[ v18 p768 ]
The decision of the Authority follows:
18 FLRA No. 92 FEDERAL DEPOSIT INSURANCE CORPORATION, HEADQUARTERS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-2589 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the 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 alleges, in essence, that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by insisting to impasse that the Charging Party (the Union) adopt the Respondent's bargaining proposals calling for the Union to waive certain of its rights under the Statute. The record indicates that the Union represents separate units of professional and nonprofessional General Graded and Wage Grade employees assigned to the Respondent's Headquarters in Washington, D.C. During the course of negotiations for a collective bargaining agreement, the parties jointly requested the Federal Service Impasses Panel (the Panel) for assistance with respect to certain unresolved articles. Only one of these articles, containing two separate provisions, is before the Authority in the instant proceeding. The provisions in question, Sections 1 and 2.D(5) of Article 51, were proposed by the Respondent and pertained to mid-contract negotiations. /2/ The Respondent's latest proposals, as submitted to the Panel, are as follows: Section 1 The parties agree that changes in the personnel policies, practices, and matters relating to conditions of employment of employees in the bargaining unit which are within the discretion of the EMPLOYER are subject to negotiation, if the UNION requests negotiations. Further, if the foregoing changes are not within the discretion of the EMPLOYER, the UNION has the right to negotiate on the impact and implementation of those changes, if the UNION requests negotiations. Section 2.D(5) (I)f agreement has not been reached by the Parties after forty-five (45) calendar days from the date the UNION requested negotiations, the EMPLOYER has the right to implement the proposed change in conditions of employment even though the matter has been referred to a third party for resolution. The Union's response to the proposed Section 1 was that the language contained therein would require it to waive certain of its rights under section 7117(a) of the Statute. /3/ More specifically, the Union argued that the proposal would prevent it from bargaining over agency-wide rules and regulations that are "not within the discretion of the Employer." As to Section 2.D(5), the Union basically that it would be waiving its statutory right to utilize third-party impasse procedures if it agreed to allow the Respondent to implement proposed changes prior to the completion of bargaining. In its Decision and Order in Federal Deposit Insurance Corporation, Washington, D.C., and National Treasury Employees Union, 81 FSIP 60 (June 3, 1981), FSIP Release No. 189, the Panel concluded that, with regard to Article 51, Sections 1 and 2.D(5): (T)he Union has raised a threshold question concerning its duty to bargain to impasse over the Employer's proposal, alleging that its adoption would constitute a waiver of the Union's statutory rights. The Panel is without jurisdiction to resolve the question. Until it is resolved in an appropriate forum and further assistance, if necessary is rendered by the Panel, we conclude that the parties should withdraw their proposals with respect to this Article and rely on the applicable sections of the Statute . . . . Thereafter, the Union filed an unfair labor practice charge and the General Counsel issued the complaint herein. The question here presented is whether the Respondent acted properly in insisting to impasse over its proposed Article 51, Sections 1 and 2.D(5). Resolution of this question is dependent upon a determination as to whether the proposals involved a mandatory subject of bargaining or a "permissive" subject of bargaining. While the Authority has previously held that parties may bargain to impasse over mandatory subjects of bargaining, i.e., those matters that are within the required scope of bargaining, /4/ the Authority has not previously addressed whether this policy extends also to permissive subjects of bargaining, i.e., those matters which are either outside the scope of bargaining required of the parties or are negotiable at the election of an agency pursuant to section 7106(b)(1) of the Statute. In the Authority's view, it does not. It is well-established that a party is not required to bargain over a permissive subject of bargaining. This applies equally to proposals advanced by agency management as it does to proposals made by a union. In American Federation of Government Employees, AFL-CIO, 4 FLRA 272 (1980), for example, the Authority determined that an agency's proposals which would have infringed on a union's right to designate its own representatives when dealing with agency management were outside the required scope of bargaining. Therefore, the union's refusal to bargain over the proposals was found not to have violated the Statute. In Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65 (1984) and in International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980) (Proposal No. III), the Authority determined, respectively, that agency management was not required to bargain over matters which were within the ambit of section 7106(b)(1) of the Statute and therefore bargainable only at the election of the agency, or over those matters which are outside the required scope of bargaining. While in such instances, neither agency management nor the union could be required to bargain, nothing in the Statute would preclude bargaining if the parties chose to do so. In this latter connection, the Authority has held that where parties are negotiating a collective bargaining agreement and have elected to bargain over permissive subjects of bargaining and have reached agreement thereon, the parties are bound to adhere to those terms during the life of their agreement. However, upon the agreement's expiration, either party may elect to no longer be bound by such terms and, in effect, reassert its right not to negotiate with regard to such permissive subjects of bargaining. Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984). Clearly, if parties are not required to bargain over permissive subjects of bargaining, it follows that parties cannot insist on bargaining to impasse with respect to such matters within the meaning of section 7119 of the Statute. As previously noted, the Authority determined in Vermont Air National Guard, supra, that parties may bargain to impasse over mandatory subjects of bargaining. In so deciding, the Authority noted that parties have a mutual obligation to bargain in good faith and that where an impasse in negotiations is reached, either party may request the assistance of the Panel under section 7119. Where a matter falls outside the required scope of bargaining or is negotiable only at the election of an agency, there is no mutual obligation to bargain at all. If parties do bargain over such matters either may withdraw at any time prior to reaching agreement. In order to determine whether in the instant case the Respondent's conduct in insisting to impasse on the two proposals was violative of the Statute, it is necessary to examine whether the proposals were mandatory or permissive subjects of bargaining. The Authority turns first to Article 51, Section 1. That proposal provides that changes in personnel policies, practices and matters relating to conditions of employment of unit employees which are within the Employer's discretion are subject to negotiations, upon the Union's request. For changes that are not within the discretion of the Employer, the Union has the right to negotiate, upon request, over the impact and implementation of those changes. The Union and the General Counsel argue that the language of the proposal would require the Union to waive certain of its statutory rights under section 7117(a) of the Statute, specifically with regard to agency-wide rules and regulations that are "not within the discretion of the Employer." In this connection, there appears to be some confusion as to whether the term "Employer" refers to the Respondent herein or to the Board of Directors of the Federal Deposit Insurance Corporation which, according to the parties' stipulation, establishes agency-wide policy. The Respondent argues essentially that the proposal does not conflict with the Statute and therefore cannot constitute a waiver of the Union's statutory rights. In the Authority's view, nothing contained in the proposal is inconsistent with the Statute so as to remove it from the required scope of bargaining. The objection to the proposal raised by both the General Counsel and the Union, as noted above, concerns a limitation on bargaining over agency-wide rules and regulations. Section 7117(a) of the Statute, as here relevant, extends the duty to bargain to rules and regulations issued by an agency or primary national subdivision of that agency where ;o compelling need for the rule or regulation is found to exist pursuant to the Authority's Rules and Regulations, /5/ so as to bar negotiations on conflicting proposals. In this regard, the Authority determined in Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), aff'd sub nom. Defense Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (1985), that agency management at the level of exclusive recognition may be required to bargain over an agency-wide rule or regulation as it applies to unit employees where no compelling need has been demonstrated for the rule or regulation to bar negotiations or the matter is not otherwise removed from the required scope of bargaining. /6/ Such bargaining would, of course, apply to the substance, procedures, and appropriate arrangements for employees adversely affected by the agency-wide rule or regulation. But see, U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984), rev'd sub nom. United States Army Engineer Center v. FLRA, No. 84-1327 (4th Cir. May 23, 1985). In the instant case, the General Counsel and the Union apparently are concerned that the proposal would limit the Union's opportunity to bargain over agency-promulgated rules and regulations only to their impact and implementation, thus removing the Union's right to bargain as to the substance of such rules and regulations. In the Authority's view, whether the term "Employer" refers to the Respondent or to that level of agency management which is responsible for establishing agency-wide rules and regulations, bargaining as to the substance of such rules and regulations at the level of exclusive recognition would be proscribed only where there was a compelling need for the rule or regulation or where the matter was otherwise removed from the required