27:0268(38)CA - DOE, Western Area Power Admin., Golden, CO and IBEW Locals 640, 1759, 2159 -- 1987 FLRAdec CA



[ v27 p268 ]
27:0268(38)CA
The decision of the Authority follows:


 27 FLRA No. 38
 
 U.S. DEPARTMENT OF ENERGY, 
 WESTERN AREA POWER ADMINISTRATION, 
 GOLDEN, COLORADO
 Respondent
 
 and
 
 INTERNATIONAL BROTHERHOOD OF 
 ELECTRICAL WORKERS, AFL-CIO, 
 LOCALS 640, 1759, 2159
 Charging Party
 
                                            Case No. 7-CA-30398
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case 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 agree that no material issue
 of fact exists.  The General Counsel has filed a brief which has been
 adopted by the Charging Party (Union) in support of its position.  The
 Respondent has not filed a statement of position.
 
    The case concerns Respondent's actions in conducting a study of the
 functions and pay system for its wage-board supervisory craftsmen in
 July 1982-March 1983 and its action in implementing new wage rates for
 the supervisory craftsmen in June 1983.  The complaint alleges that the
 Respondent committed violations of the Statute by (1) bargaining
 directly with unit employees and bypassing the Union in the conduct of
 the study, (2) establishing the study without notifying and bargaining
 with the Union, and (3) implementing new pay rates without notifying and
 bargaining with the Union.
 
                              II.  Background
 
    The Union is the exclusive representative for Respondent's wage-board
 employees, including wage-board employees occupying the positions of
 foremen I, foremen II, and foremen III.  It has continued as the
 exclusive representative of bargaining units including these employees
 since 1980.  The Union and the Respondent are parties to a collective
 bargaining agreement which provides that the pay rates for these
 employees will be determined through collective bargaining.  Stipulation
 exhibit 2 at 18.
 
    The Union and the Respondent have been involved in a continuing
 dispute, since 1981, on whether employees occupying the positions of
 supervisory craftsmen, which were reclassified from the foremen I-III
 positions, are members of the Union's bargaining units.  This dispute
 was the subject of a 1982 decision by an Authority administrative law
 judge (ALJ) in Authority Case No. 7-CA-1229.  The ALJ's decision in Case
 No. 7-CA-1229 was under Authority review when the events of this case
 occurred and when the parties entered into the stipulation.  By
 agreement of the parties, the processing of this case was held in
 abeyance until the Authority issued its decision.  In July 1986 this
 decision issued as U.S. Department of Energy, Western Area Power
 Administration, Golden, Colorado, 22 FLRA No. 86 (1986) (WAPA 3),
 petition for review filed sub nom. U.S. Department of Energy v. FLRA,
 No. 86-2414 (10th Cir. Sept. 25, 1986).  In WAPA 3 the Authority
 determined that (1) Respondent's wage-board supervisory craftsmen were
 members of the Union's bargaining units and (2) the Union was entitled
 to bargain concerning their wage rates.
 
    As regards the events in this case, in July 1982 Respondent initiated
 a study of the functions and pay system for supervisory craftsmen.  The
 stated purpose of the study was to determine the need for revisions in
 the pay rates for supervisory craftsmen.  The Union was not notified of
 the establishment of the study or its implementation.  In written
 communications to the managers of Respondent's five area offices from
 July 1982 through February 1983, Respondent stated that the study would
 be conducted by a study group (labeled as a "task force" in 1983)
 composed of management officials and supervisory craftsmen designated by
 the managers, scheduled meetings for the study, and described the
 study's progress.
 
    On January 20, 1983, the Union filed a grievance with Respondent
 which alleged that Respondent had violated the parties' collective
 bargaining agreement and decisions of the Authority by unilaterally
 establishing a procedure to grade or classify supervisory craftsmen.
 Stipulation exhibit 13.  The parties agreed that the grievance would be
 held in abeyance pending a final decision on the unit status of the
 supervisory craftsmen.  Stipulation 19.
 
    On January 24, 1983, Respondent advised the office managers that as a
 result of a meeting of the study group on December 13, 1982, phase I of
 the study, concerning the establishment of functions and position
 descriptions for the supervisory craftsmen positions, was complete.  The
 managers were advised that phase II of the study, concerning pay
 criteria for the positions, would begin at a February 8 meeting.
 Stipulation exhibit 15.  This written communication listed the
 supervisory craftsmen who had been designated for participation in the
 study and it was distributed to these supervisory craftsmen.  The
 February 8 meeting was held, but was not attended by supervisory
 craftsmen.
 
    On February 18, 1983, Respondent advised the managers that
 classification criteria for the supervisory craftsmen positions had been
 approved as discussed on February 8.  The managers were instructed to
 prepare for discussions of the pay criteria in meetings on March 14-15,
 1983.  These meetings were held, and were attended by the supervisory
 craftsmen who had been listed in Respondent's communication to the
 managers on January 24, 1983.
 
