[ v06 p548 ]
06:0548(100)CA
The decision of the Authority follows:
6 FLRA No. 100
DEPARTMENT OF THE AIR FORCE
U.S. AIR FORCE ACADEMY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1867
Charging Party
Case No. 7-CA-459
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION
AS SET FORTH IN THE ATTACHED JUDGE'S DECISION AND ORDER. THEREAFTER THE
RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE JUDGE'S DECISION AND
ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF
THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THE CASE, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
IN ADOPTING THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
THE AUTHORITY AGREES THAT A WAIVER WILL BE FOUND ONLY IF IT CAN BE SHOWN
THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY AND UNMISTAKABLY WAIVED ITS
RIGHT TO NEGOTIATE. /1/ THE AUTHORITY FURTHER AGREES THAT NO SUCH CLEAR
AND UNMISTAKABLE WAIVER IS PRESENT IN THIS CASE.
MOREOVER, THE AUTHORITY NOTES THAT THE JUDGE FOUND THAT THE DISPUTED
"STAY OF ACTION" PROPOSAL WAS, "IN ALL MATERIAL RESPECTS, IDENTICAL TO
THE LANGUAGE OF THE UNION'S PROPOSAL" IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO.
16(1979), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. NO. 80-1119, JULY 2,
1981). HE THEN REASONED THAT " . . . AN UNFAIR LABOR PRACTICE WILL BE
FOUND EVEN WHERE THE PARTIES INVOLVED IN THE PRIOR NEGOTIABILITY CASE
WERE DIFFERENT AS LONG AS "'NO MEANINGFUL DIFFERENCES'" CAN BE FOUND
BETWEEN THE TWO PROPOSALS." /2/ THE AUTHORITY AGREES THAT ONCE A
PROPOSAL HAS BEEN DETERMINED TO BE NEGOTIABLE THROUGH THE PROCESSES OF
THE STATUTE, IT IS A VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE FOR
ANY AGENCY TO REFUSE TO NEGOTIATE IN GOOD FAITH ON THAT PROPOSAL, OR ON
A PROPOSAL WITHOUT MATERIAL DIFFERENCES, IN SIMILAR CIRCUMSTANCES. THAT
IS, WHERE THE NEGOTIABILITY OF A PROPOSAL IS ESTABLISHED BY AUTHORITY
PRECEDENT, AS IN THE PRESENT CASE, IT IS A REFUSAL TO BARGAIN IN GOOD
FAITH TO MAINTAIN THAT THE PROPOSAL IS NON-NEGOTIABLE. SUCH A REFUSAL
TO BARGAIN IS VIOLATIVE OF SECTION 7116(A)(5) AND (1) OF THE STATUTE.
APPLYING THESE PRINCIPLES TO THE INSTANT CASE, THE AUTHORITY FINDS
THAT THE LANGUAGE OF THE PROPOSAL IS ALMOST IDENTICAL TO THE LANGUAGE OF
THE PROPOSAL IN THE DIX-MCGUIRE CASE AND THE AGENCY PROFFERS NO SHOWING
THAT THE CIRCUMSTANCES ARE SUCH AS TO WARRANT A DEPARTURE FROM THE
NEGOTIABILITY DETERMINATION ON THE "STAY OF ACTION" PROPOSAL IN THE
DIX-MCGUIRE CASE. HENCE, THE RESPONDENT'S REFUSAL TO NEGOTIATE ON THE
PROPOSAL CONSTITUTES A VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE
STATUTE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, U.S. AIR
FORCE ACADEMY, COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) DECLARING NONNEGOTIABLE A PROPOSAL MADE IN THE COURSE OF
NEGOTIATIONS BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1867, WHICH
INVOLVES A MATTER PREVIOUSLY
DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1867,
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROPOSAL TO STAY
THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE
EMPLOYEE HAS EXHAUSTED
APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
(B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE AIR FORCE, U.S.
