FLRA ISSUES 20 YEAR RETROSPECTIVE TO COMMEMORATE ANNIVERSARY YEAR
Vol. 8 No. 2
February 1, 1999 - June 30, 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 ISSUES 20 YEAR
RETROSPECTIVE TO COMMEMORATE
News to Know
The FLRA recently published a 20 Year Retrospective as part of a series of commemorative events in its anniversary year.
"The FLRA 20 Years: 1979-1999" is an overview of the FLRA's growth and development since its creation by the Civil Service Reform Act of 1978. The publication traces the FLRA's evolution over the years from an agency emphasizing interpreting and enforcing the Federal Service Labor-Management Relations Statute through the practice of labor law, to an agency that also emphasizes the practice of constructive labor relations though the use of collaboration and alternative dispute resolution. Also included are rosters of the FLRA's current leadership and all past presidential appointees.
The Retrospective notes three recent achievements of the FLRA.
- The FLRA has rewritten its regulations governing representation, negotiability, impasse, and unfair labor practice (ULP) proceedings. The revised regulations encourage the resolution of disputes through collaboration and alternative dispute resolution, now a cornerstone of FLRA practice.
- An emphasis on quality has lead to increasing deference from appellate courts. Decisions issued during the Authority's first 16 years were favorably reviewed on appeal approximately 52% of the time. In the last three years, favorable judicial review has increased to over 84% of the decisions reviewed. The Supreme Court agreed with two Authority decisions reviewed this term. (See related stories, this page and page 4.)
- The FLRA's achievements have been recognized by two recent awards. Vice President Gore awarded the FLRA a Hammer Award for the reinvented ULP litigation process. In March, 1999 the FLRA was named as a semi-finalist for an Innovations in American Government Award. (See related stories, page 3.)
The 20th Anniversary Retrospective is available on the FLRA's web site at www.flra.gov or by request to the Authority at (202) 482-6500.
500 PEOPLE ATTEND THE FLRA'S 20TH ANNIVERSARY NATIONAL TRAINING CONFERENCES
Nearly five hundred people, most from unions and agencies, attended the FLRA's national training conferences. The first conference was held in Denver, Colorado on May 4 and 5, 1999. The second conference was held in Washington, D.C. on June 14 and 15, 1999.
Both conferences featured training on the FLRA's revised Negotiability, Representation, and ULP regulations. In addition, participants had opportunities to meet with the Federal Service Impasses Panel and the Regional Directors of the FLRA's seven regional offices. In Washington D.C. participants heard from NTEU's retiring President Robert M. Tobias, and the Honorable Abner Mikva, former White House Counsel, who had served as a member of the House of Representatives at the time the FLRA's enabling legislation was passed, and, as a judge on the DC Circuit, had reviewed FLRA decisions. Featured speakers in Denver, Colorado included Joel Cutcher-Gershenfeld, a noted labor relations academic, and Lisa Mallory of Vice President Gore's National Partnership for Reinventing Government.
Conference participants received copies of the FLRA's commemorative publication, "The FLRA 20 Years: 1979-1999." Conference proceedings are available on the FLRA's web site at www.flra.gov.
SUPREME COURT FAVORABLY REVIEWS AUTHORITY DECISIONS ON INSPECTOR GENERAL INVESTIGATIONS AND UNION INITIATED MIDTERM BARGAINING
Resolving the heavily litigated question of union participation in inspector general investigations, the Supreme Court affirmed the Authority's (50 FLRA 601 (1995)) and the Eleventh Circuit's determinations that an Office of Inspector General investigator is a "representative of the agency" when examining a bargaining unit employee who reasonably fears that discipline might result from the examination. National Aeronautics and Space Admin., et al. v. FLRA, No. 98-369 (June 17,1999), aff'g FLRA v. National Aeronautics and Space Admin., et al., 120 F.3d 1208 (11th Cir. 1997). Thus, the employee has a right to union representation in an examination if he or she requests. Relying upon "ordinary tools of statutory construction," the Court held that the Authority's conclusion was consistent with section 7114(a)(2)(B) of the Statute, noting in this regard that "to the extent the statute and congressional intent are unclear, we may rely on the Authority's reasonable judgment." In addition, the Court rejected the argument that the Inspector General Act precludes treating Inspector General personnel as representatives of their agencies, holding that "a careful review of the relevant [Inspector General Act] provisions plainly favors the Authority's position." As a result, the Court affirmed the Eleventh Circuit's determination which had granted the Authority's application for enforcement.
Regarding the issue of midterm bargaining, the Supreme Court concluded that the Authority's interpretation of the Statute is entitled to deference and vacated the Fourth Circuit's decision that an agency is not obligated to bargain over a proposal, offered during term negotiations, that would require it to engage in union-initiated midterm bargaining. National Federation of Federal Employees, Local 1309 & FLRA v. Department of the Interior, 199 S.Ct. 1003 (1999), reviewing and vacating U.S. Dep't of the Interior v. FLRA, 132 F.3d 157 (4th Cir. 1997). The Court rejected the Fourth Circuit's premise that the Statute imposes no obligation on Federal agencies to bargain midterm and held that the Statute was "sufficiently ambiguous" as to require deference to the Authority's interpretation. The Court stated that it was up to the Authority to determine "whether, when, where, and what sort of midterm bargaining is required." The Court remanded the case to the Fourth Circuit, which has, in turn, remanded the case to the Authority for proceedings consistent with the opinion of the Supreme Court. (See related story, page 4.)
With the issuance of these opinions, the Supreme Court has decided the meaning of the Statute in a total of seven cases since the Statute was enacted in 1978. In each case, the Authority's ruling was challenged by an agency. Including the two decisions this term, the Authority's interpretation of the Statute has been affirmed in three of the seven cases decided by the Supreme Court.
