54:0457(46)CA - - Air Force, 647th Air Base Group, Hanscom AFB, MA & NAGE Local R1-8 - - 1998 FLRAdec CA - - v54 p457



[ v54 p457 ]
54:0457(46)CA
The decision of the Authority follows:


54 FLRA No. 46

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF THE AIR FORCE

647TH AIR BASE GROUP

HANSCOM AIR FORCE BASE, MASSACHUSETTS

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO, LOCAL R1-8

(Charging Party)

BN-CA-41011

_____

DECISION AND ORDER

June 19, 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. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to negotiate upon request concerning matters covered under section 7106(b)(1) of the Statute, specifically by implementing its decision to fill several vacant positions without providing the Union an opportunity to negotiate over this decision. The complaint also alleges that Executive Order 12871 requires the Respondent to bargain about such matters. The Judge granted the Respondent's motion for summary judgment and dismissed the complaint.

In U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997) (Department of Commerce I), the Authority issued a Partial Decision and Procedural Order directing the parties in that case, those in four companion cases -- of which this case is one -- and those seeking to participate as amicus curiae to submit written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871.

Upon consideration of the Judge's decision, the entire record, and the parties' responses to the Authority's Procedural Order in Department of Commerce I, we conclude for the reasons explained below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.

II. Background

This case was decided by the Judge on the Respondent's motion for summary judgment. In its motion, the Respondent assumed all the factual allegations in the complaint and, for purposes of this Decision, we do also.

On or about February 1, 1994 and at various times thereafter, the Union requested the Respondent to:

engage in mid-term negotiations involving matters covered under 5 U.S.C. section 7106(b)(1), including the numbers[,] types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty and concerning the technology, methods, and means of performing work.

Complaint ¶ 12. The Respondent refused these requests. During approximately the same time period, the Respondent announced its decision to fill several vacant positions with permanent and temporary employees, and the Union responded to this announcement by requesting to bargain over the decision under section 7106(b)(1) of the Statute. Id. ¶ 14, 16. The Respondent implemented its decision to fill the vacant positions "without providing the [Union] an opportunity to negotiate to the extent required by the Statute[.]" Id. ¶ 17.

The General Counsel issued a complaint alleging that, by refusing the Union's requests to bargain and by implementing its decision to fill the vacant positions, the Respondent violated section 7116(a)(1) and (5) of the Statute. The complaint alleges that:

Executive Order 12871, "Labor-Management Partnerships," . . . requires the Respondent to negotiate over the subjects set forth in section 7106(b) of the Statute.

By issuing the Executive Order, the President of the United States has exercised the Respondent's discretion under section 7106(b)(1) to negotiate section 7106(b)(1) subjects . . . .

Complaint ¶¶ 10, 11.

The Judge determined that the issue before him was:

[W]hether the President's promulgation of Executive Order 12871, especially Section 2(d) thereof,[(2)] constitutes the blanket exercise of all executive agencies' discretion under section 7106(b)(1) of the Statute in favor of bargaining over all subjects enumerated in that provision.

Judge's Decision at 4. The Judge concluded that the Executive Order did not constitute such an exercise of discretion. In reaching this conclusion, the Judge stated that, in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), the Authority "at least inferentially . . . determined that it will not order an agency to bargain over the substance of a section 7106(b)(1) matter unless such agency has elected to do so, notwithstanding the 'mandate' in Section 2(d) of Executive Order 12871 . . . ." Judge's Decision at 5. The Judge further stated that the Authority's inferential conclusion was compelled by the wording of both the Statute and Section 3 of the Executive Order.(3) In the Judge's view, the appropriate remedy for an agency official's failure "to obey the President's directive in Section 2(d) of the Executive Order, the appropriate remedy would be determined internally within the executive branch rather than through administrative or judicial proceedings." Id. The Judge recommended that the Authority dismiss the complaint.

