FLRA WILL HOLD TWO NATIONAL TRAINING CONFERENCES TO COMMEMORATE ITS 20TH ANNIVERSARY
Vol. 8 No. 1
October 1, 1998 - January 31, 1999
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
- News to Know
- Update on CADR
- Authority Cases
- Court Cases
- FSIP Final Action
- FSIP Settlement Corner
- General Counsel's Advice to Regional Directors
- General Counsel's Settlement Corner
FLRA WILL HOLD TWO NATIONAL TRAINING CONFERENCES TO COMMEMORATE ITS 20TH ANNIVERSARY
News to Know
In 1999 the FLRA commemorates the 20th Anniversary of its founding by holding two national training conferences. The first conference will be in Denver, Colorado on May 4 and 5. The second conference will be in Washington, D.C. on June 14 and 15. Both conferences will offer training on the rights and obligations under the Statute, skills for resolving disputes through interest based problem-solving, and the regulatory initiatives undertaken in the past few years.
Registration materials will be available in mid-March on the FLRA's web site at www.flra.gov.
RESULTS OF FLRA's 1998 CUSTOMER SURVEY
In Fiscal Year 1998, the FLRA surveyed the 4,405 parties who appeared before it in the preceding two fiscal years. The Survey was designed to measure the effectiveness of each of the programs administered by the FLRA, the impact of the FLRA's decisions and the General Counsel's policies and guidance, and customer satisfaction with the FLRA's processes.
In general, the Survey revealed that the FLRA is doing a good job meeting the information needs of its customers and also identified areas where customers would like further information. Respondents gave generally high marks to elements of processing matters before the General Counsel and the Authority. Respondents also affirmed the quality of various categories of FLRA decisions, but indicated concerns regarding timeliness. Finally, respondents indicated that decisions resolving legal issues do not necessarily resolve the underlying problems between the parties.
The Authority and the Office of the General Counsel have formulated future actions to address concerns revealed in the Survey. Information regarding the Survey and future action plans are available on the FLRA's web site at www.flra.gov.
FEDERAL SERVICE IMPASSES PANEL REAPPOINTMENTS AND RESIGNATIONS
On January 27, 1999, President Clinton announced his intention to reappoint Federal Service Impasses Panel (FSIP) members Edward F. Hartfield and Mary E. Jacksteit to second terms. Their terms run through January, 2004.
Panel Member Dolly Gee, whose term expired in January 1999, did not seek reappointment.
Panel Member Gilbert Carrillo, whose term was to expire in January 2002, submitted his resignation to President Clinton effective February 15, 1999.
REALIGNMENT OF THE GEOGRAPHICAL JURISDICTION OF THE REGIONAL OFFICES
Effective January 1, 1999, the regional offices managed by the Office of the General Counsel underwent changes of geographic jurisdiction. Cases arising in Puerto Rico are now handled by the Boston Region; cases arising in Europe and North Carolina will be handled by the Washington Region; and cases arising in Idaho and Nevada will be handled by the San Francisco Region. A jurisdictional map is available at the FLRA's web site at
TRAINING SESSIONS ON NEGOTIABILITY PROCEEDINGS AND INTEREST BASED BARGAINING TO BE HELD IN FOUR LOCATIONS IN MARCH
The FLRA will hold a two part training workshop in four locations across the country in March, 1999. Training at each location will consist of a morning session on the Authority's revised negotiability regulations and an afternoon session in interest based bargaining. The revised negotiability regulations take effect April 1, 1999.
The workshops will be in Boston on March 10; Chicago on March 16; Washington, D.C. on March 18; and Oakland on March 23.
FLRA BEFORE SUPREME COURT ON IG/WEINGARTEN ISSUE
On March 23, 1999, the United States Supreme Court will hear oral arguments in National Aeronautics and Space Administration, Washington, D.C. and
National Aeronautics and Space Administration, Office of the Inspector General v. Federal Labor Relations Authority and American Federation of Government Employees,
AFL-CIO, No. 98-369. The Court will review the Authority's determination 50 FLRA 601 (1995), enforced, 120 F.3d 1208 (11th Cir. 1997), that the Agency committed an unfair labor practice by interfering with a bargaining unit employee's requested union representation during an investigation by an agent of the Office of the Inspector General. At issue is whether such an agent is a "representative of the agency" within the meaning of 5 U.S.C. § 7114(a)(2)(B).
UPDATE ON CADR
The three components of the Federal Labor Relations Authority (FLRA) - the Authority, the Office of General Counsel, and the Federal Service Impasses Panel- have established the cross-component Collaboration and Alternative Dispute Resolution Program (CADR). Each component, as part of the CADR Program, offers collaboration and alternative dispute resolution services in pending unfair labor practice, representation, negotiability and bargaining disputes. The components, as part of the CADR Program, also provide partnership facilitation, training and education activities to assist labor and management in developing constructive approaches to conducting their relationship.
Recently, the FLRA has codified CADR initiatives in two revised regulations. First, as described elsewhere in this Bulletin, on November 30, 1998, the Office of the General Counsel of the FLRA published revised regulations in the Federal Register (63 Fed. Reg. 65638) concerning unfair labor practice proceedings. Among other things, the revised regulations implement the FLRA's agency-wide CADR initiative to assist labor and management parties in developing collaborative relationships and to provide dispute resolution services in unfair labor practice cases pending before the Office of the General Counsel. The revised regulations took effect January 1, 1999.
