedly arise out of
a change in working hours of bargaining-unit employees. The change was
announced to the employees on May 2. The Complaint alleges that the
announcement was made without notice to the Union and without giving the
Union an opportunity to bargain over the impact and implementation of
the change. The Complaint also alleges that a supervisor of Respondent
met and bargained directly and individually with the affected employees
without effective notice to the Union or an opportunity for the Union to
be present, in derogation of the Union's status as exclusive
representative.
A hearing on the matter was held on July 16, 1981, in Fresno,
California. The parties introduced evidence and examined and
cross-examined witnesses. Briefs were received, on August 27 from the
Respondent, and on September 1 from the General Counsel. Based on the
record made at the hearing, my observation of the demeanor of the
witnesses, and the briefs, I make the following findings, and
conclusions and recommended order.
1. Respondent is an agency of the United States Government which
operates a District Office in Fresno, California. The District Office
operates four branches in and around the Fresno area and is under the
direction of an Area Director, located in San Francisco.
2. The Charging Party is a labor organization and the exclusive
representative of certain employees of Respondent, including Claims
Development Clerks (hereinafter "CDSs") employed at the Fresno District
Office and in its four branches. At all times herein pertinent, Sandra
Bailie was the only Union contact person for management operating the
Fresno District of Respondent, including its four branches.
Representing management in labor-management matters were the District
Manager, the Assistant District Manager, and the Chief Operating Officer
of the Fresno District Office.
3. In March, Respondent's Fresno District Office offered the status
of permanent parttime employee to certain CDSs who had been working as
temporary employees, employed for a term of one year, and working 40
hours a week. In converting to permanent parttime employees, the CDSs
accepting the offer signed a Form 50 on which was a "designated" tour of
duty of 32 hours a week. (TR. 44). The CDSs signed the forms after
they had accepted the offer and been told not to worry about the
designated 32 hours, and that they would continue to work 40 hours a
week, except for every fifth week, when they would work 32 hours.
4. Upon conversion, the CDSs immediately started to work a schedule
of 40 hours a week for 4 weeks and 32 hours for the fifth week. The
Fresno District Office believed it could work parttime employees on such
a schedule by treating hours over 32 as overtime hours.
5. On Friday, May 2, a memorandum was received in the Fresno
District Office from the Area Director. It accused the Fresno District
of "playing games" and "Mickey-mousing" the hours of the parttime CDSs.
(TR. 64, 76, 85). It ordered the practice to cease. Blanche Bartsch,
the Chief Operating Officer, was informed of the memorandum by the
Assistant District Director, shortly before noon, on May 2. She was
"very upset" about it. (TR 80). She had employees willing to work the
schedule, and who needed the money. There was plenty of work for them
to do. And no more employees could be hired, at that time.
6. As soon as she learned of the memorandum, Ms. Bartsch told the
Assistant District Manager that she would show it to Sandra Bailie and,
if Ms. Bailie had any objection to it, "we'll have a formal meeting."
(TR. 76-77). Ms. Bartsch testified as follows as to her conversation
with Ms. Bailie:
And so I went out to Sandy and I showed her the memo that we
got. And I said, "I'm very upset about this, Sandy; but we were
ordered to do this, and it appears we're going to have to follow
these orders." And I asked her if she had any objection, or wanted
a formal meeting over this, what would she like to do with this.
And she just, being the reasonable person she always is, said well
there's nothing you can do about it, so there's no need for a
formal meeting. So I said okay, and we discussed it. And I said
that I intended to tell them (the employees) right away because I
felt they should know about this. And she said yes, do that. So
I said that I would tell them in my office before the day's over,
so that they know as soon as I know about. And I said I'd tell
Mr. Petty to tell the branch managers and they in turn can tell
their people.
(TR. 77).
Ms. Bartsch also told Ms. Bailie that: '(I)t appears we're going to
have to do this effective on Monday, the 5th." (TR. 78). (TR. 77) Ms.
Bartsch then went to the desk of each of the six parttime employees in
the District Office and told them what had happened. The Assistant
District Manager called the branch offices and directed that their
parttime employees be informed of the Area Director's directive.
7. Ms. Bailie testified that she was not consulted about the matter.
She also denied ever having oral discussions about such matters. She
testified that discussions with management were always at formal
meetings at which notes were made and kept. She made the notes, which
were reviewed by management; and they constituted the only set of
official notes maintained. Prior to testifying, the reviewed all the
notes and found no reference to the matter at issue. Occasionally,
notification of proposed changes would be given outside of meetings.
Under these circumstances, Ms. Bailie would receive written notification
in a sealed envelope left on her desk. These notices were promptly
filed, along with minutes of meetings, in the District Office in Fresno.
Ms. Bailie testified that she never received oral notification of a
change in working conditions.
8. Ms. Bailie's testimony appeared to rely solely on the way
business was customarily done. The business here at hand was unusual,
however, and did not lend itself to handling in the customary manner.
Ms. Bartsch's testimony was based upon her recollection of what, for
her, was a very unsettling matter, and one which she would be likely to
recall. The Area Director had accused her office of playing games and
Mickey-mousing hours. She was the Chief Operating Officer and would
feel personally accused. Also, the change was one which would impact
adversely on the office workload. Ms. Bartsch seemed to be confident of
her facts and honest in her recitation of them. I find Ms. Bartsch to
be a more reliable witness than Ms. Bailie, and credit Ms. Bartsch's
recollection, as set forth in finding 6, supra. Accordingly, it is
found that Respondent's Chief Operating Officer gave notice to the
appropriate Union official, Sandra Bailie, on May 2, shortly before the
noon hour, of the cutback in hours and that it appeared that the cutback
would have to be made effective on Monday morning, May 5; asked Ms.
Bailie if she wanted a formal meeting over the matter; was told by Ms.
Bailie that there was nothing Ms. Bartsch could do about it and so there
was no need for such a meeting; and, after a discussion, agreed with
Ms. Bailie that the employees affected should be told before the day was
over, and that the branch managers should be told to inform the
employees in their offices.
9. On Friday, May 2, at the Downtown Fresno Branch Office,
Supervisor Cindy Robinson called the two parttime CDSs working there
into the office of the Branch Manager. While seated in his chair,
behind his desk, Ms. Robinson "informed" each of the CDSs that,
commencing Monday, they would be working only 32 hours. (TR 40). She
met with each CDS separately. Each meeting lasted about five minutes.
Each CDS gave a clear account of what happened at the meeting with Ms.
Robinson; and I credit their recollections over that of Ms. Robinson,
who appeared somewhat hazy in the account she gave of each meeting.
Marina Magdaleno testified that:
Q. Was Ms. Robinson reading any documents to you?
A. No.
Q. Tell us, to the best of your memory, what was said during
this meeting with Ms. Robinson on May 2nd.
A. When I went into the office she said that she wanted to
inform me that effective Monday, this was on a Friday, that I was
no longer going to be able to work 40 hours a week, that I would
only be able to work 32 hours a week as I had been doing on the
fifth week. She gave me the alternatives of working either four
days a week with one day off, or working four short days and one
long day, just to keep it within the 32 hours. And that I was to
let her know as to what my decision was, because these were the
options she said that were given to her by the DO.
Q. Did you ask Ms. Robinson any questions?
A. Well, I asked her why this had happened. You know, what had
caused the change in our hours. In our prior conversations when
we converted they had stipulated that when we were converted to
permanent part time that it would not affect our 40-hour week, and
we would still be allowed to work.
Q. Did she respond to this question of why?
A. Well, she said she didn't know why. That there was nothing
that she could really tell us because everything was still kind of
up in the air with the DO and the region.
(TR. 40-55).
The other employee, Helen Colmenero testified that:
A. She just said that there was going to be a change in our
tour of duty and our hours. As I said before, instead of working
32 hours every fifth week we would be working 32 hours every week.
I asked her if we had a choice and she said no. And I asked her
why, and she said she had no answers. She didn't know why. And I
asked her from where, you know, did it come from. And she didn't
say; she couldn't give me any answers. She also said that if we
wanted to change our hours from what we had to let her know by the
end of the day if we were going to change them. But I told her
that I'd probably keep what I had, and I would think about it and
let her know by the end of the day if she wanted.
Q. What options did you have as far as changing your hours was
concerned? As far as scheduling your hours, what options were you
offered?
A. Well, we could change them as we wanted, or keep what we
had. She wanted us to let her know so that she could see if it
would conflict with anything, and she would approve it one way or
the other.
(TR. 54-55).
Later in the day each CDS told Ms. Robinson the hours each wanted to
work.
10. The cutback in hours, by 17 percent, worked a financial hardship
on the CDSs. They not only received less money, they also lost annual
and sick leave and suffered an increase in their health insurance
premiums. Ms. Magdaleno worked the 32-hour schedule from May until she
left the employment of Respondent, in December. Ms. Colmenero worked
the 32-hour schedule from May 5 until April 1981, when she was given
"the option to work 40 hours." (TR. 56).
The General Counsel formulates several issues in this case.
Factually and legally, each must be resolved in favor of Respondent.
1. The first issue raised is whether Respondent gave notice, and an
opportunity to bargain, to the Union representative, Sandra Bailie,
prior to implementation of a cutback in hours of bargaining unit
employees. As found in finding 8, above, Respondent's Chief Operating
Officer did give such notice and opportunity. In making this finding, I
have considered the evidence of "habit" in giving notice, as urged by
the General Counsel at pages 8-10 of the brief, and the fact that the
notice here involved was not of the habitual sort given, namely, at
formal meetings where minutes were kept, or by a written notice left in
a sealed envelope on Ms. Bailie's desk. The notice given, was, however,
appropriate to the unusual circumstances faced by the Respondent's Chief
Operating Officer in the Fresno District. She was informed that the
Fresno District had to cease conducting an illegal practice of allowing
parttime employees to work full workweeks. Under these particular
circumstances, it would have been unusual for her to have followed usual
practices. It is more believable that her reaction to this upsetting
news was to give immediate oral notice to the responsible Union
official, Sandra Bailie, and to offer to hold a formal meeting to
negotiate the impact and implementation of the change on the affected
employees.
2. The next issue posed is whether, assuming arguendo that notice
was given, the notice was adequate and sufficient in view of the short
time span between giving the notice, around noon on Friday, May 2, and
the implementing of the change, on Monday, May 5. The evidence which I
have credited establishes that, before implementation, the proper Union
representative, Ms. Bailie, discussed the matter with Ms. Bartsch, an
appropriate official of Respondent; conveyed to Ms. Bartsch the opinion
that nothing could be done about it; agreed that the affected employees
should be notified right away; asked for no delay in implementation;
and rejected the offer of a formal meeting. Under these circumstances,
implementation on the workday following the notice did not render the
notice inadequate or insufficient.
Cases cited by the General Counsel are distinguishable, on their
facts. /3/ Several involves situations where no notice was given to a
Union representative, in the capacity of a Union representative, prior
to implementation. These include United States Air Force, Air Force
Logistics Command, Aerospace Guidance and Metrology Centre, Newark,
Ohio, 4 FLRA No. 70 (1980); Internal Revenue Service, Washington, D.C.,
4 FLRA No. 68 (1980); Department of Treasury, Internal Revenue Service,
Jacksonville District, 3 FLRA No. 103 (1980); Department of Treasury,
Internal Revenue Service, Austin Service Center, Austin, Texas, A/SLMR
1188, No. 1142 (1978); Internal Revenue Service and Brooklyn District
Office, 2 FLRA 587, No. 76 (1980); Aircraft Fire and Rescue Division,
Air Operations Department, Naval Air Station, Norfolk, Virginia, 3 FLRA
No. 18 (1980).
One cited case does hold that giving what was, in effect, only one
day's notice prior to reassigning nine employees was not sufficient;
but in that case the union had invoked the right to negotiate, upon
receiving the notice, and had sought information from the activity in
order to formulate proposals. See Bureau of Government Financial
Operations, Headquarters, 3-CA-1807, OALJ-81-120 (June 12, 1981).
The General Counsel argues that the Union here was presented with a
fait accompli and, for this reason, no significance should be attached
to the Union's failure to request bargaining and submit proposals, as
these would have been futile acts. Cases cited do hold that unions need
not perform futile acts; but the situations were quite different than
the one here involved. In American Enterprises, Inc. and Sheet Metal
Workers International Association, Local Union No. 60, AFL-CIO, 191 NLRB
866, No. 118 (1971) the National Labor Relations Board held that
management violated its duty to bargain even though no request for
bargaining was made by the Union, in a situation where antiunion
activities were so pervasive that a bargaining request would have been a
futile act. And in two other Board cases cited, the unions had
requested bargaining at least once; the requests had been denied; and
the Board ruled that repeated requests need not be made after a firm
refusal. See Solon Manufacturing Company and United Paperworkers
International Union, AFL-CIO, 222 NLRB 542, 543, fn. 4, No. 84 (1976);
Williams Energy Company and Teamsters Local Union No. 104, An Affiliate
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, 218 NLRB 1080, fn. 4, No. 165 (1975).
Finally, in a decision under Executive Order 11491, which controlled
labor relations in the Federal sector before passage of the Statute, it
was held that a union need not request bargaining when it was led to
believe that the change had already been implemented at the time notice
was given to the union. See Army and Air Force Exchange, Hawaii
Regional Exchange, 4 A/SLMR 791, No. 454 (1974), holding that a union
should not be required to perform what "would be essentially a futile
act." 4 A/SLMR at 798.
Here, the General Counsel has not shown, by a preponderance of
evidence, that it would have been "a futile act" for the Union to have
requested bargaining and time to formulate proposals on the impact and
implementation of the cutback in hours. Although Ms. Bartsch did
indicate to Ms. Bailie that the order to cutback the hours of parttime
employees did not give her "any leeway," and that it "appear(ed)" that
the cutbacks would have to be effective on the next workday (TR. 78),
the record shows that Ms. Bartsch also stated to the Assistant District
Manager that: "if she (Ms. Bailie) has any objection to it we'll have a
formal meeting." (TR. 76-77). And she did ask Ms. Bailie "if she had
any objection, or wanted a formal meeting over this." (TR 77). From
such evidence a conclusion cannot be drawn that an accommodation would
not have been made to an objection and request for bargaining by the
Union. It can be as readily concluded that the Union had no proposal to
offer, other than immediate notification to affected employees-- which
was agreed to by Respondent, and done.
3. The General Counsel next argues that each of the two meetings
Cindy Robinson held with a bargaining-unit employee constituted a
"formal discussion," within the meaning of Section 7114(a)(2)(A) of the
Statute, and a violation of the Statute because each was held without
notice to the Union and an opportunity for Union representation.
Section 7114(a)(2)(A) of the Statute provides:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more 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 . . . .
A number of decisions, in the Federal-sector, labor-relations field,
have explored the perimeters of just what constitutes a "formal
discussion." Most were decided under Executive Order 11491 which, in
Section 10(e), similarly provided that a labor organization accorded
exclusive-recognition rights:
. . . shall be given the opportunity to be represented at
formal discussions between management and employees or employee
representatives concerning grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit.
Decisions under the Executive Order are given a special status, by
Section 7135 of the Statute, which provides that:
. . . decisions issued under Executive Order 11491 . . . shall
remain in full force and effect . . . unless otherwise superceded
by the Statute, regulations, or Authority decisions.
A starting point for resolving this issue is that every discussion
between agency management and employees does not call for union
representation, under the law. See National Aeronautics and Space
Administration, NASA, Lyndon B. Johnson Space Center, Houston, Texas,
(hereinafter, "NASA") 5 A/SLMR 633 at 635, No. 457, FLRC No. 74A-95
(1975), holding that a meeting called to solicit employee opinions about
an agency's EEO program was not such a discussion. This and other
decisions declare, or suggest that affirmative answers to the following
questions indicate that a "formal discussion" has taken place.
(a) Was the meeting prearranged, with an agenda and written notice
provided, rather than a spur-of-the-moment encounter. See Department of
Health, Education and Welfare, Region IV, Atlanta, Georgia and
Department of Health and Human Services, Region IV, Atlanta, Georgia
(hereinafter referred to as "HHS, Atlanta"), 5 FLRA No. 58 (1981);
Department of Defense, U.S. Navy, Norfolk Naval Shipyard (hereinafter,
"Norfolk Naval Shipyard"), 6 FLRC 1104, 1108-1109, A/SLMR No. 908, FLRC
No. 77A-141 (1978); and U.S. Environmental Protection Agency
(hereinafter, "EPA"), Case No. 3-CA-1528, OALJ-81-119 (1981).
(b) Did fairly high-level officials of management conduct the
meeting. See Department of the Air Force, 47th Air Base Group (ATC),
Laughlin Air Force Base, Texas ("Laughlin"), 4 FLRA No. 65 (1980);
Federal Aviation Administration, National Aviation Facilities,
Experimental Center, Atlantic City, New Jersey ("FAA"), 4 A/SLMR 648 at
649, 660, 662, 667, No. 438 (1974); U.S. Department of the Army,
Transportation Motor Pool, Ft. Wainwright, Alaska, ("Fort Wainwright"),
3 A/SLMR 291 at 297, No. 278 (1973); U.S. Army Headquarters, U.S. Army
Training Center, Infantry, Fort Jackson Laundry Facility, Fort Jackson,
South Carolina ("Ft. Jackson"), 3 A/SLMR 61 at 62, No. 242 (1973).
(c) Was a record made of the meeting. See Norfolk Naval Shipyard,
ibid; and Fort Jackson, ibid.
(d) Was attendance of employees mandatory. See HHS, Atlanta, ibid.
(e) Was the situs of the meeting in an official's office or away from
the worksite of the employee. See Norfolk Naval Shipyard, 6 FLRC at
1108; and Fort Wainwright, 3 A/SLMR at 296.
(f) Was it called to discuss a subject matter named in Sections
7114(a)(2)(A), or 10(e). See HHS, Atlanta, ibid; Norfolk Naval
Shipyard, ibid; and Department of the Treasury, IRS, Chicago District
("IRS, Chicago"), 8 A/SLMR 1046, at 1047, No. 1120 (1978).
(g) Was a subject matter named in the Sections 7114(a)(2)(A) or 10(e)
actually discussed, even though the meeting was not called for that
purpose; and did management raise the matter. See Norfolk Naval
Shipyard, 6 FLRC at 1109; and IRS, Chicago, ibid.
(h) Was management prepared to enter into a discussion, even though
the employees remained silent and had no responses or questions. See
IRS, Chicago, ibid; Department of Health, Education and Welfare, Region
IX, San Francisco, California ("HEW, SF"), 8 A/SLMR 1273 at 1277, No.
1156 (1978); and Fort Wainwright, 3 A/SLMR at 297.
(i) Was the meeting of sufficient duration to allow for a discussion.
See Fort Wainwright, ibid.
(j) Did the matter discussed "have ramifications for all unit
employees," or was it "integrally related to the formal grievance
process." Norfolk Naval Shipyard, 6 FLRC at 1109, fn. 6. See also Fort
Wainwright, 3 A/SLMR at 300-301; Fort Jackson, ibid; FAA, 4 A/SLMR at
649; Department of the Treasury, U.S. Customs Service, Region VII, Los
Angeles, California, 7 A/SLMR 956 at 960, No. 926 (1977); EPA, ibid;
and Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, Case No. 8-CA-390, OALJ-81-059
(1981).
(k) Were the discussions more than "mere 'counselling' sessions
involving individual employees' conduct." Norfolk Naval Shipyard, ibid.
See also Internal Revenue Service, Mid-Atlantic Service Center, 4 A/SLMR
520 at 524, No. 421 (1974); and Department of Defense, National Guard
Bureau, Texas Air National Guard, 4 A/SLMR 33 at 34-35, No. 336 (1974).
(l) Were the discussions more than "simply discussions between an
employee and her supervisor in the course of day-to-day operations of
the unit." Social Security Administration, Great Lakes Program Center,
Chicago, Illinois, 7 A/SLMR 194, No. 804 (1977). See also Norfolk Naval
Shipyard, ibid.
(m) Were the meetings more than merely "information-gathering
devices." nasa, ibid.
(n) Was the meeting concerned with more than a mere announcement of a
decision already made. See SSA, SF, ibid; and Department of Defense,
National Guard Bureau ("NGB"), Case No. 6-CA-210, OALJ-81-121 (1981).
(o) Was the meeting instigated by management, and not at the request
of an employee or a union. See EPA, ibid.
(p) Did management attempt to agree or bargain with the employees, or
gather information regarding employee sentiments for the purpose of
subsequently persuading the union to accept a position in bargaining
negotiations. See NASA, ibid; Rocky Mountain Arsenal, Denver,
Colorado, 7 A/SLMR 983, No. 933 (1977); and Laughlin, ibid.
(q) Was there any "give-and-take," or debate between management and
the employees in attendance. See Bureau of Field Operations, Social
Security Administration, San Francisco, California, Case No. 9-CA-372,
OALJ-81-145 (1981); NGB, ibid; EPA, ibid; and National Archives, Case
No. 3-CA-993, OALJ-81-139 (1981). /4/
Application of the above criteria to the record made in this case
results in a mix of signals. Some indicia of a "formal discussion" were
present: attendance was mandatory; each meeting was held in the office
of the highest-ranking officer of the branch office, the manager,
although he did not attend; and the subject matter of each meeting, a
cutback in hours, is a matter which Section 7114(a)(2)(A) covers. On
the other hand, each of the two meetings amounted basically to a mere
follow-through on the agreement reached between Respondent and the Union
to notify the employees, at once, of the cutback in hours. The
supervisor was totally uninformed as to the whys and wherefores of the
decision, and could answer no questions on the matter. None of the
usual trappings of a formal meeting were present-- no written notice, no
preplanned agenda, no taking of minutes. The one question asked by the
supervisor of the employees-- what schedule of hours each wanted to
work-- was not shown to have any impact on the unit generally. And the
supervisor did not seek any commitment as to schedules from the
employees at the meeting itself. She made no attempt to bargain with
them and, indeed, had no such authority. Weighing all of these factors,
I cannot conclude that the General Counsel proved, by a preponderance of
the evidence, that any "formal discussion" took place. See 5 C.F.R.
2423.18 for the quantum of proof required of the General Counsel.
The cases cited by the General Counsel, at pages 18-20 of the brief,
are instructive, but distinguishable, in that they involved indicia of a
"formal meeting" not present here. In Department of Health, Education
and Welfare, Region IV, Atlanta, Georgia, 5 FLRA No. 58 (1981) the
orientation sessions at issue were regularly-scheduled ones, held on the
third Wednesday of every month, with established agendas which included
a question-and-answer period between agency personnelists, knowledgeable
about the subject matter, and new employees.
In Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74, No. 22
(1981), the meetings at issue were ones regularly scheduled at the
beginning of each shift and designed to inform crane operators of
important developments. See 6 FLRA at 85. (The focus of this decision
was on whether the Union received adequate notice; and it is not clear
on what basis the Authority found the meetings to be "formal
discussions.") In United States Government Printing Office, Public
Documents Distribution Center, Pueblo, Colorado, Case No. 7-CA-659,
OALJ-81-111 (1981), the meeting was preplanned by a supervisor and a
section chief; prior notice of it was given; it lasted for one hour;
all unit employees were required to attend; and employees responded
with ideas and suggestions. In U.S. Department of the Army,
Transportation Motor Pool, Ft. Wainwright, Alaska, 3 A/SLMR 291, No. 278
(1973), the meeting was "a rather high-level" one, involving three tiers
of supervisors; and "more than a mere announcement" of a change was
made. 3 A/SLMR at 296-297. In U.S. Army Headquarters, U.S. Army
Training Center, Fort Jackson Laundry Facility, Fort Jackson, South
Carolina, 3 A/SLMR 61, No. 242 (1973), notes of the meeting were taken;
and it was attended by not only the immediate supervisor of the employee
who was the subject of the meeting, but also by three other management
officials. In Department of Defense, U.S. Navy, Norfolk Naval Shipyard,
6 FLRC 1104, No. 77A-141 (1978), the Federal Labor Relations Council
reviewed a decision of the Assistant Secretary of Labor, under the
Executive Order, and left undisturbed what it considered to be an
"adequately supported factual determination," that a "formal discussion"
took place where the head of the shop conducted the meeting pursuant to
a formal instruction promulgated by the Commander of the Shipyard. See
6 FLRC at 1109 and 7 A/SLMR 829, 832, No. 908 (1977). /5/ In Internal
Revenue Service, Atlanta District Office, Atlanta, Georgia, 8 A/SLMR
370, No. 1014 (1978), the meeting was one of a series conducted,
periodically, at which notes were taken and reports submitted. The
meeting touched on some 40 items, 3 of which involved matters named in
Section 10(e) of the Order, and were the subject of "comments" and
"conversation" by the participants at the meeting. See 8 A/SLMR at 376.
A case not cited by the General Counsel, but one which I find to be
of some relevance here, is Department of the Treasury, IRS, Chicago
District, 8 A/SLMR 1045, No. 1120 (1978). /6/ It involved three
meetings, two of which were held not to be "formal discussions." These
two concerned wrongful disclosure of taxpayer records, were held "solely
for instructional purposes," and "questions from the audience which
arguably related to personnel policies and practices and matters
affecting working conditions did not transform the meetings into formal
discussions." 8 A/SLMR at 1047. It was noted, in this connection, that
the agency did not raise the questions and did not bypass the union
since the agency officers conducting the meetings "clearly indicated
that (they) could not give any direct or conclusive response to the
employees' questions." 8 A/SLMR at 1047. Here, too, the employees
raised questions; but the agency officer conducting the meeting, Ms.
Robinson, clearly indicated that she could not give any responses.
4. Finally, the General Counsel argues that the facts of record
demonstrates that Cindy Robinson dealt directly with bargaining-unit
employees, in derogation of the Union's status as exclusive
representative. See GC Br 6, 22-23. Reliance is placed on two cases--
U.S. Department of the Air Force, 47th Air Base Group (ATC), Laughlin
Air Force Base, Texas, 4 FLRA No. 65 (1980) and Department of the Navy,
Naval Air Station, Fallon, Nevada, A/SLMR No. 432, FLRC No. 74A-80, 3
FLRC 698 at 701 (1975). The criteria used for making by-pass
determinations are stated in these decisions as follows, with Laughlin,
decided under this Statute, adopting verbatim the criteria of Fallon,
decided under Executive Order 11491, as amended:
In determining whether a communication is violative of the
Order, it must be judged independently and a determination made as
to whether that communication constitutes, for example, an attempt
by agency management to deal or negotiate directly with unit
employees or to threaten or promise benefits to employees. In
reaching this determination, both the content of the communication
and the circumstances surrounding it must be considered. More
specifically, all communications between agency management and
unit employees over matters relating to the collective bargaining
relationship are not violative. Rather communications which, for
example, amount to an attempt to bypass the exclusive
representative and bargain directly with employees, or which urge
employees to put pressure on the representative to take a certain
course of action, or which threaten or promise benefits to
employees are violative of the Order.
In Laughlin, no "formal discussion" or bypass situation was found
when a bowling alley manager unilaterally notified bargaining-unit
employees of a decision to close, for a few days, the snack bar where
they worked, and asked them whether they wished to take annual leave or
leave without pay for the duration of the closure. Found persuasive
were several facts-- the manager was not a personnel officer, or one
shown to have authority to establish personnel policies or practices;
and no bargaining attempt was made. Also, no bypass was found to have
occurred when the manager contacted the employees concerning other work
for them, following a labor-management agreement that such relocation
should be attempted.
The Laughlin facts are markedly similar to those here involved. See
findings 2, 8 and 9, supra. Cindy Robinson was not shown to have any
authority to set personnel policies or practices or engage in collective
bargaining on behalf of SSA, and was used simply as a conduit for
relaying information from the District Office. She made no attempt to
bargain with the employees at the meeting and, beyond announcing the
mandatory change in hours to the employees and listening to their
questions (to which she had no answers), she merely asked them to advise
her, later in the day, of the schedule each wished to work. The
District Office had limited the CDSs to two options only; and Ms.
Robinson had no authority to vary them, and made no attempt to persuade
or pressure the employees in exercising their option.
In the Fallon case an unlawful bypass was found under facts quite
different then the ones presented for decision here. In Fallon the
activity posted a letter, written by the activity's commanding officer
to the union's president, and in which aspersions were case on the
conduct of the union president at a special meeting held to resolve a
bargaining problem and an unfair labor practice charge.
Two are other factually-distinguishable cases are cited by the
General Counsel in which unlawful bypasses were found. One is Internal
Revenue Service, Washington, D.C., 4 FLRA No. 68 (1980) in which
employees were told at a regularly-scheduled group meeting that a new
type of case review was to start immediately for revenue agents. The
other case is Department of Health, Education and Welfare, Social
Security Administration, BRSI, Northeastern Program Service Center, 1
FLRA 508, No. 59 (1979), where the activity, unilaterally, distributed a
questionnaire to employees concerning an activity-wide "flexitime"
approach to work days and soliciting their views regarding matters
within the scope of the collective bargaining relationship.
Judging this case "independently," as Laughlin requires, and
following the criteria there established, I cannot find an unlawful
bypass from the facts of record, for the reasons discussed above.
5. It is concluded that the General Counsel has failed to prove the
allegations of the Complaint, and that dismissal of the Complaint should
be ordered. In view of the above conclusions, it is unnecessary to
resolve additional issues raised by the parties.
It is ordered that the Complaint in Case No. 9-CA-578 be, and it
hereby is, dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: November 30, 1981
Washington, D.C.
/1A/ With respect to the relevance of who initiated a meeting in
determining whether a formal discussion has occurred, see also Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 9 FLRA 48 (1982).
/1/ All dates referenced herein are in 1980, unless otherwise
specified.
/2/ The pertinent provisions of Section 7116 are:
(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; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ One case could not be found. It was named (Federal Railroad
Administration), at page 11 of the brief with a citation indicated as
being "supra." No other citation to this case could be found in the
brief.
/4/ But see also Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, Case No. 9-CA-855,
OALJ-81-174, which departs from the decisions cited in paragraph (q),
supra. This decision involves a 10-minute meeting, called by a
supervisor of a typing pool, attended by four clerk-typists, and held in
the back of the office, where: the supervisor announced the elimination
of the typing pool and the reassignment of the clerk-typists to
individual claims authorizers, explained how the new operation would be
structured, and distributed a memorandum setting forth the changes; and
the employees merely listened. The point is made in the decision that
"to conclude that the announcement in the instant case constitutes a
'discussion between' (the supervisor) and her employees constituted a
strained interpretation of the Statute." See page 9 of the decision.
Nevertheless, it was so concluded because of several holdings of the
Assistant Secretary of Labor, under Executive Order 11491, and pursuant
to Section 7135 of the Statute, which makes such holdings binding until
superceded by the Statute, regulations or Authority decisions. In the
Assistant Secretary cases cited, however, the meetings each involved
several tiers of supervisors in attendance at the meeting; and the
supervisors were knowledgeable and prepared to discuss the subject
matter of the meetings, had the employees elected to ask any questions.
See Fort Wainwright, 3 A/SLMR at 295, 297 and HEW, SF, 8 A/SLMR at 1276,
1277.
/5/ The Council overturned the decision on the ground that the matter
discussed, termination of the probationary employees called to the
meeting because they were found sleeping on the job, did not concern
"grievances, personnel policies and practices, or other matters
affecting general working conditions of employees in the unit." 6 FLRC
at 1111. The case was remanded to the Assistant Secretary, whose
functions were subsequently transferred to the Authority under Section
304 of Reorganization Plan No. 2 of 1978. The Authority, based on the
Council's holding and "rationale," dismissed the complaint. See 1 FLRA
240, No. 32 (1979).
/6/ A petition to review this decision, as to an issue other than
whether the meetings involved were "formal discussion(s)," was denied by
the Authority. See 1 FLRA 137, No. 14.
14 FLRA No. 95; Case No. O-NG-690; May 24, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.45 Contract Out DIGEST NOTES
A proposal is nonnegotiable which would give the union membership on
a steering committee which studies and makes recommendations concerning
the feasibility of contracting out agency functions. The right of
management officials under Sec. 7106(a)(2)(B) to make determinations
with respect to contracting out encompasses not only the right to act in
this regard but also the right to discuss and deliberate concerning the
relevant factors upon which such a determination will be made. When
management establishes formal organizational structures to undertake
such deliberations as an integral part of its substantive
decision-making process, a proposal which would require union
participation would have the effect of directly interfering with
management's statutory right to make decisions.
FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-144
DEPARTMENT OF THE NAVY
Case No. O-NG-690
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises an issue
concerning the negotiability of the following Union proposal.
Does the Union . . . have the right to negotiate for a member
seat on the Commercial Activities (CA), formerly known as the
CITA, steering committee.
The Union describes the functions of the Commercial Activities
steering committee as follows: /1/
(a) the committee makes decisions on hiring procedures or
practices in the functions that are studied for transfer during
the study period prior to letting of the contract. (b) the
committee decides on the content or extent of the contract, i.e.,
whether to contract out all the functions being studied under one
contract versus a number of individual contracts for each function
. . . . (c) guidelines are set by this committee on meetings with
employees in the unit over the definition of work to be performed
and specified in order to write contract specifications.
The Agency is in essential agreement with this description "except
that the decisions referred to by the union are recommendations, not
final decisions which would be implemented without consideration of
matters such as any relationship to the negotiated agreement or the
obligation to bargain." /2/
Thus, the committee on which the Union seeks membership is concerned
with overseeing, or "steering," studies to determine the feasibility of
contracting out Agency functions. The right "to make determinations
with respect to contracting out" is reserved to management by section
7106(a)(2)(B) of the Statute. With regard to this specific right, the
Authority stated, in National Federation of Federal Employees, Local
1167 and Department of the Air Force, 31st Combat Support Group (TAC),
Homestead Air Force Base, Florida, 6 FLRA 574, 578, affirmed sub nom.
National Federation of Federal Employees, Local 1167 v. Federal labor
relations authority, 681 f.2d 886 (D.C. CIR. 1982), ". . . the right of
management officials under section 7106(a)(2)(B) of the Statute to make
determinations with respect to contracting out encompasses not only the
right to act in this regard but also the right to discuss and deliberate
concerning the relevant factors upon which such a determination will be
made." Further, concerning the management rights enumerated in section
7106, in National Federation of Federal Employees, Local 1431 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA
998, 999, the Authority stated: "(W)hen management establishes formal
organizational structures to undertake such deliberations as an integral
part of its substantive decision-making process, a proposal which would
require union participation would have the effect of directly
interfering with management's statutory right to make the decisions
involved." Since, by means of the instant proposal, the Union seeks to
gain a seat on a committee established by management to make
recommendations on actions which management might take pursuant to its
right to contract out, the proposal is inconsistent with section
7106(a)(2)(B) of the Statute and is not within the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
hereby is, dismissed. Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Union Petition for Review at 1-2.
/2/ Agency Statement of Position at 1.
14 FLRA No. 94; Case No. O-AR-531; May 24, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1704. Reversal DIGEST NOTES
The dispute in this matter concerned the agency's termination of
grievant during her probationary period. The arbitrator determined that
no question was raised concerning the arbitrability of the dispute and
considered the grievance on its merits. As his award, the arbitrator
ruled that the termination was for just cause and not violative of the
parties' agreement. Accordingly, the grievance was denied. The union
filed exceptions. The Authority found that the award, by resolving the
grievance on the merits, is deficient as contrary to the provisions of 5
U.S.C. 3321 and 5 CFR part 315, subpart H which preclude coverage by a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee. Consequently, as the grievance was not
arbitrable, the Authority determined that it was unnecessary to address
the grievance on the merits and set aside the award.
SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA PROGRAM SERVICE CENTER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
Case No. O-AR-531
This matter is before the Authority on exceptions to the award of
Arbitrator William O. Eisler filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations.
The dispute in this matter concerns the Activity's termination of the
grievant during her probationary period. The Arbitrator found that no
question was raised concerning the arbitrability of the dispute and
proceeded to consider the merits of the grievance under the parties'
collective bargaining agreement. As his award, the Arbitrator ruled
that the termination was for just cause and not violative of the
parties' agreement. Accordingly, the Arbitrator denied the grievance.
The Union then filed its exceptions contesting various aspects of the
Arbitrator's opinion and award concerning the merits of the grievance.
Because the Authority finds that the grievance was not arbitrable, it
need not address the Union's exceptions on the merits and for the
reasons set forth below concludes that the award must be set aside.
Although arbitrability of the instant grievance was not raised as an
issue, the Authority specifically held in Department of Health and Human
Services, Social Security Administration and American Federation of
Government Employees, Local 3342, 14 FLRA No. 33 (1984), on the basis of
the rationale and conclusion of the court in Department of Justice,
Immigration and Naturalization Service v. Federal Labor Relations
Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by a negotiated
grievance procedure of a grievance concerning the separation of a
probationary employee is precluded by governing law and regulation.
Thus, in terms of this case, the Authority concludes that the award, by
resolving the grievance on the merits, is deficient as contrary to the
statutory and regulatory scheme set forth in 5 U.S.C. 3321 and 5 CFR
part 315, subpart H.
Accordingly, the award is set aside. Issued, Washington, D.C., May
24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
HENRY B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
14 FLRA No. 93; Case No. 4-RO-30011; May 24, 1984.
DIGEST HEADINGS
3000. REPRESENTATION
3153. Special Situations
3153.15 Reorganization DIGEST NOTES
As a result of a reorganization, the Authority found that a unit of
all fire prevention and fire protection employees may be appropriately
included in the comprehensive, activity-wide unit currently represented
by the intervenor under criteria set forth in Sec. 7112(a)(1). After
the reorganization, the firefighters were administratively and
functionally an integral part of the activity; the firefighting
function was incorporated into the mission of the activity; the
firefighters share a common activity-wide competitive area for purposes
of RIFs, a common merit promotion plan with other employees in the unit,
a common performance appraisal program, and a common disciplinary
policy. Historically, the firefighters shared terms and conditions of
employment with other employees in the activity-wide unit and there has
been a pattern of effective dealings and efficient agency operations.
Notwithstanding the finding that an activity-wide unit of
firefighters and other employees would be appropriate, the Authority
concluded that a unit of firefighters separate from the activity-wide
unit could also be viewed as appropriated. The function of firefighters
is unique as reflected by their position descriptions and job
responsibilities. Moreover, they are subject to special pay provisions
and to a retirement system predicated upon the hazardous nature of their
duties. Firefighters along among employees of the activity work 24 hour
alternating shifts and they eat, sleep and work at their stations which
are located in separate buildings at the activity. Firefighters share a
community of interest separate and distinct from other activity
employees and a separate unit of firefighters would promote effective
dealings and efficiency of agency operations.
DEPARTMENT OF THE NAVY, NAVAL STATION
NORFOLK, VIRGINIA
LOCAL 13, FEDERAL FIRE FIGHTERS
ASSOCIATION
LOCAL 2414, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 4-RO-30011
Upon a petition duly filed with the Federal Labor Relations Authority
under section 7111(b)(1) of the Federal Service Labor-Management
Relations Statute (the Statute), a hearing was held before a hearing
officer of the Authority. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, including the parties'
contentions, the Authority makes the following findings: Local 13,
Federal Fire Fighters Association (the Petitioner), seeks to represent a
unit of fire prevention and fire protection employees presently assigned
to the Security Division, Naval Station, Norfolk, Virginia. The
Activity and the Intervenor, Local 2414, American Federation of
Government Employees, AFL-CIO, contend that the unit of employees sought
by the Petitioner has been accreted into the existing Activity-wide unit
currently represented by the Intervenor as the result of a
reorganization which effectively transferred the Security Division,
including the firefighters, from another facility into the Activity
herein. The Activity further contends that the unit sought by the
Petitioner is not an appropriate unit for exclusive recognition under
the criteria set forth in section 7112(a)(1) of the Statute, /2/
alleging that the employees involved do not share a community of
interest separate and distinct from other employees of the Activity, and
that the unit sought would not promote effective dealings and efficiency
of the Activity's operations.
On January 9, 1983, the Security Division (and its complement of
firefighters) was transferred, by means of a reorganization, to the
administrative direction and control of the Activity herein, the Norfolk
Naval Station. The Intervenor, which has remained the exclusive
representative of the Activity's employees at all times since 1965,
entered into a collective bargaining agreement covering the Activity's
employees, effective July 16, 1982, for a period of three years.
The firefighters in the Security Division are now administratively
and functionally an integral part of the Activity, the Norfolk Naval
Station, under the supervision of its commander. While the specific
function of the firefighters is unique, it is incorporated into the
mission of the Activity, which is to provide basic logistical and
security support for all of the Activity's tenants. The employees of
the Security Division are physically located at the Activity as are the
employees in the existing unit represented by the Intervenor. As a
result of the reorganization, the employees of the Security Division,
and the other employees of the Activity who comprise the Intervenor's
existing unit, share a common, Activity-wide competitive area for
purposes of reductions-in-force, a common merit promotion plan, a common
performance appraisal program, and a common disciplinary policy.
For the most part, the employees in the unit sought by the Petitioner
historically have been represented as part of overall units at the
Activity and at the Naval Air Station. Thus, for 15 years the majority
of the firefighters were represented as a part of the existing unit
represented by the Intervenor, while the remainder were similarly
represented at the Naval Air Station. Such a history indicates not only
closely shared terms and conditions of employment, but also a pattern of
effective dealings and efficient agency operations. See, Department of
Defense Dependents Schools, 6 FLRA 297 (1981); The Alaska Railroad,
Federal Railroad Administration, Department of Transportation, 3 FLRA
650 (1980). In view of the foregoing, the Authority finds that the fire
prevention and fire protection employees in the Security Division,
currently assigned to the Norfolk Naval Station, may appropriately be
included in the comprehensive Activity-wide unit currently represented
by the Intervenor under the criteria set forth in section 7112(a)(1) of
the Statute.
Notwithstanding the finding above that an Activity-wide unit would be
appropriate, the Authority also concludes that given the unique
circumstances of this case, a separate unit also would be appropriate.
While the function of the firefighters may be viewed as part of the
overall mission of the Activity, it is nonetheless unique as reflected
by their position descriptions and job responsibilities. Moreover, they
are subject to special pay provisions and to a retirement system
predicated upon the hazardous nature of their duties. Normally they are
hired as firefighters, trained only as firefighters, and progress in
grade and pay within the firefighter position descriptions. There is no
indication of interchange between firefighters and other employees
represented by the Intervenor, and transfers are limited. Firefighters
alone among employees of the Activity work 24 hour alternating shifts
and they eat, sleep and work at their stations. Although those stations
are located within the Activity, they comprise separate buildings which
are devoted only to firefighting activity. In view of the unique
concerns of firefighters, the Authority finds that, in addition to
sharing a community of interest with other Activity employees, this
group of employees has a separate and distinct community of interest.
Also, their unique concerns support a conclusion that a unit limited to
such employees would promote effective dealings and efficiency of agency
operations. The Authority has found that a unit structured around the
special interests of an occupational or craft grouping of employees can,
in certain circumstances, promote effective dealings and efficiency of
agency operations in that it allows the parties to respond in a more
meaningful manner to a functional group of employees who possess
characteristics and concerns limited to that group. /3/
Accordingly, an election is hereby directed in the following unit:
All fire prevention and protection employees of the Security
Division, Fire Protection Branch, Naval Station, Norfolk,
Virginia, excluding all professional employees, management
officials, supervisors and employees described in section
7112(b)(2), (3), (4), (6) and (7) of the Statute.
In view of the rationale stated above, the Authority finds that the
employees should be afforded the opportunity to choose whether or not
they wish to become part of the existing unit represented by the
Intervenor, to be represented by the Petitioner, or not to be
represented at all. Accordingly, if a majority of the employees in the
unit found appropriate votes for the Intervenor, they will have
indicated a desire to be included in the existing Activity-wide unit
represented by the Intervenor and the Regional Director will issue a
certification to that effect. If, on the other hand, a majority of the
employees votes for the Petitioner, they will be taken to have indicated
a desire to be separately represented in the unit found appropriate, and
the Regional Director will issue a certification to that effect. If a
majority of the employees votes for neither the Intervenor nor the
Petitioner, they will have indicated a desire not to be represented, and
the Regional Director will issue a certification to that effect.
An election by secret ballot shall be conducted among employees in
the unit described above as soon as feasible. The appropriate Regional
Director shall supervise or conduct the election, as appropriate,
subject to the Authority's Rules and Regulations. Eligible to vote are
those in the unit found appropriate herein who were employed during the
payroll period immediately preceding the date below, including employees
who did not work during that period because they were out ill, or on
vacation or on furlough, including those in the military service, who
appear in person at the polls. Ineligible to vote are employees who
have quit or were discharged for cause since the designated payroll
period and who have not been rehired or reinstated before the election
date. Those eligible shall vote on whether they desire to be
represented for the purpose of exclusive recognition by Local 13,
Federal Fire Fighters Association; Local 2414, American Federation of
Government Employees, AFL-CIO; or by neither. Issued, Washington,
D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Local 2414, American Federation of Government Employees, AFL-CIO
(the Intervenor) was permitted to intervene on the basis of its status
as the exclusive representative of a unit including all eligible graded
and ungraded Civil Service employees of the U.S. Naval Station, Norfolk,
Virginia (the Activity), pursuant to section 2422.5 of Authority Rules
and Regulations.
/2/ Section 7112(a)(1) provides:
Sec. 7112. Determination of appropriate units for labor
organization representation
(a)(1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in
order to ensure employees the fullest freedom in exercising the
rights guaranteed under this chapter, the appropriate unit should
be established on an agency, plant, installation, functional, or
other basis and shall determine any unit to be an appropriate unit
only if the determination will ensure a clear and identifiable
community of interest among the employees in the unit and will
promote effective dealings with, and efficiency of the operations
of, the agency involved.
/3/ See, e.g., Panama Canal Commission, 5 FLRA 104 (1981).
14 FLRA No. 92; Case No. 3-CA-1964; May 24, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate DIGEST NOTES
The Authority found that the agency did not violate Sec. 7116(a)(1)
and (5) of the Statute by refusing to negotiate with the union over the
impact and implementation of its validation study of the Employee Plans
Case Assignment Guide (the Guide) where the union's bargaining request,
which was made nearly three weeks after notification was given and which
was made on the same date as the study was scheduled to begin, was not
timely made. Consequently, the agency had no obligation to bargain and
its failure to do so cannot be found to have violated the Statute.
The Authority found that the agency did not violate Sec. 7116(a)(1)
of the Statute when it conducted interviews with unit employees
concerning its Employee Plans Case Assignment Guide as a part of a study
where the evidence indicated that the agency was merely attempting to
gather factual information to determine whether its case assignment
procedures were working as envisioned and where there was no attempt to
deal directly with unit members or to undermine the status of the union
as the employees exclusive representative.
INTERNAL REVENUE SERVICE (DISTRICT,
REGION, NATIONAL OFFICE UNIT)
NATIONAL TREASURY EMPLOYEES UNION
Case No. 3-CA-1964
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Authority" in accordance with
section 2429.1(a) of the Authority's Rules and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits, and the parties'
contentions, the Authority finds:
The complaint herein alleges that the Respondent, Internal Revenue
Service (District, Region, National Office Unit), violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) /1/ by refusing to negotiate with the National
Treasury Employees Union (NTEU) over the impact and implementation of
its validation study of the Employee Plans Case Assignment Guide (the
Guide) /2/ and by bypassing NTEU when the Respondent conducted
interviews with unit employees concerning the Guide as a part of the
study.
The stipulated record shows that the Respondent notified NTEU by
letter dated October 7, 1980, that a validation study of the Guide would
be conducted, and that as a part of the study, unit employees would be
interviewed to gather information on the accuracy of the Guide. The
letter listed a number of locations where the interviews would be held
beginning October 27, 1980, and continuing into December of that year.
By letter dated October 27, 1980, NTEU requested bargaining over the
Guide and expressed its opposition to any attempt by the respondent to
select the employees to be interviewed or to hold the interviews without
inviting NTEU's representatives to attend. On November 14, 1980, NTEU
notified the Activity that it was still waiting for an answer to its
request to negotiate. On November 18, 1980, the Respondent informed
NTEU that its position with respect to the employee interviews was the
same as that contained in a June 1980 letter to NTEU concerning a prior
incident involving such employee interviews. In that letter, the
Respondent expressed the view that the interviews with unit employees
were not formal discussions within the meaning of section 7114(a)(2)(A)
of the Statute /3/ at which NTEU was entitled to be represented.
The General Counsel here argues that while the Guide itself, and the
decision to validate it, are not negotiable, the impact and
implementation of the decision to validate the Guide are negotiable.
Thus, the General Counsel argues that the procedures for implementing
the survey and, specifically, the method of conducting employee
interviews should have been the subject of negotiations, and that the
Respondent's failure to bargain constitutes a violation of section
7116(a)(1) and (5) of the Statute. The General Counsel further argues
that the Respondent bypassed NTEU in violation of section 7116(a)(1) and
(5) of the Statute by conducting interviews with unit employees without
having provided NTEU an opportunity to be present at such interviews.
The Respondent contends that it had no obligation to bargain over the
impact and implementation of the validation study, but that even
assuming such a bargaining obligation existed, NTEU's request to
negotiate was untimely as it was dated the day the study began and was
received after the implementation date, although notice was given
approximately three weeks earlier.
As previously noted, the Respondent informed NTEU of the validation
study by letter dated October 8. Also contained in that letter was
notification that employees would be interviewed as a part of the study
along with a list of the Respondent's locations to be visited and
corresponding dates commencing on October 27, 1980. The record
indicates that NTEU's request to bargain was dated October 27, the date
the study was scheduled to begin. When a union has adequate notice of
when a change is to be implemented, it must make a timely request for
impact bargaining. See United States Department of Defense, Department
of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA 623 (1982).
In the Authority's view, NTEU's bargaining request, which was made
nearly three weeks after notification was given and which was made on
the same date as the study was scheduled to begin, was not timely made.
Under these circumstances, the Respondent had no obligation to bargain
and its failure to do so cannot be found to have violated the Statute.
/4/
With respect to the allegation that the Respondent bypassed NTEU by
conducting interviews with unit employees in violation of section
7116(a)(1) and (5) of the Statute, the Authority previously has stated
that not all direct communication between management and its employees
is prohibited. See Kaiserslautern American High School, Department of
Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982). In
the instant case, the Respondent was merely attempting to gather factual
information to determine whether its case assignment procedures were
working as envisioned when the Guide was created, and involved no
attempt to deal directly with unit members or to undermine the status of
NTEU as the employees' exclusive representative. See Internal Revenue
Service (District, Region, National Office Unit), 11 FLRA no. 23 (1983),
aff'd sub nom. national treasury employees union v. Federal Labor
Relations Authority, No. 83-1295 (D.C. Cir. Jan. 26, 1984); Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
307 (1982). Thus, the Authority concludes that this allegation of the
complaint also must be dismissed.
IT IS ORDERED that the complaint in Case No. 3-CA-1964 be, and it
hereby is, dismissed. Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 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;
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ The Employee Plans Case Assignment Guide is used to rate cases
for assignment to appropriate grade level employees.
/3/ Section 7114(a)(2)(A) provides:
Sec. 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.
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more 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(.)
/4/ In view of this disposition, it is unnecessary to pass upon the
Respondent's arguments with respect to the scope of the bargaining
obligation over the validation study.
14 FLRA No. 91; Case No. O-NG-417; May 24, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.05 Assign Employees
2152.70 Emergency Actions
2200. Subjects of Bargaining
2201. At Election of Agency
2210. Mandatory Subjects of Bargaining
2210.01. Procedures for Implementation of Agency's Decision
2600. Conditions for Review
2601. Proposal Alleged To Be Inconsistent With Federal Law
2700. Petition for Review
2702. Timeliness DIGEST NOTES
A proposal is negotiable that provides that vacancies on the Monday
through Friday shift will be offered to the most senior employee in the
same job title, series and grade on any irregular shift. The proposal
establishes a procedure for determining when, i.e., on which shift, an
employee will perform his previously established assignment. (Proposal
1, 1st disputed sentence)
A proposal is outside the duty to bargain which provides that, during
a reduction-in-force (RIF), vacancies on the Monday to Friday shift will
be offered to employees on the basis of seniority. The proposal is
inconsistent with OPM regulations governing RIFs which provide, among
other things, that employees will compete for retention in the agency
based on their relative retention standing which is determined by such
factors as tenure, military preference, length of service and
performance rating. (proposal 1, 2nd and 3rd disputed sentences)
A proposal is negotiable which provides that once an employee has
been assigned to any shift he will not be displaced by any transferred
or displaced employee regardless of the transferee's seniority except in
the case of a RIF. The proposal assures that employees will not have
their shift assignments changed so long as the composition and
responsibilities of their shifts remain unchanged. Thus, the proposal
only addresses the location and times at which employees will perform
the previously assigned duties of their positions and it is not
inconsistent with management's rights to assign employees and work under
7106(a)(2)(A) and (B). (proposal 1, 4th disputed sentence)
A proposal is outside the duty to bargain that precludes management
from reassigning employees without providing three days advance notice.
The proposal violates management's right under 7106(a)(2)(D) "to take
whatever actions may be necessary to carry out the agency mission during
emergencies." (proposal 2)
An agency may, but is not obligated to, bargain on proposals
concerning nonbargaining unit employees. Since the agency has elected
not to bargain on proposals that affect nonbargaining unit employees,
union proposals concerning holiday pay and sick leave are outside the
duty to bargain to the extent they affect nonbargaining unit employees.
(proposals 3 and 4)
A proposal is outside the duty to bargain that absolutely bars the
assignment of higher level duties to bargaining unit employees if such
assignments were made "solely for the convenience of the Employer." The
Authority has previously held that proposals seeking to prohibit the
assignment of specified duties to certain bargaining unit employees or
the assignment of certain work to specific circumstances are
inconsistent with management's right under 7106(a)(2)(B) to assign work.
(proposal 5)
A proposal is outside the duty to bargain that would require
temporary promotions be offered to the senior employees in the
organizational elements having the vacancies. The proposal is
inconsistent with management's right under 7106(a)(2)(A) to assign
employees. (proposal 6)
A proposal is negotiable that requires, as a general rule,
assignments to employees be consistent with their current grade levels.
The proposal does not violate management's right to assign employees
under Sec. 7106(a)(2)(B). (proposal 7, 1st disputed sentence)
A proposal is outside the duty to bargain that concerns the temporary
reassignment of employees to work not usually performed by them and
requires that selection be in inverse order of seniority. The proposal
interferes with management's right under Sec. 7106(a)(2)(A) to assign
employees. (proposal 7, sections 7a & 7b)
A proposal is outside the duty to bargain that imposes licensing
requirements and physical considerations, i.e. who may undertake certain
assignments, upon management's right under 7106(a)(2)(A) to assign
employees. (proposal 7, section 7d)
Proposal is nonnegotiable that precludes agency access to the
negotiated grievance and arbitration procedure. Section Sec. 7121(a)(1)
provides "any collective bargaining agreement shall provide procedures
for the settlement of grievances" and Sec. 7121(b)(3)(C) provides that
grievances not satisfactorily settled through the negotiated grievance
procedure "be subject to binding arbitration which may be invoked by
either the exclusive representative or the agency". In addition, Sec.
7103(a)(9) defines "grievance" so as to specifically encompass "agency"
complaints. However, the union proposal would define "grievance" solely
as a matter of general concern or dissatisfaction related to an
employee's employment and limit access to the negotiated grievance
procedure to the union and employees in the bargaining unit. (proposals
8 and 9)
The union's petition for review of an allegation of nonnegotiability
was not untimely where the union had previously withdrawn its untimely
petition for review in response to an unsolicited agency allegation that
proposals were nonnegotiable before the Authority took any action.
Subsequently, the union requested a written allegation of
nonnegotiability from the agency and filed the instant petition within
15 days of service on it of the agency's written allegation.
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO-CLC, LOCAL
1267
DEFENSE LOGISTICS AGENCY, DEFENSE
DEPOT TRACY, TRACY, CALIFORNIA
Case No. O-NG-417
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
relating to the negotiability of nine Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Article VII, Basic Work Week and Hours of Work Section 3:
Assignment of employees to less desirable work week and shifts
will be on the basis of inverse seniority. Vacancies that occur
on the Monday through Friday shift will be offered to the most
senior employee in the same job title, series and grade on any
irregular shift. Vacancies filled on the Monday through Friday
day shift during reduction-in-force will be offered to the most
senior employee regardless of shift. If the senior employee does
not desire to change, the offer will be extended to the next
senior employee. Once an employee has been assigned to any shift
he will not be displaced by any transferred or displaced employee
from this or any other installation regardless of the transferee's
seniority except in the case of reduction-in-force. The Employer
agrees that records will be kept of shift work performed or
scheduled. A current Reassignment Seniority List will be provided
to the Union to aid in resolving specific complaints concerning
shift assignments. (The underlined portion of the proposal is in
dispute.)
The first disputed sentence of Union Proposal 1 requiring that
otherwise qualified employees be offered, on the basis of seniority, the
opportunity to fill vacancies on the Monday through Friday shift is to
the same effect as Union Proposal 1 in American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1982) which the Authority found not to violate
management's rights to assign work or employees pursuant to
section7106(a)(2) of the Statute. In the cited case, the disputed
proposal provided that when an assignment required overtime it would be
performed by the employee whose responsibility it was during normal duty
hours. In finding the proposal negotiable, the Authority noted that the
proposal was merely concerned with when employees would perform duties
previously assigned to their positions. In like manner the disputed
first sentence in the instant case provides a procedure for determining
when, i.e., on which shift, an employee will perform his previously
established assignment. Further, contrary to the Agency's contention,
this sentence does not constitute a mandate to fill all vacancies
occurring on the Monday through Friday shift. Rather the sentence only
requires that when management decides to "offer" a vacancy, it will do
so in the prescribed manner. Thus, management is left with the
discretion to determine whether a vacancy will be filled.
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 first
disputed sentence of Union Proposal 1. /3/
The Agency construes the second and third disputed sentences of Union
Proposal 1 as intended to govern the placement rights of bargaining unit
employees during a reduction-in-force (RIF). In the absence of any
challenge to that interpretation, it is adopted by the Authority for the
purpose of this decision. As the Authority noted in International
Federation of Professional and Technical Engineers, AFL-CIO, NASA
Headquarters Professional Association and National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982), "a
RIF must be carried out in accordance with regulations issued by the
Office of Personnel Management (OPM) pursuant to statute . . . ." In
examining the relevant OPM regulations, the Authority observed that
they:
. . . specify that within each competitive level, employees
will compete for retention in the agency based on their relative
retention standing. The "retention standing" of an employee is
his or her rank relative to the other employees in the competitive
level based on tenure, military preference, length of service, and
performance rating.
The disputed sentences, requiring that, during a RIF, vacancies on
the Monday to Friday day shift be offered to employees on the basis of
seniority are inconsistent with the quoted OPM RIF regulations which are
Government-wide in scope and require that tenure, military preference
and performance rating also be considered in determining an employee's
entitlement to a given position during a RIF. Thus, these sentences are
outside the Agency's duty to bargain pursuant to section 7117(a)(1) of
the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to the second and third disputed sentences of Union Proposal 1
be, and it hereby is, dismissed.
The fourth disputed sentence of Union Proposal 1 does not prevent
management from deciding to abolish a shift or organizational segment
which would affect an employee's ongoing shift assignment. Rather, the
Authority concludes that the intent of this sentence is to assure that
employees will not have their shift assignments changed so long as the
composition and responsibilities of their shifts remain unchanged. In
such circumstances, the proposal only addresses the location and times
at which employees will perform the previously assigned duties of their
positions. Since such matters are not inconsistent with management's
right to assign employees and work pursuant to section 7106(a)(2)(A) and
(B) of this Statute, the sentence is within the duty to bargain. See
Department of Agriculture, Food Safety and Quality Service, 9 FLRA 663
(1982).
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 fourth
disputed sentence of Union Proposal 1. /4/
Article VIII. Basic Work Week and Hours of Work Section 5: It
is agreed except in a case of emergency that two weeks advance
written notice will be provided to an employee whose basic work
week or shift hours are to be changed, but in no event shall there
be less than three working days advance written notice of such
changes. (The underlined portion of the proposal is in dispute.)
Union Proposal 2 conditions the Agency's response to emergencies
necessitating the reassignment of bargaining employees upon the giving
of three days notice of the reassignments. In this respect, the
proposal is to the same effect as Provision 1 in Association of Civilian
Technicians, Inc., Pennsylvania State Council and the Adjutant General,
Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346
(1981), requiring verification and a declaration by a specified
supervisor before taking emergency action, which the Authority held to
violate management's right pursuant to section 7106(a)(2)(D) of the
Statute "to take whatever actions may be necessary to carry out the
agency mission during emergencies." Hence, based on Department of
Military Affairs, and the reasons stated therein, Union Proposal 2 is
outside the Agency's duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to Union Proposal 2 be, and it hereby is, dismissed.
Article IX, Holidays
Section 3: In accordance with applicable regulations:
a. Employees serving on an appointment not limited to ninety
(90) days or less or who have served on consecutive appointments
in excess of ninety (90) days without a break in service shall
receive eight (8) hours pay at their regular hourly rate plus any
appropriate differentials on all days defined as holidays on which
they are not required to work.
c. Employees serving on an appointment not limited to ninety
(90) days or less or who have served on consecutive appointments
in excess of ninety (90) days without a break in service working
on a holiday within their basic work week shall receive double
their regular hourly rate and appropriate shift differential for
all hours not to exceed eight (8) hours worked on holiday.
Article X, Sick Leave
Section 4c: Employees serving under a limited appointment, or
one which will be terminated on a specified date, may be advanced
only the amount which they would earn during the remainder of
their appointment. (Proposals 3 and 4 are disputed in their
entirety.)
The Agency's sole contention as to Union Proposals 3 and 4 is that
they are outside the duty to bargain to the extent they apply to
nonbargaining unit employees. In this regard, the Agency asserts,
without contravention, that the temporary employees referenced in Union
Proposal 3, employees appointed for a period of more than 90 days but
less than one year, and the temporary employees referenced in Union
Proposal 4, employees serving a limited appointment or one which will be
terminated on a specified date, are outside the bargaining unit
represented by the Union herein. It is well settled that, under section
7117 of the Statute, an agency may, but is not obligated to, bargain on
proposals concerning nonbargaining unit employees. See, e.g.,
International Association of Fire Fighters, Local F-61 and Philadelphia
Naval Shipyard, 3 FLRA 438 (1980) (Union Proposal III). Thus, since the
Agency has elected not to bargain on proposals 3 and 4 to the extent
they affect nonbargaining unit employees, Union Proposals 3 and 4 are to
that extent outside the Agency's obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
concerns Union Proposals 3 and 4 be, and it hereby is, dismissed.
Article XVII, Promotions and Assignments
Section 5: The Employer agrees that no employee will be loaned
out, detailed, assigned, reassigned, or have his position
description rewritten to evade the principle of competitive
recruitment as outlined by the Agreement and the appropriate
regulations nor to avoid payment of additional compensation to an
employee when working in a higher graded classification.
Assignments to perform higher level duties shall be held to a
minimum and the Employer agrees such assignment will not be abused
nor made solely for the convenience of the Employer. Time spent
working at higher level duties may be logged by an employee on a
form supplied by the Employer. The form will be submitted to the
immediate supervisor for verification and signature at the end of
each pay period and retained by the employee. The employee may
compile these forms to be submitted for inclusion in the Official
Personnel File at such time as the employee desires. (The
underlined sentence of this proposal is in dispute.)
It is well established that a union proposal seeking to prohibit the
assignment of specified duties to certain bargaining unit employees is
inconsistent with management's right, pursuant to section 7106(a)(2)(B)
of the Statute "to assign work." See, e.g., Association of Civilian
Technicians and State of Georgia National Guard, 2 FLRA 581 (1980). A
proposal which limits the assignment of certain work to specific
circumstances is likewise violative of section 7106(a)(2)(B). See New
York State Nurses Association and Veterans Administration Medical
Center, Bronx, New York, 11 FLRA No. 94 (1983). The disputed portion of
Proposal 5 herein would absolutely bar the assignment of higher level
duties to bargaining unit employees if such assignments were made
"solely for the convenience of the Employer." In this regard, the Agency
contends, without contravention by the Union, that "all assignments of
employees are made 'for the convenience of the Employer,' to wit, to
perform the mission of the Employer." Therefore, the Authority concludes
that, as the disputed part of Union Proposal 5 can be reasonably
construed as prohibiting the assignment of higher level duties
circumstances where management may find it necessary to do so, it is
inconsistent with the right "to assign work" pursuant to section
7106(a)(2)(B) and outside the Agency's obligation to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
relates to Union Proposal 5 be, and it hereby is, dismissed.
Article XVII, Promotions and Assignments
Section 6: Assignment of employees to positions at a higher
grade will be by temporary promotion when such assignments are for
two consecutive weeks or longer. Promotions in such cases will be
made effective at the earliest practicable time, under governing
agency regulations and procedures. This does not preclude
management from effecting temporary promotions to commence at the
start of an employee's assignment to a higher graded position when
sufficient advance notice of the vacancy is available in which to
process such a promotion.
