41:0272(29)CA - - FDIC ( Washington, DC; Boston, MA, Chicago, IL; Columbus, OH ) and NTEU and NTEU Chapter 242 - - 1991 FLRAdec CA - - v41 p272



[ v41 p272 ]
41:0272(29)CA
The decision of the Authority follows:


41 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

3-CA-80010

FEDERAL DEPOSIT INSURANCE CORPORATION

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

CHICAGO, ILLINOIS

FEDERAL DEPOSIT INSURANCE CORPORATION

COLUMBUS, OHIO

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION,

CHAPTER 242

(Charging Party)

5-CA-70447

FEDERAL DEPOSIT INSURANCE CORPORATION

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

BOSTON, MASSACHUSETTS

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

1-CA-80086

FEDERAL DEPOSIT INSURANCE CORPORATION

WASHINGTON, D.C.

FEDERAL DEPOSIT INSURANCE CORPORATION

NEW YORK, NEW YORK

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION,

CHAPTER 244

(Charging Party)

2-CA-80092

DECISION AND ORDER

June 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These consolidated unfair labor practice cases are before the Authority under section 2429.1 of our Rules and Regulations, based on the parties' stipulations of facts. The cases involve four separate complaints alleging that on August 5, 1987, the Federal Deposit Insurance Corporation, Washington, D.C. (FDIC or Agency) committed unfair labor practices by unilaterally implementing a rate increase for the family option of its own health insurance plan and by changing the open season of its plan to coincide with the open season for other Federal employee health benefit plans. Two of the complaints (Case No. 1-CA-80086 and Case No. 2-CA-80092) also allege that the Agency interfered in the bargaining relationship between the National Treasury Employees Union (the Union) and FDIC regional offices.

The Agency and the General Counsel filed briefs in all of the cases; the Union filed briefs in Case No. 3-CA-80010 and Case No. 5-CA-70447. For the reasons stated below, we find that the Agency violated the Statute by unilaterally implementing changes in its own health insurance plan.

II. Procedural Matters

The Agency submitted four attachments to its brief in Case No. 3-CA-80010 and Case No. 5-CA-70447. The attachments are a notice regarding the establishment of a branch office in Columbus, Ohio and news releases regarding the FDIC insurance fund and bank closures. The General Counsel filed a motion to strike the attachments because they constituted an attempt to add new material to the record, contrary to the parties' stipulation. The General Counsel also moved that the portions of the FDIC's brief that were based on the attachments be stricken.

In response to the General Counsel's motion to strike, the Agency filed a motion requesting the Authority to deny the motion to strike and to take official notice of the information in the attachments to its brief. The General Counsel filed an opposition to that motion.

None of the information relates to the question before us regarding whether the Agency committed the unfair labor practices as alleged. We grant the General Counsel's motion to strike and deny the FDIC's motion that we take official notice of the information in the attachments.

III. Background

The complaints in this case were issued in late 1987 and early 1988. On May 26, 1988, the Authority granted the Agency's motion to consolidate the complaints for decision. On June 10, 1988, the Agency requested that in the interest of judicial economy and efficiency, the Authority defer any decision regarding this consolidated complaint pending a final judicial determination of the negotiability issue involved in this case.

The duty to bargain issue present in each of these complaints is substantially similar to the negotiability issue decided in National Treasury Employees Union, Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 738 (1987) (Chairman Calhoun dissenting), reconsideration denied, 29 FLRA 1465 (1987) (Chairman Calhoun dissenting) (NTEU, Chapter 207). In that decision, the Authority found negotiable a proposal dealing with benefit systems for FDIC bargaining unit employees. In particular, the Authority found that the proposal concerned money-related fringe benefits which the Agency, in its discretion, provides unit employees, rather than benefits which are specifically provided by law. The Authority concluded that the proposal did not require negotiation over matters that were inconsistent with law and regulation. 28 FLRA at 740.

