54:0316(39)CA - - HQ, NG Bureau, Washington, DC, NV Air NG & ACT, Silver Barons Chapter, Reno, NV - - 1998 FLRAdec CA - - v54 p316



[ v54 p316 ]
54:0316(39)CA
The decision of the Authority follows:


54 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA AIR NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER BARONS CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60314

HEADQUARTERS, NATIONAL GUARD BUREAU

WASHINGTON, D.C.

NEVADA ARMY NATIONAL GUARD

RENO, NEVADA

(Respondents)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

SILVER SAGE CHAPTER

RENO, NEVADA

(Charging Party)

DE-CA-60347

_____

DECISION AND ORDER

May 29, 1998

_____

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

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties have agreed that no material issue of fact exists. The Charging Parties (or Unions) and the Respondents filed briefs with the Authority.(2)

The consolidated complaint alleges that the Respondent National Guard Headquarters (Respondent Headquarters) violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with the local bargaining relationship when it directed the Respondents Nevada Air National Guard and Nevada Army National Guard (Respondents Nevada Guards) to disapprove of an official time provision ordered to be included in each of their respective agreements by the Federal Service Impasses Panel (the Panel). The consolidated complaint further alleges that, because the inclusion of two provisions, one concerning advisory arbitration and the second concerning official time, had been ordered by the Panel, the Respondents Nevada Guards' disapproval violated sections 7116(1), (5), (6) and (8) of the Statute.

For the reasons explained below, we conclude that the Respondent Headquarters did not violate section 7116(a)(1) and (5) of the Statute by interfering with the local bargaining relationship between the Respondent Nevada Air National Guard and its Union and the Respondent Army National Guard and its Union, and we dismiss that portion of the complaint. With respect to the Respondents Nevada Guards' refusal to implement the Panel-imposed advisory arbitration provision, we conclude that the Respondents' refusal constituted a violation of sections 7116(a)(1), (5), (6), and (8) of the Statute; we order the Respondents to incorporate this provision into their collective bargaining agreements as directed by the Panel. With respect to the Respondents Nevada Guards' refusal to implement the Panel-imposed official time provision, we conclude that the provision is contrary to law and, therefore, the Respondents did not violate section 7116(a)(1), (5), (6), or (8) of the Statute; we dismiss that portion of the complaint.

II. Stipulations

The Unions engaged in separate collective bargaining agreement negotiations with the Nevada Guards. Included in the negotiations were separate, but identical, proposals involving: (1) official time for lobbying and (2) advisory arbitration in appeals of proposed adverse actions. Stipulation at 6. Having failed to reach agreement, the Unions filed requests for assistance with the Panel. On December 28, 1995, the Panel issued an Order in Case Nos. 95 FSIP 147 and 95 FSIP 148, directing the Respondents Nevada Guards and their respective Unions to incorporate the following provision into their existing agreements:

[Official time may be granted to] Union officials when representing Federal employees by visiting, phoning, and writing to elected representatives in support or opposition to pending or desired legislation which would impact the working conditions of employees represented by ACT.

Stipulation, Exhibit 15 at 2. The Panel also directed the Nevada Guards to modify their existing agreements by:

(1) including, as a third option for employees against whom an adverse action is proposed (in addition to review by the Adjutant General or an administrative hearing conducted by a National Guard hearing examiner), "advisory arbitration" conducted under the arbitration provisions of the parties' [collective bargaining agreements]; (2) adding wording which specifies that "if an arbitrator is requested, his decision is considered to be completely advisory in nature and in no way binding on the Employer. The Adjutant General will consider the arbitrator's findings in making his final decision;" and (3) omitting current wording which states that "adverse actions are excluded from arbitration."

Id. at 5.

The Headquarters' Judge Advocates Office and its Personnel Office each informed the Nevada Guards by telefax that "the use of official time for lobbying purposes" conflicted with law and, therefore, was not bargainable. Based on these communications, the Respondents Nevada Guards informed their respective Unions that they would not implement any collective bargaining agreements containing the official time provision. Stipulation at 7. Respondents Nevada Guards also informed their Unions that they would not implement any agreements containing the advisory arbitration provision. Id. at 8.

