16:0318(50)CA - AFGE Local 3732 and Transportation, Maritime Administration, Merchant Marine Academy, Kings Point, NY -- 1984 FLRAdec CA
[ v16 p318 ]
16:0318(50)CA
The decision of the Authority follows:
16 FLRA No. 50
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3732
Respondent
and
DEPARTMENT OF TRANSPORTATION
MARITIME ADMINISTRATION
U.S. MERCHANT MARINE ACADEMY
KINGS POINT, NEW YORK
Charging Party
Case No. 2-CO-20013
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision and the Charging Party filed an opposition to those
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 as modified below.
The Judge found that the Respondent violated the Statute when it
refused to sign the prenegotiation agreement containing the provision
ordered by the Federal Service Impasses Panel as well as the ground
rules for negotiations agreed to by the parties. While the Authority
agrees with the Judge's conclusion that the parties were not in dispute
over ground rules other than hours of negotiation, the Authority notes
that the prenegotiation agreement submitted by the Charging Party to the
Respondent on October 8, 1981 did not contain the exact terms contained
in the parties' previous agreement. Although the prenegotiation
agreement and the parties' prior agreement did not contain identical
terms, other documents and testimony in the record reveal that the
October 8, 1981 prenegotiation agreement included all the ground rules
agreed to by the parties. In agreement with the Judge the Authority
concludes that Respondent violated section 7116(b)(5) by refusing to
execute it.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the American Federation of Government Employees, AFL-CIO, Local
3732, shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the Decision and Order
of the Federal Service Impasses Panel in Case No. 81 FSIP 77, or
in any other manner failing or refusing to cooperate with impasse
procedures and decisions.
(b) Failing or refusing to sign the October 8, 1981
prenegotiation agreement containing the provision ordered by the
Federal Service Impasses Panel in Case No. 81 FSIP 77, and the
ground rules for negotiations set forth in said agreement.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and the policies of the Statute:
(a) Cooperate with the Federal Service Impasses Panel and
comply with its Decision and Order in Case No. 81 FSIP 77.
(b) Upon request, sign the October 8, 1981 prenegotiation
agreement containing the provision ordered by the Federal Service
Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
negotiations set forth in said agreement.
(c) Post at its business offices and in normal meeting places
including all places where notices to members are customarily
posted at the U.S. Merchant Marine Academy, Kings Point, New York
copies of the attached Notice on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the President, American Federation of Government Employees, Local
3732 and shall be posted by him for 60 consecutive days.
Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.29 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 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.
Issued, Washington, D.C., October 31, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the Decision and Order of
the Federal Service Impasses Panel in Case No. 81 FSIP 77, or in any
other manner fail or refuse to cooperate with impasse procedures and
decisions.
WE WILL NOT refuse to sign the October 8, 1981 prenegotiation
agreement containing the provision ordered by the Federal Service
Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
negotiation set forth in said agreement.
WE WILL sign the October 8, 1981 prenegotiation agreement containing
the provision ordered by the Federal Service Impasses Panel in Case No.
81 FSIP 77, and the ground rules for negotiations set forth in said
agreement.
(Activity)
Dated: By: (Signature) (Title)
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 or compliance
with any of its provisions, they may communicate directly with the
Regional Director for the Federal Labor Relations Authority Region II,
whose address is: 26 Federal Plaza, Room 24-102, New York, NY 10278 and
whose telephone number is: (212) 264-4934.
FOLLOWS --------------------
CISION
EMPLOYEES, AFL-CIO, LOCAL 3732
Respondent
and
DEPARTMENT OF TRANSPORTATION,
MARITIME ADMINISTRATION
U.S. MERCHANT MARINE ACADEMY,
KINGS POINT, NEW YORK
Charging Party
Case No.: 2-CO-20013
Gay Snyder, Esq.
Joseph Fallon
For the Respondent
Alfred Johnson, Jr. Esq.
James Petrucci, Esq.
For the General Counsel
Peter J. Hannums, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute).
It is based on a first amended charge filed on May 7, 1982 by Department
of Transportation, Maritime Administration, U.S. Merchant Marine
Academy, Kings Point, New York (herein called the agency or Academy),
against American Federation of Government Employees, AFL-CIO, Local 3732
(herein called Respondent or Union).
