FLRA TO HOLD NATIONAL TRAINING CONFERENCE
Vol. 10 No. 1
October 1, 2000 - January 31, 2001
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
- News to Know
- Update on CADR
- Authority Cases
- Court Cases
- FSIP Final Actions
- FSIP Settlement Corner
- General Counsel's Advice to Regional Directors
- General Counsel's Settlement Corner
FLRA TO HOLD NATIONAL TRAINING CONFERENCE
On April 23-24, 2001, the FLRA will be holding a two day national training conference designed to provide training on the Statute, FLRA regulations and procedures, alternative dispute resolution techniques, practical approaches to bargaining, and new developments in the Federal labor-management relations program. The Conference, which is designed for agency managers, agency and union representatives, and persons providing dispute resolution services in the Federal sector, will be held at the Hilton Crystal City in Arlington, VA. Registration costs for the conference is $275, which will include plenary sessions, workshops, luncheons with speakers and useful reference materials. Additional information regarding the conference can be found on the back pages of this publication, and registration materials are available on the FLRA web site www.flra.gov. or from the FLRA conference line 703-902-1264.
Statutory Training Initiative on Arbitration and Negotiability
The Authority, the three Member agency adjudicative body, has implemented an initiative to provide statutory training on arbitration and negotiability under the Statute and the applicable Authority regulations and procedures. The Authority has established the position of Training Program Coordinator within the Office of the Chairman to administer the training initiative. A goal of the training is to increase the parties' and arbitrators' understanding of the Statute and the Authority's regulations and procedures. The staff of the Authority will design and develop the curriculum and deliver the training.
Examples of subjects covered in statutory training are:
- An overview of grievance-arbitration under the Statute, including the procedures for filing arbitration exceptions, as well as the standard of review the Authority will apply to various types of exceptions;
- What arbitrators must keep in mind when awards affect the management rights set forth in the Statute; the requirements under the Back Pay Act that arbitrators must apply when awarding back pay as a remedy; and considering a Union's request for attorney fees;
- The procedures for filing negotiability appeals, including the four major filings and post-petition conference;
- An overview of substantive negotiability, including the duty to bargain and the scope of bargaining.
Basic and advanced statutory training is offered to management, union, or joint management and union audiences as well as to arbitrators as a group. Statutory training courses can be tailored to meet specific needs.
Request for Authority staff to deliver training at small group sessions, conferences and similar events, should be made by telephone, e-mail, fax or written inquiry to:
Training Program Coordinator, Office of the Chairman
Federal Labor Relations Authority
607 14th Street, NW
Washington, DC 20424-0001
Telephone: (202) 482-6690 X446 fax: (202) 482-6635
COMPONENTS CONDUCT JOINT TRAINING AT FSIP 30TH ANNIVERSARY SESSION
On December 11, 2000, representatives of the three components of the FLRA - the Authority decisional component, the Office of General Counsel (OGC), and the Federal Service Impasses Panel (FSIP) - conducted a joint training session at the Department of Labor Auditorium in Washington, D.C. at a celebration of the FSIP's 30th anniversary resolving impasses in the Federal sector. Alice Bodley, Chief Counsel for FLRA Chairman Don Wasserman; Steve Svartz, Assistant General Counsel for Legal Service for the OGC; and Joseph Schimansky, Executive Director of the FSIP, provided an overview of the FLRA's structure and programs for about 100 Federal sector labor relations practitioners. Among the topics discussed were the different missions of the components and how the components coordinate their efforts when parties file cases in all three components arising from the same bargaining context.
Following this joint training session, Panel Chair Bonnie Prouty Castrey moderated an engaging discussion with former Panel Members and Executive Directors on the origins and history of the FSIP, the evolution of the FSIP's impasse resolution procedures, and some of the more important cases that have been decided throughout the years. Former Panel Members in attendance were Charles Morris and Beverly Shaffer, who were appointed by President Carter; Daniel Kruger and Susan Robfogel, first appointed by President Reagan; Charles Kothe, appointed by President Bush; and Gilbert Carrillo and former Chair Betty Bolden, appointed by President Clinton. Also on this part of the program were former FSIP Executive Directors Howard Solomon (1971-1988) and Linda Lafferty (1988-1996). The FSIP would like to thank all those who contributed and attended in making this event both informative and enjoyable.
The FLRA Collaboration and Alternative Dispute Resolution (CADR) program continued to assist parties both in resolving cases and providing training. In November, the CADR office and the Boston regional office worked with AFGE Local 1698 and the Naval Inventory Control Plant on a negotiability appeal and unfair labor practice charge, which resulted in all issues being resolved and both cases being withdrawn. Also in November, the CADR office presented statutory training and problem-solving training to a group of new union stewards and union officers of IFPTE Local 29 at Goodard Space Flight Center. The evaluations indicated that the training was well-received. In December, the CADR office participated in the new employee orientation and explained how ADR is used by the office. The office has been assisting the General Counsel by reviewing the OGC ADR Tool Kit.
The OGC continued to provide numerous facilitation, intervention, training and education services to representatives of labor organizations and management under its ADR services program. One noteworthy example of a recent effort took place at an Air Force Base in Texas. After noting a rise in the number of unfair labor practice charges filed at this activity, the General Counsel and the Dallas Regional Director met with the leadership of management and the union at the facility. The parties agreed that it would be beneficial to have OGC staff work with their representatives in a program that was focused on labor relations strategic planning and reducing and avoiding labor-management conflict. OGC Regional Dispute Resolution Specialists from Dallas and Chicago, along with another attorney from the Dallas Region, worked with the parties over a 3-day period. As a result of these efforts, the parties developed practical approaches to avoiding future disputes and resolved over half of the 44 pending unfair labor practice charges without the need for any further investigation or litigation.
