42:0266(22)CA - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1991 FLRAdec CA - - v42 p266

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42:0266(22)CA
The decision of the Authority follows:


42 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23, SEIU, AFL-CIO

(Charging Party/Union)

5-CA-00080

DECISION AND ORDER

September 23, 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 to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to bargain in good faith and cooperate in impasse procedures when it eliminated environmental differential pay (EDP) for certain bargaining unit employees without negotiating with the Union "concerning the substance and/or impact and implementation of the change." Complaint at 5, General Counsel's Exhibit 1(c). The Judge found that the Respondent did not violate the Statute and recommended dismissal of the complaint.

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, for the reasons set forth below, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute as alleged.

II. Background and Judge's Decision

The Union represents certain of the Respondent's wage grade employees, including those in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop (the Shop). For many years, Shop employees had received 4 percent EDP because of their exposure to dust when sanding lead-based paint and to polyurethane paint.

Article XX, Section 2 of the parties' collective bargaining agreement provides as follows:

Employees will receive environmental differential pay in accordance with applicable regulations. Where there is a question of the application of the regulation, the Union is afforded an opportunity to present it to the Civilian Personnel Officer for expeditious investigation and review. Disputes may be grieved.

Judge's Decision at 2.

Applicable regulations require the Respondent to, among other things, conduct an annual review of work situations currently approved for EDP. These reviews are used to determine whether the hazard that is the basis for the EDP has been eliminated to such a degree that precludes continued EDP. The Respondent initiated such a review in late 1988 and informed the Union on September 11, 1989, that EDP would be eliminated in the Shop effective October 1, 1989.

The Union requested negotiations over the matter "to the extent allowable by law." Joint Exhibit 6. The Respondent refused to negotiate over the substance of its decision to eliminate the EDP. The Respondent maintained that it had no duty to bargain because Article XX, Section 2 limited the Union to its remedies under the negotiated grievance procedure if the Union wished to contest the elimination of the EDP.

On September 22, 1989, the Union requested the assistance of the Federal Service Impasses Panel (the Panel) to resolve what, in the Union's view, was a bargaining impasse. Joint Exhibit 8. On October 15, 1989, the Respondent implemented the change eliminating EDP. On November 1, 1989, the Panel declined to assert jurisdiction, stating that the Respondent's "questions concerning [its] obligation to bargain must be resolved in an appropriate forum before a determination can be made as to whether the parties have, in fact, reached a negotiation impasse." Joint Exhibit 18 at 1.

The Judge found that he was "constrained" to recommend dismissal of the complaint. Judge's Decision at 7. The Judge stated that the issue before him was "whether the applicable legal principle is that of 'clear and unmistakable waiver' of the Union's right to bargain or that of 'differing and arguable interpretations of a collective bargaining agreement.'" Id. at 3. The Judge noted that, according to the General Counsel, the former principle applies and nothing in the parties' agreement constitutes such a waiver. The Judge also noted that the Respondent took the position that the latter principle applies, and that Article XX, Section 2 at least arguably gives the Respondent the right to change unilaterally the manner in which it applies the EDP regulations, subject to review only through the grievance procedure.

The Judge found that, based on his reading of Authority case law and "welcoming the possibility that" he was misinterpreting the Authority's policy, the latter principle applied. Id. at 5. The Judge then found that the Respondent "has presented an arguable position that the contract shunts disputes concerning the application of the EDP regulations away from the negotiations arena and into the forum of the grievance procedure." Id. Having found that the contract language was "subject to differing and arguable interpretations as to the negotiability of the subject of eliminating the EDP," the Judge stated that he was "constrained to recommend that the Authority" dismiss the complaint. Id. at 7.

III. Positions of the Parties

A. The General Counsel

The General Counsel contends that the Judge erred by applying the wrong legal principle when he concluded that this case involves 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 its refusal to bargain by relying on the parties' collective bargaining agreement. Exceptions at 2. According to the General Counsel, the correct principle of law to be applied in this case is the "clear and unmistakable waiver" principle. Id. at 4.

