U.S. DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, PLANT PROTECTION AND QUARANTINE, HONOLULU, HAWAII and NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES
WASHINGTON, D.C. 20424-0001
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U.S. DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, PLANT PROTECTION AND QUARANTINE, HONOLULU, HAWAII
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and NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES
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Case No. SF-CA-50933
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Stanley E. Kensky Representative of the Respondent
Yolanda Shepherd Eckford Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. §
7116(a)(1) and (5), by altering and repudiating an agreement with
the Charging Party (Union,) concerning provisions 3A and 3B of the
transit flight policy, and thereby engaged in bad faith bargaining
in violation of the Statute.
Respondent's answer denied any agreement or alteration with
respect to the 3A or 3B proposals and any violation of the
Statute.
A hearing was held in Honolulu, Hawaii. The Respondent and the
General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs.
For the reasons set out below, I find that a preponderance of
the evidence does not support a violation of the Statute. Based on
the entire record, including my observation of the witnesses and
their demeanor, I make the following findings of fact, conclusions
of law, and recommendations.
The National Association of Agriculture Employees is the
exclusive representative of a nationwide unit of U.S. Department of
Agriculture, Animal and Plant Health Inspection Service, Plant
Protection and Quarantine (PPQ) employees, including employees at
the Respondent's Honolulu, Hawaii facility. The mission of the
Respondent is to prevent agriculture pests from foreign sources
from entering the United States. This is achieved through the
inspection of passengers, vessels, baggage and cargo prior to entry
into the United States. The Respondent's Honolulu office enforces a
domestic quarantine to ensure that Hawaii pests do not enter the
mainland United States.
By letter dated April 4, 1994, the Officer in Charge of the
Honolulu Office of the Respondent notified the Union of
management's intention to implement a change in its Transit Flight
Policy by discontinuing its practice of "preclearing" passengers
and crews boarding in Honolulu on "progressively cleared flights."
In essence, the Officer-in-Charge's memo meant that the
Respondent's inspectors would no longer conduct inspections of
passengers who had stayed in Hawaii for a brief period of time on
route via a foreign flag airline carrier to the mainland United
States. Such inspections were normally conducted on overtime by the
Respondent's inspectors because the flights would often arrive
outside of regular shift hours. The expense of conducting the
inspections on overtime pay was borne by the airlines.
The Union submitted ground rule proposals for negotiations
concerning the proposed change in working conditions. An impasse on
the ground rules was declared by the Respondent.(1) The parties were at impasse over two
proposals submitted by the Union. One of the proposals stated that,
"Implementation may not occur until all proposals including impact
and implementation proposals have been negotiated to
conclusion."(2)
By letter dated September 13, 1994, the Regional Director of
the Western Region of the Respondent submitted notice of the same
change to Union representative Mike Randall. By letter dated
September 22, 1994, Randall submitted proposals in response to the
Respondent's September 13, 1994 notice. However, no negotiations
occurred because the parties were still at impasse over the ground
rules for negotiations. In mid-December 1994, the ground rules
impasse was resolved by the Federal Service Impasses Panel (FSIP).
The FSIP imposed upon the parties the Union's proposed ground rule
that implementation not occur until the completion of
negotiations.(3) The parties
completed negotiations on the remaining ground rules in February
1995.
On February 28, 1995, the parties commenced negotiations on the
proposed change in the Transit Flight Policy. The Union was
represented in the negotiations by Randall and two bargaining unit
employees who were not Union representatives, Wendell Wong and
Roger Yamane. Management was represented in the negotiations by
Glenn Hinsdale, the Hawaii State Health Director, Mike Wafer, a
Regional Employee Relations Specialist, and James Eddy, the
Officer-in-Charge at the Respondent's Los Angeles facility.
On the first three days of negotiations, the parties discussed
the Union's proposals, coming to agreement on some of the
proposals. The parties did not, at that point, reduce their
agreement to writing. By the third day of negotiations, March 2,
1995, the parties had reached agreement on all proposals, with the
exception of two proposals which the parties agreed would be
addressed during local negotiations on the subject, and proposal
number 3. The Union's proposal number 3 stated:
Union and Management agree that no matter where inspections
conducted pursuant to 7 CFR 318.13 occur, qualified bargaining unit
personnel shall be utilized to do the inspection clearance work to
the extent possible, consistent with port personnel requirements.
The method and means of work accomplishment shall be, to the
greatest extent possible, have qualified Honolulu bargaining unit
personnel, if available, inspect and clear Honolulu domestic
outbound passengers, crew and baggage joining
progressively-Custom-cleared-foreign flag carrier flights to the
mainland, prior to aircraft departure from Honolulu, as is the
current policy and practice.
On March 2, 1995, at the end of the day, management representatives informed the Union representatives that they could not agree to proposal 3 as written. Hinsdale asked the Union negotiators to revise the proposal.
