FLRA LAUNCHES WEB SITE

 

Vol. 6 No. 1
October 1, 1996 - January 31, 1997

The FLRA Bulletin


The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001


CONTENTS

News to Know
Update on CADR
Authority Cases
Court Cases
FSIP Final Actions
General Counsel's Advice to Regional Directors
General Counsel's Settlement Corner

News to Know

FLRA LAUNCHES WEB SITE

The FLRA has unveiled its Web Site to provide greater access to a wide array of agency information and resources. The new home page can be found on the World Wide Web at http://www.access.gpo.gov/flra.

"FLRA's presence on the World Wide Web provides easier and quicker access to agency information," said FLRA Chair Phyllis Segal. "This home page is a further step in FLRA's effort to provide useful and complete information to federal employees, the unions which represent them, and federal agencies." Information contained on the FLRA home page includes information regarding FLRA's processes for dealing with unfair labor practices, representation issues, arbitration appeals, and negotiation disputes; addresses and phone numbers of Regional Offices; Authority decisions; Office of the General Counsel policies and guidance; information regarding the agency's Collaboration and Alternative Dispute Resolution (CADR) activities; press releases; the FLRA Bulletin; and biographies of the Authority Chair and Members, the General Counsel and the Panel Members.

SUCCESSFUL ULP PILOT SETTLEMENT PROJECT BECOMES PERMANENT IN OFFICE OF ADMINISTRATIVE LAW JUDGES

The Federal Labor Relations Authority has made permanent a pilot settlement project which was initiated in the Office of Administrative Law Judges last year. The program gives parties a chance to resolve unfair labor practice complaints by jointly agreeing to participate in settlement conference negotiations before the trial. Over 80% of the unfair labor practice cases submitted by agencies and unions to the pilot settlement project were voluntarily settled before trial during the last fiscal year.

NEW FSIP EXECUTIVE DIRECTOR APPOINTED

Federal Service Impasses Panel Chair Betty Bolden appointed Joseph Schimansky as Executive Director of the Federal Service Impasses Panel (the Panel). As Executive Director, Mr. Schimansky manages the Panel's staff and ensures the timely disposition of impasses presented to the Panel for resolution. "Mr. Schimansky's knowledge and expertise has long been as asset to the Panel and the federal agencies and unions we are committed to serving," said Chair Bolden. "We're pleased he will be taking over as Executive Director."

Mr. Schimansky is an experienced labor relations professional who has served in a variety of positions in the FLRA, including case writer for the Authority, Staff Associate at the Panel and, most recently, as the Panel's Assistant Executive Director. A recipient of numerous awards for exemplary service, Mr. Schimansky received his Bachelor's Degree from the University of Pittsburgh and Masters Degree from the Institute for Labor and Industrial Relations of the University of Illinois.

TWO MEMBERS OF FSIP REAPPOINTED

In January, President Clinton reappointed two Members of the Federal Service Impasses Panel: Stanley M. Fisher and Gilbert Carrillo, to five-year terms. Mr. Fisher and Mr. Carrillo were originally appointed by President Clinton to the Panel in December 1994 and January 1995, respectively, to complete the unexpired terms of former Members.

Mr. Fisher is currently of Counsel with the law firm of Arter & Hadden, and formerly Law Clerk to the Chief Judge of the Sixth Circuit. Mr. Fisher resides in Shaker Heights, Ohio. Mr. Carrillo & Manners, P.A., in Miami, Florida and General Counsel for the National Federation of Public & Private Employees, AFL-CIO, a labor organization primarily representing public sector employees in the State of Florida. Mr. Carrillo resides in Davie, Florida.

OFFICE OF GENERAL COUNSEL POLICIES, GUIDANCE, AND MANUALS

ABOUT THIS COLUMN

These policy and guidance memoranda are provided to the Regional Directors for their use in processing cases. The interpretations of the Statutes relied upon in these memoranda represents the OGC's position, and is not an official position of, or interpretation by the Authority.

The Office of General Counsel (OGC), in response to public demand, has provided a description of the policies, guidance, and manuals issued by the OGC since 1994. These documents are available on the FLRA Web site at http://www.access.gpo.gov/flra. They are also available by faxing a request to the Office of General Counsel at (202) 482-6608 or writing to the office at 607 14th Street, N.W., Suite 210, Washington, D.C. 20424.

Prosecutorial Discretion

Policy Memorandum issued May 25, 1994

The prosecutorial discretion policy is intended to allow the OGC to concentrate on more important cases and seek more innovative and creative remedies that enhance the effectiveness of the Statute, improve the parties' relationship and make more effective useof the OGC resources. The policy memorandum explains that the OGC will exercise discretion based on publicized standards to dismiss meritorious unfair labor practice (ULP) charges when litigation would not effectuate the purposes and policies of the Statute. The memorandum establishes the basic criteria Regional Directors apply in determining whether to exercise prosecutorial discretion to dismiss a charge.

Settlement Policy

Policy Memorandum issued May 25, 1994

The OGC settlement policy is intended to enhance the parties' relationship, involve the parties in developing the remedy which best meets their interests, and craft creative and innovative solutions which are responsive to the parties' needs. The memorandum explains the circumstances under which bilateral settlement agreements will be approved and establishes the basic criteria that Regional Directors apply in determining whether to approve unilateral settlement agreements.

