PRESIDENT DESIGNATES DALE CABANISS AS FLRA CHAIRMAN

 

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Vol. 10 No. 2
February 1, 2001 - May 31, 2001

The FLRA Bulletin

FLRA Seal

The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001


CONTENTS
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

PRESIDENT DESIGNATES DALE
CABANISS AS FLRA CHAIRMAN

NEWS TO KNOW

President George W. Bush designated Dale Cabaniss as Chairman of the Federal Labor Relations Authority, effective March 8, 2001. Chairman Cabaniss has been a Member of the Authority since 1997. Before joining the FLRA, she served as a professional staff member on the Senate Appropriations Subcommittee for Labor and Health Services, working for the Chairman, Senator Ted Stevens of Alaska. Ms. Cabaniss also served as the Chief Counsel for the Senate Governmental Affairs Subcommittee on Post Office and Civil Service. In addition, she worked for Senator Frank Murkowski of Alaska as his Legislative Director and Legislative Assistant. Ms. Cabaniss received a B.A. from the University of Georgia and a J.D. from the Columbus School of Law at Catholic University.

DAVID FEDER BECOMES ACTING FLRA GENERAL COUNSEL

Effective March 24, 2001, David L. Feder became Acting General Counsel, pursuant to the Federal Vacancies Reform Act of 1998. Mr. Feder has been the Deputy General Counsel of the Office of the General Counsel (OGC) since 1994. As the Acting General Counsel, he is responsible for: providing legal advice and direction throughout the OGC; managing the day-to-day processing of all unfair labor practice and representation cases within the OGC; and directing the delivery of facilitation, intervention, training and education, and alternative dispute resolution services. Mr. Feder, who previously served as the Assistant General Counsel for Legal Policy and Advice, has been with the FLRA since 1979.

Mr. Feder received a B.A. degree from the State University of New York at Binghamton, a J.D. degree from Northeastern University School of Law in Boston, and an L.L.M. in Labor Law (with honors) from New York University School of Law.

PRESIDENT NOMINATES TONY ARMENDARIZ TO BE AUTHORITY MEMBER

President George W. Bush sent to the United States Senate the nomination of Tony Armendariz to be a Member of the Federal Labor Relations Authority to complete a five year term expiring July 1, 2005. Mr. Armendariz had previously been a Member of the Authority from December 1989 to March 1997. Prior to joining the Authority, Mr. Armendariz was General Counsel of the University System of South Texas. After the University System merged with Texas A & M University System in 1989, Mr. Armendariz became Assistant General Counsel in charge of litigation for the second largest university system in the State of Texas.

Mr. Armendariz holds a B.S. degree from Trinity University in San Antonio, a J.D. degree from St. Mary's University School of Law, and a Master's degree in Comparative Law from Southern Methodist University. He also studied law at the School of Law of the Universidad Catolica Andres Bello in Caracas.

JUDGE ELI NASH APPOINTED CHIEF ADMINISTRATIVE LAW JUDGE

Judge Eli Nash was appointed by the Authority to be Chief Administrative Law Judge on May 2, 2001. Judge Nash, who has over 35 years experience in labor law, has been an Administrative Law Judge (ALJ) since 1977. He served as an ALJ at the Social Security Administration, the Department of Labor and, since 1979, with the FLRA. Judge Nash began his Federal career with the National Labor Relations Board. He earned his B.S. and Juris Doctor degree from the American University. As Chief ALJ, Judge Nash is responsible for managing the FLRA Office of Administrative Law Judges which conducts hearings and issues decisions on a variety of complex statutory and regulatory matters related to the Federal Service Labor-Management Relations Statute.

NANCY ANDERSON SPEIGHT NAMED ATLANTA REGIONAL OFFICE REGIONAL DIRECTOR

Nancy Anderson Speight has been appointed as the Regional Director of the FLRA's Atlanta Regional Office. Ms. Speight has been the Associate to the Deputy General Counsel for Representation Cases and Program Evaluation in the Office of the General Counsel (OGC). Prior to that, she served in several positions in the OGC in which she managed regional operations, including as a supervisor in the Washington Regional Office and Resident Officer of the former Norfolk Sub-office. Ms. Speight began her career in the Federal service with the Labor-Management Services Administration, U.S. Department of Labor and joined the FLRA upon its inception. Ms. Speight received her Bachelor of Arts and Sciences degree from Pennsylvania State University.

FLRA CONDUCTS NATIONAL TRAINING CONFERENCE

On April 23-24, the FLRA conducted a national training conference in Alexandria, Va. The conference featured workshops on: rights and obligations under 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 was attended by 330 individuals, representing Federal agencies, Federal employee unions, and third party agencies. The registrants represented 37 states including Hawaii and Alaska, and the District of Columbia, Puerto Rico, the Virgin Islands, and Panama.

STATUTORY TRAINING INITIATIVE ON ARBITRATION AND NEGOTIABILITY

In addition to taking part in the FLRA National Training Conference, the staff of the Authority, the three Member agency adjudicative body, as part of its already announced initiative has been actively involved in providing statutory training on arbitrability and negotiability at small group sessions and conferences. The training is intended for those who are new to Federal sector labor-management relations or who wish to update their skills and knowledge in this area.

In preparation for this initiative, fifteen staff members underwent a three-day workshop with the USDA Graduate School on instructional techniques to hone their presentation skills. Eleven presentations were made in the last few months to over 750 participants regarding these areas. Presentations were made to such groups as the Federal Deposit Insurance Corporation, the Washington, D.C. chapter of the American Bar Association Labor Law Section, the International Federation of Professional and Technical Engineers, and labor and management representatives of the U.S. Patent and Trademark Office. Several of the sessions took place in and around the Washington, D.C. area.

Basic and advanced statutory training in these areas is offered on an ongoing basis to management, union, or joint management and union audiences. Training also is offered to arbitrators as a group. Statutory training courses can be tailored to meet specific needs.

Requests 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:

Elvin Nichols, Esq.
Training Program Coordinator
Federal Labor Relations Authority
607 14th Street, NW
Washington, DC 20424

Telephone: (202) 482-6690, extension 446,
fax: (202) 482-6635
E-mail: Enichols@flra.gov

UPDATE ON COLLABORATION & ALTERNATIVE DISPUTE RESOLUTION

PenAuthority staff facilitated discussions of issues pending in a negotiability case involving the expansion of a drug testing program. As a result of the discussions, the parties were able to more accurately frame the issues in dispute and agreed to work together to attempt to resolve other issues involving the expansion of the drug testing program.

