U.S. Customs Service, Customs Management Center, Miami, Florida (Respondent) and National Treasury Employees Union, Chapter 137 (Charging Party)
[ v56 p809 ]
56 FLRA No. 136
U.S. CUSTOMS SERVICE
CUSTOMS MANAGEMENT CENTER
NATIONAL TREASURY EMPLOYEES UNION
DECISION AND ORDER
September 29, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
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 Charging Party and by the Respondent. [n1] The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally changed a past practice of granting administrative leave to bargaining unit employees to attend and participate in the Florida Law Enforcement Games (Florida Games or the Games). The Judge concluded that the Respondent had violated the Statute as alleged.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with our decision.
II. Background and Judge's Decision
The Florida Games are held annually in different cities in Florida and consist of competitions in various sports. The participants include employees from Federal, State and local law enforcement organizations.
Since at least 1990, both management officials and bargaining unit employees of the Respondent participated in the Florida Games. Participants were granted administrative leave to participate in the Games, but were responsible for paying their own entry fees and travel expenses. Bargaining unit employees submitted leave requests to their supervisors a few weeks before the Games and requests were routinely approved. Typically, employees were given 40 hours administrative leave to participate. However, some time before 1998, the Respondent did limit the use of administrative leave to the time spent in the competition plus travel time. [n2]
In early 1998, when Respondent was part of a narcotics interdiction effort along the southern tier of the United States, one of Respondent's managers became alarmed that participation in the Games would adversely impact adequate staffing. The manager requested advice regarding his concern and was notified by the Coordinator for the Customs Health Enhancement Program (CHEP) that the CHEP had decided to participate in only one competition--the World Police and Fire Games (the World Games). The manager did not make further inquiries, believing that the message indicated that the Respondent was to discontinue participation in the Florida Games. The manager informed Respondent's director of the information. The director asked whether she had authority to approve the participation. After some research, the manager informed the director that such authority had not been delegated to her position. The manager advised the Respondent's Labor Relations Specialist to notify the Charging Party of the new policy. The Respondent also asked its port directors to notify employees of the new policy at staff meetings.
The Respondent's chief negotiator during the national contract negotiations advised the labor relations specialist that there was no obligation to negotiate locally regarding the change in policy because this subject was covered by the national agreement. When the Charging Party learned of the policy change, it requested negotiation over the change in policy and continuation of the past practice until bargaining was completed. The Respondent replied that there was no local bargaining obligation and repeated that it could not [ v56 p810 ] authorize administrative leave for participation in the Games.
During the period in which administrative leave had been granted to employees to attend the Florida Games, the parties at the national level had negotiated collective bargaining agreements in 1991 and 1996. Both agreements included articles addressing the granting of administrative leave for specific purposes and, in some cases, under certain circumstances. Neither agreement specified the use of administrative leave for attendance at or participation in law enforcement recreational events, or athletic competitions at any level. Article 13, Section 32.C of the 1996 agreement, however, provided up to 3 hours per week for employees to participate in an Agency-approved fitness program. [n3] Recreational sports were not authorized and competitive sports were not to be a substitute for an individual exercise program. [n4]
Article 13, Section 36 of the parties' agreement also provided that administrative leave of less than 1 hour may be granted when an employee provides the supervisor with an acceptable explanation for the absence. The parties' 1996 agreement also stated, in Article 2, Section 3 that this agreement superceded all previous agreements and past practices in conflict with it. The subject of using administrative leave to attend statewide law enforcement games, such as the Florida Games, was not discussed during the agreement negotiations.
B. Judge's Decision
The Judge found that the existence of a past practice of granting administrative leave to attend the Florida Games "is all but formally acknowledged here." Judge's Decision at 12. The Judge also found, contrary to the Respondent's assertions, that the practice demonstrated in the record permitted the Respondent to limit the number of employees released to accommodate the workload during the period for which leave was requested and to limit the time to actual participation plus travel time.
The Judge further found that the practice, as defined above, was a condition of employment that the Respondent changed without bargaining. The Judge stated that because the Respondent made no claim for the application of section 7106(a) of the Statute, it may be precluded from arguing that any bargaining obligation must be limited to impact and implementation bargaining. Even so, the Judge noted that the Respondent's discretion regarding whether to grant administrative leave would be substantially equivalent to the discretion it now exercises with respect to the granting of annual leave to attend the Florida Games. The Judge concluded that a practice, pursuant to which an agency retains such discretion, does not directly interfere with the right to assign work and is fully negotiable.
