53:1269(110)CA - - FDA, Northeast and Mid-Atlantic Regions and AFGE Council No. 242 - - 1998 FLRAdec CA - - v53 p1269



[ v53 p1269 ]
53:1269(110)CA
The decision of the Authority follows:


53 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. FOOD AND DRUG ADMINISTRATION

NORTHEAST AND MID-ATLANTIC REGIONS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, COUNCIL NO. 242

(Charging Party)

BN-CA-50168

______

DECISION AND ORDER

January 30, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Decision of the Administrative Law Judge filed by the General Counsel pursuant to section 2423.26 of the Authority's Regulations.(2). The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it took the position in bargaining that the parties should negotiate two separate collective bargaining agreements for employees who were members of a single bargaining unit.

For the reasons set out below, we reverse the Decision of the Judge and find that the Respondent committed an unfair labor practice, in violation of section 7116(a)(1) and (5) of the Statute.

II. Background and Administrative Law Judge Decision

A. The Bargaining History Between the Parties

This case concerns the Respondent's attempt to have its Newark and New York offices bargain two separate collective bargaining agreements with the Charging Party, which represents both offices in one consolidated bargaining unit. There is no disagreement concerning the underlying facts that are relevant to these exceptions.

The dispute began with a reorganization of Respondent's administrative structure in 1987 that placed these two offices in two separate Regions. Prior to the 1987 reorganization, the FDA was divided into 10 regions, within which "New York Field Office, Region II" consisted of FDA's New York and Newark offices. Respondent was the exclusive representative of a consolidated unit that included these two offices. After the reorganization, the New York offices became part of the Northeast Region and the Newark office joined the Mid-Atlantic Region.

In 1991, when the Charging Party sought to renegotiate its term contract that covered both offices, the Respondent notified the Charging Party that it wished to bargain two separate contracts for the Newark and New York offices. In a letter from one of these offices to the Charging Party, the Respondent explained that each Region sought to exercise its "unfettered right to deal with [the Charging Party] individually." Letter, FDA Northeast Regional Director to President, AFGE Regional Council 242, General Counsel Ex. 5 at 2 (Nov. 1, 1991). The Charging Party responded that it wished to negotiate, but that it would not accept separate negotiations in the New York and Newark offices.

Following this apparent stalemate, Respondent filed a petition to clarify the bargaining unit, on the ground that the consolidated unit consisting of the New York and Newark offices was no longer appropriate. The petition was denied by the Regional Director (RD), whose decision was upheld by the Authority in U.S. Department of Health and Human Services, U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, 48 FLRA 1008 (1993) (Health and Human Services). The Authority rejected the Respondent's argument that the Newark employees should no longer be included in the consolidated unit with the New York employees because they no longer shared a community of interest. Id. at 1017.

The Charging Party renewed its request for negotiations at some point in 1993. Decision at 4. In mid-September, six weeks after the RD's decision on the unit clarification petition, officials of the New York and Newark offices separately responded to the Charging Party's request, stating that each office had no administrative relationship with the other and that each was prepared to negotiate an agreement with the union. The Newark District Director also took the position at this time that, since the Charging Party had not rejected his proposal in 1991, it had acquiesced to the ground rules proposed at that time, including a provision stating that no agreement between the Charging Party and the Newark District could bind any part of the agency outside of the Newark District.

In June 1994, a new union president sought to bargain with the FDA for a successor agreement. Id. at 4-5. The Respondent's position concerning two separate contracts was explained to him by the New York Director in discussions in June and October of that year. Id. at 4. The Charging Party filed the unfair labor practice (ULP) charge in December 1994, alleging that the FDA had failed to negotiate or to respond to requests to negotiate. Subsequently, the Respondent supplied the Charging Party with a copy of its September, 1993 letter from the New York Director, discussed above, apparently as a continuing reflection of its position concerning bargaining.

B. Decision of the Administrative Law Judge

The Judge determined that the FDA's actions did not constitute a failure to negotiate in violation of section 7106(a)(5). The Judge held that an agency may propose ground rules in which the parties agree to two separate contracts, because such ground rules concern the scope of the contract and are within the duty to bargain. Id. at 9. The Judge held that ground rule proposals of this sort only violate the statute if they are intended to "impede" bargaining, and that no allegation or showing of bad faith had been made by the General Counsel. Id. at 9-10. The Judge stated that the Charging Party and the FDA had simply reached a "preliminary impasse," because the Charging Party was unwilling to negotiate the issue of separate contracts. Id. at 15.

The Judge rejected the General Counsel's reliance on Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981) (DHHS), and U.S. Department of Defense, Departments of the Army and the Air Force, Headquarters, Army and Air Force Exchange Service, Dallas, Texas, 19 FLRA 652 (1985) (AAFES), two cases holding that a party may not demand bargaining with an administrative component lower than the component that is the designated exclusive representative. The Judge found that DHHS did not forbid the party from proposing to bargain at a lower level, it simply held that there was no obligation to bargain locally. Decision at 13. The Judge held that the AAFES case lacked precedential value, because the exceptions filed with the Authority had only concerned the remedy ordered by the Judge in that case, and he found that, in any event, the facts in the two cases differed in significant respects. Id. at 11.

The Judge held that the Charging Party must bargain with the Respondent over ground rules that include a provision for a separate contract. Id. at 14-15. Accordingly, he dismissed the complaint.

III. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel argues that the Judge did not follow Authority precedent and that the Respondent has an obligation to negotiate one contract with the exclusive representative. The General Counsel contends that the Judge ignored the holding of DHHS that an agency has a statutory duty to bargain only at the level of recognition. According to the General Counsel, the Judge would permit the scope of the duty to bargain to become a negotiation dispute and, if the parties reached an impasse on this issue, the Federal Service Impasses Panel (FSIP) would decide the issue. According to the General Counsel, such a decision by the FSIP would exceed its jurisdiction by essentially deciding the appropriateness of a consolidated bargaining unit. Brief to Exceptions at 5.

The General Counsel also argues that as a result of the Judge's decision, the Respondent can now avoid its obligation to bargain at the level of recognition and separate the consolidated unit into two or more units. The General Counsel asserts that the factual distinctions between this case and AAFES noted by the Judge are not relevant and that the Authority should apply the conclusions of that decision because it is "sound and well-reasoned." Id. at 7.