PenThe OGC continued to assist parties by providing dispute resolution services to resolve parties' labor-management disputes and to assist parties in developing the type of labor-management relationship that is best suited to their own needs. The OGC works with the parties to customize a program that assists them, and furthers its mission to provide leadership in promoting stable and productive labor-management relationships in the Federal sector by providing Alternative Dispute Resolution services both before and after an unfair labor practice charge or a representation petition has been filed. Such efforts can resolve disputes without the need for extended litigation. For the first eight months of the fiscal year (October 2000 - May 2001), 1,231 unfair labor practice charges were resolved under this program without the necessity for litigation.

PenA recent example of a dispute being resolved without the need for extended litigation arose in Puerto Rico. After a union filed charges and the Boston Region conducted an expedited investigation, the Region issued a complaint alleging in part that the agency had unilaterally changed working conditions by announcing and implementing a decision to no longer certify that dependents of certain employees meet the eligibility criteria to attend Department of Defense schools in Puerto Rico, without providing the union with notice and an opportunity to negotiate to the extent required by the Statute. The General Counsel requested permission from the Authority, which the Authority granted, to seek appropriate temporary relief requiring the agency to certify that approximately 30 dependent children of bargaining unit employees in Puerto Rico are eligible to attend the schools. Before the litigation papers were filed, the parties settled the cases with the involvement of the Regional Office, and an informal settlement agreement was approved providing full relief.

PenDuring the second quarter of fiscal year 2001, the Office of Administrative Law Judges' voluntary settlement program received 45 referrals. Among the cases resolved, one involved an agreement to reinstate a modified version of a roster for rotating employees through a particular duty while the parties engaged in expedited bargaining regarding changes in the process for assigning employees to that duty. Another involved an agreement to delete certain references in a counseling letter and to inform employees of that action via an e-mail message. Another involved a dispute that arose from an office renovation and an agreement that, although walls and furniture would remain "as is," the Union would have the opportunity to address seating arrangements and additional equipment.

AUTHORITY CASES

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.

Representation Cases

PenIn United States Dep't of the Army, United States Army Reserve Command, Fort McPherson, Ga., 57 FLRA 95 (2001), the Authority granted the Agency's application for review of a Regional Director's (RD) determination in a representation case. The Authority granted the application because of issues concerning the RD's application of established law in ordering clarification of a bargaining unit based upon accretion. The Authority remanded the case to the RD for further consideration regarding the application of the two elements relevant to a finding of accretion. Among other things, the Authority instructed the RD concerning the need to determine whether there had been any change in Agency operations or organization affecting the appropriate unit criteria concerning the existing bargaining unit. In addition, the Authority's decision set forth guidance to the RD concerning the RD's determination that the petitioned-for unit was appropriate. In that regard, the Authority discussed the need for the RD to give further consideration to the factors relevant to finding a community of interest and to finding that the accreted unit would promote effective dealings and efficiency of Agency operations.

Unfair Labor Practice Cases

PenIn Dep't of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, S.C., 57 FLRA 80 (2001) (Chairman Cabaniss dissenting), the Authority adopted an Administrative Law Judge's (ALJ) decision finding that an Agency's suspension of a Union representative for union activity violated § 7116(a)(1) and (2) of the Statute. The Agency had suspended the representative because, during a dispute as to whether a bargaining unit employee was entitled to representation at a meeting, the representative had assumed an intimidating posture so close to a supervisor that there had been some touching. The Authority rejected a per se rule that any touching constitutes "flagrant misconduct," and based upon its consideration of the facts, concluded that no "flagrant misconduct" occurred. In so concluding, the Authority adopted the ALJ's findings that the incident occurred outside the presence of nonsupervisory employees, was impulsive, and was somewhat provoked by the supervisor. Chairman Cabaniss, in dissent, would have found that the representative's conduct constituted "flagrant misconduct" or, as an assault and battery, was otherwise outside the boundaries of protected activity, and was thus unprotected by the Statute. (Judicial review pending in the D.C. Circuit.)

PenIn United States Patent and Trademark Office, 57 FLRA No. 45 (2001), a decision consolidating two unfair labor practice complaints, the Authority held that the Agency violated § 7116(a)(1) and (5) by, among other things, refusing to bargain over union-initiated proposals concerning performance appraisals and compensation. The Authority first discussed the parties' long history of bargaining a term agreement, including the issue of performance appraisals. In that regard, the Authority noted that the parties were in dispute as to whether a term agreement was in effect at times relevant to the case at hand. The Authority agreed with the Agency's contention that no term agreement was in effect, but rejected the Agency's argument that under that circumstance it was under no obligation to bargain over union-initiated proposals. The Agency had argued that without an agreement it would be obligated to bargain over union-initiated proposals only in the context of negotiations for a term agreement or in response to management-initiated changes. However, citing AFGE v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), the Authority held the obligation to bargain is not so limited and that an agency is obligated to bargain over any negotiable union-initiated proposals submitted outside the term of an existing collective bargaining agreement. Finding that the Agency illegally refused to bargain, the Authority ordered the Agency to bargain and to give any agreement reached retroactive effect. (Judicial review pending in the D.C. Circuit.)

Negotiability Cases

PenIn AFGE, Local 1858, 56 FLRA 1115 (2001), the Authority considered the negotiability of three proposals offered during negotiations over changes to the Agency's performance evaluation system. The first proposal would prescribe formulas for calculating the appropriate summary ratings for employees based upon the employees' performance. The Authority held that the proposal affected management's rights to direct employees and assign work. These rights include the determination of the quantity, quality, and timeliness of work products, and the establishment of work priorities. Because the Union did not demonstrate that the proposal constituted a procedure or an appropriate arrangement, the Authority concluded that the proposal was outside the Agency's duty to bargain. The second proposal would require the Agency to retain its practice of preparing and distributing to all employees a profile of the rater's performance ratings of employees. The Union had failed to respond to the Agency's assertion that the proposal was inconsistent with the Privacy Act. Furthermore, the Authority held that the Agency's position was supported by relevant precedent. In these circumstances, the Authority held under § 2424.32 of its regulations that the Union had conceded that the proposal was inconsistent with the Privacy Act and dismissed the Union's petition as to that proposal. The third proposal would require the Agency to delete from its performance evaluation form a section that allowed raters to comment on an employee's performance with respect to established Agency values. The Authority noted that the establishment of performance standards and elements is an exercise of management's right to direct employees and assign work. Therefore, because the proposal would restrict the Agency's ability to determine the content of its performance standards, and as the Union had not asserted that any of the exceptions to § 7106(a) set forth in § 7106(b) applied, the Authority concluded that the proposal was outside the Agency's duty to bargain.