    On March 22, 1983, Respondent disseminated final pay criteria for
 wage-board supervisory personnel to the office managers, explaining that
 the final criteria had been adjusted in accordance with the manager's
 views and as a result of questions raised by the task force.  Respondent
 also indicated that the effective date of the new criteria would be
 established by Respondent's administrator.  On March 23, 1983,
 Respondent acknowledged the Union's January 20 grievance and stated that
 the parties' negotiated grievance procedure would apply to the grievance
 if the supervisory craftsmen were determined to be members of the
 Union's bargaining units.  Stipulation exhibit 14.  The Union's January
 20 grievance continued to be held in abeyance by mutual consent.
 Stipulation 19.
 
    The Union filed an unfair labor practice charge against the
 Respondent on May 23, 1983, alleging that Respondent violated section
 7116(a)(2) and (5) of the Statute by (1) refusing to consult or
 negotiate in good faith with the Union on or about February 8, 1983, and
 (2) interfering with the rights of supervisory craftsmen to participate
 in the Union's affairs since February 8, 1983.  Stipulation exhibit 3.
 
    The Respondent implemented new classification and pay criteria for
 supervisory wage-board positions on June 13, 1983.  The Union filed a
 second unfair labor practice charge against the Respondent on October
 28, 1983, alleging that by creating a task force on pay rates for
 supervisory craftsmen which included unit employees, Respondent had
 bypassed the Union and bargained directly with employees since November
 1982, in violation of section 7116(a)(1) and (5) of the Statute.  The
 charge stated that the Union became aware of this bypass on February 8,
 1983.  The charge also alleged that Respondent violated section
 7116(a)(1) and (5) by implementing new pay rates for supervisory
 craftsmen on June 13, 1983, without notifying and bargaining with the
 Union.  Stipulation exhibit 4.
 
                      III.  Positions of the Parties
 
    The General Counsel notes that in WAPA 3, the Authority concluded
 that Respondent's wage-board supervisory craftsmen are members of the
 Union's bargaining units and that the Union is entitled to bargain
 concerning pay rates for these personnel.  Based on WAPA 3 and the
 record in this case, the General Counsel argues that Respondent
 committed the violations alleged in the complaint.  The General Counsel
 also argues that the Union's grievance of January 20, 1983, does not bar
 further processing of the complaint under section 7116(d) of the
 Statute.
 
                       IV.  Analysis and Conclusions
 
                        A.  The bypass allegations
 
    We conclude that the allegations in the complaint concerning the
 alleged bypasses are barred from further processing under section
 7118(a)(4)(A) of the Statute.
 
    Section 7118(a)(4) of the Statute prohibits the General Counsel from
 issuing a complaint that is based on an unfair labor practice charge
 which is filed more than 6 months after the actions or events complained
 of have occurred.  For example, Military Entrance Processing Station,
 Los Angeles, California, 25 FLRA No. 57 (1987).  In this case, the
 paragraphs in the complaint which concern the alleged bypass on the
 charge which the Union filed on October 28, 1983.  This date is more
 than 8 months after the most recent alleged bypass (February 8, 1983)
 and the date the Union stated it first learned of the alleged violation
 (also February 8, 1983).  On these facts, the Union's October 28 charge
 was untimely filed.  Accordingly, the allegations in the complaint which
 refer to Respondent's alleged bypass violations must be dismissed.
 
                    B.  The establishment of the study
 
    We conclude that the paragraphs in the complaint concerning
 Respondent's alleged violation in establishing the task force study
 without notifying and bargaining with the Union are barred by section
 7116(d) of the Statute.
 
    Section 7116(d) effectively provides that when in the discretion of
 the aggrieved party, an issue has been raised under the negotiated
 grievance procedure, the issue may not subsequently be raised as an
 unfair labor practice.  See Portsmouth Naval Shipyard and Department of
 the Navy (Washington, D.C.), 23 FLRA No. 68 (1986).  In this case, on
 January 20, 1983, the Union filed a grievance under the parties'
 negotiated grievance procedures which alleged that Respondent violated
 the parties' collective bargaining agreement and Authority decisions by
 establishing a procedure to grade and classify supervisory craftsmen
 without notice to and participation by the Union.  We find that the
 paragraphs in the complaint alleging that Respondent violated the
 Statute by establishing the task force study, which are based on the
 Union's charges, raise substantially the same issue as the earlier filed
 grievance.  Consequently, this allegation is precluded by section
 7116(d) from being raised under the unfair labor practice procedure.  We
 reject the General Counsel's contention that we should not address this
 issue because it was not raised by Respondent.  Because the issue is
 presented by the stipulation and the issue concerns the Authority's
 jurisdiction, it must be addressed.  See Portsmouth Naval Shipyard, 23
 FLRA No. 68.
 
