Authority Considers Proposed Changes in Negotiability Regulations

 

Vol. 7 No. 2
February 1, 1998 - May 31, 1998

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
FSIP Settlement Corner
General Counsel Advice to Regional Directors
General Counsel's Settlement Corner

Authority Considers Proposed Changes in
Negotiability Regulations

News to Know

FLRA INVITES CUSTOMERS TO COMMENT ON REVISIONS TO NEGOTIABILITY REGULATIONS

The Federal Labor Relations Authority is reviewing its regulations governing negotiability appeals to determine how the process can be improved.  The Authority developed a list of questions, which was published in the April 20th Federal Register, to serve as the starting point for discussion.  The issues included:  the role of alternative dispute resolution; the consequences when either party fails to comply with procedural requirements; the relationship between issues arising under the negotiability appeal process and the unfair labor practice process; and compliance with Authority orders in negotiability decisions.

Negotiability appeals arise in two situations:  (1) when a labor organization files a petition with the Authority regarding a proposal that the agency has declared non-negotiable during discussions over a collective bargaining agreement, or (2) when an agency head disapproves a proposal after it has been included in a collective bargaining agreement, during the period for agency head review.

To gather additional information and receive customers’ views, the Authority invited interested persons to participate in a focus group meeting on May 12 in Washington, D.C., or to provide written comments on these issues.  The written comments were due by May 29.  The May 12 focus group brought together fifty people, including representatives from unions and agencies, as well as private practitioners.  Chair Segal and Members Wasserman and Cabaniss attended and participated in this event.

FLRA IS UPDATING ITS MAILING LIST

The FLRA is updating its mailing list for the Bulletin, and other FLRA releases.  If you have an e-mail address, and would like the FLRA to e-mail the Bulletin directly to you, please send your name, e-mail address, and any other changes to your regular mailing address, to Bulletin@flra.gov.

NEW REGIONAL ATTORNEYS APPOINTED

The FLRA General Counsel, Joe Swerdzewski, has appointed two new Regional Attorneys:  Charlotte Dye in the Dallas Regional Office and Timothy Sullivan in the Denver Regional Office.  As Regional Attorneys, Ms. Dye and Mr. Sullivan are responsible for managing all of the legal work for their respective Regions, including using traditional and alternative dispute resolution techniques to investigate, settle or prosecute unfair labor practice charges and to process representation petitions.  The Dallas Regional Office covers Arkansas, Louisiana, New Mexico, Oklahoma, Texas, and Panama.  The Denver Regional Office covers Colorado, Kansas, Missouri, Montana, Nebraska, Idaho, South Dakota, Utah, Wyoming, Arizona, and Nevada.

Ms. Dye and Mr. Sullivan are both experienced labor relations professionals who have most recently served the FLRA as Dispute Resolution Specialists.  Ms. Dye received a  Doctor of Jurisprudence from Texas Tech University School of Law and a Master of Public Administration from Texas Tech University Center for Public Service.  In addition to her work for the FLRA, Ms. Dye is a volunteer mediator and handles pro bono civil cases.  She also holds the position of Vice-President for the Women and the Law Section of the State Bar of Texas.  Mr. Sullivan received a Juris Doctor, with Distinction, from the University of Oklahoma in 1987.  Prior to beginning his career with the FLRA in 1987, he completed an internship program with the U.S. Army Judge Advocate General Corps, working in areas of international law and trial defense.  In addition to his work with the FLRA, Mr. Sullivan volunteers as a tutor and a mediator.

FLRA — TRAVELING THE COUNTRY

As part of the Agency’s effort to meet with its customers, Members of the Federal Service Impasses Panel and the General Counsel have been holding town hall meetings around the country.  On May 4, Panel Chair Betty Bolden and Panel Members Gilbert Carrillo, Bonnie Castrey, Stanley Fisher, Dolly Gee, Edward Hartfield, and Mary Jacksteit met with their customers in Atlanta, Georgia.   “We are committed to providing quality service to agency and union representatives in the Federal government,” said Chair Bolden.  “Hearing directly from our customers ensures that we continue to meet their changing needs, particularly in this time of government-wide reorganization.”

On May 1, the General Counsel, Joe Swerdzewski, held a town hall meeting in Honolulu, Hawaii, and on May 14, held a meeting in Syracuse, New York.  The meetings are intended to provide information regarding the policies and guidance issued by the General Counsel and give participants an opportunity to speak with the General Counsel and members of his staff and suggest ways to improve the quality of OGC services.  “I believe town hall meetings are an effective way for the Office of General Counsel to provide information to the Federal agencies, Federal employees, and organizations representing Federal employees about how we operate and any changes that we may be contemplating,” said General Counsel Swerdzewski.

FLRA INVITES COMMENTS ABOUT PRESIDENTIAL ACCOUNTABILITY ACT REGULATIONS

In the April 2nd Federal Register, the Federal Labor Relations Authority requested comments on issues that have arisen as the Agency carries out its responsibilities under the Presidential and Executive Office Accountability Act, enacted in October of 1996.  The Act directs the FLRA to issue regulations extending coverage of Chapter 71 of Title 5, the Federal Service Labor-Management Relations Statute, to the Executive Office of the President no later than October 1, 1998.

The Executive Office of the President (EOP), with approximately 1,700 employees, is comprised of thirteen separate offices:  the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Official Residence of the Vice President, the Office of Policy Development, the Council of Economic Advisors, the Council on Environmental Quality and Office of Environmental Quality, the National Security Council, the Office of Administration, the Office of Management and Budget, the Office of National Drug Control Policy, the Office of Science and Technology, and the Office of the United States Trade Representative.