FLRA'S MAINSTREAMING COLLABORATIVE DISPUTE RESOLUTION INITIATIVE RECOGNIZED AS ORIGINAL AND EFFECTIVE
The Federal Labor Relations Authority was one of 98 semifinalists in the nationwide Innovations in American Government Awards competition. This prestigious annual award, sponsored by the Ford Foundation, is administered by Harvard University's John F. Kennedy School of Government in partnership with the Council for Excellence in Government. As a semifinalist, the FLRA joined a select group of just 22 other Federal agencies from across the country, drawn from a pool of more than 1,600 Federal, state, local, and tribal government applicants.
The FLRA's innovation – Mainstreaming Collaborative Dispute Resolution (or MDR) – encourages and assists disputing parties to find their own solution to the problems that sparked their legal claims. MDR mainstreams what is popularly called "alternative dispute resolution" (ADR), and emphasizes interest-based problem solving as the ADR process best suited to achieving constructive labor relations. Parties with cases before the FLRA are helped at each step of case processing to resolve their own disputes, and avoid the delays and costs connected with traditional adjudication. The program empowers labor and management to be architects of meaningful solutions to their conflicts, and strengthen their relationship. It frees adjudication resources to focus on cases that require issuance of decisions.
Commenting on the FLRA's achievement, Chair Phyllis N. Segal noted, "The FLRA has transformed the concept of ADR from an ‘alternative – off to the side,' into principles widely incorporated in our case processing, adjudication, training, and the recent overhaul of our regulations. We are gratified that the FLRA's program has been recognized in this national competition as an 'original and effective' initiative."
FLRA ULP REINVENTION TEAM RECEIVES HAMMER AWARD AT WHITE HOUSE CEREMONY
The FLRA ULP Reinvention team received Vice President Al Gore's Government Reinvention award for reinventing the Unfair Labor Practice (ULP) litigation process at a White House Conference Center ceremony on June 7, 1999. The award, an actual hammer in decorative ribbon, was presented to the FLRA by Morley Winograd, Director of the National Partnership for Reinventing Government. The reinvented ULP process is the product of thirty FLRA staff who worked in three cross-component teams that analyzed the previous regulations, wrote new regulations and procedures, and trained customers on them. The revised ULP process requires litigating parties -- for the first time in the field of Federal labor law -- to exchange information through mandatory pre-hearing conferences and discovery. The revised ULP process also encourages parties to resolve their differences using collaboration and alternative dispute resolution. Since the new ULP litigation regulations took effect in October 1997, the number of expensive, last minute settlements has fallen dramatically -- from 15% of all settlements in 1997 to just 3% of all settlements in Fiscal Year 1998. Where settlements are not achieved, the reinvented ULP process expedites litigation by narrowing and sharpening the issues in dispute.
FLRA PARTNERSHIP SELECTED AS A "BEST PRACTICE"
The Association of Government Accountants recently selected the FLRA as a "best practice" in partnerships in recognition of the FLRA Partnership Council's work in developing and implementing an agency-wide performance management program.
The FLRA Partnership Council, comprised of representatives from FLRA management and the Union of Authority Employees, developed and implemented a performance management plan designed to improve individual and organizational effectiveness by integrating planning, appraising, monitoring, developing and rewarding individual and organizational performance. Specifically, the agency performance management plan links the FLRA Strategic Plan, organizational action plans and individual performance plans -- as envisioned by the Government Performance and Results Act.
Since 1995, the FLRA and the UAE have worked collaboratively to address matters relating to the FLRA operations including strategic planning, budget contingencies and reinvention work groups. This cooperative labor-management relationship empowers employees by increasing employee representation in the decision-making process. The Partnership Council's contributions include establishing such employee programs such as alternative work schedules, developing core competencies, and the FLRA performance management program.
AUTHORITY INVITED INTERESTED PERSONS TO FILE AMICUS BRIEFS ON MIDTERM BARGAINING ISSUES
The Authority invited interested persons to file amicus briefs in pending unfair labor practice proceeding. The case, Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, VA and National Federation of Federal Employees, Local 1309, WA-CA-30451, requires the Authority to determine whether and under what circumstances agencies are obligated to engage in union-initiated midterm bargaining.
Procedurally, the case is before the Authority on remand from the United States Supreme Court, NFFE and FLRA v. Department of Interior, 119 S. Ct. 1003 (1999), and, in turn, from the United States Court of Appeals for the Fourth Circuit, U.S. Department of Interior v. FLRA and NFFE, Nos. 96-2855 and 97-1135 (4th Cir., April 23, 1999). (See related story, page 3.) In its remand decision that upheld the Authority's interpretation that the Statute does not prohibit midterm bargaining, the Supreme Court determined that the Authority should "make the workplace-related empirical judgments" that will balance "the policy-related considerations" concerning the merits and drawbacks of union-initiated midterm bargaining. 119 S.Ct. at 1009. Interested persons were asked to identify the policy-related considerations and empirical data that the Authority should balance in deciding this issue.
UNFAIR LABOR PRACTICE INVESTIGATORY TRAINING CONFERENCE MESA, ARIZONA
In May 1999, the Office of the General Counsel held an all-employee Unfair Labor Practice (ULP) Investigatory Training Conference in Mesa, Arizona. The conference focused on developing OGC employees' investigatory skills and introducing employees to additional investigatory methods. The draft ULP Manual issued by the OGC in December 1998 served as the basic text for the training conference, and the substantive courses were taught by the OGC's own Regional Directors, Regional Attorneys/Deputy Regional Directors and other senior staff. The methods of instruction included traditional instructor presentations and hypothetical problems, as well as demonstrations by instructors, interactive role playing by conference participants, and round table discussions with the Regional Directors. Several elective courses were offered on topics such as Speaking with Confidence, Time Management, Internet Research and a Freedom of Information Act and Privacy Act Overview. The draft ULP Manual will be finalized and available to the public by the end of the summer.
