24th Combat Support Group, Howard Air Force Base, Republic of Panama and Unlicensed Division No.1, District No. 1 MEBA/NMU

[ v55 p273 ]

55 FLRA No. 45

24TH COMBAT SUPPORT GROUP
HOWARD AIR FORCE BASE
REPUBLIC OF PANAMA
(Respondent)

and

UNLICENSED DIVISION OF DISTRICT NO. 1
MEBA/NMU (Union/Charging Party)

DA-CA-20395

_____

DECISION AND ORDER

February 26, 1999

_____

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

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 Respondent, and cross-exceptions filed by the Charging Party. The General Counsel filed an opposition to the Respondent's exceptions. The Charging Party also filed an opposition to Respondent's exceptions, and the Respondent filed a response to Charging Party's cross-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 notifying the Charging Party (the Union) in July, 1991 that it was changing the application of the grievance procedure as to non-preference eligible excepted service employees (NEES employees) and would no longer permit NEES employees to use the negotiated grievance procedure in the parties' collective bargaining agreement (CBA). The complaint alleges that the Respondent violated section 7116(a)(1) and (5) by such notice; by repudiating the CBA; and by implementing the change in the grievance rights without giving the Union the opportunity to bargain over the substance or the impact and implementation of the change.

      The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally terminating the negotiated grievance procedure as it applied to NEES employees who are citizens of the United States (hereinafter "citizen employees"). However, the Judge dismissed the allegation that Respondent violated the Statute by unilaterally terminating the grievance procedure as to NEES employees who are not citizens of the United States (hereinafter "noncitizen employees"). In addition, the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of a change in conditions of employment as to noncitizen employees.

      Upon consideration of the Judge's decision and the entire record, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by terminating the negotiated grievance procedure as to both its citizen and noncitizen NEES employees, thereby repudiating its CBA with the Charging Party in both respects. We therefore adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II.     Background

A.     Facts

      The facts are fully set forth in the attached Judge's decision. The employees whose interests are involved in this case are classified under federal personnel law as non-preference eligible excepted service employees, or NEES employees. The "non-preference eligible" designation refers to employees without veterans preference. Some of these employees are noncitizens of the United States. All are assigned to the Respondent's facility in the Republic of Panama, and thus occupy positions outside of the United States.

      A collective bargaining agreement between the parties, negotiated in 1983, has been in effect at all relevant times. The agreement contains a negotiated grievance procedure which is the "sole procedure available to unit employees, the Union, and management for resolving complaints or resolving grievances concerning the interpretation or application" of the agreement. CBA, Article XXIV, Section 1. GC Exh. 2. The agreement provides further that if a dispute is not resolved within the grievance process, "the Union or Management may refer the matter to arbitration." Id. at Section 7(d). Pertinent sections of the agreement are reproduced in the attached Appendix A.

      The Respondent removed from employment unit employee Cleovis Madrid, an NEES noncitizen employee. [n1]  In December 1989 or January 1990, the Union filed a grievance over the removal, and ultimately invoked arbitration. The parties selected an arbitrator on February 19, 1991. [n2]  [ v55 p274 ]

      Prior to the scheduled arbitration, in June or July 1991, the Respondent became aware of two Authority decisions. According to the Respondent's interpretation, those decisions held that NEES employees would not be able to contest adverse actions taken pursuant to 5 U.S.C. § 7512 under a negotiated grievance procedure. [n3]  As a result, by letter dated July 12, Respondent advised the Union that, because of its view of the holdings of those decisions, it would no longer comply with the negotiated grievance and arbitration procedure as it related to all NEES employees. It stated that it therefore considered the Madrid grievance closed, and that it would take no further action with respect to the arbitration of that matter. According to credited testimony, the letter was not delivered to the Union until July 26.

      On July 26, Union representatives met with the Respondent, which declined to bargain over the impact of this change in management policy concerning coverage of NEES employees under the negotiated grievance procedure. However, the Respondent's representative agreed to check with the Agency's legal officer and get back to the Union in a few days.

      On July 31, the Respondent confirmed, in a telephone call to the Union, that its position was unchanged and stated that it considered the matter closed.

      Respondent advised the arbitrator by letter dated September 6 that the Madrid case was closed, and that it would not participate in the arbitration "unless directed by the Federal Labor Relations Authority." Judge's decision at 5.

      The effect of the Respondent's position, first expressed in the letter of July 12, 1991, was that all NEES employees in the bargaining unit, including both citizens and noncitizens of the United States, no longer could grieve adverse actions or performance based actions through the negotiated grievance procedure.

B.     Judge's Decision

1.     Timeliness of the Charge

      The Judge found that the charge was timely filed. Based explicitly on credibility resolutions, he found that the Respondent notified the Union of the change on July 26. He also found that it was not until the telephone call by the Respondent on July 31 that the Respondent notified the Union that it was "actually going to carry through on its `intent' to eliminate, unilaterally, the grievance/arbitration procedures for the non-preference eligible excepted service employees." Judge's decision at 8. Therefore, the Judge concluded that "it was not until July 31, 1991, that the basis of the charge ripened." Id. Without otherwise indicating whether he considered that the unfair labor practice occurred on July 26 or July 31, 1991, the Judge found that the charge, dated January 16, 1992, and received by the Authority's regional office on January 21, 1992, was filed within six months of the occurrence of the alleged unfair labor practice and was timely, citing section 7118(a)(4)(A).

2.     Repudiation by Terminating Grievance Procedure As To NEES Employees

      The Judge stated that "not every breach of contract is necessarily a violation of the Statute, but that the repudiation of an agreement does violate the Statute," quoting Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1218 (1991) (Warner Robins). Judge's decision at 8. In Warner Robins, according to the Judge, the refusal to assign the union's designated negotiator to the day shift, admittedly a breach of the parties' ground rules agreement, was a violation of the Statute because the refusal "went to the heart of the agreement and the collective bargaining relationship itself and, therefore, amounted to a repudiation of the obligation imposed by the agreement's terms." Judge's decision at 9, quoting from Warner Robins, 40 FLRA at 1218.

