52:0475(46)CA - - Interior and U.S. Geological Survey, Reston, Virginia and NFFE, Local 1309 - - 1996 FLRAdec CA - - v52 p475



[ v52 p475 ]
52:0475(46)CA
The decision of the Authority follows:


52 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE INTERIOR

WASHINGTON, D.C.

AND

U.S. GEOLOGICAL SURVEY

RESTON, VIRGINIA

(Respondents)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1309

(Charging Party/Union)

WA-CA-30451

_____

DECISION AND ORDER

October 24, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, the Charging Party and the Respondents filed briefs.

The amended complaint alleges the following: (1) the U.S. Geological Survey (Survey) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over a proposal authorizing midterm bargaining that is substantially identical to proposals previously found negotiable by the Authority; and (2) the Department of the Interior (Interior) violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Survey and the Charging Party. More particularly, the amended complaint states that Survey's refusal to bargain was based on advice received from Interior that the proposal was nonnegotiable and that there was no obligation to bargain.(1)

For the reasons that follow, we conclude that Survey violated the Statute, as alleged, and we order it to bargain on request of the Charging Party. We also find that Interior did not violate the Statute and we dismiss the allegation of the amended complaint as to this party.

II. Background and Stipulation

The Charging Party and Survey were engaged in term negotiations for a successor agreement during which the Charging Party offered the following proposal:

Article 7. Section 2.b. Union-initiated Bargaining. The Union may request and the Employer will be obliged to negotiate on any negotiable matters not covered by the provisions of this agreement.

Stipulation, Exhibit 2 at 1.

Survey sought advice from Interior as to the negotiability of the proposal. Interior advised that the proposal was not within the duty to bargain based on the decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA). After the Charging Party again requested bargaining, Survey told the Charging Party that the proposal was not within the duty to bargain and that it would not bargain. Survey took this position based on the decision in SSA v. FLRA and "information" from Interior. Stipulation, para. 13.

Survey and the Charging Party subsequently executed a collective bargaining agreement. Referring to the Union's bargaining proposal, the agreement included the following language that was offered by Survey and agreed to by the Charging Party:

The Parties have not agreed to this provision. The Union has filed a ULP. Pending resolution of the ULP, if the provision is declared negotiable, the Parties agree to get together and bargain in good faith to closure, including impasse, if necessary. If the provision is declared non-negotiable, it will be declared null and void.

Stipulation, para. 18. Interior thereafter reviewed the collective bargaining agreement pursuant to section 7114(c) of the Statute and disapproved it.(2)

III. Positions of the Parties

A. General Counsel

The General Counsel contends that it is an unfair labor practice to refuse to bargain over a proposal that is substantially identical to one previously found negotiable by the Authority. According to the General Counsel, the Charging Party's proposal is substantially identical to one found negotiable in Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852 (1988) (MSPB).

The General Counsel also claims that Interior unlawfully interfered with the bargaining relationship of the Charging Party and Survey. In support, the General Counsel cites U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 47 FLRA 1213 (1993) (National Guard Bureau).

To remedy the alleged unfair labor practices, the General Counsel requests that the Authority issue an order that would require Survey "to bargain over the [Charging Party's] proposal and apply the results of that bargaining retroactively to the date their successor agreement became effective, if that occurred before the completion of bargaining pursuant to the order." General Counsel's Brief at 5.

B. Charging Party

The Charging Party cites various Authority decisions and the court's decision in National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU v. FLRA), in support of its argument that there is an obligation to bargain over union-initiated proposals during the term of a collective bargaining agreement. The Charging Party also points out that the Authority has refused to follow SSA v. FLRA, adhering instead to NTEU v. FLRA. Finally, the Charging Party argues that the conduct of Interior in interfering with the negotiations between Survey and the Charging Party violated the Statute.

C. Respondents

The Respondents maintain that there is no obligation to bargain over union-initiated midterm proposals. According to the Respondents, the Authority should adhere to the position it took in Internal Revenue Service, 17 FLRA 731 (1985) (IRS I),(3) as well as the decisions of the United States Court of Appeals for the Fourth Circuit, in which Survey is located. The Respondents cite SSA v. FLRA and Patent and Trademark Office v. FLRA, 991 F.2d 790 (4th Cir. 1993) (unpublished), in support of their argument that the Charging Party's proposal requiring midterm bargaining on union-initiated proposals is outside the duty to bargain.

The Respondents further assert that the decision in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Department of the Navy), demonstrates the D.C. Circuit's endorsement of the "underlying policy rationale" of SSA v. FLRA. Respondents' Brief at 18. According to the Respondents, "the D.C. Circuit interpreted the fundamental policy of the Statute as essentially limiting the agency's duty to bargain over union-initiated midterm bargaining proposals as did the Fourth Circuit and the Authority in IRS I." Id. at 22. The Respondents request the Authority to reconsider and reverse its decision in IRS II or find that it is not applicable in this case.

Finally, the Respondents take the position that the stipulation contains no facts to support the allegation that Interior directed Survey in any way or otherwise interfered with the bargaining relationship of Survey and the Charging Party. The Respondents contend that Survey "sought advice from" Interior and "independently decided to follow this advice" when it informed the Charging Party that the proposal was nonnegotiable. Id. at 24.

