SEE OUR NEW "ASKED AND ANSWERED" COLUMN
Vol. 5 No. 3
June 1, 1996 - September 30, 1996
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
SEE OUR NEW "ASKED AND ANSWERED" COLUMN
|You Asked for it!|
|News to Know|
|Asked and Answered|
|FSIP Final Actions|
|General Counsel's Case Handling Advice to Regional Directors|
|General Counsel's Settlement Corner|
This issue of the FLRA Bulletin features a new column called " Asked and Answered". The column, added at your request, will answer a variety of questions about federal sector labor-management relations. This issue's premier column answers some of the commonly asked questions about unfair labor practice appeals filed with the FLRA Office of the General Counsel.
FLRA TARGETS NEGOTIABILITY CASES FOR ALTERNATIVE DISPUTE RESOLUTION
For the first time in FLRA history, alternative dispute resolution (ADR) is now integrated into the process for resolving negotiability appeals filed with the Authority.
The ADR services, which include interest-based bargaining and other innovative ADR techniques, are being provided by the FLRA's Collaboration and Alternative Dispute Resolution Program (CADR). Parties choosing to participate in the program will meet in sessions facilitated by CADR to identify issues, discuss interests, and find solutions. Cases covered by the program may be held in abeyance at the parties' request while they attempt to informally resolve the dispute.
"The FLRA is committed to reducing the costs of workplace conflict," said FLRA Chair Phyllis Segal. "This new ADR initiative is just one of the many ways the FLRA is working to accomplish this. Our goal is to strengthen labor-management relationships by helping parties work together to find their own lasting solutions to their problems."
For information about ADR initiatives at the FLRA, including a brochure about the use of ADR in pending negotiability cases, call CADR at: (202) 482-6503.
GENERAL COUNSEL MOVES TO SPEED UP DECISIONS ON ULP APPEALS AND APPOINTS NEW DIRECTOR TO LEAD THE CHARGE
In September, the FLRA's Office of the General Counsel moved to expedite decisions on appeals to the General Counsel of Regional Director dismissals of unfair labor practice (ULP) charges and appointed a new Director to lead the effort.
Beginning on October 1, 1996, the review of dismissals of ULP charges will be decentralized and integrated with the OGC's Quality and Scope of Investigation Policies. All final decisions on the appeal will continue to be made by the General Counsel. However, OGC regional employees from throughout the country will now take part in the review. The effort will be lead by Carol Waller Pope, the newly appointed Director of Appeals and Special Programs. Pope is an experienced labor relations professional from the OGC who has worked in both the regional and headquarter offices.
FLRA General Counsel Joe Swerdzewski emphasized that the move was part of the agency's continued commitment to do more with less: "We are dedicated to ensuring that every party who files an unfair labor practice charge gets a fair and timely review of their allegations," said Swerdzewski. "The changes we've made in the review process are aimed at addressing dramatic reductions in the number of staff available to process the appeals and providing quicker service for federal agencies, unions and employees nationwide."
See the Bulletin's new featured column " Asked and Answered " for answers to some of the commonly asked questions about the appeals process.
FSIP REVAMPS REGULATIONS
For the first time in over thirteen years, the Federal Service Impasses Panel has changed its regulations, moving to make them more user-friendly and making it easier for customers to access Panel services. The changes cover the:
- use of fax filing and private delivery services;
- creation of a new expedited arbitration procedure;
- authority of private arbitrators to address duty-to-bargain questions;
- range of options available to FSIP to resolve an impasse;
- prompt approval of joint requests for binding arbitration; and
- requirements concerning flexible and compressed work schedules.
FLRA REALIGNS JURISDICTION OF REGIONAL OFFICES
As part of its continuing efforts to improve its operations and increase the effectiveness of its services, the FLRA has changed the jurisdiction of its Regional Offices.
The changes, effective October 1, 1996, cover cases arising in North Dakota, Tennessee, New Mexico, Alaska, Delaware, West Virginia and parts of Pennsylvania and Missouri. See page 16 of this Bulletin for an updated Regional Office list.
FSIP EXECUTIVE DIRECTOR AND WASHINGTON REGIONAL ATTORNEY RETIRE FROM THE FLRA
Linda A. Lafferty, Executive Director of the FSIP since 1989, has retired after a long and dedicated career at the FLRA. Ms. Lafferty joined the FSIP in May 1973 as a Staff Associate and served in that capacity until September 1976, when she was appointed Deputy Executive Director, and later Executive Director. Before joining the FSIP, she served as a Commissioner with the Federal Mediation and Conciliation Service and a Labor-Management Relations Examiner with the National Labor Relations Board.