During the first quarter of fiscal year 2001, the Office of Administrative Law Judges' voluntary Settlement Program received 61 referrals - a pace that would break the previous annual record by 50 cases, or 25%. Among the cases resolved successfully this quarter, one involved an agreement to bargain over the process of rotating support staff to various ALJs; another involved the rescission of a change in the way that professional employees estimated and obtained approval for the amount of overtime that would be necessary to complete an assignment; and a third involved an agreement to negotiate over mandatory overtime procedures in a medical laboratory.
These summaries of selected cases were prepared by FLRA staff for guidance and informational purposes only, and may not be used as an official position of, or interpretation by the Authority. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.
In United States Dep't of the Navy, Naval Air Warfare Command, Aircraft Div., Patuxent River, Md., 56 FLRA No. 174 (2000) (Chairman Wasserman concurring), the Authority granted in part, and denied in part, the Union's application for review of the Regional Director's (RD) decision denying the Union's petition to clarify its existing unit to include a group of unrepresented employees that were relocated. The Authority found that the RD failed to apply established law in concluding that accretion principles were not applicable because there was no change in Agency operations. The Authority concluded that because the employees sought in the petition were physically relocated to the same location where employees in the existing unit were located, there was a change in Agency operations affecting the appropriate unit criteria of the existing unit. Applying accretion principles to the facts in this case, the Authority found that the employees at issue had not accreted because they were not sufficiently integrated with the employees in the existing unit so as to share a community of interest for the purposes of accretion.
Unfair Labor Practice Cases
In United States Dep't of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, SC, 56 FLRA No. 160 (2000), the Authority adopted, without precedential significance, an Administrative Law Judge's (ALJ's) finding that an agency's conduct in reprimanding a union official and making certain remarks to him violated the Statute. The Authority also adopted the ALJ's finding that the Agency did not commit an unfair labor practice (ULP) by detailing the official to another work area and ordering him to undergo a drug test and psychiatric evaluation as these actions were taken to protect the Agency's employees following threatening remarks made by the official concerning a supervisor. The Authority held that the General Counsel had not established a prima facie case of discrimination because the preponderance of the evidence failed to show that the official's union activity was a motivating factor behind the Agency's actions.
In AFGE, Local 3137, 56 FLRA No. 178 (2000), the Authority adopted the decision of an Administrative Law Judge (ALJ) dismissing an unfair labor practice complaint filed by the Agency against the Union. The complaint alleged that the Union failed to comply with the terms of the collective bargaining agreement by refusing to pay its share of arbitration expenses for a grievance involving a bargaining unit employee. The agreement provision required the Agency and the Union to bear the fees equally. However, the Union and the grievant had entered into a side agreement in which the grievant would be held responsible for the fees associated with arbitrating the grievance. The ALJ found, and the Authority agreed, that the Union had not repudiated the parties' collective bargaining agreement, as claimed by the General Counsel, because the Union's actions were consistent with a reasonable interpretation of the side agreement. The Authority also determined that the General Counsel's reliance on the First Restatement of Contracts, even if properly raised, did not establish that the union's actions constituted a clear and patent breach of the collective bargaining agreement.
In I.F.P.T.E., Local 96, 56 FLRA No. 181 (2000), the Authority addressed and applied portions of the Authority's Regulations prescribing the sequence in which parties to a negotiability appeal file their position statements, the purpose and content of the specific filings and the consequences that attach from a failure to meet the burdens imposed on each of the parties. At issue in the case was a multi-part proposal concerning the relocation of an agency's organizational unit. The Agency claimed, among other things, that the proposal was outside the duty to bargain because it affected management's right to determine its organization. The Union did not file a response to the Agency's statement of position and nothing in the petition for review or its attachments disputed the management rights claim. The Authority found that the Union's failure to meet its burden of responding to the Agency's claim was a concession that the proposal affected management's right to determine its organization. Noting Authority precedent holding that proposals pertaining to geographical location where employees or organizational units will conduct an agency's operations concern the exercise of the right to determine organization, the Authority found that the proposal in the case was outside the duty to bargain. Consequently, the Authority dismissed the petition for review.
In American Federation of Government Employees, Local 3529 and United States Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas, 56 FLRA No. 186 (2001), the Authority addressed the negotiability of a proposal (Proposal 3) that would require that: (1) certain employees be assigned to teams instead of certain managers; (2) all supervisors for whom those employees performed more than 150 hours of work prepare exit performance evaluations for those employees; and (3) those exit performance evaluations be considered in preparing the employees' annual performance appraisals. The petition also involved a proposal (Proposal 5) that would require management to modify the wording of a particular memorandum to reflect the changes caused by Proposal 3. As a preliminary matter, the Authority rejected the Agency's argument that it should decline to address the merits of the proposals because an Authority Regional Director (RD) previously stated, in a decision not to issue an unfair labor practice (ULP) complaint in another case, that similar proposals were not negotiable. The Authority stated that reasons given by an RD not to issue a ULP complaint do not preclude the Authority from addressing the merits of negotiability proposals. Addressing the merits, the Authority held that each of the requirements imposed by Proposal 3 affected management's right to assign work under section 7106(a)(2)(B) of the Statute and that the proposal did not constitute a negotiable procedure or appropriate arrangement. Accordingly, the Authority concluded that Proposal 3 was outside the Agency's duty to bargain. Noting the Union's assertion that it would be unnecessary to address Proposal 5 if Proposal 3 were found nonnegotiable, the Authority declined to address the merits of Proposal 5 and dismissed the petition as to both proposals.
