25:0579(44)CA - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 -- 1987 FLRAdec CA
[ v25 p579 ]
25:0579(44)CA
The decision of the Authority follows:
25 FLRA No. 44
DEPARTMENT OF THE AIR FORCE, GRIFFISS
AIR FORCE BASE, ROME, NEW YORD
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2612, AFL-CIO
Charging Party
Case No. 1-CA-50405
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision, and the General Counsel filed an opposition.
Pursuant to section 2423.29 of the our Rules and Regulations and
section 7118 of the Federal Service Labor-Management Regulations Statute
(the Statute), we have reviewed the rulings of the Judge made at the
hearing and find that no prejudicial error was committed. The rulings
are affirmed. Upon consideration of the Judge's Decision, the
exceptions, opposition, and the entire record, we adopt the Judge's
findings, conclusion and recommended order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, we
order that the Department of the Air Force, Griffiss Air Force Base, New
York:
1. Cease and desist from:
(a) Failing and refusing to reopen contract negotiations and
negotiate in good faith with the American Federation of Government
Employees, 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 employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations 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 2612, AFL-CIO, the exclusive representative of
its employees, reopen contract negotiations and bargain with
respect to conditions of employment relating to subjects included
in the parties' original proposals for a new collective bargaining
agreement.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander,
Griffiss Air Force Base, New York, and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulltein boards and other places
where notices to employees are customarily posted. The Commander
shall take reasonable steps to ensure that such notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations notify the Regional Director, Federal Labor Authority,
Region I, 10 Causeway Street, Room 1017, Boston, MA, 02116 and
whose telephone number is (617) 565-7280, 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., February 5, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 EFFECUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to reopen contract negotiations and
negotiate in good faith with the American Federation of Government
Employees, Local 2612, AFL-CIO, the exclusive 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 employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, Local 2612, AFL-CIO, the exclusive representative of our
employees, reopen contract negotiations and bargain with respect to
conditions of employment relating to subjects included in the parties'
original proposals for a new collective bargaining agreement.
(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 I, whose address is: 10 Causeway Street, Room 1017,
Boston, MA 02116 and whose telephone number is: (617) 565-7280.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-50405
DEPARTMENT OF THE AIR FORCE
GRIFFISS AIR FORCE BASE,
ROME, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, Local 2612, AFL-CIO
Charging Party
Major Charles D. Beckengauer, Esquire
For the Respondent
Mr. Salvatore Grifasi
For the Charging Party
Gerard Mr. Greene, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This case concerns an unfair labor pracitce complaint issued by the
Regional Director, Region I, Federal Labor Relations Authority, Boston,
Massachusetts, against the Department of the Air Force, Griffiss Air
Force Base, Rome, New York (the Respondent), based on a charge filed by
the American Federation of Government Employees, Local 2612, AFL-CIO
(the Union). The complaint alleged, in substance, that the Respondent
violated Section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, 5 USC Section 7101 et seq. (the
Statute), commencing on or about May 2, 1985, by refusing to resume
negotiations for a new collective bargaining agreement, upon request,
after the Union's membership refused to ratify the collective bargaining
agreement reached by the parties on or about November 30, 1984.
The Respondent's Answer admitted the jurisdictional allegations as to
the Union, the Repondent, and the charge, and admitted that the contract
concluded by the parties' duly authorized representatives on or about
November 30, 1984 was subject to ratification by the membership of the
Union. The Respondent's Answer, however, denied any violation of the
Statute.
A hearing was held at Griffiss Air Force Base, Rome, New York. The
Respondent, Charging Party, and the General Counsel were represented and
afforded full opprotunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs, and the proposed
findings have been adopted where found supported by the record as a
whole. Based on the entire record, /1/ including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
1. At all times material herein, the Respondent has recognized the
Union as the exclusive representative of an appropriate unit of
employees at Griffiss Air Force Base, Rome, New York. Since 1968, the
Union has negotiated collective bargaining agreements with Respondent,
which agreements were executed in 1970, 1973, 1976, and 1981.
2. Relevant provisions of previous agreements dealing with
"preliminary agreements" were as follows:
1970: (1968 Ground Rules) As each separate article is agreed
to, a preliminary written draft will be prepared and signed by the
spokesman for each party. It is understood, however, that
agreement on all such articles is contingent upon local agreement
on a total contract. It is further understood that local
agreement on the total contract is subject to approval by HQ USAF
and the National President of AFGE and that the contract will not
be binding on either party until such a approval is obtained.