PenIn NFFE, Local 1904, 57 FLRA 28 (2001), the Authority held that a proposal concerning "patient accountability" was negotiable as an appropriate arrangement under § 7106(b)(3) of the Statute. In response to management's decision to hold nurses responsible for verifying the location of patients admitted to the nurses' assigned wards, the Union proposed that patients with a high risk of wandering be given "wander guard bracelets." Wander guard bracelets are monitoring devices that are attached to patients and electronically notify nurses when the patient leaves the ward or unit to which the patient is assigned. The parties agreed that the proposal interfered with the Agency's right to determine internal security practices. The Authority first held that the increased potential for lowered performance appraisals resulting from additional responsibilities constituted an adverse effect within the meaning of § 7106(b)(3), and that the use of wander guard bracelets was intended as an arrangement to compensate for that effect. In addition, the Authority held that the arrangement was sufficiently tailored because it would benefit only those nurses assigned high risk patients. Applying the framework established in NAGE, Local R14-87, 27 FLRA 24 (1986), the Authority held that the proposal would not excessively interfere with management's internal security right. In that regard, the Authority held that the affected employees would benefit significantly from the proposal and that the burden on the Agency was slight. With respect to the Agency's burden, the Authority noted that the Agency already used wander guard bracelets in other units and that the use of wander guard bracelets did not preclude the Agency from holding nurses accountable for patient location. The Authority ordered the Agency to bargain, upon request, over the Union's proposal.

PenIn Ass'n of Civilian Technicians, Mont. Air Chapter 29, 57 FLRA 55 (2001) (Chairman Cabaniss concurring in part and dissenting in part), the Authority ordered the Agency to rescind its disapproval of a contract provision relieving civilian technicians of the Montana National Guard of the requirement to wear the military uniform when appearing as grievants or witnesses in any third-party proceedings. The parties agreed that the phrase "third-party proceeding" refers to a proceeding before the Authority, the Federal Service Impasses Panel, or an arbitrator, and that the provision applies to witnesses testifying on behalf of the Union or the Agency. Contrary to the Agency's contentions, the Authority held that the provision was consistent with § 709(b)(4) of the Technicians Act, 32 U.S.C. § 709(b)(4), and that the provision did not interfere with the Agency's right to assign work under § 7106(a)(2)(B) of the Statute. Section 709(b)(4) requires National Guard civilian technicians to wear the appropriate military uniform "while performing duties as a technician." Relying on long-standing precedent, the Authority held that participating in third-party proceedings was not performing "duties as a technician." Regarding the assignment of work, the Authority held that the provision did not relate to the determination of the duties to be assigned, when work assignments will occur, or to what positions work will be assigned. In partial dissent, Chairman Cabaniss would have found that when appearing as a witness for the Agency, the employee would be performing duties as a technician, and that accordingly the provision was nonnegotiable.

PenIn AFGE, Local 3529, 57 FLRA No. 43 (2001) (Member Wasserman concurring in part and dissenting in part), the Authority considered four proposals related to the Agency's Audit Performance Planning System (APPS), an electronic paperwork process. The Agency was attempting through implementation of the APPS to convert auditor working papers from hardcopy to electronic files. The Authority determined that two of the proposals permitted auditors to decide whether to use APPS in performing audits and, as such, affected management's rights to assign and direct work under § 7106(a) of the Statute. The Authority also held that these proposals were not procedures under § 7106(b)(2) but were bargainable at the election of the Agency under § 7106(b)(1). Citing § 2424.30 of its regulations, the Authority declined to consider the Union's contractual claim that the Agency had a bargaining obligation as to those proposals under the parties' collective bargaining agreement. Disagreeing, Member Wasserman would have viewed the contractual dispute as concerning a statutory bargaining obligation, which he would have enforced. The Authority held that a third proposal, that precluded the Agency from lowering an employee's performance evaluation for not using APPS, was outside the duty to bargain because it affected management's rights to assign and direct work, did not constitute a procedure, and was not negotiable at the election of the Agency. Member Wasserman, in dissent, would have held the proposal negotiable, in part because the proposal was "inextricably related" to another proposal the Authority had determined to be negotiable. Finally, the Authority concluded that a fourth proposal, that prevented auditors from being held responsible for certain files, was outside the duty to bargain because it affected management's rights to assign and direct work and did not constitute a procedure or an appropriate arrangement.

Arbitration Cases

PenIn Police Ass'n of the Dist. of Columbia, 56 FLRA 1097 (2001), the Authority denied the Union's exceptions to an arbitration Award holding that injuries sustained by the grievant, a U.S. Park Police officer, while commuting to work did not entitle him to workers compensation. The Authority noted that as a general rule, an employee can only recover benefits for injuries that occur "in the performance of duty" and agreed with the Arbitrator that commuting to work is not "performance of duty." Relying on Employees Compensation Appeals Board case law, the Authority rejected the Union's reliance on the "premises doctrine," which allows an employee to recover benefits if the injury occurred on the employer's property. The Authority also agreed with the Arbitrator that the "police exception" to the general rule of non-recovery for injuries sustained while commuting did not apply to the grievant's claim. Finally, the Authority held that the Arbitrator did not exceed his authority by failing to reach the Union's procedural due process claim because that claim was not mentioned in the issue presented to the Arbitrator.

PenIn United States Dep't of Def. Educ. Activity, Arlington, Va., 57 FLRA 23 (2001) (Chairman Cabaniss concurring in part and dissenting in part), the Authority reviewed the Agency's exceptions to an arbitration Award granting the Union's request for attorney fees under the Back Pay Act. In an initial Award, the Arbitrator had found that the Agency violated a Memorandum of Understanding between the parties relating to living-quarters allowances for employees. The Union requested attorney fees. In a supplemental Award, the Arbitrator granted the Union's request for attorney fees and found that the number of hours and hourly rates for the requested fees were reasonable. The Authority reviewed de novo the Agency's claim that the attorney fee Award violated the Back Pay Act. The Authority first considered whether the Back Pay Act's requirement, that the unjustified or unwarranted personnel action must have resulted in a withdrawal or reduction of the grievants' pay, allowances, or differentials, had been satisfied. The Authority determined that it was not clear whether the Agency's action resulted in a such a withdrawal or reduction. The Authority also determined that the remaining Back Pay Act requirements for attorney fees were satisfied. In that regard, the Authority held that the attorney fees were incurred by the grievants, conceded to be the prevailing parties. The Authority also held that the number of hours and hourly rates were reasonable. As a result, the Authority remanded the issue to the parties for resubmission to the Arbitrator. Chairman Cabaniss concurred with the remand. Chairman Cabaniss dissented from the part of the decision regarding the reasonableness of the award. She expressed the view that because there had been no finding with regard to whether the employees lost pay, allowances, or differentials under the Back Pay Act, a prerequisite to any finding regarding reasonableness of fees had not been met. Thus, in her opinion, it was premature for the Authority to reach the reasonableness issue at this stage of the proceeding.

