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The decision of the Authority follows:
22 FLRA No. 64 U.S. DEPARTMENT OF AGRICULTURE FOOD SAFETY AND INSPECTION SERVICE Respondent and NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-30722 DECISION AND ORDER I. Statement of the Case This unfair labor practice is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by which the parties have agreed that no material issue of fact exists. Briefs for the Authority's consideration were filed by the Respondent, the General Counsel and the Charging Party (the Union). The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by insisting on bargaining to impasse with the Union on a matter which was outside the Union's duty to bargain. II. Background The Union represents a nationwide unit of permanent full-time food inspectors in the field service of the Respondent's Meat and Poultry Inspection Program. In July 1983 the parties initiated negotiations. They reached impasse on about 26 proposed agreement articles in September 1983. One of the articles, "Article 34," was at impasse because the Union opposed proposals by the Respondent which would require the parties to attempt to resolve potential unfair labor practices informally before an unfair labor practice charge could be filed under the Authority. /1/ In December 1983 the Respondent requested the assistance of the Federal Service Impasses Panel (the Panel) to resolve the impasse. The Respondent continued to press its position for Article 34 in the mediation phase of the Panel's proceedings and in a Panel arbitration hearing, and the Union continued its opposition. On March 23, 1984, the day following the Panel's arbitration hearing, the Respondent withdrew its proposals for Article 34 and agreed to the provisions for Article 34 which had been proposed by the Union. III. Positions of the Parties The General Counsel and the Union argue that the Respondent's Article 34 proposal, on "pre-charge" procedures, was outside the Union's duty to bargain because it would require the Union to waive its statutory right to file unfair labor practice charges in the manner provided by section 7118 of the Statute. They assert that the Respondent's insistence on bargaining concerning a subject which was outside the Union's duty to bargain (that is, on a "permissive" subject of bargaining" should be found to be a violation of the Respondent's statutory duty to bargain in good faith. The Respondent argues that it did not fail to bargain in good faith, because its proposed "pre-charge" procedure would not unlawfully interfere with the Union's rights and was within the Union's duty to bargain. IV. Analysis A. Insisting on proposals which are outside the duty to bargain In Federal Deposit Insurance Corporation, Headquarters, 18 FLRA No. 92 (1985), a case which presented an issue directly analogous to this case, the Authority found that agency management had insisted on bargaining to impasse, to and including Panel proceedings under section 7119 of the Statute, concerning a proposal which was outside the union's duty to bargain. In that decision the Authority first considered whether this practice amounted to a failure to bargain in good faith and decided in the affirmative, stating in part: (P)arties cannot insist on bargaining to impasse with respect to . . . matters (which are outside the duty to bargain). . . . Where a matter falls outside the required scope of bargaining . . . there is no mutual obligation to bargain at all. Finding that one of the proposals on which management had insisted was outside the union's duty to bargain, the Authority concluded that such conduct constituted a failure to bargain in good faith in violation of section 7116(a)(1) and (5) of the Statute. In this case it is stipulated that the Respondent insisted on bargaining to impasse, up to an including Panel proceedings, concerning proposals which were opposed by the Union. As indicated in Federal Deposit Insurance Corporation, the resolution of this case depends on whether the Respondent's proposal was outside the Union's duty to bargain. B. Whether the proposal was outside the Union's duty to bargain 1. The Proposal: Respondent's Article 34 proposal would require either party to notify the other of a dispute and to follow certain procedures in an attempt to resolve the dispute before the complaining party could file an unfair labor practice charge with the Authority. /2/ The Union objected to the proposal because in its view the proposal would prevent the Union from exercising its right to file an unfair labor practice charge under section 7118 of the Statute. /3/ 2. Application of section 7118: Section 7118 provides that an unfair labor practice charge may be filed at any time within six months from the date of the event complained of, or within six months of its discovery if discovery of the event has been prevented or concealed. If the charge is not filed within six months, the General Counsel is precluded from issuing a complaint. The person filing a charge may do so as soon as the events or actions complained of have occurred or have been discovered. Alternatively, such person has at least six months to discover the occurrence, consider available options, and choose a position before filing the charge. See United States Department of Labor, 20 FLRA No. 34 (1985), petition for review filed, No. 85-1770 (D.C. Cir. Nov. 22, 1985) (the General Counsel may not issue a complaint on a charge filed more than six months from the date of the occurance unless the respondent has prevented discovery of the occurrence). The