31:0267(27)CA - DOI, Washington, DC and Bureau of Indian Affairs, Washington, DC and Flathead Irrigation Project, St. Ignatius, MY and IBEW Local 768 -- 1988 FLRAdec CA
[ v31 p267 ]
The decision of the Authority follows:
31 FLRA No. 27 DEPARTMENT OF THE INTERIOR WASHINGTON, D.C. and BUREAU OF INDIAN AFFAIRS WASHINGTON, D.C. and FLATHEAD IRRIGATION PROJECT ST. IGNATIUS, MONTANA Respondents and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 768 Charging Party Case No. 7-CA-60117
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondents--the Department of the Interior (the Department), the Bureau of Indian Affairs (BIA), and the Flathead Irrigation Project, St. Ignatius, Montana (the Project) --to the attached Decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondents' exceptions.
The complaint alleged that the Respondents violated their duty to bargain under section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by (1) conditioning implementation of a collective bargaining agreement on a re-signing of the agreement by the Charging Party (the Union); and (2) repudiating an oral agreement between an employee of the Respondents and the Union to make increased call-back premium pay retroactive to [PAGE] October 5, 1984. The Judge concluded that the Respondents' conduct in both respects violated the Statute and he recommended that the Respondents be ordered to take appropriate remedial action.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. We find, contrary to the Judge, that the Respondents did not violate the Statute. We find that the Respondents' action in requiring the Union to re-sign the collective bargaining agreement was consistent with the Statute. We further find that even assuming that an oral agreement could bind the Respondents in the circumstances of this case, there was no meeting of the minds as to the specifics of the alleged agreement and therefore there was no showing that the agreement was repudiated by failing to make increased call-back premium pay retroactive to October 5, 1984. Accordingly, we will dismiss the complaint.
BIA and the Union have been parties to a Basic Agreement since 1967. The contract provides for bargaining on wages under section 704 of the Civil Service Reform Act of 1978. On October 4, 1984, the Union and the Project signed a collective bargaining agreement that, among other things: (1) established that wage surveys for employees' wages would be made annually and the effective date for new wage schedules would be July 1 of each year; (2) increased call-back premium pay from 40 to 50 percent of a journeyman's daily pay; and (3) changed the minimum allowable increments of leave time from 60 to 30 minutes. At the time of the agreement, the Agency's regulations allowed nothing less than 60-minute increments of leave. However, the Agency was conducting a study aimed at changing the regulations to allow a lower minimum increment.
The agreement stated that the effective date of the agreement shall be the date of approval by the Department.
On November 1, 1984, pursuant to its review of the agreement under section 7114(c) of the Statute, the Department rejected the 30-minute increments clause as contrary to the Agency regulations then in effect, and it disapproved the entire agreement. The Department instructed [ v31 p2 ] BIA's Area Director to resubmit the entire agreement for review and approval after the increments clause was revised to conform with the Agency regulations then in effect. On December 14, 1984, the Union wrote to the Bureau and requested that the Bureau forward the Union's letter, in which the Union requested the Department to reconsider its rejection of the contract, to the Department. On February 1, 1985, the Bureau responded to the Union's letter and noted that it had forwarded the Union's request for reconsideration to the Department. The Bureau stated that it supported a change in the Department's leave policy, but that only the Department had the authority to approve or disapprove collective bargaining agreements. The Department did not answer the Union's request for reconsideration.
On March 4, 1985, the Union wrote letters to U.S. Senators John Melcher and Max Baucus seeking their assistance in the matter. Senator Melcher responded to the Union on April 19, 1985, enclosing BIA's answer of April 13, 1985, to his inquiry. BIA's letter to Senator Melcher noted that the Department had disapproved the contract pursuant to the review provisions of section 7114(c) of the Statute, and that the "appropriate procedure for the union to contest this disapproval was to file a negotiability dispute with the Federal Labor Relations Authority (FLRA) in accordance with procedures established by the FLRA. The union failed to follow the required procedures and is now seeking reconsideration through inappropriate methods., General Counsel Exhibit 16. BIA's letter further stated that the Department was considering proposed changes to its leave regulations, and that if the changes were to be implemented the Union and the Project could "negotiate contract language that is in conformance with the regulations and resubmit the entire agreement to the Department for review and approval., Id.
Senator Baucus responded to the Union on June 21, 1985, enclosing a copy of the Department's response of April 18, 1985, to his inquiry. The Department's letter to Senator Baucus noted that the Department had disapproved the contract based on the conflict between the proposed contract language and the Department's leave regulation. The letter also noted that the Department had since reviewed its leave policy and that it was "also approving the previously disapproved agreement which will resolve this issue." General Counsel Exhibit 18. [ v31 p3 ]
Meanwhile, on May 1, 1985, the Department had informed the Project that it had reviewed its leave policy and delegated the authority to bureaus for setting leave increments, and that "the previous package of negotiated proposals are to be resubmitted to this office for review and approval." General Counsel Exhibit 27.
In late June, the Project asked the Union to sign a new signature page for the agreement. The Union refused to sign. According to the testimony of Union official Alan Solum, the Union did not sign because it feared that a new signature would lead to a new approval date and that the Respondents "would use the new approval date as a vehicle by which not to pay the employees" the call-back premium pay. Transcript at 118.
On September 18, 1985, the Union filed a grievance alleging that the failure of the Project and BIA to initiate the new 50 percent call-back premium pay rate as agreed to on October 4, 1984, violated the parties' contract. The Project Engineer replied to the grievance on October 2, 1985. The reply stated, in part:
In accordance with instructions from the Department, the Basic Agreement was recirculated for signature on 6-24-85 in accordance with 5 U.S.C. 7114(c)(1) and (2). It is my understanding that the Local has failed to sign off on this Agreement.
Since the implementation of the call back alert pay provision is vitally linked on the approval of the Basic Agreement, that specific provision cannot be implemented until the Department approves the Agreement. Therefore, I e(a)rnestly request that the Local review the Agreement and sign-off on it so that it can be forwarded to the Department for review and approval.
General Counsel Exhibit 20.
On October 2, 1985, after learning of the reply to the grievance, Solum asked BIA about the re-signing requirement. BIA advised Solum that the requirement was based on a Department regulation and that a copy would be sent to Solum. BIA sent Solum a copy of section 7114(c) of the Statute with a note stating that "the reason that the [ v31 p4 ] Department wanted a new signature sheet on the Basic Agreement is because of the time constraints outlined in 5 USC 7114(c)(2) and (3)." General Counsel Exhibit 21. The Judge found that the conversation between BIA and Solum on October 2, 1985, and the grievance response of the same date "were the first times that the Local was . . . clearly informed that resignature was a condition precedent to approval of the agreement." Judge's Decision, slip op. at 7.
On October 4, 1985, an official of the Union's Washington office suggested that Solum discuss the matter with BIA Labor Relations Specialist Martin Johnson. Johnson, who was on the staff of John Combs, Chief of the Branch of Employee and Labor Relations, BIA, was assigned to the call-back premium pay grievance. Solum testified that he told Johnson that the Union's objection to re-signing the agreement was based on Solum's fear that management would use the resignature page to deny the employees the increase in beeper pay that the Union believed was owed to the employees from the time of the October 4, 1984, agreement. Solum testified that Johnson said to him that the Government had no intention of denying Project employees "any money that was due them." Transcript at 138. Johnson did not testify.
Solum also testified that Johnson read him a letter from Combs. The letter, dated October 4, 1985, was a memorandum to the Union regarding the status of the collective bargaining agreement. The memorandum set forth the background regarding the disapproval of the contract, and further stated:
Until (the Union) signs the agreement for resubmittal, the Department cannot approve the agreement. Without the Departmental approval the contract cannot be implemented.
