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The decision of the Authority follows:
30 FLRA No. 130 U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT KANSAS CITY, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Charging Party Case No. 7-CA-30395 (18 FLRA 358)
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The court set aside the Authority's original decision and remanded the case for further proceedings consistent with its decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987).
The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to bargain over proposals regarding procedures to be used for the collection of debts owed to the United States Government by unit employees under the Debt Collection Act of 1982, P.L. 97-365 (the Act). Consistent with the court's decision in NTEU v. FLRA and in accordance with our recent Decision and order on Remand in Internal Revenue Service, 29 FLRA 162 (1987), petition for enforcement pending, No. 87-1695 (D.C. Cir., filed Nov. 20, 1987) we conclude that the Respondent violated the Statute as alleged.
This case resolves only the question of whether the Agency has a duty to bargain at all under the circumstances involved. It does not present questions as to whether or not particular proposals are negotiable. It is related, however, to negotiability disputes filed by the Union during the pendency of this case in Case Nos. O-NG-846 and O-NG-1146. Those cases concern the scope of bargaining under the Statute. That is, they concern whether the Union's specific [PAGE] bargaining proposals are consistent with applicable laws and regulations so as to be negotiable. Pursuant to the parties' requests, the Authority has held those cases in abeyance pending the outcome of this case. The Authority granted the Agency's unopposed motion to consolidate the negotiability cases.
II. History of the Case
The Act was passed on October 25, 1982. It required each agency to prescribe implementing regulations subject to the approval of the Office of Personnel Management. 1 At the time of the parties' stipulation in this case, neither the Respondent nor higher level agency management had promulgated or implemented such regulations. Rather, the Respondent continued to process debt collection actions under pre-existing law and regulations.
In April 1983, the Union sought to negotiate "relative to a change in conditions of employment as promulgated by (the Act)" in conjunction with other matters which were then the subject of mid-term bargaining under the terms of parties' negotiated agreement. The parties met but the Respondent refused to bargain. The Respondent stipulated that it had not been directed by higher authority to refuse to bargain over proposals relating to the Act and, moreover, that it has the authority "to decide whether or not to bargain" over the Union proposals. However, it took the position that there was no duty to bargain over the union's proposals because there had been no change in conditions of employment.
B. Previous Decision and Order of The Authority
On June 7, 1985, the Authority issued its previous Decision and Order in the case, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 18 FLRA 358 (1985). The Authority relied on its previous decision in [ v30 p2 ] Internal Revenue Service, 17 FLRA 731, (1985), where the Authority determined that except for union proposals related to changes in established conditions of employment made by management, an agency did not have an obligation under the Statute to bargain over union-initiated proposals during the term of a collective bargaining agreement. The Authority found that because no change in unit employees' conditions of employment had occurred with respect to debt collection actions, the Respondent was not obligated to bargain over the Union's proposals. The Authority held that the Respondent's refusal to bargain did not constitute an unfair labor practice. The Authority therefore dismissed the complaint and the Union appealed.
C. The Court's Decision
The court reversed and remanded this case, NFFE Local 29 v. FLRA, No. 85-1486 (D.C. Cir. Aug. 19, 1987), in its consolidated Order in NAGE Locals R14-68, 71, 73 and 96 v. FLRA, No. 85-1463 (D.C. Cir. Aug. 19, 1987). The court remanded the case for proceedings consistent with its decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987). In that case, the court set aside the Authority's decision in Internal Revenue Service and remanded the case. The court concluded that the Authority's decision was contrary to the intent of Congress and the purposes of the Statute.
D. The Authority's Decision and Order on Remand in Internal Revenue Service
In our Decision and Order on Remand in Internal Revenue service, 29 FLRA 162 (1987), petition for enforcement pending, No. 87-1695 (D.C. Cir., filed Nov. 20, 1987), we concluded that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not contained in the agreement, unless, during negotiation of the agreement, the Union clearly and unmistakably waived its right to bargain about the subject matter involved.
The record shows that the request to bargain was over a subject matter not covered by the parties' agreement--"conditions of employment as promulgated by (the Act)." There is no assertion that the Union waived its right to bargain over that subject matter, nor that the subject matter is nonnegotiable. Therefore, we conclude that the [ v30 p3 ] Respondent's refusal to bargain to the extent consistent with law, over the Union's proposals, made during the term of the parties' agreement, violated section 7116(a)(1) and (5) of the Statute. Accordingly, we rescind our previous Order dismissing the complaint in this case and substitute the following:
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri shall:
1. Cease and desist from:
(a) Refusing to bargain with the National Federation of Federal Employees, Local 29, the exclusive representative of its employees, concerning the union's proposals regarding procedures for the collection of debts owed by unit employees to the United States Government under the Debt Collection Act of 1982, Public Law 97-365.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Upon request, bargain with the National Federation of Federal Employees, Local 29, concerning the Union's proposals to the extent consistent with law regarding procedures for the collection of debts owed by unit employees to the United States Government under the Debt Collection Act of 1982, Public Law 97-365.
(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receiving such forms, they shall be signed by the Respondent's Commander and shall be posted for 60 consecutive days thereafter in conspicuous places, including all 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.
(c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the [ v30 p4 ] Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
Issued, Washington, D.C., January 28, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v30 p5 ]
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 refuse to bargain with National Federation of Federal Employees, Local 29, the exclusive representative of our employees, concerning the union's proposals regarding procedures for the collection of debts owed by unit employees to the United States Government, under the Debt Collection Act of 1982, Public Law 97-365.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.
WE WILL, upon request, bargain with National Federation of Federal Employees, Local 29, concerning the Union's proposals regarding procedures for the collection of debts owed by unit employees to the United States Government, under the Debt Collection Act of 1982, Public Law 97-365.
______________________________ (Activity) Dated: _________________ By: ______________________________ (Signature) (Title)
This Notice must remain posted for (sixty) 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, of the Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. [PAGE]
Footnote 1 The Act references 5 U.S.C. 5514(b)(1) which provides, as here relevant, that "(t)he head of each agency shall prescribe regulations, subject to the approval of the President, to carry out this section(.)" The authority of the President to approve such regulations was subsequently delegated to the Office of Personnel Management. See Sec. 8(1), Executive Order 11609, as amended, reprinted in 3 U.S.C. 301 app. at 372 (1982).