GENERAL COUNSEL SWERDZEWSKI CONFIRMED FOR A SECOND FIVE-YEAR TERM

 

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Vol. Vol. 7 No. 3
June 1, 1998 - October 31, 1998

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

GENERAL COUNSEL
SWERDZEWSKI CONFIRMED FOR
A SECOND FIVE-YEAR TERM

NEWS TO KNOW

SWERDZWESKI CONFIRMED

The General Counsel of the FLRA, Joe Swerdzewski, was unanimously confirmed by the United States Senate to a second five-year term on October 21, 1998. Renominated by President Clinton in September 1998, Mr. Swerdzewski’s confirmation vote was one of the last official acts of the 105th Congress.

During his first term, Mr. Swerdzewski’s accomplishments include significantly improving the General Counsel’s ability to enforce the Statute through the development of new policies and approaches which greatly aided in the timely investigation and prosecution of violations of the Federal Service Labor Management Relations Statute. At the same time, he conducted numerous Town Meetings and issued public guidance on various issues which helped both labor and management to better understand their obligations under the law and suggested approaches 

to improve the way they dealt with each other. Additionally, Mr. Swerdzewski was at the forefront in the development of collaborative labor management relations under President Clinton’s Executive Order 12871. His second term will begin with the publication of the first ever Unfair Labor Practice Litigation Manual and the first comprehensive update of the Unfair Labor Practice investigatory regulations and case handling manual since the creation of the FLRA in 1979.

Mr. Swerdzewski stated, "I am honored to have again been nominated by President Clinton and to have been confirmed by the United States Senate. I will continue to work to improve the Federal sector labor management relations program and to provide the highest quality services to the Federal labor relations community."

The FLRA and the Federal labor relations community are fortunate to have the services of Mr. Swerdzewski.

CHAIR SEGAL DELIVERS "STATE OF THE FLRA" SPEECH

For the fourth consecutive year, FLRA Chair Phyllis N. Segal addressed the "State of the FLRA" at Employee Recognition Day held across the entire Agency on October 27, 1998.

Chair Segal outlined three areas of the FLRA’s accomplishments in Fiscal Year 1998: 1) operating as one Agency collectively stronger than the sum of its component parts; 2) enforcing the Statute fairly and effectively; and 3) helping Federal management and unions conduct constructive labor relations. She described these accomplishments as effectuating Congress’ purpose in establishing the "right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them."

The FLRA’s activities as one Agency in Fiscal Year 98 featured several important regulatory initiatives. Revised ULP litigation regulations were implemented and new Presidential and Executive Accountability Act regulations were issued. Chair Segal noted that both of these projects involved employees from the different components of the FLRA and included significant input from customers. Additionally, two other regulatory projects were initiated -- to revise the regulations governing negotiability appeals and ULP investigations. These and other FLRA actions were guided by an Agency-wide strategic plan built around four central goals.

In addressing the FLRA’s activities enforcing the Statute, Chair Segal highlighted the reinvented ULP litigation process. The new ULP litigation regulations encourage settlement at virtually every step of the ULP process, require parties to exchange information, and mandate a pre-hearing conference. Under the new ULP litigation process, parties are settling a greater percentage of cases and settling them earlier. In addition, disputes that are not settled are being narrowed so that the hearings and decisions are more sharply focused. One significant result is that the parties and the FLRA are saving many of the expenses related to litigation.

Chair Segal described how the Customer Survey, completed in FY 98 assessed the FLRA’s activities enforcing the Statute. Customers gave high marks to the quality of many of the FLRA’s services, including the clarity of decisions, the timeliness and the quality of processing representation petitions, the General Counsel’s guidance documents, and the often-visited web site. Additional affirmation of the quality of the Authority’s decisions came from the courts, which sustained challenged decisions in whole or in prominent part, in over three-fourths of appeals decided in FY 98. Commenting further on the Customer Survey, Chair Segal noted that in addition to reflecting favorably on many FLRA activities, there was clear dissatisfaction with the length of decision time, particularly for the Authority. She noted that in Fiscal Year 1998, the Panel and the Office of the Administrative Law Judges exceeded their respective goals to reduce the medium age of pending cases, and the Authority made significant progress in reducing the number of overage cases and increasing the number of merits decisions. Chair Segal described the FLRA’s plans to improve even further the timeliness of decisions in the current Fiscal Year.

The third area of activities highlighted by Chair Segal implements the FLRA’s commitment to help Federal management and unions resolve their own labor relations problems, and work together to improve their agency and the working conditions of employees. Citing the training and intervention activities by the FLRA’s Collaboration and Alternative Dispute Resolution Program (CADR), she heralded the contributions of this cross-component effort to labor relations.

Looking to the future, Chair Segal described Fiscal Year 99 as opening with an oral argument in the United States Supreme Court on the issue of midterm bargaining; and continuing with a second Supreme Court argument later in the year on whether a bargaining unit employee has a right to a union representative’s counsel when he or she is questioned by someone from the office of an inspector general.

Significant initiatives planned for this year include issuance of new Negotiability regulations and new ULP investigatory regulations; further expansion of the CADR Program; and the celebration of the 20th Anniversary Year of the FLRA (which begins in January 1999). Chair Segal saluted the FLRA staff as an example of what can go right when committed Federal servants work cooperatively and diligently to provide quality services to customers and carry out the mission that the FLRA was created to serve.

FLRA’s ULP Regulation Reinvention Team Nominated for Hammer Award

FLRA Chair Phyllis Segal announced that she has nominated the FLRA’s ULP Regulations Reinvention Team for Vice President’s Al Gore’s prestigious Hammer Award.

The ULP Reinvention Team revamped the process by which Unfair Labor Practices are litigated before the Authority. Building upon the successes of the Settlement Judge Program, initiated in June 1995, the revised process encourages settlement by the parties of the underlying dispute. In the event settlement is not possible, the reinvented process requires parties to sharpen exchange information about their cases and participate in a pre-hearing conference, in order to narrow and sharpen the issue in dispute.

The reinvented ULP process has already proven beneficial to the FLRA’s customers. The number of hearings has dropped, the percentage of cases successfully settled has risen, the number of settlements "on the courthouse steps" has decreased, and parties report that hearings are more streamlined, and focused, as a result of the information exchange and the pre-hearing conference.