1973: (1972 Ground Rules) As each separate article is agreed
to, a preliminary written draft will be prepared and signed by the
spokesman for each party. It is understood, however, that
agreement on all such articles is contingent upon local agreement
on a total contract. It is further understood that local
agreement on the total contract is subject to approval by HQ USAF
and ratification by the membership of Local 2612, AFGE, and that
the contract will not be binding on either party until such
approval is obtained.
(Article 37) This agreement is subject to ratification by the
membership of Local 2612, AFGE.
1976: (Ground Rules) As each separate article is agreed to, a
preliminary written draft will be prepared and signed by the
spokesman for each party. It is understood, however, that
agreement on all such articles is contingent upon local agreement
on a total contract. It is further understood that local
agreement on the total contract is contingent on approval by the
HQ SAC and ratification by the membership of Local 2612, AFGE, and
that the contract will not be binding on either party unitl said
approval is obtained.
(Article 37) This agreement is subject to ratification by the
membership of Local 2612, AFGE.
3. Until June 1984, when the parties began negotiating the contract
involved in this proceeding every contract between the parties had been
subjected to ratification by the Union membership.
4. In 1979, William DeSantis became the Chief Negotiator for
management. Based upon his personal initiatives, changes were made to
the 1979 ground rules deleting any reference to ratification and the
language concerning whether the parties are bound. Management also
tried to delete the language in Article 37 concerning ratification.
After a series of exchanges, Article 37 of the 1981 agreement concerning
ratification was left unchanged from the 1976 agreement.
5. In 1981, the parties reached agreement under the ground rules
dated 1979. The Union advised Respondent that the agreement would be
submitted to the membership for ratification. The agreement was
submitted to the membership for ratification and it failed.
6. Sometime prior to June 5, 1981, Union president Orrie Passante
informed Mr. DeSantis of the failed ratification. Mr. DeSantis
immediately informed Mr. Passante that management would not return to
the table. Mr. DeSantis relied on the changes to the ground rules. Mr.
Passante neither agreed nor disagreed with Mr. DeSantis position.
7. On June 5, 1981, Mr. Passante wrote to Mr. DeSantis informing him
of the reasons for the rejection listing five articles and including
proposals to replace the objectionable provisions.
8. On or before July 5, 1981, Mr. Passante's successor, Vincent
Capitano, resubmitted the original contract to the local for
ratification. The contract was ratified. The contract had not been
modified since the first ratification effort.
9. Mr. Capitano initiated a change to Article 35 (dues allotments)
because the Union could not live up to its commitment. This change was
on July 7, 1981, after the second ratification meeting. Article 35 was
changed again on July 20, 1981, pursuant to direction from the agency
head responsible for approving the agreement.
10. Other changes were made to the contract on July 10, 1981 after
the second ratificaion meeting also because of direction from the agency
head. The changes were to Articles 18, 23, and 37.
11. Negotiations on the contract which is involved in this
proceeding began in June and ended in November 1984. Employee Sal
Grifasi, as Chief Negotiator, and Greg Howe, as his assistant, comprised
the Union's negotiating team. The Respondent was represented by William
DeSantis, as its Chief Negotiator, and Phil Montana. At the very
beginning of negotiations, on June 14, 1984, Grifasi and DeSantis signed
off on the Union's proposal for Article 37 of the new contract which,
like its antecedents, provided in relevant part, "This agreement is
subject to ratification by membership of Local 2612, AFGE." This item
was part of the Union's initial package of contract proposals, and it
was signed without amendment, discussion, or the exchange of
counterproposals. Grifasi and DeSantis signed Article 37 before
negotiations on ground rules began. Article 37 provided, in part, as
follows:
ARTICLE 37
DURATION OF AGREEMENT
Section 1. This agreement is subject to ratification by
membership of Local 2612, AFGE. It is effective on the date of
approval by HQ SAC and will expire 3 years after the date it was
signed by the parties.