Thereafter, the Agency sought review, and the Authority sought enforcement, of the Authority's decision and order in NTEU, Chapter 207 on the proposal concerning money-related fringe benefits. FLRA v. Federal Deposit Insurance Corporation, No. 87-1717 (D.C. Cir.) (application for enforcement filed November 25, 1987) (FLRA v. FDIC); FDIC v. FLRA, No. 88-1006 (D.C. Cir.) (petition for review filed January 4, 1988). The Union filed a motion for summary enforcement of the Authority's order, and the court denied the motion.

Consistent with the Authority's action in other cases, the Authority determined that these unfair labor practice complaints were inextricably linked to the above-cited litigation in NTEU, Chapter 207 involving the same parties and the same issues. See National Treasury Employees Union and Federal Deposit Insurance Corporation, Chicago, Illinois and National Treasury Employees Union and Federal Deposit Insurance Corporation, 32 FLRA 1131 (1988). Accordingly, by the Authority's Order of August 31, 1988, the Agency's request that this consolidated complaint be held in abeyance was granted.

On May 29, 1990, the Supreme Court issued its decision in Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990) (Fort Stewart). In that decision, the Court, affirming the Authority's underlying order, held that money-related fringe benefits were conditions of employment over which management was required to bargain.

Subsequently, based on the Supreme Court's decision in Fort Stewart, the court in FLRA v. FDIC, Nos. 87-1717 and 88-1006 (D.C. Cir. Feb. 25, 1991) (per curiam), granted the Authority's motion for summary enforcement of the Authority's decision in NTEU, Chapter 207, and denied the Agency's petition for review.

IV. Facts

The events giving rise to this case began when the insurance company which underwrites the Agency's own health insurance plan notified the Agency that there would be rate increases for both the single and family options for the plan's next renewal period, due to expected increases in the costs of providing medical care. The Agency determined that it would be advantageous to allow the renewal period for its own plan to coincide with the open season for the other Federal employee health benefit plans, and extended the 1987-88 enrollment period accordingly. The Agency decided to absorb the premium increase for those subscribing to the single option in the plan, as part of the Agency's share of the total premium. However, the Agency passed on to employees a portion of the premium increase for family option coverage equivalent to the same percentage of total cost then paid by those with family option. The Agency decided to make these changes on or about July 16, 1987, and notified employees of these changes by issuance of Bulletin No. 2811 dated August 5, 1987.

By letter of August 31, 1987, the Union requested that the Agency refrain from implementing any proposed rate or benefit changes outlined in Bulletin No. 2811 until negotiations concerning the issue were completed. By letter dated September 3, 1987, to FDIC's New York Region, the Union requested to begin negotiations concerning the Union's proposal found negotiable in NTEU, Chapter 207, and the proposed changes in the Agency's health insurance plan outlined in FDIC Bulletin 2811. On September 3, 1987, the Union submitted the same request to FDIC's Boston Region. By letter dated September 11, 1987, the Union contacted the Agency's Chicago Region requesting negotiations on the changes outlined in the bulletin and that the Agency refrain from implementing the announced changes.

The Agency refused to honor the requests to bargain and implemented the changes as announced in its bulletin. The parties stipulated that no bargaining has occurred between them regarding these changes to the Agency's health insurance plan.

V. Positions of the Parties

The Agency argues that it has no obligation to bargain over the matter because the Agency's health insurance plan is not a condition of employment. The Agency also contends that there is a compelling need for the regulations establishing its health insurance plan because those regulations protect the integrity of the Deposit Insurance Fund. Further, the Agency argues that negotiation over money-related fringe benefits would interfere with its mission and its right to determine its budget.

The Agency also maintains that no change giving rise to a bargaining obligation occurred. The Agency argues that those employees enrolled in family option of its health insurance plan still pay the same percentage of the premium. The Agency also argues that the change in enrollment period, to coincide with the open season of the other Federal health benefit plans, is a de minimis change.