GENERAL COUNSEL JOE SWERDZEWSKI AND OGC STAFF: KEY PLAYERS AT THE FPMI CONFERENCE
General Counsel Joe Swerdzewski recently addressed attendees of FPMI's 10th Annual Labor and Employee Relations Conference in Orlando, Florida. The General Counsel's presentation on The Future of Labor-Management Relations in the New Millennium included a discussion of the changing face of the Federal government, the future of Executive Order 12871, union raids and friendly takeovers, the regionalization of human resources, contractors in the workplace, and union involvement in EEO matters.
In addition to the General Counsel's presentation, several other members of the OGC staff served as instructors for the conference workshops. David Feder, Deputy General Counsel, made a presentation on the scope of bargaining and the General Counsel's new investigatory regulations; Brenda Robinson, Regional Director, Atlanta, reviewed representation issues related to reorganizations; Steve Svartz, Assistant General Counsel for Legal Services, presented an FLRA case law update; and Linda Norwood, Regional Attorney, Atlanta, participated in a mock ULP trial over which the FLRA's Chief Administrative Law Judge Sandy Chaitovitz presided.
UPDATE ON CADR
The Federal Labor Relations Authority took a major step toward institutionalizing the cross-component Collaboration and Alternative Dispute Resolution Program (CADR) in Federal sector labor-management relations by issuing revised regulations concerning unfair labor practice and negotiability proceedings. The new regulations establish procedures for providing collaboration and alternative dispute resolution services (which are now routinely offered) in pending unfair labor practice and negotiability cases. The new regulations codify the latest changes in FLRA's case processing procedures and implement the FLRA's strategic goal to make ADR services available at every stage of the FLRA's processes and allow parties the opportunity to informally resolve labor-management disputes. As part of this strategic goal, the FLRA's three components provide partnership facilitation, training and education activities to assist labor and management in developing constructive approaches to conducting their relationship. Parties interested in those services may direct their questions about CADR to the CADR Office at (202) 482-6503, 607 14th St., NW, Washington, D.C. 20424.
The following illustrate some of the alternative dispute resolution services delivered by the FLRA components as part of the CADR Program:
Over 542 disputes filed as unfair labor practice charges were resolved using collaboration and alternative dispute resolution processes and techniques. Issues were also resolved in 20 pending representation cases.
The OALJ's Voluntary ULP settlement program received 75 requests for assistance. Of the pending caseload, 51 complaints were settled without litigation, while 14 complaints went to hearing.
One case resolved a challenged change in past practice, which resulted in the promotion of several junior employees instead of more senior and equally qualified employees. The parties agreed that the junior employees would retain their promotions and an equal number of more senior employees would be promoted as well.
Facilitated discussions of issues pending in a negotiability case involving security systems within an agency. The discussions resulted in the parties developing a process for dealing with changes that could have serious impacts on employees. The process agreed to allowed the agency to make necessary decisions concerning the security of its facilities and its personnel.
Provided training on the new negotiability regulations in Washington, DC; Boston, MA; Chicago, IL; Oakland, CA; and Baltimore, MD. The training familiarized labor and management representatives with processes, procedures and forms under these new regulations.
Provided training at a regional conference of union representatives. The training was designed to provide the union representatives, including many new stewards, with the terms, Statute, and procedures for processing cases before each component of the FLRA.
Statutory training was provided to over 860 participants from numerous agencies and unions, individually and jointly, on issues such as pre- decisional involvement, scope of bargaining and the duty to bargain, Weingarten issues, etc.
Training was provided to assist parties dealing with representation issues arising from agency reorganizations. These included meetings held under section 2422.13(a) of the FLRA 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. One such meeting involved a large reorganization within the Department of the Navy.
Training on Interest-Based Negotiation and Team Building helped a union/management group prepare for contract negotiations. As a result of the interest-based negotiation and team building sessions, the parties began the process of establishing a collaborative labor-management relationship. The parties committed to applying what they had learned during contract negotiations scheduled to start the following week.
The General Counsel held seven town meetings, in El Paso, Dallas, Phoenix, Portland, Oakland, Denver and St. Louis, to discuss issues with representatives of agencies and unions, on such matters as decisional involvement and evaluation of partnership efforts.
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 U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA No. 58 (1999), the Authority granted the Union's petition for review of a Regional Director's (RD) decision dismissing the Union's petition for consolidation, and reversed that decision. The Authority determined that the decision below had not properly evaluated the community of interest criteria under section 7112(a). The Authority found that the individual bargaining units that the Union intended to consolidate with a large pre-existing consolidated unit had a sufficient degree of commonality and integration of mission and function to find that the proposed consolidated unit was appropriate. Additionally, the Authority found that employees in the proposed unit worked under sufficiently similar personnel and labor relations policies to support consolidation.
The Authority also found that the RD had erred by determining that the proposed unit was not appropriate because it would not consolidate all of the petitioner's units. In this connection, the Authority determined that a purpose of section 7112(d) of the Statute is to facilitate the consolidation of small units into comprehensive units, and that because the proposed unit would reduce unit fragmentation, consolidation would promote effective dealings and efficient agency operations even though all possible units were not included. Accordingly, the Authority reversed the RD's decision and granted the Union's petition to consolidate.
Unfair Labor Practice Cases
In U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 55 FLRA No. 46 (1999) (Chair Segal concurring), the Authority affirmed a Judge's decision finding that the Respondent had violated section 7116(a)(1) and (8) of the Statute by failing to comply with a final and binding arbitration award. The arbitration award required the Respondent to acquire, from the City and County of Denver, 30 indoor parking spaces for bargaining unit employees. Because the Respondent had failed to timely file exceptions to the award, the Authority held that the award was final and binding, and that the Respondent was required to comply with its terms. In so holding, the Authority rejected the Respondent's arguments that there was no statutory authorization to reimburse employees for parking, and that the doctrine of sovereign immunity barred payment of money damages in this case.