The Act contains a general requirement that the FLRA issue regulations for the EOP that are the same as the substantive regulations promulgated by the FLRA for all other agencies under its jurisdiction.  The Act also contains additional requirements for specific offices within the EOP.  Pursuant to legislative history urging the FLRA to engage in “extensive rulemaking,” the FLRA requested comments on questions ranging from the appropriateness of bargaining units to conflict of interest issues.  Written responses were due April 17.

FLRA FORMS AND REGULATIONS AVAILABLE ON WEB SITE

The FLRA has placed  its most commonly requested forms, FLRA regulations, and FLRA job listings on its Web Site, found at www.flra.gov.  The Web Site has been up and running since February of 1997, and has recently averaged 535 hits a day.

“Placing our forms and regulations on the Web Site responds to a number of requests we have received over the past year.  We are pleased that the site has helped us meet our goal of providing easier and quicker access to information about the FLRA,” said Chair Phyllis N. Segal.

The Web Site contains various forms issued by the FLRA’s Office of General Counsel, including those used to file unfair labor practice charges and representation petitions.  The “request for assistance” form used by the Federal Service Impasses Panel will also be available.  Already on the Web Site are checklists developed by the Authority for use by the parties in negotiability and arbitration appeals.

The FLRA Web Site also includes information regarding FLRA’s processes for dealing with unfair labor practices, representation issues, arbitration appeals, and negotiation disputes; the FLRA’s five-year strategic plan; Authority decisions; Office of the General Counsel policies and guidance; press releases; decisions of the Federal Service Impasses Panel; and the FLRA Bulletin.

FLRA OFFICE OF THE GENERAL COUNSEL CONTINUES ITS EFFORTS TO PROVIDE ADVANCED STATUTORY TRAINING

During fiscal year 1998, the FLRA Office of the General Counsel has conducted a number of Advanced Statutory Training Seminar sessions for union and agency representatives at both the national and local levels.  The OGC developed the Seminar to address concerns expressed by both labor and management practitioners to FLRA General Counsel Swerdzewski.  In light of the increasing complexity of Federal sector labor law, practitioners see a need for more advanced knowledge of the law and its related concepts.  The Seminar deals with five of the most significant labor-management relations issues in the Federal sector:  (1) the scope of bargaining under the Statute; (2) bargaining during the contract term and the “covered by doctrine”; (3) obtaining information under the Statute; (4) labor relations issues arising from reorganizations and downsizing; and (5) the duty of fair representation.

The Seminar is targeted for practitioners with a basic understanding of Federal sector labor law and is designed to increase this understanding.  After completing the seminar, participants will be able to further develop approaches and practical strategies for productively resolving workplace issues.

Each session of the Seminar is limited to 15 participants and is between two and three days long. Seminar enrollment is limited to encourage interaction among participants.  Seminar participants may consist solely of labor or solely of management representatives, or a combination of the two.  Questions regarding the Advanced Statutory Training Seminar, should be directed to the Office of the General Counsel at 202-482-6608.

UPDATE ON CADR

Under the Collaboration and Alternative Dispute Resolution program (CADR), FLRA  national and regional office staff assist parties in the resolution of pending case disputes.  The CADR program also assists parties through partnership facilitation, relationship building, and the development of ADR programs.  Through CADR, FLRA hopes to  promote the use of interest-based problem-solving in labor-management relationships and provide agency and union representatives with the skills to resolve disputes at earlier stages.

The following illustrates some of the assistance provided to customers nation-wide:

Intervening in Pending Disputes

  • The CADR Program assisted the parties in resolving six negotiability appeals pending before the Authority and two unfair labor practice cases pending in a regional office.  With the assistance of the CADR service providers, the  parties were able to reach agreement on the particular issues in the cases and used the opportunity as a stepping stone to improving their labor-management relationship.
  • As part of the pre-hearing conference for a ULP case, an agreement was reached rehiring a former employee to an equivalent position with back pay.

Training

  • FLRA Staff participated in the National Partnership Council’s Skills Building Workshops, held in Baltimore, Maryland and Atlanta, Georgia.  The CADR Director presented a workshop entitled “Tools for Fostering Partnership.”
  • CADR Office Staff provided training in interest-based problem-solving to an Agency’s local partnership council members.  The union and management representatives were trained on the interest-based negotiation (IBN) and explored ways to use IBN in partnership settings.

Facilitating Labor-Management Relationships

  • The Office of the General Counsel (OGC) has been assisting two large Agencies in conflicted relations using a new approach, “Strategic Planning for a New Relationship.”  This three-step approach involves separate meetings with key management and union leaders to discuss major issues and strategies available to develop their labor-management relationship.  Following these separate meetings, the chief management and Union representative meet with OGC staff to discuss the outcomes of their respective separate meetings and their interests in reworking their labor-management relationship.  If the chief representatives agree upon a significant effort for that purpose, a third meeting brings together all representatives for joint perspectives on their existing relationship, the need for change, and a strategic plan and joint approach in dealing with major issues.
  • DOD and FLRA Staff provided partnership facilitation assistance to DOD union and management representatives on a local partnership council comprised of firefighters.  CADR facilitated the parties discussion of issues unique to their working environment and worked with the council to develop procedures for more productive partnership meetings.

AUTHORITY CASES

These summaries of selected cases 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.  The term “Statute” throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.

