[ v48 p123 ]
48:0123(13)CA
The decision of the Authority follows:


48 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES MARINE CORPS

WASHINGTON, D.C.

and

MARINE CORPS FINANCE CENTER

KANSAS CITY, MISSOURI

and

MARINE CORPS CENTRAL DESIGN AND PROGRAMMING ACTIVITY

KANSAS CITY, MISSOURI

and

MARINE CORPS RESERVE SUPPORT CENTER

OVERLAND PARK, KANSAS

and

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2317

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2904

(Charging Parties/Union)

7-CA-70370, 7-CA-70635, 74-CA-70637

(33 FLRA 105 (1988))

(42 FLRA 3 (1991))

_____

DECISION AND ORDER ON REMAND

August 10, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This matter is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in United States Marine Corps, Washington, D.C., Marine Corps Finance Center, Kansas City, Missouri, Marine Corps Central Design and Programming Activity, Kansas City, Missouri, Marine Corps Reserve Support Center, Overland Park, Kansas and Marine Logistics Base, Albany, Georgia v. FLRA, No. 91-1527 (D.C. Cir. Dec. 4, 1992). The court remanded this case to the Authority in light of the court's decisions in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Navy, Marine Corps, Albany), and Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992) (IRS v. FLRA).

In its decision in 33 FLRA 105 and its decision on reconsideration in 42 FLRA 3 (Member Armendariz, concurring in part and dissenting in part), the Authority found that the Respondents committed unfair labor practices in violation of section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing the designation of smoking and nonsmoking areas at local Marine Corps facilities without bargaining with the appropriate exclusive representatives and while impasse proceedings were pending before the Federal Service Impasses Panel (the Panel).

For the following reasons, we have decided to remand the matter to the 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

The facts in this case are set forth in the Authority's earlier decisions and will be summarized here.

A. Authority's Decision in 33 FLRA 105

The Marine Corps notified the American Federation of Government Employees (AFGE) Council of Marine Corps Locals, Council 240 (the Council) that it intended to implement a Tobacco Prevention Program (the Program) for unit employees. The Program proscribed tobacco use in areas such as conference rooms and classrooms and authorized commanding officers to designate smoking areas for personnel who desire to smoke. The Program did not permit smoking in areas shared by nonsmokers unless, in the commanding officer's judgment, ventilation was adequate to provide a healthy environment.

The Council requested to bargain over the Program. Upon receiving the Council's request, the Marine Corps delayed implementation of the Program. The parties reached agreement on all issues except the procedure for designating the smoking areas at each Activity. The Marine Corps proposed that consultations with the local unions be conducted regarding designation of smoking areas. The Council's proposal required that negotiations over the smoking areas occur. The Marine Corps took the position that the Council's proposal conflicted with a portion of the parties' Master Labor Agreement (MLA) regarding negotiations below the level of recognition and, therefore, that the Marine Corps did not have to bargain over the proposal.

The Council filed an unfair labor practice charge, and the General Counsel issued a complaint, over the Marine Corps' failure to negotiate. The Authority found that the resolution of the issues raised in the complaint depended on whether the Marine Corps had a duty to bargain with the Council over the Council's proposal. The Authority concluded that the essence of the parties' dispute involved differing and arguable interpretations of the MLA. The Authority held that alleged unfair labor practices involving differing and arguable interpretations of a collective bargaining agreement are not appropriate for resolution under unfair labor practice procedures, but instead should be resolved through the parties' negotiated grievance procedure. Accordingly, the Authority dismissed the complaint.

B. Authority's Decision on Reconsideration in 42 FLRA 3

After issuance of the Authority's decision, the General Counsel filed a motion for reconsideration. The General Counsel contended that the Authority had failed to address the allegation that implementation of the smoking policy changes at the local activity level was accomplished without bargaining with the Union at any level of exclusive recognition. The General Counsel argued that in the absence of any such waiver of bargaining rights by the exclusive representative, such failure to bargain must be found violative of section 7116(a)(1) and (5) of the Statute.

The Authority determined that its decision in 33 FLRA 105 warranted reconsideration to clarify the analysis used to resolve the issues in this case. The Authority found that the Council did not clearly and unmistakably waive its statutory right to bargain over the designation of smoking areas and that the Respondents, therefore, had a duty to bargain over the Council's proposal. Accordingly, the Authority found that the Respondents committed the unfair labor practices alleged in the complaint by implementing the smoking policy changes without bargaining over the proposal, and while impasse proceedings were pending before the Panel.(2) In reaching its conclusion, the Authority relied on Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991), which was subsequently vacated by the court in IRS v. FLRA.

III. Analysis and Conclusions

In Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), we reexamined our approach to cases in which defenses to alleged interference with statutory rights were based on collective bargaining agreements. We stated that when an underlying dispute is governed by the interpretation and application of specific provisions of a collective bargaining agreement, we will no longer apply the "clear and unmistakable waiver" analysis that previously had been utilized to address such issues. Instead, we will determine the meaning of the parties' agreement in order to resolve the alleged unfair labor practice. We also stated that in determining the meaning of a collective bargaining agreement, any alleged past practices that are relevant to the interpretation of the agreement may be considered, as necessary.

In cases involving a record with insufficient information, we will, where appropriate and necessary, remand the case to the administrative law judge for a determination as to the meaning of the provisions of the parties' MLA. See, for example, IRS. See also Department of Health and Human Services, Social Security Administration, 47 FLRA 1206 (1993). In cases where the judge's interpretation of the meaning of the parties' 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. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1167, 1173-74 (1993) (citing IRS, 47 FLRA at 1111).

Applying this approach in this case, we have determined to remand this case to the Administrative Law Judge. In this case, the record contains insufficient information to ascertain the meaning of the provisions of the parties' MLA that the Respondents allege constitute a waiver of the Union's right to engage in mid-term bargaining. Specifically, the record contains insufficient information to ascertain the meaning of Article 4 of the parties' MLA and to determine whether the agreement allowed the Respondents to refuse to bargain. Consistent with the court's decisions in Navy, Marine Corps, Albany and IRS v. FLRA and our recent decision in IRS, we will remand this case to the Judge so that the Judge can obtain sufficient information on which to determine the meaning of Article 4 of the parties' MLA. The Judge should give the parties an opportunity to provide evidence and testimony on the meaning of Article 4, Sections 1 and 2 of t