Authority Decisional Activity: In FY 2000, the Authority continued to focus on the strategic planning goal of providing high quality services that timely resolve disputes in the Federal labor-management community. Previously, in FY 1999, the Authority concentrated on significantly reducing the number of cases awaiting merits decision for more than one year. In FY 2000, the Authority set a more demanding goal of ensuring that no more than ten percent of cases pending merits review is over nine months old. Despite a vacant member seat on the three-Member Authority for almost half of FY 2000, the Authority surpassed this goal. At the close of the fiscal year, the Authority had only six (9.2 percent) cases pending merits review over nine months old. The Authority reduced the number of such pending overage cases by almost half from the prior fiscal year.
The Authority also reduced the period of time for all parties awaiting decisions. The average age of all pending cases fell to 86 days, more than a 50 percent reduction from the start of FY 2000. Moreover, for a second consecutive year, the Authority reduced the number of cases pending before it to the lowest level in the agency's history, in part due to an increased emphasis on alternative dispute resolution (ADR) in negotiability cases and the application of the Authority's revised negotiability regulations effective April 1999. Despite the vacant Member seat, the Authority issued approximately the same number of merits decisions as in the prior fiscal year. As a result of the Authority efforts in FY 2000, it was able to set an even more stringent performance goal for FY 2001 of ensuring that no more than ten percent of the cases pending merits review are over six months old. The Authority focus on timely resolving disputes reflects a continuing response to concerns raised in a 1998 customer survey regarding the length of time before disputes filed with the FLRA were resolved.
In addition to targeting overage cases, the Authority maintained its focus on resolving complex issues, and establishing comprehensive legal doctrine to help guide parties. In order to maximize the clarity and stability of the law so that parties can understand and be guided by it, in FY 2000 the Authority used several tools to sharpen the decision-making process. These included: a case screening mechanism to identify cases for streamlined processing; techniques to identify relevant case law, issues, and potential problems prior to decision drafting; and forums in which Authority staff discuss recent case precedent and other issues of relevance to the Authority's ongoing work.
In FY 2000, consistent with the agency's strategic planning goals, the Authority conducted a comprehensive evaluation of the quality of its decisions and measures for assessing that quality. The Authority established an internal task force to conduct the evaluation. The task force used a variety of tools to review the quality of decisions and potential measures, including conducting a focus group with Authority customers and benchmarking other similar Federal and state agencies. In FY 2001, the Authority will review the results of the evaluation and assess any appropriate follow-up action. In addition, in order to provide staff with a greater understanding of parties' perspectives and the role of other agency components, in FY 2001 the Authority will begin a program to detail Authority staff to Regional Offices and to the Federal Service Impasses Panel.
As one measure of the Authority's continuing emphasis on the quality of its decisions, Authority decisions issued in the last few years (including those issued during FY 2000), and reviewed on the merits by Federal Courts have received very favorable treatment. Authority decisions issued during the most recent five-year period were the subject of favorable appellate opinions in approximately 89 percent of the cases, as compared with an overall favorable rate of only 52 percent for Authority decisions reviewed in the preceding 16 years.
Wherever possible, the Authority encouraged parties to resolve their disputes by means other than litigation. For example, in post-petition conferences with Authority staff in pending negotiability appeals, parties were regularly advised of the availability of agency ADR services. In FY 2000, the Authority utilized the FLRA Collaboration and Alternative Dispute Resolution Office (CADRO) staff member during post-petition conferences to facilitate parties' understanding and use of ADR services. During FY 2000, in 27 of the 65 negotiability cases filed with the Authority, the parties agreed to use CADRO services. Of these 27 cases, 20 were subsequently withdrawn due to CADRO assistance. In sum, almost one-third of the negotiability cases filed in FY 2000 were resolved through FLRA provided ADR services during the fiscal year. Authority staff frequently participated with members of CADRO in assisting parties to resolve their own disputes. Authority staff also participated in cross-component collaboration and alternative dispute resolution activities to assist parties in resolving multiple pending disputes.
Reviewing the Effectiveness of the Process for Resolving Exceptions to Arbitration Awards: In accordance with its FY 2000 strategic planning performance goals, the Authority conducted a review of the effectiveness of its process for resolving exceptions to arbitration awards. The Authority established an internal task force to conduct the review. The task force obtained input from FLRA staff, parties and arbitrators. In particular, the task force examined the results of prior external focus group initiatives on arbitration exceptions, the results of the 1998 FLRA customer survey, and comments provided by participants at the annual Society of Federal Labor Relations Professionals conference. The task force also obtained the views of participants in recent Authority arbitration cases.
