U.S. Federal Labor Relations Authority

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47:1206(111)CA - - HHS, SSA and AFGE - - 1993 FLRAdec CA - - v47 p1206

[ v47 p1206 ]
The decision of the Authority follows:

47 FLRA No. 111










(Charging Party/Union)




July 16, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs. The General Counsel also filed a motion requesting the Authority not to consider arguments raised by the Agency in its brief.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over a Union-initiated mid-term bargaining proposal. For the following reasons, we will remand this case to the Regional Director for action consistent with our decision.

II. Facts

The Union is the exclusive representative of a nationwide unit of certain of the Respondent's employees. A collective bargaining agreement exists covering the bargaining unit. On or about January 22, 1992, the Union submitted a mid-term bargaining proposal that provided for administrative leave and travel reimbursement for employees taking an Administrative Careers with America test. On February 19, 1992, the Respondent advised the Union that there was no obligation to bargain over mid-term bargaining proposals that were initiated by the Union.

III. Positions of the Parties

A. Respondent

The Respondent argues that under section 7106(b)(2) and (3) of the Statute, bargaining over the impact and implementation of changes in unit employees' conditions of employment is limited to management-initiated changes. The Respondent maintains that nothing in the Statute imposes an obligation to bargain over union-initiated proposals. In support of its position, the Respondent relies on Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA), and requests that the Authority disregard the decision in National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987) (NTEU). The Respondent also cites decisions under the Statute and Executive Order 11491, predating the Authority's decision in Internal Revenue Service, 29 FLRA 162 (1987) (IRS), for additional support that, in general, there is no obligation to bargain over union-initiated mid-term bargaining proposals.

The Respondent further argues that various provisions of the parties' national agreement support the position that there was no bargaining obligation in this case. First, the Respondent points to Article 7, Section 3, which it maintains constitutes a waiver of the Union's right to initiate mid-term proposals during the life of the agreement unless there is mutual consent to bargain.(1) The Respondent explains that "[o]nly when the parties mutually agree to reopen the contract may negotiations be conducted midterm." Respondent's Brief at 9. The Respondent also references Article 4 of the national agreement, entitled "Negotiations During the Term of the Agreement on Management Initiated Changes," and asserts that "the title of this provision limits any negotiations during the term of the agreement to changes initiated only by management." Id. at 8 (emphasis in original). It is the Respondent's position that, when read together, Articles 4 and 7 indicate that the parties intended to deal only with management-initiated bargaining during the term of the agreement.

B. General Counsel

In its initial brief, the General Counsel maintains that the Authority has declined to follow the decision of the U.S. Court of Appeals for the Fourth Circuit in SSA, and, instead, has elected to follow the rationale of the D.C. Circuit set forth in NTEU. Consequently, the General Counsel argues that the Respondent was obligated to bargain over the Union's mid-term bargaining proposal. The General Counsel further argues in its initial brief that the Respondent had never asserted that the Union's proposal was covered by the parties' agreement, that the Union had waived its right to bargain over the proposal, or that the proposal was nonnegotiable. Consequently, the General Counsel maintains that the Respondent's admitted refusal to engage in mid-term bargaining violates the Statute.

Following receipt of the Respondent's brief, the General Counsel filed a motion requesting that the Authority not consider the Respondent's assertion of a contractual waiver. In this regard, the General Counsel argued that the Respondent did not raise or rely on a contractual waiver in either its denial of the Union's request to bargain or the stipulation of facts. Consequently, the General Counsel maintains that the question of waiver is not encompassed by the stipulation and that the Respondent is barred from raising the matter in its brief to the Authority. However, in opposition to the Respondent's assertion of a contractual waiver, the General Counsel also maintains that the argument as to Article 7, Section 3 should be dismissed because it was previously addressed and rejected by the Authority in Social Security Administration and American Federation of Government Employees, AFL-CIO, 39 FLRA 633 (1991) (AFGE), enforcement denied on other grounds, 956 F.2d 1280 (4th 1992). The General Counsel states that the Authority considered the same contractual language contained in an earlier collective bargaining agreement between the parties and found that it applied only to supplemental agreements at component levels of the Agency. According to the General Counsel, the Union sought mid-term bargaining at the Agency level in this case and not at the component level.

IV. Analysis and Conclusions

We reject the Respondent's assertion that the Authority should adopt the Fourth Circuit's decision in SSA that there was no obligation to bargain over the Union's mid-term initiated proposal. We respectfully disagree with the Fourth Circuit's decision, and we will continue to adhere to our holding in 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 Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582 (1992).

As noted previously, the Respondent maintains that various provisions of the parties' agreement constitute a waiver of any bargaining rights the Union may have had. In particular, the Respondent contends that Article 7, Section 3 of the agreement conditions Union-initiated bargaining on mutual consent of the parties. The express language of that provision is susceptible to the Agency's interpretation. However, in order to assess whether, in fact, there has been a contractual waiver of the Union's right to bargain in this case, it is necessary to address fully the meaning of those portions of the agreement that are asserted as a defense to the alleged unfair labor practice. Because there is an insufficient record on which to establish such meaning, we will remand this case to the Regional Director for appropriate action, as explained more fully below.

