12:0480(94)CA - NASA, HQ, Washington, DC and Local 9, American Federation of Technical Engineers -- 1983 FLRAdec CA
[ v12 p480 ]
12:0480(94)CA
The decision of the Authority follows:
12 FLRA No. 94
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION, HEADQUARTERS,
WASHINGTON, D.C.
Respondent
and
LOCAL 9, AMERICAN FEDERATION OF
TECHNICAL ENGINEERS, AFL-CIO
Charging Party
Case No. 3-CA-2624
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had violated
section 7116(a)(1) and (6) of the Federal Service Labor-Management
Relations Statute (the Statute) and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Thereafter, the Respondent filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge and finds that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's Decision
and the entire record, the Authority hereby adopts the Judge's findings,
conclusions and recommendations.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor Management Relations Statute, it is hereby ordered that
the National Aeronautics and Space Administration, Headquarters,
Washington, D.C. shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the Decision and Order of the
Federal Service Impasse Panel in Case No. 81 FSIP 23.
(b) In any like or related manner, interfering with, restraining, or
coercing 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
purpose and policies of the Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 81 FSIP 23, and otherwise cooperate in
impasse procedures and decisions as required by the Federal Service
Labor-Management Relations Statute.
(b) Post at its facilities wherever bargaining unit employees are
located, copies of the attached Notice on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by the
Administrator, National Aeronautics and Space Administration, or his
designee, and shall be posted and maintained for 60 consecutive days 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.
(c) 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.
Issued, Washington, D.C., August 10, 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 or refuse to comply with the Decision and Order of the
Federal Service Impasses Panel in Case No. 81 FSIP 23. WE WILL NOT in
any like or related manner, interfere with, restrain, or coerce
employees in the exercise of their rights assured by the Statute. WE
WILL comply with the Decision and Order of the Federal Service Impasses
Panel in Case No. 81 FSIP 23, and otherwise cooperate in impasse
procedures and decisions as required by the Federal Service
Labor-Management Relations Statute.
(Activity)
Dated: . . . By: (Signature) (Title) 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 or compliance with its provisions,
they may communicate directly with the Regional Director, Region III,
Federal Labor Relations Authority, whose address is: 1111 18th Street,
NW., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-2624
Richard L. Dunn, Esquire
For the Respondent
Susan Shinkman, Esquire
Carolyn Dixon, Esquire
For the General Counsel
Steve A. Schwartz
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The complaint, as amended at the hearing, alleges that the Respondent
/1/ failed and refused to comply with the provisions of Section
7119(c)(5)(C) of the Statute by refusing to comply with an April 30,
1981, Federal Service Impasses Panel (Panel) Order requiring the
Respondent and the Charging Party (AFTE or Union) to incorporate into a
collective bargaining agreement a previously adopted contract provision
relating to the establishment of a grievance procedure. The complaint
also alleged that this conduct was violative of Sections 7116(a)(1),
(5), (6), and (8) of the Statute.
Counsel for the Respondent contends that the complaint should be
dismissed on the ground that the Panel lacked jurisdiction to issue the
Order. Counsel also places reliance upon other alleged procedural
irregularities which will be discussed herein to the extent deemed
relevant and necessary.
The Respondent and the General Counsel were represented by counsel
during the hearing, and all parties were afforded full opportunity to be
heard, adduce relevant evidence, and examine and cross-examine
witnesses. Post-hearing briefs were filed by counsel representing the
General Counsel and counsel representing the Respondent. Based upon the
entire record herein, including my observations of the witnesses and
their demeanor, the exhibits and other relevant evidence adduced at the
hearing, /2/ and the briefs filed, I make the following findings of
fact, conclusions and recommendations.
Collective Bargaining History
The grievance procedure which the Panel ordered the parties to adopt
was the subject of collective bargaining based upon a January 10, 1979
Prenegotiation Agreement entered into by the Respondent and the National
Aeronautics and Space Administration Headquarters Professional
Association, Local 9 International Federation of Professional and
Technical Engineers, AFL-CIO (NHPA) (R. Exh. 2). /3/
Section 11 of the Prenegotiation Agreement reflected the following
understanding:
Section 11 Tentative Agreement. When agreement is reached on
the content of any article or section, it shall be typed by the
Employer and initialed by both negotiators indicating tentative
agreement thereto . . . Negotiation of that particular article or
section shall then be considered complete, subject to reopening
only as it applies to other articles or sections or otherwise by
mutual consent . . . .
Substantive negotiations commenced on February 6, 1979. On July 10,
1979, Mr. James Elliott, then Chief Negotiator for the Respondent, and
Mr. William Lucas, the Union's Chief Negotiator, reached agreement on a
grievance procedure (R. Exh. 3). The procedure was designated as
"Article 12 Grievance Procedure." It was typed and initialed as a
"tentative agreement" in accordance with Section 11 of the
Prenegotiation Agreement. Mr. Elliott was replaced by Mr. Jack Remissong
as the Respondent's Chief Negotiator shortly thereafter (Tr. 111-112).
/4/
After Mr. Remissong assumed his new duties, the Respondent again
raised issues concerning the initialed grievance procedure because the
Respondent was dissatisfied with it. This occurred sometime in
September or October of 1979 (Tr. 112). The Respondent admitted that
changes were sought in the grievance procedure because "management
negotiators realized they had made a mistake and attempted to correct it
via various methods of trying to reopen negotiations." (Tr. 150). The
Union refused to reopen or otherwise accede to these requests, and the
parties sought the services of the Federal Mediation and Conciliation
Service (FMCS). Efforts to reach agreement on the issue were not
successful (Tr. 150).
Initial Request for Panel Assistance
On April 22, 1980, the Union requested assistance from the Panel in
resolving a series of impasse issues including the disagreement
concerning the initialed grievance procedure (ALJ Ex. 1). The case was
designated as Case No. 80 FSIP 24. On June 19, 1980, following a Panel
investigation, the Panel instructed the parties to resume negotiations
with mediation if necessary, as the Panel had determined that voluntary
efforts to reach settlement had not been exhausted (ALJ Exh. 2).
In the meantime, during March of 1980, Mr. Walter Pierce became the
Respondent's Labor Relations Officer (Tr. 87). He was formally
designated to serve as Respondent's Alternate Chief Negotiator,
replacing Mr. Remissong on July 11, 1980 (Tr. 143). Following the
Panel's remand of the case, the parties continued to discuss the
grievance procedure issue and other impasse issues. Discussions focused
on agency objections to the initialed grievance procedure and the
reopening question (Tr. 119-120, 127-130, 131-132). A new version of
the grievance procedure proposed by the Respondent was rejected (Tr.
