47:1167(108)CA - - HHS, SSA, Baltimore, MD and AFGE - - 1993 FLRAdec CA - - v47 p1167

[ v47 p1167 ]
The decision of the Authority follows:

47 FLRA No. 108











(Charging Party/Union)


(43 FLRA 318 (1991))



July 15, 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 Fourth Circuit in HHS v. FLRA, 976 F.2d 229 (4th Cir. 1992). The court vacated the Authority's decision in 43 FLRA 318 (HHS), in which we found that the Respondent had violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), and 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 resolving the complaint accordingly.

II. Background (1)

The Union represents employees in the Respondent's district office in Riverside, California. Keith Wooten is a bargaining unit employee and the Union's representative in the office. In June 1989, Wooten received an oral warning for distributing documents concerning labor relations matters to the desks of employees during duty hours. He was told by a management representative that he had failed to abide by Article 12, Section 2 of the parties' national collective bargaining agreement. Article 12, Section 2 provides, in pertinent part:

A. Official publications of the Union may be distributed on SSA property by union representatives during the non-duty time of the union representatives who are distributing and the employees receiving the materials.

43 FLRA at 319.

The Union filed an unfair labor practice charge and the General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) of the Statute when it refused to permit the Union to distribute a memorandum regarding a labor relations matter to employees in work areas during duty hours despite a practice of permitting employees to deliver other kinds of materials to each other's desks. The Administrative Law Judge found that the dispute was essentially one over the interpretation of Article 12, Section 2 of the national agreement. Because the Judge found that the Respondent's denial of the right to distribute the memorandum was based on a plausible interpretation of the agreement, the Judge concluded that the dispute 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 43 FLRA 318

In 43 FLRA 318, we concluded that the Respondent violated section 7116(a)(1) of the Statute by refusing to allow the Union to distribute the memorandum to employees during duty hours. We based this decision on Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS I) vacated and remanded, IRS v. FLRA, 963 F.2d 429 (D.C. Cir. 1992) (IRS v. FLRA), decision on remand, Internal Revenue Service, Washington, D.C., 47 FLRA No. 103 (1993) (IRS II). In IRS I, we reaffirmed our rejection of an approach that would require dismissal of complaints alleging a violation of a statutory right when the parties have presented plausible or differing and arguable interpretations of the collective bargaining agreement. We also reaffirmed our conclusion that in such cases we would determine whether the charging party clearly and unmistakably had waived its statutory right.

Applying the "clear and unmistakable waiver" standard in HHS, we concluded that by agreeing to Article 12, Section 2A of the parties' national collective bargaining agreement, the Union had not waived its right to be treated equally regarding distribution of materials on duty time. Accordingly, we determined that the Respondent had engaged in disparate treatment of the Union in violation of section 7116(a)(1) of the Statute.

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

In HHS v. FLRA, the court determined that the Authority's use of the "clear and unmistakable waiver" analysis "impermissibly biased the interpretation of the relevant collective bargaining agreement against the [Agency] . . . ." 976 F.2d at 230. The court agreed with the decision of the U.S. Court of Appeals for the D.C. Circuit in IRS v. FLRA that the Authority's application of a waiver analysis when an agency defends its actions based on a contract provision was inappropriate. The court concluded that, by holding that there can be no "clear and unmistakable waiver" when there are conflicting plausible interpretations of the agreement, the Authority avoided resolving what the language of the agreement means and impermissibly "tipp[ed] the balance . . . in favor of the [u]nion . . . ." Id.

The court rejected the Authority's contention that the "clear and unmistakable waiver" standard was necessary to protect the rights of aggrieved employees. In the court's view, the Authority erroneously assumed that the aggrieved party could not resort to arbitration. The court agreed with the D.C. Circuit in IRS v. FLRA that the Authority erroneously assumed that section 7116(d) of the Statute would preclude the [u]nion from contesting the meaning of the agreement in arbitration if the Authority had dismissed the unfair labor practice complaint based on a finding that differing and arguable interpretations of a contract had been presented. The court ruled that section 7116(d) would not be a bar when the complaint is dismissed "pursuant to a deferral policy adopted by the Authority." Id. (quoting IRS v. FLRA, 963 F.2d at 437 n.9; emphasis in original).

In reversing the Authority's decision, the court advised that on remand the Authority could follow what the court believed was the Authority's past practice of deferring to arbitration cases that raise differing and arguable interpretations of the collective bargaining agreement or could articulate a reasonable basis for resolving such a dispute as an unfair labor practice under its own jurisdiction. With regard to the latter course, the court stated that it "cannot see how the FLRA's jurisdiction in this area can be denied." Id. at 234 n.4.

V. Positions of the Parties on Remand

The parties were provided an opportunity to file statements detailing their positions on issues raised by the court's remand of this case, as well as by the decision of the U.S. Court of Appeals for the District of Columbia Circuit in IRS v. FLRA. We also invited the parties to address several approaches 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. All the parties filed additional statements.