Second, CADR initiatives were also codified in the new Negotiability Regulations. Part 2424.10 of the regulations identifies for the parties another voluntary option for resolving a Negotiability Appeal. Under the new negotiability procedures CADR representatives are available to assist the parties to reach a resolution to their dispute. Parties interested in those services may direct their questions to the CADR Office at (202) 482-6503, 607 14th St., NW, Washington, D.C. 20424-0001.
The following illustrate of some of the alternative dispute resolution services delivered by the FLRA components as part of the CADR Program:
- The OALJ's voluntary ULP settlement program has received 57 requests for assistance, through January 1999 of the fiscal year. During the same period, including cases pending from FY 98, 60 complaints were settled without litigation, while 9 complaints went to hearing. The successful settlement rate of 87% is slightly higher than our historical average.
- Facilitated discussions in16 negotiability cases. The parties achieved a better understanding of their issues and interests.
- Resolved 462 disputes filed as unfair labor practice charges using collaboration and alternative dispute resolution processes. For example, following the filing of two unfair labor practice charges, ADR services were provided which resulted in the parties' creating pre-decisional involvement processes and resolving the underlying dispute that had given rise to the unfair labor practice charges.
- Delivered 85 facilitation, training and education sessions from October 1998 through January 1999. These sessions included town meetings to discuss issues with representatives of agencies and unions. The facilitation, training and education sessions covered matters such as pre-decisional involvement and evaluation of partnership efforts.
- Trained FLRA staff on the use of ADR techniques in a workshop on the "Facilitating Labor- Management Relationships."
- Provided statutory training to numerous agencies and unions on issues such as dealing with information requests, scope of bargaining, Weingarten issues, formal discussions, etc.
- Provided training and education to assist parties dealing with representation issues arising from agency reorganizations. These included meetings held under section 2422.13(a) of the Authority's regulations, under which all parties affected by representation issues that may be raised in a petition are encouraged to meet before the petition is filed to discuss their interests and narrow and resolve the issues.
- Helped a Union/Management group resolve a potential negotiability dispute involving 207 proposals. The parties also agreed to forego the filing of unfair labor practice charges and withdrew issues presented to arbitration concerning the interpretation of certain contract provisions. As a result of the interest-based negotiation sessions, the parties began the process of mending their relationship by establishing a partnership council and charging that partnership with defined tasks.
- Facilitated regional level discussions between agency and union representatives on the subject of predecisional involvement. The parties were attempting to use the process to deal with various issues relating to the reorganization of agency operations and sought to establish a common understanding among labor and union officials about the meaning of predecisional involvement in order to avoid future conflicts over that issue.
- Conducted a relationship-building session that facilitated the parties' joint labor-management council meeting and mid-term bargaining sessions. As a result, the parties reached agreement on several matters and developed a process for addressing other matters.
- Assisted an agency and a union that were both new to labor-management relations, by providing information on labor law and labor relations to help the parties in their initial collective bargaining negotiations.
- Developed and applied an assessment tool for use in evaluating a nationwide agency-union partnership council.
- Facilitated the renegotiation of the parties' collective bargaining agreement as a follow-up to earlier training and negotiation preparation. Negotiations were completed in three days; previous agreements had taken up to six months to negotiate.
- Continued nationwide efforts assisting one agency's national partnership council's initiative to provide its local facilities with training and facilitation to assist in the development of effective local level partnerships.
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.
- In National Mediation Board and American Federation of Government Employees, 54 FLRA 1474 (1998) (Member Wasserman concurring), the Authority reviewed a Regional Director's (RD) decision dismissing the Union's petition for a representation election on the ground that the proposed unit contained employees who administer a labor relations statute that covers members of unions affiliated with the petitioning union. Employees who administer a labor relations statute are precluded from representation by affiliated unions pursuant to section 7112(c)(2) of the Statute. The Authority adopted the RD's position that because the Union is affiliated with the AFL-CIO, and because other affiliates of the AFL-CIO represent employees covered by the Railway Labor Act (RLA), the Union is precluded from representing employees who administer the RLA. In reaching this conclusion, the Authority construed, for the first time, the statutory phrase "affiliated directly or indirectly," as encompassing two affiliates of the AFL-CIO. According to the Authority, the legislative history of section 7112(c) and the construction of a similar phrase in section 9(b)(3) of the National Labor Relations Act supports this construction of the phrase and is consistent with the Statute's goal of preventing appearances of conflict of interest. The Authority rejected the Union's arguments that its relationship to the AFL-CIO cannot fall within section 7112(c)(2) because the AFL-CIO does not, itself, represent individuals.
However, the Authority found that the RD committed prejudicial procedural error by refusing to evaluate the statutory exclusion of particular employees on the ground that the Union had not formally requested to amend its petition. Finding that nothing in case law or regulation requires such a formal request, the Authority ordered the RD to exclude from the petitioned-for unit employees who fall within the section 7112(c) exclusion, and to make necessary findings with respect to the adequacy of the showing of interest, and the appropriateness of the unit.
