U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado and American Federation of Government Employees, Local 3972

[ v55 p571 ]

55 FLRA No. 99

U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, ROCKY MOUNTAIN AREA
DENVER, COLORADO
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3972
(Charging Party/Union)

DE-CA-50202

______

DECISION AND ORDER

June 30, 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 General Counsel. The Respondent filed an opposition to the General Counsel's exceptions.

      The complaint alleges in relevant part that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute) by unilaterally changing a practice concerning the procedures to be used by a union official in signing in and out of work. The Judge found that the Respondent did not violate the Statute because the disputed past practice was inconsistent with a nationwide collective bargaining agreement, and as a result was not binding.

      Upon consideration of the Judge's decision, the exceptions and the response thereto, and the entire record, we adopt the Judge's findings and conclusions to the extent consistent with this decision. In particular, the Judge found that the local practice at issue in this case allowed the union official to follow different sign in/sign out procedures than those established in the nationwide agreement. The Judge further found that an article of the parties' nationwide agreement prohibits local parties from agreeing to modify the terms of the national agreement. This latter finding was not excepted to, and we therefore adopt it without precedential significance. Accordingly, the Respondent was not obligated to bargain on the termination of the unauthorized practice, and we therefore adopt the Judge's recommendation that the complaint be dismissed.

II.     Background

A.     Facts

      The facts are set forth in detail in the Judge's decision, and are briefly summarized here.

In 1990 the Department of Housing and Urban Development National Office (HUD) and the American Federation of Government Employees (AFGE) negotiated a nationwide collective bargaining agreement (agreement). Article 17 of the agreement, regarding duty hours and work time accounting, [n1] requires all bargaining unit employees to sign in and out of work sequentially every day on the same form. [n2]  Article 34 of the agreement states that "any [local] supplements to this Agreement shall not delete, modify, or otherwise nullify any provision . . . in this Agreement; nor . . . conflict with . . . any provision of this Agreement . . . ." Judge's Decision at p. 3. [n3] 

      The Union official (Local President) at issue in this case is the President of AFGE Local 3972 (Union), located at the HUD Denver, Colorado Office (HUD Denver). AFGE Local 3972 is the local agent for AFGE in administering the nationwide collective bargaining agreement at HUD Denver. [ v55 p572 ]

      The Local President signed in and out sequentially as required by Article 17 until February 1994, when HUD Denver began a reorganization. To facilitate the reorganization, the Local President began to perform union work for 100 percent of his work time. In connection with this change, his supervisor allowed the Local President to leave a phone number where he could be reached, in lieu of signing in and out sequentially. This deviation by the Local President from the requirements of Article 34 of the agreement continued until the Local President began in December 1994 reporting to another supervisor. On January 3, 1995, this new supervisor instructed the Local President to sign in and out sequentially. The Union requested bargaining over the subject. The supervisor refused, asserting that the nationwide collective bargaining agreement did not allow for arrangements in conflict with the agreement. The Local President complied with his supervisor's order to sign in and out, but did not do so sequentially.

      HUD's Acting Deputy Director for Human Resources (ADD) in Washington, D.C., who has responsibility for interpreting and applying the national agreement, learned of the Local President's sign in/sign out practices in February 1995. The ADD immediately took action to eliminate those practices. First, the ADD held a conference call among the Local President, the supervisor, and the ADD, during which the ADD stated that she would not tolerate any arrangements that contradicted the agreement. She ordered the parties to reach agreement within 2 weeks on having the Local President signing in and out under Article 17 procedures. When such agreement was not reached after 2 weeks, the ADD again stated that HUD Denver had no authority to allow any deviation from the national agreement, and directed the Local President to sign in and out sequentially. Soon thereafter, the Local President began to sign in and out sequentially, and the Union filed an unfair labor practice charge. [n4] 

      The General Counsel issued a complaint alleging that the Respondent unilaterally changed the practice of not requiring the Local President to sign in and out sequentially, and that the change was implemented without notice to or bargaining with the Union in violation of section 7116(a)(1) and (5) of the Statute.