12. The Respondent's proposal for the 1984 ground rules made no
reference to ratification of the contract by the Union's membership, and
the ground rules concluded by the parties later in June 1984 likewise
did not address the subject. These ground rules provided, in part:
3. Frequency, Duration and Location of Negotiation
Sessions
Both Management and the Union will negotiate in good faith with
the objective of reaching agreement upon the subjects included in
the original proposals. Neither management nor the union will be
obligated to negotiate with respect to any sjbject not included in
said proposals.
5. Preliminary agreements
When agreement is reached on an article, the article will be
expressed in writing and initialed by both spokespersons. After
initialing the article it will not be the subject of future
discussions unless it is in conflict with a later article which is
agreed upon.
13. Management had previously proposed ground rules which, in
addition to the language above, provided:
The agreement will become contractually binding when signed by
the Union Management and approved by HQ SAC/DPC.
This language was removed when the Union indicated that "it was
covered in Article 37."
14. During negotiations on the ground rules Mr. DeSantis infromed
the Union that once an article was agreed upon, it would not be
discussed again unless it conflicted with another article; that
Respondent did not recognize an obligation to reopen if the Union did
not ratify; that ratification was their problem, and Respondent had
refused to return to the table before in 1981 and would do so again.
The Union representatives made clear that they were relying on Article
37 requiring member ratification and expected to return to the table if
the agreement was not ratified. They explained that they would do the
best they could, but it was up to the members to accept or reject the
contract.
15. The evidence does not support Respondent's claim that paragraph
5 of the 1984 ground rules extended so far as to prevent the reopening
of the contract if the ratification required by Article 37 was not
obtained.
16. The parties concluded negotiations on November 30, 1984 with "a
package deal." The package deal included Articles 9 (Union Activities),
Article 10 (Union Representation), Article 11 (Employer-Labor
Relations), Article 18 (tours of Duty), and Article 39 (Publication and
Distribution of the Agreement). The issues resolved with the package
deal were: official time for union training (Article 9, Section 2)
official time for representation (Article 10, Section 3) rent (Article
9, Section 5), tours of duty for the Union President and Chief Steward
(Article 18, Section 3), costs of reproducing the agreement (Article 38,
Section 1) and waiver of Union's right to bargain during life of
agreement (Article 11, Section 1). Rent had always been a major issue.
17. In exchange for the Union's proposals concerning office space,
official time, and the printing and distribution of the contract,
DeSantis obtained a major concession from Grifasi and Howe with the
waiver of the Union's bargaining rights during the life of the contract
in Article 11, Section 1. That concession troubled Grifasi and Grifasi
told DeSantis as they sat at the table. "I hope that the membership will
buy this." DeSantis replied with a sales pitch, telling Grifasi, "When
you present this (to) the membership, say it is a good contract. We
have given up a lot and so have you. Don't concentrate on Article 11.
Remember now, if it doesn't get ratified because of Article 11, the
other four parts of the package deal come back out, too. We are talking
a package deal." As the meeting ended, Grifasi briefed DeSantis on the
procedures the Union would have to follow to prepare for the
ratification vote and the length of time ratificaion would take before
the contract could be signed. The evidence thus firmly establishes that
from the very beginning of the negotiations in June 1984, Grifasi and
Howe made it clear to the Respondent that their authority was limited to
negotiating the best contract they could get, and that execution of the
negotiated contract was dependent upon ratification by the membership.
The evidence also clearly establishes that DeSantis, by signing Article
37 and by acknowledging that the negotiated contract would be put to the
membership for ratificaiton, acceded to that condition.
18. There are no provisions in the Union's Constitution and By-Laws
which either require ratification or describe the procedures for
ratification.
19. The contract was put to a vote of the membership at a meeting in
February 1985. Grifasi addressed the membership and stated that, "The
contract is a good contract and should be ratified." However, the
membership voted to reject the contract because of Article 11, Section
1. The vote was taken by a show of hands, the established procedure
followed by the Union in the ratification of all previous contracts.
Both Grifasi and Howe abstained from voting, because as the negotiators
they did not consider themselves impartial. Union President Joe
Noviasky, Chairman of the meeting, also abstained in accordance with
established practice and in the absence of a tie vote.
20. Following the meeting Greg Howe informed William DeSantis the
next day that the membership had not ratified the contract and had
objected to Article 11, Section 1. Union president Noviasky wrote to
the Respondent's Labor Relations Chief, Malio Cardarelli, on February
11, 1985, informing him of the membership's rejection of the contract
and requesting further negotiations.
