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The decision of the Authority follows:
36 FLRA No. 86
U.S. DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
August 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to bargain, as requested by the Charging Party (the Union), over the procedures for mediation/arbitration in connection with mid-term changes initiated by the Respondent. Judge's Decision at 2. The Judge found that the Respondent violated the Statute as alleged.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. For the following reasons, we find that the Respondent violated the Statute. We adopt the Judge's findings, conclusions, and recommendations to the extent consistent with this decision.
The Union is the exclusive representative of employees of the Respondent Air Force Logistics Command (AFLC) throughout the United States, including employees of AFLC Headquarters located at Wright-Patterson Air Force Base, Ohio. There is a Master Labor Agreement in effect between the parties that was most recently renewed in October 1986.
The Union submitted mid-term bargaining requests on two separate issues in mid-October and early November 1987. On November 6, 1987, the Activity responded to the requests, stating its desire to first negotiate the procedures by which to conduct the bargaining, and offered its own proposals on that subject. On November 23, 1987, the Union filed an unfair labor practice charge which resulted in the issuance of a complaint alleging that the Respondent failed and refused to bargain concerning two substantive matters. That case was decided on January 27, 1989, by the Judge who decided the instant case. He found that the Respondent had violated the Statute, as alleged in the complaint. U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, Case No. 5-CA-80086 (Wright-Patterson I).
During November and December, the parties met and negotiated without reaching agreement over management's proposals for procedures by which to conduct the union-initiated mid-term bargaining.
On about December 15, 1987, the Union submitted a request to bargain on procedures concerning the mediation/arbitration of disputes arising from negotiations on management-initiated mid-term changes in conditions of employment. The Respondent did not dispute before the Judge that it was obligated to bargain over the proposal to the extent that it is negotiable under Internal Revenue Service, 29 FLRA 162 (1987).
On December 24, 1987, the Respondent answered the Union's request by letter, stating:
Before we engage in union initiated mid-term bargaining, procedures will have to be negotiated. As you know, the parties are currently engaged in such negotiations. Your proposals are therefore returned without action until such time as procedures for union initiated mid-term bargaining are in place.
Judge's Decision at 3. On January 4, 1988, the Union again requested negotiations on its proposals concerning "procedures for mediation/arbitration resulting from AFLC initiated mid-term bargaining changes. . . ." Id. The Respondent answered in terms identical to the letter of December 24, 1987. On March 18, 1988, the Union filed the unfair labor practice charge that resulted in the complaint being issued in the present case.
The parties later bargained to impasse on management's proposals regarding ground rules for negotiations over union-initiated mid-term proposals. However, negotiations never took place on the Union's proposals at issue here.
At the hearing, the Judge granted the General Counsel's motion to consider the evidentiary record of Wright-Patterson I in deciding this case.
III. Administrative Law Judge's Decision
The Judge stated that this case does not differ significantly from Wright-Patterson I, and based his finding of an unfair labor practice here on his reasoning in that case.
In reaching the conclusion that the Respondent violated the Statute, the Judge found that the Respondent had failed to bargain in good faith over the Union's mid-term proposals when it twice insisted on completing "ground rule" negotiations before meeting its conceded obligation to bargain over the Union's mid-term proposals. The Judge found this insistence on first completing ground rule negotiations to raise "serious doubt as to a good faith performance of [the Respondent's] bargaining obligation," especially as the ground rule proposals contained "substantive" as well as "framework" proposals. Judge's Decision at 4. The Judge found that the Respondent's insistence on first bargaining about those matters to completion "stalls bargaining . . . to the extent that it forecloses any bargaining on any matter of importance raised by the Union as a mid-term initiative." Id.
The Judge also rejected the Respondent's assertions that the negotiated agreement constituted a waiver of its duty to bargain, and that the Union's proposals constitute a dispute over the meaning of the agreement. The Respondent does not except to those findings.
IV. Respondent's Exception to the Judge's Decision
The Respondent excepts to the Judge's findings and conclusions on the ground that the definition of the term "ground rules" relied on by the Judge "unduly limits [the] parties." Brief at 2. The Respondent claims that ground rules can contain substantive matters, and have been defined "rather succinctly as merely '. . . the arrangements between parties as to how negotiations will be conducted.'" Id. (quoting Environmental Protection Agency, 16 FLRA 602, 613 (1984)). According to the Respondent, the Authority has found that negotiating a ground rules agreement "is an inherent aspect of an agency's obligation to bargain in good faith[.]" Id. at 3 (emphasis in original) (quoting Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA 612, 633 (1986)). The Respondent argues that if an agency is obligated to bargain on ground rules, then a union should also be required to bargain on ground rules in the circumstances of union-initiated mid-term bargaining.