The Authority modified the Judge's recommended remedy to permit the Respondent to accept an alternative offer from the City and County of Denver that would also accomplish compliance with the award. Specifically, the Authority ordered the Respondent to acquire 30 indoor parking spaces from the City and County of Denver or, if that was not possible, to acquire more than 30 spaces, or spaces in a different but substantially equivalent location to that ordered by the arbitrator.
In U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64 (1999) (Member Cabaniss dissenting), the Authority reviewed a Judge's decision that the Agency failed to comply with section 7114(a)(2)(B) of the Statute by denying employees' requests to have a Union representative present during examinations in connection with an investigation. The Statute requires that employees be allowed such representation when they reasonably believe that the examinations may result in disciplinary action and if they request such representation.
There were no exceptions to the Judge's finding that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to comply with the requests of certain employees. However, the Union filed exceptions to the Judge's dismissal of allegations as to another employee whom the Judge found had not made a valid request. The Authority stated that the adequacy of a request for representation depends on the facts of each case, and that such a request need not be made in any specific form. Although the employee did not specifically request "union" representation, he asked for an attorney, and then said, "I want somebody to talk to." The Authority found that by not granting the request, and proceeding with the examination, the denial was "preemptive" and effectively foreclosed further discussion to clarify whether the employee wanted a union representative. Accordingly, the Authority granted the Union's exceptions and modified the Judge's order. Contrary to the Judge, the Authority also found, based on all the circumstances, that the appropriate scope for posting the notice was nationwide.
In American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, New York, New York, 55 FLRA No. 40 (1999), the Authority addressed a proposal that identified the types of equipment that airport immigration inspectors would be allowed to wear in the performance of their duties and that prescribed the work areas or types of duties wherein the inspectors would be allowed to wear that equipment. Among other things, the proposal specified when certain inspectors would be permitted to carry firearms.
The Authority agreed with the Agency's undisputed claim that the proposal affected management's right to determine internal security practices at the airport. Applying the Authority's long-standing Kansas Army National Guard test, the Authority found that the proposal was not an appropriate arrangement under section 7106(b)(3) of the Statute. Because the proposal would require the Agency to permit employees to use tools or devices in furtherance of the Agency's law enforcement mission, the Authority held that the proposal concerned the means by which the Agency performed its work, within the meaning of section 7106(b)(1) of the Statute. Accordingly, the Authority concluded that the proposal was negotiable at the Agency's election.
In Association of Civilian Technicians, Granite State Chapter and U.S. Department of Defense, National Guard Bureau, New Hampshire Air National Guard, Concord, New Hampshire, 55 FLRA No. 79 (1999), the Authority addressed the negotiability of a proposal stating that the Agency would attempt to assign equivalent amounts of overtime to bargaining unit and non-bargaining unit personnel. The proposal also provided that if, at the end of the year, there were any discrepancies in the amount of overtime assigned, then the Agency would rectify these discrepancies in the following year.
Before the Authority, the Agency argued that the non-bargaining unit personnel referred to in the proposal are military personnel, and that, as a result, the proposal is contrary to 10 U.S.C. § 976, which prohibits bargaining over the terms and conditions of military service. The Agency also asserted that because the proposal would affect the working conditions of non-bargaining unit employees, in order for the proposal to be within the duty to bargain, it must "vitally affect" the working conditions of bargaining unit employees. The Authority found that the proposal is not contrary to 10 U.S.C. § 976 because it does not directly implicate the working conditions of military personnel. In this respect, the Authority noted that the proposal does not require the Agency to negotiate the terms of service of military personnel. The Authority concluded that because the proposal does not directly determine the working conditions of non-bargaining unit employees, the "vitally affects" test is not implicated.
In Association of Civilian Technicians, Inc. and U.S. Department of Defense, Rhode Island National Guard, Providence, Rhode Island and Association of Civilian Technicians, First Coast and Hurricane Chapters and U. S. Department of Defense, Florida National Guard, Office of the Adjutant General, St. Augustine, Florida, 55 FLRA No. 70 (1999), the Authority addressed proposals concerning uniform allowances for National Guard civilian technicians. In a previous case (55 FLRA 63), the Authority had determined that nothing in the amendments to the Technician Act, 32 U.S.C. § 709(b), prohibited bargaining over uniform allowances, and that, as a result of the 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.
In this case, the Authority held that Congress did not intend for sections 417 and 418 to be exclusive. Therefore, employees may receive allowances under either § 417 and 418 or under § 5901 or 1593, so long as they do not receive payments under both.
Accordingly, the Authority held that a proposal for payment under § 5901 and 1593, which precludes duplicative payment under § 417 and 418, is negotiable.
In U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington and National Air Traffic Controllers Association, 55 FLRA No. 46 (1999), the Authority reviewed an arbitration award that found the Agency had violated section 7116(a)(1) of the Statute when it confiscated responses to a survey that the Union had used to poll its membership. The Union had e-mailed a survey to its 1,300 field offices, asking, among other things, whether each field office is located in the same building with one or more various law enforcement agencies. The Agency filed exceptions, claiming that the award violated its right under section 7106(a)(1) to determine its internal security practices.
The Authority stated that, under Authority precedent, an arbitration award will be found to affect management's right to determine its internal security practices when the Agency demonstrates "a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice." The Authority deferred to the Arbitrator's factual finding that the Agency had failed to establish a reasonable link between the responses and the Agency's internal security. The Authority denied the Agency's management rights exception, as well as exceptions that the Arbitrator failed to conduct a fair hearing and exceeded his authority, that the award failed to draw its essence from the parties' agreement, and that the award was contrary to a government regulation.