Temporary promotions, under the provisions of the section, are
subject to the following selection procedure. The most senior
employee in the same occupational series permanently assigned to
the same organizational element in which the vacancy occurs will
be offered the temporary promotion. Any employee so selected must
meet minimum legal and Civil Service Commission qualification
requirements.
Promotions under this section cannot extend beyond 60 calendar
days. Any temporary promotion action affecting a single employee
that extends beyond 60 calendar days must be made under the merit
promotion procedure as contained in agency regulations. (The
underlined portion of the proposal is in dispute.)
The disputed part of Union Proposal 6 would require that temporary
promotions be offered to the senior employees in the organizational
elements having the vacancies. The proposal therefore governs the
temporary assignment of employees to different, higher grade positions.
In this respect, the disputed portion is to the same effect as Union
Proposals IV through VI, requiring that selections for temporary
assignments to different positions, specifically details and loans, be
based on seniority, in American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense
v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In that case,
the Authority found the cited proposals to be inconsistent with
management's right pursuant to section 7106(a)(2)(A) of the Statute to
assign employees. Hence, based on Air Force Logistics Command, and the
reasons stated therein, the disputed part of Union Proposal 6 herein is
outside the duty to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
concerns the disputed portion of Union Proposal 6 be, and it hereby is,
dismissed.
Article XVII, Promotions and Assignments
Section 7. The Employer agrees that:
a. Every effort will be made to assign unit employees to work
appropriately to their classification. In the event that it
becomes necessary to temporarily assign employees to work at a
lower level than the classification held, or where the work is
appropriate to the classification but is unusually dirty or
arduous, the Employer agrees that affected employees within the
same work center will be assigned on an inverse seniority basis
from the higher classification level most closely related to the
duties required to be performed. (All of Section 7a is in
dispute.)
b. Assignment of employees to work at the same grade level in
operational areas outside of their designated work center will be
made on the basis of inverse seniority. The employee's seniority
shall prevail in the work area for terms and conditions of this
Agreement. It is the responsibility of the losing supervisor to
provide the employee's seniority to the gaining supervisor of the
affected employee. This may be accomplished by annotating the
employee's Service Computation Date on the daily Labor Exception
Card which the employee takes to his temporary work area, or any
other expedient when the annotation on the Labor Exception Card is
impractical in individual circumstances. (The underlined portion
of Section7b is in dispute.)
c. It is further agreed that when there are more employees in
a particular classification than there are pieces of available
equipment, the employee permanently or temporarily assigned to the
work area having the most seniority has the right to be assigned
the equipment. (All of Section 7c is in dispute.)
d. In making assignments of personnel, licensing requirements
and physical limitations imposed by competent medical authority
must be observed. (All of Section 7d is in dispute.)
Contrary to the Agency's contention, the first sentence of Section 7a
is not inconsistent with the right, pursuant to section 7106(a)(2)(B) of
the Statute, "to assign work." Rather, this sentence only requires that,
as a general rule, assignments to employees will be consistent with
their current grade levels. Thus the first sentence is to the same
effect as the first sentence of Union Proposal 2, providing that
"employees can expect assignments to be made within reasonable bounds,
consistent with grade level, position description and performance," in
American Federation of Government Employees, AFL-CIO, Local 1858 and
Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
Alabama, 10 FLRA 440 (1982), which the Authority found to be within the
duty to bargain. Hence, based on U.S. Army Missile Command, and the
reasons stated therein, the first sentence of Section 7a is within the
duty to bargain.
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 first
sentence of section 7a. /5/
The remaining part of Section 7a and the disputed first sentence of
Section 7b clearly are concerned with the temporary reassignment of
employees to work not usually performed by them, i.e., work at a lower
grade level, "unusually arduous or dirty" work, or equivalent grade
level work in other operational areas. In all these circumstances,
selection for assignment would, under the proposal, be governed by
inverse order of seniority. In this respect, these disputed provisions
are to the same effect as Union Proposal IV through VI in Air Force
Logistics Command, 2 FLRA 604, which the Authority found to "interfere
with the right of the agency to assign employees." Hence, based on Air
Force Logistics Command, and the reasons stated therein, these
provisions are outside the duty to bargain because of their
inconsistency with section 7106(a)(2)(A) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
relates to the remaining part of Section 7a and the first sentence of
Section 7b be, and it hereby is, dismissed.
Section 7c, requiring that, in circumstances where more than one
employee must use the same piece of equipment to carry out a work
assignment, the matter will be resolved by application of seniority, is
inconsistent with management's right pursuant to section 7106(a)(2)(B)
of the Statute to assign work. Section 7c would require the
reassignment of equipment, to more senior employees regardless of
whether the employees currently using the equipment have completed their
work. Thus, Section 7c would effectively require assignment of work
based on seniority. The Authority has consistently held such
requirements to be inconsistent with the right, pursuant to section
7106(a)(2)(B), to assign work. See, e.g., International Organization of
Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA No. 29
(1983) (Provision 3).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as it
concerns Section 7c be, and it hereby is, dismissed.
Section 7d of Union Proposal 7 would impose limitations, i.e.,
licensing requirements and physical considerations, upon management's
right to assign employees. 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) the Authority stated, regarding Union Proposals IV through
VI, that an agency's right, under section 7106(a)(2)(A) of the Statute,
to assign employees, "includes the discretion to determine which
employee will be assigned." Similarly, the Authority found, in National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980), that a
proposal requiring in part that temporarily disabled employees be
detailed to work compatible with their limitations violated management's
right to assign employees pursuant to section 7106(a)(2)(A) of the
Statute. Because Section 7d herein imposes limitations on who may
undertake certain assignments, it likewise interferes with the right to
assign employees and for the reasons stated in Air Force Logistics
Command and Air Force Contract Management Division, is outside the duty
to bargain.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review relating
to Section 7d be, and it hereby is, dismissed.
Article XXII, Grievance Procedure
Section 2: For the purpose of this Article, a grievance is any
matter of personal concern or dissatisfaction to an employee which
is related to his employment. This procedure shall be the
exclusive procedure available to the Union and employees of the
unit in resolving grievances. This grievance procedure may not
cover matters for which a statutory appeal right exists. (The
underlined portion of the proposal is in dispute.)
Article XXIII, Arbitration Procedure
Section 1: If procedures in Article XXII fail to resolve a
grievance and the Union wishes to pursue the matter further, the
grievance shall be referred to arbitration. The request for
arbitration shall be made within thirty (30) calendar days from
the date of the Commander's decision in Step 4 of the Grievance
Procedure. (The underlined portion of this proposal is in
dispute.)
In agreement with the Agency, the Authority finds that as Union
Proposals 8 and 9 would preclude the Agency's access to the negotiated
grievance and arbitration procedures they are inconsistent with section
7121 of the Statute. In this regard, section 7121 provides in
subsection (a)(1) that "any collective bargaining agreement shall
provide procedures for the settlement of grievances" and further, in
subsection (b)(3)(C) that any grievances not satisfactorily settled
through the negotiated grievance procedure "be subject to binding
arbitration which may be invoked by either the exclusive representative
or the agency." In addition section 7103(a)(9) of the Statute defines a
"grievance" so as to specifically encompass "agency" complaints. /6/
Union Proposal 8, however, would define a "grievance" solely as a matter
of general concern or dissatisfaction related to an employee's
employment and limit access to the negotiated grievance procedure to the
Union and employees in the bargaining unit. Union Proposal 9 provides
that request for arbitration may be initiated by the Union only.
Therefore, because Union Proposals 8 and 9 are inconsistent with the
requirements of the Statute itself, in that they effectively bar the
Agency from access to the negotiated grievance and arbitration
procedure, the Agency's duty to bargain does not extend to them.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review, as it
relates to Union Proposals 8 and 9, be, and it hereby is, dismissed.
Issued, Washington, D.C., May 24, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Agency's contention that the Union's petition for review
should be dismissed as untimely filed cannot be sustained. The record
shows that while the Union initially filed an untimely petition for
review in response to an unsolicited Agency allegation that the
proposals were nonnegotiable, it withdrew this petition before the
Authority took any action and subsequently requested a written
allegation of nonnegotiability from the Agency. The instant petition
was timely filed with the Authority within 15 days of service on it of
the Agency's written allegation rendered in response to that request in
accordance with section 2424.3 of the Authority's Rules and Regulations.
Moreover the Union corrected, within the time limit set by the
Authority, its failure to serve a copy of the petition upon the Agency
head. Therefore, the petition is properly before the Authority. See
American Federation of Government Employees, AFL-CIO, Council 214 and
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 8 FLRA 425 (1982).
/2/ The Agency, in its Statement of Position, treated each disputed
sentence of this proposal separately. Accordingly, the Authority will
address the proposal in the same manner.
/3/ In finding this sentence to be within the duty to bargain, the
Authority makes no judgment as to its merits.
/4/ In finding this sentence to be within the duty to bargain, the
Authority makes no judgment as to its merits.
/5/ In deciding that the first sentence of Section 7a is within the
duty to bargain, the Authority makes no judgment as to its merits.
/6/ Section 7103 provides, in pertinent part:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
(9) "grievance" means any complaint--
(A) by any employee concerning any matter relating to the
employment of the employee;
(B) by any labor organization concerning any matter relating to
the employment of any employee; or
(C) by any employee, labor organization, or agency concerning--
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement; or
(ii) any claim violation, misinterpretation, or misapplication
of any law, rule, or regulation affecting conditions of
employment(.)
14 FLRA No. 90; Case No. O-AR-215; May 21, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1603. Award Conflicts with Appropriate Rule
1604. Grounds Applied in Private Sector
1650. No Basis for Review
1652. Non-Statutory Exclusions
1652.01 Disagreement with Arbitrator's Reasoning
1652.05 Exceptions Not Supported by Sufficient Facts and
Circumstances
1700. Implementation of Award
1701. Clarification and Interpretation DIGEST NOTES
The dispute in this matter concerned the assessment, under provisions
of Army Regulation 735-11, of pecuniary liability against grievant for
damage to a landing vehicle. The arbitrator: (1) found that there was
no substantial evidence to prove just cause to impose pecuniary
liability; (2) granted the grievance; (3) vacated the financial
responsibility assessment against the grievant; (4) ordered "that this
matter not be reopened for further proceedings against this grievant.";
and (5) awarded attorney fees to the grievant in the amount of $3500.
In its first exception, the agency contended that the portion of the
award granting the grievance because there was no substantial evidence
to support a financial assessment against the grievant is based on
nonfacts. The Authority denied the exception since: (1) the arbitrator
held that there were numerous deficiencies in the investigation and
numerous unanswered and uninvestigated factors which might have been
either wholly or completely the proximate cause of the loss in this
case; and (2) the agency did not establish that the alleged "nonfacts"
involved facts that were objectively ascertainable, were the central
facts underlying the award, were concededly erroneous, and that but for
the arbitrator's misapprehension, the arbitrator would have reached a
different result.
In its second exception, the agency contended that the arbitrator's
order that this matter not be reopened for further proceedings against
the grievant is contrary to law and regulation. The Authority denied
the exception since the agency failed to establish that: (1) the award
infringed in any manner on management's right, pursuant to section
7106(a)(1) of the Statute, to determine its internal security practices
so as to prevent destruction of agency property; and (2) the award is
contrary to the general statutory and regulatory provisions pertaining
to the accounting for Army property. Moreover, in vacating the
assessment and barring further proceedings against the grievant, the
arbitrator essentially ruled that the issue of the grievant's liability
was before him for final resolution. Consequently, the general
statutory and regulatory provisions pertaining to the accounting for
Army property, including the broad right to conduct reports of survey as
set forth in AR 735-11, cannot be used to circumvent the arbitrator's
resolution of the submitted dispute.
In its third exception the agency contended, relying on the
provisions of the Back Pay Act, that the arbitrator's award of attorney
fees is not authorized by law. Since the arbitrator failed to provide
an articulated decision as part of his award of attorney fees in the
amount of $3500, the Authority remanded the award to the parties to have
them obtain a clarification and interpretation by the arbitrator and
directed the arbitrator to consider the following specific criteria:
(1) a threshold finding that the grievant has been affected by an
unjustified or unwarranted personnel action which has resulted in the
withdrawal or reduction of grievants's pay, allowances, or
differentials; (2) an award of attorney fees must be in conjunction
with an award of backpay to the grievant on correction of the personnel
action; (3) an award of attorney fees must be reasonable and related to
the personnel action; and (4) the award of attorney fees must be in
accordance with the standards established under 5 U.S.C.section 7701(g).
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS
UNITED STATES ARMY SUPPORT
COMMAND, HAWAII
Case No. O-AR-215
This matter is before the Authority on exceptions to the award of
Arbitrator Stuart M. Cowan filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition.
The dispute before the Arbitrator herein concerns the assessment
under provisions of Army Regulation (AR) 735-11 (Accounting for Lost,
Damaged and Destroyed Property) of pecuniary liability against the
grievant for damage to a landing vehicle assertedly caused by his
negligence. A grievance was filed and submitted to arbitration
protesting this assessment.
The Arbitrator reviewed the investigation of the property damage
(report of survey) on which the assessment was founded and determined
"that there is no substantial evidence in this case to prove by a
preponderance of evidence or otherwise that there is just cause to
impose pecuniary liability upon Grievant." Accordingly, as his award in
this respect, the Arbitrator granted the grievance and vacated the
financial responsibility assessment against the grievant. He also
ordered in this respect "that this matter not be reopened for further
proceedings against this Grievant." In addition, the Arbitrator awarded
attorney fees to the grievant in the amount of $3500.
In its first exception the Agency contends that the portion of the
award granting the grievance because there was no substantial evidence
to support a financial assessment against the grievant is based on
nonfacts. In support of this exception, the Agency argues that
underlying this portion of the award are the Arbitrator's comments that
the report of survey "was totally hearsay evidence" and that "the survey
officer failed to provide the Grievant any opportunity to participate in
the investigation," and the Agency maintains that these statements were
erroneous and that but for these errors the Arbitrator would have
reached a different result.
In order for the award to be found deficient on this ground, it must
be established that the alleged "nonfacts" involved facts that were
objectively ascertainable, were the central facts underlying the award,
were concededly erroneous, and that but for the arbitrator's
misapprehension, the arbitrator would have reached a different result.
See, e.g., United States Army Missile Materiel Readiness Command
(USAMIRCOM) and American Federation of Government Employees, Local 1858,
AFL-CIO, 2 FLRA 432, 438 (1980). Without fully addressing the
above-cited statements of the Arbitrator in terms of this ground, it is
readily apparent that the Arbitrator based his granting of the grievance
on inadequacies in the report of survey proceedings that were much more
extensive than claimed by the Agency. The Arbitrator expressly held
that the report of survey investigation was inadequate because "it was
cursory" (Award at 19), and because the survey officer "did not conduct
a complete investigation, did not determine if there were other
witnesses or evidence, but merely ceased investigating when he felt that
the evidence he had was sufficient (and) did not make an objective,
impartial and thorough investigation as required" (Award at 21). In
sum, the Arbitrator held that "there were numerous deficiencies in the
investigation and numerous unanswered and uninvestigated factors which
might have been either wholly or completely the proximate cause of the
loss in this case" (Award at 27). Consequently, the Agency has not
established that the central facts underlying the award were that the
report of survey proceedings were based on hearsay evidence and that the
survey officer failed to provide the grievant an opportunity to
participate in the proceedings. Thus, it is not established, even if
these statements of the Arbitrator were concededly erroneous, that this
"is the fact on which the award is based" and that "but for the
arbitrator's misapprehension, the arbitrator would have reached a
different result." Id. at 438 (emphasis in original). Accordingly, the
exception provides no basis for finding the award deficient in this
respect, and therefore the exception is denied.
In its second exception the Agency contends that the Arbitrator's
order that this matter not be reopened for further proceedings against
the grievant is contrary to law and regulation. Specifically, the
Agency claims that the award in this respect is contrary to section
7106(a)(1) of the Statute which authorizes the Agency to determine its
internal security practices. The Agency further claims that the award
is contrary to 10 U.S.C. 4832, 4835 by effectively removing from the
Secretary of the Army the authority provided by those statutory
provisions to prescribe regulations for the accounting of Army property
and the fixing of responsibility for its damage. The Agency also argues
that the award is contrary to AR 735-11 because it precludes the
commander from ensuring that this matter is adequately investigated and
from assessing pecuniary liability against the grievant if, after
further investigation, it is determined that such an assessment is
warranted.
The Authority concludes that this exception provides no basis for
finding the award deficient. The Agency fails to establish that the
award in this respect infringes in any manner on management's right
pursuant to section 7106(a)(1) of the Statute to determine its internal
security practices so as to prevent destruction of agency property. The
Agency likewise has not established that the award in this respect is
contrary to the general statutory and regulatory provisions pertaining
to the accounting for Army property. The matter specifically submitted
to and addressed by the Arbitrator was whether the Agency was justified
in its assessment of pecuniary liability against the grievant. In
resolution of precisely this matter, the Arbitrator expressly determined
that the assessment was not justified, and accordingly he vacated the
assessment and barred further proceedings against the grievant as to
this matter. In vacating the assessment and barring further proceedings
against the grievant, he essentially ruled that the issue of the
grievant's liability was before him for final resolution. Thus, he
rejected the contention that this matter was limited to the adequacy of
the report of survey and rejected the contention that in the event he
determined that the report was inadequate, the Agency was not precluded
from reopening the matter and proceeding until liability of the grievant
is sustained. In these circumstances the Authority finds that the
general statutory and regulatory provisions pertaining to the accounting
for Army property, including the broad right to conduct reports of
survey as set forth in AR 735-11, cannot be used to circumvent the
Arbitrator's resolution of the submitted dispute. Accordingly, this
exception is denied. /1/
In its third exception the Agency contends that the Arbitrator's
award of attorney fees is not authorized by law, essentially relying
upon the statutory requirements of the Back Pay Act, 5 U.S.C. 5596. /2/
This exception provides the Authority with an opportunity to address in
detail for the first time the statutory requirements regarding awards of
attorney fees by arbitrators. As previously recognized by the
Authority, a threshold requirement for entitlement to attorney fees
under the Back Pay Act is a finding that the grievant has 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. Department of Defense Dependents Schools and Overseas
Education Association, 3 FLRA 259, 263 (1980). Further, a reading of
the Back Pay Act indicates that an award of attorney fees must be in
conjunction with an award of backpay to the grievant on correction of
the personnel action, that the award of attorney fees must be reasonable
and related to the personnel action, and that the award of attorney fees
must be in accordance with the standards established under 5 U.S.C.
7701(b). /3/ Section 7701(g) prescribes that for an employee to be
eligible for an award of attorney fees, the employee must be the
prevailing party. Section 7701(g)(1), which applies to all cases except
those 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.
Section 7701(g)(2), pertaining to cases of discrimination prohibited by
5 U.S.C. 2302(b)(1), requires as to such cases that the award of
attorney fees must be in accordance with the standards prescribed under
section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e - 5(k).
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. See, e.g., Allen v. U.S. Postal
Service, 2 MSPB 582 (1980); Kling v. Department of Justice, 2 MSPB 620
(1980); see also 5 CFR 550.806 (1983). In terms of this case, the
Arbitrator failed to provide such an articulated decision as part of his
award of attorney fees in the amount of $3500. Consequently, the
Authority shall remand the award to the parties to have them obtain a
clarification and interpretation of the award of attorney fees by the
Arbitrator, who shall consider the specific criteria set forth in this
decision.
Accordingly, pursuant to section 2425.4 of the Authrity's Rules and
Regulations, the award is remanded to the parties with the direction
that they request, jointly or separately, that the Arbitrator clarify
the award. The submission to the Arbitrator is for the limited purpose
of having the Arbitrator clarify and interpret his award of attorney
fees in the amount of $3500 and to articulate fully specific findings on
all pertinent statutory provisions. Issued, Washington, D.C., May 21,
1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ As requested by the parties, the Arbitrator also ruled on whether
the grievance should be sustained because AR 735-11 is unconstitutional.
However, because the Arbitrator expressly indicated that the
inadequacies in the report of survey proceedings alone required the
grievance to be granted and the assessment against the grievant vacated,
it is unnecessary for the Authority to consider this question.
/2/ 5 U.S.C. 5596 (1982) pertinently provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee--
(A) is entitled, on correction of the personnel action, to
receive for the period of which the personnel action was in
effect--
(ii) reasonable attorney fees related to the personnel action
which, with respect to any decision relating to an unfair labor
practice or a grievance processed under a procedure negotiated in
accordance with chapter 71 of this title, or under chapter 11 of
title 1 of the Foreign Service Act of 1980, shall be awarded in
accordance with standards established under section 7701(g) of
this title(.)
/3/ 5 U.S.C. 7701(g) (1982) provides:
(1) Except as provided in paragraph (2) of this subsection, the
Board, or an administrative law judge or other employee of the
Board designated to hear a case, may require payment by the agency
involved of reasonable attorney fees incurred by an employee or
applicant for employment if the employee or applicant is the
prevailing party and the Board, administrative law judge, or other
employee (as case may be) determines that payment by the agency is
warranted in the interest of justice, including any case in which
a prohibited personnel practice was engaged in by the agency or
any case in which the agency's action was clearly without merit.
(2) If an employee or applicant for employment is the
prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this title,
the payment of attorney fees shall be in accordance with the
standards prescribed under section 706(k) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-5(k)).
9 FLRA No. 62; Case Nos. 2-CA-213, 2-CA-314, 2-CA-381, 2-CA-409,
2-CA-410, 2-CA-411; May 17, 1984 (Supplemental Decision and Order).
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 89
Case Nos. 2-CA-231, 2-CA-314,
2-CA-384, 2-CA-409
2-CA-410, 2-CA-411
On July 21, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with the provisions of section 7131 of the Federal
Service Labor-Management Relations Statute (the Statute) in violation of
section 7116(a)(1) and (8) of the Statute when it failed and refused to
provide Union representatives Lawrence A. Dillon and Patricia I. Donohue
with appropriate official time in connection with negotiations on
September 28, 1979, January 23, 1980, and February 7, 1980. The
Authority further found that the Respondent's failure and refusal to
provide Lawrence A. Dillon with travel and per diem expenses in
connection with such negotiations constituted an additional failure and
refusal to comply with the provisions of section 7131 of the Statute in
violation of section 7116(a)(1) and (8) of the Statute. Thereafter, the
Respondent petitioned the United States Court of Appeals for the
District of Columbia Circuit for review of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employee Lawrence A. Dillon for his travel and per diem
expenses and hereby vacates its prior Order in this regard.
Accordingly, the Authority shall issue the following Order and require
that the accompanying Notice To All Employees be posted in this matter.
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 Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms shall:
1. Cease and desist from:
(a) Failing or refusing as required by section 7131(a) of the Statute
to provide official time to Lawrence A. Dillon and Patricia I. Donohue,
or any other employee, for time engaged in representing the National
Treasury Employees Union, Chapter 89, the employees' exclusive
representative, during Union-Agency mid-term impact and implementation
negotiations.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representative Lawrence A. Dillon official time of
6 1/2 hours per day for September 28, 1979, and January 23, 1980, and 2
hours for February 7, 1980, for time engaged in representing the
exclusive representative, during Union-Agency negotiations, and adjust
the annual leave charged to him accordingly.
(b) Provide Union representative Patricia I. Donohue official time of
1 1/2 hours for September 28, 1979, for time engaged in representing the
exclusive representative, during Union-Agency negotiations, and adjust
the annual leave charged to her accordingly.
(c) Post at all its offices in the Mid-Atlantic Region where unit
employees are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Regional Administrative Officer,
or his designee, Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint in Case Nos.
2-CA-213, 2-CA-314, 2-CA-381, 2-CA-409, 2-CA-410, and 2-CA-411 be, and
it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure and refusal to
reimburse employee Lawrence A. Dillon for his travel and per diem
expenses. Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse as required by section 7131(a) of the
Statute to provide official time to Lawrence A. Dillon and Patricia I.
Donohue, or any other employee, for time engaged in representing the
National Treasury Employees Union, Chapter 89, our employees' exclusive
representative, during Union-Agency mid-term impact and implementation
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 provide Union representative Lawrence A. Dillon official time
of 6 1/2 hours per day for September 28, 1979, and January 23, 1980, and
2 hours for February 7, 1980, for time engaged in representing the
exclusive representative, during Union-Agency negotiations, and adjust
the annual leave charged to him accordingly.
WE WILL provide Union representative Patricia I. Donohue official
time of 1 1/2 hours for September 28, 1979, for time engaged in
representing the exclusive representative, during Union-Agency
negotiations, and adjust the annual leave charged to her accordingly.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is: 26
Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone
number is: (212) 264-4934.
10 FLRA No. 38; Case No. 6-CA-1215; May 17, 1984 (Supplemental
Decision and Order).
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AUSTIN DISTRICT
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 52
Case No. 6-CA-1215
On September 30, 1982, the Authority issued a Decision and Order in
the above-entitled proceeding in which it found that the Respondents
failed and refused to comply with section 7131(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1) and (8) of the Statute, based on its denial of official time
for travel to employee Francis Milner in connection with negotiations
conducted between the parties on February 23, 1981. The Authority
further found that the Respondents' denial of the reimbursement of
Milner's travel and per diem expenses related to such negotiations also
constituted a failure and refusal to comply with section 7131(a) in
violation of section 7116(a)(1) and (8) of the Statute. Thereafter, the
Respondents petitioned the United States Court of Appeals for the
District of Columbia Circuit for review of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondents filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondents' failure and refusal to
reimburse its employee for his travel and per diem expenses and hereby
vacates its prior Order in this regard. Accordingly, the Authority
shall issue the following Order and require that the accompanying Notice
To All Employees be posted in this matter.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the United States Department
of the Treasury, Internal Revenue Service and United States Department
of the Treasury, Internal Revenue Service, Austin District, shall:
1. Cease and desist from:
(a) Failing and refusing to provide official time for travel to
employee Francis Milner incurred, pursuant to section 7131(a) of the
Federal Service Labor-Management Relations Statute, as the designated
representative of the National Treasury Employees Union, Chapter 52, the
exclusive representative of its employees, in connection with mid-term
negotiations conducted February 23, 1981.
(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 official time to employee Francis Milner for time spent in
a travel status in connection with said negotiations.
(b) Post at its facilities in the Austin District copies of the
attached Notice on forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the District Director, or his
designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to 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 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 complaint in Case No. 6-CA-1215 be,
and it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure and refusal to
reimburse employee Francis Milner for his travel and per diem expenses.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide official time for travel to
employee Francis Milner incurred, pursuant to section 7131(a) of the
Federal Service Labor-Management Relations Statute, as the designated
representative of the National Treasury Employees Union, Chapter 52, our
employees' exclusive representative, in connection with mid-term
negotiations conducted February 23, 1981.
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 official time to employee Francis Milner for time spent
in a travel status in connection with said negotiations.
(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 whose address is:
Bryan & Ervay Street, Room 450, P.O. Box 2640, Dallas, Texas, and whose
telephone number is: (214) 767-4996.
9 FLRA No. 72; Case No. 6-CA-857; May 17, 1984 (Supplemental
Decision and Order).
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
SOUTHWEST REGION
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 91
Case No. 6-CA-857
On July 21, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
to comply with section 7131(a) of the Federal Service Labor-Management
Relations Statute (the Statute) in violation of section 7116(a)(1) and
(8) when it refused to grant employee Willard Nichols official time for
travel to and from the site of negotiations conducted between the
parties on September 12, 1980. The Authority also found that the
Respondent failed to comply with section 7131(a) of the Statute in
violation of section 7116(a)(1) and (8) when it refused to reimburse
employee Nichols for his travel and per diem expenses in connection with
such negotiations. Thereafter, the Respondent petitioned the United
States Court of Appeals for the District of Columbia Circuit for review
of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employee for his travel and per diem expenses and hereby
vacates its prior Order in this regard. Accordingly, the Authority
shall issue the following Order and require that the accompanying Notice
To All Employees be posted in this matter.
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Federal Service Labor-Management
Relations Statute, the Authority hereby orders that the United States
Department of the Treasury, Internal Revenue Service and United States
Department of the Treasury, Internal Revenue Service, Southwest Region,
shall:
1. Cease and desist from:
(a) Failing and refusing to provide employee Willard Nichols official
time for travel incurred while representing the National Treasury
Employees Union, Chapter 91, the employees' exclusive representative,
during the negotiation of a collective bargaining agreement.
(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) Provide Union representative Willard Nichols official time for
travel to and from the September 12, 1980 negotiations for the time he
otherwise would have been in a duty status.
(b) Post at all of its offices in the Southwest Region where unit
employees are located, copies of the attached Notice on forms to be
furnished by the Authority. Upon receipt of such forms, they shall be
signed by the Regional Commissioner of the Southwest Region, or his
designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority 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 complaint in Case No. 6-CA-857 be, and
it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure to reimburse
employee Willard Nichols for his travel and per diem expenses. Issued,
Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide employee Willard Nichols
official time for travel incurred while representing the National
Treasury Employees Union, Chapter 91, our employees' exclusive
representative, during the negotiation of a collective bargaining
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
Statute.
WE WILL provide Union representative Willard Nichols official time
for travel to and from the September 12, 1980 negotiations for the time
he otherwise would have been in a duty status.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
Bryan & Ervay Street, Room 450, P.O. Box 2640, Dallas, Texas 75221, and
whose telephone number is: (214) 767-4996.
9 FLRA No. 42; Case No. 5-CA-538; May 17, 1984 (Supplemental
Decision and Order).
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE AND
CINCINNATI, OHIO DISTRICT
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
JOINT COUNCIL OF CHAPTERS 9, 27, and 75
Case No. 5-CA-538
On June 30, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with section 7131(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1) and (8) when it failed and refused to provide employee Aron
Forsell official time in connection with negotiations conducted between
the parties on May 28, 1981. In addition, the Authority found that the
Respondent failed and refused to comply with section 7131(a) of the
Statute in violation of section 7116(a)(1) and (8) when it failed and
refused to provide related travel and per diem expenses. Thereafter,
the Respondent petitioned the United States Court of Appeals for the
District of Columbia Circuit for review of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employee for his travel and per diem expenses and hereby
vacates its prior Order in this regard. Accordingly, the Authority
shall issue the following Order and require that the accompanying Notice
To All Employees be posted in this matter.
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, it is hereby ordered that the
Department of the Treasury, Internal Revenue Service and Cincinnati,
Ohio District, Internal Revenue Service shall:
1. Cease and desist from:
(a) Failing and refusing to provide Aron Forsell, or any Agency
employee, while engaged in representing the National Treasury Employees
Union, and National Treasury Employees Union Joint Council of Chapters
9, 27 and 75, the employees' exclusive representative, during
Union-Agency negotiations of a collective bargaining agreement, 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.
(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) Provide Union Representative Aron Forsell official time for the
performance of his representational duties on May 28, 1980, and make him
whole for the annual leave he utilized on that date.
(b) Post at its various offices in the Cincinnati, Ohio District,
wherein unit employees are located, copies of the Attached notice on
forms to be furnished by the Authority. Upon receipt of such forms,
they shall be signed by the District Director or his designee, 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 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.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-538 be, and
it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure and refusal to
reimburse employee Aron Forsell for his travel and per diem expenses.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL provide Union representative Aron Forsell official time for
the performance of his representational duties on May 28, 1980, and make
him whole for the annual leave he utilized on that date.
WE WILL NOT fail or refuse to provide Aron Forsell, or any Agency
employee, while engaged in representing the National Treasury Employees
Union, and National Treasury Employees Union Joint Council of Chapters
9, 27 and 75, our employees' exclusive representative, during
Union-Agency negotiations of a collective bargaining agreement, 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.
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.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
14 FLRA No. 89; Case Nos. 9-CA-20280, 9-CA-20410; May 17, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2011. Conditions of Employment
2200. Subjects of Bargaining
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. REFUSAL to Negotiate DIGEST NOTES
Existing personnel policies, practices, and matters affecting working
conditions continue, to the maximum extent possible, upon the expiration
of a negotiated agreement, absent an express agreement to the contrary
or unless modified in a manner consistent with the Statute, ever where
there has been a change in exclusive representatives-- for mandatory
subjects of bargaining. However, the Authority rules that the same is
not true for permissive subjects of bargaining-- i.e., those matters
which are excepted from the obligation to negotiate by Sec. 7106(b)(1).
Thus where management elects to negotiate concerning any matter covered
by Sec. 7106(b)(1), and the parties reach agreement thereon, upon the
expiration of that negotiated agreement either party retains the right
to unilaterally terminate the practice embodied in such a provision.
Similarly, for matters which do not concern conditions of employment of
bargaining unit employees and thus are outside the required scope of
bargaining under the Statute, but which the parties bargained on
nevertheless, the Authority concluded that either party may elect not to
be bound thereby upon the expiration of that agreement.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) and (5) when it did not provide the exclusive
representative advance notice of its decision to change holiday staffing
patterns and afford the union an opportunity to negotiate concerning the
impact and implementation of the change. While some brief discussions
did take place following the agency's decision to change holiday
staffing patterns, those individuals who spoke on behalf of the agency
with the union did not have authority to conclude agreements and
therefore the agency could not fulfill its duty to bargain as defined by
Sec. 7114(b)(2) and (5). Furthermore, the agency did not approach the
discussions with local union with "a sincere resolve to reach a
collective bargaining agreement" within the meaning of Sec. 7114(b)(1)
and 7103(a)(12).
A status quo ante remedy requiring rescission of the agency's changes
in holiday staffing is warranted, the Authority held in adopting the
ALJ's decision. The ALJ balanced the nature and circumstances of the
violation against the degree of disruption in government operations that
would be caused by such a remedy. The remedy would merely require the
agency to return to a policy that it voluntarily followed for years. In
comparison, the impact of the staffing policy change resulted in a
possible loss of pay for employees, an increased workload on holidays,
and an increased chance that employees with holiday leisure plans would
be called back to work because of short staffing under the new policy.
However, a backpay remedy to unit employees who purportedly would have
received additional compensation for holidays worked, is not authorized
under Sec. 7118(a)(7)(C) of the Statute which applies the provisions of
the Back Pay Act, 5 U.S.C. 5996. Under the Back Pay Act, there must be
a determination that not only has an employee been adversely affected by
an unjustified or unwarranted personnel action, but also that but for
the improper action such employee would not have suffered a loss or
reduction in pay, allowances, or differentials. In the circumstances of
this case, it cannot be established that, but for the agency's unlawful
refusal to bargain over the impact and implementation of the change in
holiday staffing, employees would have worked on various holidays and
therefore would have suffered a loss of compensation.
FEDERAL AVIATION ADMINISTRATION
NORTHWEST MOUNTAIN REGION
SEATTLE, WASHINGTON
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Case Nos. 9-CA-20280, 9-CA-20410
The Administrative Law Judge issued his Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaints, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent, the General
Counsel and the Charging Party filed exceptions to the Judge's Decision;
the General Counsel and the Charging Party both filed oppositions to
the Respondent's exceptions; and the Charging Party additionally filed
cross-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, conclusions and recommended Order, as modified below.
The complaint in Case No. 9-CA-20280 alleges that the Respondent,
Federal Aviation Administration (FAA), through its agents at the Seattle
Radar Data Communications Unit, violated section 7116(a)(1) and (5) of
the Statute by unilaterally implementing a change in the practice of
holiday staffing without affording the Professional Airways Systems
Specialists (PASS) the opportunity to negotiate on the impact and
implementation of the change. In Case No. 9-CA-20410, the complaint
alleges the same violation based on the Respondent's failure to provide
PASS with advance notice and an opportunity to negotiate prior to the
implementation of a change in holiday staffing at the Auburn Airways
Facilities Sector.
The facts set forth in the attached Judge's Decision are undisputed.
Briefly stated, PASS was certified in December 1981 as the exclusive
representative for a unit of employees including those located at the
Seattle and Auburn facilities involved herein. Prior to that time, the
employees had been represented by the Federal Aviation Science and
Technological Association (FASTA) which had negotiated an agreement with
the FAA in 1977 for a two-year period. That agreement was automatically
renewed by its terms following the expiration date.
Prior to May 1982, the holiday staffing practice at both the Seattle
and Auburn facilities was that if a holiday fell within an employee's
rotating shift or "basic watch schedule," the employee was expected to
work on the holiday and would receive additional compensation for that
day. In early March 1982, the Respondent at the Seattle Radar Data
Communications Unit informed the local PASS representative that, due to
fiscal restraints, only one employee per shift would henceforth be
scheduled to work on holidays. Previously, several shifts, including
those on which a holiday occurred, were staffed by more than one
employee. In response to PASS' request for bargaining, the local
representative was advised that he had been properly "consulted"
concerning the staffing change in accordance with Article 54, Section 2
of the expired FASTA agreement. /1/ The new watch schedule which
reflected the reduced holiday staffing was posted in March and the first
holiday affected by the reduction occurred on May 31, 1982. At the
Auburn facility, management informed the local PASS president and also
notified unit employees on May 3, 1982, of the reduced holiday staffing
and subsequently advised PASS, in response to the latter's written
objections, that management had consulted in good faith in accordance
with the provisions of the FASTA agreement. As in Seattle, the first
holiday affected by the new staffing practice occurred in late May,
1982.
The Judge found, contrary to the Respondent's assertion that its
bargaining obligation was limited to consultation over the change in
holiday staffing, that PASS was not bound by the waiver provision
negotiated by FASTA and contained in Article 54 of the expired FASTA-FAA
agreement. Rather, he found that the Respondent was obligated to
provide PASS with prior notice and an opportunity to bargain over the
impact and implementation of changes in the holiday staffing practice.
Accordingly, the Judge concluded that the Respondent's failure to
properly notify PASS at both facilities and afford it an opportunity to
negotiate pursuant to section 7106(b)(2) and (3) of the Statute, /2/
prior to the implementation of the changes in holiday staffing, violated
section 7116(a)(1) and (5) of the Statute.
In reaching his conclusion, the Judge found that Article 54 of the
FASTA agreement did not create a specific condition of employment which
continued following the expiration of the agreement and the change in
the employees' exclusive representative. He thus distinguished the
instant case from previous Authority decisions in which it was held that
existing personnel policies, practices, and matters affecting working
conditions continue to the maximum extent possible, upon the expiration
of a negotiated agreement, absent an express agreement to the contrary
or unless modified in a manner consistent with the Statute, even where
there has been a change in exclusive representatives. U.S. Nuclear
Regulatory Commission, 6 FLRA No. 9 (1981). See also Department of the
Air Force, 35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA 22 (1980), and Department of Defense, Department of
the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA 760
(1980). The Judge determined that general agreement provisions
restricting or modifying the collective bargaining system provided for
in the Statute, such as that contained in Article 54, do not create
conditions of employment which remain binding following the expiration
of that agreement and a change in exclusive representative, whereas
contract provisions which establish or define specific conditions of
employment such as those identified in the above-cited decisions would
continue following the expiration of an agreement.
As noted by the Judge, the Authority has previously addressed whether
conditions of employment contained in a negotiated agreement continue
following the expiration of that agreement. Thus, in George Air Force
Base (involving negotiated grievance-arbitration procedures), Naval
Ordnance Station, Louisville (involving the composition of a joint
union-management safety committee and promotion practices and
procedures), and Nuclear Regulatory Commission (involving the union's
use of bulletin boards), the Authority determined that the established
personnel policies, practices, and matters affecting working conditions
in question continued, to the maximum extent possible, following the
expiration of each agreement, in the absence of either an express
agreement to the contrary or the modification of those conditions of
employment in a manner consistent with the Statute. In so concluding,
the Authority noted-- and expressly reaffirms herein-- that such a
result fosters stability in Federal labor-management relations, which is
an underlying purpose of the Statute.
In each of these cases, the conditions of employment which were
required to be maintained were conditions established pursuant to the
parties' mutual obligation to negotiate over "mandatory" subjects of
bargaining. The Authority has not yet considered whether these
requirements with regard to the maintenance of existing conditions of
employment which were established pursuant to the parties' mutual
obligation to negotiate over "mandatory" subjects of bargaining as in
the above-cited decisions, apply also to "permissive" subjects of
bargaining-- i.e., those matters which are excepted from the obligation
to negotiate by section 7106(b)(1) of the Statute, /3/ and to those
matters which are outside the required scope of bargaining under the
Statute. We conclude that they do not. Thus, where management elects
to negotiate concerning any matter covered by section 7106(b)(11, and
the parties reach agreement thereon, upon the expiration of that
negotiated agreement either party retains the right to unilaterally
terminate the practice embodied in such a provision. Similarly, where
the parties reach agreement on a matter which is outside the required
scope of bargaining under the Statute, /4/ the Authority concludes that
either party may elect not to be bound thereby upon the expiration of
that agreement. /5/ In other words, either party may reassert its right
not to negotiate with regard to the "permissive" subject of bargaining
in question once the applicable agreement has expired. In reaching this
result, the Authority notes that where parties have elected to bargain
over "permissive" subjects of bargaining and have reached agreement
thereon, stability in Federal labor-management relations can be achieved
by requiring both parties to adhere to those terms during the life of
the parties' agreement while preserving each party's right to terminate
practices embodied in the agreement upon its expiration. Such a result
is also consistent with Congressional intent that in any subsequent
negotiations, either party may elect not to bargain over permissive
subjects.
In the instant case, the Authority finds that Article 54, Section 2
of the FASTA agreement which contained a waiver by FASTA of certain of
its bargaining rights constituted a permissive subject of bargaining.
As such, while the provision was binding on the parties during the life
of their agreement, it was terminated by either party once that
agreement expired. Thus, when the FASTA agreement expired and PASS
replaced FASTA as the employees' exclusive representative, PASS was
entitled to terminate Article 54, Section 2 of the agreement, as it here
sought to do by indicating that it no longer wished to be bound by such
provision but desired instead to exercise its bargaining rights as the
exclusive representative of unit employees. When management at the
Seattle and Auburn facilities then decided to change the practice
concerning holiday staffing, it was obligated to fulfill its bargaining
obligations under the Statute and could no longer insist upon the
continuation of the waiver provision which contained a limitation on its
bargaining obligation. Inasmuch as the change in holiday staffing
concerned a matter falling within the ambit of management rights under
7106(b)(1) of the Statute (supra, n. 3), as conceded by the parties, /6/
management was required to provide advance notice to PASS of such
decision and afford it an opportunity to negotiate concerning the impact
and implementation of the change. The record reveals, and the Judge
found, that the Respondent failed to fulfill its bargaining obligation
in this regard. Accordingly, in agreement with the Judge, the Authority
finds that the Respondent's conduct violated section 7116(a)(1) and (5)
of the Statute.
In remedying the unfair labor practice conduct found herein, the
Authority adopts the Judge's conclusion, for the reasons stated in his
Decision, that a status quo ante order requiring rescission of the
Respondent's changes in holiday staffing at both the Seattle and Auburn
facilities is warranted in the circumstances of this case. See Federal
Correctional Institution, 8 FLRA No. 111 (1982). The Authority further
adopts the Judge's denial of requests by the General Counsel and PASS
for a backpay remedy as to unit employees who purportedly would have
received additional compensation for holidays worked. The Authority has
previously held that in order for a backpay order to be authorized under
the Back Pay Act, 5 U.S.C. 5996, there must be a determination that not
only has an employee been adversely affected by an unjustified or
unwarranted personnel action, but also that but for the improper action
such employee would not have suffered a loss or reduction in pay,
allowances, or differentials. See, e.g., Action and Action Employees
Union, AFSCME, Local 2027, 11 FLRA No. 89 (1983) and American Federation
of Government Employees, Local 1395 and Department of Health and Human
Services, Social Security Administration, 10 FLRA No. 5 (1982). Under
section 7118(a)(7)(C) of the Statute, such requirements apply to backpay
orders issued by the Authority in unfair labor practice proceedings.
See Department of the Air Force, Air Force Systems Command, Electronic
Systems Division, 14 FLRA No. 63 (1984). In the circumstances of this
case, where it cannot be established that, but for the Respondent's
unlawful refusal to bargain over the impact and implementation of the
change in holiday staffing, employees would have worked on various
holidays and therefore would not have suffered a loss of compensation,
the Authority concludes that a backpay order is not warranted.
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 Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington, and the Federal Aviation Administration,
Washington, D.C., shall:
1. Cease and desist from:
(a) Changing the holiday staffing practices at the Seattle Radar Data
Communications Unit and the Auburn Airways Facilities Sector, without
first notifying the Professional Airways Systems Specialists, the
employees' exclusive representative, and affording it an opportunity to
bargain concerning the impact and implementation of such changes.
(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) Rescind the changes in the holiday staffing practice at the
Seattle Radar Data Communications Unit and the Auburn Airways Facilities
Sector, which changes were effectuated in May, 1982, and restore the
pre-existing practice at both facilities.
(b) Notify the Professional Airways Systems Specialists of any
intended changes in the holiday staffing practice at the Seattle Radar
Data Communications Unit and the Auburn Airways Facilities Sector and
afford it an opportunity to request bargaining concerning the impact and
implementation of such changes.
(c) Post at its facilities at the Seattle Radar Data Communications
Unit and the Auburn Airways Facilities Sector, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Such forms shall be signed by the head of the Northwest
Mountain Region, or his designee, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other material.
(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 herewith. Issued,
Washington, D.C ., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT change the holiday staffing practices at the Seattle
Radar Data Communications Unit and the Auburn Airways Facilities Sector
without first notifying the Professional Airways Systems Specialists,
the employees' exclusive representative, and affording it an opportunity
to bargain concerning the impact and implementation of such 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 rescind the changes in the holiday staffing practice at the
Seattle Radar Data Communications Unit and the Auburn Airways Facilities
Sector, which changes were effectuated in May, 1982, and restore the
pre-existing practice at both facilities.
WE WILL notify the Professional Airways Systems Specialists of any
intended changes in the holiday staffing practice at the Seattle Radar
Data Communications Unit and the Auburn Airways Facilities Sector and
afford it an opportunity to request bargaining concerning the impact and
implementation of such changes.
(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: 530 Bush Street, Room 542, San Francisco, California 94108 and
whose telephone number is: (415) 556-8106.
Case Nos. 9-CA-20280, 9-CA-20410
Mr. J. Donald Payne
Mr. Gary Baldwin
For the Respondent
Joseph E. Kolick, Esquire
For the Charging Party
Stefanie Arthur, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
This decision concerns two unfair labor practice complaints issued by
the Regional Director, Region Nine, Federal Labor Relations Authority,
San Francisco, California against the Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington and Federal Aviation
Administration, Washington, D.C. (Respondent or FAA) based on charges
filed by the Professional Airways Systems Specialists (Charging Party or
Union). The complaints alleged essentially identical violations: that
Respondent, through its agents at the Seattle Radar Data Communications
Unit and the Auburn Airway Facilities Sector, unilaterally changed the
holiday staffing policy/practice at each facility, without providing the
Union notice and/or the opportunity to bargain concerning the impact and
implementation of the change prior to its implementation, in violation
of Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (the Statute).
In its Answers, Respondent denied that it engaged in any unfair labor
practices and interposed substantially identical defenses: Respondent
admitted that the changes occurred, but contends that the issue of
holiday staffing is a matter bargainable only at the election of the
agency under 5 U.S.C. 7106(b)(1). Respondent contends that the matter
at issue does not constitute a past practice requiring negotiation prior
to any change, but a management practice subject to unilateral change by
the agency. In addition, Respondent contends that, even if there were a
change in past practice over which it had an obligation to bargain, the
right to bargain over such changes has been clearly and unequivocally
waived in the collective bargaining agreement with the prior exclusive
representative which has continued in effect. Respondent contends that
the agency's sole obligation is to consult prior to any such change, and
that it satisfied its obligation in each case. At the hearing,
Respondent also defended on the grounds that it had, in fact, met any
obligation to bargain on impact and implementation.
A hearing was held in Seattle, Washington. 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 parties
filed very helpful briefs, and their proposed findings have been adopted
where found supported by the record as a whole. Based on the entire
record, /7/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Background
On December 31, 1981, following an election conducted under the
supervision of the Regional Director of Region 3 of the Federal Labor
Relations Authority, the Union, Professional Airways Systems Specialists
(PASS), was certified as the exclusive representative of a Nationwide
unit of Federal Aviation Administration (FAA) employees in the Airways
Facilities Division. Included in this unit are electronic technicians
employed at the Auburn Airway Facilities Sector, located in the Auburn
Air Route Traffic Control Center, and employees in the Seattle Radar
Data Communications Unit, Seattle Airway Facilities Sector (G.C. Exs.
1(f), (k); 2(f), (g); 3; R. Ex. 2).
Prior to this time, this unit had been represented by the Federal
Aviation Science and Technological Association, National Association of
Government Employees (FASTA). The FAA and FASTA had negotiated a
collective bargaining agreement effective December 1, 1977, which was
still in effect when PASS became the employees' representative. The
agreement provided, in pertinent part, as follows:
Article 7 - Rights and Responsibilities of Union
Representatives
Section 2.
(d) The Union may designate one representative and one
alternate for each sector field office, radar unit, communication
unit, data unit, navaids unit, environmental support unit, and
combination unit, to deal with first and second level supervisors
at non-air traffic control center sectors.
Section 3. In addition, the Union may designate one sector
representative at each airway facilities sector. The designation
shall be in writing. At the sector representative's option,
he/she may designate, in writing, an alternate to act for him/her
when he/she is absent. Only the sector representative, or in
his/her absence the designated alternate, may deal with the sector
manager and/or his/her designee. During any meeting where the
sector manager is accompanied by other management representatives,
the sector representative may be accompanied by his/her designated
alternate or other representatives so as to allow the Union the
same number of participants at the meeting.
Article 40 - Holidays
Section 3. To the extent that operational requirements permit,
employees scheduled to work on actual established legal holidays
or days observed in lieu of such holidays shall be given such day
off if they so request.
Section 4. A list of employees assigned to work legal holidays
and days in lieu of holidays shall be posted at least twenty-one
(21) days in advance, and these assignments, once posted, will not
be deleted without consent of the employees involved.
Article 54 - Changes In The Agreement
Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this agreement.
FASTA agreed to Article 54 several months prior to negotiations
concerning the remainder of the agreement. The quid pro quo for FASTA's
acquiescence to this clause, which the FAA viewed as a waiver of FASTA's
right to bargain concerning mid-term changes in conditions of employment
not specifically covered by the agreement, was the FAA's consent to an
immediate agreement authorizing dues checkoff for FASTA (Tr. 89-93).
/8/
There was no evidence presented that PASS ever ratified or adopted
this agreement. To the contrary, on January 8, 1982, 8 days after PASS
was certified, PASS President Howard E. Johannssen notified FAA
Administrator Helms, in part, that,
* * * PASS will demand strict compliance by the FAA with its
obligation to bargain collectively and to refrain from unilateral
changes. Specifically, PASS demands notification of all proposed
changes affecting conditions of employment and bargaining to the
full extent permitted by law prior to implementation of such
changes. This, of course, includes notice of changes which the
FAA contends may be made unilaterally as a management right, and
full bargaining on impact and implementation procedures,
regarding such changes prior to implementation.
(C.P. Ex. 1). The FAA responded, in part, that it "is well aware of
its obligation to deal with recognized labor unions and will continue to
do so. However, these obligations do not extend to being influenced by
threats and demands of labor organizations. Rhetoric such as that
contained in your January 8 letter has previously worked to the extreme
detriment of another union formerly representing FAA employees" (C.P.
Ex. 2).
Shortly thereafter, on February 2, 1982, Johannssen again wrote Helms
informing him that he was the only PASS representative authorized to
receive notice and conduct negotiations regarding certain proposed
changes. This letter went on to state that,
* * * notice of proposed changes in local or regional
conditions of employment pertaining to other subjects should be
given to the PASS Regional Vice President responsible for the area
affected.
The letter explicitly stated that " * * * unless specific notice to
the contrary is given, local representatives are not authorized to
engage in negotiations or conclude agreements" (C.P. Ex. 3).
On that same date Mr. Johannssen also reiterated the PASS position
with respect to the effect of the FASTA-FAA agreement. In a letter to
FAA Director of Labor Relations E. V. Curran, Johannssen stated that
PASS appreciated the FAA's voluntary decision to abide by the terms of
that agreement. However, he emphasized:
Of course, you should not misunderstand this appreciation to
mean that PASS accepts any waivers of rights contained in the
FASTA agreement. As stated in my January (9), 1982 letter to
Administrator Helms, PASS stands ready to negotiate to the full
extent permitted by law on all appropriate subjects. (C.P. Ex.
4).
Less than one week later, on February 8, 1982, Mr. Curran directed a
memorandum to the labor relations staff in all regional offices. The
memorandum provided, in pertinent part, as follows:
Pending formal negotiations and written agreement at the
national level between FAA and PASS, the following transitional
guidelines are to be applied in labor-management matters involving
PASS.
1. Provisions of Existing Agreements. Consistent with
applicable case law and in the interest of maintaining stability
and predictability in the labor-management relationship during
this period of transition, the terms and provisions of the
FAA/FASTA agreement survive and, to the maximum extent possible,
will remain in full force and effect until expressly modified or
superseded by written agreement between FAA and PASS. Similarly,
the existing agreement between the FAA Eastern Region and NAGE
Local R273 remains in effect until modified or superseded.
2. Other Personnel Policies and Practices. Other personnel
policies and practices generally in effect at the time of
certification of PASS and applicable to the employees in the
national unit of electronic technicians and other related
employees continue as established. Personnel policies and
practices in effect at local facilities also continue as
established. Changes should only be made for significant
operational and sound management reasons and only after
consultation with the authorized PASS regional representatives.
On the same date, Mr. Curran replied to Mr. Johannssen. He
reiterated "the FAA's position that the provisions of the FASTA/FAA
agreement continue in effect until a mutual agreement to the contrary is
reached. Therefore, to the extent your letter of February 2 is not
inconsistent with the provisions of the FASTA/FAA agreement, we concur
in your designation as outlined in that letter."
FAA and PASS have not negotiated a collective bargaining agreement.
The Former Holiday Staffing Practice
The duties of electronic technicians at both the Seattle Radar Data
Communications Unit located at Seattle-Tacoma Airport (SEATAC) and the
Auburn Airway Facilities Sector are to maintain electronic equipment
(radar equipment, computers, communications equipment) necessary for air
traffic control (Tr. 17-18). Technicians work in specialties that
relate to the type of equipment which they are qualified to maintain
(Tr. 44-45). Technicians are required to acquire "certification
authority" with respect to certain pieces of equipment. Only a
technician possessing such authority may "certify" equipment as being in
working order. Not all technicians have certification authority for all
types of equipment within their specialty (Tr. 23-24; 46-47).
Both SEA-TAC and the Auburn Sector are classified by the FAA as
immediate restoration facilities. This means that the equipment at
those facilities receives the highest priority for repair should it fail
to operate properly. Accordingly, FAA regulations provide that
technicians with proper certification authority must be on duty at both
facilities 24 hours a day, 7 days a week (G.C. Exs. 4 & 5; Tr. 21). To
insure such coverage technicians work a rotating schedule known as the
"basic watch schedule" throughout the year (Tr. 25, 47). /9/
FAA headquarters provided broad guidance on assignment of employees
to duty on holidays, but basically left the determination of how many
employees would be assigned to the discretion of local management. The
policy provided, in part, as follows:
81. BASIC POLICY. Employees will not be assigned to duty on
holidays unless work is necessary for the protection of life or
property, is in the interest of the general public, or is
necessary to meet an emergency in which the Government requires
the completion of a particular job without delay. In line with
this general policy, as many employees as feasible in continuously
operating activities (i.e., activities open 16 to 24 hours a day,
7 days a week) will be excused from duty on a holiday; and as
many employees as necessary to meet operating requirements will be
required to work. NOTE: The Absence and Leave Handbook, 3600.4
contains further discussion on holiday benefits, and a listing of
legal holidays designated by law.
Prior to Memorial Day 1982, it is undisputed that, at both
facilities, it was the FAA's practice to schedule employees to work on
holidays no differently than any other day (Tr. 29-30; 52-53; 111-122;
135-136; 150-151). In other words, if the basic watch schedule
provided that a given technician was to work midnight shift on a
holiday, the employee was expected to report for midnight shift unless
he sought and obtained permission to take leave (Tr. 29-30; 52-53).
This was the same procedure followed for any regular day of work; the
employee scheduled to work a given shift reported to work unless he
obtained permission to take leave that day (Tr. 66). Employees receive
an extra day of pay for holiday work (Tr. 70). The Change At the
Seattle Radar Communications Unit
The Seattle Radar Data Communications Unit located at Seattle-Tacoma
Airport (hereinafter referred to as SEATAC or Radar Com) is a unit
within the Seattle Airway Facilities Sector. The Radar Com unit is
concerned with equipment utilized to control air traffic into or out of
the airport (Tr. 24). In March 1982, there were seven technicians in
the Radar Com unit, not all of whom were certified on each piece of
equipment (Tr. 24).
During the first 3 months of 1982, technicians in the Radar Com unit
were scheduled to work holidays in the manner described above (Tr.
29-30; 119). In late February, while preparing the assignments to the
watch schedule for the remainder of the year, Duane Cornell,
Radar/Communication unit supervisor, questioned the necessity of
continuing to schedule all personnel to holiday watches in light of
fiscal restraints. He discussed the matter with Sector manager Ray
Perry. Perry checked with the Region and instructed Cornell to make up
a plan for minimum staffing and to consult with the Union prior to
implementing it (Tr. 103, 120-121). Cornell did not have authority to
negotiate a collective bargaining agreement (Tr. 143).
On the morning of March 2, Cornell called Leo Zmijewski, the Union
representative for the Radar Com unit, into his office. Cornell
informed Zmijewski that, beginning with the new watch schedule, there
would only be one man scheduled per shift on holidays; that reduced
staffing would be the regional policy in order to save money. The
matter was discussed briefly. Zmijewski told Cornell that he did not
believe that management should change the established practice and
advised that somebody would probably file a grievance about the change.
Cornell told Zmijewski that the matter had already gone to arbitration,
and that it was management's decision how they would staff on holidays
(Tr. 30). Zmijewski asked Cornell how he intended to make the holiday
pay equitable, and Cornell responded that he would try to give an even
amount to all employees (Tr. 31, 133). Zmijewski told Cornell that he
would get back to him about it, and the meeting moved on to other labor
management topics (Tr. 31, 135).
The following day, Cornell and Zmijewski had a brief encounter in the
crew area at the shift change during which the topic of changing holiday
staffing was mentioned in passing. Cornell stated he wanted to make
sure Zmijewski understood he was consulting over the change (Tr.
123-124).
Cornell had selected who would work the holidays prior to his
conversation with Zmijewski (Tr. 140). The new watch schedule,
indicating the reduction in staffing on the remaining holidays for the
year, was posted on March 5, 1982 (G.C. Ex. 10, Tr. 34). /10/
On March 8, 1982, Sector manager Perry consulted with Mr. Lloyd
Burrell, PASS sector representative, on the subject of reducing staffing
on holidays. Mr. Burrell indicated that for the present time he had no
comments on the matter. He made no further contact with the sector
manager (Tr. 103, 106).
Thereafter, by letter dated March 11, 1982 to Duane Cornell,
Zmijewski requested to negotiate regarding the change in past practice
of holiday staffing and designated Lawrence A. Sump, PASS regional vice
president as the Union's representative in the matter (G.C. Ex. 8).
Almost 2 months later, on May 7, 1982, Zmijewski received a letter from
Mr. Cornell informing him that consultation, in accordance with Article
54, Section 2 of the FASTA agreement had occurred on March 2 and 3,
1982, and that Respondent had thereby fulfilled its obligations to the
Union (G.C. Ex. 9).
The first holiday affected by the new holiday staffing policy
occurred on Monday, May 31, 1982. Blackett, Curran, and Beetz, who as
part of the regular watch schedule rotation had been scheduled to work
day shift, and Zmijewski, who had been scheduled to work the evening
shift, were scheduled off. The change in holiday staffing has been
applied to the remaining holidays of 1982 (G.C. Ex. 10). The Change at
Auburn Airway Facilities Sector
There are approximately 100 employees, including 25 supervisory and
managerial personnel, in the Auburn Airway Facilities Sector. As with
Seattle, it is undisputed that, until Memorial Day 1982, holidays were
not differentiated on the basic watch schedule at the Auburn Airway
Facilities Sector, and technicians were scheduled to work holidays
whenever their regular rotational assignment occurred on a holiday (Tr.
52-53, 150-151, 163).
Some time after April 2, 1982, Reuben Powell, Auburn sector manager,
received correspondence from Mr. Jack Wichels, Airway Facilities
Division Chief. The letter indicated that holiday staffing should be at
a minimum, and, if necessary, appropriate consultation with the unit
representative should be accomplished prior to placing this holiday
scheduling into operation (Respondent Ex. 6). Upon inquiring, Mr.
Powell learned his facility was staffing holidays by the basic work
schedule and was permitting double crews to work holidays. Mr. Powell
determined that such staffing was unnecessary and asked the assistant
sector manager to devise a proposed schedule for the remainder of the
year, whereby only one crew would be scheduled for each holiday, and
each crew would be required to receive equal exposure to holiday work.
Such a schedule was prepared, and Mr. Frank Bruno, local PASS president
and the Union's local representative at Auburn, was asked to attend a
meeting on May 3, 1982, at which the proposed new schedule would be
discussed (Tr. 150-152). Powell did not have authority to negotiate or
conclude a collective bargaining agreement (Tr. 165).
On May 3, 1982, Union representative Bruno met with Sector manager
Reuben Powell and Assistant Sector manager Temple (Tr. 53-54). When he
arrived at the meeting, and after the usual greetings, Powell handed
Bruno a letter, dated May 3, 1982, addressed to all watchstanders,
advising them of his decision to implement minimum staffing on holidays
(G.C. Ex. 14). The letter specified the change in assignments for the
crews on the Computer Display Channel (CDC) unit, Central Computer
Complex (CCC) unit, and Communications watch schedule (G.C. Ex. 11), and
stated that it "shall be posted and serves the 21-day notification
requirement per Article 40, Section 4 of the FASTA Agreement." The
letter also directed the Unit Chiefs of Radar and Environmental Support
Unit (ESU) to adjust their work schedules to conform with Powell's
designated minimum staffing and to post such work schedules at least 21
days prior to the holiday as required by Article 40, Section 4 of the
FASTA agreement (G.C. Ex. 14).
After Bruno had an opportunity to review Powell's letter, Powell
explained his rationale for making the change and a discussion of the
change followed. Bruno commented that he thought the action was
illegal; that he assumed employees would be upset and file grievances
over the change; and, in response to Powell's assertion that he had
authority to make the change under the FASTA agreement simply by
providing 21 days notice, Bruno indicated that PASS was not bound by the
contract. Mr. Bruno also indicated that he thought Powell's method of
determining which crews would be affected by the change was unfair,
since only four of five crews were affected (Tr. 54-55).
That afternoon, Powell's May 3, 1982 letter was distributed to the
employees. Shortly thereafter, the Radar Unit Chief issued a letter
designating which employees would be scheduled to work the remaining
holidays of 1982 (G.C. Ex. 17).
The following day, Bruno prepared a letter to Jack Wichels, Chief of
the Airways Facilities Division, in which, among other things, he
objected to Powell's conduct in informing him of the change after the
decision had already been made, rather than consulting, or deliberating
with the Union, consistent with the agency's moral and legal obligation
to bargain in good faith with the Union. Bruno requested that Powell's
May 3 letter be rescinded, and questioned why, if the change were
directed by Wichels, no prior consultation had taken with the Union's
regional representative (G.C. Ex. 15).
Wichels did not respond to Bruno. Instead, 21 days later, Bruno
received a letter dated May 25, 1982 from Reuben Powell. Powell stated
he was responding as the appropriate official under the FASTA agreement
with whom Bruno was permitted to deal. Powell advised Bruno that
management had consulted in good faith, and in accordance with the
provisions of the FASTA agreement, on May 3, 1983 prior to issuing the
letter on holiday coverage (G.C. Ex. 16).
Thereafter, on May 31, 1982, the first holiday affected by Powell's
May 3 change, occurred. The following employees did not work the
holiday as previously scheduled: Crew 1 on G.C. Ex. 11; Keefer,
Hackett and Henderson in Radar; and either Crew 2 or Crew 5 in ESU.
The changes effected by Powell's May 3, 1982 letter have been followed
on subsequent holidays. The Impact of the Changes
The changes in holiday staffing policy resulted in a loss of holiday
pay to those employees who had been scheduled to work holidays, but were
now told these work assignments were cancelled (Tr. 35-37; 61-62). In
addition, since the workload of electronic technicians does not decrease
on holidays (Tr. 140), the change means that the workload of employees
assigned to work holidays is increased and/or some of the work must be
done later in the week (Tr. 36). It also increases the chances that
employees not scheduled to work will be required to report to work if
equipment fails for which no technician on duty possesses certification
authority (Tr 37; 61-63).
1. Whether Article 54, Section 2 of the FAA/FASTA agreement is
binding on PASS, the newly certified Union, and limits it to
consultation rights rather than the statutory right to negotiate
concerning changes in terms and conditions of employment not
specifically covered by the agreement.
2. If not, whether Respondent had the obligation to bargain with the
Union regarding the impact and implementation of the changes in holiday
staffing.