PenIn United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 72 (2001), the Authority denied the Agency's exceptions to an award on remand that held that the grievant was qualified for a temporary promotion to the GS-12 level. In the initial award, the Arbitrator had concluded that the grievant's performance of Windows New Technology work entitled him to a temporary promotion from a WG-8 Computer Mechanic to a GS-12 Computer Specialist. In its review of the initial award, the Authority ruled that the record was insufficient to determine whether the grievant met OPM's specialized experience requirements at the beginning of the temporary promotion period. On remand, the Arbitrator found that the grievant had at least one year experience at the GS-11 level and performed GS-12 level work prior to the temporary promotion period. On review, the Authority first held that the Agency did not demonstrate that the Arbitrator was biased and/or failed to conduct a fair hearing. Next, the Authority held that the award on remand was not contrary to OPM's regulations concerning specialized experience or to management's right to assign work. Finally, the Authority determined that the Agency failed to establish that the Arbitrator exceeded his authority or that the award on remand either did not draw its essence from the contract or was based on nonfacts.

PenIn United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 57 FLRA No. 40 (2001) (Chairman Cabaniss dissenting), the Authority rejected the Agency's argument that the Arbitrator's Award contravened the Agency's rights to assign work under § 7106(a)(2)(B) of the Statute and to determine its internal security practices under § 7106(a)(1). The Arbitrator held that the Agency violated a contract provision establishing quarterly rotations of certain work assignments when the Agency made work assignments with durations of 6 or 9 months. Applying the framework established in United States Customs Service, 37 FLRA 309 (1990) (Customs Service), the Authority held that, although the provision affected the exercise of the rights to assign work and determine internal security practices, the provision was negotiated as an arrangement under § 7106(b)(3) of the Statute and the provision did not abrogate the exercise of those rights. Accordingly, the Authority denied the Agency's exceptions. In dissent, Chairman Cabaniss stated that she would overturn the abrogation test established in Customs Service and instead apply the Authority's negotiability precedent in evaluating awards alleged to contravene § 7106; that is, examine whether the provision excessively interferes with a management right. In that regard, Chairman Cabaniss would find that the provision excessively interfered with the Agency's right to determine its internal security practices. Further, and citing the special security needs of a federal correctional facility, Chairman Cabaniss stated that, even applying Customs Service, she would find that the provision abrogated the internal security right.

PenIn NAGE, Local R5-136, 57 FLRA No. 47 (2001), the Authority considered the Union's exceptions to an arbitration Award denying a grievance seeking overtime pay. The class action grievance filed on behalf of information technology employees alleged that the Agency had violated the collective bargaining agreement and law by failing to pay the employees a minimum of two hours of overtime pay for work performed at their residences. This case arose against a history of overtime pay practices that began in the 1980s. At that time, overtime work had to be performed at the place of duty and, pursuant to the collective bargaining agreement, the employees were entitled to a minimum of two hours call-back pay when called to perform overtime. In 1994, the employees proposed and the Agency agreed to allow work to be done from the employees' homes. The employees were not paid the two-hour minimum for overtime performed at home. The Union filed the grievance in 1998 seeking the two-hour minimum payment. The Arbitrator concluded that the Agency had not violated the collective bargaining agreement because the call-back payment of two hours overtime applied only when the employees physically returned to the Agency's premises. The Union's exceptions alleged that the Arbitrator's Award failed to draw its essence from the contract and was contrary to 5 U.S.C. § 5542(b)(1), a statutory provision regarding two-hour overtime minimum payments. The Authority denied the exceptions. The Authority first concluded that the Arbitrator's Award did not fail to draw its essence from the agreement since it flowed directly from the language of the contract and was not an irrational, unfounded, or implausible reading of the agreement. The Authority next ruled, based upon its review of the language and legislative history of 5 U.S.C. § 5542(b)(1) and Comptroller General precedent, that § 5542(b)(1) provides for a minimum of two hours overtime only when an employee is physically called back into the workplace to perform overtime. Thus, the Authority denied the Union's exceptions.

COURT CASES

  Scale

ScaleAmerican Federation of Government Employees, Local 3936 v. FLRA, 239 F.3d 66 (1st Cir. 2001), reviewing 56 FLRA 174 (2000). The First Circuit affirmed the Authority's final decision and order holding in part that in an unfair labor practice (ULP) proceeding, the Authority lacked jurisdiction to review the alleged retaliatory termination of a National Guard civilian technician. In its decision, the Authority determined that a particular National Guard unit had committed ULPs in violation of the Statute when it took various actions against technicians in connection with an incident of lawful informational picketing. However, the Authority also concluded that the National Guard Technicians Act of 1968, 32 U.S.C. § 709, precluded the Authority from reviewing the alleged retaliatory termination of a civilian technician because the Technicians Act grants state adjutants general final authority over adverse personnel actions involving technicians. The court agreed with the Authority "that the plain language of section 709(f)(4) of the Technicians Act categorically precludes review of technician terminations under the [Statute]." 239 F.3d at 70.

ScaleAssociation of Civilian Technicians, Inc. v. FLRA, No. 99-2562 (D.D.C. Mar. 31, 2001), appeal docketed, No. 01-5170 (D.C. Cir. May 31, 2001), reviewing 55 FLRA 657 (1999). The district court granted the Authority's motion to dismiss the complaint in this case for lack of subject matter jurisdiction. The Union had sought review of an Authority decision denying the Union's petition to consolidate various bargaining units of National Guard civilian technicians into a single unit. The Union argued that the court had jurisdiction to consider its claims under the Administrative Procedure Act, 5 U.S.C. §§ 701-704 (APA), and alternatively, that even if jurisdiction did not exist under the APA, the court nevertheless had jurisdiction under the doctrine established in Leedom v. Kyne, 358 U.S. 184 (1958) (Leedom). Finally, the Union argued, even if a basis for jurisdiction was not established under the APA or Leedom, the court could still review certain "legal interpretations" included in the final Authority decision.