Ms. Lafferty came to the field of dispute resolution following a successful nursing career in both Canada and the United States. She is a past president of the Society of Professionals in Dispute Resolution, and a former officer in the Society of Federal Labor Relations Professionals.
Also moving on is Larry Evans, the Regional Attorney in the FLRA's Washington Regional Office, who also served as Assistant General Counsel in the Office of the General Counsel. Evans, a long time labor lawyer with the FLRA and the Postal Service, is leaving federal service to open an arbitration and mediation service in Rockville, Maryland.
This issue's " Asked and Answered " column will cover some of the commonly asked questions about appeals to the FLRA's Office of the General Counsel of Regional Directors' dismissals of unfair labor practice charges. ( See the News to Know column for more information about recent moves to expedite decisions on these appeals.)
Q #1: What happens after I file an appeal with the Office of the General Counsel?
You will receive written notification that your appeal has been received. A staff member within the OGC, who does not work in the Region which investigated your case, will be assigned the appeal and will review it and the evidence in the file obtained during the investigation. You will receive a written decision letter either: 1) granting your appeal and ordering further investigation of specific issues or issuance of a complaint over a specific violation; or 2) denying your appeal because none of the grounds for granting review have been established.
Q #2: Is there any appeal of the decision on my appeal?
No. The decision on the appeal is final.
Q #3: What are the standards for granting an appeal and what must my appeal establish to be granted?
- An Appeal will be granted only if it establishes at least one of the following five grounds:
- The Regional Director's decision did not consider material facts that would have resulted in issuance of a complaint.
- The Regional Director's decision is based on a material factual issue that is clearly erroneous.
- The Regional Director's decision is based on an incorrect statement of the applicable rule of law.
- There is no Authority precedent on the legal issue in the case.
- The manner in which the Region conducted the investigation has resulted in prejudicial error.
Appeals that do not establish at least one of these grounds will be denied.
Q #4: How long will it take to get a decision?
One of the primary reasons the OGC recently changed the way it processes appeals is to reduce the processing time. The office is aiming for a 90-day or less turn around time.
Q #5: Should I include any of my evidence with my appeal?
No. All of the evidence that you gave to the Region during the investigation is in the investigative file and will be reviewed. You do not need to submit any evidence that you have already given the Region during the investigation. However, you may refer to that evidence in your appeal.
Q #6: May I submit new evidence not given to the Region?
No. No new evidence will be considered unless you can establish in your appeal that the evidence either did not exist during the investigation or that you could not have reasonably known about the existence of the evidence.
Q #7: Can I discuss my appeal with anyone from the OGC while my appeal is being decided?
No. The appeal process is not an investigative process. The decision will be based on your appeal and the investigative file. The OGC will let you know as soon as a decision is reached. If your appeal is granted, the case will be returned to the Regional Office and you will be contacted by the Region for further processing of the case.
Q #8: How many appeals are granted by the OGC?
Historically, since the enactment of the Federal Service Labor-Management Relations Statute in 1979, the OGC has granted about 5% of the appeals of Regional Directors' dismissals of unfair labor practice charges. Of the 564 appeals decided during fiscal year 1995, about 24 or 4.35% of the appeals were granted.
Q #9: Why are so few appeals granted?
The grounds discussed in question #3 for granting an appeal are essentially the same standards applied by the Regional Directors in deciding the original case. Appeals are granted only in those cases that don't meet these standards.
If you have additional questions about the appeals process, call any FLRA Regional Office or the Office of the General Counsel at (202) 482-6600.
Here's an update on some of the FLRA's recent collaboration and alternative dispute resolution activities:
The FLRA is continuing its work to help parties during government-wide reorganization and reinvention. After President Clinton announced a new food safety program for meat and poultry, the Office of the General Counsel met with the Department of Agriculture, Food Safety and Inspection Service and the National Joint Council of Food Inspections Locals, AFGE. The OGC facilitated the meeting and helped the parties reach an agreement that established the framework for the union's involvement in the comprehensive reorganization.
ADR and Pending Cases
The FLRA's Collaboration and Alternative Dispute Resolution Program (CADR) is now using alternative dispute resolution (ADR) in pending cases. Since June, CADR has conducted successful on-site interventions in negotiability and related unfair labor practice cases in Atlanta and in an arbitration case in Washington, DC. It also provided ADR assistance by telephone in a number of negotiability cases resulting in withdrawal of the appeals. The parties' success in resolving these pending cases shows that ADR can work when it is fully embraced both in theory and practice.
