17:0667(97)CA - Commerce, Bureau of the Census and AFGE Local 2782 -- 1985 FLRAdec CA



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17:0667(97)CA
The decision of the Authority follows:


 17 FLRA No. 97
 
 U.S. DEPARTMENT OF COMMERCE 
 BUREAU OF THE CENSUS 
 Respondent
 
 and
 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2782, AFL-CIO 
 Charging Party
 
                                            Case No. 3-CA-30282
 
                            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 complaint essentially alleges that the U.S. Department of
 Commerce, Bureau of the Census (the Respondent) violated section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute) by refusing to reopen contract negotiations after
 the membership of the Charging Party, American Federation of Government
 Employees, Local 2782, AFL-CIO (the Union), refused to ratify the
 tentative agreement reached by the parties.  /1/
 
    The Union is the exclusive representative of two bargaining units of
 employees of the Respondent who are located in the Washington, D.C.
 metropolitan area.  The parties' collective bargaining agreement, which
 was ratified by the Union's membership and effectuated on June 23, 1977,
 was in effect at all times material herein.  Article 6 of that agreement
 pertaining to the parties' negotiated ground rules, provides in
 pertinent part as follows:
 
                      ARTICLE 6-- FUTURE NEGOTIATIONS
 
                                .  .  .  .
 
          6.2 Proposals.  The initiating party shall submit its
       proposals, in writing, at least 40 days prior to the scheduled
       commencement of negotiations.  Following receipt of such
       proposals, the other party shall have no more than 20 days in
       which to submit, also in writing, any counterproposals or new
       matter.  No new matter will be admitted for negotiation from
       either party following the first 12 hours of negotiations;  either
       party may at any time submit counterproposals to or modifications
       of proposals previously admitted. . . .
 
          6.3 Signifying Agreement.  When agreement is reached upon any
       proposal, or any part of a proposal, the two chief negotiators
       shall signify such agreement, either through their initials or
       through some other device, on the face of the proposal.  Such
       signification shall not, however, preclude the parties from
       mutually agreeing to reconsider or revise previously approved
       proposals at any time prior to the formal termination of
       negotiations. . . .
 
                                .  .  .  .
 
          6.7 Effective Date.  Any substantive agreement reached shall
       become effective between the parties on the date of signing,
       following ratification by the membership and approval by the
       National President of the Union, and approval by the Director.
 
    On or about June 11, 1980, the Respondent and the Union commenced
 negotiations for a new collective bargaining agreement which after
 numerous sessions was completed on September 1, 1982.  /2/ Thereafter,
 the Respondent and the Union initialed off on a final package of
 proposals to constitute their tentative collective bargaining agreement.
  The Respondent was informed by the Union at that time that the
 tentative agreement would be placed before its membership for a
 ratification vote.  On or about September 23, the Union's membership,
 after having reviewed the subject agreement, voted against ratification.
  On or about September 24, the Union notified the Respondent of the
 outcome of the ratification vote and requested the resumption of
 negotiations.
 
    On or about October 21, the Respondent wrote to the Union noting,
 inter alia, that in light of the vote not to ratify the tentative
 agreement, it was incumbent on the Union to submit proposals in advance
 of further negotiations;  the Respondent also in such letter, and again
 on or about November 4, requested the Union to clarify the bargaining
 authority of its negotiators.  The Union submitted 26 proposals on
 December 29, certain of which concerned matters not previously proposed
 during the period between June 1980 and December 29, 1982, and whose
 omission from the tentative contract had been noted by the Union's
 membership as a reason for its rejection.
 
    By letter dated January 19, 1983, the Respondent, noting the Union's
 proposals, informed the latter that it would, pursuant to Article 6.3 of
 the ground rules, reconsider only those six provisions which the parties
 had previously negotiated and embodied in their tentative agreement.
 Thereafter, on February 1, 1983, the Union filed the unfair labor
 practice charge herein.
 
    For the reasons discussed below, the Authority concludes that the
 Respondent's admitted refusal to reopen negotiations, pursuant to the
 Union's request, except for the six items listed in its memorandum of
 January 19, 1983, constitutes a violation of section 7116(a)(1) and (5)
 of the Statute.
 
    Section 7114(a)(4) and (b)(2) of the Statute provides, in relevant
 part, as follows:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(4) Any agency and any exclusive representative in any
       appropriate unit in the agency, through appropriate
       representatives, shall meet and negotiate in good faith for the
       purposes of arriving at a collective bargaining agreement. . . .
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                .  .  .  .
 
          (2) to . . . discuss and negotiate on any condition of
       employment(.)
 
