[ v16 p456 ]
The decision of the Authority follows:
16 FLRA No. 69 U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT KANSAS CITY, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Charging Party Case No. 7-CA-30503 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, including the stipulation of facts, accompanying exhibits and the parties' contentions, the Authority finds: The National Federation of Federal Employees, Local 29, the Union, is the exclusive representative of all GS and WB non-supervisory employees of the Kansas City District Corps of Engineers. On August 4, 1982, Respondent requested the assistance of the Federal Service Impasses Panel (FSIP or Panel) to consider an impasse arising from negotiations over the Respondent's proposed implementation of the Missouri River Division Regulation (MRD-R) 385-1-4, entitled "Occupational Health Program." This regulation establishes procedures for medical evaluations of employees pursuant to the Occupational Health Program in the Missouri River Division which includes employees of the Kansas City District Corps of Engineers. Pursuant to the Panel's direction, the Union and Respondent filed proposals and position statements on the issues at impasse. The Union submitted the following proposal to the Panel on October 12, 1982: When an employee is required and/or directed by the employer, to undergo a medical examination under the provisions of MRD-R 385-1-4, the employee shall be given the opportunity to utilize either a designated military medical facility, contract physician or the employee's personal physician. All reasonable and customary charges and expenses related to such examinations shall be borne by the employer. On October 12, 1982, the Respondent proposed that: Medical examinations for employees of the Kansas City District will be conducted by a Federal medical officer, military physician, or local contracted physician as determined by the employer. All costs related to such examinations will be borne by the employer. Respondent's position was that utilization of military medical facilities and private physicians contracted by the U.S. Army was the most economical and practical method of providing medical examinations for Kansas City District employees. In asserting its position, the Respondent specifically stated that, "While only employees engaged in health-hazardous occupations are required to have periodic job related examinations the opportunity to have periodic health-maintenance examinations is intended for all employees." The Union and Respondent submitted rebuttal statements of position to the Panel on October 26, 1982. On January 3, 1983, the Panel issued a Decision and Order in 82 FSIP 145 ordering the parties to adopt the following language in a mid-term agreement: (1) the Union's proposal for bargaining-unit employees in health-hazardous occupations, as amended to require the affected employee to pay any difference between the contract price and the private physician's fee, and (2) the Employer's proposal for all other bargaining-unit employees. On January 13, 1983 Respondent requested a clarification of the above-referenced Decision and Order. In its request for clarification the Respondent stated that the intent of its proposal was to provide medical examinations only to employees engaged in health-hazardous occupations and to 56 bargaining-unit employees working on or nearby a U.S. Army installation. The FSIP responded to the request to clarify on January 27, 1983 by restating the Decision and Order and by explaining that it intended the Employer's proposal to apply to all bargaining-unit employees except for those involved in health-hazardous occupations, whether or not the employees are located on or near a U.S. Army military installation. The Union and Respondent met and discussed the Panel's Decision and Order and alternative propositions and arrangements during the period between January 27 and July 1, 1983. On July 6, 1983 the Union requested that Respondent implement the Panel's Decision and Order immediately. On July 12, 1983, Respondent informed the Union that Respondent was taking immediate steps to implement part (a) of the FSIP Decision and Order and also that Respondent would not implement part (b) of the Order concerning employees in non health-hazardous occupations. Respondent has not implemented the second portion of the Panel's Order. The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to adopt and implement a Decision and Order of the Panel which requires Respondent to furnish, at no cost to the employee, medical examinations for all bargaining-unit employees including those who are not engaged in health-hazardous occupations. Section 7119(c)(5)(B)(iii) of the Statute provides that the Panel may take whatever action is necessary and not inconsistent with the Statute to resolve an impasse. Section 7119(c)(5)(C) of the Statute provides that "final action" of the Panel shall be binding on the parties. /2/ While a party to a proceeding before the FSIP may not appeal directly to the Authority, see State of New York, Division of Military and Naval Affairs, 2 FLRA 185 (1979), the Authority has held that review of a final Panel Decision and Order may be obtained through unfair labor practice procedures initiated by a party alleging noncompliance with a Panel Decision and Order, /3/ such as the case herein. Respondent argues that the Panel had no jurisdiction over any issues pertaining to employees not engaged in health-hazardous occupations, because that issue was not raised in the initial request for assistance or in any subsequent documents submitted to the Panel. This argument cannot be sustained. The stipulated record shows that the proposals, submissions and exhibits presented to the Panel discuss bargaining unit employees engaged in both health-hazardous and non health-hazardous occupations. For example, in Respondent's initial Request for Assistance to the Panel it stated that provisions of Missouri River Division Regulation (MRD-R) 385-1-4, Occupational Health Program are applicable to all civilian and military employees in the Kansas City District. In Respondent's October 12, 1982 position statement to the Panel the Respondent describes its proposal as the most "economical and practical method of providing medical