Following the Respondents Nevada Guards' refusal to implement the collective bargaining agreements with the Panel-imposed provisions, the General Counsel issued an unfair labor practice complaint alleging that the Headquarters violated sections 7116(a)(1) and (5) of the Statute by interfering with the local bargaining relationship between the Respondent Nevada Air National Guard and its Union and the Respondent Army National Guard and its Union concerning the official time provision. The complaint further alleged that because the Panel ordered the inclusion of both the advisory arbitration and the official time provisions, the Nevada Guards violated sections 7116(1), (5), (6) and (8) of the Statute.

III. Positions of the Parties (3)

A. The Respondents Position

With respect to the portion of the complaint alleging that the Headquarters directed the Nevada Guards to refuse to incorporate the official time provision in their collective bargaining agreements, the Respondents argue there was no direction in violation of section 7116(a)(1) or (5) of the Statute. The Respondents claim that the communications from the Headquarters to the Nevada Guards constituted legal advice that was only the "internal opinion of the National Guard Bureau's legal staff[.]" Respondent's Brief at 2. The Respondents also assert that the communication from the Headquarters was only a "draft policy" and, therefore, did not "direct any action" by the Nevada Guards. Id.

With respect to the advisory arbitration provision, the Respondents contend that the provision "is not illegal, it is just unreasonable." Stipulation, Attachment 16 at 1. In this regard, the Respondents assert that the provision "would add delay and expense to the discipline process without improving it." Id., Attachment 15 at 6.

Finally, with respect to the official time provision, the Respondents argue that, although the Authority found a similar provision lawful in VA Atlanta, the Authority did not "consider the applicability of laws restricting lobbying activities." Respondent's Brief at 4-5. In this regard, the Respondents claim that the official time provision is inconsistent with both 18 U.S.C. § 1913 and the "recurring anti-lobbying provisions in the yearly . . . DOD Appropriations Act." Id.

The Respondents first claim that 18 U.S.C. § 1913 does not allow the use of appropriated funds in any manner intended to influence a Member of Congress. According to the Respondents, communications by Agency personnel are prohibited unless such communications are "through the proper official channels" or "on a request of Congress." Id. at 4. The Respondents contend that the Union's lobbying activities do not constitute communications through proper official channels, that there is no request by Congress for such activity, and that neither section 7102 nor section 7131 of the Statute expressly authorize Union officials to lobby Congress. Thus, the Respondents argue that granting official time under the circumstances presented would constitute a violation of 18 U.S.C. § 1913. The Respondents argue that the language of 18 U.S.C. § 1913 is unambiguous and, therefore, "recourse to legislative history to define the prohibition's scope is improper." Id.

The Respondents next claim that both section 8001 and 8015 of the 1996 DOD Appropriations Act contain provisions restricting lobbying with appropriated funds.(4) The Respondents assert that a "failure to adhere to the anti-lobbying provisions in the DOD Appropriations Act would be a violation of the purpose statute, 31 U.S.C. § 1301(a), . . . [which] could cause a violation of the Antideficiency Act, 31 U.S.C. § 1341[.]"(5) Id.

B. The Charging Parties' Position

With regard to the advisory arbitration provision, the Charging Parties maintain that it provides a more appropriate forum than review by the Adjutant General for resolving cases where the employer is charged with improper behavior. In this regard, the Charging Parties claim that the provision allows for review by "an independent third party who is 'completely disinterested in the outcome of the proceedings[.]'" Stipulation, Attachment 15 at 5.

The Charging Parties assert that the Authority examined and rejected the Respondents' arguments regarding 18 U.S.C. § 1913 in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3231, 11 FLRA 7 (1983). The Charging Parties argue that "[w]hether a federal employee is 'using' federal funds, when speaking with . . . Congress, depends not on whether the employee receives federal pay . . . but on whether the employee is on duty during that time, and thus . . . act[ing] solely in [an] official capacity" for the agency. Charging Party's Brief at 2-3. In this regard, the Charging Parties state that "[w]hen representing employees under § 7131 [of the Statute], union representatives are not []acting in their 'official capacity,' 'on the job,' or in a 'duty status'" and, therefore, are not barred from using such appropriated funds to lobby Congress. Id. at 3. The Charging Parties further claim that, even if the Statute is irreconcilable with the anti-lobbying statutes relied on by the Respondent, the Statute would prevail because it is a more specific statute. Id. n.4.