 It is apparent from the specific language of the aforementioned
 provisions of the Statute that an agency and the exclusive
 representative of its unit employees have an obligation to negotiate in
 good faith with respect to any condition of employment affecting unit
 employees in an effort to arrive at a collective bargaining agreement.
 The exclusive representative may, however, waive its statutory right to
 negotiate on such matters by clear and unmistakable conduct.  Library of
 Congress, 9 FLRA 427 (1982);  Department of the Air Force, U.S. Air
 Force Academy, 6 FLRA 548 (1981);  Department of the Air Force, Scott
 Air Force Base, Illinois, 5 FLRA 9 (1981).  Further, with respect to the
 bargaining process, the Authority has found that ratification of a
 tentative agreement by a union's membership may be a precondition to a
 binding agreement.  Department of Navy, Norfolk Naval Shipyard,
 Portsmouth, Virginia, 13 FLRA 571 (1984).
 
    The Respondent argues that by virtue of Article 6.3 of the parties'
 ground rules, which precludes the reconsideration or revision of
 proposals previously approved by the parties absent mutual agreement,
 the Union waived its right to reopen contract negotiations in the wake
 of the ratification vote.  The Authority disagrees.  In so concluding,
 the Authority finds that the Union did not clearly and unmistakably
 waive its right to reopen contract negotiations.  In this regard,
 Article 6.7 of the parties' ground rules on its face specifically
 provides for "ratification by the membership" prior to any substantive
 agreement becoming effective.  Also, the stipulated record reveals that
 the parties' existing collective bargaining agreement had been ratified
 by the Union's membership prior to its effectuation, and that on the
 date the parties initialed off on their final package of proposals
 herein, the Union informed the Respondent that such proposals would be
 placed before its membership for a ratification vote.  Therefore, under
 these circumstances, the Authority finds that ratification by the
 Union's membership was a precondition to a binding agreement, and that
 neither the language of Article 6 of the parties' ground rules nor the
 record evidence establishes that the Union clearly and unmistakably
 waived its right to reopen contract negotiations following a failure to
 ratify the tentative agreement.
 
    At the same time, the Respondent's obligation to bargain is not
 without limits under the facts presented.  Irrespective of ratification
 procedures, Article 6.2 clearly limits the rights of the parties to
 raise new matters after the first twelve hours of negotiations.
 Pursuant to that contractual provision, the Respondent is not obligated
 to negotiate on proposals which are entirely new or which are not
 "counterproposals to or modifications of proposals previously admitted .
 . . ." Examples of new matters raised by the Union in its proposals
 submitted after the ratification vote include a Mini-Arbitration
 procedure and the contemplated establishment of a Day Care Center rather
 than a Task Force to study the feasibility of such a center.
 
    Since the record reveals that the Respondent refused to negotiate
 over certain Union proposals dated December 29, 1982, which were not
 entirely new matter, the Authority finds that the Respondent violated
 section 7116(a)(1) and (5) of the Statute when it refused to reopen
 contract negotiations on such proposals after the Union's membership
 refused to ratify the tentative agreement reached by the parties.  See
 Norfolk Naval Shipyard, 9 FLRA 36 (1982), aff'd sub nom. Tidewater
 Virginia Federal Employees Metal Trades Council v. FLRA. No. 82-1876
 (D.C. Cir. May 4, 1983).
 
    Accordingly, in view of the foregoing, the Authority concludes that
 the Respondent violated section 7116(a)(1) and (5) of the Statute by
 refusing to reopen contract negotiations after the Union's membership
 refused to ratify the tentative agreement reached by the parties.
 
                                   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 U.S. Department of Commerce, Bureau of the Census shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to negotiate in good faith with the American
 Federation of Government Employees, Local 2782, AFL-CIO, the exclusive
 representative of its employees, with respect to conditions of
 employment relating to negotiations for a new collective bargaining
 agreement.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request of the American Federation of Government Employees,
 Local 2782, AFL-CIO, the exclusive representative of its employees,
 bargain with respect to conditions of employment relating to matters
 previously raised during negotiations for a new collective bargaining
 agreement, subject to any contractual agreement which may have been
 reached and approved by the parties subsequent to December 29, 1982.
 
    (b) Post at all of its facilities copies of the attached Notice on
 forms to be furnished by the Federal Labor Relations Authority.  Upon
 receipt of such forms they shall be signed by the Director of the Bureau
 of the Census, or his or her designee, 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.
 
    (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., April 23, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 refuse to negotiate in good faith with the American
 Federation of Government Employees, Local 2782, AFL-CIO, the exclusive
 bargaining representative of our employees, with respect to conditions
 of employment relating to negotiations for a new collective bargaining
 agreement.  WE WILL NOT in any like or related manner interfere with,
 restrain, or coerce our employees in the exercise of rights assured by
 the Federal Service Labor-Management Relations Statute.  WE WILL
 negotiate in good faith with the American Federation of Government
 Employees, LOCAL 2782, AFL-CIO, the exclusive bargaining representative
 of our employees, upon request, with respect to conditions of employment
 relating to matters previously raised during negotiations for a new
 collective bargaining agreement, subject to any contractual agreement
 which may have been reached and approved by the parties subsequent to
 December 29, 1982.