      The Judge found that termination of the grievance/arbitration procedure as it applied to NEES employees was consistent with law and regulations as it applied to Madrid and other noncitizens who occupy positions outside the United States, and he concluded, therefore, that the termination as to the noncitizen employees was not an unlawful repudiation of the agreement. He based this conclusion on his finding that these employees are expressly excluded from coverage under 5 U.S.C. § 7512 by the Civil Service Due Process Amendments of 1990 (Due Process Amendments, or Amendments). [n4]  [ v55 p275 ]

      The General Counsel and the Charging Party had argued before the Judge that provisions of the Panama Canal Act of 1979 require that U.S. governmental agencies treat citizen and noncitizen civilian employees in a nondiscriminatory fashion with regard to employment standards and wages, and that the negotiated grievance procedure is one of those standards. However, the Judge found that this argument "cannot prevail over the specific provisions of" the Amendments, citing 5 U.S.C. § 5102(c)(11) and 7511(b)(9). Id. at 9. In support, he cited Panama Canal Commission, Balboa, Republic of Panama, 43 FLRA 1483 (1992) (Panama Canal Commission II), in which he stated that a similar argument was made. [n5]  Thus, the Judge found that termination of the negotiated grievance/arbitration procedure as to noncitizen NEES employees was not a repudiation of the CBA, but was required by law.

      However, the Judge found that NEES employees in the unit who are U.S. citizens are entitled to use the negotiated grievance/arbitration procedure as a result of the Due Process Amendments, which extend to them the statutory protections and rights provided to employees in the competitive service for appealing adverse actions. As a result, he found that the termination of the negotiated procedure as it applied to NEES employees in the unit who are U.S. citizens was not consistent with law and regulation. The Judge found that the termination of the negotiated grievance/arbitration procedure as to the Respondent's NEES employees who are U.S. citizens violated the Statute because it constituted more than a mere breach, and, as in Warner Robins, "went to the heart of the agreement[.]" Judge's decision at 9, quoting 40 FLRA at 1220. In particular, he found that unilateral termination of the negotiated grievance/arbitration procedure as regards NEES employees in the unit who are U.S. citizens was a repudiation of the obligations imposed by the terms of the collective bargaining agreement in violation of section 7116(a)(1) and (5).

3.     Duty to Bargain

      The Judge stated that when management discovers an unlawful practice, which it must correct, there is nonetheless a duty to give notice and bargain over the impact of the change, and, where possible, over its implementation. Therefore, he found a violation of section 7116(a)(1) and (5) for refusing to bargain over the impact and implementation of the change as regards noncitizen NEES employees of the Respondent.

      The Judge rejected the Respondent's assertion that the Charging Party had waived its right to file the unfair labor practice (ULP) charge in this case by agreeing to Article III, Section 4 of the CBA, which states that disputes arising "from the failure of the parties to comply with the provisions of this article shall be processed utilizing the negotiated Grievance procedure." Quoted in Judge's decision at 11. The Judge interpreted this provision pursuant to Department of Health and Human Services, Social Security Administration, 47 FLRA 1206, 1211 (1993). The Judge noted that Article III of the agreement "created a contractual right to `meet and confer,' . . . set forth matters appropriate for such `consultation and negotiation,' and . . . stated that the `right to meet and confer will be governed by the . . . Statute.'" Judge's decision at 10. Further, the Judge noted that Article III, section 4 provides that "disputes arising `from the failure of the parties to comply with the provisions of this article shall be processed utilizing the negotiated Grievance procedure.'" Id. at 11.

      The Judge found that these provisions, and their bargaining history, create a contractual right separate from the Union's statutory right to negotiate over changes in conditions of employment. In this connection, he found that "[t]here is no express waiver of the right to utilize the statutory unfair labor practice procedure in the event of a failure to bargain in good faith as [ v55 p276 ] required by the Statute and no indication that the provisions are to supplant the statutory provisions." Id. In further support of the conclusion that there was not a contractual waiver of the statutory right to file a ULP charge, he noted that Article II, Section 1 also provides that "the Union is [not] constrained from challenging any published agency policy, regulation, or interpretation thereof through lawful channels." Id.

      Finally, as to the part of Article III, Section 4, which states that disputes arising "from the failure of the parties to comply with the provisions of this article shall be processed utilizing the negotiated Grievance procedure," the Judge noted that such language, including the word "shall," generally would be interpreted as mandatory. Id. However, the Judge found that this language merely requires that a failure to comply "with the provisions of this article" shall be processed using the negotiated procedure. Id. Here, he found the failure to bargain was a violation of section 7116(a)(1) and (5) of the Statute, regardless of whether the refusal might also constitute a breach of the parties' agreement. In support, the Judge cited American Federation of Government Employees, Local 3937 and U.S. Department of Health and Human Services, Social Security Administration, Region X, Auburn Teleservice Center, Auburn, Washington, 49 FLRA 785, 789-91 (1994), noting that in that case, an arbitrator was not required to resolve a grievance under section 7116--as a ULP--because the parties had framed the issue solely in terms of a contractual, not a statutory, violation.

      Based on the foregoing, the Judge concluded that the Respondent violated the Statute by failing to comply with Articles XXIV and XXV of the CBA when it unilaterally terminated the negotiated grievance procedure as it applied to NEES employees who are U.S. citizens. He also concluded that the Respondent violated the Statute by terminating the grievance rights of NEES noncitizen employees without bargaining on the impact and implementation of the change.