In United States Dep't of the Treasury, IRS, Authority denied an Agency's motion for reconsideration of the Authority's decision in 56 FLRA 393 (2000). In the original decision, the Authority denied the Agency's exceptions to an arbitration award, which held that the Agency had agreed to bargain over matters covered under section 7106(b)(1) of the Statute and that this election obligated the Agency to proceed to the Federal Service Impasses Panel (Panel) or other third-party impasse procedures, as necessary. In particular, the Authority rejected the Agency's contentions that the award was contrary to law, the grievance was not arbitrable and the Arbitrator's reliance on Office of Personnel Management (OPM) guidance was deficient. The Authority determined, respectively, that the Arbitrator's order to proceed to the Panel was a matter of contract interpretation that was not contrary to the Statute, the claim of arbitrability was barred from consideration by section 2429.5 of the Authority's Regulations, and there was no showing that the Arbitrator had relied on OPM guidance or, if he had, that such reliance was precluded. In the motion for consideration, the Agency claimed that the Authority erred in finding that the jurisdictional arguments were barred and that the order to proceed to the Panel was not contrary to law. The Authority concluded that the Agency failed to establish extraordinary circumstances warranting reconsideration of its decision. The Authority stated that its decision to bar consideration of the jurisdictional claims was based on applicable precedent addressing arbitral jurisdiction and that the agency's arguments regarding Panel involvement were viewed as part of the arguments previously rejected on the basis that the award was a matter of contract interpretation.
In United States DOJ, Fed. BOP, Mgmt. and Spec. Trng. Ctr., 56 FLRA No. 158 (2000), the Authority reviewed exceptions to an arbitration award finding that the Agency violated the parties' agreement by unilaterally changing work schedules to require instructors to take a 1-hour lunch period rather than a 30-minute lunch period and ordering the Agency to pay all affected employees retroactive overtime or compensatory time. The Authority denied the Agency's exception claiming that the award was deficient because the Arbitrator failed to give effect to the parties' established past practice of allowing the 1-hour lunch period. The Authority found that whether there was a past practice of requiring instructors to take 1-hour lunch periods was an issue of contract interpretation, and the Agency did not establish that the award failed to draw its essence from the parties' agreement. The Authority also denied the Agency's claim that the award violated management's right to assign work, finding that the provision requiring 30-minute lunch periods was properly negotiated in accordance with § 7106(b)(1) of the Statute. The Authority found, however, that the remedy of overtime or compensatory time was deficient under 5 C.F.R.§ 551.411(c), because it awarded overtime or compensatory time for bona fide meal periods. Accordingly, the Authority remanded the case to the parties for resubmission to the Arbitrator to determine an appropriate remedy, if any.
In GSA, Region 9, L.A., Cal., 56 FLRA No. 164 (2000), the Authority reviewed an arbitration award in which the Arbitrator mitigated a proposed ten-day suspension to a five-day suspension, and ordered the Agency to grant the grievant certain official time. The Authority construed the Agency's only exception -- that the award of official time was deficient because the Agency was not afforded an opportunity to be heard on the official time issue -- as an argument that the Arbitrator failed to conduct a fair hearing. The Authority concluded that the Arbitrator failed to conduct a fair hearing. The Authority found that the stipulated issues in the case did not include the official time issue, and that the issue was raised only in the Union's post-hearing brief, which was filed contemporaneous with the Agency's post-hearing brief. The Authority determined that by failing to provide the Agency with an opportunity to respond to the official time issue raised by the Union's post-hearing brief, the Arbitrator prejudiced the Agency in a manner that affected the fairness of the proceeding as to that issue.
In United States Department of the Army, Corpus Christi Army Depot, Corpus Christi, TX, 56 FLRA No. 189 (2001), the Authority rejected exceptions to an original award in which the Arbitrator ordered that employees who were exposed to asbestos be given environmental differential pay (EDP), with interest, for 6 years prior to the time the union filed the grievance. The Authority rejected the Agency's claims that: the award failed to draw its essence from the agreement because the grievance procedure excluded grievances over EDP; the Arbitrator exceeded his authority by disregarding the language of the agreement excluding EDP claims; the award was contrary to the Statute, which allows parties to exclude matters from negotiated grievance procedures; the Arbitrator's interpretation and application of EDP regulations was contrary to law or raised constitutional and other legal concerns; the award was contrary to the Back Pay Act by failing to limit the period of backpay recovery; the Agency's decision to deny EDP should be granted deference; the award was based on nonfact; the Agency was denied a fair hearing; and the award was incomplete, ambiguous or contradictory. The Authority also found that an exception relating to the union's application for payment of expert witness fees was premature because the Arbitrator had not ordered the Agency to pay the cost of expert witnesses. However, the Authority found that the Arbitrator's supplemental award, which was issued to clarify the process by which the original award of contractual attorney fees would be paid was deficient, in part. Specifically, the Authority found that the arbitrator's order directing a particular agency official to deduct 33 1/3 percent from the employees' EDP award and pay that amount to the unions' attorneys, in accordance with a contractual arrangement between the unions and bargaining unit employees, was contrary to law. The Arbitrator's alternative order, that the Agency take whatever actions are necessary to provide for and ensure the payment of the contractual fees, was modified by the Authority in a number of respects outlined in the decision.
Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000), reviewing 55 FLRA 925 (1999). The D.C. Circuit denied the Union's petition for review of an Authority decision finding a proposal nonnegotiable because the proposal related to a military assignment and would invite bargaining over a military decision, in violation of 10 U.S.C. § 976(c). The Union's proposal would have governed how the National Guard informs dual-status technicians of their eligibility to volunteer for active duty in a special pay status under 5 U.S.C. § 6323(d). The Court gave the FLRA's interpretation "judicial respect" and also determined that the proposal threatens to interfere with the National Guard's discretion to call technicians into action as it sees fit, pursuant to 10 U.S.C. § 12301. Therefore, in agreement with the Authority, the Court concluded that the proposal was inconsistent with 10 U.S.C. § 976(c), which prohibits bargaining over the terms and conditions of military service.
These summaries of selected cases were prepared by FLRA staff for guidance and informational purposes only, and may not be used as an official position of, or interpretation by the Federal Service Impasses Panel. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.
— Department of the Treasury, U.S. Customs Service, Newark, New Jersey and National Treasury Employees Union, Case No. 00 FSIP 135 (November 6, 2000), Panel Release No. 436 (Decision and Order). The Panel determined that the dispute, concerning proposed changes to the uniform policy, be resolved on the basis of written submissions with rebuttal statements from the parties. The Employer proposed that sleeve lengths be the same for all inspectors working at the same port; and that longevity hash marks denoting 5 years of service be required for uniform shirts. The Union proposed that the status quo be maintained by: (1) allowing local Union representatives to negotiate the extent to which employees will have discretion over whether to wear long or short sleeve shirts; and (2) permitting employees to have discretion over the wearing of longevity hash marks. The Panel adopted the Union's proposal to maintain the status quo. It explained that the Employer had not established that sleeve length uniformity or mandatory longevity hash marks created any practical problems or promoted a more professional law enforcement image for officers.
— Federal Deposit Insurance Corporation, Washington, D.C. and National Treasury Employees Union, Case No. 00 FSIP 121 (November 8, 2000), Panel Release No. 436 (Decision and Order). The Panel determined that the dispute, concerning the workspace size for Corporate Grade (CG)-11 employees, should be resolved on the basis of written submissions with rebuttal statements from the parties. The Union proposed that CG-11 employees be allocated workstations of 96 square feet. The Employer proposed 80 square feet of work space for each CG-11 employee. The Panel adopted the Union's proposal. It explained that applying a guideline of a maximum of 80 square feet of space for CG-11 employees, as the Employer proposed, would result in a "major reduction" in space from the amount most of the CG-11 employees currently have, and the Employer had not adequately explained why the work space allocated for CG-12 employees is nearly twice the size of its proposed space for CG-11 employees.
5-4/9 Compressed Work Schedule
— Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Lompoc, California and Local 3048, American Federation of Government Employees, AFL-CIO, 00 FSIP 129 (November 13, 2000), Panel Release No. 436 (Decision and Order). The parties' dispute arose under the Federal Employees Flexible and Compressed Work Schedules Act (Act). The Panel determined that the case should be resolved through an informal conference with Panel Chair Bonnie Prouty Castrey. The Union proposed two different 5-4/9 pilot schedules: (1) UNICOR employees (and inmates working at UNICOR) would have off the same alternate Friday bi-weekly; or (2) that UNICOR employees would rotate regular days off. The Employer asserted that either CWS schedule, if adopted, would likely cause an adverse agency impact by diminishing the level of service furnished to the public and by reducing productivity. The Panel determined that the Employer had met its statutory burden under the Act with respect to the Union's first proposal because closing the UNICOR facility an additional 26 times per year would have a disruptive effect on inmates and be likely to cause a diminished level of service to the public. The Panel, however, found that the Employer had failed to demonstrate that the Union's second proposal would likely cause an adverse agency impact, and ordered the parties to return to the bargaining table for additional negotiations on that schedule.
Casual Dress Code Policy
— Department of Justice, Office of the U.S. Attorney for the District of Columbia, Washington, D.C. and Local 3620, American Federation of State, County and Municipal Employees, Council 26, AFL-CIO, Case No. 00 FSIP 142 (December 20, 2000), Panel Release No. 437 (Decision and Order). The Panel determined that the dispute, concerning casual Fridays under the dress code policy, should be resolved on the basis of single written submissions from the parties. The Union proposed that employees continue to be permitted to wear jeans and sneakers on "casual Friday." The Employer proposed that certain attire, such as sweat suits, blue jeans, and sneakers, not be permitted on casual Fridays. It also asserted in its submission, for the first time, that the Panel lacked jurisdiction over the dispute because dress code policy involves a "methods and means" of performing work, a permissive subject of bargaining under § 7106(b)(1) of the Statute, over which it elects not to bargain. Because no substantively identical proposal was identified for the Panel to apply in accordance with the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), the Panel declined to retain jurisdiction over the dispute, but ordered the Employer to maintain the status quo regarding the dress code policy while the Union appealed the Employer's nonnegotiability allegation to the FLRA.