Representation Cases

  • In Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona and Southwest Native American Health Care Employees, Local 1386, Liuna, AFL-CIO, 53 FLRA No. 101, the Authority held that employees detailed from their Agency to a Tribal Corporation under the Intergovernmental Personnel Act, 5 U.S.C. § 3373, remained “employed in an agency” pursuant to section 7103(a)(2) of the Statute.  Specifically, the Authority determined that the Tribal Corporation was not an “executive agency” within the meaning of 5 U.S.C. § 105 and that the detailed employees were employees of the Agency from which they were detailed, in this case, the Indian Health Service.  With respect to the employees’ bargaining rights under the Statute, the Authority stated that the Agency was obligated to bargain with the Union concerning conditions of employment over which it retained control.  In addition, the Authority found that the employees’ bargaining unit remained an “appropriate unit” because there was a community of interest among the employees in the unit, the unit promoted effective dealings with the Agency, and the unit promoted efficient operations within the Agency.  The Authority dismissed the petition to clarify the unit and directed the Regional Director to amend the certification of the unit consistent with its decision. Subsequently, a motion for reconsideration was submitted, which was denied.

Unfair Labor Practice Cases

  • In U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico and American Federation of Government Employees, AFL-CIO, Local 1503, 53 FLRA No. 86, the Authority found that the Respondent committed an unfair labor practice under section 7116(a)(1) and (5) of the Statute, by refusing to bargain over a grievance and arbitration procedure and by engaging in unlawful conduct that precluded the completion of negotiations for a collective bargaining agreement before the expiration of the 1-year period following the Union’s certification.
With respect to the remedy, the Authority acknowledged that it had never issued a remedial order in which the length of a union’s certification year period had been extended as a result of agency misconduct.  The Authority discussed that private sector precedent addressed this issue with respect violations of section 9(c)(3) of the National Labor Relations Act (NLRA), which bars a representation petition filed within 12 months from the date of the last election.  Noting that section 7111(f)(4) of the Statute and section 9(c)(3) of the NLRA are substantially similar, the Authority determined that private sector precedent provided an appropriate guide in fashioning a Federal sector remedy.  Thus, the Authority adopted the National Labor Relations Board’s rule that a union’s majority status, which is presumed for one year following its certification, may be extended beyond one year where an employer’s misconduct serves to deprive the union of a full year of actual bargaining.  Having found that the Respondent’s conduct was sufficiently egregious and pervasive throughout the certification year, the Authority decided that the Respondent’s conduct warranted a complete renewal of the Union’s certification year.
  • In Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado, 53 FLRA No. 137, the Authority found that the Office of Internal Affairs did not commit an unfair labor practice by its investigation of an alleged assault following a Union meeting, but that the Federal Correctional Institution did commit an unfair labor practice by suspending the Union President for walking out of a counseling meeting.
The Authority determined that the Internal Affairs investigation of the Union meeting was reasonable because viewed objectively it did not interfere with, restrain, or coerce employees in the exercise of rights protected under the Statute.  In particular, the Authority found that the Internal Affairs agents conducting the investigation did not seek disclosure of confidential information, and that no unit member interviewed by Internal Affairs was representing another unit member in a disciplinary proceeding or other proceeding requiring confidentiality.  Moreover, the Authority concluded that the Internal Affairs agents exercised care not to trespass on union business during the investigation, and that the agents avoided the substance of the Union meeting.
However, the Authority determined that the Federal Correctional Institution did commit an unfair labor practice by suspending the Union President for walking out of a counseling meeting with the Associate Warden.  The Authority found that the counseling meeting was called solely as a result of the Union President’s actions as Union President.  Because the Union President attended the counseling meeting in her capacity as Union President, the Authority concluded that her actions during the meeting were protected under the Statute unless they constituted flagrant misconduct.
The Authority decided that the Union President’s actions did not constitute flagrant misconduct for four reasons.  First, the counseling meeting did not occur in a public area.  Second, the Union President’s departure from the meeting was clearly impulsive, not a designed reaction to the Associate Warden’s decision to issue a counseling letter to the Union President for her activity as Union President.  Third, the Union President’s action was directly provoked by the Associate Warden’s refusal to recognize the protected nature of the Union President’s activity.  Fourth, although the decision to leave the meeting was imprudent, union representatives are granted leeway when they are acting in the capacity of union representatives.

Negotiability Cases

  • In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA No. 22, the Authority addressed the negotiability of one proposal.  After the Agency notified the Union that it intended to achieve a reduction in headquarters staff by making available only to headquarters staff certain vacant positions in the Agency’s field offices, the Union submitted a proposal stating that field office employees could also apply for the vacant positions.  The Authority concluded that the proposal did not affect management’s right to make selections under section 7106(a)(2)(C) of the Statute because it did not limit the Agency’s selection options.
In the course of reaching this conclusion, the Authority addressed the test set forth in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington) for resolving conflicting claims that a proposal is outside the duty to bargain under section 7106(a) of the Statute and electively bargainable under section 7106(b)(1). The Authority stated that this case made evident an anomaly not present in VAMC, Lexington:  that adhering to the sequence of analysis in VAMC, Lexington could result in dismissal of a negotiability petition in a case, such as this one, where the disputed proposal would be found within the duty to bargain if the parties’ dispute over section 7106(a) were resolved.  Thus, the Authority determined that where an agency asserts that a provision affects a management right or rights under section 7106(a) of the Statute and a union disputes such an assertion, the Authority will address and resolve this claim even though the Union also asserts that the provision is electively bargainable under section 7106(b)(1).
  • In National Association of Government Employees, Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 53 FLRA No. 143, the Authority addressed the negotiability of one proposal, requiring the Agency to designate mechanics as WG-5803-10 employees.  The Authority noted that section 7103(a)(14)(B) of the Statute excludes policies, practices, and matters relating to the classification of any position from the definition of “conditions of employment.”  It also noted that classification entails the identification of the appropriate title, series, grade, and pay system of a position.  The Authority determined that the Union’s proposal identified the series (5803) and grade (10) into which specific mechanic positions would be placed and, thus, related to the classification of those positions.  Accordingly, the Authority held that the proposal was related to the classification of mechanics’ positions and, therefore, was outside the Agency’s duty to bargain under the Statute.

