40:0992(85)CA - - VA Medical Center, Boise, ID and AFGE Local 1273 - - 1991 FLRAdec CA - - v40 p992

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The decision of the Authority follows:

40 FLRA No. 85










(Charging Party/Union)



May 24, 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 to the attached decision of the Administrative Law Judge in the above-entitled proceeding. 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 bargain over a Union ground rule proposal concerning the number of union negotiators who would receive official time during mid-term negotiations. The Judge found that no violation of the Statute had occurred and recommended that the complaint be dismissed.

The General Counsel filed exceptions to the Judge's decision and the Respondent filed an opposition to the General Counsel's exceptions.

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. However, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute as alleged.

II. Background and Judge's Decision

The American Federation of Government Employees (AFGE) represents a nationwide, consolidated bargaining unit of employees of the Department of Veterans Affairs, including those employed by the Respondent. AFGE, Local 1273 represents unit employees at the Respondent's facility.

The Department of Veterans Affairs and the AFGE are parties to a national collective bargaining agreement (the master agreement). Article 4, Sections 4 and 5 of the agreement provide as follows:

Section 4 - Local Bargaining on National Changes

On all policies and directives or other changes for which the VA meets its bargaining obligations at the national level, local bargaining at individual facilities will be restricted to local implementation unless there was agreement at the national level to provide for local bargaining on the national subject. Local union representatives shall receive official time for all time spent in mid-term negotiations as provided under 5 USC §7131(a).

Section 5 - Local Level Changes

Proposed changes affecting personnel policies, practices or conditions of employment which are initiated by local management at a single facility will be forwarded to the designated local union official. Upon request, the parties will negotiate as appropriate. The union representatives shall receive official time for all time spent in negotiations as provided under 5 USC §7131(a).

Joint Exhibit 1 at 4.

In April 1989, the Respondent initiated local changes in working conditions. The Union sought to bargain over ground rules for negotiations over the changes. As one of its proposals, the Union proposed that the Union's bargaining team consist of five members, all of whom would be on official time. The Respondent refused to negotiate on the Union's proposal.

The Judge noted that the disputed proposal was in the nature of a ground rule for bargaining over changes in conditions of employment and that there was no contention that "the subject matter of the changes brought them outside the duty to bargain . . . ." Judge's Decision at 5. The Judge stated, in this regard, that there was no provision in the master agreement that "even arguably waives the Union's right to bargain" over the changes proposed by the Respondent. Id. The Judge noted also that "the subject of official time for the Union's negotiators is within the normal scope of ground rules negotiations." Id. Accordingly, the Judge concluded that the Respondent was "required to bargain about [the changes]" and "over ground rules for the negotiations over the changes." Id.

The Judge concluded, however, that the Respondent did not violate the Statute by refusing to bargain on the disputed proposal because the Respondent's refusal was based on a plausible interpretation of the master agreement. The Judge relied, in this regard, on Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Chicago, Illinois District Office, 33 FLRA 147, 154 (1988) (IRS, Chicago). In the Judge's view, under IRS, Chicago:

a party can avoid its liability under the enforcement provisions of the Statute without bargaining over a negotiable subject, as long as it can point to a provision in its contract that arguably conflicts with the other party's subsequent proposal on that subject.

Judge's Decision at 6. The Judge stated that although he had "serious misgivings" about IRS, Chicago, he was "precedentially" bound to follow that decision. Id.

Applying IRS, Chicago, the Judge concluded that the disputed proposal arguably conflicted with the contract. The Judge credited testimony from a Union representative that at the time Article 4, Section 5 was agreed on, the Union understood that the provision did not waive the Union's right to bargain over official time for more representatives than otherwise would be required under section 7131(a) of the Statute. The Judge stated, in this regard, that Article 4, Section 5 could "reasonably be interpreted" as encompassing what section 7131(a) "permits" rather than what section 7131(a) "'authorized as an entitlement.'" Id. at 8 (emphasis in original).

The Judge also noted, however, that the Respondent interpreted Article 4, Section 5 "as limiting the number of union negotiators on official time to the number of management negotiators." Id. (emphasis in original). In the Judge's view, the Respondent's interpretation of the contract was plausible because the contract phrase "'provided under,' [could] reasonably be interpreted as synonymous with the phrase, 'authorized under,' as used in section 7131(a)." Id. Accordingly, as the Judge found that the Respondent's position was "a plausible interpretation[,]" the Judge recommended that, consistent with IRS, Chicago, the complaint be dismissed. Id. (emphasis in original).