Union Parking Space, Leave Policy, Definitions Article
— Department of Health and Human Services, National Institutes of Health, Bethesda, Maryland and Local 2419, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 123 (December 22, 2000), Panel Release No. 437 (Decision and Order). The Panel determined that the case, concerning a Union parking space, the substitution of administrative leave for annual leave for appearances in court to defend against NIH-related traffic infractions, and inclusion of a "Definitions" article in the agreement, should be resolved through single written submissions. Regarding the issue of a Union parking space, the Union proposed that it be provided a single reserved space closest to the Union office. The Employer proposed that the Union withdraw its proposal because parking on the NIH campus is limited. The Panel adopted a modified version of the Union proposal: In the event a parking space is not available near the Union's office, the Employer would provide a space at a mutually agreeable location. Regarding the issue of administrative leave for appearances in defending NIH police-issued traffic citations, the Union proposed that the Employer convert any annual leave requested for such appearances to administrative leave in the event an employee prevails on the merits. The Employer proposed that the Union be ordered to withdraw its proposal, asserting there was no legal basis for the proposal. In adopting a modified version of the Union's proposal, the Panel decided that an employee's annual leave would be converted to administrative leave in instances where the employee's citation is rescinded and/or the employee is completely exonerated in the case on the merits. With respect to the inclusion of a Definitions article in the agreement, the Union proposed an article consisting of 18-pages which defined labor relations terms, asserting it would reduce the number of interpretation conflicts which may arise once the agreement is implemented. The Employer proposed that the Union be ordered to withdraw its proposal because many of the terms expressed in the proposed article are irrelevant and will not afford the parties a clearer understanding of the agreement. The Panel ordered the Union to withdraw its proposal because many of the terms and definitions were not shown to relate to the parties' agreement.
Official Time for Training and Representation, Allocation of Arbitration Fees and Costs
— Department of the Army, U.S. Army Corps of Engineers, Rock Island District, Rock Island, Illinois and Local 584, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 143 (December 22, 2000), Panel Release No. 437 (Decision and Order). The Panel determined that the dispute, concerning official time for Union-sponsored training, the amount of official time for representation, and the allocation of arbitration costs, should be resolved through an informal conference with a Panel representative. Regarding official time for training, the Union proposed that the Employer provide "up to 600 hours" of official time. The Employer proposed granting official time for training not to exceed 400 hours. The Panel adopted the Employer's proposal, finding 400 hours, which represented a 200 hour increase, to be an adequate amount of official time for training. Regarding the amount of official time for representational purposes, the Union proposed that each week its Local president be granted 2 days and another officer be granted 1 day of official time. The Employer proposed maintaining the status quo of granting the Local president and another representative each 1 day of official time per week. The Panel adopted a compromise, maintaining the current amount of official time for the representatives, and ordering the Local president to accumulate official time data over a 1-year period, after which the parties would evaluate the need, if any, for additional official time. With respect to the issue of allocation of arbitration costs, the Employer proposed that the parties' current "loser pays" provision be retained without modification. The Union asserted that the parties had had difficulty in getting arbitrators to order the losing party to pay the entire costs of the proceeding. It proposed that, to be considered the "losing party," it is only necessary for the arbitrator's decision to be "a preponderance in favor of the other party." The Panel adopted the Employer's proposal. It explained that the Union's proposed wording was vague and not self-enforcing, and would likely do little to lessen future disagreements over the current loser pays provision.
— Department of Defense, National Guard Bureau, Iowa Army National Guard, Johnston, Iowa and Heartland Chapter, Association of Civilian Technicians, Case No. 00 FSIP 148 (December 22, 2000), Panel Release No. 437 (Decision and Order). The Panel determined that the dispute, which concerns the procedure for filling vacancies, should be resolved on the basis of written submissions. The Employer proposed that when six or more applicants are qualified for vacancies, the field will be narrowed through rating and ranking in accordance with National Guard regulations, and the rankings will be considered, but not be binding upon, the Employer. The Union proposed that, after considering but not selecting bargaining unit candidates, the Employer will prepare a written justification for their non-selection; and if a non-bargaining unit candidate is selected after bargaining unit candidates have been considered, the Employer will make a written statement of reasons explaining the selection in view of the reasonable justification for non-selection previously written about the candidate. The Panel, noting there were aspects of both parties' proposals that conflicted with previously agreed-to wording in the Article, adopted compromise wording which (1) eliminated from the proposals the potentially conflicting wording, and (2) preserved the Employer's right under 5 U.S.C. § 7106(a)(2)(C) to select employees for positions.
ABOUT THIS COLUMN
Along with the issuance of final actions (i.e., Decisions and Orders by the full Panel and Arbitrators' Opinions and Decisions by its designated representatives), the Panel also fulfills its statutory obligations by assisting the parties in their efforts to achieve voluntary settlements. During the period covered by this bulletin, Panel Members were successful in obtaining complete settlements in the following cases:
— In Department of Health and Human Services, Food and Drug Administration, New Jersey District, Parsippany, New Jersey and National Treasury Employees Union, Chapter 290, Case Nos. 00 FSIP 125 and 127 (closed October 2, 2000), the parties reached impasse over time periods for flexible work bands and credit hours. Panel Member John G. Wofford conducted an informal conference and the dispute was resolved.
— In Department of Defense Education Activity, Domestic Dependents Elementary and Secondary Schools (DDESS), Fort Jackson Schools, Fort Jackson, South Carolina and Local 56, AFGE, AFL-CIO, Case No. 01 FSIP 17 (closed January 5, 2000), the parties reached impasse over the Employer's decision to terminate a 15-year practice permitting employees to bring their children to the schools where they work before and after the children's school hours and on full days when those schools are closed. Panel Member Edward F. Hartfield conducted a mediation-arbitration proceeding during which the dispute was resolved.