examinations for Kansas City District employees," without stating whether or not the employees described were involved in health-hazardous occupations. Respondent specifically stated that "the opportunity to have periodic health maintenance examinations is intended for all employees." Even Respondent's proposal, as stated above, did not differentiate between employees in health-hazardous occupations and those in non health-hazardous occupations. Based on this evidence it does not appear that the Panel was acting outside of its jurisdiction by rendering a Decision which ordered the parties to adopt a proposal which provides medical examinations for all bargaining unit employees. The Respondent also argues that even if the issue was before the Panel it had never ripened into an impasse and that since the Panel is only empowered to resolve issues at impasse, the Panel exceeded the scope of its jurisdiction. This argument is also without merit. In National Aeronautics and Space Administration, Headquarters, Washington, D.C., 12 FLRA No. 94 (1983), the parties' submissions to the Panel failed to specifically identify a grievance procedure question as an impasse issue. The Authority adopted the ALJ's decision in which he rejected the Respondent's assertion of lack of jurisdiction which was based on the fact that the grievance procedure was not specifically identified as an impasse issue. The Authority adopted the Judge's reasoning that a request to the Panel must be considered in its entirety; that the Panel's authority is not delimited by technical language in the initial request for review, but that the entire matter must be considered and determined as appropriate. The record in this case reveals that the subject of providing medical examinations for all employees was posed in the Respondent's initial request for assistance and in subsequent submissions by the parties to the Panel. Furthermore, despite assistance from mediators, the parties had not reached an agreement as to the provision of medical examinations to employees. As the Panel found, these circumstances constitute an "impasse" within the meaning of section 2470.2(e) of the Rules and Regulations of the Federal Service Impasses Panel. /4/ After carefully considering the Respondent's request to the Panel in its entirety, the Authority concludes that there is no merit to the Respondent's contentions that the Panel had no jurisdiction to issue a decision concerning medical examinations for employees in non health-hazardous occupations since this was an impasse issue presented to the Panel for resolution. Accordingly, the Authority concludes that Respondent violated section 7116(a)(1) and (6) of the Statute by failing and refusing to comply with the decision of the Panel concerning the provision of medical examinations for all unit employees. In view of this finding the Authority finds it unnecessary to pass upon whether the Respondent's conduct also violated section 7116(a)(5) of the Statute. See State of California National Guard, 8 FLRA 54 (1982), remanded on other grounds sub nom. California National Guard v. FLRA, No. 82-7187 (9th Cir. Jan 7, 1983), supp. dec. on remand 15 FLRA No. 102 (1984). ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri shall: 1. Cease and desist from: (a) Failing and refusing to comply with all provisions of the Decision and Order of the Federal Service Impasses Panel in Case No. 82 FSIP 145, dated January 3, 1983. (b) In any like or related manner, interfering with, restraining, or coercing 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 carry out the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the Respondent's proposal for all bargaining unit employees not engaged in health-hazardous occupations, and otherwise cooperate in impasse procedures and decisions as required by the Federal Service Labor-Management Relations Statute. (b) Post at its facilities copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commander and District Engineer, U.S. Army Corps of Engineers, Kansas City District, or his designee, and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Commander shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within thirty (30) days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the portion of the complaint in Case No. 7-CA-30503 which alleges a violation of section 7116(a)(5), be, and it hereby is dismissed. Issued, Washington, D.C., November 14, 1984. Henry B. Frazier III, Acting Chairman Ronald W. Haughton, 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 comply with all provisions of the Decision and Order of the Federal Service Impasses Panel in Case No. 82 FSIP 145, dated January 3, 1983. WE WILL comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the Respondent's proposal for all bargaining unit employees not engaged in health-hazardous occupations, and will otherwise cooperate in impasse procedures and decisions as required by the Federal Service Labor-Management Relations Statute. 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. (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 its provisions, they may communicate directly with the Regional Director, Region VII, of the Federal Labor Relations Authority whose address is: 1531 Stout Street, Suite 301, Denver, CO 80202 and whose telephone number is (303) 837-5224. --------------- FOOTNOTES$ --------------- /1/ Section 7116 of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; * * * * (6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter(.) /2/ Section 7119(c)(5) provides in pertinent part: Sec. 7119. Negotiation impasses; Federal Service Impasses Panel * * * * (B) If the parties do not arrive at a settlement after assistance by the Panel . . . , the Panel may-- * * * * (iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse. (C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise. /3/ See National Aeronautics and Space Administration, Headquarters, Washington, D.C., 12 FLRA No. 94 (1983); State of Nevada National Guard, 7 FLRA 245 (1981), remanded on other grounds sub nom. Nevada National Guard v. FLRA, No. 82-7034 (9th Cir. Jan. 7, 1983), supp. dec. on remand 15 FLRA No. 101 (1984). /4/ Section 2470.2 provides: Section 2470.2 Definitions (e) The term "impasse" means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.