III.     Positions of the Parties

A.     Respondent's Exceptions

1.     Timeliness of Charge

      The Respondent disputes the Judge's finding that the letter notifying the Union that the Respondent would no longer comply with the negotiated grievance and arbitration procedure, dated July 12, 1991, was not delivered to the Union until July 26. It acknowledges that the finding was based on credibility resolutions. See Judge's decision at 4 n.5. However, in arguing that the letter was delivered on the earlier date, the Respondent claims that "a clear preponderance of the evidence demonstrates that the [Judge] was incorrect in crediting [a witness'] testimony that the receipt signature was not hers." Exceptions at 12. While the Respondent recognizes that demeanor is an important factor in credibility resolutions, it claims that the Judge "made no express findings regarding demeanor of the witnesses." Id. at 12 n.6.

2.     Waiver

      First, the Respondent argues that the Union's only statutory rights regarding notice and an opportunity to bargain were exercised when the Union negotiated Article III, section 4, in the 1983 CBA concerning use of the grievance procedure to resolve disputes over bargaining rights. Exceptions at 6. There is no "over-arching, independent statutory right" for the Union to claim concerning bargaining rights, the Respondent asserts. Id.

      But even assuming, arguendo, that such an independent statutory right exists, the Respondent argues that the Judge's interpretation of the agreement, in which he found no waiver, is incorrect. In support, the Respondent analyzes the CBA language and bargaining history, contests the analysis of the Judge, and asserts that the parties by the agreement have waived any right to contest this matter under the ULP provisions of the Statute. Therefore the Respondent argues that the Authority has "no jurisdiction over the merits of this case." Id. at 9.

B.     General Counsel's Opposition to Respondent's Exceptions

1.     Timeliness of Charge

      The General Counsel argues that the Judge's conclusion that the Union received notice on July 26 is based on credibility resolutions. Moreover, even if that evidence is ignored, the Judge found that the charge had "ripened" only after the July 31, 1991 confirmation by the Respondent that it was going ahead with the change, after informing the Union on July 26 that it would check with counsel about the legality of its intended actions. General Counsel's opposition at 2.

      In addition, the General Counsel disputes the Respondent's claim that the credibility resolutions should be reversed. The General Counsel points out that the Judge "stated on page 2 of his decision that his findings of fact were based upon his observation of the witnesses and their demeanor." General Counsel's Opposition at 3. The General Counsel also argues that even if the demeanor of witnesses is ignored, there is [ v55 p277 ] independent evidence that the testimony of the discredited witness is unreliable.

2.     Waiver

      The General Counsel states that the Judge's rejection of the waiver defense was based in part on a credibility determination. The Judge relied on credited testimony of the only witness to testify who actually was present during the negotiations of the CBA, in determining the meaning of the CBA. Therefore, the General Counsel argues, the Judge's conclusion as to the absence of a waiver of statutory rights to resolve bargaining issues is correct.

C.     Charging Party's Cross-Exceptions

      The Charging Party disputes the Judge's conclusion that unit employee Madrid, and other aliens or noncitizens of the U.S. similarly situated, are not entitled to use the negotiated grievance/arbitration procedures.

      The Charging Party asserts that the Judge's interpretation of Panama Canal Commission, on which he based his finding that the Respondent could legally revoke its negotiated grievance procedure as applied to noncitizen Madrid (although a duty to bargain on the impact and implementation of the unilateral change continues), was erroneous. Although agreeing that Panama Canal Commission precluded NEES employees who are employed by the Panama Canal Commission from using the negotiated procedure for adverse actions, the Charging Party asserts that unlike that case, these employees do not work for the Commission, and the Panama Canal Employment System, which applies to certain executive department employees including the citizen and noncitizen NEES employees in this case, is an "other personnel system" as referred to in section 7121(e)(1) of the Statute. [n6]  The Charging Party argues that Panama Canal Commission did not consider whether the Panama Canal Employment System is such an other system. Charging Party's cross-exceptions at 8. It adds that "the holding in that case was limited to employees of the Panama Canal Commission" by the Authority's decision denying reconsideration. Id. The Charging Party notes that this holding was legislatively reversed in November 1993, citing 22 U.S.C. § 3701(a)(3).

      Second, the Charging Party argues that the Panama Canal Act of 1979, which mandates that the U.S. treat civilian employees nondiscriminatorily whether citizens of the U.S. or of Panama, requires that noncitizens of the U.S. have the right to use the negotiated grievance procedure for adverse actions because U.S. citizens have that right. For example, the Charging Party references 22 U.S.C. § 3656 of the Act, which it states requires equal treatment in rates of pay and in employment standards.

      In support of this argument, the Charging Party argues that the provisions of the Panama Canal Act concerning equality of treatment for noncitizens are more specific than the provisions of the 1990 Due Process amendments. According to the Charging Party, the amendments apply to all noncitizen, overseas employees of the federal government, while the Panama Canal Act deals specifically with U.S. employees in Panama. Arguing that the Authority should follow the maxim that "the specific statute should control over the general," the Charging Party contends that

the Authority should recognize that it must construe the statutes so as best to effectuate the Panama Canal Act, as well as trying to construe them so that they are consistent.

Charging Party's cross-exceptions at 9-10.

      This result would be achieved by holding that the unit employees are covered by an "other personnel system" and that the noncitizen employees must receive the same treatment as the U.S. citizens in the unit. Id. at 10. By so finding, the Authority would be finding that both statutes are consistent with the holding that the Air Force cannot unilaterally revoke the contractual grievance/arbitration rights of its Panamanian-citizen employees. To the extent that Panama Canal Commission is inconsistent with this reasoning, the Charging Party asks that it be overruled.

      Third, the Charging Party states that the statutory right to have grievance arbitration provisions in all CBAs pursuant to section 7121(a)(1) "is rendered almost meaningless if the employees involved cannot grieve discharges or other adverse actions, nor have their unions pursue those matters to arbitration." Cross-exceptions at 10. [ v55 p278 ]

      The Charging Party also excepts to the Judge's denial of its objections to certain evidence. The Charging Party had objected to evidence related to certain affirmative defenses raised by the Respondent, because the defenses were not raised in its answer to the complaint. The Union states that under Rule 8(c) of the Federal Rules of Civil Procedure, a defense that an action is barred by a statute of limitations, as well as "any other matter constituting an avoidance or affirmative defense" must be explicitly pleaded in the answer. Cross-exceptions at 2. The Union submits that this rule should be applied to Authority hearings so that parties will have knowledge of the issues and can be prepared to respond.