The General Counsel acknowledges that the Charging Party and the FDA could agree to negotiate two separate contracts "covering certain local matters." Id. at 8. However, the General Counsel maintains that a union nevertheless has a right to demand that the Respondent negotiate one contract. Finally, the General Counsel argues that the impact of the Judge's decision is far reaching, because it permits parties to effectively reverse decisions by the Authority concerning the appropriateness of consolidated bargaining units.

Finally, the General Counsel requests that the Authority order that any agreement reached between the parties be retroactively applied and that the Agency be ordered to begin bargaining within 30 days.

B. The Respondent's Opposition

The Respondent argues that the two regions are two separate employers and that neither Respondent nor its regions is an agency. First, the Respondent asserts that the Judge's decision is not inconsistent with either AAFES or DHHS. According to the Respondent, both of those cases concern a single employer and this case does not. Respondent argues that, in contrast to those cases, the Northeast and Mid-Atlantic Regions of the Respondent are separate and distinct employers. Opposition at 6-7. The Respondent contends that the General Counsel "supposes some type of undefined employer" that is a "legal fiction--namely a single employer that is comprised of two separate employers who are forever required to deal jointly with the single union entity created and maintained by the Regional Director[.]" Id. at 8. The Respondent also contends that the two separate regions do not meet the statutory definition of an "agency."

IV. Analysis and Conclusions

A. A Party May Not Insist on Separate Collective Bargaining Agreements for Employees Included in One Exclusive Bargaining Unit

1. Parties are not Required to Negotiate Concerning Permissive Subjects of Bargaining

The Statute sets out the collective bargaining obligations of an agency and a union. "Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement." 5 U.S.C. § 7114(a)(4). "Collective bargaining" is defined as "the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet . . . and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . ." 5 U.S.C. § 7103(a)(12).

In addition to the obligation to bargain concerning employee's "conditions of employment," the parties to a collective bargaining relationship may also negotiate over a wide range of "permissive" subjects. Federal Deposit Insurance Corporation, Headquarters and National Treasury Employees Union, 18 FLRA 768, 771 (1985) (FDIC). As the name implies, parties may, but are not required to, bargain over permissive subjects. Id. While parties are free to make proposals over permissive subjects, they may not insist to impasse on such proposals. Id. Permissive subjects of bargaining include subjects that are not conditions of employment, as well as proposals that a party negotiate to limit a right granted to it by the Statute. Id.; American Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640, 646 n.27 (D.C. Cir. 1983) (AFGE). For example, in FDIC the Authority held that a proposal that would have required a union to waive its right to utilize statutory impasse proceedings was permissive. In contrast, the court in AFGE held that the scope of the negotiated grievance procedure is a mandatory subject of bargaining, because the grievance procedure is a condition of employment and the statute does not indicate that a union had a right to a broad scope grievance procedure. 712 F.2d at 646.

Both the courts and the Authority have also limited the parties' mandatory bargaining obligation, holding that a party is only required to negotiate with the certified exclusive representative and agency, respectively. For example, a representative with a collective bargaining relationship in a consolidated bargaining unit is not required to bargain locally with individual components that make up the consolidated unit unless such bargaining has been agreed to at the consolidated level. DHHS, 6 FLRA at 204; see American Federation of Government Employees, National Border Patrol Council, 2366, AFL-CIO v. FLRA, 114 F.3d 1214, 1218-19 (D.C. Cir. 1997) (Border Patrol); The fact that the parties to a consolidated unit are not required to bargain locally does not, however, foreclose such bargaining if both parties desire to engage in it. DHHS, 6 FLRA at 204 n.2. Parties to a national, consolidated bargaining unit may, and often do, authorize local components to bargain supplemental and other agreements over particular subjects or in particular circumstances. See American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 679 (1983). Local negotiation is, therefore, a permissive subject of bargaining.

The Authority's precedent on this subject parallels the law in the private sector. In NLRB v. Wooster Division of Borg-Warner Corp, 356 U.S. 342 (1958) (Borg-Warner), the Supreme Court held that it is an unfair labor practice for an employer to demand that a collective bargaining agreement be consummated between it and a local union, rather than the certified international union. The Court explained that the employer's proposal that a party other than the certified exclusive representative sign the agreement did not relate to the working conditions of employees. As such, it was an unfair labor practice for the employer to insist on its proposal to the point of impasse in negotiations, disrupting the bargaining process.

2. Multiple Collective Bargaining Agreements are a Permissive Subject

In this case, the Respondent has proposed that it negotiate two separate collective bargaining agreements with the Union, reflecting its determination that the two agency regions which bargaining unit employees are assigned to are separate "employers." The Judge held that the Respondent's proposal to bargain two contracts was "presumptively negotiable," and that proposals on this subject would be objectionable only "if they were found to impede, rather than further, the eventual bargaining process, and therefore evidenced bad faith." Decision at 9-10. The Judge credited the Respondent with a continued "willingness to negotiate" over its proposals and faulted the union for creating a "preliminary impasse" over the issue by taking the position that the issue was not negotiable. Id. at 14-15.

Neither the parties' arguments nor the Judge's analysis, however, specifically address whether a proposal for two collective bargaining agreements is a permissive or mandatory subject of bargaining. See id. at 10 n.5. In failing to address this issue, the decision ignores the basic principle that a "party is free . . . not to bargain" about nonmandatory subjects. Borg-Warner, 356 U.S. at 349; NLRB v. Pennsylvania Telephone Guild, 799 F.2d 84, 89 (3d Cir. 1986). If the Respondent's proposal for two contracts is a permissive subject of bargaining, then the Union has the right to simply refuse to discuss the matter.

As the court noted in AFGE, permissive subjects of bargaining are generally linked to "unilateral rights specifically vested in one party." 712 F.2d at 646. These unilateral rights may be specifically spelled out in the Statute, as they are in section 7106(b)(1), where permissive bargaining over particular subjects is linked to management's right to act unilaterally over these subjects. Id. Unilateral rights may also be rooted in more general statutory and policy consideration, as in the rule in both the private and federal sectors that the tape recording of bargaining is a permissive subject and parties have a unilateral right to refuse to tape record bargaining sessions. See Sport Air Traffic Controllers Organization and Air Force Flight Test Center, Edwards Air Force Base, California, 52 FLRA 339, 345- 46 (1996) (Sport Air); NLRB v. Bartlett-Collins Co., 639 F.2d 652, 656-57 (10th Cir. 1981), cert. denied 452 U.S. 961 (1981).