The General Counsel argues that the Agency implemented the changes to its health insurance plan without affording the Union prior notice and an opportunity to negotiate over the substance, impact and implementation of these changes in conditions of employment of unit employees. The General Counsel argues that the Agency was required to afford the Union notice and an opportunity to negotiate over these changes in conditions of employment, and the Agency's failure to do so constitutes a violation of section 7116(a)(1) and (5) of the Statute.

The Union argues that the proposal submitted to the Agency in Case No. 5-CA-70447 is substantially similar to the proposal found negotiable by the Authority in NTEU, Chapter 207. In Case No. 5-CA-70447 and Case No. 3-CA-80010, the Union argues that the Agency implemented the announced changes in the health insurance plan without bargaining as required.(*) Both the Union and the General Counsel contend that a status quo ante remedy, including a refund to affected employees of any increased premiums paid, is appropriate.

VI. Analysis and Conclusions

We find that the Agency violated section 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith with the Union concerning the substance, impact and implementation of changes to the Agency's health insurance plan announced by the Agency in Bulletin No. 2811 dated August 5, 1987.

We find that the Agency's absorption of the entire increase in the health insurance premium for employees in the self-only option, but only partial absorption of the increase in the premium for employees enrolled in the family option, constituted a change in the conditions of employment for employees enrolled in the family option plan. Notwithstanding the fact that the Agency's percentage contribution toward the total insurance premium remained the same for both the self-only and family options, the employees enrolled in the family option suffered greater expense as a result of that change. Moreover, applying the standard in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407 (1986), we find that the Agency's change in the open season period for its own health insurance plan also constituted a change in a condition of employment and that the effect of the change on conditions of employment of bargaining unit employees was more than de minimis. The change affected employees' ability to enroll in, change status in, or terminate enrollment in the Agency's own health insurance plan. Consequently, we reject the Agency's claim that it had no duty to bargain in the circumstances of this case.

The Union timely requested bargaining at both the Washington, D.C. headquarters and at regional offices, and a delay in implementation of the changes announced by the Agency. The Agency stipulated that it denied the Union's request to bargain and that the changes were implemented as announced.

In our view, the Agency is attempting to relitigate in this case the merits of the Authority's negotiability decision regarding fringe benefits for FDIC employees, including the Authority's disposition of the compelling need issue. See NTEU, Chapter 207, 29 FLRA at 1467-69. In that decision, the Authority stated that "[t]he Agency here merely states its disagreement with our conclusion and seeks to relitigate the question of compelling need for the fourth time by raising matters which either were or could have been raised in earlier proceedings in the case." Id. at 1468. Consistent with the Order of the United States Court of Appeals for the District of Columbia Circuit granting summary enforcement of the Authority's decision and order, we find that the Agency was required to negotiate over the substance, impact and implementation of its decision to change its health insurance plan. See Fort Stewart. Accordingly, because the Agency refused to bargain, we find that the Agency violated section 7116(a)(1) and (5) of the Statute.

We also find that the Agency instructed its regional offices not to bargain and, in so doing, interfered with its regional offices' relationships with the Union. Accordingly, in Case No. 1-CA-80086 and Case No. 2-CA-80092, we find that the Agency violated section 7116(a)(1) and (5) of the Statute by interfering in the bargaining relationships between the Union and FDIC regional offices in Boston and New York. See, for example, U.S. Department of Energy, Washington, D.C., 34 FLRA 361, 366-67 (1990). In this regard, we will dismiss the portions of the complaints against FDIC's regional offices. The regional offices involved in these complaints were acting on the instructions of FDIC, Washington. See General Counsel's brief in Case No. 2-CA-80092 at 14; stipulation 19 in Case No. 5-CA-70447; stipulation 17 in Case No. 1-CA-80086; and stipulation 13 in Case No. 2-CA-80092. See, for example, U.S. Department of the Navy, Washington, D.C. and Pensacola Navy Exchange, Pensacola, Florida, 37 FLRA 628 (1990), application for enforcement and cross petition for review filed as to other matters sub nom. FLRA v. U.S. Department of Defense, U.S. Department of the Navy, Pensacola Navy Exchange, Pensacola, Florida, No. 90-3893 (11th Cir. Oct. 1, 1990).