Since the agreement is still at Flathead Irrigation Project, I suggest both parties sign a new signature page so that the dates of signature will be current and compatible, then resubmit the entire agreement for approval. Once the agreement has been approved, all monies properly owed to employees will be payed (sic) retroactively.
General Counsel Exhibit 22. Solum testified that he understood that the employees would be receiving call-back [ v31 p5 ] premium pay retroactive to October 1984, and based on this understanding Solum took the resignature question to the membership. After receiving the membership's approval, Solum re-signed the signature page on October 16, 1985. The Department approved the agreement on November 17, 1985.
On December 3, 1985, the Union filed a second grievance alleging that BIA violated the parties' master agreement because employees were not receiving basic wages commensurate with the already completed wage survey. On January 13, 1986, the Union filed the unfair labor practice charge that gave rise to the complaint in this case.
III. The Judge's Findings
A. Procedural Issues
The Respondents argued that the Judge should dismiss the complaint (1) under section 7118(a)(4)(A) of the Statute because the charge was filed untimely; and (2) under section 7116(d) because the same matter was the subject of an earlier grievance.
As to the first procedural issue, the Judge found that the charge was timely filed, within 6 months of the date the Union was plainly told of the Respondents' requirement that the agreement be re-signed as a precondition to resubmittal of the agreement to the Department (October 2, 1985). He rejected the argument that the Union understood the requirement to have been imposed at least as early as May 1, 1985, when the Respondents' Project Manager was directed to resubmit the agreement for approval. He found that the Union was not aware of that directive.
As to the second issue, the Judge found that the September 18, 1985, grievance and the unfair labor practice did not concern the same factual situation or issue. He found that the grievance concerned the contractual right of the employees to call-back premium pay, while the unfair labor practice concerned the statutory right of the Union not to be required to re-sign a valid agreement. Over the objection of the General Counsel, the Judge admitted into evidence the grievance filed on December 3, 1985, which he found also concerned matters different from those in the unfair labor practice. The Judge further found that even if the issues raised in the September 18, 1985, grievance and the unfair labor practice are the same, this fact should not bar [ v31 p6 ] the unfair labor practice charge because the Union's failure to pursue the grievance was due to the Respondents' misleading assurances that call-back premium pay would be retroactive if the union re-signed the agreement. Judge's Decision, slip op. at 16.
B. The Re-signing Requirement
The Judge acknowledged that under Authority case law, disapproval of an agreement by an agency head pursuant to section 7114(c) review ordinarily voids the entire agreement. However, he found that: (1) the subject matter of the only clause disapproved was a matter covered by Agency regulations which were under reconsideration at the time of the disapproval; (2) the Department had assured a Senator that the regulations were being changed and that the agreement would be approved; (3) BIA had assured the Union that re-signing would not preclude the retroactivity of the new premium pay; (4) the regulations were in fact changed; and (5) the agreement that the Department required to be re-signed contained no changes in content.
The Judge also stated that "(w)hat convinces me that the resignature requirement does rise to the level of an unfair labor practice, as opposed to a good-faith dispute over the parties' contractual obligations, is that Respondents ignored the Union's request for reconsideration and failed to keep the local informed except as Congressional correspondence unavoidably had that result." Judge's Decision, slip op. at 19-20. The Judge found that in these Circumstances, the Respondents violated section 7116(a)(1) and (5) of the Statute by requiring an unnecessary re-signing of the agreement as a precondition to approval of the agreement and making it effective.
C. The Alleged Repudiation of an
The Judge found that in response to the Union's grievance, the Respondents, through BIA agent Johnson, orally assured the Union that once the agreement was re-signed, the premium pay would be retroactive to October 5, 1984. He found that the same assurances were implied in the letter from Combs to the Union. The Judge noted that the parties' Basic Agreement provided that after Agency disapproval, only the portion of the agreement disapproved may be renegotiated. The Judge rejected the Respondents' argument, based on Comptroller General decisions, that retroactive [ v31 p7 ] payments would be illegal. He concluded that the Respondents violated section 7116(a)(1) and (5) by repudiating Johnson's oral agreement with the Union.
IV. Positions of the Parties
A. The Respondents
The Respondents filed numerous exceptions to the Judge's findings and conclusions, and to his recommended Order. The exceptions are summarized as follows:
The Respondents disagree with the Judge's finding that the unfair labor practice charge was timely filed, arguing as they did before the Judge that the Union was aware of the re-signing requirement from past experience and from at least as early as May 1, 1985, when the Department informed its Project Manager that the rejected agreement was to be resubmitted to the Department for review and approval. Also, the Respondents raise a new procedural point for the first time in their exceptions. They argue that the complaint differs substantively from the charge and therefore "amends" the charge impermissibly. According to the Respondents, this amendment makes the issue raised untimely. The Respondents disagree with the Judge's finding that the complaint and the September 18, 1985, grievance are different. The Respondents also argue that the December 3, 1985 grievance was an attempt to raise the same basic issues raised in the first grievance.
The Respondents except to the finding of any violation. As to the re-signing of the agreement, the Respondents argue that when the Department disapproved a part of the agreement in 1984, the entire agreement became null and void. The Respondents contend that the Union was aware that the Respondents' position from the time of its rejection had been that re-signing was necessary. They further argue that the Agency's statutory obligation was to ensure that the entire agreement was in accordance with law and regulation current at the time of approval, and that its own regulations had changed since the Department's original review of the parties' agreement. Hence, the Respondents contend that re-signing and resubmission were necessary in order to accomplish the required statutory review.
As to Johnson's alleged oral agreement, the Respondents argue first that Agency regulations and the parties' agreement require all final agreements to be in writing, and [ v31 p8 ] that an oral agreement cannot be used to interpret such language. Further, the Respondents argue that there was no "meeting of the minds" between Johnson and the Union on when call-back premium pay would be effective. They also argue that the matter was an entirely local matter and that Johnson had no authority to bind the Department. Finally, the Respondents contend that an agreement to provide retroactive call-back premium pay would violate Comptroller General decisions.
B. The General Counsel's Opposition
The General Counsel supports the Judge's findings, conclusions, and recommended remedy. The General Counsel asserts that the Respondents' exceptions concerning: (1) the timeliness of the charge; (2) the applicability of section 7116(d); (3) the oral agreement and its repudiation; and (4) the re-signature requirement, provide no basis for overturning the Judge's Decision.
A. Procedural Issues
We reject the Respondents' assertion that the unfair labor practice charge, which was filed on January 13, 1986, was untimely filed. We agree with the Judge's finding that the first time the Union was clearly told that it was required to re-sign the parties' collective bargaining agreement as a precondition to resubmittal of the agreement to the Department was October 2, 1985. Therefore, we agree with the Judge's conclusion that the unfair labor practice charge was timely filed within the 6-month period set forth in section 7118(a)(4)(A) of the Statute.
The Respondents contend that the unfair labor practice complaint should be dismissed because the charge did not encompass the issue on which the complaint was issued. We reject this contention. The Judge found (slip op. at 13) that the "issues advanced by the complaint (constituted) a permissible, unchallenged departure from the charge(. )" There has been no showing that the Respondents could not have raised this contention in the answer to the complaint or before the Judge. Further, section 2429.5 of the Authority's Regulations provides that "(the) Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . Administrative [ v31 p 9 ] Law Judge(.)" Therefore, this issue, raised for the first time in the Respondents' exceptions, is not properly before us. See United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protect on and Quarantine, 26 FLRA 630 (1987). Moreover, if the issue were properly before us, we would reject the Respondents' argument because in our view the issuance and contents of the complaint comply with the requirements in section 2423.12 of our Regulations, and the allegations in the complaint bear a relationship to the charge and are closely related to the events complained of in the charge. See Bureau of Land Management, Richfield District Office, Richfield Utah, 12 FLRA 686 (1983).