Pursuant to a Complaint and Notice of Hearing issued on December 30,
1982 by the Regional Director for the Federal Labor Relations Authority,
New York, NY Region, a hearing was held before the undersigned on April
11, 1983.
The Complaint alleged, in substance, that on or about October 8, 1981
and thereafter Respondent refused (a) to comply with a Federal Service
Impasses Panel Decision and Order, Case No. 81 FSIP 77, dated September
19, 1981; (b) to execute a written document embodying the agreed upon
term and provision ordered by the Federal Service Impasses Panel
concerning ground rules for negotiating a collective bargaining
agreement-- all in violation, respectively, of Section 7116(b)(6) and
7116(b)(5) of the Statute.
Respondent's answer, dated January 7, 1983, denied the aforesaid
allegations and the commission of any unfair labor practices. As
affirmative defenses it averred that the Federal Service Impasses Panel
(a) lacked jurisdiction to issue the Order it did on September 18, 1981;
(b) issued an Order contrary to 5 U.S.C. 7131 and other provisions of
Title 5.
Both parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed with the undersigned which
have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein Respondent has been, and still is,
the exclusive bargaining representative of all faculty members and
non-supervisory librarians employed by the U.S. Merchant Marine Academy
excluding department heads and assistant department heads, members of
the regimental department and Academy training representatives.
2. Apart from librarians, the unit includes professors who are
required to teach 12 hours per week. They teach during four quarters
annually from 8 a.m. - 5 p.m., Monday through Friday, with one hour for
lunch. The first academic quarter in 1981 began on July 27 and expired
on October 9 of that year.
3. The professors are obligated to conduct certain activities both
within and outside normal duty hours, such as research and scholarly
activities that result in publications, and to serve as guest lecturers
or present papers pertaining to their fields of endeavor.
4. Between 1979 and 1981 the parties herein met to negotiate ground
rules which would govern their collective bargaining sessions. In 1979
they disagreed as to two items: a reduction in the teaching load of the
faculty members and the hours of the day during which negotiations would
take place. They submitted their dispute in 1979 to the Federal Service
Impasses Panel which refused to accept jurisdiction on the ground that
the issue was one of negotiability.
5. In June, 1980 Respondent and the agency resolved the dispute as
to the teaching load. They agreed to a three hour teaching load for the
first quarter of negotiations.
6. There was also a disagreement as to the number of members which
would comprise each negotiating team, and also whether a member could be
replaced. The parties finally agreed to reduce each team to four
members; and it was understood that replacements could occur under the
circumstances set forth in the proposed rules agreement (Respondent's
Exhibit 1).
7. The parties were in complete disagreement as to the hours during
which bargaining should be held. The Union insisted that negotiations
take place between 10 a.m. and 5 p.m.; that in no event should they be
after duty hours ended (5 p.m.). Management proposed that bargaining
sessions take place from 12:30 p.m. to 6 p.m.
8. Dr. Howard Beim, professor of chemistry and vice-president of the
Respondent Union, testified he believed it was understood, and so stated
by the parties, that they would negotiate for one quarter; that it was
hoped the first quarter of negotiations would coincide with the first
academic quarter; that the dispute was concerned with the first quarter
of negotiations, whenever that occurred.
9. In a letter dated March 10, 1981 Beim wrote Peter J. Hannums,
chief negotiator for the Academy, in which he stated inter alia:
After reviewing your letter and the Academy's final proposal,
we do not agree that there are two groundrule issues with which we
are not in substantive agreement. There appears to be only one:
The hours when negotiating sessions will be held during the First
Quarter of the 1981-82 Academic Year.
10. Under date of April 15, 1981 Peter J. Hannums, submitted to the
Federal Service Impasses Panel (hereinafter called the Panel) the issue
at dispute between the parties, to wit: "The hours when negotiating
sessions will be held during the first quarter of the 1981-82 academic
year."
11. The Panel rendered its Decision and Order in 81 FSIP 77 (1981),
dated September 18, 1981, in which it ordered that "The parties shall
bargain from 12:30 p.m. to 6 p.m. during all academic quarters in which
negotiations are conducted."