Unfair Labor Practice Cases
- In United States Immigration and Naturalization Service, Washington, D.C. and National Border Control Council, American Federation of Government Employees, AFL-CIO, 55 FLRA 69 (1999) (Member Wasserman dissenting in part), the Authority reviewed a Judge's decision finding that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute in implementing a new Air Operations Manual after the Union had requested the assistance of the Federal Service Impasses Panel (the Panel). In remanding the case, the Authority modified the framework for determining when an agency violates section 7116(a)(6) by implementing a change in conditions of employment (thereby refusing to maintain the status quo).
Reviewing the terms of the Statute and its purposes and policies, the Authority stated that preventing the implementation of changes in conditions of employment prior to the competition of bargaining is an objective of the general duty to bargain enforced by section 7116(a)(5). The Authority found that nothing in the express terms of the Statute or in its purposes or policies imposes a separate, implied obligation under section 7116(a)(6) to maintain the status quo. The Authority concluded that, henceforth, the question of whether an agency violates section 7116(a)(6) of the Statute by implementing changes in conditions of employment would be resolved based on whether the agency cooperates with Panel procedures or a Panel decision requiring it to maintain the status quo. The Authority noted that this modification does not make any change in the bargaining obligation of agencies and unions, as the agency's obligation under section 7116(a)(5) to maintain the status quo -- both up to and through impasse resolution procedures -- remains intact. The Authority left to the Panel to determine whether to adopt specific procedures concerning the maintenance of the status quo, or whether to issue such orders under specific instances. Finding that the record before the Authority in this case did not provide a sufficient basis for resolving the complaint under the modified framework, the Authority remanded the complaint to the Judge for a determination of what, if any, further proceedings were necessary.
- In Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, AFL-CIO, 55 FLRA 116 (1999) (Chair Segal concurring), the Authority found that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing a skilled trades program for aircraft mechanics (rivetized workforce and training program) without notifying and providing the Union with the opportunity to bargain over the impact and implementation of the decision. In reaching that conclusion, the Authority also found that the Respondent unilaterally discontinued its career-ladder policy under which aircraft mechanics in the program were entitled to noncompetitive promotions. To remedy the violation, the Authority ordered, among other things, status quo ante relief and retroactive promotions and back pay. As a preliminary matter in its decision, the Authority rejected the Respondent's argument that the Judge was precluded from conducting his own "fact-finding" in the case. Noting that the Authority's Regulations require administrative law judges to inquire fully into relevant and material facts concerning the subject matter of the hearing, the Authority found that the Respondent had not shown that the Judge inquired into irrelevant or immaterial matters, or that the Judge relied on such matters in rendering his decision.
- In National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith, Arkansas, 55 FLRA 63 (1999), the Authority concluded that consistent with Authority precedent, a proposal concerning uniform allowances for National Guard civilian technicians is within the duty to bargain. The Agency had argued that Authority precedent concerning the negotiability of uniform allowance proposals was no longer applicable following amendments of the Technician Act, 32 U.S.C. § 709(b). As a result of these amendments, civilian technicians who receive a uniform allowance under 37 U.S.C. § 417 or 418, may not receive an allowance under 5 U.S.C. § 5901 or 10 U.S.C. § 1593. The Agency contended that proposals concerning uniform allowances are outside the duty to bargain on 3 grounds: (1) because bargaining is contrary to the terms of sections 417 and 418; (2) because the amendments rendered the provision of uniform allowances a military aspect of employment; and (3) because sections 417 and 418 "deal comprehensively" with uniform allowances.
The Authority found that nothing in sections 417 and 418 prohibited bargaining over uniform allowances. Additionally, the Authority held that sections 417 and 418 did not render uniform allowances a military aspect of employment. The Authority explained its precedent has consistently found that proposals concerning uniforms worn during the time when technician duties are performed relates to a civilian aspect of employment. The Authority also found that the comprehensiveness of a statute does not determine whether a proposal is outside the duty to bargain, and that the appropriate inquiry is whether the statute provides the Agency with discretion to agree to the proposal.
- In American Federation of Government Employees, Locals 3807 and 3824 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 55 FLRA 1 (1998), the Authority addressed the negotiability of four proposals submitted by the Union in response to an Agency regulation providing that, except in certain circumstances, compensatory time not taken within 26 pay periods would be forfeited. Prior to the regulation, compensatory time not used within 26 pay periods was converted to overtime compensation.. All four proposals were found within the duty to bargain.
Proposal 1 stated that the proposed change was unacceptable to the Union. Proposal 2 stated that the continuing practice of paying overtime for compensatory time not used within 26 pay periods would be acceptable. The Authority found that Proposals 1 and 2 did not conflict with 5 C.F.R § 550.114(d), because that regulation granted the Agency discretion -- i.e., it did not require the Agency -- to fix a time limit for the use of compensatory time. The Authority also found that there was no compelling need for the Agency regulation. In addition, the Authority found that Proposals 1 and 2 did not affect the Agency's right to determine its budget under section 7106(a)(1) of the Statute, because there was no contention that the proposals prescribed particular programs, operations, or amounts to be included in the Agency's budget, and because the Agency did not establish that the proposals would cause a significant and unavoidable increase in costs that was not offset by compensating benefits. As Proposals 1 and 2 were not contrary to law on any of the bases asserted by the Agency, the Authority found Proposals 1 and 2 to be within the duty to bargain.