III. Positions of the Parties

Subsequent to the Authority's Partial Decision and Procedural Order in Department of Commerce I, 53 FLRA 858, the parties in this case were given an opportunity to provide written responses to a series of questions concerning section 7106(b)(1) of the Statute and Executive Order 12871. The positions of the parties, described below, include their responses to the Authority's Procedural Order that are set forth more fully in U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA No. 43, slip op. at 9-10 (1998) (Department of Commerce II).

A. General Counsel

The General Counsel asserts that, "by issuing the Executive Order, the President . . . has exercised the Respondent's discretion under section 7106(b)(1) to negotiate section 7106(b)(1) subjects[.]" Exceptions at 2. The General Counsel relies on Section 2(d) of the Executive Order, asserting that nothing makes discretionary the requirement that agencies "shall" negotiate over section 7106(b)(1) matters. According to the General Counsel, the Judge erred in concluding that the Authority "inferentially" rejected this argument in VAMC, Lexington. The General Counsel emphasizes that the complaint alleges a violation of the Statute. In this regard, the General Counsel contends that the Respondent is obligated to bargain under the Statute, not under the Executive Order:

The General Counsel does not enforce Executive Orders and does not intend to enforce any right[s] which may or may not be created by Executive Order 12871 . . . . [Because] the General Counsel is not attempting . . . to enforce any right which may or may not be created in the Executive Order, Section 3 is inapplicable.

Id. at 2-3.

B. Charging Party

The Charging Party argues that "[a]s head of the Executive Branch of Government[,] the President is authorized to exercise the statutory election in section 7106(b)(1) on behalf of Executive agencies." Charging Party's Response to the Authority's Procedural Order in Department of Commerce I at 7. In the Charging Party's view, "[o]nce the President has exercised the election on behalf of the Executive agencies covered by the Statute, an agency is without authority to negate the President's election[.]" Id.

The Charging Party also argues that "[e]nforcing the election to bargain 7106(b)(1) subjects is not barred by Section 3 of Executive Order 12871." Id. at 9. The Charging Party asserts that the Authority has jurisdiction over this matter because it requires enforcement of the Statute and not the Executive Order.

C. Respondent

The Respondent contends that the General Counsel's assertion that the complaint is not seeking to enforce the provisions of the Executive Order is "disingenuous." Opposition at 3. According to the Respondent, under the Statute, agencies "retain the exclusive right to elect whether or not to bargain over the subjects listed in Section 7106(b)(1)." Id. at 7. In the Respondent's view, "the only way in which a right to bargain over those subjects could arise would be through an amendment" to the Statute. Id. Since the Statute has not been so amended, the Respondent argues that the "only source for the putative election" is Section 2(d) of the Executive Order. Id. at 3.

The Respondent also maintains that, consistent with Section 3 of the Executive Order, any election to bargain under the Executive Order may not be enforced against the Respondent by the Authority. In addition, the Respondent claims that Section 3 of the Executive Order "deprives the [Authority] of jurisdiction to hear any allegation regarding a duty to bargain arising out of the promulgation of Section 2(d)[.]" Id. at 10.

IV. Analysis and Conclusions

As an initial matter, we note the Respondent's contention that Executive Order 12871 deprives the Authority of subject matter jurisdiction in this case. We find that the Respondent's contention is without merit.

Section 7105(a)(2)(G) of the Statute empowers the Authority to "conduct hearings and resolve complaints of unfair labor practices[.]" 5 U.S.C. § 7105(a)(2)(G). The Authority has the power to resolve unfair labor practice complaints alleging violations of section 7116 of the Statute. See American Federation of Government Employees v. FLRA, 834 F.2d 174, 176 (D.C. Cir. 1987) (citing Bureau of Alcohol, Tobacco, and Firearms v. FLRA, 464 U.S. 89, 93 (1983). The complaint in this case alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing conditions of employment. See Complaint ¶ 1[8]. The complaint does not allege that the Respondent violated Executive Order 12871. Therefore, as the complaint in this case concerns a violation of the Statute, the Authority has jurisdiction to resolve the allegations contained in the unfair labor practice complaint.

