[ v13 p571 ]
The decision of the Authority follows:
13 FLRA No. 95 DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD PORTSMOUTH, VIRGINIA Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADE COUNCIL Charging Party Case No. 3-CA-1800 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision and the Respondent filed an opposition to the exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended order. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-1800 be, and it hereby is, dismissed. Issued, Washington, D.C., January 6, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- NORFOLK NAVAL SHIPYARD Respondent and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL Charging Party Case No. 3-CA-1800 Patricia M. Eanet, Esq. Susan Shinkman, Esq. For the General Counsel Delores T. Griffin Andrew James For the Respondent Ronald E. Ault For the Charging Party Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This proceeding arises under the Federal Service Labor-Management Relations Statute (5 U.S.C. Sec. 7101 et seq.), and the Final Rules and Regulations issued thereunder (5 C.F.R. Sec. 2423.14 et seq.) It is based on a Complaint issued by the Regional Director of Region III, Federal Labor Relations Authority, alleging that Respondent violated Section 7116(a)(1) and (5) of the Statute by refusing to reopen contract negotiations after the Union's membership refused to ratify the tentative agreement reached. Respondent defends on the ground that there was, in fact, no ratification requirement and, further, that an agreement reached pursuant to negotiations ordered by the Federal Service Impasses Panel cannot be subject to ratification any more than could the award of an arbitrator chosen under the auspices of FSIP. Respondent also argues that an impasse was reached in discussions following the ratification vote and that this controversy therefore remains subject to the jurisdiction of FSIP rather than the unfair labor practice procedures of the Authority. A formal hearing was held in Norfolk, Virginia on April 20, 1981. All parties were afforded full opportunity to examine witnesses, introduce evidence and file briefs. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommended order: Findings of Fact 1. Respondent and Charging Party have been parties to a series of collective bargaining agreements. Until negotiation of the contract at issue, all agreements had been subject to ratification by the Union's membership. In March 1979, the parties agreed upon ground rules for the negotiation of a new agreement, and such negotiations began in May and continued until October 2, 1980. Those ground rules departed from the earlier ones in that the former provision that Articles or Sections agreed upon and initialed by the Chief Negotiators were "tentative until the entire Agreement is negotiated and signed" was replaced by a provision that "(c)hanges to proposals which have been initialed and dated may be made with the mutual consent of the parties." The two sets of rules had identical provisions regarding the conclusion of negotiations at the local level. They provided that: XIV. Conclusion of negotiations at local level. Upon completion of a full and complete agreement acceptable to the parties, the Employer will prepare the agreement in a final draft for review and proofreading. Both parties will sign the agreement after it has been ratified by the Council and approved by the Shipyard Commander. The Employer will then forward the agreement to the Chief of Naval Operations for approval. 2. While there is much dispute on the question whether the parties intended that ratification would be a requirement of a full and binding agreement, there is no evidence whatever that Union negotiators ever explicitly yielded on this point. Given the past practice and the language of the ground rules, I find that ratification was essential to a binding agreement. 3. At some point in these protracted negotiations, the Union requested the assistance of the Federal Service Impasses Panel in resolving an impasse. On August 29, 1980, the Panel wrote the parties that it had: determined in accordance with section 2471.6(a)(2) /1/ of its regulations that during the 30 days following receipt of this letter, the parties shall resume negotiations on a concentrated schedule of bargaining, on all issues remaining in dispute, seeking, as necessary, the assistance of the Federal Mediation and Conciliation Service . . . (i)f any issues remained unresolved at the end of the 30-day period, they shall be submitted by the parties to final and binding arbitration. 4. The negotiators reached agreement on October 2, 1980. In accordance with the Union's Constitution and By-Laws (Article XV, Section 1), that agreement was put to a vote of the membership on November 11, and was rejected. 5. On November 17, there was a meeting called by Andrew James, Head of Respondent's Employee Relations Division and its Chief Negotiator. It was called for the purpose of inquiring into the cause and consequences of the failure of ratification, of which Respondent had received no "official" notification. Present, in addition to James and a number of his negotiating team, were Ronald E. Ault, the Union's Chief Negotiator and three numbers of his team. They discussed the meeting at which the vote took place and the issues responsible for the failure of ratification. James, who said the meeting was not a bargaining session, told the Union that both parties had made concessions in order to reach agreement on October 2, that the clauses the Union now wished to repudiate represented Respondent's bargaining goals and that a return to the bargaining table would place the parties at impasse. The meeting lasted less than thirty minutes. Later that day, Ault, in writing, notified Respondent that the membership had voted down the contract and requested that negotiations be reopened. 6. On November 20, J. P. Early, Respondent's Director of Industrial Relations, replied to Ault, expressing his disappointment at the failure to ratify an agreement reached "under the auspices of the Federal Service Impasses Panel" and responding to the request to reopen negotiations by asking for a list of those provisions which prompted the membership not to ratify the agreement. Early also expressed the hope that "we may bring this matter to a speedy conclusion." 