Applying this analysis, if a proposal for more than one collective bargaining agreement is a permissive subject, then the party receiving the proposal has a unilateral right to negotiate one contract. We hold that the Respondent's proposal to negotiate separate agreements within one bargaining unit is a permissive subject of bargaining, because the Statute provides exclusive representatives a right to negotiate with "an agency." In short, the case law and the Statute indicate that there are certain features of collective bargaining that any party may rely on. One such feature is that the basic bargaining relationship is between one union and one employer. This principle is grounded in the Statute, in which "collective bargaining" occurs between "an agency" and "the exclusive representative." 5 U.S.C. 7103(a)(12), 7114(a)(1), (b). This principle and statutory terminology support our prior holding in DHHS that parties may not be required to bargain below the certified "level of recognition" and, more generally, support a conclusion that the representative and agency may not be forced to negotiate with the other party in a form other than as a single party.

The principle that the exclusive representative and agency are each a single party dictates that neither has a right to turn itself into two parties and demand separate negotiations. Rather, both the agency and the exclusive representative have a unilateral right to demand that they negotiate with each other as one entity. Variations on this right may be proposed, but they are permissive, not mandatory, variations.

The Respondent asserts that its two regional offices constitute two "employers" who must be permitted to bargain separately and it urges that the Authority adopt a "concept of multi-employer." As noted above, the bargaining obligation under the statute applies to "an agency." 5 U.S.C. 7114. We are not persuaded that the Statute or other reasons support the right of an agency to create separate employers within one designated agency representative.

Of course, executive agencies are routinely divided into separate "agencies" for purposes of collective bargaining. The bargaining relationship attaches to certified representatives of "appropriate bargaining units," and a particular agency, such as FDA, will routinely contain a number of certified bargaining units. See 5 U.S.C. 7112(a). However, Congress had clearly directed that appropriate unit determinations are made by the Authority, not unilaterally by an agency, and must be based on a determination that there is a community of interest among the employees, as well as a finding that collective bargaining by a particular group will serve the efficiency of operation and effective dealings of the Respondent. Id.

If an agency believes that elements of its organizational structure make collective bargaining between a recognized union and the designated agency representative inappropriate, its recourse is not to refuse to bargain in its certified form. Rather, it may file a petition seeking to clarify the recognized bargaining unit. 5 U.S.C. § 7112(d). The Respondent has taken that step, and its argument that collective bargaining is inappropriate between the Charging Party and these two offices was rejected by the Authority in Health and Human Services.

The Respondent's argument here is, in effect, an attack on the validity of the Authority's decision in Health and Human Services that bargaining in this unit is appropriate. It has not, however, asserted that case was incorrectly decided or provided any reason that we should overturn this precedent.

In sum, the principle that the parties are required to bargain only with the organization having representative status dictates that the union and the agency are each one party, with the right to bargain with the other party. The Respondent may not unilaterally dictate that it is, in fact, two employers who will only negotiate two contracts. A party may propose two parallel sets of negotiations and two parallel contracts, but it may not insist on this format and create an impasse in bargaining.

B. The Respondent Violated the Statute by Insisting that Two Contracts be Negotiated

With these principles in mind, it is necessary to examine the record to determine whether the evidence indicates that the Respondent has violated its duty to bargain in good faith by insisting on bargaining two contracts and creating an impasse in negotiations. We find that it has.

The Authority has recognized that the concept of "impasse" may have somewhat different meanings in different contexts. Sport Air, 52 FLRA at 349. In Sport Air, we adopted the Judge's holding that an impasse on a permissive subject of bargaining "describes a situation where a party insists on its position on such a subject as a precondition to bargaining." Id. at 349, citing, Latrobe Steel Co. v. NLRB, 630 F.2d 171, 179 (3d. Cir. 1980); see also 375th Combat Support Group, Scott Air Force Base, Illinois, 46 FLRA 640, 666 (1992) (proposals that are designed to impede negotiation violate the Statute).

The Judge found below that the parties' bargaining was at "what might be described as a preliminary impasse on the subject of the scope of the agreement[.]" Decision at 15. As we have explained, above, however, the cause of this impasse cannot be attributed to the Charging Party's refusal to negotiate the subject of separate agreements, as it had a right to refuse to discuss the matter. Thus, if the parties were at impasse, such an impasse would be attributable to the position of the Respondent.

The record demonstrates that the Respondent insisted on its permissive proposal that there be two separate agreements in a manner that operated as a precondition to bargaining. The Charging Party attempted to initiate bargaining with the Respondent in 1991, 1993, and 1994. The bargaining requests for 1991 and 1994, which are in the record, are similar and each contained over 30 issues that the Charging Party wished to negotiate. In both 1991 and 1993, Respondent answered the Charging Party's request with separate letters from the two Regions at issue, indicating that separate bargaining would take place. In 1994, the Respondent simply provided the Charging Party with a copy of one of its 1993 letters.

The Judge considered it significant that the Respondent's letters made such statements as that Respondent was "ready to negotiate a completely new agreement between Council 242 and the Newark District." Id. at 14. However, every "proposal" and expression of willingness to bargain made by the Respondent was, in fact, conditioned on the requirement of separate bargaining. (3) The Judge's finding that the Respondent was willing to bargain ignores this significant condition placed on negotiations by the Respondent.

Further, the Respondent's 1991 position that it had an "unfettered right" to bargain independently by region was never abandoned, even after its clarification of unit petition was dismissed. When asked to negotiate one contract in 1994, the Respondent simply referred the Charging Party to its earlier correspondence. Moreover, at the ULP hearing, Respondent left no doubt as to its position on negotiating separate contracts. It explained:

what we're facing is sort of a compulsion to negotiate in a [one contract] format that management, because it is two separate managements and two separate lines of authority, has a right to object to and, in fact, not necessarily agree to negotiate at one time.

This is an issue of long historical origins. It's not a result of anything new, but it's a position that management took in 1991, and it's consistent in that regard. There're willing to negotiate with Council 242.

Council 242 insists on negotiating in a particular format, and management of the two separate entities believes that they have the right not to agree to that kind of an arrangement. And it's asserting its rights, and it believes it's acting within the law of the Federal Sector Labor Relations -- Labor Management Relations Statute.

Transcript at 10. Thus, although Respondent here, as in its letters, asserted that it was willing to negotiate, this willingness was categorically conditioned on the Respondent's asserted "right not to agree to" one contract. This suggests an implacability that is inconsistent with an employer's obligation to not insist on "permissive" proposals as a precondition to bargaining.

