[ v17 p667 ]
The decision of the Authority follows:
17 FLRA No. 97 U.S. DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, AFL-CIO Charging Party Case No. 3-CA-30282 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 complaint essentially alleges that the U.S. Department of Commerce, Bureau of the Census (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to reopen contract negotiations after the membership of the Charging Party, American Federation of Government Employees, Local 2782, AFL-CIO (the Union), refused to ratify the tentative agreement reached by the parties. /1/ The Union is the exclusive representative of two bargaining units of employees of the Respondent who are located in the Washington, D.C. metropolitan area. The parties' collective bargaining agreement, which was ratified by the Union's membership and effectuated on June 23, 1977, was in effect at all times material herein. Article 6 of that agreement pertaining to the parties' negotiated ground rules, provides in pertinent part as follows: ARTICLE 6-- FUTURE NEGOTIATIONS . . . . 6.2 Proposals. The initiating party shall submit its proposals, in writing, at least 40 days prior to the scheduled commencement of negotiations. Following receipt of such proposals, the other party shall have no more than 20 days in which to submit, also in writing, any counterproposals or new matter. No new matter will be admitted for negotiation from either party following the first 12 hours of negotiations; either party may at any time submit counterproposals to or modifications of proposals previously admitted. . . . 6.3 Signifying Agreement. When agreement is reached upon any proposal, or any part of a proposal, the two chief negotiators shall signify such agreement, either through their initials or through some other device, on the face of the proposal. Such signification shall not, however, preclude the parties from mutually agreeing to reconsider or revise previously approved proposals at any time prior to the formal termination of negotiations. . . . . . . . 6.7 Effective Date. Any substantive agreement reached shall become effective between the parties on the date of signing, following ratification by the membership and approval by the National President of the Union, and approval by the Director. On or about June 11, 1980, the Respondent and the Union commenced negotiations for a new collective bargaining agreement which after numerous sessions was completed on September 1, 1982. /2/ Thereafter, the Respondent and the Union initialed off on a final package of proposals to constitute their tentative collective bargaining agreement. The Respondent was informed by the Union at that time that the tentative agreement would be placed before its membership for a ratification vote. On or about September 23, the Union's membership, after having reviewed the subject agreement, voted against ratification. On or about September 24, the Union notified the Respondent of the outcome of the ratification vote and requested the resumption of negotiations. On or about October 21, the Respondent wrote to the Union noting, inter alia, that in light of the vote not to ratify the tentative agreement, it was incumbent on the Union to submit proposals in advance of further negotiations; the Respondent also in such letter, and again on or about November 4, requested the Union to clarify the bargaining authority of its negotiators. The Union submitted 26 proposals on December 29, certain of which concerned matters not previously proposed during the period between June 1980 and December 29, 1982, and whose omission from the tentative contract had been noted by the Union's membership as a reason for its rejection. By letter dated January 19, 1983, the Respondent, noting the Union's proposals, informed the latter that it would, pursuant to Article 6.3 of the ground rules, reconsider only those six provisions which the parties had previously negotiated and embodied in their tentative agreement. Thereafter, on February 1, 1983, the Union filed the unfair labor practice charge herein. For the reasons discussed below, the Authority concludes that the Respondent's admitted refusal to reopen negotiations, pursuant to the Union's request, except for the six items listed in its memorandum of January 19, 1983, constitutes a violation of section 7116(a)(1) and (5) of the Statute. Section 7114(a)(4) and (b)(2) of the Statute provides, in relevant part, as follows: Sec. 7114. Representation rights and duties . . . . (a)(4) Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. . . . . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (2) to . . . discuss and negotiate on any condition of employment(.) It is apparent from the specific language of the aforementioned provisions of the Statute that an agency and the exclusive representative of its unit employees have an obligation to negotiate in good faith with respect to any condition of employment affecting unit employees in an effort to arrive at a collective bargaining agreement. The exclusive representative may, however, waive its statutory right to negotiate on such matters by clear and unmistakable conduct. Library of Congress, 9 FLRA 427 (1982); Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Further, with respect to the bargaining process, the Authority has found that ratification of a tentative agreement by a union's membership may be a precondition to a binding agreement. Department of Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 13 FLRA 571 (1984). The Respondent argues that by virtue of Article 6.3 of the parties' ground rules, which precludes the reconsideration or revision of proposals previously approved by the parties absent mutual agreement, the Union waived its right to reopen contract negotiations in the wake of the ratification vote. The Authority disagrees. In so concluding, the Authority finds that the Union did not clearly and unmistakably waive its right to reopen contract negotiations. In this regard, Article 6.7 of the parties' ground rules on its face specifically provides for "ratification by the membership" prior to any substantive agreement becoming effective. Also, the stipulated record reveals that the parties' existing collective bargaining agreement had been ratified by the Union's membership prior to its effectuation, and that on the date the parties initialed off on their final package of proposals herein, the Union informed the Respondent that such proposals would be placed before its membership for a ratification vote. Therefore, under these circumstances, the Authority finds that ratification by the Union's membership was a precondition to a binding agreement, and that neither the language of Article 6 of the parties' ground rules nor the record evidence establishes that the Union clearly and unmistakably waived its right to reopen contract negotiations following a failure to ratify the tentative agreement. At the same time, the Respondent's obligation to bargain is not without limits under the facts presented. Irrespective of ratification procedures, Article 6.2 clearly limits the rights of the parties to raise new matters after the first twelve hours of negotiations. Pursuant to that contractual provision, the Respondent is not obligated to negotiate on proposals which are entirely new or which are not "counterproposals to or modifications of proposals previously admitted . . . ." Examples of new matters raised by the Union in its proposals submitted after the ratification vote include a Mini-Arbitration procedure and the contemplated establishment of a Day Care Center rather than a Task Force to study the feasibility of such a center. Since the record reveals that the Respondent refused to negotiate over certain Union proposals dated December 29, 1982, which were not entirely new matter, the Authority finds that the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to reopen contract negotiations on such proposals after the Union's membership refused to ratify the tentative agreement reached by the parties. See Norfolk Naval Shipyard, 9 FLRA 36 (1982), aff'd sub nom. Tidewater Virginia Federal Employees Metal Trades Council v. FLRA. No. 82-1876 (D.C. Cir. May 4, 1983). Accordingly, in view of the foregoing, the Authority concludes that the 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 by the parties. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the U.S. Department of Commerce, Bureau of the Census shall: 1. Cease and desist from: (a) Failing and refusing to negotiate in good faith with the American Federation of Government Employees, Local 2782, AFL-CIO, the exclusive representative of its employees, with respect to conditions of employment relating to negotiations for a new collective bargaining agreement. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request of the American Federation of Government Employees, Local 2782, AFL-CIO, the exclusive representative of its employees, bargain with respect to conditions of employment relating to matters previously raised during negotiations for a new collective bargaining agreement, subject to any contractual agreement which may have been reached and approved by the parties subsequent to December 29, 1982. (b) Post at all of its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director of the Bureau of the Census, or his or her designee, 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. (c) 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. Issued, Washington, D.C., April 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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 refuse to negotiate in good faith with the American Federation of Government Employees, Local 2782, AFL-CIO, the exclusive bargaining representative of our employees, with respect to conditions of employment relating to negotiations for a new collective bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL negotiate in good faith with the American Federation of Government Employees, LOCAL 2782, AFL-CIO, the exclusive bargaining representative of our employees, upon request, with respect to conditions of employment relating to matters previously raised during negotiations for a new collective bargaining agreement, subject to any contractual agreement which may have been reached and approved by the parties subsequent to December 29, 1982. (Agency or 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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) 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(.) /2/ Hereinafter, all dates refer to the year 1982 unless otherwise indicated.