Arbitration Cases

  • In American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 53 FLRA No. 115, the Authority set aside an arbitration award denying as non-arbitrable a grievance contesting an Agency’s determination that certain employees were required to submit confidential financial disclosure reports pursuant to 5 C.F.R. Part 2634.  Because the Union’s exceptions challenged the substantive arbitrability of the grievance requiring an interpretation of 5 C.F.R. § 2634.906, the Authority applied a de novo standard of review to the award.
The Authority interpreted  5 C.F.R. § 2634.906.  It provides that any complaint by an individual that his/her position has been improperly determined to require the submission of a confidential financial disclosure report shall be reviewed by an agency head or designee, and a decision on the complaint shall be “final”.  The Authority concluded that this section does not preclude the filing of grievance under the negotiated grievance procedure.  In reaching this conclusion, the Authority found that nothing in the plain wording of the regulation, or its supplementary information, established that the Agency’s confidential filing determinations were immune from challenge by a union through the negotiated grievance procedure.  Moreover, the Authority noted the policy that doubts as to whether an issue is covered by a negotiated grievance procedure should be resolved in favor of such coverage.
  • In National Treasury Employees Union and Federal Deposit Insurance Company, 53 FLRA No. 134 (1998), the Authority reviewed an arbitration award that sustained, in part, a grievance alleging that an Agency’s classification of certain employees as exempt from the coverage of the Fair Labor Standards Act (FLSA) violated law and regulation.  The arbitration award denied the grievance as to GG-11 examiners because the arbitrator determined that these examiners were properly classified as professional employees.  The award did provide other employees, whose improper classification the Agency later acknowledged, partial back pay.  The Union filed exceptions claiming that (1) the GG-11 examiners were not professional employees, and (2) the Arbitrator erred in failing to provide liquidated damages to those employees who were improperly classified.
In its decision the Authority discussed the status of the examiners.  It conducted a three-part analysis.  First, the Authority determined that the GG-11 examiners were “professional” employees within the meaning of 5 C.F.R. § 551.206(a) and, thereby, were exempt from the overtime provisions of the FLSA.  Second, the Authority held that the portion of the award denying liquidated damages to those employees wrongly classified as exempt was contrary to section 260 of the FLSA, because the Agency’s denial of overtime was not based on a good faith belief that it was in compliance with the FLSA.  Third, the Authority held that the award was contrary to the statute of limitations contained in section 255(a) of the FLSA with respect to the calculation of back pay.
In addressing the calculation of back pay, the Authority expressly overruled U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA No. 78 (1993) and its progeny.  The Authority explained that the FLSA provides an independent statutory basis for an award of back pay and, therefore, a violation of the FLSA is remedied under the FLSA and not the Back Pay Act.  The Authority also explained that, although nothing in the Back Pay Act limits the period of recovery, the FLSA expressly limits the period of time an employee may recover back pay for a violation.  The Authority reasoned that, as the statute of limitations is an integral part of the substantive rights afforded by the FLSA, it cannot be disregarded in the negotiated grievance procedure. Thus, the Authority concluded that the FLSA limits an arbitrator’s latitude to fashion remedies.
The Authority modified the award to include the payment of liquidated damages to those examiners and liquidators who were wrongfully classified as exempt under the FLSA and remanded the award to the parties for submission to the arbitrator for a determination as to the appropriate statute of limitations under the FLSA to be applied in calculating the award of back pay.

