38:0632(59)CA - - Navy, Marine Corps (MPL), Washington, DC and Marine Corps Logistics Base, Albana, GA and AFGE Local 2317; Navy, Marine Corps, Marine Corps Base, Camp Lajeune, NC and AFGE Local 2065 - - 1990 FLRAdec CA - - v38 p632
[ v38 p632 ]
The decision of the Authority follows:
38 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS (MPL)
MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS
MARINE CORPS BASE
CAMP LEJEUNE, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
November 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Chief Administrative Law Judge. The Respondents filed an opposition to the exceptions.
The issue is whether the Respondents violated the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Charging Parties (Locals 2317 and 2065) with the home addresses of bargaining unit employees for whom they are the agents of the exclusive representative, the American Federation of Government Employees (the Union). The Judge found that the Union clearly and unambiguously waived its right during contract negotiations to require the Respondents to furnish the home addresses of unit employees covered by the parties' agreement.
Pursuant to section 2423.29 of our 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 the rulings. For the reasons stated below, we agree with the Judge that the Union waived its right to require the Respondents to furnish the home addresses of unit employees. Therefore, we will dismiss the complaint.
The United States Marine Corps and the Union are parties to a master collective bargaining agreement covering a unit which was consolidated in 1982. Two of the consolidated units are represented by Locals 2317 and 2065 as designated agents of the exclusive representative. The Union and the Marine Corps began ground-rule negotiations for their current agreement in December 1983. Actual negotiations started in April 1984, and negotiations continued through October 1984. The agreement became effective on April 27, 1985. The Union's chief negotiator was employed by the Union in its national office.
During negotiations for the 1985 master agreement, the Union proposed that the Marine Corps furnish the Union with the names and home addresses of all bargaining unit employees. The Marine Corps rejected this proposal. The Marine Corps proposed to allow the Union to distribute literature in nonwork areas during nonwork time. The Union countered, in part, with a proposal that added the right to distribute literature during nonwork time, without reference to work or nonwork area. The Marine Corps also proposed, in a counterproposal, the semi-annual furnishing of the names and work locations of all employees. See Judge's Decision at 3-4 for a more extensive account of the bargaining history. After much discussion and several exchanges, the parties agreed to Article 6, Section 7, which provides as follows:
Employee representatives of the council or the local may solicit on behalf of the union during the nonwork time of the employees involved. The council and local unions may distribute literature to employees during the nonwork time of the representatives and the employees concerned provided the distribution complies with safety and security practices/ regulations and does not cause a problem of litter or congestion.
Also, Article 6, Section 8 provides, in relevant part:
Each activity, upon written request of the local union, will furnish the local union with a semiannual listing of the name and work location of all bargaining unit employees and a monthly listing of newly hired employees.
There is nothing in the agreement concerning the furnishing of home addresses of unit employees to the Union or its locals.
The Respondents admit that they refused to provide Locals 2317 and 2065 with the names and home addresses of unit employees for whom the locals are the designated agents of the exclusive representative.(*) They also admit that the information requested by Locals 2317 and 2065 is normally maintained in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training for management officials or supervisors related to collective bargaining.
III. Judge's Decision
Based on the bargaining history of the 1985 master agreement, the Judge concluded that the Union clearly and unambiguously waived its right to be furnished with the home addresses of all unit employees. Judge's Decision at 8. The Judge determined that the Union abandoned its pursuit of home addresses as a quid pro quo for access to work areas to distribute literature. Id. He "found that the Union responded to an explicit offer to so broaden its rights, in return for not making addresses available, by accepting the modified distribution rule and by dropping without further explanation its request for addresses." Id. at 5-6. Accordingly, the Judge concluded that the Respondents' refusal to furnish Locals 2317 and 2065 with the names and home addresses of bargaining unit employees did not violate section 7116(a)(1), (5), and (8) of the Statute.
IV. Positions of the Parties
A. The General Counsel
The General Counsel contends that the record does not support the Judge's finding that the Union waived its right to be furnished with the names and home addresses of unit employees. General Counsel's Exceptions at 2-5. In this regard, the General Counsel specifically argues that the language of the parties' current contract does not reflect the right the Union allegedly gained in the quid pro quo, the contractual right to distribute literature in employees' work areas. Therefore, the General Counsel asserts the Union never received its part of the alleged exchange. The General Counsel contends the Judge's conclusion in this regard was by inference and inferences do not support a finding of waiver. Id. at 4.