Training and Consultant Program
Other FLRA ADR efforts these past few months were dedicated to making the best use of limited resources by training the parties to help themselves. The Office of the General Counsel, assisting in the development of an in-house consultant program, presented a 5 day training session to 28 Department of Veterans Affairs employees from throughout the Eastern District who will serve as consultants to facilitate and mediate partnership activities at the local level throughout the district.
Agency representatives and union representatives from the AFGE, NFFE, NAGE, SEIU and the ANA participated in the training. Training and discussion topics included: the relationship between collective bargaining and partnership, alternative dispute resolution, interest-based problem solving, and diagnostic skills. A training videotape of this session is in production.
In a follow-up two day session, the Office of the General Counsel together with the New York State School of Industrial and Labor Relations, Cornell University, worked with a smaller group of the consultant trainees to assist them in moving forward with the program. Work was done on a report that includes recommendations about the roles and responsibilities of the consultants, the future of the consultant program, and the type and level of support needed by the Department to ensure the consultant program's success.
CADR conducted briefings and workshops about the FLRA's ADR services, meeting with the Department of Interior, NFFE, the Bureau of Engraving and Printing, the National Bar Association and a host of other organizations and parties.
Unfair Labor Practice Cases
In Department of Veterans Affairs, Northern California System of Clinics, Pleasant Hill, California and Department of Veterans Affairs, Washington, D.C., 51 FLRA No. 117, the Authority concluded that a contract provision requiring employees wishing to revoke their dues withholding to submit a dues revocation form to the union did not, per se, interfere with employee rights. However, the Authority also concluded that the agency and the union committed unfair labor practices in violation 7116(a)(1) and (b)(1) respectively, by failing to promptly act on dues revocation requests.
In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, the Authority discussed its approach for evaluating requests for nontraditional remedies in unfair labor practice cases. The Authority explained that, assuming there are no legal or public policy objections to a proposed nontraditional remedy, it will evaluate whether the remedy is reasonably necessary and would be effective to recreate the conditions and relationships with which the unfair labor practice interfered. The Authority will also consider whether the remedy would effectuate the policies of the Statute, including the deterrence of future violative conduct. The Authority stated that these questions are essentially factual, and will be evaluated by considering record evidence, arguments to an administrative law judge, and any exceptions to a judge's decision.
In American Federation of Government Employees, Local 3824 and U.S. Department of Energy, Western Area Power Administration, Phoenix, Arizona, 52 FLRA No. 31, the Authority determined the negotiability of proposals concerning the storage and destruction of records generated by a call-recording device that the agency installed on its telephone system. The Authority found that: (1) three proposals were outside the duty to bargain because they affected management's right to determine its internal security practices under 7106(a)(1) of the Statute; and (2) one proposal was within the duty to bargain because it affected conditions of employment within the meaning of 7103(a)(14) of the Statute and was not challenged on any other ground.
In American Federation of Government Employees, Local 4042 and U.S. Department of Defense, Army Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 51 FLRA 1709, the Authority denied the union's exceptions to the arbitrator's award based on the First Amendment. The award stated that the union violated the parties' collective bargaining agreement by posting an anonymous message on its bulletin board and repeatedly refusing to remove it. The Authority concluded that the award did not conflict with the First Amendment because it lacked state action. Moreover, even assuming that there was state action, the Authority found that the First Amendment did not preclude limitations on the use of the bulletin board. The Authority noted that the bulletin board was a nonpublic forum and that any limitations satisfied the requirements of reasonableness and viewpoint neutrality.
In U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Defense Distribution Depot Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 52 FLRA No. 13, the Authority denied the agency's exception to the arbitrator's order requiring the agency to grant performance awards to the grievant. In so holding, the Authority concluded that the order did not conflict with management's right to determine its budget under 7106(a)(1) of the Statute under either part of the Authority's budget test set forth in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters , 659 F.2d 1140 (D.C. Cir. 1981), cert. denied , 455 U.S. 945 (1982) (Wright-Patterson).
While applying the Wright-Patterson budget test to resolve this case, the Authority noted that the future application of this test to an arbitrator's financial remedy raised doctrinal and policy questions which should be considered when the issue is raised by the parties and fully litigated.
In U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 52 FLRA No. 4, the arbitrator determined that the agency improperly required a grievant to complete an in-patient alcohol counseling rehabilitation program after the grievant completed an out-patient program recommended by the agency. The arbitrator ordered the agency to reimburse the grievant for medical expenses expended to participate in the in-patient program because the grievant's insurance did not cover its cost. On review of the award pursuant to exceptions filed by the agency, the Authority held that the award was contrary to law. Noting that there is no right to money damages in a suit against the United States without a waiver of sovereign immunity, the Authority concluded that neither of the two potential waivers of sovereign immunity applicable here (31 U.S.C. 3529 and the Back Pay Act) provided a basis for the payment of the grievant's medical expenses.