In taking this action, we find no basis on which to grant the General Counsel's motion not to consider the Respondent's waiver argument because it was first raised in a brief to the Authority. Pursuant to section 2429.1(a) of our Rules and Regulations, parties are given an opportunity to file briefs with the Authority after the Regional Director has transferred a case to the Authority for decision. There is no limitation on the matters that may be argued by the parties as long as such matters are reasonably related to the issues before the Authority for resolution. In this case, the Respondent advised the Union that "there is no obligation to bargain on [the Union's proposal] at this time." Joint Exhibit 6. The parties stipulated that the Respondent "advised the Union that it was under no obligation to bargain on Union-initiated midterm [sic] bargaining proposals." Stipulation, paragraph 9. Neither the reason given the Union nor the language of the stipulation is inconsistent with the contractual defenses advanced by the Respondent in its brief. Accordingly, those issues are appropriately before us and the General Counsel's motion is denied.

In Internal Revenue Service, Washington, D.C., 47 FLRA No. 103 (1993) (IRS, Washington), we reexamined our approach to cases in which defenses to alleged interference with statutory rights were based on collective bargaining agreements. We stated that when an underlying dispute is governed by the interpretation and application of specific provisions of a collective bargaining agreement, we will no longer apply the "clear and unmistakable waiver" analysis that previously had been utilized to address such matters. Rather, we will determine the meaning of the parties' agreement in order to resolve the alleged unfair labor practice.(2) Specifically, we held that we

will apply the same standards and principles in interpreting collective bargaining agreements as applied by arbitrators in both the Federal and private sectors and the Federal courts under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. As part of these standards, we note, for example, that "collective bargaining agreements must be read in light of the realities of labor relations and considerations of federal labor policy, which make up the background against which such agreements are entered." [Local Union 1395, IBEW v. National Labor Relations Board, 797 F.2d 1027, 1033 D.C. Cir. 1986] (citations omitted). The focus will be on the interpretation of the express terms of the collective bargaining agreement. [U.S. Department of Health and Human Services v. FLRA, 976 F.2d 229, 235 (4th Cir. 1992)]. Nevertheless, the meaning of the agreement must "[u]ltimately . . . depend[] on the intent of the contracting parties." Local Union 1395, IBEW [v. National Labor Relations Board], 797 F.2d at 1034 (quoting Gateway Coal Co. v. UMW, 414 U.S. 368, 382 (1974)). The parties' intent must be given controlling weight, "whether that intent is established by the language of the clause itself, by inferences drawn from the contract as a whole, or by extrinsic evidence." Id. at 1036. In giving controlling weight to the intent of the parties, caution should be exercised so that such intent "is not . . . discerned by reference to 'abstract definitions unrelated to the context in which the parties bargained,' especially where bargaining history is crucial to an understanding of that intent." Id. (quoting [National Labor Relations Board v. C & C Plywood Corp., 385 U.S. 421, 430 (1967) (citation omitted).

IRS, Washington, slip op. at 20. We also stated that in determining the meaning of a collective bargaining agreement, any alleged past practices that are relevant to the interpretation of the agreement may be considered. Finally, we noted that once the General Counsel makes a prima facie showing that a respondent's actions violated a statutory right, the respondent may rebut that showing by establishing that the parties' collective bargaining agreement allowed the respondent's actions.

In this case, as noted, the record contains insufficient information on which to ascertain the meaning of the provisions of the parties' agreement that are alleged to constitute a waiver of the Union's right to engage in mid-term bargaining. For this reason, we will remand this case to the Regional Director for further processing as authorized under section 2429.1(a) of our Rules and Regulations. The Regional Director may take whatever action he deems appropriate. For example, upon further investigation, the Regional Director could decide to withdraw the charge and dismiss the complaint. Or, the Regional Director could determine that a hearing before an administrative law judge is appropriate in order to allow the parties to present evidence and testimony concerning the meaning of the applicable agreement provisions. The administrative law judge would then be authorized to interpret the parties' agreement and resolve the allegations of the unfair labor practice complaint. See IRS, Washington, slip op. at 20-21.

Finally, in reaching our result in this case, we reject the General Counsel's assertion that the Respondent's waiver argument should be dismissed because the Authority previously addressed and rejected the same argument in AFGE with respect to a predecessor agreement between the parties. In that case, the Authority adopted an administrative law judge's determination that various provisions of the collective bargaining agreement, including Article 7, Section 3 and Article 4, which are here asserted to constitute a waiver, did not, in fact, contain a "clear and unmistakable waiver" of the Union's right to engage in mid-term bargaining over subjects that were not included in the agreement. 39 FLRA at 634. As we stated previously, and as more fully discussed in IRS, Washington, we no longer apply a clear and unmistakable waiver analysis where the underlying dispute is governed by the interpretation and application of specific provisions of a negotiated agreement. Consequently, reliance on a standard that is no longer applicable is not warranted and does not provide a basis for addressing the matters raised in this case.

Accordingly, we will remand this case to the Regional Director for appropriate action.

V. Order

This case is remanded to the Regional Director for further processing consistent with this decision.

(If blank, the decision does not have footnotes.)

1. Article 7, Section 3 provides as follows:

Article 7 Duration of Agreement

Section 3--Reopener

Negotiations during the term of this agreement to add to, amend or modify this agreement may be conducted only by mutual consent of the parties.

2. In contrast, when an agency defends its refusal to bargain over a specific mid-term proposal based on a contention that the subject matter of the proposal is contained in or covered by the parties' collective bargaining agreement, we will examine whether the agreement has generally foreclosed further bargaining on that matter. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96 (1993)