The Respondents also assert that the complaint is barred under section 7116(d) of the Statute. In agreement with the Judge, we reject this assertion. Section 7116(d) provides that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures." The Judge found, and we agree, that the September 18, 1985, grievance sought to enforce the contractual right of the employees to call-back premium pay, while the unfair labor practice charge sought to enforce the statutory right of the Union not to be required to re-sign a validly executed agreement. We also agree that the December 3, 1985, grievance, which dealt with the contractual right of the employees to the implementation of changes in their basic wage rates, likewise raised issues which differed from those raised by the unfair labor practice charge.
B. Resignature Requirement
We disagree with the Judge's conclusion that the Respondents committed an unfair labor practice by requiring the Union to re-sign the agreement in the circumstances of this case. The Department disapproved the agreement in November 1984. As a result of that disapproval, the agreement did not take effect. See National Park Service Harpers Ferry, West Virginia, 15 FLRA 786, 789 (1984) (where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties). Further, "the failure . . . to implement any portion of the local agreement not specifically disapproved by the (a)gency head in the absence of the parties' prior agreement to do so does not constitute [ v31 p10 ] a violation of the . . . duty under the Statute to bargain in good faith." Department of Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985), affirmed sub nom. FLRA v. National Association of Government Employees, Local R4-68, 802 F.2d 1484 (4th Cir. 1986). In this case, the record does not support a finding that the parties agreed to implement portions of the local agreement which were not disapproved by the Department.
When Project management requested that the Union re-sign the agreement, management made it clear that the re-signing was necessary in order for the Department to fulfill its statutory duty to review and approve the agreement. In our view, the Respondents' request that the union re-sign the agreement was an appropriate means of complying with the requirements of section 7114 of the Statute. Thus, we do not find that, in and of itself, the act of requiring the Union to re-sign the agreement so that the agreement could be forwarded for agency head review pursuant to section 7114(c) of the Statute constitutes an unfair labor practice.
We also note that the Statute and well-established Authority precedent establish a procedure through which a union can resolve disputes relating to an agency head's disapproval of contract provisions under section 7114(c). An agency head's disapproval of contract provisions, when served on the union involved, constitutes an allegation of nonnegotiablility under section 2424.3 of the Authority's Regulations. See, for example, American Federation of Government Employees, AFL - CIO, Local 2 and Department of the Army, U.S. Army Material Development and Readiness Command, Harry Diamond Laboratories, 11 FLRA 359, 361 (1983), and cases cited therein. Thus, as the Judge noted at 4 of his Decision, the Union in this case could have used the negotiability dispute resolution procedures of section 7117 of the Statute to bring the matter before the Authority. Instead, the Union chose to pursue other routes, including seeking reconsideration from the Department of its disapproval of the contract, which is a procedure not contemplated by section 7114(c). The procedures established by the Statute are intended to assist in the resolution Of disputes between the parties, and we recommend that parties consider their use in appropriate circumstances. [ v31 p11 ]
C. Alleged Oral Agreement
we also disagree with the Judge's conclusion that the Respondents committed an unfair labor practice by repudiating an alleged oral agreement made by the Respondents' agent Johnson. Even assuming that (1) an oral agreement which arguably varies the parties' written understanding could bind the Respondents and (2) Johnson was acting as Respondents' authorized agent during the October 1985 phone conversation with Solum, we cannot conclude, based on the record before us, that Johnson agreed that call-back premium pay would be made retroactive to October 5, 1984. In his conversation with Solum concerning the September 18, 1985 grievance, Johnson stated that the Government had no intention of denying employees "any money that was due them," and he read to Solum a letter from Combs that stated that once the agreement had been approved "all monies properly owed to employees" will be paid retroactively. Combs testified at the hearing that his letter to the Union made reference to the retroactivity of wage schedules, but made no commitments with regard to beeper pay. Transcript at 266. As noted above, Johnson did not testify at the hearing.
On this record, we cannot conclude that Johnson agreed to make an increase in call-back premium pay retroactive to October 5, 1984. The words of Johnson were that employees would not be denied "any money that was due them." The words of Combs were that once the agreement had been approved, Ball monies properly owed to employees, will be paid retroactively. Neither statement: (1) differentiates between basic wages and premium pay; (2) identifies any specific contractual provisions to which the statements might have been referring; (3) makes specific reference to call-back premium pay; or (4) identifies October 5, 1984, or, for that matter, any particular date as the date to which payments would be made retroactive.
Although it is clear from Solum's testimony that he thought Johnson was agreeing to call-back premium pay retroactive to October 5, 1984, this belief on Solum's part is not sufficient by itself to establish that there was any meeting of the minds between Johnson and Solum as to what specifically were the terms of any agreement. The statements are so general in nature that they are susceptible to varying meanings, as the parties have argued to us in this case. Further, as noted by the Judge, "(t)here appears to have been no discussion concerning the meaning of the arguably [ v31 p12 ]
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DEPARTMENT OF THE INTERIOR WASHINGTON, D.C. and BUREAU OF INDIAN AFFAIRS WASHINGTON, D.C. and FLATHEAD IRRIGATION PROJECT ST. IGNATIUS, MONTANA Respondents and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 768 Charging Party Case No.: 7-CA-60117 Nicholas J. LoBurgio, Esquire For the General Counsel Gerald Rachelson, Esquire, John Combs and Patrick Hamilton For the Respondents Alan R. Solum For the Charging Party Before: JOHN H. FENTON Chief Administrative Law Judge
Statement of the Case
This matter arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. S 7101, et seq. [PAGE]
Pursuant to an unfair labor practice charge filed by the International Brotherhood of Electrical Workers, AFL - CIO, Local 768 on January 13, 1986, the Director for Region VII of the Federal Labor Relations Authority issued a Complaint alleging that Respondents violated Section 7116(a)(1) and (5), essentially by refusing to commence payment of increased call-back pay negotiated in 1984, until the agreement, which was disapproved by the Agency head, had been re-signed and again approved (although it never changed in any respect) in November of 1985. The Complaint also alleged that Respondent repudiated an oral agreement made by an agent of Bureau of Indian Affairs (BIA), to pay such monies retroactively to the date the contract was first agreed upon, if the Union would re-sign. Respondents deny they were obligated, or even legally permitted to institute such pay at an earlier date. They also assert that no such oral agreement was or could have been made, that the charge as concerns the resignature requirement was filed too late, and that the complaint is precluded by a grievance addressed to the same subject matter.
A hearing was conducted in Kalispell, Montana, at which all parties were represented and were afforded an opportunity to adduce evidence, to call, examine and cross-examine witnesses, and to argue orally. Respondents and General Counsel filed briefs.
Upon the entire record in this case, and my observation of the witnesses, I make the following findings of fact, conclusions of law and recommendations.
Findings of Fact
IBEW Local 768 and Respondent Flathead Irrigation Project have been parties to a series of collective bargaining agreements since 1967. The instant case arises from the negotiation of certain revisions to the basic agreement which were negotiated in 1984. As a backdrop to those negotiations the General Counsel views as important the history of revisions negotiated in 1982.