120-121). The FMCS was again utilized, but without results. At one
point in these negotiations the Union did agree to reopen grievance
procedure negotiations on certain limited points deemed critical, but
the Respondent refused (Tr. 120-121). On September 19, 1980, mediation
efforts were terminated (Tr. 132, 154-155). Mr. Pierce testified as
follows concerning negotiations following the Panel's remand:
The issue of the grievance procedure had been discussed at all
times that I was in mediation trying to buy my way in reopening
it, trying to cajole the Union into trading one-on-one
article-for-article, what have you (Tr. 156).
On October 14, 1980, Mr. Pierce wrote to Mr. Lucas and outlined the
Respondent's final position in detail (R. Exh. 4). He stated that the
initialed grievance procedure stemmed from management proposals
submitted by an inexperienced management negotiating team. Mr. Pierce
outlined perceived deficiencies in the initialed grievance procedure,
described the pattern of unsuccessful efforts to resolve the issue, and
noted that the parties had both confirmed the fact that they had reached
an impasse over the matter. /5/ Negotiations following the June 19,
1980 Panel remand were summarized, /6/ and it was proposed that the
grievance procedure again be considered separate from all other issues.
He argued that the Prenegotiation Agreement posed no impediment to
reconsideration, and that the initialed procedure failed to conform to
Section 7121(b)(1) and (2) of the Statute because the initialed
procedure was not fair and simple and did not provide for expeditious
processing of grievances. A new grievance procedure was attached as a
proposed subject for negotiations. Mr. Pierce concluded with the
following warning:
Therefore, if the union does not accept or negotiate on the
attached management proposal regarding the New Procedure, then
management and the union will be without a grievance procedure
required by 5 U.S.C. 7121 for a collective bargaining agreement.
By letter dated November 11, 1980, Mr. Lucas rejected the
Respondent's October 14, 1980 proposal to negotiate the proposed
grievance procedure forwarded with the October 14th letter (R. Exh. 5).
The Union indicated an intent to go to the Panel on issues not resolved,
and insisted that the initialed grievance procedure reflected that this
phase of the negotiations had been concluded. The Respondent's version
of prior negotiations on the issue were rejected as inaccurate in large
measure. In particular, the Union repudiated the Respondent's
interpretation of the Prenegotiation Agreement as permitting Respondent
to reopen negotiations on the grievance procedure issue. Mr. Lucas
indicated that he would not request Panel assistance on this issue
because the Respondent had initialed the grievance procedure article.
Second Request for Panel Assistance Initiated
On December 1, 1980, the Union filed a second request for Panel
assistance (R. Exh. 1). The Union identified the articles which the
parties had not yet resolved and initialed. /7/ The Union explained
that the grievance procedure matter was not listed because the Union was
of the opinion that the grievance procedure article had been adopted by
the parties. The request included the following language:
The Union considers that as a result of extensive discussions
and an exchange of letters between the parties that the Grievance
Procedure matter has been concluded and it has not been included
in this request.
Because of the long period of time which has been consumed in
negotiations, and the lack of adequate protection of our members
of the bargaining unit due to absence of a contract, the Union
strongly urges the Panel to expedite the implementation of this
contract.
In order to accomplish this desirable objective the Union
proposes that the Agency be directed to forward to the
Administrator all Articles on which tentative agreement has been
reached. The remaining articles would be examined by a
factfinder. The Union agrees to accept the recommendations of the
factfinder in the interest of timely implementation of this long
overdue Agreement.
The Request then outlined the dates on which negotiation and
mediation sessions were held, including dates on which the grievance
procedure issue was a topic of concern (R. Exh. 1, and R. Exh. 4).
Following receipt of this request, Mr. Jonathan Kaufman, a Panel
investigator, wrote to the parties and advised that the case was being
docketed as Case No. 81 FSIP 23, and that Mr. Kaufman would be serving
as the Panel's investigator (Tr. 163-164).
Mr. Kaufman spoke to Mr. Pierce about prior negotiations and inquired
concerning management's position (Tr. 164). Mr. Pierce met with Mr.
Kaufman as requested and supplied to him a collection of documents
relating to prior negotiations. A four page summary of Mr. Pierce's
submission dated December 17, 1980, and entitled "Documents Regarding
Case No. 81 FSIP 23," is included in the record as G.C. Exh. 8. With
respect to the grievance procedure issue Mr. Pierce noted that, "the
Employer asserts that the matters and issues involved with this Article
are still obviously unresolved." Mr. Pierce's submission to Mr. Kaufman
included a copy of Mr. Pierce's October 14, 1980 letter to Mr. Lucas (R.
Exh. 4), with a statement that the Respondent's position concerning the
grievance procedure was set forth in the letter. He also enclosed a
copy of Mr. Lucas' November 11, 1980 reply to the October 14th letter, a
copy of the initialed grievance procedure (R. Exh. 3), the first request
for Panel assistance (ALJ Exh. 1), and a copy of the Panel's refusal to
exercise jurisdiction over the first request (ALJ Exh. 2). /8/
Mr. Pierce acknowledged that he included all of the foregoing
"documents relating to the grievance procedure simply because Mr. Lucas
had specifically indicated in his (second) request for assistance that
it (the grievance procedure issue) was not being included on the basis
that the Union considered the matter to have been concluded" (Tr. 164).
Mr. Pierce's submission made it clear that Respondent's proposed
grievance procedure should be adopted; and that the Prenegotiation
Agreement did not preclude consideration of Respondent's new proposals
on the matter (Tr. 198-199). He admitted that his October 14, 1980
letter stated the position that he wanted the Panel to consider (Tr.
199, 206-207). At another point he stated that the grievance procedure
had not been resolved, and that this is what he was telling the Panel
(Tr. 200). /9/
The Union replied to the Respondent's December 17, 1980 submission of
materials by letter dated January 2, 1981 addressed to Mr. Kaufman by
Mr. Lucas (R. Exh. 6, Tr. 168). Mr. Lucas recognized that the grievance
procedure issue was not actually resolved, and that there was a question
of whether it was properly classified as an impasse issue. Mr. Lucas
then responded to points raised in Mr. Pierce's October 14, 1980 letter
to Mr. Lucas insofar as it purported to set forth Respondent's position
on the grievance procedure question. He noted that the key element was
whether or not the Respondent had a right to reopen negotiations under
the terms of the Prenegotiation Agreement, and argued against
Respondent's attempt to reopen.
