26:0299(39)CA - ACTION and AFSCME, Local 2027 -- 1987 FLRAdec CA



[ v26 p299 ]
26:0299(39)CA
The decision of the Authority follows:


 26 FLRA No. 39
 
 ACTION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES, 
 LOCAL 2027, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-60177
 
                     DECISION AND ORDER REMANDING CASE
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the General Counsel to the attached decision of the
 Administrative Law Judge.  /1/ The case concerns whether the Respondent
 violated section 7116(a)(1) and (5) of the Statute by refusing to
 negotiate over travel and per diem payments for Union representatives on
 official time.
 
                              II.  Background
 
    The pertinent facts in this case are not in dispute.  On January 9,
 1986, the parties executed a basic collective bargaining agreement.  On
 February 7, the agency head disapproved certain provisions of the
 agreement under section 7114(c) of the Statute.  On February 21, the
 Union requested negotiations over the payment of travel and per diem for
 Union representatives on official time.  On February 26, the Respondent
 refused to negotiate over the subject.  The Respondent asserted that the
 subject of travel and per diem was nonnegotiable despite the Authority's
 decision in National Treasury Employees Union and Department of the
 Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
 review filed sub nom. Department of the Treasury, U.S. Customs Service,
 No. 85-1198 (D.C. Cir. Mar. 27, 1986).  The Respondent also asserted
 that the Union waived any right to bargain over travel and per diem by
 executing the collective bargaining agreement on January 9.  The Union
 then filed the unfair labor practice charge in this case concerning the
 Respondent's February 26 refusal to negotiate.
 
    Subsequently, on May 22, 1986, while the charge was pending, the
 parties executed a new collective bargaining agreement with a
 retroactive effective date of March 27, 1986.  The agreement apparently
 has no provision for travel and per diem for Union representatives on
 official time and bars further negotiations except as provided in the
 agreement.  On May 30, 1986, the complaint in this case was issued
 alleging that the Respondent's refusal on February 26, 1986, to
 negotiate with the Union over travel and per diem allowances for Union
 representatives on official time violated section 7116(a)(1) and (5) of
 the Statute.
 
                           III.  Judge's Ruling
 
    At the hearing, after the presentation of the General Counsel's case
 in chief, the Judge granted the Respondent's motion to dismiss the
 complaint.  In his subsequent written decision, the Judge explained the
 basis for his ruling.  The Judge agreed that the record established as
 of February 26, 1986, a prima facie case of a refusal to bargain in
 violation of the Statute.  The Judge also rejected the Respondent's
 basis for its admitted refusal to bargain.  He concluded in accordance
 with U.S. Customs Service that the subject of travel and per diem for
 Union representatives on official time was negotiable.  He also
 concluded that under Authority precedent the disapproval of a portion of
 the January 9 agreement obligated the parties to return to the
 bargaining table to complete negotiations.  However, the Judge found
 that because the parties resumed negotiations and executed a full and
 complete collective bargaining agreement after the Respondent's refusal
 to bargain, the General Counsel failed to establish a prima facie case
 that the Respondent's refusal to bargain constituted an unfair labor
 practice.  Accordingly, the Judge recommended that the complaint be
 dismissed.
 
                       IV.  Positions of the Parties
 
    The General Counsel contends that the Judge's ruling that he failed
 to establish a prima facie case of a violation of the Statute is wrong
 both on the facts and the law.  The General Counsel maintains that the
 ruling should be reversed and that the case should be remanded for
 further proceedings.
 
    In its opposition to the General Counsel's exceptions, the Respondent
 contends that the General Counsel failed to meet the burden of
 establishing that the Respondent had violated the Statute.  The
 Respondent argues that the Judge correctly dismissed the case on the
 basis of the subsequent collective bargaining agreement despite its
 earlier refusal to negotiate.
 
