CAROL WALLER POPE SWORN IN AS AUTHORITY MEMBER

 

Vol. 9 No. 3
June 1, 2000 - September 30, 2000

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

CAROL WALLER POPE SWORN IN AS AUTHORITY MEMBER

NEWS TO KNOW

Carol Waller Pope has been sworn in to become an FLRA Authority Member, filling the vacancy that has existed on the three Member agency adjudicative body. Ms. Pope, a career Federal employee, had been the Assistant General Counsel for Appeals for the FLRA Office of the General Counsel. Prior to that, Ms. Pope served as Executive Assistant to the General Counsel, and before that as an Attorney in the Boston Regional Office, where she began her employment with the FLRA in 1980. Before joining the FLRA, Ms. Pope was employed as an Attorney with the U.S. Department ofLabor, Office of the Solicitor, Employee Benefits Division, Washington, D.C. Ms. Pope has a B.A. degree from Simmons College and a J.D. degree from Northeastern University School of Law in Boston, Massachusetts.

FLRA DEBUTS NEW AND IMPROVED WEB SITE

The FLRA has recently remodeled its web site at: "www.flra.gov."www.flra.gov. The FLRA web site, which has been in existence since 1997, provides the public with easy access to important information. The web site was remodeled to provide additional information about the FLRA, and to make it more user-friendly and appealing to the public.

Here is a partial list of some of the enhancements to the web site:

  • A new, simplified display for the home page contains a series of organized clickable menu bars which enable the user to have quick access to information on a variety of topics;
     
  • Considerable new and useful information about the processes of the FLRA's three components - the Authority, the Office of the General Counsel (OGC), and the Federal Service Impasses Panel (FSIP) - with hypertext link between the new documents for ease of access to the information;
     
  • A map of the United States with geographic jurisdictions of the seven Regions color-coded so that a mere click takes the user to a Regional Office page;
     
  • A listing of pertinent phone numbers and e-mail addresses (hyperlinked) for, among other things, Office of Case Control, Regional Office and OGC Headquarters employees;
     
  • Easy access to the FLRA search engine and thousands of additional pages of FLRA decisions issued prior to April 1, 1991; and
     
  • Summaries of FLRA Court Opinions with links to full text, in addition to FLRA and FSIP decisions.

The public is encouraged to visit the FLRA web site to see its new design and the additional information added. For answers to questions or comments about the web site, send the webmaster an e-mail (click on the webmaster link on the home page) or contact Richard Zorn at 202-482-6680 x210.

FLRA WEB SITE PROVIDES THE ABILITY TO FILL OUT ULP AND REPRESENTATION CASE FORMS

The new FLRA web site permits the electronic completion and printing of unfair labor practice and representation case forms. These forms are found in the Office of the General Counsel portion of the site, under "forms" on the pull down menu. Currently, web site prepared forms cannot be electronically saved, nor filed electronically

NEW GUIDE TO FEDERAL LAB0R-MANAGEMENT RELATIONS PROGRAM PUBLISHED

The FLRA is publishing a new edition of the Guide to the Federal Service Labor-Management Relations Statute. The new Guide, which will be available in early 2001, describes the statutory programs and procedures of the FLRA, including the new regulatory and alternative dispute resolution procedures that have come into existence since the Guide was last printed in 1994. Information on how Federal agencies can obtain a supply of the new Guide by riding the Government Printing Office requisition can be found on the last page of the Bulletin.

FLRA COMPONENTS TO CONDUCT JOINT TRAINING ON OCCASION OF FSIP 30TH ANNIVERSARY

On December 11, the three components of the FLRA - the Authority, the Office of the General Counsel, and the Federal Service Impasses Panel (FSIP) - will conduct a joint training session, providing an overview of the FLRA structure and programs. Among the topics to be discussed are the different missions of the components and how they coordinate their efforts when parties file cases in all three components arising from the same bargaining context.

Following this joint training session, there will be a panel discussion involving current and former Members of the FSIP to commemorate its 30th anniversary of resolving Federal sector impasses. Topics to be discussed during this portion of the training concern the origins and history of the FSIP, the evolution of the FSIP impasse resolution procedures, and some of the more important cases that have been decided throughout the years.

The overview of the FLRA structure and programs will be from 1 to 3 p.m., and the panel discussion will be from 3:15 to 5 p.m. The training program will be held at the Department of Labor Auditorium, 200 Constitution Avenue, NW., Washington, D.C. For more information contact Cynthia Butler or KaChina Payne at (202) 482-6670.

FLRA ATLANTA REGIONAL DIRECTOR BRENDA ROBINSON PASSES AWAY

On October 28, 2000, Brenda Robinson, the FLRA's Atlanta Regional Director, passed away. Ms. Robinson came from the National Labor Relations Board to the FLRA to be Regional Attorney in the Chicago Regional Office just six months after the January 1979 creation of the agency. One year later, she came into the FLRA Headquarters to hold the position of Chief Counsel to the Authority Members, a position she held until January of 1981, when Ms. Robinson became the Atlanta Regional Director.

On the occasion of her retirement, in September FLRA Chairman Donald Wasserman and General Counsel Joseph Swerdzewski recognized Ms. Robinson's contribution to the FLRA with a Meritorious Service Award, the second highest form of recognition within the FLRA. The award noted her work in the development of new policies and procedures in the unfair labor practice and representation case arenas, and the development of the Office of the General Counsel as a professional organization in alternative dispute resolution. The Award cited Ms. Robinson's high degree of professionalism and objectivity, and her unbiased approach to decision-making that fostered cooperation among a wide spectrum of individuals in the labor relations field.