Mr. Lucas then acknowledged that it would be appropriate for the
Panel to resolve the grievance procedure issue, and that the effect to
be given the Prenegotiation Agreement was the crux of the matter. He
stated:
Based on the above information the Union believes that the
matters raised by the Employer related to the Grievance Procedure
should not be considered as impasse issues. The only significant
issue concerns the interpretation of the Prenegotiation Agreement.
The history of this issue reveals that it is a desperate measure
on the part of the Employer to force the Union into additional
negotiations which would prolong the already lengthy process.
If the Panel decided to assert jurisdiction in this matter, the
Union desires that a complete record be established of the only
significant issue in dispute viz. The requirement for mutual
consent to reopen Articles on which tentative agreement has been
reached. The Union believes that this can best be accomplished
through the procedures of a factfinding hearing during which the
Employer position including the various assertions made by Mr.
Pierce can be examined in detail (R. Exh. 6). /10/
By letter dated January 13, 1981, the Acting Executive Director of
the Panel wrote to Mr. Lucas and Mr. Pierce and advised that the matter
would be resolved in accordance with the provisions of Section
2471.6(a)(2) of the Panel's Regulations (5 C.F.R. 2471.6(a)(2)). He
requested each to submit "its written package of proposals on the issues
at impasse concerning the grievance procedure, adverse actions, and
actions due to unacceptable performance"; and "a written statement of
position with supporting evidence and argument on the issues." (G.C.
Exh. 7). /11/ The letter also provided for the filing of rebuttal
briefs, and noted that "(a)fter considering the entire record in this
case, the Panel shall take whatever action it deems appropriate to
resolve the impasse."
The Union's "Position on Issues at Impasse" was filed with the Panel
on January 27, 1981 (R. Exh. 8). After noting that the Respondent's
December 17, 1980 submission had reflected a desire to expand the list
of impasse articles to include the initialed grievance procedure, the
Union outlined the history of negotiations relating to the grievance
procedure. In essence, the Union urged the Panel to adopt the initialed
grievance procedure. /12/
On January 28, 1981, Mr. Pierce transmitted a statement of position
to the Panel on behalf of the Respondent (R. Exh. 7). Mr. Pierce's
position was a reiteration of the one taken in his December 17, 1980
submission wherein he delved into the merits of the grievance procedure
issue, and indicated that it had not been resolved by the initialing
process. He wrote:
The employer hereby incorporates the information contained
throughout that December 17, 1980 brief in order to avoid being
repetitious, and relies upon it as the basis of the Employer's
submission in response to the Panel's direction (R. Exh. 7).
Specific reference was made to the new proposed grievance procedure
article offered by the Respondent with Respondent's earlier October 14,
1980 letter to Mr. Lucas. This was offered as an alternative to the
initialed grievance procedure. The effect of the Respondent's January
28, 1981 statement of position was characterized by counsel for the
Respondent as follows:
The Respondent's January 28, 1981 response . . . to the Panel
incorporated by reference the material concerning the grievance
procedure which had been provided previously to Panel Investigator
Kaufman primary of which (sic) was Respondent's October 14, 1980
letter (Respondent's Brief at 7).
In a rebuttal brief filed on February 6, 1981 by the Union, Mr. Lucas
again urges the Panel to accept the initialed grievance procedure
because of alleged bad faith efforts on the part of the Respondent to
modify the initialed grievance procedure (R. Exh. 10). In this brief
the Union requests the assistance of the Panel in resolving this and
other issues. With respect to the grievance procedure issue Mr. Lucas
states:
The Union's position with respect to this Article is that the
July 10, 1979 Article which has received tentative agreement by
the parties is the approved agreement and should be adopted as it
stands . . . (R. Exh. 10 at 17).
The Union's rebuttal brief then goes into a discussion of reasons why
the initialed procedure should be approved (R. Exh. 10 at 17-18 and 22).
Mr. Pierce's rebuttal brief was submitted to the Panel on February 9,
1981 (R. Exh. 9). After initially acknowledging that Case No. 81 FSIP
23 involved the grievance procedure impasse issue, Mr. Pierce then
endeavored to deny that the Respondent had raised the grievance
procedure matter as an issue for resolution in the case. However, he
indicated that the union has not waivered from insistence upon the
initialed grievance procedure, and that the Respondent has been
unequivocally set against it, and in favor of the grievance procedure
submitted with Respondent's October 14, 1980 letter to Mr. Lucas.
Again, the Respondent urged a rationale for adoption of the alternative
grievance procedure proposed by the Respondent on October 14, 1980, as
distinct from the initialed grievance procedure.
Issuance of April 30, 1981 Panel Decision and Order
The Panel's April 30, 1981 Decision and Order required the parties to
adopt the July 10, 1979 initialed grievance procedure with inclusion of
a provision allowing either party to reopen this article after one year
for the purpose of negotiating changes in it (G.C. Exh. 5). /13/
The Panel noted that the parties had become "deadlocked during
negotiations over issues concerning the grievance procedure, adverse
actions, actions due to unacceptable performance and classification
survey procedures," and that after declining jurisdiction on the latter
issue, "the Panel determined that the remaining issues should be
resolved pursuant to written submissions followed by whatever action the
Panel deemed appropriate."
The Panel phrased the grievance procedure issue in the following
terms:
The parties are in dispute over (1) whether they are bound by
the grievance procedure language which was initialed early in the
negotiations and (2), if not, which procedure offered by the
parties is more appropriate.
The Panel traced the bargaining history of the parties, noting that
it played "a prominent role in this issue," and analyzed the provisions
of the initialed grievance procedure. The Respondent's rejection of the
initialed procedure was considered, as was the Panel's initial
consideration of the issue and the Panel's direction to resume
negotiations. Subsequent negotiations by the parties in response to the
initial Panel decision were noted as was the ultimate inability of the
parties to reach agreement on the grievance procedure question.
Specific proposals offered to the Panel by the parties were described
and evaluated by the Panel. The positions of the parties were
considered in detail, particularly the position of the Respondent with
regard to the merits of the initialed grievance procedure, vis a vis
those of the grievance procedure proposed by the Respondent.