D.     Agency Response to Cross-Exceptions

      The Respondent contends that the Charging Party's exception to the finding that noncitizens are not entitled to use grievance/arbitration procedures is based on misstatements of case law and statutory law.

      The Respondent notes that the Authority's regulations do not require that affirmative defenses, such as the timeliness issue herein, be raised "at any specific point, so long as they are raised before the ALJ." Response at 7. In support of this contention, the Respondent cites section 2423.23 of the Authority's Regulations, which provides, "[a]ny objection not made before an Administrative Law Judge shall be deemed waived." [n7]  The Respondent contends that since the Regulations do not explicitly require that affirmative defenses be filed with the answer to the complaint, it "has violated no rule, and waived no rights, so long as defenses are raised before the hearing." Id.

E.     Supplemental Briefs

      The Authority directed the parties to submit supplemental briefs with their statements of position on questions set out in Appendix B.

1.     General Counsel's Supplemental Statement Of Position

      The General Counsel's position is that the Due Process Amendments do not have an impact on the definition of "employee" in section 7103(a)(2), and do not exclude the grievant from coverage under the Statute. However, the General Counsel also states that, like employees in Panama Canal Commission, the status of the noncitizen NEES employees employed by the Respondent is identical to the NEES employees before the Amendments. Therefore, the General Counsel does not take issue with the Judge's conclusion that the cancellation of the grievance procedure as to noncitizens of the United States who occupy positions outside the United States did not constitute an unfair labor practice.

2.     Charging Party's Supplemental Statement of Position

      The Charging Party, like the General counsel, contends that the Statute applies to Madrid and that the Due Process Amendments do not affect the definition of "employee" under the Statute. However, the Charging Party asserts that the Respondent violated the Statute by unilaterally terminating the negotiated grievance procedure as it applies to noncitizens, who could be precluded from filing grievances only if they were not covered by another personnel system.

      The Charging Party also contends that the Authority's conclusion that certain employees were precluded from filing grievances under the negotiated grievance procedure in Panama Canal Commission II applies only to employees of the Commission, and that the employees in the instant case, who are not employed by the Panama Canal Commission, are eligible to grieve under the negotiated grievance procedure.

3.     Respondent's Supplemental Statement of Position

      The Respondent asserts that Madrid could file only under the procedures created by the separate personnel system or under the Agency grievance procedure, and not under a negotiated grievance procedure. The Respondent contends that "case law has interpreted the [S]tatute to say that because [noncitizens] are not statutorily defined as employees, they are not entitled to the CBA protections which only apply to employees." Respondent's Statement of Position at 3. [n8] 

IV.     Analysis and Conclusions

A.     Preliminary Issue: The Charge Was Timely Filed

      The issue of timely filing turns on whether the charge, which was received by the Regional Director on January 21, 1992, was filed within six months of the alleged unfair labor practice as required by section 7118(a)(4)(A) of the Statute. [n9]  [ v55 p279 ]

      The Judge determined that the Respondent notified the Union on July 26, 1991, that it no longer intended to honor the negotiated grievance procedure as to NEES employees. The Judge also determined that it was not until July 31, 1991, "that the basis of the charge ripened" when the Respondent notified the Union by telephone that it was actually going to carry through on its "intent" to unilaterally eliminate the grievance procedure for all NEES employees. Judge's decision at 8. We take the Judge's finding to mean that the unfair labor practice occurred on July 31, 1991. We note, however, that the charge received by the Regional Director on January 21, 1992, was timely filed if the time is measured from either July 26 or July 31, 1991.

      The Judge did not credit testimony that the Respondent's letter of notice was delivered to the Union and signed for on July 12, as asserted by the Respondent at the hearing and in its exceptions. Credibility determinations may be based on a number of considerations. [n10]  U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1006 (1998) (Department of Commerce, NOAA) (Member Wasserman concurring in pertinent part). With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify, and accordingly, the Authority attaches great weight to a judge's determinations based on demeanor. We have stated that we will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. U.S. Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 51 FLRA 629 (1995), and cases cited therein.

      On the other hand, the Authority has stated, where considerations other than demeanor are implicated in a credibility determination, the reasons for deferring to the Judge are less compelling. "Therefore," we have stated, "where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, we will review those determinations based on the record as a whole." Department of Commerce, NOAA, 54 FLRA at 1007.

      Here, the Respondent argues that the Judge made no express findings regarding the demeanor of witnesses. To the contrary, the Judge stated that his findings were based on the record, including his observation of the witnesses and their demeanor. Judge's decision at 2. The Judge specifically credited testimony of three Union witnesses that the letter at issue was delivered on July 26, as well as testimony of the Union receptionist who denied that the alleged acknowledgment on the letter was hers. The Judge also stated that the receptionist "credibly explained why" the signature was not hers. Judge's decision at 4 n.4.

      The Respondent also argues that the clear preponderance of the evidence shows that the letter was delivered on July 12, thereby rendering the charge untimely filed. In support of this argument, the Respondent states that it "is simply not believable" that the Respondent would delay delivery of this document without explanation. Respondent's Exceptions at 14. In addition, the Respondent argues, it took the unusual step of delivering a notice to the Union at its office "because of the importance . . . attached to this particular letter." Id. Finally, the Respondent notes that it delivered a similar letter to a union representing another unit at the Base, also dated July 12. These arguments are based on inferences from circumstantial evidence. We have examined the record carefully, and find no basis for reversing the Judge's credibility resolution. We do not find that a clear preponderance of all relevant evidence demonstrates that the Judge's credibility resolution was incorrect.