Proposal 3 allowed employees to choose between compensatory time and overtime pay as compensation for overtime work. The Authority concluded that 5 C.F.R. § 550.114(c) gives the Agency head discretion to provide for compensatory time rather than overtime payment for certain employees, and that the Agency may exercise its discretion through negotiation to allow individual employees to elect overtime rather than compensatory time. As Proposal 3 was not contrary to 5 C.F.R. § 550.114(c), and as the Agency argued no other grounds, the Authority found Proposal 3 to be within the duty to bargain.
Proposal 4 provided that if legislation is enacted permitting the Agency to grant 1.5 hours of compensatory time for every hour of extra work, then the Agency would institute such a policy. Because the proposal would apply only if legislation consistent with the proposal's wording was signed into law, the Authority concluded that Proposal 4 was not contrary to law.
- In American Federation of Government Employees, Local 2028 and U.S. Department of Veterans Affairs Medical Center, Pittsburgh, Pennsylvania, 54 FLRA 1467 (1998), the Authority denied exceptions to an arbitration award that found "just cause" for an Agency's 3-day suspension of an employee based on the charge of complicity in the unauthorized removal of coffee from the food service storage. In its exceptions, the Union asserted that the arbitrator sustained the grievant's suspension on grounds other than those set forth in the Agency's notice of discipline, and therefore, the grievant was not afforded sufficient notice in violation of 5 U.S.C. § 7503(b). The Authority rejected these claims.
The Authority explained that the requirements of section 7503(b) give an employee against whom disciplinary action is imposed the opportunity to defend against the charge. Examining the record in this case, the Authority concluded that the grievant was clearly on notice that he was facing possible suspension because foodstuffs under his control were removed by another employee outside of his service area. The Authority determined the Arbitrator's factual finding that the grievant had not properly secured and protected items supported sustaining the suspension, because it established the grievant's association with the removal of the coffee. Further, the Authority, in assessing due process rights under section 7503(b), found that Federal employees suspended for 14 days or less are not entitled to post-suspension proceedings, and that such due process rights attach only to predecisional proceedings. The Authority concluded that, in this case, it was not clear whether the Union's exceptions involved a claim that the grievant was denied due process at the predecisional or post-decisional stage. However, the Authority noted that it would reach the same result in either event, because the grievant was provided with sufficient notice to defend against the charge. Thus, the Authority concluded that the Union failed to establish that the grievant was denied due process under section 7503(b).
In General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, 54 FLRA 1582 (1998) (GSA), the Authority set aside an arbitrator's award finding that the Agency's refusal to bargain over the Union's proposal violated the parties' Memorandum of Understanding (MOU), which required the Agency to negotiate over the subjects set forth in section 7106(b)(1). The Arbitrator determined that the subject of the proposal -- contracting out -- concerned the methods and means of performing work within the meaning of section 7106(b)(1), and consequently, the Agency's refusal to bargain over the proposal violated the parties' agreement. Applying the test for determining whether a proposal concerns the methods and means of performing work, the Authority rejected the Arbitrator's determination that proposals about contracting out concern the "methods" or "means" of performing work. The Authority concluded that such proposals "do not relate to the way in which an agency performs its work or the tools or devices that may be used in accomplishing it." Rather, as "such proposals relate to an agency's decision-making process concerning by whom the work is best performed -- either in-house by agency employees or by employees outside of an organization[,]" the Authority concluded that the Arbitrator's finding of a MOU violation was deficient, because the Agency had not refused to bargain over a section 7106(b)(1) matter.
- Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 98-5170 (D.C. Cir. Oct. 6, 1998), seeking review of a district court decision (No. 97-1301) (D.D.C. Apr. 15, 1998). The D.C. Circuit summarily affirmed the district court's dismissal of an appeal of the General Counsel's refusal to issue ULP complaints and release information under the Freedom of Information Act. The district court determined that it lacked jurisdiction over the ULP claims and that the FLRA had properly withheld agency documents under FOIA Exemptions 5, 7(C), and 7(D).
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.
Duration of Caucus Sessions
- Department of Energy, Oak Ridge, Tennessee and Local 268, Office and Professional Employees International Union, AFL-CIO, Case No. 98 FSIP 161 (November 2, 1998), Panel Release No. 414 (Arbitrator's Opinion and Decision). The case concerned negotiations over a ground rule on the duration of caucuses during negotiations for a successor collective bargaining agreement. The Panel designated staff to engage in expedited arbitration by teleconference to resolve the parties' dispute. Under this procedure, the designated Panel representative is required to issue a decision within 2 workdays of the close of the hearing. The Arbitrator issued an Opinion and Decision ordering adoption of the Union's proposal, which establishes a standard of reasonableness for the length of caucus sessions.
Compressed Work Schedule
- Department of Veterans Affairs, Portland Veterans Administration Medical Center, Portland, Oregon and Local 2157, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 145 (December 4, 1998), Panel Release No. 415 (Decision and Order). The parties' impasse involved a Union proposal to establish a compressed work schedule (CWS) of six 12-hour days and one 8-hour day per pay period for nurses on two wards. The sole issue before the Panel was whether the findings on which the Employer based its determination not to establish the proposed CWS were supported by evidence that the schedule would cause an adverse agency impact under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133. The Panel directed the parties to participate in an informal conference with Panel Member Dolly M. Gee. When the parties were unable to resolve their dispute during the course of the informal conference, Ms. Gee reported to the Panel on the status of the dispute, including the parties' final positions and her recommendation for resolving the matter. After considering the record before it, the Panel found that the Employer had not met its statutory burden to show that the proposed CWS is likely to diminish service to the public, reduce productivity, or increase costs, and ordered the parties to negotiate over the Union's proposal.