The Panel noted that the initialing of the grievance procedure on
July 10, 1979 was accomplished in accordance with the Prenegotiation
Agreement, and further that the record before the Panel indicated that
the Respondent made no new proposal on the subject until January of
1980. The Panel noted that the Union position on the subject had not
varied since initialing of the grievance procedure. In concluding that
the parties should adopt the language of the initialed grievance
procedure in their agreement, the Panel stated:
This does not mean, however, that we endorse the substance of
this provision. The Employer, in our view, has raised some valid
concerns regarding the cumbersome nature of such a procedure.
Accordingly, the agreement should be amended to allow either party
to reopen the grievance procedure article after one year from the
effective date of the agreement for the express purpose of
negotiating changes in it. Of course, the parties may agree to
negotiate sooner.
On May 6, 1981, Mr. Pierce wrote to the Panel and stated that the
Respondent would refuse to comply with the Panel's determination with
respect to the grievance procedure issue (G.C. Exh. 6). /14/ He stated:
With regard to that part of the Panel's order which constituted
action extending beyond the request for assistance and which
purported to direct the parties to adopt the 'agreed-to language'
of the July 10, 1979 grievance procedure . . . the Employer
maintains, consistent with the reasons and position contained in
its October 14, 1980 letter to the Union and reasserted before the
Panel that the Employer 'cannot and will not implement that
Tentative Procedure.'
Proof was adduced during the hearing that the Respondent had not
agreed to accept the initialed grievance procedure (Tr. 117-118).
Discussion and Conclusions
The complaint alleges that Respondent's refusal to comply with the
Panel's April 30, 1981 Order was violative of Section 7119(c)(5)(C) of
the Statute, and further that this conduct constituted unfair labor
practices within the meaning of Sections 7116(a)(1), (5), (6) and (8) of
the Statute.
Section 7119(c)(5)(C) provides:
(C) Notice of any final action of the Panel under this Section
shall be promptly served upon the parties, and the action shall be
binding on such parties during the term of the agreement, unless
the parties agree otherwise.
Sections 7116(a)(1), (5), (6) and (8) make it an unfair labor
practice to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under the Statute; to refuse to
consult or negotiate in good faith with an agency as required by the
Statute; to fail or refuse to cooperate in impasse decisions as
required by the Statute; and to otherwise fail or refuse to comply with
any provision of the Statute.
The Statute does not sanction Authority review of a Panel Decision
and Order except through unfair labor practice procedures initiated by
the party alleging noncompliance with a Panel Decision and Order. State
of New York, Division of Military and Naval Affairs and New York
Council, Association of Civilian Technicians, Inc., 2 FLRA No. 20
(December 5, 1979); State of California National Guard, Sacramento,
California, 2 FLRA No. 21 (December 5, 1979); California National
Guard, Fresno Air National Guard Base, Fresno, California, 2 FLRA No. 22
(December 5, 1979); State of Nevada National Guard, 7 FLRA No. 37
(November 19, 1981). Review is appropriate in this case since the Panel
Decision and Order is before the Authority in the context of an unfair
labor practice proceeding. There is no factual issue concerning the
Respondent's failure to comply with the Panel's Decision and Order.
However, the Respondent argues that there was no basis for Panel
jurisdiction.
The first ground relied upon to establish a lack of jurisdiction
rests upon an assertion that there was no specific request filed with
the Panel to resolve an impasse concerning the initialed grievance
procedure.
Section 7119(b) of the Statute provides in part:
(b) If voluntary arrangements, including the services of the
Federal Mediation and Conciliation Service or any other
third-party mediation, fail to resolve a negotiation impasse -
(1) either party may request the Federal Service Impasses Panel
to consider the matter . . . .
Section 7119(c)(5)(A) of the Statute provides in pertinent part:
(5)(A) The Panel or its designee shall promptly investigate any
impasse presented to it under subsection (b) of this Section . . .
.
Section 2471.1(a) of the Authority's Regulations (5 C.F.R.
2471.1(a)), provides:
If voluntary arrangements, including the services of the
Federal Mediation and Conciliation Service or any other
third-party mediation, fail to resolve a negotiation impasse:
(a) Either party, or the parties jointly, may request the Panel
to consider the matter by filing a request as hereinafter provided
. . . .
Section 2471.2 (5 C.F.R. 2471.2) reflects that copies of a "request
form" may be obtained from the Panel "for use by the parties in filing a
request with the Panel for consideration of an impasse."
Section 2471.3 (5 C.F.R. 2471.3) sets forth that a request must be in
writing; identify the parties, and individuals authorized to act on
their behalf; provide a "statement of issues at impasse," and a summary
of the positions of the initiating party with respect to the issues;
and the number, length, and dates of negotiation and mediation sessions
held, including the nature and extent of all other voluntary
arrangements utilized.
Counsel for the Respondent argues that the Respondent's December 1,
1980 request for assistance did not identify the initialed grievance
procedure as an area for Panel consideration, and that this failure
operates to deny the Panel of any jurisdiction over the issue. This
argument does not have merit. Section 7119(b)(1) provides that either
party may request the Panel "to consider the matter," after making
voluntary efforts to resolve a dispute and after utilizing mediation.
Section 2471.1(a) of the Regulations tracks this language by giving
either party the right to request Panel consideration of "the matter."
The Panel's investigatory authority (provided in Section 7119(c)(5)(A))
is based upon the request of a party to consider a "matter," rather than
any specific impasse issue. This view is strengthened by the fact that
the Panel is given authority under Section 7119(c)(5)(A) to "investigate
any impasse presented to it" under Section 7119(b), and not just those
technically identified as impasse issues in an initial request.
It is very clear that the dispute relating to the initialed grievance
procedure was presented to the Panel by the Union and/or the Respondent.
The initial request for Panel assistance filed on December 1, 1980
alluded to the grievance procedure issue, and stated that the Union felt
that it had been concluded. The request proposed "that the agency be
directed to forward to the Administrator all articles on which tentative
agreement has been reached." Specific reference was made to negotiation
and mediation sessions wherein the grievance procedure was discussed.
The Union's statement of position on the initialed grievance procedure,
the argument that the Respondent be directed to accede to the Union
position, and reference to the sessions wherein the subject was a topic
of concern, all indicate that the matter brought to the attention of the
Panel by the Union carried with it key elements of the impasse
pertaining to the initialed grievance procedure.
Mr. Pierce's December 17, 1980 submission to the Panel picks up on
the grievance procedure issue by noting that "the Employer asserts that
the matters and issues involved with this Article are still obviously
unresolved." Furthermore, Mr. Pierce spells out a detailed position in
opposition to his December 17, 1980 submission.