3. If so, whether Respondent met its obligation to bargain in good
faith. Position of the Parties
The General Counsel and the Charging Party contend that the waiver
contained in Article 54 of the FAA/FASTA agreement may not be applied so
as to foreclose PASS, the newly certified Union, from the exercise of
its statutory right to bargain. Therefore, they claim that Respondent
had the obligation to bargain with the Union regarding the impact and
implementation of the changes in holiday staffing. They argue that
Respondent's conduct in "consulting" with the Union did not satisfy its
statutory bargaining obligation, and that, accordingly, Respondent
violated sections 7116(a)(1) and (5) of the Statute.
Respondent defends on the basis that Article 54 of the FAA/FASTA
agreement provides for a clear and unequivocal waiver of the Union's
right to negotiate over changes in terms and conditions of employment
not specifically covered by the agreement, such as changes in holiday
staffing which are not specifically covered by the FAA/FASTA agreement.
This waiver, Respondent maintains, is binding on FAA and PASS under the
Authority's decision in U.S. Nuclear Regulatory Commission and National
Treasury Employees Union, 6 FLRA No. 9 (1981). Respondent asserts that
it fully met its obligation under Article 54 to consult with PASS. If
PASS is not bound by the waiver, Respondent contends that PASS is still
not entitled to any relief. Respondent claims that PASS only requested
to bargain concerning the decision to reduce staffing. Respondent
contends that this decision essentially involved the number of employees
required for holiday crews, and it has not elected to bargain over the
decision pursuant to its rights under section 7106(b)(1) of the Statute.
Respondent also asserts that in the limited instance when the Union did
refer to impact and implementation matters, it responded affirmatively
and met any obligation to bargain in good faith.
It is well established that, even where an agency's decision to
change a past practice involves the exercise of a reserved management
right under the Statute, the agency is required to notify the employees'
exclusive representative before making the change and to afford the
exclusive representative an opportunity to bargain, upon request,
concerning the procedures to be used in implementing the change and on
appropriate arrangements for employees adversely affected by the change.
Department of the Interior, U.S. Geological Survey, 9 FLRA No. 65
(1982). Any waiver of such a statutory right must be clear and
unmistakable. Department of the Air Force, Scott Air Force Base, 5 FLRA
No. 2 (1981).
Respondent contends that Article 54, Section 2 of the FAA/FASTA
agreement, supra, provides such a clear and unequivocal waiver of the
union's right to negotiate over changes in terms and conditions of
employment not specifically covered by the agreement, such as changes in
holiday staffing. This waiver, Respondent maintains, is binding on FAA
and PASS under the Authority's decision in U.S. Nuclear Regulatory
Commission, supra. It is also Respondent's position that the terms and
conditions of employment as found in the agreement are inextricably
linked to the waiver provision. Respondent argues that but for the
waiver provision, the terms and conditions of employment as expressed in
the agreement would be significantly different. Therefore, Respondent
contends that a finding that the waiver provision continues in effect
and binds PASS would foster the stability of the new bargaining
relationship and is consistent with Nuclear Regulatory Commission and
represents a logical extension and application of that decision.
The General Counsel and the Charging Party do not disagree that
Article 54, Section 2 contains such a waiver, but they argue that
Article 54 of the FAA/FASTA agreement may not be applied so as to
foreclose PASS, the successor union to FASTA, from the exercise of its
statutory right to bargain.
In U.S. Nuclear Regulatory Commission, supra, the Authority concluded
that a clause relating to the union's use of bulletin boards in an
expired agreement created a condition of employment which remained
binding in its entirety despite the agreement's expiration and the
change of exclusive representative. The Authority stated:
In agreement with the Judge's findings and conclusions, the
Authority holds that the clause relating to bulletin boards in the
expired agreement created a condition of employment which remains
binding in its entirety despite the agreement's expiration and the
change of exclusive representative. In the Authority's opinion,
the purposes and policies of the Statute are best effectuated by a
requirement that existing personnel policies, practices, and
matters affecting working conditions continue, to the maximum
extent possible, upon the expiration of a negotiated agreement,
absent an express agreement to the contrary or unless modified in
a manner consistent with the Statute. Such a result fosters
stability in Federal labor-management relations, which is an
underlying purpose of the Statute. See Department of Defense,
Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky, 4 FLRA No. 100 (1980); and Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA No. 5 (1980). We see no distinction in the
circumstances of this case where there has been a change in the
exclusive representative since the expiration of the agreement.
The stability of the new bargaining relationship is enhanced by a
required maintenance of existing personnel policies and practices,
and matters affecting working conditions pending the negotiation
of a new agreement.
The General Counsel and the Union would limit the application of
Nuclear Regulatory Commission to contract provisions which establish or
define existing personnel policies, practices and terms and conditions
of employment while excluding any waiver of a statutory right or matter
concerned solely with the statutory relationship between the parties.
In my view, such a distinction has merit. As the Authority found in
Nuclear Regulatory Commission, the clause relating to bulletin boards in
the expired agreement created a specific condition of employment.
Specific personnel policies, practices, and matters affecting working
conditions were also identified in the agreements involved in Department
of Defense, Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky and Department of the Air Force, 35th Combat Support Group
(TAC), George Air Force Base, California, cited by the Authority. By
contrast, the provisions involved here, Article 54, Section 2, does not
deal with holiday staffing, or with any other specific condition of
employment. Rather, it is an agreement by FAA and FASTA to "consult
prior to implementing changes in personnel policies, practices, and
matters affecting working conditions that are within the scope of the
Employer's authority and that are not specifically covered by this
agreement." In my view, unlike the clauses in Nuclear Regulatory
Commission, et al., Article 54, Section 2, deals with the union's
general bargaining relationship with the employer concerning changes not
covered by the agreement and did not create a condition of employment
which remains binding despite the agreement's expiration and the change
of exclusive representative. In short, contract provisions restricting
or modifying the collective bargaining system provided for in the
Statute, unlike contract provisions establishing or defining existing
personnel policies, practices, and matters affecting working conditions
do not survive the certification of a new and distinct bargaining agent.
/11/ Cf. Marine and Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir.
1963).
There is some precedent for this view under Executive Order No.
11491, as amended. The Federal Labor Relations Council held in Internal
Revenue Service, Ogden Service Center, et al. and Internal Revenue
Service, Brookhaven Service Center, 6 FLRC 310 (1978) that the parties
were not obligated to maintain all provisions in an expired negotiated
agreement. The Council held that, upon expiration of an agreement and
absent agreement to the contrary, the agency was not required to
maintain provisions relating to "permissive" subjects of bargaining, and
the parties were not required to maintain provisions relating to matters
outside the scope of bargaining. It was also necessary that the
agreement be brought into conformance with changes in laws and
regulations. Cf. Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 10 FLRA No. 36, 10 FLRA
172, 178-179 (1982).
The right which the Authority recognized in Nuclear Regulatory
Commission, supra, use of agency bulletin boards, was a right gained
only by contract, not one provided by the Statute. Thus, that holding
did not deprive the union of rights to which it was otherwise entitled
by law. By contrast, the right of PASS to bargain is not dependent upon
its ability to secure such a right in a collective bargaining agreement.
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, supra. Rather, it is a right
that, by Congressional command, is a natural consequence of
certification. /12/ To adopt the position urged by the FAA would force
PASS to negotiate an agreement to gain the right to negotiate. This is
surely not the situation Congress wished to create when it provided
federal employees statutory protection of the right "to organize,
bargain collectively, and participate through labor organizations of
their own choosing in decisions which affect them . . . (.)" 5 U.S.C.
7101(a)(1). See also 5 U.S.C. 7102(2). Cf. Timken Roller Bearing Co.
v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963) (distinguishing between the
failure to gain contractual rights and the waiver of rights secured by
statute).
Extension of the rule in Nuclear Regulatory Commission to the waiver
in this case would force the newly certified Union to enter the
collective bargaining relationship already deprived of its most
fundamental right and thereby unable from the onset to function as
contemplated by the Statute. Moreover, application of FASTA's waiver to
the newly certified Union would effectively nullify the mandate of the
employees who have selected PASS to replace FASTA as their exclusive
representative. During the several years it sometimes takes to
negotiate a full agreement, the new representative would be a mere
shadow of the effective bargaining representative contemplated by the
Statute. Continuation of the limited right to consult would require the
new Union to bail with a sieve until a new agreement is reached.
Management would be completely free to institute sweeping changes in
conditions of employment not specifically covered by the agreement
without first bargaining with employees through the representative they
have selected to the extent provided for by the Statute.
In the present instance, FAA changed a practice concerning holiday
staffing which was one of long duration. Extension of the rule in
Nuclear Regulatory Commission so as to bind the newly certified
collective bargaining representative to its predecessor's waiver of its
statutory right to bargain in such circumstances would be to diminish,
rather than enhance, the new relationship with no concomitant
stabilizing benefit regarding those conditions of employment not
specifically addressed in the agreement. Such a result would also not
be "consistent with the established framework of the Statute which
provides for the peaceful resolution of bargaining disputes and
'facilitates and encourages the amicable settlement of disputes between
employees and their employers involving condition of employment,' which
is an underlying purpose of the Statute." Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base, California, 4
FLRA No. 5 (1980).
In an analogous situation in the private sector, it is the rule that
where a contract is no bar to the conduct of a representational
election, then it similarly cannot prevent full collective bargaining by
the newly selected representative. In the lead case adopting this
principle, American Seating Co., 106 NLRB 250, 32 LRRM 1439 (1953), the
employer had argued that the contract negotiated by UAW for its
plant-wide unit still controlled a group of employees who had voted for
a separate unit to be represented by the Patternmakers. The employer
contended that the Patternmakers would not have the right to negotiate a
new agreement until expiration of the UAW contract. The right to
negotiate a new agreement is conceded here, and we are concerned only
with the waiver by the former representative of the right to negotiate
concerning changes not specifically covered by the agreement. However,
in rejecting the employer's arguments, the Board eloquently stated its
rationale in terms equally applicable to the instant situation:
Although the certification of October 6, 1952, gave the Pattern
Makers immediate status as exclusive representative 'in respect to
rates of pay, wages, and hours of employment,' the Respondent
would qualify the Pattern Makers' authority as to these subjects
by adding, 'after July 1, 1953.' If the Respondent's contention is
sound, a certified bargaining representative might be deprived of
effective statutory power as to the most important subjects of
collective bargaining for an unlimited number of years as the
result of an agreement negotiated by an unwanted and repudiated
bargaining representative. There is no provision in the statute
for this kind of emasculated certified bargaining representative.
Id., 106 NLRB at 255. Additionally, the Board noted that the
National Labor Relations Act provides employees dissatisfied with their
present bargaining representative the opportunity to select a new
representative through a Board conducted election. The Board said that
this policy would be defeated entirely by saddling the new bargaining
representative with the contractual errors of its predecessor:
* * * if a newly chosen representative is to be hobbled in the
way proposed by the Respondent, a great part of the benefit to be
derived from the no-bar rule will be dissipated. There is little
point in selecting a new bargaining representative which is unable
to negotiate new terms and conditions of employment for an
extended period of time.
Id.
As noted, the Statute provides that upon certification, a bargaining
representative " * * * is entitled to act for, and negotiate collective
bargaining agreements covering, all employees in the unit." 5 U.S.C.
7114(a)(1). Further, the Statute makes it an unfair labor practice " *
* * to refuse to consult or negotiate as required by this chapter." 5
U.S.C. 7116(a)(5). Thus, the right of a union and the corresponding
obligation of an agency to bargain flow directly from the Statute and
vest upon certification. Like the analogous right conferred by the
National Labor Relations Act, the right to bargain conferred by the
Statute cannot be defeated for years by a waiver executed by an
"unwanted and repudiated" bargaining agent.
Respondent argues in effect that it gives the Union an unfair
advantage if it is not bound by such a waiver, but obtains the benefits
of other articles setting forth specific conditions of employment which
might not be in the agreement but for the waiver. However, management
is not rendered powerless to make changes in such conditions of
employment. It has been held that management's obligation to adhere to
existing conditions of employment to the maximum extent possible does
not prevent management from making changes in otherwise negotiable
conditions of employment where such changes are required consistent with
the necessary functioning of the agency. Cf. United States Department
of Justice, United States Immigration and Naturalization Service, 9 FLRA
No. 36 (1982). In other circumstances, existing conditions of
employment expressly set forth in the agreement can be modified in a
manner consistent with the bargaining obligation of the Statute.
Nuclear Regulatory Commission, supra.
The FAA's position literally flies in the face of the rule, noted at
the outset, that, absent a "clear and unmistakable waiver," a certified
bargaining representative has a statutory right to bargain on all
proposed changes to conditions of employment. Department of the Air
Force, Scott Air Force Base, supra. There is no evidence that PASS ever
waived its right to bargain, or has ever elected to consult rather than
negotiate changes in working conditions. In fact, the record evidence
conclusively demonstrates the Union's insistence on enforcing its
statutory right to negotiate over changes in working conditions.
It is concluded that the Union is not bound by the waiver contained
in the FASTA agreement. Respondent was, therefore, obligated to provide
the Union with the notice and the opportunity to bargain, in accordance
with the requirements of the Statute, regarding the impact and
implementation of the changes in holiday staffing practices.
Whether Respondent's Conduct In "Consulting" With the Union Satisfied
Its Statutory Bargaining Obligation
Respondent argues that it met any obligation to bargain in good faith
regarding the impact and implementation of the changes in holiday
staffing notwithstanding that it described its conduct as
"consultation." The facts demonstrate that such a contention is without
merit.
First, the FAA studiously ignored PASS' request that notice of
proposed changes was to be provided to PASS Regional Vice-President Sump
and attempted to discuss the changes with representatives that it had
been informed had no authority to negotiate. An agency has an
obligation to provide notice to, and bargain with, the person or persons
designated by the exclusive representative, and failure to do so itself
violates the Statute. Department of Health and Human Service, Social
Security Administration, Field Assessment Office, Atlanta, Georgia, 11
FLRA No. 78 (1983); Northeastern Program Service Center, 1 FLRA 779,
790 (1979). See also, American Federation of Government Employees,
AFL-CIO, 4 FLRA No. 39 (1980); Philadelphia Naval Shipyard, 4 FLRA No.
38 (1980). Accordingly, it must be held that proper notice was not
provided.
Second, the individuals who did "consult" on behalf of the FAA all
admitted that they did not have authority to conclude agreements.
Absent representatives with such authority, the FAA could not fulfill
its duty to bargain as defined by the Statute. 5 U.S.C. 7114(b)(2) and
(5).
Finally, it is manifest that the FAA agents did not approach the
discussions with local PASS representatives with "a sincere resolve to
reach a collective bargaining agreement." 5 U.S.C. 7114(b)(1); 5 U.S.C.
7103(a)(12). Respondent by its instruction to supervisors Cornell and
Powell precluded the existence of the prerequisite "good faith"
necessary under the Statute. Respondent has at all times maintained
that its only obligation with respect to the Union was to consult. This
was the policy promulgated to its managers following the certification
of PASS. It was the position it insisted on in its communications with
PASS. And it was the direction given to both Cornell and Powell in
dealing with the instant changes. Given that restriction, it is evident
that Respondent's representatives could not approach the Union with the
open mind and intent to reach agreement which is a prerequisite for
collective bargaining negotiations.
By the same token, neither during Cornell's March 2 meeting or March
3 encounter with Zmijewski, nor during Powell's May 3 meeting with Bruno
can Respondent be found to have engaged in collective bargaining. At
best, some sort of limited discussion regarding the change occurred at
each meeting, but such discussion, with no attempt to reach agreement,
is not good faith bargaining. Respondent's unwillingness to discuss the
issues with an open mind, and to engage in a "give and take"
relationship foreclosed any possibility of meaningful collective
bargaining. Internal Revenue Service and Brookhaven Service Center,
IRS, 4 FLRA No. 30 (1980).
Moreover, neither at SEATAC nor at Auburn did Respondent provide the
Union with an adequate opportunity to respond prior to its announcement
of the changes to the employees. Although both Mr. Zmijewski and Mr.
Bruno indicated their disagreement with the changes in holiday staffing
proposed at their respective facilities, and although both indicated
their intent to get back to management or take further action, the new
watch schedule, with its changes in holiday staffing was posting at
SEATAC within 3 days of Cornell's "notice" to Zmijewski, and, at Auburn,
the letter to all employees advising them of the change was distributed
the very same afternoon. In neither case has Respondent demonstrated
any exigency which warranted its premature announcement of the change to
the employees.
Respondent, however, suggests that because Zmijewski did not offer
any specific proposals during the March 2 meeting, or in the March 3
encounter with Cornell; or because Bruno did not make any specific
proposals during his meeting with Powell on May 3, the Union somehow
waived any rights it might have to negotiate the change, thus permitting
Respondent to proceed with its announcements. Respondent is mistaken.
The Union does not forego its right to bargain because it does not
present proposals at the instant it is advised of a change. The Union
representatives did make known their objections to the change and each
raised issues regarding equalization. The Union is entitled to a
reasonable opportunity to consider management's proposals, consistent
with the nature of the change which is proposed and its anticipated
implementation date. In the absence of an express waiver Respondent can
conclude that the Union has acquiesced in its changes and proceed with
implementation only after a reasonable time has expired. Cf. Bureau of
Government Financial Operations Headquarters, 11 FLRA No. 68 (1983);
United States Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982).
Thus, neither at SEATAC or Auburn did Respondent give the Union a
reasonable opportunity to respond before its announcement of the changes
to the employees. /13/ In fact, when the Union representatives did
thereafter, and in timely fashion, request to bargain, Respondent
delayed its responses and refused to negotiate regarding the changes.
The record does not support Respondent's position that the Union
representatives limited their requests to "decision" bargaining. See
Department of the Treasury, United States Customs Service, Region 1,
Boston, Massachusetts, et al., 10 FLRA No. 100 (1982). In his letter of
March 11, Leo Zmijewski indicated his position that the established
practice of holiday staffing continue, specifically requested to
negotiate if management intended to change that practice, and designated
Lawrence Sump, PASS Regional Vice President as the Union representative
for that purpose. Although there was still ample opportunity for the
parties to engage in collective bargaining prior to the May 31 holiday,
Respondent delayed almost 2 months, until May 7, before responding to
the Union's request. It then, ignored the Union's designation of its
representative, responded to Mr. Zmijewski, and advised him that it had
already met its obligation to the Union by its consultation of March 2
and 3.
Similarly, Bruno's May 4 letter to Division Chief Wichels, which was
routed through Powell's office, must also be construed as a request to
bargain. Although Powell insists that no request to bargain was ever
directed to him, in fact it was he who responded to Bruno's letter. In
Powell's response, some 21 days later, and only a few days before the
affected holiday, Respondent again refused to bargain on grounds that it
had already met its obligation to consult with the Union regarding the
change.
In light of the foregoing, it is concluded that Respondent's
"consultations" with the Union, both at SEATAC and Auburn, were
inadequate to comport with its statutory obligation to provide the Union
proper notice and the opportunity to negotiate, pursuant to sections
7106(b)(2) and (3), prior to implementation of the changes in holiday
staffing. Respondent's conduct, both at SEATAC and Auburn, constituted
refusal to bargain in good faith with the exclusive representative and
unfair labor practices in violation of sections 7116(a)(1) and (5) of
the Statute.
The General Counsel seeks, in addition to a cease and desist order
and posting in both cases, a status quo ante remedy, including a make
whole order, with respect to the Auburn case. The Charging Party seeks
a return to the status quo ante in both cases and back pay for those
technicians who would have worked holidays under the old policy and were
denied the opportunity to do so.
The Authority has held that the nature and circumstances of the
violation must be balanced against the degree of disruption in
government operations that would be caused by such a remedy. The
Authority set forth in Federal Correctional Institution, 8 FLRA No. 111
(1982) the various factors which must be considered.
In the present cases, consideration of these factors necessarily
leads to conclusion that the remedy must include restoration of the
status quo ante. As detailed supra, no proper notice was provided and
that which was provided came on the eve of implementation. Despite the
FAA's refusal to notify the proper PASS official, the local
representatives who were notified requested bargaining in a reasonably
prompt manner. As to the willfulness of the agency's conduct, this
factor is strongly in FAA's favor. The sole reason for the agency's
failure to discharge its bargaining obligation under the Statute was
because it felt it was obligated to adhere to the agreement negotiated
with FASTA under the Authority's Nuclear Regulatory Commission decision.
With respect to impact, the change in staffing policy resulted in a
loss of pay, an increased workload on holidays, and an increased chance
that employees with holiday leisure plans would be called back to work
because of short staffing under the new policy. The record does not
indicate that such a remedy would create a serious disruption in
Respondent's operation, but would merely require the FAA to return to a
policy that it voluntarily followed for years. Accordingly, under all
the circumstances, it is concluded that a status quo ante remedy is
warranted.
In order for retroactive back pay to be authorized under the Bach Pay
Act, /14/ there must be a determination not only that the employee has
suffered an unjustified or unwarranted personnel action within the
meaning of the Act, but also that such action directly resulted in the
denial of back pay that the aggrieved employee would otherwise have
received. Picatinny Arsenal, U.S. Army Armament Research and
Development Command, Dover, New Jersey, 7 FLRA No. 109 (1982); American
Federation of Government Employees, Local 2811, 7 FLRA No. 97 (1982);
Veterans Administration Hospital, 4 FLRA No. 57 (1980).
It is not possible to conclude from the record that by the FAA's
failure to negotiate on impact and implementation the technicians
previously scheduled to work holidays under the old policy were affected
by unjustified or unwarranted personnel action which directly resulted
in the loss of pay. To put it another way, it appears that back pay
would not be appropriate in the absence of a finding that the
technicians would have worked the holidays had negotiations occurred.
It is not possible to draw this conclusion from the record.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington and the Federal Aviation
Administration, Washington, D.C. shall:
1. Cease and desist from:
(a) Changing the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center,
and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport, or otherwise changing established past practices
affecting the working conditions of employees represented
exclusively by the Professional Airways Systems Specialists,
without first notifying the Professional Airways Systems
Specialists of its intention and affording it the opportunity to
negotiate in good faith to the extent consonant with law and
regulation.
(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) Rescind the 1982 changes in holiday staffing practices at
the Auburn Airway Facilities Sector, Auburn Air Route Traffic
Control Center, and the Seattle Radar Data Communications Unit,
Seattle-Tacoma Airport and restore all conditions of employment
regarding these matters which were in effect prior to such
changes.
(b) Notify the Professional Airways Systems Specialists of any
intention to change the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center,
and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport, or any other change in established past practices
affecting the working conditions of employees represented
exclusively by the Professional Airways Systems Specialists, and,
upon request, negotiate in good faith to the extent consonant with
law and regulation.
(c) Post at its facilities at the Auburn Air Route Traffic
Control Center and the Seattle Radar Data Communications Unit
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 Director of Labor Relations 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
Director 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 Nine, 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.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: April 25, 1983
Washington, DC
WE WILL NOT change the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center, and
the Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or
otherwise change established past practices affecting the working
conditions of employees represented exclusively by the Professional
Airways Systems Specialists without first notifying the Professional
Airways Systems Specialists of our intention and affording it the
opportunity to negotiate in good faith to the extent consonant with law
and regulation.
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 1982 changes in holiday staffing practices at the
Auburn Airway Facilities Sector, Auburn Air Route Traffic Control
Center, and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport and restore all conditions of employment regarding these matters
which were in effect prior to such changes.
WE WILL notify the Professional Airways Systems Specialists of any
intention to change the holiday staffing practices at the Auburn Airway
Facilities Sector, Auburn Air Route Traffic Control Center, and the
Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or any
other change in established past practices affecting the working
conditions of employees represented exclusively by the Professional
Airways Systems Specialists, and, upon request, negotiate in good faith
to the extent consonant with law and regulation.
(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 Nine,
whose address is: 530 Bush Street, Room 542, San Francisco, California
94108, and whose telephone number is (415) 556-8106.
/1/ Article 54 of the agreement provides as follows:
ARTICLE 54 - CHANGES IN THE AGREEMENT
Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices, and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this agreement.
/2/ Section 7106(b)(2) and (3) provides as follows:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/3/ Section 7106(b)(1) provides as follows:
(b) Nothing in this section 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 or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/4/ As the Authority has previously stated, the parties may, but are
not obligated to, bargain as to matters which do not concern conditions
of employment of bargaining unit employees, i.e., are permissive in
nature and therefore outside the required scope of bargaining. See,
e.g., International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 at 445 (1980); Department of
the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 11
FLRA No. 66 (1983); American Federation of Government Employees,
AFL-CIO, 4 FLRA 272 (1980); Department of Health and Human Services,
Region IV, Atlanta, Georgia, 9 FLRA No. 150 (1982); Department of the
Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 10 FLRA No. 53 (1982).
/5/ As noted by the Judge at page 14 of his Decision, the foregoing
principles were applicable under Executive Order 11491, as amended.
/6/ See, e.g., American Federation of Government Employees, Local
3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980); 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 No. 105
(1981) (Union Proposal 6), aff'd on other grounds, NFFE, Local 1167 v.
FLRA, 681 F.2d 886 (D.C. Cir. 1982).
/7/ The General Counsel's unopposed motion to correct the transcript
is granted; the transcript is hereby corrected as set forth therein.
/8/ The FASTA-FAA agreement was negotiated prior to enactment of the
Statute, which eliminated the need of an exclusive representative to
negotiate dues checkoff agreements. 5 U.S.C. 7115.
/9/ For example, a given technician might work afternoon shift from
Tuesday through Saturday one week, have three days off and work
Wednesday through Monday on day shift, and so forth throughout the year.
(See G.C. Exs. 6, 7, 11, 12, 13).
/10/ There was apparently a problem with the schedule as posted on
March 5 unrelated to the change in holidays; the schedule was corrected
and reposted on Monday, March 8, 1982 (Tr. 34).
/11/ My colleague, Judge Salvatore J. Arrigo, reached the opposite
conclusion with respect to Articles 54 and 37 of the same agreement in
Department of Transportation, Federal Aviation Administration, Los
Angeles, California, OALJ-83-64, Case No. 8-CA-20260 (March 11, 1983).
Judge Arrigo pointed out the broad language of the Authority's language
in Nuclear Regulatory Commission, and noted, "(T)here is no indication
given in Nuclear Regulatory Commission that the Authority is inclined to
approach the matter in a manner whereby the express waiver of a
statutory right concerning a union's relationship with an employer would
be treated differently from any other contractual term and condition of
employment."
/12/ In this connection, section 7114(a)(1) and (b)(3) of the Statute
provides, in relevant part, as follows:
Sec. 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. . . .
(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--
(3) to meet at reasonable times . . . as frequently as may be
necessary. . . .(.)
The phrase, "collective bargaining," in turn, is defined in section
7103(a)(12) of the Statute as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
(12) "collective bargaining" means the performance of the
mutual obligation of the representative of an agency and the
exclusive representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult and bargain
in a good faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute,
if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation
referred to in this paragraph does not compel either party to
agree to a proposal or to make a concession(.)
/13/ Respondent's evidence, purporting to show that Ray Perry gave
notice of the change in the Data Com unit to Union representative Lloyd
Burrell who, by his silence, concurred in the change, is not probative
of the allegations herein. Perry's alleged notice to Burrell occurred
on March 8, after the new watch schedule incorporating the change in
holiday staffing had already been posted. The only relevant
consideration herein concerns the "notice" given by supervisor Cornell
to unit representative Leo Zmijewski which, as discussed above, was
inadequate.
/14/ The Back Pay Act of 1966 was amended by the Civil Service Reform
Act of 1978 (5 U.S.C. 5596). Section 5596(b)(1)(A)(i) now provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee -
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect -
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period; . . . .
14 FLRA No. 88; Case No. O-AR-529; May 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1701. Clarification and Interpretation DIGEST NOTES
The dispute in this matter concerned the agency's failure to
repromote grievant, a repromotion eligible. The arbitrator determined
that the agency violated the provisions of FPM chapter 335 and ordered
that the grievant be offered retroactive repromotion with backpay and
benefits. The Authority found that the award was deficient since
failure to accord a repromotion-eligible employee the special
consideration for promotion to which the employee is entitled cannot
constitute the requisite finding that but for such unwarranted action,
the grievant would in fact have been selected for promotion.
Consequently, since the arbitrator failed to make the determination
necessary for a proper award of a retroactive promotion and backpay the
Authority modified the award to provide that the "grievant is entitled
to special consideration for repromotion to any appropriate vacancy at
the WG-12 level".
UNITED STATES AIR FORCE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES UNION, LOCAL 916, AFL-CIO
Case No. O-AR-529
This matter is before the Authority on exceptions to the award of
Arbitrator Edmund W. Schedler filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations.
The dispute in this matter concerns the Activity's failure to
repromote the grievant, a repromotion eligible, to a WG-12 position, the
grade from which he had been demoted without personal cause and not at
his request. The Arbitrator determined that the Activity violated the
repromotion eligible provisions of Federal Personnel Manual (FPM)
chapter 335 /1/ and ordered that the grievant be offered repromotion to
WG-12, retroactive to March 30, 1982, with backpay and benefits.
In one of its exceptions, the Agency contends that the award is
contrary to the Back Pay Act, 5 U.S.C. 5596. The Authority agrees.
The Authority has consistently held in cases involving a failure to
promote that in order for an award of retroactive promotion and backpay
to be authorized under the Back Pay Act, there must not only be a
determination that the grievant was affected by an unjustified or
unwarranted personnel action, but also a determination that such
unwarranted action directly resulted in the denial of a promotion that
the employee would otherwise have received. E.g., Action and Action
Employees Union, American Federation of State, County and Municipal
Employees, Local 2027, 11 FLRA No. 89 (1983). Moreover, the Authority
has expressly held that the failure to accord a repromotion-eligible
employee the special consideration for promotion to which the employee
is entitled cannot constitute the requisite finding that but for such
unwarranted action, the grievant would in fact have been selected for
promotion. Id. at 2. Consequently, in terms of this case, the
Arbitrator failed to make the determination necessary for a proper award
of a retroactive promotion and backpay. Therefore, the award is
deficient as contrary to the Back Pay Act and must be modified to
provide an appropriate remedy. Id. Accordingly, the award is modified
to provide as follows: /2/
The grievant is entitled to special consideration for
repromotion to any appropriate vacancy at the WG-12 level.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Arbitrator cited to provisions of FPM chapter 335 which had
been superseded. However, the repromotion eligible provisions have at
all relevant times remained substantially unchanged. See FPM Letter
335-12, December 29, 1978.
/2/ In view of this decision, it is not necessary to address the
other exceptions.
14 FLRA No. 87; Case No. O-AR-441; May 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts With Applicable Law DIGEST NOTES
The dispute in this matter concerns the activity's selection of
employees for a general mechanic leader position. The arbitrator
determined that the selection of one employee did not fully conform to
the procedures for merit promotion in the parties' agreement and awarded
as a remedy, among other things, that only certain candidates would be
eligible for the next position that becomes available. In its
exceptions, the agency contended that the award was contrary to Sec.
7106(a)(2)(C). The Authority held that the award conflicted with
management's right under Sec. 7106(a)(2)(C) to fill positions by
selecting from among a group of properly ranked and certified candidates
for promotion or from any appropriate source. Consequently, the
Authority modified the award.
GEORGIA NATIONAL GUARD,
FORT STEWART, GEORGIA
GEORGIA ASSOCIATION OF
CIVILIAN TECHNICIANS UNION
Case No. O-AR-441
This matter is before the Authority on an exception to the award of
Arbitrator J. Earl Williams 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 dispute in this matter concerns the Activity's selection of three
employees for a general mechanic leader position. A grievance was filed
and submitted to arbitration challenging one of the selections. The
Arbitrator essentially determined that the selection of that employee
did not fully conform to the negotiated procedures for merit promotion
of the parties' collective bargaining agreement. Accordingly, his award
was as follows:
The proper resolution of the subject grievance is to award
"priority consideration" to the remaining nine candidates in
question. Other employees will not be eligible for consideration
for the next leader position for General Mechanic. After filling
one more such position, other employees will be eligible to apply.
Those receiving "priority consideration" will not be required to
resubmit their SF 171s for certification.
In its exception the Agency contends that the award is contrary to
section 7106(a)(2)(C) of the Statute. The Authority agrees.
The Authority has expressly held that section 7106(a)(2)(C) provides
for management's right to select from among a group of properly ranked
and certified candidates for promotion or from any appropriate source.
U.S. Army Infantry Center, Ft. Benning, Georgia and American Federation
of Government Employees, Local 54, AFL-CIO, 12 FLRA No. 38 (1983).
Therefore, in terms of this case, the award to the extent that it
requires the Activity to fill the next general mechanic leader position
from only among the original nine candidates is deficient as contrary to
section 7106(a)(2)(C) and must be modified accordingly. Therefore, the
award is modified to provide as follows:
The proper resolution of the subject grievance is to award
"priority consideration" to the remaining nine candidates in
question. Those receiving "priority" consideration will not be
required to resubmit their SF 171s for certification.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
14 FLRA No. 86; Case No. O-AR-273; May 17, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1701. Clarification and Interpretation DIGEST NOTES
The dispute in this matter concerned the voluntary demotion of the
agency's New York deputy district director to a particular criminal
investigator position. The arbitrator found that the agency had
violated the parties' agreement and agency regulation by failing to
announce the position and post the vacancy. He, consequently (1)
directed the agency to announce the position and post the vacancy and
(2) rescinded the agency's action in placing the district director in
the position. In an exception the agency contended that the award is
contrary to FPM chapter 335. Since the arbitrator did not specifically
determine that a reconstruction of the selection action showed that the
selected employee could not have been selected at the time the action
was taken, the Authority found that the award, to the extent it ordered
the position vacated in advance of corrective action, was deficient as
contrary to FPM chapter 335, appendix A, section A-4. In another
exception, the agency contended that the award interfered with its
rights to hire and fill positions under section 7106(a)(2)(A) and (C)
and its right to select under FPM chapter 335, subchapter 1-4,
Requirement 4. The Authority found that this exception provided no
basis for finding the award deficient since the award expressly provided
that the corrective action must conform with appropriate rules and
regulations.
UNITED STATES DEPARTMENT
OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1917
Case No. O-AR-273
This matter is before the Authority on exceptions to the award of
Arbitrator Rodney E. Dennis 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. /1/
The dispute in this case concerns the voluntary demotion of the
Agency's New York deputy district director to a particular criminal
investigator position. The Arbitrator determined that the Activity had
violated the parties' collective bargaining agreement and agency
regulation by failing to announce the position and post the vacancy.
Accordingly, the Arbitrator awarded as follows:
The Agency is directed to announce the open position on the
Newark Strike Force and to fill it in accordance with appropriate
rules and regulations. Its action of placing Drastal in the
position shall be rescinded.
As one of its exceptions, the Agency contends that the award is
contrary to FPM chapter 335 by ordering that the position be vacated in
advance of corrective action. The Authority agrees.
The Authority has repeatedly held that the incumbent employee in
these cases is entitled pursuant to FPM chapter 335, appendix A, section
A-4b to be retained in the position pending corrective action unless it
is specifically determined that the incumbent could not originally have
been properly selected. E.g., Defense Contract Administration Services
Management Area (DCASMA), Cedar Rapids, Iowa and American Federation of
Government Employees, Local 2752, AFL-CIO, 10 FLRA No. 94 (1983). In
terms of this case, the Arbitrator did not specifically determine that a
reconstruction of the selection action showed that the selected employee
could not have been selected had the proper procedures been followed at
the time the action was taken. Therefore, the award to the extent it
orders the position vacated in advance of corrective action is deficient
as contrary to FPM chapter 335, appendix A, section A-4. See id. at 2.
Accordingly, the award is modified to substitute the following for the
last sentence of the award: /2/
The action involving the incumbent employee must fully conform
with controlling law and regulation and with the parties'
collective bargaining agreement.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The Office of Personnel Management (OPM) filed a brief as an
amicus curiae. The Union filed oppositions to both the Agency's
exceptions and OPM's amicus curiae brief. In its opposition to the
Agency's exceptions, the Union claims that the exceptions should be
dismissed because the Activity and not the Agency is a party. However,
the Authority finds that the exceptions were properly filed by the
Agency on behalf of its Activity.
/2/ In its other exceptions the Agency contends that the award
interferes with its rights to hire and fill positions under section
7106(a)(2)(A) and (C) and its right to select under FPM chapter 335,
subchapter 1-4, Requirement 4. However, the award expressly provides
that the corrective action must conform with appropriate rules and
regulations which would necessarily include, as applicable, the
provisions cited by the Agency. Accordingly, no basis is provided for
finding the award deficient in this respect and the exceptions are
denied. See Adjutant General, State of Oklahoma, Air National Guard and
American Federation of Government Employees, Will Rogers Air National
Guard Local 3953, 8 FLRA No. 23, at 3 n. (1982).
14 FLRA No. 85; Case Nos. 6-CO-37, 6-CO-38; May 17, 1984.
DIGEST HEADINGS
5000. UNFAIR LABOR PRACTICE: UNION
5010. Generally
5100. Interference, Restraint, Coercion DIGEST NOTES
When the local union's chief steward responded to a non-union crew
chief who sought to participate in negotiations by saying to the crew
chief that " . . . he could . . . join the union . . . and then he would
have a say on what the union was doing", the steward's statements
correctly stated the rights flowing from union membership and was not a
promise of benefits proscribed by Sec. 7116(e). Rather the chief
steward's statements fell within the protection of freedom expression of
personal view of Sec. 7116(e), the ALJ concluded in a decision adopted
by the Authority.
The president of a local union stated to the most vocal of the
non-members that the non-member was a "troublemaker" and that she would
"get" him. The statement constituted a threat and, made in the presence
of other non-members, also had a chilling effect upon the right of other
employees to, among other things, refrain from joining or assisting any
labor organization "freely and without fear of penalty or reprisal".
Accordingly, the union violated Sec. 7116(b)(1), the ALJ concluded in a
decision adopted by the Authority.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2000, AFL-CIO
WILLIAM R. MASSENGALE
Case Nos. 6-CO-37, 6-CO-38
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge found further that the
Respondent had not engaged in certain other unfair labor practices
alleged in the consolidated complaint, and recommended dismissal of
those portions of the consolidated complaint. Thereafter, the General
Counsel filed exceptions and a supporting brief with respect to certain
portions of 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 hereby adopts the
Judge's findings, conclusions and recommended Order. /1A/
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 American Federation of Government Employees, Local 2000,
AFL-CIO shall:
1. Cease and desist from:
(a) Threatening to "get" or to "get rid of" non-members of the Union.
(b) In any like or related manner interfering with, restraining, or
coercing any unit 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 effectuate the
purposes and policies of the Statute:
(a) Post at its business offices and its normal meeting places,
including all places where notices to members and unit employees
represented by Local 2000 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 an
appropriate official of the American Federation of Government Employees,
Local 2000, AFL-CIO, and shall be posted for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
members and to other employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered, defaced, or
covered by any other material.
(b) Submit appropriate signed copies of said Notices to the Commander
of Barksdale Air Force Base for posting in conspicuous places where unit
employees are located, where they shall be maintained for 60 consecutive
days from the date of posting.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of 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 of the
consolidated complaint in Case Nos. 6-CO-37 and 6-CO-38 be, and they
hereby are, dismissed. Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT threaten to "get" or to "get rid of" non-members of the
Union.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any unit employee in the exercise by the employee of any right
under the Federal Service Labor-Management Relations Statute.
(Union)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority whose address is:
Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas, and
whose telephone number is: (214) 767-4996.
Case Nos. 6-CO-37, 6-CO-38
Mr. Carl W. Holt
Ms. Opal B. Adams
For the Respondent
Elizabeth A. Martinez, Esquire
Susan Jelen, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 6 U.S.C. 7101,
et seq., /1/ and the Rules and Regulations issued thereunder, 5 C.F.R.
2423.1, et seq., was initiated by a charge in Case No. 6-CO-37, filed on
May 18, 1981 (G.C. Exh. 1(a)), which alleged violations of Secs.
16(b)(1), (2) and (5) of the Statute by American Federation of
Government Employees, Local 2000, AFL-CIO (hereinafter referred to as
"Union") as the result of statements made by the then Chief Steward of
the Union, Mr. Franks, in a conversation between Mr. Franks and Mr.
William Massengale, and other employees, all of whom were non-members of
the Union, outside the maintenance office on, or about, April 25, 1981;
and by a charge in Case No. 6-CO-38 (G.C. Exh. 1(d)), also filed on May
18, 1981, which alleged violations of Secs. 16(b)(1), (2) and (5) of the
Statute by the Union as the result of statements made at a Union meeting
by the President of the Union to non-members of the Union. On July 27,
1981, an Order Consolidating Cases, Consolidated Complaint and Notice of
Hearing issued (G.C. Exh. (g)). The Consolidated Complaint alleged
violation of Sec. 16(b)(1) only and the Notice of Hearing set the
hearing for October 26, 1981, at a place to be determined. On August
27, 1981, an order rescheduling the hearing for October 28, 1981, issued
(G.C. Exh. 1(i)) pursuant to which a hearing was duly held before the
undersigned on October 28, 1981, in Shreveport, Louisiana.
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 involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
November 30, 1981, was fixed as the date for mailing post-hearing briefs
which time was subsequently extended for good cause shown, and
specifically delay in receipt of the transcript, to December 18, 1981.
Counsel for General Counsel timely mailed a most helpful Brief, received
on December 22, 1981, which has 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:
1. The Union is the exclusive representative for employees in the
bargaining unit covering all professional and non-professional civilian
employees paid from appropriated funds of Barksdale Air Force Base and
on-base tenant organizations. The 917th Tactical Fighter Group Reserve
Unit (hereinafter referred to as the "917th") is a tenant organization.
2. At all times material, William Massengale, John Tomasak, Myna
Babb and Joe Linder were civilian technicians employed as crew chiefs by
the 917th. Crew chiefs are responsible for the maintenance and flight
preparation of aircraft. The named individuals, while included in the
bargaining unit represented by the Union, were not, and never had been,
members of the Union.
3. In April, 1981, the 917th advised Ms. Opal B. Adams, President of
the Union, that it had got the new A-10 aircraft and that the 917th
would also operate a training school for the A-10 aircraft; that,
because its mission had changed, it would have to change working hours
in order to cover the pilots in training (Tr. 191). The Union requested
impact and implementation negotiations and designated Mr. Carl W. Holt,
National Representative, as its chief negotiator. On the Union's
negotiating team was Mr. Jack E. Franks, Chief Steward and, also, a crew
chief.
4. As a result of the ensuing negotiations, an agreement was reached
by management and the Union's negotiating team (Res. Exh. 1) which,
pursuant to the Union's procedures, was subject to ratification by the
membership of the Union.
5. The change in hours consisted of establishing a Tuesday through
Saturday tour of duty. The non-Union crew chiefs became aware of the
impending change and on, or about April 25, 1981, Mr. William Massengale
had a discussion with Mr. Jack Franks, about the schedule. /2/ This
discussion took place outside the door of the maintenance office. Both
Mr. Massengale and Mr. Franks subsequently left the employ of the 917th
and neither testified at the hearing. Mr. Joe M. Linder, a crew chief,
and Mr. John A. Tomasak, another crew chief, came by while the
discussion between Messrs. Massengale and Franks was in progress. Mr.
Linder testified that he heard the following:
"Q. Now, what was Mr. Massengale asking?
"A. Well, he was wanting to get some answers to some questions
about our job, the way the union was representing us about the job
and Mr. Franks was telling him that by being non-members, that the
union didn't have to represent them.
"Q. Do you recall anything more that he was saying?
"A. Well, he-- Mr. Franks went ahead and told him if he wanted
to have a say in what the union was doing, that he could go ahead
and join the union and start paying his dues and then he would
have a say on what the union was doing." (Tr. 96-97).
Mr. Tomasak testified, in part, as follows:
"Q. Do you recall what it was that Mr. Massengale was telling
Mr. Franks?
"A. He was discussing being represented by the union.
"Q. Okay. Do you recall what Mr. Franks was stating to Mr.
Massengale?
"A. Well, like I said, the discussion got kind of heated and
Bill Massengale was asking Jack Franks about being represented.
And Jack Franks said, I don't give a damn about anybody who is not
in the union. He said, as far as I'm concerned, all you
son-of-a-bitches can go to hell. He said, you had the opportunity
to join the union and be represented and if you don't, you can
keep your damned mouth shut. He said, I represent the people who
are in the union and pay dues and everybody else can go to hell.
"Q. Did you say anything?
"A. At that point I asked Jack Franks, I said, 'Does that mean
if I am not in the union I can't be represented?' And he says,
you're damned right. He says, I look out for myself. He says, I
pay my dues and everybody else can go to hell.
"Q. Now, did Mr. Massengale agree with this?
"A. He said, that's not right. He has got the right to be
represented. And Jack Franks says-- he said, hell no, not until
you you (sic) pay for the right." (Tr. 52-54).
On cross-examination, Mr. Tomasak testified, in part, as follows:
"Q. Okay. Thank you. You said that you want-- I want to get
this straight here. What right do you contend you were denied as
a non-member?
"A. Well, if we have a grievance or anything, we are supposed
to be represented by the union.
"Q. When were you denied representative of a grievance?
"A. Well, I wasn't personally denied but during the contract,
the schedule changes being brought up, we asked about filing a
grievance and Jack Franks said it (sic) too late to file a
grievance.
"Q. What was the grievance on?
"A. That we didn't have any say so on the schedule being drawn
up.
"Q. Can you explain that? I'm not following what you mean you
didn't have any say so.
"A. There were changes of working hours and the length of time
we worked on each shift.
"Q. You mean by that that you weren't allowed to sit in at the
negotiating table? Is that what you're saying?
"A. Yes, sir." (Tr. 61).
BY MR. HOLT
"Q. Do I understand you then, Mr. Tomasak, to say that you
feel that you weren't being represented because non-members
weren't (sic) at the negotiating table, is that essentially what
you're saying?
"A. None of the members-- none of the union members were there
either. Not off the flight line.
"Q. You mean--
"A. It affected our schedule and none of the people that it
affected were there to negotiate and bargain.
"A. There was one person there, Jack Franks, and the only
reason he was there was because he was chief steward. It wasn't
because he was off the flight line.
"Q. Then is there a difference between Jack Franks being
there-- if he is there as union steward, you mean that has nothing
to do with him being an affected employee? Wasn't he affected?
"A. It affected him favorably. That's why he was pushing for
it because of the favorable part it would have on his life.
"Q. Well, what was Franks' pushing for exactly?
"A. One of the things he was pushing for was working on
Saturday because his wife worked on Saturday and she was off
Monday. And he wanted to work Saturday.
"Q. Well, do you know who proposed this irregular work
schedule, Mr. Tomasak?
"A. Management I believe." (Tr. 64-66).
6. The non-Union crew chiefs, set forth in Paragraph 2, learned that
a Union meeting was scheduled at which the work schedule changes were to
be considered; /3/ one or more of them contacted Mr. Dan Weeks, shop
steward, and asked him if they could attend the meeting and Mr. Weeks
said yes. Accordingly, Massengale, Tomasak, Babb and Linder, all
non-members, individually came to the Union meeting which had been
called to ratify the negotiated agreement (Res. Exh. 1). Ms. Adams,
President, presided and in attendance, also, were: Messrs. Franks,
Johnny Smith, Johnny Hood and Mr. James Brooks. /4/ The non-members
were identified to Ms. Adams and they were not asked to leave. To the
contrary, I credit Ms. Adams' testimony that she read the agreement and
that she answered questions about it (Tr. 199-200). Indeed, Mr. Hood,
with a greater sense of public relations than some of his fellow
members, quite candidly stated.
"Q. The meetings you attended when you were an officer, in the
event that non-members were you say there as invited guests, were
they allowed to vote and participate?
"A. No, sir, they were allowed to come and listen and it was--
well, the whole thing behind it was to invite non-union in the
hope to make members out of them, to show them what went on, you
know, what people was trying to work for them instead of against
them." (Tr. 176)
I do not credit Ms. Adams' testimony that she did not convene the
meeting. The record shows, and I find, that she did convene the
meeting; that the agreement was discussed; and that, as Mr. Hood
stated, there was dissatisfaction with the agreement expressed by
members as well as by the non-members present (Tr. 175, 183-184). It is
further clear that the non-Union employees present asserted a right to
vote on the agreement and that Ms. Adams told them that, as non-members
of the Union, they could not vote. As Mr. Hood very credibly testified.
" . . . that's what started the whole uproar. They was under
the impression, which I would probably have had too had had I not
belonged to the union, that if there was something out there that
was affecting my job and I felt that this part of a group of
people were involved in it, I would feel that I would want a voice
in it too." (Tr. 179).
Mr. Linder testified, in part, as follows:
". . . Ab far as having anything to say about the union itself,
my being a non-member, I feel that I have no right to deal with
the union. But when it has to do with my job on the flight line,
it puts food on the table for my kids and clothes on their backs,
then I feel that I should have a say on it being a member or not
of the union.
"Q. You're relating that to the work schedule then?
"A. Yes." (Tr. 103).
Mr. Tomasak's testimony was to like effect. He testified on
cross-examination, in part, as follows:
"A. We went there just to-- it was supposed to be discussion
before it was ratified and we went to see what the discussion was
about, see if there was anyway to change it. See why we didn't
have a say in what was going on in the first place.
"A. Well, if it affects the people on the flight line, we
should have something to say about it.
"Q. Well, do you mean by that that you should have been at the
negotiation sessions?
"A. No, we should have had somebody who represented us more
fully.
"Q. Well, who is supposed to represent the non-union members,
Mr. Tomasak?
"A. Well, there ought to be somebody there to represent us.
"Q. Well, meaning who?
"A. Well, if nobody else, we should elect somebody from the
non-union members and had somebody sit in there and bargain for
us." (Tr. 68-69).
On direct, Mr. Tomasak had testified, in part, as follows:
"Q. Did you ask Mrs. Adams any questions about the schedule?
"A. Yes, we did. We basically asked her the same questions we
did Jack Franks, why we couldn't be represented during the
bargaining of our schedule.
"Q. And do you recall what she said?
"A. She said that she didn't have to represent us, that we
didn't have anything to say unless we were in the union. That if
we joined the union, we could have a say so in schedules being
made and everything else.
"Q. What did she say your rights were?
"A. She said we didn't have any rights unless we were union
members. We didn't have to be represented." (Tr. 57).
Ms. Babb testified, in part, as follows:
"Q. . . . Do you recall what type of questions were being
asked?
"A. They were just scheduling-- discussing the proposed
schedule, you know, why we were working Tuesday through Saturday
on a 30-day rotation. They were just curious about the schedule
that was being proposed.
"Q. And what was Mrs. Adams response to these questions?
"A. Concerning the schedule, I don't recall what was said. It
was just proposed what was being discussed about it and she said
that we didn't have any rights as a non-union member. She didn't
have to listen to us or represent us, and if we decided to become
a union member at that time, we could have some say so about
scheduling-- we could work and stuff but if we were not a union
member, we had no rights. And if you became a member you can be
represented." (Tr. 88-89).
Mr. Linder testified that,
"A. Well, she (Ms. Adams) stated that as being non-union
members, that the union didn't have to represent us in any way.
(Tr. 100).
On cross-examination he was asked,
"Q. Isn't it true, Mr. Linder, that there is some confusion
here? Isn't it true that Mrs. Adams said in order to have a voice
in the final product, to ratify it, you must be a union member so
otherwise you have no voice? Isn't this essentially what she
said? (Tr. 108-109).
Mr. Linder responded,
"A. Well, that might have been what she meant but that wasn't
what she said.
"Q. In other words, you didn't understand it that way?
"A. No, I didn't understand it that way.
"Q. Well, are you aware, Mr. Linder, that your negotiating
committee, being the negotiating committee for the local, was
representing everybody at the bargaining table including you?
Were you not aware of that?
"A. By being a non-union member I was told I wasn't
represented." (Tr. 109).
7. The record shows without dispute that there were not sufficient
members present at the Union meeting held on, or about, April 25, to
constitute a quorum (See, Tr. 133, 167, 198). Ms. Adams may well have
retreated to reliance on the absence of a quorum because of the
opposition to the agreement by the Union members present, as Mr. Tomasak
testified, "And after a while when she saw that the three members that
were there, it wasn't going to be ratified because they were asking
questions and they really didn't like what was in it, she said they were
not going to vote on it that day . . . so she postponed it for a
different day" (Tr. 59); nevertheless, Ms. Adams did not bring to a
vote ratification of the agreement because of the absence of a quorum;
announced that the meeting would be rescheduled; "and non-union members
don't show up." (Tr. 93).
8. Although the non-union employees present at the Union meeting had
been identified to Ms. Adams at the commencement of the meeting, when
Mr. Massengale got up to leave either Ms. Adams asked him who he was
(Tr. 101) or she asked someone in the room who that man was and was told
it was Bill Massengale. Mr. Tomasak testified that Ms. Adams then said,
". . . oh, that's Bill Massengale. He is a troublemaker.
don't like troublemakers and I am going to get rid of him." (Tr.
58).
Mr. Linder testified, in part, as follows:
". . . and she said, oh, you're bill massengale. And he said,
yes, I am. And then after he went out, then, well, I believe that
Mrs. Adams said, so that's Bill Massengale. Says, he is a
troublemaker. Says, I will get him. But (sic) she meant by that
I have no idea." (Tr. 101).
Ms. Babb testified, in part, as follows:
". . . there was a little bit of a disturbance between the two
and she asked for his name. And he gave her his name and he left
and she stated that he was a troublemaker. And that's about all I
remember." (Tr. 89).
Mr. Hood, testified, in part, as follows:
"Q. Did you ever hear Mrs. Adams make a statement at the
meeting to Mr. William Massengale, I will get you?
"A. No, sir. Like I said, there was a lot going on and she
mentioned something about, well, you're just a troublemaker, or
something like that. I heard something to that effect." (Tr.
178).
Mr. Smith denied having heard any such statement (Tr. 147) as did Mr.
Brooks (Tr. 161) and Ms. Adams denied that she told Mr. Massengale she
would get him (Tr. 206), but she was neither asked, nor did she deny
that she called Mr. Massengale a troublemaker.
In any event, I find that Ms. Adams did call Mr. Massengale a
troublemaker and further that she said she would "get" him or "get rid
of him". I make this latter finding, with full awareness that neither
Ms. Babb nor Mr. Hood recalled any such statement although each very
credibly testified that Ms. Adams called Mr. Massengale a troublemaker,
in part because I found Mr. Tomasak's and Mr. Linder's testimony in this
regard wholly credible; in part because I did not find the testimony of
Mr. Smith, of Mr. Brooks, or of Ms. Adams in this regard credible; and
in part because the circumstances of singling out Mr. Massengale for
further identification at the end of the meeting and terming him a
"troublemaker", which even Ms. Adams did not deny, is so thoroughly
consistent with the "get" him statement attributed to Ms. Adams by
Messrs. Tomasak and Linder.
Section 14(a)(1) of the Statute creates not only the right but the
duty of an exclusive representative to act for, and to negotiate
collective bargaining agreements covering, all employees in the unit.
To be sure, Sec. 14(a)(1) specifically 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."
Nevertheless, the second sentence of Sec. 14(a)(1), set forth above,
does not limit or restrict the right and duty of a labor organization,
set forth in the first sentence of Sec. 14(a)(1),
" . . . to act for, and negotiate collective bargaining
agreements covering, all employees in the unit."
Both under the Executive Order and the Statute far less weight has
been accorded to community of interest of employee, or more accurately
the lack of it, in determining appropriate units than the National Labor
Relations Board has traditionally accorded in the private sector under
the NLRA; but in both the public and private sector it is not uncommon
that particular employees, or groups of employees, who are included in
broader units feel that their concerns are not fully understood or
appreciated. Nevertheless, the exclusive representative has both the
right and the duty to negotiate collective bargaining agreements
covering all employees in the Unit, provided only that it must represent
the interests of all employees in the Unit without discrimination and
without regard to labor organization membership. Not only was it not
charged, but the Agreement (Res. Exh. 1) plainly shows that its terms
apply to all maintenance and operations personnel of the 917th and that
labor organization membership is not a consideration.
Philosophically, there is logic to the argument that collective
bargaining agreements covering all employees should be voted on by all
employees; but this is not the way the law has developed. All
employees are entitled to vote in determining whether there is to be
union representation; but once a labor organization is chosen as the
exclusive representative, the labor organization then acts for, and
negotiates collective bargaining agreements covering, all employees and
its members ratify and approve such agreements in the manner provided by
the labor organization's governing requirements. Although the Statute
protects the right of each employee to refrain from joining any labor
organization, non-members have no right under the Statute to vote or to
participate in meetings of the labor organization.
There is no doubt whatever that a statement, as alleged in Paragraph
5(a) of the Complaint, that the Union would not represent employees in
the unit unless they were members of the Union, would, ordinarily,
constitute a violation of Sec. 16(b)(1). See, for example, American
Federation of Government Employees, Local 1778, AFL-CIO and Department
of the Air Force, Headquarters, 438th Air Base Group (MAC), Mcguire Air
Force Base, Case. No. 2-CO-12 (ALJ, February 17, 1981); National
Treasury Employees Union and U.S. Customs Service; National Treasury
Employees Union and Nuclear Regulatory Commission, Case Nos. 3-CO-26,
3-CO-37 (ALJ, February 25, 1981); cf., National Treasury Employees
Union (NTEU), Chapter 202, et al., 1 FLRA 909 (1979); Federal Aviation
Science and Technological Association Division, National Association of
Government Employees, 2 FLRA 801 (1980). However, this case is not
ordinary, but is quite extraordinary. Indeed, the "representation"
sought was that the non-Union crew chiefs be allowed to participate in
negotiations. Neither Mr. Franks, then Chief Steward of the Union, nor
Mr. Massengale, the charging party, was employed at the 917th at the
time of the hearing and neither testified at the hearing. Consequently,
as the primary protagonists were absent and only portions of their
conversation were overheard, it is not known, fully, how Mr.
Massengale's conversation with Mr. Franks began but it is clear from Mr.
Linder's testimony that Mr. Franks told Mr. Massengale that" . . . if he
wanted to have a say in what the union was doing, that he could go ahead
and join the union and start paying his dues and then he would have a
say on what the union was doing" (Tr. 97); and Mr. Tomasak made it very
clear that the representation he had sought in his question to Mr.
Franks, and the representation Mr. Massengale had sought, was the right,
as non-Union employees, to have a representative sit in at the
negotiating table (Tr. 61) which he fully reaffirmed in regard to
questions later asked at the Union meeting, " . . . we basically asked
her the same questions we did Jack Franks, why we couldn't be
represented during the bargaining of our schedule." (Tr. 57).
Recognizing, as the record shows, that Mr. Massengale and Mr. Tomasak
had asked, or asserted the right, as non-Union employees to take part in
negotiations, Mr. Franks' response becomes quite different than as
alleged in the Complaint. While I fully appreciate the concern of the
non-Union employees, it was, as the British might say, cheeky for a
non-Union employee to ask, or assert the right, to a Union official to
take part in the Union's negotiations and I equally appreciate the
strong reaction that such assertion was reasonably calculated to
provoke, and did provoke, by Mr. Franks. For reasons more fully stated
in Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base,
Oklahoma, 6 FLRA No. 32 (1981), I concluded that, under the particular
circumstances of this case, Mr. Franks' statements fall within the
protection of Sec. 16(e) of the Statute which "protects the expression
of personal views, arguments or opinions by . . . union representatives
as long as such expression contains no threat of reprisal or force or
promise of benefit or was not made under coercive conditions." 6 FLRA
No. 32 at p. 6. As Mr. Massengale had gone to Mr. Franks, to talk about
the non-Union crew chiefs taking part in negotiations and Messrs. Linder
and Tomasak passed by and, being interested, as non-Union crew chiefs
themselves, "joined" the discussion, Mr. Franks' expression of personal
views were not made under coercive conditions; nor, under the
circumstances, was there any threat of reprisal or force or proscribed
promise of benefit. Mr. Franks' statement to Mr. Massengale, as Mr.
Linder testified, that ". . . he could . . . join the union . . . and
then he would have a say on what the union was doing" correctly stated
the rights flowing from Union membership and was not a promise of
benefit proscribed by Sec. 16(e). Indeed, in response to Mr.
Massengale's assertion that non-Union employees could, or should,
participate in negotiations, Mr. Franks' response, as provided in Sec.
16(e)(2) corrected " . . . the record with respect to any false or
misleading statement made by any person" by telling Mr. Massengale that
if he wanted a voice in what the Union was doing he could join the Union
and then he would have "a say" on what the Union was doing.
Thereafter, Mr. Massengale, and other non-Union crew chiefs, learned
that there was to be a Union meeting at which the agreement concerning
the shift change was to be considered; they inquired of their shop
steward, Mr. Weeks, whether they could attend, and he told them they
could, so several of them went to the Union meeting. They were
permitted to attend the meeting at which the agreement was read and
discussed. The record shows, as Mr. Tomasak testified, that they " . .
. basically asked . . . (Union President Adams) the same questions we
did Jack Franks, why we couldn't be represented during the bargaining of
our schedule" to which Ms. Adams responded, as Mr. Tomasak stated, "She
said that she didn't have to represent us, that we didn't have anything
to say unless we were in the union. That if we joined the union, we
could have a say so in schedules being made and everything else." (Tr.
57). (See, to like effect, the testimony of Mr. Linder (Tr. 100) and
Ms. Babb (Tr. 88-89)). Under ordinary circumstances, as stated above,
such statement would constitute a clear violation of Sec. 16(b)(1); but
recognizing that the representation sought was the right of non-Union
employees to join in negotiations coupled with: (a) the asserted right
to join in discussions at a Union meeting; and (b) the asserted right,
because " . . . it has to do with my job on the flight line", to vote,
i.e., "have a say on it being a member or not of the union", on the
negotiated agreement, I do not find Ms. Adams' response, as alleged in
Paragraph 5(b) of the Complaint, concerning representation, to have been
improper or to constitute a violation of Sec. 16(b)(1) of the Statute.
For reasons set forth above as to Mr. Franks' statements, I conclude
that Ms. Adams' statements in this regard fall within the protection of
Sec. 16(e) of the Statute. In addition, she properly stated that, as
non-members, they had no right to speak at the Union meeting and no
right to vote.
Although I have endeavored to make it clear, let me emphasize again
that nothing contained in this decision means that a labor organization
may with impunity, under any circumstances, refuse to represent any
employee in the bargaining unit. I have found no violation in this case
solely because the representation sought was not that the Union
represent any employee but, rather, that non-Union employees be allowed
to join in negotiations and/or that non-Union employees be allowed to
"have a say" in Union business. A labor organization has a duty to
represent the interests of all employees in the Unit it represents
without discrimination, but nothing in the Statute grants any right to
non-members to engage in collective bargaining. To the contrary, the
whole thrust of Sec. 14(a) is that a labor organization which has been
accorded exclusive recognition is "the exclusive representative of the
employees in the unit . . . and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the unit."
At the end of the meeting, Ms. Adams called Mr. Massengale a
troublemaker and, further, stated she would "get" him or "get rid of"
him. Although Mr. Massengale, and other non-members, were present only
by grace, Ms. Adams' statement that Mr. Massengale, who had been the
most vocal of the non-members present, was a troublemaker and that she
would "get" him constituted a threat and, made in the presence of other
non-members, also had a chilling effect upon the right of other
employees to, inter alia, refrain from joining or assisting any labor
organization "freely and without fear of penalty or reprisal", in
violation of Sec. 16(b)(1) of the Statute.
Having found that Respondent violated Sec. 16(b)(1) of the Statute by
terming Mr. Massengale a troublemaker and stated that she would "get"
him, I shall recommend that the Authority issue an appropriate order.
Although Mr. Massengale has left the employ of the 917th, Respondent's
violation has not been rendered moot as such statement, made in the
presence of other non-Union employees also interfered with, restrained,
or coerced other employees. Indeed, both because of the circumstances
in which the threat was made and because, as General Counsel states,
there was a prior violation by the same Respondent involving threats to
employees, a broad cease and desist order is warranted. In all other
respects, I recommend that the Complaint in Case Nos. 6-CO-37 and
6-CO-38 be dismissed.
Accordingly, I recommend that the Authority issue the following:
Pursuant to Sec. 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority
hereby orders that American Federation of Government Employees, Local
2000, AFL-CIO, shall:
1. Cease and desist from:
(a) Threatening to "get" or to "get rid of" non-members of the
Union.
(b) In any manner 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:
(a) Post at their respective business offices, in normal
meeting places, and all places where notices to members of Local
2000 are customarily posted, 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 a representative of
American Federation of Government Employees, AFL-CIO, Local 2000,
and shall be posted for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken to insure
that such Notices are not altered, defaced, or covered by any
other material.
(b) Submit signed copies of said Notice to employers for
posting in conspicuous places where unit employees are located,
where they shall be maintained for a period of 60 consecutive days
from the date of posting.
(c) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of the Federal Lab or
Relations Authority for Region VI, whose address is: Old Post
Office Building, Bryan & Ervay Streets, Room 450, P.O. Box 2640,
Dallas, Texas 75221, in writing, within 30 days from the date of
this order, as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: February 24, 1982
Washington, D.C.
WE WILL NOT threaten to "get" or to "get rid of" non-members of the
Union.
