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47:1249(116)CA - - Sacramento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 - - 1993 FLRAdec CA - - v47 p1249

[ v47 p1249 ]
The decision of the Authority follows:

47 FLRA No. 116









LOCAL 1857


(Charging Party/Union)




July 19, 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 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 over a Union-initiated bargaining request concerning the presentation of and posting of information regarding sustained superior performance (SSP) awards.

For the reasons stated below, we find that the Respondent did not commit the unfair labor practice alleged.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE), is the exclusive bargaining representative of a nationwide consolidated unit of Air Force Logistics Command employees, including those at the Respondent's facilities. The Union is an agent of AFGE for representing unit employees of the Respondent. The parties are bound by a master labor agreement (MLA), which "contains no provisions concerning the presentation of performance awards or the posting of award information regarding [the] Respondent['s] employees represented by the [Union]." Stipulation, paragraph 6.

Entered into evidence, as Exhibit 2 of the stipulation, is Article 15 of the parties' MLA, entitled "EMPLOYEE PERFORMANCE."(1) Section 15.04, entitled "PERFORMANCE RECOGNITION," provides that "[t]he primary intent of this program is to recognize employee performance which exceeds the requirements of the performance standards." Stipulation Exhibit 2. That section lists various types of monetary and nonmonetary recognition for employees, including SSP awards, and provides that "[t]he particular type of recognition awarded will be determined by management." Id. Specifically, section 15.04(d) provides:

d. The Civilian Personnel Office will annually publicize the Performance Recognition Program emphasizing the benefits achieved by the program in its recognition of employees. A copy will be furnished to the local union. The Commander, designated representative or supervisor recognizes employees and presents awards at a suitable ceremony.

Id. Section 15.04 further requires that: (1) certain information concerning the awards program will be furnished upon request to the local union; (2) supervisors will give employees fair consideration for awards; and (3) all cash awards that have been approved in accordance with regulation will be paid to the employee.

On March 6, 1992, the Union demanded mid-term negotiations "over the presentation of performance awards and the posting of awards information." Stipulation, paragraph 8. Specifically, the Union requested such bargaining over SSP awards. This demand to bargain was initiated by the Union and was unrelated to any changes in the conditions of employment of Respondent's employees. No specific proposals were submitted with the Union's demand to bargain. On May 8, 1992, the Respondent refused to bargain based on the holding in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA).(2)

The parties stipulated that the Union proposals are matters which would not be subject to bargaining under the legal analysis set forth in SSA v. FLRA, but are matters which would be subject to bargaining under the legal analysis set forth in Internal Revenue Service, 29 FLRA 162 (1987) (IRS).(3)

III. Positions of the Parties

A. The General Counsel

The General Counsel asserts that the Authority should continue to adhere to its holding in IRS. Therefore, the General Counsel contends that, under the legal analysis set forth in IRS, the Respondent violated the Statute when it failed to bargain with the Union.

B. The Respondent

The Respondent contends that the Union did not have a right to demand mid-term negotiations. The Agency argues that such a right is not supported by: (1) the language of the parties' agreement; (2) legislative history and appropriate statutory interpretation; and (3) the policies the Statute was enacted to perpetuate. As to the latter two premises, the Respondent asserts that the Authority should adopt the Fourth Circuit Court's decision in SSA v. FLRA.

The Respondent also contends that Article 15 specifically addresses performance recognition and SSP awards, the subject of the Union's demand for mid-term negotiations. The Respondent asserts that it should not be forced to bargain again on this subject after bargaining over Article 15.

The Respondent further argues that Article 34 of the parties' MLA, entitled "Local Supplements to the Master Agreement," does not authorize mid-term bargaining on the subject of SSP awards with the Union and that any agreement on the subject would be null and void.

IV. Analysis and Conclusions

First, we reject the Respondent's reliance on SSA v. FLRA. The Authority has not adopted that decision and, instead, adheres to the holding in IRS. See, for example, Social Security Administration, Tucson District Office, Tucson, Arizona, 47 FLRA No. 99 (1993).

Nevertheless, we conclude that the Respondent was not obligated to bargain because, as discussed below, the bargaining demand concerned matters that were contained in or covered by the parties' agreement. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96 (1993) (SSA), we set forth a framework for determining whether proposals are covered by a provision in an existing agreement. We stated, as relevant here, that in making such a determination we will first look to whether the express language of the agreement provision reasonably encompasses the subject matter of the proposals. In this examination, we will not require "an exact congruence of [the] language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute." Id., slip op. at 15 (citation omitted). Second, if the agreement provision does not expressly encompass the matter, we will determine whether the subject matter proposed for negotiations is so commonly considered an aspect of the matter set forth in the agreement that the subject is "'inseparably bound up with and . . . plainly an aspect of . . . a subject expressly covered by the contract.'" Id. (citation omitted).

Applying the SSA test here, we find that the subject of the Union's mid-term bargaining demand is clearly covered by the parties' MLA. As noted, the Union demanded bargaining over the presentation of SSP awards and the posting of awards information. Article 15 of the parties' MLA specifically addresses SSP awards. That provision also discusses the publicizing of performance awards and provides for the recognition of employees and the presentation of awards at a suitable ceremony. Article 15 further provides that a copy of the Agency's annual report concerning the awards and performance recognition program will be furnished upon request to the local union along with other information regarding the Agency's awards and recognition program. Thus, the parties have bargained over the subject of the presentation, and the publicizing, of SSP awards as well as the dissemination of information concerning the Agency's awards and performance recognition program. Although, as stipulated, the MLA contains no provision expressly providing for the presentation of performance awards and the posting of awards information, we conclude that the Union's demand to bargain over those issues concern matters that are plainly aspects of subjects expressly covered by that agreement.

As the subject of the Union's bargaining demand is covered by the parties' agreement, the Respondent was not obligated to bargain. Accordingly, the Respondent's failure and refusal to bargain did not violate the Statute, and we will dismiss the complaint.(4)

V. Order

The complaint is dismissed.

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

1. Article 15 is the only article of the parties' MLA that was entered into the record.

2. In SSA v. FLRA, the court held that an agency has no obligation under the Statute to bargain over union-initiated mid-term proposals.

3. In IRS, the Authority held that, absent waiver, the duty to bargain in good faith under 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 covered by or contained in the agreement.

4. The Respondent also contends that Article 34 of the parties' MLA does not authorize mid-term bargaining on the subject of SSP awards with the Union and that consequently any agreement on the subject would be null and void. Because Article 34 was not included as part of the stipulation of facts agreed to by the parties and the parties specifically agreed to waive the right to present any evidence other than that contained in the stipulation and its exhibits, we will not address the Respondent's contention with regard to Article 34.