FLRA PARTICIPATES AS A CO-SPONSOR OF SFLRP SYMPOSIUM ON FEDERAL LABOR-MANAGEMENT RELATIONS

The FLRA was one of the co-sponsoring agencies for the 27th Annual Society of Federal Labor Relations Professionals Annual Symposium on Federal Sector Labor-Management Relations held on September 21-22 in Washington, DC. FLRA Chairman Donald Wasserman, along with SFLRP President Russ Davis, delivered the Symposium's welcoming remarks. FLRA staff members made presentations on current topics in the Federal sector program, dealing successfully in arbitration of management rights, proposed changes in regulations governing review of arbitration awards, and the operation of FLRA's collaboration and alternative dispute resolution program.

At the Symposium, FLRA staff member George Birch was presented an Outstanding Achievement Award for the training he has provided over the years on Federal sector arbitration.

UPDATE ON CADR

The FLRA's Collaboration and Alternative Dispute Resolution (CADR) program continued to assist parties both in resolving cases and in providing training, as the following examples of activities by each of the FLRA's components and the CADR Office demonstrate. During fiscal year 2000, the FLRA conducted 301 training, facilitation and relationship-building sessions, which were provided to 12,043 participants, and conducted 1409 case-related interventions.

The Federal Service Impasses Panel provided CADR services during this period by assisting various parties in reaching complete voluntary settlements of negotiation impasses in 24 cases, for a fiscal year 2000 total of 55 case-related intervention sessions. Most of the settlements came during informal conferences or mediation-arbitration proceedings by the Panel's professional staff or Panel Members.

Among the cases voluntarily settled this quarter as a result of the Office of Administrative Law Judges' Settlement Program, one involved a rare "formal" settlement agreement requiring the Authority's approval and consent to court enforcement; another involved an in-person mediation; and a third involved an agreement to bargain over the adverse effects on employees who lost their jobs as a result of the geographic transfer of their function. During fiscal year 2000, the OALJ settlement program resulted in the successful resolution of 149 cases.

The Office of General Counsel worked with parties on many training sessions, including sessions involving statutory training, labor relations strategic planning, and discussions of the General Counsel's most recent guidance on remedies in unfair labor practice cases. Other examples of CADR program activities engaged in by the OGC included discussions with parties on the impact of the Statute on equal employment opportunity settlements, and the use of pre-decisional involvement as a means to encourage stable and productive labor-management relationships. During fiscal year 2000, the OGC provided alternative dispute resolution services in 1172 unfair labor practice cases and in 31 representation cases.

A few months ago, Regional Office representatives assisted representatives of labor and management at a facility on how to develop a labor relations strategic plan. Recently, the Region was advised that, as a result of the plan that the parties developed during this training, they have made substantial progress in their relationship. Specifically, the Region was advised that the parties have been able to resolve informally all potential grievances and unfair labor practices, have continued to participate in additional training, and have nominated themselves for recognition for their partnership efforts.

An example of Collaboration and Alternative Dispute Resolution Office initiatives with the parties involved training assistance, covering both statutory training and interest-based training, for a new bargaining unit. Another example involved CADRO staff working with parties in a pair of unrelated negotiability appeals. The interest-based process resulted in resolution of the matters in dispute in one appeal and the development of sufficient options for dealing with the issues in dispute in the second appeal so that the union decided to withdraw its appeal. During fiscal year 2000, CADRO staff efforts resulted in 20 negotiability appeals being withdrawn and, working with Regional Office staff, the resolution of 7 unfair labor practice cases. Additionally, CADRO provided 20 non-case training and facilitation services.

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 the Treasury, Internal Revenue Service and U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, 56 FLRA No. 76 (2000), the Authority denied an application for review of a Regional Director's dismissal of a petition seeking to consolidate seven existing bargaining units into one bargaining unit. The proposed consolidated unit would include all professional and nonprofessional employees of the Internal Revenue Service. The Regional Director concluded that the proposed consolidated unit was not appropriate. On review, the Authority determined that the Regional Director properly applied established precedent in evaluating the effect of the agency's delegation of authority on personnel and labor relations matters and in assessing the effectiveness of dealings and efficiency of agency operations. In affirming that the petitioned-for unit would not promote effective dealings and efficiency of operations, however, the Authority found it unnecessary to address whether the employees shared a community of interest. Finally, the Authority noted that there was no challenge to the Regional Director's finding that proposed alternative consolidations, consisting of five Internal Revenue Service units consolidated into one unit and two Office of Chief Counsel units consolidated into a separate unit, were appropriate.

Unfair Labor Practice Cases

PenIn Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 56 FLRA No. 79 (2000), the Authority addressed exceptions to an administrative law judge's recommended decision finding that the Respondent violated the Statute by failing to furnish the union with sanitized documents concerning the selection process used to fill job vacancies for bargaining unit positions. The Authority first determined that disclosure of the information would not violate the Privacy Act. The Authority stated that because information identifying the employees would be redacted, there would be no unwarranted invasion of privacy and, as such, the information would be required to be disclosed under the Freedom of Information Act. Next, the Authority found that the Union had articulated a particularized need for the information and that the Union's request for the documents otherwise satisfied the requirements for disclosure under the Statute. To remedy the unlawful conduct, the Authority directed the Respondent to furnish the requested documents. Further, the Respondent was ordered to refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with the job vacancies, that the grievance was untimely, as long as the grievance was timely filed from the date the Union received the requested information.

PenIn U.S. Department of Veterans Affairs, 56 FLRA No. 117 (2000), the Authority concluded that the Respondent violated section 7116(a)(1) of the Statute by interrogating a Union steward concerning a unit employee's confidential statements to the steward, and by presenting the steward with a settlement agreement requiring him to refrain from engaging in particular types of protected activity. The Authority held that the Respondent's duty to investigate an equal employment opportunity (EEO) complaint by a supervisor against the steward did not permit the Respondent to conduct the investigation in a manner that was inconsistent with the Statute. As remedies, the Authority directed the Respondent to: post a notice wherever employees of the local bargaining unit are employed; direct the highest management official at the location where the violations occurred to sign the notice; and distribute copies of the notice to its EEO investigators and the head of its EEO program. The Authority denied the General Counsel's request that the head of the Respondent's nationwide EEO program be directed to sign the notice.

