51:0124(13)CA - - Energy, Washington, DC and AFGE Local 1995 - - 1995 FLRAdec CA - - v51 p124



[ v51 p124 ]
51:0124(13)CA
The decision of the Authority follows:


51 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF ENERGY

WASHINGTON, D.C.

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1995, AFL-CIO

(Charging Party/Union)

WA-CA-30682

_____

DECISION AND ORDER

September 8, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, the Respondent and the Union filed briefs with the Authority.(1)

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with the bargaining relationship between the Morgantown Energy Technology Center (METC) and the Union when it disapproved a provision that had been included in the parties' collective bargaining agreement. The complaint further alleges that because inclusion of the provision had been ordered by the Federal Service Impasses Panel (Panel), the Respondent's disapproval violated section 7116(a)(1) and (6) of the Statute.

For the reasons stated below, we find that the Respondent violated the Statute, as alleged.

II. Stipulation

On April 6, 1993, the Panel issued an Order in 93 FSIP 14, directing the METC and the Union to adopt the following provision into their term agreement.

The Employer will be obligated to bargain in good faith on any negotiable Union-initiated proposals concerning matters that are not contained in or covered by the collective bargaining agreement, unless the Union has waived its right to bargain about the subject matter involved.

Stipulation, para. 7. The Respondent subsequently disapproved the provision.

III. Positions of the Parties

A. Respondent

The Respondent argues that its disapproval of the provision does not constitute an unfair labor practice. In support, the Respondent asserts that the United States Court of Appeals for the Fourth Circuit held, in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA v. FLRA), that requiring an agency to bargain midterm over union-initiated proposals was inconsistent with "the paramount right of the public to as effective and efficient a Government as possible." Respondent's Brief at 3. In the Respondent's view, the court's rationale applies without regard to whether a union's right to bargain "exists per se or . . . by negotiation." Id. The Respondent maintains that because the METC is located within the jurisdiction of the Fourth Circuit, SSA v. FLRA should control this case. The Respondent adds that, under the provision, "rolling bargaining will occur with the result of a great diminution of stability in the labor relations program and a great increase in the costs of bargaining and the number of disputes." Respondent's Brief at 4.

B. General Counsel

The General Counsel argues that this case "essentially concerns the negotiability" of the Panel-imposed provision. General Counsel's Brief at 3. The General Counsel relies on previous Authority decisions which held that, absent waiver, an agency is obligated to bargain over union-initiated midterm proposals relating to matters that are not contained in or covered by a collective bargaining agreement.(2) According to the General Counsel, these decisions establish that provisions requiring such bargaining are negotiable. The General Counsel argues that, as the Panel-imposed provision is negotiable, the Respondent violated section 7116(a)(6) of the Statute by disapproving it and, in turn, violated section 7116(a)(5) because the disapproval constituted unlawful interference with the bargaining relationship between METC and the Union.

C. Union

The Union notes that the Authority has declined to follow SSA v. FLRA. The Union also maintains that the Panel-ordered provision is fully consistent with the Statute and relevant Authority decisions.

IV. Analysis and Conclusions

A. Section 7116(a)(1) and (6) of the Statute

An agency acts at its peril in disapproving a Panel-imposed provision. If, on review in an unfair labor practice proceeding,(3) the provision is found negotiable, then the disapproval constitutes a failure or refusal to cooperate in "impasse decisions" in violation of section 7116(a)(1) and (6) of the Statute. See Department of the Treasury and Internal Revenue Service, 22 FLRA 821, 827-28 (1986) (Department of the Treasury). In this case, we find, for the reasons set forth below, that the disputed provision is negotiable and that, therefore, the Respondent violated the Statute by disapproving it.

A provision is negotiable under section 7117 of the Statute unless, as relevant here, it is inconsistent with law (including the Statute), Government-wide regulation, or an agency regulation for which the agency has established a compelling need. The Respondent argues in this case that the disputed provision is inconsistent with the Statute as it has been interpreted by the Fourth Circuit's decision in SSA v. FLRA. However, the Fourth Circuit did not address the negotiability of a provision for union-initiated midterm bargaining; the court addressed only whether, apart from any contractual obligation, an agency is required under the Statute to engage in such bargaining.(4) Accordingly, that decision does not persuade us to find the disputed provision in this case nonnegotiable.(5)

Respondent makes two other related arguments. First, the Respondent claims that the provision would result in "rolling bargaining" that would increase the costs of negotiations and the number of bargaining disputes. Respondent's Brief at 2, 4. Second, the Respondent claims that the provision is inconsistent with the public's right to "as effective and efficient a Government as possible." Id. at 3.