Outreach and Training: In FY 2000, the Authority provided significant training and outreach to the labor-management relations community. The Authority conducted 16 training sessions, with a total of 1,030 participants, focusing on the Statute and Authority regulations and procedures. Sessions ranged from programs for local labor organizations and agency field offices to presentations at national conferences. The Authority also provided 131 copies of a negotiability training video. In response to the recognized needs of its customers, in FY 2001 the Authority will further expand its leadership role in providing outreach and training to the labor-relations community. It has set a strategic planning performance goal of implementing a training initiative to increase parties' understanding of the Statute and Authority regulations and procedures with a goal of conducting at least 30 training sessions.
In Army and Air Force Exchange Service, Dallas, Texas, 55 FLRA No. 199 (2000), the Authority denied a Union's application for review of a Regional Director (RD) decision dismissing the Union's objections to the conduct of an election. The Authority found that the RD did not commit a prejudicial procedural error in ordering a mail ballot election because, as the parties had been unable to agree on the method of election, section 2422.16(b) of the Authority's Regulations provided the RD with the discretion to decide the procedures to be used. Next, the Authority found that the Union failed to provide any evidence that the election notices were not timely mailed and posted, and that two witness statements claiming that the Agency distributed another Union's flyers were not sufficient to demonstrate that the Authority RD's assessment of that evidence, in the context of his investigation, was incorrect. Accordingly, the Authority rejected the Union's assertion that the RD made a clear and prejudicial error concerning substantial factual matters.
In New Mexico Army and Air National Guard, 56 FLRA No. 18 (2000), (Members Segal and Cabaniss, concurring; Chairman Wasserman, dissenting), members of a local union voted to change their affiliation to another labor organization. Due to the geographic dispersion of the bargaining unit members, voting was by mail ballot. After the petition to amend the local union's certification was filed with the Authority, the local's parent organization imposed a trusteeship on the local. The Regional Director (RD) found that the change of affiliation election satisfied the four procedural criteria set forth in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) (Montrose), review denied, 3 FLRC 259 (1975). The RD also found that the imposition of the trusteeship did not affect the petition. The losing local union's parent organization appealed the RD decision. On review, the Authority sustained the RD's decision, in particular, rejecting the contention that the parent labor organization was entitled, under the Montrose doctrine, to notice of the impending change in affiliation.
In U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 56 FLRA No. 47 (2000) (Chairman Wasserman, concurring in part and dissenting in part), the Authority addressed questions set forth in its earlier decision granting the Union's application for review (55 FLRA 514). The Regional Director (RD) found that, as a result of an Agency reorganization, the employees in the existing bargaining unit had been transferred into three different chains of command and, as such, no longer constituted an appropriate unit. On review, the Authority held that, in cases involving competing successorship claims alleging different appropriate units, it will first consider the appropriate unit claim that will most fully preserve the status quo in terms of unit structure and the relationship of employees to their chosen exclusive representative. Thus, if a petitioned-for existing unit continues to be appropriate, the Authority will not address any petitions that attempt to establish different unit structures. Changes in an agency's chain of command do not, by themselves, render inappropriate existing bargaining units, although such changes may have effects on all three of the appropriate unit criteria. In this case, the record was insufficient to determine whether the existing unit remained appropriate and the Authority remanded the case to the RD for further findings.
In U.S. Department of Veterans Affairs, 55 FLRA No. 195 (2000) (Member Wasserman concurring), the Authority concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in employee parking rates at one of its medical centers without bargaining with the Union. To remedy the unfair labor practice, the Authority ordered the Respondent to restore the prior rates and to make adversely affected employees whole. The Authority held that the make whole relief was equitable in nature and, as such, was not barred by the principle of sovereign immunity.
In Federal Bureau of Prisons, Washington, D.C., 55 FLRA No. 202 (2000) (Member Cabaniss dissenting), the Authority found that the Agency violated the Statute by failing to furnish the Union requested sanitized information concerning disciplinary actions. The Authority found that the data requested by the Union was both necessary and reasonably available within the meaning of section 7114(b)(4)(B) of the Statute. The Authority also rejected the argument that the remedy was inconsistent with the Respondents' right to assign work under section 7106(a) of the Statute.