The Respondent maintains that by insisting on completing ground rule negotiations, it was acting in good faith in that it was attempting to negotiate a "framework" for future union-initiated mid-term proposals. Id. at 2.
V. Analysis and Conclusion
On August 3, 1990, the Authority issued its decision in Wright-Patterson I, 36 FLRA No. 62 (1990), finding, for reasons other than those of the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by its failure and refusal to bargain in good faith with the Union. In our decision, we stated that the duty to bargain in good faith under the Statute includes the obligation "to approach the negotiations with a sincere resolve to reach a collective bargaining agreement . . . [and] . . . to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[.]" We concluded that, in determining whether a party has fulfilled its obligation to bargain in good faith, the totality of the circumstances in a case must be considered. Slip op. at 8. Because we further found that the obligation to bargain over ground rules "is inseparable from the parties' mutual obligation to bargain in good faith, . . . a party may not insist on bargaining over ground rules which do not enable the parties to fulfill their mutual obligation." Id. at 10. Therefore, we found it unnecessary to define, with precision, what would constitute purely ground rules proposals as opposed to substantive proposals. We concluded that "ground rules proposals must, at a minimum, be designed to further, not impede, the bargaining for which the ground rules are proposed." Id.
In this case, we find that the totality of the circumstances supports the conclusion that the Respondent did not bargain in good faith. Rather than approaching negotiations with sincere resolve to reach agreement on the Union's proposals, the record establishes that the Respondent was avoiding bargaining on the proposals. We note, in this regard, that in response to other proposals presented by the Union in October and early November, 1987, Respondent had insisted since November 6, 1987, on bargaining over the Respondent's proposals on what it referred to as ground rules. Id. at 2-3. At the time the Union requested to bargain on its proposals on December 15, 1987, and, again, on January 4, 1988, the "ground rules" bargaining described in Wright-Patterson I was still proceeding. Indeed, the Respondent's answer to both requests was simply to return the proposals without action "until such time as procedures for union initiated mid-term bargaining are in place." Judge's Decision at 3. And, at the time of the filing of the unfair labor practice charge on March 18, 1988, there still was no agreement on the management-initiated proposed procedures. At the time of the hearing, in August 1988, the matter remained unresolved before the Federal Service Impasses Panel.
The Respondent asserts that its refusal to bargain over the Union's proposals was in good faith because it was attempting "to provide a framework for all such [union-initiated mid-term proposals]." Brief at 2. (Emphasis in original.) However, in Wright-Patterson I we found that the Respondent's proposals were not designed to enable the parties to fulfill their mutual obligation to bargain in good faith. Slip op. at 10. Rather, they operated to impede bargaining over the Union's proposals at issue in that case. Id. at 11. This case, involving the same parties and essentially the same issue, cannot be separated from the almost contemporaneous circumstances in Wright-Patterson I. Here, as in the earlier case, Respondent refused to bargain over the Union's substantive proposals based on its insistence on reaching agreement on so-called ground rules proposals that we have found indicated Respondent's desire "to delay, or avoid, the bargaining process." Id. at 10. Based on the reasons that we stated in detail in Wright-Patterson I, we find that the Respondent's insistence in the present case on first completing negotiations concerning mid-term bargaining procedures also had the effect of preventing negotiations on the Union's proposals at issue here.
Therefore, based on the totality of the circumstances set forth in Wright-Patterson I and the record in this case, we conclude that the Respondent's refusal to bargain over the Union's mid-term proposals violated section 7116(a)(1) and (5) of the Statute.
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, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of its employees, concerning procedures for mediation/arbitration resulting from mid-term bargaining changes initiated by the Air Force Logistics Command.
(b) In any like or related manner interfering with, restraining or coercing its 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 Federal Service Labor-Management Relations Statute:
(a) Upon request, and to the extent consistent with applicable law, rule and regulation, bargain with the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of its employees, concerning procedures for mediation/arbitration resulting from mid-term bargaining changes initiated by the Air Force Logistics Command.
(b) Post at all of its facilities where bargaining unit employees represented by the American Federation of Government Employees, Council 214, AFL-CIO, are located, 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 Commander, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain in good faith, upon request of the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of our employees, concerning procedures for mediation/arbitration resulting from mid-term bargaining changes initiated by the Air Force Logistics Command.
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 Federal Service Labor-Management Relations Statute.
WE WILL upon request and to the extent consistent with applicable law, rule and regulation, bargain with the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of our employees concerning procedures for mediation/arbitration resulting from mid-term bargaining changes initiated by the Air Force Logistics Command.
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 V, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.
(If blank, the decision does not have footnotes.)