United States, Department of Transportation, Federal Aviation Administration (Respondent) and American Federation of State, County and Municipal Employees, Council 26 (Charging Party/Union)

[ v59 p491 ]

59 FLRA No. 82



(Charging Party/Union)




December 11, 2003


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 (Judge) filed by the General Counsel and the Charging Party. The Respondent filed an opposition to the exceptions.

      The complaint in this case alleged that the Respondent violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to execute the collective bargaining agreement reached between the parties as required by § 7114(b)(5) of the Statute. The Judge concluded that the Respondent did not violate the Statute, as alleged, and dismissed the complaint.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order consistent with our discussion below.

II.     Background and Judge's Decision

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

A.     Background

      In May 2000, the parties finalized ground rules for negotiation of their initial collective bargaining agreement. At the hearing, the parties disputed whether the Respondent had notified the Union during ground rules negotiations that any collective bargaining agreement reached by the parties as a result of bargaining would need to be reviewed and approved by the Office of Management and Budget (OMB). Specifically, the Union's Chief Negotiator testified that there was no mention of OMB during ground rules negotiations and the Respondent's Chief Negotiator testified that he had notified the Union's Chief Negotiator and the Union's International President that OMB would need to review and approve any collective bargaining agreement before it could become final.

      The Union's witnesses also testified that, during initial bargaining sessions on the collective bargaining agreement, the Respondent's representatives did not mention OMB review and approval. [n1]  The Respondent's witness contradicted the Union testimony and, in particular, indicated that although the Union's Chief Negotiator initially objected to such a review and approval process, he continued to bargain over the terms of the collective bargaining agreement. Union witnesses also testified that when, in the fall of 2000, the Respondent first mentioned OMB, the role of OMB was limited to consultation between the Respondent and OMB during the period before which the Respondent offered its bargaining proposals.

      The parties reached tentative agreement on most issues in December 2000, with pay and pay-related matters still outstanding. [n2]  After a meeting between the parties' Chief Negotiators and the Secretary of Transportation, the Administrator of the Federal Aviation Administration, and the Union's International President, the parties initialed a number of provisions concerning pay matters. The Union's witnesses testified that, during that meeting, the Respondent communicated that all that remained was the approval of the incoming Secretary of Transportation. Further bargaining took place concerning unresolved issues and the Union indicated that it would agree to the Respondent's proposals concerning those issues. The Union's witnesses testified that, at this point, the Respondent's representative informed them that OMB would need to review and approve the collective bargaining agreement before it would be final. [ v59 p492 ]

      In subsequent correspondence with the Union, the Respondent's Chief Negotiator reaffirmed that the collective bargaining agreement would not be final until it had been approved by OMB. The Union consistently responded that OMB approval was not necessary. In May 2001, the Respondent notified the Union that OMB had disapproved the collective bargaining agreement. The Respondent also indicated that it was ready to resume negotiations. At the time of the hearing, the Respondent had not executed the agreement and the parties had not resumed bargaining.

B.     Judge's Decision

      The Judge credited the testimony of the Respondent's witnesses that, beginning in ground rules meetings with the Union prior to bargaining, and consistently thereafter, the Respondent had taken the position that any agreement reached by the parties would not be final until it had been reviewed and approved by OMB. The Judge found that, with full knowledge of the Respondent's position, the Union bargained with the Respondent and reached agreement "on all substantive issues." Judge's Decision at 29. The Judge also found that the Union had clearly and unmistakably waived its right to have fully authorized representatives of the Respondent at the bargaining table and that the parties had reached a "meeting of the minds" on all substantive issues pertaining to the collective bargaining agreement. Id.

      Applying Authority precedent under § 7114(b)(5) of the Statute, e.g., IRS, Philadelphia Dist. Office, 22 FLRA 245 (1986) (IRS, Philadelphia Dist.), the Judge concluded that, since OMB did not approve the parties' agreement, the condition precedent to finality established by the Respondent had not been met. [n3]  In the absence of a final agreement, according to the Judge, the Respondent had no obligation under § 7114(b)(5) to execute that agreement and, therefore, did not violate the Statute. The Judge found, in this connection, that the Union had "acquiesced" in the requirement for OMB approval as a precondition for the finality of the agreement. Judge's Decision at 29.

III.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel contends that the Union did not waive its rights under the Statute. Specifically, the General Counsel notes that: (1) there was no written agreement between the parties concerning OMB review and approval; (2) the Union continually objected to such approval; and (3) the Union's decision to continue bargaining even after the Respondent announced that any agreement reached would not be final until OMB had approved it did not amount to acquiescence in that precondition to finality. The General Counsel maintains that because the Respondent's representatives claimed to be authorized to bargain for the Respondent, the parties' agreement was final and the Respondent violated the Statute by failing to execute that agreement.

B.     Union's Exceptions

      The Union contends that the Judge erred by failing to consider all of the "undisputed" evidence in the record, including evidence that OMB did not, in fact, disapprove the parties' agreement and that some prior agreements between the Agency and other unions had not been submitted to OMB for review. Union's Exceptions at 15. Specifically, the Union contends that the Judge ignored Union witness testimony that: (1) the Respondent's Chief Negotiator testified that he had full negotiating authority; (2) the Union refused to agree to OMB review and approval; (3) the Union only agreed to review and approval by the incoming Secretary of Transportation. The Union also contends that the Judge failed to properly apply the law as to waiver of its right under the Statute to bargain with authorized representatives of the Respondent. The Union asserts that because the Judge found that the parties had reached agreement on all matters, the Judge should have found that the Respondent violated the Statute by failing to execute that agreement.