In National Gallery of Art, Washington, D.C. and American Federation of Government Employees, Local 1831, 55 FLRA No. 80 (1999), the Authority reviewed an arbitration award in which the Arbitrator found that the Agency had just cause to suspend the grievant but nonetheless directed that the suspension be held in abeyance for 1 year and be expunged unless the grievant committed another offense during that year under a different supervisor. Because the award did not limit the appropriate penalty for a new infraction, but instead would permit the Agency to enforce the penalty for the infraction via automatic reinstatement of the suspension upon the occurrence of another infraction, the Authority found that the award did not affect management's right to discipline employees under section 7106(a)(2)(A).
The award stated that in order for the suspension to be reinstated, the future infraction would need to occur under a different supervisor. The Authority found that because this did not require the Agency to assign the grievant to a new supervisor, the award did not affect management's right to assign employees under section 7106(a)(2)(A). The Authority also rejected the Agency's arguments that the Arbitrator exceeded his authority, and that the award was deficient because it was contradictory. The Authority also found that an opposition to exceptions may not be filed by fax with the Authority under section 2429.24(e) of the Authority's regulations, and because the Union had filed its opposition via fax, the Authority declined to consider the opposition.
Granite State Chapter, Ass'n of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. Apr. 1, 1999), reviewing 54 FLRA 301 (1998). The First Circuit affirmed the Authority's determination that an agency's refusal to bargain over a proposal for official time for lobbying did not violate the Statute. The Authority had ruled that the proposal was inconsistent with a prohibition in the agency's Appropriations Act. The Court agreed with the Authority's interpretation of the Appropriations Act and affirmed the Authority's holding that the proposal was inconsistent with federal law and therefore not within the agency's duty to bargain.
Stuart E. Bernsen v. FLRA, No. 98-1234 (D.C. Cir. Mar. 19, 1999), reviewing 53 FLRA 1541 (1998). The D.C. Circuit denied an individual's petition for review of an Authority decision dismissing ULP complaints against an agency and a union. Agreeing with the Authority, the Court held that section 7120(e) of the Statute does not preclude a union official from serving simultaneously as an ethics counselor. The individual had claimed that such dual service created a "conflict of interest" in violation of section 7120(e). The Court disagreed, affirmed the Authority's "objective person" criteria for determining whether a conflict of interest exists within the meaning of section 7120(e), and denied the petition.
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.
Exposure to Pepper Spray as Part of Officer Certification
Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, AFGE, AFL-CIO, Case No. 98 FSIP 158 (February 3, 1999), Panel Release No. 417 (Decision and Order). The case concerned negotiations over the impact and implementation of the Employer's proposed "Enforcement Standard - Use of Non-deadly Force." The Panel determined the case should be resolved through an informal conference. Four of five issues were resolved during that conference, but left unresolved was the key issue, whether exposure to "CAP-STUN pepper spray" should be a requirement for officer certification on the CAP-STUN device to be used by border patrol agents in the line of duty. Essentially, the Employer proposed that border patrol agents be exposed to pepper spray during training if they wanted the option of using the pepper spray device; the Union opposed mandatory exposure. The Panel adopted the Employer's position because current employees concerned about possible health risks could avoid exposure by electing not to carry the CAP-STUN device, and the Employer's proposal provided some protection from the spray, (even though it appeared on the basis of the evidence in the record that CAP-STUN is safe to use for the purposes intended).
Procedure for Distributing a Footwear Allowance
Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Los Angeles, California and Local 4038, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 11 (February 9, 1999), Panel Release No. 417 (Arbitrator's Opinion and Decision). The Panel designated Panel Member Bonnie Prouty Castrey to engage in mediation-arbitration in order to resolve the dispute over allowances for safety-toed footwear. The parties disagreed over whether employees should be: (1) permitted to waive the allowance; and (2) required to provide a receipt as proof of purchase. The Union opposed the Employer's proposal that employees be permitted to waive any safety-toed footwear allotment, and that they be required to submit purchase receipts and refund unspent dollars. Ms. Castrey was unpersuaded that an affirmative waiver provision was necessary for this one-time implementation issue, and that, in any event, employees constructively waive their entitlement to the allocation by failing to request it during the notification period. She concluded that proof of purchase was unnecessary because management could observe directly whether employees have purchased the required footwear and ordered the adoption of compromise wording consistent with these conclusions.
Fitness Center Membership Fees and Related Issues
Department of the Treasury, Internal Revenue Service, Washington, D.C. and Chapters 65, 83, and 251, National Treasury Employees Union, Case No. 99 FSIP 24 (March 16, 1999), Panel Release No. 418 (Decision and Order). The Panel determined that the dispute, which concerned five issues arising from negotiations regarding Employer-provided fitness centers, should be resolved through an informal conference. The issues involved: (1) membership fees and the level of service; (2) duration of the agreement; (3) medical certification; (4) methods of payment; and (5) the size of the women's locker room at one of the two fitness centers. After the meeting failed to result in a voluntary agreement on any of them, the Panel ordered the parties to adopt a compromise solution involving graduated fee schedules for bargaining-unit employees on the key issue. In this regard, it found that the fee schedule imposed was reasonable because it balanced the equities presented: the fees were lower than those generally charged other Federal employees in the area, but this was warranted since the employees effected by the dispute would be paying for a service that previously was available free of charge. On the duration of the agreement, the Panel ordered a modified version of the Employer's proposal requiring that it be prospective in nature (the Union had proposed that the agreement be effective retroactive to October 1, 1998), and allow for a mid-point reopener. Regarding methods of payment, it ordered the adoption of a compromise solution that required the Employer to make every reasonable effort to obtain multiple payment options from the contractor hired to run the fitness centers. On the issue of medical certification, a modified version of the Employer's proposal was imposed providing employees a more detailed description of the three health-screening options than set forth under the Employer's wording, including an option preferred by the Union that there be no medical certification requirement. Finally, the Panel adopted the Employer's proposal on the size of the women's locker room, requiring management to explore and analyze bench configurations, rather than the Union's proposal, which could have resulted in additional costs associated with the reconstruction of the locker room.