WE WILL NOT in any manner interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under the Federal
Service Labor-Management Relation Statute.
WE WILL represent the interests of all employees in all units we
represent without discrimination and without regard to labor
organization membership.
American Federation of Government
Employees, AFL-CIO, Local 2000
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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region VI, whose
address is: Bryan & Ervay Street, Old Post Office Building, Room 450,
P.O. Box 2640, Dallas, TX 75221; and whose telephone number is: (214)
767-4996.
/1A/ In so concluding, the Authority notes particularly the absence
of exceptions with respect to the portion of the Judge's decision
finding that the Respondent violated section 7116(b)(1) of the Statute
when its President called the Charging Party a "troublemaker" and said
that she would "get" him or "get rid of" him.
/1/ For convenience and reference, sections of the Statute
hereinafter are, also, referred to without inclusion of the initial "71"
of the Statute reference, e.g., 7116(b)(1) will be referred to, simply,
as "16(b)(1)".
/2/ April 25, 1981, was a Saturday and it appears that the date of
this incident was, in all probability, Friday, April 24, 1981; however,
as neither the day of the week nor the date is material I do not resolve
the conflict and simply accept that a discussion took place, on or
about, April 25, 1981.
/3/ The Complaint alleged that the Union meeting was held on, or
about, April 25, 1981. The record shows no meeting scheduled, or held,
on Saturday. It is reasonably probable that the meeting in question was
held either on Friday, April 24, or on Monday, April 27; however, since
the meeting was conceded by Respondent, on whatever date it may have
been held, it is unnecessary to resolve this conflict and I merely find
that the meeting was held on, or about, April 25, 1981.
/4/ Mr. Tomasak added the name of "Franklin" (Tr. 56) and Ms. Babb
(Tr. 87) and Mr. Smith (Tr. 131) added the name of Phil Paseley; and
Ms. Babb also added the name of Mr. John Hamm (Tr. 89). The record does
not show whether Mr. Franklin, Mr. Paseley or Mr. Hamm were Union
members although the strong inference is that they were not members of
the Union.
8 FLRA No. 110; Case Nos. 6-CA-636, 6-CA-755, 6-CA-644, 6-CA-746;
May 17, 1984 (Supplemental Decision and Order).
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AUSTIN DISTRICT
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 52
Case Nos. 6-CA-636, 6-CA-755
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
DALLAS DISTRICT
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 46
Case No. 6-CA-644
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
SOUTHWESTERN REGION
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 91
Case No. 6-CA-746
On May 13, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with section 7131(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1) and (8) of the Statute when it failed and refused to provide
the below-named employee Union representatives with official time for
travel in connection with negotiations conducted between the parties.
/1/ In addition, the Authority found that the Respondent failed and
refused to comply with section 7131(a) of the Statute in violation of
section 7116(a)(1) and (8) when it failed and refused to provide
reimbursement of the named employees travel and per diem expenses
incurred with respect to the same negotiations. Thereafter, the
Respondent petitioned the United States Court of Appeals for the
District of Columbia Circuit for review of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employees for their travel and per diem expenses and
hereby vacates its prior Order in this regard. Accordingly, the
Authority shall issue the following Order and require that the
accompanying Notice To All Employees be posted in this matter.
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:
In Case Nos. 6-CA-636 and 6-CA-755, the United States Department of
the Treasury, Internal Revenue Service and United States Department of
the Treasury, Internal Revenue Service Austin District shall:
1. Cease and desist from:
(a) Failing and refusing to provide John Agee, Arlie Smith, Antonio
Ovalle, or any other bargaining unit employee, while engaged in
representing the National Treasury Employees Union, Chapter 52, the
employees' exclusive representative, during Union-Agency negotiations of
a collective bargaining agreement, official time for such participation,
including necessary travel time as occurs during the employees' regular
work hours and when they would otherwise be in a work or paid leave
status.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representatives John Agee, Arlie Smith, and Antonio
Ovalle official time while they were engaged in representing the
National Treasury Employees Union, Chapter 52, the employees' exclusive
representative, in collective bargaining negotiations between March 13,
1980 and July 23, 1980, 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 utilized.
(b) Post at its facilities wherein unit employees are located, 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 an authorized representative 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) Notify the Regional Director of 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.
In Case No. 6-CA-644, the United States Department of the Treasury,
Internal Revenue Service and United States Department of the Treasury,
Internal Revenue Service, Dallas District shall:
1. Cease and desist from:
(a) Failing and refusing to provide to Louise Van Riddell, or any
other bargaining unit employee, while engaged in representing the
National Treasury Employees Union, Chapter 46, the employees' exclusive
representative, during Union-Agency negotiations of a collective
bargaining agreement, official time for such participation, including
necessary travel time as occurs during the employees' regular work hours
and when the employee would otherwise be in a work or paid leave status.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representative Louise Van Riddell official time
while she was engaged in representing the National Treasury Employees
Union, Chapter 46, the employees' exclusive representative, in
collective bargaining negotiations between December 18, 1979 and
December 11, 1980, including necessary travel time as occurred during
the employee's regular work hours and when she would otherwise have been
in a work or paid leave status, and make her whole for any annual leave
utilized.
(b) Post at its facilities wherein unit employees are located, 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 an authorized representative 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) Notify the Regional Director of 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.
In case No. 6-CA-746, the United States Department of the Treasury,
Internal Revenue Service and United States Department of the Treasury,
Internal Revenue Service, Southwestern Region shall:
1. Cease and desist from:
(a) Failing and refusing to provide to Chester O. Stewart, William J.
Bauer, or any other bargaining unit employee, while engaged in
representing the National Treasury Employees Union, Chapter 91, the
employees' exclusive representative, during Union-Agency negotiations of
a collective bargaining agreement, official time for such participation,
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.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide Union representatives Chester O. Stewart and William J.
Bauer official time while they were engaged in representing the National
Treasury Employees Union, Chapter 91, the employees' exclusive
representative, in collective bargaining negotiations between April 24,
1980 and May 16, 1980, 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 utilized.
(b) Post at its facilities wherein unit employees are located, 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 an authorized representative 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) Notify the Regional Director of 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 consolidated complaint in Case Nos.
6-CA-636, 6-CA-755, 6-CA-644 and 6-CA-746 be, and it hereby is,
dismissed insofar as it alleges violations of section 7116(a)(1) and (8)
based on the failure and refusal to reimburse those employees named in
the consolidated complaint for their travel and per diem expenses.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide John Agee, Arlie Smith, Antonio
Ovalle, or any other bargaining unit employee, while engaged in
representing the National Treasury Employees Union, Chapter 52, the
employees' exclusive representative, during Union-Agency negotiations of
a collective bargaining agreement, official time for such participation,
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.
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 provide Union representatives John Agee, Arlie Smith, and
Antonio Ovalle, official time while they were engaged in representing
the National Treasury Employees Union, Chapter 52, the employees'
exclusive representative, in collective bargaining negotiations between
March 13, 1980 and July 23, 1980, including necessary travel time as
occurred during the employees' regular work hours and when the employees
would otherwise have been in a work or paid leave status, and make them
whole for any annual leave utilized.
(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 of Region VI for the Federal Labor Relations Authority whose
address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas,
Texas 75221, and whose telephone number is: (214) 767-4996.
WE WILL NOT fail or refuse to provide Louise Van Riddell, or any
other bargaining unit employee, while engaged in representing the
National Treasury Employees Union, Chapter 46, our employees' exclusive
representative, during Union-Agency negotiations of a collective
bargaining agreement, official time for such participation, 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.
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 provide Union representative Louise Van Riddell official time
while she was engaged in representing the National Treasury Employees
Union, Chapter 46, the employees' exclusive representative, in
collective bargaining negotiations between December 18, 1979 and
December 11, 1980, including necessary travel time as occurred during
her regular work hours and when she would otherwise have been in a work
or paid leave status, and make her whole for any annual leave utilized.
(Agency or Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the day
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of Region VI for the Federal Labor Relations Authority whose
address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas,
Texas 75221, and whose telephone number is: (214) 767-4996.
WE WILL NOT fail and refuse to provide to Chester C. Stewart, William
J. Bauer, or any other bargaining unit employee, while engaged in
representing the National Treasury Employees Union, Chapter 91, our
employee's exclusive representative, during Union-Agency negotiations of
a collective bargaining agreement, official time for such participation,
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.
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 provide Union representatives Chester C. Stewart and William
J. Bauer official time while they were engaged in representing the
National Treasury Employees Union, Chapter 91, the employees' exclusive
representative, in collective bargaining negotiations between April 24,
1980 and May 16, 1980, 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 utilized.
(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 of Region VI for the Federal Labor Relations Authority whose
address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas,
Texas 75221, and whose telephone number is: (214) 767-4996.
/1/ In Case No. 6-CA-636, the negotiations were conducted on March
13, 14, 17 and 18, 1980 between the Respondent's Austin District and the
Union. Employees John Agee and Arlie Smith represented the Union.
In Case No. 6-CA-644, the negotiations were conducted between
December 18, 1979 and December 11, 1980 between the Respondent's Dallas
District and the Union. Employee Louise Van Riddell represented the
Union.
In Case No. 6-CA-746, the negotiations were conducted April 24 and
25, 1980 and May 15 and 16, 1980 between the Respondent's Southwest
Region and the Union. Employees Chester O. Stewart and William J. Bauer
represented the Union.
In Case No. 6-CA-755, the negotiations were conducted on June 3, 1980
and July 23, 1980 between the Respondent's Austin District and the
Union. Employees Antonio Ovalle and Arlie Smith represented the Union
at the July 23 session, and employee Arlie Smith represented the Union
at the June 3 session.
8 FLRA No. 129; Case No. 5-CA-560; May 17, 1984 (Supplemental
Decision and Order).
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE AND
CENTRAL REGION, INTERNAL
REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 80
Case No. 5-CA-560
On May 26, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent failed
and refused to comply with section 7131(a) of the Federal Service
Labor-Management Relations Statute (the Statute) in violation of section
7116(a)(1) and (8) of the Statute when it failed and refused to provide
employees John Kirtley and Kenneth Murawski official time in connection
with negotiations conducted between the parties on June 18, 1980. In
addition, the Authority found that the Respondent failed and refused to
comply with section 7131(a) of the Statute in violation of section
7116(a)(1) and (8) of the Statute when it failed and refused to provide
related travel and per diem expenses. Thereafter, the Respondent
petitioned the United States Court of Appeals for the District of
Columbia Circuit for review of the Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employees for their travel and per diem expenses and
hereby vacates its prior Order in this regard. Accordingly, the
Authority shall issue the following Order and require that the
accompanying Notice To All Employees be posted in this matter.
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 hereby ordered that the Department of the Treasury,
Internal Revenue Service and Central Region, Internal Revenue Service,
shall:
1. Cease and desist from:
(a) Failing and refusing to provide John Kirtley and Kenneth Murawski
or any Agency employee, while engaged in representing the National
Treasury Employees Union, and National Treasury Employees Union, Chapter
80, the employees' exclusive representative, during Union-Agency
negotiations of a collective bargaining agreement, official time for
such participation including necessary travel time as occurred during
the employees' regular work hours and when the employees would otherwise
be in a work or paid leave status.
(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) Provide Union representatives John Kirtley and Kenneth Murawski
official time for the performance of their representational duties on
June 18, 1980 for the time when they would otherwise have been in a work
or paid leave status, and make them whole for the annual leave they
utilized on that date.
(b) Post at its various offices in the Central Region of the Internal
Revenue Service wherein 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 an
authorized representative, and shall be posted and maintained by said
representative 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) 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.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-560 be, and
it hereby is, dismissed insofar as it alleges a violation of section
7116(a)(1) and (8) of the Statute based on the failure and refusal to
reimburse employees John Kirtley and Kenneth Murawski for their travel
and per diem expenses. Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail or refuse to provide John Kirtley and Kenneth
Murawski or any Agency employee, while engaged in representing the
National Treasury Employees Union, and National Treasury Employees
Union, Chapter 80, the employees' exclusive representative, during
Union-Agency negotiations of a collective bargaining agreement, official
time for such participation including necessary travel time as occurred
during the employees' regular work hours and when the employees would
otherwise be in a work or paid leave status.
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 provide Union representatives John Kirtley and Kenneth
Murawski official time for the performance of their representational
duties on June 18, 1980 for the time when they would otherwise have been
in a work or paid leave status, and make them whole for the annual leave
utilized on that date.
(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, Region V, Federal Labor Relations Authority, whose
address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois
60604 and whose telephone number is: (312) 353-6306.
9 FLRA No. 67; Case Nos. 3-CA-331, 3-CA-1231; May 17, 1984
(Supplemental Decision and Order).
INTERNAL REVENUE SERVICE
NATIONAL TREASURY EMPLOYEES UNION
OFFICE OF PERSONNEL MANAGEMENT
Case Nos. 3-CA-331, 3-CA-1231
On July 21, 1982, the Authority issued a Decision and Order in the
above-entitled proceeding in which it found that the Respondent violated
section 7116(a)(1) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) when it denied payment of travel and per
diem expenses incurred after January 11, 1979 to all employees who were
on official time under section 7131(a) of the Statute while representing
the Union in the negotiation of a collective bargaining agreement. In
addition, the Authority found that the Respondent's denial of official
time incurred in connection with travel to and from such negotiations
constituted an independent violation of section 7116(a)(1) and (8) of
the Statute. Thereafter, the Respondent petitioned the United States
Court of Appeals for the District of Columbia Circuit for review of the
Authority's Decision.
The Court stayed its review of the Authority's Decision to await the
United States Supreme Court's decision in Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 104 S.Ct. 439 (1983). In that decision, 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. Based on that decision, the Respondent filed a motion for
summary reversal of the Authority's Decision which was granted by the
United States Court of Appeals for the District of Columbia Circuit on
February 29, 1984, and the case was remanded to the Authority for
appropriate action;.
Pursuant to the Order of the United States Court of Appeals for the
District of Columbia Circuit, the Authority dismisses the allegations of
the complaint pertaining to the Respondent's failure and refusal to
reimburse its employees for their travel and per diem expenses and
hereby vacates its prior Order in this regard. Accordingly, the
Authority shall issue the following Order and require that the
accompanying Notice To All Employees be posted in this matter.
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 Internal Revenue Service, Washington,
D.C. shall:
1. Cease and desist from:
(a) Failing and refusing to provide official time to Judy Oslager,
Jean Whitener, and Donald Geiger, or any other employee, as a result of
their participation pursuant to section 7131(a) of the Statute as the
duly designated representatives of the National Treasury Employees
Union, the employees' exclusive representative, during the negotiation
of a nationwide master collective bargaining agreement.
(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) Provide Judy Oslager, Jean Whitener, and Donald Geiger, and all
other employees who represented the National Treasury Employees Union in
negotiations for a nationwide master collective bargaining agreement
since January 11, 1979, official time, incurred as a result of their
participation, pursuant to section 7131(a) of the Statute, as the duly
designated representatives of the National Treasury Employees Union
during such negotiations.
(b) Post at all of its facilities, where bargaining unit employees
are located, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commissioner, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, 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 consolidated complaint in Case Nos.
3-CA-331, and 3-CA-1231 be, and it hereby is, dismissed insofar as it
alleges a violation of section 7116(a)(1) and (8) of the Statute based
on the denial of the travel and per diem expenses incurred during
negotiations by those employees named in the consolidated complaint.
Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT fail and refuse to provide official time to Judy Oslager,
Jean Whitener, and Donald Geiger, or any other employee, as a result of
their participation pursuant to section 7131(a) of the Statute as the
duly designated representatives of the National Treasury Employees
Union, our employees' exclusive representative, during the negotiation
of a nationwide master collective bargaining 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
Statute.
WE WILL provide employees Judy Oslager, Jean Whitener, and Donald
Geiger, and all other employees who represented the National Treasury
Employees Union in negotiations for a nationwide master collective
bargaining agreement since January 11, 1979, official time, incurred as
a result of their participation pursuant to section 7131(a) of the
Statute, as the duly designated representatives of the National Treasury
Employees Union during such negotiations.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number
is: (202) 653-8456.
11 FLRA No. 74; Case No. 5-CA-20127; May 17, 1984 (Supplemental
Decision and Order).
MICHIGAN ARMY NATIONAL GUARD
LANSING, MICHIGAN
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-22
Case No. 5-CA-21027
On February 18, 1983, the Authority issued a Decision and Order in
the above-entitled proceeding, concluding that the Respondent's failure
and refusal to comply with the Decision and Order of the Federal Service
Impasses Panel issued in Case No. 81 FSIP 58 was violative of section
7116(a)(1) and (6) of the Federal Service Labor-Management Relations
Statute (the Statute). The Panel's Decision in Case No. 81 FSIP 58
directed the parties to adopt the full scope grievance procedure
proposed by the Union which specifically included within its coverage
matters arising under section 709(e) of the National Guard Technicians
Act of 1968 (the Technicians Act), 32 U.S.C. 709(e) (1976). /1/ The
Authority, in its Decision, held that such a grievance procedure was not
in conflict with section 709(e) of the Technicians Act. On April 12,
1983, the Michigan Army National Guard and the Department of Defense
petitioned the U.S. Court of Appeals for the Sixth Circuit for review of
the Authority's Decision and Order. Subsequently, the Authority filed a
motion with the Sixth Circuit seeking a remand of the case in order that
the Authority could reconsider its position, which motion was granted by
the Court on January 20, 1984.
A number of decisions and orders of the Authority on negotiability
issues pursuant to section 7105(a)(2)(E) of the Statute, essentially
determining, as relevant here, that coverage by a negotiated grievance
procedure of a grievance concerning any of the matters enumerated in
section 709(e) of the Technicians Act was not inconsistent with that
provision, have been reviewed by courts of appeals under section 7123 of
the Statute. In their decisions the courts have uniformly interpreted
and applied the Technicians Act so as to preclude as a matter of law the
inclusion of an adjutant general's decision to remove a technician under
section 709(e) from coverage of a negotiated grievance procedure,
notwithstanding the grievance and arbitration provisions of the Statute.
Indiana Air National Guard v. FLRA, 712 F.2d 1187 (7th Cir. 1983);
State of Nebraska, Military Department, Office of the Adjutant General
v. FLRA, 705 F.2d 945 (8th Cir. 1983); California National Guard v.
FLRA, 697 F.2d 874 (9th Cir. 1983); New Jersey Air National Guard v.
FLRA, 677 F.2d 276 (3d Cir.), Cert. denied, sub nom. AFGE Local 3486 v.
New Jersey Air National Guard, . . . U.S. . . ., 103 S.Ct. 343 (1982).
In New Jersey Air National Guard the court held that the language of
section 709(e) of the Technicians Act conflicts with the obligation on
the part of the National Guard to arbitrate a grievance over a removal
once the adjutant general has decided to separate the technician. It
specifically rejected the argument that the grievance and arbitration
provisions of section 7121 of the Statute override the provisions of
section 709(e) so as to permit the negotiation of a grievance and
arbitration procedure as an alternative to the statutory procedure
established by the Technicians Act. 677 F.2d at 280, 286. Accord,
State of Nebraska, Military Department, Office of the Adjutant General,
705 F.2d at 952 & n. 11.
In Association of Civilian Technicians, Pennsylvania State Council
and Pennsylvania Army and Air National Guard, 14 FLRA No. 6 (1984)
(Union proposal 5), the Authority specifically held on the basis of a
grievance concerning an adjutant general's decision to take any of the
actions enumerated in section 709(e) is precluded by that provision of
the Technicians Act. Thus, consistent with that decision, and for the
reasons stated therein, the Authority now finds that the Respondent's
failure and refusal to comply with the Decision and Order of the Federal
Service Impasses Panel issued in Case No. 81 FSIP 58 was not violative
of section 7116(a)(1) and (6) of the Statute. See also Wisconsin Army
National Guard and Association of Civilian Technicians, 14 FLRA No. 11
(1984). Accordingly, the Authority shall order that the instant
complaint be dismissed.
IT IS ORDERED that the complaint in Case No. 5-CA-20127 be, and it
hereby is, dismissed. Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The matters enumerated in section 709(e) generally relate to the
discipline and discharge of civilian technicians and include separation,
removal, discharge, suspension, furlough without pay, reduction in force
and reduction in rank or compensation. Further, as relevant herein,
subsection 709(e)(5) specifically provides as follows:
(5) A right of appeal which may exist with respect to (the
matters set out in subsections 1-4) shall not extend beyond the
adjutant general of the jurisdiction concerned(.)
14 FLRA No. 84; Case No. O-NG-446; May 11, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2160. Management Rights
2152.60 With Respect to Filling Positions, to Select From
2210. Mandatory Subjects of Bargaining
2210.01 Procedures for Implementation of Agency Decision
2600. Conditions for Review
2601. Proposal Alleged to be Inconsistent With Federal Law
2602. Proposal Alleged to be Inconsistent With Government-wide Rule
or Regulation
2650. Compelling Need Determination DIGEST NOTES
A proposal which would establish a time limit for the agency's
exercise of its rights, pursuant to Sec. 7106(a)(2)(C) of the Statute,
to fill a position by making a selection from a particular certificate
of candidates is negotiable as it is not inconsistent an agency
regulation for which a compelling need exists but, instead, establishes
a negotiable procedure under Sec. 7106(b)(2) of the Statute. (Proposal
1)
A proposal which merely establishes a formula for determining the
amount of an award that an employee whose suggestion results in tangible
benefits to the agency will receive is negotiable as the agency did not
demonstrate that the proposal was, in any manner, contrary to law or
regulation. Additionally, the agency did not demonstrate a compelling
need for its regulation to bar negotiations on this proposal under Sec.
7117(a)(2) of the Statute. Additionally, the Authority noted that the
incentive awards with which this proposal is concerned are not
incentives for superior performance of job requirements so that
determination of them would be subject to management's reserved
authority under Sec. 7106(a)(2)(A) and (B) of the Statute. (Proposal 2)
A proposal which would prevent the agency from immediately initiating
adverse action procedures against an employee who had received its
approval prior to engaging in outside employment is negotiable as it is
not inconsistent with Federal law, Government-wide regulation or agency
regulation for which a compelling need exists but, instead, establishes
a negotiable procedure under Sec. 7106(b)(2) of the Statute. (Proposal
3)
That portion of a proposal which provides employee reimbursement for
mileage expense at a rate equal to the larger of the amount provided
under either the GSA regulations or the FDIC regulations is negotiable
as the agency's contentions relate only to the desirability of the
proposal and, consequently, the agency did not demonstrate, under Sec.
7117(a)(2) of the Statute, that a compelling need existed for its
regulations to bar negotiations on this proposal. (Section A of
Proposal 4)
That portion of a proposal which provides employee reimbursement for
lodgings under the Lodgings-Plus formula of the FDIC regulations and in
no case less than that provided under GSA Travel Regulations is
negotiable as the agency's contentions relate only to the desirability
of the proposal and, consequently, the agency did not demonstrate, under
Sec. 7117(a)(2) of the Statute, that a compelling need existed for its
regulations to bar negotiations on this proposal. (Section B of
Proposal 4)
That portion of a proposal which would establish a salary adjustment
system for bargaining unit employees different from that established
under the Board resolutions is nonnegotiable as it is inconsistent with
an agency regulation for which a compelling need exists under Sec.
7117(a)(2) of the Statute. (Section 1 of Proposal 5)
That portion of a proposal which would establish a committee to
monitor the impact of a proposed salary adjustment system for bargaining
unit employees different from that established under the Board
resolutions is nonnegotiable as it is inconsistent with an agency
regulation for which a compelling need exists pursuant to Sec.
7117(a)(2) of the Statute. (Section 2 of Proposal 5)
In a Dissenting Opinion, one Member of the Authority found that the
agency failed to meet its burden of establishing the essentiality of
these proposals. The language "deemed desirable," "traditional," and
"believed to be appropriate" contained in the Board's Resolutions and
relied upon by FDIC belie essentiality. The agency contentions relate
to the helpfulness or desirability of the agency's resolution but do not
demonstrate that they are essential as specified by section 2424.11(a)
of the Authority's rules. Thus, the agency has not demonstrated that
its resolutions are a bar to negotiations on the union's proposal.
Moreover, absent specific statutory proscriptions, the parties should
bargain on the merits of the issue. The simple assertion of compelling
need should not serve to block the normal collective bargaining process.
(Proposal 5)
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 207
FEDERAL DEPOSIT INSURANCE
CORPORATION, WASHINGTON, D.C.
Case No. O-NG-446
The petition for review in this case comes before the Authority
pursuant to 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 five Union proposals.
Article 12, Section 11C - Merit Promotion
The selection official has thirty (30) calendar days from the
date of issuance of the Roster in which to make a selection.
After selection has been made, all applicants will be notified of
their nonselection and the name of the selectee. (Only the
underscored language is in dispute.)
The question is whether, as alleged by the Agency, the Union's
proposal is outside the duty to bargain under section 7117(a)(2) of the
Statute because it is inconsistent with an Agency regulation for which a
compelling need exists. /1/
Conclusion and Order: The Union's proposal is not inconsistent with
an Agency regulation for which a compelling need exists. Rather, the
proposal establishes a negotiable procedure under section 7106(b)(2) of
the Statute. 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 Proposal 1.
Reasons: The Agency contends that the Union's proposal is
inconsistent with an Agency regulation for which a compelling need
exists. According to the Agency, the regulation meets the Authority's
criterion set forth in 5 CFR 2424.11(a), which provides:
Sec. 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:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government.
Under section 7117(a)(2) and 5 CFR 2424.11 of the Authority's Rules
and Regulations, an agency has the burden of coming forward with
affirmative support for assertions that its regulations bar negotiation
on conflicting proposals because of the existence of a compelling need.
/2/ The compelling need provisions of the Statute are meant to insure
that bargaining proposals concerning conditions of employment of
bargaining unit employees, which are otherwise within the duty to
bargain, are barred from negotiation due to a conflict with agency rules
or regulations only if the agency involved demonstrates and justifies,
under criteria established by the Authority, an overriding need for the
policies reflected in the rules or regulations to be uniformly applied
throughout the agency. /3/ Hence, the Authority's illustrative
criterion for determining compelling need in 5 CFR 2424.11(a) of the
Rules and Regulations requires an agency to demonstrate that the rules
or regulation upon which it relies as a bar to negotiation on a
conflicting union proposal is "essential as distinguished from helpful
or desirable" to achieve certain ends. This standard of essentiality is
the measure under the Statute and the Authority's Rules and Regulations
of whether the necessity claimed for an agency regulation to bar
negotiations on a conflicting union proposal rises to the level of a
compelling need. /4/
While the Agency contends that the proposed 30 day period, as
contrasted with the 60 day period provided in its regulation, is an
inadequate amount of time to allow for a selection from a best qualified
list, the Agency has not demonstrated that the regulation is "essential
as distinguished from helpful or desirable" to achieve the result
desired under its Merit Promotion Plan. In this regard, the Agency has
not shown that a selecting official cannot insure the selection of the
best qualified candidate in less than 60 days. Therefore, the Agency
has not demonstrated a compelling need for its regulation to bar
negotiations on this conflicting Union proposal.
The proposal would establish a time limit for the Agency's exercise
of its rights pursuant to section 7106(a)(2)(C) of the Statute to fill a
position by making a selection from a particular certificate of
candidates. Based on the record, the proposal only would apply where
management has chosen a certificate as the source from which it wishes
to consider candidates and make a selection; it would not have the
effect of preventing the Agency from considering and selecting a
candidate from any other appropriate source. Moreover, the proposal
would not prevent the Agency from obtaining additional certificates in
the event that no selection is made within the time limit. Therefore,
the proposal does not prescribe substantive matters with regard to
selections. Rather, it concerns the "procedures which management
officials of the agency will observe" in exercising their right to
select from a certificate and is negotiable under section 7106(b)(2) of
the Statute. /5/
Article 19 - Suggestion Awards
A. An employee will receive as an award for an accepted
suggestion 10% of the value of the benefit to the Corporation for
suggestion benefits of up to $10,000 i; value.
B. For suggestions over $10,000 in value the above formula
will apply to the first $10,000 of value while the employee will
receive 5% of any value over $10,000.
C. Sections A and B apply to tangible benefits.
The questions are whether, as alleged by the Agency, the Union's
proposal is outside the duty to bargain under section 7117(a) of the
Statute because of inconsistency with Federal law, Government-wide
regulation and Agency regulation for which a compelling need exists.
Conclusion and Order: Union Proposal 2 is not inconsistent with
Federal law, Government-wide regulation or Agency regulation for which a
compelling need exists, as claimed by the Agency. 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 Proposal 2.
Reasons: According to the Agency, the FDIC has not been specifically
excluded from the scope of 5 U.S.C. 4501 (concerning the government
employees incentive awards program) and the regulations promulgated to
carry out the agency awards program in Part 451 of title 5 of the Code
of Federal Regulations and therefore is subject to these provisions.
/6/ Therefore, contrary to the Union's contention, that the FDIC is not
subject to these provisions, /7/ the regulation set forth at 5 CFR
451.205 applies to the Agency which, as a Government corporation, /8/ is
included within the definition of "Executive Agency" for purposes of
this section of the Code of Federal Regulations. /9/ However, the
proposal's plain language is not inconsistent with that section, /10/
nor has the Agency shown how the proposal would interfere with its
ability to carry out its responsibilities thereunder as it claims. The
proposal merely establishes a formula for determining the amount of an
award that an employee whose suggestion results in tangible benefits to
the Agency will received, a matter not prescribed by the regulations in
question. Thus, even assuming that 5 CFR 451.205 is a Government-wide
regulation, it is not a bar to negotiation of this proposal.
As to the Agency's internal regulation for which it alleges a
compelling need because it meets the criteria set forth at 5 CFR
2424.11(a) and (c), that regulation itself, the Federal Deposit
Insurance Corporation Incentive Awards Program, Subchapter 3. Suggestion
Program at 3-3. Determining Amount of Cash Awards for Tangible Benefits,
provides that exceptions to the amounts the Agency has established can
be granted. Consequently, the Agency's contention that the regulation
is essential, as opposed to merely helpful or desirable, to maintain
uniformity within its awards program cannot be sustained. Thus, the
Agency has not demonstrated that its regulation meets the Authority's
compelling need criterion at 5 CFR 2424.11(a). Similarly, there is not
a compelling need under 5 CFR 2424.11(c). /11/ The Agency has offered
no support for its contention that its regulation is mandated by 5 CFR
451.205(a), previously discussed, so that it has no discretion to
negotiate matters related to its suggestion awards program. On the
contrary, while 5 CFR 451.205 requires the Agency to establish an
incentive awards program, it mandates neither a formula for determining
suggestion award amounts nor a standard for uniformity which is
essentially nondiscretionary in nature. Therefore, the Agency has not
demonstrated a compelling need for its regulation to bar negotiations on
the Union's proposal under section 7117(a)(2) of the Statute.
Finally, contrary to the contention of the Agency, the proposal would
not conflict with 5 U.S.C. 4501 and implementing regulations in 5 CFR
451.205(c)(1) which require the Agency to transmit all award
recommendations over $10,000 to OPM. In this regard, the Union
acknowledges its intent that employee awards in excess of $10,000 would
be subject to OPM approval under this proposal, /12/ and the language of
the proposal itself would not require otherwise. Hence, this Agency
contention does not provide a basis for finding the proposal to be
outside the duty to bargain. Cf. American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 3 FLRA 784 (1980) (proposal which was silent as to
matters covered by Government-wide regulations was not inconsistent with
those regulations).
Thus, the proposal has not been shown to be inconsistent with Federal
law, Government-wide regulation, or Agency regulation for which a
compelling need exists and is within the Agency's duty to bargain. /13/
Article 35 - Outside Employment
Employees are permitted to engage in outside employment without
the prior approval of the EMPLOYER. However, if the employee does
submit a request for prior approval, it will be acted on in five
days by the Corporation. (This decision, like all made in
connection with employee requests for outside employment will be
made only for fair and objective reasons. No one will be denied
the opportunity to engage in outside employment except for just
cause.) If prior approval is given, at no time may the EMPLOYER
issue a Notice of Adverse Action to the employee for improper
outside employment unless thirty days prior to the Notice it
informs the employee in writing of its desire that the employee
cease the outside employment. All reasons and supporting evidence
will accompany this written notice. With the permission of the
UNION, the employee may go directly to expedited arbitration on
this decision by invoking this right within ten (10) calendar days
of the written notice.
The questions are whether, as alleged by the Agency, the Union's
proposal is outside the duty to bargain under section 7117(a) of the
Statute because it is inconsistent with Federal law, Government-wide
regulation and Agency regulation for which a compelling need exists.
Conclusion and Order: The Union's proposal is not inconsistent with
Federal law, Government-wide regulation or Agency regulation for which a
compelling need exists but, instead, establishes a negotiable procedure
under section 7106(b)(2) of the Statute. 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 Proposal 3.
Reasons: The Agency does not require an FDIC employee to seek
approval prior to engaging in outside employment. /14/ The Union states
that the proposal is intended to protect employees who nevertheless
request and are granted approval by the Agency from having the Agency
initiate adverse action proceedings, if it subsequently disapproves of
the outside employment, without advance notice to the employee. /15/
The language of the proposal is consistent with this interpretation and
it is adopted for purposes of this decision.
The Agency argues that, once it determines that an employee's outside
employment constitutes a conflict of interest situation, the proposal
would improperly prevent it from taking immediate disciplinary or other
remedial action to end the conflict as it is required to do by title 5
of the Code of Federal Regulations at section 735.107 /16/ and by its
own regulations issued pursuant to 5 CFR 735.104. /17/
Assuming that the proposal would prevent the Agency from immediately
initiating the adverse action procedures against an employee who had
received its approval prior to engaging in outside employment, the
Agency's contention that the proposal thereby is rendered inconsistent
with 5 CFR 735.107 and implementing FDIC regulations cannot be sustained
on that basis. Both section 735.107 of the Code of Federal Regulations
and the Agency's regulation provide that the agency, once it decides
remedial action is required, must take immediate action to end a
conflict or appearance of a conflict of interest. Both regulations
specify certain actions that the Agency may take (see note 15, supra),
but those specified are not all "adverse actions" under Chapter 75 of
title 5 of the United States Code. Furthermore, the Agency is not
limited to the specified actions. Therefore, as nothing in the proposal
would prevent the Agency from taking some of the specified actions
against an employee immediately upon determining that a conflict of
interest exists and, further, as nothing in the regulations requires the
Agency to immediately initiate adverse action procedures upon such a
determination, the proposal is not inconsistent with 5 CFR 735.107 or
with Part 336 of the FDIC Rules and Regulations.
The Agency also claims that the proposal conflicts with the intent of
section 7121(e) of the Statute, which states in part:
Matters covered under sections 4303 and 7512 of this title
which also fall within the coverage of the negotiated grievance
procedure may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures of section 7701 of
this title or under the negotiated grievance procedure, but not
both.
With respect to this contention, the proposal provides that an
employee can grieve an Agency disapproval of a request to engage in
outside employment. Such an Agency disapproval does not fall within the
actions covered in section 7512, i.e., adverse actions, and, therefore,
cannot be raised under the appellate procedures of section 7701 of title
5 of the United States Code. Consequently, an Agency disapproval of an
outside employment request is not a matter covered both under section
7512 and a negotiated grievance procedure. Thus, this Agency contention
that the proposal violates the intent of section 7121(e) is inapposite.
Further, the Agency's initiation of an adverse action against an
employee is distinct from its disapproval of an outside employment
request. Therefore, contrary to the Agency's claim, an arbitrator's
decision on a grievance of such disapproval would not prejudice the
Agency's position in a subsequent grievance of an adverse action taken
against that employee to remedy a conflict of interest situation.
Moreover, consistent with section 7121(e)(1) of the Statute, if the
Agency does take an adverse action, the employee would still be entitled
to choose between an appeal through a negotiated grievance procedure or
through the appellate procedures of section 7701 because the employee's
choice to grieve the matter of the Agency's disapproval, as provided
under the proposal, does not involve a choice with respect to a matter
covered by section 7512, as already mentioned.
Thus, based on the record before the Authority, the proposal does not
prevent the Agency from taking immediate action to remedy a conflict of
interest situation and is not otherwise inconsistent with Federal law.
Rather, the proposal would only require that the Agency give 30 days
notice, to any employee who had received Agency approval for engaging in
outside employment, before initiating the adverse action procedures
against the employee. In American Federation of Government Employees,
AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
Exchange, Fort Dix, New Jersey, 2 FLRA 152, 155 (1979), enforced sub
nom. Department of Defense v. Federal Labor Relations Authority, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945, 102 S.Ct. 1443 (1982), the Authority stated that section 7106(b)(2)
of the Statute "is intended to authorize an exclusive representative to
negotiate fully on procedures, except to the extent that such
negotiations would prevent agency management from acting at all." It has
not been shown that Union Proposal 3 would prevent the Agency from
acting at all with respect to its reserved rights. Hence, the proposed
procedure is negotiable under section 7106(b)(2) of the Statute. /18/
Article 41, Section 3 - Travel
A. All employees will be reimbursed for mileage expenses
consistent with the FDIC or GSA regulations, whichever is greater.
B. All employees will be granted reimbursement under the
Lodgings-Plus formula of the FDIC regulations. In no case will
the reimbursement be less than what would be permitted under GSA
Travel Regulations, including that for high rate cities.
The question is whether, as alleged by the Agency, the Union's
proposal is outside the duty to bargain under section 7117(a)(2) of the
Statute because it is inconsistent with Agency regulations for which a
compelling need exists.
Conclusion and Order: The Union's proposal is not barred by Agency
regulations for which a compelling need exists. 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 Proposal 4.
Reasons: Based on the record, the Agency is not subject to the
Federal Travel Regulations promulgated by the General Services
Administration and, thus, it has promulgated its own FDIC General Travel
Regulations (GTR's). /19/ The Agency contends that the proposal is
inconsistent with such Agency regulations for which it claims a
compelling need. In this connection, the Agency claims the regulations
meet the Authority's criterion at 5 CFR 2424.11(a). Specifically, the
Agency contends that Section A and the last sentence of Section B of the
proposal impose dual regulatory requirements which would be unmanageable
from an administrative standpoint. Similarly, with respect to the first
sentence of Section B, the Agency claims that adoption of the proposal
would result in increased costs and administrative problems.
Assuming that the proposal is inconsistent with the GTR's, the Agency
has not supported a finding of compelling need for those regulations to
bar negotiations. As mentioned with respect to Union Proposal 1, an
agency has the burden of coming forward with affirmative support for
assertions of compelling need. /20/ As to the present dispute, however,
the Agency's claims relate only to the merits or desirability of the
proposal. Consequently, the Agency has not demonstrated under section
7117(a)(2) of the Statute and 5 CFR 2424.11 of the Authority's Rules and
Regulations that a compelling need exists for the CTR's to bar
negotiations on the proposal. Thus, the proposal is within the duty to
bargain. /21/
Article 59 - Salary Section 1
The salary structure, that is the grades and steps of the
schedule, being used by the FDIC will be maintained. Hereafter,
all employees will have their current salaries adjusted for the
cost-of-living/comparability factor. The adjustment will be equal
to the statistical adjustment recommended to the President by the
Pay Advisory Council. (After October 1980 the adjustment factor
developed by the Council will be modified to account for the
different comparability positions between FDIC and those employees
under the General Schedule. Beginning in January 1981 the parties
will meet to seek agreement on a modification formula.) This
adjustment will become effective the beginning of the first pay
period following the announcement of it by the council or other
appropriate sources. It will be unaffected by Presidential or
Congressional actions.
Section 2
NTEU agrees to establish with the EMPLOYER a productivity
committee that will monitor the impact of the new salary
adjustment system and seek reasonable ways to increase the
productivity of the EMPLOYER, e.g., decrease employee turnover,
remove work obstacles, improve upon available machinery and
procedures, raise employee morale, etc.
The question is whether, as alleged by the Agency, the Union's
proposal is outside the duty to bargain because it is inconsistent with
an Agency regulation for which a compelling need exists.
Conclusion and Order: The Union's proposal is inconsistent with an
Agency regulation for which a compelling need exists under section
7117(a)(2). Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations, IT IS ORDERED that the Union's petition for
review as to Proposal 5 be, and it hereby is, dismissed.
Reasons: The parties stipulate that the Union represents
approximately 650 headquarters employees out of the 3,449 employees of
the Agency; the Agency is a Government corporation and is not subject
to the pay and allowance provisions of Chapter 51 of title 5 of the
United States Code; /22/ the compensation paid to its employees is not
limited by the restrictions applicable to the "General Schedule"; and
the Agency's Board of Directors, in its discretion, regularly has
adopted resolutions pursuant to which the Agency pays its general graded
and wage graded employees at the same rates of pay as are paid to
Federal employees who are subject to Chapter 51 of title 5 of the U.S.
Code. The Union's proposal would, in Section 1, establish a salary
adjustment system for bargaining unit employees different from that
established under the Board resolutions. Section 2 would establish a
committee to monitor the impact of this negotiated salary adjustment
system. It is not disputed that the Union's proposal conflicts with the
Board resolutions /23/ and that the Board resolutions constitute agency
rules or regulations which could bar negotiation of conflicting
proposals if supported by a compelling need.
The Agency claims that there is a compelling need for these
regulations within the meaning of section 7117(a)(2) because they
maintain pay equity by means of a uniform salary structure throughout
the Agency. According to the Agency, maintaining the objective of pay
equity is essential to the accomplishment of its mission and the
execution of its functions in a manner consistent with the requirements
of an effective and efficient government so as to meet the Authority's
criterion at 5 CFR 2424.11(a) for demonstrating a compelling need for
its regulations. See notes 2, 3 and 4 and accompanying test, supra.
In support, the Agency argues that payment of a disparate, higher
wage rate to those bargaining unit employees in the Washington
headquarters office would be "highly disruptive" to the mission and
functions of the Agency which is comprised of employees in 14 regional
offices across the country as well as bargaining unit and nonbargaining
unit employees in the Washington headquarters. This disruption,
according to the Agency, would be the inevitable effect of morale and
motivation problems resulting from compensating employees classified at
the same grade level at different rates of pay. Additionally, the
Agency asserts that problems relating to its entire promotion structure
would result from a situation wherein higher graded employees could be
paid less than lower graded employees and supervisors and managers could
be paid less than the employees they supervise under the proposed salary
adjustments.
The Union argues that the Agency has not demonstrated the
essentiality of its regulations to maintain a uniform salary structure
within the Agency. However, the Union concedes that, since it is not
empowered to negotiate for employees beyond the bargaining unit,
implementation of the proposal could result in different pay rates for
bargaining unit and nonbargaining unit employees. Thus, although the
Union argues that, under its proposed salary adjustment, compensating
benefits to management and bargaining unit employees would result, it
does not controvert the Agency's arguments that implementation of the
Union proposal would result in pay inequity, morale problems, and
problems relating to promotion system structure, throughout the Agency.
Based upon the parties' contentions, the Agency herein has
demonstrated an overriding need for the policies reflected in its
regulations in question such that the necessity it claims rises to the
level of a compelling need. The Agency has demonstrated that the need
for uniformity in its pay system is an integral aspect of the Agency's
stated objective of pay equity. /24/ The Agency's need for uniformity
is thus not one of mere administrative convenience, as our colleague
suggests in dissent. /25/ In this regard, the Agency has shown that in
the pay setting area, under the circumstances presented, lack of
uniformity would result in pay inequity which in turn would result in
disruption inimical to the accomplishment of the Agency's mission and
execution of its functions in a manner consistent with an effective and
efficient government. Thus, in the circumstances in this case, we are
persuaded that there is an overriding need for a uniform pay setting
system throughout the Agency in order to operate effectively and
efficiently to accomplish its mission.
Further, there is no indication in the record that the Agency could
achieve its objective of pay equity by any means except implementing the
Union's proposal for all Agency employees. While it appears that the
Agency has discretion to implement the Union's proposal for all Agency
employees, such action would require revising the salary structure for
the more than 80% of the Agency's employees who are not in the
bargaining unit. Thus, in the circumstances herein, where less than 20%
of the Agency's employees are in the bargaining unit, the Authority
finds that it would be consistent with an effective and efficient
Government for the Agency's regulations to bar negotiation of the
Union's proposal.
Our colleague, who today dissents from this finding, among other
things, sees the issue as one best left to the collective bargaining
process, as it would be if the matter had arisen in the private sector
context. However, it should be clear by now, over 5 years having passed
since the enactment of the Statute, that the legal framework which
governs our decision today was "designed to meet the special needs and
requirements of government." /26/ Part of the legal framework which
governs our decision today is section 7117(a)(2) which provides that a
matter is not within the duty to bargain if the Authority has determined
that a compelling need exists for a conflicting agency regulation.
Thus, the Statute clearly contemplates that an agency regulation may,
under certain limited circumstances, serve as a bar to a proposal which
may be otherwise negotiable. Our colleague favors "free" collective
bargaining. We favor collective bargaining within the statutory
framework. Therefore, the Authority finds that Proposal 5 is outside
the duty to bargain under section 7117(a)(2). /27/ Issued, Washington,
D.C., May 11, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Haughton concurring in part, dissenting in part:
In this case the Authority holds that Union Proposals 1 through 4 are
within the duty to bargain. I concur in those dispositions. As to
Union Proposal 5, the majority has decided that it is outside the duty
to bargain under section 7117(a)(2). I respectfully dissent from this
part of the decision.
As noted by the majority, the record shows that the Agency as a
Government corporation is not subject to the pay and allowance
provisions of Chapter 51 of title 5 of the United States Code; that the
compensation paid to its employees is not limited by the restrictions
applicable to the "General Schedule"; that the Agency's Board of
Directors has adopted a resolution pursuant to which it pays its general
graded and wage graded employees the same rates of pay as are paid to
Federal employees who are subject to Chapter 51 of title 5 of the United
States Code; and that these resolutions constitute Agency regulations.
The Agency argues that providing a uniform salary schedule is essential
to the mission and function of the FDIC, and that a compelling need
exists for the regulations that establish the current system.
In support of its claim, the Agency first contends that the proposal
would result in two co-existing pay systems which would be unmanageable
to administer. It further argues, and the majority implicitly agrees,
that inequities would result from paying bargaining unit employees at
different and higher salary rates than all other employees that that
this would be disruptive to the mission and function of the Agency. The
decision holds that the Agency's resolutions are "essential, as
distinguished from helpful or desirable, to the accomplishment of the
mission or the execution of functions of the agency . . . in a manner
which is consistent with the requirements of an effective and efficient
government," as provided under section 2424.11(a) of the Authority's
Rules and Regulations (5 CFR 2424.11(a)).
I find that the Agency has failed to demonstrate the essentiality of
these resolutions. FLRA Regulation No. 2424.11(a) cites an illustrative
criterion for establishing a compelling need for an agency rule or
regulation which is on point. Subsection (a) reads:
The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government.
Citations to Authority decisions making it clear that the burden is
on an agency to establish essentiality and overriding need for policies
reflected in rules or regulations are contained in notes 2, 3 and 4 and
accompanying text, supra.
Reference to the specific language of FDIC Regulations 31207, 3166,
and 3677, relied upon by the Agency, supports the Union's claim that
compelling need is not justified, but that the Agency's action as to pay
rates for bargaining unit employees is based on "desirability,"
"tradition," and "speculation." /28/ FDIC Resolution 31207 simply deems
it "desirable to extend to the personnel of the Corporation compensation
rates comparable to those of most other Federal employees . . . "
Resolution 3167 notes, in part, that "the corporation has traditionally
adopted" the basic Federal compensation schedule for Civil Service
employees throughout the Metropolitan Washington, D.C. area, and that
"it is believed to be appropriate to continue this practice." Resolution
3166 contains similar provisions applicable to FDIC's lithographic and
printing positions other than those involved in wage board work.
The fact is, the language "deemed desirable," "traditional," and
"believed to be appropriate" contained in the Board's Resolutions and
relied upon by FDIC belies essentiality. Finding that such resolutions
are essential despite such language is speculative. By the language of
FLRA Regulation 2424.11(a) this does not establish compelling need.
Furthermore, while the resolutions set forth a uniform policy, they
do not express and therefore do not support a need for uniformity. In
any event, the Agency has not supported a finding that uniformity of pay
scale is essential, as found by my colleagues. The Agency contentions
merely indicate that it does not wish to change the pay policy that it
has adopted for all employees because it does not want to have to
administer different pay schedules for bargaining unit employees and
nonbargaining unit employees. These contentions relate to the
helpfulness or desirability of the Agency's resolutions but do not
demonstrate that they are essential as specified by section 2424.11(a)
of the Authority's rules. Thus, the Agency has not demonstrated that
its resolutions are a bar to negotiations on the Union's proposal.
The foregoing goes to the legal basis of why I believe that Proposal
5 is negotiable. My dissent also has roots in my basic commitment to
the institution of free collective bargaining.
Because the FDIC is a Government corporation that is not subject to
the pay and allowance provisions of Chapter 51 of title 5 of the United
States Code, and because the compensation paid to its employees is not
limited by the restrictions applicable to the "General Schedule," we are
now presented with a rare opportunity in an area of the Federal sector
for real collective bargaining on a gut issue.
The decision of the majority would stop this process by finding a
compelling need which has the effect of supporting the Agency's position
on the merits of an issue with respect to which no law or
government-wide regulation restricts collective bargaining. My position
is that, absent specific statutory proscriptions, the parties should
take their lumps and bargain on the merits of the issue. /29/ The
Agency's argument that there is a compelling need is really no more than
what it no doubt believes is its strongest position on the merits. If
during the collective bargaining process the parties arrive at an
impasse, the Federal Service Impasses Panel is available to decide the
issue in a fair and equitable manner.
The possibility of a disruption of an established tandem wage
relationship surfaces in collective bargaining in both the private and
public sectors. The arguments over "wage parity" between police and
fire bargaining units are well known. It has been an issue in the
automobile industry, which I know so well. The General Motors
Corporation's bargaining relationships with the United Auto Workers
Union and with the smaller International Union of Electrical Workers
come to mind. In those situations it has been up to General Motors to
make every effort to ensure that the tail does not wag the dog. I
cannot believe that the FDIC would be any less competent in this
delicate area of collective bargaining. The simple assertion of
compelling need should not serve to block the normal collective
bargaining process. Issued, Washington, D.C., May 11, 1984
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ Section 7117(a)(2) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(2) The duty to bargain in good faith shall, to the extent
not inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
/2/ American Federation of Government Employees, AFL-CIO, Local 1928
and Department of the Navy, Naval Air Development Center, Warminster,
Pennsylvania, 2 FLRA 451, 454 (1980).
/3/ American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7
FLRA 217, 220 (1981).
/4/ American Federation of Government Employees, AFL-CIO, Local 2875
and Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Southeast Fisheries
Center, Miami Laboratory, Florida, 5 FLRA 441, 447 (1981).
/5/ In deciding that the proposal is within the duty to bargain, the
Authority makes no judgment as to its merits.
/6/ Agency Statement of Position at 6.
/7/ Union Reply Brief at 3-4.
/8/ See American Federation of Government Employees, AFL-CIO, Local
3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217 (1981).
/9/ See 5 U.S.C. Secs. 103, 105 and 4501.
/10/ 5 CFR 451.205(a) provides in relevant part:
Sec. 451.205 Agency responsibilities.
(a) The head of each agency shall give personal leadership to
the agency's incentive awards program and seek to gain maximum
benefits for the Government through improved employee motivation
and productivity by providing for:
(1) Equal opportunity for all employees to earn awards by
training employees on how they may earn awards, and further
training for supervisors and managers on the effective use of
incentive awards to improve individual and organizational
performance;
(2) Integrity of the program by reviewing agency program
results to assure that awards are granted equitably, on the basis
of merit, and that, when merited, action is taken to grant awards;
and that information is made available concerning persons who
have received awards and the reason(s) why each award is
granted(.)
/11/ In this regard, 5 CFR 2424.11(c) provides:
Sec. 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.
/12/ Union Reply Brief at 4.
/13/ In deciding that this proposal is within the Agency's duty to
bargain, the Authority makes no judgment as to its merits. Furthermore,
it is noted that the incentive awards with which this proposal is
concerned are not incentives for superior performance of job
requirements so that determination of them would be subject to
management's reserved authority under sections 7106(a)(2)(A) and (B) of
the Statute. See National Treasury Employees Union and Internal Revenue
Service, 14 FLRA No. 77 (1984).
/14/ Agency Statement of Position at 3.
/15/ Union Reply Brief at 2.
/16/ 5 CFR 735.107 provides:
Sec. 735.107 Disciplinary and other remedial action.
(a) Agency regulations issued under this part shall provide
that a violation of the agency regulations by an employee or
special Government employee may be cause for appropriate
disciplinary action which may be in addition to any penalty
prescribed by law.
(b) When, after consideration of the explanation of the
employee or special Government employee provided by Sec. 735.106,
the agency head decides that remedial action is required, he shall
take immediate action to end the conflicts or appearance of
conflicts of interest. Remedial action may include, but is not
limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee
of his conflicting interest;
(3) Disciplinary action; or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise, shall be
effected in accordance with any applicable laws, Executive orders,
and regulations.
/17/ Part 336 of the Federal Deposit Insurance Corporation (FDIC)
Rules and Regulations provides:
When, after consideration of the explanation of the employee or
special Corporation employee provided by Sec. 336.735-41, the
Chairman of the Board decides that remedial action is required, he
shall take immediate action to end the conflicts or appearance of
conflicts of interest. Remedial action includes, but is not
limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Corporation employee
of his conflicting interest;
(3) Disciplinary action; or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise shall be
effected in accordance with any applicable law, Executive orders
and regulations. (12 C.F.R. 336.735-42.)
/18/ In deciding that Union Proposal 3 is within the duty to bargain,
the Authority makes no judgment as to its merits.
/19/ Agency Statement of Position at 4.
/20/ See note 2, supra.
/21/ In deciding that both sections of this proposal are within the
duty to bargain, the Authority makes no judgment as to the merits
thereof.
/22/ See 5 U.S.C. 5102 and 5 CFR 511.201.
/23/ Insofar as appears in the record, Section 2 of the Union's
proposal is contingent upon the negotiation of the salary adjustment
system pursuant to Section 1. The Union did not request that we rule on
this section separately, and we find it unnecessary to do so.
/24/ Cf. AFGE Local 2875 and Southwest Fisheries Center, Miami
Laboratory, Florida, 5 FLRA 441 (1981) (wherein the Authority held with
respect to Proposal 4 that the uniform application of an agency
regulation requiring charges to leave in hourly increments was not
demonstrated essential to an agency's stated objective of effective and
efficient pay and leave administration); American Federation of
Government Employees, AFL-CIO, Local 2670 and Army and Air Force
Exchange Service, Keesler Air Force Base Exchange, Mississippi and
American Federation of Government Employees, AFL-CIO, Local 1504 and
Departments of the Army and Air Force, Army and Air Force Exchange
Service, Northwest Area Exchange, Ft. Lewis, Washington, 10 FLRA 71
(1982) (wherein the Authority held that an agency regulation requiring
uniform value for a free meal was not demonstrated essential to an
agency's stated objective of preparation and maintenance of accurate
payroll and tax records).
/25/ We would note that the language in the numbered Board
resolutions cited by Member Haughton for the premise that the Agency's
regulation is merely desirable as opposed to essential relates to the
Agency's use of the title 5 pay model, and not to the more basic need
for a uniform pay system.
/26/ 5 U.S.C. 7101(b).
/27/ In view of the decision herein, we find it unnecessary to rule
upon the Agency's additional contentions, which include the Agency
contention that the proposal would interfere with its right to determine
its budget under section 7106(a)(1) of the Statute.
/28/ See Union Response to Agency Statement, pages 5 and 6.
/29/ The following quotation from pages 2-3 of the Union's Response
to Agency Statement on Proposal 5 addresses the matter of Congressional
intent regarding negotiability issues:
NTEU submits that the drafters of the Civil Service Reform Act
(CSRA) intended that the agency prove beyond a reasonable doubt
that a union proposal was non-negotiable. Representative Udall
articulated this intent, to establish the highest standard of
proof in negotiability appeals, when explaining his substitute
language which was adopted into law, to the full House:
Section 7106. Management Rights. Four changes increase the
number of rights reserved to management. This substitute
strengthens the 'management rights' Section reported by the
Committee, but it is still to be read narrowly as an exception to
the general obligation to bargain over conditions of employment.
Congressional Record, September 13, 1978, p. H. 9634.
Representative Ford testified succinctly on this burden which
agencies have to show exceptions to the general obligation to
bargain:
"A principal goal in revising the management rights clause is
to change the current situation and, wherever possible, encourage
both the parties to work out their differences in negotiations . .
. In retaining a management right clause in our original draft of
Title VII, Mr. Clay and I, as well as the Committee intended,
however that this Section be read very narrowly. In agreeing to
the Udall Compromise of adding several more portions to this
Section, we fully intend that the Committee's original position go
unchanged and that this Section be narrowly construed."
Congressional Record, September 13, 1978, p. H. 9649.
Representative Ford related the principle of narrow
construction of exception to negotiability to the standard of
proof required to sustain an agency allegation of nonnegotiability
as follows:
The Committee equally intended that the listed management
rights were to be narrowly construed exceptions to the general
obligation to bargain in good faith over conditions of employment
and that Section 7106 be read to favor collective bargaining
whenever there is doubt as to the negotiability of a subject or
proposal.
Congressional Record, September 13, 1978, p. H. 9634.
14 FLRA No. 83; Case No. 6-CA-440; May 11, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2011. Conditions of Employment
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate DIGEST NOTES
There is no basis upon which to conclude that the allocation of
government-owned housing is directly related either to the "methods" or
the "means" of performing the agency's work under Sec. 7106(a)(1).
Rather, the Authority concluded that housing is a matter principally
affecting employees' working conditions. (Note 4)
The agency bypassed the union in violation of Sec. 7116(a)(1) and (5)
when two management officials met with bargaining unit employees
concerning housing policy without notifying the exclusive representative
and affording it an opportunity to be present at the meeting, the ALJ
concluded in a decision adopted by the Authority. Contrary to the
activity's assertions, the meeting was more than purely fact-finding
since the purpose of the meeting was to find out what unit employees
wanted in a housing policy and a handwritten policy report was secured
of the employee's collective views.
The activity violated Sec. 7116(a)(1) and (5) of the Statute by
unilaterally changing the policy concerning the factors to be considered
in determining the assignment of government-owned housing without
providing the union any notice of change or any opportunity to request
negotiations prior to effectuating the change and awarding a house under
the changed policy. The Authority concluded that the assignment of
government-owned housing was a condition of employment directly
affecting the unit employees' work situation and employment relationship
and therefore was within the scope of bargaining under the Statute.
UNITED STATES DEPARTMENT OF JUSTICE
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2509
Case No. 6-CA-440
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 therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to portions of the
Judge's Decision. /1/
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, /2/ conclusions and Recommended Order, as modified
herein.
The Authority adopts the Judge's conclusion that the Respondent
violated section 7116(a)(1) and (5) of the Statute when it bypassed the
exclusive representative and met directly with unit employees concerning
their conditions of employment, noting particularly that Respondent did
not except to the Judge's findings in this regard.
In further agreement with the Judge, the Authority finds that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally changing the policy concerning the factors to be considered
in determining the assignment of government-owned housing at Presidio,
Texas, a hardship post, without providing the Union with any notice of
the change or any opportunity to request negotiations prior to
effectuating the change and awarding a house under the changed policy.
In this regard, the Authority concludes that the assignment of
government-owned housing was a condition of employment directly
affecting the unit employees' work situation and employment
relationship, /3/ and therefore was within the scope of bargaining under
the Statute. /4/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the United
States Department of Justice, United States Immigration and
Naturalization Service shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning the
assignment of government-owned housing, or any other condition of
employment, without first notifying the American Federation of
Government Employees, AFL-CIO, Local 2509, the exclusive representative
of its employees, and affording such representative the opportunity to
negotiate in good faith to the full extent consonant with law.
(b) Bypassing the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of its employees, and
dealing directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
(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) Reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas.
(b) If, following the action taken in accordance with paragraph 2(a),
above, it should develop that there was an improper failure to assign
the housing in question to a bargaining unit employee, the house in
question, if occupied by Spencer, shall be vacated, and the unit
employee entitled thereto shall be assigned the house and reimbursed for
any loss of monies occasioned by the improper failure to assign housing.
/5/
(c) Notify the American Federation of Government Employees, AFL-CIO,
Local 2509 of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(d) Post at its facilities in the Marfa, Texas Sector copies of the
attached Notice on forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the Chief Patrol Agent, Marfa,
Texas, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 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., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT change established conditions of employment concerning
the assignment of government-owned housing, or any other condition of
employment, without first notifying the American Federation of
Government Employees, AFL-CIO, Local 2509, the exclusive representative
of our employees, and affording such representative the opportunity to
negotiate in good faith to the full extent consonant with law.
WE WILL NOT bypass the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of our employees, and
deal directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
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 reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas. If, following this reevaluation,
it should develop that there was an improper failure to assign the
housing in question to a bargaining unit employee, the house in
question, if occupied by Spencer, shall be vacated, and the unit
employee entitled thereto shall be assigned the house and reimbursed for
any loss of monies occasioned by the improper failure to assign housing.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 2509 of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(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:
Bryan and Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221,
and whose telephone number is: (214) 767-4996.
Case No. 6-CA-440
Henry E. Cardenas
For the Respondent
Susan E. Jelen, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), as a result of
an unfair labor practice complaint filed by the Regional Director, Sixth
Region, Federal Labor Relations Authority, Dallas, Texas, against the
United States Department of Justice, United States Immigration and
Naturalization Service (Respondent), based on a charge filed by the
American Federation of Government Employees, AFL-CIO, Local 2509 /6/
(Charging Party or Union). The Complaint alleged, in substance, that
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally changing existing conditions of employment concerning the
assignment of government-owned housing without furnishing the Union an
opportunity to bargain over the change, and further, by bypassing the
Union and dealing directly with unit employees concerning
government-owned housing. /7/
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. Based on the entire record herein, including my observation of
the witnesses and their demeanor, the exhibits and other relevant
evidence adduced at the hearing, and the briefs, I make the following
findings of fact, conclusions of law, and recommendations.
The Charging Party represents an appropriate unit of Respondent's
employees in the Marfa sector of the United States Border Patrol. The
headquarters of the Marfa sector is in Marfa, Texas, and one of the ten
stations located in that sector is in Presidio, Texas.
The Presidio station has been designated a hardship station by the
Border Patrol. After serving at a hardship station for 24 months, a
Border Patrol agent is allowed to rotate laterally, without promotion,
to a vacancy in a geographic area of his choice, depending on the
availability of a vacancy. (Tr. 12, 41, 59, 91). Presidio, Texas has a
population of approximately 1,500. There is a general lack of adequate
housing at the local level. (Tr. 41, 77). However, there is some
government housing available at Presidio, which now includes eight
houses and ten mobile homes or trailers. The first four houses were
available in 1971, with the remaining four built in 1972. The trailers
were not available until the summer of 1979. Of the eight houses, two
are assigned to the Customs Service, two are assigned to the Immigration
and Naturalization Service, Port of Entry personnel, and the remaining
four are assigned to the Border Patrol. (Tr. 12, 42, 43, 60, 63, 106,
107, 108, 116).
By memorandum dated August 5, 1971 the Assistant Regional
Commissioner, Southwest Region, designated the Chief Patrol Agent,
Marfa, Texas the responsibility to assign and determine occupancy of the
Immigration Service housing in Presidio, Texas. The Assistant Regional
Commissioner stated, in part, "Equal and fair consideration should be
given to all personnel desiring occupancy of these houses.
Determinations for authorizing housing should be based on an individual
applicant's needs such as: size of family; conditions of his current
living quarters; availability of other suitable housing in the area;
hardships; and any other items considered applicable." (Respondent's
Ex. 6).
From 1971 to December 1975 two of the four Border Patrol houses were
used by supervisory personnel at Presidio, the Patrol Agent in charge
and the Supervisory Patrol Agent. (Tr. 107-110). In December 1975 the
new supervisory patrol agent did not choose to live in a government
house. The housing was thus assigned to the most senior Border Patrol
agent in Presidio. (Tr. 110-111).
During the period 1976 to 1979 agents reporting to Presidio were told
that they would be considered for housing on the basis of seniority and
size of family. Patrol Agent in Charge Murphy maintained the verbal
request and seniority list in his head. Agents understood that only one
house was reserved for supervisory personnel, the Patrol Agent in
Charge. (Tr. 43-44; 60-61).
In early 1979 information was received that 10 mobile homes would be
added to the government housing at Presidio. (Tr. 127-178). By
memorandum dated February 6, 1979 the Associate Regional Commissioner,
Management, Dallas, Texas again designated the Chief Patrol Agent,
Marfa, Texas the responsibility to assign and determine occupancy of the
Immigration Service housing or mobile homes in Presidio, Texas. Again
the criteria was stated to be: "Equal and fair consideration should be
given to all personnel desiring occupancy of these houses.
Determination for authorized housing should be based on an individual
applicant's needs such as: size of family; conditions of his current
living quarters; availability of other suitable housing in the area;
hardship; and any other items considered applicable."