— In Social Security Administration, National City Field Office, National City, California and Local 2879, AFGE, AFL-CIO, Case No. 01 FSIP 30, (closed January 19, 2001), the parties reached impasse over whether the Employer should install plexiglass in window openings in a newly-constructed reception area. In the course of a mediation-arbitration proceeding conducted by Panel Chair Bonnie Prouty Castrey, the dispute was voluntarily settled.
ABOUT THIS COLUMN
The FLRA's General Counsel, Joseph Swerdzewski, has, among other statutory duties, final authority over the issuance of complaints under the Federal Service Labor-Management Relations Statute. The General Counsel's approach in deciding whether to issue a complaint in a particular set of circumstances influences the direction of the law. For that reason, and to keep the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the Bulletin highlights selected cases that were considered by the OGC pursuant to requests for case-handling advice from Regional Directors, and summarizes guidance issued on novel legal issues. The interpretations of the Statute relied upon in the advice and guidance represents the OGC's position, and are not an official position of, or interpretation by, the Authority.
APPLICATION OF ACCRETION PRINCIPLES TO NEWLY ESTABLISHED VA CLINICS
This case raised issues relating to the proper analysis of accretion principles, and the application of those principles to newly established clinics at the Department of Veterans Affairs. The Union filed the petition in this case seeking a determination as to whether the employees of two recently established clinics of the U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois, have accreted to the consolidated professional and nonprofessional bargaining units of Department of Veterans Affairs employees represented by the Union.
First, the General Counsel discussed the framework for deciding accretion issues. In this regard, accretion involves the addition, without an election, of a group of employees to an existing bargaining unit. An accretion will not be found where the employees sought to be added to the existing unit constitute a separate appropriate unit. Even if the employees sought to be added to the existing unit do not constitute a separate appropriate unit, an accretion still will not be found unless the inclusion of those employees in the existing unit continues the appropriateness of that unit. Thus, issues concerning the accretion of employees to an existing bargaining unit are decided by applying the same criteria for determining the appropriateness of a bargaining unit set forth in section 7112(a) of the Statute. A unit is 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 which is enhanced by reducing and preventing unit fragmentation. The record must contain evidence with respect to each of the criteria.
The General Counsel set forth the following framework to be applied in deciding accretion issues:
- Do the employees sought to be accreted constitute a separate appropriate unit?
- If appropriate, there can be no accretion.
- If not appropriate, go to issue 2.
- If appropriate, there can be no accretion.
- Does the inclusion of those employees in the existing unit render that unit still appropriate?
- If not appropriate, there is no accretion.
- If appropriate, there is an accretion.
- If not appropriate, there is no accretion.
The General Counsel concluded after applying the accretion principles to the newly established VA Clinics in this case that: (1) the Clinics are not stand-alone appropriate units; and (2) inclusion of the Clinic employees in the existing consolidated unit met the three appropriate unit criteria. Accordingly, the Region was advised to issue a Decision and Order finding an accretion.
NATIONAL UNION'S REVOCATION OF A LOCAL'S CHARTER AFTER LOCAL FILED PETITION TO AMEND CERTIFICATION
This case concerned a National Union's revocation of a Local Union's charter and actions by the national representative following the Local Union's filing of a petition to amend its certification to reflect a change in affiliation.
The Local Union filed a petition with the Region seeking to amend its certification to reflect the vote of its members to change its affiliation from one union to another union. The Region granted the request and issued a new certification. While the petition was pending, however, the National Union notified the Activity that the Local Union's charter had been revoked in accordance with the Union's Constitution and that someone else would administer the Local Union's affairs. The National Union also submitted an address change to a bank to reflect its new responsibility for managing the Local Union's affairs. The Local Union challenged the revocation of the charter. The National responded that because the petition for reaffiliation had since been granted and the National's Constitution no longer applied to the Local, the challenge was dismissed. The Local then contended that the seizure of its accounts was illegal and asked for its return. Since the new certification issued, the reaffiliated Local has continued to function as the exclusive representative and was recognized as such by the Activity.
The Local then sought assistance from the Department of Labor's Office of Labor-Management Standards (DOL), alleging that the National Union's actions amounted to an unlawful trusteeship upon the Local. DOL declined jurisdiction under the Labor-Management Relations Reporting Disclosure Act (LMRDA), determining that the National's actions were not tantamount to the imposition of a trusteeship. The DOL reasoned that unlike a trusteeship which contemplates a continuing relationship between a parent and subordinate, a revocation of a charter severs that relationship. The Local then turned to the ULP forum for redress, alleging that: (1) the revocation of its charter and seizure of its bank accounts were ULPs because the actions were taken in retaliation for the Local's protected activity of petitioning the FLRA to amend the certification; (2) the actions constituted an independent violation of the Statute; and (3) the actions violated the National's duty under section 7120 to abide by "democratic procedures."
The General Counsel first concluded that the FLRA has jurisdiction to consider the ULP. In this regard, the General Counsel noted that the Authority does not dispose of a case on jurisdictional grounds where the complaint alleges a statutory violation. In this circumstance, concurrent jurisdiction exists whereby the Authority determines whether AFGE's National's actions constituted a ULP and the DOL determines whether the AFGE's actions violated the LMRDA.