This hearing testimony also establishes the relevance of the Respondent's actions in 1991 and 1993, which would otherwise be beyond the 6-month limitation period for unfair labor practices. See 5 U.S.C. 7118(a)(4). The Respondent's explicit admission that it was continuing to take the same position up to the time of the hearing permits the Authority to impute the earlier taken positions to the Respondent at the relevant time period.

The course of dealing between these parties indicates that Respondent conditioned negotiation of the substantive issues suggested by the Charging Party on the conduct of separate negotiations for the two offices and that, in fact, this issue prevented substantive negotiations. As the Charging Party did not have an obligation to compromise on this permissive issue, Respondent's position operated as a precondition to bargaining, and created an impasse under the standard set out in Sport Air. The Respondent's actions thus violated its duty to bargain.

To remedy this violation of the Statute, we order the Agency to bargain one collective bargaining agreement with the Union. In addition, the General Counsel proposes that the Authority order that an agreement reached between the parties be retroactively applied and that the Agency be ordered to begin bargaining within 30 days.

The Authority has imposed retroactive bargaining orders (RBOs) where an agency has refused to bargain over a specific proposal that had previously been found within the duty to bargain and where an agency refused to incorporate an interest arbitration award into a contract. Federal Deposit Insurance Corporation, 40 FLRA 775, 784 (1991) (FDIC); see also Pueblo Depot Activity, Pueblo, Colorado, 50 FLRA 310, 312 (1995) (RBO ordered where bargaining more appropriate than compliance proceeding to determine past overtime lost). The Authority has not ruled out an RBO in other types of cases. In this or similar cases, if the agency knew or should have known that its actions constituted an unfair labor practice, an RBO may be appropriate. The Authority's precedent regarding insistence on bargaining over permissive areas to impasse was clear, but its application to the Agency's proposal regarding multiple contracts in this case was not so obvious as to serve as the basis for finding that the Agency knew or should have known that its actions were unlawful.

In connection with the evaluation of the propriety of an RBO, the Authority has held that this remedy did not "promote an effective relationship between the parties" in FDIC, where an entire contract was to be negotiated and there was a "new bargaining relationship." Id. The Authority recently adopted a Judge's decision that applied this precedent and refused an RBO in a contract reopener situation, as in this case. Davis-Monthan Air Force Base, Tucson, Arizona, 53 FLRA 445 (1997).

There is no particular indication that an RBO would "promote an effective relationship" in this case. The Union has sought to reopen some 30 articles of the contract and has not made specific proposals on each article. Without any further information, it appears just as likely that a requirement that any agreement be retroactive would hamper agreement as that it would facilitate it.

With respect to the request that bargaining begin within 30 days, the General Counsel has not demonstrated that this remedy is reasonably necessary to redress the respondent's unlawful conduct and that it would effectuate the policies of the Statute, including the deterrence of future violations. F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160 (1996). The Authority expects that the Agency will fully comply with the order to bargain. Any failure in this regard may be addressed to the Regional Office as a compliance matter.

V. Conclusion

In sum, we find that the Respondent has violated sections 7106(a)(1) and 7106(a)(5) of the Statute by insisting that the Charging Party negotiate separate collective bargaining agreements and thus, refusing to negotiate.

VI. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Northeast and Mid-Atlantic Regions of the U.S. Food and Drug Administration shall:

1. Cease and desist from:

(a) Refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Council No. 242, by insisting that the parties enter into separate collective bargaining agreements for the Northeast and Mid-Atlantic Regions.

(b) In any like or related manner, interfering with, or restraining, or coercing 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) On request of the exclusive representative, bargain in good faith with AFGE, Council No. 242 for a single collective bargaining agreement.

(b) Post at its business office and in all places where notices to bargaining unit employees at the two FDA regions are customarily posted, 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 an appropriate agency official and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, o covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Boston Region, Federal Labor Relations Authority, in writing within 30 days from the date of the Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Council No. 242, by insisting that the parties enter into separate collective bargaining agreements for the Northeast and Mid-Atlantic Regions.

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

WE WILL, on request of the exclusive representative, bargain in good faith with AFGE, Council No. 242 for a single collective bargaining agreement.

___________________________
(Agency)

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 for the Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200 and whose phone number is (617) 424-5743.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

U.S. FOOD AND DRUG ADMINISTRATION

NORTHEAST AND MID-ATLANTIC REGIONS

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, COUNCIL NO. 242

Charging Party

Case No. BN-CA-50168

Gary L. Lieberman, Esquire
For the General Counsel

Andrew Rudyk, Esquire
For the Respondent(s)

David Y. Tobias, Vice President, Council 242
For the Charging Party

Before: JESSE ETELSON
Administrative Law Judge

DECISION

This case involves the issue of whether an agency's obligation to negotiate with the exclusive representative of employees in an appropriate unit includes the obligation to bargain for a single collective bargaining agreement covering the entire unit. The Regional Director for the Boston Region of the Federal Labor Relations Authority (the Authority) issued an unfair labor practice complaint pursuant to the Federal Service Labor-Management Relations Statute (the Statute). The complaint alleges that the "Respondent," U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, as a statutory "agency" (implicitly as a single agency) violated sections 7116(a)(1) and (5) of the Statute by refusing to negotiate over a successor collective bargaining agreement covering the entire consolidated unit that, as the Authority had recently determined, continued to be the appropriate unit.

The answer, submitted on behalf of the "Respondents," denies that the named Respondent or Respondents is or are an agency and denies that "the Respondent" did anything, including the commission of an unfair labor practice. Except for the denial of agency status, each of the denials is coupled with an explanation that there are two respondents, thus making it unclear whether any of the factual allegations are being denied independently of the assertion that "the Respondent" does not exist as such. However, since the facts as developed at the hearing are essentially undisputed, this ambiguity is now academic.

I also find to be academic the issue of whether the components of the Food and Drug Administration that are charged with the unfair labor practice constitute one or two respondents. I treat below the contention that they constitute separate employers, but that is a different issue. In effect, the complaint alleges that the Food and Drug Administration committed the acts complained of and should be held responsible. I shall treat the Food and Drug Administration (FDA) as the Respondent for purposes of this decision, and I trust that no one will be prejudiced by that choice. I shall refer to the Charging Party as the Union or Council 242.

