16:0456(69)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and NFFE Local 29 -- 1984 FLRAdec CA



[ v16 p456 ]
16:0456(69)CA
The decision of the Authority follows:


 16 FLRA No. 69
 
 U.S. ARMY CORPS OF ENGINEERS
 KANSAS CITY DISTRICT
 KANSAS CITY, MISSOURI
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 29
 Charging Party
 
                                            Case No. 7-CA-30503
 
                            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, including the
 stipulation of facts, accompanying exhibits and the parties'
 contentions, the Authority finds:
 
    The National Federation of Federal Employees, Local 29, the Union, is
 the exclusive representative of all GS and WB non-supervisory employees
 of the Kansas City District Corps of Engineers.  On August 4, 1982,
 Respondent requested the assistance of the Federal Service Impasses
 Panel (FSIP or Panel) to consider an impasse arising from negotiations
 over the Respondent's proposed implementation of the Missouri River
 Division Regulation (MRD-R) 385-1-4, entitled "Occupational Health
 Program." This regulation establishes procedures for medical evaluations
 of employees pursuant to the Occupational Health Program in the Missouri
 River Division which includes employees of the Kansas City District
 Corps of Engineers.
 
    Pursuant to the Panel's direction, the Union and Respondent filed
 proposals and position statements on the issues at impasse.  The Union
 submitted the following proposal to the Panel on October 12, 1982:
 
          When an employee is required and/or directed by the employer,
       to undergo a medical examination under the provisions of MRD-R
       385-1-4, the employee shall be given the opportunity to utilize
       either a designated military medical facility, contract physician
       or the employee's personal physician.  All reasonable and
       customary charges and expenses related to such examinations shall
       be borne by the employer.
 
 On October 12, 1982, the Respondent proposed that:
 
          Medical examinations for employees of the Kansas City District
       will be conducted by a Federal medical officer, military
       physician, or local contracted physician as determined by the
       employer.  All costs related to such examinations will be borne by
       the employer.
 
 Respondent's position was that utilization of military medical
 facilities and private physicians contracted by the U.S. Army was the
 most economical and practical method of providing medical examinations
 for Kansas City District employees.  In asserting its position, the
 Respondent specifically stated that, "While only employees engaged in
 health-hazardous occupations are required to have periodic job related
 examinations the opportunity to have periodic health-maintenance
 examinations is intended for all employees."
 
    The Union and Respondent submitted rebuttal statements of position to
 the Panel on October 26, 1982.  On January 3, 1983, the Panel issued a
 Decision and Order in 82 FSIP 145 ordering the parties to adopt the
 following language in a mid-term agreement:
 
          (1) the Union's proposal for bargaining-unit employees in
       health-hazardous occupations, as amended to require the affected
       employee to pay any difference between the contract price and the
       private physician's fee, and (2) the Employer's proposal for all
       other bargaining-unit employees.
 
    On January 13, 1983 Respondent requested a clarification of the
 above-referenced Decision and Order.  In its request for clarification
 the Respondent stated that the intent of its proposal was to provide
 medical examinations only to employees engaged in health-hazardous
 occupations and to 56 bargaining-unit employees working on or nearby a
 U.S. Army installation.  The FSIP responded to the request to clarify on
 January 27, 1983 by restating the Decision and Order and by explaining
 that it intended the Employer's proposal to apply to all bargaining-unit
 employees except for those involved in health-hazardous occupations,
 whether or not the employees are located on or near a U.S. Army military
 installation.
 
    The Union and Respondent met and discussed the Panel's Decision and
 Order and alternative propositions and arrangements during the period
 between January 27 and July 1, 1983.  On July 6, 1983 the Union
 requested that Respondent implement the Panel's Decision and Order
 immediately.  On July 12, 1983, Respondent informed the Union that
 Respondent was taking immediate steps to implement part (a) of the FSIP
 Decision and Order and also that Respondent would not implement part (b)
 of the Order concerning employees in non health-hazardous occupations.
 Respondent has not implemented the second portion of the Panel's Order.
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (6) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ by failing and refusing to adopt and
 implement a Decision and Order of the Panel which requires Respondent to
 furnish, at no cost to the employee, medical examinations for all
 bargaining-unit employees including those who are not engaged in
 health-hazardous occupations.
 