OGC Guidance on Creation and Operation of Employee-Management Work Groups

Executive Summary and Guidance Memorandum issued August 8, 1995

This guidance is intended to assist the parties in creating employee management work groups to improve agency services. The Guidance Memorandum and the Executive Summary discuss the General Counsel's views on the parties' legal rights and duties under the Statute related to employee management work groups, specifically focusing on the legal issues surrounding the actual tasks performed by work groups and the capacity in which employees are participating in the work groups. In addition, the memorandum establishes the criteria for selection of employees on work groups and sets forth principles to which the parties must adhere in establishing and implementing work groups. The memorandum includes three separate models for establishing work groups to make recommendations or decisions on ways to improve an agency's services.

OGC Policy on Quality in Unfair Labor Practice Investigations

Policy Memorandum issued October 20, 1995

This policy is intended to assist regional offices in developing and implementing procedures which will standardize the quality of unfair labor practice (ULP) investigations. The memorandum establishes the quality standards which the Regions must meet in every investigation.

OGC Policy on the Scope of Investigations

Policy Memorandum issued October 20, 1995

This policy is intended to standardize the approach used by the Regions when determining the scope of a ULP charge investigation. The memorandum sets forth the approach which all Regions must apply when determining the scope of an investigation and establishes the criteria for soliciting the withdrawal of ULP charges after the Region has determined that issuance of a complaint is not warranted.

OGC Policy on Intervention

Policy Memorandum issued October 20, 1995

This policy is intended to establish an alternative case-processing approach under which the underlying disputes are resolved without making a determination on the merits. This enables the parties to resolve their problems at the earliest possible stage after filing, and affords the parties an opportunity to enhance their relationship. The memorandum establishes the criteria under which Regional Directors may exercise discretion to intervene and sets forth the standards which Regions must meet when intervening.

OGC Guidance on Investigating, Deciding and Resolving Information Disputes

Executive Summary and Guidance Memorandum issued January 5, 1996

This guidance is intended to provide parties with practical guidelines on making and responding to requests for information and on using alternative dispute resolution techniques to resolve information disputes without litigation. In cases that are litigated, the guidance is intended to ensure quick and effective resolution of the disputes on the merits. The memorandum and executive summary provide guidance to Regional Directors when investigating and deciding ULP charges alleging a refusal to furnish information. Specifically, the memorandum and executive summary set forth the showing which exclusive representatives must make as to their need for information to trigger an agency's statutory duty to furnish the information. In addition, the memorandum and executive summary establish the decision-making process which Regions should follow in deciding whether a ULP was committed. This process includes the test Regions should apply for determining whether the exclusive representative's showing is sufficient and whether the agency established a sufficient countervailing interest. The memorandum and the executive summary also set forth the factors Regions must consider to determine whether requested information is barred from disclosure by the Privacy Act. Finally, the memorandum and the executive summary contain guidance to assist labor organizations and agencies in resolving information disputes without filing ULP charges. This guidance includes the steps to resolve such disputes using an interest-based bargaining approach.

OGC Guidance on Processing Representation Petitions

Memorandum, questions and answers, representation petition form and new representation regulations issued March 8, 1996

The changes in the representation regulations are intended to afford the Regions an opportunity to be proactive in assisting the parties in resolving representation issues in a manner which is consistent with the parties' interests and with the requirements of the Statute. The questions and answers discuss significant changes made by the new representation regulations and other basic matters concerning the processing of representation petitions. The questions and answers are intended to be used by the Regions to assist parties in understanding the representation process and the changes made to the process by the new regulations. The questions and answers outline how to file a petition; how to notify parties of a filing; how parties can intervene; how the parties, with the assistance of the Regional Director, can narrow and resolve issues after the filing of the petition; how hearings will be conducted, how Regional Directors will make decisions; and how elections will be conducted.

OGC Injunction Policy

Policy Memorandum issued October 4, 1996

The OGC injunction policy is intended to maximize the effectiveness of the Statute by identifying and processing those ULP charges where appropriate temporary relief is warranted. In addition, the policy provides for a consistent approach by Regional Directors in investigating and making recommendations in ULP cases where interim temporary relief is necessary to effectuate the purposes and policies of the Statute. The memorandum highlights the types of factors that should be considered as well as the process the Regions should follow in determining whether injunctive relief is appropriate.

OGC Guidance on Proper Descriptions of Bargaining Units and Identification of Parties to the Collective Bargaining Relationships in Certifications

Guidance Memorandum with certification checklist issued December 18, 1996

This guidance is intended to assist Regional Directors in identifying and correcting inaccurate descriptions of bargaining unit certifications. The memorandum explains why it is important that certifications accurately describe unit inclusions and exclusions and reflect the proper and current names of the parties to the exclusive bargaining relationship. The memorandum also describes situations that might cause a certification to become improper, and suggests ways that Regions can assist agencies and unions in filing appropriate representation petitions to resolve questions related to proper certifications.

OGC Guidance on Duty of Fair Representation

Guidance Memorandum and Executive Summary issued January 27, 1997 (Read more about it)

The guidance on the duty of fair representation is a comprehensive overview of the General Counsel's views on legal issues arising from the duty of fair representation owed to bargaining unit employees by a union serving as an exclusive representative of the bargaining unit. The guidance and the executive summary outline the legal tests established by the Authority for determining whether the duty of fair representation has been violated and highlights the types of factors that the Authority has relied upon in making its determinations. The guidance and the executive summary also discuss the types of remedies the Authority has ordered and which the Regions may seek when Regional Directors determine that the duty of fair representation has been violated. In addition, the guidance and the executive summary discuss the limitations of an agency's involvement in disputes between employees and unions. The guidance and the executive summary also set forth the circumstances under which a union may consider only the views of members when taking a position on a condition of employment to present to an agency, and when a union must consider the views of non-members. The guidance and the executive summary also analyze the relationship between the duty of fair representation and the selection of employees for work teams and granting awards to work teams as a group. An attachment to the guidance summarizes authority decisions on the duty of fair representation.

