12:0009(4)CA - Justice, Federal Prison System and Council of Prison Locals, AFGE -- 1983 FLRAdec CA



[ v12 p9 ]
12:0009(4)CA
The decision of the Authority follows:


 12 FLRA No. 4
 
 U.S. DEPARTMENT OF JUSTICE
 FEDERAL PRISON SYSTEM
 Respondent
 
 and
 
 COUNCIL OF PRISON LOCALS
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-2000
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and the parties' contentions, the Authority finds:
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) when it failed and refused to grant
 official time to the Union's employee representative for negotiations
 over the impact and implementation of a memorandum issued by the
 Respondent entitled "Guidelines for Questioning Employees Regarding
 Misconduct." By such conduct it is alleged that the Respondent failed to
 comply with the requirements of section 7131(a) of the Statute /1/ and
 further refused to negotiate in good faith within the meaning of section
 7116(a)(5) of the Statute.
 
    The stipulated record reflects that the Respondent notified the Union
 of its intended issuance of the Guidelines on November 13, 1980;  that
 subsequent to such notification, the Guidelines were issued on November
 24, 1980;  and that thereafter, on January 9, 1981, the Union requested
 to bargain over the impact and implementation of such Guidelines.  The
 record further reflects that the parties scheduled negotiations for
 January 29, 1981.  However, the Respondent informed the Union that it
 would not grant official time to the Union's designated employee
 representative for such negotiations.  /2/ Having been so informed by
 the Respondent, the Union employed the services of an attorney who
 conducted negotiations concerning such matters on January 29, 1981, as
 scheduled, and reached agreement with management over the matters in
 dispute.
 
    The Respondent takes the position, among other things, that inasmuch
 as the Union's request to bargain was made some 56 days after the Union
 was given notice of the impending issuance of the Guidelines, it was
 under neither a statutory nor a contractual /3/ obligation to bargain.
 Therefore, the Respondent argues, its decision to bargain was an
 "election" which carried with it no obligation to provide official time
 to the Union representative.
 
    The Authority finds no merit to the Respondent's argument.  As
 previously noted by the Authority, the Statute requires that, prior to
 effecting a change in established conditions of employment, an agency
 must give the exclusive representative adequate advance notice and an
 opportunity to negotiate over such change and/or the impact and
 implementation thereof.  See, e.g., Department of Treasury, Internal
 Revenue Service, Jacksonville District, 3 FLRA 630 (1980).  The record
 reflects that, following notice to the Union, the Respondent did
 initiate a change in conditions of employment, and, upon the subsequent
 request of the Union, did enter into negotiations over the impact and
 implementation of such change.  Nothing in the stipulated record
 indicates that the Respondent and the Union (as exclusive representative
 of the Respondent's employees) undertook these negotiations other than
 in fulfillment of their mutual obligation under the Statute to bargain
 in good faith with respect to the impact and implementation of the
 Respondent's decision to effectuate a change in conditions of
 employment, /4/ or that the Union was asked to or in fact did waive its
 employee negotiator's right to critical time under section 7131(a) of
 the Statute /5/ for such negotiations.  While it may be argued that the
 Respondent could have refused to bargain because the Union, by its
 delayed request for negotiations, had waived its contractual or
 statutory right to request and participate in such negotiations, that
 issue is not before the Authority inasmuch as, in fact, the parties
 herein did engage in collective bargaining pursuant to the obligation to
 negotiate concerning a change in conditions of employment of the
 Respondent.  Consistent with the Authority's decision in Bureau of
 Alcohol, Tobacco and Firearms, Western Region, Department of Treasury,
 San Francisco, California, 4 FLRA No. 40 (1980), enforced sub nom.
 Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
 Authority, 672 F.2d 732, 736-37 (9th Cir. 1982), /6/ and the rationale
 set forth therein, it follows that the Respondent, by entering into
 collective bargaining within the meaning of section 7131(a) of the
 Statute, was obligated, upon request, to provide official time to the
 Union's designated employee negotiator during such negotiations.
 Inasmuch as the Respondent failed and refused to grant the Union's
 request for official time, it thereby failed and refused to comply with
 section 7131(a) of the Statute in violation of section 7116(a)(1) and
 (8) of the Statute.  /7/
 
    The Charging Party contended in its brief that it should be made
 whole for the fees of the private attorney used to conduct negotiations.
  However, the Authority concludes that such a remedy would not be
 appropriate, noting particularly that the record fails to establish that
 the employee who was entitled to but unlawfully denied official time
 under section 7131(a) to participate as the Union's designated
 representative in negotiations with the Respondent during his regular
 work hours and when he would otherwise be in a work or paid leave status
 also had been prevented from participating in such negotiations at all.
 Thus, where the employee could have participated in negotiations on
 annual leave or leave without pay and was entitled under the Statute to
 be made whole thereafter for the denial of official time to him for such
 negotiations, but the Union instead chose to retain outside counsel, the
 Authority finds that reimbursement of the Union's attorney's fees would
 not be appropriate.  In so concluding, the Authority finds it
 unnecessary to determine generally whether, or under what circumstances,
 it would be appropriate to reimburse an exclusive representative for
 attorney's fees.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the U.S.
 Department of Justice, Federal Prison System, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to grant official time to employee Michael
 Musky pursuant to the requirements of section 7131(a) of the Federal
 Service Labor-Management Relations Statute, as requested, for his
 participation as the representative of the Council of Prison Locals,
 American Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, in scheduled mid-term negotiations.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute.
 
    (a) Post at its facilities, where bargaining unit employees are
 located, copies of the attached Notice of forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by an appropriate official and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegation of the complaint
 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., April 14, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                       CHAPTER 71 OF TITLE 5 OF THE
 
                            UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to grant official time to employee
 Michael Musky pursuant to the requirements of section 7131(a) of the
 Federal Service Labor-Management Relations Statute, as requested, for
 his participation as the representative of the Council of Prison Locals,
 American Federation of Government Employees, AFL-CIO, the exclusive
 representative of our employees, in scheduled mid-term negotiations.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
                                       (Agency/Activity)
 
 Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice of compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
 number is:  (202)653-8507.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7131(a) provides:
 
          (a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status.  The number of
       employees for whom official time ia authorized under this
       subsection shall not exceed the number of individuals designated
       as representing the agency for such purposes.
 
 
    /2/ As stipulated by the parties, the Respondent maintains a policy
 of not granting Union representatives official time for impact
 bargaining.
 
 
    /3/ The parties' negotiated agreement, Article 3, Section (b),
 provides in pertinent part that "the Union will have up to thirty
 calendar days for review of these proposed issuances, submission of the
 Union's comments, and/or requesting negotiations."
 
 
    /4/ Such bargaining between the parties at the level of exclusive
 recognition constituted "the negotiation of a collective bargaining
 agreement" within the meaning of section 7131(a) of the Statute, as
 distinguished from negotiations such as local supplements to agreements
 reached at the level of exclusive recognition which fall within section
 7131(d) of the Statute.  See Interpretation and Guidance, 7 FLRA No. 105
 (1982).
 
 
    /5/ Cf. Nuclear Regulatory Commission, 8 FLRA No. 124 (1982) (wherein
 the Authority found that the union clearly and unmistakably waived
 entitlement to travel and per diem while on official time pursuant to
 section 7131).
 
 
    /6/ But see Division of Military an