These benefits translate into substantial cost savings for the parties and the FLRA. Parties are saved the costs associated with litigation -- time, travel, expenses. Streamlined hearings also save time and expenses for the parties through joint exhibits, agreements as to which witnesses are necessary, and agreements on the facts at issue.

Commenting on the Hammer nomination, Chair Segal noted, "I am proud to nominate the ULP Reinvention team for this important award. The team represents a cross-component of the FLRA staffs and accomplished its work with extensive coordination and consultation with our customers. Federal agencies, Federal unions and the employees they represent, have benefitted from the ULP Reinvention Team’s hard work."

FLRA Before Supreme Court on Mid-Term Bargaining

On November 9, 1998, oral argument was presented to the United States Supreme Court in the consolidated cases National Federation of Federal Employees v. United States Department of the Interior and Federal Labor Relations Authority v. United States Department of the Interior, Nos. 97-1184 and 97-1243. At issue was the extent of an agency’s obligation to bargain over union-initiated proposals during the term of a collective bargaining agreement. The Authority has held that an agency is obligated to bargain midterm over matters not contained in or covered by the term agreement. Further, in the case under review, U.S. 

Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475 (1996), rev’d 132 F.3d 157 (4th Cir. 1997), the Authority held alternatively that a proposal offered during term negotiations providing for midterm bargaining was negotiable. The Authority was represented before the High Court by its Solicitor, David Smith.

On November 2, 1998, the Supreme Court granted a writ of certiorari in National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General v. FLRA and AFGE, AFL-CIO, No. 98-369. The Court will review the Authority’s determination in National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, 50 FLRA 601 (1995), enforced, 120 F.3d 1208 (11th Cir. 1997), that the Agency committed an unfair labor practice by interfering with a bargaining unit employee’s requested union representation during an investigation by an agent of the Office of the Inspector General. At issue is whether such an agent is a "representative of the agency" within the meaning of 5 U.S.C. § 7114(a)(2)(B).

FLRA WILL CELEBRATE ITS TWENTIETH ANNIVERSARY IN 1999

The FLRA will celebrate its twentieth anniversary in 1999. Commemoration plans include two national conferences focusing on training the parties on recent FLRA regulatory initiatives, as well as showcasing the FLRA’s many initiatives including its Collaboration and Alternative Dispute Resolution Program (CADR).

Plans are not yet finalized at press time, but watch our web site at www.flra.gov for further information.

 

UPDATE ON CADR

The three components of the Federal Labor Relations Authority (FLRA) - the Authority, the Office of General Counsel, and the Federal Service Impasses Panel- established the cross-component Collaboration and Alternative Dispute Resolution Program (CADR) in 1995. Through this Program, the FLRA offers collaboration and alternative dispute resolution services in pending unfair labor practice, representation, negotiability and bargaining disputes. The Program provides FLRA partnership facilitation and training activities to assist labor and management in developing constructive approaches to conducting their relationship. In FY 98 the CADR Program reached a number of milestones. The Program received its 400th case for settlement. The number of cases increased by 75.5%, and the number of closures increased by 73%. The CADR Program successfully settled 86% of its referrals.

The following illustrate some of the alternative dispute resolution services delivered during the last four months of FY 98:

Intervening in Pending Disputes

Shaking Hands Conducted discussions of issues pending in 22 negotiability cases. These discussions resulted in the parties gaining a better understanding of the issues and interests surrounding the issues. In eleven of these cases, the parties reached formal written settlement agreements.

For example, in one case the parties were able to resolve several issues relating to the detail and reassignment of bargaining unit employees to meet critical mission related needs. In another case, the parties mutually resolved all issues relating to the implementation of new physical fitness requirements for employees engaged in firefighting activities for the agency.
  Shaking Hands

Resolved 648 disputes filed as ULP charges using collaboration and alternative dispute resolution processes and techniques.

For example, upon receipt of an unfair labor practice charge which included a request for a Temporary Restraining Order, the case was targeted for ADR services. A facilitated intervention session attended by key labor and management representatives, resulted in a resolution of the unfair labor practice charge.

Shaking Hands
Successfully provided mediation services to end protracted contract negotiations for a nationwide unit of approximately 45,000 employees. The parties had been negotiating a successor agreement to replace an expired contract. The "super mediation" session, which was the culmination of six years of contract negotiations, unfair labor practice charges and FSIP proceedings, resulted in the parties reaching agreement on all outstanding issues.

Shaking Hands
Provided training and facilitation services to assist parties in addressing disputes involving successorship, accretion and customer service issues created by reorganizations. These sessions are conducted with both labor and management representatives from all affected units. The sessions have resulted in the parties better understanding the representation case handling process, a narrowing of the issues, and agreeing on the number of petitions that will be filed to resolve the representation matters.

An example of these activities was the conducting of a pre-presentation petition filing meeting, as provided by Section 2422.13(a) of the Authority’s Rules and Regulations, with union and management representatives to explore the effects of a scheduled reorganization impacting several existing bargaining units. The parties agreed to address the successorship issues through the filing of joint representation petitions thereby narrowing the issues and reducing costs associated with the processing of numerous petitions.

Training

Shaking Hands
Provided statutory training coupled with an introduction to various CADR techniques for the Department of the Army, Army Reserve Personnel Command in St. Louis, Missouri. The training was designed to provide the parties with a better understanding of the Statute and to give them skills to resolve disputes on their own.

Shaking Hands
Presented at numerous labor-management conferences, including the 5th Annual Texas Labor-Management Partnership Conference, the EEOC Examining Conflicts in Employment Laws Conference, the Inter-Labor Relations Forum, AFGE National Human Rights and Fair Practices Conference, and the Federal Dispute Resolution Conference.

Facilitating Labor-Management Relationships

Shaking Hands
Delivered 113 facilitation, training and education sessions from June through September 1998. The sessions covered matters such as pre-decisional involvement and evaluation of partnership efforts.

Shaking Hands
Continued a nationwide effort assisting one agency’s national partnership council’s initiative to provide its local facilities with training and facilitation to assist in the development of effective local level partnerships. Approximately 14 sessions have been conducted since June 1998.