In U.S. Department of Health and Human Services, National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio and American Federation of Government Employees, Local 3840 , 52 FLRA No. 21 (1996), the Authority upheld an arbitration award directing the agency to promote the grievant with backpay. The Authority concluded that the substance of the matter in dispute concerned the grievant's denial of a promotion, not the classification of her position, and therefore was not barred by 7121(c)(5) of the Statute. In upholding the award, the Authority relied on the arbitrator's finding of fact that the agency had an unwritten nondiscretionary policy of promoting similarly-situated employees.
General Services Administration, National Capitol Region, Federal Protective Service v. FLRA, 86 F.3d 1185 (D.C. Cir.1996), reviewing 50 FLRA 728 (1995). In this unfair labor practice case, the Authority had ruled that the agency committed an unfair labor practice by failing to bargain before it unilaterally terminated a practice of permitting Federal Protective Service Officers to carry their government weapons home. The agency had concluded that the practice was illegal under a provision of the agency's authorizing legislation. Deferring to what it viewed as a reasonable agency interpretation, the court agreed with the agency and declined to enforce the Authority's decision. However, the court remanded the case to the Authority to determine certain subsidiary issues concerning the agency's impact and implementation bargaining obligations.
ABOUT THIS COLUMN
The Federal Service Impasses Panel is the last step in federal sector collective bargaining -- the substitute for the strike and lockout in the private sector. Many of the negotiation impasses brought to the Panel are successfully settled with Panel assistance. If, however, an impasse is not voluntarily settled, the Panel takes final action which may include directing the parties to another procedure or imposing settlement terms. These typically occur through the issuance of a "Decision and Order" if the impasse was considered by the Panel as a whole, or an "Opinion and Decision", if a Panel Member or staff person was designated to help resolve the dispute. This column highlights both of these final actions.
Renovation of Facilities
Social Security Administration, Champaign District Office, Champaign, Illinois, and Local 1395, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 63 (June 6, 1996), Panel Release No. 387 (Opinion and Decision). A Panel representative was directed to resolve the parties dispute concerning employee safety concerns through mediation-arbitration. If any matters remained unresolved after mediation, the representative was instructed to issue a binding decision by selecting either of the parties' final proposals (final-offer selection). When mediation efforts failed to result in a complete settlement of the dispute, the representative issued a decision adopting the agency's final offers concerning workstations, windows and walls.
Service Credit During Reductions in Force
Federal Deposit Insurance Corporation, Washington, D.C. and National Treasury Employees Union, Case No. 96 FSIP 5 (June 26, 1996), Panel Release No. 388 (Decision and Order). After the parties resolved most, but not all of the dispute with an informal conference, the Panel issued a Report and Recommendations for Settlement on the two issues that remained. On the first issue, which involved competitive areas, the parties reached a settlement rendering moot its further consideration by the Panel. On the second issue, which concerned service credit for performance for job retention purposes in a RIF, the Panel issued a Decision and Order imposing a compromise solution concerning the use of the employees' performance rating to calculate service credit for performance for job retention purposes in a RIF.
Establishment of AWS
Department of Justice, Office of the United States Attorney for the District of Columbia, Superior Court Division, Washington, D.C. and Local 3620, American Federation of State, County, and Municipal Employees, AFL-CIO, Case No. 96 FSIP 42 (August 5, 1996), Panel Release No. 389 (Decision and Order). After the parties reached an impasse over the agency's decision not to establish a 5-4/9 AWS pilot program, the Panel asserted jurisdiction under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Act), and directed them to meet in an informal conference with a Panel representative to attempt to resolve the matter. When the dispute was not resolved during the informal conference, the Panel issued a decision finding that the agency had met its statutory burden by demonstrating that the establishment of the union's proposed AWS pilot was likely to cause an adverse agency impact. Thus, the agency was not required to negotiate over the union's proposal.
Issues in Successor Agreement Negotiations including AWS, Credit Card Program, Health and Safety and Official Notification
Department of the Air Force, Fairchild Air Force Base, Fairchild AFB, Washington and Local 11, National Federation of Federal Employees, Case No. 96 FSIP 44 (July 26, 1996), Panel Release No. 389 (Decision and Order). After investigation of the union's request for assistance, which concerned 28 provisions of a successor collective-bargaining agreement, the Panel issued orders to show cause on some and required written submissions on others. Upon careful review of the record, the Panel found that the parties had failed to show cause why those provisions which previously had been settled and approved on agency head review should not be ordered by the Panel. The Panel did, however, modify the parties previously-agreed to wording concerning the AWS issue. The Panel ordered either the adoption of the agency's proposals or the withdrawal of the union's on all but one of the remaining issues. The union's proposal on the remaining issue, which concerned agency compliance with OSHA and other environmental conditions, was ordered adopted.