The Judge found unavailing the Respondent's argument that it lacked delegated authority to approve use of administrative leave to attend and participate in the Florida Games. According to the Judge, an agency has discretion to withhold or withdraw a component's authority to take certain action. The component's use of undelegated authority does not make the allegedly improper exercise of that authority unlawful, even though it conflicts with the agency's own internal regulations. The Judge concluded that this limitation on approval authority does not affect the duty to bargain over any resulting changes in terms and conditions of employment.
The Judge found that the only assertion made by the Respondent regarding whether it could lawfully grant administrative leave for the Florida Games was its reference, in its Motion for Summary Judgment, to decisions of the Comptroller General. However, the Respondent did not expressly renew at the post-hearing stage any contention that it could not lawfully permit such leave. Also, the Judge found that when it discontinued the past practice, the Respondent gave no indication to the Charging Party that it believed that the Respondent lacked the authority to permit such use of administrative leave. Additionally, the Judge found that the Respondent continues to authorize use of administrative leave for participation in the World Games, apparently under substantially the same conditions as had been applicable to the Florida Games. In view of this, the Judge resolved the ambiguity in the Respondent's position in favor of a de facto abandonment of any reliance on the Comptroller General's decisions or on any other external restriction on the authority to grant the leave at issue. The Judge concluded that the past practice had not been rendered unlawful for the purposes [ v56 p811 ] of affecting the Respondent's bargaining obligation.
Before the Judge, the Respondent also argued that the matter was covered by the parties' national agreement and, therefore, there was no obligation to bargain regarding the change in past practice. The Judge reviewed the Authority's "covered by" doctrine as set forth in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA) and as recently summarized in Department of the Treasury, United States Customs Service, El Paso, Texas and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, 55 FLRA 43, 46 (1998) (Customs Service El Paso). The Judge stated that in Customs Service El Paso, the Authority referred to the third prong of the test as an inquiry that it would make only in those cases where it is difficult to determine whether the matter sought to be bargained is, in fact, an aspect of matters already negotiated. The Judge concluded that the weight of authority is on the side of proceeding to the third step only when, after the first two steps, it is difficult to determine whether or not the subject matter is an aspect of matters already negotiated or is otherwise foreclosed. See Judge's Decision at 16.
In applying the "covered by" doctrine, the Judge found that the parties' agreement contains no reference to the granting of leave for attendance or participation in the Florida Games. Thus, according to the Judge, the express language of the agreement cannot be said to encompass the matter in dispute. The Judge also found unconvincing the Respondent's claim that the matter is inseparably bound up with Article 13, Section 32.C dealing with participation in the CHEP fitness program. The Judge found that while Article 13 is extensive, this alone does not indicate that it was intended to be so comprehensive as to include the past practice regarding participation in the Florida Games.
Although not inclined to search outside the language of the agreement, given the Authority's recent decision in Customs Service El Paso, the Judge determined that he should look to the third prong. The Judge found that the parties did not discuss the Florida Games during negotiations. The Judge further found that the parties left such matters to Article 2, Section 3, dealing with local practices. The Judge concluded that the practice of granting administrative leave to participate in the Florida Games, subject to workload considerations, was not the subject of the parties' bargaining. Therefore, the Judge concluded that it was not covered by the resulting collective bargaining agreement.
In sum, the Judge found that the Respondent's unilateral change of that condition of employment violated sections 7116(a)(1) and (5) of the Statute. As a remedy, the Judge ordered a status quo ante remedy. The Judge ordered the Respondent to rescind the changes in failure to grant leave, to notify and, upon request, bargain with the Charging Party concerning any proposed change to the practice of granting administrative leave for the Florida games, to restore annual leave to all employees who were required to take annual leave when they participated in the Florida Games, and finally to post a notice.
III. Positions of the Parties
A. Charging Party
1. The "Covered by" Doctrine
The Charging Party excepts to that part of the Judge's analysis which he based on the Authority's holding in Customs Service El Paso. According to the Charging Party, in that case the Authority stated that an inquiry must be made in every case into extrinsic evidence such as bargaining history where an agency alleges that it has no duty to bargain over changes in terms and conditions of employment because the matter is "covered by" an existing collective bargaining agreement.
The Charging Party asserts that to the extent the Judge applied the Authority's recent restatement of the "covered by" doctrine as enunciated in Customs Service El Paso, the Authority should reject that analysis in this case and in all future cases. The Charging Party argues that if the matter sought to be bargained is not expressly contained in the collective bargaining agreement or not inseparably bound up with the agreement, the Authority should not examine extrinsic evidence in any case to determine whether or not the matter to be bargained is "covered by," the agreement, thus precluding bargaining. The Charging Party submits in situations such as presented here it is error to apply the third part of the "covered by" test when it is clear from the record that the matter is not expressly contained in the agreement nor inseparably bound up with the subject expressly covered by the agreement.