Next, the General Counsel found that the revocation of the Local's Charter did not interfere with employees' section 7102 rights. Rather, the revocation was directed at the Local as an entity, not the employees. Therefore, section 7116(b)(1) was not violated. However, the General Counsel directed the Regions to submit for advice any cases raising an issue whether a national union committed a ULP by taking action with respect to an individual employee for participating in a reaffiliation process.
Finally, the General Counsel concluded that the National Union may have violated the Statute by requesting that the Activity deal with a National representative instead of the Local Union. The National Union was not the exclusive representative, was not entitled to hold itself out as the exclusive representative, and was not entitled to name a national representative to represent the unit. Upon revoking the Local's charter the Local was officially disbanded, yet the National sent the Activity a letter stating that it had been designated to administer the affairs of the Local. Any action that the National might have taken to represent unit employees after revocation of the Local's charter, in the General Counsel's view, would be violative of the Statute. The Region was advised to investigate the nature and scope, if any, of the National's involvement with the affairs of the Local following the charter revocation.
NEGOTIABILITY OF PROPOSALS RELATING TO ACTIVITY'S EEO ADR PROGRAM
This case raised novel issues concerning the negotiability of proposals relating to the implementation of an Activity's Equal Employment Opportunity Alternative Dispute Resolution (EEO ADR) Program as required by the EEOC's Federal sector EEO complaint regulations.
The EEOC published revised regulations governing the processing of Federal sector EEO complaints. The regulations are found at 29 C.F.R. Part 1614. Among other things, Federal agencies are required to establish or make available an ADR program that covers both the pre-complaint and the formal complaint process. In the supplementary information accompanying the new regulations, the EEOC stated that Agencies were free to develop ADR programs that best suited their particular needs. The EEOC further stated that whatever programs were developed must conform to the core principles set forth in the EEOC's policy statement on ADR, contained in Management Directive 110 (MD 110). MD 110 sets forth the following core principles for Agency ADR programs: parties participate voluntarily; process is administered by a neutral; matters discussed are kept confidential; agreements reached are enforceable; program is flexible; and training and education on ADR is provided to employees, supervisors and managers. MD 110 further provides: agencies must be mindful of obligations they may have under collective bargaining agreements to discuss development of ADR programs with representatives of appropriate bargaining units. Agencies were required to have their ADR programs in place by January 1, 2000.
The Activity notified the Union that it had developed an ADR program for the pre-complaint or informal EEO complaint process. The Union responded and requested negotiations. After going back and forth with proposals, the Activity finally provided the Union with a written declaration of nonnegotiability as to four of the Union's proposals and implemented the ADR program.
Before deciding the issue presented by the case, the General Counsel first reviewed Authority case law that holds that an activity must first respond to a union's proposals before implementing a change, and it must assert the nonnegotiability of a union's proposals as the basis for implementing a change. An activity only acts at its peril if it then implements the proposed change in conditions of employment while proposals are on the table over which an activity refuses to bargain based on the contention that they are nonnegotiable. Thus, the negotiability of a union's proposals are only controlling when the agency: (1) declares the proposals nonnegotiable; (2) continues to bargain in good faith by affording the union the opportunity to submit other proposals; (3) bargains to impasse on those proposals not declared nonnegotiable; (4) affords the union an opportunity to initiate the impasse procedures under section 7119 of the Statute; and (5) if impasse procedures are not timely invoked, implements its last best offer.
The General Counsel found that the Activity fulfilled its bargaining obligation by responding to the Union's proposals and because the proposals are nonnegotiable. All of the Union's proposals relate to the implementation of an Activity's EEO ADR. The first three of the proposals are inconsistent with 29 C.F.R. 1614.105(g), a Government-wide Regulation, and the last proposal conflicts with EEOC MD 110, also a Government-wide Regulation. The Region was advised to dismiss the charge, absent withdrawal.
GENERAL COUNSEL'S GUIDANCE TO REGIONAL DIRECTOR'S ON MEETINGS UNDER THE STATUTE RIGHTS & OBLIGATIONS & STRATEGIES TO AVOID CONFLICT
In the recently-issued Guidance on Meetings under the Statute directed to the Regional Directors, the General Counsel discusses the Office of the General Counsel policy on the rights and obligations of unions and agencies in meetings with employees under the Statute. This memorandum provides guidance on the types of situations where employees have a right to union representation and where unions have their own right to be represented when agency representatives meet with bargaining unit employees.
Meetings between agency officials and employees are a common-day occurrence in the Federal workplace. A lack of understanding of the legal requirements controlling whether an employee has a right to request union representation or whether a union has its own right to be represented oftentimes results in conflict. Similarly, the actions of the union representative and the lack of understanding of the union's role at these meetings may result in conflict. Such misunderstandings and disagreements have in the past led some agencies to take action to avoid union representation whenever possible or to allow representation when there is no legal requirement to do so under the Statute, and also has led some union's to file ULP charges when there has been a violation of those rights as well as to file charges when there has been no right to representation.
This Guidance advises the Regions on how to assist the parties to better understand when there is an employee right to be represented and a union right to representation when management meets with a unit employee. In addition to discussing the statutory requirements and legal tests for finding a right to representation, the Guidance also provides checklists for supervisors, union stewards, and employees to utilize to determine whether a particular situation gives rise to a right to representation.
