27:0268(38)CA - DOE, Western Area Power Admin., Golden, CO and IBEW Locals 640, 1759, 2159 -- 1987 FLRAdec CA
[ v27 p268 ]
27:0268(38)CA
The decision of the Authority follows:
27 FLRA No. 38
U.S. DEPARTMENT OF ENERGY,
WESTERN AREA POWER ADMINISTRATION,
GOLDEN, COLORADO
Respondent
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCALS 640, 1759, 2159
Charging Party
Case No. 7-CA-30398
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case 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 agree that no material issue
of fact exists. The General Counsel has filed a brief which has been
adopted by the Charging Party (Union) in support of its position. The
Respondent has not filed a statement of position.
The case concerns Respondent's actions in conducting a study of the
functions and pay system for its wage-board supervisory craftsmen in
July 1982-March 1983 and its action in implementing new wage rates for
the supervisory craftsmen in June 1983. The complaint alleges that the
Respondent committed violations of the Statute by (1) bargaining
directly with unit employees and bypassing the Union in the conduct of
the study, (2) establishing the study without notifying and bargaining
with the Union, and (3) implementing new pay rates without notifying and
bargaining with the Union.
II. Background
The Union is the exclusive representative for Respondent's wage-board
employees, including wage-board employees occupying the positions of
foremen I, foremen II, and foremen III. It has continued as the
exclusive representative of bargaining units including these employees
since 1980. The Union and the Respondent are parties to a collective
bargaining agreement which provides that the pay rates for these
employees will be determined through collective bargaining. Stipulation
exhibit 2 at 18.
The Union and the Respondent have been involved in a continuing
dispute, since 1981, on whether employees occupying the positions of
supervisory craftsmen, which were reclassified from the foremen I-III
positions, are members of the Union's bargaining units. This dispute
was the subject of a 1982 decision by an Authority administrative law
judge (ALJ) in Authority Case No. 7-CA-1229. The ALJ's decision in Case
No. 7-CA-1229 was under Authority review when the events of this case
occurred and when the parties entered into the stipulation. By
agreement of the parties, the processing of this case was held in
abeyance until the Authority issued its decision. In July 1986 this
decision issued as U.S. Department of Energy, Western Area Power
Administration, Golden, Colorado, 22 FLRA No. 86 (1986) (WAPA 3),
petition for review filed sub nom. U.S. Department of Energy v. FLRA,
No. 86-2414 (10th Cir. Sept. 25, 1986). In WAPA 3 the Authority
determined that (1) Respondent's wage-board supervisory craftsmen were
members of the Union's bargaining units and (2) the Union was entitled
to bargain concerning their wage rates.
As regards the events in this case, in July 1982 Respondent initiated
a study of the functions and pay system for supervisory craftsmen. The
stated purpose of the study was to determine the need for revisions in
the pay rates for supervisory craftsmen. The Union was not notified of
the establishment of the study or its implementation. In written
communications to the managers of Respondent's five area offices from
July 1982 through February 1983, Respondent stated that the study would
be conducted by a study group (labeled as a "task force" in 1983)
composed of management officials and supervisory craftsmen designated by
the managers, scheduled meetings for the study, and described the
study's progress.
On January 20, 1983, the Union filed a grievance with Respondent
which alleged that Respondent had violated the parties' collective
bargaining agreement and decisions of the Authority by unilaterally
establishing a procedure to grade or classify supervisory craftsmen.
Stipulation exhibit 13. The parties agreed that the grievance would be
held in abeyance pending a final decision on the unit status of the
supervisory craftsmen. Stipulation 19.
On January 24, 1983, Respondent advised the office managers that as a
result of a meeting of the study group on December 13, 1982, phase I of
the study, concerning the establishment of functions and position
descriptions for the supervisory craftsmen positions, was complete. The
managers were advised that phase II of the study, concerning pay
criteria for the positions, would begin at a February 8 meeting.
Stipulation exhibit 15. This written communication listed the
supervisory craftsmen who had been designated for participation in the
study and it was distributed to these supervisory craftsmen. The
February 8 meeting was held, but was not attended by supervisory
craftsmen.
On February 18, 1983, Respondent advised the managers that
classification criteria for the supervisory craftsmen positions had been
approved as discussed on February 8. The managers were instructed to
prepare for discussions of the pay criteria in meetings on March 14-15,
1983. These meetings were held, and were attended by the supervisory
craftsmen who had been listed in Respondent's communication to the
managers on January 24, 1983.