The General Counsel further argues that the Judge erred by failing to distinguish between the Union's statutory right to be furnished with the names and home addresses of unit employees and a contractual right to names and home addresses. The General Counsel maintains that the Union's statutory right to names and home addresses was never discussed during contract negotiations. Therefore, the General Counsel asserts that the Union's agreement to drop its proposal for a contractual right to names and home addresses in return for another contractual provision cannot constitute a waiver of its statutory right to names and home addresses. Id. at 6.
The General Counsel also contends that the Union could not have waived its statutory right to names and home addresses because at the time the parties conducted contract negotiations, the Authority had not yet ruled that unions were entitled under the Statute to be furnished with the names and home addresses of unit employees. The General Counsel argues that the Union could not have knowingly waived a right it did not know it had. Id. at 6-7.
B. The Respondents
The Respondents filed a request for an extension of time in which to file an opposition to the General Counsel's exceptions and filed an opposition within the extended time period. We find that granting the request is warranted, and we have considered the opposition.
The Respondents contend that the Judge properly found that the Union "took the bitter with the sweet" by exchanging a right to names and home addresses, which at the time of negotiations was uncertain under the Statute, for an enhanced right to contact employees at the worksite. Respondents' Opposition at 2.
V. Analysis and Conclusions
We find that the Respondents did not fail to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5), and (8) of the Statute. Based on the parties' bargaining history, we find that the Union waived its right to be furnished with the requested information.
A union's waiver of a statutory right must be clear and unmistakable. Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 31 FLRA 1244, 1247-48 (1988) ("zipper clause" waived parties' rights to any bargaining during the term of their agreement except in accordance with a limited reopener clause). In determining whether a contract provision constitutes a clear and unmistakable waiver, we examine the wording of the provision in issue as well as other relevant provisions of the contract, bargaining history, and past practice. Id. The Authority will not lightly infer a waiver of a statutory right.
In the instant case, we are not faced with a provision in a collective bargaining agreement that expressly waives the Union's right to the names and home addresses of bargaining unit employees. Instead, the issue is whether, based on the parties' bargaining history, the Union clearly and unmistakably waived its right to the information. For the reasons stated by the Judge, we agree with his finding that the Union waived its statutory right to bargaining unit employees' names and home addresses when it accepted management's proposed distribution rule and dropped its demand for receipt of the home addresses of bargaining unit employees. Judge's Decision at 8. Even though, as argued by the General Counsel, the language of Article 6, Section 7 does not, on its face, specifically grant the Union the right to distribute literature in work areas, we find that the evidence clearly shows that the parties discussed this matter at length and management agreed to the broader distribution rights when it agreed to the Union's counterproposal eliminating management's language confining distribution to nonwork areas. Transcript at 32-34. Further, the Union, during the negotiations by the parties on this issue, accepted management's counterproposal for the furnishing of a semi-annual listing of the names and work locations of all bargaining unit employees as embodied in Article 6, Section 8 of the parties' contract. Therefore, we conclude that the evidence shows that the Union clearly and unmistakably waived its statutory right to the names and home addresses of bargaining unit employees when it accepted management's offer of greater distribution rights and a semi-annual listing of the names and work locations of bargaining unit employees, and dropped its demand for receipt of the home addresses of bargaining unit employees.
We reject the General Counsel's argument that the Union could not knowingly have waived its statutory right to be furnished with the names and home addresses because at the time the parties were negotiating the contract, the Authority had not yet ruled that unions were statutorily entitled to the names and home addresses of unit employees. During the time period in which the Union and the Marine Corps were negotiating their master agreement, the Union had notice that the Authority was actively considering this issue in view of the fact that another local affiliated with the Union was a party to litigation pending before the Authority concerning the Union's statutory entitlement to names and home addresses. See Farmers Home Administration Finance Office, St. Louis, Missouri, 19 FLRA 195 (1985), in which the decision of the administrative law judge was issued in September 1984. Significantly, the Union's chief negotiator was an employee of the Union in its national office and should have been aware of the litigation and the Union's position on this issue.
We conclude, therefore, that the Union had notice that the Authority was considering whether the Union was entitled under the Statute to be furnished with the names and home addresses of unit employees at the time it dropped its proposal for that information and "accepted a palatable substitute clea