The General Counsel notes that the Respondent refused to bargain concerning the elimination of the EDP solely because the Respondent asserted that the parties' agreement required the Union to use the grievance procedure to resolve any dispute concerning EDP. The General Counsel contends that inasmuch as the Respondent defended its refusal to negotiate on the basis of the parties' contract, the only pertinent question is whether that contract contains a waiver of the Respondent's bargaining obligation. The General Counsel notes that a waiver of statutory rights must be clear and unmistakable, and argues that in this case there is no waiver. In this regard, the General Counsel notes that the Respondent did not present any evidence that a waiver existed, but rather defended its refusal to bargain only on the basis of its interpretation of the agreement. The General Counsel requests that the Authority find that the Respondent violated section 7116(a)(1), (5) and (6) as alleged in the complaint. The General Counsel also requests that the Respondent be required to reinstate the status quo ante and to offer the Union an opportunity to bargain concerning any proposed change in EDP in the Shop.

B. The Respondent

The Respondent asserts that the Judge correctly recommended dismissal of the complaint. As an initial matter, the Respondent contends that the General Counsel's exception should not be considered because it does not comply with the requirements of section 2423.27(a) of the Authority's Regulations. In particular, the Respondent contends that the exception does not set forth with specificity the questions upon which the exception is taken and does not state the grounds for the exception.

The Respondent asserts that the Judge applied the correct legal standard. The Respondent maintains that Article XX, Section 2 of the parties' agreement "directs the parties to the negotiated grievance procedure as the exclusive means available to resolve disputes concerning environmental pay[,]" and contends, therefore, that "it was excused from any bargaining obligation under the terms of the agreement." Respondent's Opposition at 2 (footnote omitted).

Noting that the General Counsel did not challenge the Judge's determination that the Respondent's reading of Article XX, Section 2 is plausible, the Respondent asserts that this finding must "remain undisturbed." Id. at 6. Further, the Respondent asserts that the policy of deferral to grievance arbitration is sound. The Respondent contends that where a dispute over the obligation to bargain focuses upon differing and arguable interpretations of the collective bargaining agreement, the proper forum for resolution of that dispute is grievance arbitration.

Finally, the Respondent contends that because it complied with Article XX, Section 2, its termination of EDP did not amount to a change in working conditions that gave rise to a bargaining obligation.

V. Analysis and Conclusions

A. Preliminary Matter

We reject the Respondent's contention that the General Counsel's exception fails to comply with the Authority's Regulations and should be dismissed. We find that the General Counsel has set forth with sufficient particularity the questions and the 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 General Counsel's exceptions. See Internal Revenue Service, Washington, D.C., 39 FLRA 1568, 1573 (1991) (IRS).

B. Appropriate Standard to Be Applied

In IRS, which was issued after the Judge issued his decision in this case, 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) (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).

Accordingly, we find that the Judge erred in applying the differing and arguable standard in this case.

C. Application of the Standard to This Case

The issue in this case is whether the Union clearly and unmistakably waived its statutory right to bargain. The Respondent argues that the Union waived its right to bargain over how questions regarding EDP will be resolved because the parties' agreement "directs the parties to the negotiated grievance procedure as the exclusive means available to resolve disputes concerning environmental pay [EDP]." Respondent's Opposition at 9.

A waiver of a union's statutory right to bargain must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, North East Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990). A waiver can be established by express agreement or by reliance on bargaining history. Id.; see also U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632, 636-38 (1990).

The plain wording of Article XX, Section 2 states that "[d]isputes may be grieved." The agreement uses the permissive verb "may" rather than any terms that would indicate a clear intent to make all disputes regarding EDP subject to resolution solely and exclusively through the parties' grievance procedure. Therefore, the agreement provision itself does not establish the grievance procedure as the only procedure for addressing disputes over EDP matters. Accordingly, we find that the plain language of the agreement does not waive the Union's right to bargain over EDP disputes.