IV. Analysis and Conclusions

A. The Basis of an Unfair Labor Practice in This Case

It is an unfair labor practice for an agency to refuse to bargain over a proposal that is substantially identical to one previously found negotiable by the Authority. E.g., U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, et al, 39 FLRA 1306, 1311 (1991) (PHS). A respondent acts at its peril in such cases "without regard to whether [the] respondent raises 'new' or 'old' arguments" and will be found to have violated the Statute as long as the proposal is within the duty to bargain. National Guard Bureau, 47 FLRA at 1218 (quoting U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420 (1990) (Fort Stewart).

1. The Charging Party's Proposal Is Substantially Identical to a Proposal That the Authority Previously Found Negotiable

As the General Counsel correctly states, the Authority previously found negotiable a proposal authorizing union-initiated midterm bargaining. In MSPB, the union proposed that "the parties may engage in midterm bargaining and bargain supplemental chapter agreements, on matters not addressed in the National Agreement." 30 FLRA at 859. The Authority determined that the proposal was within the duty to bargain. In reaching that result, the Authority rejected the agency's sole contention that there was no duty to bargain over proposals initiated by the Union during the term of the negotiated agreement. Citing IRS II, 29 FLRA 162, the Authority determined that the proposal at issue was negotiable because it reiterated a right the Union had under the Statute.

Both this proposal and the proposal in MSPB authorize union-initiated bargaining during the term of a collective bargaining agreement. No substantive differences are apparent between the proposals and the Respondents make no such claim. Therefore, we find that the Charging Party's proposal is substantially identical to the proposal in MSPB.

2. Proposals Authorizing Union-Initiated Midterm Bargaining Are Within the Duty to Bargain Under the Statute

In addition to the fact that the proposal is substantially identical to a proposal previously found negotiable, there is otherwise nothing in the record of this case that persuades us that the Charging Party's proposal should be found to be outside the duty to bargain. In particular, we reject the Respondents' assertions that the Authority follow its decision in IRS I or find that the decision in IRS II is not applicable here. The Authority adheres to its position with regard to bargaining over union-initiated proposals during the term of an agreement. See e.g., Department of Health and Human Services, Social Security Administration, 47 FLRA 1206 (1993); U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988). The Respondents' reliance on SSA v. FLRA and their assertions regarding Department of the Navy do not warrant a departure from that position.

In SSA v. FLRA, the U.S. Court of Appeals for the Fourth Circuit held, as relevant here, that the Statute does not require bargaining on union-initiated matters during the term of a collective bargaining agreement. More recently, in U.S. Department of Energy, Washington, D.C., 51 FLRA 124 (1995), petition for review filed, No. 95-2949 (4th Cir. Nov. 6, 1995), the Authority addressed the effect of the court's decision on the negotiability of a proposal seeking to authorize union-initiated midterm bargaining. The Authority determined that a provision authorizing union-initiated midterm bargaining during the term of an agreement was within the duty to bargain. In reaching that result, the Authority stated that the Fourth Circuit in SSA v. FLRA "did not address the negotiability of a provision for union-initiated midterm bargaining; the court addressed only whether, apart from any contractual obligation, an agency is required under the Statute to engage in such bargaining." 51 FLRA at 127 (footnote omitted). Noting that it has declined to follow SSA v. FLRA, the Authority stated that even if it were to agree with that decision, the outcome would remain the same because the Authority "has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question." 51 FLRA at 127 n.4. Similarly, we find nothing in SSA v. FLRA that compels the conclusion that the Charging Party's proposal in this case is outside the duty to bargain. See also American Federation of Government Employees, Local 1995 and U.S. Department of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia, 47 FLRA 470 (1993) (Authority found negotiable a proposal containing a reopener clause and, in so doing, rejected the claimed applicability of SSA v. FLRA).

We also find nothing in Department of the Navy that compels a finding that there is no obligation to bargain over the proposal. In that case, the U.S. Court of Appeals for the District of Columbia Circuit addressed whether there was an obligation to bargain over matters that are covered by or contained in existing collective bargaining agreements, not whether there is a duty to bargain over union-initiated midterm bargaining. That is, the court addressed the parameters of the duty to engage in midterm bargaining, not whether there is such a duty to bargain in the first place. While the court discussed the need to provide parties with "stability and repose" with respect to matters reduced to writing, that finding was tied to the policies regarding the duty to bargain over matters that are contained in or covered by collective bargaining agreements. 962 F.2d at 59. The Authority has since modified that policy. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993).

In sum, we find that the Charging Party's proposal is: (1) substantially identical to a proposal that the Authority previously found was negotiable; and (2) is otherwise within the duty to bargain. In reaching this result, we make no judgment as to the merits of the proposal.

B. Survey Violated the Statute; Interior Did Not Violate the Statute

The Authority previously has held that when higher-level management within a chain of command directs management at a subordinate level in that same chain of command to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher level violates section 7116(a)(1) and (5) of the Statute. Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 46 FLRA 1184, 1186 (1993) (AFLC). Conversely, if the party at the level of exclusive recognition is prevented from bargaining based on direction from higher level management, no violation is found against the party that is merely complying with higher-level direction and whose actions are ministerial in nature. PHS, 39 FLRA at 1315.

