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HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO |
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Case No. SA-CO-20804
Case No. SA-CO-20807
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Benjamin T. Toyama
For the Respondent
Robert F. Griem, Esq.
For the Charging Party
Stefanie Arthur, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
This matter arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, et seq.
(herein the Statute).
Upon unfair labor practice charges having been filed by the
captioned Charging Parties against the captioned Respondent, the
General Counsel of the Federal Labor Relations Authority (herein
the Authority), by the Regional Director for the San Francisco
Regional Office, issued a Complaint and Notice of Hearing alleging
Respondent violated the Statute by refusing to proceed to
arbitration to resolve certain disputed matters.
A hearing on the Complaint was conducted in Honolulu, Hawaii,
at which all parties were afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.(1)
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:
The uncontroverted record evidence establishes the
following:
At all times material, Respondent, Hawaii Federal Employees
Metal Trades Council, AFL-CIO, has been the exclusive
representative in a unit appropriate for collective bargaining at
the Supervisor of Shipbuilding, Conversion and Repair, San Diego
Detachment's (SUPSHIP) Pearl Harbor facility.
At all times material, Respondent has been the exclusive
representative in a unit appropriate for collective bargaining at
the Navy Public Works Center's Pearl Harbor facility.
At all times material, Respondent has delegated administration
of its SUPSHIP and Public Works Center units to International
Federation of Professional and Technical Employees (IFPTE) Local
121 and IFPTE Local 121 President, Benjamin Toyama, has been the
designated contract administrator of the SUPSHIP and Public Works
Center units.
THE SUPSHIP AGREEMENT (Case No.
SA-CO-20804).
Respondent and SUPSHIP are parties to a collective bargaining
agreement covering the employees in the unit, which agreement
includes a grievance and arbitration procedure. The collective
bargaining agreement expired June 6, 1992.
On June 29, 1992, Contract Administrator Benjamin Toyama sent SUPSHIP's Commander, Captain Ulaszewski, the following letter:
This is to inform you that certain provisions of the
"Agreement" are no longer applicable to our relationship. Those
items in the agreement that constitute a permissive subject of
bargaining, which were binding during the life of the agreement,
(are) terminated since the expiration of the agreement.
The following sections are no longer applicable and the Union will not honor the provisions:
1. Article IV, section 3, the first sentence.
a. Any and all meetings between the
employee and any supervisor or
manager will require a Union representative.
2. Article V, sections 3, 4, and 5.
a. Any and all negotiations will be
done in accordance with the CSRA.
The Union will not waiver any of it's statutory rights regarding the right to
negotiate the ground rules by which we conduct negotiations.
3. Article XXIII, section 2.
a. The Union reserves the right to
file a ULP without first attempting to resolve
the matter with the other party.
If you have any questions regarding the unilateral withdrawal
of the contract, please do not hesitate to reduce those concerns to
writing and submit it to the Union. . . .
The referenced agreement articles provide as follows:(2)
Article IV - Rights of Employees
Section 3. The Union and Employer agree that resolution of matters arising between employees and Employer be accomplished as informally as possible between the individual employee and at the lowest level of supervision practicable. The Employer agrees that employees of the Unit shall have the right to communicate with their steward during working hours at the employee's work site as authorized in Section 4, Article VI.
Article V - Union's Rights
Section 3. It
is agreed that the establishment of new or revised activity
directives relating to conditions of employment affecting employees
in the Unit for which there is an obligation to consult and bargain
shall be accomplished as follows:
a. The Employer will furnish a draft of the proposed directive to the Union.
b. The Union will have two (2) calendar days from
receipt of the draft to schedule a meeting
with the Employer to have the Employer explain the proposed directive.
c. If the Union requests a meeting, the Employer
and the Union will hold such meeting no later
than three (3) calendar days from receipt of the Union's request.
d. If a meeting is held, the Union will have five
(5) calendar days from the date of the meeting
to submit written counterproposals. If there is no meeting, the Union will have ten (10) calendar
days from receipt of the draft to submit written counterproposals. Should the Union not submit
written counterproposals within the prescribed time limits, the Employer may implement the
proposed directive without negotiation.
e. Negotiations will commence within seven (7)
calendar days of receipt of the Union's written
proposals.
f. Normal conduct of negotiations will govern,
including third party proceedings.
g. The foregoing does not preclude the Employer
from implementing policies and procedures at
any time it is deemed necessary to insure effective and efficient operations as mandated by 5 U.S.
