ACTING DIRECTOR OF FLRA COLLABORATION AND ALTERNATIVE DISPUTE RESOLUTION OFFICE NAMED
Vol. 9 No. 2
February 1, 2000 - May 31, 2000
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 Actions
- FSIP Settlement Corner
- General Counsel's Advice to Regional Directors
- General Counsel's Settlement Corner
ACTING DIRECTOR OF FLRA COLLABORATION AND ALTERNATIVE DISPUTE RESOLUTION OFFICE NAMED
STEVEN SVARTZ TO HEAD CADR OFFICE
The FLRA's Collaboration and Alternative Dispute Resolution Program (CADR) is under new leadership. Steven Svartz, the Assistant General Counsel for Legal Services in the Office of the General Counsel, is serving as acting director, in addition to continuing his current position with the Office of the General Counsel.
The CADR program provides overall coordination and support for the FLRA's labor-management collaboration and alternative dispute resolution (ADR) efforts. The CADR program assists parties both in preventing disputes before they become cases and in crafting ways to informally resolve disputes in pending cases. The program also provides facilitation, intervention, training, and education services to help parties develop better labor-management relationships. The CADR Office, which was founded in 1995, assists all FLRA components in the delivery of ADR services. Since its inception, the CADR Program has provided its services to thousands of FLRA customers.
Mr. Svartz has extensive experience with the FLRA, having served previously as a Chief Counsel to several FLRA Members and as Deputy Solicitor. He is a graduate of the Massachusetts Institute of Technology and Georgetown University Law Center.
For more information about the FLRA's CADR Program, visit our web site at www.flra.gov.
GENERAL COUNSEL SWERDZEWSKI ISSUES GUIDANCE TO THE REGIONAL DIRECTORS ON REMEDIES FOR UNFAIR LABOR PRACTICE CHARGES
The General Counsel of the Federal Labor Relations Authority (FLRA), Joseph Swerdzewski, has issued guidance to the FLRA Regional Directors regarding remedies for unfair labor practices under the Federal Service Labor-Management Relations Statute. The Guidance discusses the General Counsel's policy on seeking appropriate remedies and describes the types of remedies and the elements of proof that are necessary to obtain those remedies. The Guidance aids the Regional Directors in investigating, settling and litigating unfair labor practice charges. It is also intended to assist parties in providing evidence and arguments concerning the appropriate remedy to an unfair labor practice charge.
"By understanding the types of remedies available and the evidence necessary to establish the appropriateness of those remedies, the Regions and the parties will be better suited to resolve unfair labor practice complaints and, if litigation is necessary, make cogent arguments based on relevant evidence as to the appropriateness of those remedies" said General Counsel Swerdzewski. "With the recent increase in ULP litigation, and the evolutionary development of the concept of nontraditional remedies, it is imperative that the Regions, and the parties, are aware of not only the variety of possible remedies, but also the type of evidence that is necessary to establish the appropriateness of these remedies." So far this fiscal year, while the number of ULP complaints issued by the General Counsel is consistent with the prior fiscal year, the number of ULP hearings held before Administrative Law Judges has more than doubled over the same period last fiscal year.
The recently issued Office of the General Counsel Unfair Labor Practice Manual, and other General Counsel issuances, are available on the FLRA Web Site, www.flra.gov. (See related story on page 14)
FEDERAL SERVICE IMPASSES PANEL HOLDS ROUNDTABLE DIALOGUE IN LOS ANGELES
The Federal Service Impasses Panel (Panel) conducted its annual out of town roundtable dialogue with Federal sector management and labor representatives on May 19, 2000 in Los Angles, California.
The roundtable provided the Panel and its staff with an opportunity to hear from costumers regarding their interests and concerns about the impasse resolution process. Training and an update of recent Panel decisions were also provided. Also featured at the roundtable were a full complement of Panel members including Bonnie Prouty Castrey who was appointed Chair earlier this year, and newly appointed Members Marvin Johnson, David Leland, and John Wofford.
CHAIRMAN WASSERMAN NAMES MEMBERS TO THE FOREIGN SERVICE IMPASSE DISPUTES PANEL
Chairman Donald S. Wasserman has made four recent appointments to the Foreign Service Impasse Disputes Panel. The Disputes Panel resolves impasses between Federal agencies and Foreign Service personnel in the U.S. Information Agency, the Agency for International Development and the Departments of State, Agriculture, and Commerce over conditions of employment under the Foreign Service Act of 1980. The Disputes Panel is composed of five part-time Members.
Reappointed as Chairman was Thomas Colosi, who serves as the Disputes Panel's public member. Also reappointed was David Guiss, from the Department of Labor. Two new appointments were also made: Thomas Coulter, from the State Department, and Marvin Johnson who serves as the Disputes Panel's representative from the Federal Service Impasses Panel. These appointees join the Disputes Panel's fifth Member, Allen Keiswetter from the State Department.
FLRA TO CO-SPONSOR SFLRP 27th ANNUAL SYMPOSIUM ON FEDERAL SECTOR LABOR-MANAGEMENT RELATIONS
The FLRA will be a co-sponsor of the Society of Federal Labor Relations Professionals 27th Annual Symposium on Federal Sector Labor-Management Relations, to be held September 21-22, 2000, at the Washington Plaza Hotel in Washington, DC. The program will consist of plenary sessions, workshops, and luncheon speakers covering current issues and activities in the Federal sector labor and employee relations arena. Additionally, the Symposium will feature SFLRP's Eighth Annual Labor-Management Cooperation Award that recognizes Federal agencies and labor organizations that strive to improve their labor relations. Award nominations may be made to SFLRP and must be received no later than July 20. Persons interested in information on the Symposium can contact Paco Martinez-Alvarez at 703-685-4130, or visit the SFLRP web site at http://members.aol.com/sflrp. Persons on The FLRA Bulletin mailing list will receive Symposium registration materials.