PenIn United States Immigration and Naturalization Service, Washington, D.C., 56 FLRA No. 120 (2000), the Authority addressed exceptions to a decision of an administrative law judge on remand of the Authority's decision in 55 FLRA 69 (1999) (Member Wasserman dissenting). In its original decision, an Authority majority modified the framework for determining whether an agency's failure to maintain the status quo after a union has requested the assistance of the Federal Service Impasses Panel violates the Statute. The Authority remanded the case because the record was insufficient to resolve the complaint under the modified framework and there were questions concerning both retroactive application of the modified framework and the General Counsel's ability to relitigate a portion of the complaint as an independent, rather than derivative, violation of the Statute. On remand, the judge determined that the Respondent's failure to maintain the status quo did not violate the Statute and that the modified framework should be applied retroactively. The judge further found that an independent violation of the Statute was neither encompassed within the complaint nor fully and fairly litigated. The Authority upheld the judge's recommended dismissal of the complaint. In so doing, the Authority noted the absence of any exception to the judge's ruling that the Respondent's failure to maintain the status quo did not violate the Statute. As to retroactive application of the modified framework, the Authority discussed at some length the principles of retroactivity of newly-adopted standards. Applying the factors set out by the National Labor Relations Board in Pattern & Model Makers Association, 310 NLRB 929 (1993), the Authority concluded in this case that the parties had not detrimentally relied on preexisting law, that the Union's claim that retroactivity would not effectuate the purposes and policies of the Statute lacked merit, and that there was no showing of a particular injustice that would result from a retroactive application of the Authority's decision. Finally, the Authority found that the parties did not seek to relitigate a portion of the complaint as an independent violation.

Negotiability Cases

PenIn Association of Civilian Technicians, Montana Air Chapter No. 29 and U.S. Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana, 56 FLRA No. 111 (2000), the Authority addressed a proposal determining the order in which bargaining unit employees were listed on retention registers for release during a reduction-in-force. The Agency claimed that the proposal, which would establish a seniority-based retention system, conflicted with an Agency regulation for which there was a compelling need. According to the Agency, its regulation established retention standing based on performance alone. The Authority held that in order to demonstrate that a proposal is outside the duty to bargain based on a conflict with an Agency regulation, the Agency must identify a specific Agency regulation, show a conflict between the regulation and the proposal, and demonstrate that the regulation is supported by a compelling need as defined in the Authority's Regulations. While, in this case, the Agency established both the existence of an Agency regulation and a conflict between the regulation and the proposal, the Authority found that the Agency failed to establish that there was a compelling need for the regulation so as to bar negotiations. In particular, the Agency failed to demonstrate that its regulation was essential to the accomplishment of the Agency's mission, was necessary to ensure the maintenance of merit principles, or that it implemented a nondiscretionary mandate under law. Consequently, the Authority concluded that the proposal was within the duty.

PenIn American Federation of Government Employees, Local 225 and U.S. Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 56 FLRA No. 115 (2000), the Authority found outside the duty to bargain two alternative proposals. One proposal required the Agency to continue to adhere to a performance rating regulation set forth in a 1993 regulation promulgated by the Agency, while the other proposal required the Agency to reinstate the performance rating formula utilized prior to the 1993 regulation. The Authority found that both proposals affected management's rights to direct employees and assign work because they would establish the levels of performance required for an employee to achieve a particular summary rating for overall performance, and would prohibit management from revising the performance rating formula for an indefinite period. The Authority rejected the Union's unsupported assertion that the proposals constituted negotiable procedures under section 7106(b)(2) of the Statute. The Authority also rejected the Union's argument that the proposals constituted appropriate arrangements within the meaning of section 7106(b)(3) of the Statute, finding that the burdens imposed on management's rights outweighed the benefits that would accrue to employees. Finally, the Authority found that the parties' bargaining history did not support a conclusion that the Agency was required to bargain over the proposals.

Arbitration Cases

PenIn U.S. Department of Defense, The Adjutant General, National Guard Bureau, Tennessee Air National Guard and Association of Civilian Technicians, Music City Chapter, 56 FLRA No. 92 (2000), the Authority reviewed an arbitration award ordering the Agency to vacate a disputed position and, if the Agency decided to fill the position, to rerun the selection process in compliance with the parties' agreement. The Authority rejected the Agency's argument that the award was based on a nonfact, deferring to the Arbitrator's factual finding that the selectee's application did not establish the selectee's qualifications. The Authority also held that the award was consistent with an Agency regulation because, under the Arbitrator's interpretation of the parties' agreement and regulations, which the Agency did not contest, the Arbitrator properly concluded that the selectee was not qualified. Finally, the Authority held that the award did not conflict with the Agency's rights to assign work and select employees under section 7106(a)(2)(b) and (c) of the Statute. In this connection, the Authority found that the Arbitrator's award satisfied prong I of BEP because it resulted from enforcement of provisions negotiated under section 7106(b)(2). The Authority also found that the award satisfied prong II of BEP because it reconstructed the status quo and left the selection decision to Agency officials.