The claim that the provision would create disruption in the bargaining process and require negotiations at any time on a union-initiated midterm proposal that "does not specifically overturn language previously agreed to" is not properly before us in this proceeding because it does not constitute a negotiability argument under section 7117 of the Statute.(6) Id. at 2. Instead, the argument is addressed to the merits of the proposal; it was raised before, and considered by, the Panel. See 93 FSIP 14, Panel Release No. 314 (April 8, 1993). Accordingly, it does not provide a basis on which to find the provision nonnegotiable.

Although not clearly framed as a negotiability argument, the Respondent's reference to the provision's alleged inconsistency with an "effective and efficient Government" can be construed to question whether the provision is nonnegotiable as inconsistent with section 7101 of the Statute.(7) See American Federation of Government Employees, Local 1995 and U.S. Department of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia, 47 FLRA 470, 472-73 (1993) (Department of Energy).(8) The Authority previously has rejected a similar argument, finding that a reopener proposal was not inconsistent with section 7101. Id.; cf. United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1168-69 (1992) (Authority rejected argument that finding negotiable proposed time limits for filing certain claims was inconsistent with section 7101(b)). The Respondent's conclusory arguments provide no basis for reaching a different result in this case. Accordingly, we find that the disputed provision is not inconsistent with section 7101 of the Statute. But cf. SSA v. FLRA, 956 F.2d at 1288 (dictum) (court stated that "[a]pproval of union-initiated midterm bargaining would also contravene many of the basic purposes of the [Statute]" including "'the paramount right of the public to as effective and efficient a Government as possible.'") (citation omitted).

Based on the foregoing, we conclude that the disputed provision is not inconsistent with the Statute or any other law, Government-wide regulation, or agency regulation for which a compelling need has been established. Accordingly, it is negotiable and the Respondent's disapproval of it violated section 7116(a)(1) and (6) of the Statute. See Department of the Treasury.

B. Section 7116(a)(1) and (5) of the Statute

It is a violation of section 7116(a)(5) "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter[.]" The impasse resolution procedures of the Panel operate as one aspect of the collective bargaining, or negotiation, process. For example, Social Security Administration, 35 FLRA 296, 304 (1990). As such, we conclude that an agency violates section 7116(a)(5) if it refuses to comply with the lawful orders of the Panel or interferes with efforts to do so by the parties at the level of exclusive representation.

As applicable here, the record shows that the parties at the level of exclusive recognition incorporated the disputed provision--which, for the reasons discussed above, is negotiable--into their collective bargaining agreement at the Panel's direction. Accordingly, when the Respondent improperly disapproved the provision, it unlawfully interfered with the collective bargaining process between the local parties and, thereby, violated section 7116(a)(1) and (5) of the Statute. See generally Department of Defense Dependents Schools (Alexandria, Virginia), 33 FLRA 659, 665-66 (1988) (adopting judge's conclusion that the agency's disapproval of a Panel-imposed provision constituted a failure to comply with an impasse decision in violation of section 7116(a)(6) and an unlawful interference with the bargaining relationship between the parties at the local level in violation of section 7116(a)(5)).

In reaching this result, we note that in prior decisions the Authority has refrained from addressing alleged violations of provisions of the Statute in addition to section 7116(a)(1) and (6), where findings as to the additional violations would not affect the remedy. Department of the Treasury, 22 FLRA at 829 n.8; see also U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 456, 461 (1984). However, we conclude that it will best effectuate the purposes and policies of the Statute to address all the allegations of the complaint in this case, thereby providing fuller guidance to the labor-management community.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Energy shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the Decision and Order of the Federal Service Impasses Panel in 93 FSIP 14, by disapproving a negotiable provision ordered to be included in a collective bargaining agreement between the Morgantown Energy Technology Center (METC) and the American Federation of Government Employees, Local 1995, AFL-CIO (Union).