AUTHORITY TO CONVENE FOCUS GROUP ON THE QUALITY OF WRITTEN DECISIONS
The decisional component of the FLRA, the Authority, is undertaking an effort to evaluate the quality of the Authority's written decisions and the measures for assessing that quality. As part of that effort, the Authority will convene a focus group of customers. The focus group will meet on July 19, 2000 at 10:00 a.m. at the FLRA's headquarters at 607 14th Street, N.W., Washington, D.C. 20424-0001.
In addition, the Authority is also soliciting written comments on the issues of quality and its measurement. Written comments should be submitted to the Office of Case Control, also located at 607 14th Street, N.W., Washington, D.C. 20424-0001 and may include responses to specific questions noted in the Authority's Federal Register notice announcing the focus group. (65 FR 38279). Written comments must be received by July 31, 2000.
Urging FLRA customers to participate and provide feedback, Chairman Wasserman stated, "The Authority is committed to excellence in the quality and timeliness of its written legal decisions. The views of agencies, unions, and other interested persons as to how we might assess and improve this process will be invaluable."
The CADR Program provides facilitation, training, education and intervention services to assist labor and management in developing constructive approaches to handling conflict. Although the program's main focus is helping FLRA customers collaboratively resolve disputes, the CADR program has made other contributions toward building labor relations skills throughout the Federal government. FLRA staff have developed courses in the areas of relationship building, ADR design, statutory training, partnership and a host of other areas to put the "relations" back into Labor Relations. Each FLRA component contributes to the CADR Program's success.
The OGC's ADR activities continued to help parties move towards more constructive labor-management relationships. One of the most significant efforts undertaken by the OGC during this period took place at a major military installation. The Deputy General Counsel and the Acting Regional Director of the Atlanta Region worked with the highest-level officials of management and the union in an intensive two-day meeting to address recurring concerns over the large number of unfair labor practice charges and other labor-management disputes at the installation. As a result of the meeting, the parties successfully designed and implemented a new alternative dispute resolution system. Both parties publicly announced the agreement as a new way of conducting their labor-management relationship by resolving disputes at the lowest levels before they become formal unfair labor practice charges. The parties also stated that they expect this new approach to result in a 50 percent reduction in filings of unfair labor practice charges.
The OGC also conducted several sessions with parties to assist them in developing labor relations strategic plans, as described in General Counsel Swerdzewski's Guidance Memorandum of September 1999. These sessions involved local and regional labor-management relationships throughout the country, as well as relationships involving nationwide bargaining units covering thousands of unit employees.
The Federal Service Impasses Panel also provided CADR services during this period. The Panel staff assisted various parties in reaching complete voluntary settlements of negotiation impasses in 24 cases. Most of the settlements came during informal conferences or mediation-arbitration proceedings by the Panel's professional staff or Panel Members.
Two cases settled this quarter through the OALJ's voluntary ULP settlement program are noteworthy. In one case, a professional employee serving as a union representative was suspended for 14 days and charged with 32 hours of AWOL rather than annual leave, purportedly for failing to submit timely medical reports. The parties agreed that her suspension would be rescinded with back pay and her leave balance restored by the agency, although they further agreed upon a non-admissions clause and a no-posting requirement.
In another case, the parties agreed that the affected unit employees would not be held responsible for inaccurate or untimely data entries into the agency's new and unilaterally-implemented computerized case tracking system until they received training on the new system. Additionally, the parties agreed that the union would first have an opportunity to propose improvements to the new system and bargain to define areas of responsibility for data entry.
Cross Component Initiatives
In some situations, parties in a labor-management relationship file different types of cases with the FLRA, but the cases are related to each other because they arise out of the same general set of circumstances and present similar issues. For instance, parties sometimes file some combination of unfair labor practice charges, negotiability appeals, and/or impasse cases with different components of the FLRA (e.g., a Regional Office of the Office of the General Counsel, the Authority, and/or the Federal Service Impasses Panel).
Through a renewed emphasis on coordination among the FLRA components and the CADR Office in identifying such situations, the CADR Program is making an effort to increase the use of cross-component initiatives to address these groups of cases. These initiatives typically involve representatives from different parts of the FLRA working together to attempt resolution of labor relations issues.
One recent example of such an initiative involved a member of the CADR Office and an OGC Dispute Resolution Specialist who worked together with parties to several pending ULP and negotiability cases, all stemming from a restructuring of a particular division. The parties worked collaboratively for two days with the two FLRA representatives acting as facilitators. As a result of the parties' efforts, they resolved a total of ten cases-not only the pending negotiability appeal and five pending ULP charges, but also four grievances. The parties' agreement sparked a new initiative between them to attempt to better communicate earlier in the process, and to avoid having to file so many cases in the future. The parties indicated that this was a successful process and were pleased to have an understanding of how they would proceed in the future.
Additional information about the FLRA's CADR program, including addresses and telephone numbers of individuals to contact, is available on the FLRA website, www.flra.gov.
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 New Mexico Army and Air National Guard, 56 FLRA No. 18 (2000) (Members Segal and Cabaniss, concurring; Chairman Wasserman, dissenting), members of a local union voted to change their affiliation to another labor organization. Due to the geographic dispersion of the bargaining unit members, voting was by mail ballot. After the petition to amend the local union's certification was filed with the Authority, the local's parent organization imposed a trusteeship on the local. The Regional Director (RD) found that the change of affiliation election satisfied the four procedural criteria set forth in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR 858 (1974) (Montrose), review denied, 3 FLRC 259 (1975). The RD also found that the imposition of the trusteeship did not affect the petition. The losing local's parent organization appealed the RD's decision. On review, a majority of the Authority sustained the RD's decision, in particular, rejecting the contention that the parent labor organization was entitled to notice of the impending change in affiliation. Concurring in the result, Member Segal questioned whether the Montrose criteria were applicable in cases, such as this, where the change of affiliation involved adversarial entities. Chairman Wasserman also questioned the application of Montrose and suggested that the addition of a notice requirement to a parent labor organization would further the goal of having a fully informed electorate vote on changes of affiliation.