Code 7101(b). In such event, the parties will continue negotiations, even after the policy has been
implemented.
Section 4. At
the department level, changes in conditions of employment for which
there is an obligation to consult and bargain, and which are not to
be implemented by written directives, shall be accomplished as
follows:
a. The Employer shall make the proposed change(s) known to the appropriate Steward or
Union Official.
b. The Steward/Union Official will have ten
(10) calendar days to submit written proposals
to the Employer or the Employer's proposed change will be implemented without negotiation.
c. Sections 3e, f, and g will apply.
Section 5. The time limits set forth in Sections 3 and 4 above
may be extended by mutual
agreement of the parties.
SUPSHIP accepted Toyama's repudiation of Article XXIII, Section
2, a provision which required the parties to attempt to resolve
disputes informally before filing an unfair labor practice charge,
since it agreed that provision involved a permissive subject of
bargaining. However, SUPSHIP did not agree with Toyama that the
other identified provisions also involved permissive subjects of
bargaining. On July 1, 1992, SUPSHIP filed an employer grievance
over Toyama's stated intention to no longer be bound by Article IV,
Section 3 and Article V, Sections 3, 4 and 5 of the SUPSHIP/HFEMTC
agreement.
After the grievance was filed, Toyama refused to meet with the
representatives of SUPSHIP to discuss the grievance and Toyama
refused to issue a written decision. By letter dated August 18,
1992, SUPSHIP invoked arbitration of its July 1, 1992 grievance
under the terms of the parties' collective bargaining agreement. In
that agreement after notification is received that arbitration has
been invoked, the parties are to meet within ten calendar days to
select an arbitrator. By letter dated August 24, 1992, SUPSHIP
reminded Toyama of the requirement to meet to select an arbitrator
pursuant to the provisions of the collective bargaining agreement.
On that same day Toyama notified SUPSHIP's representative, Peter
Pappalardo, that he would not meet to select an arbitrator and that
he refused to proceed to arbitration on the employer's
grievance.
At no time since August 24, 1992, has Respondent offered to
meet to select an arbitrator or indicated it would proceed to
arbitration of the July 1, 1992 SUPSHIP grievance. The SUPSHIP
grievance is still pending arbitration.
THE NAVY PUBLIC WORKS CENTER AGREEMENT (Case No.
SA-CO-20807).
Respondent and the Public Works Center are parties to a
collective bargaining agreement covering the employees in the unit,
which agreement includes a grievance and arbitration procedure. The
agreement expired on April 10, 1989 but the parties have continued
to operate under the terms of the expired agreement.
By letter dated June 29, 1992, Contract Administrator Benjamin
Toyama sent Public Works Center's Commander, Captain Rispoli, the
following letter:
This is to inform you that certain provisions of the
"Agreement" are no longer applicable to our relationship. Those
items in the agreement that constitute a permissive subject of
bargaining, which were binding during the life of the agreement,
(are) terminated since the expiration of the agreement.
The following sections are no longer applicable and the Union
will not honor the provisions:
1. Article II, section 4.
2. Article XXI, section 6.
a. The Union reserves the right to file
a ULP without first attempting to resolve the
matter with the other party.
If you have any questions regarding the unilateral withdrawal
of the contract, please do not hesitate to reduce those concerns to
writing and submit it to the Union.
If you do not respond to this letter by COB July 3, 1992 I will determine you agree with the position of the Union regarding the withdrawal of the contract provisions. If you do not agree with this position you may file an Unfair Labor Practice charge against the Union. . . .