AIR FORCE ACADEMY,
COLORADO, 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 SUPERINTENDENT OF
THE USAF ACADEMY, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE SUPERINTENDENT
SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VII, FEDERAL
LABOR RELATIONS AUTHORITY, SUITE 680, CITY CENTER SQUARE, 1100 MAIN
STREET, KANSAS CITY,MISSOURI 64105, IN WRITING WITHIN 30 30 DAYS FROM
THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C;, SEPTEMBER 4, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DECLARE NONNEGOTIABLE ANY PROPOSAL MADE IN THE COURSE OF
NEGOTIATIONS BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1867, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE
NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE;
WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1867, NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS REGARDING THE PROPOSAL TO STAY THE DISCIPLINARY
SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED
APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
(AGENCY OR ACTIVITY)
DATED: BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN 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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
TELEPHONE NUMBER ARE: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
KANSAS CITY, MISSOURI 64105, (816) 374-2199.
-------------------- ALJ DECISION FOLLOWS --------------------
LT. COL. FRANKLIN E. WRIGHT, ESQUIRE
FOR THE RESPONDENT
JAMES J. GONZALES, ESQUIRE
FOR THE GENERAL COUNSEL
KENNETH BULL,
FOR THE CHARGING PARTY
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C 7101, ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON MAY 16, 1980 BY THE ACTING
REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
CITY, MISSOURI, AGAINST THE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE
ACADEMY ("RESPONDENT").
THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE BY REFUSING TO BARGAIN WITH THE UNION CONCERNING A
UNION PROPOSAL TO STAY THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN
EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED APPROPRIATE REVIEW PROVISIONS
IN THE COLLECTIVE BARGAINING AGREEMENT. RESPONDENT DENIES THAT IT
VIOLATED THE STATUTE AND ARGUES, IN DEFENSE, THAT (A) THE UNION WAIVED
ITS RIGHT TO MAKE THIS PROPOSAL, (B) THE PROPOSAL WAS NONNEGOTIABLE, AND
(C) THE INSTANT UNFAIR LABOR PRACTICE PROCEEDING IS NOT THE APPROPRIATE
FORUM FOR THE RESOLUTION OF THESE ISSUES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT DENVER,
COLORADO, ON JULY 30, 1980. ALL PARTIES WERE REPRESENTED AND AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. THE GENERAL COUNSEL AND THE RESPONDENT BOTH
FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. /3/ BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS, AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDED ORDER:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1687, ("UNION") HAS BEEN RECOGNIZED BY
RESPONDENT AS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF
EMPLOYEES PAID FROM APPROPRIATED FUNDS BY THE UNITED STATES AIR FORCE
ACADEMY.
RESPONDENT AND THE UNION WERE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT WHICH WAS DUE TO EXPIRE IN 1979. IN ANTICIPATION OF
RENEGOTIATING AN AGREEMENT, THE PARTIES ESTABLISHED NEGOTIATING TEAMS
AND EXCHANGED PROPOSED WRITTEN GROUND RULES ON OR ABOUT SEPTEMBER 20,
1979. PARAGRAPH 6 OF MANAGEMENT'S PROPOSED GROUND RULES PROVIDED AS
FOLLOWS:
PROPOSALS FOR NEGOTIATIONS WILL BE EXCHANGED WITHIN 10 WORKING DAYS
AFTER SIGNING THESE
GROUND RULES AND WILL CONTAIN ALL ARTICLES INTENDED FOR NEGOTIATION.
MANAGEMENT RETAINS THE
RIGHT TO PRESENT FOR NEGOTIATION THOSE ITEMS REQUIRED BY DIRECTIVES
OF HIGHER AUTHORITY.
THE UNION VEHEMENTLY OBJECTED TO THIS PROPOSAL SINCE IT DID NOT
AFFORD THE UNION A SIMILAR RIGHT TO INTRODUCE NEW "ITEMS" SUBSEQUENT TO
THE EXCHANGE OF PROPOSALS. /4/ THE PARTIES WERE UNABLE TO AGREE ON THIS
PROPOSAL AND THE SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION
SERVICE WERE REQUESTED. ON OCTOBER 9, 1979, THE PARTIES WERE SEPARATED
AND THE MEDIATOR WAS ENGAGED IN SHUTTLE NEGOTIATIONS. THE UNION'S
SPOKESMAN PROPOSED (THROUGH THE MEDIATOR) THAT NEGOTIATIONS ON THE
SUBSTANTIVE ISSUES SHOULD COMMENCE WITH "NO GROUND RULES." THE MEDIATOR
TRANSMITTED THIS PROPOSAL TO THE RESPONDENT AND SUBSEQUENTLY INFORMED
THE UNION THAT MANAGEMENT AGREED TO PROCEED WITH "NO GROUND RULES."