Employer Rights, Matters for Consultation and Negotiation, Awards, and Negotiated Grievance Procedure Exclusions
- Department of the Air Force, Langley Air Force Base, Langley AFB, Virginia and Local R4-26, National Association of Government Employees, SEIU, AFL-CIO, Case No. 98 FSIP 146 (December 4, 1998), Panel Release No. 415 (Decision and Order). The Panel directed the parties to participate in an informal conference with staff to assist them in resolving a dispute over parts of four articles to be included in a successor agreement. When the parties failed to resolve all but part of one of the disputed issues during the informal conference, the Panel considered their final offers and the representative's recommendations for resolving the impasse. Thereafter, the Panel ordered the parties to adopt the Employer's proposal to include a provision paraphrasing section 7106(b) of the Statute in the "Employer Rights" article. The Panel further ordered that the parties adopt the Union's proposal to delete a section describing the scope of bargaining from an article addressing "Matters Appropriate for Consultation and Negotiation." With respect to an article relating to performance awards, the Panel ordered adoption of compromise language that requires, subject to budgetary constraints, mandatory awards within specified ranges for employees receiving performance ratings of very good or outstanding. To resolve the parties' dispute over exclusions from the negotiated grievance procedure, the Panel ordered adoption of a modified version of the Union's proposal. The modified version ordered excludes terminations of temporary promotions for reasons other than performance or conduct from consideration under the negotiated grievance procedure but does not exclude complaints over granting performance awards.
Overseas Rotation Policy
- Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 162 (December 4, 1998), Panel Release No. 415 (Decision and Order). The Panel directed the parties to participate in an informal conference with staff to assist them in resolving a dispute over the time-frame for the return of employees currently stationed in Canada to positions in the U.S. When the parties failed to resolve the issue during the informal conference, the Panel considered their final offers and the representative's recommendations for resolving the impasse. After considering the full record, the Panel ordered the parties to adopt the following compromise wording: Employees with 10 or more years in Canada can request one 18-month extension and a second 1-year extension of their overseas tour; employee with 5 but less than 10 years can request one 18-month extension; and employees with 3½ to 5 years can request a 1-year extension. Approval of the requests will be granted unless the employee has a disciplinary or performance problem.
Ground Rules for Negotiations
- Department of Justice, U.S. Attorney's Office, District of New Jersey, Newark, New Jersey, and Local 2149, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 168 (December 11, 1998), Panel Release No. 415 (Opinion and Decision). The Panel designated staff to engage in mediation-arbitration by telephone in order to resolve the dispute over three ground rules for successor collective bargaining agreement negotiations. Following the mediation portion of the procedure, the parties remained at an impasse over only one issue addressing tentative agreements reached during bargaining. In his decision, the Arbitrator ordered adoption of the Union's proposal that the parties initial and date tentative agreements on an article-by-article basis, and reopen those agreements only by mutual consent.
- Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee and Local 259, National Federation of Federal Employees, Case No. 98 FSIP 159 (January 22, 1999), Panel Release No. 416 (Decision and Order). In this dispute arising from local bargaining over an Agency-wide "no smoking" policy, the Panel issued an Order to Show Cause why wording previously adopted by the Panel in similar circumstances should not also be mandated to settle the parties' impasse. Upon consideration of the parties' responses to that Order, the Panel determined that the record was not sufficient and directed the parties to submit additional statements and documentary information. After considering the parties' responses to the Order, final offers, and additional submissions, the Panel directed the parties to adopt the wording of its Order with respect to all areas except for the Administration Building and on vessels. Essentially, smoking would be prohibited indoors and limited to Employer-designated outdoor smoking areas; however, the status quo would be maintained with respect to smoking in an existing indoor smoking room in the Administration Building and on the decks of vessels except in areas posted as "no smoking."
Noise Abatement for Computer Printers
- Department of the Treasury, Internal Revenue Service, Brooklyn District Office, Brooklyn, New York and Chapter 53, National Treasury Employees Union, Case No. 98 FSIP 121 (January 28, 1999), Panel Release No. 416 (Decision and Order). The Panel determined that the impasse, which arose from bargaining over noise abatement measures for computer printers, should be resolved on the basis of a single written submission from the parties. After considering the parties' submissions, the Panel determined that the parties should adopt a modified version of the Union's proposal. The provision adopted requires that if the assistance of the General Services Administration (GSA) is needed to implement the parties' plan to erect acoustical screens or relocate printers, the Employer will make reasonable efforts to secure GSA's cooperation within 45 calendar days.
Time-frame for Requesting Annual Leave
- Department of the Army, U.S. Army Signal Center, Fort Gordon, Fort Gordon, Georgia and Local 2017, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 163 (January 28, 1999), Panel Release No. 416 (Decision and Order). The Panel directed the parties to participate in an informal conference with Panel staff to assist them in resolving a dispute over five issues that arose during negotiations over a successor agreement. When the parties failed to resolve one of the five issues in dispute during the informal conference, the Panel considered their final offers and the staff recommendations for resolving the impasse over the remaining issue. Thereafter, the Panel ordered the parties to adopt the Union's proposal, which will maintain the status quo and require employees to submit non-emergency leave requests "normally in advance."