Respondent's proposal conflicts with section 7118 because, in requiring that the filing of charges would be delayed pending time spent on informal settlement efforts, the Union would be prevented from filing as soon as an event has occurred or been discovered. Notwithstanding this result, which conflicts with the Union's rights under section 7118, the Respondent argues that its proposed procedures are analogous to the procedures determined to be within the duty to bargain in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153, 153-58 (1979) (hereinafter Dix-McGuire), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In Dix-McGuire it was decided that procedures which would merely delay the exercise of statutory rights were within the duty to bargain. However, as indicated by the Authority in its decision and by the D.C. Circuit in affirming the Authority's decision, the question presented in that case concerned the reconciliation of two apparently conflicting statutory rights, i.e., the right of management in exercising rights reserved to management as provided under section 7106(a) of the Statute and the right of labor organizations in negotiating procedures bearing on the exercise of these management rights as provided under section 7106(b)(2) of the Statute. Unlike the question presented in Dix-McGuire, the right of a party to file an unfair labor practice charge under section 7118 does not involve the exercise of a management right to which section 7106(b)(2) is applicable. Additionally, the right to file a charge is not subject to any competing statutory right of an opposing party to be free from being subject to a charge. Hence, there is no analogy between the issue in Dix-McGuire and the issue raised by the Respondent. The Respondent also cites Headquarters, Fort Sam Houston, Department of the Army and American Federation of Government Employees, AFL-CIO, Local 2154, 8 FLRA 394 (1982), in support of its position. In that case the agency excepted to an arbitrator's award to the effect that a contractual pre-charge procedure, i.e., a procedure which had been negotiated by the parties, was unenforceable. In granting the exception and in setting the award aside, the Authority concluded that the arbitrator had erred in denying the grievance on the basis that the negotiated pre-charge procedure was unenforceable, stating that the Statute did not prohibit the union from agreeing to submit potential charges to management before it filed charges with the Authority. Thus, the Respondent is correct in arguing that Fort Sam Houston held that these procedures are "negotiable," but only to the extent that "negotiable" is understood to mean "not illegal." It does not also mean, as the Respondent has argued, that a party may be compelled to bargain on the subject if it chooses not to do so. /4/ Contrary to the Respondent's assertions, this conclusion is not contradicted, but is supported by the report to Congress on these matters by the General Accounting Office in 1982. Steps Can Be Taken To Improve Federal Labor-Management Relations and Reduce the Number and Costs of Unfair Labor Practice Charges, GAO/FPCD-83-5 (Nov. 5, 1982). Recognizing that statutory rights were involved, the GAO did not conclude that pre-charge procedures should be required. It recommended that settlement discussions take place after a charge is filed and that investigations be delayed for such purpose. In this regard, section 2423.2(c) of the Authority's Rules and Regulations now provides that investigations will normally not commence until parties have been afforded a reasonable time, not to exceed 15 days, for such purpose. We acknowledge the Respondent's references to the Authority's comments in Fort Sam Houston on the need to encourage informal settlements. We strongly encourage parties engaged in Federal labor-management relations to take the initiative in settling unfair labor practice disputes at any stage. When settlement efforts are postponed, until charges are filed or the General Counsel decides whether a complaint should issue, timely solutions to the problem which gave rise to the dispute may be lost. Recognizing this, parties often lose the incentive to seek their own solutions and concentrate their efforts on litigation. A failure by the parties to attempt at every stage to resolve disputes voluntarily undermines the bilateralism which the Statute and the Authority are committed to fostering. Far too many disputes are taken to litigation because the parties do not talk with each other and seek mutually satifactory resolutions of their differences. The best resolutions of differences are the resolutions the parties work out themselves. Many unfair labor practice disputes appear to be susceptible to resolution by the parties themselves if they would initiate contact with each other in an attempt to resolve the dispute and approach such discussions with the thought that their differences can and should be resolved. We support the objective of Respondent's proposal and see no problem with the proposal insofar as it encourages the informal settlement of disputes. The difficulty lies in the proposal's requirement that settlement discussions must delay the filing of a charge. We interpret section 7118 of the Statute to establish certain rights regarding the filing of charges which a party may rely upon and withhold from bargaining if it so chooses. As in Fort Sam Houston, a party may decide to waive these rights if it decides that there are benefits to that. However, also consistent with Fort Sam Houston, a party can decide to stand