21. On February 14, 1985 Cardarelli responded by suggesting a second
ratification effort and stating, in part, "Although we have not
finalized our position relative to the resumption of negotiations, a
significant set back in the resolution of a total contract can be
anticiapted by a return to the bargaining table due to the relationship
of the provision at issue (Article 11, Section 1) and the issues of
official time, rent for office space, contract negotiation costs and
tours of duty." During the same period of time, Cardarelli remarked to
Noviasky that to return to the bargaining table now "would be giving the
Union two bites of the apple."
22. Noviasky wrote back to Cardarelli on February 19, 1985,
confirming that the contract was not ratified because of Article 11,
Section 1, but advising Cardarelli that "(d)ependent on ratification
vote, there may be other items in the new agreement which the membership
may require to be renegotiated."
23. A second ratification vote was conducted at a Union meeting on
April 2, 1985. Following discussion by Grifasi, Noviasky, and others, a
motion was made and seconded "to vote against the new contract for the
same reasons as before." The two Union negotiators and the president
again abstained. The membership voted the contract down for a second
time.
24. On April 15, 1985 Noviasky wrote to Cardarelli advising him that
the contract had been resubmitted for ratification but "the contract as
it now stands failed to meet approval." Noviasky requested that
"negotiations be resumed at the earliest possible date."
25. By letter of April 30, 1985, Mr. Cardarelli requested further
information on the Union's poistion. He said, "In your letter of 19
February 1985, you indicated 'dependent on the (second) ratification
vote, there may be other items in the new agreement which the membership
may require to be renegotiated.' In this regard, please identify the
specific contract provision(s) that need to be discussed if we were to
agree with your request to negotiate under the circumstances."
26. On May 2, 1985 Mr. Grifasi, who until then had stepped aside to
allow Union president Noviasky to deal with the Respondent, wrote to his
counterpart on the Respondent's negotiating team, Mr. DeSantis, stating
that the Union was "willing to meet and discuss (the rejections by the
membership) in order to complete our Contract Negotiations." Howe
delivered the letter for Grifasi. DeSantis requested Howe to have
Grifasi send him another letter updating which articles the membership
did not like. He also stated that Grifasi should leave the word
"negotiate" out of the letter or he would not answer it.
27. At all times material the Union has requested, and continues to
request, that Respondent resume negotiations for a new collective
bargaining agreement. Respondent at all times material has refused to
return to the bargaining table to resume negotiations for a new
collective bargaining agreement based on its determination that, under
the ground rules, it is not required to reopen articles once agreement
is reached.
28. On July 2, 1985, Mr. Grifasi requested assistance from the
Federal Services Impasse Panel (the Panel). In the request, he
identified only Articles 11, (Section 1), 9 (Section 5), 18 (Section 3)
and 38 (last two sentences) (and not Article 10 nor Article 9, Section
2) and said, "If not ratified, all four items were to be renegotiated."
Grifasi stated that the issues were not at impasse, rather the impasse
was that the Respondent had refused to resume negotiations.
29. On September 9, 1985 the Panel declined to assert jurisdiction
on the basis that the case involved threshold questions concerning the
obligation to bargain which must first be resolved in an appropriate
forum.
Discussion, Conclusion, and Recommendations
The complaint alleges that Respondent violated section 7116(a)(1) and
(5) of the Statute commencing on or about May 2, 1985 by refusing to
resume negotiations for a new collective bargaining agreement, upon
request, after the Union's membership refused to ratify the collective
bargaining agreement reached by the parties on or about November 30,
1984. The General Counsel contends that where the parties agree that a
contract is subject to ratification by the Union's membership, an agency
is obligated to resume negotiations absent a showing that the exclusive
representative clearly and unmistakably waived its right to reopen. The
General Counsel relies upon the Authority's decision in U.S. Department
of Commerce, Bureau of the Census, 17 FLRA 667 (1985). The General
Counsel asserts that the evidence does not show such a waiver, and
argues that the ground rules in this case no more present a question of
interpretation that did the ground rules in Commerce. The General
Counsel claims that the procedures used by a union in pursuing
ratification are not subject to challenge by an employer, and, in any
event, the evidence establishes that the Union made a good faith effort
to obtain ratification. The General Counsel also maintains that the
Union was not required to justify its bargaining request or resubmit
proposals in advance.