On February 13, 1979 the Acting Chief Patrol Agent, Marfa, Texas sent
a memorandum to the Patrol Agent in Charge and Officer in Charge,
Presidio, Texas concerning "Occupancy Policy for Government Owned
Housing at Presidio, Texas." The memorandum was consistent with the 1971
policy except that it added the requirement of a written request to the
other criteria. It was felt that the Patrol Agent in Charge would no
longer be able to keep the list in his head. (Tr. 128). The memorandum
provided, in part, as follows:
In order to insure equitable and fair consideration to all
personnel desiring occupancy in government owned housing in
Presidio, Texas, the following prerequisites have been
established.
One unit each shall be reserved for the Patrol Agent in Charge
and the Supervisory Immigration Inspector.
Additionally, two units are occupied by Customs Service
personnel.
A list will be prepared and posted by the Patrol Agent in
Charge and the remaining housing units will be filled from it
according to the following criteria:
1. Date of written request for government housing by POE or
Border Patrol personnel.
2. Date of entry on duty at Presidio, Texas.
3. Size of family.
4. Condition of current living quarters.
5. Availability of other suitable housing in the area.
6. Hardships.
Although any other applicable factors will be considered, the
final approval for government-owned housing will be made by the
Chief Patrol Agent in Marfa, Texas. (Joint Ex. 2).
On July 25, 1979 Border Patrol Agent Stanley U. Spencer sent a
memorandum to the Chief Patrol Agent, Marfa, Texas, requesting that his
name be placed on the list for government housing at Presidio, Texas.
He stated that he would enter on duty at Presidio on or before August
19, 1979 as a GS-11, Senior Patrol Agent. (Respondent's Ex. 2). The
Senior Patrol Agent is a supervisor under the Patrol Agent in Charge.
(Tr. 41). Spencer arrived at Presidio in the summer of 1979, and,
shortly thereafter, was assigned a government trailer. Spencer had a
wife and three children. (Tr. 44-45; 49, 62-64).
On August 14, 1979 the Chief Patrol Agent, Marfa, Texas sent a
memorandum to the Immigration Officers, Presidio, Texas concerning
government-owned housing. The memorandum provided, as follows:
There are eight Government houses at Presidio. Two are
occupied by U.S. Customs personnel. One will be reserved for the
SII (Senior Immigration Inspector) and one will be reserved for
the SPAIC (Supervisory Patrol Agent in Charge).
There will be two (2) three (3) bedroom trailers and eight (8)
two (2) bedroom trailers available as residences.
The Government houses and the three bedroom trailers will be
made available to Immigration Officers with a family of at least
two children. The remaining trailers will be available to
Immigration Officers with families and single Officers. Officers
with families will get preference.
As the various residences become available, they will be
offered following the above criteria, to the Officer with the most
time in Presidio. If that Officer declines to accept the housing,
his name will go last on the waiting list and the next Officer
will be offered the residence. Any Officer with two or more
children may wait for the first suitable size trailer, or a house
without returning to the bottom of the waiting list.
Due to the shortage of suitable family housing in Presidio, we
ask that only those Officers who intend to bring their families to
Presidio to reside full time, ask to be considered for this
housing. (Joint Ex. 3)
Following this memorandum, Border Patrol Agent James K. Kramer
submitted a memorandum on August 16, 1979 requesting consideration for
government housing. Kramer's family consisted of his wife and himself.
On or about September 25, 1979 Kramer was offered a government trailer
and declined it. (Tr. 47; Respondent's Ex. 1, 3).
On September 28, 1979 the Chief Patrol Agent, Marfa, Texas sent
another memorandum to all INS employees at Presidio concerning
government housing. The memorandum stated, in part, as follows:
All requests for Government owned housing must be directed to
the Chief Patrol Agent, Marfa, Texas. Upon receipt of the
request, your name will be placed on a list according to the date
of the request. When living quarters become available you will be
advised. If you choose to decline Government owned housing, you
must submit a memorandum to this Office advising of the
declination. Your name will then be removed from the list and you
will not be considered again until you submit another written
request at which time you will again be placed on the bottom of
the list. (Joint Ex. 4).
The Border Patrol agents in Presidio were aware at this time that one
of the government-owned houses would soon be vacated by a transferring
agent, John Garza. Consequently, James A. Kramer submitted a new
written request for the house on October 6, 1979, and Robert Davis
submitted a written request on October 9, 1979. (Tr. 51, 65,
Respondent's Ex. 4, 5). Davis is married, has three children, and has
been assigned to Presidio, Texas since March 6, 1978. (Tr. 58).
When the house became vacant, Thomas Harrison, Acting Patrol Agent in
Charge, Presidio examined the list of persons who had made a written
request. He discovered that Agent J. J. Rena was at the top of the
list. The house was offered to Rena, who declined it as insufficient.
The next person on the list by date of request was Supervisory Patrol
Agent Stan Spencer. Spencer was offered the house and accepted. The
Patrol Agent in Charge testified that Spencer was not given the house
because he was a Supervisory Patrol Agent, but because he was next on
the list. (Tr. 112-,13, 121). During a staff meeting in early November
1979 the Patrol Agent in Charge advised the agents that Spencer had been
given the house. (Tr. 65).
The Chief Patrol Agent, Marfa sector, received information that the
Border Patrol agents in Presidio were confused over the policy used for
selecting individuals for housing. He sent the assistant chief and
deputy chief patrol agents to Presidio to ascertain the positions of the
agents at the station concerning a housing policy. The agents were
advised of the purpose of the meeting, and the two officials then left
while the agents prepared a handwritten statement of what they wanted in
a housing policy. No Union representative was present at this meeting.
There is no evidence that the Union was notified of the meeting. (Tr.
124-125; 129-130).
On November 13, 1979, Union chief steward George Campbell was
informed by an agent in Presidio that the Supervisory Patrol Agent had
been given one of the government houses in violation of the past
practice. (Tr. 13, 14). Campbell and the Union vice president, John
O'Donnell, met with Chief Patrol Agent Sheppard in Marfa, Texas the
following day. Campbell told the Chief that there had been a change in
policy concerning the assignment of government housing at Presidio, and
the Union had not been informed of the change prior to implementation.
The Chief replied that he did not know he had to negotiate with the
Union on a change of policy. (Tr. 15, 84, 85). The Union officials
requested to bargain over two issues: the general housing policy at
Presidio and the assignment of Supervisory Patrol Agent Spencer to
government housing. Sheppard stated that Spencer had been placed in
government housing because he was the supervisor in the area. Sheppard
agreed that Campbell and O'Donnell should go to Presidio to receive
input from the agents stationed there as to what they wanted in a
housing policy. Sheppard also stated that he had not made a decision
about allowing Spencer to remain in the house. (Tr. 17, 84, 85).
Campbell and O'Donnell met with the agents at Presidio and later
presented a memorandum to Chief Sheppard. The employees wanted a
permanent list of employees interested in government housing with the
entry on duty date as the determining factor. (Tr. 18, 86, 87, Joint
Ex. 6). In December 1979 Campbell and O'Donnell again met with Sheppard
to ask whether he had made a decision on whether or not he would allow
Spencer to remain in the government house. Sheppard informed the Union
officials that he was not locked in to any position and had not decided
whether Spencer would remain. (Tr. 19, 87).
On January 2, 1980, a meeting was arranged to discuss the housing
problem in Presidio. Chief Sheppard presented the Union officials with
a draft of the proposed housing policy in Presidio. According to the
policy and the decision by the Chief, Spencer would be allowed to remain
in the government house. Although the Union agreed that future
Supervisory Patrol Agents would have government housing reserved for
them, /8/ since they would no longer be eligible for hardship rotation,
the Union again requested that Spencer be removed from the house
inasmuch as there were still men ahead of Spencer in seniority who
wanted the government house, and Spencer was eligible for hardship
rotation. (Tr. 22, 89, 102). Chief Sheppard, however, stated that he
had decided Spencer would remain in the house. The housing policy, as
discussed with the Union on January 2, was implemented by Respondent.
(Tr. 20, 22, 88, 89, 90, Joint Exh. 7).
There is no evidence that, prior to November 1979, the Union was ever
advised of written policies concerning the assignment of housing to
personnel at Presidio. (Tr. 92).
The complaint alleges that on or about November 11, 1979 Respondent
violated section 7116(a)(1) and (5) of the Statute by unilaterally
changing existing conditions of employment concerning the assignment of
government-owned housing without furnishing the Union an opportunity to
bargain. Respondent argues that there has been no change regarding the
assignment of housing, in that, since 1971, it has been the policy that
two of the houses would be reserved for Border Patrol supervisory
personnel.
The record reflects that only the Patrol Agent in Charge has
consistently had a house reserved. Since 1975 the remaining houses were
occupied by agents on the basis of various factors, including primarily
seniority at Presidio and size of family. Agents reporting to Presidio
were so informed. Moreover, the February 13, 1979 and August 14, 1979
memoranda from the Chief Patrol Agent, Marfa sector, referred only to a
reservation of one house for the Patrol Agent in Charge, as far as the
Border Patrol was concerned. The August 5, 1971 and February 6, 1979
basic memoranda from the regional offices both referred to "equal and
fair consideration . . . to all personnel" under various criteria and
also did not specifically reserve two houses for Border Patrol
supervisory personnel.
Thomas Harrison, the Patrol Agent in Charge, Presidio, Texas
testified that Spencer was not given the house in early November 1979
because he was a Supervisory Patrol Agent, but, rather, because he was
next on the list by virtue of the date of his written request. I credit
Mr. Harrison's testimony. It is consistent with the September 28, 1979
policy memorandum from Mr. Harrison's supervisor, the Chief Patrol
Agent, Marfa sector, which specified that names would be placed on the
list for government housing according to the date of the written
request. No other factor was mentioned. This September 28, 1979 policy
represented a drastic change from the Chief's memorandum issued a little
over a month earlier, August 14, 1979, which stated that residences
would be offered based on size of family and seniority at Presidio. It
also represented a radical change from the memorandum issued in February
13, 1979 which specified various similar criteria for the assignment of
housing, including date of request, date of entry on duty at Presidio,
size of family, and numerous other factors.
There is no evidence that the Union was notified of the September 28,
1979 change and given an opportunity to request and engage in meaningful
negotiations prior to effectuation of the change and awarding of the
house to Supervisory Patrol Agent Spencer in November 1979.
Respondent's willingness to receive the Union's proposals after the
change was made, and as to what the future housing policy should be, did
not cure its improper refusal to negotiate in good faith prior to making
changes in established conditions of employment. Department of the Air
Force, Scott Air Force Base, Illinois and National Association of
Government Employees, Local R7-23, 5 FLRA No. 2 (1981). Respondent's
conduct violated sections 7116(a)(1) and (5) of the Statute as alleged
in the complaint.
The General Counsel also alleged that Respondent violated sections
7116(a)(1) and (5) by bypassing the Union on or about November 9, 1979
and meeting directly with employees for the purpose of discussing the
housing policy at Presidio, Texas. Respondent asserts that the
discussion with employees was purely a fact-finding mission.
The record reflects that the two management witnesses involved in the
alleged bypass, Mel Heck and Hugh Rushton, admitted their presence at
the meeting and testified they had been instructed by Chief Sheppard to
find out what the agents in Presidio wanted in a housing policy. The
two management officials contacted the unit employees as to the purpose
of their visit and secured a handwritten policy containing the unit
employees' collective views concerning the housing policy. The Union
was not contacted prior to this meeting at Presidio, and no Union
representatives were present at the meeting.
I agree with counsel for the General Counsel's observation that the
evidence clearly demonstrates a classic bypass situation. Without any
apparent thought as to the function of the exclusive representative and
the agency's responsibilities towards the exclusive representative,
Respondent sent two management officials from the Marfa sector to
ascertain what bargaining unit employees at the Presidio station wanted
in a housing policy. The exclusion of the exclusive representative from
this meeting resulted in a bypass of the exclusive representative with
regard to the very matters for which it was chosen by the unit employees
to act as their representative. As stated in Department of Health,
Education and Welfare, Social Security Administration, 1 FLRA No. 59
(1979):
(T)he Union's sole right to express opinion and sentiments on
behalf of employees was substantially eroded when the Center
obtained individual employees views of matters appropriately
belonging to the exclusive representative. In the scheme of
collective bargaining it is the exclusive representative (or its
agent) which speaks on behalf of the employees using its
evaluation of employee sentiment and such other matters it chooses
to take into account that the Center is obligated to consider.
When the Union is bypassed in this regard, bargaining, in effect,
takes place directly with employees and not through the exclusive
representative in derogation of the exclusive representative's
rights.
Accordingly, by dealing directly with the unit employees in these
circumstances, Respondent bypassed the Union in derogation of its status
as the exclusive representative of unit employees and violated sections
7116(a)(1) and (5), as alleged.
Based on the foregoing findings of fact and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the rules and regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
United States Department of Justice, United States Immigration and
Naturalization Service shall:
1. Cease and desist from:
(a) Changing established conditions of employment concerning
the assignment of government-owned housing, or any other term and
condition of employment, without first notifying American
Federation of Government Employees, AFL-CIO, Local 2509, or any
other exclusive representative of its employees, and affording
such representative the opportunity to negotiate in good faith to
the full extent consonant with law.
(b) Bypassing the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of its
employees, or any other exclusive representative, and dealing
directly with unit employees concerning personnel policies and
practices and matters affecting working conditions.
(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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the September 28, 1979 memorandum from the Chief
Patrol Agent, Marfa, Texas establishing a procedure of assigning
government-owned housing in Presidio, Texas according to the date
of an employee's written request for such housing.
(b) Reevaluate the assignment of a government owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979 and
reevaluate all employees in Presidio, Texas for eligibility for
this house in accordance with the established terms and conditions
for assignment of housing set forth in the August 14, 1979
memorandum from the Chief Patrol Agent, Marfa, Texas.
(c) If, following the action taken in accordance with paragraph
2(b), above, it should develop that there was an improper failure
to assign the housing in question to an employee, the house in
question shall be vacated, the employee shall be assigned the
house and reimbursed for any loss of monies occasioned by the
improper failure to assign housing.
(d) Notify the American Federation of Government Employees,
AFL-CIO, Local 2509, or any other exclusive representative of its
employees, of any proposed change in established conditions of
employment concerning the assignment of government-owned housing,
or any other term and condition of employment, and, upon request,
afford such representative the opportunity to negotiate in good
faith to the full extent consonant with law.
(e) Post at its facilities in the Marfa, Texas sector 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 Chief Patrol Agent, Marfa, Texas 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 Chief
Patrol Agent shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(f) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
Director, Region Six, Federal Labor Relations Authority, Dallas,
Texas, in writing, within 30 days from the date of this order, as
to what steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: September 29, 1981
Washington, DC
WE WILL NOT change established conditions of employment concerning
the assignment of government-owned housing, or any other term and
condition of employment, without first notifying American Federation of
Government Employees, AFL-CIO, Local 2509, or any other exclusive
representative of our employees, and affording such representative the
opportunity to negotiate in good faith to the full extent consonant with
law.
WE WILL NOT bypass the American Federation of Government Employees,
AFL-CIO, Local 2509, the exclusive representative of our employees, or
any other exclusive representative, and deal directly with employees
concerning personnel policies and practices and matters affecting
working conditions.
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 rescind the September 28, 1979 memorandum from the Chief
Patrol Agent, Marfa, Texas which established a procedure of assigning
government-owned housing in Presidio, Texas according to the date of an
employee's written request for such housing.
WE WILL reevaluate the assignment of a government-owned house to
Supervisory Patrol Agent Stanley U. Spencer in November 1979, and
reevaluate all employees in Presidio, Texas for eligibility for this
house in accordance with the established terms and conditions for
assignment of housing set forth in the August 14, 1979 memorandum from
the Chief Patrol Agent, Marfa, Texas. If, following this reevaluation,,
it should develop that there was an improper failure to assign the
housing in question to an employee, the house in question shall be
vacated, the employee shall be assigned the house and reimbursed for any
loss of monies occasioned by the improper failure to assign housing.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 2509, or any other exclusive representative of our
employees, of any proposed change in established conditions of
employment concerning the assignment of government-owned housing, or any
other term and condition of employment, and, upon request, afford such
representative the opportunity to negotiate in good faith to the full
extent consonant with law.
(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, Region Six, Federal Labor Relations Authority, Bryan
& Ervay Street, Old Post Office Building, Room 450, Dallas, Texas 75221.
Telephone: (214) 767-4996.
/1/ The General Counsel filed an untimely opposition to the
Respondent's exceptions which has not been considered.
/2/ On page 2 of his Decision, the Judge inadvertently described the
unit represented by the Charging Party as an "appropriate unit of
Respondent's employees in the Marfa sector of the United States Border
Patrol." The record discloses, however, and the Authority finds that the
Charging Party represents a nationwide unit of all Immigration and
Naturalization Service employees assigned to its Border Patrol Offices.
/3/ In this regard, the record indicates that (1) the Presidio
station has been designated a hardship station to which Border Patrol
agents are assigned to serve for 24 months before being rotated to a
different geographical area; (2) there is a lack of adequate housing in
the area; (3) the government-owned housing in question was constructed
for the benefit and use of the Respondent's employees stationed at the
hardship location; and (4) the Respondent's representative in that area
had been delegated the responsibility for assignment of the available
housing. See, e.g., American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
6 FLRA 423 (1981), affirmed sub nom. Office of Personnel Management v.
FLRA, 706 F.2d 1229 (D.C. Cir. 1983), citing American Federation of
Gov't Employees and Air Force Logistics Command, Wright-Patterson Air
Force Base, 2 FLRA 604, 606 (1980), enforced as to other matters sub
nom. Dept. of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert.
denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), wherein proposals for
day care facilities were held to concern a condition of employment;
National Federation of Federal Employees and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 4 FLRA 139 (1980), enforced sub nom.
Department of Defense, et al. v. FLRA, 685 F.2d 641 (D.C. Cir. 1982),
where the Authority held that a proposal related to ration control
involved the employees' conditions of employment in the circumstances
presented.
/4/ The Authority notes that the Respondent did not argue to the
contrary in closing arguments at the hearing in lieu of a post-hearing
brief to the Judge, but instead contended essentially that there had
been no change in established policies and practices. The Respondent
now contends before the Authority, in seeking reversal of the Judge's
Decision, that allocation of government housing concerns the "methods"
and "means" of performing the agency's work within the meaning of
section 7106(b)(1) of the Statute and therefore is negotiable only at
its election. However, section 2429.5 of the Authority's Rules and
Regulations provides that "(t)he Authority will not consider . . . any
issue . . . which was not presented in the proceedings before the . . .
Administrative Law Judge . . . . " In any event, there is no basis upon
which to conclude that the allocation of government housing is directly
related either to the "method" of performing the Agency's work, i.e.,
the way in which it administers the immigration laws, or the "means,"
i.e., the "tools," "devices," or "instrumentalities" by which the Agency
will do its work. Rather, housing is a matter principally affecting
employees' working conditions. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 3525 and United States Department
of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal
1); National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA No. 62 (1983).
/5/ The Judge's recommended remedy has been modified to reflect the
parties' agreement of January 2, 1980, referred to on page 7 of the
Judge's Decision, that in the future Supervisory Patrol Agents would
have government-owned housing reserved. Thus, upon compliance, if it
develops that there was an improper assignment of the housing to
Spencer, and that such housing has subsequently been vacated and then
assigned to another supervisor pursuant to the parties' agreement, the
remedy for the bargaining unit employee adversely affected by the
improper assignment of housing to Spencer shall be limited to
reimbursement for loss of monies resulting from the improper assignment
for the period between the improper assignment and the subsequent
assignment of housing under the parties' agreement.
/6/ The complaint was amended at the hearing to reflect the correct
name of the Charging Party.
/7/ The complaint was amended at the hearing to include this
allegation as a separate violation of 5 U.S.C. 7116(a)(1) and (5). The
matter was fully litigated at the hearing.
/8/ John O'Donnell testified that the Union was willing to agree to
have a house reserved for future Supervisory Patrol Agents because
Respondent stated that they would no longer be eligible for hardship
rotation. They could, therefore, be stationed in Presidio for a longer
period of time. However, Spencer was eligible for hardship rotation.
(Tr. 22, 89, 102).
14 FLRA No. 82; Case No. 8-CA-788; May 11, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4100. Interference, Restraint, Coercion
4500. Refusal to Negotiate
6500. UNFAIR LABOR PRACTICE: Procedure
6580. Complaint DIGEST NOTES
The Authority found that the agency did not violate section
7116(a)(1), (5) and (8) of the Statute when it refused to furnish to the
union information necessary and relevant for it to process a grievance
where the evidence indicated that: (1) the request made to the agency
was for the "amount of personnel" rotated; (2) the union was given
information including the number of employees shifted, but not the names
of employees involved; (3) the union steward involved affirmed that he
had never asked for the names of the employees rotated; (4) the union
steward had been told where he could find the information he needed;
and (5) the information furnished to the union was exactly what had been
sought.
Where the complaint did not allege a violation based on the agency's
untimeliness in furnishing information but rather alleged that the
information sought was not furnished at all, the Authority, after having
determined that the information given was what was sought, noted that
the information requested by the union was furnished after the grievance
process had begun, and at about the same time that the charge in this
case was filed. (Footnote 3)
DEPARTMENT OF THE NAVY
PEARL HARBOR NAVAL SHIPYARD
PEARL HARBOR, HAWAII
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL 811
Case No. 8-CA-788
The Administrative Law Judge issued his 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, and the Respondent filed an opposition thereto.
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 hearings 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 recommendations as modified below.
The Judge found that the Respondent did not violate section
7116(a)(1), (5) and (8) of the Statute, /1/ as alleged in the complaint,
by refusing to furnish to the Union, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 811, information necessary and relevant for it
to process a grievance. According to the complaint, the information
requested consisted of the names of employees rotated from the third
shift to the first shift and the amount of time each such employee had
worked on the third shift.
The Judge found that the Union steward repeatedly requested
information about the "amount of personnel" rotated, in connection with
a grievance over shift rotation alleged to be in disregard of seniority
under the parties' negotiated agreement. The information was first
sought on October 3, 1980, and again at several steps of the grievance
procedure, but no information was actually furnished until October 27,
1980. At that time, the Union was given information including the
number of employees shifted, but not the names of employees involved.
The Judge noted that the Union steward had been told where he could
find the information he needed and that the Union steward testified that
the information he received was sufficient. On this basis the Judge
concluded the Union was not denied access to the necessary information,
and that the General Counsel therefore failed to meet its burden of
proving the Respondent refused to furnish names of employees and the
time each had worked on the disputed shift. Further, he found that the
Respondent met its obligation to supply the requested information by
directing the Union to where the information was kept.
The Authority finds it unnecessary to pass on whether the Respondent
would have met its obligation under section 7114(b)(4) of the Statute to
furnish data "which is reasonably available and necessary" /2/ by
directing the Union to certain files or personnel to find the
information. Although the information sought arguably would be
necessary for the Union properly to process the grievance, the record is
clear that the request made to the Respondent was for the "amount of
personnel" rotated, and the Union steward involved affirmed that he had
never asked for the names of employees rotated. Thus, the information
furnished was exactly what had been sought. /3/
Accordingly, the Authority concludes that the Respondent did not
violate section 7116(a)(1), (5) and (8) of the Statute, and the
complaint shall be dismissed.
IT IS ORDERED that the complaint in Case No. 8-CA-788 be, and it
hereby is, dismissed. Issued, Washington, D.C., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 8-CA-788
E. A. Jones, Esq.
For the General Counsel
Robert F. Griem, Esq.
and Bert Lederer
For the Respondent
Before: ELI NASH, JR.
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. (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
XIV, Sec. 2410 et seq.
On January 30, 1981, the Regional Director for Region 8 of the
Federal Labor Relations Authority, herein called the Authority, pursuant
to a charge originally filed by the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, Local 811, herein called the "Union," on October 27,
1980, and amended on January 28, 1981, issued an Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing /4/ alleging that
the Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor,
Hawaii, herein called the "Respondent", had engaged in unfair labor
practices within the meaning of Section 7116(a)(1), (5), and (8) of the
Statute in that since or or about October 15, 1980, and continuing to
date, Respondent has failed and refused to furnish the Union necessary
and relevant information consisting of the names of employees rotated
from the third shift to the first shift and the amount of time each such
employee had worked on the third shift, which information was necessary
and relevant to the processing of a grievance.
On February 18, 1981, Respondent filed an answer denying the
allegations of the consolidated complaint.
A hearing in this matter was conducted before the undersigned in
Honolulu, Hawaii. All parties were represented by Counsel and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Also all parties
filed timely briefs.
Based upon the entire record in this matter, including my observation
of the witnesses and their demeanor, and upon my evaluation of the
evidence, I make the following findings, conclusions and
recommendations.
Respondent operates a shipyard at Pearl Harbor, Hawaii. At all times
material herein Respondent and the Union were parties to a collective
bargaining agreement. Article IV, Section 5, Rule 5-2 of the agreement
provides:
qualified employees who volunteer for second or third shift
shall be rotated from the day shift to the requested shift on a 90
calendar day basis starting with the numbers required by the
employer in the direct order of seniority in their current
position from a group of work centers under the assigning
supervisor. Volunteers who have served a 90 calendar day period
under this provision shall not be selected again until each
qualified volunteer has served a 90 calendar day period.
However, there are no procedures set forth in the agreement to cover
the order of return of employees to day shift due to lack of work on
third shift before or after expiration of the 90-day period. Other
portions of the agreement applicable herein are Article IV, Section 5,
Rule 5-3, which provides for voluntary assignments to second and third
shifts. Rule 5-4, providing that seniority in Article IV shall be based
on the amount of continuous service with Respondent in the employees'
present position. Also Rule 5-7 which provides that assignments of
employees from one shift to another will be made only to the extent
necessary to carry out Respondent's mission.
Mr. Charlie Chang is a pipefitter with 8 years experience, who works
in Respondent's Shop 56 under Supervisor David Blaylock. Mr. Chang was
assigned to work third shift or from 11:30 p.m. to 7:30 a.m. on June 9,
1980. /5/ Effective September 29, 1980, Mr. Chang was rotated to first
shift, his work hours there being 7:00 a.m. to 3:45 p.m. Mr. Chang's
rotation was involuntary since he did not request to be rotated. Mr.
Chang immediately requested to meet with a Union shop steward about his
pending rotation, but no meeting was arranged until after he returned to
day shift. In substance, Chang's complaint was that he was rotated out
of seniority and that he should not have been rotated to first shift
before employees who came to work after he was assigned to the third
shift were rotated.
Subsequently, Mr. Chang met with shop steward Raymond Arancon and
complained about his rotation from third shift. Arancon conducted a
preliminary investigation by talking to another pipefitter, Dennis
Souza, who indicated that he and another employee had been rotated off
the third shift at the same time as Chang though other employees had
been on third shift longer in a longer period of time. Arancon because
of his busy schedule assigned Chang's complaint to Newton Omiya, a new
shop steward handling his first grievance. Arancon instructed Omiya to
request records in order to verify whether Chang had been improperly
rotated from third shift. Arancon also told Omiya to check the work
load and check personnel still on third shift because there appeared to
be preferential treatment on the shift. Arancon further indicated that
Omiya should look for overtime work which would indicate a heavy work
load. Arancon confidently told Omiya that Chang's case was "duck soup.
All you got to do it request records to verify that Mr. Chang came back
improperly."
Arancon, an experienced steward, stated that there were several ways
of requesting information. According to him, information could be
requested verbally from a responsible agent of Respondent or in writing
under Article 19, Section 5-14 of the collective bargaining agreement.
Thereafter Chang and Omiya met in order to determine Chang's position
on the shift rotation problem. Chang felt that a grievance was in order
because his rotation off third shift was unfair, and that there were
many employees who went on third shift before and after him who had not
been rotated to day shift. Omiya investigated the Chang allegation by
talking with employees Eugene Hall and Dennis Souza who had returned to
day shift along with Chang. As a result of his investigation, Omiya
determined that he should go forward with the Chang grievance.
Around October 3, 1980 Omiya submitted the Chang grievance to
Supervisor Blaylock. The grievance alleged a violation of Article IV,
Section 5, Rule 5-2 and Rule 5-6 of the collective bargaining agreement.
It requested basically that Chang be allowed to remain on the third
shift and that he be paid retroactive night differential pay. In
addition, under the notation "RECORDS OF WHICH EXAMINATION IS
REQUESTED," /6/ the grievance stated:
Records showing the amount of personnel that was rotated during
the third shift rotation of the months, March 1980 to the present
time, and the lengths of time personnel has and is serving. Also
Records showing the amount of workload projected from June 1980 to
Dec. 1980.
Omiya testified that he sought the records in order to confirm
information obtained in his preliminary investigation and to establish
that Chang should not have been rotated to first shift under the terms
of the agreement.
At the hearing, Omiya testified that he wanted to know the amount of
personnel rotated from third shift in order to find out how many people
were rotated from third shift and the length of time they have spent on
that shift. Omiya allegedly asked for the projected work load because
he had heard that there was a low work load. According to Omiya, he
asked for all those records. He also testified that he would have used
the information to determine whether there was a high or low work load.
The length of time individuals spent on the shift would, according to
Omiya, be used to show whether Respondent applied seniority properly.
In referring to the "amount of personnel", Omiya states that he meant
the identity or names of the individuals concerned. Omiya further
testified that he felt the names of the people who were on third shift
were important and that without the information requested he could not
resolve the grievance. He testified that the names of the individuals
were important to show first, who in fact, was rotated and who was on or
back on third shift. Omiya asserted that there was no way-- other than
through Blaylock-- of obtaining the requested information. He said that
he had tried to obtain information through interviews with other
employees, but received little cooperation.
The record shows that the information requested was available from
records maintained in the Administrative Office in Shop 56 and the
personnel shop for the Structural Group in Shop 92. A log is maintained
which indicates the amount of time employees have worked on third shift
and identifies the employees by name and badge number. Overtime records
are also maintained in Shop 56. The overtime records include employee
names, badge numbers and shifts worked. Information regarding projected
work load is also kept in Superintendent Fenicle's office. There is no
record evidence that Omiya was denied access to any of the above
records.
Later on October 6, 1980, Omiya hand delivered a letter to Blaylock
in which he requested records showing regular and overtime hours worked
by second and third shifts from September 29, 1980 to October 6, 1980.
Omiya indicated in the letter that the records were necessary to the
processing of the grievance. When Omiya delivered this letter, Blaylock
told him that the records he had requested would be denied since release
of the records would violate the rights of individuals on second and
third shift. Blaylock also told Omiya that in order to get the records
he would have to obtain the permission of Shop 56 Superintendent Billy
Leucke. Much later on October 15, 1980, Blaylock informed Omiya, by
letter regarding Omiya's October 6 letter that unless "justification is
provided concerning the pertinence of these records, the documents you
requested need not be provided."
On October 16, 1980, a first step meeting on the Chang grievance was
held in Blaylock's office. At that meeting, which lasted between
fifteen and thirty minutes, Omiya and Chang again asked for the records
from Blaylock. Blaylock responded that he could not provide the names
of employees due to the Privacy Act. Omiya then said he did not want
the names, but Blaylock did not change his position. Omiya requested
that Blaylock put his denial in writing. Blaylock wrote the following
on the grievance form beneath the typed-in request for records: "I
don't have the Authority to give you these Records, but the chief union
steward may see them in X-92 personnel. D. Blaylock 10-16-80." Earlier,
Blaylock told Omiya that, "if I wanted the records that I would have to
get permission" either from the General Foreman Gordon Dung or
Superintendent Billy Leucke. Regarding the merits of Chang's grievance,
Blaylock stated that the grievance would not hold and that Chang would
not be sent back to third shift.
Chang and Omiya were informed by letter dated October 15, 1980, but
received on October 16, 1980, that the grievance was denied. The denial
noted that Rule 5-2 dealt only with assignments to third shift and did
not apply to assignments from third shift. In addition Blaylock noted
that Chang had provided no evidence of a compelling reason under Rule
5-6 for assignment to third shift.
The following day, October 17, 1980, Omiya carried two letters to
Superintendent George Fenicle's office. The first was a request to move
the grievance to the second step. The second, referring to and
enclosing the grievance form and the October 6, 1980, information
request letter, which renewed the earlier request for records.
On October 24, 1980, a second step meeting was held on the grievance
with Chang and Omiya present for the Union and, Superintendent Fenicle,
Shop Superintendent Leucke, Supervisor Blaylock, and Administrative
Officer, Ella Dalton present for Respondent. Omiya again asked Fenicle
if he was going to give him the requested records. Fenicle responded
that he had already provided the records. The discussion then turned to
the merits of the grievance. Leucke indicated that Chang had been
rotated because of lack of skill and because of his leave usage. Omiya
for the second time in that meeting asked for the records and Fenicle
again said they had already been provided. However, at that time, Ella
Dalton interrupted Fenicle and told him that the records had not been
delivered. Dalton informed Omiya that she would contact him later and
give him the records. Omiya suggested that they delay the meeting
pursuant to Article XIX, but Superintendent Fenicle declined and the
meeting proceeded.
On October 27, 1980, Omiya filed the instant unfair labor practice
charge.
Subsequently on October 29, 1980, Chang received the second step
answer from Fenicle denying the grievance and noting, "As to the records
you requested, we have provided you with a list of employees rotated."
On that very day Omiya received a letter dated October 27, 1980, from
Fenicle which stated, "In response to your request, the number of
employees rotated to the third shift from the period Mr. Chang was
rotated to the third shift is provided: (Effective date June 1980)."
The letter listed the number of employees (but not their names) rotated
to third shift and the number reassigned to first shift by grade for the
period from June 9, 1980, to September 29, 1980. As already noted it
included no employee names.
According to Omiya, he was provided neither names, records nor
information pursuant to his October 3 and October 6, 1980 requests.
Omiya received no records regarding the time and length the individual
employees spent on third shift or the work load projection for the
regular and overtime hours worked. Further, Omiya states that he was
never permitted to review the records on which the October 27 letter was
based nor was he permitted to review any records pursuant to his
requests. Omiya's testimony was, that based on the information he
turned up prior to filing the grievance, the information in the October
27 letter was not accurate. The October 27 letter showed but one person
returning to day shift on September 29, 1980, while Omiya's
investigation indicated that at least three employees had been returned.
However, Omiya does not deny that this information was available in
Shop 92 and that he did visit Shop 92 to request records. Furthermore,
Omiya testified that the October 29 information, which did not contain
any employee names was sufficient information to permit him to process
the Chang grievance.
Finally on November 6, 1980, Chang's October 3, 1980, grievance form
and the information request was submitted to Respondent's Commanding
Officer, T. A. Marnane, Capt., USN, along with a letter of all the
information requested. By letter dated November 21, 1980, and received
by Chang on November 25, 1980, the grievance was denied by Capt.
Marnane. There was no reference in the denial to the information
request. Thereafter, the grievance was submitted to arbitration on
December 5, 1980.
The Complaint alleges that Respondent violated the Statute by
refusing to furnish necessary and relevant information consisting of the
names of employees rotated from the third shift to the first shift and
the amount of time each such employee had worked on the third shift.
The General Counsel asserts that this allegation is sufficiently
specific to encompass Respondent's failure to permit the Union to
inspect and review the relevant requested records which contained the
names of the employees involved. Respondent urges that the only
allegation at issue is Respondent's failure to provide names that the
Union did not want and that all other matters involved were not subject
to adjudication. Omiya's original request for information and his
testimony at the hearing reveals that the Union was not interested in
names, but records showing the amount of personnel rotated, the length
of service of individuals on third shift and the projected workload from
June to December 1980. Further, Omiya repeatedly testified that he was
interested in the amount of personnel rotated and was admittedly not
specifically interested in names.
The General Counsel further contends that Supervisor Blaylock's
refusal to supply records under the Privacy Act is clear evidence that
Blaylock understood Omiya's request to be for names. In view of the
specific request "(r)ecords showing the amount" made on October 3 such
an inference cannot be drawn. Further, Omiya's testimony sheds no
further light on the nature of his request to Blaylock. Moreover, if
the request was for names and the actual names were not necessary and
relevant, as Omiya's testimony suggests, the denial of names, even for
the reason stated by Blaylock would not be violative of the Statute.
The complaint must be read that Omiya was seeking the individual
names and records of employees on the third shift and based on the
record as a whole this information was necessary and relevant to process
the Chang grievance. However, Omiya testified that the material
furnished on October 29, 1980 was sufficient for his purpose in
processing the grievance and that this information did not then contain
names of any employees. /7/ Furthermore, Omiya's testimony as to what
he was seeking through his requests is confusing and could well have
been misunderstood by Blaylock. It is noted that Blaylock did not
perceive the relevancy of the information since obviously, in his view,
seniority had nothing to do with Chang's being moved from the third
shift. What is clear, however, is that Blaylock, on more than one
occasion, directed Omiya to other sources in order to obtain the
information and that Omiya ignored those sources since he concluded that
Blaylock was responsible for supplying the records. Much of the
confusion can be laid to Omiya's inexperience as a steward and his
reliance on Arancon's instructions. While this type case would have
been "duck soup" for Arancon it was obviously a little more difficult to
Omiya. Thus, I conclude from the exchanges between Omiya and Blaylock,
that Omiya was not denied access to or the ability to inspect the
records originally requested by him on October 3, but that he denied
himself the opportunity to inspect those records by not pursuing
Blaylock's suggestions.
Based on the foregoing, I agree with Respondent that the General
Counsel did not establish by a preponderance of the evidence that it
refused to furnish names of employees and the amount of time each such
employee had worked on third shift. Indeed it is found that Respondent
pointed Omiya to the records, and Omiya did not take advantage of the
opportunity to inspect the records which included all the information
sought by him. Furthermore, if what Omiya sought was raw data involving
employees on the shift there is no question that such information was
open and available for inspection in Shop 92 and Shop 56, but as
Blaylock told him, the request for such information should have been
made to either the General Foreman or to Superintendent Leucke and not
to Blaylock.
Turning to the question of whether Respondent refused to supply any
necessary and relevant information to the Union. As Arancon testified,
there were several established methods of obtaining records both orally
and under the agreement. Omiya concluded that the request should be
made directly to Blaylock, which he did. The record clearly established
that Blaylock, on more than one occasion, directed Omiya to the records
which he sought saying that he had no authority to give him the records,
but telling him how the requested information could be obtained. The
General Counsel contends that the information sought by Omiya was not
where Blaylock suggested. In my view, Respondent met its obligation to
supply the requested information. The record establishes that Omiya was
not denied access to any of the information he sought and that he did go
to Shop 92 to request a portion of the records. Further, there is no
evidence that Respondent sought to withhold any information or records
from Shop 92, but only that Omiya's inexperience prevented him from
obtaining the information which he needed. In such circumstances, where
a steward is informed where the requested information is kept and there
is no record evidence that Respondent sought to deny access to those
records it cannot be found, as suggested by the General Counsel, that
Respondent refused to supply necessary and relevant information.
For the aforementioned reasons, it is recommended that the Authority
issue the following order:
It is hereby ordered that the complaint in case No. 8-CA-788 be, and
it hereby is, dismissed.
ELI NASH, JR.
Administrative Law Judge
Dated: September 2, 1981
Washington, D.C.
/1/ Section 7116(a)(1), (5) and (8) provides:
Sec. 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;
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
(8) to otherwise fail or refuse to comply with any provision of
this chapter(.)
/2/ Section 7114(b)(4) of the Statute provides:
Sec. 7114. 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(.)
/3/ While this information was furnished after the grievance process
had begun, and at about the same time the charge was filed herein, the
Authority notes, in agreement with the Judge, that the complaint does
not allege a violation based on the Respondent's untimeliness in
furnishing information but rather alleges that the information sought
was not furnished at all. The Authority has determined that the
information given was what was sought.
/4/ Case Nos. 8-CA-757 and 8-CA-821 were severed at the hearing.
/5/ Pipefitters work on three different shifts.
/6/ The agreement, Article XIX, "Employee Grievance Procedure,"
provides at Section 5(h) as follows:
h. When requested on the grievance form or in writing at any
other appropriate time, in the grievance process, the Employer
will permit inspection of pertinent records by either the grievant
or his Council representative. If such records cannot be made
available promptly any discussion, meeting or hearing scheduled to
be held shall be held in abeyance until at least five calendar
days after such records are made available. If such records
cannot be made directly available for inspection because of
applicable security or higher authority regulations, the Employer
will exert every reasonable effort to present such records in a
declassified form.
Article II, "Administration of Agreement," provides, in pertinent
part, in Section 1 as follows:
Within the limits of security regulations, directives, and
considerations governing the protection of classified, official
and sensitive information, every effort shall be made to permit
employees and their representatives to review documents critical
to the resolution of their problems or complaints. When security
regulations and directives prevent such review, originators shall
be requested by the Employer to consider releasing such
information, or declassifying or developing the necessary
information in an unclassified form of review. When permissible
under security regulations and necessary to the resolution of the
matter, grievants and/or their representatives will be furnished
copies of requested pertinent documents . . .
/7/ Based on the above it is unnecessary to decide whether Respondent
timely supplied the requested information to Omiya. Furthermore, the
complaint as suggested by Respondent does not include a broad allegation
which includes a timeliness argument.
7 FLRA No. 13; Case No. O-NG-352; May 11, 1984 (Decision and Order
on Remand).
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2782
DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS,
WASHINGTON, D.C.
Case No. O-NG-352
On March 18, 1983, the United States Court of Appeals for the
District of Columbia Circuit remanded this case to the Authority /1/ for
further consideration of its negotiability determination with respect to
the following proposal:
Section 5. Notwithstanding any other provision of this
article, a repromotion eligible (i.e., an employee demoted through
no fault of his or her own) will be selected for the first
available vacancy for which he or she fully meets the
qualification standards and which the agency determines to fill.
The Authority had held the proposal to be nonnegotiable, finding that
(1) it would require the Agency not only to consider but to select
available qualified repromotion eligible employees when filling
vacancies in the bargaining unit; (2) such a requirement would directly
interfere with management's right under section 7106(a)(2)(C) of the
Federal Service Labor-Management Relations Statute (the Statute) to
choose among candidates from appropriate sources in filling a vacancy,
/2/ and, consequently, (3) the proposal would not establish an
"appropriate arrangement for employees adversely affected" by
management's exercise of its statutory rights, within the meaning of
section 7106(b)(3) of the Statute. /3/ American Federation of
Government Employees, AFL-CIO, Local 2782 and Department of Commerce,
Bureau of the Census, Washington, D.C., 7 FLRA No. 13 (1981).
On appeal, the Court held that "the basis for the Authority's
decision-- the supposed nonnegotiability of any arrangement for
adversely affected employees that contravenes subsection 7106(a)
management rights-- was contrary to law." It therefore set aside the
Authority's decision and remanded the case to the Authority to determine
whether the proposed "appropriate arrangement" would be "inappropriate,"
i.e., nonnegotiable, because it would "impinge upon management
prerogatives to an excessive degree" or whether it is inconsistent with
Government-wide rules or regulations. /4/
Pursuant to the Court's direction, we turn now to the question of
whether the proposal would interfere to an excessive degree with the
reserved rights of management officials under section 7106(a)(2)(C) of
the Statute. As previously stated, the proposal would require selection
of a repromotion eligible employee for the first vacancy for which he or
she "fully meets the qualification standards" and which the Agency
decides to fill. In this regard, based upon the plain language of the
proposal and in the absence of any indication in the record to the
contrary, the Authority concludes that use of the word "fully"
demonstrates that the proposal is not intended to be inconsistent with
the minimum qualification requirements established by the Office of
Personnel Management (OPM) as supplemented by any "selective factors"
added by the Agency involved (i.e., knowledges, skills, or abilities
essential to successful performance in the job to be filled). /5/ Thus,
under this interpretation, the proposal would not interfere with
management's discretion to determine the qualification requirements of
the positions involved or to determine whether the repromotion eligible
candidates under consideration are fully qualified. Further, it would
not require management to fill any vacant positions. Thus, the proposed
arrangement would protect the need of employees whom management has
demoted through no fault of their own by ameliorating the adverse
effects of management's exercise of its prerogatives. At the same time,
however, as stated above, the proposed arrangement would protect the
need of management to determine the qualification requirements of
positions, to decide which vacancies to fill and to fill those only with
fully qualified employees. Accordingly, the Authority concludes that
the proposal would not interfere with management's rights under section
7106(a)(2)(C) to an excessive degree so as to be rendered
"inappropriate" for negotiations under section 7106(b)(3) of the
Statute.
As a result of this conclusion, a question which was not addressed in
the original decision in this case must now be resolved: Whether the
proposal, which under certain circumstances would require management to
select a repromotion eligible to fill a vacancy without being permitted
to consider or select other candidates, is nonnegotiable under section
7117(a)(1) of the Statute /6/ because, as the Agency claims, it is
inconsistent with Government-wide rules and regulations. The Agency
contends that the proposal would conflict with Requirement 4 of
subchapter 1-4, chapter 335 of the Federal Personnel Manual (FPM), which
provides:
Selection procedures will provide for management's right to
select or not select from among a group of best qualified
candidates. They will also provide for management's right to
select from other appropriate sources, such as reemployment
priority lists, reinstatement, transfer, handicapped, or Veterans
Readjustment eligibles or those within reach on an appropriate OPM
certificate. In deciding which source or sources to use, agencies
have an obligation to determine which is most likely to best meet
the agency mission objectives, contribute fresh ideas and new
viewpoints, and meet the agency's affirmative action goals.
In response, the Union contends that the quoted FPM provision
constitutes mere guidance since it does not state a "binding policy."
Accordingly, the Union concludes that it cannot be deemed a rule or
regulation within the meaning of section 7117(a)(1) of the Statute which
would bar negotiations on the proposal. The Union also claims that,
since the FPM provision only applies to competitive service positions
within the executive branch of Government, it is not "Government-wide"
within the meaning of section 7117(a)(1) or, if it is, it would bar
negotiations only insofar as it pertains to those bargaining unit
positions which are within the competitive service.
We find that the proposal is inconsistent with the FPM provision
which would permit selection from any appropriate source. Hence, the
proposal would be nonnegotiable under section 7117(a)(1) if the FPM
provision is a Government-wide rule or regulation.
In the latter regard, in National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, Washington, D.C., 11
FLRA No. 52 (1983), at 3-4, the Authority found that the merit promotion
requirements in subchapter 1-4, chapter 335 of the FPM, constitute
Government-wide rules or regulations for the following reasons:
. . . Section 335.103 of part 335 of title 5, Code of Federal
Regulations, requires each agency to adopt and administer a
"program designed to insure a systematic means of selection for
promotion according to merit. The promotion program shall conform
with the standards and requirements of OPM." The requirements for
agency merit promotion plans, as mentioned above, are set forth in
chapter 335, subchapter 1-4, of the FPM and are applicable to
Federal civilian employees in the competitive service within the
executive branch of the Government. Thus, FPM chapter 335,
subchapter 1-4, is generally applicable to the Federal civilian
work force so as to be "Government-wide" within the meaning of
section 7117(a)(1) of the Statute. See National Treasury
Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748 (1980). (Footnote omitted.)
As to whether the requirements of FPM, chapter 335, subchapter
1-4, constitute a "rule or regulation" within the meaning of
section 7117(a)(1), as stated previously, the Office of Personnel
Management (OPM) is required by regulation to establish standards
and requirements with which agency promotion programs must
conform. See 5 CFR 335.103. The requirements regarding agency
procedures for promoting employees are set forth in subchapter 1-4
of chapter 335 and constitute OOM's determination of the policies
necessary to insure that agency promotion procedures are based on
merit. Thus, the Authority finds that FPM, chapter 335,
subchapter 1-4, regarding merit promotion requirements, is a
Government-wide rule or regulation within the meaning of section
7117(a)(1) of the Statute, and would bar negotiation on a
conflicting union proposal. . . .
Thus, under Internal Revenue Service, New Orleans District,
Requirement 4 herein constitutes a policy of OPM which is binding.
Accordingly, it is a "rule or regulation" which is "Government-wide"
within the meaning of section 7117(a)(1) despite the fact that it
applies only to the filling of competitive service positions within the
executive branch. The Union's contention that the FPM requirement
constitutes only guidance, based upon a March 31, 1980, OPM staff paper
addressed to agency personnel directors entitled "Need for Revision of
the Fitness-for-Duty Examination Procedures," does not lead to a
contrary conclusion. In that paper, it is stated that "OPM has adopted
the policy of placing all mandatory provisions in regulation and
restricting FPM chapters and supplements to guidance and explanatory
material." However, nothing in the record demonstrates in any manner
that the staff statement constitutes an official statement of
administrative intent. In this regard, the FPM itself contains no
reference to such a policy. Rather, OPM states in the Introduction to
the FPM (Inst. 298 February 14, 1983) that the manual is designed as a
source of information regarding general "policies and requirements in
the many program areas of personnel management." Since, based on the
record, some of the positions in the bargaining unit are competitive
service positions, the proposal is outside the duty to bargain under
section 7117(a)(1) of the Statute.
Accordingly, for the foregoing reasons, the Union proposal is found
to be outside the duty to bargain. /7/ Issued, Washington, D.C., May
11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ American Federation of Government Employees, Local 2782 v.
Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983).
/2/ Section 7106(a)(2)(C) provides:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management officials in
any agency--
(2) in accordance with applicable laws--
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source(.)
/3/ Section 7106(b)(3) provides:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/4/ AFGE v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983) (emphasis in
original).
/5/ See National Treasury Employees Union and NTEU Chapters 153, 161
and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983),
notes 2 and 3 and related text.
/6/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/7/ Accordingly, it is unnecessary to consider whether the proposal
is also inconsistent with various other regulations as alleged by the
Agency.
14 FLRA No. 81; Case No. 9-CA-174; May 11, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate
6000. UNFAIR LABOR PRACTICE: PROCEDURE
6581. Six Month Requirement DIGEST NOTES
Where the conduct or events complained of occur within the 6-month
period preceding the filing of a charge and in and of themselves may
constitute unfair labor practices, evidence of events occurring more
than 6-months prior to the filing of the charge may be utilized to
explain the conduct or event occurring within the 6-month period.
Applying this principle, the Authority concluded, contrary to the ALJ,
that a ULP charge was timely filed within the meaning of Sec.
7118(a)(4)(A). Within 6 months of the filing of the charge, the
activity removed a supervisory position from a bargaining unit that
historically included supervisory as well as nonsupervisory employees.
The unit had continued in existence as an appropriate unit under the
provisions of Sec. 15 of Executive Order 10988, Sec. 24 of Executive
Order 11491, as amended, and Sec. 7135(a)(1) of the Statute. The
activity acted on the basis of a memorandum of understanding (MOU)
between the parties that provided for the removal of the position from
the bargaining unit but which the international president of the union
refused to sign more than a year before the filing of the charge.
Subsequent events, the activity alleged, amounted to the union
acquiescing to the provisions of the MOU. The ALJ found that the
unlawful conduct asserted in the charge and the complaint concerned the
continued enforcement of the MOU, which itself was "entirely benign",
i.e., lawful on its face. But the ALJ also held that the allegation
that enforcement of the MOU constituted a ULP could be sustained only by
relying upon the refusal of the union's president to approve the MOU, an
event which occurred more than 6 months prior to filing of the charge.
The Authority held that when the activity asserted the provision of the
MOU as justification for its action, the General Counsel and the union
were not time barred from introducing evidence that preceded the 6-month
period before the filing of the charge. The evidence introduced was
that the MOU never went into effect because the union's international
president refused to approve it as required by the parties' collective
bargaining agreement. Therefore, the activity's removal of the general
foreman position from the bargaining unit, an event that occurred within
6 months of the filing of the charge, in and of itself, violated Sec.
7116(a)(1) and (5).
The union did not acquiesce to the terms of an unsigned memorandum of
understanding (MOU) by delaying notification to the activity that the
union's international president would not sign it. The Authority held
that a period of inaction by the union, in the absence of a time limit
within which approval or disapproval is required, does not support a
finding of acquiescence in, or approval of, the MOU. Nor does the
activity's expectation of approval constitute a substitute for approval
of the MOU by the union's international president. If the activity took
certain actions, and refrained from taking others, in expectation of
approval by the union's international president, it assumed the risk
that such approval would not be forthcoming.
UNITED STATES DEPARTMENT OF THE
INTERIOR, LOWER COLORADO DAMS
PROJECT, WATER AND POWER RESOURCES
SERVICE
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 640,
AFL-CIO-CLC
Case No. 9-CA-174
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. /1/ Exceptions were filed by the
General Counsel and the Charging Party, and Oppositions thereto were
filed by the Respondent.
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, conclusions and recommendation only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by unilaterally removing from the bargaining unit
represented by the Charging Party, International Brotherhood of
Electrical Workers, Local 640, AFL-CIO-CLC (the Union) a position
described as "General Foreman." As stipulated by the parties and found
by the Judge, the Union is the bargaining representative of a unit
described as "(A)ll hourly employees . . . in the trades and crafts of
the (Parker-Davis) Project who are exempt from the Classification Act of
1979, as amended, and who are engaged in operation and maintenance
activities for the Project." Historically, this unit has included
supervisory as well as nonsupervisory employees. This unit continued in
existence as appropriate under the provisions of Section 15 of Executive
Order 10988, and Section 24 of Executive Order 11491, as amended.
Section 7135(a)(1) of the Statute authorizes the renewal or continuation
of such units which came into existence prior to the effective date of
the Statute.
In 1977, as a result of the creation of the Department of Energy,
approximately two-thirds of the unit represented by the Union was
transferred to the new Department, and the Parker-Davis Project became
part of the Lower Colorado Dam Project in the ensuing reorganization.
After the reorganization, the Respondent agreed with the Union to
attempt coordinated bargaining involving the Respondent, the Union and
the American Federation of Government Employees, AFL-CIO, which
exclusively represents a separate unit of Respondent's employees.
Thereafter, the Union agreed to enter into a Memorandum of Understanding
(MOU) with the Respondent identifying four specific General Foreman
positions as the only ones having supervisory duties and removing such
positions from the bargaining unit as they became vacant. On March 17,
1978, the Union signed the MOU, which purported to amend the unit
description appearing in the parties' 1977 collective bargaining
agreement, and on April 3 the MOU was explained to a Headquarters
representative of the International Brotherhood of Electrical Workers,
AFL-CIO (IBEW) for later submission to the International President for
his approval, in accordance with the terms of the parties' 1977
agreement. By letter dated August 21, 1978, the International President
of the IBEW advised the Respondent that he would not approve the MOU.
By letter dated August 25, 1978, the Office of the Secretary of the
Interior advised the IBEW that the MOU had become operative by virtue of
the provisions of Section 15 of Executive Order 11491, as amended. On
August 27, the Respondent implemented the provisions of the MOU by
filling a vacant General Foreman position and removing the new incumbent
of that position from the bargaining unit. Neither the Union nor the
IBEW protested, and no unfair labor practice charge was filed concerning
the Respondent's action. In July 1979, IBEW learned that the Respondent
intended to fill another General Foreman vacancy and remove the position
from the bargaining unit. Although IBEW informed the Respondent that it
considered the MOU to have no validity and that the Respondent had no
right to remove any position from the bargaining unit, Respondent
reasserted the validity of the MOU on August 14, 1979, and advertised
the availability of the General Foreman position on August 29, 1979. On
September 28, 1979, the instant charge was filed. On October 21, 1979,
the vacant position was filled and removed from the bargaining unit.
The Administrative Law Judge issued his Decision recommending that
the complaint be dismissed on two grounds. The Judge found that (1) the
charge upon which the complaint is based was untimely filed under the
provisions of section 7118(a)(4)(A) of the Statute, and (2) the Union's
acceptance of underlying considerations leading to the MOU and the long
period of inaction by the IBEW after the MOU was signed constituted
acquiescence in or approval thereof. With regard to his finding of
untimeliness, the Judge relied upon the Supreme Court's decision in
Local Lodge No. 1424, International Association of Machinists, AFL-CIO
v. National Labor Relations Board, (Bryan Manufacturing Company), 362
U.S. 822 (1960). More specifically, he found that the unlawful conduct
asserted in the charge and the complaint concerned the continued
enforcement of the MOU, which itself was "entirely benign," i.e., lawful
on its face, and that the allegation that enforcement of this agreement
constituted an unfair labor practice could be sustained only by relying
upon the refusal of IBEW's International President to approve the MOU,
an event which occurred in August 1978, more than 6-months prior to the
filing of the charge. Concluding that the Supreme Court in Bryan had
declared such reliance upon events outside the 6-month limitations
period to convert what is otherwise legal into something illegal to be
inconsistent with the policies underlying that statutory provision, the
Judge dismissed the complaint as untimely. With regard to his second
ground for dismissing the complaint, the Judge found that the signing of
the MOU resulted from the Respondent's agreement not to file an RA
petition questioning the continued appropriateness of the unit
represented by the Union, and to promote joint negotiations with the
Union and the AFGE. The Judge reasoned that acceptance of the
Respondent's activities in this regard over a long period of time
constituted, in effect, IBEW's acquiescence in or approval of the MOU.
The Authority disagrees with both findings.
Section 7118(a)(4) of the Statute provides:
Sec. 7118. Prevention of unfair labor practices
(a)(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period, the General
Counsel may issue a complaint based on the charge if the charge
was filed during the 6-month period beginning on the day of the
discovery by the person of the unfair labor practice.
A literal reading of this language clearly establishes that, except
for the circumstances specified in section 7118(a)(4)(B) of the Statute,
conduct or events occurring more than 6 months before the filing of an
unfair labor practice charge cannot serve as the basis for a complaint.
Thus, 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 or labor organization 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. /2/ This limiting provision has the
effect of preventing the litigation of stale charges, wherein the
recollection of witness may be clouded, the availability of witnesses is
diminished, and the loss of documentary evidence is increased. To allow
the processing of complaints which rely, as the basis for the allegation
of violation, on events or conduct which occurred more than 6 months
prior to the filing of the charge upon which the complaint is based
would be contrary to express statutory language. However, in the
opinion of the Authority, where the conduct or events complained of
occur within the 6-month period preceding the filing of the charge and
in and of themselves may constitute unfair labor practices, evidence of
events occurring more than 6 months prior to the filing of the charge
may be utilized to explain the conduct or events occurring within the
6-month period. /3/
Applying the foregoing principles herein, the Authority concludes,
contrary to the Judge, that the unfair labor practice charge was timely
within the meaning of section 7118(a)(4)(A) of the Statute. Thus, as
discussed below, the action of the Respondent in removing a position
from the bargaining unit in and of itself may be the basis for an
alleged unfair labor practice. The unfair labor practice charge was
filed within 6 months of such conduct and therefore was timely.
Accordingly, when Respondent asserted the provisions of the MOU as
justification for its action in removing a position from the bargaining
unit, the General Counsel and the Union were not time barred from
introducing evidence that the MOU never went into effect because IBEW's
International President refused to approve it as required by the
parties' collective bargaining agreement. That is, the General Counsel
was not relying upon the MOU or evidence concerning the MOU as an
affirmative element in establishing the unfair labor practice, but was
merely rebutting an affirmative defense raised by the Respondent.
With regard to the alternative finding that the Union acquiesced in,
or approved of, the MOU, the Authority also disagrees with the Judge.
Whatever may have been the underlying motives of the parties in
attempting to amend or supplement the unit description in their
negotiated agreement, it is clear from the Judge's findings of fact that
both parties were aware that any such amendment or supplement had to be
approved, inter alia, by IBEW's International President to be effective.
If the Respondent took certain actions, and refrained from taking
others, in the expectation of approval by IBEW's International
President, it assumed the risk that such approval would not be
forthcoming. The Respondent's expectation of subsequent approval cannot
itself constitute a substitute for approval of the MOU by the
International President. Nor does the period of inaction by IBEW, in
the absence of a time limit within which approval or disapproval was
required, support a finding of acquiescence in, or approval of, the MOU.
In any event the Respondent had specific notice as of August 21, 1978,
that the International President would not approve the MOU, and such
disapproval was consistently maintained thereafter.
Therefore, the Respondent acted unilaterally when it removed the
position of General Foreman from the Union's exclusively recognized
bargaining unit. The Authority has held that an agency's unilateral
withdrawal of a labor organization's exclusive recognition for a
bargaining unit constituted a violation of section 7116(a)(1) and (5) of
the Statute. See Defense Logistics Agency, 5 FLRA No. 21 (1981). See
also Interpretation and Guidance, 4 FLRA 754 (1980), wherein the
Authority held that an agency acts at its peril in removing an employee
from a bargaining unit based upon a determination that the employee is a
supervisor or management official for merit pay purposes. Accordingly,
the Authority concludes that by its action on August 14, 1979 in
removing from the bargaining unit the vacant position of General Foreman
(Electrical), the Respondent violated section 7116(a)(1) and (5) of the
Statute.
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 United States Department of the Interior, Lower Colorado Dams
Project, Water and Power Resources Service, shall:
1. Cease and desist from:
(a) Implementing the provisions of the Memorandum of Understanding
dated March 17, 1978, in the absence of the requisite approval by the
International President of the International Brotherhood of Electrical
Workers, AFL-CIO.
(b) Refusing to accord recognition to the International Brotherhood
of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
representative of its employees, with regard to a position described as
General Foreman (Electrical).
(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) Continue to recognize the International Brotherhood of Electrical
Workers, Local 640, AFL-CIO-CLC as the exclusive representative of its
employees for the unit described in the collective bargaining agreement
dated July 1977, including the position of General Foreman (Electrical),
unless and until modified in a manner consistent with the Statute.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by an appropriate official and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT implement the provisions of the Memorandum of
Understanding dated March 17, 1978, in the absence of the requisite
approval by the International President of the International Brotherhood
of Electrical Workers, AFL-CIO.
WE WILL NOT refuse to accord recognition to the International
Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
representative of our employees, with regard to a position described as
General Foreman (Electrical).
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 continue to recognize the International Brotherhood of
Electrical Workers, Local 640, AFL-CIO-CLC, as the exclusive
representative of our employees for the unit described in the collective
bargaining agreement dated July 1977, including the position of General
Foreman (Electrical), unless and until modified in a manner consistent
with the Statute.
(Agency)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, CA. 94108 and whose
telephone number is: (415) 556-8105.
Case No.: 9-CA-174
Hugh D. Jascourt, Esq.
Michael C. Nash, Esq.
Bea Chester, Esq.
For the Respondent
Thomas Angelo, Esq.
For the General Counsel
Mr. James A. Doran
Elihu I. Leifer, Esq.
For the Charging Party
Before: LOUIS SCALZO
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. 7101, et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The case was initially transferred to the Authority by the parties on
a stipulated record under the provisions of 5 C.F.R. 2429.1. However,
by order dated June 11, 1982, the Authority returned the case to the
Office of Administrative Law Judges for decision. The Authority's order
noted that a stipulation of facts prepared by the parties had been
agreed to by the parties "at the hearing," and that 5 C.F.R. 2423.26(a)
required the issuance of an administrative law judge decision in such
cases.
The complaint alleges that since on or about August 14, 1979, and
continuing to April 30, 1980, the date of issuance of the complaint, the
United States Department of the Interior, Lower Colorado Dams Project,
Bureau of Reclamation, (Respondent), /4/ failed or refused, and is
continuing to fail or refuse, to bargain in good faith with the
International Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC,
(Charging Party or Union) /5/ in violation of Sections 7116(a)(1) and
(5) of the Statute. The unfair labor practices outlined were predicated
on a letter dated August 14, 1979, addressed to Mr. James A. Doran, an
International Representative of the IBEW, by Mr. V. B. Wilkinson,
Project Manager, Lower Colorado Dams Project, for the purpose of
notifying the Charging Party that the Respondent was removing from the
unit of recognition, a Foreman position at the Davis Dam,
notwithstanding the fact that the Charging Party expressed opposition to
a change in the structure of the bargaining unit. /6/
Counsel representing the Respondent argues that the charge filed
herein was not filed within the 6-month period following the occurrence
of the unfair labor practice alleged, and that it was time barred by the
provisions of Section 7118(a)(4) of the Statute. It is also argued that
the IBEW waived any right to interpose objections to the action taken by
the Respondent.
Based upon the entire record herein, including the stipulations of
fact, the exhibits, /7/ and the briefs filed by the parties, I make the
following findings of fact, conclusions and recommendation.
The following stipulations of fact entered into the record are
accepted as true:
1. Since at least 1951 the unit of recognition involved herein was
contractually created by the Bureau of Reclamation, Department of the
Interior, and the IBEW, and included supervisory employees (Stip. 2, Tr.
5). /8/
2. This unit of recognition was "grandfathered" under the provisions
of Section 15 of Executive Order 10988, and Section 24 of Executive
Order 11491 (Stip. 2, Tr. 5).
3. The unit of recognition is described as follows in the preamble
of a 1977 collective bargaining agreement executed by the Bureau of
Reclamation, Department of the Interior and the IBEW:
(A)ll hourly employees . . . in the trades and crafts of the
(Parker-Davis) Project, /9/ who are exempt from the Classification
Act of 1979, as amended, and who are engaged in operation and
maintenance activities for the Project (Stip. 2, Tr. 5; Exh.
2(h)).
4. The collective bargaining agreement requires that any amendments
or renewals be approved by the IBEW (Stip. 3, Tr. 6).