First, the court ruled that § 7123 precludes judicial review of appropriate unit determinations, and is the "exclusive statutory scheme" for judicial review of Authority decisions. Accordingly, the court held, the Union could not obtain review of the Authority's final decision in the case pursuant to any statute, including the judicial review provisions of the APA. The court also held that certain exceptions to the bar raised by § 7123, such as the Supreme Court's decision in Leedom, did not apply. Finally, the court determined that review was not available based on the purported "legal interpretation" within the Authority's decision. The court concluded that the Authority had simply engaged in the kind of analysis and explanation used in the ordinary course of adjudicating a particular case.

FSIP FINAL ACTIONS

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.

Warehouse Closings

General Services Administration, Washington, D.C. and Council 236, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 120 (February 20, 2001), Panel Release No. 438 (Decision and Order). The Panel determined that the dispute, concerning negotiations over a proposed reorganization of the Federal Supply Service (FSS) stock distribution program, should be resolved through factfinding with recommendations for settlement by Panel Member Mary E. Jacksteit. Accordingly, Member Jacksteit conducted a factfinding hearing on October 3 and 4, 2000, and issued a report on December 4, 2000, with recommendations for settlement. Member Jacksteit recommended adoption of the Employer's position that distribution centers in Fort Worth, Texas, and Palmetto, Georgia, as well as forward supply points in Auburn, Washington; Franconia, Virginia; Denver, Colorado; and Chicago, Illinois be closed by April 2001. She also recommended that the Employer seek extension of or new buy-out authority at least through July 31, 2001. Finally, she recommended that the parties take other measures to ameliorate the adverse impact on employees consistent with their contract and using the partnership agreement's framework as a guide. The Employer accepted and the Union rejected Member Jacksteit's recommendations. After the parties were unable to agree on the use of the Factfinder's recommendations as the basis for settling the matter, the Panel adopted a modified version of the Factfinder's recommendation amended to lessen the impact of any RIF upon affected employees, by providing that the closings would occur no sooner than October 1, 2001.

Uniform Requirements

Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution and Federal Detention Center, Oakdale, Louisiana and Locals 1007 and 3957, American Federation of Government Employees, AFL-CIO, Case Nos. 01 FSIP 22 and 51 (March 23, 2001) Panel Release No. 439 (Decision and Order). The Panel determined the dispute, concerning the uniform policy, should be resolved through an informal conference with a Panel representative. The Unions proposed that posts designated as requiring the dress uniform will be limited to the Front Entrance and Visiting Room. In addition to the posts the Union proposed, the Employer proposed that, due to their contact with the public, Outside Escort Officers should wear the dress uniform. The Panel adopted the Union's proposal, explaining that the Employer had not sufficiently demonstrated a need to change the current practice or that the Union's proposal would not further the Employer's aim of projecting a more professional appearance.

Teleworking Task Force, Equal Employment Opportunity, and Performance Awards

Library of Congress, Washington, D.C. and Local 2477, American Federation of State, County and Municipal Employees, AFL-CIO, Case No. 01 FSIP 6 (April 2, 2001) Panel Release No. 439 (Decision and Order). The Panel determined to assert jurisdiction over 4 of the 12 articles, and that the dispute, which concerned teleworking, oversight of the equal employment opportunity (EEO) program, a timetable for the issuance of agency final decisions on EEO complaints, and performance awards, should be resolved through an informal conference with Panel Member Marvin E. Johnson. Regarding teleworking, the Panel ordered the parties to withdraw their proposals. It believed if the parties were unable to agree on a task force "philosophy," it was not the Panel's role to impose one. In addition, the Panel clarified that the elimination of their proposed language would not affect the parameters for the task force agreed to during the informal conference. On the matter of EEO oversight, the Panel ordered the parties to adopt compromise wording which pulls together wording of other related sections of the parties' CBA that provide for oversight and commitment to EEO goals. In the absence of evidence that certain managers repeatedly violated EEO requirements, the Panel did not believe additional procedures were required. Concerning a timetable for issuance of agency final decisions on EEO complaints, the Panel ordered the parties to adopt a modified version of the Employer's proposal to make clear that there is only one 180-day period, which runs from the filing of the complaint, after which the complainant may elect to file in Federal court. On the issue of performance awards, the Panel ordered the parties to adopt a modified version of the Employer's proposal, supplemented by a requirement that the Employer provide the Union with an annual summary of awards information, which included, among other things, performance ratings and the distribution of awards. The Panel stated that the only documentary evidence in the record on this issue supported the Employer's position that a substantial number of bargaining-unit employees received cash awards over the last 3 years.

4/10 and 5-4/9 Compressed Work Schedules

Department of the Air Force, McGuire Air Force Base, McGuire AFB, New Jersey and Local 1778, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 38 (April 2, 2001), Panel Release No. 439 (Decision and Order). The Panel determined that the dispute, arising under the Statute, which concerns the Employer's decision to replace a 4/10 compressed work schedule (CWS) with a 5-4/9 CWS in the Isochronal Inspection Operations, should be resolved through an informal conference by telephone with a Panel representative. The Employer proposed to maintain the 5/4-9 program that it had implemented after it believed the Union failed to appeal the dispute to the Panel. The Union proposed that the Employer reinstate the option of working a 4/10 CWS. The Panel ordered the parties to adopt the Union's proposal because it believed that the record did not provide any empirical evidence that productivity or customer service had declined over the 7-year period that employees had been working the 4-day workweek.

Wearing Military Uniforms During Union Negotiations

Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas and Jayhawk Chapter #104, Association of Civilian Technicians, Case No. 01 FSIP 25 (May 15, 2001), Panel Release No. 440 (Opinion and Decision). The Panel determined that the dispute, regarding ground rules for an initial collective bargaining agreement (CBA), should be handled through a mediation-arbitration by telephone with Panel Member Edward F. Hartfield serving as arbitrator. On the one issue that remained unresolved after mediation efforts, the Employer proposed that Union negotiators wear military uniforms during contract negotiations. The Union proposed that union negotiators not be required to wear their military uniforms while engaged in collective bargaining, including travel, preparation, and at sessions. The Arbitrator ordered adoption of the Union's proposal because: (1) the Employer, who acknowledged that case law is not in its favor, failed to provide a compelling rationale that warrants reconsideration of well-established line of Federal Labor Relations Authority and Panel cases; (2) the Employer's reliance on 1999 Amendments to the Technicians Act, 32 U.S.C. § 709, as a basis for its position represents a misinterpretation of the law; and (3) requiring the Union negotiators to wear the military uniform during collective bargaining would place Union representatives at a disadvantage.