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 October 1, 1998 through January 31, 1999, Panel Members were successful in obtaining complete settlements in the following cases.
- In U.S. Army Engineer, Waterways Experiment Station, Vicksburg, Mississippi and Local 3310, AFGE, AFL-CIO, Case Nos. 99 FSIP 1 and 2 (closed December 18, 1998), the parties separately filed requests for assistance in a dispute that concerned 23 issues arising from negotiations over the Science and Technology Laboratory Personnel Management Demonstration Project Plan. The Panel directed that Panel Member Bonnie Prouty Castrey conduct an informal conference with the parties to resolve the issues at impasse. The parties reached voluntary agreements on all the issues.
- In Department of Health and Human Services, Public Health Service, Indian Health Service, Navajo Area, Window Rock, Arizona and Navajo Nation Health Care Employees, Local 1376, Laborers' International Union of North America, AFL-CIO, Case No. 99 FSIP 6, (closed January 26, 1999), the Union filed a request for assistance in resolving a variety of issues that arose in negotiations over a collective bargaining agreement. During a mediation-arbitration conducted by Panel Chair Betty Bolden, they reached a voluntary settlement on all the disputed items.
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.
THE RELATIONSHIP BETWEEN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND EQUAL EMPLOYMENT OPPORTUNITY MATTERS
Regional Directors are frequently required to make decisions on the merits of unfair labor charges where the subject matter of the dispute involves the EEO process. This memorandum serves as guidance to the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges where there are EEO implications. It also is intended to assist parties in improving their labor-management relationship by avoiding litigation and facilitating collective bargaining.
The Guidance describes how rights and obligations under the Statute are applicable to EEO matters and processing EEO complaints, and where appropriate, suggests strategies to avoid unfair labor practice and contract disputes from arising in the context of processing of an EEO complaint. In particular, the Guidance discusses that many EEO matters in the Federal service are within the scope of bargaining under the Statute, noting particularly alternative dispute resolution (ADR) programs and EEO case processing procedures. The Guidance also explores the duty to bargain over changes in conditions of employment that are made as a result of terms contained in an EEO settlement agreement, identifies the situations where a union has an institutional right to be represented at meetings where EEO complaints are the topic of discussion, and explores a union's right to EEO-related information under section 7114(b)(4) of the Statute, the relationship between protected statutory activity and processing EEO complaints, and the responsibilities that the Statute imposes upon an exclusive representative when representing an employee as the union in an EEO complaint and when otherwise representing the bargaining unit in EEO matters. To assist the parties in recognizing these rights and obligations and their application, the Guidance includes a chart summarizing the statutory rights covered by this Guidance and their application to EEO complaints and other EEO matters. Copies of this Guidance Memorandum may be downloaded from the FLRA's web site at: www.flra.gov.
SECTION 7111(f)(1) AND WHETHER A LABOR ORGANIZATION MAY BE SUBJECT TO CORRUPT INFLUENCES
The advice in this case follows the advice given in a case summarized in Vol. 7, No. 2 of the FLRA Bulletin concerning processing § 7111(f) claims of corrupt influences. In the previous advice, the General Counsel discussed two Authority decisions which concluded that there is a presumption that a labor organization is free from corrupt and anti-democratic influences if the union is subject to governing requirements that meet the specified standards in section 7120(a)(1) through (a)(4) of the Statute. When a labor organization files a petition, its signature certifies that it has submitted to the Department of Labor (DOL) and to the activity/agency in the case, in compliance with section 7111(e), a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives. This creates a rebuttable presumption that the labor organization is free from corrupt influences.
In this case, the Union filed a petition and a majority of the votes in the ensuing election favored the Union as the exclusive representative. No party challenged the status of the Union and there were no allegations that the Union was subject to corrupt influences. After the election, but before the certification of the Union as the exclusive representative, the Region learned that the Union and its President had been named defendants in a complaint brought by the DOL in Federal district court alleging violations of the Employee Retirement Income and Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., as amended. In responding to the Region's Order to Show Cause why the Region should not suspend the issuance of the Certification of Representative pending completion of court proceedings, the Union acknowledged that it is a defendant in the proceeding brought by the DOL but that DOL's unproven allegations do not establish that the Union is subject to "corrupt influences."
The General Counsel noted that the Authority has not comprehensively defined what constitutes "corrupt influences" within the meaning of section 7111(f)(1) nor does the legislative history of section 7111(f)(1) or 7120 define the term. Thus, the General Counsel applied the plain and ordinary definition of a "corrupt influence," and concluded that if true, the nature and scope of the alleged ERISA violations engaged in by the Union and its President would fit within the definition of a "corrupt influence." In this regard, the DOL has alleged, among other things, that the defendants have embarked on an illegal money-making scheme by setting up and operating benefit plans to their personal benefit in violation of ERISA requirements. The DOL maintains that the Union is not legitimate and that the Union President established it as a front to assist in the collection of monies from the Trusts. In addition, the Judge presiding over the district court case has found that the DOL has made a preliminary showing of merit to its claims and has issued a preliminary injunction. The General Counsel also noted that several of the defendant trustees are the targets of a possible criminal investigation. Under these circumstances which involve serious, substantial and credible claims of corrupt conduct, the General Counsel concluded that reasonable cause has been established to rebut the presumption of freedom from corrupt influences. Further, the Union has not presented any evidence or argument to establish that it is, in fact, free from corrupt influences. Thus, based on the facts of the case, particularly the imposition of a preliminary injunction, the General Counsel directed the Region not to certify the Union and, absent withdrawal, to dismiss the petition.