Regardless of whether or not the Union technically identified the
grievance procedure question as an impasse issue in the Union's January
2, 1981 letter to the Panel, the Union did nevertheless, pose the
grievance procedure issue by repeating the Union's insistence on the
initialed grievance procedure, and by repudiating the Respondent's
effort to obtain approval of a different procedure proposed by the
Respondent.
In response to the Panel's January 13, 1981 request for grievance
procedure proposals, and statements of position relating to this subject
and other impasse issues, the Union again urged adoption of the
initialed grievance procedure, and the Respondent relied upon material
made available to the Panel by Mr. Pierce on December 17, 1980,
particularly the Respondent's insistence upon the grievance procedure
article previously proposed by Mr. Pierce as an alternative to the
initialed grievance procedure.
In Mr. Pierce's January 28, 1981 statement of position to the Panel,
he again urged adoption of Respondent's proposed grievance procedure,
and indicated that this issue had not been resolved by the parties.
The Union's February 6, 1981 rebuttal brief urged the Panel to adopt
the initialed grievance procedure, and discussed the reason for the
Union position. Mr. Pierce's February 9, 1981 rebuttal brief,
acknowledged, and at the same time attempted to deny, that the grievance
procedure element constituted an impasse issue. However, the net effect
of this document clearly delineates a rationale for concluding that the
parties had reached an impasse as to which of the two grievance
procedures should be adopted. Again Mr. Pierce urges the Panel to adopt
the grievance procedure proposed by Mr. Pierce. At no point does he
interpose objection to the Panel's consideration of this issue. In fact
it is clear that he anticipated the possibility of some benefit on this
point from the Panel's deliberations.
The Respondent's argument assumes that an initial request for
assistance must specifically identify an issue as an impasse issue, and
further that in the absence of such identification, the Panel is
precluded from discovering and resolving real impasse issues separating
the parties. Neither the statute nor the regulations mandate such a
limited view of the Panel's authority. A Panel request must be
considered in its entirety, together with other documents submitted to
the Panel, and Panel factfinding, to determine whether or not an issue
has been properly posed for resolution. The initial request for
assistance, required by Section 7119(b)(1) of the Statute, and Section
2471.1(a) of the regulations, operates to confer upon the Panel,
jurisdiction to consider a "matter," as distinct from specifically
defined impasse issues. To hold otherwise would operate to render
useless Panel procedures designed to surface and then sharpen genuine
impasse issues prior to resolution by the Panel.
In this case the Panel indicated that it was proceeding under the
provisions of Section 2471.6(a)(2) of the regulations (5 C.F.R.
2471.6(a)(2)). It provides:
(a) Upon receipt of a request for consideration of an impasse,
the Panel or its designee will promptly conduct an investigation,
consulting when necessary with the parties and with any mediation
service utilized. After due consideration, the Panel shall
either:
. . . .
(2) Recommend to the parties procedure, including but not
limited to arbitration, for the resolution of the impasse and/or
assist them in resolving the impasse through whatever methods and
procedures the Panel considers appropriate.
By proceeding under the provisions of Section 2471.6(a)(2) of the
Regulations the Panel was following the mandate set forth in Section
7119(c)(5)(A) of the Statute, that is it was investigating "any impasse
presented to it" in a "matter" referred to the Panel by a party under
the provisions of Section 7119(b) of the Statute.
The facts indicate that the controversy concerning the grievance
procedure surfaced in the Union's December 1, 1980 request for Panel
assistance regardless of the Union's initial disclaimer that the
grievance procedure question was not being raised by the Union. If this
were not the case, the result would not be different, since an
examination of documentary evidence discloses eagerness on the part of
Mr. Pierce to invoke Panel jurisdiction over the grievance procedure
issue. That is, the Respondent also effectively raised the subject as
an issue, despite some later incidental assertions that the Respondent
did not intend to broach the topic. The Respondent's contention that
the subject was not properly raised as an issue must therefore be
rejected in the light of strong evidence that the grievance procedure
issue was raised by the parties for Panel consideration and resolution.
Counsel for the Respondent contends that the facts of this case do
not support a finding that the parties reached an impasse on the
grievance procedure issue. This argument must also be rejected.
Section 2470.2(e) of the Regulations defines the term "impasse" as
follows:
(e) the term impasse means that point in the negotiation of
conditions of employment at which the parties are unable to reach
agreement, notwithstanding their efforts to do so by direct
negotiations and by the use of mediation or other voluntary
arrangements for settlement.
The record here shows that the parties did agree initially concerning
the provisions of a grievance procedure, but that the Respondent, after
changing negotiators, withdrew from the agreement and interposed a
completely new grievance procedure for consideration. Thereafter,
efforts to resolve the disagreement over the content of a negotiated
grievance procedure proved to be futile, despite the use of mediation.
The fact that the Union considered the initialed grievance procedure a
binding agreement does not attenuate the nature of the impasse. It was
the Respondent that generated the circumstances which caused the Union
to advance this argument and it was the Respondent's withdrawal from the
tentative agreement that placed the parties into a posture of
disagreement over the provisions of the negotiated grievance procedure.
The fact remains that continued negotiations over conditions of
employment relating to the grievance procedure ensued following the
Panel's June 19, 1980 instruction to resume negotiations. /15/ Despite
mediation the parties reached a point in these negotiations, at which
the parties were unable to reach agreement on the grievance procedure
issue. These circumstances constituted an "impasse" within the meaning
of Section 2470.2(e) of the Regulations.
Counsel representing the Respondent also attacks the Panel Decision
and Order on the ground that the initialed grievance procedure is
contrary to Sections 7121(b)(1) and (2) of the Statute. These
provisions provide that a negotiated grievance procedure must be "fair
and simple," and "provide for expeditious processing" of grievances.
Respondent's argument relies heavily on a statement in the April 30,
1981 Panel Decision and Order to the effect that the, "The Employer . .
. has raised some valid concerns regarding the cumbersome nature of such
a procedure." (G.C. Exh. 5 at page 7). This argument has no merit as it
amounts to a mere disagreement with the Panel's disposition. There was
no showing that procedure adopted by the Panel was not "fair and
simple," or that it failed to "provide for expeditious processing" of
grievances. It is obvious that grievance procedures vary, and that the
Statute does not prescribe any specific grievance procedure or
procedures. The statutory provisions relied upon provide broad general
criteria for the guidance of those engaged in collective bargaining.