    Section 7119(c)(5)(B)(iii) of the Statute provides that the Panel may
 take whatever action is necessary and not inconsistent with the Statute
 to resolve an impasse.  Section 7119(c)(5)(C) of the Statute provides
 that "final action" of the Panel shall be binding on the parties.  /2/
 While a party to a proceeding before the FSIP may not appeal directly to
 the Authority, see State of New York, Division of Military and Naval
 Affairs, 2 FLRA 185 (1979), the Authority has held that review of a
 final Panel Decision and Order may be obtained through unfair labor
 practice procedures initiated by a party alleging noncompliance with a
 Panel Decision and Order, /3/ such as the case herein.
 
    Respondent argues that the Panel had no jurisdiction over any issues
 pertaining to employees not engaged in health-hazardous occupations,
 because that issue was not raised in the initial request for assistance
 or in any subsequent documents submitted to the Panel.  This argument
 cannot be sustained.
 
    The stipulated record shows that the proposals, submissions and
 exhibits presented to the Panel discuss bargaining unit employees
 engaged in both health-hazardous and non health-hazardous occupations.
 For example, in Respondent's initial Request for Assistance to the Panel
 it stated that provisions of Missouri River Division Regulation (MRD-R)
 385-1-4, Occupational Health Program are applicable to all civilian and
 military employees in the Kansas City District.  In Respondent's October
 12, 1982 position statement to the Panel the Respondent describes its
 proposal as the most "economical and practical method of providing
 medical examinations for Kansas City District employees," without
 stating whether or not the employees described were involved in
 health-hazardous occupations.  Respondent specifically stated that "the
 opportunity to have periodic health maintenance examinations is intended
 for all employees." Even Respondent's proposal, as stated above, did not
 differentiate between employees in health-hazardous occupations and
 those in non health-hazardous occupations.  Based on this evidence it
 does not appear that the Panel was acting outside of its jurisdiction by
 rendering a Decision which ordered the parties to adopt a proposal which
 provides medical examinations for all bargaining unit employees.
 
    The Respondent also argues that even if the issue was before the
 Panel it had never ripened into an impasse and that since the Panel is
 only empowered to resolve issues at impasse, the Panel exceeded the
 scope of its jurisdiction.  This argument is also without merit.  In
 National Aeronautics and Space Administration, Headquarters, Washington,
 D.C., 12 FLRA No. 94 (1983), the parties' submissions to the Panel
 failed to specifically identify a grievance procedure question as an
 impasse issue.  The Authority adopted the ALJ's decision in which he
 rejected the Respondent's assertion of lack of jurisdiction which was
 based on the fact that the grievance procedure was not specifically
 identified as an impasse issue.  The Authority adopted the Judge's
 reasoning that a request to the Panel must be considered in its
 entirety;  that the Panel's authority is not delimited by technical
 language in the initial request for review, but that the entire matter
 must be considered and determined as appropriate.
 
    The record in this case reveals that the subject of providing medical
 examinations for all employees was posed in the Respondent's initial
 request for assistance and in subsequent submissions by the parties to
 the Panel.  Furthermore, despite assistance from mediators, the parties
 had not reached an agreement as to the provision of medical examinations
 to employees.  As the Panel found, these circumstances constitute an
 "impasse" within the meaning of section 2470.2(e) of the Rules and
 Regulations of the Federal Service Impasses Panel.  /4/
 