Those revisions were rejected by the Director of Personnel for Interior on July 13, 1982, for unknown reasons pursuant to his powers as Agency head under Section 7114(c). 1 [ v31 p2 ] The offending language was renegotiated, the parties signed the new agreement, and it was forwarded on August 26, 1982 to BIA Washington, where it apparently was lost. it was found and "approved" by the Agency head. On August 15, 1983, the Chief Personnel Officer of BIA sent the approved agreement or provisions back to the Portland Area Office of BIA, with a request that it notify Local 768 that the approved agreement was effective back to September 25, 1962. 2 During the eleven month period preceding such notice of the existence of an approved agreement, the wage surveys required by the contract were conducted, call-back pay was made, and grievances were processed.
Pursuant to a reopener clause Local 768, on August 3, 1984, requested negotiations on five subjects. On October 4 agreement was reached. In relevant part it provided for an increase in "call back alert" premium pay (beeper pay) from 40% to 50% of a Journeyman's daily pay and for a decrease in the allowable increments of leave time from one hour to 30 minutes (the Local had requested 15 minute increments). Local management favored the latter change, although it conflicted with a Department regulation. Revision of that regulation was then, however, under study. Interior's Director of Personnel had sought input concerning a reduction of the minimum charge in a memorandum which was to be answered by subordinates by September 24, 1984. In that memo, after noting that the existing minimum might cause unions to seek to negotiate lesser amounts and to challenge the need for the one hour minimum, the Director said that the PAY/PERS coordinator had indicated that "it is feasible to make charges for leave in increments of less than one hour." [ v31 p3 ]
In late October, a Ms. Sharon Stewart of BIA headquarters called Alan Solum, Assistant Business Manager and Chief Negotiator for the Local. She informed him that the provision for 30 minutes of leave was going to be disapproved and suggested that if the language of the agreement was changed to permit leave to be taken "in accordance with existing policy" it would both avoid conflict with the present regulation and also prepare the parties for the possibility that the leave study underway would result in a reduction of allowable leave increments to 15 minutes, thus allowing Local 768 to achieve what it originally wanted. Solum took the proposal back to the membership, which rejected it on the ground that the parties had signed off on an agreement after the usual give-and-take of good faith bargaining and that the Project management had taken the position that leave increments of 15 minutes would be burdensome for it. Solum conveyed this decision to Stewart.
On November 1, 1984, Interior's Director of Personnel disapproved the "basic agreement" in accordance with Section 7114(c), on the ground that the new provision for use of leave in 30-minute increments was contrary to the Departmental regulation establishing a one hour minimum. He instructed BIA's Area Director to resubmit the entire contract for review and approval upon revision of its language to conform with regulations.
Local 768 did not file a negotiability appeal, as it might have under Section 7117, thereby placing before the Authority the question whether a compelling need existed for an agency regulation requiring a one hour minimum charge to leave. Given the indicated feasibility of a lesser charge, it would appear unlikely that the Department could have prevailed in such a contest. Instead Local 768 left the matter to management's own good judgment by requesting, on December 14, that the Department reconsider its decision. In a rather persuasive document, it noted that agencies are free to charge leave in lesser amounts than the normal one hour; that Flathead management had acknowledged that 30-minute increments posed no real administrative problem and even eased some scheduling problems, and that the leave policy was then under study with a view toward the possibility of lowering the required minimum charge. Perhaps most tellingly, Local 768 cited an FLRA decision demonstrating the difficulty of establishing a "compelling need" for a one-hour minimum so as to thwart negotiations regarding a proposed reduction. [ v31 p4 ]
On February 1, 1985 BIA's Chief Personnel Officer responded to Local 768's request. She said that it had been forwarded to Interior, and that BIA overwhelmingly supported the "proposed change" to a policy of charging leave in increments of less than one hour. She noted however, that only Interior has the authority to approve or disapprove contracts, and that BIA could therefore play no role except to make its recommendations and await Interior's decision. She then endorsed the previous offer made by Ms. Stewart as a possible solution to the problem of disapproval: that Local 768 agree to language which would permit leave to be charged "in accordance with existing policy."
The Department of Interior inexplicably never directly answered the Union's request for reconsideration. The Union then took the controversy into the political arena, writing to U.S. Senators John Melcher and Max Baucus on March 4. Melcher responded on April 19, enclosing BIA's answer to his inquiry. BIA reported that Interior had disapproved the agreement, that the Local failed to follow the "required procedures" for resolution of a negotiability dispute and was instead seeking "reconsideration through inappropriate methods". BIA also informed the Senator that Interior was "currently considering proposed changes" in its leave regulations, and that should such changes be implemented the negotiators for Local 768 and the Flathead Project could work out contract language in conformance with the regulations and "resubmit the entire agreement to the Department for review and approval." A few days later Interior answered Senator Baucus. After acknowledging that it had disapproved the agreement based upon conflict with Departmental regulation, it said
However, the Department has since reviewed its policy and is in the process of delegat-ing the authority to the bureaus to adjust leave increments down to 15 minute intervals if desirable. We are also approving the previously disapproved agreement which will resolve this issue. (Emphasis supplied).
This response was forwarded by the Senator to Local 768 on June 22.
Meanwhile, on May 1, Interior told the Project that it had "reviewed its policy concerning leave increment charges and has delegated the authority to bureaus for setting these increments", and that the rejected agreement, therefore, was to be "resubmitted to this office for review and approval". [ v31 p 5 ] In late June local management asked steward Garry Wegner to sign a new signature page. Wegner called Assistant Business Manager Solum and was told he was not to sign. Solum, based on previous problems with approval dates, and regarding the matter quoted above as indicating that the previously disapproved contract had now been approved, was fearful that any new signature would lead to a new approval date, and that the beeper pay would then not become effective until that future approval date. Because the agreement executed in October of 1984 was identical to the agreement management now wanted signed, Solum was of the view that re-signing was unnecessary and would serve only to jeopardize payment of the only economic item he had negotiated.
Apparently there was no further discussion concerning the requested signature. On September 18 Wegner filed a grievance concerning the failure of the Project and BIA "to initiate the rate as was negotiated . . . on October 4, 1984." It noted that almost a year had gone by, and that Local 768 understood that Interior's Director of Personnel had "requested this agreement for resubmittal and approval several months ago." It asked that the matter be expedited, identified Article XII, Section 11 (Premium Pay - call back alert) as the basis for the claim and requested retroactive payment to October 5, 1984.
On October 2 the Flathead Project Engineer responded to Wegner. After noting that Interior had requested resubmission "for review and approval", and had further instructed local management to recirculate the "Basic Agreement" for signature on June 24" in accordance with 5 U.S.C. 7114(c)(1) and (2)", he observed that Local 768 had failed to sign off on the agreement. He then said that, as implementation of the beeper pay provision "is vitally linked on the approval of the Basis Agreement, that specific provision cannot be implemented until the Department approves the Agreement." He therefore implored Local 768 to sign the agreement so that it could be forwarded to the Department for review and approval. Finally, he questioned whether the grievance was cognizable under the agreement because approval was vested in authorities outside BIA, and indicated that National IBEW representatives might be in touch with Wegner to resolve the issue.