Having found that the Agency violated the Statute, we next consider what remedial order will best effectuate the purposes and policies of the Statute. As noted above, both the Union and the General Counsel contend that a status quo ante remedy, including a refund to affected employees of any increases in premiums paid, is appropriate.

In carrying out its statutory functions, the Authority has wide discretion to fashion remedies under section 7105(g)(3) and section 7118(a)(7) of the Statute. See, generally, NTEU v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). In the absence of special circumstances, a status quo ante remedy is appropriate in cases where, as here, an agency has refused to bargain over the substance of a matter which is within its duty to bargain. See U.S. Department of the Treasury, Customs Service, Region IV, Miami District, Miami, Florida, 38 FLRA 838, 844 (1990); Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281 (1986). The record provides no basis for finding the existence of such special circumstances in these cases. Accordingly, we conclude that a remedy requiring the Agency to rescind the unlawful changes, reinstitute the previous practices, and make whole affected employees, including reimbursing employees who paid the increased family option health insurance plan premium, is appropriate in these consolidated cases. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 290 (1990).

VII. 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 Federal Deposit Insurance Corporation, Washington, D.C. shall:

1. Cease and desist from:

(a) Implementing changes to the Agency health insurance plan without first notifying the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, and affording it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to the Agency's health insurance plan announced in FDIC Bulletin No. 2811 dated August 5, 1987.

(b) Failing or refusing to negotiate in good faith with the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to the Agency's health insurance plan announced in FDIC Bulletin No. 2811 dated August 5, 1987.

(c) Interfering with the bargaining relationship between its employees represented by the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244 and its regional offices.

(d) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the policies of the Statute:

(a) Rescind FDIC Bulletin No. 2811 dated August 5, 1987, and reinstitute the practices previously in effect regarding the Agency's health insurance plan.

(b) Notify the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, and afford it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to the Agency's health insurance plan.

(c) Upon request, negotiate in good faith with the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to the Agency's health insurance plan.

(d) Make whole affected employees, including reimbursing employees represented by the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, for their increased insurance premium expenses suffered as a result of the rise in cost of the family option of the Agency's own health insurance plan after August 5, 1987, resulting from the Agency's improper action.

(e) Post at its facilities in Washington, D.C., Chicago, IL, Boston, MA, and New York, NY, and at other locations were affected employees are located 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 the Chairman, Federal Deposit Insurance Corporation, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notice to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director in Washington, D.C., Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The portions of the unfair labor practice complaints issued against FDIC's offices in Chicago, Columbus, Boston, and New York are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT implement changes to our health insurance plan without first notifying the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of our employees, and affording it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to our health insurance plan.

WE WILL NOT fail or refuse to negotiate in good faith with the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of our employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to our health insurance plan.

WE WILL NOT interfere with the bargaining relationship between our employees represented by the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244 and our regional offices.

WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights assured by the Statute.

WE WILL rescind FDIC Bulletin No. 2811 dated August 5, 1987, and reinstitute the practices previously in effect regarding our health insurance plan.

WE WILL notify the National Treasury Employees Union and the National Treasury Employees Union Chapters 242 and 244, the exclusive representative of our employees, and afford it the opportunity to negotiate, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to our health insurance plan.

WE WILL, upon request, negotiate in good faith with the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of our employees, to the extent that it is not inconsistent with Federal law or any Government-wide rule or regulation, concerning changes to our health insurance plan.

WE WILL make whole affected employees, including reimbursing employees represented by the