Shaking Hands
Delivered Relationship Building Training to other agency partnership councils to improve the operation and effectiveness of their council operations. Councils have reported more productive relationships as a result of this training.

 

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 U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center and American Federation of Government Employees, Local 2145, 54 FLRA 471 (1998), the Authority held that the Union may not represent certain individuals participating at the Agency in a rehabilitative work program, the Compensated Work Therapy (CWT) Program. The Authority explained that 38 U.S.C. § 1718(a), the statutory section governing CWT participation, states that CWT participants are not Federal employees for any purpose. Because the participants are not Federal employees, the Authority concluded that the Federal Service Labor-Management Relations Statute (the Statute) does not apply to them, and thus that the participants may not join a union under the Statute. In reaching this conclusion, the Authority rejected the Union's reliance on private sector precedent that states the circumstances under which individuals may be regarded as participants in rehabilitative programs, rather than as employees. The Authority did not find that precedent applicable in this case, because of the specific statutory statement that the participants are not employees. The Authority also rejected the Union's assertion of a First Amendment right to free association, noting that the Supreme Court has held that the First Amendment permits government workers to associate with each other, but does not require that the government recognize the association or bargain with it.

 

Unfair Labor Practice Cases

PenIn U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 54 FLRA 360 (1998) (Member Wasserman dissenting), the Authority affirmed its holding in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) that section 7106(b) of the Statute constitutes an exception to section 7106(a). In addition, the Authority determined that section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. The Authority noted that section 2(d) of the Executive Order "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over the 

subjects defined in the Statute." The Authority also noted that Section 3 of the Executive Order provides that the Order is not enforceable in judicial or administrative proceedings. The Authority stated that the fact that the nature of the direction in section 2(d) is mandatory does not render it a statutory election enforceable by the Authority and the courts in an unfair labor practice proceeding, and that such statutory enforcement is not necessary to render the Executive Order meaningful. 

 Pen

In Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, 54 FLRA 716 (1998), the Authority found that the respondent committed an unfair labor practice under section 7116(a)(1) and (8) of the Statute by holding a formal discussion with a bargaining unit employee, without affording the Union adequate notice and an opportunity to be represented. The Authority concluded that a mediation/investigation session, which was arranged by the respondent to discuss an employee’s formal Equal Employment Opportunity complaints, was a formal discussion of a grievance that the Union should have been permitted to attend. In reaching this conclusion, the Authority expressly overruled Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021 (1984), to the extent it implies that a facilitated discussion in general, or a mediated negotiation in particular, can never be "formal" under section 7114(a)(2)(A) of the Statute. The Authority explained that a union’s statutory right to notice and an opportunity to be present during a discussion is not diminished when the discussion between employees and agency representatives is conducted in a nonconfrontational manner through a neutral third party. The Authority further stated that it would continue to look at the totality of the circumstances in determining whether a discussion is formal.

In addition, the Authority determined that the respondent failed to establish that the presence of a Union representative at the mediation/investigation session would conflict with Equal Employment Opportunity Commission regulations such as 29 C.F.R. Part 1614, or the Federal Sector Complaints Processing Manual, EEO Management Directive 110. The Authority similarly determined that the presence of the Union representative at the session would not conflict with the confidentiality provision in the Alternative Dispute Resolution Act (5 U.S.C. § 574).

 

Negotiability Cases

Pen

In American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642 (1998), the Authority addressed the negotiability of four proposals that concerned the Agency’s use of two low-flying helicopters, and two pilots, to inspect high-voltage electric power lines for equipment deterioration and damage. The Agency, pursuant to a planned reorganization, determined that its mission would be better served by employing one long-range helicopter, operated by one pilot. Two of the Union’s proposals would have required the Agency to maintain the two low-flying helicopters at two specific locations, and two of the proposals would have required the Agency to retain both pilot positions. The Authority found that the "helicopter" proposals affected management’s right to determine the Agency’s organization under section 7106(a)(1) of the Statute, because they affected the Agency’s right to determine the geographic locations in which it would conduct its operations. The Authority also concluded, relying on it prior finding with respect to a similar proposal in another case, that the helicopter proposals concerned the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute, and therefore, were negotiable at the Agency’s election. With regard to the "pilot" proposals, the Authority determined that those proposals affected management’s right to assign work, within the meaning of section 7106(a) of the Statute, because they effectively required the Agency to assign its aviation work to two employees, rather than one. The Authority found that the pilot proposals concerned the numbers, types, and grades of employees, within the meaning of section 7106(b)(1) of the Statute, and therefore, that the pilot proposals were negotiable at the Agency’s election.

The Authority dismissed the Union’s petition for review with regard to all four proposals.

 

PenIn  National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 54 FLRA 521 (1998), the Authority addressed the negotiability of six proposals relating to the Agency’s use of contract employees to perform some of the Agency’s functions. The Authority dismissed the petition for review as to two of the proposals as moot. With respect to the remaining four proposals, the Authority followed the framework set forth in American Federation of Government Employees, HUD Council of Locals 222 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998), and found that the proposals were outside the duty to bargain. The Authority determined that the proposals affected management’s right under section 7106(a)(2)(B) of the Statute to make determinations regarding contracting out, and because the Union offered no arguments or authority to support its bare assertions, the Authority rejected the Union’s claim that the proposals were appropriate arrangements or negotiable procedures. Having resolved the Union’s claims regarding section 7106 (a) and 7106(b)(2) and (3), the Authority addressed the Union’s contention that the proposals were nonetheless electively negotiable under section 7106(b)(1). The Authority rejected the Union’s claim because, other than its bare assertion, the Union offered no basis for finding that the proposals concerned a matter within the subjects set forth in section 7106(b)(1). 

 

PenIn  Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjunct General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552 (1998), the Authority found within the duty to bargain a single proposal that involved the manner in which the Agency would fill vacant positions. The Authority found that the proposal concerned the conditions of employment of unit employees because it proscribed the conditions governing the filling of vacant unit positions. Because the proposal did not regulate the filling of military positions, the Authority found it to be consistent with 10 U.S.C. § 976(e), which would prohibit the Agency from negotiating on behalf of the United States with anyone representing, or purporting to represent, members of the armed forces concerning the conditions of military service. The Authority also found that the proposal did not affect management’s right to select under section 7106(a)(2)(C) of the Statute. In this regard, the Authority determined that the proposal permitted the Agency to determine the method by which it will fill a vacant position and allowed the Agency to solicit applicants from any appropriate source.