After learning of the October 2 response to the grievance, Solum called Pat Hamilton, BIA's Area Personnel Officer and his counterpart as Chief Negotiator. Solum angrily asked what games were being played with the resignature requirement. Hamilton replied that he was [ v31 p6 ] unaware of any games, that the requirement was based on a Department regulation and that he would send a copy of it to Solum. Aside from whatever one makes of the June request, this conversation and the grievance response were the first times that the Local was otherwise clearly informed that resignature was a condition precedent to approval of the agreement. Hamilton subsequently sent a note to Solum, explaining that the Department wanted a new signature because of "the time constraints outlined in 5 U.S.C. 7114(c)(2) and (3)", and enclosing the text of the Statutory provision. 3
A few days later an official of IBEW Washington called Solum, asked to be briefed about the problem and Local 768's refusal to re-sign, and suggested that Solum call Martin Johnson, a GS-13 Labor Relations Specialist on the staff of John Combs, Chief of the Branch of Employee and Labor Relations, BIA. Combs had assigned Johnson to the "beeper grievance". Solum explained that his objection to re-signing the agreement was based on his fear that management would use the new date of execution (or approval) in an attempt to deny employees the increase in beeper pay that he believed they had coming. He then explained that there had been no objection to the provision for beeper pay in the October 4, 1984 agreement and that the money was owed to the men from that time. Johnson assured him that the government had no intention of beating employees "out of any money that was due them." Johnson then read from a letter which Combs had sent Wegner but which had not yet arrived at the Project. That letter reviewed the status of the collective bargaining agreement, indicated that the Department had "reconsidered" its leave policy after the contract was disapproved, and noted that Local 768's grievance "correctly state(d) that the agreement would have to be resubmitted and approved by the Department." For that reason the agreement, it said, had been hand-carried on or about June 28 from the Portland Area Office to the Flathead Project for the required signatures, where management signed but Local 768 refused. Combs then said quite flatly that the Department could not approve the [ v31 p7 ] agreement until it was signed by Local 768 and resubmitted, and that it could not be implemented without such approval.
Most importantly, because it bears upon the oral agreement allegedly reached by Solum and Johnson, Combs concluded:
Since the agreement is still at Flathead . . ., I suggest both parties sign a new signature page so that the dates of signature will be current and compatible, then resubmit the entire agreement for approval. Once the agreement has been approved, all monies properly owed to employees will be paid retroactively. (Emphasis supplied)
There appears to have been no discussion concerning the meaning of the arguably ambiguous terms defining management's intention to pay employees "any money that was due them" or to pay retroactively "all monies properly owed." Johnson did not quarrel with Solum's assertion that beeper pay entitlement went back to the contract execution date in 1984. Solum, satisfied that a new signature would not jeopardize his claim, took the question to the membership, received its approval, and signed the new signature page on October 16, 1985. The contract was then returned to management for its signature and submission to headquarters.
On December 31, 1985 BIA's Assistant Area Director forwarded a memorandum to the Flathead Project Engineer, enclosing a copy of the agreement which had been approved by the Agency head. It indicates that a December 12 memorandum from the latter instructed the Bureau to make pay increases "retroactive to the rates and effective dates as negotiated in accordance with Article XI on pages 9 and 10 of the agreement." 4 It also requested that Flathead forward copies of the wage survey results and the new wage schedule based on the survey, noting that the new rates would be retroactive to July 1, 1983 (sic) or whatever subsequent date the survey data indicated they were to be effective. A handwritten notation on the BIA memo referred to $16.27 as of July 1, 1985, meal compensation at one hour of a lineman's pay, and
"beeper pay" October 5, 1984 40-50%
[ v31 p8 ]
On January 24, 1986 the Area Office sent Flathead's Project Engineer a memorandum concerning changes in pay procedures as a result of the approval of the agreement, with a copy to Steward Wegner. In relevant respect it instructed him to retroactively adjust lineman's pay to July 1, 1985 and to:
Make retroactive adjustments from October 5, 1984 in stand-by pay. Approved contract Article XII, Section 11 raises this pay from 40% of the journeyman's day of pay to 50% of a journeyman's day of pay.
Notwithstanding local management's (i.e. BIA's) clear understanding that beeper pay was to be implemented as of October 5, 1984, the date sought by the Local, it was in fact instituted on November 17, 1985, the apparent date of approval by Interior.
Also on January 24, 1986, unit employees were informed that leave time could be taken in increments of 30 minutes. The amended Departmental regulations permitting use of leave in 15-minute increments was issued on March 14, 1986.
Finally, it should be noted that the basic agreement provided, in Article XIX, Section 1G, that where the Agency head disapproves an agreement pursuant to the terms of Section 7114(c) of the Statute, "the issue shall be returned to the parties for renegotiation. Only that portion of the agreement may be renegotiated." (Emphasis added)
Discussion and Conclusions
To recapitulate, Interior disapproved the October 1984 agreement because it collided with an agency leave regulation. It ignored a request that it reconsider that decision but went forward with an ongoing study of its leave policy, reaching a decision no later than April 1985 that it should delegate to its bureaus the power to charge leave in 15-minute increments. It nevertheless thereafter insisted that the identical agreement, now brought into conformance with regulation by change in the latter, be again signed by the parties and submitted for approval. Finally, some 13 months after agreement was originally reached and perhaps seven months after the determination was made to alter the regulation, thus removing that impediment to approval, the contract was approved without the retroactive feature which at least the BIA had promised both orally and in writing. [ v31 p9 ]
The General Counsel alleges that Respondents violated their bargaining obligation in two ways: by requiring re-execution and resubmission of an identical contract (after the basis for disapproval was removed), and by repudiating the oral agreement reached between Solum and BIA representative Johnson in October of 1985 as a condition of the Local's resignature.
Respondents offer at least six defenses:
(1) That the retroactivity bandied about had to do with the wage schedule and not premium pay, which cannot legally be implemented before the date of contract approval.
(2) That the unfair labor practice charge is precluded under Section 7116(d) by the grievance.
(3) That the conversation between Solum and Johnson was an inadmissible settlement discussion.
(4) That the alleged violation constitutes at best a breach of contract and not a patent one cognizable as an unfair labor practice.
(5) That Section 7114(c), as the congressionally mandated method for preventing conflicts between contract provisions and law, rule or regulation, requires that even an unchanged, disapproved agreement be re-signed and resubmitted so as to permit the Agency head a measurable 30 days to determine whether changes in law, rule or regulation have occurred so as to preclude approval.
(6) That the charge was untimely under Section 7118(a) (4)(A).
The contention that the charge was untimely.
This raises a jurisdictional issue as to the allegation regarding the resignature requirement. Section 7118(a)(4) (A) requires that a charge be filed within six months of the alleged unfair labor practice. The charge herein was filed on January 13, 1986 so as to reach back to July. The complaint allegation is based on the imposition of a re-signing requirement "from June 24, 1984 to October, 1985", thus commencing outside the time period. Respondent asserts the requirement was imposed on May 1, 1985, when Interior wrote the Project Manager, directing him to resubmit the contract for approval. [ v31 p10 ]
Interior's letter was not sent to the Local and does not explicitly require a re-signing. The Local steward was first asked to re-sign on June 24, but it was not made clear, at that time, that resignature was a precondition to resubmittal. The first time the Local was plainly told that re-execution of the very same agreement was a sine qua non to its approval was in the October response to its grievance. Thus, while the requirement can be seen in retrospect as relating back to the June request, it was in fact made known in October, well within six months of the charge, that the alleged unfair labor practice had occurred.
The issue of preclusion
If valid, this argument ends any further discussion of the allegation regarding the re-execution requirement.
Section 7116(d), with exceptions not here relevant, provides that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures." Respondents have the burden of establishing that the issues raised in the two forums are the same. 5
The unfair labor practice charge, filed on January 13, 1986, alleged Section 7116(a)(1) and (5) violations based on Respondents having repeatedly refused to recognize the contract provisions which establish the basic wage rates pursuant to a wage survey formula made part of the agreement in 1967. It detailed a long history of the Local's need to resort to arbitrators, FLRA and Congressmen in order to compel compliance with the contract provisions which call for an annual wage survey of comparable power plants and an adjustment of wages on July 1. It specifically complained that the wage rate which should have been implemented on July 1, 1985 had not yet been paid. The charge was filed almost two months after the agency head had approved the resubmitted contract but, so far as this record shows, before the Local had been informed of such action. It is thus not clear whether the Local was complaining of the failure to adjust the wages on July 1, even in advance of [ v31 p11 ] contract approval, or of the failure to act upon approval with prompt payments retroactive to July 1. Also to be noted, as perhaps relevant to the aggrieved party's duty to choose between the grievance procedure and the unfair labor practice procedure where the issue is the same, is that the charge here was aimed at the basic wage schedule, whereas the complaint framed by the General Counsel was directed at premium, or beeper pay. Finally, the charge states that the "same factual situation or issue covered by this charge (has) been raised . . . under a grievance procedure." Respondents, of course, seize upon this apparent admission.