The Charging Party asserts that because the Statute vigorously encourages collective bargaining the presumption must be that the matter is not "covered by" the agreement, not the other way around. The Charging Party maintains that if the parties see fit not to incorporate the matter expressly into their agreement nor inseparably bind it to other express language in the agreement, the Authority should not under any circumstances [ v56 p812 ] conclude that the matter is "covered by" the agreement.
According to the Charging Party, bargaining history evidence is only appropriate in ascertaining the ambiguous meaning of particular contract language and it is not relevant or dispositive in examining a matter not contained in the agreement in the first place. Specifically, the Charging Party also holds that it is necessary to proceed to the third step and examine extrinsic evidence only when it is difficult to determine whether the matter is an aspect of matters already negotiated. Finally, the Charging Party would go further, and suggests that "extrinsic evidence should never be considered." Charging Party's Exceptions at 6.
1. The "Covered by" Doctrine
The Respondent did not except to this issue.
2. Application of the "Covered by" Doctrine
The Respondent argues that the Authority has held that, if a matter is contained in or covered by a collective bargaining agreement, an agency may act unilaterally without providing any reason for so doing. The Respondent contends that the "covered by" defense is applicable here because the matter in issue was covered by the parties' national agreement. According to the Respondent, a matter could be viewed as being covered by a contract if any aspect of the general topic which involves that matter is addressed in the contract. The Respondent also asserts that if a matter is inseparably bound up with or commonly considered to be an aspect of the matter set forth in the provision, the negotiations will be presumed to have foreclosed further bargaining on the matter.
The Respondent asserts that "[b]oth leave and fitness were extensively negotiated in the last contract" and that the parties' national agreement covers the matters of administrative leave and fitness, thus the contract must cover the use of administrative leave to attend the Florida Games. Respondent's Exceptions at 7.
The Respondent also argues that the Judge did not find the matter of attendance and participation in the Florida Games covered by the parties agreement because the Judge defined the term "matter" extremely narrowly, i.e., that the specific topic of the Games themselves must have been negotiated. Id. at 8. The Respondent asserts that a broader definition of "matter" is appropriate. The Respondent contends that the Authority should define the matter at issue here as leave or administrative leave, both of which are addressed in detail in the parties' agreement. Therefore, the Respondent argues, the matter of attendance and participation at the Florida Games is "'expressly contained'" in the parties' agreement, and is "'inseparably bound up with'" an aspect of the subject expressly covered by the parties' agreement. Id. at 9 (citing SSA, 47 FLRA at 1018).
3. Violation of the Parties' Agreement
The Respondent asserts as correct the Judge's conclusion that the parties' agreement allows for the continued existence of practices which are not in conflict with the agreement. In this case, however, the Respondent states that the practice is in conflict with the agreement because the negotiators made a very conscious decision to remove the possibility that any granting of administrative leave could be construed as requiring the granting of leave without considering work loads and staffing. [n5] The Respondent argues that the Judge's interpretation of the practice requires or assumes that it provides for managerial discretion in how many people would be allowed to go to the Games, in order for that practice to be consistent with the parties' agreement.
According to the Respondent, the Judge's decision further errs in equating attendance at the World Games with the Florida Games. The Respondent contends that the two are not comparable because permission to attend the World Games was granted by the head of the Agency, and was not based on a local past practice. The Respondent argues that it was erroneous for the Judge's decision to cite the granting of leave by the head of the Agency as an indication that the administrative leave provision was not meant to be exclusive and comprehensive when it came to administrative leave being granted by local authorities.
The Respondent argues that during negotiation of the parties' agreement, it went to great lengths to insert language in several provisions in the administrative leave section which gave supervisors discretion in granting administrative leave subject to staffing needs. The Respondent contends that the practice which is alleged to exist here does not allow for such staffing concerns and is in clear conflict with the parties' agreement. The Respondent further contends that pursuant to [ v56 p813 ] Article 2, Section 3, it was superseded and no bargaining was required.
4. The Statue Quo Ante Remedy
The Respondent points to the Judge's statement that the record was unclear as to what the practice actually was and the difficulty in awarding a status quo ante remedy. According to the Respondent, some Charging Party witnesses testified that any employees who applied would be granted administrative leave to attend and participate in the Games while the Judge concluded that the practice permitted management to limit the numbers of employees taking administrative leave to participate in the Games. The Respondent contends that this discrepancy reveals the impropriety of the status quo ante remedy. The Respondent further asserts that a status quo ante remedy will disrupt Agency operations.
