International Brotherhood of Electrical Workers, Local 350 and U.S. Department of the Army, Army Corps of Engineers, St. Louis District, St. Louis, Missouri

[ v55 p243 ]

55 FLRA No. 42

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 350
(Union)

and

U.S. DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
ST. LOUIS DISTRICT, ST. LOUIS, MISSOURI
(Agency)

0-NG-2400

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

February 26, 1999

_____

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

I. Statement of the Case

      This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerns one provision that was disapproved by the Agency head under section 7114(c) of the Statute. The provision defines the circumstances under which an emergency exists for purposes of determining when the parties may temporarily circumvent compliance with other provisions of their collective bargaining agreement.

      For the reasons that follow, we conclude that the provision is not contrary to law. Accordingly, we direct the Agency to rescind its disapproval of the provision.

II. The Disputed Provision

The word "emergency" means a temporary condition posing a threat to human life or property including the reliability and integrity of the Cannon Power Plant.

III. The Positions of the Parties  [n1] 

A. Positions of the Parties

1. The Agency

      The Agency representative who agreed to the provision stated that, at the time of agreement, the provision "was interpreted narrowly as safety-related language which would not interfere with management's operations in any way." Conference Summary at 1 (emphasis added). According to the representative of the Agency head, the provision was disapproved "partially because of Authority precedent to the effect that any definition of 'emergency' would interfere" with the Agency's right under section 7106(b)(2)(D) of the Statute to take action in an emergency. Id. (emphasis added). According to the Agency, the Authority has consistently found similar provisions contrary to law. In addition, the representative of the Agency head stated that the provision "is not all-encompassing" despite the Union's assertion to the contrary, and that "any definition of 'emergency' . . . might interfere with the Agency's right to act[.]" Id. at 2. Consistent with this, the Agency rejected the Union's offer to modify the wording of the provision to clarify that it is not intended to limit the Agency's right to take actions in an emergency.

      The Agency maintains that, in view of the significant number of bargaining units within the Department of Defense, "different definitions of the term 'emergency' in each negotiated agreement could create an intolerable situation[.]" Id. The Agency also maintains that, if the provision does not restrict the Agency's right, then it is "meaningless." Id.

2. The Union

      The Union asserts that the purpose of the provision is to define the type of emergency situation in which the parties could "temporarily circumvent other provisions of the agreement." Petition for Review at 1. According to the Union, the provision would not restrict "management's freedom to act in an emergency in any way." Conference Summary at 1 (emphasis added). The Union asserts, in this regard, that it would be willing to substitute for the provision other wording -- such as defining "emergency" as "a sudden unforeseen event [ v55 p244 ] requiring immediate action" -- if necessary to overcome the Agency head's objection. Id. According to the Union, similar wording has been included in many Federal-sector collective bargaining agreements for many years.

      The Union acknowledges that the Authority has consistently found provisions such as this one contrary to law. However, the Union "urge[s]" the Authority to reexamine the issue "based on the law and its intent as supported by the legislative history." Response at 2. The Union quotes a portion of the Statute's legislative history, which states that: "Only bargaining proposals which [are] directly related to the actual exercise of the enumerated management rights are to be ruled nonnegotiable." Id. at 3 (quoting, 124 Cong. Rec. H13607 (1978), reprinted in 2 Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 2008 (Legislative History)). The Union asserts that this provision is similar to provisions concerning how disciplinary actions are to be conducted, and that finding this provision contrary to law would be inconsistent with precedent concerning those disciplinary provisions.

B. Meaning of the Provision

      Based on the record as a whole, including the telephone conference, there does not appear to be any dispute among the parties as to the meaning of the provision. In this regard, the Agency quotes in its statement of position, and does not dispute, the Union's claim that:

The meaning of this [provision] is to define the type of situation that constitutes an emergency for the purpose of allowing the parties to temporarily circumvent other provisions of the agreement . . . when such circumventions of the other agreement provisions are claimed to have been based on an emergency.

Statement of Position at 2 (quoting Petition for Review at 1).

      The Union claims that the definition in the provision covers "all" possible emergencies. Response at 3. See also Conference Summary at 1 (Union stated that the provision would not restrict "management's freedom to act in an emergency in any way."). The Agency representative who agreed to the provision agrees with the Union's claim. See id. (provision "would not interfere with management's operations in any way."). Although the representative of the Agency head stated that the provision "is not all-encompassing," no explanation for the statement was offered. Id. at 2. Specifically, the Agency did not view the provision as restricting the term "emergency" in any particular way. To the contrary, the representative of the Agency head rejected the Union's offer to modify the wording to accommodate the Agency's concerns. In addition, the provision was disapproved by the Agency head on the ground that "any definition" of the term "emergency" would interfere with its rights -- not that anything in the particular definition in the provision would do so. See id. at 1.

