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The decision of the Authority follows:
51 FLRA No. 72
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
375TH MISSION SUPPORT SQUADRON
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R7-23, SEIU, AFL-CIO
DECISION AND ORDER
February 21, 1996
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an untimely opposition to the General Counsel's exceptions which has not been considered.(2)
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 comply with provisions of the parties' negotiated agreements by eliminating a designated smoking area. The Judge recommended that the complaint be dismissed.
For the following reasons, which differ from those of the Judge, we dismiss the complaint.
II. Judge's Decision
The facts are set forth in the attached Judge's decision, and will be only briefly summarized here.
The Respondent and the Union negotiated an agreement dated March 16, 1989 (the 1989 agreement) to implement Air Force Regulation (AFR) 30-27 on procedures to control smoking in Air Force-occupied buildings and facilities. The 1989 agreement provided in part:
The [E]mployer agrees to notify the [U]nion immediately and enter into negotiations, upon request, where it has implemented changes to smoking practices based on cases of safety hazards, internal security measures or the health of an ill employee. The [U]nion agrees to implementation first in such cases.
General Counsel's Exhibit 3. On January 17, 1990, the Respondent and the Union negotiated an agreement (the 1990 agreement) establishing a designated smoking area in Building 1521.
By letter dated February 27, 1992, the Respondent notified the Union that there would be no smoking in Building 1521 effective March 2, 1992, because a particular unit employee could not be exposed to second-hand smoke for health reasons. Relying on the above-quoted provision, the Respondent stated in its letter that "implementation is in accordance with the  agreement on AFR 30-27." General Counsel's Exhibit 5. In response, the Union asserted that the Respondent did not have the right to implement the change unilaterally and that the employee was not an "ill employee" under the terms of the 1989 agreement.
The Judge noted that the 1989 agreement permitted the Respondent to implement changes in the smoking policy before bargaining with the Union based on the health of an ill employee. The Judge further noted that the phrase "ill health of an employee" was not defined in the agreement and concluded that "the most reasonable reading of the paragraph at issue is that any and all issues regarding the ill health of an employee would be dealt with under this paragraph which permits implementation prior to bargaining." Judge's Decision at 6. The Judge also concluded that "any matters concerning implementation of base smoking changes are an aspect of subjects expressly covered by the parties[']  agreement." Id.
The Judge determined that the Respondent could reasonably have found that the unit employee was an "ill employee" and have applied the procedures set forth in the 1989 agreement. The Judge concluded that as the Respondent followed those procedures, it did not refuse to comply with the parties' agreements. Accordingly, he recommended that the complaint be dismissed.
III. Positions of the Parties
The General Counsel excepts to the Judge's failure to conclude that the Respondent refused to comply with the parties' agreements. The General Counsel argues that the Judge failed to apply the appropriate analysis, as set forth in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), to this case because he "improperly reviewed the case as a duty to bargain case" rather than an agreement compliance case and "inappropriately applied the 'covered by' analysis [set forth in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA)] when deciding this case." General Counsel's Brief in Support of Exceptions at 3.
As noted earlier, the Respondent's brief was untimely filed.
IV. Analysis and Conclusions
We construe the complaint as alleging that the Respondent's actions constituted an unlawful repudiation of the parties' agreements. See U.S. Department of the Air Force, 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 41 FLRA 850, 855 n.* (1991). In Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991) (Warner Robins), the Authority stated the following with respect to whether a party's failure or refusal to honor an agreement constitutes a repudiation of a collective bargaining agreement:
We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute. . . . Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.