      We have carefully reviewed the Judge's weighing of the evidence, established facts, inherent probabilities, and reasonable inferences drawn from the record as a [ v55 p280 ] whole, and we adopt his credibility resolution based thereon regarding the timeliness of the filing of the unfair labor practice charge. Accordingly, we reject the Respondent's argument that a clear preponderance of the evidence demonstrates that the Judge erred in crediting testimony that the Union did not receive notice of the Respondent's decision until July 26, 1991, and that the decision "ripened" on July 31, 1991.

      In view of the foregoing, we conclude that the charge was timely filed.

B.     The Parties Did Not Waive Their Statutory Right to File Unfair Labor Practice Charges in the Collective Bargaining Agreement

      We next consider whether the Judge erred in finding that the Respondent and the Charging Party did not waive their right to file ULP charges under the Statute by the provisions of their CBA. The Authority's standard for determining a challenge to a judge's interpretation of the meaning of the parties' agreement is whether the interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts. Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1111 (1993) (IRS). The Authority stated that when a respondent claims that a specific provision of a CBA permitted actions alleged to be an unfair labor practice, the Authority will determine the meaning of the parties' agreement and resolve the ULP complaint accordingly. IRS, 47 FLRA at 1103. Therefore, it is necessary to interpret the provisions of the parties' agreement that are alleged to constitute a waiver in order to resolve the allegations of the ULP complaint.

      The Judge analyzed the express language of the agreement and the bargaining history, and concluded that the CBA does not create an express waiver of the right to use the statutory unfair labor practice procedure in the event of a failure to bargain in good faith as required by the Statute.

      The Respondent urges an interpretation of the CBA to waive the right to file a ULP charge. It claims that Article III, which provides that disputes "shall be processed utilizing the negotiated Grievance procedure," Judge's decision at 11, "was to provide the sum total of all the parties' rights and obligations with respect to notice and bargaining and that it was not the intent of the parties to create some sort of bifurcated remedial system." Respondent's exceptions at 7. The Respondent asserts that the provision in Article II relied on by the Judge, which provides that the Union may challenge any policy, regulation or interpretation through lawful channels, does not support the conclusion that ULP procedures can be used. Instead, the Respondent says that "outside the express terms of the collective bargaining agreement the Union has no other lawful channels." Id. at 8.

      We find that this reasoning would make a nullity of the language of Articles II and III. The Agency's argument leads to the untenable conclusion that even though Article II provides that the parties may challenge policy, regulation or interpretation through "lawful channels," a reference in the plural, there is only one lawful channel available and that is the negotiated grievance procedure. Under that reasoning, the otherwise "lawful channel," filing a ULP charge, would not be available.

      The Respondent's assertion in its Exceptions that the bargaining history supports its contention that the parties intended Article III to provide the sole remedy for unfair labor practices is not persuasive. Article III, entitled "Matters Appropriate For Consultation and Negotiation," provides that disputes arising from the failure of the parties to comply with the provisions of Article III shall be processed utilizing the negotiated grievance procedure. The only support for the Respondent's assertion that Article III makes the negotiated grievance procedure exclusive is based on the Respondent's observation that Article III is similar to a proposal submitted by the Union early in the negotiations of the collective bargaining agreement. The submission of a proposal at an early stage--or any stage--of negotiations merely reflects one step in the ongoing negotiations, and does not establish the final intent of the parties. [n11] 

      Finally, the Respondent's claim that the Judge's analysis "would create a system under which the Union could grieve a dispute over notice and bargaining . . . and file an unfair labor practice charge over the same dispute," ignores the choice required by section 7116(d). Id. at 9-10 (emphasis in original). That section provides that issues which can be raised under a grievance procedure "may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice . . . but not under both procedures."

      Accordingly, we conclude that the CBA does not contain a waiver by the parties of their statutory right to file unfair labor practice charges. [n12]  [ v55 p281 ]

C.     The Respondent's Termination Of the Negotiated Grievance Procedure Violated the Statute

1.     Respondent's Termination of the Negotiated Grievance Procedure As It Related To Its NEES Employees Who Are U.S. Citizens Violated Section 7106(a)(1) and (5) of the Statute

      The Judge found that termination of the negotiated procedure as it related to NEES employees of the Respondent who are U.S. citizens was a repudiation of the agreement, and therefore violated section 7116(a)(1) and (5) of the Statute. The Respondent's only defenses to this aspect of the complaint are based on arguments that the parties waived their right to file charges under the Statute under provisions of the CBA, and that the charge was untimely filed.

      We have found that the parties did not waive their right to file ULP charges under the Statute, and that the charge was timely filed. As there are no exceptions to the Judge's finding on the merits that the Respondent violated the Statute by terminating the negotiated grievance procedure as to its NEES employees who are citizens of the United States, we adopt the Judge's conclusion. [n13] 

2.     Respondent's Termination of the Negotiated Grievance Procedure As It Related to Its NEES Employees Who Are Not U.S. Citizens Violated the Statute  [n14] 

      The Charging Party, in its cross-exceptions, challenges the Judge's conclusion that noncitizen NEES employees who work outside the United States do not have the right to appeal adverse actions under a negotiated grievance procedure. For the reasons below, we find that contract provisions granting such employees the right to appeal adverse actions under the negotiated grievance procedure are not contrary to law. We also find that the Respondent's termination of the negotiated grievance procedure was a repudiation of the collective bargaining agreement. Consequently, the unilateral termination of the negotiated grievance procedure's application to Madrid and the other noncitizen NEES employees of the Respondent violated the Statute.

a.     The Relationship of the Statute and the Due Process Amendments

      Prior to the passage of the Due Process Amendments, no NEES employees had access to negotiated grievance procedures to appeal adverse actions. Panama Canal Commission, 43 FLRA at 1503. The Amendments extended coverage of adverse action appeal rights, and thereby effectively extended equivalent access to the negotiated grievance procedure for adverse action appeals for NEES employees, pursuant to applicable case law. However, there are certain exceptions to the extension of adverse action appeal rights. Section 7511 does not extend coverage of adverse action appeal rights to the employee "who is described in section 5102(c)(11)", which enumerates "aliens or noncitizens of the United States who occupy positions outside the United States[.]