                       V.  Analysis and Conclusions
 
    We reverse the Judge's ruling granting the Respondent's motion to
 dismiss and vacate his recommended order.  The Judge specifically found
 that the record established a prima facie case of a refusal to bargain
 in violation of the Statute as of February 26, 1986.  On this basis, we
 conclude that the General Counsel met his burden and properly rested his
 case in chief subject to rebuttal by the Respondent.  In American
 Federation of Government Employees, Local 495, 22 FLRA No. 98 (1986), we
 held that a prima facie case "is one in which the evidence presented
 would suffice to show that there is a basis for the theory of the case
 if such evidence is presumed to be true and the evidence presented by
 the opposing party is disregarded." Slip op. at 6.  We find that the
 General Counsel met that test.
 
    The evidence introduced by the General Counsel and credited by the
 Judge showed that the Respondent refused on February 26, 1986, to
 negotiate over travel and per diem allowances for Union representatives
 in violation of the Statute.  The General Counsel's case in chief was
 not required to encompass events subsequent to the refusal to bargain in
 order to establish a prima facie case of a violation of the Statute.
 Contrary to the conclusion of the Judge, we find that the subsequent
 execution of a collective bargaining agreement by the parties does not
 affect the General Counsel's prima facie case of an earlier refusal to
 bargain.  The effect of the terms and execution of the subsequent
 collective bargaining agreement in this case are matters which may be
 raised by the Respondent in response to the General Counsel's prima
 facie case, for example, as an affirmative defense or in mitigation.
 The General Counsel is not required to include in his prima facie case
 responses to anticipated defenses which have not yet been raised or
 proven by the Respondent.  Accordingly, the Judge erred in granting the
 motion to dismiss.  We therefore remand this case to the Judge for the
 purpose of reopening the proceedings in this matter to determine whether
 the Respondent violated the Statute as alleged in the complaint.
 
                                VI.  Order
 
    The complaint in Case No. 3-CA-60177 is remanded for action
 consistent with our decision.
 
    Issued, Washington, D.C., March 20, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 3-CA-60177
 
 ACTION
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF STATE, COUNTY AND 
 MUNICIPAL EMPLOYEES, LOCAL 2027, AFL-CIO
    Charging Party
 
    Stewart A. Davis, Esquire
    Joanna Dailey, Esquire
    For the Respondent
 
    Mr. Rodney T. White
    For the Charging Party
 
    Peter A. Sutton, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judges
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
 Section 7101, et seq., /2/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether the
 Complaint, which alleges a refusal to bargain a particular Union demand,
 is barred by the subsequent negotiation of an agreement in which the
 parties provided that " . . . they have bargained fully with respect to
 all proper subjects of bargaining and have settled all such matters as
 set forth in this Agreement . . . ", where the negotiated agreement
 neither excepted the demand from coverage of the agreement nor reserved
 the right to pursue the demand.
 
    This case was initiated by a charge filed on March 10, 1986 (G.C.
 Exh. 1(a) which alleged violations of Section 14(b)(1) and (2),
 16(a)(1), (5) and (8) of the Statute.  The Complaint and Notice of
 Hearing issued on May 30, 1986 (G.C. Exh. 1(c)), alleged violations of
 Section 16(a)(1) and (5) only, and set the hearing for July 22, 1986,
 pursuant to which a hearing was duly held on July 22, 1986, in
 Washington, D.C. before the undersigned.  At the conclusion of General
 Counsel's case, Respondent's motion to Dismiss, after oral argument, was
 granted;  however, the parties were granted leave to file briefs on or
 before August 5, 1986, and General Counsel on August 5, 1986, filed a
 brief in opposition to the granting of Respondent's Motion to Dismiss
 which has been carefully considered.  For reasons set forth hereinafter,
 I adhere to my ruling made at the hearing.
 
                                 Findings
 
    No testimony was presented.  General Counsel's case consisted wholly
 of six exhibits, and minor stipulations of the parties, as follows:
 
    1.  G.C. Exhibit 1(a)-1(k) -- Formal documents
 
    2.  G.C. Exhibit 2 -- Memorandum dated February 21, 1986, from Mr.
 Rod White, President of American Federation of State, County and
 Municipal Employees, Local 2027, AFL-CIO (hereinafter referred to as the
 "Union") to Mr. Tom Hyland, LRO, which stated:
 
          "In light of the recent FLRA decision on the negotiability of
       travel and per diem payments for Union representatives on official
       time, the Union is hereby exercising the right to bargain.
 