On March 22, 1983, Respondent disseminated final pay criteria for
wage-board supervisory personnel to the office managers, explaining that
the final criteria had been adjusted in accordance with the manager's
views and as a result of questions raised by the task force. Respondent
also indicated that the effective date of the new criteria would be
established by Respondent's administrator. On March 23, 1983,
Respondent acknowledged the Union's January 20 grievance and stated that
the parties' negotiated grievance procedure would apply to the grievance
if the supervisory craftsmen were determined to be members of the
Union's bargaining units. Stipulation exhibit 14. The Union's January
20 grievance continued to be held in abeyance by mutual consent.
Stipulation 19.
The Union filed an unfair labor practice charge against the
Respondent on May 23, 1983, alleging that Respondent violated section
7116(a)(2) and (5) of the Statute by (1) refusing to consult or
negotiate in good faith with the Union on or about February 8, 1983, and
(2) interfering with the rights of supervisory craftsmen to participate
in the Union's affairs since February 8, 1983. Stipulation exhibit 3.
The Respondent implemented new classification and pay criteria for
supervisory wage-board positions on June 13, 1983. The Union filed a
second unfair labor practice charge against the Respondent on October
28, 1983, alleging that by creating a task force on pay rates for
supervisory craftsmen which included unit employees, Respondent had
bypassed the Union and bargained directly with employees since November
1982, in violation of section 7116(a)(1) and (5) of the Statute. The
charge stated that the Union became aware of this bypass on February 8,
1983. The charge also alleged that Respondent violated section
7116(a)(1) and (5) by implementing new pay rates for supervisory
craftsmen on June 13, 1983, without notifying and bargaining with the
Union. Stipulation exhibit 4.
III. Positions of the Parties
The General Counsel notes that in WAPA 3, the Authority concluded
that Respondent's wage-board supervisory craftsmen are members of the
Union's bargaining units and that the Union is entitled to bargain
concerning pay rates for these personnel. Based on WAPA 3 and the
record in this case, the General Counsel argues that Respondent
committed the violations alleged in the complaint. The General Counsel
also argues that the Union's grievance of January 20, 1983, does not bar
further processing of the complaint under section 7116(d) of the
Statute.
IV. Analysis and Conclusions
A. The bypass allegations
We conclude that the allegations in the complaint concerning the
alleged bypasses are barred from further processing under section
7118(a)(4)(A) of the Statute.
Section 7118(a)(4) of the Statute prohibits the General Counsel from
issuing a complaint that is based on an unfair labor practice charge
which is filed more than 6 months after the actions or events complained
of have occurred. For example, Military Entrance Processing Station,
Los Angeles, California, 25 FLRA No. 57 (1987). In this case, the
paragraphs in the complaint which concern the alleged bypass on the
charge which the Union filed on October 28, 1983. This date is more
than 8 months after the most recent alleged bypass (February 8, 1983)
and the date the Union stated it first learned of the alleged violation
(also February 8, 1983). On these facts, the Union's October 28 charge
was untimely filed. Accordingly, the allegations in the complaint which
refer to Respondent's alleged bypass violations must be dismissed.
B. The establishment of the study
We conclude that the paragraphs in the complaint concerning
Respondent's alleged violation in establishing the task force study
without notifying and bargaining with the Union are barred by section
7116(d) of the Statute.
Section 7116(d) effectively provides that when in the discretion of
the aggrieved party, an issue has been raised under the negotiated
grievance procedure, the issue may not subsequently be raised as an
unfair labor practice. See Portsmouth Naval Shipyard and Department of
the Navy (Washington, D.C.), 23 FLRA No. 68 (1986). In this case, on
January 20, 1983, the Union filed a grievance under the parties'
negotiated grievance procedures which alleged that Respondent violated
the parties' collective bargaining agreement and Authority decisions by
establishing a procedure to grade and classify supervisory craftsmen
without notice to and participation by the Union. We find that the
paragraphs in the complaint alleging that Respondent violated the
Statute by establishing the task force study, which are based on the
Union's charges, raise substantially the same issue as the earlier filed
grievance. Consequently, this allegation is precluded by section
7116(d) from being raised under the unfair labor practice procedure. We
reject the General Counsel's contention that we should not address this
issue because it was not raised by Respondent. Because the issue is
presented by the stipulation and the issue concerns the Authority's
jurisdiction, it must be addressed. See Portsmouth Naval Shipyard, 23
FLRA No. 68.