5. Since 1976, the Parker-Davis Project has proposed to Local 640
officials various plans to remove supervisory employees from the
bargaining unit (Stip. 4A, Tr. 6).
6. In October of 1977, Public Law 95-91 created a Department of
Energy which resulted in the transfer to the Department of Energy, from
the Department of the Interior, about 66 percent of the employees in the
bargaining unit represented by Local 640 at the Parker-Davis Project
(Stip. 4B, Tr. 6).
7. As a result of the transfer, bargaining unit employees remaining
at the Parker-Davis Project were merged by the Bureau of Reclamation
into the "Boulder Canyon Project," and the latter was renamed /7/ "The
Lower Colorado Dams Project Office" (Stip. 4B, Tr. 6).
8. As a result of the reorganization, the Bureau of Reclamation of
the Department of the Interior proposed the filing of an RA petition to
create a single bargaining unit since the American Federation of
Government Employees represented a larger work force of employees at the
Boulder Canyon Project (Stip. 4B, Tr. 6-7).
9. Faced with the possibility of losing a representation election,
Local 640 opposed the filing of an RA petition and expressed a desire
for coordinated bargaining with the two mentioned existing bargaining
units (Stip. 4B, Tr. 7).
10. On February 6, 1978, representatives of the Respondent met with
representatives of Local 640 (Stip. 4C, Tr. 7).
11. The eventual result of the February 6, 1978 meeting was that
management acceded to the proposed coordinated bargaining approach and
Local 640 agreed on March 17, 1978, to enter into a Memorandum of
Understanding which would remove four specified foreman positions from
the bargaining unit through attrition as the incumbents left these
positions (Stip. 4C, Tr. 7; Exhs. 2(c), 3(a)).
12. Since formulation of the Memorandum of Understanding outlined,
management has refrained from filing an RA petition although the
coordinated bargaining effort met with a lack of success and was
terminated by mutual agreement of the parties (Stip. 4C, Tr. 7). /11/
13. The Memorandum of Understanding was typed by Local 640, and the
date "March 17, 1978," typed at the bottom of the document, represents
the date on which Mr. Glynn Ross, /12/ Local 640's Business Agent signed
the Memorandum of Understanding on behalf of Local 640. Representatives
of the Lower Colorado Dams Project did not sign the document at that
time (Stip. 4D, Tr. 7, Exh. 2(b)).
14. The Memorandum of Understanding provided that only employees
designated as "General Foreman" will have supervisory responsibility,
that other "Foremen" will not have supervisory responsibility, and that
the description of the unit of recognition as being inclusive of "all
hourly employees," would not be construed as including those classified
as "General Foremen" (Exh. 2(b)).
15. Employees holding the position designated as "General Foremen,"
and any other position referred to in the Memorandum of Understanding,
are, or were supervisors within the meaning of Section 2(c) of Executive
Order 11491, and Section 7103(a)(10) of the Statute (Stip. 1, Tr. 5).
16. At the time the Memorandum of Understanding was agreed to, the
unit of recognition described in the collective bargaining agreement
(Paragraph 3 above) was in existence (Stip. 2, Tr. 5).
17. The effect of the Memorandum of Understanding was designed to
remove supervisory employees from the unit of recognition described in
the 1977 collective bargaining agreement (Stip. 2, Tr. 5).
18. The Memorandum of Understanding was treated as an amendment to
the collective bargaining agreement by responsible management officials
of the Department of the Interior (Stip. 3, Tr. 6).
19. On April 3, 1978, Mr. Michael C. Nash, Labor Relations Officer,
Bureau of Reclamation, met with Mr. Gil Bateman and Mr. Robert Crum,
representatives of IBEW's International Headquarters, supplied them with
copies of the Memorandum of Understanding reached by Local 640, and the
Bureau of Reclamation, explained the document, discussed it, and
requested expedited processing of it by the IBEW (Stip. 4E, Tr. 7).
20. Mr. Nash urged that the IBEW approve the Memorandum of
Understanding before submission of the document to the Department of
Interior for approval under the provisions of Section 15 of Executive
Order 11491 (Stip. 4E, Tr. 8).
21. Mr. Nash twice contacted Mr. Crum, but was not able to obtain an
indication of IBEW's position concerning the Memorandum of Understanding
(Stip. 4F, Tr. 8).
22. The first vacancy affected by the Memorandum of Understanding
occurred on April 21, 1978, and Mr. Daniel B. Jensen, Labor Relations
Officer for the Lower Colorado Region, Bureau of Reclamation, repeatedly
stressed to Mr. Nash, the need to fill the vacancy; and to execute the
implement the Memorandum of Understanding (Stip. 4G, Tr. 8).
23. On May 15, 1978, Mr. Nash informed Mr. Daniel B. Jensen, that it
would be unreasonable to have to wait a further period of time for IBEW
to approve the Memorandum of Understanding, and that Local Bureau of
Reclamation management had the authority to sign the document and
forward it for Agency approval in accordance with Section 15 of
Executive Order 11491 (Stip. 4G, Tr. 8).
24. On May 15, 1978, Mr. Jensen signed the Memorandum of
Understanding on behalf of the Lower Colorado Dams Project Office, and
on this same date forwarded the Memorandum of Understanding for approval
by the Bureau of Reclamation, Department of the Interior (Stip. 4G, Tr.
8).
25. By letter dated june 7, 1978, Mr. B. H. Spillers, chief,
Division of Personnel and Management, Bureau of Reclamation, transmitted
to IBEW, copies of the Memorandum of Understanding reached at the Local
level, noted that the Bureau of Reclamation "strongly endorsed" the
document, and urged that the IBEW International President approve the
Memorandum of Understanding (Stip. 5, Tr. 8, Exh. 2(c)).
26. In Mr. Spillers' June 7, 1978, letter, it was noted that upon
approval by IBEW, Mr. Spillers' office would obtain the approval of the
Memorandum of Understanding by the Office of the Secretary, Department
of the Interior, and would send a finalized copy of the Memorandum of
Understanding to IBEW (Exh. 2(c)).
27. Mr. Spillers' June 7, 1978, letter reflected the following
statement of position by the Bureau of Reclamation relative to the
effect of the Memorandum of Understanding:
The exclusion of these supervisors will be accomplished through
a process of attrition. That is, as supervisory positions become
vacant and are subsequently refilled, they will be excluded from
the bargaining unit. There are currently four such positions at
the two Dams, one of which is vacant.
This negotiated agreement represents the best efforts of the
local parties to accommodate the interests of each other . . .,
thus obviating the need for submitting this matter to the
Assistant Secretary for Labor-Management Relations.
On a related matter, representatives of Local 640 and American
Federation of Government Employees Local Union 1978, the
recognized representative of hourly employees at Hoover Dam, are
currently meeting with management representatives in an
encouraging attempt to implement coordinated bargaining for all
hourly employees at the Lower Colorado Dams Project. If
coordinated bargaining is successful, it should eliminate the need
for the Bureau (of Reclamation) to file a representation petition
with the Department of Labor (Exh. 2(c)).
28. Following transmission of Mr. Spillers' June 7, 1978 letter to
the ibew, Mr. Jensen, acting as labor relations officer, for the lower
Colorado Region, contacted Mr. Nash, Labor Relations Officer for the
Bureau of Reclamation, at least once a week for an undetermined period
to relate problems encountered in holding open the April 21, 1978
vacancy affected by the terms of the Memorandum of Understanding, and to
inquire when Mr. Jensen could act to fill the vacancy in accordance with
the Memorandum of Understanding (Stip. 6, Tr. 8-9).
29. By letter dated August 21, 1978, Mr. Charles H. Pillard,
International President of the IBEW advised Mr. Spillers that he would
not approve the Memorandum of Understanding (Exh. 2(c)). /13/
30. By internal memorandum dated August 21, 1978, Mr. Spillers,
informed Mr. John F. McKune, Director of Personnel, Office of the
Secretary of Interior, of the circumstances surrounding his June 7, 1978
transmission of the Memorandum of Understanding to the IBEW
International President for approval, and noted the fact that copies of
the correspondence had then been submitted to McKune. Mr. Spillers
requested that Mr. McKune's office approve the Memorandum of
Understanding because, "(a)s a practical matter it can, and if necessary
should be argued, that your approval is merely ministerial at this time
as Section 15 (of Executive Order 11491) requirements have already
triggered (Agency) approval" (Exh. 3(b)). /14/
31. By letter dated August 25, 1978 Mr. John F. McKune, on behalf of
the Office of the Secretary, Department of the Interior, advised Mr.
Pillard that the Memorandum of Understanding had become operative by
virtue of the provisions of Section 15 of Executive Order 11491. The
Department's position was stated as follows:
It is the intent of the local parties to remove supervisory
positions from representation by Local Union 640 through the
reasonable process of attrition. That is, as such positions
became vacant, as one currently is, the new incumbent will no
longer be in the bargaining unit. Over a period of time, all such
positions and incumbents will be excluded from representation by
the local union (Stip. 6, Tr. 9, Exh. 2(e)).
32. On August 25, 1978, Mr. Nash first became aware of Mr. Pillard's
August 21, 1978 disapproval of the Memorandum of Understanding, and
after inquiring as to whether the Office of the Secretary had
transmitted a reply to the IBEW, he was informed that Mr. McKune's
August 25, 1978 letter to Mr. Pillard had been sent (Stip. 6, Tr. 9).
33. On August 25, 1978 Mr. Nash informed Mr. Jensen that the Office
of the Secretary had approved the Memorandum of Understanding, and that
it was permissible for Mr. Jensen to implement the Memorandum of
Understanding at the Local level (Stip. 7, Tr. 9).
34. On August 27, 1978, Local management in the Lower Colorado
Region promoted Mr. Armund J. Oswood, Jr., to the position of General
Foreman (Electrical) at the Parker Dam Field Division, and removed him
from the bargaining unit under authority reflected in the Memorandum of
Understanding (Stip. 7, Tr. 9-10; Exh. 3(c)).
35. On July 18, 1979, Mr. James A. Doran, International
Representative of the IBEW, learned of Mr. Jensen's plans to remove a
vacant Davis Dam Field Division General Foreman (Electrical) position
from the bargaining unit on authority reflected in the Memorandum of
Understanding reached early in 1978 by the Bureau of Reclamation and
Local 640 (Exhs. 2(f), and 2(i)).
36. By letter dated July 31, 1979, Mr. Doran advised Mr. Jensen that
the Memorandum of Understanding had no validity as it had never been
approved by IBEW International President Pillard, and that Mr. Jensen
had no right to remove the vacant Davis Dam Field Division supervisory
position from the bargaining unit (Exh. 2(f)).
37. On August 14, 1979, Mr. V. B. Wilkinson, Project Manager, Lower
Colorado Dams Project, reaffirmed the validity of the Memorandum of
Understanding, and stated that it had become binding on the parties
prior to Mr. Pillard's August 21, 1978 disapproval. He stated:
The Lower Colorado Dams Project intends to issue a vacancy
announcement for the position of General Foreman, Electrician at
Davis Dam. This position is excluded from the bargaining unit,
consistent with our negotiated Memorandum of Understanding with
Local 640 (Exh. 2(g)).
38. On August 29, 1979 a Vacancy Notice was issued to advertise the
position of General Foreman (Electrical) at the Davis Dam (Exh. 2(i)).
39. On October 21, 1979, Mr. William A. Morris was promoted to the
vacant General Foreman (Electrical) position, and the position was
removed from the bargaining unit (Exh. 2(j)).
40. On September 28, 1979, a charge was filed alleging the following
facts as constituting unfair labor practices: /15/
(a) On August 14, 1979, Mr. V. B. Wilkinson, Project Manager,
Lower Colorado Dams Project, informed the Charging Party that he
was posting a vacancy for the position of General Foreman,
Electrician, at Davis Dam.
(b) Mr. Wilkinson cited the Memorandum of Understanding.
(c) Since any changes to the collective bargaining agreement
between the parties must be approved by both the President of the
IBEW and the Office of the Secretary of the Interior, and the
President of the IBEW has expressly withheld his approval of the
Memorandum of Understanding, there is no valid authority for
Project Manager Wilkinson's unilateral action.
(d) Representation of certain levels of supervisory employees
is a valuable "grandfathered right" of the IBEW in certain Bureau
of Reclamation Agreements and can only be terminated by mutual
agreement.
Counsel representing the Respondent argues that the provisions of
Section 7118(a)(4)(A) of the Statute require that the complaint be
dismissed because the alleged unfair labor practice occurred in August
of 1978, or more than six months before the filing of the charge on
September 28, 1979. Counsel representing the General Counsel and the
Charging Party disagree. They contend that the charge alleges facts
relating to the Respondent's continued enforcement of an illegal
agreement (The Memorandum of Understanding); that this pattern of
conduct commenced as early as August 25, 1978, when the Office of the
Secretary advised that the Memorandum of Understanding had become
operative; that this conduct continued thereafter to the date of
issuance of the complaint; and that the charge was timely because it
was filed within six months of August 14, 1979, the last action of the
Respondent in its continuing enforcement of the Memorandum of
Understanding. Accordingly, they rely upon Mr. V. B. Wilkinson's August
14, 1979, notice to the Union that the Respondent "intends to issue a
vacancy announcement for the position of General Foreman, Electrician at
Davis-Dam" (Exhs. 1(a), 1(c), 1(g) and 2(g)).
Section 7118(a)(4)(A) of the Statute provides:
(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority. /16/
It is clear from the charge filed on September 28, 1979, that the
unfair labor practice set forth in the charge, and thereafter restated
in the complaint, depends upon the establishment of a pattern of alleged
unlawful conduct which occurred in August of 1978; that is, on conduct
which occurred more than six months before the filing of the charge.
For example, the basis of the charge depends upon a showing that there
was "no valid authority for Project Manager Wilkinson's (August 14,
1979) action." It depends upon a showing that Mr. Pillard expressly
withheld his approval of the Memorandum of Understanding by letter dated
August 21, 1978; and upon proof that the Union's representation of
supervisory employees under the 1977 collective bargaining agreement was
not affected by the Memorandum of Understanding relied upon by the
Respondent. Without proof in the areas outlined, separate proof of Mr.
Wilkinson's August 14, 1979 notice (relied upon herein to avoid the
restrictive provisions of Section 7118(a)(4)(A) would be innocuous.
That is, the mere issuance of the notice would not represent the
continuance of an unfair labor practice. Here, there is a complete
dependence upon events occurring outside the 6-month period to bring Mr.
Wilkinson's August 14, 1979 notice into the ambit of the 6-month
limitation.
In the private sector, Section 10(b) of the National Labor Relations
Act, 29 U.S.C. 160(b), provides a similar 6-month statute of
limitations. For purposes of decision in this case, Section 10(b) is
nearly identical to the provisions of Section 7118(a)(4)(A). In Local
Lodge 1424 v. N.L.R.B., 362 U.S. 822 (1960), a case construing Section
10(b), /17/ the United States Supreme Court supplied the following
language to guide in determining whether evidence of events occurring
more than six months before the filing of an unfair labor practice
charge may be used to establish an unfair labor practice:
It is doubtless true that Sec. 10(b) does not prevent all use
of evidence relating to events transpiring more than six months
before the filing and service of an unfair labor practice charge.
However, in applying rules of evidence as to the admissibility of
past events, due regard for the purposes of Sec. 10(b) requires
that two different kinds of situations be distinguished. The
first is one where occurrences within the six-month limitations
period in and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events may be
utilized to shed light on the true character of matters occurring
within the limitations period; and for that purpose Sec. 10(b)
ordinarily does not bar such evidentiary use of anterior events.
The second situation is that where conduct occurring within the
limitations period can be charged to be an unfair labor practice
only through reliance on an earlier unfair labor practice. There
the use of the earlier unfair labor practice is not merely
'evidentiary,' since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with
illegality that which was otherwise lawful. And where a complaint
based upon that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice.
This case falls within the purview of the second factual illustration
described by the Court. /18/ Here the unlawful conduct condemned in the
charge and the complaint concerns the continued enforcement of the
Memorandum of Understanding, as evidenced by Mr. Wilkinson's August 14,
1979 letter to the Union. However, the Memorandum of Understanding is
entirely benign. It would not be possible to cloak this agreement with
illegality without first making reference to events occurring prior to
the 6-month period, that is events occurring in August of 1978. This
precise factual picture was referred to by the Supreme Court in Local
Lodge 1424 in the following terms:
Where, as here, a collective bargaining agreement and its
enforcement are both perfectly lawful on the face of things and an
unfair labor practice cannot be made out except by reliance on the
fact of the agreement's original unlawful execution, an event
which, because of limitations, cannot itself be made the subject
of an unfair labor practice complaint, we think that permitting
resort to the principle that Sec. 10(b) is not a rule of evidence,
in order to convert what is otherwise legal into something
illegal, would vitiate the policies underlying that section.
These policies are to bar litigation over past events 'after
records have been destroyed, witnesses have gone elsewhere, and
recollections of the events in question have become dim and
confused,' H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of
course to stabilize existing bargaining relationships.
In any real sense, then, the complaints in this case are 'based
upon' the unlawful execution of the agreement, for its
enforcement, though continuing, is a continuing violation solely
by reason of circumstances existing only at the date of execution
. . .. Put another way, if the sec. 10(B) proviso is to be given
effect, the enforcement, as distinguished from the execution, of
such an agreement as this constitutes a suable unfair labor
practice only for six months following the making of the
agreement. (Footnotes omitted).
Counsel representing the General Counsel cites Internal Revenue
Service and IRS Richmond District Office, 3 FLRA No. 3 (1980), 3 FLRA
18, as precedent for a finding that the charge herein was filed in a
timely manner. However, that case involved alleged violations of
Executive Order 11491 Sections 19(a)(1), (2) and (6) based upon the
monitoring of a union steward's telephone calls. Administrative Law
Judge Garvin Lee Oliver rejected a contention that the telephone
monitoring commenced more than six months before the filing of the
charge. However, his finding reflects that the copying of messages
(acts constituting unfair labor practices), occurred within the 6-month
period of limitations. Further, it was clear from the decision that
proof of the unfair labor practices alleged would not have depended upon
proof of events occurring prior to the commencement of the period of
limitations. Because of these circumstances the charge underlying the
complaint was deemed to have been filed in a timely manner. /19/
An analysis of the record in this case reflects a second basis for
dismissal of the complaint. As noted the complaint essentially involves
a dispute as to the legal effect to be accorded the Memorandum of
Understanding. That is, it is the implementation of the provisions of
the Memorandum of Understanding by the Respondent which gives rise to
the alleged unfair labor practice. It is not possible to determine
issues relating to this implementation without interpreting and applying
the provisions of the collective bargaining agreement.
The parties did stipulate that the collective bargaining agreement
required any amendments or renewals to be approved by the IBEW, /20/
that the Memorandum of Understanding was considered to be an amendment
of the agreement because it provided for the removal of supervisory
employees from the bargaining unit described in the agreement, and that
by letter dated August 21, 1978 the IBEW International President refused
to approve the Memorandum of Understanding. However, these stipulations
do not resolve key questions concerning whether or not the Memorandum of
Understanding was a binding amendment of the collective bargaining
agreement under the terms of that agreement.
A persuasive argument may be interposed in opposition to the
contention that the IBEW did not approve the Memorandum of
Understanding. The Memorandum of Understanding stemmed in part from the
Respondent's agreement not to file an RA petition, and Respondent's
actual forbearance in this regard. The parties stipulated that since
March 16, 1978, the Respondent has refrained from filing an RA petition.
It also appeared that the Respondent engaged in coordinated bargaining
with the Union, and the American Federation of Government Employees as a
result of the Union's agreeing to the terms of the Memorandum of
Understanding. Such coordinated bargaining was apparently allowed to
continue with IBEW's knowledge.
The IBEW became fully aware of the reliance being placed upon the
consideration underlying the Memorandum of Understanding on or about
June 7, 1978, when Mr. Spillers transmitted to the IBEW, copies of the
Memorandum of Understanding and explained how it had evolved at the
Local level. A period of approximately 75 days elapsed before the IBEW
apprised the Respondent of its disapproval. /21/ It may be argued that
acceptance of benefits from the Respondent's agreement not to file an RA
petition; Respondent's participation in coordinated bargaining at the
Local level; and the long period of inaction of the IBEW under the
circumstances outlined, constituted acquiescence on the part of the IBEW
with respect to the provisions of the Memorandum of Understanding, or
approval of the Memorandum of Understanding by the IBEW within the
meaning of the collective bargaining agreement.
It is well settled that alleged unfair labor practices which involve
differing and arguable interpretations of a negotiated agreement, as
distinguished from alleged actions which constitute clear and patent
breaches of a negotiated agreement, are not deemed to be violative of
the Statute. In such cases the aggrieved party's remedy lies within the
grievance and arbitration procedures in the negotiated agreement rather
than through unfair labor practice procedures. Iowa National Guard and
National Guard Bureau, 8 FLRA No. 101 (1982), 8 FLRA 504; Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
No. 71 (1982), 8 FLRA 309; U.S. Patent and Trademark Office, 3 FLRA No.
123 (1980), 3 FLRA 823; Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma, 3 FLRA No. 82 (1980), 3 FLRA 11; Department of
the Navy, Naval Weapons Station, Concord, California, 1 FLRA No. 13
(1979), 1 FLRA 132.
Here supervisors were included within the unit of recognition solely
by reason of collective bargaining agreements dating back to at least
1951. /22/ The gravamen of the complaint lies in the contention that
the Respondent breached those portions of the collective bargaining
agreement which included these supervisory employees within the unit of
recognition. The record does not reflect that the Respondent's conduct
constituted a clear and patent breach of these portions of the
agreement. On the contrary, it is at least arguable, despite the IBEW's
refusal to sign the Memorandum of Understanding, that the 1977
collective bargaining agreement was effectively amended by the
Memorandum of Understanding in accordance with procedures reasonably
contemplated by the parties.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-174, be, and
it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: August 12, 1982
Washington, D.C.
/1/ This case was initially transferred directly to the Authority
pursuant to section 2429.1 of the Authority's Rules and Regulations. On
June 11, 1982, the Authority remanded the case to the Judge for a
Decision, pursuant to section 2423.26(a) of the Authority's Rules and
Regulations.
/2/ In this regard, 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.
H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53 (1978),
reprinted in Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978, at
698-699 (1979).
/3/ To the same effect in the private sector under section 10(b) of
the National Labor Relations Act, see Local Lodge No. 1424,
International Association of Machinists AFL-CIO v. National Labor
Relations Board, 362 U.S. 822 (1960).
/4/ The Water and Power Resources Service was formerly known as the
Bureau of Reclamation, and was identified as such in the complaint.
However, the parties appropriately identified the Bureau of Reclamation
as the Water and Power Resources Service in briefs submitted to the
Authority. The complaint is deemed to have been amended in this regard.
/5/ The International Brotherhood of Electrical Workers has been
referred to herein as the "IBEW" when reference is being made to the
International Union, and the designation "Local 640" has been utilized
to designate Local 640, as separate and distinct from the IBEW.
/6/ If otherwise unjustified, such conduct would constitute a refusal
to accord recognition to a labor organization lawfully selected to
represent bargaining unit employees. A refusal to accord recognition,
if established by a preponderance of the evidence, would be an unfair
labor practice within the meaning of Sections 7116(a)(1), and (5) of the
Statute. Defense Logistics Agency, 5 FLRA No. 21 (1981).
/7/ A transcript of stipulations reached by the parties in this case
refers to General Counsel Exhibits 1(a) through 1(h), Joint Exhibits 1
through 10, and Respondent Exhibits 1 through 3. These were renumbered
with a single sequence of numbers and letters when the Regional Director
submitted the stipulated record to the Authority under the provisions of
5 C.F.R. 2429.1. The following table reflects the change made: (TABLE
OMITTED)
/8/ References are to enumerated stipulations reflected in the
transcript included as part of the record.
/9/ The Project, identified as the Parker-Davis Project in the
agreement, later became a part of the Bureau of Reclamation's Lower
Colorado Dams Project.
/10/ At Tr. 6:19 the transcript mistakenly reflects the word
"remained," rather than "renamed."
/11/ Counsel for the General Counsel noted that the transcript record
of stipulations mistakenly refers to "a lot of success," rather that "a
lack of success" (G.C. Brief at 2, footnote 2). Respondent's counsel
also noted the error (R. Brief at footnote 2).
/12/ The Index and Description of Exhibits mistakenly refers to a
"Mr. Roth" as signing on behalf of Local 640.
/13/ Mr. Pillard's disapproval was based in part on the fact that
issues involving Local 640's representation of supervisory employees
were posed in Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, Case No. 72-7371 (RO). This
representation case was then pending before the Assistant Secretary for
Labor Management Relations under Executive Order 11491. The National
Federation of Federal Employees, Local 1487 (NFFE) sought an election in
a unit of all Wage Board employees in the trades and crafts employed by
the Yuma Projects Office, excluding supervisors as defined in Executive
Order 11491. On November 22, 1978, the Assistant Secretary found the
proposed unit appropriate, but recognized Local 640's right to represent
certain supervisory employees and non-supervisory employees at the Yuma
Projects Office, as the IBEW unit had historically by agreement included
supervisory employees.
In allowing supervisory employees to be a part of the bargaining unit
despite the provisions of Section 2(c) of Executive Order 11491, the
Assistant Secretary relied upon an August 9, 1978 Interpretation of the
Federal Labor Relations Council (FLRC No. 78P-2, 6 FLRC 1315), which
held that Section 24(1) of Executive Order 11491 maintains the validity
of otherwise lawful provisions in an agreement entered into before the
effective date of Executive Order 10988 (January 17, 1962), if such
agreement has been renewed or continued in substance after the effective
date of Executive Order 10988, notwithstanding any inconsistency of such
provision with limitations or proscriptions imposed by Executive Order
11491. The Assistant Secretary concluded that NFFE's petition
constituted an appropriate attempt to sever a unit of nonsupervisory
employees from the unit exclusively represented by IBEW; that the only
question was whether such employees wished to be separately represented
by NFFE; and that if a majority of the voting nonsupervisory employees
chose the IBEW as their representative, the existing unit of supervisory
and nonsupervisory employees would continue, whereas if a majority of
the voting nonsupervisory employees chose NFFE as their exclusive
representative, such employees would be severed from the existing IBEW
unit, and the NFFE would be certified as their exclusive representative
A/SLMR No. 1151 (1978), 8 A/SLMR 1246.
NFFE subsequently won the election and thereafter was certified as
the exclusive representative of the nonsupervisory unit found
appropriate. IBEW appealed to the Authority as the Federal Service
Labor Management Relations Statute had been enacted during the interim
period. It was contended that the NFFE petition should have been
dismissed. The petition for review was denied. 1 FLRA No. 119
(September 28, 1979), 1 FLRA 1050.
In light of principles outlined in Section 15, of Executive Order
10988; Section 24(1) of Executive Order 11491; the Federal Labor
Relations Council's August 9, 1978, Interpretation; and the results
reached in Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, supra, it is abundantly clear that
inclusion of supervisory employees in the unit of recognition was
appropriate, and further that the continuation of this policy and
practice depended entirely upon the continuance of contractual
provisions providing for the inclusion of supervisors. This was a
contractual issue of appropriate concern to the parties, as distinct
from authority vested in the Assistant Secretary to determine the
composition of bargaining units.
/14/ On August 18, 1978, a draft of a letter taking this position was
prepared by Mr. Nash for Mr. McKune's signature. It was forwarded to
Mr. McKune with Mr. Spillers' August 21, 1978 memorandum (Stip. 6, Tr.
8-9; Exh. 3(b)).
/15/ The September 28, 1979 charge alleged violations of Sections
7116(a)(1), (2) and (5) of the Statute. The basis of an amended charge
dated April 24, 1980, was identical to that utilized in the September
28th charge; however the charge dated April 24, 1980 omits reference to
Section 7116(a)(2).
/16/ The provisions of subparagraph B do not apply to the facts of
this case.
/17/ This case, popularly known as the Bryan Manufacturing Company
case, involved an unfair labor practice complaint predicated on the
enforcement and maintenance of a union-shop contract that was executed
at a time when the union did not represent a majority of the employees.
The unlawful execution of the contract occurred outside the 6-month
period of limitations.
/18/ Counsel representing the General Counsel and the Charging Party
argue that the facts of this case fall within the first illustration.
For reasons stated herein this contention is rejected.
/19/ The complaint was subsequently dismissed on other grounds.
/20/ The specific procedure for effecting such approval was not
stipulated, and it is not clearly described in the collective bargaining
agreement. See Exh. 2(c).
/21/ The parties stipulated that as early as April 3, 1978, IBEW
representatives received copies of the Memorandum of Understanding from
the Respondent, together with a briefing, and a request that approval of
the IBEW be expedited. It could also be argued that the IBEW, through
Local 640 representatives became aware of Local 640's March 17, 1978
agreement to enter into the Memorandum of Understanding. These
circumstances suggest a still longer period of silence on the part of
the International Headquarters of the IBEW.
/22/ This is not a case wherein the Assistant Secretary determined a
unit to be appropriate. The continued inclusion of supervisory
employees depended entirely upon whether the parties renewed or
continued the 1977 collective bargaining agreement in accordance with
authorization for such renewal or continuance provided in Section 24(1)
of Executive Order 11491. See generally note 10 supra.
14 FLRA No. 80; Case Nos. 8-CA-1187, 8-CA-1188, 8-CA-1190,
8-CA-1219, 8-CA-1223, 8-CA-20048; May 11, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4100. Interference, Restraint, Coercion
4400. Discipline for Filing a Complaint or Giving Testimony
4800. Otherwise Refuse to Comply with Statute DIGEST NOTES
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) of the Statute when it prevented representatives of the
union from meeting with unit employees on representational matters,
ordering them out of offices, or threatening to have them thrown out.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) of the Statute when it threatened unit employees by
telling them that action would not have been taken against them, or they
would have been left alone, if they had not sought the assistance of the
union, or that as long as the employee continues to request the
assistance of the union, the employees would continue to receive
memoranda criticizing the employee's performance.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) of the Statute when it threatened unit employees by
telling them that they would "pay" for having gone to the union, or that
management would "get even" with any employee who went to the union, or
that management would never allow the union employees in its offices.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) of the Statute by threatening unit employees by telling
them that management would not help them because they had filed unfair
labor practice charges.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1), (2) and (4) of the Statute by discriminating against
unit employees by reassigning redetermination caseloads to other
employees, by placing memoranda in any employee's personnel file
admonishing the employee about the quality of his or her work, or by
giving the employee unsatisfactory ratings on his or her performance
evaluation because the employee seeks the assistance of a union
representative or gives information or testifies in connection with the
investigation of unfair labor practices.
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) and (5) of the Statute when it changed the working
conditions of employees in the Indio, California, Branch Office by
altering the procedures to be followed in working overtime on Saturday's
without first notifying the union and affording it an opportunity to
negotiate over that change.
The Authority adopted the ALJ's decision that the agency contravened
the provisions of Sec. 7114(a)(2)(A) in violation of Sec. 7116(a)(1),
(5) and (8) of the Statute when it held formal discussions with unit
employees concerning grievances, personnel policies and practices or
other conditions of employment without first notifying the union and
affording it an opportunity to be present.
The Authority adopted the ALJ's decision that the agency did not
violate Sec. 7116(a)(1) of the Statute when it "disparaged" a former
union representative who was no longer employed by the agency where the
record evidence was insufficient to support such an allegation.
The Authority adopted the ALJ's decision that the issuance of an
extraordinary remedy, pursuant to the Authority's remedial discretion
under the Statute, is not warranted where the evidence does not
establish the likelihood of a recurrence of the violative conduct.
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case Nos. 8-CA-1187, 8-CA-1188,
8-CA-1190,
8-CA-1219, 8-CA-1223, 8-CA-20048
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the consolidated
complaint and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. The Judge further found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal of the complaint with respect
to them. The General Counsel filed timely exceptions limited to the
recommended remedy set forth in 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, and noting the absence of any
exceptions to the Judge's unfair labor practice determinations, the
Authority hereby adopts the Judge's findings, /1/ conclusions, /2/ and
recommended Order. /3/
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 Social Security Administration,
Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Preventing representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of its
employees, from meeting with unit employees on representational matters,
or ordering them out of offices, or threatening to have them thrown out.
(b) Threatening unit employees by telling them that action would not
have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
(c) Threatening unit employees by telling them that they would "pay"
for having gone to the American Federation of Government Employees,
AFO-CIO, or that management would "get even" with any employee who went
to the American Federation of Government Employees, AFL-CIO, or that
management would never allow the American Federation of Government
Employees, AFL-CIO, in its offices.
(d) Threatening unit employees by telling them that management will
not help them because they had filed unfair labor practice charges.
(e) Discriminating against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
any employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of a union representative or gives information or testifies
in connection with the investigation of unfair labor practices.
(f) Changing the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
(g) Holding formal discussions with unit employees concerning
grievances, personnel policies and practices or other conditions of
employment without first notifying the American Federation of Government
Employees, AFL-CIO, and affording it an opportunity to be present.
(h) 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) Remove from employee Carol Cofflin's personnel file a memorandum
dated October 21, 1981, admonishing her for the quality of her work, and
rescind her performance evaluation for the period October 1, 1980, to
September 30, 198,.
(b) Prepare a new performance evaluation for employee Carol Cofflin
for the period October 1, 1980, to September 30, 1981, without taking
into consideration any of her protected activities guaranteed by the
Federal Service Labor-Management Relations Statute.
(c) Rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
(d) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(e) Post at its Social Security Branch Office facility in Indio,
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 an appropriate official, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to employees
are customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegation in Case No.
8-CA-1223 of the consolidated complaint, that the Respondent disparaged
a former Union representative, be, and it hereby is, dismissed. Issued,
Washington, D.C., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT prevent representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees, from meeting with unit employees on representational matters,
or order them out of our offices, or threaten to have them thrown out.
WE WILL NOT threaten unit employees by telling them that action would
not have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
WE WILL NOT threaten unit employees by telling them that they would
"pay" for having gone to the American Federation of Government
Employees, AFL-CIO, or that we would "get even" with an employee who
went to the American Federation of Government Employees, AFL-CIO, or
that we would never allow the American Federation of Government
Employees, AFL-CIO, in our offices.
WE WILL NOT threaten unit employees by telling them that we will not
help them because they had filed unfair labor practice charges.
WE WILL NOT discriminate against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
any employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of his or her union representative or gives information or
testifies in connection with the investigation of unfair labor
practices.
WE WILL NOT change the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
WE WILL NOT hold formal discussions with unit employees concerning
grievances, personnel policies and practices or other conditions of
employment without first notifying the American Federation of Government
Employees, AFL-CIO, and affording it an opportunity to be present.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights guaranteed under
the Federal Service Labor-Management Relations Statute.
WE WILL remove from employee Carol Cofflin's personnel file a
memorandum dated October 21, 1981, admonishing her for the quality of
her work, and will rescind her performance evaluation for the period
October 1, 1980, to September 30, 1981.
WE WILL prepare a new performance evaluation for employee Carol
Cofflin for the period October 1, 1980, to September 30, 1981, without
taking into consideration any of her protected activities guaranteed by
the Federal Service Labor-Management Relations Statute.
WE WILL rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
WE WILL, upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071, and
whose telephone number is: (213) 688-3805.
Case No.: 8-CA-1187, 8-CA-1188,
8-CA-1190,
8-CA-1219, 8-CA-1223, 8-CA-20048
Patricia Mayer, Esq.
Joseph Swerdzewski, Esq.
For the General Counsel
Wilson Schuerholz
For the Respondent
Jeffrey Dasteel
For the Charging Party
Before: ELI NASH, JR.
This is a proceeding under the Federal Service Labor-Management
Relations Statute, hereinafter referred to as the Statute, 92 Stat.
1191, 5 U.S.C. 7101 et seq. It was instituted on December 11, 1981, by
the Regional Director for Region 8 of the Federal Labor Relations
Authority, herein called the Authority, pursuant to charges filed on
June 29, 1981, in Case Nos. 8-CA-1187, 8-CA-1188, and 8-CA-1190; on
July 7, 1981 in Case No. 8-CA-1219; originally filed on July 10, 1981,
and amended on July 30, 1981, in Case No. 8-CA-1223; and on November 3,
1981, in Case No. 8-CA-20048, by the American Federation of Government
Employees, AFL-CIO, herein called the Union, by an Amended Order
Consolidating Cases, Amended Consolidated Complaint and Notice of
Hearing, alleging that the Social Security Administration, herein called
Respondent, had engaged in, and is engaging in, unfair labor practices
in violation of section 7116(a)(1), (2), (4), (5), and (8), by the
following acts and conduct: Respondent through its agents and
supervisors made a unilateral change in working conditions of unit
employees in its Indio, California, Branch Office by requiring that
employees submit a written request to work overtime on Saturdays;
Respondent, through its agents, made statements to a unit employee who
was also a Union representative which threatened the Union
representative and prevented the Union representative from meeting with
a unit employee on a representation matter; Respondent, through its
supervisor and agent, threatened unit employees with retaliatory action
for seeking Union assistance; Respondent, through its agent told a unit
employee that harsher working conditions had been and would be applied
to those who sought the assistance of the Union, and refused to assist
the unit employee because that employee had sought the assistance of the
Union; Respondent, through its agent, made disparaging remarks about a
prior Union representative to a unit employee and threatened the
employee if she continued to request the assistance of the Union;
Respondent, through its agents, met with a unit employee and discussed
grievances and unfair labor practice charges which concerned that
employee, all in the absence of the Union representative; Respondent,
through its agents, discriminated against a unit employee because of her
actions in seeking the assistance of the Union, in filing several
grievances pursuant to the negotiated procedure, and for giving
testimony to the Authority in connection with unfair labor practice
investigations, by reassigning that employee's existing redeterminations
caseload to another unit employee; by issuing that employee a
memorandum, criticizing the quality of her work, and, by giving that
employee an unsatisfactory performance evaluation for the 1980-81 year.
/4/
Respondent filed Answers denying the commission of any unfair labor
practice.
On January 13, 1982, and February 2, 1982, respectively, a hearing
was held before the undersigned in Palm Springs, California, at which
all parties were represented by counsel and afforded full opportunity to
adduce evidence and call, examine and cross-examine witnesses and argue
orally. Briefs were filed by all parties concerned and have been duly
considered.
Upon consideration of the entire record in this matter, including my
evaluation of the testimony and evidence presented at the hearing, and
my observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommended order.
There is no question of jurisdiction in these matters.
A. The June 10, 1981, Incident
(Case No. 8-CA-1190)
In early June 1981, Charlotte Mendes, a unit employee in the Indio
Branch Office, was informed that she might be disciplined because she
was experiencing difficulties at work. Mendes requested assistance of a
Union representative Patricia Randles, particularly for a June 10, 1981
meeting which Mendes was to attend to discuss possible discipline with
her managers. Mendes also requested that employee Carol Cofflin
accompany her to the meeting with Randles in order to discuss problems
which Cofflin had experienced with Indio office supervisors Ramon
Velarde and Robert Fitzgerald. Cofflin arranged to meet with Randles
who thereupon submitted a separate official time form to meet with
Cofflin on June 10, 1981. Randles obtained permission to meet with
Cofflin and attend the meeting from District Manager Martin Semel. She
then proceeded to the Indio office on the morning of June 10.
When Randles arrived at the Indio office on the morning of June 10,
she approached Branch Manager Ramon Velarde. Randles told him she was
there for the meeting and that she wished to speak with Cofflin and
Mendes. Velarde told Randles he wanted to meet with Randles and Mendes
immediately and that Randles was not going to be allowed to meet ahead
of time with Cofflin and Mendes. Randles again stated her need to speak
with the two employees because Mendes had received two additional
memoranda in her file the previous day. At this point, Velarde yelled
at Randles, "get the hell out of my office," and "get the hell out of my
office or I'll have you thrown out." Although Randles reminded Velarde
that she was on official business and had a right to see Mendes, Velarde
continued to yell and repeated his threat several times. Randles then
asked Velarde to telephone District Manager Semel to verify her
permission, and when Velarde refused, she asked to use the telephone so
she could call Semel to resolve the problem. Velarde again refused her
request. This conversation occurred in the middle of the Indio office,
within hearing of the other office employees. The comments Velarde made
to Randles were partly corroborated by Cofflin who testified that she
observed Randles and Velarde engage in a discussion about five feet
behind her desk in the center of the office. She also heard Velarde
tell Randles she was limited to one-half hour of discussion and when
Randles objected to this, Velarde told her, "get the hell out of my
office." She further testified that Velarde locked the door behind
Randles.
Randles left the Indio office and returned to the Palm Springs
District Office. There Randles explained what had occurred to District
Manager Semel and later that day Semel set up the Indio meeting once
again. Randles thereupon returned to Indio and met with Mendes and
Cofflin and supervisors, Velarde and Fitzgerald, to discuss the
discipline of Mendes.
Velarde testified that his instructions from his supervisor were to
allow Randles 30 minutes only. He also asserts he did not call Semel
because Semel previously informed him he would be absent. It is noted
Velarde took no other action to resolve the dispute such as calling
other officials in the Palm Springs District Office or Randles'
supervisor who signed her official time form, nor did Velarde ask to see
Randles' official time form. Velarde's response was simply that no one
could act on Semel's behalf on labor relations matters. Velarde did not
deny that he ordered Randles to leave the office.
B. The June 24, 1981 Incident
(Case No. 8-CA-1188)
Shortly before June 24, Mendes received additional negative memoranda
in her file and was told to attend another disciplinary meeting with
Velarde on June 24. Mendes also asked Randles to represent her at this
disciplinary meeting. Velarde and Fitzgerald were also at that meeting
which took place in Fitzgerald's office. At the meeting, Fitzgerald
read a memorandum which was to be placed in Mendes' personnel file, and
then left the room to photocopy the document.
While Fitzgerald was out of the room, Velarde and Randles engaged in
a discussion, in the presence of Mendes. Randles told Velarde she was
surprised that he was treating Mendes so harshly. Velarde replied by
first stating that he wanted to go "off the record." He then told
Randles he felt she was out to "get him," that he was "surprised at
(Mendes) for requesting (Randles') assistance," and that it upset him
that Mendes went to Randles for help. He also stated he would "see to
it that life was miserable for (Mendes) because she had gone to the
Union," that Mendes would "pay" for going to the Union, and that she
would be sorry that she did. Velarde continued by stating that the
"district was a laughingstock because they had allowed the union," that
Semel was a "fool" for letting the Union into his office and, that
Velarde was "not going to allow the Union in his office." At that point,
Fitzgerald returned to the office, distributed the photocopies of the
memorandum and the meeting ended.
Velarde stated that he was at the June 24 meeting as an observer
only. Velarde denies making any of the statements attributed to him.
He later admits that he had "been told" that Randles is out to get him
and believed it to be so. I credit Randles account of this meeting.
C. The July 2, 1981, Discussion between Velarde and Cofflin
(Case No. 8-CA-1219)
On July 2, Fitzgerald had a meeting with Cofflin during which he
handed her several memoranda criticizing her performance. During that
meeting, Cofflin asked for a Union representative, and Fitzgerald denied
the request. Cofflin refused to sign the memoranda Fitzgerald gave her
and the meeting ended. Soon thereafter, both Velarde and Fitzgerald
approached Cofflin, telling her she had to sign the memoranda. Cofflin
agreed to talk with Velarde, so Velarde and Cofflin continued the
discussion in Velarde's office. No one else was present.
Cofflin began the discussion by explaining her view of the memoranda
Fitzgerald had given her. The discussion turned when Velarde asked
Cofflin why she had filed unfair labor practice charges. Cofflin asked
Velarde to keep Fitzgerald from harassing her. Velarde responded that
he could not do that, and when Cofflin asked why not, he said the
following: "Well, after all you've done for me, how do you expect me to
be good to you? . . . You went to the Union and you started all these
unfair labor practices . . . As long as you go to the Union you will
continue to receive memos." Velarde also told Cofflin that if she had
not gone to the Union, he would have left her alone, and then said " . .
. You set out to get me but I am going to get you instead." Velarde
denied making any of these statements. I credit Cofflin.
D. The July 6, 1981 Formal Discussion and Bypass
(Case No. 8-CA-1223)
During the month of June 1981, several grievances were filed on
Mendes behalf.
On the morning of July 6, Union representative Randles met with
Mendes and Cofflin. During her meeting with Mendes, Randles learned
that prior to July 6, Velarde had approached Mendes and asked her to
withdraw her grievances and unfair labor practice charges, adding that
if she did so, all the adverse memoranda previously issued to her would
be withdrawn. Mendes told Randles she did not wish to withdraw her
charges or grievances. Never, at any time during the meeting with
Randles, did Mendes indicate that she was dissatisfied with Randles as
her Union representative or the Union's actions on her behalf.
Velarde apparently contacted Cofflin during this same period and
attempted to obtain her cooperation in withdrawing the unfair labor
practice charges, and further attempted to discourage her from seeking
out the Union.
Shortly after her meeting with Randles, Mendes was summoned into
Velarde's office where she found Semel and Velarde. Semel stated that
he thought they could resolve the problems without the necessity of
having the Union involved. Semel and Mendes then discussed resolving
her grievances.
Cofflin was also called into Velarde's office by Semel and Velarde on
July 6, 1981. Semel said to Cofflin, "I see we have a problem here,
what do you think is the problem?" When Cofflin responded, Semel asked
her if she wanted to discuss it, and Cofflin told Semel that if he
wanted to discuss some kind of settlement or the unfair labor practice
charges, she would not do so without a Union representative.
According to Mendes, Semel initiated the idea of her submitting a
written request to withdraw her grievances, in her own handwriting. /5/
Semel denies making any arrangement with Mendes to remove the AWOL
and the memoranda, but did admit he suggested she write the letter.
When asked if Semel told Mendes to "drop the grievances," Velarde stated
that the meeting was about clearing her file. He also corroborates that
it was Semel who suggested Mendes write a letter withdrawing her
grievances. Although at trial, Mendes denied she wrote the letter in
order to get the memoranda out of her file and eight hours of AWOL
removed, her affidavit clearly set forth these facts. As they discussed
the grievances, Semel referred to a former Union representative, Vicky
Doyle, and told Mendes that Doyle's name was known throughout the region
and Doyle would never again be employed by Social Security. He also
left Mendes with the impression that if she continued to be represented
by the Union, her name would be "mud" like Doyle's.
Semel denies making the statements about Doyle. He admitted,
however, that Doyle was the Union representative for a long while, that
he had had significant disagreements with her and that he had testified
in an unfair labor practice case brought by her.
Within two days after this meeting Mendes wrote a letter requesting
withdrawal of her grievances. After she had written the letter, her
hours of AWOL were reinstated and the memoranda removed, but Mendes was
not certain of the date these acts occurred. It is noted that in her
affidavit, Mendes explained that Velarde directed her writing of the
letter by telling her what words to use and how she should phrase it.
Velarde admittedly reviewed the letter before it was put into final
form. Mendes also admitted at the hearing that she showed the letter to
Velarde before submitting it to Semel.
No union representative was present at any time during the meeting.
Mendes did not, either before or during the meeting, disaffirm Randles
as her representative. Semel, at the hearing, agreed that the meeting
was improperly conducted because of the absence of the Union
representative. A letter from Area Director McClure to Union
Representative Burrows also admits the error Respondent committed under
the Master Agreement by holding a meeting to adjust Mendes' grievances
in the absence of the Union.
E. Respondent's Unlawful Treatment of Carol Cofflin
(Case No. 8-CA-20048)
1. Incidents of May 12, 1981
On May 12, 1981, Supervisor Robert Fitzgerald called employee Carol
Cofflin, a Title XVI Claims Representative, into his office where he
proceeded to hand her, and discuss with her, six memoranda concerning
her job performance. The first memorandum he gave Cofflin concerned
hours of duty and the necessity of informing management of absences
during the day. Upon giving her this memorandum, Fitzgerald accused
Cofflin of returning too late from lunch earlier that day. There were
no formal procedures set up in the Indio office on lunches, and Cofflin
as well as others had previously taken late lunches without incident.
Cofflin tried to explain to Fitzgerald that because it was payday, and
employees were allotted 45 minutes for lunch that she was within the
given time. That explanation had no visible effect on Fitzgerald. That
same day another employee, Chuck Landis, took lunch at the same time as
Cofflin. Cofflin had never before been counseled by a supervisor that
she had taken too much time for lunch nor had she ever received such a
memorandum in her file.
Fitzgerald admitted he had never counseled Cofflin orally prior to
this date about her being late from lunch and that he had never
documented any other employee for taking too long a lunch despite the
fact that other employees had been late on their lunch hours.
Fitzgerald then handed Cofflin two other memoranda, one dated May 12
and one dated March 12, each containing several attachments. These
memoranda criticized Cofflin's work on the case of a claimant, Maria
Aguilar. Cofflin and Fitzgerald had disagreed on how to handle a
redetermination claim for Aguilar, and because Branch Manager Velarde
could not resolve the dilemma, Velarde instructed Cofflin to contact
Respondent's Baltimore headquarters. Cofflin was in contact with the
Baltimore office until the date Fitzgerald ordered Cofflin to resolve
the matter. Baltimore headquarters confirmed Cofflin's decision on the
Aguilar claim. Cofflin had not seen either of these memoranda prior to
that day. When Cofflin asked Fitzgerald why he had written a note to
himself on the Aguilar claim, he replied it was because she previously
had failed to do things he had asked of her. When she asked him to be
specific, Fitzgerald was not, stating it was the first time such an
instance had occurred.
Fitzgerald handed Cofflin two more memoranda, one dated February 26,
1981, and the other dated March 9, 1981, both entitled "Interpersonal
Relations." Despite their dates, Cofflin had never before seen the
documents. The February memorandum cited instances in which unit
employees Pat Black and Melva Aceves had complained about Cofflin's
behavior and accused her of being "harsh." The March memoranda recited
that both Service Representatives had complained that Cofflin had been
"abusive" to them. These instances were repeated on the previous
memorandum Fitzgerald handed Cofflin earlier that day. None of these
incidents were ever discussed with Cofflin prior to May 12, 1981.
Nonetheless, Fitzgerald apparently started keeping notes on Cofflin
on his desk calendar as early as February 26, one month after he began
supervising work in Indio. Although Fitzgerald admitted Black's
complaint was the first incident drawn to his attention concerning
Cofflin, he documented his calendar on Cofflin and only Cofflin, as
compared with other employees, because Cofflin's problems were allegedly
"ongoing." At their May 12 meeting, Fitzgerald also handed Cofflin a
copy of her February desk audit which he had conducted and which he had
originally given her on February 6, 1981. Cofflin was never counseled
on any of the subjects addressed in that document, a fact which
Fitzgerald denies. I credit Cofflin.
Cofflin further testified that she felt threatened by the meeting,
the memoranda, Fitzgerald's harsh and nasty tone, and his telling her to
sit down and shut up. Because of the setting and content of the
meeting, Cofflin requested a union representative. Fitzgerald denied
the request. Cofflin states that she did not understand why all of this
was occurring, particularly since Fitzgerald had been at the Indio
office for only a few months, she knew nothing about Fitzgerald when he
came to Indio, and had never had any previous confrontation with him.
According to Cofflin, her contact with him prior to this day was almost
exclusively limited to her desk audit and the Aguilar case.
Subsequent to her discussion, and in order to remedy the criticisms
Fitzgerald had made of her, Cofflin spoke with Service Representatives
Black and Aceves. Black told Cofflin she recalled an instance when
Cofflin had appeared to be in a bad mood and had made a remark in the
breakroom, but that it had been an insignificant remark, certainly not
meant as a complaint. Fitzgerald insists Aceves indeed complained to
Black and that Aceves would be "wrong" if she denied that she had.
Fitzgerald admits, however, that he never discussed the truth of the
matter with Aceves. Although one of her memoranda had stated that
Aceves had complained about her, when Cofflin spoke to Aceves, Aceves
said she had never complained to Fitzgerald and did not know what the
memorandum was referring to. Aceves herself confirmed that she never
complained to Fitzgerald about Cofflin and that the February 26, 1981,
memorandum was not true. I credit Aceves. Aceves, who had worked as
Cofflin's secretary for several lengthy periods over the last two years
did not have difficulty working with her, and Cofflin has never kept
Aceves from doing her job. Nevertheless, in the summer of 1981, Velarde
approached Aceves and asked her how she was getting along with Cofflin.
Although Aceves admittedly had arguments with several other Indio
employees, there is no indication that she ever engaged in an argument
with Cofflin. Aceves testified that Velarde and Fitzgerald treat
Cofflin more harshly than other employees in that they did not allow
Cofflin the same latitude accorded to other employees.
Cofflin explained, with regard to the complaints from the Service
Representatives that she had, on occasion, questioned them as to whether
they were correctly assigning particular cases to her or whether they
should have retained the case as a Service Representative case. Juanita
Cruz and Bernie Flores, both Service Representatives, recalled
discussing Cofflin with Fitzgerald around the time that Fitzgerald wrote
the March 9 memorandum. Cruz also noted that she did not recall
Cofflin's claimants waiting longer for interviews in comparison with
waiting times for claimants interviewed by the other claims
representatives. Similarly, Flores recalled Cofflin questioning whether
he was correctly referring cases to her. The Service Representatives
were covering the front or reception desk, as well as completing their
own duties, and the office workload was extremely heavy. The
redeterminations had recently come in (a caseload of approximately 500
cases for each claims representative), and the office was extremely
busy. Although she questioned the case assignments, Cofflin apparently
never refused to take a case. Cruz' particular concern and her reason
for going to Fitzgerald was that Cofflin's complaints were loud and
could be heard by the public. Otherwise, Cruz did not think much about
the problem personally. Cruz testified that she and Cofflin get along
fairly well and she has had no difficulty with her personality, but has
always been able to complete her work with Cofflin, and indeed found her
to be cooperative and helpful. According to Cruz, her intent in
mentioning the incident was to alert management to Cofflin's situation
so that Cofflin could receive assistance with interviews. Cruz stated
that this would be consistent with normal procedures used in Indio when
an employee was experiencing a problem. Neither Cruz nor Flores had
experienced any problem with Cofflin since March and both noticed
improvement in Cofflin's behavior thereafter. I credit Cruz, Black and
Flores.
2. Events of May 31, 1981
On May 13, Cofflin arrived at work at 7:59 a.m., arriving at the
employees' entrance at 8:00 a.m., the only entrance open between 8:00
and 9:00 a.m. Fitzgerald, the only individual with keys to the
employees' entrance locked the door at 8:00 a.m. Upon arriving, Cofflin
knocked loudly to gain entrance. Several minutes later the door was
opened by Fitzgerald, who told Cofflin, "You're late." Later that same
day, Cofflin received a memorandum reciting the incident and ordering
her to take 1/4 hour annual leave.
Flores, who witnessed this incident, related it as an example of how
management treated Cofflin differently from any other employees.
According to Flores, Fitzgerald had never dealt with any other employee
in this fashion. I credit Flores.
Fitzgerald admitted he locked the door for the express purpose of
catching Cofflin and that he had never locked the door against any other
employee, although other employees had also been late. Velarde, as
well, had never locked out any other employee in any of his offices
except Cofflin, although he too agreed other employees had been late.
The evidence reveals that employees Aceves, Flores, and Cruz have all
been late to work several times during 1981, particularly during the
first six months of 1981, and had never been locked out or received
memoranda in their files. Although Flores was once warned that in the
future he could be penalized for being late, neither Cruz nor Flores was
ever required to take 1/4 hour annual leave because of tardiness.
Aceves once took annual leave for being tardy in 1981. No employee,
other than Cofflin, was required to take annual leave for tardiness in
the Spring of 1981.
3. Other Events of May, June, July 1981
Later during the day of May 13, Cofflin met with Union representative
Hallin concerning the upcoming May 12 meeting, the memoranda, and her
difficulties with Fitzgerald.
On May 15, during another meeting with Fitzgerald, Cofflin was handed
yet another memorandum criticizing her job performance. Fitzgerald's
reason for issuing this May 15 memorandum, only three days after issuing
Cofflin six memoranda on May 12, was that Cofflin's problem was
"persisting." Although Cofflin again asked for a union representative,
Fitzgerald denied her request telling her to "sit down and shut up." The
memorandum Fitzgerald gave her during the meeting contained no new
criticism of her work, but was merely a restatement of what was said to
her on May 12 and what was contained in the memoranda previously issued
to her on May 12, a point which Fitzgerald admits.
In mid-June, Cofflin spoke and met with Union representative Randles
and employee Mendes on Mendes' behalf. On June 29, unfair labor
practice charge numbers 8-CA-1187, 1188, and 1190 were filed. On July
2, Cofflin was again called into a meeting with Fitzgerald and handed
two more memoranda. One of these memoranda, criticized Cofflin for her
failure to complete certain paperwork rejecting the Title XVI claim of a
Francisco Ponce, a Title II Spanish-speaking claimant who was referred
to Cofflin even though she did not take Spanish-speaking claimants and
even though Title II Claims Representatives were working in the Indio
office that day. Further, Ponce was not in Cofflin's alpha breakdown.
Due to the specialization between Title II and Title XVI Claims
Representatives, Cofflin had taken, at the most, two Title II claims
while in Indio. Moreover, Cofflin should not have interviewed Ponce for
eligibility, for the receptionist should have determined whether Ponce
met the Title XVI criteria and thus, should never have referred the case
to a Claims Representative.
Fitzgerald maintains that it is "office policy" to have the SSA L991
form completed. He admitted, however, that where a Service
Representative makes an error in a referral, the Title XVI claims
representative would not complete the paperwork and an L991 form would
not be required.
Also during the July 2, 1981, meeting with Fitzgerald, Cofflin was
handed a memorandum criticizing her rate of completion of her assigned
redeterminations. Cofflin, who completed on an average of 15
redeterminations each week, exceeded the national standards for the
completion of redeterminations in each month of 1981. In particular,
the par (goal) for the end of May was 21 percent, and Cofflin's June 3
redeterminations report shows that she completed 52.3 percent. The par
for the end of June was 30 percent, and Cofflin had completed 62.14
percent by July 3, 1981. Although Cofflin had discussed progress on her
redeterminations with her supervisors prior to July 2, she had never
been admonished or warned that her performance was unsatisfactory.
Cofflin had never previously received any negative documentation
concerning progress on her redeterminations and, in fact, was told at
one time her performance was improving. Fitzgerald admits that Cofflin
was improving in June. During the meeting with Fitzgerald, his tone,
according to Cofflin, was hard and abusive. He ordered Cofflin to sit
down and shut up. Again Cofflin made a request for a union
representative which was denied. When Cofflin refused to sign the
memoranda and left the meeting, she encountered Velarde who held the
discussion with her detailed, supra, p. 5.
4. The August 28, 1981 Incident
On July 7 and 10, the unfair labor practice charges in Case Nos.
8-CA-1219 and 8-CA-1223 were filed. The Authority investigation on
these cases was conducted in August. As part of that investigation,
Cofflin gave a rather lengthy statement to Authority investigators.
Again on August 28, Fitzgerald reprimanded Cofflin for taking her lunch
hour at the wrong time. He ordered her abruptly and loudly back to work
before she had finished her lunch. Cofflin returned to her desk after
taking 20 minutes of her allotted 30-minute lunch. That day Cofflin had
a late interview and in order to get a "zero-day" claim, which is
helpful for office statistics, she processed the claim through
immediately, and, following that went to lunch at 1:20 p.m. Although
Cofflin attempted to explain the circumstances to Fitzgerald, the
incident resulted in her receiving: on August 28, a memorandum
informing her that discipline was being contemplated; a second
memorandum dated September 3, reciting the incident, accusing her of
insubordination, and stating discipline was being considered; a meeting
attended by Fitzgerald, Cofflin and Randles at which discipline was
discussed; /6/ a September 8 memorandum advising Cofflin of an
admonishment interview; and a September 9 admonishment memorandum.
Cofflin filed a grievance on all the above memoranda and received the
relief she requested (removal of memoranda from her file and an extra 15
minutes for lunch) at the third step. It should also be noted that
between September 3, when she received the first disciplinary memorandum
concerning the August 28 incident and September 9, when she received the
second memorandum, Cofflin was not criticized for any other instances of
alleged abuse of her lunch time. The action of Fitzgerald in
disciplining Cofflin was subsequently overturned by Respondent's Area
Director. When questioned about the fact that his actions in
disciplining Cofflin were deemed by the Area Director to be improper,
Fitzgerald's only comment was that the Area Director was "wrong" to
overturn him, a belief also held by Velarde.
5. September Transfer of Cofflin's Redetermination Case Load
On September 2, Fitzgerald handed Cofflin a memorandum ordering her
to transfer her outstanding redeterminations cases to employee Robert
Nunez. This action was given with no warning that it was being
contemplated by management. When Cofflin tried to arrange the transfer
with Nunez, both employees were unsure as to whether to actually
transfer the cases and record the transfer that week, or record the
transfer on the following week's work report (DOWR). Nunez checked with
Velarde who instructed them to show the transfer on the DOWR the
following week. The DOWR was completed in accordance with Velarde's
instruction. Later that morning, Cofflin was loudly admonished by
Fitzgerald and Velarde in the presence of a claimant for processing the
transfer incorrectly. Nunez explained to the supervisors that Cofflin
had acted in accordance with Velarde's instruction, and the conversation
ceased. At the time the redeterminations were transferred to Nunez,
Cofflin had 37 remaining redeterminations, having completed over 90
percent of her redetermination caseload of approximately 490 cases. The
national par for the end of August was 48 percent. /7/ On September 8,
the consolidated complaint was issued in Cases Nos. 8-CA-1187,
8-CA-1190, 8-CA-1219, and 8-CA-1223.
6. Memoranda of October 1981
During the month of October, the month she was to receive her
performance appraisal for the 1980-81 year, Cofflin received a series of
critical memoranda. The first, dated October 2, warned Cofflin to
conserve her leave, advised her of her sick and annual leave balances
and alerted her to the possibility of further action. /5/ Cofflin
allegedly had several bouts of illness (flu, tonsillitis) during the
1981 year which caused her to use her sick leave. Cofflin also has
colitis which requires the care of specialists. Cofflin had never, in
Indio or at any other Social Security Office, been previously admonished
or disciplined for taking leave. Her leave record, in fact, for the
1981 year was the same as it had been in prior years, including the
first year she worked in the Indio office. There had never been any
rule in Indio as to what constituted abuse of leave and Cofflin was not
aware of a single other instance when an employee was disciplined for
improper use of leave. Several other Indio employees took substantial
amounts of leave including Rebecca Espinosa who took more hours of sick
leave than Cofflin and never received documentation for abuse of leave;
Melva Aceves, who was never issued any memoranda disciplining her for
abuse of leave although she had to take leave without pay in 1980 and
was out of work for over a month in 1981; and, Juanita Cruz, who used
140 hours of sick leave in 1981 and received no memoranda in her file.
Fitzgerald admits that he never made any determination as to whether
Cofflin's sick leave use was legitimate. He never asked Cofflin for
documentation such as a leave excuse, and stated he based the issuance
of the October 2 document solely on the number of hours used. He
insists that Cofflin had a chronic leave problem, but admits that prior
to this time he had never issued her a letter indicating even the
possibility that abuse existed. Fitzgerald also admits that no other
employee ever received a sick leave letter like the one issued to
Cofflin. Velarde admits that the restriction on Cofflin occurred just
after her grievances were filed.
On October 21, Cofflin received another memorandum which restricted
her use of leave and required that she comply with several sets of
procedures before taking leave. Cofflin was not reprimanded, either
formally or informally, or otherwise apprised of any new problem with
her use of leave between October 2, the date she received the warning
memorandum, and October 21, the date Fitzgerald issued her the sick
leave restriction letter. /9/ Cofflin filed grievances through the
Union, on both the October 2 and October 21 leave restriction memoranda.
That same day, October 21, Cofflin received another memorandum to her
personnel file criticizing her performance on a redetermination case.
Unknown to Cofflin, correspondence had come into the office reporting
the receipt of funds, which had the effect of placing the case in an
overpayment status. Cofflin's clerk placed the check in the case file
in a drawer without calling it to Cofflin's attention. The case was
transferred to Nunez and five weeks later he discovered the
correspondence. Fitzgerald issued the memorandum to Cofflin without
discussing it with her or allowing her to present her side of the
matter. Fitzgerald maintains he did discuss this matter with Cofflin.
I credit Cofflin that he did not.
On October 16, also Cofflin received a memorandum from Fitzgerald
recommending that she seek psychological counseling. Cofflin had never
discussed any psychological or personal problems with Fitzgerald, in
fact had never discussed her mental state with him. According to her,
the only problem she ever mentioned to Fitzgerald was financial. She
had no warning that this memorandum was being contemplated and was
unaware of any incident or action on her part which would have caused
Fitzgerald to issue such a memorandum. Cofflin filed a grievance on
this memorandum shortly after receiving it.
Respondent's reasoning for issuing the October 16 psychological
counseling memorandum was apparently based on the fact that on one
occasion Cofflin told Fitzgerald her ex-husband wished to see her
children. This, in addition to the fact that Cofflin had colitis,
"indicated a problem" to Fitzgerald. Fitzgerald maintained that the
Personnel Guide for Supervisors supported the issuance of the October 16
letter. That guide, however, provides no such support. Section E(2) it
states only that:
. . . employees with emotional or physical problems which would
require detailed medical attention should be referred to
counselors in the servicing personnel office if available.