Four months earlier, on September 19, 1985 the Local had filed a grievance. It was filed pursuant to Article XII, Section II, which concerns beeper pay, and complained of the failure to "initiate the rate . . . as agreed to on October 4, 1984." It observed that almost a year had gone by, that it had learned from Washington-based IBEW officials that Interior had requested that the contract be resubmitted for approval several months earlier and requested that the matter be expedited. As relief, it requested that the increase in beeper pay be made retroactive to October 5, 1984.
In December, a month before the charge, the Local filed yet another grievance. This one had been offered as one of ten exhibits by Counsel for Interior during his opening statement. The offer was withdrawn or "tabled" pending the presentation of Counsel for the General Counsel's case (which involved many of the same documents), and was never again made until several months after trial. It is strongly resisted on the usual ground that the hearing has ended and that a party ought not be allowed to review a case and then alter the record to his advantage. Normally I would be loathe to disturb this record on that ground. Here, however, the contested document appears highly relevant to the issue created by the Local's statement that it had raised the same factual situation in a grievance as it had raised in its charge. moreover, admission of the document is arguably not to proponent's advantage, but rather to that of the General Counsel who resists its introduction. The second grievance would in fact not strengthen Respondents' argument that the complaint is precluded by prior resort to the grievance procedure, for the first grievance is already available for that purpose. But the second grievance, for reasons to be explored, would serve to limit any damage done by the Local's concession that the matters raised in the charge were already covered in a grievance. In the circumstances I will admit Respondents Exhibit 10 into evidence. [ v31 p12 ]
The second grievance alleges violations of Article XI, Section 1, which provides that certain wage surveys shall be made each June and new wage schedules made effective (normally) on July 1, and of Article XIX, Section 3, in that management was tying the survey increase to formal negotiations although that latter provision states that wage surveys are not formal negotiations, but a fact-finding method. I take the latter to be an argument that the appropriate wages determined by the survey should be effective on July 1, whether or not earlier negotiations have led to a disapproved contract. In any event, the remedy of immediate payment of all back wages to July 1 was something management could then undertake on its own terms because contract approval had occurred.
Thus the second grievance clearly addresses the same subject matter - the basic wage schedule - as did the unfair labor practice charge. The Local's concession that the issue alleged in the charge had been raised also as a grievance appears rather obviously to have been directed at the second grievance, and therefore is not helpful in the attempt to divine the meaning of the first grievance. And the second grievance, like the charge which mirrors it, complains of facts, or violations which are not alleged in this complaint. The complaint is confined to the beeper issue.
Section 7116(d) requires the aggrieved party to make a choice between the unfair labor practice procedures and the grievance procedures where the issue in the two forums is the same. The issues advanced by the complaint - in a permissible, unchallenged departure from the charge - were, again, that Respondents unlawfully imposed a requirement that the agreement had to be signed again, after the removal of the conflicting regulations, before it could be approved and become effective. The grievance makes no explicit mention of a resignature requirement. Rather it seems simply to accuse the BIA of dragging its feet in carrying out Interior's directive that the agreement be simply resubmitted for review and approval. Interior had not, after all, mentioned the needed for re-execution of the agreement when it requested its resubmission.
Interior, furthermore, via its letter to Senator Baucus (in sharp and perhaps revealing contrast to the way it shared information with its partner in the collective bargaining process) had already been forced to inform the Local that "We are also approving the previously disapproved agreement which will resolve this issue". While Respondents argue this [ v31 p13 ] language may not properly be taken at face value, because it is the necessary oversimplification for Congressional consumption of a complex legal subject, it is on this record an important part of the little feedback the Local was receiving. Thus, while the letter may not be an adequate evidentiary foundation for a finding that the agreement was approved on or before April 19, 1985, when the approving official signed it, it seems to me to be highly relevant to an examination of the grievance.
Thus the Union was in possession of word from the highest authority - the Agency head for contract approval purposes - to the effect that the agreement was being approved. And the pending and unacknowledged request for reconsideration of the disapproval would help account for Interior's apparent decision to approve the contract without further ado. While local BIA management had requested that the Union again sign there is no evidence that it demanded resignature as a precondition to resubmission.
On this record the Local would appear to be entitled to grieve about the months of inaction, either at the Flathead, BIA headquarters, or Interior level, in implementing the new beeper rates, without necessarily implicating the resignature issue. The first clear statement that the agreement had to be signed was contained in the response to the grievance.
Notwithstanding that the grievance and the complaint both involve entitlement to beeper pay, and arguably raised the same dispositive issue of re-signing, I am not persuaded that the "same factual situation or issue" confronted the two forums. The grievance asserted that the unit lineman were entitled to beeper pay because the contract providing for it had been, in effect, "approved", and its implementation improperly delayed by the failure to forward it to headquarters. As noted, the Local believed on the basis of correspondence forwarded to it by the senators that approval had occurred, it had reason to believe such action might have been prompted by its as yet unanswered request for reconsideration, and it never mentioned the subject of re-signing the old and identical agreement as an improper impediment to implementation. It also had going for its grievance, whether or not put forward at that early stage, the contract provision that the disapproval issue in a contract rejected by the Agency head shall e returned to the parties and that only such matters were open for renegotiation. Thus, arguably, the contract was in other respects binding by mutual agreement. The non-offending provision [ v31 p14 ] should, then, have been implemented. 6 Finally, there is no evidence the Local was flatly told the requested resignature was a precondition to approval. The complaint, on the other hand, asserts that Respondents unlawfully conditioned their willingness to implement the contract on its re-execution, in violation of the Local's statutory rights. While I regard the question as a very close one, I would find that the grievance was filed by the Local in its representative capacity seeking to vindicate the contractual right of employees to beeper pay, whereas the unfair labor practice proceeding seeks to vindicate the statutory right of the Union not to be required to re-sign an agreement identical in its terms to the original agreement. In this respect it is worth noting that the grievance was also of narrower scope, confined to the beeper pay issue of the revised and rejected agreement, whereas the complaint proceeding would require a finding that the entire agreement was approved by a change in the leave regulation, so as to render the resignature requirement an unlawful obstacle to the existence of a new and valid agreement in all respects.
Even if the grievance is considered to raise the same issue as the complaint, I would conclude that its filing ought not, in the circumstances, preclude later resort to the unfair labor practice procedures. Ordinarily, mere withdrawal of, or failure to pursue a grievance would not operate to remove it as a bar, the mere fact that a filing occurred being deemed sufficient to establish that the aggrieved party has made the choice Congress required. 7 [ v31 p15 ] Here, however, I am persuaded that preclusion ought not occur because the grievance was not pursued after management made misleading assurances that re-execution of the identical agreement would not jeopardize the Local's claim to retroactive beeper pay.