12. In a letter dated October 8, 1981 /1/ addressed to Kenneth
Lazara, President of Respondent Union, the Academy, by its Assistant
Superintendent John H. Lewis, enclosed two copies of the ground rules
agreed upon by the parties and included therewith the provision re hours
of negotiation as ordered by the Panel. (Joint Exhibit 3) Lewis
suggested they meet on October 14 at 14:30 hours to formally sign the
prenegotiation agreement.
13. Lazara telephoned Lewis on October 14 to inform management that
the Union was seeking advice from its national counsel, and the
Respondent's official stated further that it was not prepared to sign
the agreement until such advice was received.
14. In reply to the foregoing call, Lewis wrote Lazara on October
15, stating that the meeting on October 14 was cancelled; that he was
rescheduling a meeting to sign the prenegotiation agreement on October
28 at his office.
15. By letter dated October 19 Lazara advised Lewis that the Union
was considering the possibility of appealing the Panel's Decision and
Order; and he stated that Lewis would be contacted re a meeting as soon
as a decision has been made by the National AFGE.
16. Under date of October 21 Lewis wrote Lazara and stated that,
while he appreciated the Union's desire to seek counsel, five weeks had
elapsed since the Panel rendered its decision. Accordingly, he rendered
the request that the parties meet on October 28 to sign the
prenegotiation agreement.
17. Lazara replied in a letter dated October 27 reiterating its
intention to await word from the National AFGE re a possible appeal from
the Panel's decision.
18. Finally, in a letter dated January 28, 1982 Joseph Fallon, chief
negotiator for Respondent, informed Hannums that Respondent was advised
not to agree to negotiations past 5 p.m. /2/ The stated reasons for its
refusal to negotiate past that hour were: (a) the Panel went beyond the
impasse resolution request by issuing guidelines for all quarters,
whereas they were asked to decide on the first quarter of negotiations;
(b) the Panel violated "Collective Bargaining Law" in mandating after
hours negotiations and has no authority to issue such an order.
19. Beim testified at the hearing herein that the Respondent refused
to sign the prenegotiation agreement for several reasons. Firstly, it
included the Panel's directive to negotiate after 5 p.m. for all
quarters. The Union felt that the Panel could not legally require
bargaining after 5 p.m., and, moreover, the submission was for one
quarter whereas the directive included all quarters of negotiation.
Further, Beim stated that there had been no discussion or agreement as
to the rest of ground rule No. 1 as submitted by management; that it
did not contain other provisions to which the parties had agreed. /3/
Conclusions
There are two primary and basic issues to be determined herein: (1)
whether Respondent's refusal and failure to comply with the Panel's
Decision and Order in 81 FSIP 77 was violative of Section 7116(b)(6) of
the Statute; (2) whether Respondent's refusal and failure to execute
the prenegotiation agreement containing terms consented to by the
parties, as well as the provision ordered by the Panel in 81 FSIP 77,
constituted a violation of Section 7116(b)(5) of the Statute.
(1) In contending that the Panel's Decision and Order should be
overturned, Respondent makes three principal arguments: (a) the Panel's
directive to the parties exceeded the scope of the dispute submitted to
it for determination; (b) requiring the parties to meet and negotiate
after 5 p.m. flouts Section 7103(a)(12) of the Statute which calls for
the agency and a union to meet at reasonable times in order to bargain
collectively; (c) the union representatives can only be required to
conduct negotiations during duty hours (no later than 5 p.m.) under
Section 7131 of the Statute. Accordingly, Respondent insists the
Panel's Decision and Order was arbitrary and capricious as well as
illegal.
(a) The basis for the Panel's action in respect to disputes submitted
to it stems from Section 7119 of the Statute. Under subdivision (b)
thereof it is provided that when the resolution of a negotiation impasse
fails, "either party may request the Federal Service Impasses Panel to
consider the matter." Subdivision (c)(5)(A) of Section 7119 states as
follows:
The Panel or its designee shall promptly investigate any
impasse presented to it under subsection (b) of this section. The
Panel shall consider the impasse and shall either--
(i) recommend to the parties procedures for the resolution of
the impasse; or
(ii) assist the parties in resolving the impasse through
whatever methods and procedures, including factfinding and
recommendations, it may consider appropriate to accomplish the
purpose of this section.