In U.S. Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia, 56 FLRA No. 6 (2000) (Member Cabaniss concurring in part and dissenting in part), Order Denying Motion for Reconsideration, 56 FLRA No. 38 (2000), the Authority issued a decision on remand from the U.S. Supreme Court concerning the question of whether agencies are required to bargain over union-initiated midterm proposals. The Supreme Court had determined that the Statute was ambiguous with respect to this question and that Congress delegated to the Authority the power to determine "whether, when, where, and what sort of midterm bargaining is required." 119 S. Ct. 1003,1010 (1999) The issue in the case at hand was whether the Agency violated the Statute by refusing to bargain over a proposal requiring midterm bargaining that was substantially identical to proposals previously found negotiable by the Authority. In its decision, the Authority concluded that proposals obligating an agency to engage in midterm bargaining over matters not contained or covered by the term agreement are within the duty to bargain. The Authority found that such proposals further the purposes of the Statute. Further, such proposals are not inconsistent with law, rule, or regulation. Applying this determination to the facts of the case, the Authority concluded that the Agency had committed an unfair labor practice.
In Department of the Treasury, United States Customs Service, El Paso, Texas, et al., 56 FLRA No. 56 (2000) (Chairman Wasserman concurring), the Authority reviewed exceptions to a Judge's decision on remand from the Authority 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 (1998) (Customs). In Customs, the Authority had remanded the case to the Judge to analyze the record to determine whether the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the Statute to determine its internal security practices. The Judge found that the Respondent failed to show that videotaping in these circumstances was an exercise of that management right. The Authority disagreed. Applying Authority precedent for determining whether a matter constitutes an internal security practice under section 7106(a)(1) of the Statute, the Authority found that the Respondent, a law enforcement agency, had established a reasonable link between its objective of safeguarding its personnel, property or operations and its investigative technique of videotape recording employees subject to internal affairs investigations. Because the decision to videotape had more than a de minimis effect on employees' conditions of employment, the Respondent violated the Statute when it failed to provide the Union notice and an opportunity to bargain over the impact and implementation of the decision.
In Health Care Financing Administration, 56 FLRA No. 79 (2000), the Authority addressed exceptions to an administrative law judge's recommended decision finding that the Respondent violated the Statute by failing to furnish the Union with sanitized documents concerning the selection process used to fill job vacancies for bargaining unit positions. The Authority first determined that disclosure of the information would not violate the Privacy Act. The Authority stated that, because information identifying the employees would be redacted, there would be no unwarranted invasion of privacy and, as such, the information would be required to be disclosed under the Freedom of Information Act. Next, the Authority found that the Union had articulated a particularized need for the information and that the Union's request for the documents otherwise satisfied the requirements for disclosure under the Statute. To remedy the unlawful conduct, the Authority directed the Respondent to furnish the requested documents. Further, the Respondent was ordered to refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with the job vacancies, that the grievance was untimely, as long as the grievance was timely filed from the date the Union received the requested information.
In U.S. Customs Service, Customs Management Center, Miami, Florida, 56 FLRA No. 136 (2000), the Authority restated that the test for resolving claims that a contract provision covers a matter sought to be bargained is, first, whether the matter is expressly contained in the collective bargaining agreement. If the provision does not expressly encompass the matter, then the inquiry is whether the subject is inseparably bound up with a subject expressly covered by the contract. The Authority clarified that an examination of bargaining history and, specifically, the parties' intent, is not an independent element of the test. Rather, it is an integral component of the part of the analysis used to determine whether the matter in dispute is inseparably bound up with and thus plainly an aspect of a subject covered by the contract.
In Association of Civilian Technicians, Texas Lone Star Chapter 100, 55 FLRA No. 196 (2000), the Authority found outside the duty to bargain two proposals that would give a selecting official unfettered discretion to select a Wage Leader with a lower military grade than the employees with whom the Wage Leader would work. The Authority determined that a military grade inversion policy prohibited full-time civilian technicians from supervising individuals with a higher military rank. The Authority found that the military grade inversion policy was a military aspect of civilian technician employment, and that the proposals would, in effect, prohibit the Agencies from enforcing the grade inversion policy as it applies to Wage Leader positions. Consistent with Authority precedent, the Authority held that the proposals concerned a military aspect of civilian technician employment and, as a result, they were outside the duty to bargain under section 7117(a)(1) of the Statute.