C. General Counsel
1. The "Covered by" Doctrine
The General Counsel did not respond to this exception.
2. Application of the "Covered by" Doctrine
The General Counsel asserts that the Judge properly applied the "covered by" doctrine in his analysis. The General Counsel contends that the Judge correctly concluded that the subject of administrative leave for the Florida Games is not "covered by" or "contained in" the parties' agreement and is not inseparably bound up with administrative leave for the purposes specified in the contract.
The General Counsel contends that the Judge held that Article 2, Section 3 of the parties' agreement manifests an understanding that local practices can coexist with the contract's substantive provisions unless they are actually in conflict. The General Counsel argues that the many specific agreement provision regarding the administrative leave do not preclude the granting of administrative leave at a local level for other reasons, such as the Florida Games.
3. Violation of the Parties' Agreement
The General Counsel argues that the past practice of granting administrative leave to attend the Florida Games was not in conflict with the parties' agreement. According to the General Counsel, the Judge found that the past practice did allow the Respondent to limit the number of employees released on administrative leave to accommodate the work load, and that employees were only entitled to administrative leave for the time in which they participated in the Games plus travel time. Also according to the General Counsel, the Judge properly defined the past practice and concluded that it was not in conflict with any provision of the parties' national agreement.
4. The Statue Quo Ante Remedy
The General Counsel asserts that the evidence in the record was sufficient for the Judge to reach his stated conclusions concerning the past practice. In response to the Respondent's contention that testimony was not dispositive on what the past practice was, the General Counsel argues that the Respondent could have offered additional witnesses, but it did not.
The General Counsel also asserts that although the Respondent claimed that a status quo ante remedy would disrupt Agency operations, the Respondent failed to offer any evidence in support of its position. The General Counsel contends that where management changes a condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances and that the Respondent has not demonstrated any special circumstances here. The General Counsel maintains that the practice of granting administrative leave to bargaining unit employees existed for at least 8 years, and the record does not support a finding that the Respondent could not continue the practice while it fulfilled its bargaining obligation.
IV. Analysis and Conclusions
A. The Restatement of the "Covered by" Doctrine
The Charging Party excepts to the restatement of the Authority's "covered by" test set forth in Customs Service El Paso. Specifically, the Charging Party objects to the use of the third prong of the three-pronged test.
The Authority's current "covered by" doctrine was promulgated in SSA, 47 FLRA at 1018-19. In SSA, the Authority stated that it would resolve claims that a contract provision covers a matter in dispute by determining whether the matter is "expressly contained" in the collective bargaining agreement. SSA, 47 FLRA at 1018. If the provision does not expressly encompass the matter, the Authority stated that it would next determine whether the subject is "'inseparably bound up with . . . a subject expressly covered by the contract.'" Id. (citing C & S Industries, Inc., 158 NLRB 454, 459 (1966)). The Authority further stated that it would examine all record evidence to determine whether the parties reasonably should have contemplated that the agreement would [ v56 p814 ] foreclose further bargaining in such instances. The Authority based its doctrine on precedent developed by the National Labor Relations Board. See, e.g., Triangle PWC, Inc., 231 NLRB 492, 493 (1977) (union demand to bargain on pension levels constituted a "mid" or "in" term attempt to negotiate on a matter covered by the contract, where "[t]he subject was broached but . . . the [u]nion did not pursue the matter, choosing instead to pursue other contract terms"). In subsequent decisions, the doctrine was described as a three-pronged test. See, e.g., Department of Veterans Affairs Medical Center, Denver, Colorado and Veterans Canteen Service, Denver, Colorado, 52 FLRA 16, 23 (1996) (VAMC, Denver); U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 51 FLRA 1274, 1277 (1996) (Justice, INS). The statement of the SSA doctrine in Customs Service El Paso was based on the three-pronged description and, contrary to the Charging Party's contention, was not a new test.