Update on Collaboration and Alternative Dispute Resolution Program (CADR)

CADR is moving forward with continued enthusiasm and energy to implement the programs and policies that have been developed, such as the ADR in Negotiability Program, as well as other initiatives being planned.

The success achieved in using ADR in Authority and FSIP referred cases has been a good start. Since implementation of the CADR program, successful resolution and withdrawals have occurred in 83% of the cases in which the parties agreed to participate.

Of these, two recent interventions are of parti- cular note. In November, 1996, the successful resolution and withdrawal of a negotiability appeal, involving safety and security concerns with international implications, resulted from an on-site intervention in Washington, DC. In January, 1997, successful resolution resulted from interventions held at FLRA Headquarters in four unfair labor practice (ULP) cases pending before the Authority. The Office of the General Counsel (OGC) processed the withdrawal of the ULPs via its and the Authority procedures. In all of these cases, proactive and forward-thinking parties turned their problems into solutions.

During this first quarter of FY 97 FLRA staff have provided briefings and participated in various workshops and conferences on collaboration and ADR. They included Department of the Interior, Washington, DC; AFGE, District 5, Atlanta; Classification and Compensation Society; OPM, Symposium on Labor and Employee Relations (SOLER); Society of Federal Labor Relations Professionals (SFLRP), DC Chapter; and OGC, Dispute Resolution Specialist Training.

CADR staff looks forward to continuing its work with agencies and unions in efforts to find mutual resolution of their disputes.

Authority Cases

The case summaries were prepared by FLRA staff for guidance and informational purposes only, and may not be used as an official position of, or interpretation by the Authority or Federal Service Impasses Panel. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute sections 7101-7135.

Representation Cases

In U.S. Environmental Protection Agency, Washington, D.C. and National Federation of Federal Employees, Local 2050 and Environmental Employees Collectively Organized, 52 FLRA No. 76, the Authority dismissed a petition seeking an amended certification based on a determination that the petitioner did not have standing because his authority to act as president of the incumbent local union had been removed when the parent union imposed a trusteeship. In doing so, the Authority acknowledged that, as the U.S. Court of Appeals for the District of Columbia Circuit found in AFGE v. FLRA, 834 F.2d 174 (D.C. Cir. 1987), the Department of Labor's Assistant Secretary of Labor for Labor-Management Relations and the Authority have concurrent jurisdiction over certain matters. However, the Authority found that the Assistant Secretary has initial jurisdiction to decide alleged violations of standards of conduct under section 7120 of the Statute including initial determinations of the validity of trusteeships. The Authority established a framework for determining when Regional Directors should presume the validity of a trusteeship pending before the Assistant Secretary and, based on such presumption, dismiss a representation petition.

Unfair Labor Practice Cases

In U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey and National Federation of Federal Employees, Local 1437, 52 FLRA No. 50, the Authority discussed when allegations that an unfair labor practice (ULP) charge is untimely must be raised. The Authority explained that a statutory time limit, such as that contained in section 7118(a)(4) of the Statute, operates either as a jurisdictional requirement, which limits the right of a party to bring an action, or as a statute of limitation, which limits only the remedy available. The Authority noted that defenses based on jurisdictional limits can be raised at any time, even on appeal. The Authority concluded, by applying NLRB precedent, that the time limit set forth in section 7118(a)(4) of the Statute constitutes a statute of limitations, and that an allegation that a ULP charge is not timely is an affirmative defense that is waived unless raised in the pleadings or at trial.

In General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C. and American Federation of Government Employees, Local 1733, AFL-CIO, 52 FLRA No. 53 (Member Armendariz concurring), the Authority found, on remand of the Authority's decision in Federal Protective Service, 50 FLRA 728 (1995) by the U.S. Court of Appeals for the District of Columbia Circuit, that the Respondent violated section 7116(a) (1) and (5) of the Statute by failing to negotiate over the impact and implementation of its decision to discontinue the practice of permitting officers to carry their weapons between work and home. The Authority stated that in determining whether the effect of a decision on unit employees' conditions of employment is more than de minimis, it looks to the nature and extent of the effect or reasonably foreseeable effect of the change. Finally, the Authority concluded that the appropriate remedy in this case was to direct the Respondent to cease and desist from its unlawful conduct, post an appropriate notice, and, upon the Union's request, bargain over the impact and implementation of the decision. The Authority noted that it will not order a status quo ante remedy, as requested by the General Counsel, when it would result in the reinstitution of an illegal practice.

Negotiability Cases

In American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-American Program Service Center, 52 FLRA No. 78 (Member Armendariz concurring), the Authority addressed the negotiability of three proposals concerning the organizational placement of specific agency functions and staff. Each of the three proposals had multiple, inseparable requirements and the parties disagreed whether the negotiability of the proposals was governed by section 7106(a) or section 7106(b)(1) of the Statute. The Authority announced that, in such circumstances, the dominant requirement of a proposal would determine whether the proposal was within the obligation to bargain. Based on their dominant requirement, the Authority found that the three proposals in this case impermissibly affected management's right to determine the organization of the Agency under section 7106(a)(1) of the Statute and concluded that they were not within the duty to bargain.