Moreover, the parties' bargaining history does not demonstrate that a waiver occurred. The Union's negotiator testified that the Union never intended to, and never did, waive its rights when agreeing to Article XX, Section 2. See Hearing Transcript at 44. The Union's negotiator also testified that during the renegotiation of the parties' agreement in 1985, the Respondent proposed a revised version of Article XX, Section 2, which clearly stated that the negotiated grievance procedure was the exclusive means for contesting EDP matters. See General Counsel's Hearing Exhibit 7(a) at 5; Hearing Transcript at 47. The Union did not agree to the Respondent's proposal, and the language of Article XX, Section 2 remained unchanged. Thus, rather than establishing that the Union clearly and unmistakably waived its statutory rights, the parties' bargaining history demonstrates that the parties had a longstanding difference as to whether the grievance procedure was the exclusive means to contest EDP matters.

In these circumstances, we conclude that the parties' negotiated agreement and their bargaining history do not establish that the Union clearly and unmistakably waived its right to bargain regarding EDP matters. Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) when it refused to bargain about the elimination of EDP in the Shop.

D. Violation of Section 7116(a)(1) and (6)

The complaint in this case also alleged that the Respondent violated section 7116(a)(1) and (6) of the Statute by implementing its decision to terminate EDP for employees in the Shop while the parties' dispute was pending before the Federal Service Impasses Panel (the Panel) on the EDP issue. For the following reasons, we agree that the Respondent violated section 7116(a)(1) and (6) as alleged.

Once parties reach an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. See, for example, Department of Health and Human Services, Health Care Financing Administration, AFL-CIO, 39 FLRA 120, 131-32 (1991), reconsideration denied, 40 FLRA 40 (1991), petition for review filed sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. April 18, 1991). Failure to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute. See id. at 131. See also, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-51 (1990) (DHHS, SSA Field Operations); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-38 (1986) (HUD Kansas City); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985).

The Authority has found no basis on which to conclude that the status quo requirement is, or should be, affected by whatever action the Panel eventually takes regarding the impasse. The purpose of the requirement is to facilitate the Panel's consideration of negotiation impasses and allow the Panel to take whatever action it deems appropriate to resolve disputes. Allowing an agency to implement a change based on its speculation as to what action the Panel will take after implementation would undermine the important role played by the Panel in collective bargaining under the Statute.

Therefore, the Authority has rejected a respondent's contention that it was not obligated to maintain the status quo because the Panel declined jurisdiction after implementation. DHHS, SSA Field Operations, 35 FLRA at 950. The Authority has also rejected a respondent's arguments that implementation was required by agency deadlines. Id. at 951. Similarly, while the Authority agreed with an agency that costs are a legitimate factor in deciding what is necessary for the efficient functioning of an agency, the Authority rejected an agency's argument that costs alone required implementation while an impasse was pending before the Panel. See HUD Kansas City, 23 FLRA at 437-38.

The Respondent implemented the termination of EDP for employees in the Shop without bargaining with the appropriate exclusive representative and while the parties' dispute over the matter was pending before the Panel. We have rejected the Respondent's argument that Article XX, Section 2 of the parties' agreement constitutes a waiver of the Union's right to bargain over EDP matters. We note that the Respondent does not allege that implementation of the decision to eliminate EDP while the dispute over the matter was pending before the Panel was consistent with the necessary functioning of the Respondent. The Respondent had an obligation to bargain with the Union and to maintain the status quo while the parties' dispute was pending before the Panel. Accordingly, we find that the Respondent violated section 7116(a)(1) and (6) of the Statute.

E. Remedy

We find that the Respondent failed to maintain the status quo to the maximum extent possible, while an impasse concerning the termination of EDP for employees in the Shop was pending before the Panel. Instead, the Respondent terminated the EDP for those employees without bargaining with the exclusive representative of the employees. Generally, 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). We note that no special circumstances are alleged in this case, and none are apparent to us. Accordingly, we find that a return to the status quo ante and a notice posting at the affected locations are appropriate actions to remedy the unfair labor practices which have been committed.

We also conclude that backpay is an appropriate remedy to make whole any employee who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the implementation of the decision to terminate EDP in the Shop. In 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 (1990) (DHHS, SSA), we set forth an approach for determining when, in addition to a status quo ante award, backpay would be appropriate in "cases involving changes in conditions of employment resulting from unlawful refusals to bargain, regardless of whether the status quo ante award stems from a refusal to bargain over [the substance of] a decision or from an analysis conducted under Federal Correctional [Institution, 8 FLRA 604 (1982)] concerning a failure to engage in impact and implementation bargaining." DHHS, SSA, 37 FLRA at 291. We stated that in such cases, if we determine that "the agency's actions resulted in a withdrawal or reduction in pay, allowances or differentials of identifiable employees, we will then order the agency to make such employees whole for that withdrawal or reduction." Id. at 292. We further stated that we would "leave to the compliance stage any questions as to the actual amount to be paid." Id. (footnote omitted).

We conclude that the Respondent's unilateral elimination of the EDP for employees in the Shop resulted in a withdrawal of the EDP which the employees had been receiving prior to the change. The record indicates that at least three employees in the Shop lost the EDP which they had been receiving. See Hearing Transcript at 68. Therefore, the causal nexus required by the Back Pay Act, 5 U.S.C. § 5596, has been established. DHHS, SSA, 37 FLRA at 289-90.

Accordingly, we will order the Respondent to return to the status quo ante and to make employees in the Shop whole for the EDP they lost as a result of the Respondent's elimination of the EDP in the Shop without bargaining with the Union. The amount of the backpay owed will be a matter for compliance. DHHS, SSA, 37 FLRA at 291-93.

VI. 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 Department of the Air Force, Scott Air Force Base, Illinois, shall:

1. Cease and desist from:

(a) Refusing to bargain with the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of its employees, on the termination of environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

(b) Terminating environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop without first bargaining with the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of its employees.

(c) Failing and refusing to cooperate in impasse proceedings by implementing the decision to terminate environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop while an impasse concerning that decision is pending before the Federal Service Impasses Panel.

(d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

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

(a) Rescind the implementation of its decision to terminate environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

(b) Make whole and restore environmental differential pay to those employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop who would have received the pay but for the Respondent's decision to terminate the pay.

(c) Maintain the status quo ante, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

(d) Notify the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of its employees, of any intention to implement changes in environmental differential pay for employees, and, upon request of the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, negotiate on the termination of environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

(e) Post at the facilities involved in this case, 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 Commanding Officer, Scott Air Force Base, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. 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, Chicago Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

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 bargain with the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of our employees, on the termination of environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

WE WILL NOT implement a decision to terminate environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop without first bargaining with the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of our employees.

WE WILL NOT fail and refuse to cooperate in impasse proceedings by implementing the decision to terminate environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop while an impasse concerning that decision is pending before the Federal Service Impasses Panel.

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

WE WILL rescind the implementation of our decision to terminate environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

WE WILL make whole and restore environmental differential pay to those employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop who would have received the pay but for the Respondent's decision to terminate the pay.

WE WILL maintain the status quo ante, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

WE WILL notify the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, the exclusive representative of our employees, of any intention to implement changes in environmental differential pay for employees, and, upon request of the National Association of Government Employees, Local R7, 23, SEIU, AFL-CIO, negotiate on the termination of environmental differential pay for employees in the 375th Consolidated Aircraft Maintenance Squadron Corrosion Control Shop.

(Activity)

Dated: By:

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director in Chicago, Illinois, Federal Labor Relations Authority, whose address is: 175 West Jack