PenIn U.S. Department of Defense Education Activity, Arlington, Virginia and Federal Education Association, 56 FLRA No. 119 (2000), the Authority denied exceptions to an award in which the arbitrator sustained a grievance finding that payments due employees, as a result of prior arbitration awards and settlement agreements, came within the scope of the Back Pay Act and that interest was owing on the payments. In so doing, the Authority noted that the Back Pay Act provides that omissions can constitute unjustified and unwarranted personnel actions. Consequently, the Authority found that administrative or clerical errors that result in delays in making payment can constitute unjustified or unwarranted personnel actions. In coming to this conclusion, the Authority rejected the Agency's arguments that the Back Pay Act is not applicable where the obligation to pay the underlying amount is not in question and where there is no nondiscretionary law, rule or regulation mandating action in accordance with specific criteria or by a specific date. The Authority also declined to consider the Agency's challenge to OPM's regulation that includes a "pay action" as a possible unjustified or unwarranted action under the Back Pay Act.

COURT CASES

  Scale

ScaleAssociation of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army) v. FLRA, No. 00-1085, 2000 WL 1093314 (D.C. Cir. June 29, 2000), reviewing 55 FLRA 1226 (2000). The D.C. Circuit ruled that it lacked jurisdiction over two unions' petition for review of an Authority negotiability decision because the petition was prematurely filed. The court agreed with the Authority that the unions' pending request for administrative reconsideration rendered the underlying Authority action nonfinal.

The court further agreed that the Authority's subsequent issuance of a final order in the case, denying the request for reconsideration, did not cure the petition's prematurity.

ScaleEisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), reversing 54 FLRA 562 (1998). The Ninth Circuit reversed an Authority decision dismissing an individual's unit clarification petition filed pursuant to section 7111 of the Statute. Citing 5 C.F.R. § 2422.2(c), the Authority had determined that only agencies and unions could file unit clarification petitions and that, therefore, the individual lacked standing to file such a petition. Ruling that it had jurisdiction under section 7123 of the Statute to review Authority decisions on petitions filed under section 7111, the court disagreed and reversed the Authority's determination.

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.

Travel and Per Diem Expenses

National Labor Relations Board, Office of General Counsel, Washington, D.C. and National Labor Relations Board, Case No. 00 FSIP 63 (June 1, 2000), Panel Release No. 432 (Decision and Order). The Panel determined that the case, concerning travel and per diem expenses for Union bargaining team members during successor collective bargaining agreement negotiations, should be resolved through written submissions. The Employer proposed to pay $20,000 (53 percent) of the Union's travel and per diem expenses for the bargaining sessions. The Union proposed that the Employer pay a maximum of $28,000 for travel and per diem expenses, leaving the Union to pay approximately 30 percent of travel-related costs. The Panel adopted the Union's proposal. The Panel explained that the Union's proposal recognizes the increase in travel costs since the parties last negotiated 7 years ago, that the Union's estimate, unlike the Employer's proposal, took into account costs such as cab fares, and that the Union's proposal would not, contrary to the Employer's assertions, eliminate the Union's incentive to complete bargaining expeditiously.

Reassignments

Department of the Treasury, U.S. Customs Service, Houston, Texas and Chapter 163, National Treasury Employees Union, Case No. 00 FSIP 39 (June 1, 2000), Panel Release No. 432 (Decision and Order). The Panel determined that the case, concerning employee reassignments, should be resolved through an informal conference with a member of the Panel's staff. The Employer proposed maintaining the status quo. The Union proposed that vacancies be announced Port-wide, and that when two or more employees who are equally qualified apply for a position, the most senior employee be selected. In adopting the Employer's proposal, the Panel determined that the Union had not sufficiently demonstrated a need to change the status quo. It noted that the parties' master collective bargaining agreement and local agreement established a comprehensive system governing reassignment for most employees. It further noted that as to "special teams" vacancies, the current practice allowed the Employer to avoid delays in filling the positions which could cause an interruption in doing interdiction work.

Demonstration Project

Department of Defense, U.S. Army Medical Materiel Agency, Fort Detrick, Maryland and Local 2484, American Federation of Government Employees, AFL-CIO, Case Nos. 00 FSIP 38 and 45 (June 7, 2000), Panel Release No. 432 (Decision and Order). The Panel determined that the case, concerning the Laboratory Personnel Management Demonstration Project (demo project), which was implemented prior to the Union's certification as the exclusive representative, should be resolved through an informal conference with Panel Member Marvin E. Johnson. The Union proposed that bargaining-unit employees be removed from the demo project. The Employer proposed that employees vote on whether to continue participation in the demo project. In adopting the Union's proposal, the Panel explained that the Employer's proposal would undercut the Union's institutional role as the exclusive representative for all bargaining-unit employees on matters affecting personnel policy, practices, and conditions of employment. Additionally, the Panel found that an OPM survey had revealed general employee dissatisfaction with the demo project. Finally, the Panel noted that the Union's successful effort to become the exclusive representative of bargaining-unit employees occurred just after with the Employer's implementation of the demo project, and if the Union had been certified as the exclusive representative prior to that time, it could have opted out of the program, as permitted under OPM regulations.

Seating Assignments

Department of the Treasury, Bureau of the Public Debt, Parkersburg, West Virginia and Chapter 190, National Treasury Employees Union, Case No. 00 FSIP 48 (July 14, 2000), Panel Release No. 433 (Decision and Order). The Panel determined that the case, concerning procedures for the selection of seating assignments, should be resolved through an informal conference. The Union proposed that seating assignments be based on seniority in service according to an employee's service computation date (SCD). The Employer proposed that accountants be seated around the exterior of the work area; the order of selecting would be based on the employee's SCD; and accounting technicians would choose from pods located around the interior of the work space. The Panel adopted a compromise which (1) permits management to determine the appropriate functional groupings of employees; (2) allocates all bargaining-unit workstations within each grouping on the basis of highest grade level, and SCD within each grade level; (3) allocates the first bargaining-unit work station which becomes vacant after initial assignments have been made using SCD, the second using highest grade level and SCD within grade level, and allocates all subsequent vacant bargaining-unit workstations by alternating these procedures; and (4) requires the Employer to notify the Union in writing when bargaining-unit workstations become vacant. In adopting this compromise, the Panel explained that the Employer's proposal did not permit accounting technicians to occupy currently vacant window spaces, and that it was not adaptable for relocations occurring at other buildings. The Panel also concluded that, although its proposal was consistent with the majority of seating assignment practices within the Bureau of the Public Debt, the Union failed to demonstrate the need to change the status quo as it existed within this particular branch of the Bureau.

