46:0582(57)CA - - HQ, 127th Tactical Fighter Wing, MI Air NG, Selfridge Air NG Base, MI and AFGE Local 2077 - - 1992 FLRAdec CA - - v46 p582
[ v46 p582 ]
The decision of the Authority follows:
46 FLRA No. 57
FEDERAL LABOR RELATIONS AUTHORITY
HEADQUARTERS, 127TH TACTICAL
FIGHTER WING, MICHIGAN AIR
NATIONAL GUARD, SELFRIDGE AIR
NATIONAL GUARD BASE, MICHIGAN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
November 20, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The Respondent filed exceptions, and the General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to negotiate with the Union over the safety concerns of bargaining unit employees relating to a staffing reduction in the Respondent's boiler plant operations. The complaint further alleged that Respondent violated section 7116(a)(1), (5), and (8) of the Statute when it failed, on request, to furnish the Union with copies of the boiler plant log sheets for the period of March 10, 1991, through May 18, 1991. 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 the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
In its exceptions, the Respondent relies on Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), and contends that it has no obligation "to conduct union-initiated midterm bargaining over issues not addressed by the applicable collective bargaining agreement." Brief to Exceptions at 8. We respectfully disagree with the court's decision in Social Security Administration v. FLRA and adhere to our holding in Internal Revenue Service, 29 FLRA 162 (1987) (IRS), that the duty to bargain in good faith that is imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters that are not contained in the collective bargaining agreement, unless the union has waived its right to bargain about the subject matter involved. See U.S. Patent and Trademark Office, 45 FLRA 1090, 1091 n.2 (1992) petition for review filed, No. 92-2347 (4th Cir. Oct. 26, 1992). As we stated in IRS, such a waiver of bargaining rights may be established by express agreement or bargaining history. 29 FLRA at 166. Further, any such waiver must be clear and unmistakable.
Here, the Respondent makes no claim that the Union's bargaining request concerns a matter that is contained in or covered by an existing collective bargaining agreement. Consequently, the court's decision in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), on which the Respondent relies, is distinguishable. In that decision, the court found that matters about which the unions sought to initiate bargaining were covered by a collective bargaining agreement, and that, therefore, the question of waiver was not relevant to a determination of whether the agencies had a mid-term duty to bargain. Additionally, the Respondent has not cited any express agreement that it claims establishes a waiver of the Union's right to bargain about the subject matter involved in the Union's bargaining request, that is, safety concerns relating to a staffing reduction in the boiler plant operations.
In IRS, the Authority adopted an approach to union-initiated mid-term bargaining proposals that was "consonant with case law in the private sector[.]" 29 FLRA at 166. In describing "clear and unmistakable waiver as evidenced by bargaining history," the Authority stated that that category of waiver:
[C]oncerns subject matters which were discussed in contract negotiations but which were not specifically covered in the resulting contract. In this category, waiver may be found, based on a case-by-case analysis of the facts and circumstances of each case, where the subject matter of the proposal offered by the union during mid-term negotiations was fully discussed and explored by the parties at the bargaining table. For example, where a union sought to bargain over a subject matter but later withdrew its proposal in exchange for another provision, a waiver of the union's right to bargain over the subject matter which was withdrawn would be found. The particular words of proposals offered during contract and mid-term negotiations need not be identical for a waiver to exist. On the other hand, the fact that a mid-term proposal may relate to a general subject area covered in a collective bargaining agreement will not relieve an agency of its obligation to bargain. Rather, the determinative factor is whether the particular subject matter of the proposals offered during contract and mid-term negotiations is the same.
Id. at 167.
In private sector precedent, the test for determining the existence of a waiver by bargaining history is that the matter must have been fully discussed and consciously explored during negotiations and the union must have consciously yielded or clearly and unmistakably waived its interest in the matter. See, for example, Equitable Gas Co., 303 NLRB No. 136, 138 LRRM 1001 (1991); The Press Company, Incorporated, 121 NLRB 976 (1958) (Press Company). Under this test mere discussion of a matter during contract negotiations is not enough to establish such a waiver. See, for example, Press Company.
While the decision in IRS does not explicitly state that a union must have "consciously yielded" its interest in a matter to establish a waiver by bargaining history, that requirement is compatible with the concept expressed in IRS that any such waiver must be clear and unmistakable. It is also consistent with the example set forth in IRS finding a waiver based on a union's withdrawal of a proposal in exchange for another provision. Moreover, subsequent to IRS, a formulation of the test for determining the existence of a waiver by bargaining history that more precisely mirrors the language of the private sector test was used by an Administrative Law Judge in a decision that the Authority adopted. U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632, 644-45 (1990), (Marine Corps, Albany).