COURT CASES

  • Department of Justice, Immigration & Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA,  F.3d, 1998 WL 271092, No. 97-1388 (D.C. Cir. May 29, 1998), seeking review of 51 FLRA 1467 (1996) and 52 FLRA 1323 (1997) .  The D.C. Circuit denied an agency’s petition for review of an Authority decision in a section 7114(b)(4) information case.  The Authority had ruled that the Agency committed a ULP by failing to provide the Union with certain disciplinary records the Union had requested in connection with a proposed removal.  The Court found that the Union was acting as an “exclusive representative” under the Statute, notwithstanding the fact that the Union had chosen to represent an employee at the oral reply stage of the disciplinary process. The Court also agreed with the Authority that the requested information was “necessary” at the oral reply stage of the proposed removal action because the Union needed the documents concerning how the Agency disciplined other employees to assess whether the proposed punishment was appropriate.  The Court therefore agreed with the Authority that the Agency committed a ULP by refusing the Union’s request for the disciplinary records.
  • American Federation of Government Employees, Local 2343 v. FLRA, __ F.3d __, 1998 WL 271093, No. 97-1355 (D.C. Cir. May 29, 1998), seeking review of 52 FLRA 1195 (1997).  The D.C. Circuit denied a Union’s petition for review of an Authority unfair labor practice (ULP) decision in an information case arising under section 7114(b)(4) of the Statute.  The complaint alleged that the Agency improperly refused to provide  documents requested by the Union in connection with a pending grievance.  Characterizing as “conclusory” the Union’s claim that it “needed the information to prepare for arbitration of its previously filed grievance,” the Authority found that the Union failed to articulate a particularized need for the documents.  The Court agreed, rejecting the Union’s claim that the connection between the information the Union sought and the grievance was “self-evident.”
  • Johanna K. Begay v. Department of the Interior, __ F.3d __, 1998 WL 272809, No. 98-3104 (Fed. Cir. May 15, 1998), seeking review of 53 FLRA 984 (1997).  The Federal Circuit dismissed for lack of jurisdiction an individual’s petition for review of an Authority decision overturning an arbitration award.  Although not the named respondent, the Authority participated in the case as an amicus curiae.  The Authority had set aside an arbitration award, which sustained a grievance challenging the use of certain reduction-in-force procedures resulting in Begay’s separation from service.  The Court determined that it did not have jurisdiction to review the Authority’s decision under 28 U.S.C. § 1296(a)(2) and 3 U.S.C. § 431.  The Court also found that no other circuit court would have jurisdiction to review the Authority’s decision.  The Court agreed in this regard with other courts of appeals that because a ULP was not an explicit or a necessary ground for the Authority’s decision, no court would have jurisdiction under section 7123(a) of the Statute.
  • Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 97-1301 (D.D.C. Apr. 15, 1998).  The District Court adopted the report and recommendation of the magistrate judge and granted the Authority’s motion to dismiss or, in the alternative, for summary judgment. The complaint sought to compel the FLRA’s General Counsel to issue ULP complaints and to obtain documents withheld by the General Counsel under the Freedom of Information Act (FOIA).  Recognizing that the General Counsel has unreviewable discretion to decline to issue ULP complaints, the Court dismissed the complaint’s ULP claims because it lacked subject matter jurisdiction.  The Court also granted the Authority’s motion for summary judgment with regard to the plaintiff’s FOIA claim.  It found that the portions of the attorney notes and the investigative reports withheld from the Plaintiff were protected from disclosure by the deliberative process privilege and the attorney-client and work product privileges.  The court also upheld the General Counsel’s claim that FOIA Exemption 7© [protection of privacy interests of third parties] and FOIA Exemption 7(D) [protection of identity of confidential sources] protected from disclosure several documents created during the investigation of the ULP charges.
  • National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998), reviewing 52 FLRA 1159 (1997).  The D.C. Circuit denied in part and granted in part a petition for review of an Authority decision dismissing ULP charges against the Agency.  The Agency had denied NTEU a permit to distribute literature on the sidewalks of an agency facility at which another union was the exclusive representative.  The Authority determined (1) that the denial of a permit did not amount to unlawful assistance to the incumbent Union under section 7116(a)(3), and (2) that, applying the principles of Babcock & Wilcox,  the permit denials did not discriminate against NTEU under section 7116(a)(1).  The Court affirmed the Authority’s decision that the Agency did not unlawfully assist the incumbent.  The Court also found, however, that the Babcock & Wilcox rule did not protect the Agency’s denial of permits to NTEU because the Agency did not have a general no-solicitation policy.  Noting that the Authority was not required to adopt Babcock & Wilson, the Court remanded the case to the Authority to re-examine the question whether the Agency violated section 7116(a)(1).  However, the Court concluded that if the Authority determined that the Agency did violate section 7116(a)(1), the Authority was obliged to apply retroactively its newly adopted standard and award NTEU a remedy.  The Authority’s petition for re-hearing was denied by the D.C. Circuit Court.

FSIP FINAL ACTIONS

These summaries of selected cases 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 Federal Service Impasses Panel.  The term “Statute” throughout the text  refers to the Federal Service Labor-Management Relations Statute §§7101-7135.

Tours of Duty

  •  Department of the Army, Headquarters, Fort Carson, Fort Carson, Colorado and Local 1345, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 124 (February 3, 1998), Panel Release No. 406 (Decision and Order).  The Panel directed the parties to participate in an informal conference with a Panel Staff Member to assist them in resolving a dispute over what the tours of duty and lunch periods should be for approximately 14 mechanics who maintain and repair target systems on artillery ranges when military units are present (i.e., when the ranges are in a “hot status”).  After the informal conference failed to resolve the dispute completely, the parties’ final offers and the recommendation of the Panel Staff for settling the impasse were presented to the Panel.  Because the Employer alleged that the Union’s proposal was outside its duty to bargain, and the FLRA had never previously addressed the Employer’s nonnegotiability argument, the Panel directed the parties to withdraw their proposals to permit the Union to request a written declaration of nonnegotiability from the Employer.

Overtime and Official Time

  •  Department of Justice, Board of Immigration Appeals, Falls Church, Virginia and Local 3525, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 143 (February 6, 1998), Panel Release No. 406 (Decision and Order).  The parties’ impasse initially involved numerous articles in negotiations over a successor collective bargaining agreement.  The Panel determined that the dispute should be resolved through an informal conference with a Panel representative.  During the informal conference, all but two of the issues were voluntarily settled.  The representative subsequently reported to the Panel the parties’ final offers and her recommendations for settling the dispute.  Thereafter, the Panel issued a decision ordering the adoption of a modified version of the Employer’s proposal on the overtime issue, essentially requiring overtime for bargaining-unit employees to be distributed by seniority from a pool of eligible employees, with management determining the qualifications for eligibility for the pool.  It also required the Employer to announce in writing the qualifications which it relied upon in determining employees’ eligibility for the overtime pool; upon written request from an employee determined to be ineligible for the pool, to specify in writing the qualifications he or she lacks; and to redetermine eligibility for the pool no less than twice per year.  The Panel adopted the Union’s proposal on the official time issue which, among other things, permits Union representatives to use official time in amounts that are reasonably necessary to accomplish representational purposes, and establishes various procedures for its use.

