18:0768(92)CA - Federal Deposit Insurance Corporation, HQ and NTEU -- 1985 FLRAdec CA



[ v18 p768 ]
18:0768(92)CA
The decision of the Authority follows:


 18 FLRA No. 92
 
 FEDERAL DEPOSIT INSURANCE 
 CORPORATION, HEADQUARTERS 
 Respondent 
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 3-CA-2589
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the 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 alleges, in essence, that the Respondent violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ by insisting to impasse that the
 Charging Party (the Union) adopt the Respondent's bargaining proposals
 calling for the Union to waive certain of its rights under the Statute.
 
    The record indicates that the Union represents separate units of
 professional and nonprofessional General Graded and Wage Grade employees
 assigned to the Respondent's Headquarters in Washington, D.C.  During
 the course of negotiations for a collective bargaining agreement, the
 parties jointly requested the Federal Service Impasses Panel (the Panel)
 for assistance with respect to certain unresolved articles.  Only one of
 these articles, containing two separate provisions, is before the
 Authority in the instant proceeding.
 
    The provisions in question, Sections 1 and 2.D(5) of Article 51, were
 proposed by the Respondent and pertained to mid-contract negotiations.
 /2/ The Respondent's latest proposals, as submitted to the Panel, are as
 follows:
 
          Section 1
 
          The parties agree that changes in the personnel policies,
       practices, and matters relating to conditions of employment of
       employees in the bargaining unit which are within the discretion
       of the EMPLOYER are subject to negotiation, if the UNION requests
       negotiations.  Further, if the foregoing changes are not within
       the discretion of the EMPLOYER, the UNION has the right to
       negotiate on the impact and implementation of those changes, if
       the UNION requests negotiations.
 
          Section 2.D(5)
 
          (I)f agreement has not been reached by the Parties after
       forty-five (45) calendar days from the date the UNION requested
       negotiations, the EMPLOYER has the right to implement the proposed
       change in conditions of employment even though the matter has been
       referred to a third party for resolution.
 
    The Union's response to the proposed Section 1 was that the language
 contained therein would require it to waive certain of its rights under
 section 7117(a) of the Statute.  /3/ More specifically, the Union argued
 that the proposal would prevent it from bargaining over agency-wide
 rules and regulations that are "not within the discretion of the
 Employer." As to Section 2.D(5), the Union basically that it would be
 waiving its statutory right to utilize third-party impasse procedures if
 it agreed to allow the Respondent to implement proposed changes prior to
 the completion of bargaining.
 
    In its Decision and Order in Federal Deposit Insurance Corporation,
 Washington, D.C., and National Treasury Employees Union, 81 FSIP 60
 (June 3, 1981), FSIP Release No. 189, the Panel concluded that, with
 regard to Article 51, Sections 1 and 2.D(5):
 
          (T)he Union has raised a threshold question concerning its duty
       to bargain to impasse over the Employer's proposal, alleging that
       its adoption would constitute a waiver of the Union's statutory
       rights.  The Panel is without jurisdiction to resolve the
       question.  Until it is resolved in an appropriate forum and
       further assistance, if necessary is rendered by the Panel, we
       conclude that the parties should withdraw their proposals with
       respect to this Article and rely on the applicable sections of the
       Statute . . . .
 
 Thereafter, the Union filed an unfair labor practice charge and the
 General Counsel issued the complaint herein.
 
    The question here presented is whether the Respondent acted properly
 in insisting to impasse over its proposed Article 51, Sections 1 and
 2.D(5).  Resolution of this question is dependent upon a determination
 as to whether the proposals involved a mandatory subject of bargaining
 or a "permissive" subject of bargaining.  While the Authority has
 previously held that parties may bargain to impasse over mandatory
 subjects of bargaining, i.e., those matters that are within the required
 scope of bargaining, /4/ the Authority has not previously addressed
 whether this policy extends also to permissive subjects of bargaining,
 i.e., those matters which are either outside the scope of bargaining
 required of the parties or are negotiable at the election of an agency
 pursuant to section 7106(b)(1) of the Statute.  In the Authority's view,
 it does not.
 