scope of bargaining because of an inconsistency with law, rule or regulation, including the Statute. Simply because an agency-wide rule or regulation is not within the discretion of agency management at the level of exclusive recognition would not remove it from the required scope of bargaining. /7/ In fact, even the Respondent concedes that a change in agency policy for which no compelling need has been found to exist would be within the discretion of the Employer and therefore negotiable in substance. As to the proposed Section 1, therefore, the Authority does not view the language contained therein as a limitation on the Union's right to bargain over agency-wide rules and regulations. Rather, the proposal appears to be an accurate reflection of the statutory rights and obligations of the parties to bargain over changes in personnel policies, practices, and matters relating to conditions of employment of unit employees. Accordingly, the Authority finds the proposal to be within the required scope of bargaining, and therefore the Respondent's insistence to impasse on the proposal does not constitute a violation of the Statute. The Respondent's proposed Article 51, Section 2.D(5), on the other hand, does not fall within the required scope of bargaining. The language of that proposal would allow the Respondent to implement a proposed change in conditions of employment if agreement has not been reached by the parties after forty-five days from the date the Union requested negotiations, even if the matter has been referred to a third-party for resolution. The Union and the General Counsel argue that the proposal would preclude the Union from fully utilizing the impasse machinery provided for in the Statute. The Authority agrees and notes that section 7119 of the Statute provides for third-party resolution of negotiation impasses and permits either party to a negotiation impasse to request the assistance of the Federal Service Impasses Panel. The Authority has previously determined that where parties have reached an impasse in their negotiations, and one party timely invokes the services of the Panel, the parties are required to maintain the status quo, to the maximum extent possible, i.e., consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate; and, further, that a failure or refusal to do so will constitute a violation of the Statute. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA No. 61 (1985). To the extent that the proposed Section 2.D(5) would allow the Respondent to implement proposed changes in conditions of employment while such matters are pending before the Panel for resolution, the proposal would limit the Union's right to insist upon the maintenance of the status quo to the maximum extent possible until the Panel has taken appropriate action. Therefore, the proposal is not within the required scope of bargaining. While the Union may of course choose to bargain over the proposal, the Authority finds that it cannot be required to do so. Accordingly, the Respondent's insistence to impasse on a proposal which does not concern a mandatory condition of employment is violative of section 7116(a)(1) and (5) of the Statute. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Federal Deposit Insurance Corporation, Headquarters shall: 1. Cease and desist from: (a) Insisting to impasse on a matter which is outside the required scope of bargaining with the National Treasury Employees Union, the exclusive representative of unit employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at 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 head of the Federal Deposit Insurance Corporation, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, in writing, within 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. 3-CA-2589 found not to have violated the Statute be, and it hereby is, dismissed. Issued, Washington, D.C., June 28, 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 insist to impasse on a matter which is outside the required scope of bargaining with the National Treasury Employees Union, the exclusive representative of our employees. 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 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 for Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452. --------------- 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/ Another section of Article 51 was also before the Panel but was not raised as an issue in the unfair labor practice complaint herein. /3/ Section 7117(a) provides, in relevant part: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult * * * * (2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. (3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable. /4/ Vermont Air National Guard, Burlington, Vermont, 9 FLRA 737 (1982). /5/ See Part 2424, Subpart B of the Authority's Rules and Regulations. /6/ While the Authority's determination in this regard was upheld by the D.C. Circuit, the case was remanded to the Authority for the sole purpose of permitting the petitioners to present evidence as to whether or not there existed a compelling need for the particular regulation at issue. /7/ See, in this connection, National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA 554 (1983) and American Federation of Government Employees, AFL-CIO, Local 3656 and Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA 702 (1980).