22:0586(64)CA - Agriculture and National Joint Council of Food Inspection Locals, AFGE -- 1986 FLRAdec CA



[ v22 p586 ]
22:0586(64)CA
The decision of the Authority follows:


 22 FLRA No. 64
 
 U.S. DEPARTMENT OF AGRICULTURE 
 FOOD SAFETY AND INSPECTION SERVICE
 Respondent
 
 and
 
 NATIONAL JOINT COUNCIL OF FOOD 
 INSPECTION LOCALS, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-30722
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice is before the Authority under section
 2429.1(a) of the Authority's Rules and Regulations, based on a
 stipulation of facts by which the parties have agreed that no material
 issue of fact exists.  Briefs for the Authority's consideration were
 filed by the Respondent, the General Counsel and the Charging Party (the
 Union).
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by insisting on bargaining to impasse with the Union on a
 matter which was outside the Union's duty to bargain.
 
                              II.  Background
 
    The Union represents a nationwide unit of permanent full-time food
 inspectors in the field service of the Respondent's Meat and Poultry
 Inspection Program.  In July 1983 the parties initiated negotiations.
 They reached impasse on about 26 proposed agreement articles in
 September 1983.  One of the articles, "Article 34," was at impasse
 because the Union opposed proposals by the Respondent which would
 require the parties to attempt to resolve potential unfair labor
 practices informally before an unfair labor practice charge could be
 filed under the Authority.  /1/
 
    In December 1983 the Respondent requested the assistance of the
 Federal Service Impasses Panel (the Panel) to resolve the impasse.  The
 Respondent continued to press its position for Article 34 in the
 mediation phase of the Panel's proceedings and in a Panel arbitration
 hearing, and the Union continued its opposition.  On March 23, 1984, the
 day following the Panel's arbitration hearing, the Respondent withdrew
 its proposals for Article 34 and agreed to the provisions for Article 34
 which had been proposed by the Union.
 
                      III.  Positions of the Parties
 
    The General Counsel and the Union argue that the Respondent's Article
 34 proposal, on "pre-charge" procedures, was outside the Union's duty to
 bargain because it would require the Union to waive its statutory right
 to file unfair labor practice charges in the manner provided by section
 7118 of the Statute.  They assert that the Respondent's insistence on
 bargaining concerning a subject which was outside the Union's duty to
 bargain (that is, on a "permissive" subject of bargaining" should be
 found to be a violation of the Respondent's statutory duty to bargain in
 good faith.
 
    The Respondent argues that it did not fail to bargain in good faith,
 because its proposed "pre-charge" procedure would not unlawfully
 interfere with the Union's rights and was within the Union's duty to
 bargain.
 
                               IV.  Analysis
 
          A.  Insisting on proposals which are outside the duty to
       bargain
 
    In Federal Deposit Insurance Corporation, Headquarters, 18 FLRA No.
 92 (1985), a case which presented an issue directly analogous to this
 case, the Authority found that agency management had insisted on
 bargaining to impasse, to and including Panel proceedings under section
 7119 of the Statute, concerning a proposal which was outside the union's
 duty to bargain.  In that decision the Authority first considered
 whether this practice amounted to a failure to bargain in good faith and
 decided in the affirmative, stating in part:
 
          (P)arties cannot insist on bargaining to impasse with respect
       to . . . matters (which are outside the duty to bargain). . . .
       Where a matter falls outside the required scope of bargaining . .
       . there is no mutual obligation to bargain at all.
 
    Finding that one of the proposals on which management had insisted
 was outside the union's duty to bargain, the Authority concluded that
 such conduct constituted a failure to bargain in good faith in violation
 of section 7116(a)(1) and (5) of the Statute.
 
    In this case it is stipulated that the Respondent insisted on
 bargaining to impasse, up to an including Panel proceedings, concerning
 proposals which were opposed by the Union.  As indicated in Federal
 Deposit Insurance Corporation, the resolution of this case depends on
 whether the Respondent's proposal was outside the Union's duty to
 bargain.
 