Article II, entitled "Administration of Agreement and Duty to Bargain" provides in Section 4:(3)
a. It is agreed that the establishment of new or revised
activity directives relating to conditions of employment affecting
employees in the unit and for which there is an obligation to
consult and bargain shall be accomplished by presenting a draft of
the proposed directive to the Union and permitting a sufficient
time (not more than ten working days from receipt) for study and
submission of proposals. The Union agrees that, should it fail to
submit proposals within the prescribed time, the Employer may then
proceed to implement the proposal without the obligation to
negotiate. If the Union submits proposals, negotiations will
commence within five (5) working days from receipt of the Union's
proposals, unless the parties agree to a later date. Should
negotiations take place, normal conduct of negotiations govern,
including third party proceed-ings. The foregoing does not preclude
the Employer from implementing policies and procedures at any time
it is deemed necessary to insure effective and efficient operations
as mandated by 7101(b) of the Act. The Union will be promptly
notified of any such actions and the reasons therefore, and the
Union may submit such matter as a grievance under Article XIX,
Grievance Procedure, Section 8.
b. At the department levels, changes in conditions of employment for which there is an obligation to consult and bargain, whether or not as a result of written policy or procedures, may be made known to the appropriate Steward and/or Union Official. If the Steward or other Union Official submits proposals, the procedures and time limits concerning the obligation to consult and bargain are as set forth in Section 4.a. above. Upon concurrence of the Steward or other Union Official, or if no written proposals are received within five working days, the change may be implemented and there is no further obligation to consult and bargain.
The employer disagreed with Toyama over his repudiation of Article II, Section 4, and by letter dated July 2, 1992, the Public Works Center filed an employer grievance over Toyama's stated intention to no longer be bound by Article II, Section 4 of the Public Works Center agreement. After the July 2, 1992 Public Works Center grievance was filed, Toyama refused to meet with the employer to discuss the grievance and refused to issue a written decision. By letter dated August 19, 1992, the Public Works Center invoked arbitration of the grievance and requested that Respondent meet to select an arbitrator within 10 days as required under the terms of the collective bargaining agreement. On August 25, 1992, Toyama notified Public Works Center representative Peter Pappalardo, that he would not meet to select an arbitrator and that he refused to proceed to arbitration of the employer's grievance. Toyama took the position that "(t)he negotiated grievance procedure was not intended to address Labor Relations problems" but was ". . . to address real issues regarding the interpretation and application of the contract", and that ". . . problems . . . regarding the interpretation and application regarding the law should be (addressed to) the FLRA."
At no time since August 25, 1992, has Respondent offered to
meet to select an arbitrator or indicated it would proceed to
arbitration of the July 2, 1992 Public Works Center grievance. The
Navy Public Works Center grievance remains pending arbitration.
The General Counsel alleges that Respondent's refusing to
proceed to arbitration on the SUPSHIP and Public Works Center
grievances violated section 7116(b)(1) and (8) of the Statute.
Respondent denies its conduct violated the Statute and essentially
contends that the repudiated contract clauses constituted waivers
of union rights and, as such, these clauses were permissive
subjects for negotiation. According to Respondent, when the
collective bargaining agreements expired it could then repudiate
those sections of the agreements dealing with permissive subjects
without violating the Statute. Respondent further urges that it
could repudiate those matters without having its action challenged
in a grievance-arbitration forum and suggests the only forum for
the employers to challenge whether the repudiated matters
constituted mandatory or permissive subjects of collective
bargaining is a negotiability appeal since, it suggests, under the
Statute, an arbitration may not determine an issue of
negotiability. Respondent further contends that the employers
herein are "attempting to break the Union by forcing the Union to
spend their funds in arbitration."(4)
It is well settled that the terms and conditions of employment
in expired collective bargaining agreements which involve mandatory
subjects of bargaining remain in effect until renegotiated or
modified in a manner consistent with Statutory requirements.
Federal Aviation Administration, Northwest
Mountain Region, Seattle, Washington and Federal Aviation
Administration, Washington, D.C., 14 FLRA 644 (1984)
(FAA Northwest) and The
Adjutant General, State of Ohio and American Federation of
Government Employees, AFL-CIO, Ohio Council of Air National Guard
Locals No. 127, Local 3470), 17 FLRA 957 (1985). It is
similarly well settled that upon expiration of a collective
bargaining agreement, the parties are privileged to repudiate
provisions of the agreement which constitute permissive subjects of
bargaining, which includes waivers of Statutory rights.
FAA Northwest.
Respondent and the Charging Parties disagreed as to whether the
portions of their expired agreements repudiated by Respondent
constituted mandatory or permissive conditions of employment.