The Authority's Rules and Regulations, under Section 2471 et seq.
track the foregoing statutory provisions. They provide for either party
to request the Panel to consider the matter where a negotiation impasse
is not resolved. Further, the Panel may, under 2471.11(a) take whatever
action is necessary and not inconsistent with 5 U.S.C. chapter 71 to
resolve the impasse.
While it is true that the dispute submitted to the Panel concerned
the hours when negotiating sessions should be held in the first quarter
of the 1981-82 academic year, I cannot subscribe to the view that the
Panel's ruling was arbitrary when it directed the parties to bargain
from 12:30 p.m. to 6 p.m. during all academic quarters. The basic
dispute between the Academy and Respondent involved the hours during
which bargaining would occur. The impasse which existed resulted from
the disagreement between the parties as to whether negotiations should
take place after 5 p.m. It did not resolve around whether bargaining
should take place in the first or any subsequent academic quarter.
The statutory language in Section 7119 envisages, as I interpret it,
that the Panel consider the basic issue and take action to resolve the
impasse. In so doing, it seems clear that the Panel may direct a
resolution which embraces the "matter" in dispute, and it may utilize
any method it deems necessary so long as it is not inconsistent with the
chapter. The Authority's decision in National Aeronautics and Space
Administration, Headquarters, Washington, D.C., 12 FLRA No. 94 (1983)
confirms the latitude devolving upon the Panel in this respect. In the
cited case the submission to the Panel failed to specifically identify a
grievance procedure question as an impasse issue. Nevertheless, this
grievance procedure was posed by the union as an issue and did
constitute a dispute between the parties. The Authority rejected an
assertion of lack of jurisdiction based on the failure to identify the
grievance procedure as an impasse issue. It accepted Judge Scalzo's
reasoning that a Panel request must be considered in its entirety; that
the Panel's authority is not delimited by technical language in the
request for resolution, but the entire "matter" may be considered and
determined as appropriate.
The foregoing rationale seems apposite to the case at bar. The
direction by the Panel to bargain between 12:30 p.m. - 6 p.m. during all
academic quarters in which negotiations are conducted is reasonable and
well within the disputed submission. At the time of the Panel's
Decision and Order the first academic quarter was nearly concluded. It
would have been manifestly duplicative to require the parties to return
each quarter for a directive to bargain from 12:30 p.m. to 6 p.m. I
deem the resolution of the Panel, insofar as it encompassed all academic
quarters in which negotiations are conducted, to be within the framework
of the dispute submitted to it. Further, that such directive was a
necessary and integral part of the resolution; that it was not beyond
the scope of the submitted scope so as to be an arbitrary decision.
(b) Parties are adjured, under Section 7114(b)(3) of the Statute, "to
meet at reasonable times and convenient places as frequently as may be
necessary, and to avoid unnecessary delays." Moreover, under Section
7103(12) the definition of 'collective bargaining' includes meeting at
reasonable times. Respondent Union has concluded that the Panel
disregarded this law by directing the parties to meet after 5 p.m. It
construes the term 'reasonable' as precluding negotiations after that
hour since duty work terminates at that time. No determination by the
Authority in this regard has been brought to my attention. However, I
am not persuaded that the directive of the Panel to meet during the
hours 12:30 p.m. to 6 p.m. runs contrary to the aforesaid statutory
provisions. No interdiction is found therein which prohibits bargaining
after duty hours. Moreover, I cannot conclude that engaging in
negotiations one hour beyond 5 p.m. (the expiration of duty) is
tantamount to meeting at an unreasonable time. The order of the Panel
in that respect may place a burden to some extent on the representatives
engaged in negotiations. Nevertheless, the extra hour beyond quitting
time is not imposed upon the Union alone, and I do not view this
particular inconvenience as a violation of Section 7114(b)(3) of the
Statute.
(c) It is also stoutly argued by Respondent that requiring the Union
representatives to negotiate after 5 p.m. violates Section 7131 of the
Statute. Under this section the employee representative must be
allotted official time during negotiations occurring when they would
otherwise be in duty status. The Union contends that if their
negotiators are forced to bargain until 6 p.m., it creates inequality
between the parties since they are not employed as labor-management
personnel. Such a result, it is urged, runs counter to the purpose of
the Statute aimed at equalizing labor and management.