          B.  Whether the proposal was outside the Union's duty to
       bargain
 
    1.  The Proposal:  Respondent's Article 34 proposal would require
 either party to notify the other of a dispute and to follow certain
 procedures in an attempt to resolve the dispute before the complaining
 party could file an unfair labor practice charge with the Authority.
 /2/ The Union objected to the proposal because in its view the proposal
 would prevent the Union from exercising its right to file an unfair
 labor practice charge under section 7118 of the Statute.  /3/
 
    2.  Application of section 7118:  Section 7118 provides that an
 unfair labor practice charge may be filed at any time within six months
 from the date of the event complained of, or within six months of its
 discovery if discovery of the event has been prevented or concealed.  If
 the charge is not filed within six months, the General Counsel is
 precluded from issuing a complaint.  The person filing a charge may do
 so as soon as the events or actions complained of have occurred or have
 been discovered.  Alternatively, such person has at least six months to
 discover the occurrence, consider available options, and choose a
 position before filing the charge.  See United States Department of
 Labor, 20 FLRA No. 34 (1985), petition for review filed, No. 85-1770
 (D.C. Cir. Nov. 22, 1985) (the General Counsel may not issue a complaint
 on a charge filed more than six months from the date of the occurance
 unless the respondent has prevented discovery of the occurrence).
 
    The Respondent's proposal conflicts with section 7118 because, in
 requiring that the filing of charges would be delayed pending time spent
 on informal settlement efforts, the Union would be prevented from filing
 as soon as an event has occurred or been discovered.
 
    Notwithstanding this result, which conflicts with the Union's rights
 under section 7118, the Respondent argues that its proposed procedures
 are analogous to the procedures determined to be within the duty to
 bargain in American Federation of Government Employees, AFL-CIO, Local
 1999 and Army-Air Force Exchange, Dix-McGuire Exchange, Fort Dix, New
 Jersey, 2 FLRA 153, 153-58 (1979) (hereinafter Dix-McGuire), enforced
 sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
 cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).  In Dix-McGuire
 it was decided that procedures which would merely delay the exercise of
 statutory rights were within the duty to bargain.  However, as indicated
 by the Authority in its decision and by the D.C. Circuit in affirming
 the Authority's decision, the question presented in that case concerned
 the reconciliation of two apparently conflicting statutory rights, i.e.,
 the right of management in exercising rights reserved to management as
 provided under section 7106(a) of the Statute and the right of labor
 organizations in negotiating procedures bearing on the exercise of these
 management rights as provided under section 7106(b)(2) of the Statute.
 
    Unlike the question presented in Dix-McGuire, the right of a party to
 file an unfair labor practice charge under section 7118 does not involve
 the exercise of a management right to which section 7106(b)(2) is
 applicable.  Additionally, the right to file a charge is not subject to
 any competing statutory right of an opposing party to be free from being
 subject to a charge.  Hence, there is no analogy between the issue in
 Dix-McGuire and the issue raised by the Respondent.
 
    The Respondent also cites Headquarters, Fort Sam Houston, Department
 of the Army and American Federation of Government Employees, AFL-CIO,
 Local 2154, 8 FLRA 394 (1982), in support of its position.  In that case
 the agency excepted to an arbitrator's award to the effect that a
 contractual pre-charge procedure, i.e., a procedure which had been
 negotiated by the parties, was unenforceable.  In granting the exception
 and in setting the award aside, the Authority concluded that the
 arbitrator had erred in denying the grievance on the basis that the
 negotiated pre-charge procedure was unenforceable, stating that the
 Statute did not prohibit the union from agreeing to submit potential
 charges to management before it filed charges with the Authority.  Thus,
 the Respondent is correct in arguing that Fort Sam Houston held that
 these procedures are "negotiable," but only to the extent that
 "negotiable" is understood to mean "not illegal." It does not also mean,
 as the Respondent has argued, that a party may be compelled to bargain
 on the subject if it chooses not to do so.  /4/
 