 

Arbitration Cases

PenIn  U.S. Department of Defense, Dependents Schools and Federal Education Association, 54 FLRA 514 (1998), the Authority held that an arbitrator may properly award attorney fees for the time spent litigating the entitlement to interest on backpay. In a prior award, the arbitrator concluded that the Agency’s failure to timely pay employees during the centralization of its pay system was an unjustified and unwarranted personnel action. Although the Agency had reimbursed employees for all of their improperly withheld pay by the time of the prior award, the Arbitrator concluded that the Agency’s violations required the payment of interest for the period of delay, and the Arbitrator awarded interest. In the subsequent award under review, the Arbitrator awarded the Union attorney fees incurred in litigating the prior award of interest. On review of the Agency’s exceptions to the award of attorney fees, the Authority determined that the arbitrator’s prior award of interest met the Back Pay Act requirements for an award of backpay. Although the underlying correction of the improper personnel action was accomplished prior to the first award, the Authority determined that the first award established that the Agency had committed an unwarranted personnel action and that employees were entitled to all remedies available under the Back Pay Act, including interest. The Authority rejected the Agency’s argument that an arbitral award granting only interest may not support an award of attorney fees because interest does not constitute "pay, allowances, or differentials" within the meaning of the Back Pay Act. The Authority concluded that interest is an inseparable element of any payment of withdrawn or reduced pay under the Back Pay Act. In addition, the Authority determined that neither Authority precedent nor the Back Pay Act requires that a backpay award be in the same proceeding as the proceeding that determines entitlement to attorney fees.

 

PenIn U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA No. 106 (1998), the Authority denied exceptions to an arbitration award that sustained, in part, a grievance alleging that the Agency’s regional offices violated the collective bargaining agreement by failing to offer public transit subsidies. The Arbitrator found that the regional offices violated the collective bargaining agreement because certain components did not take reasonable actions to identify and allocate excess funds and did not provide sufficient documentation to support the claim that funds were not available. To remedy the violation, the award directed the Agency to make bargaining unit employees who were eligible for the transit subsidies whole for the monies they lost.

The Authority found that the Federal Employees Clean Air Incentives Act, 5 U.S.C. § 7905, grants agencies the discretion to establish a transit-subsidy program. The Authority then discussed the test for determining if an award satisfies the requirements of the Back Pay Act. The Authority clarified that the "but for" requirement, previously referred to as the third part of a three-part test, is not a separate, independent element of the Back Pay Act; rather, this requirement amplifies the statutory language of the Back Pay Act that backpay is authorized only if an unjustified or unwarranted personnel action "has resulted in" the withdrawal or reduction of an employee’s pay, allowances, or differentials. 5 U.S.C. § 5596(b)(1). The Authority emphasized that an arbitrator’s "but for" finding must be supported by the arbitrator’s factual findings. The Authority found that: (1) employees were affected by an unjustified or unwarranted personnel action; (2) the contractual violation found by the Arbitrator resulted in the loss of transit subsidies; and (3) transit subsidies constituted pay, allowances or differentials. As the award satisfied the requirements of the Back Pay Act, the Authority denied the exceptions.

 

COURT CASES

   

ScaleFederal Deposit Insurance Corporation v. FLRA, No. 98-1221 (D.C. Cir. August 3, 1998), seeking review of 53 FLRA 1469 (1998). The D.C. Circuit dismissed for lack of jurisdiction the Agency’s petition for review of an Authority decision on exceptions to an arbitrator’s award. The Authority had modified an arbitrator’s award, which denied in part and sustained in part, a grievance alleging that the agency had violated the Fair Labor Standards Act. The Authority found that the award should have included the payment of liquidated damages and that it had disregarded the appropriate statute of limitations. The Court agreed with the Authority that the Court could not review the decision under 5 U.S.C. § 7123(a), and that the Supreme Court’s ruling in Leedom v. Kyne did not apply.

 

ScaleDavid F. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998), seeking review of 52 FLRA 1390 (1997). The D.C. Circuit denied an individual’s petition for review of an Authority decision dismissing an Unfair Labor Practice complaint alleging that he had been terminated in retaliation for exercising rights protected by the Statute. Agreeing with the Authority, the Court held that Power’s termination resulted not from anti-union animus but from his insubordinate conduct. The Court also found that Power’s claim of impermissible bias on the part of an Authority member was both meritless and precluded under section 7123(c).

 

ScaleUnited States Department of Transportation, Federal Aviation Administration v. FLRA, 145 F.3d 1425 (D.C. Cir. 1998), seeking review of 53 FLRA 139 (1997). The D.C. Circuit granted the Agency’s petition for review, denied the Authority’s application for enforcement, and remanded the case to the Authority for further proceedings. The Authority had found negotiable a proposal that Air Traffic Assistants be eligible for "familiarization" flights on commercial airlines. The Authority stated that the Agency’s "bare assertion that the proposal conflicts with a Government-wide regulation . . . did not establish that the proposal is outside the obligation to bargain." The Authority found that, by failing to offer specific arguments and regulations, the Agency did not carry its burden of creating a record upon which the Authority could make a negotiability determination. The court held that the Authority should have addressed the substance of the Agency’s objection because the Agency’s "position and authority are easily understood." The court also noted that if the Authority found the Agency’s submission "too oblique," it could have requested additional briefing or held a hearing to amplify the Agency’s argument. 

 

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.

Layout of Renovated Office Space

þSocial Security Administration, Region III, Philadelphia, Pennsylvania and Local 2006, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 79 (June 26, 1998), Panel Release No. 410 (Decision and Order). The case concerned negotiations over the relocation and renovation of office space for three organizational components. The Panel determined that the parties should meet informally with Panel Member Stanley M. Fisher in an attempt to resolve the dispute voluntarily. When the parties were unable to resolve the matter despite some movement during the informal conference, Member Fisher presented their final offers and written statements to the Panel, along with his recommendations for resolution. After considering the record, the Panel issued a Decision and Order adopting a modified version of the Employer’s final offer, consisting of the Employer’s proposed floor plan, a memorandum of understanding addressing tests of the heating, ventilation, and air-conditioning system (HVAC) with the Union’s participation, and compromise wording to maintain existing fire lanes consistent with the Employer’s determination that its internal security needs are met. On the whole, the Panel concluded that the Employer’s final offer, as modified, balanced employees’ well-being with management’s concern for security, and would cause the least amount of disruption to the Agency’s operations.