Findings of Fact

Since 1979, the Union has been the certified exclusive representative of a consolidated bargaining unit including employees in FDA's District offices in New York and Buffalo, New York, and Newark, New Jersey. In 1982 the unit was clarified and was then described as including the employees of the "New York Field Office, Region II" of the FDA.(1) However, the parties, in their most recent complete collective bargaining agreement (1983), described the Employer as consisting of "four districts and one regional laboratory[.]" They were the Brooklyn, Buffalo, Newark, and New York Import Districts, and the New York Regional Laboratory. The agreement defines "Management" as the FDA, Region II.

In 1987, FDA reorganized itself geographically. Included in this reorganization was a redistribution of the offices that had been in Region II. Region II ceased to exist, and all of the facilities at which employees in the consolidated bargaining unit, except for the Newark District Office, were placed in a newly created Northeast Region. The Newark District office was placed in a new Mid-Atlantic Region. The parties signed a supplement to their collective bargaining agreement in 1988. This supplement amends the description of the parties, under the heading, "Recognition and Coverage," to substitute "the Mid-Atlantic and Northeast Regions" of the FDA for "Region II." It also re-defines "Management." Formerly "Region II," it became:

For all components except Newark district, the term shall refer to the Regional Food and Drug Director, Northeast Region, and the managers of New York District, New York Regional Laboratory, and Buffalo District. For Newark District, the term shall refer to the Regional Food and Drug Director, Mid[-]Atlantic Region and the managers of Newark District.

In June 1991, Council 242 President James Nelson submitted a request addressed to three management officials to negotiate on a range of subjects encompassing 33 subjects covered by the parties' 1983 collective bargaining agreement. By virtue of the provisions of the 1983 agreement, this request constituted a request to renegotiate those subjects for purposes of a successor agreement. Two of the management officials to whom the request was addressed were Northeast Regional Director Arthur J. Beebe, Jr. and Newark District Director Matthew H. Lewis.

Lewis responded to Nelson in September 1991 with a letter that is puzzling in some respects. First, he reminded Nelson that the Newark District was now part of the Mid-Atlantic Region and that, since it no longer had any administrative relationship to what had been Region II, "it is the belief of Mid-Atlantic Region management [that] . . . Council 242 is not appropriate. Of course, this is not to say that we desire to deny any Newark District employee representation by the appropriate exclusive representative." The letter concludes, however, as follows:

Mid-Atlantic Region Management, through its designated representative, the Newark District Director, is ready to negotiate a completely new agreement between Council 242 and the Newark District of the Food and Drug Administration. Below are the proposed groundrules.

Attached was a list of proposed ground rules, of which the first was to the effect that any agreement reached would be binding only on Council 242 and the Mid-Atlantic Region, but that none of its provisions could bind any FDA managers outside that Region.

Council 242 President Nelson responded in October 1991 to Lewis' and another letter from management. In pertinent part, Nelson stated that the Union would not accept separate negotiations and demanded "that groundrules negotiations begin immediately." Regional Director Beebe, answering Nelson's October letter in November 1991, restated that FDA proposed two contracts, and, after setting forth an explanation for that proposal, stated that:

Consequently, and for the time being, we've decided to exercise our unfettered right to deal with Council 242 individually . . . . A point to consider in this regard is that you cannot compel management of either region to acquiesce to your demands. Each Region, independent of the other, has the right to determine its own position regarding collective bargaining, and each has chosen to do so.

In conclusion, Beebe invited Nelson "and a small group of Union representatives" to meet with him and others "to see if we can come to some resolution of the Union's concerns that relate to the Northeast Region."

Lewis wrote a similar letter to Nelson in December 1991. It concludes with a proposal "that we begin to agree on some tentative dates on which we could begin ground rule negotiations."

Apparently this written exchange of views led nowhere in terms of negotiations. The FDA then petitioned to "clarify" the consolidated unit by excluding the employees assigned to the Newark District Office, based on the 1987 reorganization of the FDA's regional structure. The Regional Director dismissed the petition and the Authority denied the FDA's application for review. U.S. Department of Health and Human Services, U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, 48 FLRA 1008 (1993) (USFDA).

While the clarification matter was pending, and in response to a further request for negotiations, Lewis wrote to Nelson in August 1993. He reminded Nelson that, in response to an earlier (1991) request for negotiations, Lewis had sent Nelson a list of proposed ground rules. Lewis attached a copy of his earlier letter, together with those proposed ground rules. In his August 1993 letter, Lewis stated that, since Nelson never rejected the proposed ground rules, Lewis assumed that he accepted them. The letter concludes: "Therefore, I stand ready to meet and negotiate my ground rules."

The record shows no activity by the parties after these events until June 1994. At that time, David Tobias had assumed the presidency of Council 242, and he made a new request to negotiate on 36 subjects. While delivering a supplemental list of requested bargaining subjects, Tobias had a conversation with Beebe, in which each reiterated the parties' respective positions about the scope of negotiations and of the resulting agreement. They had another conversation in October 1994 in which the same views were exchanged.

In December 1994 the current officers of the Union were still not aware of any response to its June bargaining request. Tobias had been replaced as president but sent to management, as the new president's designee, a "ULP Pre-Notification; Request for Negotiations" stating that the Union believed that management had committed an unfair labor practice by failing to bargain in good faith, and suggesting a date, time, and place to meet.

Beebe answered Tobias with a message stating that Tobias was or should have been aware that management had responded to the request for negotiations. Tobias was still not aware of any response to the June 1994 bargaining requests, and on December 7, Council 242 filed separate charges against the Northeast and the Mid-Atlantic Regions for failing to respond.

After filing the charge, Tobias had occasional conversations with management officials concerning whether there had been a response to the June 1994 bargaining request. Finally, in April 1995, Tobias requested a copy of the response management said it had sent. He was then given a copy of a September 1993 letter from Beebe to then-President Nelson that restates much of FDA's consistent position with respect to the scope of bargaining.(2) Attached to the letter were proposed ground rules that, with respect to the scope of the agreement, presented a mirror image of the 1991 proposed ground rules submitted by Newark District Director Lewis. Thus, Beebe's proposed ground rules limited the binding effect of any agreement that might be reached to Northeast Region management.

Discussion and Conclusions

Counsel for the General Counsel contends that FDA was obligated to negotiate a single collective bargaining agreement with the Union covering the entire consolidated unit, and that its insistence on separate negotiations for matters concerning unit employees in its Northeast Region and those in its Mid-Atlantic Region (Newark District Office) was unlawful. FDA responds in essence that the two FDA regions at which bargaining unit employees are employed are separate employers, and that they have exercised the right to withdraw from what FDA characterizes as a multi-employer bargaining unit.(3)

I find neither of the parties' contentions to be persuasive.