Salary Increases for Teachers During the 1997-98 School Year

  •  Department of Defense, Domestic Dependents Elementary and Secondary Schools, Fort Stewart School System, Fort Stewart, Georgia and Fort Stewart Association of Educators, Federal Education Association, NEA, Case No. 98 FSIP 11 (February 5, 1998), Panel Release No. 406 (Opinion and Decision).  The Panel directed the parties to resolve their dispute through mediation-arbitration, whereby Chair Betty Bolden was granted authority to (1) mediate with respect to the outstanding issues and (2) issue a binding decision on any that remained unresolved.  When mediation efforts failed to result in a complete settlement of the dispute, a hearing was conducted, and an Arbitrator’s Opinion and Decision was issued essentially adopting the Employer’s proposal granting teachers and teaching assistants an across-the-board increase of 3 percent, and appropriate step increases for School Year 1997-98 retroactive to August 1, 1997.

Length of Phase-In Period for the Elimination of Overtime

  •  Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Baltimore, Maryland and Local 006, National Association of Agriculture Employees, Case No. 98 FSIP 33 (April 7, 1998), Panel Release No. 408 (Decision and Order).   The Panel determined that the impasse, which arose from bargaining over the establishment of an evening shift at Baltimore Washington International Airport (BWI), should be resolved on the basis of written submissions from the parties, including rebuttals.  After receiving their submissions, the Panel adopted a compromise solution whereby, for 2 years following the issuance of its decision, one employee would work a regularly scheduled tour of duty, while a second would work on a call-back basis.  At the end of 2 years, the second slot would be staffed as a regular tour of duty.  The Panel concluded that a 2-year phase-in period to allow employees to adjust to a reduction in overtime income balanced the equities better than either of the parties’ proposals.

Construction of a Barrier Wall and a Reopener Provision

  •  Social Security Administration, Mesa Field Office and Council 147, AFGE, AFL-CIO, Case No. 97 FSIP 146 (April 16, 1998), Panel Release No. 408 (Opinion and Decision). The parties reached an impasse over numerous issues involving the relocation and redesign of the Mesa Field Office.  Panel Member Dolly M. Gee was designated to mediate the dispute, and if a complete settlement did not occur, authorized to issue an arbitration award to resolve those issues that remained.  While many of the issues were resolved during the mediation phase of the process, Ms. Gee eventually was required to issue a written decision regarding the two that remained concerning (1) the layout and design of the front end interviewing (FEI) area, and (2) whether the Union may reopen negotiations on the use of Plexiglas in the reception counter windows no earlier than 6 months after the office relocation.  In essence, she adopted modified versions of the Union’s proposals on both issues, finding that, in the circumstances presented, the construction of a low barrier wall in the FEI area represented a reasonable precautionary safety measure for employees, and that permitting the Union to reopen the issue of whether Plexiglas should be installed in the service representatives’ windows no earlier than 6 months after the office relocation was reasonable.

Reduction-in-Force

  • U.S. Army Corps of Engineers, South Pacific Division, San Francisco, California and Local 49, International Federation of Professional and Technical Engineers, Case No. 98 FSIP 64 (May 12, 1998), Panel Release No. 409 (Decision and Order).  This case concerned negotiations over the impact and implementation of the Employer’s decision to conduct a reduction in force (RIF) affecting four bargaining-unit members.  The Panel determined that the parties should meet informally with Panel Member Bonnie Prouty Castrey in an attempt to resolve voluntarily the approximately 20 issues which were at impasse.  When the parties were unable to resolve the matter during the informal conference, Ms. Castrey presented their final offers to the Panel, along with her recommendations for settling the dispute.  Shortly thereafter, the Panel issued a Decision and Order in which it ordered the parties to withdraw their proposals on a number of issues because the Employer’s implementation of the RIF on May 4, 1998, had essentially rendered them moot.  On the issues of training, job duties, and access to personnel records, it ordered the adoption of the Employer’s final offers, while it adopted compromise wording on the issues of Union access to subject-matter experts for determining the qualifications of bargaining-unit employees, bulletin boards, and the E-Mail system, official time, and civilian performance plans.  Finally, it ordered the Employer to withdraw its proposal that the RIF MOU essentially serve to resolve all of the parties’ pending unfair labor practice cases and negotiability petitions before the Federal Labor Relations Authority, stating that it was unwilling to waive a party’s rights under the Statute.

Fugitive Felon Project

  • Social Security Administration (SSA), Baltimore, Maryland and Council 220, American Federation of Government Employees, Case No. 98 FSIP 24 (May 29, 1998), Panel Release No. 409 (Decision and Order).  This case arose from national-level bargaining over the Employer’s implementation of the Office of Inspector General’s (OIG) Fugitive Felon Project, developed to meet certain requirements of the 1997 amendment of Title XVI, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (commonly referred to as the Welfare Reform Act), P.L. 104-193.  In particular, the parties negotiated over the law’s requirement that the SSA Commissioner furnish Federal, State, or local law enforcement officers with information about fugitive felons and probation and parole violators, including their addresses; the OIG would convey information obtained by bargaining-unit employees to law enforcement agencies.  The Panel determined that the impasse should be resolved on the basis of written submissions from the parties, including rebuttals; the Panel was to select between the parties’ final offers on a package basis, to the extent that they were otherwise legal.  After considering their final offers and written submissions, the Panel adopted the Employer’s final offer to resolve the dispute.  The Panel concluded that those proposals, in conjunction with already agreed-to portions of the memorandum of understanding being negotiated, Project instructions, and the master collective bargaining agreement, afforded sufficient safeguards for unit employees.  The adopted proposals emphasized making contact with individuals who are fugitive felons by telephone, discouraging them from seeking in-office interviews and, when such individuals present themselves at field offices, giving office managers the latitude to respond flexibly to meet situations that may arise.