(b) Disapproving a negotiable provision and, thereby, interfering with the bargaining relationship between the METC and the Union.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind its disapproval of the provision imposed by the Federal Service Impasses Panel in 93 FSIP 14 and direct the METC to incorporate the provision in its collective bargaining agreement with the Union.

(b) Post at its facilities at the METC, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Secretary of Energy and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to comply with the Decision and Order of the Federal Service Impasses Panel in 93 FSIP 14 by disapproving a negotiable provision ordered to be included in a collective bargaining agreement between the Morgantown Energy Technology Center (METC) and the American Federation of Government Employees, Local 1995, AFL-CIO (Union).

WE WILL NOT disapprove a negotiable provision and, thereby, interfere with the bargaining relationship between the METC and the Union.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind our disapproval of the provision imposed by the Federal Service Impasses Panel in 93 FSIP 14 and direct the METC to incorporate the provision in its collective bargaining agreement with the Union.

___________________________
(Agency)

Dated:__________ By: _______________________

(Signature) (Title)

This Notice must be posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, N.W., 4th Floor, Washington, D.C. 20037, and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The General Counsel also moved to correct the stipulation. We grant the motion, noting that it was unopposed and that the corrections consist of minor word changes.

2. The General Counsel cites, among other decisions, Internal Revenue Service, 29 FLRA 162 (1987) (IRS), in which the Authority held that the Statute requires an agency to engage in midterm bargaining over union-initiated proposals covering matters that are not contained in or covered by a collective bargaining agreement unless the union waived its right to bargain about the subject matter involved. In IRS, the Authority adopted the decision of the United States Court of Appeals for the District of Columbia Circuit in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987).

3. A union may seek review of such a disapproval either in an unfair labor practice proceeding under section 7118 of the Statute and Part 2423 of the Authority's Regulations, or a negotiability proceeding under section 7117 of the Statute and Part 2424 of the Authority's Regulations. Interpretation and Guidance, 15 FLRA 564 (1984), aff'd sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985).

4. The Authority has respectfully declined to follow the Fourth Circuit's decision, adhering, instead, to the holding in IRS. For example, U.S. Patent and Trademark Office, 45 FLRA 1090, 1091 n.2 (1992), enforcement denied as to other matters No. 92-2347 (4th Cir. Apr. 19, 1993). We recognize that in ordering the adoption of this provision, the Panel relied on the Authority's IRS decision. However, even if the Authority were to overturn IRS and agree with the SSA v. FLRA decision in this case, the outcome would not change. The Authority has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question. For example, National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 7 (1986), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (upholding the negotiability of a proposal that the employer pay travel and per diem expenses of union negotiators, and citing the Supreme Court's admonition in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 107 n.17 (1983), that although agencies are not required to pay such expenses, "unions may presumably negotiate for such payments in collective bargaining . . . ."); National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1445 (1992), remanded on other grounds sub nom. National Treasury Employees Union v. FLRA, 30 FLRA F.3d 1510 (D.C. Cir. 1994) (finding negotiable a proposal that agency investigators advise employees of their representation rights under section 7114(a)(2)(B) of the Statute, despite acknowledging the agency's argument that the proposal provided greater representational rights than those set forth in the Statute). In addition, the Panel's rationale for its conclusion does not limit the bases on which the Authority may determine a provision to be negotiable. Cf. Tidewater Virginia Federal Employee Metal Trades Council, AFL-CIO, and Norfolk Naval Shipyard, 32 FLRA 98, 100 (1988) ("The Authority must apply all relevant provisions of the Statute in resolving negotiability appeals and is not limited to considering only the arguments of the parties.").

5. Although the negotiability of the provision does not depend on finding that there is an obligation under the Statute to engage in the bargaining encompassed by the provision, we note that the Authority previously has found that proposals that restate bargaining obligations are consistent with the Statute. For example, National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1135-36 (1991); International Federation of Professional and Technical Engineers, Local 128, 39 FLRA 1500, 1504 (1991). The disapproved provision here constitutes such a restatement and, as such, is negotiable on that ground as well. See Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852 (1988) (Proposal 4).

6. We note, moreover, that the Respondent's argument is inconsistent with the wording of the provision, which provides for bargaining only over matters that are not "contained in or covered by" the parties' collective bargaining agreement. Under Authority decisions, the provision would not require bargaining on matters that are expressly contained in an agreement and matters that are "so commonly considered to be an aspect of the matter se