The Union cannot dictate to FDA who should represent it in any negotiations. On the other hand, FDA is required to appear at negotiation sessions with representatives who are authorized and prepared to negotiate at the level of exclusive recognition. Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981) (DHHS).

When FDA declined to negotiate a single contract and insisted instead on negotiating separately with respect to the unit employees in each of the new regional subdivisions, was it refusing to negotiate at the "level of exclusive recognition"? An answer to this question requires an inquiry into what "level of exclusive recognition" means to the Authority.

"Level of exclusive recognition" is a term that is probably unique to public sector labor relations. It is, at least, in the Federal sector, usually self-explanatory, and therefore does not usually require definition. Thus, "exclusive recognition" is a commonly understood statutory term (section 7111). In fact, the word, "exclusive," is often dropped and the full term shortened to "level of recognition." Further, it is usually easy to identify what is meant by the "level," even if there is a dispute over which of two or more "levels" is the "level of recognition," because three elements usually coincide at that "level." These elements are (1) the "level" of management, (2) the "level" within the labor organization, and (3) the employee complement, that is, the appropriate bargaining unit. Further, all three are usually either undisputable or have been the subject of an Authority determination.

In its published decisions, the Authority usually identifies the "level of recognition" simply by referring to the level of management having the obligation to negotiate. Once that "level" has been identified, any disputes over the identity of the other two elements have usually been resolved. In the instant case, however, two circumstances make it useful to explore which of these elements is actually determinative. First, in the wake of FDA's lack of success in having the bargaining unit limited to employees within the new Northeast Region, there is no longer an identifiable level of adminis-tration on the management side that corresponds to the employee complement of the consolidated unit. Second, FDA has consistently acknowledged its duty and asserted it willingness to negotiate with the exclusive representative over the terms and conditions of employment of all the employees in the consolidated unit. Therefore, in order to find that FDA has refused to negotiate at the "level of exclusive recognition," one must identify the element or elements of a "level of exclusive recognition" that are absent from FDA's acknowledgment.

Although, as noted, the Authority often refers to the management element in the "level of recognition," I infer that, in those instances where it speaks of management "at" the level of recognition, the Authority is merely using a convenient shorthand and is not attempting to identify the essential element. See, e.g., Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412, 416 (1983); U.S. Department of Transportation and Federal Aviation Administra-tion, 40 FLRA 690, 705 (1991). However, in some cases, the Authority has spoken of the administrative level of the agency not as a shorthand designation but as the "level of recogni-tion" itself. For example, in Department of Health and Human Services, Social Security Administration, 10 FLRA 77 (1982), the Authority, stated that, upon the creation of a consoli-dated unit, the respondent agency "then became the new level of exclusive recognition[.]" Id. at 80. And in Department of the Interior, Bureau of Reclamation, Washington, D.C., 33 FLRA 671 (1988), the Authority found that, "[s]ince the Regional Office is the level of exclusive recognition, it was obligated to bargain with the Charging Party." Id. at 679.

In other instances, the Authority has associated the "level of recognition" with the organizational level of the exclusive representative, within the labor organization to which the representative belongs. For example, in Department of the Treasury, U.S. Customs Service, 19 FLRA 1155 (1985), the Authority held that, as the bargaining unit was a nationally consolidated unit, "the appropriate level of exclusive recognition is with the national union." Id. at 1159. But in another case where the authority of a union official at a certain organizational level was in issue, the Authority still linked the "level of exclusive recognition" with the "properly designated management official." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1013 (1993). In still other cases, the Authority has identified the "level of exclusive recognition" by referring to both parties. See Veterans Administration, Cincinnati, Ohio, 19 FLRA 179, 180 (1985); Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875, 883 (1986).

What is conspicuous by its absence is any instance (at least that I have discovered) where the Authority identified of the "level" with the bargaining unit. Rather, the Authority has spoken separately of the level and the unit, and has independently described the scope of the collective bargaining agreement. Thus, in outlining the background facts in U.S. Department of the Navy Marine Corps, Washington, D.C., 44 FLRA 36, 37 (1992), the Authority announced that: "This case arose at a local level activity which is part of a nationwide bargaining unit. The level of exclusive recognition is at the national level. A nationwide master labor agreement (MLA) covers the entire bargaining unit." See also, in the same case, Decision and Order on Remand, 48 FLRA 278, 279 (1993).

Absent a formal definition of "level of recognition," the manner in which the Authority has used the term is the best available textual clue to the Authority's understanding of its meaning. The references collected above appear to reflect and validate the ordinary meaning, in a labor relations context, of the key words in the term. Thus, "recognition" refers both to the process by which a labor organization obtains the right to represent a defined group of employees within a certain employing agency and to the result of that process. "Level" refers to the organizational components (the respective "levels" within the organizational structures) on each side of the bargaining relationship created by the recognition.

"Level" has meaning in this context only when one or both parties operates within a vertical or hierarchical structure. Thus, one would have no need to speak of the "level of recognition" when referring to the bargaining relationship between a hypothetical agency having only horizontal divisions, if any, and a local (single-level) independent union, even if the union represented several bargaining units within such an agency.

I conclude from all of these observations that it is the parties to the recognition, not the employee complement in the bargaining unit, that give meaning to the term, "level of exclusive recognition."

Unremarkable as this conclusion appears, in my view it undermines a major assumption in the General Counsel's case -- that the "level of recognition" requires negotiation of a single contract covering the entire bargaining unit. FDA, as noted, has always been willing to negotiate with Council 242, the "level" at which the Union achieved recognition. It has always been willing to negotiate contract terms for all the employees in the consolidated unit. FDA is no longer capable of negotiating on the management side at the "level" at which the Union's recognition was obtained, because that level, the former Region II, no longer exists. As the Authority recognized in its decision in the unit clarification case, however, both the new Northeast Region and the Newark District Office still receive labor relations support from the same regional personnel office. USFDA at 1011, 1017. There is, therefore, reason to presume and no reason to doubt, that in offering to negotiate with Council 242, the Northeast Regional and Newark District Office officials were willing to provide representatives who were authorized and prepared to negotiate at what remains of the original FDA "level."

As I understand the General Counsel's theory of the case, the above analysis would be considered incomplete because a single "level" of negotiations necessarily means a single set of negotiations, resulting in a single contract. But nothing in the nature of Federal sector bargaining requires such symmetry. Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA 6, 9 (1993), for example, describes a bargaining history in which a single collective bargaining agreement covered three different units.