    After carefully considering the Respondent's request to the Panel in
 its entirety, the Authority concludes that there is no merit to the
 Respondent's contentions that the Panel had no jurisdiction to issue a
 decision concerning medical examinations for employees in non
 health-hazardous occupations since this was an impasse issue presented
 to the Panel for resolution.  Accordingly, the Authority concludes that
 Respondent violated section 7116(a)(1) and (6) of the Statute by failing
 and refusing to comply with the decision of the Panel concerning the
 provision of medical examinations for all unit employees.  In view of
 this finding the Authority finds it unnecessary to pass upon whether the
 Respondent's conduct also violated section 7116(a)(5) of the Statute.
 See State of California National Guard, 8 FLRA 54 (1982), remanded on
 other grounds sub nom. California National Guard v. FLRA, No. 82-7187
 (9th Cir. Jan 7, 1983), supp. dec. on remand 15 FLRA No. 102 (1984).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Authority and section 7118 of the Federal Service Labor-Management
 Relations Statute, the Authority hereby orders that U.S. Army Corps of
 Engineers, Kansas City District, Kansas City, Missouri shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to comply with all provisions of the
 Decision and Order of the Federal Service Impasses Panel in Case No. 82
 FSIP 145, dated January 3, 1983.
 
    (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 carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Comply with the Decision and Order of the Federal Service
 Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the
 Respondent's proposal for all bargaining unit employees not engaged in
 health-hazardous occupations, and otherwise cooperate in impasse
 procedures and decisions as required by the Federal Service
 Labor-Management Relations Statute.
 
    (b) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Authority.  Upon receipt of such forms, they shall
 be signed by the Commander and District Engineer, U.S. Army Corps of
 Engineers, Kansas City District, or his designee, and shall be posted
 and maintained by him for sixty (60) consecutive days thereafter, in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  The Commander 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 VII, Federal Labor
 Relations Authority, in writing, within thirty (30) days from the date
 of this Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the portion of the complaint in Case No.
 7-CA-30503 which alleges a violation of section 7116(a)(5), be, and it
 hereby is dismissed.  
 
 Issued, Washington, D.C., November 14, 1984.
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, 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 comply with all provisions of the
 Decision and Order of the Federal Service Impasses Panel in Case No. 82
 FSIP 145, dated January 3, 1983.
 
    WE WILL comply with the Decision and Order of the Federal Service
 Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the
 Respondent's proposal for all bargaining unit employees not engaged in
 health-hazardous occupations, and will otherwise cooperate in impasse
 procedures and decisions as required by the Federal Service
 Labor-Management Relations Statute.
 
    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.
                                       (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 VII, of the Federal Labor Relations Authority whose
 address is:  1531 Stout Street, Suite 301, Denver, CO 80202 and whose
 telephone number is (303) 837-5224.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116 of the Statute provides:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                  * * * *
 
          (6) to fail or refuse to cooperate in impasse procedures and
       impasse decisions as required by this chapter(.)
 
 
    /2/ Section 7119(c)(5) provides in pertinent part:
 
    Sec. 7119.  Negotiation impasses;  Federal Service Impasses Panel
 
                                  * * * *
 
          (B) If the parties do not arrive at a settlement after
       assistance by the Panel . . . , the Panel may--
 
                                  * * * *
 
          (iii) take whatever action is necessary and not inconsistent
       with this chapter to resolve the impasse.
 
          (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.
 
 
    /3/ See National Aeronautics and Space Administration, Headquarters,
 Washington, D.C., 12 FLRA No. 94 (1983);  State of Nevada National
 Guard, 7 FLRA 245 (1981), remanded on other grounds sub nom. Nevada
 National Guard v. FLRA, No. 82-7034 (9th Cir. Jan. 7, 1983), supp. dec.
 on remand 15 FLRA No. 101 (1984).
 
 
    /4/ Section 2470.2 provides:
 
    Section 2470.2 Definitions
 
          (e) The term "impasse" means that point in the negotiation of
       conditions of employment at which