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The decision of the Authority follows:
26 FLRA No. 39 ACTION Respondent and AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2027, AFL-CIO Charging Party Case No. 3-CA-60177 DECISION AND ORDER REMANDING CASE I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. /1/ The case concerns whether the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over travel and per diem payments for Union representatives on official time. II. Background The pertinent facts in this case are not in dispute. On January 9, 1986, the parties executed a basic collective bargaining agreement. On February 7, the agency head disapproved certain provisions of the agreement under section 7114(c) of the Statute. On February 21, the Union requested negotiations over the payment of travel and per diem for Union representatives on official time. On February 26, the Respondent refused to negotiate over the subject. The Respondent asserted that the subject of travel and per diem was nonnegotiable despite the Authority's decision in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service, No. 85-1198 (D.C. Cir. Mar. 27, 1986). The Respondent also asserted that the Union waived any right to bargain over travel and per diem by executing the collective bargaining agreement on January 9. The Union then filed the unfair labor practice charge in this case concerning the Respondent's February 26 refusal to negotiate. Subsequently, on May 22, 1986, while the charge was pending, the parties executed a new collective bargaining agreement with a retroactive effective date of March 27, 1986. The agreement apparently has no provision for travel and per diem for Union representatives on official time and bars further negotiations except as provided in the agreement. On May 30, 1986, the complaint in this case was issued alleging that the Respondent's refusal on February 26, 1986, to negotiate with the Union over travel and per diem allowances for Union representatives on official time violated section 7116(a)(1) and (5) of the Statute. III. Judge's Ruling At the hearing, after the presentation of the General Counsel's case in chief, the Judge granted the Respondent's motion to dismiss the complaint. In his subsequent written decision, the Judge explained the basis for his ruling. The Judge agreed that the record established as of February 26, 1986, a prima facie case of a refusal to bargain in violation of the Statute. The Judge also rejected the Respondent's basis for its admitted refusal to bargain. He concluded in accordance with U.S. Customs Service that the subject of travel and per diem for Union representatives on official time was negotiable. He also concluded that under Authority precedent the disapproval of a portion of the January 9 agreement obligated the parties to return to the bargaining table to complete negotiations. However, the Judge found that because the parties resumed negotiations and executed a full and complete collective bargaining agreement after the Respondent's refusal to bargain, the General Counsel failed to establish a prima facie case that the Respondent's refusal to bargain constituted an unfair labor practice. Accordingly, the Judge recommended that the complaint be dismissed. IV. Positions of the Parties The General Counsel contends that the Judge's ruling that he failed to establish a prima facie case of a violation of the Statute is wrong both on the facts and the law. The General Counsel maintains that the ruling should be reversed and that the case should be remanded for further proceedings. In its opposition to the General Counsel's exceptions, the Respondent contends that the General Counsel failed to meet the burden of establishing that the Respondent had violated the Statute. The Respondent argues that the Judge correctly dismissed the case on the basis of the subsequent collective bargaining agreement despite its earlier refusal to negotiate. V. Analysis and Conclusions We reverse the Judge's ruling granting the Respondent's motion to dismiss and vacate his recommended order. The Judge specifically found that the record established a prima facie case of a refusal to bargain in violation of the Statute as of February 26, 1986. On this basis, we conclude that the General Counsel met his burden and properly rested his case in chief subject to rebuttal by the Respondent. In American Federation of Government Employees, Local 495, 22 FLRA No. 98 (1986), we held that a prima facie case "is one in which the evidence presented would suffice to show that there is a basis for the theory of the case if such evidence is presumed to be true and the evidence presented by the opposing party is disregarded." Slip op. at 6. We find that the General Counsel met that test. The evidence introduced by the General Counsel and credited