      The NEES employees in the present case--both U.S. citizens and aliens such as Madrid--are employed by the U.S. Air Force, and are within the Panama Canal Employment System. Judge's Decision at 2. It is undisputed that these employees therefore are in an "other personnel system," as referenced in Section 7121(e)(1) of the Statute. This other personnel system is established and described in 22 U.S.C. § 3652 et seq.

      Neither the Due Process Amendments nor our prior decisions refer to employees covered by the Panama Canal Employment System. Our decision in Panama Canal Commission II did not address whether the Commission employees were in the Panama Canal [ v55 p282 ] Employment System, which would qualify them as also being in "an other system." To the extent the holding of that case could be interpreted to mean that employees of an "other personnel system" are precluded from filing grievances under the negotiated procedure, we reject that interpretation, for the reasons below.

b.     The Determination Of the Right To Participate In the Negotiated grievance Procedure Under the Statute

      Congress provided that matters relating to adverse personnel actions that arise under "other personnel systems . . . may, in the discretion of the aggrieved employees, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated procedure, but not both." 5 U.S.C. § 7121(e)(1) (emphasis added).

      "[I]t is a fundamental principle of statutory construction that `effect must be given, if possible, to every word, clause and sentence of a statute.' . . . so that no part will be inoperative or superfluous, void or insignificant." Indianapolis Power and Light Co. v. Interstate Commerce Commission, 687 F.2d 1098, 1101 (7th Cir. 1982), quoting from 2A Sutherland, Statutory Construction, § 46.6. Clearly, if the underlined phrase, "if any," is to be operative, it must indicate that adverse actions that arise under other personnel systems could be raised under a negotiated grievance procedure in cases where there are no appellate procedures that apply to the grievance. Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989), supports this interpretation. The court stated that the inclusion of the words "if any" shows that Congress "contemplated that some of these employees, who fall under specialized personnel systems apart from the main civil service system, would negotiate for grievance procedures although they have no statutory right of appeal." [Citations omitted]." Id. at 1472.

      Based on the foregoing, we conclude that the presence or absence of an appeal procedure does not determine whether Madrid, and other noncitizen NEES employees employed in positions outside the United States, can file a grievance on adverse actions under the negotiated grievance procedure. Accordingly, contract provisions affording these employees access to negotiated grievance procedures to contest adverse actions are lawful whether or not the employees also have access to other appeal procedures.

      Madrid, a noncitizen NEES employee, is employed in an "other personnel system." Accordingly, Madrid and others similarly situated may raise matters relating to adverse personnel actions which arise under another personnel system through appellate procedures, if any (and there are none here), or the negotiated procedure. Therefore, the Respondent's cancellation of the negotiated grievance procedure as it applies to the noncitizen NEES employees was not required by law, and must be analyzed to determine whether it constituted a repudiation of the CBA and was therefore an unfair labor practice. This determination is analyzed by examining (1) the nature and scope of the alleged breach, (i.e., was the breach clear and patent?); and (2) the nature of the provision allegedly breached (did the provision go to the heart of the parties' agreement?). Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858, 862 (1996).

      We conclude that the breach was "clear and patent." The Respondent unilaterally notified the Charging Party that it would no longer comply with the negotiated grievance procedure as it related to NEES employees. [n15]  There is no ambiguity as to the meaning of the agreement term involved. In addition, we find that the negotiated grievance procedure goes to the heart of the parties' agreement. This is self-evident because, among other things, it is required by section 7121 of the Statute to be in every collective bargaining agreement. Consequently, the Respondent's unilateral termination of the negotiated grievance procedure as to its noncitizen NEES employees constituted a repudiation of the CBA, and violated section 7106(a)(1) and (5) of the Statute.

      Moreover, while the Respondent believed that it was unlawful to process a grievance under the negotiated grievance procedure by NEES employees over an adverse action, that contention did not warrant the termination of the grievance procedure for all other grievable matters. Although the Respondent would act at its peril in terminating the grievance procedure over adverse action grievances, it could have sought to alter the scope of the negotiated grievance procedure to eliminate the allegedly unlawful adverse action grievances while continuing to process grievances by its NEES employees over all other grievable matters. [ v55 p283 ]

      In view of our conclusion that the noncitizen NEES employees have a right to participate in the negotiated grievance procedure, we find it unnecessary to address the other grounds asserted to support such a conclusion.

      Similarly, as we have found that the Respondent violated the Statute by its repudiation of the CBA when it unilaterally terminated the negotiated grievance procedure as to the noncitizen NEES employees, it is unnecessary for us to address the exception to the Judge's finding that the Respondent violated the Statute by refusing to bargain over the impact and implementation of that decision.

3.     Rule 8 (c) of the Federal Rules of Civil Procedure, Concerning the Requirement That Certain Defenses Must Be Pleaded In the Answer to the Complaint, Will Not Be Applied To Authority Proceedings

      The Charging Party excepts to certain rulings by the Judge, based on an argument that the Federal Rules of Civil Procedure (FRCP) should apply. However, the Authority has repeatedly stated that it is not bound by the FRCP, see, e.g., U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 252 (1995), because they were "designed to govern the procedure in the United States district courts and do not purport to be applicable in administrative proceedings." Food and Drug Administration, Mid-Atlantic Region, Philadelphia, Pennsylvania, 48 FLRA 884, 888 (1993) (citations omitted). Accordingly, we deny this exception.

VI.     Summary

      In view of the foregoing, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by terminating the negotiated grievance procedure as to both its citizen and noncitizen NEES employees, thereby repudiating its collective bargaining agreement with the Charging Party.