AT THIS POINT, THE NEGOTIATING TEAMS HELD ANOTHER JOINT MEETING. THE
SPOKESMAN FOR MANAGEMENT STATED THAT THE LATTER HAD SOME MATTERS ABOUT
WHICH IT WAS CONCERNED. REFERRING TO HIS NOTES, HE LISTED 15 SUCH
AREAS. THE UNION RESPONDED AFFIRMATIVELY TO THREE ITEMS BUT REMAINED
SILENT AS TO THE REMAINDER. ITEM 14 ON RESPONDENT'S LIST SIMPLY STATED
THAT "ALL PROPOSALS WILL BE EXCHANGED TODAY." THE UNION DID NOT RESPOND
TO THIS; THERE WAS NO DISCUSSION OR FURTHER ELABORATION. /5/ TO THE
EXTENT THAT THE UNION'S SILENCE COULD BE INTERPRETED AS A TACIT
AGREEMENT, I INFER THAT, AT THE MOST, THE UNION MERELY AGREED TO
EXCHANGE ON THAT DAY ALL SUBSTANTIVE PROPOSALS WHICH HAD BEEN FORMULATED
AT THAT TIME. THE UNION HAD NO INTENTION OF WAIVING THE RIGHT TO MAKE
ADDITIONAL PROPOSALS AT A LATER DATE AND DID NOT CLEARLY AND
UNMISTAKABLY WAIVE THAT RIGHT. THIS IS PARTICULARLY SO IN LIGHT OF THE
UNION'S PREVIOUS INSISTENCE ON ITS RIGHT TO INTRODUCE NEW PROPOSALS,
WHERE REQUIRED BY DIRECTIVES OF HIGHER UNION AUTHORITY, AT ANY TIME
DURING NEGOTIATIONS. MOREOVER, IT IS CLEAR THAT THE UNION AT NO TIME
WAIVED ITS RIGHT TO PROPOSE AMENDMENTS TO ARTICLES PREVIOUSLY PROPOSED.
DURING THE COURSE OF NEGOTIATIONS OVER SUBSTANTIVE PROPOSALS, BOTH
THE UNION AND MANAGEMENT AMENDED THEIR OWN CONTRACT PROPOSALS BY ADDING
AND DELETING VARIOUS WORDS OR SECTIONS. SUBSEQUENTLY, ON FEBRUARY 6,
1980, THE UNION AMENDED ITS PROPOSED ARTICLE CONCERNING DISCIPLINARY
ACTION. THE REVISION CONSISTED OF THE ADDITION OF THE FOLLOWING
SENTENCE, HEREAFTER REFERRED TO AS THE "STAY OF ACTION" PROPOSAL:
IN THE EVENT OF A DISCIPLINARY SUSPENSION OR REMOVAL, THE GRIEVANT
WILL EXHAUST THE REVIEW
PROVISION CONTAINED IN THE AGREEMENT BEFORE THE SUSPENSION OR REMOVAL
IS EFFECTIVE, AND THE
EMPLOYEE WILL REMAIN IN A PAY STATUS UNTIL A FINAL DETERMINATION IS
RENDERED.
THE UNION PATTERNED THIS PROPOSAL AFTER A NEARLY IDENTICAL PROPOSAL
PREVIOUSLY HELD BY THE AUTHORITY TO BE NEGOTIABLE. AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, CASE NO. O-NG-20, 2
FLRA NO. 16 (NOVEMBER 29, 1979). AT THE TIME THAT THE UNION PROPOSED
THE ABOVE AMENDMENT, THE DISCIPLINARY ARTICLE OF THE CONTRACT HAD NOT
YET BEEN NEGOTIATED.
RESPONDENT DID NOT REJECT THE ABOVE UNION PROPOSAL UNTIL MARCH 6,
1980, AT WHICH TIME MANAGEMENT ANNOUNCED THAT THE PROPOSAL WAS
NONNEGOTIABLE. RESPONDENT'S SPOKESMAN TOOK THIS POSITION EVEN THOUGH HE
WAS AWARE OF THE AUTHORITY'S CONTRARY HOLDING IN THE FORT DIX CASE,
SUPRA. RESPONDENT OPENLY DISAGREED WITH THE AUTHORITY'S DECISION AND
DID NOT MENTION ANY "GROUND RULE" IN DEFENSE OF ITS REFUSAL TO BARGAIN
AT THAT TIME. /6/
ON MARCH 12, 1980, THE UNION FILED THE UNFAIR LABOR PRACTICE CHARGE
AGAINST THE RESPONDENT INITIATING THE INSTANT PROCEEDING.