In International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA No. 80, the Authority found that the proposals, which effectively removed the supervisory status and attendant responsibilities from a position that had been designated as supervisory and converted the position to a non-supervisory position, were outside the duty to bargain. The Authority held that proposals directly implicating supervisory personnel by regulating their terms and conditions of employment are not within the duty to bargain. However, the Authority added that if parties who are attempting to define the scope of elective bargaining under section 7106(b)(1) need guidance on whether that section encompasses supervisory personnel, the Authority would entertain a request for a general statement of policy or guidance on the issue pursuant to part 2427 of the Authority's Regulations.

Arbitration Cases

In American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA No. 65, the Authority rejected exceptions to an Arbitrator's award ruling that the use of a parking space by an Agency manager did not violate the parties' memorandum of understanding. Reaffirming established precedent, the Authority concluded that an agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of supervisors and managers. In reaching this conclusion, the Authority emphasized that a union may not require bargaining over permissive subjects and that an agency may withdraw from negotiations over permissive subjects prior to reaching an agreement. The Authority further stated that once an agency and a union agree to such a proposal, it is enforceable in arbitration provided that the proposal is otherwise consistent with the Statute.

In U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA No. 93 (Member Armendariz concurring in part and dissenting in part), the Authority held that an award permitting union officials to use official time to lobby Congress on matters concerning unit employees' working conditions was not contrary to the Hatch Act or 18 U.S.C. 1913. The Authority determined that the employee lobbying activities involved in the case did not fall within definition of "political activity," as provided by the Hatch Act's implementing regulations. The Authority also concluded that 18 U.S.C. 1913, which makes it a crime for any employee or officer of a Federal agency to use money appropriated by Congress to pay for specific items intended to influence in any manner a Member of Congress or any legislation or appropriation, was not violated because the Statute constitutes an express authorization by Congress for using Federal funds to grant official time to employees to lobby Congress on representational matters. In determining that the award was not contrary to 18 U.S.C. 1913, the Authority considered the provision's plain wording, its legislative history, relevant court decisions, and administrative opinions of the Department of Justice (DOJ) and the General Accounting Office.

Court Cases

Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 96-1060 (D.C. Cir. January 23, 1997), reviewing 51 FLRA 675 (1995). The D.C. Circuit agreed with the Authority's decision on remand in this case and enforced the Authority's order. The Authority had ruled that section 7114(b)(4) of the Statute required the agency to disclose to the union a disciplinary letter issued to a supervisor who allegedly used physical force against a bargaining unit employee. The court agreed with the Authority that the union had a "particularized need" for the letter, and that the union's need was not outweighed by "countervailing interests" against disclosure. The court also held that the Privacy Act did not prohibit disclosure of the letter.

National Association of Agriculture Employees v. FLRA, No. 96-1106 (D.C. Cir. December 20, 1996), reviewing 51 FLRA 843 (1996). The D.C. Circuit, in an unpublished opinion, upheld the Authority's decision in this negotiability case. The union >petitioned for review of the Authority's decision that a proposal concerning Sunday overtime tours of duty for certain employees was outside the duty to bargain. In upholding the Authority's decision, the court noted that the union's proposal was contrary to law because it would result in pay for work not performed. The court also approved the Authority's deferral to the Office of Personnel Management's interpretation of certain of its regulations.

FSIP FINAL ACTIONS

Posting and Distribution of Literature; Establishment of AWS Pilot Program

Department of the Army, Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas and Local 28, National Federation of Federal Employees, Case No. 96 FSIP 81 (October 3, 1996), Panel Release No. 391 (Opinion and Decision). After the parties reached an impasse over two issues concerning the Union's use of the distribution system and hours of work, the Panel ordered the dispute to be resolved through mediation-arbitration by Panel Member Edward F. Hartfield. Although the parties made progress on the issues in dispute, mediation efforts failed to result in a complete settlement. With regard to the distribution system, the arbitrator adopted the Employer's proposal to prohibit the Union from either using the agency's internal distribution system or posting on its bulletin boards material that is factually inaccurate or publicly ridicules employees. The arbitrator found that the Employer's proposal merely regulates what material can be distributed or posted in the agency, and does not restrict the Union's right to free speech. As to the issues concerning hours of work, the arbitrator developed a compromise which directs the parties to comply with the requirements of the Federal Employees Flexible and Compressed Work Schedules Act (Act) if the Employer declines to implement or terminates an alternative work schedule (AWS). Although it may be more expedient or cost-effective to resolve such matters through the grievance process, as the Employer proposed, the arbitrator was unwilling to force the Union to waive its rights under the Act. In addition, the arbitrator directed the Employer to notify and consult with the Union prior to determining that an emergency exists and discuss the possible suspension of the AWS procedure. Finally, the arbitrator ordered the parties to withdraw their proposals concerning the methods of dispute resolution and the status of employees while AWS issues are being resolved, because such matters are adequately addressed under the existing provisions of the Statute and the Act.