In U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 56 FLRA No. 47 (2000) (Chairman Wasserman, concurring in part and dissenting in part), the Authority addressed questions set forth in the Authority's decision granting the Union's application for review (55 FLRA 514). The Regional Director (RD) found that, as a result of an Agency reorganization, the employees in the existing bargaining unit had been transferred into three different chains of command and as such no longer constituted an appropriate unit. On review, the Authority held that, in cases involving competing successorship claims alleging different appropriate units, it will first consider the appropriate unit claim that will most fully preserve the status quo in terms of unit structure and the relationship of employees to their chosen exclusive representative. Thus, if a petitioned-for existing unit continues to be appropriate, the Authority will not address any petitions that attempt to establish different unit structures. Changes in an agency's chain of command do not, by themselves, render inappropriate existing bargaining units, although such changes may have effects on all three of the appropriate unit criteria. In this case, the record was insufficient to determine whether the existing unit remained appropriate and the Authority remanded the case to the RD for further findings. Chairman Wasserman dissented on the latter point, finding sufficient evidence to establish that the petitioned-for unit was appropriate and that the claimed successor met the criteria for successorship.
In U.S. Securities and Exchange Commission, Washington, D.C., 56 FLRA No. 44 (2000), the Authority denied the Agency's application for review of the Regional Director's (RD's) decision, which granted the Union's petition proposing a nationwide unit of Agency employees and directed an election. The Authority found that the RD's decision did not raise issues for which there was an absence of precedent. The Authority determined that the RD did not apply an overarching preference for nationwide units, but applied longstanding Authority precedent and held that the proposed unit would promote effective dealings because, among other things, it would avoid the unit fragmentation that would make effective dealings more cumbersome. The Authority rejected various Agency assertions finding that the RD's decision was consistent with precedent applying appropriate unit criteria, that the record supported the RD's factual findings, and that no prejudicial procedural errors were committed. Finally, the Authority declined to amend that RD's determination regarding the eligibility period of employees, finding that there was no indication that the RD abused his discretion in this regard and that the Agency's request would be properly addressed to the RD, rather than the Authority.
Unfair Labor Practice Cases
In U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 56 FLRA No. 2 (2000), petition for review filed sub nom. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, No. 00-1162 (D.C. Cir Apr. 14, 2000), the Authority upheld the Judge's decision finding that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with notice and an opportunity to bargain over two employees' reassignments. As a preliminary matter, the Authority found that the Respondent was precluded from relying on certain provisions of the parties' agreement because the Respondent could have raised those provisions before the Judge, but failed to do so. The Authority also found that the Judge was not collaterally estopped by a previous arbitral award, because that arbitral award and the complaint before the Judge involved different issues. With regard to the substance of the complaint, the Authority found that the Judge, in determining that the disputed reassignments were not "covered by" a particular provision of the parties' agreement, properly engaged in contract interpretation of other contract provisions that reserved the Union's statutory bargaining rights. As for the remedy, the Authority applied the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982), and found that the Judge did not err in granting a status quo ante remedy.
In Department of the Treasury, United States Customs Service, El Paso, Texas, et al., 56 FLRA No. 56 (2000) (Chairman Wasserman concurring), the Authority reviewed exceptions to a Judge's decision on remand from the Authority in Department of the Treasury, United States Customs Service, El Paso, Texas and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, 55 FLRA 43 (1998) (Customs). In Customs, the Authority had remanded the case to the Judge to analyze the record to determine whether the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the Statute to determine its internal security practices. The Judge found that the Respondent failed to show that videotaping in these circumstances was an exercise of that management right. The Authority disagreed. Applying Authority precedent for determining whether a matter constitutes an internal security practice under section 7106(a)(1) of the Statute, the Authority found that the Respondent, a law enforcement agency, had established a reasonable link between its objective of safeguarding its personnel, property or operations and its investigative technique of videotape recording employees subject to internal affairs investigations. Because the decision to videotape had more than a de minimis effect on employees' conditions of employment, the Respondent was obligated to bargain over the impact and implementation of the decision and its failure to do so violated the Statute.
In National Air Traffic Controllers Association, Rochester Local and U.S. Department of Transportation, Federal Aviation Administration, Rochester, New York, 56 FLRA No. 40 (2000), the Authority addressed two proposals concerning leave schedules. The proposals were prompted by the Agency's discontinuation of a practice of including supervisors on a leave roster. As a consequence, supervisors were no longer counted for purposes of determining the minimum staffing level necessary to approve employees' leave requests as governed by a Memorandum of Understanding (MOU). The Authority found that the proposals directly implicated the conditions of employment of supervisors and, as such, were permissively negotiable. The Authority next addressed the Union's argument that, because the Agency had bargained over provisions governing the work assignments of supervisors in the MOU, it was obligated to bargain over the proposals. Adopting the rationale in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Company, Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), a case involving similar issues under the National Labor Relations Act, the Authority held that the inclusion of a permissive subject in a collective bargaining agreement does not convert that subject into a mandatory subject. Consequently, the fact that the Agency agreed to the MOU did not obligate the Agency to bargain over adjustments to provisions of the MOU. The Authority noted, consistent with the holding in Pittsburgh Plate Glass, that in such circumstances the Union's remedy is through enforcement of the parties' agreement regarding the permissive subject matter. Because the proposals concerned supervisory conditions of employment, over which the Agency did not have an obligation to bargain, the Authority dismissed the petition for review.