    Contrary to the Respondent's assertions, this conclusion is not
 contradicted, but is supported by the report to Congress on these
 matters by the General Accounting Office in 1982.  Steps Can Be Taken To
 Improve Federal Labor-Management Relations and Reduce the Number and
 Costs of Unfair Labor Practice Charges, GAO/FPCD-83-5 (Nov. 5, 1982).
 Recognizing that statutory rights were involved, the GAO did not
 conclude that pre-charge procedures should be required.  It recommended
 that settlement discussions take place after a charge is filed and that
 investigations be delayed for such purpose.  In this regard, section
 2423.2(c) of the Authority's Rules and Regulations now provides that
 investigations will normally not commence until parties have been
 afforded a reasonable time, not to exceed 15 days, for such purpose.
 
    We acknowledge the Respondent's references to the Authority's
 comments in Fort Sam Houston on the need to encourage informal
 settlements.  We strongly encourage parties engaged in Federal
 labor-management relations to take the initiative in settling unfair
 labor practice disputes at any stage.  When settlement efforts are
 postponed, until charges are filed or the General Counsel decides
 whether a complaint should issue, timely solutions to the problem which
 gave rise to the dispute may be lost.  Recognizing this, parties often
 lose the incentive to seek their own solutions and concentrate their
 efforts on litigation.  A failure by the parties to attempt at every
 stage to resolve disputes voluntarily undermines the bilateralism which
 the Statute and the Authority are committed to fostering.
 
    Far too many disputes are taken to litigation because the parties do
 not talk with each other and seek mutually satifactory resolutions of
 their differences.  The best resolutions of differences are the
 resolutions the parties work out themselves.  Many unfair labor practice
 disputes appear to be susceptible to resolution by the parties
 themselves if they would initiate contact with each other in an attempt
 to resolve the dispute and approach such discussions with the thought
 that their differences can and should be resolved.
 
    We support the objective of Respondent's proposal and see no problem
 with the proposal insofar as it encourages the informal settlement of
 disputes.  The difficulty lies in the proposal's requirement that
 settlement discussions must delay the filing of a charge.  We interpret
 section 7118 of the Statute to establish certain rights regarding the
 filing of charges which a party may rely upon and withhold from
 bargaining if it so chooses.  As in Fort Sam Houston, a party may decide
 to waive these rights if it decides that there are benefits to that.
 However, also consistent with Fort Sam Houston, a party can decide to
 stand on its statutory right and refuse to bargain the issue.
 
    Based on this reasoning we decide that the procedures proposed by the
 Respondent are permissive subjects of bargaining for the Union because
 the procedures would require the Union to waive certain of its statutory
 rights.  In certain situations, without fault by either party, delaying
 the filing of a charge could mean that the charge would be filed more
 than six months after the occurrence.  The General Counsel would not be
 able to act on the charge.  This we feel is not consistent with section
 7118 of the Statute.  We are not persuaded by the Respondent's reasoning
 that its proposals should be found to be within the duty to bargain
 insofar as they would only delay filings.  The Statute provides that a
 party may file as soon as it wants to, and neither the language of the
 Statute nor the legislative history suggests that this right should be
 qualified.
 
                              V.  Conclusion
 
    The Authority has considered all the facts and circumstances of this
 case, including the positions of the parties, and concludes that the
 Respondent did violate section 7116(a)(1) and (5) of the Statute, as
 alleged in the complaint, by insisting or bargaining to impasse
 concerning a proposal which was outside the Union's duty to bargain.
 
                                   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 U.S. Department of Agriculture, Food
 Safety and Inspection Service shall:
 
    1.  Cease and desist from:
 
          (a) Insisting to impasse on a matter which is outside the
       required scope of bargaining with the National Joint Council of
       Food Inspection Locals, American Federation of Government
       Employees, AFL-CIO, the exclusive representative of its 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 U.S. Department of Agriculture, Food Safety and Inspection
       Service, or a 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 ensure
       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 with it.
 
    Issued, Washington, D.C., July 15, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The text of the Respondent's proposal is set forth in Appendix 1.
 