THE APPLICATION OF RIGHTS UNDER THE STATUTE TO TITLE 38 EMPLOYEES AT THE DEPARTMENT OF VETERANS AFFAIRS (DVA)
Guidance was issued to provide Regional Directors containing a decisional analysis to follow in processing ULP charges filed by professional employees employed by the Department of Veterans Affairs (DVA) who are governed by Title 38 of the U.S. Code and who also seek to exercise rights under the Statute. The decisional analysis, based on an examination of relevant Authority and U.S. Circuit Court decisions, outlines the steps to determine whether a right otherwise encompassed by the Statute is superseded by a condition of employment established pursuant to the Title 38 statutory scheme.
Summary of Applicable Statutory Scheme
The pertinent provisions Title 38 are set forth at sections 7401, 7421, 7422 and 7403. Under section 7401 of Title 38, the DVA Secretary has authority to appoint personnel--hybrid (e.g., licensed practical nurses, other therapists) and non-hybrid employees (e.g., doctors, nurses)--necessary for the professional medical care of veterans. Section 7421 of the DVA Statute grants the DVA Secretary exclusive discretion to establish regulations relating to the working conditions of certain professional personnel without regard to the provisions of Title 5. In 1991, Congress amended the DVA Statute to give certain collective bargaining rights to DVA employees in section 7422, subject to three exceptions set forth at subsections (b)-(d). In relevant part, subsection (b) states that such collective bargaining may not cover matters relating to (1) professional conduct or competence; (2) peer review; or (3) employee compensation. Further, under subsection (d), the DVA Secretary decides whether an issue concerns one of these matters. Section 7403(f)(3) grants DVA hybrid employees rights under Title 5 concerning adverse actions, disciplinary actions, and grievance procedures.
- Is there a DVA regulation in existence which purports to address the right which is the subject of the ULP charge?
- If a regulation exists, was it prescribed pursuant to the DVA Secretary's section 7421(a) authority?
- If a properly issued regulation exists, does the regulation conflict with the exercise of the statutory right at issue?
- If a properly issued regulation exists, has the Secretary made a section 7422(d) determination that the issue which is the subject of the ULP charge concerns matters or questions arising out of one of the three matters under section 7422(b)?
- When can the Title 38 defense be raised?
In the General Counsel's view, a statutory right will only be overridden if, in fact, a DVA regulation governs the matter in dispute. Absent a regulation, the Region finds that the DVA Secretary has not exercised the authority under section 7421 and the section 7422(d) preclusion is therefore inapplicable. During an investigation of a charge involving Title 38 employees, the Regions request that the charged party produce any such regulation.
Only if a regulation is issued under the DVA Secretary's authority under section 7421 will the Authority's jurisdiction be precluded. Therefore, when a charged party alleges that a DVA regulation bars the exercise of a statutory right under section 7422(d), the Region requests evidence establishing that the regulation was issued pursuant to the authority of the Secretary under section 7421.
In the General Counsel's view, relying upon case precedent (citations below), a determination must be made as to whether the regulation asserted to bar the existence of a statutory right indeed conflicts with that right. When the charged party produces a regulation issued pursuant to section 7421 authority and which is asserted to cover section 7422(b) matters, the Regions request the charged party to explain why the statutory right is inconsistent with the regulation.
Even if a regulation has been prescribed under the Secretary's section 7421 authority and it conflicts with a statutory right which is the subject of a ULP charge, the FLRA is not barred from asserting jurisdiction unless the Secretary or his designee has asserted under section 7422(d) that the matter concerns a section 7422(b) matter. Accordingly, when the charged party produces a regulation issued pursuant to section 7421 authority, explains why the statutory right is inconsistent with the regulation, and asserts that the regulation covers a section 7422(b) matter, the Regions request the charged party to produce evidence establishing that a section 7422(d) determination has been made.
There is no restriction when a Title 38 defense can be raised although communication of such a defense to the charging party prior to the filing of a charge is preferable.
In the General Counsel's view, absent the applicability of section 7403(f)(3), hybrid employees are subject to the same Title 38 restriction as non-hybrid employees and the decisional analysis discussed above is the same.
Relevant Case Law concerning the rights of Title 38 employees under the Statute
Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, D.C.,
53 FLRA 822 (1997)
Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 84 (1995), affirmed on reconsideration, 51 FLRA 1741 (1996)
Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 49 FLRA 71 (1994), affirmed sub nom. National Federation of Federal Employees, 73 F.3d 390 (D.C. Cir. 1996)
Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993)
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.
