21:0986(117)CO - AFGE and EPA -- 1986 FLRAdec CO
[ v21 p986 ]
21:0986(117)CO
The decision of the Authority follows:
21 FLRA No. 117
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Respondent
and
ENVIRONMENTAL PROTECTION AGENCY
Charging Party
Case No. 3-CO-40003
DECISION AND ORDER
This matter is before the Federal Labor Relations 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 contentions of the parties, the
Authority finds:
It is alleged that the Respondent, American Federation of Government
Employees, AFL-CIO (AFGE), violated section 7116(b)(5) of the Federal
Service Labor-Management Relations Statute (the Statute) /1/ by
rescinding a Memorandum of Understanding (MOU) and failing to abide by
the terms and conditions set forth therein.
The Respondent has been the exclusive representative for the majority
of employees employed by the Environmental Protection Agency (EPA or the
Agency) in a nationally consolidated unit since February 1, 1980.
On August 21, 1980, agents for the two parties executed the MOU which
delegated local level impact and implementation bargaining authority to
local representatives at the former levels of exclusive recognition.
Subsequently, on October 3, 1983, the Respondent notified the Agency, by
letter of the Respondent's rescission of the MOU. That letter stated,
in relevant part, as follows:
We have been informed that Mr. Bob Davis, our Chief Negotiator
for the national agreement, has sent you the union's proposals for
the national agreement. This is to notify you that the 1980 (MOU)
. . . is rescinded by virtue of all matters covered by the union's
proposals being "on the table."
. . . . . . .
Where you may find it necessary to effect a condition of
employment . . . at a local area office of EPA, the Agency's
proposals should be sent to Mr. Davis for consideration at the
national negotiations. On a case-by-case basis, we will consider
authorizing local union negotiators to negotiate on specified
matters upon EPA's request. However, any negotiations conducted
at the local level without specific and express authority by this
office or the National EPA Council will be considered
unauthorized. (Emphasis in original.)
The record also reveals that, at all times material herein, the
parties were in the process of negotiating a collective bargaining
agreement at the national level but had not yet reached agreement. /2/
In the Authority's view, the Respondent's unilateral repudiation of
the MOU constituted a violation of section 7116(b)(5) of the Statute.
In this regard, the Authority has previously held that where a party
repudiates a memorandum of understanding or an agreement in its
entirety, such conduct is violative of the Statute. See U.S. Patent and
Trademark Office, 18 FLRA No. 81 (1985); Great Lakes Program Service
Center, Social Security Administration, Department of Health and Human
Services, chicago, Illinois, 9 FLRA 499 (1982); and Veterans
Administration Hospital, Danville, Illinois, 4 FLRA 432 (1980). /3/ In
the instant case, as is evident from the Respondent's October 3 letter,
the Respondent, AFGE, repudiated the MOU in its entirety and refused to
abide by the terms set forth therein. The Respondent's conduct in this
regard is therefore violative of section 7116(b)(5) of the Statute. /4/
Accordingly, to the extent that the MOU is not inconsistent with the
terms of any subsequently negotiated agreement between the parties, AFGE
shall be ordered to comply therewith.
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, the Authority hereby orders
that the American Federation of Government Employees, AFL-CIO shall:
1. Cease and desist from:
(a) Failing to abide by the terms set forth in the Memorandum of
Understanding entered into with the Environmental Protection Agency on
August 21, 1980, to the extent that such terms are not inconsistent with
any subsequently negotiated agreement between the parties.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Abide by the terms set forth in the Memorandum of Understanding
entered into with the Environmental Protection Agency on August 21,
1980, to the extent that such terms are not inconsistent with any
subsequently negotiated agreement between the parties.
(b) Post at its business offices and in normal meeting places,
including all places where notices are customarily posted at the
Environmental Protection Agency, 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 President of the American
Federation of Government Employees, AFL-CIO, or a designee, and shall be
posted for 60 consecutive days. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(c) Submit signed copies of such Notice to the Environmental
Protection Agency for posting in conspicuous places where unit employees
are located, where they should be maintained for 60 consecutive days
from the date of posting.
(d) 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., May 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7116(b)(5) provides:
Section 7116. Unfair labor practices
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization --
. . . . . . .
(5) to refuse to consult or negotiate in good faith with an
agency as required by this chapter(.)
(2) In this connection, the Authority takes official notice of Union
Recognition in the Federal Government (1985), at p. 415, which indicates
that an agreement covering certain of the Agency's employees and AFGE
became effective on June 11, 1984, for a three-year period.
(3) Such cases are to be distinguished from those in which the
Authority found that single instances of noncompliance with agreements
did not rise to the level of an unfair labor practice. See Internal
Revenue Service and Internal Revenue Service, Detroit District, 12 FLRA
445 (1983) and cases cited therein at n. 3. Rather, they would
constitute contract violations which are cognizable under applicable
negotiated grievance procedures. See, in this regard, Environmental
Protection Agency and Environmental Protection Agency, Region II, 20
FLRA No. 76 (1985) at n. 4 and Social Security Administration, 15 FLRA
614 (1984).
(4) The Authority rejects the Respondent's argument that a memorandum
of understanding executed on August 12, 1983 superseded the 1980 MOU and
thus negated any subsequent repudiation. In the Authority's view, the
substance of the 1983 memorandum, which concerned the delegation of
authority in the event of an extended absence by either of the parties'
designated representatives at the national level, pertained to a
separate matter than was contained in the 1980 agreement and did not,
even by its own terms, supersede the 1980 agreement.
APPENDIX
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 to abide by the terms set forth in the Memorandum of
Understanding entered into with the Environmental Protection Agency on
August 21, 1980, to the extent that such terms are not inconsistent with
any subsequently negotiated agreement between the parties.
WE WILL abide by the terms set forth in the Memorandum of
Understanding entered into with the Environmental Protection Agency on
August 21, 1980, to the extent that such terms are not inconsistent with
any subsequently negotiated agreement between the parties.
(Union)
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, Region III, Federal Labor Relations Authority, whose
address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8500.