Turning to the merits of the General Counsel's exceptions, our decision is governed by Department of Commerce II. In Department of Commerce II, as relevant here, the Authority affirmed its holding in VAMC, Lexington that section 7106(b) of the Statute constitutes an exception to section 7106(a). In addition, the Authority determined that Section 2(d) of Executive Order 12871 does not constitute an election under the Statute to bargain over section 7106(b)(1) subjects. As the Authority explained, Section 2(d) of the Executive Order "unambiguously states [that it is] a direction by the President to agency officials to engage in bargaining over the subjects defined in the Statute." Department of Commerce II, 54 FLRA No. 43, slip op. at 28 (emphasis added). The Authority also explained that construing Section 2(d) as an internal management direction is compelled by the clear language of Section 3 of the Executive Order. Id. at 22-23. The fact that the nature of the Executive Order's direction is indeed mandatory does not, however, render it a statutory election enforceable in an unfair labor practice proceeding. Id. at 19.

In this case, the General Counsel challenges the Judge's decision on the same grounds as those we considered in Department of Commerce II. Therefore, for the reasons set forth fully in our decision in Department of Commerce II, 54 FLRA No. 43, we find that the Respondent was not required to bargain with the Union over its decision to fill certain vacant positions.(4) Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by its refusal to bargain over its decision, and we dismiss the complaint.

V. Decision

The complaint is dismissed.


Opinion of Member Wasserman, concurring in part and dissenting in part:

I agree with my colleagues to the extent that they hold that Section 3 of the Executive Order does not deprive the Authority of jurisdiction to consider this unfair labor practice complaint. However, for the reasons set forth in my separate opinion in Department of Commerce II, I respectfully dissent with respect to the application of the Statute to the facts of this case. I believe that the evidence supports the conclusion that the President elected to bargain on behalf of his subordinate agencies through Section 2(d) of Executive Order 12871. The Charging Party has alleged bad faith bargaining due to a refusal to bargain over the substance of the Agency's decision to fill vacancies in a certain manner notwithstanding the Union's request to negotiate such matters. I would find that the failure to bargain after the election was made constitutes an unfair labor practice which is remediable through the Authority's unfair labor practice procedures.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF THE AIR FORCE

647TH AIR BASE GROUP, HANSCOM AIR

FORCE BASE MASSACHUSETTS

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU,

AFL-CIO, LOCAL R1-8

Charging Party

Case No. BN-CA-41011

Steven E. Sherwood, Esq.

For the Respondent

Peter F. Dow, Esq.

For the General Counsel

Before: Samuel A. Chaitovitz

Chief Administrative Law Judge

DECISION ON MOTION FOR SUMMARY JUDGMENT

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (the Statute).

Based upon an unfair labor practice charge filed by the Charging Party, National Association of Government Employees, SEIU, AFL-CIO, Local R1-8 (the Union), a Complaint and Notice of Hearing was issued by the Regional Director for the Boston Region of the Federal Labor Relations Authority. The complaint alleges that the Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts (the Respondent) violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate upon request concerning matters covered under section 7106(b)(1) of the Statute.

More specifically, the complaint alleges that Executive Order 12871, entitled "Labor-Management Partnerships," issued on October 1, 1993 (58 Fed. Reg. 52201-52203), requires the Respondent to negotiate over the subjects set forth in section 7106(b)(1) of the Statute; that by issuing E.O. 12871, the President of the United States has exercised the Respondent's discretion under section 7106(b)(1) to negotiate over the subjects set forth therein, including the numbers, types and grades of employees or positions assigned to any organiza-tional subdivision, work project, or tour of duty, and concerning the technology, methods and means of performing work; that on or about February 1, 1994, the Union requested to negotiate over such matters but the Respondent has failed and refused to do so; that in May 1994, the Respondent announced its intention to fill approximately 86 vacant positions at the same time that it was absorbing a workforce reduction of about 457 civilian positions; that on May 17, 1994, the Union requested to bargain over such matters pursuant to section 7106(b)(1) of the Statute, but that the Respondent implemented its decision to fill the 86 vacant positions without providing the Union an opportunity to negotiate to the extent required by the Statute, thereby violating section 7116(a)(1) and (5) of the Statute.