by the Judge showed that the Respondent refused on February 26, 1986, to negotiate over travel and per diem allowances for Union representatives in violation of the Statute. The General Counsel's case in chief was not required to encompass events subsequent to the refusal to bargain in order to establish a prima facie case of a violation of the Statute. Contrary to the conclusion of the Judge, we find that the subsequent execution of a collective bargaining agreement by the parties does not affect the General Counsel's prima facie case of an earlier refusal to bargain. The effect of the terms and execution of the subsequent collective bargaining agreement in this case are matters which may be raised by the Respondent in response to the General Counsel's prima facie case, for example, as an affirmative defense or in mitigation. The General Counsel is not required to include in his prima facie case responses to anticipated defenses which have not yet been raised or proven by the Respondent. Accordingly, the Judge erred in granting the motion to dismiss. We therefore remand this case to the Judge for the purpose of reopening the proceedings in this matter to determine whether the Respondent violated the Statute as alleged in the complaint. VI. Order The complaint in Case No. 3-CA-60177 is remanded for action consistent with our decision. Issued, Washington, D.C., March 20, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CA-60177 ACTION Respondent and AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2027, AFL-CIO Charging Party Stewart A. Davis, Esquire Joanna Dailey, Esquire For the Respondent Mr. Rodney T. White For the Charging Party Peter A. Sutton, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judges DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq., /2/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether the Complaint, which alleges a refusal to bargain a particular Union demand, is barred by the subsequent negotiation of an agreement in which the parties provided that " . . . they have bargained fully with respect to all proper subjects of bargaining and have settled all such matters as set forth in this Agreement . . . ", where the negotiated agreement neither excepted the demand from coverage of the agreement nor reserved the right to pursue the demand. This case was initiated by a charge filed on March 10, 1986 (G.C. Exh. 1(a) which alleged violations of Section 14(b)(1) and (2), 16(a)(1), (5) and (8) of the Statute. The Complaint and Notice of Hearing issued on May 30, 1986 (G.C. Exh. 1(c)), alleged violations of Section 16(a)(1) and (5) only, and set the hearing for July 22, 1986, pursuant to which a hearing was duly held on July 22, 1986, in Washington, D.C. before the undersigned. At the conclusion of General Counsel's case, Respondent's motion to Dismiss, after oral argument, was granted; however, the parties were granted leave to file briefs on or before August 5, 1986, and General Counsel on August 5, 1986, filed a brief in opposition to the granting of Respondent's Motion to Dismiss which has been carefully considered. For reasons set forth hereinafter, I adhere to my ruling made at the hearing. Findings No testimony was presented. General Counsel's case consisted wholly of six exhibits, and minor stipulations of the parties, as follows: 1. G.C. Exhibit 1(a)-1(k) -- Formal documents 2. G.C. Exhibit 2 -- Memorandum dated February 21, 1986, from Mr. Rod White, President of American Federation of State, County and Municipal Employees, Local 2027, AFL-CIO (hereinafter referred to as the "Union") to Mr. Tom Hyland, LRO, which stated: "In light of the recent FLRA decision on the negotiability of travel and per diem payments for Union representatives on official time, the Union is hereby exercising the right to bargain. "I would suggest we begin appropriate negotiations during the week of March 3, 1986 . . . . " (G.C. Exh. 2). 3. G.C. Exhibit 3 -- Memorandum from Mr. Hyland to Mr. White dated February 26, 1986, which stated, in part, as follows: "First, it should noted that the FLRA's decision regarding the duty to bargain over travel and per diem is not only inconsistent with the Supreme Court's decision in BAFT v. FLRA of November 29, 1983 but is also in violation of a government-wide rule and regulation (46 Comp. Mem. 21, 21-22 of 1966) . . . The FLRA's decision in 21 FLRA 2 will be contested in the Courts in the near future. Beyond that, it is the position of the Agency that in executing the basic labor-management agreement of February 9, 1986, the AEU waived any right to bargain over travel and per diem expenses for Union representatives. . . . . Although the Parties were at one time impassed over the subject of Agency payment of travel and per diem expenses for Union representatives, the AEU withdrew that proposal . . . (prior to the execution of the basic labor-management agreement). "Consequently, no duty to bargain over the proposed matter exists and the Agency, therefore, elects not to bargain." (G.C. Exh. 3). 