IV. Analysis and Conclusions

The General Counsel bears the burden of proving by a preponderance of the evidence the allegations contained in an unfair labor practice complaint. See 5 U.S.C. § 7118(a)(8). The respondent bears the burden of raising and establishing any defenses to the complaint. See Action, 26 FLRA 299, 301-02 (1987) (General Counsel is not required to include in prima facie case responses to anticipated defenses that have not yet been raised or proved by the respondent); see also U.S. Army Corps of Engineers, Memphis District, Memphis Tennessee, 53 FLRA 79, 83 n.2 (1997); Letterkenny Army Depot, 35 FLRA 113, 118-19 (1990) (Letterkenny).

A. The Respondent Headquarters Did Not Violate the Statute By Interfering With the Local Bargaining Relationship

When higher level management directs management at a subordinate level in the 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 entity violates section 7116(a)(1) and (5) of the Statue. See U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 481 (1996) (Survey). 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 the higher-level direction and whose actions are ministerial in nature. Id.

The record in this case clearly establishes that Respondents Nevada Guards refused to execute a collective bargaining agreement containing the Panel-imposed official time provision. See Stipulation at 8, 32. However, there is nothing in the record that establishes that Respondents Nevada Guards' refusal occurred as a result of the Headquarters' direction. In particular, there is nothing in the two communications (telefaxes) from Respondent Headquarters to Respondents Nevada Guards that establishes that the Headquarters directed the Nevada Guards to refuse to comply with the Panel's order concerning the official time provision.

The first communication was a copy of an internal legal opinion from the Office of the Judge Advocate. The fact that the Headquarters provided the Nevada Guards with a legal opinion does not establish that the Headquarters directed the Nevada Guards to act in any particular manner. See, e.g., Survey, 52 FLRA at 482 ("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.").

The second communication was a copy of a draft labor relations alert. Stipulation, Exhibit 14 ("reminding the states that it is illegal . . . to use federal funds to influence members of Congress"). The fact that the alert was clearly marked "draft" and contained words such as "recommend" and "remind" is inconsistent with viewing the alert as a direction to refuse to comply with the Panel's order. See Survey, 52 FLRA at 482 (citing U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health, 39 FLRA 1306, 1314 (1991) (more than a mere reference to the existence of a policy by an agency is necessary to establish that the agency has unlawfully interfered with the collective bargaining relationship).

Based on the stipulated record in this case, we conclude that the Respondent Headquarters did not interfere with the local bargaining relationship and, therefore, did not violate section 7116(a)(1) and (5) of the Statute. See Survey, 52 FLRA at 482. Accordingly, we dismiss the portion of the complaint with respect to the Respondent Headquarters.

B. Disapproval of the Panel-imposed Provisions

An agency acts at its peril in disapproving a Panel-imposed provision. If on review in an unfair labor practice proceeding a provision is found lawful, the agency's disapproval constitutes a failure or refusal to cooperate in impasse decisions in violation of section 7116(a)(1), (5) and (6) of the Statute.(6) See U.S. Department of Energy, Washington, D.C., 51 FLRA 124, 126 (1995). As relevant here, a provision is lawful under section 7117 of the Statute unless it is inconsistent with the Statute, any Government-wide rule or regulation, or an agency regulation for which the agency has established a compelling need. Id. at 127.

1. Respondents Nevada Guards Violated the Statute With Regard to the Panel-imposed Advisory Arbitration Provision

The complaint in this case alleges, and the stipulation establishes, that Respondents Nevada Guards refused to comply with the Panel-imposed advisory arbitration provision. Stipulation at 8, 32. Thus, the General Counsel has met its burden of making a prima facie showing that the Respondents violated the Statute. The Respondents have not offered any evidence to rebut this showing by establishing that the provision is contrary to law. In fact, the Respondents concede that the provision is lawful. Stipulation, Exhibit 16 ("Including this provision in the labor agreement is not illegal, it is just unreasonable."). Under these circumstances, the stipulated record compels a conclusion that Respondents Nevada Guards improperly disapproved the Panel-imposed advisory arbitration provision. By this action, the Respondents Nevada Guards violated section 7116(a)(1), (5), (6), and (8) of the Statute.