Id. at 1218-19.(3) See Cornelius v. Nutt, 472 U.S. 648, 664 (1985) (if the violation of an agreement provision constitutes a clear and patent breach of the terms of the agreement, then the union may file an unfair labor practice charge with the Authority), citing Iowa National Guard and National Guard Bureau, 8 FLRA 500, 510-11 (1982); Panama Canal Commission, Balboa, Republic of Panama, 43 FLRA 1483, 1507-09 (1992), reconsideration denied, 45 FLRA 1075 (1992) (the respondent's actions in unilaterally terminating employees' negotiated right to appeal adverse actions through the administrative appeals procedures went to the heart of the parties' agreements and constituted a repudiation of the agreement provisions). See also Department of Defense Dependents Schools, 50 FLRA 424, 426-27 (1995).
Consistent with the foregoing, two elements are examined in analyzing an allegation of repudiation: (1) the nature and scope of the alleged breach of an agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). The examination of either element may involve an inquiry into the meaning of the agreement provision allegedly breached. However, for the reasons that follow, it is not always necessary to determine the precise meaning of the provision in order to analyze an allegation of repudiation.(4)
Specifically, with regard to the first element, it is necessary to show that a respondent's action constituted "a clear and patent breach of the terms of the agreement[.]" Cornelius v. Nutt, 472 U.S. at 664 (citation omitted). In those situations where the meaning of a particular agreement term is unclear, acting in accordance with a reasonable interpretation of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement.(5) Cf., e.g., Crest Litho, Inc., 308 NLRB 108, 110 (1992) (NLRB will not find a violation "if the record shows that 'an employer has a sound arguable basis for ascribing a particular meaning to his contract and his action is in accordance with the terms of the contract as he construes it.'") (citing Vickers, Inc., 153 NLRB 561, 570 (1965)). With regard to the second element, if a provision is not of a nature that goes to the heart of the parties' collective bargaining agreement, then it is not necessary to determine the meaning of the provision because, even if the respondent breached the parties' agreement, that breach would not amount to a repudiation.
In this case, we find that no repudiation occurred because the Respondent's action did not constitute a clear and patent breach of the terms of the 1989 agreement. In examining the nature and scope of the alleged failure or refusal to honor the agreement provision, we conclude that the Respondent's argument regarding the interpretation of the 1989 agreement provision is reasonable. The provision allows the Respondent to implement changes to smoking practices before negotiating with the Union in three situations, including cases involving the health of an ill employee. Stating that it was acting "in accordance with" this provision, the Respondent implemented changes to smoking practices in Building 1521 because the unit employee "can not be exposed to secondhand smoke because of health reasons." General Counsel's Exhibit 5. The provision can be construed in a number of reasonable ways, and we agree with the Judge that in light of the ambiguous wording of the provision and the parties' bargaining history, the "Respondent could reasonably have found that [the employee] was within the category of individuals covered by the procedure which the parties negotiated."(6) Judge's Decision at 5-6. Thus, even if the Respondent breached the 1989 agreement, a finding we do not make, the breach was not clear and patent and no repudiation occurred.(7)
In light of this determination, we need not examine the second element set forth above; namely, the nature of the agreement provision allegedly breached.
Accordingly, we find that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF THE AIR FORCE,
375TH MISSION SUPPORT SQUADRON,
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF
LOCAL R7-23, SEIU, AFL-CIO
Susanne S. Matlin, Esq.
For the General Counsel
Major David H. Brash
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
Statement of the Case
The National Association of Government Employees, Local R7-23, SEIU, AFL-CIO (herein called the Union) filed an unfair labor practice charge on June 29, 1992, against Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois (herein called Respondent). Thereafter, on September 30, 1992, the Chicago Regional Director, Federal Labor Relations Authority (herein called Authority) issued a Complaint and Notice of Hearing alleging that Respondent violated section 7116(a)(1) and (5), of the Federal Service Labor-Management Relations Statute, as amended, (herein called the Statute) by refusing to comply with the provisions of negotiated agreements.
A hearing was held in St. Louis, Missouri at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Exceptionally helpful briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence I make the following:
Findings of Fact
At all times material herein, the Union has been the exclusive representative of a unit of employees at Respondent's facility.