III. General Counsel's Exceptions

The General Counsel contends that the Judge erred by concluding that the case involved a question of arguable contract interpretation rather than waiver of a statutory right. The General Counsel argues that the "arguable contract interpretation" principle does not apply to a case, such as this one, where an agency defends a refusal to bargain by reliance on the parties' collective bargaining agreement. Exceptions at 2. The General Counsel argues that a union's statutory right, including the right to negotiate over the number of union negotiators to receive official time to bargain, may be relinquished only by "a clear and unmistakable waiver of the right." Id. at 3. In the General Counsel's view, since "a clear and unmistakable waiver" is required, "it is logically impossible to hold that the statutory right can also be eliminated because of an arguable contractual provision." Id. at 9. The General Counsel argues, in this regard, that IRS Chicago was wrongly decided and should be rejected by the Authority.

IV. Respondent's Opposition

The Respondent asserts that the issue raised by the Union "is a differing and arguable interpretation as to what was left to local bargaining in supplemental negotiations . . . ." Respondent's Opposition at 2. The Respondent argues that bargaining on the number of union negotiators at the local level is inappropriate because "the number of union negotiators at the local level, for all local negotiable subjects, has been specifically provided for in the Master Agreement . . . ." Id. The Respondent further argues that the Union fully exercised its right to negotiate over the number of Union negotiators authorized to receive official time and the results of the negotiations were incorporated into Article 4, Sections 4 and 5 of the master agreement.

V. Analysis and Conclusions

A. Appropriate Standard to Be Applied

In Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS), the Authority set forth the approach to be followed in cases involving an alleged statutory violation and allegations that a collective bargaining agreement permits the action that is alleged to constitute an unfair labor practice. We rejected an approach that would dismiss complaints alleging a violation of a statutory right based on a finding that the parties have proffered differing and arguable interpretations of a collective bargaining agreement. We noted that a "differing and arguable" analysis would permit a respondent to violate protected rights based solely on an arguable or plausible interpretation of an agreement without any necessity of proving that its interpretation is correct. We concluded that use of a "differing and arguable" analysis in such cases was inconsistent with the purposes and policies of the Statute and stated that, to the extent that previous Authority decisions applied such an analysis, those decisions would no longer be followed.

In IRS, the Authority reaffirmed that "[t]he established approach . . . 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." Id. at 1574. Consistent with IRS, we resolve complaints, such as the one now before us, by determining whether the union clearly and unmistakably waived its statutory rights. See, for example, Marine Corps Logistics Base, Barstow, California, 39 FLRA 1126 (1991) (union did not clearly and unmistakably waive its right to bargain over the impact and implementation of changes in the agency's performance appraisal system); Department of the Army, U.S. Army Finance and Accounting Center, Indianapolis, Indiana, 39 FLRA 1586 (1991) (Authority agreed with judge's conclusion that, pursuant to collective bargaining agreement and subsequent settlement agreement, the union clearly and unmistakably waived its right to determine the number of union representatives for bargaining). Compare Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991) (as matter over which the union sought to bargain was covered by a provision in the parties' contract and as there was no allegation that the agreed-upon procedures were not followed, agency did not violate the Statute by refusing to bargain over union proposals concerning the matter).

B. Application of the Standard to This Case

The Judge concluded that there was no provision in the master agreement that "even arguably waives the Union's right to bargain locally over changes." Judge's Decision at 5. The Judge found, instead, that Article 4, Section 5 of the master agreement specifically authorized local bargaining over changes affecting unit employees conditions of employment which were initiated by local management. We conclude, in agreement with the Judge, that the master agreement contains no provision that waives the Union's right to bargain over the changes involved in this case.

We conclude also that the Union did not clearly and unmistakably waive its right to bargain over the number of Union representatives to be authorized official time to bargain. We note, in this regard, that a union is entitled under the Statute to propose that official time be granted to more union representatives than the number to which it is entitled under section 7131(a) of the Statute. See American Federation of Government Employees, AFL-CIO, and U.S. Environmental Protection Agency, 15 FLRA 461, 463 (1984) ("there is no indication that Congress intended to preclude negotiation of official time beyond that authorized as an entitlement in section 7131(a)."). The Judge concluded, based on his evaluation of the evidence and testimony before him, including specific evidence and testimony regarding the parties' bargaining history concerning Article 4, Section 5, that the provision could "reasonably be interpreted" as not foreclosing the disputed proposal in this case. Judge's Decision at 8. That is, although the Judge found that the Respondent's position regarding that provision was "a plausible interpretation[]" he found that an equally plausible interpretation supported the Union's position. Id. (emphasis in original).

We agree with the Judge that either interpretation of the provision is plausible. As such, and consistent with the testimony concerning bargaining history credited by the Judge, we conclude that the provision does not constitute a clear and unmistakable waiver of the Union'