B.     Judge's Decision

      The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by requiring the Local President to comply with Article 17, or by refusing to bargain. As relevant to our disposition of this case, the Judge interpreted Article 17 of the parties' agreement as requiring that the Local President sign in and out sequentially. The Judge noted that Article 17 expressly applied to "all employees." Id. at 10. The Judge found that because Article 17 provided no express exceptions to signing in and out sequentially, it would be erroneous to create an exception where no others existed. The Judge therefore found that the Local President's arrangement contradicted Article 17. The Judge went on to find that under Article 34 of the nationwide agreement, AFGE and HUD "specifically prohibited any local parties from agreeing to modify the terms of the national agreement" by means of a local supplemental agreement. Id. Thus, the Judge found that the sign in/sign out practice initiated by HUD Denver and the Union for the Local President "specifically conflicted" with Article 17 of the agreement, and in the absence of their knowledge and acquiescence, could not constitute a past practice binding upon HUD and AFGE. Id.

      In conclusion, the Judge found that the Respondent did not commit ULPs by unilaterally changing a past practice, and therefore dismissed the complaint. [n5]  [ v55 p573 ]

III.     Positions of the Parties

A.     General Counsel's Exception

      The General Counsel contends that the Judge incorrectly interpreted Article 17 because he did not give controlling weight to the parties' intent. The General Counsel argues that when an agreement is interpreted, the parties' intent at the time the contract was drafted must be ascertained. Had the Judge done so here, the General Counsel claims, he would have found an exception to the general rule in Article 17 of sequential signing in and out.

      Specifically, the General Counsel notes that a member of AFGE's bargaining team on the national agreement was a local union president who served in that capacity for 100% of his official work time and who did not have to sign in and out sequentially. The General Counsel argues that it is "completely implausible" that this official would have negotiated a nationwide agreement that did not allow for exceptions, such as his own "side bar" agreement with local management, to Article 17. Exceptions at 6. The General Counsel notes the existence of a second 100% official time union officer who also had an exception to Article 17 as evidence that the parties intended to allow exceptions.

      As for the ADD's testimony regarding interpretation of the agreement, the General Counsel argues that her testimony is of no relevance because the ADD did not work for HUD at the time of agreement negotiations, and thus has no direct knowledge of the contracting parties' intentions.

      The General Counsel does not except to the Judge's interpretation of Article 34 of the nationwide agreement as barring any local arrangements that contradict the agreement. Instead, the General Counsel states that Article 34 is inapplicable because there is no conflict between the past practice alleged and Article 17 of the agreement.

B.     Respondent's Opposition

      The Respondent contends that the Judge properly interpreted Article 17. The Respondent argues that while a Judge may use a variety of sources to help interpret an article, such sources are unnecessary here because Article 17's "plain and unambiguous" language requires all employees to sign in and out sequentially. Opposition at 3. In particular, the Respondent argues that where an article is ambiguous, the parties' bargaining history can be helpful in interpreting the article, but because Article 17 is unambiguous, use of the parties' bargaining history is unnecessary.

      Arguing in the alternative, the Respondent contends that if the Authority examines the parties' bargaining history, the Authority should ignore the General Counsel's reference to the "side-bar" agreement with local management concerning sign in/sign out procedures of one of the AFGE negotiators. The Respondent argues that the record does not include negotiators' testimony, bargaining proposals, or notes regarding any intended exception to the sign in/sign out article. In conclusion, the Respondent argues "there is simply no reliable evidence of bargaining history before the Authority to alter the plain meaning of Article 17[.]" Id. at 5. Moreover, as to past practice, the Respondent states that during the years the nationwide agreement was in effect, only the two deviations from the terms of Article 17 cited by the General Counsel, both of short duration, were found. This, Respondent claims, is insufficient to establish the kind of practice that can be used in interpreting an allegedly ambiguous agreement provision.

      Further, the Respondent notes the General Counsel's failure to contest the Judge's interpretation of Article 34, and asserts that the Judge properly applied that Article in finding that a local past practice that is contrary to a provision of the nationwide agreement cannot prevail over the agreement provision.

IV.     Analysis and Conclusions

A.     The Judge's Interpretation of Article 34 of the Nationwide Agreement is Adopted Without Precedential Significance

      The Judge interpreted Article 34 of the nationwide agreement as prohibiting local parties from agreeing to modify the terms of the agreement by means of, among other things, a practice such as the one at issue in this case. As previously mentioned, the General Counsel did not file an exception to the Judge's interpretation and application of Article 34. Accordingly, that finding is adopted without precedential significance under section 2423.41 of the Authority's regulations. U.S. Penitentiary, Florence, Colorado, 54 FLRA 30, n.* (April 21, 1998).