C. Revised pay rates
We conclude that Respondent violated the Statute by implementing new
pay rates for supervisory craftsmen on June 13, 1983, without notifying
and bargaining with the Union, as alleged in the remaining paragraphs of
the complaint.
In WAPA 3, 22 FLRA No. 86 (1986), we considered whether Respondent
was justified in refusing to bargain concerning pay rates for its
wage-board supervisory craftsmen in 1981 based on its assertions that
its supervisory craftsmen could not be members of the Union's bargaining
units. As explained in WAPA 3, we determined that Respondent's
supervisory craftsmen were members of the Union's bargaining units. We
also determined that by the enactment of Section 704 of the Civil
Service Reform Act of 1978, Congress intended that the pay of these
personnel would be determined through collective bargaining. Based on
these determinations and the record in WAPA 3, which showed that
Respondent had refused to bargain concerning pay rates for supervisory
craftsmen, we concluded that Respondent's refusal to bargain was
unjustified and clearly violative of section 7116(a)(1) and (5) of the
Statute.
The record in this case shows that the refusal to bargain by the
Respondent in WAPA 3 was continued into 1983. As found in WAPA 3,
Respondent implemented new pay rates for supervisory craftsmen in 1981
while refusing the Union's requests for bargaining. In this case the
record shows that Respondent revised the pay rates for supervisory
craftsmen and ignored the Union's statutory rights to bargain. As in
WAPA 3, the refusal-to-bargain violation is clear.
V. Decision
The allegations in the complaint which concern Respondent's alleged
bypasses of the Union and its action in establishing the task force
study must be dismissed. Further processing of these allegations is
barred under sections 7118(a)(4) and 7116(d) of the Statute. The third
allegation, which states that Respondent violated section 7116(a)(1) and
(5) by implementing new pay rates for supervisory craftsmen in June 1983
without notifying and bargaining with the Union must be sustained.
Regarding the appropriate remedy, in WAPA 3 we concluded that the
violations in that case required a remedy under which the Respondent
would be ordered to bargain as requested by the Union and to give
retroactive effect to the agreement reached. We conclude that
Respondent's conduct in this case in ignoring the Union's statutory
bargaining rights requires the same remedy. Accordingly, in remedying
this violation, we will require the Respondent to bargain concerning pay
rates for supervisory craftsmen as requested by the Union and give
retroactive effect to the agreement reached.
VI. Order
A. Pursuant to section 2423.29 of the Authority's rules and
regulations and section 7118 of the Statute, the United States
Department of Energy, Western Area Power Administration, Golden,
Colorado, shall --
1. Cease and desist from:
(a) Implementing changes in the pay rates of supervisory
craftsmen without notifying and bargaining with the exclusive
representative, the International Brotherhood of Electrical
Workers, AFL-CIO, Locals 640, 1759, and 2159.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights under the Statute.
2. Take the following affirmative action to effectuate the purposes
and policies of the Statute:
(a) Upon request, negotiate in good faith with the exclusive
representative, the International Brotherhood of Electrical
Workers, AFL-CIO, Locals 640, 1759, and 2159, concerning the rates
of pay for supervisory craftsmen, including the revisions in pay
rates for these personnel which were implemented on June 13, 1983,
and apply whatever agreement is reached concerning the June 13,
1983, revisions retroactively.
(b) Post at its facilities in Golden, Colorado, and its
facilities in each of its area offices, copies of the attached
Notice on forms furnished by the Authority. Upon receipt of such
forms, they shall be signed by the Administrator and shall be
posted and maintained for 60 consecutive days in conspicuous
places, including all places where notices to emlployees are
customarily posted. Reasonable steps shall be taken to ensure
that these Notices are not altered, defaced, or covered.
(c) Notify the Regional Director of Region VII, Federal Labor
Relations Authority, in writing as required under section 2423.30
of the Authority's rules and regulations, of the steps taken to
comply with this Order.
B. The allegations in the complaint concerning bypasses of the Union
and the establishment of the task force study are dismissed.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement changes in the pay rates of supervisory
craftsmen without notifying and bargaining with the International
Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159,
the exclusive representative of these employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon reqquest, negotiate in good faith with the
International Brotherhood of Electrical Workers, AFL-CIO, Locals 640,
1759, and 2159, concerning the rates of pay for supervisory craftsmen,
including the revisions in pay rates for supervisory craftsmen which we
implemented on June 13, 1983, and apply whatever agreement is reached
concerning the June 13, 1983, revisions retroactively.
... (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 VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose
telephone number is: (303) 837-5224.