FSIP SETTLEMENT CORNER

ABOUT THIS COLUMN

In addition to the issuance of final actions (i.e., Decisions and Orders by the   full Panel and  Arbitrator’s Opinions and Decisions by its designated representatives), the Panel also fulfills its statutory obligations by assisting      the parties in their efforts to achieve voluntary settlements.  From February 1, 1998 through May 30, 1998, Panel Members were successful in obtaining complete settlements in the following cases.

  • In Department of the Air Force, Westover Air Reserve Base, Chicopee, Massachusetts and Local 3707, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 58 (closed May 5, 1998), the parties reached impasse over four issues concerning a dress code policy for the employees in the Military Personnel Office.  Panel Member Stanley M. Fisher assisted the parties in resolving the dispute during a telephone conference held as a preliminary step in preparation for an informal conference.
  • In Social Security Administration, Vallejo Field Office, Vallejo, California and Local 3172, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 97 (closed May 28, 1998), the parties reached impasse over the floor plan for a new field office space; Panel Member Bonnie Prouty Castrey conducted a mediation-arbitration procedure which ultimately resulted in a complete settlement.

GENERAL COUNSEL’S ADVICE TO REGIONAL DIRECTORS

ABOUT THIS COLUMN

The FLRA’s General Counsel, Joseph Swerdzewski, has, among other statutory duties,  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 to keep the parties informed of the policies  being pursued by the Office of the General Counsel (OGC), the Bulletin highlights selected cases that 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 the advice and guidance represents the OGC’s position, and are not an official position of, or interpretation by, the Authority.

PROCESSING  § 7111(f) CLAIMS OF CORRUPT INFLUENCES

The General Counsel issued guidance to Regional Directors to discuss how § 7111(f) claims of corrupt influences should be considered in light of the Authority’s decisions in Division of Military And Naval Affairs (New York National Guard), Latham, New York and National Federation of Civilian Technicians, 53 FLRA No. 17, 53 FLRA 111 (1997) and U.S. Information Agency, Washington, D.C. and American Federation of Government Employees, Local 1812, AFL-CIO, 53 FLRA No. 85, 53 FLRA 999 (1997).

In order to file a petition for recognition, a Union petitioner must be free from corrupt influences.  When a petition is filed by a labor organization, the labor organization/petitioner, by signing the petition form, certifies that it has submitted to the Department of Labor and to the activity/agency in the case, in compliance with section 7111(e) of the Statute, a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives.  This Statutory requirement is codified at section 2422.3(b) of the FLRA Regulations.  Thus, when the Region determines that a petitioner has complied with this section, the Region is making a finding that the petitioner is not subject to corrupt or anti-democratic influences.

The General Counsel also noted that violations of standards of conduct do not automatically establish corrupt influences warranting revocation or denial of certification of a union.  If a third party with jurisdiction over conduct alleged to constitute reasonable cause to believe that a labor organization is subject to corrupt or anti-democratic influences finds a violation, that finding establishes only reasonable cause to believe that the presumption of freedom from corrupt or anti-democratic influences has been rebutted.  It does not establish that, in fact, the union is subject to corrupt and anti-democratic influences.  This finding is within the Authority’s sole province to make.

In order to effectively process claims that a union is subject to corrupt influences, the Regions issue a show cause order requiring the party filing the challenge to establish a basis upon which a charge of corruption or anti-democratic influences can be substantiated.  The order requires that the challenging party submit the following information, documents and argument:

  1. Whether there has been, or is currently pending, a proceeding before a third party that is based on the same or substantially similar allegations that support the section 7111(f) claim;
  2. If a third party has found no violation based on the same or substantially similar conduct, why the challenge or petition should not be dismissed, absent withdrawal;
  3. If a third party has found a violation based on the same or substantially similar conduct, why that violation establishes under the Statute that a labor organization is subject to corrupt or anti-democratic influences requiring the denial or revocation of certification;      
  4. If a third party proceeding is pending, assuming the allegations before the third party are true, why they establish under the Statute that a labor organization is subject to corrupt or anti-democratic influences requiring the denial or revocation of certification; and
  5. If there has been no proceeding before a third party and none is currently pending based on the same or substantially similar conduct, why the challenge or petition should not be dismissed, absent withdrawal.

The General Counsel further advised the Regions to obtain clearance from the Office of the General Counsel prior to staying any pending representation proceeding because of a challenge raising corrupt or anti-democratic issues.  Similarly, in view of the small number of cases raising this issue and the absence of Authority decisions and legislative history, after receipt of a response to an order to show cause discussed above, the Regions obtain clearance from the Office of the General Counsel prior to taking action on any challenge or petition raising the corrupt or anti-democratic influences issue.

THE IMPACT OF TRUSTEESHIPS ON REPRESENTATION PETITIONS

The General Counsel issued guidance to Regional Directors on the relationship between trusteeships and representation petitions seeking a change in affiliation depending upon whether the trusteeship was imposed before or after the filing of the petition and whether the validity of the trusteeship is pending.

Trusteeship Imposed After Representation Petition is Filed

In the case where the trusteeship is imposed after the filing of the petition the Regions continue to process the representation petition and apply Authority precedent in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974), review denied, 3 FLRC 259 (1975), adopted by the Authority in Florida National Guard, St. Augustine, Florida, 25 FLRA No. 60, 25 FLRA 728 (1987).  In the General Counsel’s view, until the Authority rules on the issue, when a trusteeship is imposed after a reaffiliation vote and after the filing of a petition to change the certification, the trusteeship cannot affect the processing of the petition and the issuance of a new certification.