Respondent defends on the basis that the case is not appropriate for
resolution by the Authority because the determination that a duty to
bargain came into existence after full agreement on November 30, 1984
requires interpretation of the ground rules as well as Article 37 which
is more appropriate for the forum adopted by the parties for disputes of
interpretation -- an arbitrator. Respondent claims that the Commerce
case is distinguishable on several grounds. Respondent also maintain
that the Union's conduct on or after November 30, 1984 is subject to a
good faith standard, and the Union breached that standard. Respondent
also insists that even if a duty to bargain was created after November
30, 1984, it has not committed an unfair labor practice as management
needed an explanation of what was going on, and the Union's conduct in
the negotiations and before the Panel excused any duty to bargain.
Respondent claims that the Union misrepresented the need for
ratification, torpedoed the ratification process, unlawfully tried to
limit what it would reopen after the failed ratification effort, and
misrepresented before the Panel the status of the negotiations.
The Authority has recognized that the ratification of a tentative
contract by an exclusive representative's membership may be a
precondition to a final and binding agreement between the parties to a
bargaining relationship. Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia, 13 FLRA 571, (1984); U.S. Department of
Commerce, Bureau of the Census, 17 FLRA 667, (1985); Department of the
Interior, National Park Service, 20 FLRA No. 65, 20 FLRA 537, 541 fn. 7
(1985). Where the membership rejects tentative contract, an agency is
obligated to resume negotiations absent a showing that the exclusive
representative clearly and unmistakably waived its right to reopen
contract negotiations. In the Commerce case the Authority found that
ratification was a prerequisite, relying upon a ratification provision
included in the parties' ground rules, evidence that the existing
collective-bargaining agreement had been ratified by the membership
before it became effective, and evidence that when the parties initialed
off on their final package of contract proposals the Union informed the
agency that they would be placed before the membership for a
ratification vote. Under the circumstances, the Authority rejected the
agency's argument that a ground rules provision, which precluded the
reconsideration or revision of proposals previously approved by the
parties absent mutual agreement, constituted a waiver of the Union's
rights and thereby barred reopening following a failed ratification
vote. The Authority did note that the parties themselves, by means of
another provision in the ground rules, limited their opportunity to
raise new issues after the first twelve hours of negotiations.
Accordingly, the Authority found that the agency was not obligated to
negotiate on matters not previously addressed at the bargaining table.
However, the Authority concluded that the agency did violate Section
7116(a)(1) and (5) of the Statute insofar as it refused to bargain over
any matter which, although addressed in negotiations, was not embodied
in the tentative contract rejected by the membership.
As urged by the General Counsel, the Authority's decision in
Commerce, supra, is relevant to this proceeding in several respects.
First, it establishes beyond question that an agency's bargaining
obligation does not end with the conclusion of contract negotiations,
where the parties expressly provide the union's membership an
opportunity to ratify the negotiator's agreement. Secondly, it requires
an agency to show that, despite an express provision for ratification, a
union clearly and unequivocally waived its right to reopen negotiations
following the membership's rejection of a tentative contract, in order
for the agency to justify a refusal to reopen negotiations. Thirdly, it
reveals that there is no statutory restriction on the scope of
bargaining available to a union following the membership's rejection of
a tentative contract; only the parties themselves may restrict the
scope of bargaining, through ground rules for example.
Like the Commerce case the evidence in this proceeding establishes
that the parties agreed, in Article 37, to make ratification a condition
precent to a binding contract. Contrary to the claim of Repondent's
witness DeSantis, who asserted that the ratification provision of
Article 37 "requires management to do nothing" in the event ratification
fails, the Article manifested Respondent's obligation to continue
negotiations until a contract was ratified by the membership. There is
no requirement that a ratification provision, to be effective, spell out
that the parties will reopen negotiations if the contract is rejected;
no such language appeared in the ratification provision cited by the
Authority in commerce, and Respondent does not cite any case law, in
either public or private sector, to support that view. Like Commerce,
the evidence in this proceeding reveals a history, and established
practice dating back to the parties' first contract, of making
ratification a condition precedent to a binding contract. Finally, and
similarly, the evidence convincingly establishes that throughout the
negotiations, and particularly at their conclusion on November 30, 1984,
the Union's negotiators informed the Respondent that they would put the
contract before the membership for a ratification vote.