These broad standards may be met in different ways by negotiators. For
purposes of this case it is sufficient to say that the Panel statement
relied upon may not be construed as a basis for a finding that there was
a failure to comply with Section 7121(b)(1) and (2) of the Statute.
There was no showing that the initialed grievance procedure adopted was
otherwise contrary to law.
Counsel for the Respondent contends that the Panel's April 30, 1981
Decision and Order names the "National Aeronautics and Space
Administration" as the Employer subject to the Panel's Order, and that
the complaint as amended at the hearing identified the "National
Aeronautics and Space Administration (NASA) Headquarters" as the
Respondent. /16/ It is argued that the Panel Decision and Order directs
an "agency," within the meaning of Section 7103(a)(3) of the Statute to
comply with the Panel Order, and that the complaint alleges unfair labor
practices on the part of an "activity" within the meaning of Section
2421.4 of the Regulations (5 C.F.R. 2421.4). Counsel claims that the
National Aeronautics and Space Administration as an agency was removed
from the case at the time of the amendment of the complaint.
The Panel Decision and Order indicates that the Employer in Case No.
81 FSIP 23 was identified as the "National Aeronautics and Space
Administration, Washington, D.C.," and further, a careful reading of the
Decision and Order reflects that the Employer named therein was in fact
the Headquarters element of the National Aeronautics and Space
Administration located in the District of Columbia. It is obvious that
individuals representing the Employer in Case No. 81 FSIP 23, were
speaking on behalf of the Headquarters element of the agency. Any other
construction of the Panel's Decision and Order is inconceivable in the
light of terminology utilized by the Panel and by the Respondent in
documents submitted to the Panel.
In summary, the Decision and Order reflects that the Panel was in
fact directing the Headquarters element of the agency to comply. The
Employer is specifically identified by the Panel as the "National
Aeronautics and Space Administration, Washington, D.C.," and the record
herein shows that the Headquarters element is in fact located in
Washington, D.C. These factors combine to indicate that the Respondent
named in the complaint, and the Employer identified in the Panel's
Decision and Order are not separate entities as claimed, but are instead
one and the same organizational entities.
Prior to the hearing counsel representing the Respondent moved to
dismiss the complaint on the ground that the charge filed was executed
by Mr. Richard E. Storm, President of the Union, and that Mr. Storm was
a "management official" within the meaning of Section 7103(a)(2) of the
Statute. /17/ The motion to dismiss was denied by the undersigned prior
to hearing in a November 13, 1981 Decision and order on prehearing
motions (G.C. Exh. 1(z)). The motion to dismiss was renewed in
Respondent's post-hearing brief.
Counsel representing the Respondent contends that as a "management
official," Mr. Storm was precluded from acting on behalf of the Union by
reason of Section 7120(e) of the Statute, and that since he did not
specifically sign the charge in an individual capacity, no valid charge
supports the issuance of the complaint. /18/
After reconsideration of the motion it must be again concluded that
no basis for the motion to dismiss has been presented. /19/ Section
7118(a)(1) of the Statute provides in part:
(a)(1) If any agency or labor organization is charged by any
person with having engaged in or engaging in an unfair labor
practice, the General Counsel shall investigate the charge and may
issue and cause to be served upon the agency or labor organization
a complaint . . . .
Section 7103(a)(1) of the Statute defines the word "person" as, "an
individual, labor organization, or agency." The Authority's Rules and
Regulations incorporate this same language to define "person." 5 C.F.R.
2421.2(a). Section 2423.3 of the Regulations (5 C.F.R. 2423.4)
provides:
An activity, agency or labor organization may be charged by any
person with having engaged in or engaging in any unfair labor
practice prohibited under 5 U.S.C. 7116.
Section 7120(e) of the Statute provides:
(e) This chapter does not authorize participation in the
management of a labor organization or acting as a representative
of a labor organization by a management official, a supervisor, or
a confidential employee, except as specifically provided in this
chapter, or by an employee if the participation or activity would
result in a conflict or apparent conflict of interest or would
otherwise be incompatible with law or with the official duties of
the employee. /20/
It is clear that reliance upon Section 7120(e) in the manner outlined
is misplaced. In the private sector an employer may not challenge the
authority of a particular individual to act on behalf of a labor
organization in filing charges of unfair labor practices because a
charge may be filed by any person or labor organization, and because a
charge is merely a means whereby action on the part of the National
Labor Relations Board is instituted, and is not a formal pleading filed
by a party to the proceeding. General Furniture Manufacturing, 26
N.L.R.B. 74, 6 LRRM 557 (1940); Texas Textile Mills, 58 N.L.R.B. 352,
15 LRRM 41 (1944); Blount Farmers Cooperative, Inc., 150 N.L.R.B. 1681,
58 LRRM 1321 (1965). For purposes of this discussion the statutory
scheme found in the private sector is nearly identical to that developed
under the Federal Service Labor-Management Relations Statute.
The Authority has also held that a charge is not a pleading and that
it merely serves to initiate an investigation by the Authority. Defense
Logistics Agency, 5 FLRA No. 21, (February 12, 1981). The Authority has
also adopted a broad interpretation of the phrase "any person," as used
in Section 7103(a)(1) of the Statute. National Army and Air Technicians
Association, Local 371, 7 FLRA No. 22 (October 30, 1981); /21/ National
Treasury Employees Union and National Treasury Employees Union, Chapter
53, 6 FLRA No. 37 (1981). Although not controlling here, case law
authority developed under Executive Order 11491, established the rule
that a contention that no pre-complaint charge had been filed as
required by the Assistant Secretary's Regulations could not be raised
after the issuance of a notice of hearing, as the orderly processing of
unfair labor practice complaints required that such pre-complaint
defects be raised prior to the issuance of a notice of hearing.
Veterans Administration Hospital, Charleston, South Carolina, A/SLMR No.
87, 1 A/SLMR 400 (August 3, 1971); New York Army and Air National
Guard, Albany, New York, A/SLMR No. 441, 4 A/SLMR 681 (September 30,
1974). These cases are of interest in that they indicate the
reluctance, under Executive Order law, to invalidate complaints even in
the absence of a formal charge, if such defects were not first raised
prior to issuance of a notice of hearing.