In National Association of Government Employees, Local R5-136 and U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, 56 FLRA No. 49 (2000), the Authority addressed a proposal concerning wage surveys to be used for setting pay rates of Agency pharmacists. Pharmacists are considered "hybrid" employees, whose conditions of employment are covered by both titles 5 and 38 of the United States Code. The Authority first rejected the Agency's claim that the Authority lacked jurisdiction over the dispute. As the Agency alleged that the proposal was inconsistent with law, the Authority was vested with jurisdiction under section 7117(c) of the Statute to review the negotiability of the proposal. As to the merits, the Authority found that the proposal was not inconsistent with 38 U.S.C. § 7455, which, among other things, gives the Agency authority to increase pay rates under specified circumstances. The Authority found that the proposal did not prescribe when the Agency would conduct wage surveys, how the surveys would be conducted, or what would be done with the results of the surveys. The Authority also found, after examining the plain wording of 38 U.S.C. § 7455 and its legislative history, that the Agency's discretion thereunder was not "sole and exclusive" so as to preclude bargaining. Consequently, the Authority concluded that the proposal was within the duty to bargain.
In a consolidated case, U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 56 FLRA No. 31 (2000), the Authority denied the Agency's exceptions to an arbitrator's award, finding that the Agency improperly assigned absence without leave to a Union negotiator. The Authority also denied the Union's exception to the Arbitrator's decision to recuse himself from consideration of an attorney fee request relating to the Agency's improper action. As to the Agency's exceptions, the Authority found that the award did not fail to draw its essence from the parties' agreement, that the Arbitrator did not exceed his authority and that the award was not based on a nonfact, deferring to the Arbitrator's factual finding that the Agency's grant of official time was not limited to negotiations. The Authority also found that the award was not contrary to law, rule or regulation, as the Arbitrator did not err by refusing to apply the "obey now, grieve later" principle. With respect to the Union's exceptions, the Authority found that the Arbitrator's decision to decline jurisdiction over the issue of attorney fees was not deficient because he was involved in a dispute with the Agency over payment of his fees and could not consider the matter of attorney fees neutrally. The Authority directed the parties to jointly submit the matter of the Agency's obligation to pay attorney fees to a different arbitrator for resolution. Chairman Wasserman, concurring, found that the "obey now, grieve later" principle does not constitute a law, rule, or regulation, and denied the Agency's exception for failing to state a ground under section 7122(a)(1) of the Statute on which an award can be found deficient.
In U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 56 FLRA No. 39 (2000), the Authority denied exceptions to an award challenging the arbitrator's determination that the Agency improperly exempted employees from overtime coverage under the Fair Labor Standards Act (FLSA). The Authority found that the arbitrator's reliance on the employees' position descriptions, as well as the Agency's exemption determination regarding other persons with similar duties, did not establish that the arbitrator failed to consider the employees' actual or day-to-day duties, as required under FLSA implementing regulations. In addition, the Agency offered no evidence that it took affirmative steps necessary to overcome the presumption in favor of liquidated damages, which the arbitrator had awarded.
American Federation of Government Employees, Council 147 v. FLRA, 301 F.3d 1272 (9th Cir. Mar. 3, 2000), reviewing 54 FLRA 444 (1998). The Ninth Circuit denied the Union's petition for review of an Authority decision that the Agency did not commit a ULP when it refused to bargain over a matter covered by section 7106(b)(1) of the Statute. The court affirmed the Authority's determination that section 2(d) of Executive Order 12871, which provides that agencies "shall . . . negotiate over the subjects set forth in 5 U.S.C. § 7106(b)," constitutes a direction to agency personnel rather than an election to bargain under section 7106(b)(1).
American Federation of Government Employees, Council of GSA Locals, Council 236 v. FLRA, No. 99-1244 (D.C. Cir. Mar. 7, 2000), reviewing 55 FLRA 449 (1999). The D.C. Circuit denied the Union's petition for review of an Authority decision that the Union's proposal regarding performance ratings is outside the duty to bargain. The court found reasonable and deferred to the Authority's explanation of why performance rating levels are not a "method" or "means" of performing work.
FLRA v. Puerto Rico National Guard, Puerto Rico Air National Guard, San Juan, Puerto Rico, No. 99-1293 (1st Cir. May 25, 2000), enforcing Case No. AT-CA-70505 (1998). The First Circuit granted the Authority's petition for enforcement of an unexcepted-to-ALJ decision finding that the Agency violated the Statute by repudiating an MOU. The court enforced the Authority's order even though the Agency agreed, on the eve of oral argument, to comply. The court stated in this regard that "judicial enforcement will serve as an effective reminder to the respondent of its continuing obligation fully and seasonably to effectuate the terms of the Authority's remedial order."
Edward S. Davidson, Regional Director, Boston Region, FLRA v. Puerto Rico National Guard, 156th Airlift Wing, Carolina, Puerto Rico, No. 00-1015 (1st Cir. May 12, 2000), vacating and remanding No. 99-1478(PG) (D.P.R. 1999). The Authority sought review of a district court decision denying temporary injunctive relief in a ULP case. After the Authority issued a final decision on the underlying ULP, the First Circuit - at the Authority's request - vacated the district court's decision and remanded the case to the district court with directions to dismiss the original complaint for injunctive relief as moot.
Samuel M. Rizzitelli v. FLRA, - F.3d -, 2000 WL 633396, No. 00-4011 (2d Cir. May 17, 2000), reviewing Case No. BN-CO-80486. The Second Circuit dismissed for lack of subject matter jurisdiction a petition for review of the General Counsel's refusal to issue a ULP complaint. The court reasoned that the decision was not a "final order" within the meaning of Section 7123(a) of the Statute.
Macharia v. FLRA, No. 99-1537 (10th Cir. May 16, 2000), reviewing Case Nos. DE-CO-60029, DE-CO-60755, and DE-CA-80162. The Tenth Circuit dismissed as untimely an individual's appeal of a district court decision dismissing a challenge to the General Counsel's refusal to issue a ULP complaint.
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.