      It is clear from the foregoing that the provision was agreed upon with the understanding that it defined "emergency" situations in which the parties could temporarily circumvent other provisions in the parties' agreement. It is also clear that the parties who agreed on the provision interpreted it as describing all situations that could constitute emergencies. [n2]  That is, the parties did not intend the provision to limit the situations in which the Agency could take actions in an emergency. This interpretation of the provision is consistent with its plain wording. Accordingly, we adopt it for purposes of our decision. [n3] 

C. Analysis and Conclusions

      Section 7106(a)(2)(D) of the Statute specifies management's right to "take actions" during an emergency. Consistent with its plain wording, the Authority has held that, under this section, management has the right to decide what actions are necessary to carry out the agency's mission during emergencies. See, for example, National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 49 FLRA 874, 876 (1994) (National Guard Bureau); and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, [ v55 p245 ] 132 (1988) (Norfolk Naval Shipyard), order denying motion for reconsideration as to other matters, 32 FLRA 98 (1988).

      The Authority has also held that proposals and provisions that define "emergency" affect management's right under section 7106(a)(2)(D). See National Guard Bureau, 49 FLRA at 875-76 (provision defining "emergency situation" held to affect management's right to take action during an emergency by limiting management's authority to assess whether an emergency exists); Norfolk Naval Shipyard, 31 FLRA at 132-33 (same); American Federation of Government Employees, Locals 696 and 2010 and Naval Supply Center, Jacksonville, Florida, 29 FLRA 1174, 1175 (1987) (same); National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA 136, 140-41 (1986) (same); Association of Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346, 348-49 (1981) (same).

      Both parties interpret the foregoing precedent as establishing that any definition of the term "emergency" affects the right to take action during an emergency. Our examination of these decisions confirms this interpretation. See, e.g., National Guard Bureau, 49 FLRA at 876 (Authority stated that "Provisions that define 'emergency' [affect] management's right under section 7106(a)(2)(D) to take whatever actions may be necessary to carry out the agency mission during emergencies"). That is, Authority precedent finds that definitions of "emergency" affect management's right without regard to the content of the definition.

      The Union requests the Authority to reconsider this precedent. On reconsideration, we find no basis in the wording of the Statute, and no expressed rationale in the Authority precedent, on which to conclude that all definitions of "emergency" -- whatever their content -- affect management's right. Instead, the same inquiry used to resolve management-rights-based negotiability disputes regarding other provisions, i.e., whether the provision is contrary to the management right at issue, should be employed. Insofar as previous precedent holds to the contrary, it will no longer be followed.

      The provision in this case defines the term "emergency," in a way that, the parties agree, includes "all" emergencies. As the Agency could act in all emergencies, the definition would not affect the Agency's right to take action in such circumstances. The Agency argues, in this regard, that different definitions of "emergency" in different collective bargaining agreements within the Department of Defense would create an "intolerable situation." Conference Summary at 2. However, the Agency has not explained how its right to act in an emergency under the collective bargaining agreement between the parties in this case would be affected by a definition of "emergency" in another agreement. We also find this argument unpersuasive because in this case the Union offered, and the Agency refused, to modify the definition to be consistent with those in other agreements. The Agency's assertion that the provision may be meaningless also does not persuade us that it is contrary to law. We leave to the parties the determination whether a provision is meaningful.

IV. Order

      The Agency shall rescind its disapproval of the disputed provision.






Footnote # 1 for 55 FLRA No. 42

   The Union filed a petition for review and a response to the statement of position that was filed by the Agency. In addition, the record was supplemented and clarified through a telephone conference among representatives of the parties and the Authority. The summary of the telephone conference (hereinafter "Conference Summary") was agreed upon and signed by the parties' representatives.


Footnote # 2 for 55 FLRA No. 42

   We note that the provision encompasses "temporary" conditions. Although it is not clear that an emergency is always a temporary condition, the Agency did not in its Statement of Position or the telephone conference object to the provision on this basis. Moreover, the parties appear to agree that the purpose of the provision is to permit temporary circumvention of the parties' agreement; we construe this to explain the use of the term "temporary."


Footnote # 3 for 55 FLRA No. 42

   The meaning we adopt for this provision would apply in other proceedings, unless modified by the parties through subsequent agreement. See National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Def