Thereupon, the Charging Parties sought to have their disputes
resolved through the contractual grievance-arbitration machinery
which, as a mandatory condition of employment, survived the
expiration of the agreement. Depart-ment of the
Air Force, 35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA 22 (1980). Respondent refused to submit
the dispute to the grievance-arbitration procedures and the
Charging Parties filed these unfair labor practice charges which,
if successful, will have the effect of compelling Respondent to
submit the disputes to arbitration for resolution. While, as
Respondent cites, the Authority has held in Department of Defense Dependent Schools System, 21 FLRA
1092 (1986), that it is appropriate to resolve the question of
repudiation of a collective bargaining agreement in an unfair labor
practice proceeding if raised in an unfair labor practice charge,
the Authority did not hold in that case that it was inappropriate to resolve such issues though the
grievance-arbitration procedures in the parties' collective
bargaining agreement. Indeed, the Authority has subsequently
specifically indicated that such issues may be resolved in a
grievance-arbitration proceeding. American
Federation of Government Employees, Local 1457, AFL-CIO, 39
FLRA 519, 527-528 (1990) (AFGE Local 1457).
Further, Respondent's reliance on Department of
the Navy, Portsmouth Naval Shipyard, 7 FLRA 766 (1982), to
support its position that the grievance machinery is not available
to resolve the parties' dispute is misplaced. In that case the
Authority, at 776, held that in situations involving alleged
violations of employees' basic rights under section 7116(a)(1) and
(2) of the Statute, the Authority would not defer to contractual
grievance-arbitration machinery even though the alleged conduct
arguably also involves a contract violation. Clearly, this holding
was limited to allegations of discrimination against protected
employees and interference with their rights protected by the
Statute.
Generally, questions of whether the subject matter at issue is
arbitrable are for the arbitrator to decide, and a party may not
refuse to become a part of the grievance-arbitration process
because of a belief that the matter at issue is not subject to the
process without violating the Statute. AFGE Local
1457. This holding encompasses claims by a party that a
matter is not negotiable. Thus, in Social Security
Administration and National Council of SSA Field Operations Locals
(NCSSAFOL), American Federation of Government Employees, AFL-CIO
(AFGE), 25 FLRA 238, 239-240 (1987), the Authority, when
considering a claim of nonnegotiability raised by an agency,
held:
. . . In this and future cases involving allegations of
nonnegotiability made in an interest arbitration proceeding, we
will carefully examine the record of the case and the arbitrator's
award. This examination will be made to determine whether the
arbitrator made a negotiability ruling or whether the arbitrator
merely applied existing Authority case law to resolve the impasse.
. . .
In Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), the Authority extended an arbitrator's authority in this area(5) to include considering duty to bargain questions raised by Unions, holding, at 623:
We expect interest arbitrators, when presented with claims that
matters are outside the duty to bargain, to consider these
questions and to address them in their awards in order to provide
the parties and the Authority with the basis on which they have
resolved the claim. The parties likewise have an obligation to
provide interest arbitrators with relevant precedent on particular
duty to bargain issues. Consistent with our case law as set forth
above, if exceptions to an interest arbitration award are filed
with the Authority, we will examine the record to determine whether
the arbitrator applied existing Authority precedent to resolve an
impasse. If an examination of the award supports the conclusion
that the arbitrator applied existing precedent, we will resolve the
exceptions on the merits by determining whether the arbitrator
correctly applied the precedent.
and, at 626:
The principles discussed above concerning the extent of an
arbitrator's authority in this area apply equally to claims of
nonnegotiability made by unions as well as to claims made by
agencies. In our view, nothing in the Statute warrants a finding
that an arbitrator's authority to resolve duty to bargain questions
raised by a union differs from the arbitrator's authority when the
questions are raised by an agency. We conclude that an arbitrator's
authority to resolve duty to bargain issues is the same whether the
issues are raised by agencies or unions.
In the case herein arbitration was invoked by the Charging Parties, who were parties to a viable collective bargaining agreement, and Respondent, the other party to the collective bargaining agreement, refused to participate in the arbitration proceedings, as required by section 7121 of the Statute, without any justification recognized by the Authority(6). In these circumstances I conclude that by such conduct Respondent violated section 7116(b)(1) and (8) of the Statute as alleged. See Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA 316 (1982) and AFGE Local 1457. Accordingly, it is hereby recommended that the Authority issue the following:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that Hawaii Federal Employees Metal Trades
Council, AFL-CIO, shall:
1. Cease and desist from:
(a) Refusing to proceed to arbitration on grievances
filed by the Supervisor of Shipbuilding, Conversion and Repair, San
Diego Detachment, Pearl Harbor, Hawaii on July 1, 1992 and the Navy
Public Works Center, Pearl Harbor, Hawaii on July 2, 1992.