Reductions-in-Force

Department of Defense, Defense Logistics Agency, Defense Distribution Depot Susquehanna, New Cumberland, Pennsylvania and Local 2004, American Federation of Government Employees, AFL-CIO, Case Nos. 00 FSIP 86 and 00 FSIP 93 (July 28, 2000), Panel Release No. 433 (Decision and Order). The Panel determined that the case, concerning a staffing plan for Fiscal Year 2001, as well as other issues relating to the proposed reduction-in-force (RIF) should be resolved through an informal conference between Panel Member Marvin E. Johnson and the parties. With respect to the key issue of the staffing plan, the Union proposed that the Panel should delay its decision until the FLRA ruled on the Union's related negotiability appeals and unfair labor practice charges. As for the substance of the first issue, the Union proposed that positions be eliminated over the course of 5 years in organizational entities where the workload warrants a reduction in staff size and where certain efficiencies in operations can be achieved. The Employer proposed a staffing plan which would eliminate 461 bargaining-unit and non-bargaining-unit positions effective October 1, 2000. The Panel rejected the Union's request to delay its decision, and adopted the Employer's proposal because the Employer, unlike the Union, had undertaken a systematic assessment of its organizational needs based upon its mission requirements. In response to the Union's request for a delay, the Panel noted that the Union first asked that the Panel defer its decision at the informal conference, that the Union and the Employer both filed requests for Panel assistance, and that they both stated during the Panel's investigation that they were at impasse.

Department of the Navy, Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland and Local 1923, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 68 (July 27, 2000), Panel Release No. 433 (Opinion and Decision). The Panel determined that the case, concerning numerous issues regarding the impact and implementation of the Employer's decision to conduct a reduction-in-force (RIF), should be resolved through mediation-arbitration with Panel Member Mary E. Jacksteit. It also ordered the Employer to take no further steps to complete the RIF while the matter was pending before the Panel. Mediation efforts resulted in the voluntary settlement of a number of the issues in dispute, but 13 ultimately were resolved through the issuance of an arbitration award. Among the more important issues, the Union proposed that the parties negotiate over issues contained in section 7106(b)(1) of the Statute, i.e., the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty and the technology, methods, and means of performing work. The Employer declined to negotiate over these issues. The Arbitrator noted that 7106(b)(1) issues are statutorily negotiable at the election of an agency. Although Executive Order 12871 directs heads of Federal agencies to negotiate over (b)(1) issues, the Order does not constitute an election to bargain over such issues. Therefore, because the Employer declined to negotiate over these issues, the Arbitrator declined to consider the Union's proposal. With respect to another issue, the Union proposed reducing the ratio of supervisors to staff. The Employer declined to negotiate over the issue because it concerned (b)(1) matters. The Arbitrator determined that the Union's proposal did concern (b)(1) matters, and she declined to consider it. On an issue involving training, the Union proposed that the Employer be required to take "aggressive efforts to train" employees to increase their potential to find another job in the Government. The Employer proposed that separated employees would receive benefits under the Federal Job Training Partnership, as well as from state and local training programs. The Arbitrator adopted a modified version of the Employer's proposal in which the Employer would be required to have a designated RIF program manager at Indian Head to coordinate and be responsible for carrying out training initiatives. The Arbitrator explained that the Employer was already obligated to provide career transition and outplacement services to employees, but that the Union was concerned that the benefits of the program would not be felt by employees if the responsibility for implementation is located at the Employer's personnel headquarters in Washington.

Implementation of an Immediate Claims Taking Unit

Social Security Administration, Boston Region, Boston, Massachusetts and Local 1164, American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 112 (August 11, 2000), Panel Release No. 434 (Opinion and Decision). The Panel determined that the case, concerning implementation of an Immediate Claims Taking (ICT) unit, should be resolved through mediation-arbitration by a member of the Panel's staff. Subsequent mediation under the procedure reduced the number of issues for resolution to five. With respect to one of the more important issues, the Union proposed a floor plan in which, among other things, the entrance to the stockroom would be located on an interior hallway, and a secured door would be located on the right at the top of the same hallway. The Employer proposed that the stockroom be on the same hallway, but with access from inside the ICT unit. The Employer also proposed a shorter entry hall. The Arbitrator adopted the Employer's proposal because it would provide a greater measure of safety by preventing public entry onto the interior hallway, and because it would allow easier access to the stockroom. On another issue, the Union proposed that the video conference room be made available to bargaining-unit employees for appropriate purposes when not in use for legitimate agency business. The Employer proposed that the Union have access to the multi-purpose room and the training room, and that the video conference room be available when the other rooms are in use. The Arbitrator adopted the Employer's proposal because the availability of all three rooms appeared to be sufficient to accommodate a 17-person office.