Staying of Disciplinary Actions

Department of Defense, National Guard Bureau, Delaware National Guard, Wilmington, Delaware and Delaware Chapter, Association of Civilian Technicians, Case No. 01 FSIP 47 (May 24, 2001), Panel Release No. 440 (Decision and Order). The Panel determined that the issue, concerning a Union proposal that disciplinary action be held in abeyance pending the results of an appeal procedure, should be resolved through the issuance of an Order to Show Cause (OSC) why the Panel should not impose the decision it reached in a similar case. The Panel referred the parties to the Panel's decision U.S. International Trade Commission, Washington, D.C. and Local 2211, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 18 (April 7, 1998) Panel Release No. 408 (ITC). Following receipt of the parties' responses to the OSC, the Panel ordered the adoption of the Employer's position that the Union withdraw its proposal because the Union failed to demonstrate a need to change the status quo, and had not shown one instance in the State of Delaware where it believed disciplinary action was taken unjustly. Furthermore, as in ITC, the Panel was persuaded that the Union's approach might encourage frivolous appeals.

Official Time, Delegating Travel, and Travel for Training Purposes

Department of the Army, U.S. Army Corp of Engineers, Northwestern Division, Portland, Oregon and United Power Trades Organization, Case No. 01 FSIP 48 (May 24, 2001), Panel Release No. 01 FSIP 48 (Decision and Order). The Panel determined that the dispute, which concerned two articles arising from negotiations over a successor collective bargaining agreement (CBA), should be resolved through an informal conference with Chair Bonnie P. Castrey. If no agreement were reached, the Panel would be limited to selecting between the parties' proposals on an article-by-article basis. The disputed issues in one article were resolved during the procedure. On the issue that remained concerning official time, the Panel ordered the parties to adopt the Union's proposal: (1) 1,000 hours of official time annually for the Union President; 450 hours for Project Representatives and four Vice Presidents; and 600 hours each year for training; (2) "on duty travel" may be used by the district Union Vice President, or a designee; and (3) official time to travel for training purposes for the Union President and Vice Presidents shall not be limited to "incidental same day travel." In the Panel's view, the potential increase in Equal Employment Opportunity issues added to the negotiated grievance procedure under the successor agreement, and the wide geographic area the Union needed to cover, justified its need for both an increase in official time for the Union president, and an increase in official time for travel beyond the existing "same day" travel allowance.

Unpaid Meal Period

Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Chicago, Illinois and Local 17, National Association of Agriculture Employees, Case No. 01 FSIP 53 (May 23, 2001), Panel Release No. 440 (Decision and Order). The Panel determined the dispute, concerning a 30-minute unpaid meal period, be resolved through an informal conference with a Panel representative. The Panel ordered the adoption of a modified version of the Employer's proposal that it would make every effort to schedule unpaid meal periods to occur during the middle 2 to 3 hours of the employee's tour of duty, workload permitting. It modified the proposal to permit employees to trade meal periods occasionally, when unique circumstances are demonstrated, concluding that this would effectively balance the employees' interest in having predictable meal periods with management's interest in insuring its mission-related requirements are met.

Smoking Policy

Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and Local F-88, International Association of Fire Fighters, AFL-CIO, Case No. 01 FSIP 69 (May 24, 2001) Release No 440 (Decision and Order). The Panel determined the dispute, concerning the local smoking policy, should be resolved through the issuance of an Order to Show Cause (OSC) why wording previously adopted in similar circumstances should not also be imposed to settle the parties' dispute. Upon consideration of the parties' responses to the OSC, the Panel ordered the adoption of wording in the Order to Show Cause which complies with Executive Order 13058, Protecting Federal Employees and the Public from Exposure to Smoke in the Federal Workplace. In its view, nonsmokers would be protected from exposure to cigarette smoke, and smokers be accorded a measure of protection from the elements. The Panel was not persuaded that the firehouse should be treated differently from other Federal workplaces.

Compressed Work Schedules

Department of the Interior, Bureau of Reclamation, Boulder City, Nevada and Local 1978, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 97 (May 24, 2001) Release No. 440 (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 written submissions. The Union proposed that the 4/10 CWS for the tour guides be maintained; the Employer proposed to terminate the 4/10 CWS because it found the schedule causes an adverse agency impact. The record established that tour guides remained idle for as much as 40 percent of the workday under the 4/10 schedule; a shorter workday could eliminate at least half of this inactivity. After considering the totality of the evidence, the Panel concluded that the Employer had met its statutory burden under the Act by showing that continuing the 4/10 CWS would prevent the Employer from increasing the agency's productivity and level of services furnished to the public.

FSIP SETTLEMENT CORNER

ABOUT THIS COLUMN

In addition to 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. Panel Members were successful in obtaining complete settlements in the following cases:

— In Department of the Army, 94th Regional Support Command, Fort Devens, Massachusetts and Local 1900, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 161 (closed January 31, 2001), the parties reached an impasse over various proposals relating to the implementation of the National Defense Authorization Act, 10 U.S.C. § 10218. Panel Member John G. Wofford conducted an informal conference and the dispute was resolved.

— In Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, Kentucky and Local 1286, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 41 (closed March 6, 2001), the parties reached an impasse under the Statute over implementation of a 4/10 compressed work schedule for warehouse employees and a flexiglide schedule for one business office employee. Panel Member David Leland conducted an informal conference and the matters were resolved.

— In Department of Defense, Defense Logistics Agency, Defense Distribution Depot Susquehanna, New Cumberland, Pennsylvania and Local 2004, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 71 (closed May 18, 2001), the parties reached impasse over hours of operation of the Health Clinic and Child Development Center (CDC), alternate hours of duty for any employees with children enrolled in the CDC if the new hours of operation are not implemented, and official time. Panel Member David Leland conducted an informal conference and the disputes were resolved.

GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS

ABOUT THIS COLUMN

The FLRA's General Counsel 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.

LEGALITY OF A CONTRACT PROVISION THAT PROVIDES A PROCESS FOR UNION DUES ALLOTMENTS BY NON-BARGAINING UNIT EMPLOYEES

This case raised the issue of whether the parties' contract provision providing for voluntary withholding of union dues by union members who are not in the bargaining unit is per se unlawful under the Statute. Authority precedent was reviewed first and it was concluded that the Authority has never ruled on the question presented. Rather, Authority decisions have addressed the situation where an employee who has been removed from the unit objects to the agency's failure to remove the employee from dues checkoff, or a union attempts to negotiate over the continuation of dues checkoff for employees removed from the unit subject to the same conditions as other unit employees.