Nowhere does it provide authority for referring an employee for
psychological counseling. On cross-examination, Fitzgerald admitted
that the reason he contacted the Regional office to refer Cofflin for
counseling was because he and Velarde were having problems with Cofflin.
Velarde was aware of the issuance of the October 16 memorandum and
thought counseling was "appropriate", but at the same time did not know
why she was referred for psychological counseling and stated he did not
know whether she had a mental problem.
7. Cofflin's Performance Appraisal
On October 30, Cofflin received her performance appraisal for 1981.
Cofflin's ratings were remarkably dissimilar to those she received in
each of the prior years she worked for the Respondent. Her ratings show
a sudden drop from the previous year's ratings as follows:
Interviewing Skills: From E to B
Functioning in Interpersonal Situations: From D to A
Negotiating: From D to A
Quantity and Timeliness: From D to B
Quality and Work Products: From E to B
Job Knowledge: From E to D
Initiative: From E to C
Adaptability: From D to C
Resourcefulness: From E to C
Planning, Organizing, Priorities: From D to C
Writing Skills: From E to D
Analytical Reasoning: From E to D
While her overall rating was "satisfactory," the existence of "A"
ratings normally signal that an employee can be terminated, and because
each category carries "points" toward promotion, a poor appraisal would
almost assuredly prevent her from being promoted.
The narrative comments appearing in the appraisal restate exactly the
matters which formed the basis of the memoranda previously handed to and
discussed with Cofflin in May. It is these upon which Fitzgerald, the
rater, based his rating of "A" in categories 7 and 13, "Functioning in
Interpersonal Relationships," and "Negotiating." Cofflin had never
previously received any comments from her supervisors that her
timeliness or the quality of her work were unsatisfactory.
While Fitzgerald and Velarde had received interpersonal complaints
about other Indio employees there is no evidence that these were
referred to on the performance appraisals of those employees or that
memoranda was ever issued to those employees. For example, employees
Flores and Cruz had made separate complaints to their supervisors about
employee Aceves; Flores to Fitzgerald in summer 1981, when he felt
Aceves was interfering with his work, and Cruz to Velarde in 1980 when
Aceves was degrading and criticizing another employee, Espinosa. Aceves
was never criticized by Fitzgerald or Velarde about her personal
relations, and never received any negative memoranda about her behavior
or her work. On her performance appraisal for 1981, Aceves received the
rating of "D" in the categories of "Interpersonal Relations" and
"Negotiating." No negative comments appeared on her evaluation.
Fitzgerald denied ever receiving any complaints about Aceves from
Flores, stating that if Flores said he had complained, he would be
lying. Fitzgerald stated he based Cofflin's ratings on interpersonal
relationships on the two documented instances in February and March and
on a third, but undocumented, incident in May. He admits he received no
other complaints from employees about Cofflin after May. In the face of
this, he maintained, however, that Cofflin did not improve her
performance in the "interpersonal relationships" category. Regarding
the category "Negotiating," Cofflin's rating was due to the fact that
she and the Service Representatives could not agree among themselves on
who would handle a particular interview. Fitzgerald rated Cofflin
poorly because she did not come to him, her supervisor, to resolve the
problem.
Cofflin's claimant interviewing and employee training evaluations
from as far back as October 1980 were "good" evaluations. Fitzgerald
confirms that the training Cofflin gave was "outstanding", "above
average," and that her interview audit was "superior" and "positive."
Fitzgerald, however, rated Cofflin with a "B" in interviewing.
Fitzgerald also asserted that Claims Representatives who interview
more quickly do better work. He then retracted that statement but
insisted Cofflin's slow speed in interviewing was the basis for her low
rating (B) in the category of "interviewing." According to Cofflin, her
practice is to take as thorough an initial interview as possible, a
practice which she has found effective in assisting her in obtaining all
necessary information while eliminating repeat interviews. She
consequently has fewer interviews than other claims representatives.
While Fitzgerald insisted that her speed in interviewing was the basis
for her rating, he admitted that he kept no statistics on Cofflin's
number of return interviews, on the length of her interviews, or how
they compared with those of other Claims Representatives. He also
admits that interviews must vary in length due to complexity and that
the lower the number of return interviews, the more efficient the
interviewer. He insists that Cofflin's prior evaluator was "wrong" when
he rated her as "E" in interviewing.
Cofflin's desk audit of February 9, 1981, was similar to those she
had received in the past. When Fitzgerald gave it to her he made no
comments indicating her audit or performance were poor in any area.
Because four of the cases audited were of claims taken by other Claims
Representatives, many of the comments were regarding actions taken by
others.
In late October or early November, Velarde had a conversation with
Cofflin during which he told her that her processing times on disability
claims for the months of July and August of 1981 were the best among all
the Claims Representatives, and that if it were not for her performance
the office would not have met its goals, facts which Respondent
concedes. The par or goal for disability claims at that time was 45 or
48 days and 18 days for aged claims. Cofflin's processing times for
disability claims was 19.5 days in July and 38.33 days in August. Her
processing time for aged claims, calculated by management in August
only, was 11.5 days. Although Respondent maintains Cofflin's initial
claim performance was inferior, a review of Respondent's Exhibit 3
demonstrates the opposite: From the period January through September
1981, clearances for initial claims (aged plus disability) were as
follows: Cofflin 96, Black 88, Nunez 130, Landis 144.
Contrary to Cofflin, Fitzgerald testified that he spoke to Cofflin
about her work speed at this time, which Cofflin denies. In late
November or early December, when Velarde discovered that Cofflin was
noting or tallying, and then working on unscheduled overpayment cases
and that other employees were not, he used her example to tell all the
other employees to tally their unscheduled overpayment cases. Despite
the fact that Cofflin exceeded the national pars for completion of her
redeterminations caseload, Fitzgerald based his "B" rating, in part, in
the category of "Timeliness" on her redetermination performance and on
the fact she had not completed them by August. Her redetermination
performance also influenced his assessment of her ratings overall. I
credit Cofflin.
Fitzgerald admits that of a total of 19 memoranda issued to
employees, Cofflin received 16. Fitzgerald admits also that Cofflin and
Mendes were the only employees who filed grievances against him and
sought Union representation, and were also the only employees who
received numerous letters, in their files. Velarde insists that the
evaluation completed by Cofflin's previous supervisor Freeland was valid
even though it was vastly different from the one issued by Fitzgerald
just one year later. Velarde's explanation was that such a discrepancy
is acceptable to him because "that was the way the supervisor worked."
Velarde notified Freeland that he disagreed with him on the appraisal,
but admits he never told Cofflin she was not performing adequately. In
spite of all prior evaluations and despite the fact Cofflin was never
documented prior to May 1981, Velarde now believes the ratings on
Cofflin's 1980-81 evaluation were those she should have received all
along.
F. Saturday Overtime Procedures and the May 22, 1981, Memorandum
(Case No. 8-CA-1187)
Since at least November 1979, the procedure followed by Indio, office
supervisors to organize overtime work on Saturdays was for some
supervisor to informally announce the Saturday overtime to the staff,
and orally and informally inquire of employees whether they intended to
work the following Saturday. If an employee had indicated he or she
would work on Saturday, and failed to appear, there was no problem;
conversely, if the employee had not previously told the supervisor he or
she would work Saturday overtime, and then appeared to work on Saturday,
such work was allowed. The employees were not required to fill out
anything in writing.
Fitzgerald confirmed this, but contradicted Cofflin by asserting that
prior to May 22, overtime was announced at staff meetings. Fitzgerald
admitted that previously no punitive action was taken against an
employee who indicated they would perform overtime work, but who then
failed to appear at the appointed time.
On May 22, 1981, during a staff meeting conducted by Velarde and
attended by Fitzgerald, Saturday overtime was discussed. A memorandum
dated May 22, 1981 was distributed to the employees. The employees were
then told that they would thereafter have to fill out that memorandum
and submit it to management by Friday afternoon whenever they wished to
work overtime on Saturdays. If an employee failed to complete and
submit the form for Saturday overtime work they would not be permitted
to work that Saturday and would not be paid if they did work. The
document itself, entitled, "Change in Policy, Saturday Overtime"
reaffirms the above. This procedure remained in effect after May 22,
1981, and was never altered or abandoned. Both Fitzgerald and Velarde
testified that their reason for changing the procedures for Saturday
over time work was because previously employees would respond
affirmatively that they would work Saturday, but then would fail to
appear or conversely, would not respond and would appear for work. The
managers wanted to extract a commitment in advance from the employees.
Although Fitzgerald purported to say management had made exceptions to
the new requirement, he could not recall when he informed the staff of
this fact. The decision to make this change was Velarde's. The Union
was not notified in advance of the issuance of the May 22, 1981,
memorandum that employees in the Indio office would be required to
submit a written request for Saturday overtime work.
G. Unfair Labor Practice History of Velarde
Because of the remedy requested by the General Counsel, it is
necessary to review the labor relations history of the Indio office and
specifically the actions of Branch Manager Velarde.
In 1979, the Union filed unfair labor practice charges with the
Authority against Velarde concerning the Indio office which involved
alleged harassment of a Union representative, intimidation of unit
employees, and threats against employees for seeking the assistance of
the Union. After investigation by the Authority, the matter was
settled, a Notice was posted and Settlement Agreement signed in that
matter. Velarde apparently admits that he made the alleged statements
against the Union and that he attempted to bypass the Union as charged
in that matter.
Velarde also testified at a hearing in another unfair labor practice
matter, Case No. 8-CA-366, in which a decision was rendered by an
administrative law judge on May 19, 1981, finding that the Respondent
had violated the Statute by instituting a unilateral change, bypassing
the Union and discussing the change directly with unit employees.
H. Connection between Fitzgerald and Velarde
Ramon Velarde has been the Branch Manager in the Indio office since
March 1979. Robert Fitzgerald, who reports to Velarde, became the
operations supervisor in Indio on January 26, 1981, having previously
been a unit employee, but never a supervisor. Velarde insisted that
"how the operations runs" was Fitzgerald's responsibility and that he
has never instructed any of his supervisors, including Fitzgerald, to
take a specific action or "do it his way." Contrary to this, Velarde
also explained that it was his responsibility to train Fitzgerald
because he was new. Velarde noted that in the beginning, Fitzgerald was
"wet behind the ears," and needed a lot of direction, guidance and
instruction from Velarde on taking various personnel and supervisory
actions. Although he maintains that Fitzgerald took responsibility for
all personnel actions, when questioned further, Velarde disclosed that
Fitzgerald discussed all supervisory and personnel actions he took with
Velarde, including each of the memoranda given to Cofflin. Fitzgerald
confirms that he conferred with Velarde on every action he took
concerning the Indio employees, and that Velarde fully supported him in
every action against Cofflin up through September 2, 1981. Fitzgerald
added that he and Velarde discussed the letter referring Cofflin to
counseling prior to issuing it. However, beginning with the May
memoranda, Fitzgerald, not Velarde, issued each of the memoranda
received by Cofflin with one exception, where Velarde issued the
memorandum because Fitzgerald was in San Francisco. Without question,
Fitzgerald and Velarde were in frequent communication regarding the
running of the Indio office. This was confirmed by the unit employees
who described Fitzgerald and Velarde variously as "always together" that
"a path is run between the two offices" and "Velarde as the head and
Fitzgerald as the hand."
1. Credibility Determination of Charlotte Mendes
Charlotte D. Mendes, is a Data Review Technician at the Indio Office
and critical witness in the General Counsel's case. Her testimony is
necessary in either establishing or corroborating events which would
show violations of the Statute. Mendes, although under subpoena,
refused to appear at the hearing when it was initially convened on
January 13, 1981. However, without any real explanation she
involuntarily appeared and testified at the February 2, 1981 hearing.
Because her testimony, at that time, was contrary to the sworn statement
given to an Authority agent, in Mendes' own home under circumstances
which appear on the surface rather ordinary, on or about August 13,
1980, the General Counsel moved to have Mendes' sworn statement given to
the Authority agent "utilized and credited as substantive evidence."
Citing Alvin J. Bart and Co., Inc., 236 NLRB No. 242 (1979). Respondent
objected at the hearing to admission of the sworn statement and
conducted a voir dire examination to determine whether or not Mendes was
perhaps under pressure when she signed the documents. Based on her
responses, the undersigned saw no reason to find that the statement was
given under duress or that any pressure was applied in order to obtain
that statement.
At the hearing, Mendes was carefully observed. On the basis of her
demeanor; the evasive nature of her answers to both the General Counsel
and myself; and the sudden shift in her character when responding to
questions from Respondent's Counsel; her shifting reasons for some
actions taken by her and management officials; her apparent concern not
to offend Respondent; and, above all her frank admission that she had
lied about certain areas in the sworn statement, I cannot credit her
testimony or the sworn statement. Even if these observations were only
partially correct, they would result only in the impeachment of Mendes'
general capacity for truth and veracity. It would not warrant, however,
a further inference that any statement made by her, whether at or before
the hearing was true, for here her credibility is in serious doubt, and
there is no reason to believe that her earlier statements are more
accurate than her later testimony. Moreover, she admittedly lied with
respect to certain areas of the sworn statement. Accordingly, I find
only that Mendes cannot be credited in this matter and that her sworn
statement, although admitted into evidence, serves only to substantiate
my view that she is not a credible witness. Thus, I am unwilling to
credit a sworn statement in which the witness giving the statement
maintains that it contains statements which are absolutely not true.
2. Saturday Overtime
(Case No. 8-CA-1187)
It is well established in the public sector that an employer may not
change personnel policies, practices or working conditions without first
providing an exclusive representative advance notice of the change and
an opportunity to negotiate concerning the change and the impact of such
change. Department of Treasury, Internal Revenue Service, Jacksonville
District and National Treasury Employees Union, 3 FLRA 631 (1980); 78th
Division (Training), Kilmer USAR Center, Edison, New Jersey, 1 FLRA 836
(1979).
It is undisputed that no formal procedure existed at the Indio office
prior to May 22, 1981 for the organization of Saturday overtime work.
Employees prior to that time were admittedly free to show up or stay
away as desired, whether or not they had previously indicated they would
work on the Saturday. It is also undisputed that after May 22,
employees were required to fill out a slip indicating that they would
perform Saturday overtime work or they were not admitted to work or paid
for the work even though they altered.
Clearly, employees here had a certain amount of flexibility with
regard to whether or not they would work on Saturday overtime.
Requiring employees to submit a slip informing management whether they
would work most certainly restricted that flexibility. This restriction
without question constitutes a change in the procedures for reporting
Saturday overtime work. Such a change under existing law requires
advance notification to the exclusive representative and at least an
opportunity to bargain on the impact of the change. Failure to give
such notification and the opportunity to bargain violates section
7116(a)(1) and (5) of the Statute. Accordingly, it is found that
Respondent's conduct in changing the procedure for organization of
Saturday overtime, violates section 7116(a)(1) and (5) of the Statute as
alleged.
3. June 10, 1981 Incident
(Case No. 8-CA-1190)
The following account of this particular incident is based on the
credited testimony of Union representative Patricia Randles and partial
corroboration by Carol Cofflin. As previously noted, Charlotte Mendes,
around whom much of the incident involved, is specifically discredited.
Furthermore, based on the demeanor of other witnesses and the many
conflicts in statements, I am unable to credit such witnesses as Ramon
Velarde and Robert Fitzgerald.
In early June, Mendes asked the Union for assistance because she was
experiencing difficulties at work and had been informed by management
that she might be disciplined. Randles, the Union representative then
requested, from District Manager Martin Semel permission to meet with
Mendes and to attend a meeting with Mendes' managers to discuss the
situation.
On the morning of June 10, Randles went to the Indio office and
informed Office Manager Velarde of her purpose for being there.
Although she requested to speak with Mendes prior to their meeting with
management and had received permission to do so from Semel, Velarde
refused. Velarde yelled at Randles telling her to "get the hell out of
my office," and "get the hell out of my office or I'll have you thrown
out." Randles reminded him that she was on official business and
requested that he telephone Semel to verify her permission. Velarde
refused this request and also refused to allow Randles to use the
telephone to call Semel. According to Randles, this entire conversation
occurred in the middle of the Indio office, within the earshot of other
office employees.
Randles subsequently returned to the Palm Springs Office, talked with
Semel and the meeting set for that morning was eventually held that
afternoon in the Indio office. Semel states that the original agreement
for official time with Randles was for less time, but that she decided
that she needed or wanted more time and that he, because of an awful lot
of confusion did not notify Velarde of the change.
There is no dispute that Velarde verbally threw Randles out of his
office on this occasion. Respondent argues only that it was a mistake.
In my view, the mistake herein offers no excuse for the violation. As
the record shows, this occurrence is not an isolated incident but, part
of a larger problem in the Indio office. Randles sought to have Velarde
telephone Semel and even offered to do so herself to rectify this
misunderstanding. Velarde refused, but in a tone and before other unit
members that unquestionably belittled Randles.
I agree with the General Counsel that Velarde's actions in preventing
the grievance meeting, limiting Randles to 30 minutes and throwing her
out of his office interfered with protected rights and constitutes a
violation of section 7116(a)(1) of the Statute. Cf. Internal Revenue
Service and Brooklyn District Office, 6 FLRA No. 111 (1981); United
States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5
FLRA No. 97 (1981).
4. June 24, 1981 Incident
(Case No. 8-CA-1188)
Again, the credited testimony of Randles must be relied upon to
establish a violation, if any. For the same reasons already stated, the
testimony of both Mendes and Velarde is not credited. Fitzgerald, while
not specifically discredited, testified only that while he was at the
meeting he did not hear certain things said. Such testimony is of
little value in resolving the issue at hand. Moreover, Randles'
credited testimony is, that Fitzgerald was not present at the time
several statements pertinent to this violation were made.
The credited evidence reveals that in "off the record" statements,
Velarde told Randles that he felt she was out to "get him", that he was
"surprised at (Mendes) for requesting assistance," and that it upset him
that Mendes went to Randles for help. He further stated that he would
"see to it that life was miserable for (Mendes) because she had gone to
the Union," that Mendes would "pay" for going to the Union, and that she
would be sorry that she did.
During this conversation Velarde added that the "District was a
laughingstock because they had allowed the union," that semel was a
"fool" for letting the Union into his office and that he was "not going
to allow the Union in his office."
The substance of the above comments, although "off the record", were
made to Randles, the Union representative, and to a unit employee. The
statements contain threats of reprisal because an employee had gone to
the Union and threats of future reprisal for further contact with the
Union. Such conduct must be assumed to have influenced on Mendes, and
no doubt on other bargaining unit employees. Soon thereafter Mendes
apparently became involved in a scheme to extricate herself from this
unpleasant situation and Velarde's anger, as she sought to place a
considerable amount of distance between herself and the Union.
Based on the foregoing, it is found that Velarde's comments to
Randles and Mendes were impermissible and constitutes a violation of
section 7116(a)(1) of the Statute.
5. July 2, 1981 Incident
(Case No. 8-CA-1219)
Sometimes during the day of July 2, Cofflin met with Fitzgerald and
refused to sign a memorandum criticizing her work. Through Fitzgerald's
efforts Cofflin subsequently met with Velarde.
During their discussion, Velarde inquired of Cofflin, why she had
filed unfair labor practice charges. She asked Velarde to keep
Fitzgerald from harassing her. Velarde at one point told Cofflin,
"Well, after all you've done for me, how do you expect me to do good to
you? . . . You went to the Union and you started all these unfair
labor practices . . . As long as you go to the Union you will continue
to receive (memoranda)." Such a statement of future actions to be taken
against an employee on the heels of questioning her about having filed
unfair labor practice charges is without doubt threatening and coercive
in nature.
Accordingly, it is found that Velarde did indeed threaten Cofflin
with adverse memoranda for her participation in the filing of unfair
labor practice charges and that such conduct violates section 7116(a)(1)
of the Statute.
6. Whether Anti-Union Considerations Were a Motivating Factor in
Respondent's Actions Concerning Carol Cofflin
(Case No. 8-CA-20048)
Against the above background of unfair labor practices we turn to the
incidents involving Carol Cofflin. The record reveals that Carol
Cofflin is a Claims Representative in Respondent's Indio office and,
that Cofflin held several positions in other Social Security offices
before transferring to Indio in 1980. The record also disclosed that
prior to that time Cofflin had few complaints about her work
performance, absences, etc. In fact, Cofflin's performance evaluations,
prior to October 1981 revealed that she received no poor ratings in any
categories. Furthermore, the record did not establish, and Respondent
did not attempt to prove, that Cofflin's work was unsatisfactory prior
to her supervision by Robert Fitzgerald in the Indio office. Finally,
there is no question that Cofflin was engaged in protected activity for
sometime and that respondent's agents were aware of all of these
activities including testimony at a hearing on an unfair labor practice
case involving that office, grievances, unfair labor practice charges,
and giving statements to Authority agents.
The credited facts establish that starting around February 1981,
Cofflin could apparently do nothing right in the eyes of Fitzgerald. I
view many of the actions issued by Fitzgerald under Velarde's auspice,
such as constant memoranda to her personnel file, complaints about
interpersonal relations (particularly where the record reveals several
other such personal disputes between employees), complaints about her
work load, shifting redeterminations of Cofflin to another employee,
without any previous warning or for that matter without any particular
logic as an indication that someone in that office had a problem with
Cofflin, for some reason. These actions, as set out above, are indeed
punitive in nature but could well be management tools used to straighten
out Cofflin's work performance. I note in this respect that Fitzgerald
on one occasion locked Cofflin out of the building for being, as the
credited evidence shows, one minute late. On another occasion,
Fitzgerald recommended psychological counseling for Cofflin although
there is no apparent evidence on the record to indicate a justification
for such an extreme measure, particularly where Fitzgerald had been her
supervisor for only a very short period of time. A careful examination
of the record disclosed no reason for Respondent's motivation in
pursuing Cofflin with such diligence other than that she was engaged in
protected activity.
Respondent, of course, urges that Cofflin was being documented
because of work related shortcomings, including her performance, but
that no action was ever taken against her because of her performance or
lack of performance. In response to this, one need only point to
Cofflin's most recent performance evaluation by Fitzgerald and ask only,
what is her promotion or transfer potential with such a performance
evaluation.
Without recounting the numerous actions taken against Cofflin by a
supervisor who had only recently come into the office in that position
and who had only recently begun to supervise Cofflin, it is clear that
the record as a whole in this matter establishes a prima facie case that
Cofflin had engaged in protected activities, that Respondent was aware
of those activities and that, at least some of its actions against her
were motivated by anti-union consideration.
However, under Internal Revenue Service, Washington, D.C. 6 FLRA 23
(1981) Respondent has the opportunity to show by a preponderance of the
evidence that it would have taken the actions against Cofflin even in
the absence of union or protected activities. It is found that
Respondent did not, on this record, meet that burden. There are
numerous instances, in the record of interpersonal relationship
difficulties, tardiness, lateness, absences by other unit employees,
none of whom were documented, or locked out of the office or even
demeaned by a suggestion, on the record, that they undergo psychological
counseling. Only Cofflin and Mendes were documented during this period,
and when Mendes finally succumbed to Velarde's berating, even she was no
longer documented. In further support, it is noted, that Cofflin's
record differed little from her previous work and leave record in Indio
and that record, although not found to be exemplary by her previous
supervisor, was no reason to show the type concern that Fitzgerald found
with her work or absences almost immediately after he assumed his
position in Indio. Moreover, the timing of all Fitzgerald's actions in
relation to Cofflin's participation in protected activities leaves
little doubt that such actions were in retaliation for Cofflin's
engaging in some form of protected activity.
While it is true that Cofflin experienced difficulties in work
performance, and in her personal and medical life during 1981,
Respondent did not present one iota of evidence to suggest that her work
performance was affected to the extent that she should have been treated
any differently than any of the other employees who were late or absent
or even deficient in one work area or another. Record testimony of
other employees clearly indicates that Cofflin was indeed treated
differently. Furthermore, her supervisor Fitzgerald admittedly had not
documented other employees in his short tenure as a supervisor in Indio.
The question thus becomes whether she was treated differently because
of her union or protected activities or for some other reason, i.e.,
Fitzgerald did not like her personally. It is noted that Cofflin and
others testified at the unfair labor practice proceeding alleged to be
one of her protected activities, but that no action was taken against
the other employees who testified. Cofflin, however, is the only one of
those employees who continued to participate in protected activities
during 1981 and this made her a target for management retaliation.
The total circumstances of this matter leave no doubt that Respondent
has failed to demonstrate any real basis for many of its actions taken
against Cofflin. Further, it has failed in its attempt to show that
"but for" her protected activity, Cofflin would have received the
memoranda or the poor performance appraisal. Absent such a showing, it
is incumbent on the undersigned to find that Respondent's actions taken
against Cofflin were violative of section 7116(a)(1), (2), and (4) of
the Statute.
7. Disparaging Remarks about Union Representative
(Case No. 8-CA-1223)
It is alleged that Mendes met with District Manager Semel on July 6,
1981 and that during the course of that meeting Semel made disparaging
remarks about a prior union representative who was no longer employed by
Respondent and, in addition, told Mendes that if she continued to
request union assistance she would not be treated well.
Semel denies that either of these statements was made during the
course of the meeting. Mendes, of course, has not been credited in this
matter. Based on the record evidence this allegation of the complaint
must be dismissed. Accordingly, it is found that the evidence is
insufficient to establish that Respondent violated section 7116(a)(1) by
the statements alleged above.
8. Formal Discussion of July 6, 1981, Mendes Withdraws Her Grievance
(Case No. 8-CA-1223)
Semel testified that he held that meeting pursuant to a request from
Mendes. Semel also stated that Mendes never disavowed her Union
representative but that he "received word that (Mendes) was interested
in talking to me about some grievances" and, that while in Indio on
other matters he met with Mendes and Velarde, in Velarde's office.
According to Semel, Mendes merely stated that she wanted to withdraw the
grievances that she had at that time. He told Mendes that "if that's
all she wanted, she should put it in writing in a (memorandum) to me."
Several days thereafter Mendes with the help of Velarde prepared a
memorandum to Semel which was subsequently accepted. Mendes memorandum
apparently accomplished what she had set out to do.
Velarde's testimony reveals that Mendes had become dissatisfied with
the Union. Absent her testimony we can only suspect Mendes motives.
Had her dealings with Velarde, in which he expressed his disdain for the
Union, convinced her that it really was unsound to deal with management
through the Union. This is one plausible explanation for Mendes action
in approaching management, on her own, after she had become heavily
involved with the Union. Could Mendes have advanced a scheme to
ingratiate herself with Velarde, her Branch Manager? If so, where did
she start? With the benevolent Semel, who, after all, Velarde had
labeled a "fool". In any event this entire scenario was without doubt
orchestrated by Mendes. Semel used bad judgment in dealing with her
directly, as he was subsequently informed by other Respondent officials
and Velarde, was also a willing pawn in Mendes scheme to extricate
herself from a situation which had, probably in her mind gotten out of
hand.
Even if the actions of Velarde and Semel were good intentioned, it is
found that based on their testimony they did indeed deal directly with
Mendes concerning a grievance.
The General Counsel alleges that Mendes' discussion of her grievance
with Semel and Velarde without the presence of her Union representative
was a formal discussion and that the discussion was indeed violative of
the Statute.
Section 7114(a)(2)(A) states:
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. . . .
Discussion of a grievance with an employee where the exclusive
representative is not afforded an opportunity to be present although
that representative initiated the process is in derogation of its status
as the employees' representative. Conduct such as occurred between the
employee and management officials where management officials offer to
resolve a pending grievance without the presence of the exclusive
representative also in my view, constitutes a bypass of the Union as
exclusive representative. Furthermore, the method by which Mendes
agreed to write a memorandum to Semel constituted negotiations on how
her grievance would be resolved. Negotiations such as occurred here are
expressly prohibited by the Statutory language found in 7114(a)(2)(A).
This discussion dealt with a specific employee grievance and to
proceed without the exclusive representative being involved contravenes
section 7114(a)(2)(A) and clearly evidenced the need for the exclusive
representatives presence. As such the discussion constituted a formal
discussion without the Union's presence in violation of section
7116(a)(1), (5), and (8) of the Statute. Such a violation would lie
even where the discussion or request for discussion is initiated by an
employee.
Having found that Respondent violated section 7116(a)(1), (2), (4),
(5), and (8) of the Statute, an appropriate remedy must be considered.
The General Counsel urges that an extraordinary remedy is necessary
because of the serious nature of repeated conduct by Branch Manager
Ramon Velarde. In support of its position the General Counsel cites
what it considers repetitive and blatant acts of misconduct by Velarde,
including a breach of a Settlement Agreement and Notice Posting
involving violative statements similar to those in this matter and an
administrative law judge's decision finding the Indio office in
violation of the Statute, by making a unilateral change in working
conditions and by conducting a formal discussion. The General Counsel
contends that the normal remedies afforded by the Statute would not
deter Velarde from repeated misconduct.
The General Counsel also requests a broader posting than the Indio
office and other extraordinary actions ostensibly to correct the
violations herein.
I see no necessity for such a remedy at this time. It is noted that
the General Counsel cites such cases as J.P. Stevens and Co., Inc., 157
NLRB No. 869, 61 LRRM 1437 (1966) to support its position. Surely the
General Counsel is aware that the National Labor Relations Board took
many years and many violations by J.P. Stevens to arrive at a remedy of
the significance and impact which it finally approved in the J.P.
Stevens, case, supra.
Taking this matter in its proper focus, there have indeed been
numerous unfair labor practices committed, in my view, in the Indio,
California office. Rather severe violations, but over a short period of
time and all with an outgrowth from a limited number of incidents. I
see no violations of the magnitude or in a time frame set out in the
cases cited by the General Counsel. It has not been established that
Velarde is a recidivist or that such actions will indeed recur. Thus, I
see no reason to treat this matter as other than a consolidated group of
cases which occurred during a short period of time and which do not
establish any clear tendency to violate the Statute by Velarde or any
other management member of the Indio office.
In any event, the Indio office should be clearly aware that such
extraordinary remedies are available; that employee rights will indeed
be protected; and, that a continued course of conduct such as found in
this matter could result in the imposition of an extraordinary remedy to
prevent recurrence of such violations in its Indio office.
Based on the foregoing, it is recommended that the Authority adopt
the following Order. /10/
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 Social Security Administration,
Baltimore, Maryland:
1. Cease and desist from:
(a) Preventing representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees from meeting with unit employees on representational matters,
or ordering them out of offices, or threatening to have them thrown out.
(b) Threatening unit employees by telling them that action would not
have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
(c) Threatening unit employees by telling them that they would "pay"
for having gone to the American Federation of Government Employees,
AFL-CIO, or that we would "get even" with any employee who went to the
American Federation of Government Employees, AFL-CIO, or that we would
never allow the American Federation of Government Employees, AFL-CIO, in
our offices.
(d) Threatening unit employees by telling them we will not help them
because they had filed unfair labor practice charges.
(e) Discriminating against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
the employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
her performance evaluation because the employee seeks the assistance of
a union representative or gives information or testifies in connection
with the investigation of unfair labor practices.
(f) Changing the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
(g) 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) Remove from employee Carol Cofflin's personnel file a memorandum
dated October 21, 1981, admonishing the quality of her work, and rescind
her performance evaluation for the period October 1, 1980 to September
30, 1981.
(b) Prepare a new performance appraisal for employee Carol Cofflin
for the period October 1, 1980 to September 30, 1981, without taking
into consideration any of her protected activity guaranteed by the
Federal Service Labor-Management Relations Statute.
(c) Rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
(d) Upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
It is further Ordered, that the allegation in Case No. 8-CA-1223,
that Respondent disparaged a former Union representative, be and it
hereby is Dismissed.
ELI NASH, JR.
Administrative Law Judge
Date: September 30, 1982
Washington, D.C.
WE WILL NOT prevent representatives of the American Federation of
Government Employees, AFL-CIO, the exclusive representative of our
employees from meeting with unit employees on representational matters,
or order them out of our offices, or threaten to have them thrown out.
WE WILL NOT threaten unit employees by telling them that action would
not have been taken against them, or they would have been left alone, if
they had not sought the assistance of the American Federation of
Government Employees, AFL-CIO, or that as long as the employee continues
to request the assistance of the American Federation of Government
Employees, AFL-CIO, the employee would continue to receive memoranda
criticizing the employee's performance.
WE WILL NOT threaten unit employees by telling them that they would
"pay" for having gone to the American Federation of Government
Employees, AFL-CIO, or that we would "get even" with an employee who
went to the American Federation of Government Employees, AFL-CIO, or
that we would never allow the American Federation of Government
Employees, AFL-CIO, in our offices.
WE WILL NOT threaten unit employees by telling them we will not help
them because they had filed unfair labor practice charges.
WE WILL NOT discriminate against unit employees by reassigning
redetermination caseloads to other employees, by placing memoranda in
the employee's personnel file admonishing the employee about the quality
of his or her work, or by giving the employee unsatisfactory ratings on
his or her performance evaluation because the employee seeks the
assistance of his or her union representative or gives information or
testifies in connection with the investigation of unfair labor
practices.
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed under the Federal
Service Labor-Management Relations Statute.
WE WILL NOT change the working conditions of employees in the Indio,
California, Branch Office by altering the procedures to be followed in
working overtime on Saturdays without first notifying the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to negotiate over that change.
WE WILL NOT hold meetings with unit employees concerning grievances,
personnel policies, or practices or other conditions of employment and
thereby deal directly with employees concerning settlement of grievances
or complaints without first notifying the American Federation of
Government Employees, AFL-CIO, and affording it an opportunity to be
present.
WE WILL remove from employee Carol Cofflin's personnel file a
memorandum dated October 21, 1981, admonishing the quality of her work,
and will rescind her performance evaluation for the period October 1,
1980 to September 30, 1981.
WE WILL prepare a new performance appraisal for employee Carol
Cofflin for the period October 1, 1980 to September 30, 1981, without
taking into consideration any of her protected activities guaranteed by
the Federal Service Labor-Management Relations Statute.
WE WILL rescind the requirement established on May 22, 1981, that
employees submit written requests each Friday in order to work overtime
on Saturday.
WE WILL, upon request, negotiate with the American Federation of
Government Employees, AFL-CIO, over any intended changes in the
procedures to be followed in working overtime on Saturday.
(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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region 8 for the Federal Labor Relations Authority whose
address is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA,
90071, and whose telephone number is: (213) 688-3805.
/1/ Noting particularly the absence of any exceptions thereto, the
Authority adopts the Judge's conclusion in Case No. 8-CA-1223 that the
Respondent failed to comply with section 7114(a)(2)(A) of the Statute by
holding a formal discussion with a unit employee concerning her
grievance without notifying her exclusive representative of the meeting
and affording the latter an opportunity to be present. In this regard,
however, we do not adopt the Judge's additional statements concerning
the existence of a bypass and prohibited negotiations which he made in
connection with his finding that the Respondent had failed to comply
with section 7114(a)(2)(A) in the circumstances of this case.
/2/ The Authority agrees with the Judge that while a recurrence of
the unlawful conduct found to have been committed by the Respondent may
warrant in some future case, the issuance of an extraordinary remedy
pursuant to the Authority's broad remedial discretion under the Statute,
such a remedy as sought by the General Counsel is not warranted in the
circumstances herein where such a recurrence is not involved.
/3/ The Judge's recommended Order has been amended to correct certain
inadvertent omissions and to modify the Judge's recommended Order and
Notice to be consistent with his findings.
/4/ The Amended Consolidated Complaint also consolidated Case No.
8-CA-20054, however, that matter was settled prior to hearing.
/5/ Mendes' affidavit points out that she was still under the belief
that the letter she had written was ineffective in getting the memoranda
removed from her file and the AWOL removed from her record. It was not
until November 1981 that Mendes learned that these corrective actions
had been taken.
/6/ The memorandum Fitzgerald issued Cofflin dated September 3 was
inaccurate in that it stated Cofflin remained at lunch in the breakroom
for the entire 30 minutes, completed her lunch and that no interview
prevented her from going to lunch earlier.
/7/ Cofflin estimated that she would have been able to complete these
redeterminations within one and a half to two months. Nunez started the
redeterminations four weeks after they were transferred and was still
working on them the week before the trial. Fitzgerald, first testified
that there is no specific percentile goal for redetermination completion
which an employee must meet. He admitted that Cofflin exceeded the
national goals, but that Semel had set a goal of 100 percent completion
of redeterminations by the end of August, and because she failed to
complete her redeterminations by August she was therefore not timely.
He then stated that meeting the national standards was irrelevant to a
determination of whether she was slow in processing her
redeterminations. Fitzgerald admitted that Cofflin's redetermination
cases were very difficult.
/8/ Although Cofflin who obviously had a continuing medical problem
had previous discussions with her supervisors concerning the subject of
leave, the substance of those talks was simply to encourage her to
conserve leave in case she would need it. Although Cofflin asked her
supervisors, at those times, whether she was abusing her leave, their
response was that she was not. Although she offered information such as
receipts and doctor's certificates to Fitzgerald and Velarde to justify
her use of leave, they told her they did not want the proofs and that
they were not necessary.
/9/ Cofflin used 2 3/4 hours emergency leave allegedly to go to her
daughter's school between October 2 and 21, but apparently was given
permission to do so by her supervisor, took that leave without incident
and received no notice from her supervisors that it was improper or
would be used against her.
/10/ The General Counsel's unopposed motion to correct the transcript
is granted as reflected in APPENDIX B.
14 FLRA No. 79; Case No. O-AR-440; May 11, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1652.01 Disagreement With Arbitrator's Reasoning DIGEST NOTES
The dispute in this matter concerns the separation of a probationary
employee after a number of efforts to assign him work he could perform
without also experiencing discomfort from fiberglass and fumes proved
unsuccessful. The arbitrator found that the activity's separation of
the grievant was proper under the circumstances; that the activity had
applied the regulations pertaining to job related injury situations;
that the activity had not violated the parties' agreement. In its
exceptions, the union alleged that the award is contrary to law, rule or
regulation. However, in support, the union reiterated the same
arguments which it made before the arbitrator as to what constitutes
fair and equitable application of the regulations. The Authority denied
the exceptions because the union failed to establish that the award is
contrary to law, rule or regulation. The Authority held that the trust
of the union's exceptions constituted nothing more than disagreement
with the arbitrator's interpretation and application of the parties'
agreement as well as with his reasoning and conclusions in resolving the
issue before him.
NAVAL AIR REWORK FACILITY,
CHERRY POINT, NORTH CAROLINA
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 2297
Case No. O-AR-440
This matter is before the Authority on an exception to the award of
Arbitrator Hoyt N. Wheeler 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.
The dispute in this matter arose when the Activity separated the
grievant during his probationary period after a number of efforts to
assign him to work he could perform without also experiencing discomfort
from fiberglass or fumes proved unsuccessful. The issue before the
Arbitrator was whether the grievant was properly discharged in
accordance with the parties' collective bargaining agreement and
applicable regulations. /1/
The Arbitrator essentially found that the Activity's separation of
the grievant was proper under the circumstances and, further, that the
Activity had applied the regulations pertaining to job related injury
situations, which were relied upon by the Union, "fairly and equitably"
as required by the parties' agreement. The Arbitrator concluded that
the Activity had not violated the agreement and therefore denied the
grievance.
In its exception, the Union alleges that the award is contrary to
law, rule or regulation. In support of its exception, the Union
essentially reiterates the same arguments which it made before the
Arbitrator as to what constitutes fair and equitable application of the
regulations relied upon in the grievant's case and asserts that the
Arbitrator erred by finding otherwise.
Upon careful consideration of the entire record before the Authority,
the Authority concludes that the Union has failed to establish that the
award is contrary to law, rule or regulation. It is clear that the
Union is merely seeking to relitigate the merits of the case before the
Authority since the thrust of the Union's exception constitutes nothing
more than disagreement with the Arbitrator's interpretation and
application of the "fairly and equitably" standard set forth in the
parties' agreement, as well as with his reasoning and conclusions in
resolving the issue before him. It is well-established that such
disagreement provides no basis for finding an award deficient. E.g.,
American Federation of Government Employees, Local 1210 and Immigration
and Naturalization Service, 8 FLRA No. 17 (1982); U.S. Department of
Housing and Urban Development and American Federation of Government
Employees, AFL-CIO, 12 FLRA No. 116 (1983).
Accordingly, the Union's exception is denied. Issued, Washington,
D.C., May 11, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ The issue of whether the grievant's termination during his
probationary period was grievable and arbitrable was not raised before
the Arbitrator or the Authority. Therefore, and in view of our
disposition of the merits of the Union's exception, it is not necessary
for the Authority to address the applicability in this case of the
decision of the U.S. Court of Appeals for the District of Columbia
Circuit in Department of Justice, Immigration and Naturalization Service
v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), or
the Authority's recent decision in U.S. Department of Labor,
Labor-Management Services Administration, Cleveland, Ohio and National
Union of Compliance Officers, 13 FLRA No. 109 (1984).
14 FLRA No. 78; Case No. 9-CA-401; May 10, 1984.
DIGEST HEADINGS
4000. UNFAIR LABOR PRACTICE: AGENCY
4500. Refusal to Negotiate DIGEST NOTES
The Authority adopted the ALJ's decision that the agency violated
Sec. 7116(a)(1) and (5) of the Statute when, without prior notice to the
union, it unilaterally changed its past practice of not requiring
employees to call in again on the second day of sick leave by enforcing
a new call-in procedure.
The Authority found that a meeting called and conducted by a first
line supervisor on his own initiative, with no other management
representative being present, to instruct his several immediate
subordinates on the agency leave policy was not a formal discussion
within the meaning of Sec. 7114(a)(2)(A) of the Statute and set aside
the ALJ's finding to the contrary. Consequently, the agency's failure
to provide the union notice and an opportunity to be present does not
constitute a violation of Sec. 7116(a)(1) and (8) of the Statute.
Where the record failed to establish that the supervisor either
attempted to negotiate or to otherwise deal directly with employees
concerning the agency's change in the sick leave call-in practice at a
meeting called by that supervisor, the Authority set aside the ALJ's
finding that a bypass occurred.
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT TRACY
TRACY, CALIFORNIA
LABORERS INTERNATIONAL UNION
LOCAL 1276, AFL-CIO
Case No. 9-CA-401
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. Exceptions to the Judge's Decision were filed by
the General Counsel and the Respondent, and the General Counsel filed an
opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), 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 in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommendations, as
modified herein.
As found by the Judge, Respondent's supervisor held a meeting on
March 12, 1980, with five or six unit employees under his supervision
during which he announced a change in the established sick leave call-in
procedure. The General Counsel's complaint alleged that Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by changing a
past practice with regard to sick leave call-in without giving notice
and an opportunity to bargain to the Charging Party, by holding a formal
discussion with unit employees without providing an opportunity for the
employees' exclusive representative to be present, and by bargaining
directly with unit employees concerning their conditions of employment
in derogation of the status of the exclusive representative.
In agreement with the Judge, the Authority concludes that the
Respondent violated section 7116(a)(1) and (5) of the Statute when,
without prior notice to the Union, it unilaterally changed its past
practice with regard to sick leave call-in procedures. Thus, the record
supports the Judge's finding that a past practice had been established
of not requiring employees to call in again on the second day of sick
leave, and that the Respondent unilaterally changed this practice when
its supervisors began enforcing a new call-in procedure in March 1980.
/1/
The Authority will next consider whether the meeting in question held
to announce what amounted to a unilateral change in personnel policies
and practices in violation of the Statute also constituted separate
violations of the Statute because it was a formal discussion within the
meaning of section 7114(a)(2)(A) of the Statute /2/ and/or because it
evidenced an attempt to bypass the exclusive representative and deal
directly with unit employees. The Judge found that the meeting was a
formal discussion within the meaning of section 7114(a)(2)(A) of the
Statute and concluded that Respondent's failure to give the Union prior
notice and an opportunity to be represented constituted a separate
violation of section 7116(a)(1) and (8) of the Statute. Additionally,
the Judge concluded that this meeting constituted a bypass of the Union
in derogation of its status as the exclusive representative of the
bargaining unit employees, a further separate violation of section
7116(a)(1) and (5) of the Statute. The Authority disagrees on both
points.
With respect to the formal discussion issue, the Judge found that the
Union was entitled to attend based on the fact that the substance of the
supervisor's announcement concerned a condition of employment. However,
under section 7114(a)(2)(A) of the Statute, the fact that a discussion
concerns a "grievance or any personnel policy or practices or other
general condition of employment" is not the sole determining factor of
whether an exclusive representative shall be given the opportunity to be
represented. The discussion must also be formal in nature.
In Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco, California,
10 FLRA 115 (1982), the Authority dismissed a complaint based on the
General Counsel's failure to meet the burden of proving that the
meetings in question were formal discussions within the meaning of
section 7114(a)(2)(A) of the Statute. In so doing, the Authority noted
a number of factors relevant to a determination of whether meetings are
in fact "formal" in nature. These are: (1) whether the individual who
held the discussions is merely a first-level supervisor or is higher in
the management hierarchy; (2) whether any other management
representatives attended; (3) where the individual meetings took place
(i.e., in the supervisor's office, at each employee's desk, or
elsewhere); (4) how long the meetings lasted; (5) how the meetings
were called (i.e., with formal advance written notice or more
spontaneously and informally); (6) whether a formal agenda was
established for the meetings; (7) whether each employee's attendance
was mandatory; and (8) the manner in which the meetings were conducted
(i.e., whether the employee's identity and comments were noted or
transcribed). The foregoing list was not intended to be exhaustive.
Other factors may be identified and applied as appropriate in a
particular case. Thus, in determining formality, the Authority will
consider the totality of the facts and circumstances presented.
Upon consideration of the record herein, the Authority concludes that
the March 12, 1980 meeting was not "formal" in nature. In this regard,
the Authority notes that the meeting in question was called and
conducted by a first line supervisor on his own initiative, with no
other management representative being present, to instruct his several
immediate subordinates on the Agency leave policy. The meeting was not
scheduled in advance. The meeting was held in the supervisor's office
adjacent to the employees' work location, lasted no more than 10
minutes, and had no formal agenda. The meeting was, in essence and
effect, a meeting held to announce what amounted to a unilateral change
in personnel policies and practices which change was itself in violation
of the Statute. Accordingly, the Authority finds that the meeting was
not a formal discussion within the meaning of section 7114(a)(2)(A) of
the Statute and that the Respondent's failure to provide the Union with
an opportunity to be present was not violative of section 7116(a)(1) and
(8) of the Statute, and the Judge's finding to the contrary must be set
aside.
With respect to the issue of alleged bypass, the Authority notes that
to establish a bypass, it is incumbent on the General Counsel to prove
that the Respondent attempted to deal directly with employees over
conditions of employment. As the record fails to establish that the
supervisor either attempted to negotiate or to otherwise deal directly
with employees concerning the change in the sick leave call-in practice
at the meeting on March 12, 1980, the Authority concludes that the
General Counsel has failed to establish that an unlawful bypass
occurred. Accordingly, the Judge's finding of a violation in this
regard must be set aside. /3/
With respect to a remedy for the violation found herein, the General
Counsel excepted to the Judge's Recommended Order in this regard insofar
as it only required the Respondent to negotiate with respect to the
impact and implementation of the decision to change the established sick
leave call-in practice. The General Counsel seeks an order requiring
the Respondent to reinstitute the preexisting policy and to bargain with
the Union concerning the decision itself. Respondent, in its
exceptions, argues that such an order would be improper based on the
parties' subsequent agreement covering sick leave call-in procedures.
Noting particularly that Respondent's decision itself concerned a
unilateral change of a condition of employment and that it has not been
contended nor does it otherwise appear that the matter was outside the
duty to bargain, the Authority concludes that the remedy sought by the
General Counsel is appropriate, subject to any subsequent agreement
which may have been reached by the parties concerning the change. Thus,
the Authority has modified the Judge's Order accordingly. See Army and
Air Force Exchange Service (AAFES), Fort Carson, Colorado, 10 FLRA 235
(1982).
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 Logistics Agency, Defense Depot
Tracy, Tracy, California shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to established sick
leave call-in practices without providing prior notice to, and, upon
request, bargaining with the Laborers International Union, Local 1276,
AFL-CIO, the exclusive representative of its employees.
(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) Reinstitute the practice in effect prior to March 1980 of
requiring employees to call-in only on the first day they are on sick
leave unless such practice has already been modified or adopted in a
manner consistent with the Statute.
(b) Make whole any employee adversely affected by the unlawful change
in call-in practice for that period of time preceding either the
effectuation of any subsequent agreement by the parties with regard to
such practice, or the reinstitution of the practice pursuant to this
Order, whichever occurs first.
(c) Notify the Laborers International Union, Local 1276, AFL-CIO, of
any intended change in established sick leave call-in practices and,
upon request, bargain in good faith with respect to such intended
change.
(d) Post at its Defense Depot Tracy, Tracy, California 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 Depot Director, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 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.
IT IS FURTHER ORDERED that the other allegations of the complaint in
Case No. 9-CA-401 be, and they hereby are, dismissed. Issued,
Washington, D.C., May 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
We will not unilaterally institute changes with respect to
established sick leave call-in practices without providing prior notice
to, and, upon request, bargaining with the Laborers International Union,
Local 1276, AFL-CIO, the exclusive representative of our employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL reinstitute the practice in effect prior to March 1980 of
requiring employees to call-in only on the first day they are on sick
leave unless such practice has already been modified or adopted in a
manner consistent with the Statute.
WE WILL make whole any employee adversely affected by the unlawful
change in sick leave call-in practice for that period of time preceding
either the effectuation of any subsequent agreement by the parties with
regard to such practice, or the reinstitution of the practice pursuant
to this Notice, whichever occurs first.
WE WILL notify the Laborers International Union, Local 1276, AFL-CIO,
of any intended change in established sick leave call-in practices and,
upon request, bargain in good faith with respect to such intended
change.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108, and
whose telephone number is: (415) 556-8106.
Case No.: 9-CA-401
Richard H. Kaake, Esq.
For the Respondent
Stephanie Arthur, Esq.
For the General Counsel
Before: ELI NASH, JR.
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., hereinafter
called the Statute, as a result of an unfair labor practice charge filed
on March 25, 1980. The complaint, issued on June 25, 1980, alleged that
Defense Logistics Agency, Defense Depot Tracy, Tracy, California,
hereinafter referred to as the Depot or Respondent, violated section
7116(a)(1), (5) and (8) of the Statute by changing a past practice with
regard to sick leave call-in without giving notice and an opportunity to
bargain to Laborers International Union, Local 1276, AFL-CIO,
hereinafter called the Union, and by holding a formal discussion with
unit employees without providing an opportunity for the employees
exclusive representative to be present.
A hearing was held in this matter before the undersigned in San
Francisco, California, on August 14, 1980. All parties were represented
by counsel and afforded full opportunity to be heard, adduce relevant
evidence, and examine and cross-examine witnesses. All parties filed
briefs which have been duly considered.
Based upon the entire record herein, including my observation of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, I make the following findings of fact,
conclusions of law, and Order.
At all times material herein, a collective bargaining agreement has
been in effect between the Union and Respondent, covering a unit of all
non-supervisory Wage Grade employees at the Tracy Depot.
On or about March 12, 1980, supervisor Richard McCormick held a
meeting with 5 or 6 unit employees under his supervision in Warehouse 21
during which he announced a change in the established sick leave call-in
practice. According to McCormick, he was having a problem with
employees requesting all kinds of leave and, about that time, he had a
particular problem with an employee who had called in sick but had
failed to call back the next day although instructed to do so by
McCormick. When the employee explained that he had not understood
McCormick's instruction to call back, McCormick decided to call his
employees together and instruct them on leave policy. McCormick
testified that he "had different employees working for me applying for
leave in different ways," and that, "it seemed as though they did not
understand what the Depot policy actually was".
During the course of the meeting, McCormick instructed the employees
on how to obtain annual, advanced sick, emergency annual and sick leave.
McCormick did not give the Union any advance notice of this meeting.
However, Tom Blas, who was under McCormick's supervision and was the
union shop steward for Warehouse 21 was present. McCormick told the
employees that he was "reaffirming Depot policy on calling in for leave"
and employees would have to call back and request leave each day of
their absence or be subject to disciplinary action. McCormick added
that this was not changing anything. Upon finishing his instructions
some of the employees questioned McCormick concerning the change in
call-in policy and indicated that they should only have to call in the
first day as they had done in the past. According to McCormick, an
employee Dennis Friend stated that the Depot policy had always been that
way. One employee, Debra Shrenk commented "I thought that we had three
days when we called in." Union steward Blas specifically asked McCormick
if he was changing Depot policy on calling in and McCormick replied that
he was not. Steward Blas testified that during the three years he was
employed at the Depot, until McCormick announced this so-called Depot
policy on March 12, 1980, it was his understanding that employees were
required to call-in only on the first day of sick leave and that, in
fact, was the practice he had followed.
During this same period of time, Bill Arnolfo, a warehouseman in
Warehouse 10, Stock Readiness Branch and then a union steward, began
hearing rumors regarding a change in the sick leave call-in procedure
and, about the middle of March, was approached by an employee who wanted
to know why he was being required to call in for sick leave everyday.
Arnolfo testified that, he understood the sick leave call-in procedure
was to call the first day of absence-- indeed, that this was the
procedure that management had told him to follow and which he had been
following since he first came to work at the Depot in 1972.
Steward Arnolfo then arranged to see the Branch Chief, Mr. Marino
about this change in procedure. According to Arnolfo, Mr. Marino
advised him that in accordance with a Supervisor's "By-Line" dated
August or September of 1979, employees were now required to call in each
day of their absence. Arnolfo told Marino that he did not agree with
this change, but that if that was what was going to be enforced, he
thought it only fair that the new policy be explained to the employees.
Also, Arnolfo told Marino, he wanted to avoid the situation where an
employee relying on his understanding of the past practice, failed to
call-in the second day and was placed on AWOL.
Thereafter, Marino's foremen Alvarez and Martinez each met with their
own group of unit employees to inform them of the change in sick leave
call-in procedure. Arnolfo was employed in Alvarez's group and attended
the meeting. Alvarez merely read the Supervisor's "By-Line" to the
employees and told them that there were going to be new requirements
with regard to calling in for sick leave.
Both during and after the meeting, employees complained about the new
procedure. When asked, Arnolfo told one employee that management had
plans to put employees who did not comply with the call-in procedure on
AWOL status and advised the employee to do as he was told. Further,
Arnolfo testified that he overheard a supervisor tell an employee over
the telephone that he would have to call back the next day or be put on
AWOL status.
The Union learned of the change in the Depot sick leave call in
practice when Union Steward Tom Blas reported to Chief Steward Joe
Delozier the policy which had been announced at McCormick's meeting.
The call-in procedure prior to March 1980, according to employee
Euleta McCurry, was told her when she was first employed at the Depot
approximately thirteen years before, she was advised at that time by her
supervisor that she was only required to call to report her absence on
the first day, although after three days she would have to bring a note
from her doctor. She stated that this was the procedure she had
followed during her entire employment at the Depot, /4/ and she has yet
to be told to do otherwise.
Steward Arnolfo, a warehouseman in the Stock Readiness Branch,
Warehouse 10, and currently Chief Shop Steward, recalls that when he
first began work at the Depot in 1972, he was advised by his supervisor
that if he were sick he was expected to call in the first day of absence
after which he would be carried on sick leave. Arnolfo also testified
that this was the identical procedure he had followed when he worked in
the Receiving Division, Shipping, Commissary Store, Bin Operations, and
until March, 1980, in Stock Readiness. Steward Tom Blas testified that
he had followed the first day call-in practice under several different
supervisors during the three years he worked at the Depot. Joe
Delozier, until shortly before the hearing, employed as a packer and
Chief Shop Steward at the Depot, testified that he had followed the
first day only call-in procedure in three different warehouses and under
many different supervisors from the time he began work at the Depot in
1974 until he left.
General Equipment Inspector Foreman, Leonard P. Lester, Sr. testified
that he understood the policy to be "everyday they are off they are
supposed to call-in." Lester states that he had applied this policy
since shortly after July 1979 when he became a supervisor.
Lloyd Kinser, a supervisor in Bin Packing, states that he has been
applying the policy as set out in the August 1979, "By-Line" and told
his employees when they called for sick leave "if they are not going to
be in tomorrow, would you please give me a call." The "By-Line"
announcement previously referred to read as follows:
With a true emergency or illness, do not assume your supervisor
can read your mind. A brief phone call can often result in
understanding and approval of your problem. Communication with
your supervisor, or his designated representative in the absence
of the supervisor, on each and every day of absence is a
prerequisite to leave approval, unless your supervisor has
approved subsequent days of absence.
Branch Chief, Manual Carrillo, Jr., stated that the current policy of
the Depot was:
"through an agreement with the supervisor, when they call for
the duration of the leave, it may be one day, it may be several,
it depends on the supervisor and the individual and, if more time
is granted on the first day then he does not have to call the
second day."
Mr. Carrillo also stated his interpretation of the parties negotiated
agreement concerning call-in procedures. /5/ Carrillo stated that his
interpretation of Article X as follows:
"the first four hours on the day in question would be the first
day. Once the leave is approved for that day it is only for that
day and, subsequent days become the next four hours for the next
leave duration because it has been approved for the one day only.
The next day would begin another day, another four hours."
Finally, Respondent presented testimony from two employees, Henry E.
Simmons and Dennis L. Friend that neither felt the requirement that an
employee call-in each day of sick leave was a change in past policy.
Respondent moved to dismiss the complaint in this matter as being
untimely filed and as involving a matter of contract interpretation
which should be resolved under procedures agreed to by the parties in
their collective bargaining agreement.
First, Respondent alleges that the Authority lacks jurisdiction in
the matter because the complaint is based on an allegation of an unfair
labor practice which occurred more than six months before the filing of
the charge with the Authority, and pursuant to provisions of 5 U.S.C.
7118(a)(4)(A), such issues may not be raised as an unfair labor
practice. /6/ At the hearing, Respondent contended that on or around
March 6, 1980 it merely sought to enforce a practice or well publicized
policy on sick leave call-in which was clearly acknowledged in Agency
publications around August 1979 and that the publication predated the
charge filed on March 25, 1980, by more than six months. In essence,
Respondent contends that the action about which the Union complains
occurred in August 1979.
In this respect, Respondent urges that there was no failure to
perform a duty owed or concealment as provided under Sec. 7118(a)(4)(A)
since the agency publication Depot Personnel Message was distributed to
all employees and to the Union about August 24, 1979.
The Union's Chief Steward in August 1979, Joe Delozier denied
receiving a copy of the Depot Personnel Message and did not recall
seeing the official Depot publication stating the Agency's position on
sick leave call-in. Further, none of the employees who testified
indicated that any notification was given to the Union before the
publication was distributed or before the new policy was implemented.
More importantly, there is no indication from the record that
Respondent's supervisors were enforcing the new call-in policy on other
than a sporadic basis until sometime around March 1980 at which time
employee began to realize that a change in call-in procedures was being
enforced by certain supervisors. Finally, the so-called policy was not
as obvious as Respondent maintains. It is noted in this regard that the
policy was not contained in the Depot article entitled "Sick Leave and
You" under which an employee or the Union would likely look, but was in
an article entitled "AWOL is a Curable Disease." An article, in fact,
unlikely to be read by any employee who had been consistently following
the established practice of calling in on the first day of illness.
Secondly, Respondent now maintains, in its brief, that the dispute
should be referred under the negotiated agreement for hearing under the
applicable grievance and arbitration machinery. If this matter involved
a question of interpretation involving sick leave call-in under the
parties collective bargaining agreement, Respondent would be correct.
/7/ Unfortunately, it does not. Respondent raised the issue that a
matter of contract interpretation was involved for the first time, at
the hearing. While it has long been recognized that deferral to the
negotiated grievance machinery is desirable, the dispute must be over a
varying contractual interpretation of the parties. The dispute in this
matter involves not the negotiated procedures but an alleged past
practice establishing employees rights to call-in only on the first day
of sick leave. A determination of whether there was a unilateral change
of past practices which is involved in this matter does not require an
interpretation of the parties agreement. Further, the call-in procedure
which Respondent unilaterally set is not covered by the agreement
between parties. Moreover, earlier, neither Respondent nor the Union
contended that any dispute existed concerning any term of the collective
bargaining agreement. Accordingly, for the reasons stated above,
Respondent's Motion to Dismiss is denied.
That parties may establish terms and conditions of employment by
practice, or other forms of tactic or informal agreement, and these like
other established terms and conditions of employment may not be altered
by either party in the absence of agreement or impasse following good
faith bargaining, is well established. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980).
The record in this matter supports a finding that a past practice of
requiring employees to call-in only on the first day of illness was
established at the Depot.
I agree with the General Counsel that sick-leave call in is a working
condition per se. Furthermore, the announced change in procedure
carries with it the potential for disciplinary action, AWOL for not
calling in, and most certainly is a matter involving employees
conditions of employment. It is, therefore found that Respondent's
unilaterally imposing a requirement that employees call-in every day of
sick leave or otherwise face disciplinary action impacted on their work
conditions and any changes in the procedure constituted a change in
conditions of employment which were subject to bargaining.
It is equally well settled that an employer may not unilaterally
change working conditions of unit employees without first notifying the
collective bargaining representative of the affected employees and upon
request, bargaining with it concerning the proposed changes. Department
of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No.
103 (July 1980). This obligation inures to any condition of employment,
including those established through past practice. Department of the
Treasury, U.S. Customs, Region I, Boston, Massachusetts, 1 FLRA No. 49
(1979).
The General Counsel established by a preponderance of the evidence
that a past practice of requiring employees to call-in only on the first
day of sick leave existed at the Depot prior to March 1980. However,
Respondent denies that a change occurred and claims that it was merely
reaffirming an established policy on sick leave call-in. But before
Respondent can maintain that position, it must show the existence of a
pre-established policy. See Social Security Administration, Tulsa
District Office, Tulsa, Oklahoma, 1 FLRA No. 67 (1979). The evidence
relied on by Respondent is scant. Past practices generally include
working conditions established through practice and followed by both
parties to a collective bargaining agreement. The record supports a
finding that Depot employees called-in only on the first day of illness,
for many years, as instructed by various supervisors. While the
"By-Line" of August 24 warned employees that they must call in every
day, there is little evidence that Respondent vigorously pursued this
stated policy. The evidence shows that neither the Union or employees
were aware of this new policy until employees became upset when told
they had to call-in, almost six-months after the policy was allegedly
implemented. The record further disclosed that while some supervisors
were aware of the policy announced in the "By-Line" that there was no
vigorous effort on their part to implement that policy until well into
1980. Respondent's policy was indeed a well kept secret until sometime
around March 1980 when efforts were made through supervisors meetings
with employees to explain the exact nature of the new sick leave call-in
policy. In these circumstances, it is found that a past practice of
allowing employees to call-in only on the first day of sick leave
existed at the Depot as late as March 1980 and that a change in that
procedure was implemented about that time requiring employees to call-in
on each day of sick leave or face disciplinary action constituting a
change in terms and conditions of employment as set out in section
7103(a)(12) of the Statute, and is violative of section 7116(a)(5) and
(1) of the Statute.
The General Counsel contends that the March 12, 1980 meeting between
Supervisor McCormick and the unit employees supervised by him
constituted a formal discussion with unit employees and is a breach of
its obligation under section 7114(a)(2)(A) of the Statute since it did
not give the Union notice and an opportunity to attend the meeting and,
therefore, was in violation of section 7116(a)(1) and (8) of the
Statute. /8/
A review of the legislative history of the Statute 124 Cong.Rec.H
9650, daily ed. Sept. 13, 1978 revealed the following:
Section 7114(a)(3)(A) specifically provides that an exclusive
representative shall be given the opportunity to appear at formal
discussion between agency representatives and employees. This
subsection must be read in conjunction with subsection 7114(1)(1),
requiring that a labor organization which has been accorded
exclusive recognition is the exclusive representative for
employees in its bargaining unit, and with subsection 7116(a)(8)
which makes it an unfair labor practice for an agency to fail to
comply with any provision of title VII, including the exclusivity
rights of labor organizations with exclusive recognition. The
compromise inserts the word "formal" before discussions merely in
order to make clear that this subsection does not require that an
exclusive representative be present during highly personal,
informal meetings such as counseling sessions regarding
performance. Of course, nothing in this section bars an agency
and an exclusive representative from negotiating an agreement
providing for a greater role for the representative than that
minimally mandated by Title VII. Moreover, nothing in this
section authorizes agency management to bypass the rights of the
exclusive representative and engage in direct communications with
unit members.
Under Section 10(e) of the Executive Order, as amended it was
mandated that a Union, which is the exclusive bargaining representative
be afforded the opportunity to be represented at formal discussions
between management and employees concerning personnel policies and
practices, or other matters affecting general working conditions of unit
employees. Department of Health, Education and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, 1 FLRA No. 88
(1979). Furthermore, in determining whether a meeting may be
characterized as a "formal discussion", the Assistant Secretary
established distinctions between meetings held for instructional
purposes and those dealing with personnel policies and practices, and
matters affecting general working conditions. See, Department of
Health, Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Center, supra; Department of the Treasury,
Internal Revenue Service, Chicago District, Chicago, Illinois, 8 ASLMR
1046, A/SLMR No. 120 (1978). While the Order is not binding in Statute
matters it is most certainly a guide. Under the Order a distinction was
drawn between whether the meeting was convened to disseminate
information concerning conditions of employment or to announce a change
in employment conditions. If held to announce a change the meeting was
characterized as a formal discussion.