Fire Department Staffing
—Department of Veterans Affairs, Eastern Kansas Health Care System, Dwight D. Eisenhower VA Medical Center, Leavenworth, Kansas, Case No. 99 FSIP 164 (March 15, 2000), Panel Release No. 430 (Decision and Order). The Panel determined that the case, concerning mid-term bargaining over fire department staffing and whether firefighters should be hired as permanent employees, should be resolved through an informal conference.
With respect to staffing, the Employer proposed maintaining the status quo. The Union proposed adding one firefighter. The Panel adopted the Union's proposal. The Panel noted that under applicable regulations the requisite staffing level is 15 employees, but that because the fire chief has other duties, under the Employer's proposal, the fire department would only have 14.5 employees, while under the Union's proposal, the fire department would have sufficient staff. With respect to whether firefighters should be hired as permanent or temporary employees, the Panel determined that the Employer needs to retain discretion over this matter, and adopted the Employer's proposal that the status quo be maintained.
Location of Contractor Employees and Compressed Work Schedule
—Department of the Navy, Naval Aviation Depot, Jacksonville, Florida and Local 1943, National Federation of Federal Employees, Federal District No. 1, IAM&AW, AFL-CIO, Case No. 99 FSIP 160 (March 16, 2000), Panel Release No. 430 (Decision and Order). The Panel determined that the case, concerning impact-and-implementation bargaining over whether contractor personnel should be co-located with bargaining unit employees and whether the Employer should implement a compressed work schedule (CWS), should be resolved on the basis of written submissions from the parties. The Union proposed that contractor personnel not be stationed within Government-controlled space. The Employer essentially proposed that contractor personnel provide support services within the Employer's facilities. The Panel adopted the Employer's proposal on the merits, explaining that the Union had not refuted the Employer's contention that co-location of contractor personnel with bargaining-unit employees is necessary to ensure efficient operational support.
With respect to CWS, the Union proposed, among other things, that employees be given the option of a 5-4/9 CWS, or a 4/10 CWS; employees who work under CWS be permitted to select fixed starting times; and Fridays be taken as the day off, with no more than 65 percent of the workforce scheduled off on any Friday. The Employer proposed that bargaining-unit employees be given the option of working a 5-4/9 CWS, but not a 4/10 CWS; employees would have fixed work schedules, and would not be permitted to select starting times; only Friday would be the day off, with no more than 60 percent of the workforce scheduled off on any given Friday; and when a Federal holiday falls within a pay period, the employee's 8-hour day would be the holiday.
The Panel adopted a modified version of the Employer's proposal. The modification removed the clause requiring employees' 8-hour days to coincide with Federal holidays, and allowed employees to select starting times. The Panel explained that the Union's proposal seemed to provide the Employer with virtually no control over the work schedules selected by employees.
Reassignments and Performance Awards
—Federal Communications Commission, Washington, D.C. and Chapter 209, National Treasury Employees Union, Case No. 99 FSIP 168 (March 20, 2000), Panel Release No. 430 (Decision and Order). The Panel determined that the case, concerning mid-term reopener negotiations over reassignment selection procedures and distribution of performance awards, should be resolved in an informal conference with a Panel representative.
With respect to reassignments, the Panel adopted a compromise solution, noting that its solution would open up reassignment opportunities for unit employees without unduly restricting management's ability to select candidates for reassignment. Among other things, the compromise would require the Employer to inform the Union of all reassignment opportunities affecting bargaining-unit employees as they arise, and if the Union does not object to the reassignment of a particular employee, then no general notification to unit employees of the reassignment will be required; if the Union objects to the reassignment, the Employer will post on its intranet for 5 workdays each vacancy to be filled; if in management's judgment, the qualifications and suitability of candidates are equal, the most senior qualified volunteer will be selected; if there are no qualified volunteers, the least senior qualified employee will be selected.
With respect to awards, the Union proposed, among other things, that the Employer establish an awards pool for unit employees that is equal, on a percentage basis, to that of non-unit employees; nominations would go before a joint committee composed of management and Union representatives that would decide whether to grant an award, and what the amount of the award should be; and that decisions of the awards committee could be grieved by employees. The Employer proposed that all awards be subject to budgetary limitations and made at the discretion of the Employer; the awards program be based on a percentage of salary; nominations for awards be supported by written justification referring to pre-established criteria; and nominations for an employee of the year award be made by an employee's peers, immediate supervisor, or other management representative, and reviewed by an awards committee. In adopting the Employer's proposal, the Panel explained that the Union had provided no evidence that the Employer's previous practices had been unfair. Moreover, the Union's proposal appeared experimental, and contained potential procedural defects.
—Department of the Treasury, U.S. Customs Service, Washington, D.C. and National Treasury Employees Union, Case No. 99 FSIP 156 (March 23, 2000), Panel Release No. 430 (Decision and Order). The Panel determined that the case, concerning both the Employer's proposal to require Customs Inspectors to wear name plates with legal last names and impact-and-implementation issues arising from this proposal, should be resolved in an informal conference with Panel Member Mary E. Jacksteit.
The key issue was whether the wearing of name plates with legal last names should be required. With respect to the requirement to wear name plates, the Panel adopted the Employer's proposal, but, in consideration of one of the other matters in dispute, delayed implementation of the proposal for one year in order to give all employees time to remove their names from telephone directories. The Panel noted that the Union had failed to persuasively demonstrate that the use of name plates displaying employees' last names would increase the risk of threats, or other actions against uniformed Customs Employees and their families.
—Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, Case No. 00 FSIP 18 (March 24, 2000), Panel Release No. 430 (Decision and Order). The Panel determined that the case, concerning issues arising from bargaining over service observation (telephone monitoring), should be resolved through an informal conference with Panel Chair Bonnie Prouty Castrey.