Termination of AWS
Department of the Army, Fort Carson, Evans Army Community Hospital, Fort Carson, Colorado and Local 1345, American Federation of Government Employees, AFL-CIO , Case No. 96 FSIP 53 (June 27, 1996), Panel Release No. 388 (Decision and Order). This case concerned an employer's attempt to replace a 4/10 AWS with a 5-4/9 AWS. After concluding that the employer's action was a termination of an AWS, the Panel declined to retain jurisdiction under the Statute, without prejudice to the right of either party to submit another request for assistance pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Act). The Panel stated that unless parties clearly and unmistakably agree otherwise, the Act provides the exclusive means for terminating an AWS.
Use of Time Clocks
Department of the Navy, Marine Corps Logistics Base, (MC) Division, Barstow, California and Local 1482, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 76 (June 28, 1996), Panel Release No. 388 (Decision and Order). This impasse, which concerned time clocks, was decided through the use of written submissions. The Panel ordered the continuation of the use of the time clocks, as proposed by the agency, noting that the time clocks provided records for billing purposes, as well as serving as an automated time-and-attendance system, and that the union's alternative procedure would be less accurate for both purposes.
Department of Veterans Affairs, Veterans Affairs Medical Center, Detroit, Michigan and Local 933, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 113 (August 19, 1996), Panel Release No. 390 (Opinion and Decision). A Panel Member conducted an expedited arbitration to resolve this impasse concerning the parking fee after a relocation. After the hearing, the arbitrator issued an award directing the parties to adopt a compromise fee, noting that the union's proposal was unrealistically low compared to other facilities in the area, and the agency's proposal was too high considering the increased commuting costs for the employees, the new employee tax burden, the parking fees at comparable facilities in the commuting area, and the potential impact on moral and recruitment.
Private Offices and Office Assignments
Department of the Navy, Naval Facilities Engineering Service Center, Port Hueneme, California and Federal Union of Scientists and Engineers, Local R12-196, National Association of Government Employees, SEIU, AFL-CIO, Case No. 96 FSIP 50 (August 6, 1996), Panel Release No. 389 (Opinion and Decision). After mediation efforts did not resolve this impasse involving the relocation of the agency's offices, an arbitration hearing was held where the dispute was decided through final-offer selection on an issue-by-issue basis. The arbitrator issued an award directing the parties to adopt the agency's final offer concerning private offices and restrooms and the union's final offer concerning the assignment of office space.
Department of Defense, Domestic Dependents Elementary and Secondary Schools, Laurel Bay Dependents Schools, Laurel Bay, South Carolina and Laurel Bay Teachers' Association, Federal Education Association, NEA, Case No. 96 FSIP 66 (August 13, 1996), Panel Release No. 389 (Opinion and Decision). In this case, the parties were at impasse over teachers' pay for the 1995-96 school year. When the parties were unable to resolve the pay issue with mediation assistance, an arbitration award was issued by a Panel Member following a hearing. Relying, in part, on comparability data offered by the agency, the arbitrator directed the parties to adopt a compromise proposal giving the teachers a 2.5 percent pay increase.
ABOUT THIS COLUMN
The FLRA's General Counsel, Joseph Swerdzewski, has 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 in the interest of keeping the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the FLRA's Bulletin highlights selected cases which 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 case-handling advice and guidance represents the OGC's position, and is not an official position of, or interpretation by, the Authority.)
The Application of the "Covered By" Doctrine, if any, on an Expired Contract
An unfair labor practice charge was presented for case-handling advice involving an agency's refusal to negotiate an alleged change in the promotion plan. The agency refused to negotiate on the basis that the subject matter was "covered by" the parties expired agreement. In this case the agency and the union are parties to a master labor agreement involving a consolidated nationwide bargaining unit. The parties negotiated a successor agreement but the union failed to ratify that agreement.
The General Counsel advised the Regions to adhere to the following decisional process when determining the effect of an expired contract on the duty to bargain:
- Initially determine whether, in fact, a contract is in existence. If a contract is in effect, the Regions would apply existing Authority doctrines addressing the effect of a contract on the duty to bargain.