Transit Subsidies; Official Time for Lobbying

Federal Communications Commission, Washington, D.C. and National Treasury Employees Union, Case No. 96 FSIP 86 (November 1, 1996), Panel Release No. 392 (Decision and Order). In order to resolve a dispute over numerous articles in a successor agreement, the Panel directed the parties to meet in an informal conference with a Panel representative. Although 28 issues were resolved during the proceeding, the parties could not reach an agreement on the issues of transit subsidies for bargaining-unit employees and official time for lobbying. With regard to transit subsidies, the Panel adopted a compromise which provides for (1) a 1-year pilot of the Union's proposal providing each eligible employee a $30 subsidy each month; (2) a 90-day period following the pilot in which the parties would review the data and negotiate the matter; and (3) employees to continue to receive the subsidy pending negotiations. This compromise gives the parties sufficient time to gather data as to whether the availability of the subsidy would reduce the use of single-occupant vehicles for travel to and from work to a degree that justifies its cost, and is consistent with the Federal Employees Clean Air Incentives Act, 5 U.S.C. 7905 (1996). As to official time for lobbying, the Panel adopted a modified version of the Union's proposal, which permits Union officers to receive official time for lobbying Congress on topics that pertain to conditions of employment of bargaining-unit employees. Since the Union's past practice has been to lobby about 8 hours per year, a grant of reasonable official time to Union officers is consistent with its previous lobbying efforts and effectuates the rights recognized by 7102(1) of the Federal Service Labor-Management Statute.

Numbers, Types, and Grades pertaining to a Reorganization

Department of Energy, Western Area Power Administration, Golden, Colorado and Local 3824, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 99 (November 5, 1996), Panel Release No. 392 (Decision and Order). The Panel directed the parties to resolve their dispute over the numbers, types, and grades of bargaining-unit employees in a major reorganization through an informal conference with Panel Member Dolly M. Gee. Although the parties reached an agreement on several matters, mediation efforts failed to resolve numerous issues concerning the reorganization of three regions, and the numbers, types, and grades of employees under section 7106(b)(1) of the Statute. First, in the Desert Southwest Region, the Panel adopted the Employer's proposal which does not establish any new job positions because the Union failed to demonstrate a need for such positions. Second, in the Sierra Nevada Region, the Panel ordered a modified version of the Employer's proposal for no new job positions, except for the addition of one dispatcher position. The Union submitted substantiating data showing the need for an additional dispatcher based on the amount of overtime hours required to provide adequate coverage in the Dispatch Center. With regard to the remaining positions, the Union was unable to demonstrate a need for creating them. Third, in the Rocky Mountain Region, the Panel directed the parties to adopt a modified version of the Employer's proposal by adding (1) two engineering positions in Maintenance Engineering, and (2) one property manager, one engineering technician, and one electrical engineering position in Montrose, Colorado. As a compromise, the Employer proposed to create such positions. Overall, the Union did not provide sufficient evidence to establish a substantial number of its proposed job positions. Finally, the Panel permitted the Union to hold its request for additional positions at all three regions in abeyance until January 10, 1998, when additional data in support of such positions may be asserted, if available.

Establishment of Limitation on Number of Hours in Administrative Workweek

Panama Canal Commission, Balboa, Republic of Panama and International Organization of Masters, Mates, and Pilots, Panama Canal Pilots Branch, AFL-CIO, Case No. 96 FSIP 84 (December 17, 1996), Panel Release No. 393 (Decision and Order). In a dispute which arose after a grievance-arbitrator found that the Employer had violated the parties' Memorandum of Agreement, the Panel directed the parties to meet in an informal conference with a Panel representative to resolve the issues concerning limitations on pilots' administrative workweeks and whether a remedy for a contractual violation found by an arbitrator was warranted. When the parties were unable to reach an agreement, the Panel issued a Report and Recommendation for Settlement, which recommended that: (1) the administrative workweek shall be 40 hours for Regular Plan pilots and 48 hours for 6x4 Plan pilots; (2) the pilot compensation package shall be adjusted by subtracting the overtime dollar amounts that were folded into the availability bonus; (3) the pilots shall be paid overtime for all hours worked over the 40/48 hour limits; and (4) there shall be no retroactive application of the requirements stated above. Although the Employer accepted this recommendation, the Union alleged that it would have a disparate impact on Panamanian pilots by reducing their availability bonus and overtime rates to a greater degree than U.S. pilots, and reasserted its position that overtime hours were never folded into the availability bonus. After considering the entire record, the Panel ordered the parties to adopt the previous recommendations for settling their dispute, modified such that: (1) there shall be one annual bonus table applicable to all pilots, regardless of citizenship or work plan; (2) the basis for subtracting the overtime dollar amounts that were folded into the availability bonus shall be the average amount of overtime paid to all pilots within each identifiable grade and step, regardless of citizenship or work plan; and (3) there shall be a reduction in the daily forfeiture rate proportional to the reduction in the availability bonus. As a result, there will be only one annual bonus table applicable to all pilots, which will eliminate any preferential treatment for pilots based on citizenship or work plan. In addition, the Panel ordered the parties to use the Employer's "Proposed Implementation of Panel's Recommendation" as the means for implementing the recommendation, in accordance with the modifications. The Panel will not retain jurisdiction over the case after the issuance of its decision to resolve issues of interpretation.

Level of Nursing Coverage

Department of the Treasury, Internal Revenue Service, Brookhaven Service Center, Holtsville, New York and Chapter 99, National Treasury Employees Union, Case No. 96 FSIP 120 (December 30, 1996), Panel Release No. 393 (Decision and Order). To resolve an impasse concerning the level of nursing coverage at the Yaphank satellite office, the Panel ordered the parties to meet for an informal conference with a Panel representative. Preliminarily, the Employer maintained that it had no duty to bargain over any proposal which would require it to add a position, as it interferes with management's right to hire under 7106(a) of the Statute. The Panel found that it was unnecessary to address this jurisdictional argument because it decided to adopt the Employer's proposal that a nurse from the Brookhaven Service Center be assigned to Yaphank for up to 20 hours a week. It reasoned that part-time nursing coverage at the Yaphank office would be adequate, given the number of employees assigned to that post of duty and the level of nursing coverage provided at comparably-sized IRS offices.