Despite the possible inequality as stated by the Union, I cannot
conclude that Section 7131 mandates that negotiating sessions must take
place during duty hours. That statutory language bespeaks of granting
official time to employees representing a union while negotiating a
collective bargaining agreement during duty hours. It neither
explicitly nor implicitly forbids the holding of negotiations after duty
hours. To so construe the Statute is an unwarranted extension of its
literal language, and I find no support in case law or legislative
history for such a construction. Thus, I conclude that the Panel's
directive did not run afoul of Section 7131 of the Statute.
It is expressly provided in Section 7116(b)(6) that it is an unfair
labor practice for a labor organization to fail or refuse to cooperate
in impasse procedures and impasse decisions as required by that chapter.
While Respondent may challenge the Panel's order in an unfair labor
practice proceeding, it will run afoul of the Statute if said order is
deemed proper. In my opinion the Union herein has not justifiably
refused to abide by the Panel's Decision and Order in 81 FSIP 77 as
being arbitrary and capricious or contrary to law. Accordingly, I
conclude Respondent has violated Section 7116(b)(6) of the Statute. See
National Aeronautics and Space Administration, Headquarters, Washington,
DC, supra; Florida National Guard, 9 FLRA No. 41 (1982); Division of
Military and Naval Affairs, State of New York, Albany, NY, 8 FLRA No. 33
(1982); State of Nevada National Guard, 7 FLRA No. 37 (1981).
(2) An obligation is imposed upon parties who are engaged in
collective bargaining to sign an agreement when they are accord with its
terms. Section 7114(b)(5) declares that the duty to negotiate in good
faith includes the obligation--
if agreement is reached, to execute on request of any party to the
negotiation a written document embodying the agreed terms, and to
take such steps as are necessary to implement such agreement.
Then, it is apparent that, as mandated by the Statute, if the parties
herein reached agreement upon the ground rules for negotiation it is
incumbent upon each to execute a written instrument embodying such
rules.
While Union representative Beim testified there had been a dispute
concerning certain ground rules other than hours of negotiation, i.e.
teaching load per quarter, the number of negotiators during bargaining
sessions, and substitution of negotiators, these had been resolved prior
to the Panel's Decision and Order in 81 FSIP 77. Further, record facts
do not support Beim's testimony that the parties had not agreed to all
ground rules, /4/ or that Article 1 of the prenegotiation agreement did
not include all provisions to which the parties consented. The
prenegotiation agreement submitted by management to the Union on October
8, 1981 (Joint Exhibit 3), contains the exact terms set forth in
Respondent's Exhibit 1-- admittedly agreed to by the parties-- except
for the hours of negotiation as directed by the Panel. This conclusion
is supported by Beim's statement, in his letter to management on March
10, 1981, that there is only one ground rule with which the parties are
not in substantive agreement: the hours when negotiating sessions would
be held.
Accordingly, I am constrained to conclude that the ground rules for
negotiation, except as to the hours therefor, were agreed to by the
parties herein. Based on the record testimony and documents submitted
herein, I am persuaded that the Academy and the Union had resolved all
differences other than the hours during which bargaining should take
place. Further, I conclude that the October 8 prenegotiation agreement
included all the ground rules consented to and relied upon by the
parties, together with the directive by the Panel re the hours for
negotiation.
Respondent has insisted that it would not sign the prenegotiation
agreement since it directed that negotiating sessions be held for all
quarters between 12:30 p.m. and 6 p.m. However, inasmuch as I have
concluded that the terms of the ground rules had been agreed upon and
that the Panel's directive was proper, the Union's refusal to execute
the prenegotiated agreement was not justified. A party may not avoid
its obligations under Section 7114(b)(5) to execute a written agreement
embodying agreed upon terms. To do so runs counter to the duty to
bargain imposed by the Statute. In sum, I conclude Respondent has
violated Section 7116(b)(5) of the Statute by refusing to execute the
prenegotiation agreement as forwarded to it by the agency on October 8,
1981 and recited in Joint Exhibit 3 herein. Military Department, State
of Oregon, Oregon Army and Air National Guard, Salem, Oregon, 8 FLRA No.
107 (1982). See also Defense General Supply Center, A/SLMR No. 790
which, although arising under Executive Order 11491, as amended,
involved a refusal to bargain by not signing a negotiated agreement
which the parties agreed to beforehand.