VII.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the 24th Combat Support Group, Howard Air Force Base, Republic of Panama, shall:

      1.     Cease and desist from:

           (a)     Failing and refusing to comply with Articles XXIV and XXV of its collective bargaining agreement with the Unlicensed Division of District No. 1, MEBA/NMU, the exclusive representative of certain of its employees, with respect to the grievances of certain non-preference eligible excepted service employees, including both United States citizens and noncitizens of the United States, to the extent consistent with law and regulation.

           (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)     Comply with Articles XXIV and XXV of its collective bargaining agreement with the Unlicensed Division of District No. 1, MEBA/NMU, the exclusive representative of bargaining unit employees, with respect to the grievances of certain non-preference eligible excepted service employees, including United States citizens and noncitizens of the United States, to the extent consistent with law and regulation.

           (b)     Reinstate any grievances filed, or attempted to be filed, by the Union after July 26, 1991 on behalf of certain non-preference eligible excepted service employees, including United States citizens and noncitizens of the United States, which should have been processed under Articles XXIV and XXV of its collective bargaining agreement consistent with law and regulation.

           (c)     Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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.

           (d)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v55 p284 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the 24th Combat Support Group, Howard Air Force Base, Republic of Panama, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to comply with Articles XXIV and XXV of our collective bargaining agreement with the Unlicensed Division of District No. 1, MEBA/NMU, the exclusive representative of bargaining unit employees, with respect to the grievances of certain non-preference eligible excepted service employees, including both United States citizens and noncitizens of the United States, to the extent consistent with law and regulation.

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

WE WILL comply with Articles XXIV and XXV of our collective bargaining agreement with the Unlicensed Division of District No. 1, MEBA/NMU, the exclusive representative of certain collective bargaining unit employees, with respect to the grievances of certain non-preference eligible excepted service employees, including United States citizens and noncitizens of the United States, to the extent consistent with law and regulation.

WE WILL reinstate any grievances filed, or attempted to be filed, by the Union after July 26, 1991 on behalf of certain non-preference eligible excepted service employees, including United States citizens and noncitizens of the United States, which should have been processed under Articles XXIV and XXVof the collective bargaining agreement consistent with law and regulation.

      ______________________
(Activity)

Dated:__________ By:________________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, Dallas, Texas 75202-1906, and whose telephone number is: (214) 767-4996.


APPENDIX A

      Article II - Provisions of Law and Regulations; Article III - Matters Appropriate for Consultation and Negotiation; and Article XXIV - Negotiated Grievance Procedure, provide, in relevant part, as follows:

ARTICLE II

PROVISIONS OF LAW AND REGULATIONS
Section 1. It is agreed and understood by the Employer and the Union that in the administration of all matters covered by this Agreement, officials and employees are governed by existing and future laws and regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual, as applicable, and published agency policies and regulations. The fact that the Union agrees to published agency policies and regulations in existence at the time the agreement is approved, does not preclude the Union from meeting and conferring, upon request, on any agency policy and regulation, nor is the Union constrained from challenging any published agency policy, regulation, or interpretation thereof through lawful channels.

ARTICLE III

MATTERS APPROPRIATE FOR CONSULTATION AND NEGOTIATION
Section 1. Matters appropriate for consultation and negotiation between the parties are all personnel policies, practices, programs, procedures related to working conditions and/or other matters affecting general working conditions affecting bargaining unit employees which are within the discretion of the Employer.
Section 2. The Employer recognizes that the Union has the right to meet and confer on changes to personnel policies, practices, or procedures which impact upon the working conditions of bargaining unit employees. The right to meet and confer will be governed by the provisions of Title 5, United States Code, Chapter 71, the Federal Service Labor-Management Relations Statute. However, such obligation does not include matters with respect to the mission of the Air Force, its budget, its organization, the number of employees, and the number, types and grades of positions or employees assigned to an organizational unit, work project or tour of duty, the technology of performing its work, or its internal security practices. [ v55 p285 ]
. . . .
Section 4. Disputes arising from the failure of the parties to comply with the provisions of this article shall be processed utilizing the negotiated Grievance Procedure.

ARTICLE XXIV

NEGOTIATED GRIEVANCE PROCEDURE
Section 1. The purpose of this article is to provide a mutually acceptable method of prompt equitable settlement of grievances. It is the sole procedure available to unit employees, the Union, and management for resolving complaints or resolving grievances concerning the interpretation or application of this collective bargaining agreement.
. . . .
Section 7
     d.     Step 4. If the grievance is not satisfactorily settled at Step 3, the Union or Management may refer the matter to arbitration.

APPENDIX B

      The Authority directed the parties to submit supplemental briefs with their statements of position on the following questions:

     1.     The Federal Service Labor-Management Relations Statute (the Statute) excludes aliens or noncitizens of the United States who occupy positions outside the United States from the definition of "employee." 5 U.S.C. 7103(a)(2). Accordingly, the Authority seeks the input of the parties on the following questions:
     a.     What impact, if any, does the definition of "employee" found in 5 U.S.C. 7103(a)(2) have upon the analysis of the issues in this case? Was the grievant precluded from filing a grievance because he is excluded from coverage of the Statute generally?
     b.     What impact, if any, do the Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461, 461-62 (1990), have on the exclusion of aliens and noncitizens who occupy a position outside the United States from the definition of "employee" in 5 U.S.C. 7103(a)(2)?
     2.     It is undisputed that the employees herein, who are within the Panama Canal Employment System, are part of an "other personnel system" within the meaning of section 7121(e)(1) of the Statute.
     The United States Court of Appeals for the District of Columbia Circuit has stated, with regard to employees in "other personnel systems" within the meaning of section 7121(e) of the Statute, that "Congress contemplated that some of these employees, who fall under specialized personnel systems apart from the main civil service system, would negotiate for grievance procedures although they have no statutory right of appeal." Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1472 (D.C. Cir. 1989) (dictum). The court was relying on the wording in section 7121(e) that permits employees in "other personnel systems" to process adverse actions "under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure." (Emphasis added).
     The Authority in Panama Canal Commission, Balboa Republic of Panama, 43 FLRA 1483, 1504 (1992), motion for reconsideration denied, 45 FLRA 1075 (1992) (Panama Canal Commission), concluded that regardless of whether the adverse actions therein arose under title 5 or under an "other personnel system," the employees were precluded from grieving adverse actions through the negotiated grievance procedure.
     a.     In view of the foregoing, are the alien or noncitizen employees in this case eligible to grieve adverse actions under the negotiated grievance procedure?
     b.     What is the impact of the Authority's statement in Panama Canal Commission, cited immediately above, on your position?