Taking into consideration the fact that a charge may be filed by "any
person"; the fact that the charge herein was filed by a "person" within
the meaning of the Statute and pertinent regulations; and the fact that
a charge is not a formal pleading, but merely serves to provide a basis
for an Authority investigation into unfair labor practices, it is
concluded that allegations that a Union official signing a charge is a
"management official" may not be interposed to provide a basis for a
motion to dismiss a complaint. /22/
Counsel representing the Respondent contends that the complaint
should be dismissed on the ground that the General Counsel has failed to
prove that the AFTE, as distinct from the NHPA, filed the Charge and
Amended Charge, and represents employees in the bargaining unit. This
argument must also be rejected. The record discloses that the AFTE was
certified as the exclusive representative on May 15, 1970, and that an
amendment of certification petition was pending as of the date of the
hearing. It was also conclusively established that the AFTE and NHPA
were, and are, one and the same, and that the NHPA designation has been
adopted by the AFTE. The NHPA designation has been utilized by the AFTE
and the Respondent although the certification of representative
continues to identify the Union as the AFTE. In short, the official
designation of the Union is AFTE, although the name NHPA has been
extensively used.
The complaint specifically alleges that AFTE was the name used at the
time of certification, and that there is currently pending a petition to
change the name AFTE to NHPA. This allegation is tantamount to an
allegation that AFTE and NHPA are in fact one and the same. It is
immaterial that facts concerning the name of the Union might have been
pleaded in a different way. It is sufficient that the complaint
adequately apprised the Respondent of the circumstances surrounding the
use of the two names.
The record is not confusing or contradictory on this issue as is
alleged by counsel representing the Respondent. The proof was clear and
certain concerning the relationship of the two names, and no benefit
should inure to the Respondent as a result of the fact that the name
change has not been entirely effectuated. Respondent's contention that
only the NHPA, and not the AFTE, is recognized by the Respondent as the
exclusive bargaining representative is a specious "play on words."
Based upon the record it is concluded that the allegations of fact in
the complaint, as amended, have been established by a preponderance of
the evidence, and that the Respondent's actions in failing and refusing
to cooperate in and comply with the Federal Service Impasses Panel
Decision and Order dated April 30, 1981, violated Section 7116(a)(6) of
the Statute. This conduct necessarily tended to interfere with,
restrain, or coerce employees in the exercise of their rights assured by
the Statute, and thus violated Section 7116(a)(1) as well. In view of
this finding it is unnecessary to pass upon whether the Respondent's
conduct also violated Sections 7116(a)(5) and (8). State of
California's National Guard, 8 FLRA No. 11 (February 4, 1982).
Accordingly, I recommend that the Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the National Aeronautics and Space Administration, Headquarters,
Washington, D.C. shall:
1. Cease and desist from:
(a) Failing or refusing to cooperate and comply with the April
30, 1981 Decision and Order issued by the Federal Service Impasses
Panel in Case No. 81 FSIP 23.
(b) In any like or related manner, interfering with,
restraining, or coercing 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) Cooperate and comply with the April 30, 1981 Decision and
Order of the Federal Service Impasses Panel issued in Case No. 81
FSIP 23, by adopting the grievance procedure article initialed by
the parties on July 10, 1979, and by including therein a provision
allowing either party to reopen the grievance procedure article
after one year from the effective date of the agreement for the
purpose of negotiating changes in the grievance procedure.
(b) Post at its facilities wherever bargaining unit employees
are located, copies of the attached Notice on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by the Administrator, National Aeronautics and
Space Administration, and shall be posted and maintained for 60
consecutive days in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. The Administrator shall take reasonable steps to insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) 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.
LOUIS SCALZO
Administrative Law Judge
Dated: March 4, 1982
Washington, D.C.
APPENDIX
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 or refuse to cooperate and comply with the April 30,
1981 Decision and Order issued by the Federal Service Impasses Panel in
Case No. 81 FSIP 23. 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. WE WILL cooperate and comply with the April 30, 1981 Decision
and Order of the Federal Service Impasses Panel issued in Case No. 81
FSIP 23, by adopting the grievance procedure article initialed by the
parties on July 10, 1979, and by including therein a provision allowing
either party to reopen the grievance procedure article after one year
from the effective date of the agreement for the purpose of negotiating
changes in the grievance procedure.
(Agency or 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 or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region III, Federal Labor Regulations Authority, whose address is: 1111
18th Street, NW., Suite 700, Washington, D.C. 20036, and whose
telephone number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The complaint filed refers to the Respondent as the "National
Aeronautics and Space Administration." In the initial answer, motion
papers, and other documents filed herein by the Respondent, the
Respondent is designated as the "National Aeronautics and Space
Administration, Headquarters," and the address of the "National
Aeronautics and Space Administration, Headquarters," is referred to as
being located at 600 Independence Avenue, S.W., Washington, D.C. 20546.
It also appeared that in both the original and first amended charge
filed, the Respondent was identified as the "National Aeronautics and
Space Administration (NASA), Headquarters, 600 Independence Avenue,
Washington, D.C. 20546."
At the commencement of the hearing counsel for the General Counsel
moved to amend the complaint so as to more accurately identify the
Respondent as "National Aeronautics and Space Administration,
Headquarters, Washington, D.C." (Tr. 12). In the absence of evidence of
prejudice shown by counsel for the Respondent; and since the amendment
merely conforms the complaint to a more appropriate designation of the
Respondent as disclosed in the charge and first amended charge, and as
disclosed by counsel representing the Respondent; the motion to amend
was granted under authority provided in 5 C.F.R. 2423.12(d).
/2/ Counsel representing the Respondent moved to correct the
transcript as follows:
Page Line Change
3 13 Add "84" to the right column 3 21 Add "212-214" to the right
column
131 21 "1989" to "1980"
163 23 "ad" to "as"
187 9 add "return" before "letter"
190 8 "f" to "5"
197 6 "po-tion" to "portion"
199 17 "through" to "threw"
204 18 "247.16(a)" to "2471.6(a)"
205 1 "7919" to "7119"
205 2 "7919" to "7119"
210 3 "useless to "ULP"
The motion to correct is granted. The following additional
corrections are also made in the hearing transcript:
Page Line Change
11 4 "notify" to "modify"
17 14 "read" to "rule"
92 16 "the amended" to "you suggest that the amendment"
92 17 "that tantamounts" to "that is tantamount"
92 18 "that simple" to "that a simple"
92 18 "tact" to "tack"
104 21 "see your" to "see that your"
134 11 "wored" to "worked"
134 15 "should" to "it should"
135 22 "thee" to "there"
138 7 "procedureal" to "procedurally"
139 7 "in" to "on"
146 23 add "of" before "the"
153 2 add "have" before "got"
187 25 "tracts" to "tracks"
188 7 "complext" to "complex"
188 10 "might" to "to"
217 15 "elude" to "allude"
/3/ NHPA, a name informally adopted to reflect the growth of AFTE,
was merely another name used to identify the Charging Party. The record
disclosed that on May 15, 1970, the Charging Party was certified as the
exclusive representative of a bargaining unit consisting of "(a)ll full
time classified scientists and engineers in NASA class codes 200, 700,
and 900, employed by NASA Headquarters in the greater Washington, D.C.
area, including the Germantown, Maryland location, excluding management
officials, supervisors, supergrade (GS-16 and above) employees, and
those in excepted positions." (G.C. Exh. 2).