Having found that Respondent violated Section 7116(b)(5) and (6) of
the Statute by failing and refusing to execute the prenegotiation
agreement containing the provision ordered by the Federal Service
Impasses Panel to be included therein, as well as the ground rules for
negotiation agreed to by the parties, it is recommended that the
Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the American Federation of Government Employees, AFL-CIO, Local
3732 shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the Decision and Order
of the Federal Service Impasses Panel in Case No. 81 FSIP 77, or
in any other manner failing or refusing to cooperate with impasse
procedures and decisions.
(b) Failing or refusing to adopt and incorporate the following
language in the October 8, 1981 prenegotiation agreement with the
Department of Transportation, Maritime Administration, U.S.
Merchant Marine Academy, Kings Point, New York:
The parties shall bargain from 12:30 p.m. to 6 p.m. during all
academic quarters in which negotiations are conducted.
(c) Failing or refusing to sign the October 8, 1981
prenegotiation agreement containing the provision ordered by the
Federal Service Impasses Panel in Case No. 81 FSIP 77, and the
ground rules for negotiations set forth in said agreement.
(d) In any like or related manner interfering with, restraining
or coercing employees in the exercises of their rights assured by
the Statute.
2. Take the following affirmative action in order to effectuate the
policies of the Statute:
(a) Cooperate with the Federal Service Impasses Panel and
comply with its Decision and Order in Case No. 81 FSIP 77.
(b) Adopt and incorporate the following language in its October
8, 1981 prenegotiation agreement with the Department of
Transportation, Maritime Administration, U.S. Merchant Marine
Academy, Kings Point, New York:
The parties shall bargain from 12:30 p.m. to 6 p.m. during all
academic quarters in which negotiations are conducted.
(c) Upon request, sign the October 8, 1981 prenegotiation
agreement containing the provision ordered by the Federal Service
Impasses Panel in Case No. 81 FSIP 77 and the ground rules for
negotiations set forth in said agreement.
(d) Post at the bulletin boards provided for the posting of
union material by the U.S. Merchant Marine Academy, Kings Point,
New York copies of the attached notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed
by the President, American Federation of Government Employees,
Local 3732 and shall be posted by him for 60 consecutive days.
Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(e) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: October 13, 1983
Washington, DC
APPENDIX
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
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT fail or refuse to comply with the Decision and Order of
the Federal Service Impasses Panel in Case No. 81 FSIP 77, or in any
other manner fail or refuse to cooperate with impasse procedures and
decisions.
WE WILL NOT fail or refuse to adopt and incorporate the following
language in the October 8, 1981 prenegotiation agreement with the
Department of Transportation, Maritime Administration, U.S. Merchant
Marine Academy, Kings Point, New York:
The parties shall bargain from 12:30 p.m. to 6 p.m. during all
academic quarters in which negotiations are conducted.
WE WILL NOT refuse to sign the October 8, 1981 prenegotiation
agreement containing the provision ordered by the Federal Service
Impasses Panel in Case No. 81 FSIP 77, and the ground rules for
negotiation set forth in said agreement.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Statute.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 81 FSIP 77 by adopting and incorporating the
following language in the October 8, 1981 prenegotiation agreement with
the Department of Transportation, Maritime Administration, U.S. Merchant
Marine Academy, Kings Point, New York:
The parties shall bargain from 12:30 p.m. to 6 p.m. during all
academic quarters in which negotiations are conducted.
WE WILL sign the October 8, 1981 prenegotiation agreement containing
the provision ordered by the Federal Service Impasses Panel in Case No.
81 FSIP 77 and the ground rules for negotiations set forth in said
agreement.
(Agency or 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 or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region II,
whose address is 26 Federal Plaza, Room 24-102, New York, NY 10278 and
whose telephone number is (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1981.
/2/ The letter did suggest the parties sign off on all other ground
rules which do not require negotiating past that hour and begin the
negotiating process.
/3/ Beim did testify that Article 1 in Respondent's Exhibit 1 was
agreed to by the parties in 1979 except for the disputes re the teaching
load and the hours for negotiations. No mention had been previously
made by Beim that the prenegotiation agreement did not contain all the
agreed upon provisions.
/4/ Moreover, Respondent's Counsel stated that, except for the hours
of negotiation, the parties had agreed to all other terms or ground
rules.