Air Force Regulation 30-27 (herein called AFR 30-27), dated July 19, 1988, established procedures to control smoking in Air Force occupied buildings and facilities. Respondent and the Union negotiated an agreement dated March 16, 1989 to implement AFR 30-27. The negotiated agreement addressed the statutory and contractual obligations of Respondent to give the Union notice and the opportunity to negotiate changes in smoking policies in conformance with AFR 30-27, as well as indicating when the obligation to provide notice of and the opportunity to bargain over changes in smoking policies prior to implementation would exist and when notification and the opportunity to negotiate would be permissible after implemen-tation of a change in a smoking policy. The negotiated agreement applied base-wide. On January 17, 1990, Respondent and the Union negotiated and agreed to a designated smoking area in Building 1521. Respondent recognized this negotiated agreement regarding the designated smoking area in Building 1521 when it attempted to implement a smoking policy on base on July 30, 1990.
By letter dated February 27, 1992, Respondent notified the Union that it was terminating the negotiated smoking area in Building 1521 effective March 2, 1992 because unit employee "Patricia R. Bassler can not be exposed to second-hand smoke because of health reasons". Respondent relied upon the terms of the parties' March 16, 1989, negotiated agreement to unilaterally implement the change. Respondent depended on the language in the second paragraph of the agreement which contained the following:
[t]he employer agrees to notify the union immediately and enter into negotiations, upon request, where it has implemented changes to smoking practices based on cases of safety hazards, internal securing measures or the health of an ill employee. The union agrees to implementation first in such cases.
Respondent supplied two (2) documents which purported to establish that Bassler was an "ill employee". The first was a note from Bassler's gynecologist stating that, "Since it has been identified that even second-hand smoke is hazardous to her health, I would prefer that my patient, Patricia R. Bassler, not be subjected to this type of environment". The second was a similarly worded note from Bassler's chiropractor saying, "Due to the known hazards of secondary cigarette smoke and the long-term respiratory problems it causes, I feel it is in my patient's best health not to be in a smokey environment".
Immediately, the Union responded asserting that Respondent did not have the right to implement a change in the smoking policy for Building 1521 pursuant to the March 16, 1989 agreement, requesting that the status quo be maintained and requesting to negotiate over this proposed change. The Union further advised Respondent that Bassler's situation did not meet the criteria set forth in the March 16, 1989 agreement. Although Bassler supplied the letters she later indicated that she was not "ill" during the time in question and was not suffering from any medical condition which would be aggravated by exposure to smoke. The Union learned that Respondent actually implemented the change to the Building 1521 smoking policy sometime between March 2, 1992 and March 6, 1992.
Respondent contended that it had the authority to unilaterally implement a change to the Building 1521 smoking policy and indicated it would entertain the Union's March 2, 1992 request for negotiation, but by inference, such negotiations would be post-implementation in nature. The Union disagreed with that position and filed a "Pre-Complaint" in accordance with the provisions of the parties' collective bargaining agreement. Respondent answered the Pre-Complaint. The Union then filed an unfair labor practice charge alleging that Respondent had repudiated the March 16, 1989 and January 17, 1990 negotiated agreements.
Cissell and Denton both testified on behalf of the Union regarding the bargaining history of the March 16, 1989 negotiated agreement. Although the negotiations occurred approximately four years prior to the hearing, both recalled discussions about the "ill employee" phrase in Paragraph 2 in question here. Both remembered examples of the types of conditions qualifying a person as an ill employee and triggering operation of this paragraph, i.e. an employee suffering from a respiratory or cardiac condition which would, as verified by a physician, be aggravated by exposure to smoke. While the agreement did not incorporate the examples discussed of an "ill employee", the Union negotiators felt that the parties had a "meeting of the minds" on this issue.