The parties discussed three types of service observation. Six issues arose from the Employer's decision to implement such monitoring: (1) the type of notice employees would be given that their calls are to be monitored; (2) procedures for randomly selecting employees for observation; (3) the definition of a "conduct problem;" (4) the number of monitored calls per month; (5) vendor certification of the monitored telephone extensions; and (6) implementation of telephone monitoring, and the extent of local and national-level bargaining over the duration of the service observation.
With respect to the overriding issue of the type of notice employees should receive, the Panel adopted a compromise proposal that requires the Employer to provide employees with three workdays notice. The Panel explained that although the compromise effectively informs employees of the day on which monitoring will occur, the employee's uncertainty as to which calls will be monitored is sufficient to meet the objectives of the observation without causing undue stress.
Tours of Duty
—Department of the Treasury, U.S. Customs Service, New York Customs Management Center, Elizabeth, New Jersey and Chapter 161, National Treasury Employees Union, Case No. 00 FSIP 30 (April 25, 2000), Panel Release No. 431 (Decision and Order). The Panel determined that the parties' dispute over the number of tours of duty at a private airport in the New York City area, and their starting and quitting times, should be resolved through an informal conference with a Panel representative.
The Panel ordered the adoption of the Employer's proposal to implement an additional tour of duty at Teterboro Airport from 4 p.m. to 12 a.m., Mondays through Fridays on July 1, 2000; to retain Saturday Port Duty Assignments at both airports; and to allow all Inspectors who earn overtime at the outside airports an opportunity to bid to other secondary pools. The Panel concluded that the Union's proposal to have only one tour of duty from 12 p.m. to 8 p.m. at Teterboro, and no Port Duty assignments at either outside airport, would not have generated the same level of savings as the Employer's and, by canceling the port duty tours, could nearly double staffing costs by forcing the Employer to rely completely on overtime.
Implementation of 5-4/9 Compressed Work Schedules
—Department of the Navy, Naval Submarine Base New London, Groton, Connecticut and Local R1-100, National Treasury Employees Union, Case No. 00 FSIP 19 (April 28, 2000), Panel Release No. 431 (Decision and Order). The parties' impasse in this case arose under the Federal Employees Flexible and Compressed Work Schedules Act (Act), and required the Panel to decide whether the findings on which the Employer based its determination not to establish a 5-4/9 Compressed Work Schedule for crane operators and riggers was supported by evidence that the schedule was likely to cause an adverse agency impact. Procedurally, the Panel determined that the dispute should be resolved through an informal conference with Panel Member John G. Wofford. When the informal conference failed to result in a settlement of the matter, and after considering the parties' statements of position and Member Wofford's recommendations, the Panel concluded that the Employer had met its statutory burden under the Act by demonstrating that implementation of the Union's proposed CWS would likely cause a reduction in productivity and an increase in the cost of the agency's operations. Among other things, the Employer's calculations showed that, had the proposed CWS been in effect from June to November 1999, it would have resulted in 662 unproductive man-hours after 1600 hours, at an annualized cost of $21,195. Consequently, the Panel ordered the Union to withdraw its proposal.
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 June 1, 1999 through September 30, 1999, in addition to 12 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, Baltimore, Maryland and Council of Field Office Locals, AFGE, AFL-CIO, Case No. 00 FSIP 33 (closed October 5, 1999), the parties reached impasse over implementation of an automated time and attendance system. Member Marvin E. Johnson conducted an informal conference and the dispute was resolved voluntarily over a two-day period without the need for a written decision.
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.
UNILATERAL CHANGE OF ILLEGAL PAST PRACTICE BELOW THE LEVEL OF EXCLUSIVE RECOGNITION
This case presents an issue regarding what bargaining obligation, if any, an agency had when it changed an established past practice below the level of exclusive recognition and the master agreement between the parties had expired. The investigation disclosed that after several years, the agency changed a past practice of rating new employees in several grade series no more than "fully successful" at their first, 90-day appraisal. The General Counsel concluded that the past practice of giving all of these employees the same presumptive fully successful rating without performing an actual performance review was illegal.
Since there was no master contract in effect at the time of the change, it was not relevant whether the expired contract prohibited contrary local past practices. The General Counsel thus concluded that the change triggered a bargaining obligation that was limited to post-implementation bargaining since an agency may lawfully implement changes when it is necessary to correct an unlawful practice and is therefore only obligated to negotiate over the procedures and appropriate arrangements pertaining to the change after the change is made. The General Counsel thus authorized complaint, absent settlement.
ALLEGED PAST PRACTICE INCONSISTENT WITH BASE-WIDE AGREEMENT
This case concerns an alleged past practice at one of the Directorates at the Base that is inconsistent with a Base-wide agreement. The parties negotiated a Base-wide agreement, the Base Parking Plan, which sets out rules for parking. One of the rules did not allow employees to park in specifically marked reserved spaces. Despite this rule, there was a past practice at one of the Directorates where the employees on the swing and owl shifts parked in these spaces after 4:00 p.m. when most of the employees leave. Notwithstanding this practice, the Parking Monitor began issuing tickets.
Based on U.S. Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado, 55 FLRA No. 99, 55 FLRA 571 (1999), the General Counsel applied the following decisional analysis to determine whether there was a duty to bargain over a change in a local past practice that is inconsistent with a controlling agreement:
- Is there a lawful local past practice?
- If so, did the parties who are responsible for administering the agreement acquiesce in such practice thereby modifying their agreement? If they acquiesced, the inquiry ends.
- If not, is the lawful past practice contrary to the controlling contract that was in effect at the time that the local past practice was changed to conform with the controlling agreement? If no, the inquiry ends.
- If yes, did the controlling agreement prohibit contrary local past practices? To make this determination, if the controlling agreement prohibits only inconsistent supplemental agreements or midterm change agreements, it must be determined if that prohibition extends to contrary local past practices.