We take this opportunity to clarify that, to the extent that the SSA doctrine as set forth in VAMC, Denver, Justice, INS, and Customs Service El Paso suggests that the "third" or "intent" part of the doctrine is a separate, independent element of the SSA doctrine, it is not. If the agreement provision does not expressly encompass the matter, the Authority moves to the next part of the analysis to determine whether the matter sought to be bargained is an aspect of matters already negotiated. That analysis, of whether the matter sought to be bargained is in fact an aspect of matters already negotiated, will as deemed necessary consider the parties' bargaining history or intent as a requisite component of the examination of all the record evidence. [n6] See SSA, 47 FLRA at 1019. As examination of bargaining history and intent is clearly an aspect of the "covered by" doctrine established by private sector and Authority precedent, we reject the Charging Party's argument that such evidence cannot be considered. However, this part of the SSA doctrine, the "intent" portion of the examination of the record evidence is not a separate, independent criterion. Rather, it is an integral component of that part of the "covered by" analysis to determine whether the matter sought to be bargained is inseparably bound up with and thus is plainly an aspect of a subject covered by the contract.
B. The Matter in Issue Was Not "Covered by" the Parties' National Agreement
Applying the SSA doctrine, as clarified above, to this case, the express language of the parties' agreement does not address attendance and participation in the Florida Games, because attendance and participation at any games, either the World Games or the Florida Games, is not mentioned in the agreement. Moreover, in the circumstances of this case, attendance and participation in the Florida Games is not inseparably bound up with and plainly an aspect of the CHEP program or the other administrative leave provisions set forth in the agreement. The purpose of the CHEP program is different from that of the Florida Games. The CHEP program is an ongoing individualized fitness program taken no more than 3 hours per week. The Florida Games is an annual competitive event whose games are not keyed to an individualized fitness program. In the same vein, the "catch all" administrative leave provision permits supervisors to grant administrative leave for a period of up to 59 minutes to employees who are unavoidably tardy reporting to work. That provision is totally distinct from travel to, attendance at, and participation in the Florida Games.
With regard to consideration of the parties' bargaining history, we have reviewed the Judge's findings concerning the parties' bargaining history and conclude, as did the Judge, that the parties did not contemplate attendance and participation at the Florida Games when the CHEP program and the administrative leave "catch all" provisions were negotiated. Although the employees had attended and participated in the Florida Games before the negotiation of the parties national agreement, it was not the subject of bargaining during renegotiation of the parties' agreement. The Judge's factual finding in this regard is supported by a preponderance of the record evidence. See Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 53 FLRA 1092, 1093 (1998). A review of the record supports the Judge's finding that the disputed matter was not "covered by" the parties' agreement. Accordingly, we deny the Respondent's exception. [ v56 p815 ]
C. The Practice of Granting Employees Administrative Leave to Attend the Games Was Not in Conflict with the Parties' Agreement
The Judge's definition of the past practice regarding granting administrative leave for attendance at and participation in the Florida Games is based on the record evidence. Additionally, the Judge specifically noted several types of administrative leave usage permitted by the Agency, even though such usage was not provided by Article 13 of the agreement. Judge's Decision at 9. Accordingly, the Respondent has not demonstrated how the practice is in conflict with any provision of the parties' agreement because the agreement does not establish an exclusive list of allowable uses of administrative leave. We deny the Respondent's exception.
D. The Judge Did Not Err in Granting Status Quo Ante Relief
The purpose of status quo ante relief is to place parties in the positions that they would have occupied had there been no unlawful conduct. Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1580 (1996). The appropriateness of a status quo ante remedy is determined on a case-by-case basis, balancing the nature of a particular violation against the degree of disruption in government operations that would result from such a remedy. Federal Correctional Institution, 8 FLRA 604, 606 (1982). See also U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 84 (1997).
As the Judge noted, a return to the status quo ante would not prohibit the Respondent from limiting the grant of administrative leave to employees seeking to attend the Florida Games when their absences would unduly impact the staffing level adequate to perform the Respondent's mission. It would merely require the Respondent to reinstitute the practice until the Respondent provides the Charging Party with notice and an opportunity to bargain over the proposed change to the past practice. Moreover, the Respondent has not established any special circumstances to show that a status quo ante remedy is not warranted in this case. For the reasons stated, we adopt the Judge's determination that status quo ante relief was proper.
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Customs Service, Customs Management Center, Miami, Florida, shall:
1. Cease and desist from:
(a) Unilaterally implementing changes to the past practice of granting administrative leave to those bargaining unit employees participating in the Florida Law Enforcement Games (Florida Games) without providing the National Treasury Employees Union, Chapter 137 (Union), the agent for the exclusive representative of these employees, with notice and the opportunity to bargain over the changes.
(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them 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) Rescind the changes to the practice of granting administrative leave to those bargaining unit employees participating in the Florida Games and reinstate the practice as it existed prior to April 1998.
(b) Notify and, upon request, bargain with the Union concerning any proposed change to the practice of granting administrative leave for the Florida Games.