Against the weight of this evidence, Respondent agrues that the 1984
ground rules, paragraph 5, precluded reopening in the event of a failed
ratification vote. Like the ground rules at issue in Commerce, there is
no literal support in the 1984 ground rules for Respondent't argument.
The paragraph on reopening does not address ratification, in any items,
and the Union prevailed in deleting from Respondent's ground rules
proposal any language infringing upon Article 37. Moreover, the
significance that Respondent attributes to paragraph 5 is flatly
contradicted by the evidence that DeSantis knew the Union intended to
put the contract to a ratification vote. In short, Respondent has not
shown that the Union, by agreeing to paragraph 5 of the ground rules,
clearly and unequivocally waived its right to reopen contract
negotiations in the event ratification failed. Nor does the evidence of
the 1979-81 negotiations support Respondent's argument. Rather, the
evidence shows that the Union's negotiators at that time, like their
predecessors in negotiations dating back to 1978, made it clear to
Respondent that their authority only extended to the negotiations of a
contract, and not to its execution absent ratification by the
membership. The evidence further shows that in the 1979-81 negotiations
Respondent ultimately assented to ratification as a precondition to a
binding contract by agreeing to Article 37. Evidence offered by the
Respondent to show that DeSantis refused in June 1981 to reopen
negotiations does not establish that the Union then waived its right to
reopen. The Union chose to resubmit the contract for a second
ratification vote, as in this case, and it was ratified. There was no
need to pursue the matter. Likewise, DeSantis more recent threats
during negotiations in 1984 not to reopen when balanced against Article
37 and the Union's continued insistance on its rights thereunder cannot
support a finding that the Union thereby clearly and unmistakably waived
its right to reopen negotiations.
Absent a clear and unequivocal waiver, Respondent's obligation under
the Statute remains, as it has always been, to return to the bargaining
table with a sincere resolve to reach agreement with the Union. See
section 7114(a)(4); 7114(b)(1), (2), (3) and (5). /2/ Commerce, supra;
Department of the Interior, National Park Service, 20 FLRA No. 65, 20
FLRA 537 (1985). Such a statutory right must be consciously yielded
before the Authority will defer to the parties' collective bargaining
agreement. Cf. U.S. Nuclear Regulatory Commissioner, 21 FLRA No. 96,
21 FLRA 765 (1986). Thus, Respondent's argument that the dispute
involves a question of contract interpretation which should be referred
to the grievance/arbitration procedure for resolution is without merit.
The ground rules upon which Respondent relies no more present a question
of interpretation than did the ground rules examined by the Authority in
Commerce. In that case, the Authority had no difficulty distinguishing
the intent of the various ground rules provisions involved, and likewise
in the proceeding that language and witnesses' testimony concerning the
negotiations establish that paragraph 5 of the ground rules and Article
37 were not intended to foreclose the statutory obligation to continue
to negotiate in good faith in the event ratification failed.
Respondent's argument that it needed an explanation from the Union as
to what articles needed to be discussed before it could resume
negotiations pursuant to the Union's request is without merit. The
Union notified Respondent that the membership had failed to ratify the
contract, and that it was "willing to meet and discuss this in order to
complete our contract negotiations." In reply, the Union was requested,
among other things, to send another letter updating which articles the
membership did not like. The Statute provides for meetings to take
place between the parties as part of the collective bargaining process.
See sections 7103(a)(12), 7114(a)(4) and 7114(b)(3). There is no
requirement in the Statute that all proposals must be in writing.
Environmental Protection Agency, 16 FLRA 602, 613 (1982), remanded to
Authority for clarification regarding remedy, sub nom. American
Federation of Government Employees, v. FLRA, No. 85-1057 (D.C. Cir.,
February 5, 1986), supplemental decision affirming original disposition,
Environmental Protection Agency, 21 FLRA No. 98 (1986). Unlike the case
before the Authority in Commerce, there is no evidence that the parties
agreed upon any conditions which required the Union to justify its
bargaining request or resubmit proposals in advance of negotiations.