In this case, because there was a (1) lawful local past practice; (2) the parties did not acquiesce in the local past practice; (3) the local past practice was contrary to the controlling agreement in effect at the time that the local past practice was changed to conform to the controlling agreement and (4) the controlling agreement did not prohibit contrary local past practices (unlike HUD), the General Counsel authorized issuance of complaint, absent settlement.
EEO INVESTIGATOR DISCUSSIONS, FORMAL IN NATURE, WITH UNIT EMPLOYEES
This case concerns whether discussions, formal in nature, between an agency EEO investigator and bargaining unit employees being interviewed as part of those investigations, are formal discussions under section 7114(a)(2)(A) of the Statute. The Union sent a letter to the Activity designating a representative to be present during all phases of the EEO complaint process when bargaining unit employees were being interviewed by Agency representatives, including Office of Complaint Investigations (OCI). Thereafter, an OCI investigator met individually with six unit employees, and neither gave the Union notice of the meetings, nor an opportunity to attend.
The General Counsel applied Luke Air Force Base, Arizona, 54 FLRA No. 75, 54 FLRA 716, 732-33 (1998), reversed sub. nom. Luke Air Force Base, Arizona v. FLRA, (No. 98-71173 Dec. 30, 1999), wherein the Authority reaffirmed its position that a grievance within the meaning of section 7114(a)(2)(A) can encompass a statutory appeal, and held that a mediation/investigation session to resolve formal EEO complaints is a statutory formal discussion where an exclusive representative has the right to be represented and to actively participate. Based on the characteristics of the meetings, the General Counsel initially concluded that the requisite formality element under section 7114(a)(2)(A) had been met. In this regard, the employees were required to attend; the meetings lasted 10 to 30 minutes in a building separate from the employees' work area; the employees' received two to four days notice of the individual meetings; and the employees provided written statements. Second, relying on his January 26, 1999 "Guidance on Applying the Requirements of the Federal Service Labor-Management Relations Statute to Processing Equal Employment Opportunity Complaints and Bargaining over Equal Employment Opportunity Matters," in which relevant Authority precedent was reviewed, the General Counsel concluded that the OCI investigator was a representative of the Agency for section 7114(a)(2)(A) purposes.
The General Counsel thus concluded that the discussions in this case, which were about a formal EEO complaint, are grievances for section 7114(a)(2)(A) purposes. Applying Luke, the General Counsel found that there was no legal basis upon which to conclude that the interviews did not concern grievances. Accordingly, absent settlement, the Region was advised to issue complaint.
PRE-HEARING CONFERENCE ORDERED BY A UNITED STATES DISTRICT COURT IN AN EEO CIVIL ACTION
This case concerns whether a pre-hearing conference ordered by a United States District Court in an EEO civil action constitutes a formal discussion under section 7114(a)(2)(A) of the Statute. After completing the EEO administrative procedure, a unit employee filed suit against the Agency in a United States District Court. The employee was represented by private counsel and the agency was represented by a U.S. Attorney. At a pre-hearing conference, the parties exchanged documents, discussed discovery issues and the possible settlement of the case. Although the employee did not participate in the settlement discussions, by the end of the pre-hearing conference the parties had reached a settlement. The parties then outlined the resolution that had been reached - the employee would be placed in a different position, receive on-the-job and specialized training, and be paid a sum of money as full compensation for all claims. The Assistant U.S. Attorney then met with the unit employees to inform them of the settlement and advised the union president of the meeting.
In concluding that the formal discussion allegation of the charge should be dismissed, absent withdrawal, the General Counsel found that the case does not concern the entitlement of an exclusive representative to be represented at a meeting within control of an agency. Rather, the meeting was ordered by a United States District Court as part of the Court's proceedings over which it has jurisdiction. Thus, the meeting in this case was not a formal discussion because the agency neither scheduled it, nor controlled it. The Region was advised to dismiss this allegation, absent withdrawal. Even though the meeting at issue was not a formal discussion, the General Counsel noted that unions are not precluded from participating in EEO actions in Federal District Court that affect bargaining unit employees. In addition, although the union may have no statutory rights to attend court-mandated hearings, the General Counsel reiterated that a union still has the right to bargain before a change is made in a condition of employment. Because the investigation in this case disclosed that the agency made a change in a condition of employment without fulfilling its statutory bargaining obligation, the General Counsel authorized complaint, absent settlement, on that particular allegation.
In the recently-issued guidance on remedies directed to the Regional Directors, the General Counsel discusses the Office of the General Counsel's policy on seeking appropriate remedies and describes the types of remedies and the elements of proof that are necessary to obtain those remedies. The General Counsel intends for this Guidance to aid Regional Directors in investigating, settling and litigating ULP complaints and to support the parties' efforts in trying to settle those complaints.
The Guidance is divided into five parts: Part I -- "Remedial Authority under the Statute" -- sets forth the remedial provisions of the Statute and discusses the purposes of remedies; Part II -- "OGC Remedy Policy" -- sets forth the General Counsels policy in seeking remedies in the litigation of ULP complaints and emphasizes the importance of developing evidence of the appropriate remedy throughout the processing of a ULP charge and the litigation of a ULP complaint; Part III -- "Traditional and Nontraditional Remedies" -- explores the Authority's standards for ordering "nontraditional" remedies; Part IV --"Postings and Notices" -- explores issues concerning where remedial notices are posted and distributed, and which official signs such notices; and Part V -- "Monetary Awards" -- discusses the requirements that need to be met before money may be awarded.
Many of the remedies discussed in the Guidance are well established by Authority precedent, but those decisions do not foreclose establishing further innovative remedies, as long as the Statute is effectuated, and evidence supports the need for such a remedy, and the remedy is not otherwise inconsistent with the Statute or other external law. Accordingly, to assist the parties in recognizing and supporting appropriate remedies, the General Counsel has attached to the Guidance a list of specific ULP violations and the different types of remedies, both traditional and nontraditional, with descriptions of the types of evidence that are necessary to establish the appropriateness of those remedies (Attachment 1); and a decisional analysis for Regional Directors to use when deciding on appropriate remedies for ULPs (Attachment 2). The Guidance also contains an Executive Summary in a Question and Answer format. The Guidance is available on the FLRA Web Site, www.flra.gov.