on its statutory right and refuse to bargain the issue. Based on this reasoning we decide that the procedures proposed by the Respondent are permissive subjects of bargaining for the Union because the procedures would require the Union to waive certain of its statutory rights. In certain situations, without fault by either party, delaying the filing of a charge could mean that the charge would be filed more than six months after the occurrence. The General Counsel would not be able to act on the charge. This we feel is not consistent with section 7118 of the Statute. We are not persuaded by the Respondent's reasoning that its proposals should be found to be within the duty to bargain insofar as they would only delay filings. The Statute provides that a party may file as soon as it wants to, and neither the language of the Statute nor the legislative history suggests that this right should be qualified. V. Conclusion The Authority has considered all the facts and circumstances of this case, including the positions of the parties, and concludes that the Respondent did violate section 7116(a)(1) and (5) of the Statute, as alleged in the complaint, by insisting or bargaining to impasse concerning a proposal which was outside the Union's duty to bargain. 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 U.S. Department of Agriculture, Food Safety and Inspection Service shall: 1. Cease and desist from: (a) Insisting to impasse on a matter which is outside the required scope of bargaining with the National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of its 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 U.S. Department of Agriculture, Food Safety and Inspection Service, or a 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 ensure 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 with it. Issued, Washington, D.C., July 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The text of the Respondent's proposal is set forth in Appendix 1. (2) We deny the Respondent's motion to strike portions of the General Counsel's brief which are alleged to be an inaccurate description of the disputed proposal because we find that the General Counsel's description of the proposal is consistent with the record. (3) The applicable provisions of section 7118 are set forth in Appendix 2. (4) See American Federation of Government Employees, AFL-CIO and Equal Employment Opportunity Commission, 15 FLRA 283, 284 (1984), in which the Authority explained that while an agency cannot be required to negotiate procedures for the selection of candidates for supervisory positions, once negotiated, such procedures are enforceable. APPENDIX 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 Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, 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: 1111 18th Street, NW. 7th Floor (P.O. Box 33758), Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. Appendix 1 As pertinent herein, the procedures proposed by the Respondent, which led to the submission of the parties' impasse to the Panel, were as follows: Article XXXIV Unfair Labor Practice Charges Section A -- Informal Resolution It is the intent of the Service and the Union that labor-management conflicts arising during the life of this Agreement be resolved promptly and equitably using bilateral resolution procedures. Section B -- Procedures It is understood . . . that nothing in this section shall preclude either the Service or the Union from exercising rights under section 7116 of the . . . Statute. However, in the interest of informally settling labor-management disputes bilaterally, the Service and the Union agree that: Prior to . . . the . . . filing (of) an unfair labor practice charge with the . . . Authority the charging party shall provide written notice to the other party; (2) Notice shall be provided or received only by (designated officials of the Service and the Union); (3) Such notice shall provide a statement of the particular subsections of . . . the Statute alleged to have been violated; the time; the place; and the date of the alleged unfair labor practice . . . ; and requested relief or settlement . . . ; (4) The parties shall have (30) calendar days after receipt of notice . . . in which to informally resolve the matter in dispute; (5) If not resolved during the above-mentioned (30) calandar day period, the charging party may escalate the matter to the . . . Authority; (6) Extensions to the informal resolution period shall only be approved by mutual consent. . . . (Emphasis added.) Section C -- Exceptions Employees filing unfair labor practice charges shall not be compelled to utilize these procedures, but may do so at their own election. Unfair labor practice allegations concerning strikes or other work stoppage activities covered by Section 7116(b)(7) of the . . . Statute are excluded from these procedures. Appendix 2 The provisions of section 7118 of the Statute which are relevant to the dispute are as follows: Section 7118. Prevention of unfair labor practices (a)(1) If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint. . . . . . (4)(A) Except as provided in subparagraph (b) of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority. (B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of -- (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented discovery to the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. (5) The General Counsel may prescribe regulations providing for informal methods by which the alleged unfair labor practice may be resolved prior to the issuance of a complaint.