On February 19, 1981, an amendment of certification petition was
filed by the Respondent to amend the unit description and to formally
change the name of the Charging Party from AFTE to NHPA (G.C. Exh. 3).
In the petition, the Respondent, through Mr. Walter Pierce, Labor
Relations Officer, acknowledged that since the date of original
certification, AFTE "has adopted the style NASA Headquarters
Professional Association, and its national body . . . changed its name
to International Federation of Professional and Technical Engineers."
During the course of the hearing Respondent's counsel stipulated that
the Respondent has dealt with the Charging Party as the NHPA, and
further that the Authority has not yet ruled on the name change proposed
in the Respondent's amendment of certificate petition (Tr. 55-57).
In summary, it was conclusively established that the Charging Party
designated in the complaint as the AFTE, and in the Certification of
Representative as the AFTE, is one and the same as the labor
organization referred to as the NHPA. Further, the designation of the
Charging Party in the complaint as the AFTE is otherwise appropriate as
an adequate description of the Charging Party in the absence of a formal
change in the Certification of Representation.
/4/ Mr. Elliott retired in August of 1979 (Tr. 109).
/5/ Mr. Pierce noted that the Union's April 22, 1980 request for
Panel assistance indicated that an impasse issue on this point existed
and further that "management confirmed the fact with its response." (R.
Exh. 4 at 2).
/6/ During these negotiations the parties did resolve other impasse
issues not related to the grievance procedure question.
/7/ The three articles were: (1) Actions Due to Unacceptable
Performance, (2) Adverse Actions, and (3) Classification Survey
Procedures.
/8/ A copy of the submission was served on the Union (Tr. 165).
/9/ Interestingly, counsel for Respondent notes in his post-hearing
brief: "(T)he Respondent particularly contested the Union's statement
that 'the Grievance Procedure matter has been concluded' by asserting
'that the matters and issues involved with this Article are still
obviously unresolved' (G.C. Exh. 8, p. 1 at Article 12 item 1)."
(Respondent's brief at 6).
/10/ Respondent's post-hearing brief repeats the first sentence of
the first paragraph of this quote, and urges it as authority for the
contention that the grievance procedure was not raised as an issue by
the Union; however, it is clear from the language quoted above, that
regardless of terminology used, the Union perceived a serious
disagreement relating to the initialed grievance procedure.
/11/ The issue concerning classification survey procedures was
omitted by the Panel because the Respondent argued that it had no duty
to bargain over this issue and because the Union had filed a
negotiability appeal relating to this phase of the matter.
/12/ Although not relevant here, the Union also outlined positions
concerning other articles.
/13/ The parties were also ordered to adopt the Respondent's proposal
on adverse actions with coverage expanded to include suspensions of more
than 14 days, and the Respondent's proposal on actions based on
unacceptable performance. These elements of the Decision and Order are
not in issue.
/14/ Mr. Pierce indicated that other portions of the Decision and
Order would be honored.
/15/ However characterized by the Respondent or by the Panel, the
record indicates that discussions following the June 19, 1980 Panel
instruction to resume negotiations, were in fact "negotiations" within
the meaning of Section 2470.2(e) of the Regulations. Moreover, it is
clear that the Panel determined that an impasse had been reached over
which of the two grievance procedure articles proposed should be
included in the collective bargaining agreement.
The parties did not become involved in a controversy over the
negotiability of any proposal. As a result of the Respondent's retreat
from the initialed grievance procedure, the substance of their dispute
involved disagreement concerning the merits of the grievance procedures
proposed by the parties. The Authority has held that such disputes
concern an impasse in negotiations appropriate for resolution by the
Panel. National Federation of Federal Employees, Local 1028, 7 FLRA No.
17 (October 30, 1981).
/16/ Actually, the complaint as amended identifies the Respondent as
the "National Aeronautics and Space Administration Headquarters,
Washington, D.C." as the Respondent. The Panel's April 30, 1981
Decision and Order refers to the "National Aeronautical and Space
Administration, Washington, D.C." as the Employer.
/17/ From the motion and response thereto, it appeared that the
Respondent filed a clarification of unit petition (Case No. 3-CU-81) to
establish that Mr. Storm and others were management officials and/or
supervisors under the Statute. Case No. 3-CU-81 is pending before the
Authority.
/18/ It is noted that a similar motion was filed by the Respondent in
National Aeronautics and Space Administration (NASA), Headquarters, Case
No. 3-CA-2102 (November 6, 1981). It was referred to the Chief
Administrative Law Judge, and at the hearing it was denied by
Administrative Law Judge Randolph Mason.
/19/ Counsel representing the Respondent also reintroduces in his
post-hearing brief other issues raised before and during the hearing.
Those not discussed herein have also been reconsidered and rejected as
having no merit.
/20/ During the hearing counsel representing the Respondent
acknowledged that the Respondent was not contending that the Respondent
had sponsored the Union within the meaning of Section 7103(a)(4)(C) of
the Statute, or that the Union was otherwise dominated or controlled by
the Respondent (Tr. 75, 77).
/21/ This case was referred to in error as National Association of
Government Employees, Federal Aviation Science and Technological
Association, 7 FLRA No. 21 (1981), in the November 13, 1981 Decision and
Order relating to prehearing motions.
/22/ Respondent's argument, if carried to its logical extreme would
invalidate charges filed by a union official on behalf of a union, if
after filing, a determination were made that the official should be
excluded from a bargaining unit because of a determination that the
official is a "management official," within the meaning of the Statute.
Even assuming some merit to Respondent's theory, the validity of the
charge would, at a minimum, have to be determined as of the date of the
filing of the charge. It is clear in this case that regardless of the
nature of Mr. Storm's duties, he was acting on behalf of the Union
herein at the time of the filing of the charge and amended charge.