39:1568(137)CA - - IRS, Washington, DC and NTEU - - 1991 FLRAdec CA - - v39 p1568

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39:1568(137)CA
The decision of the Authority follows:


39 FLRA No. 137

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

(Respondent/Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

8-CA-80151

DECISION AND ORDER

March 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Charging Party to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions and the Charging Party's exceptions. The Respondent also filed a Motion to Dismiss the Charging Party's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to recognize Cleveland Harris as a steward-at-large of Chapter 198 of the Union.

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 made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the oppositions, and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with our decision.

II. Background and Judge's Decision

The Agency and the Union are parties to a collective bargaining agreement which contains a negotiated grievance procedure. Article 9 of this agreement deals, in part, with the designation of stewards and other individuals who may act for the Union in grievance meetings and in other matters.(1)

In 1986, an Agency employee, Cleveland Harris, acting as president of Chapter 198 of the Union, advised the Agency's Los Angeles chief of labor relations that Harris was designating himself as a steward under Article 9 of the parties' collective bargaining agreement for all "organizational segments within Chapter 198." Judge's Decision at 2. Eventually, Harris left the Agency's employment, but remained the president of Chapter 198.

On October 19, 1987, Harris wrote a letter to the Agency's district director for Los Angeles indicating that he remained the "Steward at Large-EEO" and wished to have access to unit employees and "potential EEO Complainants" who needed his representation. G.C. Exhibit 3. He requested either that he be given a small conference room in a non-restricted area of each of the posts of duty represented by the Union or that unit employees be provided with sufficient official time, including travel time, to meet with him off-site.

The labor relations chief of the Agency's Los Angeles District responded to Harris' letter by advising the Union that the Agency would no longer recognize Harris "in any capacity as a steward-at-large" or as a steward because Article 9 of the parties' agreement requires that stewards must be bargaining unit employees. G.C. Exhibit 4. The Agency in its response acknowledged Harris' status as chapter president and indicated the conditions under which Harris could gain access to employees in his capacity as chapter president. Subsequently, the Agency permitted Harris to engage in representational functions as chapter president "or as a personal representative for an individual who has filed an EEO complaint," but limited his participation in grievance processing to Step 4 of the procedure.(2) Id.

The Judge first resolved the extent of the Respondent's alleged refusal to recognize Harris. The Judge found that Harris had been permitted to engage in all the representative functions of a chapter president except those which the Respondent contended are reserved for stewards who must be bargaining unit employees. After considering the Agency's response to Harris, the contract language to which the response referred, and the uncontradicted testimony, the Judge concluded that the Respondent's alleged refusal to recognize Harris encompassed only Harris' representative activities in grievance proceedings. He found no evidence that the Respondent had restricted Harris or intended to restrict him in any other way.

On the merits of the allegation, the Judge determined that the implication of a number of decisions of the Authority was that disputes over the designation of grievance representatives are matters of contractual rights and responsibilities rather than statutory rights. He rejected the theory that the Authority currently views the right to designate grievance representatives as a statutory right subject to surrender only by a clear and unmistakable waiver. He further found the Respondent's claim, that in order for a chapter president to act as steward in a grievance proceeding under the parties' collective bargaining agreement, the chapter president must be a unit employee, to be a plausible interpretation of the agreement. Accordingly, the Judge concluded that the case should be treated as a contract dispute rather than as an unfair labor practice, and he recommended that the complaint be dismissed.

III. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's analysis of this case as one involving contract interpretation rather than the Union's statutory right to select its own representatives. The General Counsel asserts that the Judge was incorrect in concluding that the Authority has abandoned its precedent that holds that cases involving union designations of representatives must be analyzed as waiver issues. The General Counsel further maintains that the parties' collective bargaining agreement does not clearly and unmistakably waive the Union's statutory right to designate its representatives.

The General Counsel also asserts that, contrary to the conclusions of the Judge, this case involves a complete refusal by the Respondent to recognize the Union's designated representative and not simply a limitation on whether Harris can act as a steward through the first three steps of the grievance procedure.