- If the Region determines that there is no contract in effect, the next step is to decide whether the expired contract clauses at issue concern mandatory or permissive subjects of bargaining. In determining whether a matter is a permissive or a mandatory subject of bargaining, the Regions should focus on the subject matter of the provision and whether that subject matter was permissive or mandatory at the time of negotiations. Permissive subjects are those which do not concern conditions of employment and those which are delineated in 7106(b)(1) of the Statute.
- If the expired clauses are permissive subjects of bargaining, an agency need not be bound by those clauses. Consistent with Authority case law, upon the expiration of the agreement, either party may elect to no longer be bound by the provisions of the agreement concerning permissive subjects of bargaining, but instead may refuse to negotiate with regards to such subjects. Thus, permissive subjects remain in effect unless or until one of the parties gives notice that it will no longer be bound by the expired article.
- If the expired clauses are mandatory subjects of bargaining, the parties are bound by those provisions until and unless the parties agree otherwise or they are modified under the Statute. Thus, an agency must give notice of any proposed change of an expired contract term, afford the union the opportunity to request to bargain, bargain in good faith and maintain the status quo until it has fulfilled its bargaining obligation. Any request to negotiate a change in a mandatorily negotiable, expired contract term must be made at the level of exclusive recognition.
The General Counsel, applying the above decisional analysis to the facts of this case, determined that: 1) there was no contract in existence and therefore, the "covered by" defense asserted by the agency was inapplicable; 2) the alleged change at issue involved a topic that was mandatorily negotiable and thus its terms survive the expiration of the contract; but that, 3) the facts failed to establish that there was a change in the provision at issue.
Accordingly, since the agency did not violate the Statute by complying with the expired contract terms, the Regional Director was advised that absent withdrawal, the charge should be dismissed. The General Counsel further determined that there was no unlawful refusal to bargain over the union's attempt to make changes in the expired contract terms because the request to bargain was made by the union below the level of recognition.
The Obligations of Agencies to Non-Employee Representatives of a Rival Union Prior to Obtaining Equivalent Status
Two cases were presented for case-handling advice involving the efforts of a non-employee local union representative to organize bargaining units at two separate agencies that are currently represented by another union. The Region found that there was no evidence that the non-employee union representative gained access to a public area at either facility for a nonpermissable purpose. However, the evidence did establish that the two agencies either knowingly allowed the rival non-employee representative access to non-public facility areas, or should have known that the rival non-employee representative had gained access to such non-public areas, for the purpose of distributing literature and solicitation without taking action to cease that access prior to the filing of representation petitions. There was no evidence that representatives of groups other than the rival union were granted access to these same or similar non-public areas of the agencies' facilities. As a result of this access, the rival union was able to obtain a showing of interest to file representation petitions for the two bargaining units.
The Regional Director was advised that absent settlement, or the discovery of additional evidence that other non-employee individuals or groups are given the same access to non-public areas, complaint should issue alleging that the two agencies violated 7116(a)(1) and (3) of the Statute. The Regional Director was advised to hold the pending representation petitions filed by the rival union in abeyance until the unfair labor practice charges had been decided. If a violation is found, the Region was advised to dismiss the pending petitions because the showing of interest was tainted.
In reaching this conclusion, the General Counsel first reviewed employees' statutory rights under 7102 to solicit and distribute materials on behalf of, or against, a labor organization, whether or not there is an incumbent exclusive representative, during non-work time and in non-work areas or in work areas if not disruptive. The General Counsel then discussed the rules for a non-employee union representative seeking access to agency facilities on behalf of a rival union that has not attained equivalent status . The General Counsel advised the Regions to apply the following decisional analysis in future case that present these issues:
- Public areas within the control of an agency may be used by any individuals for the non-work related purpose for which those public areas were intended, as long as not disruptive.
- If public areas are allowed to be used by representatives of groups for purposes other than those intended for those public areas, the agency cannot treat a rival union in a disparate manner.
- Non-public areas may only be used for their intended purposes. An incumbent union may negotiate certain access to these non-public spaces, such as meeting rooms. The grant of access to a rival union without equivalent status to these non-public spaces would be a violation of 7116(a)(1) and (3), unless other groups have been granted similar access to these non-public areas.
Renegotiation of Contract Provisions Which Have Been Included in a Contract Pursuant to 7119 Impasse Procedures When the Membership Fails to Ratify the Contract
Two cases were presented for case handling advice that raise novel issues concerning the relationship between the finality of a decision on a bargaining impasse under 7119 of the Statute and a union's right to ratification.