                           C.  Revised pay rates
 
    We conclude that Respondent violated the Statute by implementing new
 pay rates for supervisory craftsmen on June 13, 1983, without notifying
 and bargaining with the Union, as alleged in the remaining paragraphs of
 the complaint.
 
    In WAPA 3, 22 FLRA No. 86 (1986), we considered whether Respondent
 was justified in refusing to bargain concerning pay rates for its
 wage-board supervisory craftsmen in 1981 based on its assertions that
 its supervisory craftsmen could not be members of the Union's bargaining
 units.  As explained in WAPA 3, we determined that Respondent's
 supervisory craftsmen were members of the Union's bargaining units.  We
 also determined that by the enactment of Section 704 of the Civil
 Service Reform Act of 1978, Congress intended that the pay of these
 personnel would be determined through collective bargaining.  Based on
 these determinations and the record in WAPA 3, which showed that
 Respondent had refused to bargain concerning pay rates for supervisory
 craftsmen, we concluded that Respondent's refusal to bargain was
 unjustified and clearly violative of section 7116(a)(1) and (5) of the
 Statute.
 
    The record in this case shows that the refusal to bargain by the
 Respondent in WAPA 3 was continued into 1983.  As found in WAPA 3,
 Respondent implemented new pay rates for supervisory craftsmen in 1981
 while refusing the Union's requests for bargaining.  In this case the
 record shows that Respondent revised the pay rates for supervisory
 craftsmen and ignored the Union's statutory rights to bargain.  As in
 WAPA 3, the refusal-to-bargain violation is clear.
 
                               V.  Decision
 
    The allegations in the complaint which concern Respondent's alleged
 bypasses of the Union and its action in establishing the task force
 study must be dismissed.  Further processing of these allegations is
 barred under sections 7118(a)(4) and 7116(d) of the Statute.  The third
 allegation, which states that Respondent violated section 7116(a)(1) and
 (5) by implementing new pay rates for supervisory craftsmen in June 1983
 without notifying and bargaining with the Union must be sustained.
 
    Regarding the appropriate remedy, in WAPA 3 we concluded that the
 violations in that case required a remedy under which the Respondent
 would be ordered to bargain as requested by the Union and to give
 retroactive effect to the agreement reached.  We conclude that
 Respondent's conduct in this case in ignoring the Union's statutory
 bargaining rights requires the same remedy.  Accordingly, in remedying
 this violation, we will require the Respondent to bargain concerning pay
 rates for supervisory craftsmen as requested by the Union and give
 retroactive effect to the agreement reached.
 
                                VI.  Order
 
    A.  Pursuant to section 2423.29 of the Authority's rules and
 regulations and section 7118 of the Statute, the United States
 Department of Energy, Western Area Power Administration, Golden,
 Colorado, shall --
 
    1.  Cease and desist from:
 
          (a) Implementing changes in the pay rates of supervisory
       craftsmen without notifying and bargaining with the exclusive
       representative, the International Brotherhood of Electrical
       Workers, AFL-CIO, Locals 640, 1759, and 2159.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights under the Statute.
 
    2.  Take the following affirmative action to effectuate the purposes
 and policies of the Statute:
 
          (a) Upon request, negotiate in good faith with the exclusive
       representative, the International Brotherhood of Electrical
       Workers, AFL-CIO, Locals 640, 1759, and 2159, concerning the rates
       of pay for supervisory craftsmen, including the revisions in pay
       rates for these personnel which were implemented on June 13, 1983,
       and apply whatever agreement is reached concerning the June 13,
       1983, revisions retroactively.
 
          (b) Post at its facilities in Golden, Colorado, and its
       facilities in each of its area offices, copies of the attached
       Notice on forms furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Administrator and shall be
       posted and maintained for 60 consecutive days in conspicuous
       places, including all places where notices to emlployees are
       customarily posted.  Reasonable steps shall be taken to ensure
       that these Notices are not altered, defaced, or covered.
 
          (c) Notify the Regional Director of Region VII, Federal Labor
       Relations Authority, in writing as required under section 2423.30
       of the Authority's rules and regulations, of the steps taken to
       comply with this Order.
 
    B.  The allegations in the complaint concerning bypasses of the Union
 and the establishment of the task force study are dismissed.
 
    Issued, Washington, D.C., May 29, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                      WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT implement changes in the pay rates of supervisory
 craftsmen without notifying and bargaining with the International
 Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159,
 the exclusive representative of these employees.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of the rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon reqquest, negotiate in good faith with the
 International Brotherhood of Electrical Workers, AFL-CIO, Locals 640,
 1759, and 2159, concerning the rates of pay for supervisory craftsmen,
 including the revisions in pay rates for supervisory craftsmen which we
 implemented on June 13, 1983, and apply whatever agreement is reached
 concerning the June 13, 1983, revisions retroactively.
                                       ... (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, Region VII, Federal Labor Relations Authority, whose address
 is:  535 16th Street