Discipline, Adverse Actions and Merit Promotions

Department of Defense, Arkansas Air National Guard, Little Rock Air Force Base, Jacksonville, Arkansas and Razorback Chapter 117, Association of Civilian Technicians, Case No. 00 FSIP 31 (August 3, 2000), Panel Release No. 433 (Opinion and Decision). The Panel directed the parties to resolve their dispute, concerning discipline, adverse actions, and merit promotions, through mediation-arbitration by a member of the Panel's staff. When mediation efforts failed to result in a complete settlement, a hearing was conducted, and a decision was rendered on the remaining five issues. With respect to one of the most significant issues, the Union proposed that advisory arbitration be permitted, without the concurrence of the Employer, as an appeal procedure for review of an adverse action. The Employer proposed that advisory arbitration be used if agreed to by both parties. The Arbitrator adopted a modified version of the Union's proposal, which provided that while employees may request advisory arbitration, the Union would ultimately determine whether to utilize the procedure. The Arbitrator explained that the option of requesting a procedure conducted by a neutral from outside the Agency would instill employee confidence in the appeals process, and thereby encourage employees to exercise their due process rights. On another important matter, the Union proposed that for vacant bargaining-unit positions, the initial area of consideration be all civilian technicians in the bargaining unit, specifically excluding all active guard reserve personnel. In the event that the announcement is concurrent, non-bargaining-unit candidates would not be submitted to the selecting official for consideration until qualified bargaining-unit employees had been given first consideration. The Employer proposed, among other things, that the areas of consideration for each bargaining-unit position will be in the following manner and sequence: (1) Arkansas Air National Guard Technicians at Little Rock Air Force Base; (2) Arkansas Air National Guard Technicians; (3) Arkansas Army National Guard Technicians; (4) All members of the Arkansas ANG/ARNG; (5) Individuals who are not members of the National Guard but who are eligible to acquire membership in an available and compatible military grade for excepted technicians positions. Also, for vacant bargaining-unit positions, the initial area of consideration would be all technicians in the bargaining unit. Finally, the Employer proposed that vacant bargaining-unit positions may be announced concurrently as Technician and AGR. The Arbitrator concluded that the Union's proposal articulates the traditional union interest of enhancing promotional opportunities for bargaining-unit members, that bargaining-unit applicants should be given the benefit of first consideration for vacant bargaining-unit positions, and that the proposal would not interfere with the Employer's substantive right to determine to fill a position or the appropriate source from which to fill a position. The Arbitrator adopted a modified version of the Union's proposal eliminating the requirement that the Employer make a determination not to select qualified bargaining-unit candidates for the position before non-bargaining-unit candidates are submitted to the selection official.

Staffing

Department of the Treasury, U.S. Customs Service, Newark, New Jersey and Chapter 161, National Treasury Employees Union, Case No. 00 FSIP 100 (September 25, 2000), Panel Release No. 435 (Decision and Order). The Panel determined that the case, concerning travel and per diem expenses for Union bargaining-team members during successor collective bargaining agreement negotiations, should be resolved through written submissions. The Employer proposed that staffing on the 4 p.m. to midnight shift for customs inspectors at Newark International Airport be increased to 11 in the Summer, with minimum staffing of 5 inspectors, and to 9 inspectors for the remainder of the year, with minimum staffing of 4 inspectors. The Union proposed that staffing of the shift be increased to 10 in the summer, and to 7 in the winter. The Panel adopted a compromise position that the Employer had been willing to accept during the course of bargaining. Under the compromise, the summer tour would be staffed with 10 inspectors, and a minimum of 5 inspectors, and the winter tour would be staffed with 8 inspectors with a minimum of 4 inspectors. In adopting the compromise, the Panel noted that neither party had supported its position well, and that the compromise represents what the parties should have agreed to but for their poor relationship.

FSIP SETTLEMENT CORNER

ABOUT THIS COLUMN

Along with the issuance of final actions (i.e., Decisions and Orders by the full Panel and Arbitrators' Opinions and Decisions by its designated representatives), the Panel also fulfills its statutory obligations by assisting the parties in their efforts to achieve voluntary settlements. During the period covered by this bulletin, Panel Members were successful in obtaining complete settlements in the following cases:

— In Social Security Administration, Fairfield Field Office, Fairfield, California and Local 3172, AFGE, AFL-CIO, Case No. 00 FSIP 58 (closed June 28, 2000), the parties reached impasse in negotiations over an office relocation. The Panel determined the dispute should be resolved through an informal conference by telephone. During a pre-informal conference telephone conference call with Panel Member John G. Wofford, settlement options were explored. The parties subsequently resolved the dispute voluntarily without the need for the informal conference by telephone.

— In Social Security Administration, San Diego District Office, San Diego, California and Local 2879, AFGE, AFL-CIO, Case No. 00 FSIP 89 (closed July 19, 2000), the parties reached impasse over the location and allocation of office space, including Union office space. The Panel designated Panel Chair Bonnie Prouty Castrey to resolve the dispute through mediation-arbitration. The dispute was resolved voluntarily by the parties during the mediation phase of the proceeding.

— In Department of Defense, Defense Logistics Agency, Defense Distribution Depot, San Joaquin, Tracy, California and Local 1276, Laborers' International Union of North America, AFL-CIO, Case No. 00 FSIP 103 (closed July 25, 2000), the parties reached impasse over three articles for a successor collective bargaining agreement. Panel Member Edward F. Hartfield was designated by the Panel as a mediator-arbitrator to resolve the dispute. It was voluntarily resolved during mediation.

GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS

ABOUT THIS COLUMN

The FLRA's General Counsel, Joseph Swerdzewski, has, among other statutory duties, final authority over the issuance of complaints under the Federal Service Labor-Management Relations Statute. The General Counsel's approach in deciding whether to issue a complaint in a particular set of circumstances influences the direction of the law. For that reason, and to keep the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the Bulletin highlights selected cases that were considered by the OGC pursuant to requests for case-handling advice from Regional Directors, and summarizes guidance issued on novel legal issues. The interpretations of the Statute relied upon in the advice and guidance represents the OGC's position, and are not an official position of, or interpretation by, the Authority.