The Respondent filed a Motion to Dismiss dated May 14, 1996, and a Motion for Summary Judgment on June 4, 1996, to both of which the General Counsel filed an opposition on July 9, 1996.(1) The positions of the parties are set forth immediately below.

Contentions of the Parties

A. The Respondent

In its Motion for Summary Judgment, the Respondent assumes that all of the factual allegations of the complaint are as stated by the General Counsel, but contends that the, complaint must be dismissed because the Union's requests to bargain over the numbers, types and grades of employees or positions assigned to an organizational subdivision, work project, or tour of duty, or concerning the technology, methods and means of performing work are, by contract, subject to the election of management. More particularly, the Respondent refers to Article 6.C. of the parties' collective bargaining agreement--which essentially tracks the language of section 7106(b)(1) of the Statute--and contends that it is entitled to judgment as a matter of law because it has the right to exercise its discretion as negotiated in the contract to decline to bargain over such enumerated matters. In this regard, the Respondent relies on the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993), that an agency has no duty to bargain over matters "covered by" the parties' negotiated agreement.

B. The General Counsel

In opposing the Respondent's Motion for Summary Judgment, the General Counsel contends that, "by issuing the Executive Order [12871], the President of the United States has exercised the Respondent's discretion under section 7106(b)(1) to negotiate section 7106(b)(1) subjects, including those at issue in this case." More specifically, the General Counsel quotes Section 2(d) of the Executive Order, which provides in part as follows:

Sec. 2. IMPLEMENTATION OF LABOR-MANAGEMENT PARTNERSHIPS THROUGHOUT THE EXECUTIVE BRANCH. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

* * * * * * * * *

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the

same; . . . .

Accordingly, the General Counsel asserts, since the President has made the election for agencies at the level of exclusive recognition to negotiate over section 7106(b)(1) subjects, the Respondent could not lawfully refuse to bargain over such matters in this case.(2)

Conclusions

A. Appropriateness of Summary Judgment

It has long been established that the purpose of summary judgment is to avoid useless, expensive, and time-consuming trials when there are no genuine issues of material fact to be tried. State of California National Guard, 8 FLRA 54, 60 (1982). Thus, section 2423.19(k) of the Authority's Rules and Regulations specifically authorizes Administrative Law Judges to grant motions for summary judgment in lieu of hearings when only legal issues are involved, so long as the parties have had an opportunity to present written argument. Id.; see also Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 222 (1995). Inasmuch as there is no material issue of fact in dispute herein and the parties have been afforded full opportunity to present their legal arguments, I conclude that this case is appropriate for resolution on the Respondent's motion for summary judgment.

B. The Legal Issue

The fundamental legal issue presented by the General Counsel's opposition to the Respondent's Motion to Dismiss and separate Motion for Summary Judgment is whether the President's promulgation of Executive Order 12871, especially Section 2(d) thereof, constitutes the blanket exercise of all executive agencies' discretion under section 7106(b)(1) of the Statute in favor of bargaining over all subjects enumerated in that provision. For the reasons stated below, I conclude that it does not.

In its Order Denying Request for a General Ruling, 51 FLRA 409, 410 (1995), the Authority had before it the General Counsel's explanation that his request for a general ruling concerning the relationship between section 7106(b)(1) and section 7106(a) of the Statute was prompted by Executive Order 12871, which provides, in Section 2(d), that agency heads shall "negotiate over subjects set forth in section 7106(b)(1) and instruct subordinate officials to do the same," and by the court's decision in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994), in which the District of Columbia Circuit held that where a matter falls within subsection (b)(1) of section 7106, even if the matter also affects a right under subsection (a), the matter is subject to negotiation at the election of the agency. The General Counsel's request for a general ruling stated that the mandate in the Executive Order to negotiate over section 7106(b)(1) matters, and the court's holding in Montana ACT, has rendered the relationship between subsections (a) and (b)(1) a major policy issue. 51 FLRA at 410-411. The Authority denied the General Counsel's request for a general ruling, stating that a negotiability case decided that same day "addresses the question raised by the General Counsel." Id. at 412.

