[ v21 p986 ]
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 is rescinded by virtue of all matters covered by the union's proposals being "on the table."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.