Wages and Leave Benefits

þNational Aeronautics and Space Administration, NASA Exchange-Johnson Space Center, Houston, Texas and Local 251, Hotel Employees International Union, AFL-CIO, Case No. 98 FSIP 65 (June 30, 1998), Panel Release No. 410 (Decision and Order). The impasse initially involved five articles arising from negotiations over a successor collective bargaining agreement. The Panel determined that the parties should first submit written statements of position, including documentary evidence, which would be followed by an informal conference with a representative from the Panel’s Staff. During the informal conference, all but two issues were voluntarily settled. The representative subsequently reported to the Panel on the parties’ written statements, final offers, and her recommendations for how the dispute should be resolved. Thereafter, the Panel ordered the adoption of: (1) the Employer’s proposal on wage rates and (2) the maintenance of the status quo on the earning of annual and sick leave benefits. Concerning wages, the Panel found the Employer’s across-the-board pay increase to be fair and consistent with wages paid in the local area and comparable to prevailing rate employees. With regard to annual and sick leave benefits, however, the Panel concluded that neither party demonstrated a need to change the status quo as contained in the parties’ collective bargaining agreement; the leave benefits in the agreement were already comparable, if not better, than those afforded to other employees working similar jobs in the local area.

Meal Surcharges for Civilian Firefighters

þDepartment of the Air Force, Headquarters, 89th Airlift Wing, Andrews Air Force Base, Maryland and Local 1615, National Federation of Federal Employees, Case No. 98 FSIP 113 (August 10, 1998), Panel Release No. 411 (Decision and Order). The Panel directed the parties to participate in an informal conference with a representative from the Panel’s Staff to assist them in resolving a dispute over whether civilian firefighters should be required to pay a surcharge on meals served at the Employer’s dining facilities. When the parties failed to resolve the issue during the informal conference, the Panel considered their final offers and the representative’s recommendations for resolving the impasse. After considering the full record, the Panel ordered the adoption of the Employer’s proposal to impose the 33-percent meal surcharge on civilian firefighters. In reaching this resolution, the Panel was persuaded that the financial impact of the surcharge on the firefighters was relatively minor as the Employer continues to subsidize meals served at the base. In addition, most other base employees currently pay the surcharge.

Outside Employment and Official Time

þDepartment of the Air Force, Peterson Air Force Base, Colorado and Local 1867, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 72 (September 4, 1998), Panel Release No. 412 (Opinion and Decision). The Panel determined that the parties should submit 7 of 14 articles (as selected by the parties) in a dispute stemming from successor collective bargaining agreement negotiations to Panel Member Mary E. Jacksteit for mediation-arbitration. The Panel granted her the authority to (1) mediate with respect to the outstanding issues and (2) issue a binding decision on any that remained unresolved on a final-offer selection, article-by-article basis insofar as the proposals were otherwise legal. Following the outcome of Member Jacksteit’s mediation-arbitration efforts, the parties were to revisit the other seven articles and, if they remained unresolved, submit them to private mediation-arbitration. Following the mediation portion of the procedure, the parties remained at an impasse over only two issues: outside employment and official time. Member Jacksteit conducted an arbitration hearing and ordered the parties to adopt the Union’s proposals on both subjects. Concerning whether employees should be required to report outside employment, the Arbitrator found no information or evidence of problems arising from outside employment that would demonstrate a need to change the status quo. In her view, the Union’s official time proposal, which included 60-percent official time for one primary Union representative, provided sufficient safeguards to meet the Employer’s accountability and operational concerns while encouraging mutual efforts to address any problems that may arise.

Work Unit Composition

þDepartment of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and Chapters 22 and 71, National Treasury Employees Union, Case No. 98 FSIP 127 (September 25, 1998), Panel Release No. 413 (Decision and Order). When the parties could not agree on aspects of a move of Automated Collection System employees from a downtown location to the Philadelphia Service Center, the Panel determined that the parties should participate in an informal conference with a Panel representative. As the parties were unable to resolve their dispute during the procedure, the Panel considered their final offers and the recommendation of its representative for resolving the dispute. Thereafter, the Panel determined that the parties should adopt the Employer’s proposal essentially to "integrate" bargaining-unit employees into work groups that include employees from both work sites as soon as the move occurs. The Panel was persuaded that mixing employees with different skills would provide significant informal learning opportunities, yet maintain stability since, in most cases, half of employees in each new work unit would have worked together in their previous work group. It also concluded that affected employees would benefit by retaining their alternative work schedules and seniority standing to the extent possible.

Tours of Duty

þDepartment of the Treasury, U.S. Customs Service, Miami, Florida and National Treasury Employees Union, Case No. 98 FSIP 92 (September 28, 1998), Panel Release No. 413 (Decision and Order). This case concerned negotiations over tours of duty at the Miami International Airport (MIA). The Panel directed the parties to participate in an informal conference with Panel Member Edward F. Hartfield. When the parties remained deadlocked over starting times for shifts, Member Hartfield presented their final offers to the Panel, along with his recommendations for settling the dispute. Shortly thereafter, the Panel issued a Decision and Order adopting a modified version of the Employer’s proposal that included the addition of morning shifts beginning at 4 and 5 a.m., and a procedure allowing employees to request that they be exempted from working the new shifts on the basis of personal hardship. In the Panel’s view, the Employer demonstrated a need for the new tours of duty because of the regularity and volume of early morning flights to MIA and the need to redirect overtime funds to other enforcement activities. The Panel also found such shift schedules were comparable to those of other Federal agencies and private contractors operating at MIA. The two modifications clarified that: (1) the new shift schedules would be in effect 7 days a week including holidays and (2) the Port Director, in rendering decisions on hardship exemption requests, should carefully consider the President’s Memorandum to Executive Departments and Agencies regarding "Expanding Family-Friendly Work Arrangements in the Executive Branch."