We find that more than mere discussion during prior negotiations is required to establish a waiver by bargaining history. See, for example, Press Company. Rather, we hold that a matter must be fully discussed and consciously explored during negotiations and the union must have consciously yielded or otherwise clearly and unmistakably waived its interest in the matter. To find a waiver based on a lesser standard would place constraints on a union's ability to raise questions and issues freely at the bargaining table. If mere discussion of a matter were sufficient to establish a waiver, unions could be deterred from tentatively exploring issues in negotiations. Finding a waiver based on mere discussion also would encourage agencies to raise all conceivable issues in contract negotiations simply for the purpose of foreclosing future bargaining on those issues. Such an approach does not encourage fruitful and constructive negotiations and the meaningful resolution of mutual problems through negotiations, but, rather, increases the potential for conflict in negotiations. For these reasons, we find that the appropriate test for determining whether a waiver by bargaining history has occurred is that which was set forth in Marine Corps, Albany. To reiterate, the matter must have been fully discussed and consciously explored during negotiations and the union must have consciously yielded or otherwise clearly and unmistakably waived its interest in the matter.
In the circumstances of this case, we find that the evidence does not establish that during the pre-implementation bargaining sessions the Union consciously yielded its interest in safety concerns resulting from the implementation of the staffing reduction in the boiler plant operations. Thus, we agree with the Judge that nothing that occurred during the pre-implementation bargaining sessions or as a result of those sessions constituted a clear and unmistakable waiver, implied or expressed, of the Union's interest in bargaining over that subject matter. In our view, the Union's failure, prior to implementation, to seek the assistance of the Federal Service Impasses Panel in the face of the Respondent's announcement of its intention to implement its "last best offer," without more, does not constitute a conscious yielding or clear and unmistakable waiver of its right to seek bargaining over safety concerns subsequent to implementation.
The circumstances present here are distinguishable from those in which a union's failure to press its position on a matter during bargaining has been construed as a clear and unmistakable waiver of its interest in the matter. For example, in Marine Corps, Albany, the evidence showed that the union clearly and unmistakably waived its 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 names and work locations of bargaining unit employees, and dropped its demand for the home addresses of bargaining unit employees. In a private sector case, Saint Marys Hospital, 260 NLRB 1237 (1982), in which the National Labor Relations Board adopted the decision of an Administrative Law Judge (ALJ), the facts revealed a conscious relinquishment and waiver of the union's right to bargain about a dental plan during the period covered by the contract. In that case, the union made an expressed, formal proposal concerning dental care, which it discussed and pursued throughout most or all of the bargaining but which was eliminated from the final agreement. In discussing whether a waiver existed, the ALJ stated: "As to a waiver of bargaining rights, the major thrust is whether the right to bargain about the subject matter involved has been exercised, and has resulted in a bargain for a fixed term." 260 NLRB at 1246. The ALJ found that the Union's conscious relinquishment of its proposal for a dental plan constituted a part of the bargain for the contract reached between the union and the employer. In Speidel Corporation, 120 NLRB 733 (1958), the Board found, based on the record, that there was a clear understanding between the parties that the subject of bonuses would remain a management prerogative and that, in the circumstances involved, the union had bargained away or waived its interest in the matter of bonuses during the course of negotiations that resulted in the execution of a contract between the parties.
Here, the facts do not establish that the Union relinquished its interest in negotiating over safety concerns as part of a bargain reached with the Agency prior to implementation. In this case, the parties reached no agreement and the entire matter was left unresolved. In fact, as the Judge found, the record does not establish that the parties were at impasse, but merely that an impasse was declared so that the services of the Federal Service Impasses Panel could be sought by either side. Moreover, even assuming that the Union, by its actions, waived its right to object to the Agency's institution of a system that entailed the use of rovers and personal duress alarms to maintain safety after staff reductions, it does not follow that the Union waived its right to bargain over safety concerns relating to breakdowns and failures in that system that became evident only after several months of experience with the reduced staffing patterns.
Accordingly, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to negotiate with the Union over the safety concerns of bargaining unit employees relating to a staffing reduction in the Respondent's boiler plant operations subsequent to the implementation of the staffing reduction in those operations. We note that the Respondent's only argument in defense of its refusal to furnish the requested information is that in the absence of any obligation to accede to the Union's bargaining request, it has no obligation to provide the information. Therefore, we agree with the Judge, for the reasons that he stated, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute when it failed to furnish the Union with copies of the boiler plant log sheets for the period of March 10, 1991, through May 18, 1991. We shall order the remedy recommend