Designated Smoking Areas
Federal Deposit Insurance Corporation, Washington, D.C. and National Treasury Employees Union, Case No. 99 FSIP 25 (March 18, 1999), Panel Release No. 418 (Decision and Order). This impasse arose from bargaining over the Employer's proposed smoking policy. Following an investigation of the request for assistance, the Panel directed the parties to participate in an informal conference. The parties essentially disagreed over whether: (1) indoor smoking should be continued at the Employer-owned Seidman Center Hotel; and (2) additional outdoor smoking areas should be designated at FDIC's three facilities (one of which was the office building attached to the Seidman Center Hotel) in the Washington, D.C., area. When no headway was made during the meeting, the Panel ordered the adoption of the Union's proposal with respect to the Seidman Center Hotel and office building, and at one of the other locations, and the Employer's proposal with respect to the third location. On the central issue of whether indoor smoking should be prohibited at the Seidman Center Hotel, including on all floors where employees are housed during training sessions, the Panel was persuaded that the residential function of the Hotel presented a special circumstance distinguishing this case from others where indoor smoking has been prohibited. It also found that its conclusion was supported by Executive Order 13058, which exempts this type of "residential accommodation" from the general indoor smoking ban.
Department of Commerce, Patent and Trademark Office, Arlington, Virginia and Patent Office Professional Association, Case No. 99 FSIP 15 (March 29, 1999), Panel Release No. 419 (Arbitrator's Opinion and Decision). The Panel determined that the parties' impasse, which arose during negotiations over a new consolidated facility, should be resolved through mediation-arbitration by Panel Member Mary E. Jacksteit. The parties' proposals were divided into packages of related issues, and they were instructed that if Ms. Jacksteit was unable to mediate a complete settlement she would be restricted to selecting from between their final offers on a package basis, insofar as they were otherwise legal, on any that remained. As a result of her mediation efforts, the parties reached tentative agreement on 16 of the 21 packages in the case, which were eventually ordered as part of the Arbitrator's decision. The five packages of proposals which remained unresolved on the following issues were: (1) Future Bargaining and Continuation of Past Practices; (2) Window Space; (3) Parking; (4) Carpeting, Painting, Finishing, etc.; and (5) Timing of Construction/Maintenance Work. On the first issue, the Arbitrator adopted the last best offer of the Union, finding that it met the Employer's interest in not being obligated to negotiate over all items reserved for future bargaining regardless of how it views the negotiability of any of the Union's proposals. Regarding window space, the Arbitrator concluded that the Employer's concern that the Union's proposal would mandate a preference for assigning exterior offices to all GS-14 bargaining-unit employees before any other use is made of exterior space, when the implications of that preference could not be predicted, was well founded. Accordingly, she adopted the Employer's final offer, which required management to use its best efforts to place distributed space (e.g., pantries, copy rooms, etc.) in interior spaces, and to maximize the number of private, exterior offices. On the issue of parking, the Arbitrator found the Union's claims that management's proposals would leave it without a viable opportunity to bargain over important aspects of parking in the new consolidated facility unsubstantiated, and therefore adopted the Employer's final offer essentially requiring future bargaining over parking issues. She also adopted the Employer's final offer on Carpeting, Painting, Finishing, etc., because it minimized unscheduled painting costs. Finally, the Arbitrator adopted the Union's final offer on the issue of the timing of construction and maintenance work because there was little substantive difference between the proposals, and the Union's wording provided a salutary acknowledgment of the potential impact on employees of working in a building still under construction.
Termination of Compressed Work Schedule (CWS)
Department of the Navy, Trident Refit Center, Kings Bay, Georgia and Local Lodge 2783, District 112, International Association of Machinist & Aerospace Workers, Case No. 99 FSIP 60 (May 11, 1999), Panel Release No. 420 (Decision and Order). The parties' dispute arose under the Federal Employees Flexible and Compressed Work Schedules Act (Act), and involved the Employer's finding that the CWS of production workers at the facility had caused an adverse agency impact. The Panel determined that the impasse should be resolved through an informal conference. When mediation efforts failed to lead to a voluntary settlement, the Panel reviewed the evidence and arguments presented by the parties, and concluded that the Employer had met the burden of proof established under the Act by demonstrating that the CWS had caused a reduction in productivity at the facility. Accordingly, the Panel ordered the termination of the CWS.
Alternative Dispute Resolution for Civil Rights Matters
Department of the Treasury, U.S. Customs Service, Washington, D.C. and NTEU, Case No. 98 FSIP 52 (May 13, 1999), Panel Release No. 420 Decision and Order). This long-standing dispute concerned negotiations over an alternative to the statutory procedures for resolving equal employment opportunity matters. The Panel initially directed the parties to engage in further mediation efforts with the assistance of the FLRA's Director of the Office of Collaboration and Alternative Dispute Resolution (CADR). Although the issues in dispute were sharpened, the CADR process did not lead to a resolution of the issues, and the Panel then directed the parties to participate in a factfinding hearing conducted by Panel Member Gilbert Carrillo. He later issued a Factfinder's Report, which contained recommendations for settlement. The recommendations essentially were a compromise combining features of both parties' final offers. After the parties were unable to agree on the use of the Factfinder's recommendations as the basis for settling the matter, the Panel issued a decision ordering the adoption of his recommendations to resolve the impasse.