4. G.C. Exh. 4 -- letter dated February 7, 1986, from Ms. Donna M. Alvarado to Mr. Rodney T. White, President of the Union, informing the Union, pursuant to Section 14(c) of the Statute, of the disapproval of certain provisions of the negotiated agreement. 5. G.C. Exhibit 5 is a signed agreement dated May 22, 1986, which provides as follows: "The parties agree that effective date of the Action-AEU Basic Labor Management Agreement shall be March 27, 1986, the date that the Parties negotiated an agreement to resolve the issues disapproved by the Agency Director on February 7, 1986." 6. G.C. Exhibit 6 is the "Basic Labor-Management Agreement" between Action and Action Employees Union, American Federation of State, County and Municipal Employees Local 2027. Under "Definitions and Status of Bargaining" it is provided as follows: "B. Status of Bargaining The parties agree that, except for the subjects of Performance Appraisal, Reduction-in-Force, and Incentive and Performance Awards (for which bargaining will be limited to the ACTION Orders), they have bargained fully with respect to all proper subjects of bargaining and have settled all such matters as set forth in this Agreement, pending any final decision on outstanding matters by the Federal Labor Relations Authority concerning proposals including negotiability questions." /3/ (G.C. Exh. 6). Article XXVI provides, in part, as follows: "Section B. Mid-term renegotiation of Agreement articles may take place upon the first and second anniversary dates of the Agreement upon notice of either Party. Such notice shall be tendered in writing at least thirty (30) days prior to the anniversary dates. Each Party may offer no more than five (5) articles for renegotiation at each mid-term negotiation session." (G.C. Exh. 6). CONCLUSIONS On January 9, 1986, the parties executed an agreement /4/ (Stipulation, Tr. 11) which the Director disapproved in part on February 7, 1986. As General Counsel very correctly notes, when an agency head, pursuant to Section 14(c) of the Statute, disapproves a portion of an agreement, the agreement fails and the parties are obligated to return to the bargaining table to bargain a new agreement, Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA No. 65, 20 FLRA 537 (1985), wherein the Autority stated, in part, as follows: ". . . the failure of the Agency head to approve the agreement constituted a failure of a condition precedent, and the parties were effectively returned to the bargaining table to negotiate until agreement could be reached . . . This obligation to bargain a new agreement is limited only by any 'ground rules' or procedures agreed upon by the parties under which negotiations were to be conducted." (20 FLRA at 542, n. 7). See, also, U.S. Department of Commerce, Bureau of the Census, 17 FLRA No. 97, 17 FLRA 667 (1985) (rejection by union membership). The agreement of January 9, 1986, having failed, the Union on February 21, 1986, demanded bargaining on travel and per diem for Union representatives on official time, a demand it had made but had withdrawn prior to execution of the January 9, 1986, agreement. Its demand was negotiable, National Treasury Employees Union, 21 FLRA No. 2, 21 FLRA 6 (1986) and Respondent's refusal to bargain because it was barred by the execution of the agreement of January 9, 1986, was without basis for the reason that the agreement of January 9, 1986, failed upon the Director's disapproval in part and the obligation of the parties to bargain a new agreement was " . . . limited only by any 'ground-rules' or procedures agreed upon by the parties under which negotiations were to be conducted." The Exhibits constituting the record in this case neither show any "'ground-rules' or procedures" nor do the Exhibits constituting the record assert any limitation to the parties' obligation to negotiate a new agreement. As of February 26, 1986, I quite agree with General Counsel that the record established a prima facie case of a refusal to bargain in violation of Sections 16(a)(5) and (1) of the Statute. But the parties did resume negotiations and did reach a full and final Agreement on March 27, 1986, which Agreement was signed on May 22, 1986 (G.C. Exh. 5), and made the Basic Labor-Management Agreement (G.C. Exh. 6) effective March 27, 1986. /5/ The final agreement of the parties neither excepted the travel and per diem issue from its coverage, nor reserved the right to negotiate the travel and per diem issue. By contrast, the parties specifically left open for bargaining ACTION Orders concerning Performance Appraisals, Reduction-in-Force, and Incentive Awards; and negotiability questions pending