After the hearing in this matter, the Authority in a series of cases re-examined its application of the "clear and unmistakable" analysis in waiver cases. Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993); Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993); Social Security Administration, Douglas, Arizona, 48 FLRA 383; Marine Corps Logistics Base, Barstow, California, 48 FLRA 102. In its hegira from the "clear and unmistakable" approach, the Authority now applies what it considers a more sensible analysis to matters which are contained in or covered by a negotiated agreement. In what is now the lead case in the area, Internal Revenue Service, supra, the Authority stated as follows:
. . . where the underlying dispute is governed by the interpretation and application of specific provisions of the parties' collective bargaining agreement, we will no longer apply the "clear and unmistakable waiver" analysis. . . . We now hold that when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly.
Since the record in this case is sufficient to permit an interpretation of the paragraph in question and the parties did not request additional briefing opportunities, the undersigned felt it unnecessary to request further submissions because of the change in approach.
In its new analysis, the Authority specifically said that it would not require "an exact congruence" but, "will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter. . . ." Thus, where the collective bargaining agreement does not expressly encompass a subject, it will then determine "whether the subject matter is so commonly considered to be an aspect of the matter set forth" that it is "inseparably bound up with and plainly an aspect of a subject expressly covered" by the provision of the agreement in question. Where this is the case, it will find that "the subject matter is covered by the agreement." Marine Corps Logistics Base, Barstow, California, supra.
In applying the latest approach to this case, it is found that the term "health of an ill employee" was not defined in the parties negotiations. Thus, the negotiated paragraph contains no specific language covering Bassler's condition. While the paragraph does not address the specific condition, it does set forth an agreed-upon procedure by which Respondent can implement certain changes in the base smoking policy prior to notifying and bargaining with the Union.
The General Counsel submits that during negotiations the parties discussed types of conditions which qualified for the procedure to be triggered, such as a respiratory or cardiac condition. Since there are certainly a host of other illnesses which could be exasperated by cigarette smoke, it would hardly be reasonable to assume that the parties had a "meeting of the minds" where such a broad abyss was left to be filled. Furthermore, the record shows that the language in the agreement was placed there primarily to limit challenges to designated smoking areas by employees who were hostile to smoking in the work place. Rather than defining the term, examples of illnesses were discussed and according to Denton, the determination was to be left to a case-by-case evaluation of the facts with some type of documentation by a medical provider. The documentation it appears would be provided to the agency and it would act, after a review of the documen-tation, in accordance with the collective bargaining agreement, i.e. implement the change and then notify and bargain with the Union. Obviously, based on the documentation Respondent could decide before implementation that a change in the smoking policy was not warranted. Moreover, even after implementation the Union has an opportunity, under the negotiated procedure, to affect the change.
The General Counsel also claims that the words of the paragraph should be "accorded their plain and ordinary meanings." Department of Health and Human Services, Health Care Financing Administration v. Federal Labor Relations Authority, 91 FLRR 1-8-015, Civ. Nos. 91-1068, 91-1120 (4th Cir. 1991) enforcing, DHHS, HCFA, 39, 120 (1991). The plain and ordinary meaning of the paragraph used herein could reasonably be read as ranging from simply being frail to chronic or consistent sickliness. There is sufficient record evidence to confirm Respondent's decision, at least initially, that cigarette smoke was indeed deleterious to Bassler's health and thus "trigger" the paragraph. Thus, on the documentation it received, Bassler was certainly outside the class of individuals seeking a change in the base smoking policy merely because they were hostile to cigarette smoke in the work place. Finally, based on the documentation that it had, Respondent could reasonably have found that Bassler was within the category of individuals covered by the procedure which the parties negotiated.
Since the term was not defined, the undersigned finds that the Respondent was not required to bargain prior to implementing the change alleged to be a violation of the Statute. Here, it must be concluded that any matters concerning implementation of base smoking changes are an aspect of subjects expressly covered by the parties negotiated agreement. Accordingly, it is found that the most reasonable reading of the paragraph at issue is that any and all issues regarding the ill health of an employee would be dealt with under this paragraph which permits implementation prior to bargaining. Therefore, Respondent followed the procedure, as written and did not repudiate the agreements.