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 Not to Refuse to Accept and Honor Valid Written Dues Assignments from Bargaining Unit Employees for the Payment of Dues to the Union and to Reimburse the Union for Dues it Would Have Received from Employees Had They Not Been Incorrectly Excluded from the Bargaining Unit
After issuance of a complaint and notice of hearing, the parties agreed that the Agency would post a notice to all employees agreeing not to refuse to comply with section 7115(a) of the Statute by refusing to accept and honor valid written dues assignments from three bargaining unit employees for the payment of regular and periodic dues to the Union. The parties further agreed that the Agency would reimburse the Union in an amount equal to the regular and periodic dues it would have received from the pay of bargaining unit employees who executed valid written dues assignments but which dues it did not receive as a result of the Agency incorrectly excluding them from the bargaining unit.
Agency Agrees to Bargain Prospectively with the Union Concerning the Renovations to be Made in a Facility that Resulted in Changes to Unit Employees' Working Conditions
In a pre-complaint settlement agreement, the parties agreed to bargain, in accordance with the parties' collective bargaining agreement and the Statute, concerning the renovations made to a building that changed the working conditions of employees. In the Notice to all employees that was posted, the Agency acknowledged its duty under the Statute to notify the Union before making changes in conditions of employment of bargaining unit members and to negotiate over the implementation procedures and the appropriate arrangements for adversely affected employees before making such changes.
Agency Agrees to Reconfigure and Recompute Leave Owed to Employees' Sick and Annual Leave Accounts
In a post-complaint settlement agreement, the parties agreed that the Agency would use an agree-upon mechanism to reconfigure and recompute leave owed to 14 bargaining unit employees' sick and annual leave accounts. The parties also agreed that the Union would brief the employees that there is not a requirement to advance annual leave or sick leave when an employee has a negative leave balance since employees always have the option of requesting leave without pay. The parties agreed further that affected employees' 401K accounts would be restored using non-taxed dollars by placing monies directly into the employees' accounts through the non-appropriated fund 401K representative. Each affected employee would also receive a notice restating the obligations entered into under the settlement agreement.
Agency Agrees to Send Letters to the Union and Unit Employees Acknowledging its Obligations to Give the Union Notice and Opportunity to be Represented at Formal Discussions with Unit Employees
After issuance of complaint and notice of hearing, the parties agreed that the Agency would send a letter to the Union and to three unit employees who were present at a meeting which the Agency convened to discuss a pending grievance without giving the Union notice and an opportunity to attend. In the letter, the Agency acknowledged its obligations under the Statute to give the Union notice and an opportunity to be represented at formal discussions with bargaining unit employees and provided an assurance that it would do so in the future. The Agency also recognized the unit employees' right to designate and rely on the Union to process their grievances through the negotiated grievance procedure. Finally, the Agency stated that it would not bypass the Union and communicate directly with a bargaining unit employee concerning any grievance.
Agency Posts Notice Agreeing Not to Counsel, Admonish or Discriminate Against a Union Representative for Engaging in Protected Conduct and to Expunge from all Agency Files References to any Counseling Given to the Union Representative
In a post-complaint settlement agreement, the parties agreed that the Agency would post a notice stating that it would not counsel, admonish, or otherwise discriminate against any Union representative for performing representational duties. The Agency agreed to expunge from all files all records of, and references to, the counseling given to the Union representative who, while on official time, sent an e-mail message soliciting volunteers for work-related training. Lastly, the Agency agreed not to take further action, of any sort, against the Union representative, or any other unit employee, concerning use or non-use of official time with regard to this e-mail message.
Agency Posts Notice Agreeing to the Status Quo by Returning to the Previous Practice of Distributing Hard Copies of a Calendar, Notifying All Employees of Calendar Revisions, and by Returning to Previous Processes and Procedures
In a post-complaint settlement agreement, the parties agreed that the Agency would post a notice stating that it would not implement changes in unit employees' working conditions without providing the Union with notice and opportunity to bargain. In addition, the Agency agreed to return to the status quo by returning to the previous practice of distributing hard copies of a calendar, notifying all employees of calendar revisions, and by returning to previous processes and procedures until such time as the Agency has properly notified the Union and provided it an opportunity to bargain such changes to the extent required by the Statute.
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 to Post Notice and to Send Letters to Employees Located at a Satellite Location Acknowledging Its Obligation Under the Statute to Provide the Union with Notice and an Opportunity to be Represented at Formal Meetings Between Employees and Management Representatives
Before issuance of complaint and notice of hearing, the Agency agreed to post a notice stating that the Agency acknowledged its obligation under the Statute to provide the Union with notice and an opportunity to be represented at formal meetings between employees and management employees at which a grievance or general conditions of employment are discussed. The Agency also agreed to send a copy of the notice to those employees who are located at a satellite location and who were interviewed by the Agency outside the presence of a Union representative in preparation for the arbitration of a grievance.
Agency Agrees to Return to the Former Official Time Practice and to: (1) Rescind Absence Without Leave (AWOL) Issued to Unit Employees; (2) Expunge Any Reference to Such in the Employees' Personnel Files and (3) Not Use These Actions in Any Future Actions Against the Employees
In a pre-complaint settlement agreement, the Agency agreed to return to the previous official time practice and to bargain as required by the Statute should it decide to change the official time practice in the future. The Agency also agreed to: (1) rescind the AWOLs issued to two unit employees that occurred as a result of a change in the official time practice; (2) expunge from the employees' individual and personnel files any record of the AWOL; and (3) not use the latter actions in any way to support any future actions against the employees.