Dues Checkoff for Nonunit Employees Never in the Unit

It was concluded that the provision of a dues checkoff option for nonmembers is no different than the negotiation of any other matters that are permissive in nature because they directly affect nonunit employees. In making this determination, it was concluded that when reviewing bargaining proposals that an agency asserts do not concern a condition of employment of unit employees, the Authority has found that matters directly implicating conditions of employment of supervisors are outside the duty to bargain. However, if the parties agree to include such matters in a bargaining agreement, the provisions are not subject to section 7114(c) agency head disapproval. In addition, such clauses are enforceable in arbitration. Once an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute. It was also noted that section 7115(a) is inapplicable in this instance since the process applies only to nonunit agency employees who were not unit employees when they authorized their checkoff.

Dues Checkoff for Nonunit Employees Removed From the Unit

Unlike the above situation, this scenario does involve checkoffs instituted under section 7115(a) because the employees were unit members at the time of their checkoff authorization. It was concluded that once removed from the unit, the parties' contract provisions for checkoff for unit employees premised on section 7115(a) of the Statute no longer apply. Rather, the dues checkoff provisions for nonunit employees, discussed above, apply to these new nonunit employees the same as they apply to any other nonunit employees.

Accordingly, the Region was advised to dismiss the charges, absent the parties' withdrawal.

SHOWING OF INTEREST AND COPIES OF E-MAIL MESSAGES FROM INDIVIDUAL EMPLOYEES

The showing of interest that accompanied a petition seeking an election to determine whether professional employees wished to be included in a nationwide consolidated unit consisted of printed copies of separate e-mail messages from more than 26 employees (out of a unit of about 79 employees) and an alphabetical list of the names of the employees who submitted the e-mail. There were a sufficient number of employee e-mail messages to constitute the requisite showing of interest.

The advice concluded that e-mails do not constitute an acceptable showing of interest under the FLRA's Regulations. First, the statutory and regulatory schemes under section 7111(b) of the Statute and sections 2422.1(a) and 2421.16 of the Regulations were reviewed. In particular, section 2421.16 defines showing of interest as a "means evidence of membership in a labor organization; employees' signed and dated authorization cards or petitions authorizing a labor organization to represent them . . . " (emphasis added). Typically, the showing of interest is presented in the form of signed petitions or signed cards. Absent objective evidence to the contrary, the validity of the authorization cards or signed petition is presumed. It was acknowledged that there was nothing inherently suspicious about e-mail messages as compared with signed petitions or cards. Nevertheless, it was determined that to come within the regulatory definition of a showing of interest, the proffered showing of interest must be signed and dated. Based on a review of guidance concerning the implementation of the Government Paperwork Elimination Act (GPEA), it was concluded that the e-mails in this case were not signed as required by section 2422.16 of the Regulations.

Accordingly, the Region was advised to inform the Union of this determination and afford the Union the opportunity to obtain authentication of the e-mails through traditional means, such as affidavits, or submit a new showing. Should the Union choose not to take this course of action in a timely manner, the Region was advised to dismiss the petition, absent withdrawal.

DUTY TO BARGAIN OVER CHANGES TO AN EXISTING ALTERNATIVE WORK SCHEDULE (AWS)

This case presented the issue of whether an agency repudiated a contract by failing to negotiate over any changes in days off under the AWS program. In 1993, the Union and the National Guard signed a letter of agreement concerning the proposed AWS program which allowed for the schedule to become permanent after a six-month trial period. Three months later in 1993, the parties signed a new contract which contained a provision addressing hours of work. In relevant part, the provision addressed the six-month trial period and stated that AWS are negotiable only at the option of the Adjutant General and that at the end of the test period the Employer will determine whether the AWS will continue. If so, the parties will meet and negotiate on making AWS a permanent part of the agreement. After the six-month period ended, the AWS program continued in place and neither party sought to negotiate its inclusion into the agreement. Subsequently, the Union reaffiliated, and because the 1993 contract had a renewal clause, the contract remained in effect.

The Agency notified the Union that it proposed to change the AWS program. The Union responded that the changes were unacceptable and relied on the 1993 contract in requesting negotiation over the matter. The parties met and the Activity argued that the change was non-negotiable pursuant to section 709(g) of the National Guard Technicians Act, 32 U.S.C. § 709. The Activity implemented the change that it proposed.

It was concluded that the Activity did not repudiate the 1993 contract. The legislative history of the Federal Employees Flexible and Compressed Work Schedules Act or 1982 and Authority decisions which have held that AWS are fully negotiable were examined first. Then, decisions interpreting section 709(g)(2) of the National Guard Technicians Act, 32 U.S.C. § 709(g)(2) were reviewed. This section provides that "[n]otwithstanding . . . any other provision of law, the Secretary concerned may . . . prescribe the hours of duty for technicians." The latter clause was held to constitute "a narrow exception to the broadly stated bargaining requirement of the [Work] Schedules Act." (citation omitted). Thus, it was concluded that there is no statutory duty to bargain over the establishment of, or changes to, technicians' hours of work, including an AWS program. Further, it was determined that the parties, although free to do so, did not negotiate over AWS at the end of the six-month trial period and make AWS a part of the 1993 contract. Thus, there can be no repudiation. Alternatively, it was found that even if the Activity had agreed to the AWS program as part of its contract, any violation of the contractual agreement was not a repudiation. In this regard, two elements are examined: (1) whether the breach was clear and patent; and (2) whether the provision allegedly breached went to the heart of the agreement. No clear and patent breach was found because the parties never negotiated over AWS after the trial period to make it a permanent part of the agreement as originally contemplated so it was reasonable for the Activity to interpret the 1993 contract as imposing no duty to negotiate over the changes to the AWS program. Accordingly, the Region was advised to dismiss the charge, absent withdrawal.

INFORMATION REQUESTED UNDER THE STATUTE CONCERNING A CONTRACTING-OUT PROCESS

This case involved whether there is a duty to furnish certain information to the Union related to a contracting-out process. The Union was exploring the possibility of filing an unfair labor practice charge and/or grievance due to what it regarded as improper, possibly illegal actions in awarding a contract to privatize the work of an Activity. To help the Union with that process, it filed an information request. Ultimately, the Union appealed the contracting-out decision and lost. Nevertheless, the Union still wanted two of the items it had requested: (1) a copy of a management study to include the most efficient organization (MEO); and (2) a copy of the contract proposed and a complete copy of the contractor's proposal. The Activity had previously refused to release the MEO but stated that the Union could peruse it during the public review period. As to the contractor's proposal, the Activity did not release that either, stating that the contractor had marked it "proprietary."

