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13:0571(95)CA - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees MTC -- 1984 FLRAdec CA

[ v13 p571 ]
The decision of the Authority follows:

 13 FLRA No. 95
 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.
    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 --------------------
                              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
                           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.