A. Respondent

The Respondent urges the Authority to resolve the dispute by returning to its prior analytical approach of dismissing a complaint involving differing and arguable interpretations of the collective bargaining agreement. The Respondent argues that this approach furthers the Statute's policy of using the grievance and arbitration process for resolving contract disputes. Further, the Respondent contends that neither the doctrine of res judicata nor section 7116(d) preclude a union from pursuing arbitration because of having brought an earlier unfair labor practice charge. The Respondent also argues that private sector case law, involving a policy of deferral to arbitration, should not be adopted in the Federal sector.

Finally, the Respondent asserts that return to the "differing and arguable" standard also makes administrative sense, especially in view of the "already burdensome case load of the Authority[.]" Respondent's Statement at 7. Accordingly, the Respondent contends that the complaint should be dismissed because, as found by the Judge, the entire dispute involved differing and arguable interpretations of Article 12, Section 2 of the contract.

B. General Counsel

The General Counsel argues that the Authority should interpret the contract language and resolve the dispute as an unfair labor practice, and henceforth decide all issues, including the interpretation of contractual provisions that may apply to the defense of an unfair labor practice charge, in the unfair labor practice forum.

The General Counsel contends that the Authority has the power to interpret contract language. It bases this assertion on, among other things, section 7116(d) of the Statute. In support of that proposition, the General Counsel cites the statement of the U.S. Court of Appeals for the Fourth Circuit, that "[i]n light of the explicit language of section 7116(d), . . . 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 section 7105(a)(2)(G) and (I), which grants the Authority the power to resolve unfair labor practices and to take such other action as is 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. In addition, the General Counsel contends that the Authority's experience in reviewing contract language makes it appropriate for the Authority to do so where such language is raised as a defense in unfair labor practice cases.

The General Counsel recommends against various other approaches, such as referral or deferral to arbitration, and dismissal of complaints whenever a contractual defense is raised.

On the facts of this case, the General Counsel argues that a prima facie showing of a violation has been established, and that the Respondent has not met its burden of proving that its interpretation of the contract is correct. The General Counsel contends that the distribution right established in Article 12 is the same as the right to distribute union literature granted in section 7102 of the Statute, and that there is no reason to assume that such a clause limits "the statutory right of employees to be treated the same as non-unionists." General Counsel's Statement at 20.

C. Charging Party

The Charging Party argues that the Authority or an administrative law judge should determine the meaning of the contract provisions in dispute and decide the case accordingly. It argues that the clear and unmistakable waiver test, "if modified," would be a suitable approach. Charging Party's Statement at 3. The Charging Party contends that the criticisms expressed by the Fourth Circuit in SSA II, and by the D.C. Circuit in IRS I, were of the Authority's application of the test, rather than the test itself. The Charging Party states that if the Authority modifies its waiver analysis "to comply with the concerns expressed" by the courts, "the test would pass judicial muster." Charging Party's Statement at 7.

The approach to a defense involving the interpretation of a contract in the unfair labor practice forum that the Charging Party contends is "the . . . fairest to the parties" is to have the Authority interpret the contract. Id. According to the Charging Party this would spare unions the expenses associated with arbitration, as well as avoiding the "likely result that the Authority will be called upon to examine and interpret the contract language which it had referred to arbitration anyway through the filing of exceptions." Id. at 10.

The Charging Party contends that the Statute does not preclude the Authority from resolving unfair labor practice cases by interpreting contracts, and argues that the Authority's experience suits it for such responsibilities.

VI. Analysis and Conclusions

We recently determined in IRS II that the purposes and policies of the Statute are best served and accommodated if the Authority exercises its jurisdiction to resolve unfair labor practice cases whose resolution turns on the meaning of provisions of the parties' collective bargaining agreement. In so doing, we again rejected a "differing and arguable interpretation" analysis that the Respondent in this case urges us to adopt.

Furthermore, we noted that 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." We noted,

[t]o 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. [Citations omitted.] Furthermore, a grievance likely would have been untimely under the applicable collective bargaining agreement. Accordingly, such cases were neither referred nor deferred."

IRS II, 47 FLRA No. 103, slip op. at 14.

We concluded in IRS II that it is the responsibility of the Authority to resolve unfair labor practices, and that the Authority is in the best position to determine the effect of collective bargaining agreements on statutory rights by determining the meaning of any contract provision raised as an affirmative defense to an alleged violation of the Statute. For a number of reasons fully set forth in IRS II, we found this approach "to better preserve and protect the rights granted by the Statute to employees, unions, and agency employers." Id. at 17. As we explained in detail in IRS II, the Authority 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. In that regard, we noted that "[t]he focus will be on the interpretation of the express terms of the collective bargaining agreement[,]" and that "[t]he parties' intent must be given controlling weight[.]" Id., slip op. at 20.

We stated 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.

Id. at 20-21.

Applying that approach, we have decided that this case must be remanded in order to give the parties an opportunity to provide evidence and testimony on the meaning of Article 12, Section 2 of the collective bargaining agreement before an administrative law judge.(2) Specifically, it is necessary to determine whether Article 12, Section 2, as interpreted and applied, allowed the Respondent to prohibit distribution of the type of memorandum distributed by Wooten dur