In this matter, Respondent claims that the March 12, 1980 meeting was
called by McCormick only to instruct employees on leave policy.
However, if the subject matter under discussion involves personnel
policies, practices or conditions of employment, and a change in
existing policy with respect to sick leave call-in was announced and
that change is of an existing condition of employment the Union is
entitled to attend. It is noted, that during this period at least one
similar meeting was called by a supervisor working under Branch Chief
Marino at the request of Chief Steward Arnolfo. Arnolfo was also
present at this meeting. However, the meeting called by McCormick was
at his own behest and no connection was established between this meeting
and those called by Branch Chief Marino at the Chief Steward Arnolfo's
request. Further, the Union was neither notified nor given an
opportunity to be present at the March 12 meeting. In the
circumstances, particularly since the meeting involved what Respondent
termed the reaffirmation of an existing sick leave policy, which is a
condition of employment, it is found that the meeting was a formal
discussion within the meaning of the Statute and the failure to notify
the Union or to allow the Union to be present constituted a violation of
Section 7116(a)(1) and (8) of the Statute.
In addition, the matter raises the question as to whether such a
meeting with employees to announce a change in terms and conditions of
employment constitutes a by-pass of the exclusive representative.
It is also settled that an employer may not go directly to employees
to discuss or announce changes in working conditions without first
bargaining with the Union; such conduct by an employer constitutes a
by-pass of the exclusive representative and derogates its status in the
exclusive representation of unit employees and is violative of the
Statute. See United States Air Force, Air Force Logistics Command,
Aerospace Guidance and Meteorology Center Newark, Ohio, 4 FLRA No. 70
(1980); Internal Revenue Service, Washington, D.C., 4 FLRA No. 68
(1980).
As set out above, Supervisor McCormick called the March 12, 1980,
meeting of employees under his supervision without notifying the Union
and unilaterally announced a change in the established sick leave
call-in practice. Although union steward Blas was present at the
meeting he was not given notification of the meeting in a normal manner
but, was in attendance only because he was an employee working under the
supervision of McCormick. The calling of such a meeting without
appropriate notice to the exclusive representative is an act in
derogation of the bargaining representatives rights to represent
employees and in violation of section 7116(a)(1) and (5) of the Statute.
Based on the foregoing, it is found that Respondent violated Section
7116(a)(1) and (5) by unilaterally changing a past practice without
notification to or bargaining with the exclusive representative of its
warehouse employees; violated section 7116(a)(1) and (5) by dealing
directly with unit employees with respect to personnel policies and
practices or other matters affecting the general working conditions of
unit employees; and violated section 7116(a)(1) and (8) by holding a
formal discussion without notifying and affording the Union as exclusive
representative of the employees involved to be present.
Having found and concluded that Respondent has violated section
7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority
issue the following Order: /9/
Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby
ORDERED that the Defense Logistics Agency Defense Depot Tracy, Tracy,
California shall:
1. Cease and desist from:
(a) Unilaterally instituting changes with respect to sick leave
call-in practices without providing notice to, and upon request,
meeting and negotiating with the Laborers International Union,
Local 1276, AFL-CIO, the exclusive representative of its
employees, or any other exclusive representative.
(b) Dealing directly with unit employees at the Defense Depot
Tracy facility represented by the Laborers International Union,
Local 1276, AFL-CIO with respect to personnel policies and
practices or other matters affecting the general working
conditions of employees at that facility.
(c) Conducting formal discussions between management and unit
employees, or their representatives, concerning personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit, without notifying and
affording Laborers International Union, Local 1276, AFL-CIO, the
opportunity to be represented at formal discussions between
management and employees, as their representative, concerning
personnel policies and practices, or other matters affecting
general working conditions of employees in the unit.
(d) In any like or related manner interfering with, restraining
or coercing its employees of their rights assured by the Statute.
2. Take the following affirmative action:
(a) Upon request, meet and negotiate only with the Laborers
International Union, Local 1276, AFL-CIO, the exclusive
representative of its employees, with regard to personnel policies
and practices, or other matters affecting the general working
conditions of employees at the Defense Depot Tracy, Tracy,
California.
(b) Notify the Laborers International Union, Local 1276,
AFL-CIO, of and afford it the opportunity to be represented at
formal discussions between management and unit employees, as their
representative, concerning personnel policies and practices, or
other matters affecting general working conditions of employees in
the unit.
(c) Post at its Defense Depot Tracy, Tracy, California
facility, 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 the Director, and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
other places where notices to employees are customarily posted.
The Director shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) 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.
ELI NASH, JR.
Administrative Law Judge
Dated: February 24, 1981
Washington, D.C.
WE WILL NOT institute changes concerning the procedures for sick
leave call-in without first notifying the Laborers International Union,
Local 1276, AFL-CIO and affording it the opportunity to bargain
concerning the implementation of such changes and their impact on
adversely affected employees.
WE WILL NOT deal directly with unit employees of the Defense Depot
Tracy, Tracy, California represented exclusively by the Laborers
International Union, Local 1276, AFL-CIO, with respect to personnel
policies and practices, or other matters affecting the general working
conditions of employees in Defense Depot Tracy, Tracy, California.
WE WILL NOT conduct formal discussions between management and unit
employees, or their representatives, concerning personnel policies and
practices or other matters affecting general working conditions of
employees in the unit, without notifying and affording, Laborers
International Union, Local 1276, AFL-CIO, the exclusive representative
of our employees, the opportunity to be represented at such discussions.
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, upon request, meet and negotiate in good faith only with the
Laborers International Union, Local 1276, AFL-CIO, with respect to
personnel policies and practices, or other matters affecting the general
working conditions of employees in Defense Depot Tracy, Tracy,
California.
(Agency or Activity)
(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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 9, whose
address is: 450 Golden Gate Avenue, Room 11408, P.O. Box 36016, San
Francisco, CA 94102.
/1/ Respondent excepts to the Judge's failure to consider the
affidavit of Nancy I. Powers, attached to its motion to dismiss, which
allegedly shows that the Union had knowledge of the change in policy as
early as August 1979. Noting particularly unrebutted record testimony
to the contrary, and that Powers was not called to testify at the
hearing and thus was not subject to cross-examination, the Authority
finds that the Judge did not err in giving no weight to such affidavit
or in concluding "that neither the Union nor employees were aware of
this new policy until employees became upset when told they had to call
in, almost six months after the policy was allegedly implemented."
/2/ Section 7114(a)(2)(A) reads as follows:
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more 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(.)
/3/ See Internal Revenue Service (District, Region, National Office
Unit), 11 FLRA No. 23 (1983), affirmed sub nom. National Treasury
Employees Union v. FLRA, 725 F.2d 126 (D.C. Cir. 1984); Kaiserslautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA 184 (1982); Division of Military and Naval
Affairs, State of New York, Albany, New York, 8 FLRA 307 (1982); U.S.
Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air
Force Base, Texas, 4 FLRA 469 (1980).
/4/ Ms. McCurry, who left work at the Depot, and then returned
testified that when she returned to work two and a half years ago, she
was told of a change with respect to sick leave call-in, but that change
concerned only employees who were sent home by the dispensary; they
were requested to call in the following day if they remained out, but
thereafter were not expected to call-in each day.
/5/ Article X, provides in pertinent part:
Section 1: Sick leave shall be approved in advance upon
request by an employee to the supervisor when the employee has an
appointment for dental, optical or medical examination or
treatment. No policy will be established by the Employer limiting
the number of hours of sick leave for such appointments. Leave
may be taken in 15-minute increments.
Section 2: Sick leave shall be granted to an employee when
incapacitated for the performance of duty by sickness, injury,
when a member of the immediate family of the employee is afflicted
with a contagious disease, (or the employee is otherwise exposed
to such disease) or when the presence of the employee at his post
of duty would jeopardize the health of others. In these instances
when advance notice of absence cannot be given to the Employer,
the employee is responsible for notifying the supervisor, or his
designated representative in the absence of the supervisor, as
early as possible but not later than four hours after the
beginning of the first regular duty shift for which incapacitated.
This four-hour limitation may be waived under mitigating
circumstances where it is shown that the employee was not able to
give notice as prescribed above.
/6/ Sec. 7118(a)(4)(A) reads: . . . Except or provided in
subparagraph (B) of this paragraph, no complaint shall be issued based
on any alleged unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority.
/7/ Department of Agriculture, U.S. Forest Service, Suislauw National
Forest, Corvallis, Oregon, 3 FLRA No. 42 (1980); Headquarters, San
Antonio Air Logistics Center, Kelly Air Force Base, 2 FLRA No. 57
(1980).
/8/ Section 7114(a)(2)(A) reads in pertinent part: An exclusive
representative of any appropriate unit in any agency shall be given the
opportunity to be represented at-- . . . Any formal discussion between
one or more representatives of the agency and one or more employees in
the unit or their representative concerning any grievance or any
personnel policy or practices or other general condition of employment .
. .
/9/ The General Counsel's Motion to Correct the Transcript is
granted.
14 FLRA No. 77; Case No. O-NG-524; May 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Employees
2210. Mandatory Subjects of Bargaining
2210.01 Procedures for implementation of Agency Decisions DIGEST
NOTES
Proposals are outside the duty to bargain that require negotiation of
the performance standards to be used for determining which employees
will receive incentive pay and any changes to such standards.
Management's right to assign work and direct employees under Sec.
7106(a)(2)(A) and (B) extend to establishing job requirements, e.g.,
performance standards, for various levels of achievement, which
management will use to encourage and reward successful performance. An
integral aspect of management's exercise of these rights is to prescribe
the performance standards which an employee must attain in order to be
eligible for a reward, such as incentive pay, for superior performance.
(proposals 1 & 2)
A proposal is outside the duty to bargain that requires the agency to
bargain over which job elements will be eligible for incentive pay or
subject the agency's decision to a "just cause" standard for to arbitral
review. The proposal does not involve the application to an employee of
the critical elements and performance standards established by
management, which would be negotiable. Rather the proposal applies to
management's identification of job elements for incentive pay which is
inconsistent with management's right to direct employees and assign work
under Sec. 7106(a)(2)(A) and (B). (proposal 3, 1st sentence)
A proposal constitutes negotiable procedures under Sec. 7106(b)(2)
that requires management: (1) to notify employees upon assignment of
work whenever the task is not one for which incentive pay may be
awarded; (2) to give bargaining unit employees a list of all job
elements for which incentive pay may be awarded. (proposal 3, 2nd and
3rd sentences)
A proposal is negotiable that provides that once management has
assigned employees to positions to which work subject to the agency's
incentive pay system is assigned, specific job tasks will, to the
maximum extent feasible, be distributed so that each employee will have
a fair and equitable opportunity to earn incentive pay. Although under
the proposal the agency could permit employees to divide job tasks among
themselves, it clearly reserves to agency management the ultimate right
to make assignments of job tasks and is not inconsistent with
management's right to assign work under Sec. 7106(a)(2)(B). (proposal
4)
A proposal is negotiable that provides that if the agency violates a
contract provision, an arbitrator may award an appropriate remedy
consistent with the Back Pay Act, 5 U.S.C. 5596. (proposal 4, last
sentence)
Proposals are outside the duty to bargain that would set the rate of
incentive pay for bargaining unit employees and permit employees to
receive incentive pay for periods of time during which they perform no
work because they are on leave. An integral aspect of management's
exercise of its rights to assign work and direct employees under Sec.
7106(a)(2)(A) and (B) is to establish a system of rewards and sanctions
for employee performance, including the provision of incentives to
encourage and reward superior performance. The nature of incentives
(e.g., monetary or nonmonetary), the amount of a monetary incentive, and
the circumstances under which an incentive may be awarded directly
relate to the potential success of the incentive in motivating the
performance of particular job tasks and, hence, to some extent determine
the priorities of accomplishing the agency's work. (proposals 5 & 6)
In a dissenting opinion, one Member explained his view that incentive
rates are within the duty to bargain as a condition of employment.
Incentive pay is not specifically provided for by Federal statute and,
therefore, is not excluded from the definition of conditions of
employment. Management has the statutory right to establish the
performance standards which an employee must attain in order to receive
incentive pay and the job elements which are subject to such incentive
pay. However, negotiations over the implementation of an incentive pay
system after management has exercised its rights does not interfere with
management's authority to determine what work shall be done, how or by
which employee it shall be done, or the quality, quantity or timeliness
of work required of an employee. Thus negotiations over the rate of
incentive pay does not interfere with management's right to direct
employees or assign work under Sec. 7106(a)(2)(A) and (B). (proposals 5
& 6)
A proposal is outside the duty to bargain that would permit the union
to terminate at any time the agency's incentive pay system. Management
has a statutory right to establish an incentive pay system and the
termination of the system by the union directly interferes with that
prerogative. (proposal 7)
NATIONAL TREASURY EMPLOYEES
UNION
INTERNAL REVENUE SERVICE
Case No. O-NG-524
The petition for review in this case comes before the Authority
pursuant to section 7106(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of seven Union proposals relating to
various aspects of the Agency's Incentive Pay System. /1/ In deciding
that some of those proposals or portions thereof are within the duty to
bargain, the Authority makes no judgment as to their merits.
The production level at which the employer will begin awarding
incentive pay will be computed as follows:
a. NTEU and IRS will mutually agree on the standards by F/P,
or
b. Standards will be set no higher than were achieved by the
average person in the Philadelphia Service Center during FY 80
with reasonable adjustments for job format changes. The "Average
Person" is computed by measuring production by F/P and dividing
that by total staff hours for FY 80. Any conversion between
measurement systems, e.g., documents to strokes, will be based on
just cause as demonstrated by management. Management will make
all relevant and necessary data available to NTEU before NTEU
needs to make a decision on any standards. If management uses
5(b) above to set a standard and the union disagrees with any
standard by filing a grievance, no test will be implemented until
the grievance and arbitration is resolved absent waiver of this by
the union.
Once standards are set for the participating F/P tasks no
revised standards will be imposed during the test except by mutual
agreement.
The question presented is whether, as alleged by the Agency, Union
Proposals 1 and 2 are inconsistent with management's rights to direct
employees in the agency and to assign work under, respectively, section
7106(a)(2)(A) and (B) of the Statute.
Conclusion and Order: The Union's proposals are inconsistent with
management's rights to direct employees and assign work. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the Union's petition for review as to Union Proposals 1
and 2 be, and it hereby is, dismissed.
Reasons: The Agency instituted an Incentive Pay System for data
transcribers at its Philadelphia Service Center in order to create a
more efficient workforce through increased productivity. /2/ Under the
program, the production rate of data entry operators is measured by the
number of keys an employee pushes per hour on a data keyboard. /3/
Incentive pay in addition to an employee's basic salary is awarded
biweekly to employees whose performance exceeds certain quantitative and
qualitative requirements. /4/
It is well settled that, in order to achieve the levels of
productivity and quality needed to accomplish an agency's mission and
functions, management, pursuant to its rights to assign work and direct
employees, determines what work will be done, by whom, when, and what
standards of quality and quantity are expected. /5/ Union Proposals 1
and 2 would require negotiation of the performance standards to be used
for determining which employees will receive incentive pay and any
changes to such standards. The Union's principal contention, that under
Bureau of the Public Debt management only has the right to establish
performance standards for job retention, /6/ cannot be sustained. The
Authority has also held that management's rights to assign work and
direct employees extend to establishing job requirements, e.g.,
performance standards, for various levels of achievement, which
management will use to encourage and reward successful performance. /7/
Thus, an integral aspect of management's exercise of these rights is to
prescribe the performance standards which an employee must attain in
order to be eligible for a reward, such as incentive pay, for superior
performance. /8/ Since Union Proposals 1 and 2 would require bargaining
over such standards, they directly interfere with those rights. /9/
Therefore, they are outside the duty to bargain. /10/
Any and every data entry program/function task will be included
in the test and be eligible for reward absent mutual agreement
(between the) parties or just cause shown by management. If a
task is not included in the test, management will inform the
employee of such at the time he/she is assigned to the task.
Everyone will be given a list (of) the F/P Codes included in the
test.
The question is whether Union Proposal 3 is inconsistent with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute, as alleged by the Agency.
Conclusion and Order: The first sentence of Union Proposal 3 is
inconsistent with management's rights to direct employees and assign
work. However, the last two sentences of the proposal constitute
negotiable procedures which management will follow in the exercise of
those rights. Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations, IT IS ORDERED that the petition for
review as to the first sentence of the proposal be, and it hereby is,
dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or
as otherwise agreed to by the parties) bargain on the last two sentences
of the proposal.
Reasons: The first sentence of the proposal either would have the
effect of requiring the Agency to bargain over which job elements will
be eligible for incentive pay or of subjecting the Agency's decision as
to that matter to arbitral review. As discussed in connection with
Union Proposals 1 and 2, supra, management's rights to assign work and
direct employees extend to establishing job requirements, for various
levels of achievement, which management will use to encourage and reward
successful performance. By offering incentives to employees with
respect to certain, but not all, elements of their jobs, the Agency sets
priorities for the accomplishment of its work. Thus, the identification
of job elements for which incentives will be paid is an exercise of
management's rights to direct employees and assign work and may not be
negotiated /11/ or subjected to arbitral review. American Federation of
Government Employees, AFL-CIO, Local 1968 and Department of
Transportation, Saint Lawrence Seaway Development Corporation, Massena,
New York, 5 FLRA 70, 77-82 (1981), affirmed sub nom. American Federation
of Government Employees, AFL-CIO, Local 1968 v. Federal Labor Relations
Authority, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 2085
(1983). The Union relies on the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1981) (Union
Proposal 5) which held negotiable a proposal to establish a "fair and
equitable" standard for certain arbitrations. That decision is
distinguishable. In that case, the proposed standard at issue was
limited to grievances and arbitration concerning the application to an
employee of the critical elements and performance standards established
by management. The "just cause" standard proposed herein, however,
would apply to management's identification of job elements for incentive
pay, rather than to application of that determination to an employee.
Thus, the sole effect of the standard proposed here would be to permit
arbitral review of the Agency's exercise of management rights. For that
reason, the Authority's decision in Saint Lawrence Seaway is controlling
and the Union's argument to the contrary cannot be sustained.
The Union explicitly requested the Authority to consider the last two
sentences of Union Proposal 3 separately from the first sentence. These
sentences are notice requirements that: (1) when a job task is not one
for which incentive pay may be awarded, management so inform an employee
upon assignment of such work; and (2) bargaining unit employees be
given a list of all job elements for which incentive pay may be awarded.
Such informational notices do not directly interfere with management's
rights to direct employees or assign work. /12/ Consequently, the last
two sentences of Union Proposal 3 constitute negotiable procedures under
section 7106(b)(2) relating to management's setting of requirements for
incentive pay purposes and are within the duty to bargain.
Once IRS has assigned employees to the positions (Title,
Series, Grade) that will work the F/P tasks in the test, it will
permit employees to divide up the tasks among themselves or IRS
will be responsible for distributing the assigned tasks so that
each participating employee is given, to the maximum extent
feasible, a fair and equitable chance to earn incentive pay.
Management will avoid assigning an employee to a lower producing
F/P continuously. If this is violated, the harmed employee will
receive retroactive incentive pay at a reasonably projected rate.
The question presented is whether, as alleged by the Agency, Union
Proposal 4 is inconsistent with management's right to assign work under
section 7106(a)(2)(B) of the Statute.
Conclusion and Order: Union Proposal 4 is not inconsistent with
section 7106(a)(2)(B) of the Statute. 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 thereon.
Reasons: The first two sentences of Union Proposal 4 provide that
once management has assigned employees to the positions to which work
subject to the Incentive Pay System is assigned, specific job tasks
will, to the maximum extent feasible, be distributed so that each
employee will have a fair and equitable opportunity to earn incentive
pay. Although under the proposal the Agency could permit employees to
divide job tasks among themselves, it clearly reserves to Agency
management the ultimate right to make assignments of job tasks within
the Incentive Pay System. See American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 604, 610-14 (1980) (Union Proposal III),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982) (proposal containing alternatives, one of
which preserved management's right to assign employees, held
negotiable). Moreover, it is the Union's stated intent that the choice
as to who makes assignments under the proposal is itself reserved to
management. Cf. International Organization of Masters, Mates and Pilots
and Panama Canal Commission, 11 FLRA No. 19 (1982) (proposal which would
have permitted only bargaining unit employees to make work assignments
held inconsistent with section 7106(a)(2)(B)). Thus, based upon this
interpretation of the proposal and contrary to the Agency's contention,
the first two sentences of the proposal are not inconsistent with
section 7106(a)(2)(B) of the Statute. /13/ With respect to the last
sentence of the proposal, the Union interprets it consistent with its
language as, in effect, merely incorporating the requirements and
remedies of the Back Pay Act, 5 U.S.C. 5596. /14/ That is, in an
arbitration proceeding based on an alleged violation of such contract
language, an arbitrator could award an appropriate remedy under 5 U.S.C.
5596. Such remedy would comprise only that which the arbitrator
determined an employee would have earned or received during the period
if the contractual violation had not occurred. /15/ Thus, the last
sentence of Union Proposal 4 is also within the duty to bargain.
Incentive money is paid at the rate $.09 per one-tenth of an
efficient point over 100 percent. For example, performance at
125% efficiency equals $22.50 in incentive pay. The money will be
distributed on a pay period basis with the regular salary check.
If the employee works overtime he/she will be paid $.04 more per
one-tenth of a point otherwise payable. If employees of more than
one grade work the same F/P task then the $.09 will be increased
by $.02 for each grade above the minimum grade assigned the F/P
task.
If an employee earns incentive pay for three consecutive pay
periods, he/she will receive incentive pay for any period during
which he/she takes paid leave at a rate equal to his/her average
incentive rate for the last pay period.
Either party can halt this test at any time.
The question presented is whether Union Proposals 5, 6, and 7 are
inconsistent with management's rights to direct employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute.
Conclusion and Order: The Union's proposals are inconsistent with
management's rights to direct employees and assign work. Accordingly,
pursuant to section 2424.10 of the Authority's Rules and Regulations, IT
IS ORDERED that the Union's petition for review as to Union Proposals 5,
6, and 7 be, and it hereby is, dismissed.
Reasons: Union Proposal 5 would set the rate of incentive pay for
bargaining unit employees and Union Proposal 6 would permit bargaining
unit employees to receive incentive pay for periods of time during which
they perform no work because they are on leave. As discussed in
connection with Union Proposals 1 and 2, supra, an integral aspect of
management's exercise of its rights to assign work and direct employees
is to establish a system of rewards and sanctions for employee
performance, including the provision of incentives to encourage and
reward superior performance. The nature of the incentive (e.g.,
monetary or nonmonetary), the amount of a monetary incentive, and the
circumstances under which an incentive may be awarded are essential
components of management's judgment. That is, they directly relate to
the potential success of the incentive in motivating the performance of
particular job tasks and, hence, to some extent determine the priorities
for accomplishing the agency's work.
In American Federation of State, County and Municipal Workers,
AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA No. 96
(1984), the Authority stated, with respect to a proposal concerning the
number of rating levels for appraisal of an employee's performance:
The determination of the number of performance levels directly
affects the degree of precision with which management can
establish and communicate job requirements (performance
standards), the range of judgments which management can make
regarding performance in the context of performance appraisals,
and the range of rewards and sanctions which management can apply
to such performance. In short, the number of such levels is
integrally related to the effectiveness of an agency's using
performance standards to accomplish the work of the agency in a
manner consistent with the exigencies of effective government.
(Footnote omitted.)
Thus, on that bases, the Authority held the proposal to be
inconsistent with management's statutory rights to direct employees and
assign work.
With respect to Union Proposals 5 and 6 herein, as noted above, an
award of incentive pay is directly linked to job performance. The rate
of the incentive and the circumstances under which it will be provided
has direct bearing on the successful use of performance-based incentives
by management in order to accomplish the work of the Agency in a manner
consistent with the exigencies of effective government. Thus, in a
manner substantially similar to the proposal held nonnegotiable in
Department of Justice, these matters are an essential aspect of the job
requirements which operate to encourage and reward successful
performance, within the meaning of the management rights to direct
employees and assign work. Consequently, these proposals are outside
the duty to bargain. /16/
Union Proposal 7 would permit the Union to terminate at any time the
Incentive Pay System. As previously determined herein with respect to
Union Proposals 1 and 2, management has the statutory right to establish
such a system. It is clear that the termination of the system by the
Union would directly interfere with that prerogative. For that reason,
Union Proposal 7 is not within the duty to bargain. See Association of
Civilian Technicians, Delaware Chapter and National Guard Bureau,
Delaware National Guard, 3 FLRA 57 (1980). Issued, Washington, D.C.,
May 9, 1984
Barbara J. Mahone, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Haughton concurring in part, dissenting in part:
In this case the Authority has the opportunity to consider whether
proposals on various aspects of an incentive pay system are within the
statutory duty to bargain or, conversely, whether the proposals infringe
on management's right to direct employees and assign work. The
Authority here decides that a Federal agency may unilaterally establish
an incentive pay system, set the standards to be used in determining
which employees will be eligible to receive incentive pay and identify
the job elements for which incentives will be paid. With these
conclusions, I agree as coming under management's rights to assign work
and to direct employees in performing such work. I therefore agree with
the decision of the majority as to Proposals 1 through 4 and Proposal 7.
My colleagues further decide, with respect to Union Proposals 5 and
6, that management may unilaterally establish the amount of incentive
pay for particular production and the periods for which it would be
paid. As to this part of the decision, I respectfully dissent. It is a
strained interpretation to include the setting of incentive rates under
the rubric of management's rights to assign work and direct employees.
It must be recognized that the incentive rate payable is a condition
of employment as the term is defined in the Statute /17/ and that the
duty to bargain under the Statute extends to conditions of employment.
/18/ Although matters "specifically provided for by Federal statute" are
expressly excluded from the definition of "conditions of employment" in
section 7103(a)(14)(C) (and, thus, are not within the scope of the duty
to bargain), incentive pay is not "specifically provided."
Incentive pay is not mentioned in the Chapter which establishes the
basic rates of pay for Federal employees. See 5 U.S.C. 5301 et seq.
Neither has it been shown that incentive pay is mentioned in any other
statute covering wages or fringe benefits. While the Agency has cited
statutory provisions authorizing certain specific kinds of awards
systems, these provisions are silent with respect to incentive rates.
(See, for example, 5 U.S.C. 5401 et seq. and 5 U.S.C. 4503.)
The fact is, no Federal statute governs the area of incentive pay
systems so as to exclude such matters from the definition of conditions
of employment under section 7103(a)(14)(C). Furthermore, with respect
to the Agency's argument that the establishment of an incentive pay
system is within its discretion, the Authority has held that to the
extent an agency has discretion with respect to a matter affecting the
working condition of its employees, that matter is within the duty to
bargain. National Treasury Employees Union, Chapter 6 and Internal
Revenue Service, New Orleans District, 3 FLRA 737 (1980); American
Federation of State, County and Municipal Employees, AFL-CIO Local 2477
and Library of Congress, Washington, D.C. (and the case consolidated
therewith), 7 FLRA 578 (1982), enforced sub nom. Library of Congress v.
Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983).
The question still remains as to whether the rights reserved to
management by section 7106(a) of the Statute restrict the parties'
ability to negotiate the amount of incentive pay.
My colleagues find that Union Proposals 5 and 6 involve reserved
management rights on the theory that "the nature of the incentive (e.g.,
monetary or nonmonetary), the amount of a monetary incentive, and the
circumstances under which an incentive may be awarded are essential
components of management's judgment." In another part of the opinion,
the majority finds that because "the rate of the incentive and the
circumstances under which it will be provided has a direct bearing on
the successful use of performance-based incentives . . . these matters
are an essential aspect of the job requirements which operate to
encourage and reward successful performance, within the meaning of the
management rights to direct employees and assign work."
It seems from the foregoing that the majority opinion might suggest
that implementation of an incentive pay system designed to motivate
employees to greater performance must be regarded as an integral part of
management's right to direct employees and assign work. The effect an
incentive rate might have on motivation should not be the basis on which
the Authority decides whether a proposal is within the duty to bargain.
Management has the statutory right to establish the performance
standards which an employee must attain in order to receive incentive
pay and the job elements which are subject to such incentive pay (see
the discussion as to Proposals 1 and 2). However, negotiation over the
implementation of an incentive pay system after management has exercised
its rights does not interfere with management's judgment. In this case,
Union Proposals 5 and 6 would not limit management's authority to
determine what work shall be done, how or by which employee it shall be
done, or the quality, quantity or timeliness of work required of an
employee. See National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769, 776-78 (1980), affirmed
sub nom. National Treasury Employees Union v. Federal Labor Relations
Authority, 691 F.2d 553, 556-57, 564 (D.C. Cir. 1982). As I have noted
above, it requires a strained interpretation of the phrases "direct
employees" and "assign work" to find that Proposals 5 and 6 are not
negotiable.
The majority is concerned about motivation. Not to permit joint
negotiations to the maximum extent permitted by law could, particularly
in incentive system cases, be counterproductive to motivating employees
to greater efficiency and productivity. This is a goal expressly
recognized in section 7101(a)(2) of the Statute, where Congress found
that " . . . the public interest demands the highest standards of
employee performance and the continued development and implementation of
modern and progressive work practices to facilitate and improve employee
performance and the efficient accomplishment of the operations of the
Government." Issued, Washington, D.C., May 9, 1984
Ronald W. Haughton, Member
/1/ The Union in its response to the Agency's statement of position
withdrew its petition for review as to three other proposals.
Therefore, these proposals will not be considered further herein.
/2/ Agency Statement of Position at 2.
/3/ Philadelphia Service Center Incentive Pay System Guide (IPS
Guide) at 3 (set forth as Attachment 1 to the Union's Reply Brief). See
also Union Reply Brief at 1.
/4/ IPS Guide at 4-6.
/5/ National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 769, 776-78 (1980), affirmed sub nom.
National Treasury Employees Union v. Federal Labor Relations Authority,
691 F.2d 553, 556-57, 564 (D.C. Cir. 1982).
/6/ Union Reply Brief at 6-7.
/7/ National Treasury Employees Union and U.S. Nuclear Regulatory
Commission, 13 FLRA No. 49 (1983) (Union Proposal 2).
/8/ Cf. National Federation of Federal Employees, Local 541 and
Veterans Administration Hospital, Long Beach, California, 12 FLRA No. 62
(1983) (proposal to design, develop and administer an incentive awards
program which did not present the issue of management's right to
establish performance-based incentives was held negotiable).
/9/ In support of its position, the Union cites Internal Revenue
Service, Buffalo District and National Treasury Employees Union, Chapter
58, 2 FLRA 105 (1979), a decision on exceptions to an arbitration award
arising under Executive Order 11491, as amended. Such reliance is
misplaced. Simply stated, that case did not involve questions
concerning negotiability under the Statute.
/10/ The Union's further contention, that the Agency "raised no
objections" to the last three sentences of Union Proposal 1 and,
therefore, these sentences should be considered to be negotiable, is
without merit. The Agency alleged that the entire proposal is
nonnegotiable. Petition for Review, Attachment 1.
/11/ Nuclear Regulatory Commission, 13 FLRA No. 49 at 3-4.
/12/ American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7
FLRA 217 (1981) (Union Proposal 1).
/13/ Association of Civilian Technicians and State of Georgia
National Guard, 2 FLRA 581 (1980).
/14/ Union Reply Brief at 9.
/15/ See Bureau of Alcohol, Tobacco and Firearms and National
Treasury Employees Union, 12 FLRA No. 13 (1983).
/16/ In view of this decision, it is unnecessary to address the
Agency's remaining contentions as to the nonnegotiability of these
proposals.
/17/ Section 7103(a)(14) provides, in pertinent part:
conditions of employment means personnel policies, practices,
and matters, whether established by rule, regulation, or
otherwise, affecting working conditions(.)
/18/ Section 7103(a)(12) provides:
collective bargaining means the performance of the mutual
obligation of the representative of an agency and the exclusive
representative of employees in an appropriate unit in the agency
to meet at reasonable times and to consult and bargain in a good
faith effort to reach agreement with respect to the conditions of
employment affecting such employees and to execute, if requested
by either party, a written document incorporating any collective
bargaining agreement reached, but the obligation referred to in
this paragraph does not compel either party to agree to a proposal
or to make a concession(.)
14 FLRA No. 76; Case No. O-NG-706; May 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2200. Subjects of Bargaining
2201. At Election of Agency
2201.01 Numbers, Types and Grades of Employees DIGEST NOTES
A proposal which would require the agency to assign more employees to
the early shift than management finds necessary, and to hire additional
temporary employees to work the 'night' shifts directly concerns
management's right, under Sec. 7106(b)(1) of the Statute, to determine
the numbers, types and grades of employees or positions assigned to any
tour of duty. Such a proposal is negotiable only at the election of the
agency. As the agency has elected not to negotiate concerning this
proposal, it is nonnegotiable.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 236
GENERAL SERVICES ADMINISTRATION,
NATIONAL ARCHIVES AND RECORDS SERVICE
Case No. O-NG-706
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
concerning the negotiability of the following Union proposal.
Union proposes that non-full time employees be relieved also by
summer workers of night duty, that agency honor requests from them
for change of hours in order of priority based on seniority.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
According to the Agency, three non-full time bargaining unit employees
are currently assigned to night shifts and no intermittent/temporary
employees, or "summer workers," are assigned to the early shift. Thus,
according to the Agency's uncontroverted interpretation of the proposal,
should a non-full time employee from a late shift request a reassignment
to the early shift, management would be obligated to accede to that
request. As a result, as stated by the Agency, "the proposal would
necessarily cause the Agency to assign more employees to the early shift
than management finds necessary, and to hire additional temporary
employees to work the 'night' shifts." Hence, in agreement with the
Agency, and apart from other considerations raised by the Agency, the
Authority concludes that the proposal is directly related to, and
therefore determinative of, the number of employees assigned to a tour
of duty and falls within the scope of section 7106(b)(1) of the Statute.
/1/ Because section 7106(b)(1), states that proposals which fall within
its scope are negotiable only at the election of the agency, and the
Agency herein has elected not to bargain on the proposal, the Union's
proposal is not within the duty to bargain.
Accordingly, 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., May 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ See American Federation of Government Employees, Local 3669,
AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980).
14 FLRA No. 75; Case No. O-NG-497; May 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work DIGEST NOTES
A proposal is outside the duty to bargain that establishes the number
of rating levels for an appraisal of overall performance and specifies
the quality of performance required in order to achieve a particular
overall rating. An essential aspect of management's right under Sec.
7106(a)(2)(A) and (B) to direct employees and assign work is to
establish job requirements for various levels of performance so as to
achieve the quality and amount of work needed to fulfill the agency's
mission and function. Furthermore, the number of rating levels is
integrally related to the effectiveness of an agency's using performance
standards to accomplish the work of the agency. On the other hand, a
proposal which would permit an employee to grieve the application to
that employee of the performance requirements established by management
would be within the duty to bargain.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1332
HEADQUARTERS, U.S. ARMY MATERIEL
DEVELOPMENT AND READINESS
COMMAND, ALEXANDRIA, VIRGINIA
Case No. O-NG-497
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issue presented
is the negotiability of the following proposal:
Section J. There will be three (3) levels of performance used
in rating of employees.
(1) Exceptional (Outstanding). Performance which at least
meets performance standards for all major elements and exceeds
performance standards for some (more than 2) major elements.
Performance in relation to performance standards is of such
quality that it could only be achieved by the most exceptional
employee. This employee deserves special recognition.
(2) Fully Successful (Satisfactory). Performance which at
least meets performance standards for all critical elements.
Performance in relation to performance standards is of such
quality that it would be expected only of a proven, competent,
average employee.
(3) Unsatisfactory. Performance which fails to meet
performance standards for one or more critical elements.
Performance is clearly unacceptable and corrective action is
required.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
The Union's proposal would establish the number of rating levels for an
appraisal of overall performance and what quality of performance is
required in order to achieve a particular overall rating. As such, it
is substantively identical in effect to a portion of the union's
proposal which was before the Authority in American Federation of State,
County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department
of Justice, 13 FLRA No. 96 (1984). In that case, the Authority held
that a portion of a proposal to set the number of rating levels for an
appraisal of overall performance and to determine what quality of
performance would be required to obtain a particular rating was
inconsistent with management's rights to direct employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute. In this
regard, the Authority held that an essential aspect of management's
assignment of work and the supervision and guidance of employees in the
performance of their work was to establish the job requirements for
various levels of performance so as to achieve the quality and amount of
work needed to fulfill the agency's mission and functions. Further, the
Authority held that the number of rating levels was integrally related
to the effectiveness of an agency's using performance standards to
accomplish the work of the agency. For the reasons more fully stated in
Department of Justice, supra, the Union's proposal herein is not within
the duty to bargain. Of course, a proposal which would permit an
employee to grieve the application to that employee of the performance
requirements established by management would be within the duty to
bargain. American Federation of Government Employees, AFL-CIO, Local
1968 and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposal 4),
affirmed sub nom. American Federation of Government Employees, AFL-CIO,
Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir.
1982), cert. denied, . . . U.S. . . ., 103 S.Ct. 2085 (1983).
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed. Issued, Washington, D.C., May 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
14 FLRA No. 74; Case No. O-NG-552; May 9, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.10 Direct Employees
2152.40 Assign Work DIGEST NOTES
A proposal which would establish the number of rating levels for the
appraisal of an employee's performance in each job level is
nonnegotiable as it would interfere with managements rights, under Sec.
7106(a)(2)(A) and (B) of the Statute, to assign work and direct
employees.
INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON
SHIP BUILDERS, BLACKSMITHS,
FORGERS AND HELPERS
NORFOLK NAVAL SHIPYARD
Case No. O-NG-552
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). The issue presented
is the negotiability of the following Union proposal:
Performance standards will be described in writing for
outstanding, satisfactory, and unsatisfactory performance levels
for each critical or non-critical element established. All
performance elements shall be in writing and discussed with the
employee at the beginning of each rating cycle. (Delete all
future reference to marginal and highly satisfactory performance
levels.) (Only the underlined portions are in dispute.)
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
The Union's proposal would establish the number of rating levels for the
appraisal of an employee's performance in each job element. In this
regard, the proposal would have the same effect as a portion of the
proposal in American Federation of State, County and Municipal
Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
No. 96 (1984), which the Authority held to be outside the duty to
bargain because it interfered with management's rights under section
7106(a) of the Statute to direct employees in the agency and to assign
work. In this regard, the Authority held that the number of rating
levels was integrally related to the effectiveness of an agency's using
performance standards to accomplish the work of the agency. Moreover,
the Authority held that insofar as a proposal had the effect of
requiring or preventing the establishment of a performance standard it
directly interfered with the agency's right to establish performance
standards. Base on Department of Justice and for the reasons fully
stated therein, it is concluded that the instant proposal is outside the
duty to bargain. /1/ Of course, a proposal which would permit an
employee to grieve the application to that employee of the performance
requirements established by management would be within the duty to
bargain. American Federation of Government Employees, AFL-CIO, Local
1968 and Department of Transportation, Saint Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA 70 (1981) (Union Proposal 4),
affirmed sub nom. American Federation of Government Employees, AFL-CIO,
Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir.
1982), cert. denied, . . . U.S. . . ., 103 S.Ct. 2085 (1983).
Accordingly, 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., May 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In view of this determination, the Authority finds it unnecessary
to address the Agency's additional contentions that the proposal is
outside the duty to bargain because it conflicts with a Government-wide
regulation and an Agency regulation for which a compelling need exists.
14 FLRA No. 73; Case No. 8-CO-36; May 9, 1984.
DIGEST HEADINGS
5000. UNFAIR LABOR PRACTICE: UNION
5100. Interference, Restraint, Coercion DIGEST NOTES
A letter from a national vice-president of a union distributed to 500
members of one of its local unions which encouraged its members to
destroy representation petitions circulated by a rival union and which
made derogatory remarks about individuals in the rival union, did not
violate Sec. 7116(b)(1), the ALJ held in a decision adopted by the
Authority. Since there is no evidence that the letter was accompanied
by threats or acts of intimidation, direct or implied, it cannot be said
that the letter, standing alone, did in fact "coerce" or "restrain"
employees within the meaning of Sec. 7116(b)(1). Similarly, in the
absence of any evidence that some of the petitions were in fact
destroyed, it cannot be said that the letter "interfered" with the
employees' right to support a rival union. Additionally, the fact that
the incumbent union possesses the ability to retaliate against a
dissident unit employee, in and of itself, does not make the letter a
per se violation of Sec. 7116(b)(1) since such a conclusion would be
equally applicable to any statement uttered by a union which is designed
to retain the support of unit employees.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-35
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
Case No. 8-CO-36
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondents had not engaged
in certain unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel and the Charging Party filed exceptions
to the Judge's decision. /1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (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.
IT IS HEREBY ORDERED that the complaint in Case No. 8-CO-36 be, and
it hereby is, dismissed. Issued, Washington, D.C., May 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 8-CO-36
Ronald Steensland, Esquire
For the Respondent
Deborah S. Wagner, Esquire
Joseph Swerdzewski, Esquire
For the General Counsel
Mike McDermott, Int'l Representative
For the Charging Party
Before: BURTON S. STERNBURG
This is a proceeding under the Federal 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, Fed. Reg.,
Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et
seq.
Pursuant to a charge filed on February 5, 1981, by the Service
Employees International Union, AFL-CIO (hereinafter called the SEIU or
Charging Party), a Complaint and Notice of Hearing was issued on July
23, 1981, by the Regional Director for Regional VIII, Federal Labor
Relations Authority, Los Angeles, California. The Complaint alleges
that the National Association of Government Employees and its Local
R12-35 (hereinafter called the Respondents or NAGE and NAGE Local
R12-35), violated Section 7116(b)(1) of the Federal Service
Labor-Management Relations Statute (hereinafter called the Statute or
Act), by virtue of their actions in issuing a letter on or about
December 29, 1980, wherein their membership was encouraged to destroy
any showing of interest petitions then being circulated by
representatives of SEIU.
A hearing was held in the captioned matter on October 20, 1981, in
San Diego, California. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The parties submitted briefs on
December 4, 1981, 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, /1/
conclusions and recommendations.
NAGE Local R12-35 has represented a unit of employees at the Navy
Public Works Center in San Diego, California, since 1969 and been a
party to collective bargaining agreements with such Activity.
In December of 1980, a time when the current NAGE Local R12-35
collective bargaining agreement with the Activity was due to expire, the
SEIU commenced an organizational campaign designed to collect a number
of unit employees' signatures for purposes of attaining a sufficient
showing of interest to support a petition for an election challenging
NAGE Local R12-35's status as exclusive representative. In furtherance
of its objective, on or about December 11, 1980, SEIU held an open
meeting which was chaired by Mr. Mike McDermott, a west coast labor
organizer for the SEIU. In addition to Mr. McDermott and Mr. Jim Hawes,
another representative for the SEIU, the meeting was attended by some 11
or 12 Navy Public Work Center employees. Among the Navy Public Work
Center employees were Mr. Walter Woodworth and Mr. James McVey, former
president and vice-president, respectively, of Local R12-35, and Mr.
Albert Abbruzzese, the current president of R12-35. During the course
of the meeting Mr. McDermott answered a number of questions from the
attendees, including Mr. Abbruzzese, concerning the operation of the
SEIU. Following the meeting Mr. Abbruzzese, submitted a complete report
thereon to Mr. John Carpenter, a National Vice-President of NAGE, whose
office is located in Burbank, California.
With regard to Mr. Carpenter's relationship to Local R12-35 in his
capacity as a National Vice-President of NAGE, the record indicates that
Mr. Carpenter's office generally provides negotiators for contract
negotiations, attorneys for arbitration, MSPB or workmens' compensation
hearings, assistance in writing grievances and general advice on matters
which concern Local R12-35. The aforementioned services are provided
not only to Local R12-35 but to all SEIU locals within the NAGE Burbank
Office's jurisdiction.
On or about December 29, 1980, Mr. Carpenter sent a letter, on NAGE
stationery, to approximately 500 members of Local R12-35 informing them
that they might be approached by "some smooth talking suede-shoes
salesmen to sign a petition to bring in another union". After making
some derogatory remarks about the people who might be soliciting their
signatures, the letter went on to state as follows:
If you see a petition, destroy it. Notify your officers and
stewards if you are approached by anyone with a petition.
According to Mr. Carpenter, the letter was his own idea and he did
not consult with anyone before sending it. He thinks that he probably
mentioned it to Mr. Abbruzzese before it was mailed because he was sure
that he informed Mr. Abbruzzese as to what documents were in the
envelope mailed to the 500 members of Local R12-35 on December 29, 1980.
Mr. Abbruzzese testified that he was not informed by Mr. Carpenter
about the letter until after it was sent out. Subsequent to the mailing
of the letter Mr. Abbruzzese and Mr. Carpenter had a number of
conversations concerning the letter.
Mr. Abbruzzese acknowledges that neither he nor any other Local
R12-35 official at anytime disavowed the instructions contained in Mr.
Carpenter's letter with respect to destroying SEIU petitions. Further,
according to the testimony of Mr. Abbruzzese, in response to inquiries
from the membership concerning the destruction of SEIU's petitions, he
informed the employees that if Mr. Carpenter said the destruction was
alright, it was alright with him. Mr. Abbruzzese also testified that
although he agreed with the letter from Mr. Carpenter and therefore took
no specific steps to nullify it, he left it up to the employees'
individual choices as to whether the SEIU petitions should be destroyed.
With regard to the SEIU petitions, the record indicates that
representatives of the SEIU handed out several numerically numbered
petitions to interested employees for purposes of soliciting signatures
thereon. Subsequently, upon returning to the interested employees the
SEIU was unable to retrieve all the petitions it had originally handed
out. Although, the SEIU and the General Counsel contend that the
missing petitions were destroyed pursuant to the instructions contained
in Mr. Carpenter's letter, the record is barren of any evidence
whatsoever in support of such contention. In fact both Mr. Woodworth
and Mr. McVey, who were primarily responsible for distributing the SEIU
petitions and collecting same, admitted that they had no knowledge that
the missing petitions had in fact been destroyed.
The record is also barren of any evidence indicating that the letter
played any part in any employee's individual decision to sign or not
sign the SEIU petition.
The record further indicates that the SEIU subsequently filed a
petition for an election which did not contain a sufficient showing of
interest to support an election.
The General Counsel and the Charging Party take the position that the
December 29, 1980, letter interfered with, restrained, or coerced the
employees in the exercise of their rights protected by the Statute in
violation of Section 7116(b)(1). They further contend that both NAGE
and NAGE Local R12-35 are responsible for such violation since Mr.
Carpenter was acting as agent for NAGE Local R12-35 when he wrote the
letter instructing the employees to destroy the SEIU petitions.
Respondent on the other hand, denies the agency relationship and takes
the position, that in any event, the letter did not interfere with,
restrain or coerce the unit employees in the exercise of their rights
accorded by the Statute.
Contrary to the contention of the General Counsel and the Charging
Party, I cannot find that the December 29, 1980, letter, standing alone,
was violative of Section 7116(b)(1) of the Statute.
Section 7102 of the Statute gives employees the right to form, join,
or assist any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal. To the extent that a
union interferes with, restrains or coerces employees in the exercise of
the rights accorded by Section 7102, such union action is violative of
Section 7116(b) of the Statute.
In view of the foregoing, it is obvious that in order to establish a
violation of Section 7116(b)(1) it must be shown that the December 29,
1980, letter in some way coerced, restrained or interfered with the
employees right to support the SEIU petition efforts. In the absence of
any evidence, whatsoever, that the instruction to destroy the SEIU
petitions was accompanied by threats or acts of intimidation, direct or
implied, it cannot be said that the instruction, standing alone, did in
fact coerce and restrain the employees in connection with their
Statutory right to support the SEIU petition for an election.
Similarly, in the absence of any evidence that some of the petitions
were in fact destroyed, I question how the instruction could be said to
have "interfered with" the employees' right to support or sign the SEIU
petition. The only possible argument in support of such a finding would
have to be predicated on the premise that the instruction some how
demonstrated to unit employees the futility of affixing their respective
names to petitions which, due to the instruction, stood a good chance of
being destroyed. However, in view of the fact that the record indicates
that the petitions were generally in control of specified individuals
and not left unattended in lunch rooms and other places frequented by
unit employees, and the absence of any evidence that any employee was
dissuaded from, or reluctant to, sign the petitions because of NAGE's
letter, I find the futility argument to be without merit. /2/
Additionally, I cannot accept the argument that the fact that the Union
possesses the ability to retaliate against a dissident unit employee in
and of itself makes the December 20th letter a per se violation of
Section 7116(b)(1), since such a conclusion would be equally applicable
to any statement uttered by a union which is designed to retain the
support of the unit employees.
Accordingly, although I do not condone Respondent's action in
advocating the destruction of the SEIU petition, I am constrained to
recommend that the Complaint be dismissed in its entirety.
In view of the above conclusions I find it unnecessary to determine
whether or not Mr. Carpenter was acting as an agent of NAGE Local R12-35
when he mailed out the December 29th letter advocating destruction of
the SEIU petitions.
It is hereby ordered that the complaint in Case No. 8-CO-36, be, and
hereby is dismissed in its entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: December 16, 1981
Washington, D.C.
/1A/ The Respondents' opposition to the General Counsel's exceptions
was untimely filed and therefore was not considered by the Authority.
/1/ Other than NAGE Local R12-35's responsibility for the December
29, letter, the facts for the most part are not in dispute.
/2/ In order to reach a contrary conclusion, a finding must be made
that the words "interfere with" appearing in Section 7116(b)(1)
encompass the acts of "advocating" or "encouraging" interference with
the employees statutory rights. However, a review of the legislative
history offers no support for such a finding.
14 FLRA No. 72; Case No. O-AR-642; May 8, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1500. Review of Arbitration Awards
1550. Procedure DIGEST NOTES
Where the arbitrator had not yet rendered a final award in the
proceeding and had expressly retained jurisdiction of certain remaining
aspects of the grievance, the Authority found that the union's
exceptions were interlocutory and, accordingly, dismissed them.
U.S. CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
Case No. O-AR-642
This matter is before the Authority on exceptions to a ruling on the
Agency's Motion for Partial Summary Judgment by Arbitrator Mark L.
Irvings. The exceptions were 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.
The dispute before the Arbitrator concerns a grievance challenging
the Agency's Employee Performance Appraisal System for certain positions
and the ratings of a number of employees under the performance elements
and standards of that system. The Union claimed that the elements and
standards were contrary to law, implementing regulations and the
parties' collective bargaining agreement, and requested that new
elements and standards be issued, that the disputed ratings be rescinded
and that the affected employees be reevaluated. The grievance proceeded
to arbitration and the Agency filed pre-hearing motions for partial
summary judgment and a statement of issues.
At the hearing before the Arbitrator, evidence which pertained to the
pre-hearing motions, as well as to the substance of the grievance, was
presented. The substantive presentations, however, were not concluded.
In ruling on the Agency's Motion for Partial Summary Judgment, the
Arbitrator found that insofar as the grievance challenged the
performance elements and standards it was not substantively arbitrable.
However, the Arbitrator further found that the issue of whether
implementation of the appraisal system with respect to the named
employees violated law or the parties' agreement was properly before
him, and scheduled a date for conclusion of the parties' presentations
on that aspect of the grievance.
In its exceptions, the Union argues that the Arbitrator's ruling on
the Agency's motion is contrary to law and regulation and that the
Arbitrator exceeded his authority.
Section 2429.11 of the Authority's Rules and Regulations provides:
"The Authority . . . ordinarily will not consider interlocutory
appeals." That is, the Authority ordinarily will not consider an appeal
until a final decision has been rendered on the entire proceeding.
In this case, the Arbitrator has not yet rendered a final award in
the proceeding before him. Rather, as indicated above, the Arbitrator
ruled on a motion by finding that an aspect of the grievance was not
arbitrable and scheduling a time for completion of the parties'
presentations on the remaining aspect of the grievance. Thus, the
Union's exceptions are considered interlocutory and the facts and
circumstances are not such as to warrant review of the exceptions at
this stage of the proceeding.
Accordingly, since the Union's exceptions are interlocutory and
Authority review is not warranted under the circumstances, the
exceptions are hereby dismissed. However, the dismissal is without
prejudice to the renewal of any of the Union's contentions in exceptions
duly filed with the Authority after a final award is rendered by the
Arbitrator. For the Authority. Issued, Washington, D.C., May 8, 1984
Harold D. Kessler, Director, Case
Management
14 FLRA No. 71; Case No. O-AR-710; May 8, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Ground for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1704. Reversal DIGEST NOTES
The dispute in this case concerns the separation of a probationary
employee. The Arbitrator determined that the grievance was arbitrable
and on the merits, he reinstated the grievant with backpay and benefits.
The agency contended in its exceptions that the arbitrator's award was
contrary to law and regulation. the authority held that the award was
deficient in its entirety as contrary to 5 U.S.C. 3321 and 5 CFR part
315, subpart H. Accordingly, the Authority set aside the award.
U.S. DEPARTMENT OF JUSTICE,
FEDERAL PRISON SYSTEM
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS,
LOCAL 1494
Case No. O-AR-710
This matter is before the Authority on an exception to the award of
Arbitrator James C. Duff 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 dispute in this case concerns the separation of the grievant
during her probationary period. A grievance was filed and submitted to
arbitration contesting the separation. The Arbitrator determined that
the grievance was arbitrable and on the merits he reinstated the
grievant with backpay and benefits.
In its exception the Agency contends that the award is contrary to
law and regulation. The Authority agrees.
In Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
3342, 14 FLRA No. 33 (1984), the Authority specifically held on the
basis of the rationale and conclusion of the court in Department of
Justice, Immigration and Naturalization Service v. Federal Labor
Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee is precluded by governing law and regulation.
Thus, in terms of this case, the Authority concludes that the award, by
finding the grievance arbitrable and resolving the grievance on the
merits and ordering the grievant reinstated, is deficient in its
entirety as contrary to the statutory and regulatory scheme set forth in
5 U.S.C. 3321 and 5 CFR part 315, subpart H. Accordingly, the award is
set aside. Issued, Washington, D.C., May 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
14 FLRA No. 70; Case No. O-AR-325; May 8, 1984.
DIGEST HEADINGS
1000. ARBITRATION
1600. Grounds for Review
1601. Award Conflicts with Applicable Law
1602. Award Conflicts with Appropriate Regulation
1700. Implementation of Award
1704. Reversal DIGEST NOTES
The dispute in this matter concerned the termination of a
probationary employee. The arbitrator determined that the separation
was in violation of the parties' agreement and reinstated grievant. The
agency, in its exception, contended that the award was contrary to law
and regulation. The Authority held that the award was deficient as
coverage by a negotiated grievance procedure concerning the separation
of a probationary employee is precluded by 5 U.S.C. 3321 and 5 CFR part
315, subpart H. Accordingly, the award was set aside.
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1164, AFL-CIO
Case No. O-AR-325
This matter is before the Authority on an exception to the award of
Arbitrator Peter R. Blum 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/
The dispute in this case concerns the termination of the grievant
during her probationary period for unsatisfactory work performance. She
filed a grievance claiming that, in so doing, management had violated
the parties' collective bargaining agreement and seeking reinstatement
with backpay for an additional period of probation in order to
demonstrate satisfactory work performance.
The Arbitrator first determined that the grievance was grievable and
arbitrable, rejecting the argument that this matter was not grievable
and arbitrable because it concerned alleged violations of the agreement
that were directly connected with the grievant's termination during her
probationary period. The Arbitrator further determined that management
had violated the agreement and as a remedy ordered the grievant
reinstated and continued her probationary period.
In its exception the Agency contends that the award is deficient in
its entirety because it is contrary to law and regulation. The
Authority agrees.
In Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
3342, 14 FLRA No. 33 (1984), the Authority specifically held on the
basis of the rationale and conclusion of the court in Department of
Justice, Immigration and Naturalization Service v. Federal Labor
Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by a
negotiated grievance procedure of a grievance concerning the separation
of a probationary employee is precluded by governing law and regulation.
Thus, in terms of this case, the Authority concludes that the award,
both by finding the grievance, which was clearly linked to the Agency's
decision to terminate the grievant during her probationary period for
unsatisfactory work performance, grievable and arbitrable and by
resolving the grievance on the merits and ordering the grievant
reinstated, is deficient in its entirety as contrary to the statutory
and regulatory scheme set forth in 5 U.S.C. 3321 and 5 CFR part 315,
subpart H. /2/ Accordingly, the award is set aside. Issued,
Washington, D.C., May 8, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In its opposition, the Union argues that the exceptions must be
dismissed as premature under the Authority's Rules and Regulations
because the Arbitrator retained jurisdiction for a period of 60 days.
However, the retention of jurisdiction to resolve possible problems of
implementation provides no basis for finding premature the Agency's
exceptions to the award.
/2/ At all relevant times in this case, 5 U.S.C. 3321 and 5 CFR part
315, subpart H have remained substantially unchanged.
14 FLRA No. 69; Case No. O-NG-411; May 6, 1984.
DIGEST HEADINGS
2000. NEGOTIABILITY
2150. Management Rights
2152.05 Assign Employees
2152.40 Assign Work
2152.50 Determine Personnel by which Agency Operations Shall Be
Conducted
2200. Subjects of Bargaining
2201. At Election of Agency
2201.10 Methods and Means of Performing Work DIGEST NOTES
A proposal is a negotiable procedure under Sec. 7106(b)(2) that sets
up a joint labor-management committee to develop the agency's training
program. The proposal would not prevent the agency from assigning
training at its discretion pursuant to its right to assign work under
Sec. 7106(a)(2)(B). The committee is intended to serve as a forum for
union participation in the evaluation of training needs and in the
formulation of programs to meet those needs, but not to negotiate the
content of the agency's training. The proposal would not require the
retraining of any employee; would not require training at stated
intervals or provide the duration of training assignments; would not
mandate specific training assignments to particular employees. Also,
the union's designation of its members of the committee does not
interfere with management right's to assign employees since management's
right to assign employees means to assign them to positions within the
agency (rather than a union position). Furthermore, the union's right
to assign representatives to the committee does not interfere with the
agency's right to determine personnel by which agency operations shall
be conducted under Sec. 7106(a)(2)(B). Finally, a joint
labor-management committee which reports annually on goals established
to meet the agency's training needs would not constitute a "means" of
performing work of the agency within the meaning of Sec. 7106(b)(1).
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2761
U.S. DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATION CENTER, ST. LOUIS,
MISSOURI
Case No. O-NG-411
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of one Union proposal. /1/ Upon careful consideration of
the entire record, including the parties' contentions, the Authority
makes the following determinations.
A. The training program will be developed with a committee,
comprised of three (3) representatives from Management, and three
(3) from the Union.
B. The committee will report annually, after a formal review
of the training provided for the past year.
C. The committee will establish goals which are consistent with
the projected needs of the Center.
D. The committee will meet at least quarterly.
In agreement with the Union, the Authority finds this proposal for a
joint labor-management committee to develop the Agency's training
program to be a negotiable procedure under section 7106(b)(2) of the
Statute. /2/ Insofar as appears from the record, the committee is
intended to serve as a forum for Union participation in the evaluation
of training needs and in the formulation of programs to meet those
needs, but not to negotiate the content of the Agency's training. /3/
That is, the proposal would only provide the Union an opportunity to
express its views regarding the Agency's training programs, rather than
mandating joint determination of the substantive aspects of those
programs. Thus, similar to Union Proposal 2 which the Authority held to
be negotiable in International Brotherhood of Electrical Workers,
AFL-CIO, Local 121 and U.S. Government Printing Office, Washington,
D.C., 8 FLRA No. 35 (1982) (proposal to negotiate retraining programs
incident to reductions in force), the present proposal would not require
the retraining of any employee. Cf. National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA No. 106 (1981) (Proposals I-III) (proposals
requiring management to provide training at stated intervals held
nonnegotiable); U.S. Government Printing Office, supra, (Proposal 1)
(proposal requiring management to provide training to unit employees
held nonnegotiable). Furthermore, the present proposal would not limit
or prescribe the duration of training assignments and the scheduling
thereof, cf. International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438, 439 (1980) (proposal specifying
length of training sessions and limiting time periods for training held
nonnegotiable); International Association of Fire Fighters, AFL-CIO,
CLC, Local F-116 and Department of the Air Force, Vandenberg Air Force
Base, California, 7 FLRA No. 122 (1982) (proposal limiting training to
certain time periods held nonnegotiable); and would not mandate
specific training assignments to particular employees upon request, cf.
Federal Aviation Administration, supra. Rather, Section A of the
proposal would only obligate the Agency to consider the Union's views in
planning the training program.
Thus, the Authority concludes from the record that the proposal would
not interfere with the Agency's discretion concerning whether to assign
employees to training programs. The Authority concludes further that
the proposed committee is a negotiable procedure under section
7106(b)(2) since it would not prevent the Agency from acting at all to
assign training in its discretion, pursuant to its right to assign work
under section 7106(a)(2)(B) of the Statute.
Moreover, the Agency's remaining arguments in support of its claim
that the proposal is outside the duty to bargain do not require a
different result. First, for the reasons stated in National Federation
of Federal Employees, Local 541 and Veterans Administration Hospital,
Long Beach, California, 12 FLRA No. 62 (1983), the present proposal
would not, by requiring negotiation regarding Union participation on the
committee, interfere with management's right to assign work under the
Statute. In the cited decision, the Authority rejected this claim with
respect to a proposal, to the same effect as the one disputed herein,
which required negotiation regarding union participation on a committee
to design, develop and administer an incentive awards program.
Second, the Agency contention that the Union's designation of members
of the committee interferes with its right to assign employees under
section 7106(a)(2)(A) of the Statute /5/ is inapposite. As the
Authority has consistently held, the right to assign employees means to
assign them to positions in the agency, see, e.g., American Federation
of Government Employees, AFL-CIO, Local 987 and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 15 (1981);
American Federation of Government Employees, AFL-CIO, Local 916 and
Tinker Air Force Base, Ohio, 7 FLRA No. 45 (1981) (Union Provision III).
Designation of an employee to serve as a representative on the
committee, however, would not constitute an assignment to a position
and, hence, would not concern the right to assign employees under the
Statute. /6/
Third, contrary to the Agency's contention that the proposed Union
representation on the committee interferes with its right to determine
the personnel by which Agency operations shall be conducted under
section 7106(a)(2)(B), /7/ the Authority finds that, in this respect,
the proposal is to the same effect as the proposal in American
Federation of Government Employees, AFL-CIO, Local 1786 and Marine Corps
Development and Education Command, Quantico, Virginia, 2 FLRA 423
(1980), providing for union representation on wage survey teams, which
was held not to prevent the agency from determining the personnel to
represent it on those teams. For the reasons fully discussed in Marine
Corps Development and Education Command, therefore, the Authority finds
that the proposal at issue herein does not directly interfere with the
Agency's rights under section 7106(a)(2)(B) of the Statute.
Finally, the Agency's contention that the disputed proposal herein
concerns the "means" of performing work under section 7106(b)(1), /8/
about which it may elect but cannot be required to negotiate, cannot be
sustained, for the reasons stated in Veterans Administration Hospital,
Long Beach, supra, in which the Authority rejected the same argument in
connection with a proposal to the same effect. Under section
7106(b)(1), a joint labor-management committee which reports annually on
goals established to meet the Agency's training needs would not
constitute a "means" of performing the work of the Agency, i.e., its
publications work.
Accordingly, 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 as to the "absences" proposal, with respect to
which the Agency withdrew its allegation of nonnegotiability. IT IS
FURTHER ORDERED that the Agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning the "committee" proposal.
Issued, Washington, D.C., May 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
/1/ In its response to the petition for review, the Agency withdrew
its allegation that a second proposal concerned with the manner of
charging absences is nonnegotiable. Accordingly, there is no longer an
issue as to whether that proposal is within the duty to bargain.
/2/ In deciding that the Union's proposal is within the duty to
bargain, the Authority, of course, makes no judgment as to its merits.
/3/ Union Response at 3.
/4/ Section 7106 of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(B) to assign work(.)
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)
/5/ Section 7106(a)(2)(A) provides, in relevant part, as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(A) to . . . assign . . . employees in the agency(.)
/6/ Similarly, the Agency's claim that it could be required to
reclassify the positions of employees serving as Union representatives
due to their additional responsibilities on the committee and as a
consequence to assign them to higher-graded positions, is inapposite.
The committee-related tasks performed by Union representatives would not
be a part of such employees' jobs and would not need to be reflected in
their position descriptions. See National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long Beach,
California, 12 FLRA No. 62 (1983) at 5 of opinion.
/7/ Section 7106(a)(2)(B) provides, in relevant part, as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(B) . . . to determine the personnel by which agency operations
shall be conducted(.)
/8/ Section 7106(b)(1) provides, in relevant part, as follows:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the technology,
methods, and means of performing work(.)