(b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Federal Service Labor-Management
Relations Statute:
(a) Upon request, proceed to arbitration regarding the
grievances filed by the Supervisor of Shipbuilding, Conversion and
Repair, San Diego Detachment, Pearl Harbor, Hawaii on July 1, 1992
and the Navy Public Works Center, Pearl Harbor, Hawaii on July 2,
1992.
(b) Post at its business offices and its normal meeting
places, including all places where Notices to members and employees
of the Supervisor of Shipbuilding, Conversion and Repair, San Diego
Detachment, Pearl Harbor, Hawaii and the Navy Public Works Center,
Pearl Harbor, Hawaii, are customarily posted, copies of the
attached Notices on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the President of the Hawaii Federal Employees Metal
Trades Council, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
such Notices are not altered, defaced, or covered by any other
material.
(c) Submit signed copies of the Notices to the
Supervisor of Shipbuilding, Conversion and Repair, San Diego
Detachment, Pearl Harbor, Hawaii and the Navy Public Works Center,
Pearl Harbor, Hawaii, for posting in conspicuous places where unit
employees represented by the Hawaii Federal Employees Metal Trades
Council are located. Copies of the Notices should be maintained for
a period of 60 consecutive days from the date of posting.
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Los
Angeles Subregion, 901 Market Street, Suite 220, San Francisco, CA
94103-1791, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
Issued, Washington, DC, April 26, 1994
SALVATORE J. ARRIGO
Administrative Law Judge
NOTICE TO ALL MEMBERS AND EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY
NOTIFY MEMBERS AND EMPLOYEES THAT:
WE WILL NOT refuse to proceed to arbitration on the grievance filed
by the Supervisor of Shipbuilding, Conversion and Repair, San Diego
Detachment, Pearl Harbor, Hawaii (SUPSHIP) on July 1, 1992.
WE WILL NOT in any like or related manner, fail or refuse to comply
with our obligations under the Federal Service Labor-Management
Relations Statute.
WE WILL upon request, proceed to arbitration, in accordance with
the terms of our collective bargaining agreement, on the grievance
filed by SUPSHIP on July 1, 1992.
(Labor Organization)
Date: _____________________ By: ____________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Los Angeles Subregional Office, 901 Market Street, Suite
220, San Francisco, CA 94103-1791, and whose telephone number is:
(415) 744-4000.
NOTICE TO ALL MEMBERS AND EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY
NOTIFY MEMBERS AND EMPLOYEES THAT:
WE WILL NOT refuse to proceed to arbitration on the grievance filed
by the Navy Public Works Center, Pearl Harbor, Hawaii on July 2,
1992.
WE WILL NOT in any like or related manner, fail or refuse to comply
with our obligations under the Federal Service Labor-Management
Relations Statute.
WE WILL upon request, proceed to arbitration, in accordance with
the terms of our collective bargaining agreement, on the grievance
filed by the Navy Public Works Center, Pearl Harbor, Hawaii on July
2, 1992.
(Labor Organization)
Date: ______________________________ By: _______________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Los Angeles Subregional Office, 901 Market Street, Suite
220, San Francisco, CA 94103-1791, and whose telephone number is:
(415) 744-4000.
Dated: April 26, 1994
Washington, DC
1. Substantial portions of the excellent brief filed by counsel for the General Counsel have been incorporated into this Decision.
2. Article XXIII, Section 2, is not at issue, infra.
3. Article XXI, Section 6 of the Public Works Center agreement, like Article XXIII, Section 2 of the SUPSHIP agreement, required the parties to attempt to resolve disputes informally before filing an unfair labor practice charge.
4. This contention is not supported by any record evidence.
5. While these cases dealt with an arbitrator's authority when engaged in interest arbitration, I see nothing in these decisions which would limit an arbitrator's authority to only interest arbitration proceedings.
6. Cf. e.g., American Federation of Government Employees, AFL-CIO, Local 1909, Fort Jackson, South Carolina, 41 FLRA 18 (1991).