before the Authority. /6/ Because the final agreement of the parties specifically stated that, "The parties agree . . . they have bargained fully with respect to all proper subjects of bargaining and have settled all such matters as set forth in this Agreement . . . . " (G.C. Exh. 6) General Counsel failed to make a prima facie showing that, following resumption of negotiations after Respondent's initial refusal to bargain, and the negotiation and execution of a full and complete collective bargaining agreement, Respondent's refusal to bargain on February 26, 1986, constituted an unfair labor practice in violation of Sections 16(a)(5) or (1) of the Statute. There is no question that the Union's demand was a "proper subject" of bargaining; but the parties' March 27, 1986, negotiated agreement included the "Definition and Status of Bargaining" clause, as General Counsel concedes (G.C. Brief, p. 3). Accordingly, execution of the final, full agreement on May 22, 1986, barred negotiation of all proper subjects of bargaining, pursuant to the parties' "Zipper clause", not reserved for further bargaining. The finality of the Agreement of May 22, 1986, was further addressed by the parties in Article XXVI which limits mid-term negotiation to the first and second anniversary dates of the Agreement. Moreover, after negotiation and execution of a basic collective bargaining agreement, there is no obligation on the part of an agency to bargain over union-initiated proposals except as the parties may have provided in their Agreement. Internal Revenue Service, 17 FLRA No. 103, 17 FLRA 731 (1985); Defense General Supply Center, Richmond, Virginia, 20 FLRA No. 63, 20 FLRA 516 (1985). Therefore, because General Counsel has failed to make a prima facie case that Respondent refused to bargain in violation of Sections 16(a)(5) or (1) of the Statute, it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 3-CA-60177 be, and the same is hereby, dismissed. /s/ WILLIAM B. DEVANEY Administrative Law Judge Dated: August 19, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) In its opposition to the General Counsel's exceptions, the Respondent contends that the exceptions are untimely. The Judge set the date of September 18, 1986, for filing exceptions by counting 30 days from the date of his decision. The General Counsel's exceptions were filed on September 19, 1986. However, under the Authority's Rules and Regulations, the exceptions had to be filed by September 22, 1986. United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York, 25 FLRA No. 7 (1986). Thus, we conclude the General Counsel's exceptions were timely filed. (2) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as "Section 16(a)(5)." (3) G.C. Exh. 3, which, of course, was neither challenged nor controverted, stated that, " . . . The only standing matter before the Federal Labor Relations Authority involving a proposal by the AEU relates to a single negotiability question concerning procedures to be followed prior to certain disability retirement cases." (.G.C. Exh. 3). (4) The reference in G.C. Exhibit 3, second paragraph, to " . . . agreement of February 9, 1986" is, pursuant to the stipulation of the parties in error and the date should be January 9, 1986. The reference in the penultimate paragraph to "August 23, 1986" is obviously in error and, presumably, the year should be 1985 if the month and day were correct. (5) The printed Agreement, G.C. Exh. 6, although dated February 7, 1986, the date the Director approved the agreement of January except for certain portions which were disapproved (G.C. Exh. 4), rather than March 27, 1986, the effective date as set forth in the Agreement of May 22, 1986 (G.C. Exh. 5), presumably reflects the final and complete agreement of the parties, i.e., the portion of the January 9, 1986, agreement not disapproved, plus the negotiated resolution of the issues disapproved on February 7, pursuant to the Agreement of May 22, 1986 (G.C. Exh. 5). Thus, the parties stipulated that, " . . . this agreement, G.C. Exhibit No. 6, is the one referred to G.C. Exhibit No. 5" (Tr. 13) and General Counsel in his Brief states, " . . . The parties' March 27, 1986 negotiated agreement includes the 'Definition and Status of Bargaining' clause . . . . " (G.C. Brief, p. 3). In any event, the agreement of the parties consists of G.C. Exh. 5 together with G.C. Exh. 6. (6) While not a model of draftsmanship, the concluding phrase in "Status of Bargaining", " . . . pending any final decisions on outstanding matters by the Federal Labor Relations Authority concerning proposals including negotiability questions" (G.C. Exh. 6) meant decisions on negotiability questions only, which construction is established by G.C. Exhibit 3, and does not extend to the Union's charge of March 10, 1986, as contended by General Counsel.