In National Air Traffic Controllers Association, Rochester Local, 56 FLRA No. 40 (2000), the Authority addressed two proposals concerning leave schedules. The proposals were prompted by the Agency's discontinuation of a practice of including supervisors on a leave roster. As a consequence, supervisors were no longer counted for purposes of determining the minimum staffing level necessary to approve employees' leave requests as governed by a Memorandum of Understanding (MOU). The Authority found that the proposals directly implicated the conditions of employment of supervisors and, as such, were permissively negotiable. The Authority next addressed the Union's argument that, because the Agency had bargained over provisions governing the work assignments of supervisors in the MOU, it was obligated to bargain over the proposals. Adopting the rationale in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate and Glass Company, Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), a case involving similar issues under the National Labor Relations Act, the Authority held that the inclusion of a permissive subject in a collective bargaining agreement does not convert that subject into a mandatory subject. Consequently, the fact that the Agency agreed to the MOU did not obligate the Agency to bargain over adjustments to provisions of the MOU. The Authority noted, consistent with the holding in Pittsburgh Plate Glass, that in such circumstances the Union's remedy is through enforcement of the parties' agreement regarding the permissive subject matter. Because the proposals concerned supervisory conditions of employment, over which the Agency did not have an obligation to bargain, the Authority dismissed the petition for review.
In National Association of Government Employees, Local R5-136, 56 FLRA No. 49 (2000), the Authority addressed a proposal concerning wage surveys to be used for setting pay rates of Agency pharmacists. Pharmacists are considered "hybrid" employees, whose conditions of employment are covered by both titles 5 and 38 of the United States Code. The Authority first rejected the Agency's claim that the Authority lacked jurisdiction over the dispute. As the Agency alleged that the proposal was inconsistent with law, the Authority was vested with jurisdiction under section 7117(c) of the Statute to review the negotiability of the proposal. As to the merits, the Authority found that the proposal was not inconsistent with 38 U.S.C. § 7455, which, among other things, gives the Agency authority to increase pay rates under specified circumstances. The Authority found that the proposal did not prescribe when the Agency would conduct wage surveys, how the surveys would be conducted, or what would be done with the results of the surveys. The Authority also found, after examining the plain wording of 38 U.S.C. § 7455 and its legislative history, that the Agency's discretion thereunder was not "sole and exclusive" so as to preclude bargaining. Consequently, the Authority concluded that the proposal was within the duty to bargain.
In Social Security Administration, Baltimore, Maryland, 55 FLRA No. 173 (1999), the Authority held that if an agency elects to bargain over a matter covered by section 7106(b)(1) of the Statute and includes that matter in a collective bargaining agreement, the provision is enforceable through grievance arbitration. In this case, the Arbitrator interpreted a contract provision that memorialized the parties' agreement creating a partnership council. The Arbitrator directed the Agency to follow certain procedures consistent with the agreed-upon provision. On appeal, the Agency claimed that the Arbitrator exceeded his authority and that the award was contrary to law, failed to draw its essence from the agreement, required the parties to engage in mid-term bargaining, was based on a nonfact, and violated management's rights. The Authority rejected each of these contentions finding that the award was not deficient.
In American Federation of Government Employees, Local 3615, 55 FLRA No. 187 (1999), the Authority reviewed an arbitration award in which the Arbitrator denied a class action grievance alleging that the Agency violated the parties' collective bargaining agreement, and committed prohibited discrimination based on race and handicap, by failing to promote the grievants and/or provide the grievants with opportunities for promotion. The Union's exceptions claimed that the award was deficient because: (1) it was contrary to Title VII discrimination standards; (2) it was based on nonfacts because the Arbitrator made "inaccurate and misleading" factual findings in determining that the Agency had presented legitimate, nondiscriminatory reasons for its actions; and (3) the Arbitrator exceeded his authority because he failed to address the Agency's contractual obligations. The Authority held that the Arbitrator properly found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. The Authority also rejected the Agency's argument that the award was based on nonfacts, deferring to the Arbitrator's factual findings that the Agency decided, for reasons of operational efficiency, that the work at issue would be conducted at the hearing offices, rather than the headquarters office where the grievants worked, and that a regulatory change would have been required to assign this work to the grievants. Finally, the Authority found that the Arbitrator did not exceed his authority by failing to address the Agency's contractual obligations, as the award discussed and applied the discrimination principles argued by the Union.