The agency and the union began negotiations on a new collective bargaining agreement. The parties' ground rules agreement provides for ratification of the contract and the incorporation of contract language arrived at through the use of FSIP procedures. After a period of protracted negotiations, the parties sought assistance from the FSIP on twelve remaining articles. Using a mediation-arbitration procedure ordered by the Panel, the Arbitrator's Opinion and Decision ordered the parties to adopt in their new contract the agency's proposals on nine articles and the union's proposals on the remaining three articles. The union membership failed to ratify the contract, including the provisions ordered by the Arbitrator.
A dispute then arose between the parties as to the scope of bargaining. The union asserted that all articles in the contract were on the table for renegotiation. The agency maintained that the provisions ordered by the Arbitrator were final and not subject to further negotiations. Unable to resolve this issue, the parties filed unfair labor practice charges against each other.
The General Counsel determined that in order to provide the Authority with the opportunity to address this novel issue, absent a resolution of the bargaining dispute, the Region should issue a consolidated complaint for both cases alleging alternative theories of a violation. In reaching this determination, the General Counsel found case precedent and public policy support for both positions. The General Counsel noted that the scope of bargaining following ratification rejection of a collective bargaining agreement is only limited by the applicable ground rules or another agreement of the parties. Thus, when union ratification is a condition precedent to a collective bargaining agreement, it should have the same effect on the agreement as does agency head review under 7114(c) of the Statute, which requires the parties to return to the bargaining table and, consistent with any applicable ground rules, negotiate an agreement. Applying this theory, the agency's refusal to negotiate the entire contract would be unlawful.
On the other hand, the contract at issue contains provisions ordered to be included pursuant to statutory impasse procedures. Section 7119(c)(5)(C) of the Statute provides that a Panel decision on an impasse is "final" and "shall be binding on [the] parties during the term of the agreement, unless the parties agree otherwise." Arguably, pursuant to 7119(c)(5)(C) of the Statute, the resolution of the bargaining impasse that was ordered by the Arbitrator is final and is not subject to further renegotiation, even if the contract is not ratified. Applying this theory, the union's insistence on renegotiating the entire contract, including those provisions ordered by the arbitrator, would be unlawful.
In view of the support for both theories of violation in both charges in Authority precedent and in effectuating the Statute, absent resolution of this dispute, a consolidated complaint was authorized to plead both violations in the alternative to present the issue to the Authority.
ABOUT THIS COLUMN
In accordance with the OGC's Settlement Policy, various 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 the 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.
Letter Issued to Employees in Lieu of Notice Posting As Remedy to ULP Charge Concerning Work Groups
After issuance of a Complaint and Notice of Hearing, the parties entered into a settlement agreement which included a non-admission clause. The unfair labor practice charge alleged that the agency bypassed the union in the establishment of a committee or work group of bargaining unit employees designed to address working conditions of unit employees. The agency agreed to deliver a letter to each bargaining unit employee which includes a statement of the allegations in the unfair labor practice charge, and the agency's agreement to fulfill its statutory obligations to bargain with the union regarding conditions of employees and to obtain the consent of the union prior to establishing any committee or work group of unit employees that is designed to address working conditions.
Agency Posts Notice Regarding the Exercise of Statutory Rights to Distribute Literature and Solicit Membership on Behalf of a Labor Organization
A post-complaint bilateral settlement agreement was approved by the Regional Director to resolve this unfair labor practice charge. In the settlement agreement, the agency acknowledged that it had interfered with an employee's statutory rights by: 1) preventing him from soliciting membership on behalf of a labor organization in the agency cafeteria during non-work times; and 2) informing employees that solicitation on behalf of a rival labor organization was likely prohibited during non-work time in non-work areas throughout the agency property. In a Notice To All Employees the agency agreed that it will not forbid or unreasonably restrict employees from the exercise of such rights in the future.
Settlement Agreement Provides Procedure for Processing Statutory Requests for Information
After issuance of a complaint and notice of hearing, the parties entered into a settlement agreement that will facilitate the timely and responsive processing of statutory requests for information. The settlement agreement includes a Memorandum of Agreement which sets forth a mechanism whereby the agency will respond to requests for information within seven days of receipt. The agency response will include a specific date the data will be provided when applicable. In a Notice To All Employees, the agency also agreed to comply with its obligation to furnish data under the Statute.
Management To Receive Training in Employee Rights and Management Responsibilities Under the Statute
Prior to the issuance of a complaint and notice of hearing, the parties entered into a settlement agreement in resolution of an unfair labor practice charge which alleged that a union official had been discriminated against in violation of 7116(a)(2) of the Statute. The terms of the settlement agreement provide that the agency will continue to pursue a reassignment of the discriminatee that is acceptable to the agency and the employee. In addition, the parties agreed that statutory training on the rights and obligations of employees and agencies would be provided to managers employed in the division where the alleged unlawful conduct occurred.