Administrative Leave for "Three Kings Day"

Department of Agriculture, Forest Service, Arlington, Virginia and National Federation of Federal Employees-Forest Service Council, Case No. 96 FSIP 144 (December 18, 1996), Panel Release No. 393 (Decision and Order). In a dispute over whether unit employees should be granted administrative leave to celebrate "Three Kings Day," the Panel directed the parties to submit a single written submission to resolve the matter. After reviewing the entire record, the Panel ordered the parties to adopt the Union's proposal to continue to grant employees administrative leave on January 6 each year, because "Three Kings Day" is one of the most important annual events in the Commonwealth of Puerto Rico and the Employer has not demonstrated a need for changing the past practice of granting such leave.

Compressed Work Schedules

Department of Veterans Affairs, VA Connecticut Health Care System, Newington, Connecticut and Local R1-109, National Association of Government Employees, SEIU, AFL-CIO, Case No. 96 FSIP 125 (January 6, 1997), Panel Release No. 393 (Decision and Order). The Panel determined that the dispute, which arose under the Federal Employees Flexible and Compressed Work Schedules Act, should be resolved on the basis of written submissions from the parties. The dispute concerned the implementation of the Union's proposed 4-10 compressed work schedule pilot for police officers who work at the Newington, Connecticut, campus. The Employer's evidence of adverse agency impact included predictions that overtime costs would rise and security services would decrease under the schedule. Based on the speculative nature of the evidence, the Panel determined that the Employer failed to meet its burden of proof under the Act and ordered the parties to negotiate over the Union's proposal.

Management Rights; Employee Rights; Official Time for Preparation of Dispute Resolution Proceedings; Accommodation for Deaf and Visually Handicapped Employees; Excused Absences for Union Officials for Training; Official Time for Consultation with Management; Reopener; Merit Selection; Details; Flexiplace; Professional Development and Training

Library of Congress, Washington, D.C. and Local 2810, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 29 (December 18, 1996), Panel Release No. 393 (Opinion and Decision). After conducting an initial investigation, the Panel directed the parties to work on 7 of the 28 articles in dispute with the assistance of the Collaboration and Alternative Dispute Resolution (CADR) Program of the Federal Labor Relations Authority. Subsequently, the parties submitted a status report stating that those issues were resolved. The Panel ordered the parties to resolve the remaining issues through mediation-arbitration on a final-offer selection basis with Panel Member Mary E. Jacksteit. The arbitrator resolved the first issue by adopting the Employer's proposal which maintains the current contract language, because both parties' proposals gave the Library of Congress the right to elect to bargain over matters arising under section 7106(b)(1) of the Statute. Since there is no substantive difference between the two proposals, there is no demonstrated need to change the language contract language. In the second issue concerning notice to employees of their right not to be discriminated against, the arbitrator adopted the Employer's proposal which simply refers employees to various documents that explain the employees' rights. The arbitrator found that the Union's proposal, requiring employees to be treated with respect, and not tolerating harassment, abusive language, intimidation, and discrimination, had the potential to worsen employee/supervisor, labor/management relationships. Moreover, a pattern of egregious behavior that might justify taking the risk of ordering the Union's proposal was not demonstrated. The third issue concerned whether adverse action appeals should be included in the grievance procedure and whether employees should receive a binding decision from a hearing officer. The arbitrator adopted the Union's proposal which provides for overlapping coverage of adverse action appeals by the negotiated grievance procedure and the hearing procedure, because the arbitrator was unwilling to change the status quo to make the negotiated grievance procedure the sole binding appeal process for adverse actions in the face of the "loser pays" provision. In addition, the Union's proposal required the hearing officer decision to remain final and binding except when the Librarian determines that such decision is contrary to applicable law, rule, or regulation. The arbitrator found that this proposal is reasonable because it approximates the FLRA standard of review desired by the Library. As to the fourth issue concerning official time for dispute resolution preparation, the arbitrator adopted the Employer's proposal to provide 15 hours of official time, since the Union's evidence had not established that the dispute resolution process demanded open-ended preparation time. In the fifth issue, the arbitrator adopted the Employer's proposal which requires 2-weeks notice to secure an interpreter for deaf and visually handicapped employees, because the Union has not shown the feasibility of a 48-hour time limit. As to the sixth issue regarding the number of hours that Union officials and stewards may receive excused absences for training, the arbitrator adopted the Union's proposal to increase the number of hours from 8 to 16, because changes in the labor-management environment justified the increase. In the seventh issue, the arbitrator ordered the Union to withdraw its proposal giving Union representatives a reasonable amount of time to prepare for consultation with management, since there are no mechanism for holding the representatives accountable and no evidence was offered to show instances when representatives had insufficient time to prepare for consultations. The eighth issue pertained to the Employer's proposal which permits either party to reopen the performance management provision during calendar year 1997. Since the Union did not submit any evidence in opposition, the arbitrator adopted the Employer's proposal. As to the ninth issue, involving a provision that permits a reconsideration opportunity for applicants who are found not to be minimally qualified for the requirements of vacancy announcements, the arbitrator adopted the Union's proposal to maintain that provision. Although this provision may be unnecessary after the Employer implements a computer-assisted program for reviewing applications, it should offer employees a means of protection until the program is operational, and the parties can revisit the matter at that time. In the tenth issue, the arbitrator adopted the Union's proposal requiring the parties to bargain over the impact and implementation of detailing two or more employees either to similar assignments or to form temporary teams, because the Employer had not substantiated its concerns about undue and unwarranted delay and expenditure of resources for midterm bargaining. With regard to the eleventh issue, the arbitrator ordered the Union to withdraw its proposal concerning the establishment of a flexiplace program, because an 18-month pilot is too long in comparison to other pilot programs, and is too broad in requiring 5 percent of all categories of employees to participate. Moreover, serious security issues would arise if employees are permitted to take home uninventoried or irreplaceable materials. In the twelfth and final issue, concerning the amount of official time to be granted to members of the Professional Policies and Development Committee, the arbitrator adopted the Employer's proposal of 40 official time hours annually, which represents the status quo. Since there was no evidence to demonstrate that the Committee had ever exceeded the time limits under the current agreement, the arbitrator was unpersuaded that the Union's reasonable amount of time standard was necessary.

GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS ON THE DUTY OF FAIR REPRESENTATION

ABOUT THIS COLUMN

The FLRA's General Counsel, Joseph Swerdzewski, has final authority over the issuance of complaints under the Federal Service Labor-Management Relations Statute. The General Counsel's approach in deciding whether to issue a complaint in a particular set of circumstances influences the direction of the law. For that reason, and in the interest of keeping the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the FLRA's Quarterly Summary highlights selected cases which were considered by the OGC pursuant to requests for case-handling advice from Regional Directors and summarizes guidance issued on novel legal issues. (The interpretations of the Statute relied upon in case-handling advice and guidance represents the OGC's position, and is not an official position of, or interpretation by, the Authority.)

In view of the increasing number of duty of fair representation charges filed, and the difficult issues those charges raise, the FLRA's General Counsel, Joseph Swerdzewski, has issued a Guidance Memorandum to Regional Directors concerning the duty of fair representation under section 7114(a)(1) of the Federal Service Labor-Management Relations Statute. The General Counsel discusses his view on legal issues arising from the duty of fair representation owed to bargaining unit employees by a union serving as the exclusive representative of a bargaining unit. The memorandum will serve as guidance to Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges concerning the duty of representation. The memorandum focuses on such legal issues as the legal tests for determining whether the duty of fair representation has been violated, the types of factors that are relied upon in making that determination, and appropriate remedies for violations. Also discussed are matters concerning agency discussions with employees about the duty of fair representation and how the duty of fair representation may impact on agency work groups.

The Appendix to the Guidance Memorandum contains a summary of the duty of fair representation cases that have been decided by the Authority to date.

The General Counsel also issued an Executive Summary of the Guidance Memorandum in a straight- forward question and answer format. Some of the questions answered are: (1) What is the duty of fair representation? (2) Where does this duty come from? (3) What are the most common types of situations which raise issues as to whether a union has breached that duty? (4) What objectives should a remedy for a DFR violation satisfy? (5) Does the union have to treat members and non-members the same with respect to union meetings? The Guidance Memorandum and its accompanying Executive Summary reflect the views of the General Counsel, and do not represent official positions of, or interpretations by, the Authority.

GENERAL COUNSEL'S SETTLEMENT CORNER

ABOUT THIS COLUMN

In accordance with the OGC's Settlement Policy various parties have entered into numerous novel settlement agreements resolving pending ULP cases. This policy, issued inconjunction with the Prosecutorial Discretion Policy, provides Regional Directors with the flexibility to develop, with the parties, innovative remedies that maximize the purposes and policies of the Statute, resolve the specific issues and meet the needs of the parties. To encourage parties to jointly resolve disputes consistent with principles and objectives set forth in the Settlement Policy, selected provisions of recent settlement agreements follow. The parties are not identified in order to maintain confidentiality.

1. Settlement Agreement Provides For Negotiation of Work Locations of Bargaining Unit Employees Affected by Relocation

After issuance of a Complaint and Notice of Hearing, a Regional Director approved a settlement agreement in which the parties agreed to a notice and posting concerning negotiations over the relocation of the agency's facility. The agency agreed to bargain on work locations for all bargaining unit employees and assured all bargaining unit employees that it would not unilaterally implement changes in working conditions without first notifying the union and affording the union the opportunity to bargain to the extent consistent with law and regulations.

2. Agency Memorandum to Supervisors on Rights of Exclusive Representative and Specifically the Right to Representation at a Formal Discussion

After issuance of Complaint and Notice of Hearing, a union and agency agreed to a settlement agreement that provides, among other things, for a notice and posting that requires the agency to send a memorandum to supervisors outlining the rights of the exclusive representative under the Statute. Specifically, the agency will instruct managers and supervisors that they must provide notice and opportunity to be represented to the union whenever a formal discussion under section 7114(a)(2)(A) of the Statute is to be conducted.

3. Rescission of New Agency Directive; Agreement Not to Discipline Employees; and Agreement to Negotiate Future Changes in Agency Procedures

After issuance of Complaint and Notice of Hearing, the parties entered into a settlement agreement which requires the agency to rescind a new directive that required flight instructors to abide by a new mooring procedure. In addition, the parties agreed that flight instructors would not be disciplined for the failure to comply with the new directive while it was in effect, and that they would not be held liable for any damage that may have occurred to any aircraft because of any flight instructor's failure to comply with the new directive. Finally, the parties agreed that the agency would give the union notice, and an opportunity to bargain upon request, if it determines to implement mooring procedures in the future.

4. Agency Posts Notice Agreeing Not to Implement Unilateral Changes in Working Conditions by Installing a New Automated Time Management System

In a pre-complaint settlement agreement, the parties agreed that the agency would post a notice to all employees that requires the agency not to implement unilateral changes in working conditions of unit employees by installing a new automated time management system without notifying the union and giving it the opportunity to bargain the impact and implementation of the change.