Admittedly, Johnson's words and Combs' letter are ambiguous statements standing alone. They merely promise the employees what they are entitled to - retroactive payment of "monies properly owed". Indeed, Respondents even argue that such phrase had reference to the basic wage adjustment which awaited approval of the agreement and was to be, by its terms, retroactive to July 1. But such a reading is possible only where the words are utterly divorced from their context. Here both the grievance and the concerns expressed by Solum to Johnson made it absolutely clear that it was entitlement to beeper pay - back to the date the contract was first executed - which was at issue. Solum repeatedly made clear his fear that new signatures would jeopardize that claim. Whether based on mistake or not, management allayed the Local's fears about the loss of such claim by assuring it that new signatures would result in the necessary approval of the contract and retroactive payment. While one can quibble about the reservation that monies "properly owed" or "due" the employees would be made retroactively, such words were used in response to to a claim limited to beeper pay and should in my view be understood as agreement to make such payments retroactively once the necessary signatures were secured and the contract was approved. It is to be noted that the BIA's officials gave it the same reading and were prepared to make such payments. Resort to the grievance machinery was aborted based on such assurances and the matter was not pursued beyond the first step. One can view the assurances as the result of innocently misleading statements or as the consequence of deliberately trickery. In either event the grievant dropped its case because it was effectively told it had won its point.
In my view the choice Congress meant to require - so as to avoid litigation of the same issue in different forums simultaneously or successively - ought not be imposed in such circumstances.
The resignature requirement
Again, General Counsel contends that Respondents engaged in unlawful dilatory conduct designed to delay entitlement to enhanced beeper pay by insisting that the Local again [ v31 p16 ] sign-off on an agreement which had not been altered since it was disapproved, and which was then, by April, approved, or ready for approval. Respondents defend on the ground that the 30-day period for an Agency head to determine whether an agreement conflicts with law, rule or regulation, as provided in Section 7114(c), requires a date of execution from which to determine whether a disapproval is timely or the contract goes into effect for failure to address that question on time.
No precedent has been cited for either proposition, and I can find none.
Implicit in the General Counsel's alleged violation is the contention that Respondents' were required to approve the agreement and implement it (presumably in the absence of a conflict) once the offending regulation had been changed, for the required resignature is viewed as illegal because it does not indicate agreement on new terms, but serves only to delay implementation of an agreement which in fact had been reached.
Both parties seem to agree that disapproval of an agreement ordinarily voids the entire agreement, not just the rejected term or terms, and returns the parties to the "bargaining table to negotiate until agreement could reached and the Agency head approved such agreement." 8 General Counsel would distinguish that case on the ground that here the groundrules restricted bargaining to the disapproved article and that the basis for disapproval had been withdrawn by April, 1985. Thus there was no need for renegotiation or resignature and the unchanged agreement, signed in 1984, was ripe for approval, especially in view of the pending reconsideration request. It follows, argues General Counsel, that the refusal to approve and implement absent a resignature was a bad faith stratagem to forestall the economic benefit won in October of 1984.
Several other theories are implicit in the General Counsel's argument that the demand for re-execution of the agreement was unlawful. It could be argued that the change in the leave regulation which had caused disapproval, thus removing that impediment, particularly where the request for [ v31 p17 ] reconsideration was pending before DOI, operated to begin the running of the 30-day period set forth in section 7114(c), so as to cause the agreement to become effective by operation of law in the absence of timely disapproval by the Agency head. It could also be argued that the contract became effective in October of 1984 in all respects save the leave provision which had been specifically disapproved, because it was not otherwise open to renegotiation. 9 Under this theory, while there would be no complete contract to serve as a bar to a representation petition, there would be a binding agreement between the parties on all matters except the rejected leave increment provision. Such an agreement would be found binding because the parties had agreed that renegotiation would be limited to the provision the Agency head had disapproved, and failure to implement new provisions not disapproved would constitute a violation of contract and, perhaps, of the Statute. The views of the Council, quoted in footnote 9 above, certainly support such a result, and the equities in this case strongly argue for it.
Thus, the Local won a premium wage increase at the bargaining table which, under the terms of the basic agreement was "fixed", i.e. it could not thereafter become a bargaining chip in any negotiations which would follow upon rejection of the amended leave provision. The latter was [ v31 p18 ] isolated from all other terms of the agreement for purposes of resolving the "impasse" it created. In the absence of any negotiating space which might disturb the agreement reached in the usual give and take of bargaining, no cogent reason appears to exist for the conclusion that the parties do not have an agreement on all matters save the minimum leave amounts on which the Local and BIA had reached accord, subject to DOI's approval. Yet the latter's insistence on re-execution of an agreement which was not new in any respect, as a precondition to its approval and effectiveness, deprived employees of enhanced premium pay for over one year. This, notwithstanding assurances, or at least an understanding at the BIA level, that such result would not occur, and the fact that, by no later than May 1, 1985, when DO: requested resubmittal of the agreement for review and approval, the way was incontestably clear for the Agency head to approve the new leave increment provision.
The core of this dispute concerns contract interpretation - matters which normally would not rise to the level of an unfair labor practice but rather are grist for an arbitrator's mill. In all the circumstances of this case, however, I am persuaded that Respondents have not bargained in good faith. Parties are obliged by law to sincerely seek agreement, to avoid delay in that process and to reduce any agreement reached to writing, i.e. to prepare for its implementation. Here, the resignature requirement was meaningless as an indication of assent to any modification of the contract's terms - the Local had long ago refused to rewrite the offending leave provision, and so the matter sat pending the highly likely prospect that the leave regulation would be changed so as to remove the conflict. Except for the formalistic argument that re-execution was necessary to start the clock running on Section 7114(c)'s 30-day review period, it would serve no conceivable purpose except to delay the effective date of the revised contract and its beeper pay provision.
As noted, one can view the non-disapproved beeper pay provision as binding from October of 1984, or as "ripe" for review and approval from the date, no later than May 1, 1985, when Respondents knew the leave regulation was no longer an obstacle, and DOI requested resubmittal. In either event, new signatures would accomplish only delay in delivery of enhanced wages long ago negotiated. What convinces me that the resignature requirement does rise to the level of an unfair labor practice, as opposed to a good-faith dispute over the parties' contractual obligations, is that Respondents ignored the Union's request for reconsideration [ v31 p19 ] and failed to keep the Local informed except as Congressional correspondence unavoidably had that result. This is not the kind of case contemplated by DOI regulations (Respondents Exhibit 14), where a contract, once disapproved, is returned to the local parties for such renegotiation as might bring it into conformance with law, rule or regulation. In such a case what happens thereafter is left to those parties, and re-execution is required of any new agreement submitted for approval. While that happened initially here, the Local refused to alter the terms and it requested reconsideration not only on the merits, but in the face of a promising effort to change the regulation and remove the reason for disapproval. Thereafter it was told nothing about developments, and over a year passed while benefits won at the bargaining table, which were not subject to change in any further negotiations, were withheld. In such circumstances I find Respondents' conduct constituted a failure to bargain in good faith.
The alleged repudiation of an oral agreement
I have found, in the discussion of Section 7116(d), that Johnson did assure Solum that beeper pay would be paid retroactively, if Solum signed off. In addition, the letter from Combs, Labor Relations Office for BIA, to Steward Wegner was in response to his grievance. Perhaps guardedly, it too, gave an assurance that once the required signatures were secured so that the necessary approval by the Agency head could take place, "all monies properly owed to employees will be paid retroactively". Again, while such language was, standing alone, arguably referable to the deferred basic wage adjustment, it was used in answering a grievance which was plainly limited to beeper pay. This letter was read by Johnson in his effort to convince Solum that resignature would resolve the problem.