CHANGE FROM A FIVE-TIER PERFORMANCE APPRAISAL TO A PASS-FAIL SYSTEM

These cases concern an activity's change from a five-tier performance appraisal system that is incorporated in the parties' contract to a pass-fail system. One of the articles in the contract called for a five-tier rating system. The Activity published an article in a newspaper announcing a plan to change to the pass-fail system. The Union denies ever having received notice of the Activity's intent to change the performance appraisal system and also sent the Activity a memorandum stating that the contract could not be changed. After another article was published concerning the impending change which prompted the Union to send another memorandum to the Activity requesting that it halt efforts to change the system until after the contract was renegotiated, the Union filed the ULP charge. The Union filed another related charge several months later after the Activity formally implemented the change.

At the outset, the General Counsel set forth current precedent which governs this matter: an agency may not repudiate contract clauses unless: (1) the clauses (a) are contrary to Federal law or government-wide regulations; or (b) affect a section 7106(a) management right and are not arrangements; or (c) affect a section 7106(a) management right and are arrangements, but abrogate a management right; and (2) the union has not agreed to the challenged conduct.

With respect to a repudiation determination, the General Counsel advised:

  1. Determine what specific contract clauses were repudiated by the agency conduct, taking into consideration whether the contract itself allowed the challenged conduct under the circumstances or whether the union agreed to the challenged conduct.
     
    • If no contract clauses were repudiated, determine if there was a change over which there was a bargaining obligation that was not fulfilled.
       
    • If -- (a) contract clauses were repudiated; (b) the contract itself did not allow for the challenged conduct; and (c) the union did not affirmatively agree to substitute new contract clauses for existing clauses or agree to the conduct that repudiated the contract clauses - go to step 2.

     
  2. Determine whether any of the repudiated contract clauses are contrary to Federal law or government-wide regulation.
     
    • If contrary to Federal law or government-wide regulation, there is no unlawful repudiation.
       
    • If the clauses were not contrary to Federal law or government-wide regulation, go to step 3.

     
  3. Determine whether any of the repudiated contract clauses affect a section 7106(a) management right, and if so, whether they are arrangements that do not abrogate that management right.
     
    • If a clause affects a section 7106(a) management right and is not an arrangement, or is an arrangement that abrogates a management right, repudiation of the provision is not a violation.
       
    • If the clauses were arrangements and there was no abrogation, go to step 4.

     
  4. Issue complaint, absent settlement, alleging repudiation of specific contract clauses, and seek an appropriate remedy.

The General Counsel also provided advice on the duty to bargain over a management decision to exercise a management right in a way different from the way that the right was exercised at the time the article was repudiated so as to render meaningless the procedures and appropriate arrangements in the existing contract. In these situations, the rationale that underlies a repudiation analysis should be equally applicable. In the General Counsel's view, taking action that renders a contract clause meaningless is the same as taking action that repudiates that clause. Thus, the Region was directed to apply the above decisional analysis to the particular facts obtained during the investigation and the specific contract clauses in the agreement.

APPLICATION OF SUPERSENIORITY PROVISION OF CONTRACT

These cases concern whether the application of allegedly illegal contract terms are actionable ULPs if the contract has been in existence longer than six months before the filing of the charge, and whether specific superseniority provisions are ULPs. The provision of the parties' agreement at issue in these cases grants the elected or appointed Union officials "top seniority" in all situations where seniority is used, i.e., superseniority. In particular, the provision allows Union officials, whether or not active stewards, to select their vacation schedule ahead of other employees and to avoid mandatory overtime. The investigation revealed that this provision of the agreement had been enforced within six months prior to the filing of the charges. The Charging Party had actual knowledge of this provision of the contract for many years.

The General Counsel concluded that: (1) the charges are timely, either as the continued maintenance of the superseniorty provisions as a continuing violation, or as alleging its implementing as separate, independent actions; and (2) the superseniority provisions are contrary to the Statute.

As to the timeliness of the charges, the General Counsel discussed two decisions addressing continuing violations. In one case, the Authority held that an agency's refusal to comply with an arbitrator's award was not a continuing violation. In another, the Authority held that the maintenance of an unlawful contract rule constituted a continuing violation. The General Counsel determined that the issue should be presented to the Authority.

In addition, in the General Counsel's view, even if a contract provision granting "superseniority" to Union officials itself may not be challenged because it was agreed to more than six months before the filing of the charges, each action enforcing the allegedly unlawful provision is a separate and independent action which may constitute a ULP. In this regard, there is no discernible difference between the goals of stability of collective bargaining relationships and avoidance of stale litigation to reach finality with regard to an arbitration award, and the continued enforcement of a rule or contract provision that violates the Statute each and every time it is applied.

As to the legality of the superseniority provision, the General Counsel noted that there are limited purposes in the private sector in which superseniority provisions will be enforced. In the private sector, the general rule is that when a Union official performs steward-like duties, superseniority can be offered for purposes of lay off and recall. If offered for other reasons, it is presumptively illegal and the Union must then show that the provision enhances the Union's ability to represent employees. Thus, to be enforceable, it must further the effective administration of bargaining agreements on the plant level by encouraging the legitimate presence of the steward on the line.

In the General Counsel's view, the superseniority provision at issue in these cases does not appear to pass the private sector test as it is not linked to the Union's ability to represent employees and to administer the contract - it simply grants a benefit to an employee for being a Union official. Because the Authority has not yet had the opportunity to evaluate a superseniority clause, the issues in these cases should be presented to Authority. In view of the Authority's decisions discussed above, the General Counsel noted that it is possible that a superseniority clause that meets the private sector test could be lawful in the Federal sector.

In accordance with the above, the General Counsel authorized complaint against both the Union and the Activity, absent settlement.