B. Charging Party's Exceptions

The Charging Party argues that there has been no departure by the Authority from its long line of decisions applying a clear and unmistakable waiver rule in favor of a test based solely on contractual interpretation. The Charging Party argues that the Authority has not departed and should not depart from this precedent. The Charging Party maintains that "[t]he legal question for the Authority . . . is what test should apply to address the interface between alleged statutory violations and an agency's claim that the alleged statutory violation is now merely a contractual dispute." Charging Party's Exceptions at 7. The Charging Party claims that "[t]he test which the Authority applies in these circumstances has broad legal and policy implications." Id. The Charging Party maintains there has been no showing here that it clearly and unmistakably waived its right to designate its own representatives. Finally, the Charging Party argues that even assuming the contractual interpretation theory is sustained, the Judge erred in finding the Agency's refusal to recognize Harris as a steward was limited only to participation in the grievance process.

C. Respondent's Oppositions

The Respondent contends that the Judge correctly determined that the right to designate grievance representatives is no longer considered by the Authority to be a statutory right subject to surrender only by a clear and unmistakable waiver, but is, instead, a matter of contract interpretation. Because its interpretation of the parties' collective bargaining agreement is at least arguable, the Respondent asserts, the Judge properly ruled that there was no unfair labor practice. The Respondent also asserts that the Judge correctly found that the limitations on the recognition of Harris as a steward or a steward-at-large were limited to the grievance procedure. The Respondent maintains that if the Authority were to apply a waiver analysis, a clear and unmistakable waiver has been demonstrated, and the complaint should be dismissed on this basis.

In its opposition to the Charging Party's exceptions, the Respondent argues that the Charging Party's exceptions are procedurally defective. The Respondent maintains that the Charging Party failed to specifically designate exactly what portions of the Judge's decision it was excepting to as required by section 2423.27(a) of the Authority's Rules and Regulations.

D. Respondent's Motion to Dismiss

The Respondent also filed a Motion to Dismiss the Charging Party's exceptions for lack of proper service. The Respondent maintains that the Charging Party's certificate of service failed to specify the manner in which the service was made as required by section 2429.27(c) of the Authority's Rules and Regulations.

As part of its opposition to the motion, the Charging Party provided the Authority with copies of the return receipts indicating that the Respondent was served by certified mail. The Charging Party stated that the failure to specify the manner of service was an inadvertent error.

IV. Analysis and Conclusions

A. Procedural Matters

We deny the Respondent's Motion to Dismiss. The Charging Party has provided the Authority with sufficient evidence of compliance with the service requirements of section 2429.27 and has explained that the failure to specify the manner of service was an inadvertent error. Furthermore, the Respondent has not claimed that it was not served with a copy of the Charging Party's exceptions.

We also reject the Respondent's contention that the Charging Party's exceptions are procedurally defective by failing to appropriately designate the portions of the Judge's decision to which the exceptions were directed. We find that the Charging Party has set forth with sufficient particularity those portions of the Judge's decision to which it excepts. In our view, the parties and the Authority are sufficiently informed of the basis of the Charging Party's exceptions.

B. Appropriate Standard to Be Applied

We agree with the Charging Party that this case presents the question of what approach should apply to address cases that involve an alleged statutory violation and allegations that the parties' collective bargaining agreement permits the action that is alleged to constitute an unfair labor practice. We also agree that the approach to these cases has broad legal and policy implications.

Initially, we reject an approach that would dismiss complaints alleging the violation of a statutory right based on a finding that the parties have proffered differing and arguable interpretations of the collective bargaining agreement. We agree with the Charging Party that this analysis would permit a respondent to violate protected rights based solely on an "arguable" or "plausible" interpretation of a collective bargaining agreement without any necessity of proving that its interpretation is correct. Clearly, such an approach penalizes aggrieved parties, who are, under section 7116(d) of the Statute, then precluded from filing a grievance. Thus, they would have no further avenue of relief and potential improper actions would go unremedied. It is well established that national labor policy disfavors the waiver of statutory rights. For example, Chesapeake & Potomac Telephone Co. v. NLRB, 687 F.2d 633 (2d Cir. 1982). We find that the use of a "differing and arguable" analysis in cases involving statutory rights abrogates important rights granted by the Statute and, consequently, is inconsistent with the purposes and policies of the Statute. To the extent that decisions of the Authority have applied this analysis to alleged violations of statutory rights, such decisions will no longer be followed. See, for example, Marine Corps Logistics Base, Barstow, California, 33 FLRA 626, 641-42 (1988).

