21:0986(117)CO - AFGE and EPA -- 1986 FLRAdec CO



[ v21 p986 ]
21:0986(117)CO
The decision of the Authority follows:


 21 FLRA No. 117
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Respondent
 
 and
 
 ENVIRONMENTAL PROTECTION AGENCY
 Charging Party
 
                                            Case No. 3-CO-40003
 
                            DECISION AND ORDER
 
    This matter is before the Federal Labor Relations 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 contentions of the parties, the
 Authority finds:
 
    It is alleged that the Respondent, American Federation of Government
 Employees, AFL-CIO (AFGE), violated section 7116(b)(5) of the Federal
 Service Labor-Management Relations Statute (the Statute) /1/ by
 rescinding a Memorandum of Understanding (MOU) and failing to abide by
 the terms and conditions set forth therein.
 
    The Respondent has been the exclusive representative for the majority
 of employees employed by the Environmental Protection Agency (EPA or the
 Agency) in a nationally consolidated unit since February 1, 1980.
 
    On August 21, 1980, agents for the two parties executed the MOU which
 delegated local level impact and implementation bargaining authority to
 local representatives at the former levels of exclusive recognition.
 Subsequently, on October 3, 1983, the Respondent notified the Agency, by
 letter of the Respondent's rescission of the MOU.  That letter stated,
 in relevant part, as follows:
 
          We have been informed that Mr. Bob Davis, our Chief Negotiator
       for the national agreement, has sent you the union's proposals for
       the national agreement.  This is to notify you that the 1980 (MOU)
       . . . is rescinded by virtue of all matters covered by the union's
       proposals being "on the table."
 
                       . . . . . . .
 
 
          Where you may find it necessary to effect a condition of
       employment . . . at a local area office of EPA, the Agency's
       proposals should be sent to Mr. Davis for consideration at the
       national negotiations.  On a case-by-case basis, we will consider
       authorizing local union negotiators to negotiate on specified
       matters upon EPA's request.  However, any negotiations conducted
       at the local level without specific and express authority by this
       office or the National EPA Council will be considered
       unauthorized.  (Emphasis in original.)
 
    The record also reveals that, at all times material herein, the
 parties were in the process of negotiating a collective bargaining
 agreement at the national level but had not yet reached agreement.  /2/
 
    In the Authority's view, the Respondent's unilateral repudiation of
 the MOU constituted a violation of section 7116(b)(5) of the Statute.
 In this regard, the Authority has previously held that where a party
 repudiates a memorandum of understanding or an agreement in its
 entirety, such conduct is violative of the Statute.  See U.S. Patent and
 Trademark Office, 18 FLRA No. 81 (1985);  Great Lakes Program Service
 Center, Social Security Administration, Department of Health and Human
 Services, chicago, Illinois, 9 FLRA 499 (1982);  and Veterans
 Administration Hospital, Danville, Illinois, 4 FLRA 432 (1980).  /3/ In
 the instant case, as is evident from the Respondent's October 3 letter,
 the Respondent, AFGE, repudiated the MOU in its entirety and refused to
 abide by the terms set forth therein.  The Respondent's conduct in this
 regard is therefore violative of section 7116(b)(5) of the Statute.  /4/
 Accordingly, to the extent that the MOU is not inconsistent with the
 terms of any subsequently negotiated agreement between the parties, AFGE
 shall be ordered to comply therewith.
 
                                   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, the Authority hereby orders
 that the American Federation of Government Employees, AFL-CIO shall:
 
    1.  Cease and desist from:
 
    (a) Failing to abide by the terms set forth in the Memorandum of
 Understanding entered into with the Environmental Protection Agency on
 August 21, 1980, to the extent that such terms are not inconsistent with
 any subsequently negotiated agreement between the parties.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Abide by the terms set forth in the Memorandum of Understanding
 entered into with the Environmental Protection Agency on August 21,
 1980, to the extent that such terms are not inconsistent with any
 subsequently negotiated agreement between the parties.
 
    (b) Post at its business offices and in normal meeting places,
 including all places where notices are customarily posted at the
 Environmental Protection Agency, 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 President of the American
 Federation of Government Employees, AFL-CIO, or a designee, and shall be
 posted for 60 consecutive days.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Submit signed copies of such Notice to the Environmental
 Protection Agency for posting in conspicuous places where unit employees
 are located, where they should be maintained for 60 consecutive days
 from the date of posting.
 
    (d) 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., May 29, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Section 7116(b)(5) provides:
 
                   Section 7116.  Unfair labor practices
 
          (b) For the purpose of this chapter, it shall be an unfair
       labor practice for a labor organization --
 
                       . . . . . . .
 
          (5) to refuse to consult or negotiate in good faith with an
       agency as required by this chapter(.)
 
    (2) In this connection, the Authority takes official notice of Union
 Recognition in the Federal Government (1985), at p. 415, which indicates
 that an agreement covering certain of the Agency's employees and AFGE
 became effective on June 11, 1984, for a three-year period.
 
    (3) Such cases are to be distinguished from those in which the
 Authority found that single instances of noncompliance with agreements
 did not rise to the level of an unfair labor practice.  See Internal
 Revenue Service and Internal Revenue Service, Detroit District, 12 FLRA
 445 (1983) and cases cited therein at n. 3.  Rather, they would
 constitute contract violations which are cognizable under applicable
 negotiated grievance procedures.  See, in this regard, Environmental
 Protection Agency and Environmental Protection Agency, Region II, 20
 FLRA No. 76 (1985) at n. 4 and Social Security Administration, 15 FLRA
 614 (1984).
 
    (4) The Authority rejects the Respondent's argument that a memorandum
 of understanding executed on August 12, 1983 superseded the 1980 MOU and
 thus negated any subsequent repudiation.  In the Authority's view, the
 substance of the 1983 memorandum, which concerned the delegation of
 authority in the event of an extended absence by either of the parties'
 designated representatives at the national level, pertained to a
 separate matter than was contained in the 1980 agreement and did not,
 even by its own terms, supersede the 1980 agreement.
 
 
 
 
 
                                 APPENDIX
 
                 NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT fail to abide by the terms set forth in the Memorandum of
 Understanding entered into with the Environmental Protection Agency on
 August 21, 1980, to the extent that such terms are not inconsistent with
 any subsequently negotiated agreement between the parties.
 
    WE WILL abide by the terms set forth in the Memorandum of
 Understanding entered into with the Environmental Protection Agency on
 August 21, 1980, to the extent that such terms are not inconsistent with
 any subsequently negotiated agreement between the parties.
                                       (Union)
 
    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 any of its provisions, they may communicate directly with the
 Regional Director, Region III, Federal Labor Relations Authority, w