In U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland, 56 FLRA No. 39 (2000), the Authority denied exceptions to an award challenging the Arbitrator's determination that the Agency improperly exempted employees from overtime coverage under the Fair Labor Standards Act (FLSA). The Authority found that the Arbitrator's reliance on the employees' position descriptions, as well as the Agency's exemption determination regarding other persons with similar duties, did not establish that the Arbitrator failed to consider the employees' actual or day-to-day duties, as required under FLSA implementing regulations. In addition, the Agency offered no evidence that it took affirmative steps necessary to overcome the presumption in favor of liquidated damages, which the Arbitrator had awarded.
In U.S. Department of Transportation, Federal Aviation Administration, 56 FLRA No. 99 (2000), the Authority declined to defer to an Agency's interpretation of its regulations where the interpretation advanced in the case was inconsistent with the Agency's interpretation of the same regulation in other contexts, including the position taken by the Agency in a prior Authority decision. The Authority noted that its approach was consistent with the practice of Federal courts to accord considerably less deference to Agency interpretations of regulatory provisions that conflict with prior Agency interpretations of the provisions. The Authority found that the Arbitrator had jurisdiction under the FAA Act to resolve the grievance and that the award was not inconsistent with Agency regulation. As to the particular regulation at issue, the Authority upheld the Arbitrator's determination that the Agency lacked discretion under its Personnel Management System to deny a government-wide wage increase for employees.
In U.S. Department of Defense Education Activity, Arlington, Virginia, 56 FLRA No. 119 (2000), the Authority denied exceptions to an award in which the Arbitrator sustained a grievance finding that payments due employees, as a result of prior arbitration awards and settlement agreements, came within the scope of the Back Pay Act and that interest was owing on the payments. In so doing, the Authority noted that the Back Pay Act provides that omissions can constitute unjustified and unwarranted personnel actions. Consequently, the Authority found that administrative or clerical errors that result in delays in making payment can constitute unjustified or unwarranted personnel actions. In coming to this conclusion, the Authority rejected the Agency's arguments that the Back Pay Act is not applicable where the obligation to pay the underlying amount is not in question and where there is no nondiscretionary law, rule or regulation mandating action in accordance with specific criteria or by a specific date. The Authority also declined to consider the Agency's challenge to OPM's regulation that includes a "pay action" as a possible unjustified or unwarranted action under the Back Pay Act.
The FLRA Administrative Law Judges, who are appointed by the Authority to hear unfair labor practice charges prosecuted by the FLRA General Counsel, successfully worked to resolve more cases more quickly during this past fiscal year.
The Office of the Administrative Law Judges (OALJ) continued to pursue its Unfair Labor Practice Settlement Judge Program (Program), dedicated to promoting effective voluntary settlement of unfair labor practice complaints. Under this Program, the Chief Administrative Law Judge assigns a judge (other than the trial judge) or a settlement attorney to conduct settlement conference negotiations with the parties before trial. During FY 2000, 149 of the 183 cases in which parties requested assistance, (more than 81 percent) were resolved under the Program before trial. Cases that settled under this Program settled earlier in the process. The number of expensive last minute "court house steps" settlements has also been dramatically reduced. In FY 2000, these more costly late settlements were less than 2 percent of all settlements, down from a high of 15 percent in 1996 when the Program began.
The OALJ also saw a 45 percent increase in its cases received, and a 66 percent increase in the number of cases, closed compared to FY 1998. During FY 2000, OALJ received 414 cases, closed 372 cases and ended the year with 121 cases pending. Of the cases closed, 296 were settled, withdrawn or stipulated directly to the Authority. In FY 2000, the OALJ held 40 hearings, an increase of 21 percent over the 33 held in FY 1999, and issued decisions in 76 cases. The percentage of Administrative Law Judge decisions that were accepted by the parties without appeal to the Authority reached a new high with 54 percent of the decisions issued by the OALJ becoming final and binding on the parties. OALJ ended FY 2000 with 118 cases pending hearing, an increase of 62 percent over the 73 cases pending at the end of FY 1999.