5. Agency Ensures That Union Official Allowed to Enter Work Site If Request to Enter Granted by Management Official at Work Site

After the Regional Director determined that a complaint shall issue, the parties resolved an unfair labor practice charge in a settlement agreement in which the parties agreed that the agency would post a notice to all employees stating that it would not implement unilateral changes in working conditions of employment by requiring union officials to submit written requests to service chiefs before entering a

work site. The agency agreed to give the union prior notice and the opportunity to negotiate over any proposed change in the requirements for union officials to enter a work site.

6. Agency Agrees to Bargain Upon Request Over Change in Staffing Ratios

In a settlement agreement resolving an unfair labor practice charge determined to have merit by the Regional Director, the agency agreed to post a notice to all employees requiring the agency to bargain upon request over a change in staffing ratios for certain flights. The agency agreed to provide the union with prior notice of and the opportunity to negotiate over, to the extent consistent with law and regulation, proposed changes in conditions of employment.

7. Agency Agrees to Pay Unit Employee Backpay and to Bargain, on Request, Over Impact of Reduction in Hours in Tour of Duty

After issuance of a Complaint and Notice of Hearing, the parties entered into a settlement agreement requiring the agency to pay a unit employee backpay for 32 hours at the employee's hourly rate, including any pay differential. The agency agreed to bargain, on request, with the union over the impact of the reduction in the number of hours in the employee's tour of duty. The agency also agree to give the union notice and the opportunity to bargain, to the extent consistent with the Statute, before changing any unit employee's tour of duty.

UNILATERAL SETTLEMENT AGREEMENTS

The following settlement agreements were approved by a Regional Director applying the OGC's Settlement Policy over the objection of the charging party because the settlement effectuated the purposes and policies of the Statute:

8. Union Agrees to Refrain From Denying Membership to a Unit Employee For Reasons Other Than Those Permitted Under Section 7116(c)

In a settlement agreement resolving an unfair labor practice charge, a union recognized its obligation under the Statute to refrain from denying membership to a bargaining unit employee for reasons other than those permitted under section 7116(c) of the Statute. The union also agreed to accept the charging party's application for membership should such application be made.

The case summaries were prepared by FLRA staff for guidance and informational purposes only and may not be used as an official.

9. Agency Agrees That Employees' Future Performance Appraisals Will Not Be Adversely Affected in Retaliation For Having Successfully Pursued Grievances Concerning Their Performance Appraisals

Prior to issuance of an unfair labor practice complaint, the agency agreed to post a notice to all employees stating that employees' performance appraisals will not be adversely affected in retaliation for having successfully processed grievances over past performance appraisals. The name of the supervisor who allegedly made the retaliatory comments was only included in the settlement agreement, not on the posting. In finding that the settlement agreement remedies the violation found in the case, the Regional Director noted that no showing was made that the supervisor has been involved in past violations of the Statute.

10. Agency Agrees Not to Move Representative to Office Without Telephone and to Allow Use of Official Time

After issuance of a Complaint and Notice of Hearing, a Regional Director approved a settlement agreement requiring the agency to post a notice to all employees stating that the agency will not inhibit union representatives or to take steps to inhibit access to those representatives by bargaining unit employees by changing the union representative's conditions of employment, including moving a representative to an office without a telephone or other means of communication. The agency also agreed not to interfere with the right of the union president to use official time for representational purposes by unilaterally discontinuing the president's official time.

11. Agency Posts Notice Agreeing Not to Implement Changes in Conditions of Unit Employee's Employment and Agrees to Bargain over Impact and Implementation of Relocation of Employees

The Regional Office concluded that sufficient evidence existed to issue a complaint on allegations that an agency violated section 7116(a)(1) and (5) of the Statute when it unilaterally relocated seven bargaining unit employees from one building to another without bargaining with the union. The Region further concluded that the agency violated section 7116(a)(1) and (8) when it interfered with the union's designation of its own bargaining representatives. In the post-complaint settlement agreement, the agency agrees, among other things, to post a notice, to bargain over the impact and implementation of the change, to not interfere with the union's selection of its own representatives, and to cooperate to the extent required by law with a union request for the grant of official time pursuant to section 7131(a) of the Statute.

12. Agency Agrees to Post Notice Stating That it Will Not Make Statements to Employees That They Have Caused Turmoil at Work by Filing Grievances

To resolve an unfair labor practice charge on which the Regional Director had determined to issue complaint, the agency agreed to post a notice to all employees stating that it respected the rights of bargaining unit employees to file grievances and to be represented by the union. The agency agreed not to make statements to employees that they have caused turmoil at work by filing grievances and that the employees should get another job. In declining to identify the specific supervisor who allegedly made the statements, the Regional Director concluded that the remedy provided for by the agreement is essentially the same remedy that would have been sought had the case been tried successfully and that there was no evidence that the agency has engaged in a pattern of unlawful conduct of a like or similar nature.

13. Agency Agrees Employees Will Not Be Threatened with Retaliation for Successfully Pursuing Grievances Concerning Performance Appraisals

The Regional Director approved a settlement agreement resolving an unfair labor practice charge. The agency agreed to post a notice to all employees The Regional Director approved a settlement agreement resolving an unfair labor practice charge. The agency agreed to post a notice to all employees affected in retaliation for having successfully pursued the grievance. The name of the supervisor involved in the case is stated in the settlement agreement accompanying the notice.