Notice To Employees Announces Agreement To Negotiate Implementation Procedures and Appropriate Arrangements for New Performance Work Plans
An unfair labor practice charge alleging that the agency had violated 7116(a)(5) of the Statute by the implementation of new performance plans was resolved by the parties. The agency acknowledged the union's statutory right to negotiate procedures for the implementation of new performance plans prior to their implementation. Notwithstanding the agency's belief that it had fulfilled its bargaining obligations prior to implementation, it agreed to bargain with the union and to refrain from such conduct in the future.
Alleged Breach of the Duty of Fair Representation by the Union is Resolved
After issuance of a complaint and notice of hearing the parties entered into a settlement agreement resolving two unfair labor practice charges. In a Notice To All Members and Employees signed by the local union president, the union agreed that it would not make statements or otherwise create the impression that non-member unit employees seeking representation would receive a different level of representation than dues paying members. The union further agreed that the same level of representational assistance would be provided to agency divisions regardless of the level of union membership in the division.
Detail of Union Official Rescinded
The parties entered into a settlement agreement which includes a Notice To All Employees in resolution of an unfair labor practice charge which alleged that a union official had been discriminated against in violation of 7116(a)(2) of the Statute. Although the agency does not admit that it committed a violation of the Statute, it agreed to not detail the union official and to expunge all documents referring to the detail from the personnel file of the employee. In addition, the agency agreed to restore annual and sick leave that was used in preparation for third party proceedings that were necessitated by the agency's conduct, or that was unlawfully denied. The agency further agreed that future leave requests will be considered without regard to the employee's protected activities.
Settlement Agreement In Lieu Of Notice Posting Provides Status Quo Ante Remedy
An unfair labor practice charge involving a unilateral office relocation of an employee prior to the completion of bargaining was resolved by the parties without a notice posting. In a separate Settlement Agreement, the agency agreed to return to the status quo regarding the office location of an employee. All resources, equipment and furniture that the employee previously had available will be restored. The settlement agreement provides that prior to implementation of any future office relocations, the union will be given notice and an opportunity to negotiate to the extent required by the Statute.
Agency Failure to Timely Process Dues Revocation Requests Is Resolved
In resolution of three unfair labor practice charges, the parties entered into a settlement agreement memorandum in lieu of the posting of a Notice To All Employees. The settlement agreement requires the agency to process all requests for dues cancellations for the affected employees. The agency also agreed to reimburse employees for monies deducted from their pay checks after they submitted their dues cancellation requests to the agency. Approximately fifty-two (52) employees will receive their appropriate share of dues contributions which totaled over $4,000.
Unilateral Changes To Compressed Work Schedule Rescinded
This unfair labor practice charge involved the agency's failure to abide by a decision of the Federal Service Impasses Panel. The settlement agreement entered into by the parties provides for affected employees to be provided the option of immediately resuming the same compressed work schedule the employee had prior to the termination. In addition, the agency agreed that the union will be provided notice and an opportunity to bargain prior to the implementation of any future changes in compressed work schedules.
UNILATERAL SETTLEMENTS: 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 Employees Will Not Be Threatened with Retaliation for Filing Grievances and ULP Charges
The agency agreed to post a Notice To All Employees which affirms that supervisors will not threaten employees with discipline if they exercise their protected right to file grievances and unfair labor practice charges. Although the agency does not admit guilt, it does state the name of the supervisor involved in the case in the settlement accompanying the notice.
Agency Agrees to Reimburse Employees for Lost Overtime Compensation
A Settlement Agreement was signed by the Division Chief and posted on all bulletin boards where notices to employees are customarily posted for employees affected by the agency's action. The agency agreed that it will not change any established tour of duty in retaliation for grievances filed by bargaining unit employees. The agency further agreed to reimburse employees who lost overtime compensation due to the unlawful change in tour of duty.
Union Agrees to Include Non-Members in Vote Regarding Rotation Schedule
After issuance of a complaint and notice of hearing, the union agreed to a settlement agreement in resolution of allegations that non-members had been discriminated against in violation of 7116(b)(4) of the Statute. The union agreed that in the future, non-members of the union will be provided the same opportunity as dues paying members of the union to vote on the type of schedule the agency will use to determine work assignments. A Notice To All Members and Employees includes the union's understanding of its obligation to refrain from interfering with, restraining or coercing employees in the exercise of their right to form, join, or assist a labor organization, or to refrain from such activity, freely and without fear of reprisal.
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