A union's right to designate its own representatives is a statutory right. See 5 U.S.C. º 7114; American Federation of Government Employees, Local 1738, AFL-CIO, 29 FLRA 178, 188 (1987) (agencies and unions have the right to designate their respective representatives when fulfilling their responsibilities under the Statute). The established approach employed by the Authority to resolve defenses based on a collective bargaining agreement to alleged interference with statutory rights is to determine whether the charging party has clearly and unmistakably waived its statutory right. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). We will continue to apply such an analysis, even in cases where the parties' agreement contains some reference to the matter at issue. See, for example, Marine Corps Logistics Base, Barstow, California, 39 FLRA No. 97 (1991) (nothing in parties' agreement or bargaining history established clear and unmistakable waiver of union's right to bargain about changes in performance standards); Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA No. 91 (1991) (Marine Corps Logistics Base, Albany) (nothing in parties' agreement or bargaining history established clear and unmistakable waiver of union's right to bargain over issues presented involving the impact and implementation of details); U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 770, 784-85 (1990) (nothing in bargaining history or plain language of contractual provisions supported conclusion that union waived its right to bargain over proposed changes).

Similarly, when the language of the parties' collective bargaining agreement or the bargaining history to the agreement demonstrates that the charging party clearly and unmistakably waived its statutory right, we will find that the agreement permitted the respondent's actions and we will dismiss the complaint. See, for example, U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C., 38 FLRA 632 (1990) (based on bargaining history, Authority found union waived its right to disclosure of unit employees' home addresses); Bureau of Indian Affairs, Phoenix Area Office, Phoenix, Arizona, 32 FLRA 903 (1988) (by entering into the memorandum of agreement, the union clearly and unmistakably waived its right to the requested information).

C. Application of the Standard to This Case

We conclude that neither the language of the parties' collective bargaining agreement nor the bargaining history to the agreement demonstrates that, by agreeing to the various provisions of Article 9 of the collective bargaining agreement, the Union clearly and unmistakably waived its statutory right to designate its representatives. In this regard, we agree with the Judge's findings that the Respondent's reading of the relevant provisions "is not the only plausible interpretation," and that "the bargaining history of these provisions . . . would support the parties' respective positions." Judge's Decision at 8. In such circumstances, it cannot be shown that the parties' agreement specifically addresses the issue of whether a steward-at-large must be a unit employee. See Marine Corps Logistics Base, Albany, 39 FLRA No. 91, slip op. at 8. And, in the absence of conclusive evidence in the bargaining history that the parties intended such a result or any evidence that would support a finding of an express waiver, we conclude that the Union did not clearly and unmistakably waive its right to designate its representatives.

Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to recognize Cleveland Harris as a steward-at-large of the Union. In this regard, we do not agree with the Judge that the Respondent's refusal to recognize Harris in this capacity related only to his involvement in grievance proceedings. In his October 19, 1987, letter, Harris requested access to the employees in his capacity as "Steward at Large-EEO" and expressly linked his request to his desire to meet with "potential EEO Complainants." G.C. Exhibit 3. The Respondent's refusal to recognize Harris "in any capacity as a steward-at-large[,]" G.C. Exhibit 4, clearly encompassed Harris' request to represent employees in EEO proceedings as a steward-at-large. Indeed, the Respondent expressly limited Harris' activities in this regard to those of "a personal representative for an individual who has filed an EEO complaint [.]" Id. Moreover, there is testimony in the record that Harris' involvement in Equal Employment Opportunity Commission (EEOC) hearings was limited to appearing as a personal representative or as a witness. Tr. at 34-35, 40. Therefore, we conclude that the Respondent's refusal to recognize Harris as a steward-at-large encompassed a broader range of representational activities than merely the grievance procedure.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Internal Revenue Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Failing and refusing to recognize Cleveland Harris as steward-at-large of the National Treasury Employees Union, Chapter 198, the exclusive representative of certain of its employees in its Los Angeles, California, District.

(b) In any like or related manner interfering with, restraining or coercing its 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) Upon request, recognize Cleveland Harris, or any individual who serves in the same position, as steward-at-large of the National Treasury Employees Union, Chapter 198.

(b) Post at its Los Angeles, California, District facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Regional Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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 refuse to recognize Cleveland Harris, or any individual who serves in the same position, as steward-at-large of the National Treasury Employees Union, Chapter 198, the exclusive representative of certain of our employees in our Los Angeles, California, District.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, recognize Cleveland Harris, or any individual who serves in the same position, as steward-at-large of the National Treasury Employees Union, Chapter 198, the exclusive representative of certain of our employees in our Los Angeles, California, District.

__________________________
(Agency)

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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 9, Section 1(A) of the parties' agreement states: "Unless otherwise expressly stated, wherever in this article the term 'steward' is used, it shall include chief stewards, chapter presidents, joint co