          "I would suggest we begin appropriate negotiations during the
       week of March 3, 1986 . . . . " (G.C. Exh. 2).
 
    3.  G.C. Exhibit 3 -- Memorandum from Mr. Hyland to Mr. White dated
 February 26, 1986, which stated, in part, as follows:
 
          "First, it should noted that the FLRA's decision regarding the
       duty to bargain over travel and per diem is not only inconsistent
       with the Supreme Court's decision in BAFT v. FLRA of November 29,
       1983 but is also in violation of a government-wide rule and
       regulation (46 Comp. Mem. 21, 21-22 of 1966) . . .  The FLRA's
       decision in 21 FLRA 2 will be contested in the Courts in the near
       future.
 
          Beyond that, it is the position of the Agency that in executing
       the basic labor-management agreement of February 9, 1986, the AEU
       waived any right to bargain over travel and per diem expenses for
       Union representatives.
 
                       . . . .
 
 
          Although the Parties were at one time impassed over the subject
       of Agency payment of travel and per diem expenses for Union
       representatives, the AEU withdrew that proposal . . . (prior to
       the execution of the basic labor-management agreement).
 
          "Consequently, no duty to bargain over the proposed matter
       exists and the Agency, therefore, elects not to bargain." (G.C.
       Exh. 3).
 
    4.  G.C. Exh. 4 -- letter dated February 7, 1986, from Ms. Donna M.
 Alvarado to Mr. Rodney T. White, President of the Union, informing the
 Union, pursuant to Section 14(c) of the Statute, of the disapproval of
 certain provisions of the negotiated agreement.
 
    5.  G.C. Exhibit 5 is a signed agreement dated May 22, 1986, which
 provides as follows:
 
          "The parties agree that effective date of the Action-AEU Basic
       Labor Management Agreement shall be March 27, 1986, the date that
       the Parties negotiated an agreement to resolve the issues
       disapproved by the Agency Director on February 7, 1986."
 
    6.  G.C. Exhibit 6 is the "Basic Labor-Management Agreement" between
 Action and Action Employees Union, American Federation of State, County
 and Municipal Employees Local 2027.  Under "Definitions and Status of
 Bargaining" it is provided as follows:
 
                         "B.  Status of Bargaining
 
          The parties agree that, except for the subjects of Performance
       Appraisal, Reduction-in-Force, and Incentive and Performance
       Awards (for which bargaining will be limited to the ACTION
       Orders), they have bargained fully with respect to all proper
       subjects of bargaining and have settled all such matters as set
       forth in this Agreement, pending any final decision on outstanding
       matters by the Federal Labor Relations Authority concerning
       proposals including negotiability questions." /3/ (G.C. Exh. 6).
 
    Article XXVI provides, in part, as follows:
 
          "Section B.  Mid-term renegotiation of Agreement articles may
       take place upon the first and second anniversary dates of the
       Agreement upon notice of either Party.  Such notice shall be
       tendered in writing at least thirty (30) days prior to the
       anniversary dates.  Each Party may offer no more than five (5)
       articles for renegotiation at each mid-term negotiation session."
       (G.C. Exh. 6).
 
                                CONCLUSIONS
 
    On January 9, 1986, the parties executed an agreement /4/
 (Stipulation, Tr. 11) which the Director disapproved in part on February
 7, 1986.  As General Counsel very correctly notes, when an agency head,
 pursuant to Section 14(c) of the Statute, disapproves a portion of an
 agreement, the agreement fails and the parties are obligated to return
 to the bargaining table to bargain a new agreement, Department of the
 Interior, National Park Service, Colonial National Historical Park,
 Yorktown, Virginia, 20 FLRA No. 65, 20 FLRA 537 (1985), wherein the
 Autority stated, in part, as follows:
 
          ". . . the failure of the Agency head to approve the agreement
       constituted a failure of a condition precedent, and the parties
       were effectively returned to the bargaining table to negotiate
       until agreement could be reached . . .  This obligation to bargain
       a new agreement is limited only by any 'ground rules' or
       procedures agreed upon by the parties under which negotiations
       were to be conducted." (20 FLRA at 542, n. 7).
 