FSIP SETTLEMENT CORNER
ABOUT THIS COLUMN Along with the issuance of final actions (i.e., Decisions and Orders by the full Panel and Arbitrators' 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, 1999 through May 30, 1999, in addition to 11 cases in which members of the Panel's professional staff assisted parties in resolving their impasses, Panel Members were successful in obtaining complete settlements in the following cases:
In Social Security Administration, Malden District Office, Malden, Massachusetts and Local 1164, AFGE, AFL-CIO, Case No. 99 FSIP 39 (closed March 4, 1999), the parties reached impasse over numerous issues concerning a new lease and related renovations for the Malden Field Office. Panel Member Bonnie Prouty Castrey conducted a mediation-arbitration procedure which ultimately resulted in a complete settlement.
In Department of the Treasury, U.S. Customs Service, Washington, D.C. and NTEU, Case No. 99 FSIP 53 (closed May 26, 1999), the parties reached an impasse over whether eligible employees should receive foreign language awards for a portion, or all, of the period between January 1, 1994, and October 1, 1996. 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 Department of Labor, Washington, D.C. and Local 12, AFGE, AFL-CIO, Case No. 99 FSIP 55 (closed April 6, 1999), the parties reached impasse over the class and number of employees eligible to receive business cards. Panel Member Fisher conducted an informal conference at the Panel's offices in Washington, D.C. during which the dispute was resolved.
In Department of Agriculture, Food Safety and Inspection Service, Washington, D.C. and National Joint Council of Food, Inspection Locals, AFGE, AFL-CIO, Case No. 99 FSIP 74 (closed May 19, 1999), the dispute concerned numerous issues which arose during negotiations over the Employer's proposed implementation of a pilot Hazard Analysis and Critical Control Points Inspection Models Project, instituting new methods for the prevention, control, and correction of food safety hazards in meat and poultry plants. Panel Member Castrey conducted an informal conference over a 3-day period which ultimately resulted in a complete settlement of the parties' impasse.
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.
CHANGE IN THE PAST PRACTICE OF ALLOWING EMPLOYEE ACCESS TO THE INTERNET FOR PERSONAL PURPOSES
This case presents the novel legal issue regarding an agency's obligation to bargain over employee access to the Internet. The evidence in this case established that up until a certain time, employees were permitted access to the Internet for "personal" purposes. As a result of documented use of the Internet for inappropriate purposes, agency management sent an e-mail to all employees stating that access to the Internet is approved only for official government purposes. Subsequent to the issuance of the new policy, several employees had been disciplined for accessing the Internet for personal purposes.
The General Counsel first concluded, applying the two-part test in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23, 22 FLRA 235 (1986), that access to the Internet concerns a condition of employment. In this regard, although the Authority has yet to rule on the negotiability of proposals concerning the Internet, the General Counsel reasoned that access to the Internet should be viewed in the same manner as proposals which concern the use of telephones, faxes and e-mail--various other tools of relaying information. When required to render a negotiability determination of a proposal in the context of a ULP charge, the General Counsel advised the Regions to follow Authority precedent describing the scope of bargaining over matters within the discretion of an agency. Therefore, the General Counsel concluded that the agency violated section 7116(a)(1) and (5) of the Statute when it unilaterally changed the Internet access policy.
This case also presents a novel question pertaining to an appropriate remedy. Case law is unclear concerning whether the Authority will order rescission of disciplinary actions taken against employees for failure to comply with work rules and conditions of employment unilaterally imposed contrary to the statutory duty to bargain. To obtain clarification, the General Counsel advised the Region to seek, in addition to a cease and desist order, a return to the past practice, and a remedial posting--an order requiring the Activity to reconsider the discipline of those employees who were disciplined for abuse of the Internet as if the changed policy had not been in effect. For example, an employee who misused the Internet by viewing improper material may have been subject to discipline without the unilaterally established new condition of employment, whereas another employee who was disciplined for conduct that was previously permitted and was consistent with the agency directive should be rescinded and the employee made whole.
FORMAL DISCUSSION AND EEO GUIDANCE
Volume 8, Number 2 of the FLRA Bulletin contains a summary of the General Counsel's Guidance on the Relationship Between the Statute and Equal Employment Opportunity Matters (EEO Guidance). This case presents a question concerning whether an interview with a unit employee, who has collateral duties as an EEO Counselor, for the purpose of preparing for a hearing before an EEOC Administrative Law Judge, is a formal discussion. In advising the region on this case, the General Counsel also provided a supplement to the EEO Guidance. The General Counsel concluded that the requirement that a union be afforded the opportunity to be represented at formal discussions does not extend to a situation where a unit employee, who has collateral duties as an agency EEO Counselor, is being prepared to testify in a third party proceeding concerning the employee's official duties. In the General Counsel's view, to find otherwise would require a union to be represented anytime an agency is preparing its case before a third party (such as the MSPB, arbitration, or other tribunal) by reviewing facts with law enforcement or security personnel or human resources personnel when those personnel are bargaining unit employees. Further, in this case, there was no evidence that an agency representative discussed any matter with the employee other than the performance of the employee's EEO Counselor's duties.
The General Counsel also provided a supplement to the EEO Guidance. In this regard, he first concluded that a bargaining unit employee who performs collateral duties as an EEO Counselor during the processing of an informal EEO complaint is not acting as an agent of management for formal discussion purposes. Rather, this employee is performing assigned duties based upon management's exercise of its section 7106(a)(2) right to assign work and direct employees. Second, he acknowledged that there is a lack of clarity in the case law as to whether a meeting between a representative of an agency (not an employee/EEO Counselor) and an employee that is formal and concerns a personal policy or practice or other general condition of employment can be a formal discussion if the discussion takes place as part of the processing of an informal EEO complaint. Therefore, the General Counsel advised the Regional Directors to submit such cases for advice.