 

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:

þ In Department of the Air Force, Minot Air Force Base, Minot AFB, North Dakota and Local 4046, AFGE, AFL-CIO, Case No. 98 FSIP 140 (closed August 28, 1998), the parties jointly filed a request for assistance under the Statute arising from negotiations over alternative work schedules for employees in one of the Employer’s divisions. Panel Member Stanley M. Fisher assisted the parties in resolving the dispute during a telephone conference held as a preliminary step in preparation for an informal conference. In Department of the Treasury, U.S. Customs Service, Jamaica, New York and Chapter 153, NTEU, Case No. 98 FSIP 124 (closed September 4, 1998), the parties’ disagreed over changes to a previously negotiated local inspectional assignment policy involving tours of duty for Customs Inspectors, selection procedures for various tours, and staffing levels. During an informal conference with Panel Chair Betty Bolden lasting 2 days, they were able to reach a voluntary settlement on all the disputed items. In Federal Deposit Insurance Corporation, Divisions of Supervision and Compliance and Consumer Affairs, Washington, DC and NTEU, Case No. 98 FSIP 123 and Federal Deposit Insurance Corporation, Headquarters, Washington, DC and NTEU, Case No. 98 FSIP 130 (closed September 14, 1998), the parties reached impasse over numerous issues in negotiations over successor master labor agreements. When they could not agree to adopt recommendations for settlement made by a private factfinder they had selected, separate requests for Panel assistance in the two cases were filed by the Union and the Employer, respectively. The Panel consolidated the cases and directed that Panel Member Bonnie Prouty Castrey conduct an informal conference with the parties to resolve the issues at impasse, among them, Union access to Employer space, reassignments, hours of work, and flexiplace. With her mediation assistance over a 2-day period, the parties were able to reach voluntary agreements on all the issues.

 

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.

UNION’S REMOVAL OF BARGAINING UNIT EMPLOYEE FROM PARTNERSHIP COUNCIL AFTER THE FILING OF UNFAIR LABOR PRACTICE CHARGE

Employee Right to File a Charge

The General Counsel first concluded that filing the charge was protected activity, even though the charge was filed against the Agency and not against the Union. The filing of unfair labor practice charges is a protected right of employees under section 7102 of the Statute and to retaliate against an employee for filing a charge is inconsistent with section 7102 of the Statute and is therefore beyond the legitimate interest of a union to regulate its internal affairs.

Union Right to Choose Its Representatives

The General Counsel also noted, however, that a union has the right to choose its own representatives, using whatever criteria it deems in its best interest, as long as it is consistent with the Statute. Thus, the removal of a union representative because the representative filed or assisted in the filing of a charge against the union would not be a lawful criteria. However, a union may choose to select or remove its representatives based on criteria which it determines in its own wisdom is appropriate, such as the ability to communicate and function in a cooperative environment with management. The General Counsel then found that the member was serving as a Union representative while sitting on the partnership council and not through the assignment of work. The partnership agreement provided for selections by the Union, the member was selected and later removed by the Union and there is no claim or evidence that the Agency evaluated the member’s performance on the partnership council.

Letterkenny Analysis

Consistent with Authority precedent involving alleged improper conduct by a Union, the General Counsel applied the framework in Letterkenny Army Depot, 35 FLRA No. 15, 35 FLRA 113 (1990), which set forth the analytical framework for determining if an action was taken for an improper motivation under the Statute. The General Counsel found that based on the references to the charge in the e-mails discussing the member’s removal from the partnership council, the filing of the charge was a motivating factor in the member’s removal from the partnership council.

However, based on the totality of the facts and circumstances, the General Counsel further concluded that the Union established an affirmative defense that there was a legitimate justification for its action. Although the filing of the charge is still protected activity whether filed against a union or an agency, the content of the charge is relevant in determining whether the filing itself was the reason for the removal of the member from the partnership council. The Union did not specifically state that the removal was because a charge had been filed. Rather, the Union stated that the dispute evidenced by the charge between the member and the Agency would have a "chilling effect on the quote-unquote spirit of partnership." The General Counsel concluded that the evidence supports this legitimate reason. The Union concluded that the dispute raised in the charge would render the member ineffective and impede the partnership process. Indeed, the Union wrote that it respected the member’s decision to pursue his issues as he sees fit, did not alter the member’s union membership status, and allowed the member to remain as a union representative on a work group since the Union concluded that the member could work effectively with the particular management representative on that work group. However, the Union also concluded that the member’s continued membership on the partnership council would have a chilling effect on the "spirit of partnership." The charge concerned a matter that the Union had negotiated and that the partnership council itself was involved in monitoring. The member was seeking an inordinate amount of monetary damages. A Union determination that under these circumstances the member would not be an effective representative and his continued presence on the partnership council would impede the partnership council’s progress was found to be a legitimate reason for removing the member from the council. Accordingly, absent withdrawal, the Region was advised to dismiss the charge.

THE RELATIONSHIP BETWEEN THE COVERED BY DOCTRINE, THE CONTRACT INTERPRETATION DOCTRINE AND "NEGATIVE ZIPPER CLAUSES"

Another case submitted for case handling concerned whether a contract clause in a master collective bargaining agreement limits the application of the "covered by" doctrine. The clause at issue provides:

Recognizing that the Master Agreement cannot cover all aspects or provide definitive language on each subject addressed, it is understood that mid-term agreements at all levels may include substantive bargaining on all subjects covered in the Master Agreement, so long as they do not conflict, interfere with, or impair implementation of the Master Agreement. However, matters that are excluded from mid-term bargaining will be identified within each Article.

As appropriate, the Union may initiate mid-term bargaining at all levels on matters affecting the working conditions of bargaining unit employees.

The General Counsel set forth the following decisional analysis to address situations where there is a duty to bargain over a change in a condition of employment and the the parties disagree over whether the contract covers the matter or reserves the right to bargain over the matter.

Whether There Was a Unilateral Change over Which There Was a Bargaining Obligation That Was Not Fulfilled, Absent a "Covered By" Defense?

Consistent with the OGC Guidance on "The Impact of Collective Bargaining Agreements on the Duty to Bargain and the Exercise of Other Statutory Rights" (March 5, 1997), the Regions were advised to first determine whether the evidence establishes a change in a condition of employment over which there would be duty to bargain prior to implementation if there had been no contract in existence.