Agency Posts Notice Agreeing to Comply with Arbitration Award Making an Employee Whole and to Pay Charging Party's Attorney Fees
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice agreeing to comply with an arbitrator's award making an employee whole and to fully comply with future arbitration awards. In addition, among other things, the Agency agreed to: (1) restore to the employee the cost of life insurance premiums taken from pay during a certain period of time; (2) pay the employee interest on backpay awarded by an arbitrator; (3) restore sick leave balance for time not credited; (4) restore certain annual leave balance; (5) not strike from a list of arbitrators to preside at an arbitration of an employee's suspension; (6) rescind all performance evaluation reports prepared by a certain supervisor; (7) not allow a certain supervisor any supervisory control over a certain employee; (8) not rely on the terms of the settlement agreement as a waiver of any right the employee may have in any subsequent proceeding contesting the placement of a team leader or supervisor in the chain of command or in any subsequent proceeding concerning future assignments or personnel actions taken against the employee; (9) make all contributions to an employees's Thrift Savings Plan for a determined period of time; and (10) pay the Charging Party's attorney fees of $2,600
Agency Agrees to Let Employees Resume Alternative Work Schedule (AWS), to Provide Notice of Intent to Eliminate AWS and to Provide the Union with an Opportunity to Bargain over the Agency's Elimination of AWS
After issuance of complaint and notice of hearing, the parties agreed that the Agency would allow unit employees to choose to resume an AWS. If the Agency should desire to eliminate AWS for those employees who exercise their option to resume AWS, the Agency will provide the Union with notice of that decision and will commence bargaining within five days of the Union's receipt of the notice.
Union Agrees to Post Notice Agreeing not to Use Membership as Criteria in Recommending a Bargaining Unit Employee for a Non-competitive Promotion
In a post-complaint settlement agreement, the parties agreed that the Union would post a notice to all employees stating that it would not use membership as criteria in recommending a bargaining unit employee for a non-competitive promotion to a paralegal specialist position. The Union also agreed to represent the interests of all employees in the unit without discrimination and without regard to labor organization status or membership.
Agency Agrees to Provide the Union with Forms, Logs, Position Descriptions, and Titles, and to Respond in a Timely Manner to Requests for Data Made Pursuant to the Statute
In a settlement agreement after issuance of complaint and notice of hearing, the parties agreed that the Agency would provide the Union with information, including certain forms, logs and position descriptions and titles to which it is entitled under the Statute. The Agency also agreed not to refuse to respond in a timely manner to requests for data made pursuant to the Statute.
Agency Agrees to Restore Break Room and to Bargain Over Decision to Eliminate Its Use
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice to all employees stating that it would not unilaterally change conditions of employment by eliminating a break room used by employees without first affording the Union an opportunity to negotiate with respect to the decision to eliminate the break room. The Agency also agreed, to the extent that it has not already been accomplished, to restore the break room for use by the employees unless the Union agrees to use an alternative room.
Agency Agrees to Compensate Employee for 12 Hours of Absent Without Leave (AWOL), to Remove All References to AWOL Charges from the Time and Attendance Records, to Remove from the Employee's Personnel File a Charge in a Letter of Admonishment 1 Year from the Date of its Issuance, and to Meet with the Union to Clarify Official Time Procedures
In a pre-complaint settlement agreement, the parties agreed that within 30 days after the signing of the agreement, they would clarify the procedures to observe in making requests for official time and reduce their understanding to writing. The Agency also agreed to remove from an employee's Official Personnel File all references to AWOL charges and to correct the employee's time and attendance records. Specifically, the Agency will sanitize two letters of admonishment to delete references to AWOL charges. The Agency agreed to remove the remaining charge in the letters of admonishment one year after their dates of issuance. Finally, the Agency will compensate the employee for 12 hours for which she was charged AWOL.
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:
Agency Agrees Not to Fill Positions While a Negotiation Impasse over Multiskilling Is Pending Resolution Before the Federal Service Impasses Panel (FSIP)
In a post-complaint settlement agreement, the Agency agreed to post a notice to all employees stating that it will not unilaterally fill multiskilled positions with bargaining unit employees represented by the Union while a negotiation impasse over multiskilling is pending resolution before the FSIP. The Agency further agreed to reconsider all selections of bargaining unit employees for multiskilled positions between certain dates to ensure that all selections were consistent with a FSIP Decision and Order and to select a unit employee who was not selected for the multiskilled position and to make that employee whole for any losses incurred if it is determined that the person would have been selected had the provisions of FSIP's Order been applied correctly.
Agency Agrees to Send Letters to Criminal Investigation Division and to the Union Concerning Union Representational Rights under Section 7114(a)(2)(B)
In a post-complaint settlement agreement, the Agency agreed to send a letter to the Agency's Criminal Investigation Division (CID) stating that bargaining unit employees have a right to union representation under section 7114(a)(2)(B). If requested by a bargaining unit employee who reasonably believes that discipline may occur, either before or during the questioning, the Agency stated that the CID agent will cease questioning until such time as the representative is present. In a separate letter to the Union, the Agency acknowledged that during a criminal investigation involving a bargaining unit employee a CID agent wrongfully denied the employee's request for representation and continued questioning the employee. The Agency assured the Union that in the future CID agents will comply with section 7114(a)(2)(B) and the Statute as a whole when conducting an investigation.
|Erratum:||On page 13 of Vol. 7 No. 3 of the FLRA Bulletin, right column, substitute the following sentence as the last full sentence of the column: "Absent a contractual limitation on the application of the covered by doctrine, the matter in dispute in this case would have been ‘covered by' the contract and there would not have been a statutory duty to bargain over the change at issue."|