    (2) We deny the Respondent's motion to strike portions of the General
 Counsel's brief which are alleged to be an inaccurate description of the
 disputed proposal because we find that the General Counsel's description
 of the proposal is consistent with the record.
 
    (3) The applicable provisions of section 7118 are set forth in
 Appendix 2.
 
    (4) See American Federation of Government Employees, AFL-CIO and
 Equal Employment Opportunity Commission, 15 FLRA 283, 284 (1984), in
 which the Authority explained that while an agency cannot be required to
 negotiate procedures for the selection of candidates for supervisory
 positions, once negotiated, such procedures are enforceable.
 
 
                                 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 insist to impasse on a matter which is outside the
 required scope of bargaining with the National Joint Council of Food
 Inspection Locals, American Federation of Government Employees, AFL-CIO,
 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:  1111 18th Street, NW. 7th Floor (P.O. Box 33758),
 Washington, D.C. 20033-0758, and whose telephone number is:  (202)
 653-8500.
 
 
 
 
                                Appendix 1
 
    As pertinent herein, the procedures proposed by the Respondent, which
 led to the submission of the parties' impasse to the Panel, were as
 follows:
 
                Article XXXIV Unfair Labor Practice Charges
 
                     Section A -- Informal Resolution
 
          It is the intent of the Service and the Union that
       labor-management conflicts arising during the life of this
       Agreement be resolved promptly and equitably using bilateral
       resolution procedures.
 
                          Section B -- Procedures
 
          It is understood . . . that nothing in this section shall
       preclude either the Service or the Union from exercising rights
       under section 7116 of the . . . Statute.  However, in the interest
       of informally settling labor-management disputes bilaterally, the
       Service and the Union agree that:  Prior to . . . the . . . filing
       (of) an unfair labor practice charge with the . . . Authority the
       charging party shall provide written notice to the other party;
       (2) Notice shall be provided or received only by (designated
       officials of the Service and the Union);  (3) Such notice shall
       provide a statement of the particular subsections of . . . the
       Statute alleged to have been violated;  the time;  the place;  and
       the date of the alleged unfair labor practice . . . ;  and
       requested relief or settlement . . . ;  (4) The parties shall have
       (30) calendar days after receipt of notice . . . in which to
       informally resolve the matter in dispute;  (5) If not resolved
       during the above-mentioned (30) calandar day period, the charging
       party may escalate the matter to the . . . Authority;  (6)
       Extensions to the informal resolution period shall only be
       approved by mutual consent. . . .  (Emphasis added.)
 
                          Section C -- Exceptions
 
          Employees filing unfair labor practice charges shall not be
       compelled to utilize these procedures, but may do so at their own
       election.  Unfair labor practice allegations concerning strikes or
       other work stoppage activities covered by Section 7116(b)(7) of
       the . . . Statute are excluded from these procedures.
 
 
 
 
                                Appendix 2
 
    The provisions of section 7118 of the Statute which are relevant to
 the dispute are as follows:
 
            Section 7118.  Prevention of unfair labor practices
 
          (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.  In any case in which the General Counsel does not
       issue a complaint because the charge fails to state an unfair
       labor practice, the General Counsel shall provide the person
       making the charge a written statement of the reasons for not
       issuing a complaint.
 
          . . . . .
 
          (4)(A) Except as provided in subparagraph (b) of this
       paragraph, no complaint shall be issued based on any alleged
       unfair labor practice which occurred more than 6 months before the
       filing of the charge with the Authority.
 
          (B) If the General Counsel determines that the person filing
       any charge was prevented from filing the charge during the 6-month
       period referred to in subparagraph (A) of this paragraph by reason
       of --
 
          (i) any failure of the agency or labor organization against
       which the charge is made to perform a duty owed to the person, or
 
          (ii) any concealment which prevented discovery to the alleged
       unfair labor practice during the 6-month period,
 
          the General Counsel may issue a complaint based on the charge
       if the charge was filed during the 6-month period beginning on the
       day of the discovery by the person of the alleged unfair labor
       practice.
 
          (5) The General Counsel may prescribe regulations providing for
       informal meth