7. On December 3, Ault provided Early with a list of the Articles or issues which, he said, were the major reasons for voting down the contract. On December 12, James responded to Ault's letter of November 17 and December 3. Referring, as had Early, to the agreement reached under the auspices of the Panel, James said: Your failure to acquire the support of your labor organization in ratifying the agreement is an internal union matter over which the Shipyard has no control. Our duty to bargain in good faith and our obligation to reach a collective bargaining agreement was fulfilled on October 2, 1980. There are no outstanding proposals and counter proposals to be considered by the parties. Further, your initials or the initials of an authorized Council representative appear on all issues submitted for negotiation. Consequently, I find there is no basis for reopening negotiations. The Norfolk Naval Shipyard hereby requests in accordance with Section 7114(b)(5) of the Statute that the Council (the duly authorized representative of production unit employees) execute the document to which the parties agreed on October 2. Please contact me at your earliest convenience in order that a signing ceremony may be arranged. 8. On December 24, the Union filed an unfair labor practice charge. There is no indication that either party sought to pursue the impasse resolution plan set forth in the Panel's letter of August 29. It appears that an arbitrator had been selected but was never used. Discussion and Conclusions Aside from its contention that ratification was not a prerequisite to a binding agreement (already rejected in the findings of fact), Respondent defends on the ground that the October 2 agreement had the force and effect of binding arbitration (i.e., that an agreement reached under the auspices of the Panel is no more subject to member ratification than would be the award of an arbitrator picked pursuant to a Panel directive), and that the parties, in any event, reached a good faith impasse after the ratification vote, thus placing the disputed issues before the Panel for final arbitration or final offer decision resolution. General Counsel counters that Respondent misconceives the role and purpose of the Panel; that its recommendations do not constitute the assumption of "such control" over the negotiating procedure so as to impose the effect of binding interest arbitration on an agreement reached without the aid of an arbitrator; and that the Respondent was therefore obligated to return to the bargaining table when the tentative agreement of October 2 was rejected. In addition, the General Counsel argues that the discussions of November 17 did not constitute negotiations and therefore no impasse could have occurred on that occasion. The statutory scheme, as outlined in Part 2471 of the Regulations, indicates that a Panel recommendation made pursuant to Section 2471.6(a)(2) is, in fact, far more than that. Thus, Section 2471.11(a) states that if "the parties do not arrive at a settlement as a result of or during actions taken under Secs. 2471.6(a)(2) . . . the Panel may take whatever action is necessary and not inconsistent with 5 U.S.C.Chapter 71 to resolve the impasse, including but not limited to, methods . . . such as directing the parties to accept a factfinder's recommendation, order binding arbitration . . . and rendering a binding decision." It would appear that once a party to an impasse requests the Panel's assistance, and it asserts jurisdiction over the matter, the parties are not free to ignore the Panel's recommendation. Here, the Panel directed that the parties follow a two-phased program: conclude an agreement within 30 days or else submit unresolved issues to final and binding arbitration. Whether or not one would add to the 30-day concentrated negotiations matter some period for the ratification process, the fact is that these parties did not reach agreement. Phase two, the selection of an arbitrator and submission to him of all unresolved issues, should then have come into play. If either or both parties had some problem with that (as for example, identifying unresolved issues), that problem should have been placed before the Panel, which, of course, has a whole arsenal of weapons with which to address the matter. Instead the Union switched horses, trotting over to the General Counsel to test the usefulness of the Statute's unfair labor practice procedures. It seems to me that this is abandonment of an elaborate method precisely designed for forcing agreement under the threat of imposed contract terms, and for the imposition of such terms should that technique fail. The power and importance of the Panel is recognized in Section 7116, which makes it unlawful for either party to "fail or refuse to cooperate in impasse procedures and impasse decisions" (emphasis supplied). If the process of the Panel is to be affected by the General Counsel's prosecution of unfair labor practices related to the same negotiations, there is a risk of conflicting decisions and remedies, as well as duplication of effort and resources. /2/ In my view, the Panel had jurisdiction over these failed negotiations at all material times, and the proper course for the parties was to submit their dispute to an arbitrator or seek from the Panel some approved alternative course of action. Until the Panel declined to assert further jurisdiction, disposed of the case, or there was a refusal to cooperate with its procedures or comply with its decision actionable upon a charge under Section 7116, a sense of comity would dictate the General Counsel not intrude. I conclude that it is inappropriate to litigate as an unfair labor practice a matter which not only goes to the heart of the negotiations which are the subject of the Panel's impasse procedures, but which, in my view, are inconsistent with the Panel's procedures. Thus the Panel directed binding arbitration should thirty days of concentrated negotiations not result in an agreement, and the General Counsel, through this proceeding, attempts to compel Respondent to resume negotiations. Respondent has been directed by two divisions of the Authority to take two different courses of action. As I read the Statutory scheme, no prosecution related to these negotiations is authorized unless and until the Panel's processes are completed or are met with unlawful defiance. Accordingly, I recommend that the Complaint be dismissed. JOHN H. FENTON Chief Administrative Law Judge Dated: July 8, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ That Section provides that the Panel shall "Recommend to the parties, including but not limited to arbitration, for the resolution of the impasse and/or assist them in resolving the impasse through whatever methods and procedures the Panel considers appropriate. /2/ In the Report of Case Handling Developments of the Office of the General Counsel (October 1, 1981 - December 31, 1981), it was announced that the General Counsel would defer processing a charge, once it became aware of such concurrent proceedings, until the Panel proceeding had been completed. This policy statement was, of course, issued long after this matter went to trial.