This memorandum serves as guidance to the Regional Directors in investigating, settling and litigating unfair labor practice charges that involve the right to representation at meetings. As with past Guidances, however, this Guidance also addresses the labor relations aspect of the right to representation. The reasons for the establishment of each right are explored so that the parties can understand the purpose of union representation under these situations. The roles of the union representative and the agency officials at these meetings also are discussed so that the parties have the same understanding of their respective rights and obligations, resulting hopefully in shared expectations. This Guidance also suggests strategies for the parties to employ to exercise their rights while avoiding conflict and disagreement over those rights. Again, as in past Guidances, this Guidance also identifies legal issues that have not yet been resolved and gives advice to the Regions on processing cases that raise those unanswered issues. Finally, the Guidance contains appendices that present the most significant Authority and court decisions on the legal issues that arise when exercising the right to representation.
This Guidance is divided into four parts. Part I -- "When is an Employee Entitled to Representation at Meetings and When is an Exclusive Representative Entitled to Represent Employees at Meetings?" provides a general overview of the types of situations where a right to representation of an employee by a union may attach; Part II --"Formal Discussions," Part III -- "Investigatory Examinations," and Part IV -- "Bypasses, Grievances Under the Negotiated Grievance Procedure and Representation Rights Created by Contract and Past Practices": (a) set forth, respectively, why these rights exist, the legal elements of these representation rights and the role of the union and agency representatives at these meetings; (b) contain question type checklists to allow employees, union representatives and management to determine whether a meeting is a formal discussion or investigatory examination; and (c) present strategies to assist the parties in avoiding conflict on representational issues and meeting matters. The web-based version of the Meetings Guidance is comprised of 12 separate files. The Guidance may be accessed from the General Counsel's list of Guidance Issuances at the FLRA's web site found at www.flra.gov.
ABOUT THIS COLUMN
In accordance with the OGC's Settlement Policy, parties have entered into numerous novel settlement agreements resolving pending ULP cases. This policy, issued in conjunction with the Prosecutorial Discretion Policy, provides Regional Directors with the flexibility to develop, with the parties, innovative remedies that maximize the purposes and policies of the Statute, resolve the specific issues and meet the needs of the parties. To encourage parties to jointly resolve disputes consistent with principles and objectives set forth in the Settlement Policy, selected provisions of recent settlement agreements follow. The parties are not identified in order to maintain confidentiality.
Agency Posts Notice Agreeing to Reinstate Compressed Work Week Schedule and to Notify and Give the Union an Opportunity to Bargain Before Eliminating the Compressed Work Week Schedule
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice stating that it would not unilaterally change working conditions of unit employees, including the elimination of the compressed work week schedule of clinic nurses and assigning endoscopy patient recovery responsibilities to the clinic nurses, without first notifying the Union and affording it the opportunity to bargain to the extent required by law. The parties also agreed that the compressed work week schedule would be reinstated as it was prior to the date the change took place.
Agency Posts Notice Agreeing Not to Hold Formal Discussions with Unit Employees Without Providing the Union with Advance Notice and the Opportunity to be Represented at such Discussions, Including Meetings Held by Video Teleconference Broadcast, and to Send an E-mail to Unit Employees Who Attended the Meetings that Reiterates What is Contained in the Notice as Well as Permitting the Union to Send an Attachment to the E-mail that Explains its Position
In a post-complaint settlement agreement, the parties agreed that the Agency would not hold formal discussions with unit employees, including meetings held by using the Agency's Interactive Video Training (IVT), without affording the Union advance notice and the opportunity to be represented at the discussion by a representative of its choosing. In addition, the parties agreed that the Agency would send an e-mail to those unit employees who attended a series of meetings using the Agency's IVT system that covers the items contained in the notice as well as an attachment from the Union that is intended to provide additional information on many of the issues that were discussed at the meetings.
Agency Agrees to Provide Unit Employee with an Ergonomic Work Station and to Negotiate Over Office Relocation of Unit Employees
After issuance of complaint and notice of hearing, the parties agreed that the Agency would take reasonable steps to meet the findings of an ergonomic assessment including providing the following: (1) an articulating/swivel keyboard; (2) a soft wrist rest; (3) a speaker phone; (4) bookshelves; and (5) repositioning the file cabinet. The parties also agreed that in the future, the Agency would negotiate over the office relocation of bargaining unit employees and provide requested information to the extent required by the Statute and the Master Agreement.
Union Agrees to Post Notice Recognizing its Obligation to Represent All Bargaining Unit Employees Regardless of Whether They Are Members of the Union
In a post-complaint settlement agreement, the Union agreed to post a notice to all members and employees stating that the Union recognized its obligation to represent all employees in the unit fairly and equitably as required by the Statute regardless of whether such employees are members of the Union.
Agency Agrees to Send Union a Letter Recognizing its Obligation to Give the Union Notice and an Opportunity to Bargain Over Reassignments
The parties agreed that upon the Union's request, it would negotiate over the reassignment of a unit employee to the extent required by the Statute and the parties' agreement. The parties further agreed that the Agency would send the Union a letter in which the Agency recognized its obligation to give the Union notice and an opportunity to negotiate when the Agency decides to reassign an employee if the reassignment has more than a de minimis impact on working conditions.
UNILATERAL SETTLEMENT AGREEMENTS
The following settlement agreements were approved by a Regional Director applying the OGC's Settlement Policy over the objection of the charging party because the settlement effectuated the purposes and policies of the Statute:
Agency Posts Notice Agreeing Not to Conduct Investigatory Interviews: (1) Concerning Alleged Misconduct of Employees Because They Engage in Protected Activities; and (2) Concerning Alleged Misconduct of Employees Because They Seek the Union's Assistance
After issuance of complaint and notice of hearing, the Agency agreed to post a notice stating that it wou