Trusteeship Imposed Before Representation Petition is Filed

Where a valid trusteeship is imposed prior to the petition, the petition is dismissed. Whether the reaffiliation vote precedes or is subsequent to the imposition of the trusteeship, if the trusteeship is valid, the Regions recognize the designated trustee as the representative of the Union.  The key is when the petition is filed and the validity of the trusteeship, not when the vote to reaffiliate was taken.

Validity of a Trusteeship Pending Before the Assistant Secretary

In a situation where the validity of a trusteeship is being challenged before the Department of Labor, the Authority’s guidance in U.S. Environmental Protection Agency, Washington, D.C. and National Federation of Federal Employees, Local 2050, 52 FLRA No. 76, 52 FLRA 772 (1996) (EPA) controls.  Thus, where Regional Directors determine that the trusteeship was properly imposed, the Regional Director presumes the validity of the trusteeship and dismisses the petition on the ground that the person purporting to act for the incumbent labor organization has no authority to act.  However, if the Regional Director determines that the trusteeship was improperly imposed, the petition is placed in abeyance until the Secretary renders a decision.  At that time, the Regional Director takes action as is appropriate based on the Assistant Secretary’s decision.

Validity of a Trusteeship Not Pending Before the Assistant Secretary

If there is no proceeding pending before the Assistant Secretary, the Regional Director still determines if the trusteeship was properly imposed by:  (1) examining the procedural requirements of the parent union’s constitution and bylaws and deciding if those provisions were followed; (2) deciding if the local union was afforded a fair hearing; and (3) determining if the trusteeship was authorized or ratified after that hearing as provided for in the parent union’s constitution and bylaws.  The Regional Director also determines if the purpose of the trusteeship was to preclude reaffiliation.

In situations where:  (1) there is no pending Department of Labor proceeding when a petition is filed after imposition of the trusteeship; and (2) the Region finds that the trusteeship lacks either procedural validity or was established to block reaffiliation, the Region obtains clearance from the Office of the General Counsel prior to continue processing the reaffiliation petition.

GENERAL COUNSEL’S SETTLEMENT CORNER

ABOUT THIS COLUMN

In accordance with the OGC’s Settlement Policy, parties have entered into numerous novel settlement agreements resolving pending ULP cases.  This policy, issued in conjunction 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.

VOLUNTARY SETTLEMENT AGREEMENTS

Agency Agrees to Comply With the Parties’ Memorandum of Understanding by Providing Printers and Trackers as per the Display System Replacement Schedule

After issuance of complaint and notice of hearing, the parties agreed that the Agency will comply with a Memorandum of Understanding (MOU) concerning the installation of new equipment for an ARTC center. The Agreement provides that the Agency will provide 63 printers and 29 trackers for the ARTC Center as per the Display System Replacement deployment schedule and that any deviations from the terms of the MOU will be made only by mutual agreement of the parties.

Agency Agrees to Post Notice and to Expunge from its Records Any Information Regarding the Admonishment of an Employee

In a pre-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees at the facility stating that the Agency will expunge from all its files, both official and unofficial, all records of, and references to, the admonishment issued to a unit employee for engaging in protected Union activity.

Agency Agrees to Furnish Information and Copies of Data at Least One Week Prior to the Arbitration of Grievance

After issuance of complaint and notice of hearing, the parties agreed that the Agency will furnish to the Union, at least one week prior to the arbitration of the grievance, electronic mail messages and all other documents on which the Agency relied in deciding to rescind an employee’s use of the Agency’s electronic mail system.   The Agency will also post a notice to all employees, signed by the Director of Labor Management Relations for the Agency, stating that the Agency will fulfill its bargaining obligation with respect to responding to requests for information which includes informing the Union in a timely manner if the information does not exist and not destroying or discarding information that has become the subject of a ULP charge before the final disposition of the charge.

Agency Agrees to:  (1) Follow Specific Procedures and Negotiate over the Impact and Implementation of a Plan to Relocate Permanent Duty Stations; (2) in the Future, Provide the Union with Notice and the Opportunity to Bargain over Changes in Conditions of Employment; and (3) Reimburse Unit Employee for Commuting Costs Incurred as a Result of a Change of Duty Station

In a pre-complaint settlement agreement, the parties agreed that the Agency will post information stating that in the future, the Agency will provide the Union with prior notice and the opportunity to bargain over changes in unit employees’ conditions of employment, including changes in unit employees’ permanent duty stations.  Within 10 days of the effective date of the agreement the Agency will provide the Union with a written explanation of the relocation plans and a written offer to negotiate over the impact and implementation of these plans.  Upon the Union’s request, within 30 days of the effective date of the agreement, the Agency agreed to negotiate over the impact and implementation of the decision to relocate permanent duty stations.  The parties agreed that the Agency would pay a unit employee $292.50 for the excess in commuting expenses incurred for a 3-month period after his permanent duty station was changed.

Agency Agrees to:  (1) Negotiate Prior to Requiring Employees to File Financial Disclosure Reports, (2) Advise Employees of a Limitation of the Amount of Financial Investment an Employee May Have in the Area of the Employee’s Primary Responsibility, and (3) Grant Compensatory Time to Those Employees Who Previously Filed These Reports

After issuance of complaint and notice of hearing, the parties agreed that the Agency will send a memorandum to bargaining unit employees notifying them of a settlement agreement which suspends the mandatory collection of certain financial disclosure reports for bargaining unit employees and allows the employees to request the return of previously-filed reports.  The parties ag