Initially, it was concluded, relying on the statutory scheme under 41 U.S.C. § 423, that an agency is prohibited from disclosing the proposal information that the Union had requested unless such disclosure was "provided by law." Then it was found that section 7114(b) is not a law that requires disclosure so as to render the prohibition contained in 5 U.S.C. § 423 inapplicable to a union's information requests under the Statute. Finding no Authority precedent involving 5 U.S.C. § 423 on point, it was concluded that section 7114(b)(4) of the Statute does not provide for disclosure of the type of information covered by section 423(a) thereby rendering section 423(a) inapplicable to union requests for information. It was reasoned that there was no support for treating labor organization access to information contained in section 423(a) different than access provided other entities. As for the MEO, it was concluded, consistent with the plain language of the statute and its purpose and the definitions in section 423(f), that section 423 did not prohibit its disclosure. Neither Government-wide procurement regulations nor OMB Circular A-76 prohibits disclosure. Nevertheless, it was concluded that the parties' contract limited the Union's right to the MEO and therefore provides a defense to the Activity's challenged conduct. In this regard, a provision of the parties agreement concerning information about the contracting-out process states, among other things, that the employer will provide the Union access to records pertaining to a specific contract. Interpreting that provision, it was found that the provision provided the Union with access to, not copies of, the contracting-out records. In agreeing to this provision of the contract, the Union limited its rights under section 7114(b)(4) of the Statute with respect to contracting-out information. Thus, the contract provided the Activity with a defense to explain its conduct. Accordingly, absent withdrawal, the Region was directed to dismiss the charge.

GENERAL COUNSEL'S SETTLEMENT CORNER

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 Not to Contract Out Work Performed by Bargaining Unit Employees Until Bargaining Obligations Fulfilled Regarding Procedures and Appropriate Arrangements and to Apply the Results of the Bargaining Retroactively

Before issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice stating that it would not implement the contracting out of work performed by the bargaining unit employees without fulfilling the obligation to bargain with the Union over the procedures for implementing the contracting out and appropriate arrangements for employees adversely affected by the contracting out of work. The Agency also agreed to apply the results of the bargaining retroactively.

Agency Posts Notice Agreeing Not to Sponsor, Control, or Otherwise Assist any Labor Organization by Attempting to Encourage or Discourage Bargaining Unit Employees from Voting for a Particular Candidate in an Internal Election for Union Steward

Before issuance of complaint and notice of hearing, the parties agreed that the Agency would not sponsor, control, or otherwise assist any labor organization by attempting to encourage or discourage bargaining unit employees from voting for a particular candidate in an internal election for union steward. The Agency further agreed not to interfere with, restrain, or coerce employees by stating to bargaining unit employees that: (1) a supervisor believes that a particular candidate for union steward is difficult to get along with; (2) that it would be a big mistake for employees to choose a particular candidate for union steward, that the supervisor would be unable to work with that individual as union steward, that the supervisor did not want the particular candidate to become union steward; (3) bargaining unit employees hurt a supervisor's feelings by the way they voted in an internal union election; and (4) because the union filed a grievance, the supervisor would no longer "stick [his] neck out for anyone else."

Agency Agrees to Acknowledge Union's Right to Designate Representatives as Provided for Under the Statute, to Provide the Union with Requested Information, and to Allow the Union to Resubmit a Grievance at Step 4 and to Waive All Time Bar Defenses

After issuance of complaint and notice of hearing, the parties agreed that the Agency would acknowledge that the Union has a right to designate its representatives as provided by the Statute. The Agency also agreed to issue a letter of assurance to the Union to this effect. The Agency further agreed to provide information to the Union that had been previously requested and to give the Union 14 days from the date the Union receives the information to resubmit a grievance at Step 4. Finally, the Agency agreed to waive all time-bar defenses should the Union choose to resubmit the grievance.

Agency Posts Notice Agreeing not to Bypass the Designated Representative by Holding Meetings with Unit Employees to Present Final Decisions on Disciplinary Actions without Notice to the Union

In a post-complaint settlement agreement, the Union agreed to post a notice to all employees stating that the Agency will not bypass the designated representatives of unit employees by holding meetings to present final decisions on disciplinary actions without affording the Union the opportunity to be present.

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 Agrees to Post Notice and to Terminate Appropriated Fund Employees' Payroll Dues Withholding of Union Dues at an Employee's Request at Times Permitted by the Bargaining Agreement

Before issuance of complaint and notice of hearing, the Agency agreed to post a notice stating that it will not fail or refuse to terminate appropriated fund employees' payroll dues withholding for the Union at an employee's request at times permitted by the parties' bargaining agreement. In this regard, concerning requests for terminations that have been in effect for less than one year, terminations will only be effected at the end of the first pay period beginning after the calendar date that the deductions began (anniversary date). For all other requests, terminations will only be effected at the end of the first pay period beginning after March 1.

Union Posts Notice Agreeing to Represent all Bargaining Unit Members Equally and Fairly Without Regard to Membership Status in the Union

After issuance of complaint and notice of hearing, the Union agreed to post a notice stating that it would not tell bargaining unit employees that the Union was not required to give equal representation to bargaining unit employees who do not pay dues to the Union. In addition, the Union agreed to represent all bargaining unit members equally and fairly without regard to their membership status in the Union. However, the posting also states that unit employees who are not members of the Union do not have any right to participate in the development of bargaining proposals for new watch schedules, or the ratification of any agreements on watch schedules following negotiations between the Union and the Agency. These rights are properly reserved for dues-paying members of the Union.

Agency Agrees to Post Notice Agreeing to Rescind the Maximum Compensatory Hour Limit of 60 Hours and to Adhere to the 160 Hour Limit Established by Regulation

Before issuance of complaint and notice of hearing, the Agency agreed to post a notice acknowledging that it unilaterally changed working conditions when it imposed a maximum compensatory hour limit of 60 hours, which was different from the 160 hour maximum limit provided for by applicable regulation. The Agency agreed not to change such working conditions without providing the Union with notice and an opportunity to bargain over the change to the extent required by the Statute. The Agency agreed to rescind the maximum compensatory hour limit of 60 hours and to adhere to the 160 hour limit established by regulation.

Agency Sends Letter to Unit Employee Acknowledging Mistake in Referring to Use of Official T