File 1: Authority's Decision in 55 FLRA No. 45
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 45 - Authority's Decision

   The Judge stated that the removal was effected pursuant to 5 U.S.C. §7512. Judge's decision at 2, citing Respondent's Ex. 11. As more fully explained below, Madrid is excluded from coverage of chapter 75 by virtue of an exception to the definition of "employee" in that chapter. See 5 U.S.C. § 7511(b)(9).


Footnote # 2 for 55 FLRA No. 45 - Authority's Decision

   Subsequent dates are 1991 unless otherwise indicated.


Footnote # 3 for 55 FLRA No. 45 - Authority's Decision

   The cases the Respondent referred to are NLRB and NLRB Professional Association, 35 FLRA 1116 (1990) (NLRB), and Panama Canal Commission and International Association of Firefighters, Local 13, Balboa, Republic of Panama, 35 FLRA 1140 (1990) (Panama Canal Commission).


Footnote # 4 for 55 FLRA No. 45 - Authority's Decision

   The Amendments extend to NEES employees who are U.S. citizens the statutory protections and rights provided to employees in the competitive service for appealing adverse actions.

      The pertinent sections of the Due Process Amendments, found at Pub. L. No. 101-376, 104 Stat. 461 (1990), are as follows:

5 U.S.C. § 7511(a)(1)(C) provides that "employee" means
(C)     an individual in the excepted service (other than a preference eligible)--
(i)     who is not serving under a probationary or trial period under an initial appointment pending conversion to the competitive service; or
(ii)     who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less[.]
5 U.S.C. § 7511(b) provides, in pertinent part,
This subchapter does not apply to an employee--
(8)     whose position is within . . . the Panama Canal Commission . . .[or]
(9)     who is described in section 5102(c)(11)[.]
5 U.S.C. § 5102(c)(11) provides:
(c) this subchapter does not apply to--
     (11)      aliens or noncitizens of the United States who occupy positions outside the United States[.]

Footnote # 5 for 55 FLRA No. 45 - Authority's Decision

   Although not cited by the Judge, the Authority subsequently denied a motion for reconsideration in that case. 45 FLRA 1075 (1992).


Footnote # 6 for 55 FLRA No. 45 - Authority's Decision

   There is no dispute that the Panama Canal Employment System applies to the NEES employees in this case. Under the provisions of 22 U.S.C. § 3652, the head of any Executive agency and the Smithsonian Institution may elect to have the System made applicable in whole or in part to personnel of that agency in the Republic of Panama. In addition, under the Panama Canal Act Amendments of 1997, although the Panama Canal Commission is included within the meaning of the term "agency," § 3652 provides, under subsection (c) that,

The Commission may exclude any employee or position from coverage under any provision of [the Panama Canal Employment System, with certain exceptions not relevant here].

Footnote # 7 for 55 FLRA No. 45 - Authority's Decision

   The Authority revised its unfair labor practice regulations effective October 1, 1997. See 62 Fed. Reg. 46175 (September 2, 1997); 62 Fed. Reg. 40911, 40922 (July 31, 1997). The hearing in this case was held before the effective date of these revisions. Therefore, citation to the regulations pertaining to the conduct of the hearing refer to the regulations applicable prior to October 1, 1997. U.S. Small Business Administration Washington, D.C., 54 FLRA 837 (1998).


Footnote # 8 for 55 FLRA No. 45 - Authority's Decision

   Section 7103(a)(2)(B)(i) of the Statute provides: (a)          For the purpose of this chapter--

(1)     "person" means an individual, labor organization, or agency;
(2)     "employee" means an individual--
. . . .
     (B)     whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority;
but does not include--
     (i)     an alien or noncitizen of the United States who occupies a position outside the United States[.]

Footnote # 9 for 55 FLRA No. 45 - Authority's Decision

   The Authority's Regulations provide that a charge will be deemed to be filed when it is received by the Regional Director. See n.7.


Footnote # 10 for 55 FLRA No. 45 - Authority's Decision

   Such considerations may include, but are not limited to: 1) the witness's opportunity and capacity to observe the event in question; 2) the witness's character as it relates to honesty; 3) prior inconsistent statements by the witness; 4) the witness's bias or lack thereof; 5) the consistency of the witness's testimony with other record evidence; 6) the inherent improbability of the witness's testimony; and 7) the witness's demeanor. Department of Commerce, NOAA, 54 FLRA at 1006 n.11.


Footnote # 11 for 55 FLRA No. 45 - Authority's Decision

   See Judge's decision at 7, for the bargaining history of the 1983 negotiations. Testimony by a Union witness who participated in the negotiation of Article III supported the Union's position that there was no waiver, see Judge's decision at 8.


Footnote # 12 for 55 FLRA No. 45 - Authority's Decision

   The Respondent also contends that the Judge should have considered Article XXIV of the CBA, which it claims "expressly provides the parties' negotiated grievance procedure is the `sole procedure available . . . for resolving complaints or . . . grievances concerning the interpretation or application' of the agreement." Id. However, the Respondent did not raise this argument in its brief to the Judge, although it based its defense on the contention that by other clauses in the collective bargaining agreement the parties waived their right to file unfair labor practice charg