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The decision of the Authority follows:
44 FLRA No. 18
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
FEDERAL EMPLOYEES METAL TRADES COUNCIL
DECISION AND ORDER
February 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent did not violate section 7114(b)(5) of the Federal Service Labor-Management Relations Statute (the Statute) and thereby commit an unfair labor practice when it refused to execute and take steps to implement a written document embodying terms of a tentative agreement regarding training and promotion for certain employees. The General Counsel filed exceptions to the Judge's decision. The Respondent filed an opposition to the General Counsel's exceptions.
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 the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order for the reasons set forth below.
Section 7114(b)(5) of the Statute provides that the duty of an agency and an exclusive representative to negotiate in good faith includes the obligation, "if agreement is reached," to execute upon request a written document embodying the agreed terms and to take necessary steps to implement the agreement. 5 U.S.C. § 7114(b)(5) (emphasis added). This statutory language imposes an obligation on a party "to sign a document provided that an agreement is reached after negotiations thereon." Internal Revenue Service, Philadelphia District Office, 22 FLRA 245, 255 (1986) (emphasis in original). See International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560 (1990) ("In situations where the parties have reached an agreement bilaterally, the purpose of section 7114(b)(5) appears clear. Execution of a written agreement is necessary to ensure that, in fact, there is a 'meeting of the minds' on the terms of the agreement.").
An agreement, for purposes of section 7114(b)(5) of the Statute, is one in which authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining. See id. See also Internal Revenue Service and Internal Revenue Service, Brooklyn District, 23 FLRA 63, 64 (1986) (Brooklyn District) (the Authority adopted the administrative law judge's finding that the parties had not reached a final agreement during the bargaining sessions because the "[agency's] representatives . . . did not have authority to bind the agency" and the union's president "was aware of the [agency's] past failure to send fully authorized representatives to bargaining sessions"). Therefore, it is axiomatic that if the parties fail to send fully authorized representatives to the bargaining table, an agreement, for purposes of section 7114(b)(5) of the Statute, cannot be reached at the table.
In this regard, we note that section 7114(b)(2) of the Statute obligates the Agency and the Union to send representatives to the bargaining table who are fully authorized to negotiate on any condition of employment and to reach agreement thereon. In the instant case, the Judge held that the parties' representatives at the bargaining table were not authorized to reach agreement for purposes of section 7114(b)(5) of the Statute due to a "practice at the Shipyard whereby no agreement is final or binding until it is reviewed and signed off by the parties." Judge's Decision at 7. However, the Judge did not explicitly state whether the practice discussed above constitutes a clear and unmistakable waiver by the parties of their right under section 7114(b)(2) of the Statute to have the other party send fully authorized representatives to the bargaining table.
While a statutory right may be waived, such a waiver must be clear and unmistakable. See, for example, U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, National Council of Field Labor Locals, AFL-CIO, 38 FLRA 1374, 1384 (1991). Waiver may be established by express agreement or by bargaining history. A waiver may also be established by a past practice. Id. In the instant case, the evidence supports a finding that the parties clearly and unmistakably waived their right under section 7114(b)(2) of the Statute to insist that the other party send representatives to the bargaining table who are duly authorized to reach agreement. As the Judge stated, "[t]he uncontradicted evidence reflects the existence of a practice at the Shipyard whereby no agreement is final or binding until it is reviewed and signed off by the parties." Judge's Decision at 7. Specifically, the Judge found that the Union had submitted to the Respondent the names of the three Union officers authorized to review, approve, and sign agreements for the Union. None of those three officers were at the bargaining table in this case. The Judge also found that, "[s]imilarly, any agreement must be reviewed by the [Respondent's Labor and Employee Relations Division]." Id. at 4. Further, the Judge credited the uncontradicted testimony of two representatives of the Respondent's Industrial Relations Office who testified that no agreement is reached at the Shipyard until it is reviewed and signed off on by each party.
The Judge held that in view of this practice, the Union's bargaining representative knew, or should have known, that any agreement reached at the bargaining table was merely tentative and subject to review and approval by both parties before the agreement became final and binding. Further, we note that there was no evidence presented at the hearing which would refute the existence of such a practice. In light of the uncontroverted evidence in the record, we agree with the Judge's finding that the parties have a practice whereby no agreement becomes final or binding until it is reviewed and approved by the parties' designated officials. We further find that this practice constitutes a clear and unmistakable waiver by each party of its right under section 7114(b)(2) of the Statute to insist that the other party send representatives to the bargaining table who are duly authorized to reach agreement.
With respect to section 7114(b)(2) of the Statute, this case is distinguishable from Brooklyn District. In Brooklyn District, the Authority noted, in adopting the judge's decision, that the judge rejected the respondent's contention that the union waived its right under section 7114(b)(2) of the Statute to bargain with fully empowered representatives when the union continued to bargain with the respondent after the respondent's representatives stated at the outset of the bargaining session that they had no authority to bind the respondent. The Authority further noted the judge's conclusion "that any [u]nion acquiescence to the continuation of bargaining without fully empowered management representatives was not so clear and unambiguous as to constitute a waiver . . . ." Brooklyn District, 23 FLRA at 65. In contrast, in the instant case, as stated above, the record demonstrates that the parties have a practice whereby no agreement becomes final or binding until it is reviewed and approved by the parties' designated officials and we find that this practice constitutes a clear and unmistakable waiver by each party of its right under section 7114(b)(2) of the Statute to insist that the other party send representatives to the bargaining table who are duly authorized to reach agreement.
Because we find that the parties clearly and unmistakably waived their right under section 7114(b)(2) of the Statute by virtue of their practice, as discussed above, we agree with the Judge that the oral agreement reached at the end of the third bargaining session was only "a tentative agreement" subject to review and approval by both parties. Judge's Decision at 7. Consequently, the tentative agreement reached at the end of the third bargaining session did not constitute an "agreement" that serves as a necessary precondition to the obligations set forth in section 7114(b)(5) of the Statute. See Brooklyn District.
The complaint in this case is dismissed.
(If blank, the decision does not have footnotes.)