Randall conferred with the Union's attorney the following
morning and devised proposals 3A and 3B which stated:
3A. Union and Management agree that no matter where inspections
conducted pursuant to 7 CFR 318.13 occur, ratios of L/A and
technician employees to PPQ Officers shall remain the same as the
ratios used on January 1, 1995 to do the inspection clearance work
to the maximum extent possible, consistent with port personnel
requirements.
3B. The method and means of work accomplishment shall be, to the
greatest extent possible, to have qualified Honolulu bargaining
unit personnel, if available, inspect and clear Honolulu domestic
outbound passengers, crew and baggage joining
progressively-Custom-cleared-foreign flag carrier flights to the
mainland, prior to aircraft departure from Honolulu.
On March 3, 1995, Management prepared a document reflecting all proposals agreed to by the parties, and Hinsdale and Randall initialed each proposal.(4) With respect to proposal 3, the document stated: "Note: This proposal on HOLD requiring further negotiations per discussion concerning NAAE Proposals 3A. and 3B."
Following the submission of Union proposals 3A and 3B, the
parties discussed them, then the management representa-tives asked
for time to caucus. During this period of time, the management
negotiation team caucused and contacted the Agency for advice.
After being advised by the Agency that the two proposals were
considered non-negotiable, Mr. Hinsdale retyped Union proposals 3A
and 3B on his computer with a preamble at the top which read as
follows:
It is Managements position that the union proposals submitted on
March 3, 1995 at Regional Negotiations are non negotiable as
written:
The parties met again approximately ninety minutes later. Mr. Hinsdale and Mr. Randall signed one document and another marked "copy." A document with the original signatures of Mr. Hinsdale and Mr. Randall was offered by Respondent at the hearing and a copy was received in evidence.
All three of the Union negotiators, Michael Randall, Wendell
Wong, and Roget T. Yamane, testified that when the management
representatives came back into the room, Mr. Hinsdale said he was
ready to sign the Union's proposal. The Union negotiators testified
that, before Mr. Randall signed the document, they each carefully
examined the management document to compare the typed 3A and 3B
proposals with the Union's version, and the above preamble was not
on the document which they viewed and Mr. Randall signed.
Two of the management negotiators, Glenn Hinsdale and Michael
Wafer, testified that the documents were signed merely to
acknowledge the non-negotiability determination; that they did not
indicate agreement with the proposals in any way, which would have
been entirely inconsistent with their previous positions; and that
the signed documents contained the above preamble, as demonstrated
by one of the originals, and were not altered in any way.
The original document in evidence gave no appearance of
alteration. Mr. Randall speculated that the document with the
original signatures could have been altered later by simply typing
the preamble on the same computer and printing it on the executed
document. No evidence supporting this theory was offered.
Based on the physical evidence, an original document, which is
supported by the testimony of the management negotiators, which I
credit, and find more consistent and plausible given the history of
the negotiations than that of the Union negotiators, I find that
the above preamble declaring provisions 3A and 3B to be
non-negotiable was on the documents when they were signed by Mr.
Wafer and Mr. Randall and, consequently, that there was no
agreement between the Respondent and the Union which included
provisions 3A and 3B concerning the transit flight policy.
Mr. Randall was not furnished a copy of the document. In Mr.
Wafer's haste to catch a plane to Los Angeles, he placed the
original documents in his briefcase and took them to his office in
Sacramento. When Mr. Randall learned several weeks later that Mr.
Wafer had the documents, Mr. Randall requested a copy, and Mr.
Wafer faxed him a copy on or about April 17, 1995. The Union's
petition for review of negotiability, filed with the Authority on
August 18, 1995 (dismissed without prejudice, October 11, 1995,
O-NG-2262), and its unfair labor practice charge in the instant
case, filed September 25, 1995, followed.
The Respondent implemented its proposed transit flight policy
in September 1995. The Policy did not include Union proposals 3A
and 3B.
Section 2423.18 of the Rules and Regulations, 5 C.F.R. §
2423.18, based on section 7118(a)(7) and (8) of the Statute,
provides that the General Counsel "shall have the burden of proving
the allegations of the complaint by a preponderance of the
evidence." Based on the credibility resolutions made above, it is
concluded that a preponderance of the evidence does not establish
that Respondent violated section 7116(a)(1) and (5), as alleged, by
altering and repudiating an agreement on provisions 3A and 3B
concerning the transit flight policy.
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, November 12, 1996
GARVIN LEE OLIVER
Administrative Law Judge
1. The parties were already at impasse over almost identical ground rules submitted by the Union in connection with another matter then pending negotiation.
2. Record evidence establishes that "negotiated to conclusion" meant "through impasse procedures, negotiability appeal (and) any arbitration...."
3. The other ground rule over which the parties were at impasse was resolved without FSIP assistance.
4. The initialing process adhered to Paragraph #14 of the "Ground Rules for Transit Flight Negotiation", which states:
14. When both parties reach agreement on the language of a provision or item, that provision or item shall be reduced to writing and initialed by each chief negotiator. Both sides shall be provided with copies of the initialed agreement.