ENFORCEABILITY OF AGREEMENT CONTAINING TERMS AFFECTING NON-UNIT EMPLOYEE

This case considers whether the repudiation of an agreement that concerns a matter that is not a condition of employment is a ULP. In response to the Activity's memorandum that there would be a change in work assignments relating to coverage of a loading dock, the Union requested to bargain. At the meeting between the parties, in exchange for the expedition of bargaining, the Activity agreed to modify its proposal to include a secretary, a confidential employee excluded from the bargaining unit, in the rotation schedule for covering the loading dock. Per agreement of the parties, the Union developed the rotation schedule for all of the employees to which the Activity responded favorably. At a subsequent meeting, Activity representatives advised the Union that they did not have the authority to include the confidential secretary in the agreement--a higher authority decided that the secretary could not be included in the agreement. Thereafter, the five bargaining unit employees began their rotational assignments without the confidential employee. Ultimately, the loading dock position was filled permanently.

The General Counsel concluded that the agreement is enforceable even though it included a non-unit employee. In making this determination, the General Counsel relied upon previously-issued Guidance on Determining Whether Union Bargaining Proposals are Within the Scope of Bargaining Under the Federal Service Labor-Management Relations Statute (September 10, 1998). Thus, the General Counsel noted that bargaining over matters which are not conditions of employment, such as the inclusion of the confidential secretary in the agreement, are permissive subjects of bargaining. As such, the provisions are not subject to section 7114(c) agency head disapproval if included in a bargaining agreement, and are enforceable in arbitration. In the General Counsel's view, the rationale that supports enforcement of clauses in the arbitration process is equally applicable to enforcement of those same clauses through the ULP process when they are repudiated.

Thus, the inclusion of the confidential employee in the agreement was permissive and neither contrary to the Statute nor nonnegotiable because it conflicted with any law, government-wide rule or regulation, compelling need agency regulation, or reserved section 7106(a) management right. Accordingly, absent settlement, the General Counsel authorized complaint.

GENERAL COUNSEL'S SETTLEMENT CORNER

ABOUT THIS COLUMN

In accordance with the OGC's Settlement Policy, parties have entered into numerous novel settlement agreements resolving pending ULP cases. This policy, issued in conjunction with the Prosecutorial Discretion Policy, provides Regional Directors with the flexibility to develop, with the parties, innovative remedies that maximize the purposes and policies of the Statute, resolve the specific issues and meet the needs of the parties. To encourage parties to jointly resolve disputes consistent with principles and objectives set forth in the Settlement Policy, selected provisions of recent settlement agreements follow. The parties are not identified in order to maintain confidentiality.

Agency Posts Notice Agreeing Not to Consider Performance or Participation of Employees Engaged in Protected Activities in any Adverse Way in Evaluating the Performance of Employees

In a pre-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees agreeing not to consider the performance or participation of employees in activities that are protected by the Statute in any adverse way in evaluating the performance of employees. The parties further agreed that the Agency would revise the language of a memorandum to a unit employee to delete sentences which indicated that the employee's participation in protected activities had been considered.

Agency Posts Notice Agreeing Not to Hold Formal Discussions with Unit Employees Without Providing the Union with Advance Notice and the Opportunity to be Represented at the Discussion Concerning Tours of Duty

In a pre-complaint settlement agreement, the parties agreed that the Agency would not hold formal discussions with unit employees without affording the Union advance notice and the opportunity to be represented at the discussion by a representative of its choosing. In addition, the Agency also agreed not to seek to bargain directly with employees, but rather to bargain in good faith with the Union concerning tours of duty.

Agency Agrees Not to Eliminate the Practice of Allowing Employees to Bring Their Children to Work Without Notifying the Union and Providing the Union with an Opportunity to Bargain Pursuant to the Statute

In a post-complaint settlement agreement, the parties agreed that the Agency would not eliminate the practice of allowing bargaining unit employees (teachers' aides and other employees) represented by the Union to bring their children to work during their work hours without notifying the Union and providing it with an opportunity to negotiate as required under the Statute. The parties also agreed to the following: (1) the Agency would reinstate the practice of allowing teachers' aides to bring their children to work for short periods before and after the regular school day and on days when the employee's child's regular school is not in session; and (2) teacher's aides would also be allowed to bring their children to work with them in other emergency situations with permission.

Union Agrees Not to Cause or Attempt to Cause the Agency to Unlawfully Discriminate Against Employees Regarding the Opportunity to Purchase Parking Permits

In a pre-complaint settlement agreement, the parties agreed that the Union would post a notice to all members and employees stating that the Union agreed not to cause or attempt to cause the Agency to unlawfully discriminate against employees in connection with the opportunity to purchase parking permits for a specific Agency garage. The Union further agreed that it would rescind the withdrawal of its vote cast during the December 1999 Parking Committee meeting between Agency management and the Union concerning the opportunity of an individual employee to purchase a parking permit for a particular garage.

Agency Agrees to Negotiate Over Its Decision to Increase the Price of Staff Meal Tickets

The parties agreed that the Agency would provide the Union with an opportunity to negotiate, to the extent required by law and government-wide regulation, over the Agency's decision to increase the price of staff meal tickets for unit employees. The settlement agreement also sets a specific time for a meeting between management and the Union to commence bargaining on the Agency's decision to increase the price of meal tickets.

Agency Agrees to Negotiate Over Procedures and Appropriate Arrangements Concerning the Implementation of Changes in Parking Location

After issuance of complaint and a notice of hearing, the parties agreed, consistent with section 7106(b)(2) and (3) of the Statute, that the Agency would negotiate in good faith with the Union over the procedures for implementing a change in parking location at a certain site and any appropriate arrangements for employees adversely affected by the change in parking location at the facility. The Agency also agreed to provide the Union with prior notice and the opportunity to be