2. Respondents Nevada Guards Did Not Violate the Statute With Regard to the Panel-imposed Official Time Provision

The Panel-imposed official time provision disapproved by Respondents Nevada Guards is essentially identical to a proposal that we recently examined in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA No. 38 (1998) (Member Wasserman dissenting) (New Hampshire National Guard). In New Hampshire National Guard, we determined that the use of official time for union officials to lobby Congress is not prohibited by either 18 U.S.C. § 1913 or section 8001 of the 1996 DOD Appropriations Act. See 54 FLRA No. 38, slip op. at 5-13. However, we found that section 8015 of the 1996 DOD Appropriations Act expressly prohibits the use of official time for this purpose.

In this case, Respondents Nevada Guards challenge the Panel-imposed official time provision on essentially the same grounds as those we considered in New Hampshire National Guard. The Charging Parties' responses to these arguments are also essentially the same as those we considered in New Hampshire National Guard. Therefore, we find, for the reasons fully set forth in our decision in New Hampshire National Guard, that the Panel-imposed official time provision is contrary to section 8015 of the 1996 DOD Appropriations Act. Accordingly, we conclude that Respondents Nevada Guards did not violate section 7116(a)(1), (5), (6), or (8) of the Statute by their refusal to comply with the Panel Decision and Order in Case Nos. 95 FSIP 147 and 95 FSIP 148, and we dismiss this portion of the complaint.

V. Order

Pursuant to section 2423.41(c)(7) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Nevada Air National Guard and the Nevada Army National Guard, Reno, Nevada shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the Decision and Order of the Federal Service Impasses Panel in Case Nos. 95 FSIP 147 and 95 FSIP 148 by refusing to include an advisory arbitration provision ordered to be included in the collective bargaining agreements with the Association of Civilian Technicians, Silver Barons Chapter, Reno, Nevada and the Association of Civilian Technicians, Silver Sage Chapter, Reno, Nevada.

(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) Incorporate the advisory-arbitration provision ordered to be included by the Federal Service Impasses Panel in their respective collective bargaining agreements with the Association of Civilian Technicians, Silver Barons Chapter, Reno, Nevada and the Association of Civilian Technicians, Silver Sage Chapter, Reno, Nevada.

(b) Post at all locations within the Nevada Air National Guard and Nevada Army National Guard, Reno, Nevada, 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 commanding officer 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 2423.41(e)of the Authority's Regulations, notify the Regional Director, Denver 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 herewith.

The portions of the unfair labor practice complaints issued against the Headquarters National Guard Bureau, Washington, D.C. are dismissed. In addition, the portions of the unfair labor practice complaint issued against the Nevada Air National Guard and the Nevada Army National Guard, Reno, Nevada concerning the Panel-imposed official time provisions are dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Nevada Air National Guard and the Nevada Army National Guard, Reno, Nevada violated the Federal Service Labor-Management Relations Statute and have ordered us to post and abide by this notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to comply with the Decision and Order of the Federal Service Impasses Panel in Case Nos. 95 FSIP 147 and 95 FSIP 148 by refusing to include the advisory arbitration provision ordered to be included our respective collective bargaining agreements with the Association of Civilian Technicians, Silver Barons Chapter, Reno, Nevada and the Association of Civilian Technicians, Silver Sage Chapter, Reno, Nevada.

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

WE WILL include the advisory arbitration provision imposed by the Federal Service Impasses Panel's Decision and Order in Case Nos. 95 FSIP 147 and 95 FSIP 148 in our respective collective bargaining agreements with the Association of Civilian Technicians, Silver Barons Chapter, Reno, Nevada and the Association of Civilian Technicians, Silver Sage Chapter, Reno, Nevada.

_________________________

(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 concern