[ v12 p9 ]
The decision of the Authority follows:
12 FLRA No. 4 U.S. DEPARTMENT OF JUSTICE FEDERAL PRISON SYSTEM Respondent and COUNCIL OF PRISON LOCALS AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-2000 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts and the parties' contentions, the Authority finds: The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed and refused to grant official time to the Union's employee representative for negotiations over the impact and implementation of a memorandum issued by the Respondent entitled "Guidelines for Questioning Employees Regarding Misconduct." By such conduct it is alleged that the Respondent failed to comply with the requirements of section 7131(a) of the Statute /1/ and further refused to negotiate in good faith within the meaning of section 7116(a)(5) of the Statute. The stipulated record reflects that the Respondent notified the Union of its intended issuance of the Guidelines on November 13, 1980; that subsequent to such notification, the Guidelines were issued on November 24, 1980; and that thereafter, on January 9, 1981, the Union requested to bargain over the impact and implementation of such Guidelines. The record further reflects that the parties scheduled negotiations for January 29, 1981. However, the Respondent informed the Union that it would not grant official time to the Union's designated employee representative for such negotiations. /2/ Having been so informed by the Respondent, the Union employed the services of an attorney who conducted negotiations concerning such matters on January 29, 1981, as scheduled, and reached agreement with management over the matters in dispute. The Respondent takes the position, among other things, that inasmuch as the Union's request to bargain was made some 56 days after the Union was given notice of the impending issuance of the Guidelines, it was under neither a statutory nor a contractual /3/ obligation to bargain. Therefore, the Respondent argues, its decision to bargain was an "election" which carried with it no obligation to provide official time to the Union representative. The Authority finds no merit to the Respondent's argument. As previously noted by the Authority, the Statute requires that, prior to effecting a change in established conditions of employment, an agency must give the exclusive representative adequate advance notice and an opportunity to negotiate over such change and/or the impact and implementation thereof. See, e.g., Department of Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA 630 (1980). The record reflects that, following notice to the Union, the Respondent did initiate a change in conditions of employment, and, upon the subsequent request of the Union, did enter into negotiations over the impact and implementation of such change. Nothing in the stipulated record indicates that the Respondent and the Union (as exclusive representative of the Respondent's employees) undertook these negotiations other than in fulfillment of their mutual obligation under the Statute to bargain in good faith with respect to the impact and implementation of the Respondent's decision to effectuate a change in conditions of employment, /4/ or that the Union was asked to or in fact did waive its employee negotiator's right to critical time under section 7131(a) of the Statute /5/ for such negotiations. While it may be argued that the Respondent could have refused to bargain because the Union, by its delayed request for negotiations, had waived its contractual or statutory right to request and participate in such negotiations, that issue is not before the Authority inasmuch as, in fact, the parties herein did engage in collective bargaining pursuant to the obligation to negotiate concerning a change in conditions of employment of the Respondent. Consistent with the Authority's decision in Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of Treasury, San Francisco, California, 4 FLRA No. 40 (1980), enforced sub nom. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 672 F.2d 732, 736-37 (9th Cir. 1982), /6/ and the rationale set forth therein, it follows that the Respondent, by entering into collective bargaining within the meaning of section 7131(a) of the Statute, was obligated, upon request, to provide official time to the Union's designated employee negotiator during such negotiations. Inasmuch as the Respondent failed and refused to grant the Union's request for official time, it thereby failed and refused to comply with section 7131(a) of the Statute in violation of section 7116(a)(1) and (8) of the Statute. /7/ The Charging Party contended in its brief that it should be made whole for the fees of the private attorney used to conduct negotiations. However, the Authority concludes that such a remedy would not be appropriate, noting particularly that the record fails to establish that the employee who was entitled to but unlawfully denied official time under section 7131(a) to participate as the Union's designated representative in negotiations with the Respondent during his regular work hours and when he would otherwise be in a work or paid leave status also had been prevented from participating in such negotiations at all. Thus, where the employee could have participated in negotiations on annual leave or leave without pay and was entitled under the Statute to be made whole thereafter for the denial of official time to him for such negotiations, but the Union instead chose to retain outside counsel, the Authority finds that reimbursement of the Union's attorney's fees would not be appropriate. In so concluding, the Authority finds it unnecessary to determine generally whether, or under what circumstances, it would be appropriate to reimburse an exclusive representative for attorney's fees. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Federal Prison System, shall: 1. Cease and desist from: (a) Failing and refusing to grant official time to employee Michael Musky pursuant to the requirements of section 7131(a) of the Federal Service Labor-Management Relations Statute, as requested, for his participation as the representative of the Council of Prison Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, in scheduled mid-term negotiations. (b) In any like or related manner interfering with, restraining, or coercing its 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 Federal Service Labor-Management Relations Statute. (a) Post at its facilities, where bargaining unit employees are located, copies of the attached Notice of forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an appropriate official and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegation of the complaint be, and it hereby is, dismissed. Issued, Washington, D.C., April 14, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to grant official time to employee Michael Musky pursuant to the requirements of section 7131(a) of the Federal Service Labor-Management Relations Statute, as requested, for his participation as the representative of the Council of Prison Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, in scheduled mid-term negotiations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (Agency/Activity) Dated: By: (Signature) 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 of compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202)653-8507. --------------- FOOTNOTES$ --------------- /1/ Section 7131(a) provides: (a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time ia authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. /2/ As stipulated by the parties, the Respondent maintains a policy of not granting Union representatives official time for impact bargaining. /3/ The parties' negotiated agreement, Article 3, Section (b), provides in pertinent part that "the Union will have up to thirty calendar days for review of these proposed issuances, submission of the Union's comments, and/or requesting negotiations." /4/ Such bargaining between the parties at the level of exclusive recognition constituted "the negotiation of a collective bargaining agreement" within the meaning of section 7131(a) of the Statute, as distinguished from negotiations such as local supplements to agreements reached at the level of exclusive recognition which fall within section 7131(d) of the Statute. See Interpretation and Guidance, 7 FLRA No. 105 (1982). /5/ Cf. Nuclear Regulatory Commission, 8 FLRA No. 124 (1982) (wherein the Authority found that the union clearly and unmistakably waived entitlement to travel and per diem while on official time pursuant to section 7131). /6/ But see Division of Military and Naval Affairs, State of New York (Albany, New York), 7 FLRA No. 69 (1981), reversed sub nom. Division of Military and Naval Affairs v. Federal Labor Relations Authority, 683 F.2d 45 (2d Cir. 1982); U.S. Department of Agriculture, Science and Education Administration, Agricultural Research, North Central Region, Dakotas-Alaska Area, 6 FLRA No. 45 (1981), reversed sub nom. United States Department of Agriculture v. Federal Labor Relations Authority, No. 81-1948 (8th Cir. Aug. 9, 1982), and Florida National Guard, 5 FLRA No. 49 (1981), reversed sub nom., Florida National Guard and Department of Defense v. Federal Labor Relations Authority, No. 81-5466 (11th Cir. Mar. 7, 1983). /7/ However, inasmuch as the parties did in fact negotiate and reach an agreement, the Authority finds no violation of section 7116(a)(5) of the Statute. See, e.g., Department of the Air Force, Air Force Logistics Command, Wright patterson Air Force Base, Ohio, 10 FLRA No. 53 (1982).