Therefore, it is found that Respondent did not refuse to comply with the provisions of negotiated agreements concerning the base smoking policy. Consequently, it is recommended that the Authority adopt the following Order.
The complaint in Case No. CH-CA-20590, is hereby dismissed, in its entirety.
ELI NASH, JR.
Administrative Law Judge
Dated: December 9, 1993
(If blank, the decision does not have footnotes.)
1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision.
2. The Respondent acknowledges that its opposition was due on January 25, 1994, but was postmarked January 26, 1994. In response to an Authority order to show cause why its opposition should be considered, the Respondent asserts that its opposition was delivered to the U.S. Postal Service on January 24, and states that it "do[es] not know" why the Postal Service postmarked the submission January 26 and requests that the Authority consider its opposition. Respondent's Reply to Order to Show Cause, Attachment 3. The Respondent has not established extraordinary circumstances under section 2429.23(b) of our Regulations that warrant a waiver of the expired time limit for filing its opposition. See, e.g., U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Council 214 and Local 916, 43 FLRA 765 (1991); Department of the Treasury, U.S. Customs Service and U.S. Customs Service Region IX, Chicago, Illinois, 34 FLRA 76 (1989). Accordingly, we will not consider the opposition.
3. The Authority noted that the general principles set forth in Warner Robins are similar to the principles followed by the National Labor Relations Board (NLRB) in the private sector. In this regard, the Authority cited Indiana & Michigan Electric Co., 284 NLRB 53, 59 (1987), in which NLRB stated that "[i]t is well settled that a breach of contract is not per se an unfair labor practice. . . . On the other hand, where a breach of contract, under all the circumstances, amounts to a wholesale repudiation of the collective-bargaining agreement, [the NLRB] will find [a statutory] violation." Warner Robins, 40 FLRA at 1218.
4. In IRS, a case involving an alleged breach of a union's statutory right to designate its representative, the Authority held that "when a respondent claims as a defense . . . that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the Authority, including its administrative law judges, will determine the meaning of the parties' collective bargaining agreement and will resolve the unfair labor practice complaint accordingly." IRS, 47 FLRA at 1103. In doing this, the Authority applies "the same standards and principles in interpreting collective bargaining agreements as applied by arbitrators" and Federal courts and gives controlling weight to the parties' intent. Id. at 1110. However, to the extent that IRS and other precedent suggest that it is always necessary to determine the precise meaning of an agreement provision in order to resolve an allegation that a respondent repudiated that provision, we will no longer follow that precedent.
5. The Authority has previously rejected the "'differing and arguable interpretations' analysis . . . ." IRS, 47 FLRA at 1103. Under that analysis, the Authority had dismissed complaints alleging a violation of a statutory right when the parties had presented differing and arguable interpretations of the collective bargaining agreement. The analysis was rejected, in part, because it was the subject of confusion. See id. at 1104. In addition, in certain cases it left no forum available to resolve the allegation of a violation of a statutory right. See id. at 1103. Insofar as the Authority's statement in IRS indicates that the reasonableness of a respondent's interpretation of a provision is irrelevant to resolving a complaint alleging a repudiation, it will no longer be followed.
6. Although we agree with the Judge that the Respondent's interpretation of the provision was a reasonable one, we express no view as to the Judge's determination that it was the "most reasonable" reading of the provision. Judge's Decision at 6.
7. The Judge applied both IRS and SSA. We agree with the General Counsel that the Judge erred in applying the "covered by" analysis set forth in SSA. SSA applies to duty to bargain cases, not to cases raising allegations that a respondent repudiated a collective bargaining agreement provision. See, e.g., Social Security Administration, Area IX of Region IX, 51 FLRA 357, 370-73 (1995).