B.     The Judge Correctly Interpreted the Nationwide Agreement as Requiring Union Officials on 100% Official Time to Observe the Same Sign In/Sign Out Procedures as Other Unit Employees

      In Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), the Authority described the standards it will use in reviewing a Judge's interpretation and application of specific terms of an agreement: [ v55 p574 ]

In cases where the judge's interpretation of the meaning of the parties' collective bargaining agreement is challenged on exceptions, the Authority will determine whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the Federal courts.

Id. at 1111. For the following reasons, we conclude that the General Counsel has failed to establish that under these standards the Judge's interpretation of Article 17 is erroneous.

      The Judge found that the plain language of Article 17 supports the conclusion that the Local President must sign in and out sequentially. We agree that the plain language supports the Judge's conclusion that Article 17 applies to the Local President, as it requires all employees, without exception, to sign in and out sequentially. The General Counsel offers only the circumstances of one of the AFGE negotiators, i.e., a local union president having a "side bar" agreement with his local management allowing special sign in/sign out procedures, and a second union representative on 100% official time, as proof of the parties' intent in negotiating the nationwide agreement. This is an insufficient basis on which to reject the Judge's interpretation of the article. The evidence relied on by the General Counsel falls short of, for example, rejected proposals and minutes of bargaining sessions. Elkouri & Elkouri, How Arbitration Works 502-03 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997).

      The General Counsel cites two cases in support of the argument that the Judge misinterpreted the article. Those cases are distinguishable. First, the General Counsel cites IRS for the proposition that the parties' intent must be given controlling weight. IRS lists several criteria for determining the parties' intent, including using extrinsic evidence together with the language of the article itself and inferences drawn from the agreement as a whole. See IRS at 1110. Here, the Judge relied on the language of the article itself and inferences from the agreement as a whole--that is, the fact that Article 17 required everyone to sign in and out sequentially without providing any exceptions--more than the unwritten and disputed bargaining history of the parties. The General Counsel does not establish that the Judge acted contrary to the principles set out in IRS in so ruling, especially in light of his holding that the language of the Article 17 is clear and unambiguous. Thus, the Judge's interpretation is consistent with IRS.

      The other case relied on by the General Counsel, Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16 (1996) (VAMC), is also distinguishable. It is cited for the proposition that evidence of a practice under the agreement, including a local practice occurring within a larger bargaining unit, is probative of the parties' intent when they negotiated the agreement. See id. at 25-26. However, in VAMC, the practice at issue was engaged in by, or known to, the parties who negotiated the agreement in question, and the practice was not directly contrary to the express terms of the agreement. In the instant case, in contrast, it is undisputed that the level of the agency that negotiated the agreement was unaware that a contrary practice was being used at the local level. And, as we concluded above, the local practice at issue is contrary to the express terms of the agreement. Accordingly, VAMC does not provide support for using an unconsented-to local practice, at variance with a provision of a nationwide agreement, as a means for interpreting the national agreement provision.

      Thus, we conclude, in agreement with the Judge, that AFGE and HUD in Article 34 prohibited local parties from agreeing to modify the terms of the nationwide agreement, and that HUD Denver officials engaged in a practice contrary to the terms of Article 17 of that agreement. Accordingly, there is no basis for finding that HUD Denver committed a ULP when it insisted on returning without bargaining to the practice mandated by Article 17.

V.     Order

      The complaint is dismissed.


File 1: Authority's Decision in 55 FLRA No. 99
File 2: Appendix F
File 3: ALJ's Decision


Footnote # 1 for 55 FLRA No. 99 - Authority's Decision

   Article 17 states in pertinent part:

Section 17.01 - Introduction. All employees are covered by this program and shall be governed by the provisions set forth in this Article.

. . . .

Section 17.05 - Timekeeping

(1)     Employees shall, on a daily basis, use the Attendance Record Sheet in Appendix F (hereinafter referred to as the sign in/sign out register) to record their arrival and departure times. This form cannot be modified at the local level.

(2)     Employees shall sign in immediately prior to beginning work. They shall sign out immediately upon completion of their workday. All sign in and sign out shall be sequential.

. . . .

Section 17.06 - Employee Responsibilities

. . . .

(2)     Each employee shall be responsible for recording and certifying his/her arrival and departure times each day on the sign in/ sign out register referred to in Section 17.05(1).

Judge's Decision at 3-4.


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