Respondents argue that Johnson was without authority to enter into such a "side agreement", and that Solum was well aware, from the contract's language, the statutory requirement of approval by the Agency head, and from experience with BIA, that Johnson (or BIA) had no authority to enter into a binding agreement since only Interior has the power to approve agreements. Solum doubtlessly was generally aware of Interior's role in approving or disapproving agreements, and he was aware that Interior had requested that the revised agreement be forwarded for review and approval. The short answer to Respondent's argument is that the mechanics for approval of Johnson's side agreement respecting retroactivity was management's responsibility. If the agreement warranted [ v31 p20 ] disapproval in Interior's judgment, and if its execution required signatures, management should have taken care of such matters. It did not do so. Johnson had been assigned the job of working on the grievance and had apparent authority to resolve it for BIA. He did so by agreeing that the contract, once signed and approved, would result in beeper pay retroactive to the date of original execution. Oral agreements are not unknown in collective bargaining.
In the circumstances, I find merit in the General Counsel's allegation that Respondents failure to make good on the promise of retroactive beeper payments provides independent grounds for finding such failure violative of Section 7116(a)(1) and (5). I find no merit the Respondents' unsupported contention that the evidence respecting the agreement on retroactivity is inadmissible because such discussions constituted an effort to settle the grievance. Nor do I find persuasive the Comptroller General decisions relied upon by Respondents to indicate that retroactive payments would be illegal, particularly where the contract was arguably in existence all along, except for the provision regulating minimum leave usage.
As my analysis of the resignature requirement shows, I would be inclined to find, were I satisfied that the parties had properly joined issue on the matter, that the basic agreement, as revised in the 1984 negotiations, remained in existence in all respects save the disapproved provision concerning minimum leave increments. Article XIX, Section IG thereof provides that, upon disapproval of the local agreement "the issue shall be returned to the parties for renegotiation. Only that portion may be renegotiated." As the negotiated increase in beeper pay could not be affected by any effort to resolve the leave problem, payment of such monies would appear no less legal than payment of basic salaries in the "absence" of an approved contract. That is, payments would be made pursuant to a contract clause that was not itself disapproved, in circumstances where there was no reason to delay its implementation. The Comptroller General decisions brought to my attention do not suggest that such payments would have violated the law.
I conclude that Respondents have violated Section 7116(a) (1) and (5), and recommend that the Authority issue the following:
Pursuant to 2423.29 of the Federal Labor Relations Authority's Rules and Regulations, 5 C.F.R. 2423.29, and [ v31 p21 ] 18 of the Statute, 5 U.S.C. 7118, it is hereby ordered that Department of Interior, Washington, D.C., the Bureau of Indian Affairs, Washington, D.C., and the Flathead Irrigation Project, St. Ignatius, Montana, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Local 768, International Brotherhood of Electrical Workers, AFL - CIO, the exclusive bargaining representative of certain of its employees, by:
(1) Conditioning approval and implementation of a collective bargaining agreement upon Local 768's re-signing the agreement, which had been disapproved pursuant to 5 U.S.C. 7114(c), although the agreement had not been changed and the reason for disapproval had been removed by a change in Agency regulations.
(2) Repudiating an oral agreement to pay enhanced call-back premium pay retroactively to October 5, 1984, the date of the original agreement.
(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Make employees whole for the loss of the negotiated increase in call-back premium pay for the period from October 4, 1984 to November 17, 1985.
(b) Post at all facilities of its Flathead Irrigation Project, St. Ignatius, Montana, 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 a responsible official of the Department of Interior, a responsible official of the Bureau of Indian Affairs, and the Flathead Project Manager, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including [ v31 p22 ] all 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 VII, Federal Labor Relations Authority, 535 - 16th Street, Suite 310, Denver, CO 80202 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
JOHN H. FENTON Chief Administrative Law Judge Dated: JULY 9, 1987 Washington, D.C.
[ v31 p23 ]
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY
AN AGENCY OF THE UNITED STATES GOVERNMENT We have been found by the Federal Labor Relations Authority to have committed unfair labor practices. We have been ordered to post this Notice and abide by its provisions.
WE WILL NOT refuse to implement the terms of a collective bargaining agreement with Local 768, International Brotherhood of Electrical Workers, AFL - CIO, the exclusive bargaining representative of certain of our employees, unless and until the Local has re-signed the agreement, even though it had not changed since it had been disapproved and the reason for disapproval had been eliminated.
WE WILL NOT refuse to honor agreements we have reached with Local 768 concerning terms and conditions of employment.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce unitemployees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL make employees whole for any loss of the negotiated increase in call-back premium pay from October 5, 1984 to November 17, 1985.
_______________________________ (Flathead Irrigation Project) Dated: _________________ By: _______________________________ (Signature) _______________________________ (Bureau of Indian Affairs) Dated: _________________ By: _______________________________ (Signature) _______________________________ (Department of Interior) Dated: _________________ By: _______________________________ (Signature)
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 of the Federal Labor Relations Authority, Region VII, whose address is: 535 -16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. [ v31 p2 ]
Footnote 1 This section emprowers an agency head to disapprove an agreement he finds is not in accordance with the Statute or any other applicable law, rule or regulation. If he does not act within 30 days of execution, the "agreement shall take effect and shall be binding", subject to the same laws, rules or regulations.
Footnote 2 This date appears to be based on the fact that the local parties submitted the agreement on August 26, 1982, that they did not indicate the date the language was agreed to, and that the "effective date will be timed from the date of the transmittal", that is that the failure to act within 30 days operated to put the agreement into affect on September 25, 1982.
Footnote 3 As noted these provide that the agency head shall approve an agreement conforming to law, rule and regulation within 30 days of its execution, and that the agreement shall take effect and be binding if he does not act within that time. Thus Respondents argue that new signatures were necessary in order to comply with this time frame, which would make the agreement binding in the absence of timely disapproval within 30 days of execution.
Footnote 4 Article XI deals with basic wages (not premium pay) and the survey method for establishing them each year.
Footnote 5 SSA, Sutten District Office, San Francisco, California, 5 FLRA 504.
Footnote 6 Cf. National Park Service, Harpers Ferry, W.Va., 15 FLRA 786 (holding that an agreement, when disapproved by an agency head, was no longer a bar to a decertification petition "because there was no lawful written collective bargaining agreement in effect between the parties at the local level. . . .") and National Park Service, Colonial National Historical Park, 20 FLRA 537, 541 (holding disapproved contract was not an enforceable agreement and failure to "implement any portion . . . not specifically disapproved by the Agency head in the absence of the parties' prior agreement to do so does not constitute a violation of the . . . duty . . . to bargain").
Footnote 7 Headquarters, Space Division, L.A. Air Force Station and AFGE Local 2429, 17 FLRA 196; Department of Treasury, Custom Service and NTEU, 13 FLRA 631.
Footnote 8 Department of Interior, National Park Service, Colonial National Historic Park, Yorktown, Virginia, 20 FLRA 537, 542.
Footnote 9 When Executive Order 11491 was amended by Executive Order 11838, the Federal Labor Relations Council issued its Reports and Recommendations based upon its experience under the former. It rejected the suggestion that the problem of delay in the effectuation of negotiated agreements could be solved by providing that an agency head's disapproval would affect only the disapproved provision, i.e. that "the approved portion of the agreement would go into effect immediately upon completion of the agency head's review, with renegotiation . . . expressly confined to the disapproved provision." The Council rejected this approach essentially as imposing a straitjacket in situations where the provisions of an agreement are often interrelated, and the parties might wish to "renegotiate provisions in addition to the one disapproved . . . or even, perhaps, renegotiate the entire agreement. We believe that the question of severability of agreement provisions which have been disapproved by an agency head should be decided by the parties in the context of the particular circumstances forcing them, including any applicable provisions of the agreement. (Emphasis supplied) (FLRC-75-1 at page 46).