    See, also, U.S. Department of Commerce, Bureau of the Census, 17 FLRA
 No. 97, 17 FLRA 667 (1985) (rejection by union membership).
 
    The agreement of January 9, 1986, having failed, the Union on
 February 21, 1986, demanded bargaining on travel and per diem for Union
 representatives on official time, a demand it had made but had withdrawn
 prior to execution of the January 9, 1986, agreement.  Its demand was
 negotiable, National Treasury Employees Union, 21 FLRA No. 2, 21 FLRA 6
 (1986) and Respondent's refusal to bargain because it was barred by the
 execution of the agreement of January 9, 1986, was without basis for the
 reason that the agreement of January 9, 1986, failed upon the Director's
 disapproval in part and the obligation of the parties to bargain a new
 agreement was " . . . limited only by any 'ground-rules' or procedures
 agreed upon by the parties under which negotiations were to be
 conducted." The Exhibits constituting the record in this case neither
 show any "'ground-rules' or procedures" nor do the Exhibits constituting
 the record assert any limitation to the parties' obligation to negotiate
 a new agreement.
 
    As of February 26, 1986, I quite agree with General Counsel that the
 record established a prima facie case of a refusal to bargain in
 violation of Sections 16(a)(5) and (1) of the Statute.  But the parties
 did resume negotiations and did reach a full and final Agreement on
 March 27, 1986, which Agreement was signed on May 22, 1986 (G.C. Exh.
 5), and made the Basic Labor-Management Agreement (G.C. Exh. 6)
 effective March 27, 1986.  /5/ The final agreement of the parties
 neither excepted the travel and per diem issue from its coverage, nor
 reserved the right to negotiate the travel and per diem issue.  By
 contrast, the parties specifically left open for bargaining ACTION
 Orders concerning Performance Appraisals, Reduction-in-Force, and
 Incentive Awards;  and negotiability questions pending before the
 Authority.  /6/ Because the final agreement of the parties specifically
 stated that,
 
          "The parties agree . . . they have bargained fully with respect
       to all proper subjects of bargaining and have settled all such
       matters as set forth in this Agreement . . . . " (G.C. Exh. 6)
 
    General Counsel failed to make a prima facie showing that, following
 resumption of negotiations after Respondent's initial refusal to
 bargain, and the negotiation and execution of a full and complete
 collective bargaining agreement, Respondent's refusal to bargain on
 February 26, 1986, constituted an unfair labor practice in violation of
 Sections 16(a)(5) or (1) of the Statute.  There is no question that the
 Union's demand was a "proper subject" of bargaining;  but the parties'
 March 27, 1986, negotiated agreement included the "Definition and Status
 of Bargaining" clause, as General Counsel concedes (G.C. Brief, p. 3).
 Accordingly, execution of the final, full agreement on May 22, 1986,
 barred negotiation of all proper subjects of bargaining, pursuant to the
 parties' "Zipper clause", not reserved for further bargaining.
 
    The finality of the Agreement of May 22, 1986, was further addressed
 by the parties in Article XXVI which limits mid-term negotiation to the
 first and second anniversary dates of the Agreement.  Moreover, after
 negotiation and execution of a basic collective bargaining agreement,
 there is no obligation on the part of an agency to bargain over
 union-initiated proposals except as the parties may have provided in
 their Agreement.  Internal Revenue Service, 17 FLRA No. 103, 17 FLRA 731
 (1985);  Defense General Supply Center, Richmond, Virginia, 20 FLRA No.
 63, 20 FLRA 516 (1985).
 
    Therefore, because General Counsel has failed to make a prima facie
 case that Respondent refused to bargain in violation of Sections
 16(a)(5) or (1) of the Statute, it is recommended that the Authority
 adopt the following:
 
                                   ORDER
 
    The Complaint in Case No. 3-CA-60177 be, and the same is hereby,
 dismissed.
 
                                       /s/ WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  August 19, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its opposition to the General Counsel's exceptions, the
 Respondent contends that the exceptions are untimely.  The Judge set the
 date of September 18, 1986, for filing exceptions by counting 30 days
 from the date of his decision.  The General Counsel's exceptions were
 filed on Septe