In this case, the record clearly establishes that Survey refused to bargain over a proposal that is substantially identical to a proposal that the Authority had previously determined was within the duty to bargain. See § IV.A, supra. Although the record discloses that Survey sought advice from Interior prior to informing the Charging Party of its position, there is no evidence that Interior directed Survey to refuse to bargain. Further, there is no evidence that Survey was prevented from bargaining by the actions or conduct of Interior. Indeed, the Respondents maintain, in their post-stipulation brief, that Survey acted independently in following the advice offered by Interior. Accordingly, we conclude that Survey violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the Charging Party's proposal.

We further find that Interior did not interfere with the bargaining relationship between Survey and the Charging Party. In the circumstances of this case, the fact that Interior provided advice to Survey does not establish that Interior directed Survey to act in a particular manner or to refrain from taking any action in fulfillment of its bargaining obligation. See Kansas Army National Guard and National Guard Bureau, 10 FLRA 303, 306 (1982) (finding no violation against a higher-level entity in the chain of command for "advising the [lower level entity] to take the course of action which it did as opposed to directing the latter to take such action") (emphasis in original). See also PHS, 39 FLRA at 1314 (more than mere reference to the existence of policy by an agency is necessary to establish that an agency has unlawfully interfered with the collective bargaining relationship between its subordinate activities and the exclusive representative).

We also find that this case is distinguishable from situations in which higher-level management prohibited a subordinate level from bargaining, see AFLC, 46 FLRA at 1186, or in some other manner prevented a subordinate from fulfilling its statutory obligations. See Headquarters, U.S. Air Force, Washington, D.C. and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, 125-26 (1992) (Member Armendariz dissenting), petition for review denied sub nom. Headquarters, U.S. Air Force, Washington, D.C. v. FLRA, 10 F.3d 13 (D.C. Cir. 1993) (without opinion).

Finally, the record does not support the General Counsel's assertion that Interior's conduct is essentially identical to conduct that was found to be unlawful in National Guard Bureau, 47 FLRA 1213. In that case, there is no evidence that management at the level of exclusive recognition acted independently in declaring nonnegotiable a union proposal. In contrast, the Respondents acknowledge in this case that Survey "independently decided to follow" Interior's advice. Respondents' Brief at 24.

In sum, we conclude that Survey violated section 7116(a)(1) and (5) of the Statute. Interior did not violate the Statute, as alleged.

C. A Bargaining Order Is an Appropriate Remedy

In prior Authority decisions involving an unlawful refusal to bargain over a proposal substantially identical to one previously found negotiable, the Authority has ordered the parties, on request of the union involved, to bargain over the proposal and to give such bargaining retroactive effect. E.g., National Guard Bureau, 47 FLRA at 1220; Fort Stewart, 37 FLRA at 422. In these cases, no reason was argued or apparent for not providing such a remedy. More particularly, there was no evidence that the parties would be unable to implement retroactively any agreement reached.

In this case, however, we find that such a remedy is not appropriate. The General Counsel has not identified, and it is not otherwise clear to us, how the requested remedy is capable of implementation. The proposal at issue authorizes union-initiated midterm bargaining. By its very nature, its application has a prospective effect in that it addresses the bargaining relationship that the parties will have in the future. Given the nature of this proposal, we find that an order to bargain over the proposal, on request of the Charging Party, is appropriate and will effectuate the purposes and policies of the Statute. E.g., Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), aff'd, 717 F.2d 1314 (10th Cir. 1983).

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service-Labor Management Relations Statute, the U.S. Geological Survey, Reston, Virginia, shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate with the National Federation of Federal Employees, Local 1309, the employees' exclusive bargaining representative, over a proposal authorizing union-initiated midterm bargaining that is substantially identical to a proposal previously found negotiable by the Authority.

(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured 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) Upon request, bargain in good faith with the National Federation of Federal Employees, Local 1309, over the proposal authorizing union-initiated midterm bargaining.

(b) Post at its facilities 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 head of the U.S. Geological Survey, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Washington 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.

All allegations in the amended complaint pertaining to the U.S. Department of the Interior, Washington, D.C. are dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Geological Survey, Reston, Virginia, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:

We hereby notify bargaining unit employees that:

WE WILL NOT refuse to negotiate with the National Federation of Federal Employees, Local 1309, the employees' exclusive bargaining representative, over a proposal authorizing union-initiated midterm bargaining that is substantially identical to a proposal previously found negotiable by the Authority.

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

WE WILL, upon request, bargain in good faith with the National Federation of Federal Employees, Local 1309, over the proposal authorizing union-initiated midterm bargaining.

________________________
(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, Washington Regional Office, whose address is: 1255 22nd Street, N.W., 4th Floor, Washington, D.C. 20037, and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The General Counsel withdrew allegations of the amended complaint regarding a second proposal submitted by the Charging Party and an allegation that Interior violated section 7116(a)(5) of the Statute. General C