In fact, parties would generally regard issues such as the order of negotiations and the number of contracts as being in the nature of ground rules issues.(4) Proposals on such issues are presumptively negotiable. Department of Defense Dependent Schools, 14 FLRA 191, 193 (1984). Thus, they would be objectionable only if they were are found to impede, rather than further, the eventual bargaining process, and therefore evidenced bad faith. Wright-Patterson at 533-34; Environ-mental Protection Agency, 16 FLRA 602, 613-14 (1984), remanded on other grounds, 784 F.2d 1131 (D.C. Cir. 1986), Decision and Order on Remand, 21 FLRA 786 (1986). No such contention has been made here. Moreover, even proposals to authorize nego-tiation of certain issues below the "level of recognition" are negotiable. United States Marine Corps, Washington, D.C., 33 FLRA 105, 113 (1988), reconsidered on other grounds, 42 FLRA 3 (1991), remanded on other grounds, Docket No. 91-1527 (D.C. Cir. December 4, 1992), remanded to Administrative Law Judge, 48 FLRA 123 (1993); American Federation of Government Employees, AFL-CIO, Int'l Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 679 (1983).(5)

The General Counsel relies, however, on the Authority's decision in United States Department of Defense, Departments of the Army and the Air Force, Headquarters, Army and Air Force Exchange Service, Dallas, Texas, 19 FLRA 652 (1985) (AAFES), in which the respondent was found to have committed an unfair labor practice by refusing to negotiate over "national" impact and implementation proposals. Before analyzing the substance of the holding in AAFES, I must deal with an aspect of its procedural history that affects the decision's precedential weight.

AAFES came to the Authority on exceptions to an Administrative Law Judge's Decision. These exceptions were filed only by the General Counsel and the Charging Party and only with respect to the Judge's recommended remedy. There were no exceptions to the Judge's findings or conclusions on the substance of the violation. The Authority adopted the Judge's findings and conclusions with the following footnote explanation:

The Judge concluded that the Respondent refused, when requested, to negotiate over national proce-dures to be observed in implementing reductions in hours. Noting particularly the lack of exceptions to the substance of the Judge's Decision, the Authority adopts the Judge's conclusions.

Id. at n.1. The Judge's decision had been issued on June 4, 1984, after section 2423.29(a) of the Authority's Rules and Regulations had been amended to provide that in the absence of exceptions, "the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority . . . ." Compare Marine Corps Logistics Base, Barstow, California, 9 FLRA 1046 (1982) (amendment was effective by 1982) with Delaware Army and Air National Guard, 16 FLRA 398 (1984) (Authority's application of amended rule depends on whether Judge's decision was issued before or after amendment). While the Authority did not purport to apply section 2423.29(a) of its Rules and Regulations in AAFES, its announcement that it adopted the Judge's conclusions "[n]oting particularly the lack of exceptions . . .," gives at least a strong indication that it did not subject those conclusions to a searching review.

In U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 991 (1993), the Authority applied section 2423.29(a) to a case in the same procedural posture as AAFES had been. Thus, having received exceptions only to the remedy, the Authority adopted the Judge's "findings, conclusions, and recommended decision without precedential significance." The Authority's explicit treatment of a party's failure to except to the pre-remedial part of a judge's decision as the equivalent of the "absence of exceptions" for purposes of section 2423.29(a) leads me to conclude that today, at least, the Authority regards decisions it issues in circumstances like those in AAFES to be non-precedential. I think it more probable than not, therefore, that the Authority would now consider AAFES to be non-precedential.(6) I therefore consider the Judge's conclusions in AAFES as entitled to respect and as potential sources of guidance, but not as binding authority.

Turning to the AAFES case itself, its facts are similar in most significant respects with the instant case. The union demanded that negotiations be national in scope and the agency disagreed, taking the position that handling a matter at "the national level" that affects only "persons at [a] particular location, makes no conceptual sense and certainly militates against efficiency and effectiveness of governmental opera-tions." AAFES at 662.(7) However, in AAFES, unlike here, the union's response to the agency's position was to propose that the parties agree on the procedures about which the negotiations were concerned (procedures for the implementation of a reduction of hours), "and that the issue of the scope of the agreement be presented to the Federal Service Impasses Panel." 19 FLRA at 663. The agency did not accept that proposal. It did not, apparently, suggest that presentation to the Impasses Panel was premature. Instead, it insisted that the procedures involved only local matters and that any agreement reached concerning those matters would not be "binding in the future impact and implementation bargaining of a reduction in force at any other location within the consolidated unit." Id.

Implicitly, the agency in AAFES thus refused to negotiate over the scope of the agreement. Proceedings before the Impasses Panel, when necessary, are part of the process of collective bargaining as contemplated in the Statute. By rejecting the proposal for resolution of the issue of the scope of the agreement by the Impasses Panel without offering to attempt to resolve mutually the dispute over scope of the agreement, the agency in AAFES in effect declared the subject nonnegotiable. In any event, the agency made it clear that it had no intention to negotiate over the scope.

The complaint in AAFES alleged in pertinent part that the agency had implemented reductions in hours "and/or" in force without affording the union the opportunity to negotiate "on national procedures to be observed in implementing the changes and appropriate arrangements for adversely affected employees." The conduct described above prevented the union from negotiating even over whether the procedures to be observed would be national or local in scope. That was a sufficient basis for a finding that the agency had unlawfully refused to bargain in good faith, the ultimate allegation of the complaint.

While concluding that the agency had unlawfully refused to bargain, however, the Judge reasoned that the agency was required to negotiate for procedures that were national in scope because the agency had a policy of making staff reductions quickly at every facility affected by a reduced sales volume (thus making nationwide procedures necessary) and because "bargaining [must] be at the national level whenever any employee in a consolidated unit is affected." Id. at 665-66. This rationale, although unnecessary for finding a refusal to bargain in AAFES, supports the General Counsel's theory in the instant case and, as noted, forms the legal basis for the General Counsel's case. However, as I have concluded that the Authority adopted the Judge's conclusions in AAFES only in a more or less pro forma manner, and did not signify its approval of the rationale, I find it within my responsibility to re-examine it.

In Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981) (referred to above as DHHS), another case where there had been a consolidation of previously separate bargaining units, the Authority held that "the mutual obligation to bargain as articulated in the Statute exists only at [the] level of exclusive recognition with respect to conditions of employment which affect any employee within the unit[.]" The Authority went on to explain that "a contrary result would render consolidation meaningless." Id. at 204. The Judge in AAFES used that language as one basis, and the one that is most relevant here, for concluding that the agency was required to engage in negotiations over procedures that were national (unit-wide) in scope. In doing so, the Judge gave DHHS a breadth that I do not believe the Authority had intended. The Authority had defined the issue before it in DHHS as follows:

Thus, the narrow question presented herein is whether, following the certification of AFGE for a nationwide consolidated unit, there remained a duty to bargain new conditions of employment at the local level pursuant to the reopener clause contained in the local agreement.

Id. at 203. The conclusion that the Authority ultimately reached in DHHS was that the agency was not required to negotiate with respect to a portion of the consolidated unit. It does not follow that an agency is required, simply by virtue of the scope of the unit, to engage in a single set of negotiations covering the entire unit and leading to uniform provisions for employees in all of the previously separate units. Such a leap from the actual holding in DHHS assumes, erroneously, as I have previously concluded, that the "level of exclusive recognition" describes the bargaining unit.(8) Instead, I believe that, consistent with the conclusion in DHHS that the agency was not required to bargain with respect to a portion of the unit, the scope of negotiations, as opposed to their level, is itself negotiable.

The conclusion that the scope of negotiations and of the agreement is negotiable is one that gives proper deference to the role of collective bargaining in resolving disputes. The Authority has recognized the desirability of providing the parties with the flexibility to fashion appropriate solutions to the problems giving rise to their disputes. Thus, it does not routinely require that an agreement reached after negotia-tions pursuant to a bargaining order be given retroactive effect, but does so only when such a requirement has a particular remedial justification. Otherwise, the Authority leaves it to the parties to determine whether retroactivity meets their needs. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 989, 992-93 (1990); Environmental Protection Agency, 21 FLRA 786, 788-90 (1986). Similarly, the collective bargaining process should provide the basis for resolution of the issue presented here, one that has a certain affinity to that of retroactivity.

In the instant case it was the agency, not the union, that manifested a willingness to negotiate over the scope of the agreement. Thus, in 1991, Northeast Regional Director Beebe "proposed two contracts" to Council 242, announcing that "for the time being, [both Regions have] decided to exercise our unfettered right to deal with Council FDA individually" (GC Exh. 5). Later, in response to another bargaining request from Council 242 in 1993, Beebe reiterated the position that negotiations should be between Council 242 and the constituent parts of the Northeast Region that are within the consolidated unit. Beebe attached proposed ground rules, which included a provision that any agreement reached would be binding only on Council 242 and the Northeast Region (GC Exh. 13). Similarly, Newark District Director Lewis informed Council 242 that Mid-Atlantic Region management "is ready to negotiate a completely new agreement between Council 242 and the Newark District." He attached proposed ground rules that included a counterpart to Beebe's proposal for bifurcation (GC Exh. 3).

Council 242 responded to Lewis (and to an earlier management memorandum of apparently similar import) with a letter stating in part that "[w]e will not accept separate negotiations." In response to Council 242's 1993 bargaining request, Lewis reminded Council President Nelson of the proposed ground rules Lewis had previously sent. He stated in conclusion that "I stand ready to meet and negotiate my ground rules" (R Exh. 1).

While there were subsequent discussions between the parties, and some mutual misunderstanding because Beebe's 1993 letter, apparently intended by FDA to serve as a continuing response to later Council 242 bargaining requests, did not come to the attention of Council President Nelson's successors until much later, the parties remained essentially in the posture described in their correspondence. They were thus at what might be described as a preliminary impasse on the subject of the scope of the agreement to be negotiated. FDA was sending a signal that, if somewhat ambiguous, was at least susceptible to being read as a willingness to negotiate over the scope. Council 242, on the other hand, has consistently taken and expressed the view that the scope was nonnegotiable because, as the General Counsel argues here, negotiation at the "level of recognition" requires a unit-wide collective bargaining agreement. Therefore I see no valid basis for finding that FDA refused to bargain.

On the other hand, I also reject FDA's current argument that the consolidated unit has become a multi-employer unit from which each of the FDA Regions involved here may withdraw. That position is substantially what was at issue in the unit clarification case, and the Authority's Order Denying Application for Review implicitly answers the withdrawal argument in the negative. Thus, FDA still has the duty to bargain with Council 242 over all negotiable issues, including the scope of the negotiations and of any agreements that may be reached. Accordingly, I recommend that the Authority issue the following order:

ORDER

The complaint is dismissed.

Issued, Washington, D.C., March 1, 1996

__________________________
JESSE ETELSON
Administrative Law Judge




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


Authority's Footnotes Follow:

1. Member Cabaniss did not participate in this decision.

2. The instant exceptions were filed prior to the October 1, 1997 effective date of amendments to the Authority's Regulations. See 5 C.F.R. § 2323 (1997). The regulations applicable prior to that date therefore apply to this case.

3. For example, the 1991 letter referred to agreement with "the Newark District," just as the Regional Director in New York indicated a willingness in 1993 to enter into a "renegotiated agreement covering pertinent [Respondent] components within the Northeast Region only." General Counsel Ex. 13 at 2.


ALJ's Footnotes Follow:

1. It is not clear from this description whether the "New York Field Office" was synonymous with or part of "Region II."

2. The record does not explain how this odd juxtaposition of events with respect to a response to the June 1994 bargaining request came about. However, the complaint does not allege, as originally charged, that FDA committed an unfair labor practice by failing to respond to the those requests.

3. The parties have treated the issues of the scope of the negotiations and the scope of the resulting agreement as a single issue. For the purposes of my discussion of these issues as they relate to this case only, but remaining cognizant that they are not necessarily the same issue, I shall similarly link them.

4. Whether or not they are technically ground rules issues is unimportant. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 533 (1990) (Wright-Patterson). Issues regarding single or multiple negotiations and single or multiple contracts are quite similar in effect to the issue of contract duration, which the Authority has found to be negotiable. See U.S. Department of the Army, Headquarters III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 40 FLRA 636, 642 (1991). Moreover, similar issues were recently decided in an interest arbitration award issued pursuant to a negotiation impasse submitted to the Federal Service Impasses Panel. Department of the Air Force, Maxwell Air Force Base and Gunter Annex, Montgomery, Alabama and Local 997, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 79 (Sept. 8, 1995) (Issues 1 and 3), Panel Release No. 378.

5. There is no suggestion in the cited decisions that the duty to bargain over such proposals exists only for management, and that such matters are "permissive" subjects for the unio