The negotiability decision referred to by the Authority above is National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995)(VA Medical Center). In that decision, the Authority concluded (as applicable here) that where it finds a bargaining proposal governed by section 7106(b)(1), it will dismiss a union's petition for review pursuant to section 2424.10(b) of its Rules and Regulations without ordering the parties to bargain, notwithstanding the union's assertion that negotiation over the proposal is mandated by Executive Order 12871 which constitutes an election to negotiate within the meaning of section 7106(b)(1). Id. at 393-394 and n.12. As I interpret the Authority's decision in VA Medical Center, which the Authority's Order Denying Request for a General Ruling describes as addressing the issues raised by the General Counsel in his request, the Authority at least inferentially has determined that it will not order an agency to bargain over the substance of a section 7106(b)(1) matter unless such agency has elected to do so, notwithstanding the "mandate" in Section 2(d) of Executive Order 12871 that agencies covered by the Statute "shall negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1). . . ."

In my view, the foregoing conclusion is compelled by the language of the Statute and the Executive Order. Thus, as the General Counsel recognizes, Section 3 of Executive Order 12871 specifically states that the order "is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any right . . . enforceable . . . against the United States, its agencies . . ., officers or employees . . . ." In other words, if an agency official failed to obey the President's directive in Section 2(d) of the Executive Order, the appropriate remedy would be determined internally within the executive branch rather than through administrative or judicial proceedings. In this manner, potential conflicts between the terms of an Executive Order and the provisions of an act of Congress are avoided.

I further note that two other Administrative Law Judges of the Authority have reached the same conclusion that I reach herein. See Marine Corps Logistical Base, Case No. SF-CA-41251, Feb. 15, 1996 (ALJD Report No. 123, Apr. 30, 1996); U.S. Department of Commerce, Patent and Trademark Office, Case No. WA-CA-40743, July 9, 1996. While such decisions of Judges Nash and Oliver are not precedential, I find it instructive that they both independently rejected the General Counsel's assertion that the President in Section 2(d) of Executive Order 12871 exercised every agency's discretion under section 7106(b)(1) of the Statute in favor of bargaining over the subjects set forth therein. No Judge has decided to the contrary.

For the reasons set forth above, I conclude that summary judgment in favor of the Respondent is warranted, and that the complaint in this case should be dismissed.

ORDER

The complaint in Case No. BN-CA-41011 is dismissed.

Issued, Washington, D.C., July 31, 1996.

______________________________

SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge




Footnotes:


Authority's Footnotes Follow:

1. Member Wasserman's opinion, dissenting in part, is set forth at the end of this decision.

2. Section 2(d) of the Executive Order provides, in relevant part:

Sec. 2. Implementation Of Labor-Management Partnerships Through The Executive Branch. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code shall:

. . . .

(d) negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]

3. Section 3 provides:

Sec. 3. No Administrative Or Judicial Review. This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

4. Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting changes have more than a de minimis effect on conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). The complaint does not allege that the Respondent refused to bargain over the impact and implementation of its decision to fill certain vacant positions. The General Counsel's exceptions also do not address any issues concerning the impact and implementation of the Respondent's decision. As this issue is not before us, we do not address it.


ALJ's Footnotes Follow:

1. Respondent filed a Motion to Strike the General Counsel's Response in Opposition to the Respondent's Motion to Dismiss and Motion for Summary Judgment on the ground that the General Counsel's response was untimely under the Authority's Rules and Regulations. On July 12, 1996, the undersigned issued an Order indefinitely postponing the hearing in this case to permit the Respondent's Motion for Summary Judgment to be considered. As part of that Order, all parties were afforded the opportu