    It is well-established that a party is not required to bargain over a
 permissive subject of bargaining.  This applies equally to proposals
 advanced by agency management as it does to proposals made by a union.
 In American Federation of Government Employees, AFL-CIO, 4 FLRA 272
 (1980), for example, the Authority determined that an agency's proposals
 which would have infringed on a union's right to designate its own
 representatives when dealing with agency management were outside the
 required scope of bargaining.  Therefore, the union's refusal to bargain
 over the proposals was found not to have violated the Statute.  In
 Division of Military and Naval Affairs, State of New York, Albany, New
 York, 15 FLRA No. 65 (1984) and in International Association of Fire
 Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980)
 (Proposal No. III), the Authority determined, respectively, that agency
 management was not required to bargain over matters which were within
 the ambit of section 7106(b)(1) of the Statute and therefore bargainable
 only at the election of the agency, or over those matters which are
 outside the required scope of bargaining.  While in such instances,
 neither agency management nor the union could be required to bargain,
 nothing in the Statute would preclude bargaining if the parties chose to
 do so.  In this latter connection, the Authority has held that where
 parties are negotiating a collective bargaining agreement and have
 elected to bargain over permissive subjects of bargaining and have
 reached agreement thereon, the parties are bound to adhere to those
 terms during the life of their agreement.  However, upon the agreement's
 expiration, either party may elect to no longer be bound by such terms
 and, in effect, reassert its right not to negotiate with regard to such
 permissive subjects of bargaining.  Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984).
 
    Clearly, if parties are not required to bargain over permissive
 subjects of bargaining, it follows that parties cannot insist on
 bargaining to impasse with respect to such matters within the meaning of
 section 7119 of the Statute.  As previously noted, the Authority
 determined in Vermont Air National Guard, supra, that parties may
 bargain to impasse over mandatory subjects of bargaining.  In so
 deciding, the Authority noted that parties have a mutual obligation to
 bargain in good faith and that where an impasse in negotiations is
 reached, either party may request the assistance of the Panel under
 section 7119.  Where a matter falls outside the required scope of
 bargaining or is negotiable only at the election of an agency, there is
 no mutual obligation to bargain at all.  If parties do bargain over such
 matters either may withdraw at any time prior to reaching agreement.
 
    In order to determine whether in the instant case the Respondent's
 conduct in insisting to impasse on the two proposals was violative of
 the Statute, it is necessary to examine whether the proposals were
 mandatory or permissive subjects of bargaining.
 
    The Authority turns first to Article 51, Section 1.  That proposal
 provides that changes in personnel policies, practices and matters
 relating to conditions of employment of unit employees which are within
 the Employer's discretion are subject to negotiations, upon the Union's
 request.  For changes that are not within the discretion of the
 Employer, the Union has the right to negotiate, upon request, over the
 impact and implementation of those changes.  The Union and the General
 Counsel argue that the language of the proposal would require the Union
 to waive certain of its statutory rights under section 7117(a) of the
 Statute, specifically with regard to agency-wide rules and regulations
 that are "not within the discretion of the Employer." In this
 connection, there appears to be some confusion as to whether the term
 "Employer" refers to the Respondent herein or to the Board of Directors
 of the Federal Deposit Insurance Corporation which, according to the
 parties' stipulation, establishes agency-wide policy.  The Respondent
 argues essentially that the proposal does not conflict with the Statute
 and therefore cannot constitute a waiver of the Union's statutory
 rights.
 
    In the Authority's view, nothing contained in the proposal is
 inconsistent with the Statute so as to remove it from the required scope
 of bargaining.  The objection to the proposal raised by both the General
 Counsel and the Union, as noted above, concerns a limitation on
 bargaining over agency-wide rules and regulations.  Section 7117(a) of
 the Statute, as here relevant, extends the duty to bargain to rules and
 regulations issued by an agency or primary national subdivision of that
 agency where ;o compelling need for the rule or regulation is found to
 exist pursuant to the Authority's Rules and Regulations, /5/ so as to
 bar negotiations on conflicting proposals.  In this regard, the
 Authority determined in Defense Logistics Agency (Cameron Station,
 Virginia), 12 FLRA 412 (1983), aff'd sub nom. Defense Logistics Agency,
 et al. v. FLRA, 754 F.2d 1003 (1985), that agency management at the
 level of exclusive recognition may be required to bargain over an
 agency-wide rule or regulation as it applies to unit employees where no
 compelling need has been demonstrated for the rule or regulation to bar
 negotiations or the matter is not otherwise removed from the required
 scope of bargaining.  /6/ Such bargaining would, of course, apply to the
 substance, procedures, and appropriate arrangements for employees
 adversely affected by the agency-wide rule or regulation.  But see, U.S.
 Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984), rev'd sub
 nom. United States Army Engineer Center v. FLRA, No. 84-1327 (4th Cir.
 May 23, 1985).
 