A SUPERVISOR'S EEO COMPLAINT CHALLENGING A CHIEF STEWARD'S PROTECTED ACTIVITY
This case concerns novel issues concerning the filing of an EEO complaint by a supervisor challenging a union steward's protected activity under the Statute. In assisting a unit employee in responding to a proposed admonishment, a union steward asserted, among other things, that the employee--an African-American female--was working in a hostile environment due to her race and implied that the admonishment was discriminatorily motivated. The supervisor then filed an EEO complaint which alleged that the Chief Steward's reply constituted harassment of the supervisor based on his gender and his Native American descent. The Chief Steward was then interviewed by an investigator concerning the response and was asked about the various assertions he made in the response, including information provided to him by the unit employee as part of her defense to the admonishment. Subsequently, the Chief Steward was presented with a settlement agreement which provided that the harassing and intimidating behavior toward the supervisor would stop and that the Chief Steward would provide the supervisor with a letter of apology. The Chief Steward rejected the proposed settlement.
The General Counsel concluded first that the Chief Steward's response to the proposed admonishment concerned protected activity and did not constitute flagrant misconduct. In this connection, the General Counsel reviewed Authority case law and reasoned that the Chief Steward's activity was not of "such an outrageous and insubordinate nature" as to remove it from the protection of the Statute.
The General Counsel then concluded that the agency violated section 7116(a)(1) in the manner in which it investigated the EEO complaint. Referring to the recently-issued EEO Guidance, the General Counsel stated that agencies cannot ignore statutory rights and obligations when processing EEO claims. Further, the General Counsel noted that the EEOC has consistently ruled that the actions of union officials in the course of legitimate labor-management disputes are usually not actionable under EEOC's regulations. Thus, the EEO investigator's inquiry concerning the Chief Steward's position in the response to the admonishment, an activity that wholly concerns legitimate protected activity and which included information provided to the Chief Steward by the unit employee as part of the defense, violated section 7116(a)(1).
Lastly, the General Counsel concluded that in asking for the Chief Steward's acceptance of the proposed settlement agreement, the agency again violated section 7116(a)(1). In essence, the General Counsel determined that the agency was asking the Chief Steward to refrain from engaging in conduct that was protected under the Statute.
"COVERED BY" AND A NATIONWIDE AGREEMENT THAT CONTAINS A CLAUSE THAT RESERVES SPECIFIC TOPICS FOR BARGAINING
The local union and activity in this case are subject to a 1997 nationwide bargaining agreement. In 1998, the activity moved employees to a new building creating changes in employees' conditions of employment (e.g., breaks, security). Before the move, the activity rejected the union's requests to bargain which relied on an Article in the CBA entitled "Impact Bargaining and Mid-Term Bargaining" that reserved specific topics for bargaining: "notwithstanding the . . . 'covered by the agreement' rule, . . . [the parties would negotiate] management-initiated changes concerning . . . [the] establishment of new or substantially expanded work sites."
The General Counsel reviewed the protocol for applying the covered by analysis. In this regard, he inquired first whether there had been a unilateral change over which there was a bargaining obligation that was not fulfilled. Because office relocations concern conditions of employment, absent a covered by defense, the activity would be found to have violated section 7116(a)(1) and (5) of the Statute when it unilaterally moved the employees to a union facility.
Second, because a party has asserted that the nationwide agreement reserved a matter for negotiations, the analysis focuses on the initial determination of whether that matter is covered by the agreement by focusing on the parties' intent--whether they expressed an intent through their article and its bargaining history to foreclose bargaining over a matter during the life of an agreement. Once the bargaining history of the agreement provision is reviewed, a decision may then be made whether a decision to move to a new facility is encompassed within the terms of the provision. If so, it would be covered by the provision and the activity will not have been found to have violated the Statute. The General Counsel's Guidance Memorandum for Regional Directors to use in investigating, deciding and resolving ULP disputes where a collective bargaining agreement affects the matter in dispute is discussed on page 11 of vol. 6, No. 2 of the FLRA Bulletin, and may be found in its entirety at the FLRA's Web page at www.flra.gov.
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 Cease and Desist Mandatory Overtime and to Bargain over the Mechanics and Eligibility of a Roster for Mandatory Overtime
After issuance of complaint and notice of hearing, the parties agreed that the Agency would post a notice agreeing to follow the Statute and abide by the parties' agreement to bargain on the mechanics and eligibility of a roster for mandatory overtime for Police and Security Service. The parties also agreed that the Agency would cease and desist mandatory overtime until bargaining has been completed and rosters established, except in situations that would compromise the security and safety of the Agency, and will notify the Union of such occurrences.
Agency Agrees to Expunge from its Records Any References to the 14-day Suspension of a Unit Employee and to Make the Employee Whole for the Losses Incurred as a Result of the Suspension, Including Backpay with Interest
After issuance of complaint and notice of hearing, the parties agreed that the Agency would expunge from its files all records of, and references to, the 14-day suspension given to a unit employee and to make the employee whole by reimbursing him for the losses he incurred as a result of the suspension, including backpay with interest, and any other benefits lost due to the suspension. The parties further agreed that the Agency would notify the employee in writing when the required expungement has been completed and that the Agency would not use the suspension action against the employee in any way.
Agency Agrees to Reinstate Unit Employee to the Same Compressed Work Schedule (CWS) He Was Working Before His Schedule Was Changed and to File a Petition Requesting a Determination Whether the Employee's Position Should Be Excluded from the Bargaining Unit
In a settlement agreement after issuance of complaint and notice of hearing, the parties agreed that the Agency would reinstate a bargaining unit employee to the same CWS position he was working before the change in his schedule. In addition, the Agency will file a petition with the Regional Director (RD) under section 242