The only restriction upon the scope of negotiations imposed by the
ground rules, other than those already discussed, was that bargaining
was not required on any subject not included in the parties' originial
proposals. It is also noted that Respondent never agreed to resume
negotiations per se and instructed the Union to leave out the word
"negotiate" or the letter would not be answered. Good faith bargaining
can scarcely be conducted within the framework of a stated position
which asserts in effect that the employer is not obliged to bargain.
Department of the Air Force, Scott Air Force Base, 5 FLRA 9, 23 (1981).
The record also demonstrates that Respondent was well aware that the
main objection of the Union membership was to Article 11, Section 1.
Thus, as recognized at the November 30, 1984 negotiation session, in
this eventually the "package deal" agreed to at the time came apart. As
noted, Respondent's duty under the Statute at this point was to resume
negotiations in good faith upon request.
Assuming that the Union's ratification process is subject to a good
faith standard, as urged by Respondent, /3/ Respondent has not shown
that the Union acted in bad faith in conducting the ratification
proceedings. The Union negotiators discussed the contract at the Union
meetings and stated it was a good contract. The abstentions from voting
of the negotiators and the Union president under the circumstances do
not demonstrate that they "torpedoed the agreement they made," as urged
by Respondent. The Union's other conduct after November 30, 1984 as
reflected in the record also does not excuse Respondent's total failure
to bargain.
It is concluded that a preponderance of the evidence establishes that
Respondent violated section 7116(a)(1) and (5) of the Statute commencing
on or about May 2, 1985, as alleged, by refusing to resume negotiations
for a new collective bargaining agreement, upon request, after the
Union's membership refused to ratify the collective bargaining agreement
reached by the parties on or about November 30, 1984.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Air Force, Griffiss
Air Force Base, New York shall:
1. Cease and desist from:
(a) Failing and refusing to reopen contract negotiations and
negotiate in good faith with the American Federation of Government
Employees, 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 employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations 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 2612, AFL-CIO, the exclusive representative of
its employees, reopen contract negotiations and bargain with
respect to conditions of employment relating to subjects included
in the parties' original proposals for a new collective bargaining
agreement.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander,
Griffiss Air Force Base, New York, and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Commander
shall take reasonable steps to ensure that such notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, 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.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: July 30, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The unopposed motions of Respondent and the General Counsel to
correct the record are granted. The record is hereby corrected as set
forth therein. As also noted by counsel for the General Counsel, the
parties agreed that a copy of a letter from the Federal Services
Impasses Panel to Mr. Sal Grifasi, dated September 9, 1985, could be
made a part of the record. The letter was received as Joint Exhibit 17
(Tr. 85).
(2) Section 7114 of the Statute provides, in relevant part, as
follows:
"(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. In
addition, the agency and the exclusive representative may
determine appropriate techniques, consistent with the provisions
of section 7119 of this title, to assist in any negotiation.
"(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 --
(1) to approach the negotiations with a sincere resolve to
reach a collective bargaining agreement;
(2) to be represented at the negotiations prepared to discuss
and negotiate on any conditions of employment;
(3) to meet at reasonable times and convenient places as
frequently as my be necessary, and to aviod unnecesary delays;
(5) if agreement is reached, to execute on the request of any
party to the negotiation a written document embodying the agreed
terms, and to take such steps as are necessary to implement such
agreement.
(3) Respondent subpoenaed documents concerning the Union meetings
held for the purpose of ratification as well as internal Union documents
concerning the ratification procedure. The Charging Party's motion to
revoke was denied. Respondent offered the minutes of the Union meetings
and the Union's constitution and bylaws into evidence, and they were
received. Respondent was also permitted to question witnesses, over the
General Counsel's objection, concerning what transpired at the crucial
Union meetings. Cf. NLRB v. M & M Oldsmobile, Inc., 65 LRRM 2149,
2153-2154 (2nd Cir. 1967).
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to refuse to reopen contract negotiations and
negotiate in good faith with the American Federation of Government
Employees, Local 2612, AFL-CIO, the exclusive 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 employees in the excercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, Local 2612, AFL-CIO, the exclusive representative of our
employees, reopen contract negotiations and bargain with respect to
conditions of employment relating to subjects included in the parties'
original proposals for a new collective bargaining agreement.
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
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 of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278 and
whose telephone number is: (212) 264-4934.