    In the instant case, the General Counsel and the Union apparently are
 concerned that the proposal would limit the Union's opportunity to
 bargain over agency-promulgated rules and regulations only to their
 impact and implementation, thus removing the Union's right to bargain as
 to the substance of such rules and regulations.  In the Authority's
 view, whether the term "Employer" refers to the Respondent or to that
 level of agency management which is responsible for establishing
 agency-wide rules and regulations, bargaining as to the substance of
 such rules and regulations at the level of exclusive recognition would
 be proscribed only where there was a compelling need for the rule or
 regulation or where the matter was otherwise removed from the required
 scope of bargaining because of an inconsistency with law, rule or
 regulation, including the Statute.  Simply because an agency-wide rule
 or regulation is not within the discretion of agency management at the
 level of exclusive recognition would not remove it from the required
 scope of bargaining.  /7/ In fact, even the Respondent concedes that a
 change in agency policy for which no compelling need has been found to
 exist would be within the discretion of the Employer and therefore
 negotiable in substance.  As to the proposed Section 1, therefore, the
 Authority does not view the language contained therein as a limitation
 on the Union's right to bargain over agency-wide rules and regulations.
 Rather, the proposal appears to be an accurate reflection of the
 statutory rights and obligations of the parties to bargain over changes
 in personnel policies, practices, and matters relating to conditions of
 employment of unit employees.  Accordingly, the Authority finds the
 proposal to be within the required scope of bargaining, and therefore
 the Respondent's insistence to impasse on the proposal does not
 constitute a violation of the Statute.
 
    The Respondent's proposed Article 51, Section 2.D(5), on the other
 hand, does not fall within the required scope of bargaining.  The
 language of that proposal would allow the Respondent to implement a
 proposed change in conditions of employment if agreement has not been
 reached by the parties after forty-five days from the date the Union
 requested negotiations, even if the matter has been referred to a
 third-party for resolution.  The Union and the General Counsel argue
 that the proposal would preclude the Union from fully utilizing the
 impasse machinery provided for in the Statute.  The Authority agrees and
 notes that section 7119 of the Statute provides for third-party
 resolution of negotiation impasses and permits either party to a
 negotiation impasse to request the assistance of the Federal Service
 Impasses Panel.  The Authority has previously determined that where
 parties have reached an impasse in their negotiations, and one party
 timely invokes the services of the Panel, the parties are required to
 maintain the status quo, to the maximum extent possible, i.e.,
 consistent with the necessary functioning of the agency, in order to
 allow the Panel to take whatever action is deemed appropriate;  and,
 further, that a failure or refusal to do so will constitute a violation
 of the Statute.  Department of the Treasury, Bureau of Alcohol, Tobacco
 and Firearms, 18 FLRA No. 61 (1985).  To the extent that the proposed
 Section 2.D(5) would allow the Respondent to implement proposed changes
 in conditions of employment while such matters are pending before the
 Panel for resolution, the proposal would limit the Union's right to
 insist upon the maintenance of the status quo to the maximum extent
 possible until the Panel has taken appropriate action.  Therefore, the
 proposal is not within the required scope of bargaining.  While the
 Union may of course choose to bargain over the proposal, the Authority
 finds that it cannot be required to do so.  Accordingly, the
 Respondent's insistence to impasse on a proposal which does not concern
 a mandatory condition of employment is violative of section 7116(a)(1)
 and (5) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Federal Deposit Insurance Corporation,
 Headquarters shall:
 
    1.  Cease and desist from:
 
    (a) Insisting to impasse on a matter which is outside the required
 scope of bargaining with the National Treasury Employees Union, the
 exclusive representative of unit employees.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Post at 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 head of the Federal Deposit
 Insurance Corporation, or his designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including bulletin boards and other places where notices to employees
 are customarily posted.  Reasonable steps shall be taken to insure that
 such Notices are not altered, defaced, or covered by any other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, in writing,
 within 30 days from the date of this Order, as to what steps have been
 taken to comply herewith.
 
    IT IS FURTHER ORDERED that the portion of the complaint in Case No.
 3-CA-2589 found not to have violated the Statute be, and it hereby is,
 dismissed.  
 
 Issued, Washington, D.C., June 28, 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 insist to impasse on a matter which is outside the
 required scope of bargaining with the National Treasury Employees Union,
 the exclusive representative of our employees.
 
    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
 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 for Region III, Federal Labor Relations Authority, whose
 address is:  P.O. Box 33758, Washington, D.C. 20033-0758 and whose
 telephone number is:  (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) 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(.)
 
 
    /2/ Another section of Article 51 was also before the Panel but was
 not raised as an issue in the unfair labor practice complaint herein.
 
 
    /3/ Section 7117(a) provides, in relevant part:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult