47:1091(103)CA - - IRS, Washington, DC and NTEU - - 1993 FLRAdec CA - - v47 p1091



[ v47 p1091 ]
47:1091(103)CA
The decision of the Authority follows:


47 FLRA No. 103

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

(39 FLRA 1568 (1991))

_____

DECISION AND ORDER ON REMAND

July 12, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992) (IRS v. FLRA). The court vacated the Authority's decision in 39 FLRA 1568, in which we found that the Respondent had violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), and the court remanded the case for further proceedings. The parties filed supplemental statements on remand. We have decided to remand the matter to an administrative law judge to determine the meaning of the parties' collective bargaining agreement and to issue a recommended decision and order resolving the complaint accordingly.

II. Background

In 1986, an Agency employee, Cleveland Harris, acting as president of Chapter 198 of the Union, advised the Respondent that he was designating himself as a steward under Article 9 of the parties' collective bargaining agreement (NORD II). Harris later left the Agency's employment, but remained the president of Chapter 198. Thereafter, Harris advised the Respondent that he remained the "Steward-at-Large-EEO" and wished to have access to employees who needed his representation. 39 FLRA at 1569. In response, the Respondent advised the Union that the Respondent would no longer recognize Harris as a steward because Article 9(1) of the agreement requires that stewards must be bargaining unit employees. The Respondent continued to permit Harris to serve in a representational capacity as president of Chapter 198, but refused to deal with him in his capacity as steward-at-large.

The Union filed an unfair labor practice charge, and a complaint was issued alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to recognize Harris as a steward-at-large of Chapter 198 of the Union. The Administrative Law Judge determined that disputes over the designation of union representatives are matters of contractual rights. Because the Judge found that the Respondent's position was based on a plausible interpretation of the agreement, the Judge concluded that the case should be treated as a contract dispute and not as an unfair labor practice. Accordingly, he recommended that the complaint be dismissed.

III. The Authority's Decision in 39 FLRA 1568

In 39 FLRA 1568 (IRS), we first addressed what analysis should apply to unfair labor practice 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 rejected an approach that would dismiss complaints alleging a violation of a statutory right when the parties have presented differing and arguable interpretations of the collective bargaining agreement. We found that the use of a "differing and arguable interpretations" analysis in cases involving statutory rights was inconsistent with the purposes and policies of the Statute. We concluded that the established approach employed by the Authority in statutory rights cases to resolve defenses based on a collective bargaining agreement was to determine whether the charging party clearly and unmistakably waived its statutory right. We advised that we would continue to apply such an analysis, even in cases where the collective bargaining agreement contains some reference to the matter in dispute.

Applying the "clear and unmistakable waiver" standard in IRS, we concluded that neither the language of the parties' collective bargaining agreement nor the bargaining history to the agreement demonstrated that, by agreeing to the various provisions of Article 9 of the collective bargaining agreement, the Union waived its statutory right to designate its representatives. Accordingly, we determined that the Respondent violated section 7116(a)(1) and (5) of the Statute.

IV. The Decision of the Court in IRS v. FLRA

In IRS v. FLRA, the court determined that the Authority had failed to provide a reasoned justification for departing from a "'differing and arguable interpretations' analysis for addressing unfair labor practice cases[.]" 963 F.2d at 434. The court also held that in cases such as the one before it, the "clear and unmistakable waiver" analysis conflicted with the policies of the Statute.

The court found that "[i]n a series of decisions in the mid-1980s, the FLRA developed a 'differing and arguable interpretations' analysis for addressing unfair labor practice cases, like IRS, in which an agency raises a provision of the applicable collective bargaining agreement as a defense to an alleged unfair labor practice." Id. Under this approach, according to the court, the Authority would dismiss the unfair labor practice complaint and refer the parties to arbitration for a definitive interpretation of their agreement whenever the agency established that its interpretation of the disputed provision was "arguably" or "plausibly" correct. Id. In the court's view, the "differing and arguable interpretations" analysis "was eminently sensible because it properly took account of the 'strong Congressional policy favoring arbitration' in public sector labor relations." Id. at 435 (quoting Overseas Education Association v. FLRA, 824 F.2d 61, 63 (D.C. Cir. 1987)). The court explained that in unfair labor practice cases in which the agency raises a provision of the collective bargaining agreement as a defense, "the issue upon which the alleged unfair labor practice rises or falls is the meaning of the language of the agreement." Id. (emphasis in original). In approving of the Authority's application of the "differing and arguable interpretations" analysis, as described by the court, the court concluded that "the Authority properly recognized that, where a case turns on the meaning of the collective bargaining agreement, a definitive construction of the agreement should be obtained from the arbitrator--the tribunal primarily responsible for discharging that task under the [Statute]." Id.

The court found that the Authority's adoption of a "clear and unmistakable waiver" analysis in this case constituted an unexplained departure from its prior analytic method for which there was no appropriate justification. In criticizing the Authority's application of a "clear and unmistakable waiver" analysis, the court stated that such an analysis "turns the 'differing and arguable interpretations' approach on its head--under the ['clear and unmistakable waiver' analysis], if the collective bargaining agreement is subject to differing and arguable constructions, then it is the union, not the agency, which prevails before the Authority, regardless of what the true meaning of the agreement is." Id. at 436 (emphasis in original).

The court rejected the Authority's contention that the "differing and arguable interpretations" analysis "permits an agency to prevail against a union without proving the correctness of its reading of the contract." Id. In the court's view, under such an analysis, the parties' dispute over the meaning of the collective bargaining agreement would go to arbitration where the agency must prove to an arbitrator that its interpretation of the collective bargaining agreement is correct. The court also rejected the Authority's assertion that such an analysis unfairly "penalizes aggrieved parties, who are, under section 7116(d) of the Statute, then precluded from filing a grievance." Id. (quoting IRS, 39 FLRA at 1573). The court determined that "it is simply incorrect to maintain . . . that the approach violates section 7116(d)'s proscription against duplicative proceedings." Id. at 437 (footnote omitted). The court advised that section 7116(d) would not preclude "a later-filed grievance where a party's unfair labor practice claim is dismissed pursuant to a deferral policy adopted by the Authority." Id. at 437 n.9 (emphasis in original). In the court's view, it was the Authority's "clear and unmistakable waiver" analysis that actually contravenes the policies of section 7116(d). The court found that "[b]y providing for a choice of forum, section 7116(d) assumes that a similar analytical approach would be followed--if not the same result reached--by both the arbitrator and the Authority with respect to matters over which there is concurrent jurisdiction." Id. at 438 (emphasis in original). The court noted, however, that under the Authority's "clear and unmistakable waiver" analysis, the results will be markedly different because an arbitrator will interpret the parties' collective bargaining agreement, while the Authority will find an unfair labor practice when the contract provision on which the agency relies is in any way ambiguous. Thus, in the court's view, "section 7116(d)'s promise of a choice of forum is illusory because there is no reason for a union ever to choose arbitration[.]" Id. (emphasis in original).

The court also held that the Authority's use of the "clear and unmistakable waiver" analysis is at odds with the policies of the Statute because "it first transforms a dispute over contract interpretation into an unfair labor practice case, and then resolves the case without ever answering the interpretative question that spawned the dispute in the first place." Id. at 439. The court also concluded that the "clear and unmistakable waiver" analysis undermines collective bargaining by effectively relieving one party of its contractual obligations. In the court's view, under the Authority's approach, provisions of a collective bargaining agreement will be enforced only if they are "crystal clear" and "this will rarely be the case[.]" Id. The court found that the result of this analysis "often will be to prevent the agency from enforcing the restrictions on union 'rights' for which it has bargained, and to which the union has agreed." Id. Thus, the court concluded that "in many cases, the provisions of the parties' agreement will be rendered a nullity, in direct contravention of the [Statute's] policies of contractual stability and repose." Id.

The court rejected the Authority's claim that the "clear and unmistakable waiver" analysis is necessary to adequately protect employee rights. In the court's view, "[s]table and enforceable collective bargaining agreements . . . provide a far more effective bulwark for protecting employees' interests than do the relatively abstract statutory entitlements reified by the Authority in IRS." Id. at 439-40.

Accordingly, the court vacated the decision and remanded the case for reconsideration. The court advised that on remand, "the Authority should decide whether to return to the 'differing and arguable interpretations' methodology or to adopt some other approach that is consistent with the [Statute] and this opinion." Id. at 441. The court also left it to the Authority to decide what analysis should apply in refusal-to-bargain cases in which a contractual provision is raised as a defense. For purposes of resolving the case, the court "assume[d] without deciding that it is within the Authority's competence to interpret a collective bargaining agreement where necessary to resolve an unfair labor practice claim." Id. at 438. However, the court specifically rejected the Charging Party's argument that section 7116(d) of the Statute affirmatively prevents the Authority from following a policy of deferring to arbitration like that adopted by the National Labor Relations Board (NLRB) in Collyer Insulated Wire, 192 NLRB 837 (1971) (Collyer). In the court's view, "[e]ven if section 7116(d) permits the Authority to hear unfair labor practice claims that turn upon questions of contract interpretation, it surely does not require that result, nor does it forbid the Authority from referring the parties to arbitration for a definitive interpretation of their agreement." IRS v. FLRA, 963 F.2d at 438 n.11.

V. Positions of the Parties on Remand

At the time the parties filed their initial supplemental statements on remand in this case, the United States Court of Appeals for the Fourth Circuit had not issued its decision in U.S. Department of Health and Human Services v. FLRA, 976 F.2d 229 (4th Cir. 1992) (HHS v. FLRA). Accordingly, we provided the parties an additional opportunity to supplement their positions in view of the Fourth Circuit's decision also finding our application of the "clear and unmistakable waiver" approach improper. We also invited the parties to address specifically the following possible approaches, among others, to resolving the issues in this and other cases in which a respondent raises the parties' collective bargaining agreement as a defense to an unfair labor practice charge: (1) an approach in which an administrative law judge or the Authority would determine the meaning of the disputed provisions in the collective bargaining agreement and resolve the unfair labor practice complaint accordingly; (2) an approach in which the Authority would refer the parties to arbitration to determine the meaning of the disputed provisions while retaining jurisdiction to issue a decision and order on the unfair labor practice complaint in light of the arbitrator's determination as to the meaning of the disputed provisions; (3) an approach in which the Authority would dismiss the complaint and defer resolution of the matter in dispute to arbitration; and (4) an approach in which the Authority would dismiss the complaint on its merits without further action. All the parties filed additional statements.(2)

A. General Counsel

The General Counsel urges the Authority to adopt an approach in which all issues raised, including any contractual defense, would be decided by the Authority in the unfair labor practice proceeding. The General Counsel recommends that the Authority apply standard methods of contract interpretation to determine whether the respondent has established by the preponderance of the evidence that its interpretation of the contract to permit the challenged action is the correct or more plausible interpretation.

The General Counsel maintains that neither the D.C. Circuit nor the Fourth Circuit found that the Authority is without power to interpret contract language when necessary. The General Counsel notes that the D.C. Circuit assumed that the Authority was competent to interpret a collective bargaining agreement when necessary to resolve an unfair labor practice claim and that the court cited NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967) (C & C Plywood). The General Counsel states that in C & C Plywood the Supreme Court held that the NLRB is competent to interpret collective bargaining agreements and is not divested of jurisdiction simply because the defense is premised on contract interpretation. The General Counsel further notes that the Fourth Circuit was even more direct: "In light of the explicit language of section 7116(d), however, which provides a clear choice of forum to an aggrieved employee, we cannot see how the FLRA's jurisdiction in this area can be denied." HHS v. FLRA, 976 F.2d at 234 n.4.

The General Counsel asserts that in addition to section 7116(d), section 7105(a)(2)(G) and (I), which grants the Authority the power to resolve unfair labor practices and to take such other actions that are necessary and appropriate to effectively administer the Statute, also supports the Authority's power to interpret collective bargaining agreements in the context of an unfair labor practice proceeding. The General Counsel also contends that the Authority has the experience to appropriately determine the meaning of a contract provision to resolve an unfair labor practice claim. The General Counsel notes that the Authority often must interpret proposed contract language in deciding whether a proposal is negotiable under the Statute and that the Authority has interpreted collective bargaining agreements when reviewing arbitration awards. The General Counsel also notes that the Authority has reviewed contract language in resolving unfair labor practices in such situations as deciding whether a party has failed to comply with an arbitration award, whether an agency head properly disapproved a contract provision under section 7114(c) of the Statute, whether a respondent has repudiated a provision of a collective bargaining agreement, and whether a party has failed to execute contractual provisions as ordered by the Federal Service Impasses Panel.

The General Counsel argues that statutory and procedural problems make any referral or deferral approach improper or unworkable. The General Counsel claims that it is "questionable" under section 7116(d) whether the Authority has the statutory power to order parties seeking resolution of a dispute through a statutory process to take their case to a private forum that requires the expenditure of funds. Statement of the General Counsel in Reply to Authority's Notice at 11. The General Counsel raises potential procedural problems with either a referral or a deferral approach, such as whether all types of charges will be eligible for referral or deferral, including those in which the respondent is alleged to have repudiated the agreement or otherwise rejected the principles of collective bargaining; whether the parties must waive all procedural objections; how the Authority will deal with a charge raising many meritorious violations, only one of which might be affected by a contractual defense; and what procedure will be used if a request for appropriate temporary relief under section 7123(d) of the Statute, requiring immediate action, accompanies the filing of the charge.

The General Counsel also claims that a referral or deferral approach has practical problems. The General Counsel claims that these approaches could be used by agencies for the purpose of "busting" a union. Id. The General Counsel maintains that many Federal sector unions will not be able to afford the cost of such arbitrations and that these approaches may have the effect of reducing access to the statutory procedure because of a union's financial limitations. The General Counsel further claims that a referral process would delay the Authority's issuance of a decision resolving the unfair labor practice complaint. With respect to a deferral process, the General Counsel questions whether the arbitrator would decide the contract dispute or the unfair labor practice dispute. The General Counsel asserts that if the arbitrator is to decide whether an unfair labor practice occurred, the Authority will be depriving the charging party of the Authority's expertise in resolving unfair labor practice charges under the Statute.

The General Counsel also recommends against an approach in which the Authority would dismiss the complaint on its merits without further action. In the General Counsel's view, this approach would make a mockery of the unfair labor practice process and constitute an abdication by the Authority of its statutory duties and responsibilities.

The General Counsel argues that in view of the numerous difficulties with other approaches, an approach in which the Authority would determine the meaning of the disputed provisions in the collective bargaining agreement, and resolve the unfair labor practice complaint accordingly, best effectuates the purposes and policies of the Statute and gives meaning to the Statute's proscription of unfair labor practices. Applying this approach to this case, the General Counsel argues that the Respondent has failed to prove that the parties' collective bargaining agreement permitted its conduct and that, therefore, the Authority's original order should be reinstated.

B. Charging Party

The Charging Party urges the Authority to adopt an approach in which the Authority determines the meaning of the disputed provision in resolving the unfair labor practice complaint. Noting the conclusion of the court in HHS v. FLRA, the Charging Party argues that the Authority undoubtedly has the power to resolve questions of contract interpretation in deciding unfair labor practice allegations. In the Charging Party's view, the objection of the courts was not with the "clear and unmistakable waiver" approach, but with the Authority's failure to determine the meaning of the contract provision. The Charging Party suggests that the concern of the courts clearly can be met if the Authority determines the meaning of the contract and the parties' intent by examining the contract provision, the contract as a whole, and the bargaining history. The Charging Party urges that the Authority reaffirm its commitment to the general proposition that waivers of statutory rights must be clear and unmistakable, but modify its application of the standard.

The Charging Party argues that a referral policy would be unwise. The Charging Party questions whether such a policy can be reconciled with the Authority's current interpretation of section 7116(d). In addition, the Charging Party asserts that there are serious practical concerns to the adoption of such an approach because it is unnecessarily cumbersome and would add substantial delay to the process and because in situations where charges are filed by individuals, their interests may not be identical to those of the union, which controls the grievance procedure. The Charging Party also asserts that the cost of arbitration might prove a significant barrier to many unions. The Charging Party suggests that arbitration expenses may lead a union to withdraw the charge, accept a settlement for less than full relief, or even compromise on the quality of representation at the hearing.

The Charging Party argues that adoption of a deferral policy would be misguided. The Charging Party reaffirms its view that section 7116(d) prevents the adoption of a deferral policy. Although it acknowledges that the D.C. Circuit specifically rejected its view, the Charging Party maintains that the rejection was based, at least in part, on the court's mistaken belief that the Authority had a policy of referring cases to arbitration. In any event, the Charging Party argues that, at the least, section 7116(d) weighs against a deferral policy because it guarantees to the aggrieved party the choice of forums and deferral by the Authority to arbitration would obviate that choice. The Charging Party also maintains that, under the Statute, the Authority has developed expertise in interpreting collective bargaining agreements similar to that of arbitrators and that, therefore, a deferral policy is less compelling in the Federal sector than it is in the private sector. In addition, the Charging Party expresses concern about the adequacy of arbitration awards to protect statutory rights and the availability of judicial review. The Charging Party questions whether an arbitration award can be an adequate substitute for an administrative law judge's decision and whether the uncertain language of section 7123(a) can assure that judicial review of the arbitrator's award on deferral will be available.

The Charging Party urges the Authority to reject an approach that would dismiss the complaint without further action. The Charging Party maintains that this approach deprives a charging party of any further recourse once the complaint is dismissed. The Charging Party asserts that under Authority precedent, section 7116(d) precludes subsequently raising the matter as a grievance. The Charging Party argues that such an approach would impermissibly undermine statutory guarantees. The Charging Party further argues that such an approach has no support in the decisions of the courts because both the D.C. Circuit and the Fourth Circuit misunderstood the Authority's application of the "differing and arguable interpretations" analysis. The Charging Party maintains that both courts erroneously assumed that, in dismissing the complaint, the Authority referred the case to arbitration for resolution. The Charging Party asserts that the cases were not referred to arbitration and under the Authority's view of section 7116(d) were barred from being raised under the negotiated grievance procedure. The Charging Party submits that, therefore, the criticism of the Authority's rejection of the "differing and arguable interpretations" analysis by the courts is not compelling because both courts were assuming that the Authority was rejecting a referral or deferral policy.

With respect to this case, the Charging Party maintains that, on remand, the Authority or an administrative law judge must look at all the evidence relevant to determining the parties' intent in adopting the pertinent contractual provisions to determine whether the Respondent can establish that the collective bargaining agreement waives the Union's right to designate a nonemployee, chapter president as a steward-at-large. The Charging Party argues that, applying the "clear and unmistakable waiver" standard in this manner, the Authority should find that the Respondent violated the Statute by refusing to recognize Cleveland Harris. The Charging Party claims that the contract language at issue, when read in context, demonstrates that the Union did not clearly and unmistakably waive its right to designate a nonemployee, chapter president to be a steward or a steward-at-large. The Charging Party also claims that the bargaining history confirms its view of the collective bargaining agreement. Accordingly, the Charging Party asserts that the Authority should reaffirm its finding that the Union had not waived its statutory right to designate its representatives and that the Respondent had violated section 7116(a)(1) and (5) of the Statute.

C. Respondent

The Respondent urges the Authority to return to the "differing and arguable interpretations" test as its basic approach to deciding whether a respondent's contract defense is valid. The Respondent asserts that there is no reasonable justification for having departed from this approach. In urging a return to the "differing and arguable interpretations" analysis, the Respondent acknowledges that, as applied by the Authority and contrary to the court's understanding, the case was not referred to arbitration after the complaint was dismissed. However, the Respondent maintains that a dismissal without a referral to arbitration is an appropriate resolution of the case when a respondent presents a contract defense based on an arguable interpretation of the parties' collective bargaining agreement. In the Respondent's view, an unfair labor practice is committed only when a respondent relies on an implausible interpretation of the agreement. Alternatively, the Respondent urges the Authority to adopt an approach that views a collective bargaining agreement as supplanting the Statute as the source of a statutory right when the parties incorporate the right into the agreement and that requires the parties to turn to arbitration for interpretation and enforcement of the right. The Respondent argues that under either approach the complaint in this case must be dismissed.

The Respondent asserts that the Authority should not interpret the meaning of collective bargaining agreements as part of its resolution of unfair labor practices. The Respondent claims that the Authority has no power to act as an arbitrator in resolving contract disputes and to do so would impermissibly interfere with the parties' right to have arbitrators determine the meaning of their collective bargaining agreement and would force the parties to litigate the issue in a proceeding before an administrative law judge that is significantly different from a proceeding before an arbitrator. The Respondent further claims that the Supreme Court's decision in C & C Plywood should not be viewed as support for the power of the Authority to interpret collective bargaining agreements. The Respondent argues that because the Court considered the fact that the collective bargaining agreement in C & C Plywood did not have an arbitration clause in finding the NLRB's action permissible, the case provides no support for allowing the Authority to interpret collective bargaining agreement provisions encompassed by a grievance procedure's provision for arbitration. The Respondent also claims that such an approach will have the undesirable results of leading to a proliferation of unfair labor practice cases, opening up of contract interpretations to judicial review, and making the settlement of cases more difficult.

The Respondent also asserts that the Authority should not adopt a referral or deferral policy. The Respondent argues that section 7116(d) of the Statute precludes such a policy because section 7116(d) entitles the aggrieved party to a decision by whichever forum the aggrieved party selects and prevents the Authority from requiring the parties to arbitrate an issue when neither party has elected to do so. The Respondent notes that the NLRB's deferral policy predates the enactment of the Statute. In the Respondent's view, if Congress had intended for there to be a deferral policy in the Federal sector, Congress would have expressly provided for the policy in the Statute. The fact that Congress chose not to do so persuades the Respondent that Congress did not want the FLRA to do so. The Respondent questions the necessity for such a policy and argues that a referral or deferral policy will interfere with the parties' contractual rights and defenses and will delay proceedings and potentially work a hardship on the parties. The Respondent also asserts that such a policy would unnecessarily complicate the processing of these matters by raising numerous questions about what matter is being referred or deferred and how that matter is to be processed.

The Respondent asserts that, applying the "differing and arguable interpretations" analysis in this case, the Authority must dismiss the complaint because the Respondent's interpretation of the pertinent contract provisions is at least arguable. Alternatively, the Respondent argues that the Authority should dismiss the complaint on the basis that the contract provision has wholly supplanted the statutory right and that there is no longer any statutory right to enforce. In addition, the Respondent asserts that the Authority should not speculate on whether a subsequently filed grievance would or would not be barred by section 7116(d). In the Respondent's view, that issue can only be decided when there is a record to determine if the subject matter of a subsequent grievance is the same in terms of factual predicate and theory. The Respondent also maintains that any subsequent grievance might be dismissed by an arbitrator on grounds that never raise the issue of preclusion by section 7116(d). In this respect, the Respondent notes that the matter of Cleveland Harris' designation "is potentially moot in that Mr. Harris has been in prison since 1989." Respondent's Initial Statement on Remand at 13 n.4.

The Respondent asserts that if the Authority agrees with the General Counsel that the agreement must be interpreted, the case should be remanded to an administrative law judge. If the matter is not remanded, the Respondent maintains that its reading of the contract is correct and the complaint should be dismissed on that ground.

VI. Analysis and Conclusions

This case provides us with an opportunity to reexamine the Authority's approach to resolving defenses, based on a collective bargaining agreement, to alleged interference with statutory rights. On reexamination, we conclude that in unfair labor practice cases, such as this one, where the underlying dispute is governed by the interpretation and application of specific provisions of the parties' collective bargaining agreement, we will no longer apply the "clear and unmistakable waiver" analysis. We have carefully examined the court's decision in IRS v. FLRA and the parties' statements on remand. We have formulated a new approach to these cases that will carry out the purposes and policies of the Statute. We now hold that when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly.

In adopting this approach, we reaffirm our rejection of the "differing and arguable interpretations" analysis, as that analysis was applied by the Authority. We reiterate our objections to returning to such an analysis, as stated in our decision in IRS, 39 FLRA at 1573. In particular, we reject the position of the Respondent that it is appropriate to dismiss a complaint alleging a violation of a statutory right even where there is no other forum in which to determine the meaning of the collective bargaining agreement and to resolve the allegation. Moreover, because the courts in IRS v. FLRA and HHS v. FLRA misconstrued the Authority's application of the "differing and arguable interpretations" analysis, we do not view those decisions as supporting an approach that would require the dismissal of an unfair labor practice complaint without further determining the meaning of the provision of the agreement that gave rise to the dispute. As acknowledged by all the parties in this case, the court in IRS v. FLRA misconstrued the Authority's application of the "differing and arguable interpretations" analysis when the court stated that on dismissal these cases were "refer[red] . . . to arbitration for a definitive interpretation of the[] contract." 963 F.2d at 434. To the contrary, under the Authority's established interpretation of section 7116(d) of the Statute, the issue raised as an unfair labor practice was precluded from being raised in arbitration. For example, U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441 (1990). Furthermore, a grievance likely would have been untimely under the applicable collective bargaining agreement. Accordingly, such cases were neither referred nor deferred. For example, in each of the cases cited by the court in IRS v. FLRA, 963 F.2d at 434, the decision and order was a simple dismissal of the complaint. Marine Corps Logistics Base, Barstow, California, 33 FLRA 626, 642 (1988); Internal Revenue Service, Washington, D.C., 27 FLRA 664, 675 (1987) ("The complaint is dismissed insofar as it relates to the Respondent's refusal to negotiate over those proposals found to concern disputes over the interpretation of the parties' collective bargaining agreement . . . ."); Department of Health and Human Services, Social Security Administration, 23 FLRA 422, 425 (1986). No additional action was ordered or anticipated.

In adopting an approach in which the Authority will determine the meaning of the collective bargaining agreement, we confirm the Authority's jurisdiction and power to interpret collective bargaining agreements to the extent necessary to resolve an unfair labor practice case. Section 7105(a)(2)(G) and (I) of the Statute grants the Authority the power to resolve unfair labor practice complaints and to take such other actions as are necessary and appropriate to effectively administer the Statute. Moreover, section 7116(d) expressly authorizes an aggrieved party to raise an issue before the Authority whenever that issue could be raised either as an unfair labor practice or as a grievance. Clearly, even though a mere breach of a collective bargaining agreement is not an unfair labor practice under the Statute, the Authority is authorized to construe a collective bargaining agreement in order to decide an unfair labor practice case. HHS v. FLRA, 976 F.2d at 234 n.4 ("[W]e cannot see how the FLRA's jurisdiction in this area can be denied."). We note that in the private sector the courts have acknowledged that the NLRB is authorized to interpret collective bargaining agreements when necessary to resolve an unfair labor practice claim. C & C Plywood, 385 U.S. at 428; Local Union 1395, IBEW v. NLRB, 797 F.2d 1027, 1030 (D.C. Cir. 1986) (Local Union 1395, IBEW). We acknowledge that the Statute endorses arbitration as an effective means of resolving disputes. Nonetheless, Congress saw fit, through the clear language of section 7116(d), to grant jurisdiction to the Authority to resolve the same types of disputes when they are alleged as unfair labor practices. Moreover, the Authority is a tribunal that is familiar with collective bargaining and the interpretation and application of collective bargaining agreements. As pointed out by the General Counsel and the Charging Party, the Authority has developed skill and experience in dealing with collective bargaining agreements because of the duties and responsibilities of the Authority under the Statute in relation to collective bargaining and collective bargaining agreements. In particular, unlike the NLRB, the Authority resolves negotiability disputes filed under section 7105(a)(2)(E) of the Statute and resolves exceptions to arbitration awards filed under section 7122(a) of the Statute. We find it unmistakable, as did the Fourth Circuit, that the Authority's power is not subordinate to, or dependent on, the arbitral process.(3)

We reject the Respondent's claim that merely because the parties incorporate a statutory right in a collective bargaining agreement, the Authority's jurisdiction to resolve unfair labor practice complaints involving that right is supplanted by the coverage of the negotiated grievance procedure. Unlike the private sector, arbitration in the Federal sector is not the product of the parties' mutual voluntary agreement. Under section 7121 of the Statute, every collective bargaining agreement must contain a grievance procedure that provides for binding arbitration of all disputes within its coverage that are not satisfactorily settled. Thus, there is no basis in the Federal sector for viewing an arbitration clause as constituting a waiver of the right to file an unfair labor practice charge with respect to matters also covered by the grievance procedure. If such were the case, the choice given to the aggrieved party to raise issues either as an unfair labor practice or as a grievance would be illusory. Certainly, the collective bargaining agreement may affect the scope of the statutory right and for that reason, as found by the court in IRS v. FLRA, the unfair labor practice complaint cannot be resolved without determining the meaning of the collective bargaining agreement. Furthermore, because it is the primary responsibility of the Authority to resolve unfair labor practices, we believe that the Authority is in a position to determine the effect of contract rights on statutory rights by determining the meaning of any contract provision raised as an affirmative defense to an alleged violation of the Statute. For these reasons, we do not believe that Congress intended the statutory mandate of a grievance procedure that provides for binding arbitration to supplant the Authority's unfair labor practice jurisdiction for matters also covered by the grievance procedure.

In confirming that, in general, the jurisdiction of the Authority to resolve unfair labor practice complaints and the jurisdiction of arbitrators to resolve grievances under the negotiated grievance procedure are, as described by the court in IRS v. FLRA, "concurrent," 963 F.2d at 438, we have strong reservations as to whether section 7116(d) would permit a deferral policy similar to that of the NLRB under Collyer. Although we recognize that both the D.C. Circuit and the Fourth Circuit have expressly rejected the claim that section 7116(d) prevents the Authority from adopting a deferral policy, we are reluctant to reverse the Authority's longstanding interpretation of section 7116(d) as precluding a deferral policy in the Federal sector because the Statute provides a choice to the aggrieved party. For example, Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 421, 422 n.5 (1985); Federal Aviation Administration, Spokane Tower/Approach Control, 15 FLRA 668, 669 (1984). We note, in this regard, that all the parties in this case agree with this interpretation. See also Hammontree v. NLRB, 925 F.2d 1486, 1494 (D.C. Cir. 1991) (en banc) (Hammontree) (suggesting that a statute would preclude deferral of an unfair labor practice only if it "authorize[d] the complainant to choose one cause of action--either contractual or statutory--and nullif[ied] the other."). Nevertheless, because of the view of the courts in IRS v. FLRA and HHS v. FLRA, for purposes of determining what approach we would take in these cases, we have assumed that the Authority could exercise its discretion and judgment to adopt a deferral or referral policy similar to the policy adopted by the NLRB under Collyer.

Accordingly, the question presented for our determination is whether, as a matter of discretion and judgment, we should defer or refer to arbitration those cases whose resolution turns on the meaning of provisions of the parties' collective bargaining agreement or whether the Authority itself should determine the meaning of the relevant provisions. In answering this question, we must reconcile two important statutory policies: (1) the policy of the Statute favoring the exercise of jurisdiction by the Authority to protect statutory rights and resolve unfair labor practice complaints; and (2) the policy of the Statute encouraging arbitration as a means of resolving labor disputes. In our view, the purposes and policies of the Statute are best served and accommodated if the Authority exercises its jurisdiction to resolve these unfair labor practice cases by determining the meaning of the parties' collective bargaining agreement.

Specifically, we are persuaded that the Authority should resolve the meaning of the parties' collective bargaining agreement in these cases to better preserve and protect the rights granted by the Statute to employees, unions, and agency employers. We must be mindful that it is the primary responsibility of the Authority to protect statutory rights. Thus, we believe that the Authority must be protective of its jurisdiction to resolve unfair labor practice complaints in order to be available to resolve fundamental questions of statutory policy.

Significantly, our approach respects the aggrieved party's choice of the Authority pursuant to section 7116(d) of the Statute. Clearly, there are numerous variables and considerations that can influence the choice of forum under section 7116(d). In our view, aggrieved parties are in a better position than the Authority to weigh these advantages and disadvantages. One consideration that may weigh in favor of choosing the Authority as a forum for the resolution of unfair labor practices, particularly with respect to continuing violations, is the availability of temporary relief under section 7123(d) of the Statute when a complaint is issued. Another consideration is that the Authority's decision in an unfair labor practice proceeding is subject to direct judicial enforcement under section 7123(b) while an arbitrator's decision is subject to enforcement only if an unfair labor practice charge is filed for failure to comply with the award. In this regard, we also note the Charging Party's concern about the availability of judicial review of arbitration awards under section 7123(a). There is also the consideration of filing periods. Grievances generally must be filed more quickly than unfair labor practice charges, which under section 7118 of the Statute must usually be filed within 6 months of the alleged unlawful conduct. Furthermore, there are differences in the formality and procedures of the unfair labor practice process as compared to the arbitration process that legitimately may cause the aggrieved party to prefer one over the other. In addition, we share the concern that Member Jenkins of the NLRB had about relinquishing jurisdiction to "an arbitrator whose decision by definition has no precedential value[.]" Collyer, 192 NLRB at 851 (Jenkins, Member, dissenting). We believe that the parties and the process are both better served by the stability provided by the Authority's precedential decisions.

We also are persuaded that the Authority should provide its expertise and its investigative and legal resources to charging parties who have exercised their rights to choose a Federal agency, rather than an arbitral hearing, as the forum for resolution of such disputes. Furthermore, recourse to the Authority will avoid the delay in the vindication of statutory rights that would be caused by a deferral or referral to arbitration. In declining to adopt a deferral or referral policy, we also have been influenced by our serious concern over the cost of arbitration. As the D.C. Circuit has acknowledged, "[p]re-arbitral deferral might constitute an effective denial of any remedy if, for example, arbitration of the dispute would impose an undue financial burden upon one of the parties." Local Union No. 2188, IBEW v. NLRB, 494 F.2d 1087, 1091 (D.C. Cir. 1974). With an agency shop prohibited in the Federal sector, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 625 (1990), the reality of the Federal sector is that the potential for an undue financial burden in imposing arbitration of unfair labor practice charges on unions is considerably greater than in the private sector. As noted by both the General Counsel and the Charging Party, the cost of arbitration for a matter deferred or referred to arbitration might be a significant barrier to many Federal unions. Consequently, in many cases, the Authority may be the only effective means available to charging parties to vindicate statutory rights.

In addition, retention of the entire case by the Authority has the virtue of administrative simplicity. Obviously, a deferral or referral policy would be complicated by the numerous exceptions that would need to be established for cases for which deferral or referral would be inappropriate or inadvisable. A policy of retention also avoids complications caused by the inevitable questions in complex cases of what matter is being referred or deferred and how that matter is to be processed. In addition, it is a policy that, at least, has the acceptance of the General Counsel and the Charging Party. In contrast, we note that none of the parties in this case or in HHS v. FLRA favors adoption of a deferral or referral policy. We fail to see the wisdom in exercising our discretion to impose on the parties a policy that none has requested and that none wants.

An approach in which the Authority will interpret the meaning of the collective bargaining agreement also is responsive to the criticisms of the court in IRS v. FLRA regarding the Authority's previous handling of such cases. If the Authority resolves the meaning of the parties' agreement, the Authority will be addressing the dispositive issue in this type of case. Thus, the Authority will preserve the integrity of collective bargaining agreements and respect the actual meaning of a parties' agreement. In resolving the unfair labor practice complaint, the Authority will enforce any applicable rights and obligations to which the parties have agreed in their collective bargaining agreement. By this approach, we support the stability and repose encouraged by the Statute and provide an effective bulwark for protecting the interests of agency employers, unions, and employees. Furthermore, we assure the promise of section 7116(d) of a meaningful choice of forums, as discussed by the court in IRS v. FLRA. The court explained that by providing for a choice of forum, section 7116(d) assumes that a similar analytical approach would be followed by both the arbitrator and the Authority with respect to matters over which there is concurrent jurisdiction. 963 F.2d at 438. When the Authority resolves the meaning of the collective bargaining agreement, that approach is similar to the approach an arbitrator would follow if the aggrieved party had chosen to raise the issue under the negotiated grievance procedure.

In our view, the basis for deferral or referral in the Federal sector is not nearly as compelling as in the private sector. The NLRB's plurality opinion in Collyer relied on the statutory policy expressed in section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d), which encourages the parties to resolve their disputes through the "method agreed on by the parties[.]" We do not read the Statute as providing a counterpart to section 203(d). Although the Statute certainly encourages the use of arbitration, we do not find that "Congress has expressly legislated a preference for the use of private remedies, whenever feasible, before the resort to public remedies." Hammontree, 925 F.2d at 1497. In fact, section 7116(d) suggests that the Statute is neutral in this regard by expressly providing the aggrieved party with a choice. Consequently, one of the prudential considerations strongly supporting the NLRB's policy of deferral is absent in the Federal sector.

To assure the intent of Congress in providing for a meaningful choice of forums under section 7116(d), we hold that the Authority in resolving these cases will apply the same standards and principles in interpreting collective bargaining agreements as applied by arbitrators in both the Federal and private sectors and the Federal courts under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. As part of these standards, we note, for example, that "collective bargaining agreements must be read in light of the realities of labor relations and considerations of federal labor policy, which make up the background against which such agreements are entered." Local Union 1395, IBEW, 797 F.2d at 1033 (citations omitted). The focus will be on the interpretation of the express terms of the collective bargaining agreement. HHS v. FLRA, 976 F.2d at 235. Nevertheless, the meaning of the agreement must "[u]ltimately . . . depend[] on the intent of the contracting parties." Local Union 1395, IBEW, 797 F.2d at 1034 (quoting Gateway Coal Co. v. UMW, 414 U.S. 368, 382 (1974)). The parties' intent must be given controlling weight, "whether that intent is established by the language of the clause itself, by inferences drawn from the contract as a whole, or by extrinsic evidence." Id. at 1036. In giving controlling weight to the intent of the parties, caution should be exercised so that such intent "is not . . . discerned by reference to 'abstract definitions unrelated to the context in which the parties bargained,' especially where bargaining history is crucial to an understanding of that intent." Id. (quoting C & C Plywood, 385 U.S. at 430; citation omitted).

We note that, in these cases, once the General Counsel makes a prima facie showing that a respondent's actions would constitute a violation of a statutory right, the respondent may rebut the General Counsel's showing of a prima facie case. This may be done by establishing by a preponderance of the evidence that the parties' collective bargaining agreement allowed the respondent's actions. For example, Action, 26 FLRA 299, 301 (1987). Furthermore, in determining the meaning of the collective bargaining agreement, the administrative law judge should consider, as necessary, any alleged past practices relevant to the interpretation of the agreement. In cases where the judge's interpretation of the meaning of the parties' collective bargaining agreement is challenged on exceptions, the Authority will determine whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts.

Applying this approach in this case, we have determined to remand this case to the Chief Administrative Law Judge for assignment to an administrative law judge.(4) The judge assigned this case should give the parties an opportunity to provide evidence and testimony on the meaning of Article 9 of NORD II. The judge should then determine whether Article 9 allowed the Respondent to refuse to recognize Cleveland Harris as a steward-at-large, and the judge should resolve the unfair labor practice complaint accordingly.(5)

VII. Order

This case is remanded to the Chief Administrative Law Judge for assignment to a judge for further proceedings consistent with this decision.




FOOTNOTES:
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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 assistant chief stewards, chief stewards, chapter presidents, joint council chairpersons, and any other individuals authorized by the Union in advance to act on its behalf."

Article 9, Section 1(B)(2) states: "[A]ll stewards, except chapter presidents and chief stewards, must be bargaining unit employees of the appointing office in which they serve."

2. We find that the parties' statements on remand adequately address the issue of what approach to take in this type of case and that oral argument is unnecessary. Accordingly, we deny the Charging Party's motion for oral argument.

3. In finding the Authority's power to be unmistakable, we reject the Respondent's claim that C & C Plywood should not be viewed as support for the jurisdiction of the Authority to interpret collective bargaining agreements. Although, as noted by the Respondent, the Supreme Court acknowledged in its decision that the applicable collective bargaining agreement contained no arbitration provision, the existence of an arbitration provision does not prevent the NLRB from interpreting a collective bargaining agreement. For example, in NLRB v. Huttig Sash & Door Co., 377 F.2d 964 (8th Cir. 1967), the court ruled that the lack of an arbitration provision in C & C Plywood was not "controlling" and specifically applied C & C Plywood and NLRB v. Acme Industrial Co., 385 U.S. 432 (1967) to hold that "of itself, neither the presence of a problem of contract interpretation nor the presence of an arbitration provision in the contract deprives the Board of jurisdiction." 377 F.2d at 969. See also Office and Professional Employees International Union, Local 425, AFL-CIO v. NLRB, 419 F.2d 314 (D.C. Cir. 1969).

4. The administrative law judge who issued the recommended decision and order in this case is no longer with the Authority.

5. To the extent that the Respondent is arguing that this case is moot because Cleveland Harris is unavailable to serve as a steward-at-large, we disagree. We find that the current status of Mr. Harris is not relevant to whether the Respondent committed a violation of the Statute, as alleged. If we were ultimately to find a violation of the Statute as a result of determining