If So, Whether the Matter in Dispute Would Be Covered by the Contract, Absent a "Negative Zipper Clause?"

If there would have been a duty to bargain, the Regions were then advised to determine if the matter at issue was "covered by" the contract, as that doctrine has been developed by the Authority since issuance of U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96, 47 FLRA 1004 (1993) and interpreted by the OGC in the OGC Guidance.

If the "Covered By" Defense Would Be Available, Whether the Activity, in Agreeing to Article 44, Placed Limitations on its Statutory Right Not to Bargain Mid-contract over Matters That Are Covered by the Contract?

The Regions were then advised to decide if a contract article placed limitations on its statutory right not to bargain Mid-contract over matters. The General Counsel reasoned that the "covered by" doctrine constitutes the Authority‘s interpretation of the statutory requirements triggering the duty to bargain during the life of an agreement. Absent a contractual limitation on the application of the covered by doctrine, the matter in dispute in this case would have been "covered by" the contract and there would have been statutory duty to bargain over the change at issue. The parties at the level of exclusive recognition, however, have negotiated a clause which addresses the application of the "covered by" doctrine. The Authority has held that parties may place contractual limitations on their statutory rights. Internal Revenue Service, Washington, D.C., 47 FLRA No. 193, 47 FLRA 1091 (1993) (IRS). Contractual conditions on the application of the "covered by" doctrine constitute such limitations. The OGC has referred to contract clauses which limit or condition the "covered by" doctrine as "negative zipper clauses." When parties negotiate limitations or conditions on the exercise of their statutory rights, the Authority has held that the "contract interpretation" test enunciated in IRS applies. Thus the Authority, and the Regional Directors when deciding whether to issue unfair labor practice complaints on behalf of the General Counsel, interpret the meaning of those collective bargaining clauses using the same standards and principles applied by arbitrators in interpreting contracts in both the Federal and private sectors and by the Federal courts under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Authority in IRS emphasized that the meaning of the agreement must ultimately depend on the intent of the contracting parties. The parties’ intent must be given controlling weight whether that intent is established by the language of the clause itself, by inferences drawn from the contract as a whole, or by extrinsic evidence. Thus, the Regions should investigate bargaining history and past practices and be guided by the traditional standards for interpreting contract language.

The parties at the Activity level involved in this case have provided no information regarding the bargaining history or application of the clause at issue. Thus, the interpretation of the clause rests on its plain language of Article 44. The General Counsel explored three options:

                    Options 1. The Clause Limits Application of the Covered by Doctrine.

The first option is to find that clause limits application of the "covered by" doctrine when the agency implements a change in existing working conditions. The clause refers to the "covered by" doctrine in the context of mid-term bargaining and contains the express understanding that the contract cannot "cover" all aspects of each subject addressed in the agreement. The clause plainly authorizes "bargaining on all subjects covered in the Master Agreement" and nothing in the contract otherwise restricts bargaining over the particular change at issue. Thus, the clause preserves the Union’s right to bargain over the change at issue. To read the clause as not limiting "covered by" would render the parties’ language meaningless and would nullify the purpose of the clause. Accordingly, under this option, the Agency could not rely on the "covered by" doctrine to preclude bargaining over management initiated midterm changes in working conditions.

Option 2. Midterm Modification of Contract

The change at issue imposes additional requirements not contained in the contract. These new requirements represent a modification to the contract. A party to an existing CBA cannot make midterm alterations or modifications to the agreement without the consent of the other party. By placing additional procedures and additional requirements beyond what the contracts specify, the Agency has unilaterally modified the contract in violation of section 7116(a)(1) and (5) of the Statute.

Option 3. Dismiss Based on "Covered By" Doctrine

It is just as plausible, however, to read the contract clause as allowing the Agency to rely on "covered by" when it makes a change in working conditions as it is to read the article as limiting the application of the "covered by" doctrine. The express language of clause is "may" -- not "shall". Thus, it could be argued that if the Agency wants to enter into bargaining it can, but nothing in the clause requires bargaining. To the extent the Agency declines to enter into bargaining under the permissive terms of the clause, this raises a contract right and not a statutory right. Therefore, any dispute over the clause involves grievance matters, not an unfair labor practice. Further, it could be argued that the clause refers to the negotiation of local supplements as opposed to bargaining over management-initiated changes in working conditions. In this regard, the preceding article in the contract authorizes the parties at the local level to negotiate a local supplement and includes the same language as the clause at issue. Looking at the contract as a whole, it could be argued that the contract clearly did not contemplate endless bargaining over matters already set forth in the contract. This would be contrary to the policy behind the "covered by" doctrine and voids the repose and stability that a bargaining agreement negotiated under the Statute is intended to provide. In addition, the contract has a reopener clause that requires "mutual consent" to "add to, amend, or modify" the contract. To read the clause as requiring bargaining whenever management makes a change in working conditions which matter is "covered by" the contract would vitiate the reopener clause. Under this argument, the "covered by "defense would prevail.

Issue Should be Placed Before the Authority

The General Counsel found the clause at issue to be ambiguous. Moreover, neither of the parties have provided any information to assist in interpreting the article nor is there any revealing bargaining history. Thus, it is uncertain as to the exact relationship between the clause and the "covered by" doctrine. Nonetheless, IRS allows the unfair labor practice procedure to be used to provide an interpretation of contract language when necessary to resolve a statutory right issue. This situation raises the statutory right to bargain over changes and the right not to have to baring over matters covered by a contract. This national agreement will be in effect for three years and the bargaining unit is nationwide. Thus, resolution of whether "covered by" applies to the parties’ was deemed a vital issue with long-standing and nationwide consequences. Under these particular circumstances, absent a resolution by the parties at the national level, the General Counsel concluded that complaint should issue to obtain a definite answer. Accordingly, the Region was advised to contend that the clause preserves the Union’s right to bargain over management-initiated changes in working conditions and that therefore, the unilateral change was in violation of section 7116(a)(1) and (5) of the Statute. In addition to a traditional cease and desist order and a remedial posting, the Region also was advised to seek a status quo ante remedy. In the alternative, consistent with the OGC Guidance discussing possible exceptions to the "covered by" doctrine, the Region was advised that any complaint which issues should also allege that the addition of new requirements not contained in the contract constituted midterm modifications without the Union’s consent, in violation of section 7116(a)(1) and (5) of the Statute.

 

GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS ON THE SCOPE OF BARGAINING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

Regional Directors are frequently required to make decisions on the negotiability of union proposals in situations where management is seeking to make a change in a condition of employment. The General Counsel issued a Guidance Memorandum to assist the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges where negotiability is an issue. The Memorandum is also intended to assist parties in improving their labor-management relationship by avoiding litigation and facilitating bargaining.

Part I discusses how proper use of a pre-decisional involvement process and interest-based problem-solving techniques limits dramatically negotiability disputes. Part II describes the differences between the duty to bargain and the scope or bargaining and explains: when there is a duty to bargain; what constitutes good faith bargaining; and what the concept of negotiability means. Part III presents approaches which allow the parties to improve the effectiveness of bargaining within the current statutory scope of bargaining. In particular, this Part explains the concept of "appropriate arrangements" and suggests a protocol for parties to follow to develop meaningful and negotiable appropriate arrangement proposals. Part IV suggests some techniques to avoid negotiability disputes and not disrupt the collective bargaining process by filing unfair labor practice charges in unilateral change situations. The Guidance also contains both an Executive Summary and a Summary of the Scope of Bargaining with appropriate case citations. Copies of this Guidance Memorandum may be downloaded from the FLRA’s Web Site at: www.flra.gov.

 

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.

 VOLUNTARY SETTLEMENT AGREEMENTS

Agency Posts Notice Agreeing Not to Make Statements Which Imply Union Members or Officials Will Receive Better Performance Appraisals if They Used Less Official Time

In a post-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees on all official bulletin boards and all boards where notices are typically posted, that the Agency will not make statements to Union Officials that their performance appraisals, or other employees’ appraisals, would be better if they did not spend so much time away from work on official time. The Agency also agreed to re-evaluate the appraisal of one employee.

Agency Agrees to Post Notice and to Reimburse Union for Amount Owed That Should Have Been Deducted Under Automatic Dues Deduction System and to Modify System for Removing Employees from Automatic Dues Deduction System

After issuance of complaint and notice of hearing, the parties agreed that the Agency would pay the Union $66.00 in lost dues for three employees improperly removed from the dues deduction system. The Agency also agreed to establish a system for processing automatic dues deduction in accordance with the parties’ collective bargaining agreement.

Agency Posts Notice Agreeing Not to Distribute Workload of Departing Employee Prior to Negotiating Over the Redistribution With the Union

In a pre-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees stating that the Agency will not make arrangements for the distribution of workload when an employee leaves without first notifying the Union and negotiating over the appropriate arrangements for adversely affected employees and the procedures for implementing the distribution of the workload.

Agency Agrees to Comply With a 1997 Arbitration Award Reinstating an Employee and Making Him Whole

In a pre-complaint settlement agreement, the parties agreed that the Agency will comply with a 1997 arbitration award and reinstate an employee to his previous position or an administrative position, at his option. The Agency also agreed to make the employee whole from the date he commenced LWOP status until the date of his reinstatement to service.

Union Agrees to Reimburse Employees for Union Dues Deducted After They had Elected to be Removed from the Automatic Deduction System

In two pre-complaint settlement agreements, the Union agreed to reimburse two employees for Union dues that were withheld from their paychecks improperly. The Union will also request that the Agency immediately process the employees’ SF 1188, Cancellation of Payroll Deductions for Labor Organization Dues.

Agency Agrees to Pay Nine Employees in Order to Settle an Unfair Labor Practice Charge Brought by the Union

In a post-complaint settlement agreement, the Agency and the Union agreed that the Agency would pay eight employees the sum of $1,675 and one employee the sum of $1,175 for lost overtime in settlement of two unfair labor practice charges alleging unilateral changes in tours of duty.

Agency Agrees to Post Notice at Two Separate Facilities Stating that Agency Official Will Refrain From Making Disparaging Comments About the Union and Support the Use of the Negotiated Grievance Procedure

In a post-complaint settlement agreement, the Agency and the Union agreed that the Agency would post notices in two of the Agency’s facilities stating that a particular Agency official apologizes for making disparaging remarks in reference to the Union. The notice also states that the official recognizes and fully supports the negotiated grievance procedure including the right of employees to file a formal grievance.

Agency Agrees to Negotiate Impact and Implementation of Changes in Working Conditions Prior to Making Them in the Future and to Make Whole Employees Who Were Negatively Affected by the Earlier Wrongful Change in Working Conditions

In a pre-complaint settlement agreement, the Agency and the Union agreed that the Agency had the right to change the schedules and working hours of housekeeping employees. They also agreed that the Agency did not have the right to make such changes without first negotiating appropriate arrangements and procedures. The Agency agreed to make whole affected bargaining unit employees for any salary differential or other compensation lost during the period that non-negotiated schedule changes remained in effect. As part of the settlement, the parties also agreed upon a plan of action to engage in the required negotiations.

 

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 Notify Union, In Advance, of All Formal Discussions so that Union can be Present as is Required by the Statute

Prior to the issuance of a complaint, the Agency agreed to post notices stating that certain meetings held by an Agency official in which employees were briefed about anticipated downsizings and a possible RIF were formal discussions and that the Union was entitled to notice and an opportunity to be present at those meetings. The Agency also agreed to give notice and an opportunity for the Union to be present in the future when any formal discussions are scheduled with unit employees.

Agency Agrees to Maintain Status Quo and Not Implement New Ranking Process for Ranking GS-13 and GS-14 Employees Pending Completion of Negotiations Over the Matter

In a pre-complaint settlement agreement, the Agency agreed it will not use the Behavioral Inventory (BI) System for the filling of Financial Management Career Program bargaining unit positions within the unit pending the completion of negotiations over the matter. The Agency agreed that, although it had sent out BI materials to new registrants, the Agency would not use them.

Agency Agrees to Inform Three Employees of Their Right to Choose the Union as Their Representative at EEO Hearings.

In a pre-complaint settlement agreement, the Agency agreed to rescind an earlier e-mail sent by an Agency official to three employees stati