NOTWITHSTANDING THIS CHARGE, THE PARTIES NEGOTIATED OTHER MATTERS TO
AGREEMENT AND THE CONTRACT WAS EXECUTED ON APRIL 3, 1980.
CONCLUSIONS OF LAW
THE FIRST QUESTION PRESENTED FOR DECISION IS WHETHER THE UNION WAIVED
ITS RIGHT TO NEGOTIATE WITH RESPECT TO THE "STAY OF ACTION" PROPOSAL AT
ISSUE HEREIN. IT IS WELL ESTABLISHED THAT A WAIVER WILL BE FOUND ONLY
IF IT CAN BE SHOWN THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY AND
UNMISTAKABLY WAIVED ITS STATUTORY RIGHT TO NEGOTIATE. NASA, KENNEDY
SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA, 2 A/SLMR 566, A/SLMR NO.
223 (1972). RESPONDENT CONTENDS THAT MANAGEMENT AND THE UNION MADE AN
ORAL AGREEMENT ON OCTOBER 9, 1979, THAT ALL PROPOSALS WOULD BE EXCHANGED
ON THAT DATE AND THAT NO NEW PROPOSALS COULD BE MADE DURING THE COURSE
OF NEGOTIATIONS. RESPONDENT ARGUES THAT THE "STAY OF ACTION" PROPOSAL
CONSTITUTED A COMPLETELY NEW SUBJECT THAT WAS INTRODUCED TO THE
BARGAINING TABLE FOR THE FIRST TIME AFTER SEVERAL MONTHS OF
NEGOTIATIONS. I DISAGREE WITH THE RESPONDENT'S CONTENTIONS. IN THE
FIRST PLACE, IT IS NOT AT ALL CLEAR THAT THE UNION ENTERED INTO ANY
AGREEMENT WITH RESPECT TO THE EXCHANGE OF PROPOSALS. MANAGEMENT SIMPLY
PROPOSED THAT "ALL PROPOSALS WILL BE EXCHANGED TODAY." THE UNION DID NOT
RESPOND TO THIS PROPOSAL AND THERE WAS NO FURTHER DISCUSSION OF THE
MATTER. SECOND, TO THE EXTENT THAT THE UNION'S SILENCE COULD BE
INTERPRETED AS A TACIT AGREEMENT, I INFER THAT THE UNION DID NO MORE
THAN AGREE TO EXCHANGE ON THAT DAY ALL SUBSTANTIVE PROPOSALS WHICH HAD
BEEN FORMULATED AT THAT TIME. THE FACTS ARE CLEAR THAT THE UNION WAS
NOT CONSCIOUSLY YIELDING THE RIGHT TO INTRODUCE NEW PROPOSALS AT A LATER
DATE. I MUST CONCLUDE AND HOLD THAT THE UNION DID NOT CLEARLY AND
UNMISTAKABLY WAIVE ITS RIGHT TO NEGOTIATE WITH RESPECT TO THE "STAY OF
ACTION" PROPOSAL. /7/
IT WAS THE CLEAR INTENT OF EXECUTIVE ORDER 11491 THAT ONCE A
DETERMINATION OF NEGOTIABILITY IS MADE THROUGH THE PROCESSES OF THE
ORDER, A SUBSEQUENT DECLARATION OF NONNEGOTIABILITY OF THE MATTER WOULD
BE AN UNFAIR LABOR PRACTICE. VETERANS ADMINISTRATION, 1 FLRA NO.
101(1979). THE SAME RESULT SHOULD OBTAIN UNDER THE STATUTE. IN THE
INSTANT CASE, MANAGEMENT'S NEGOTIATING TEAM WAS AWARE OF THE FACT THAT
THE UNION HAD TAKEN THE "STAY OF ACTION" PROPOSAL FROM A NEGOTIABILITY
DECISION BY THE AUTHORITY HOLDING SUCH PROPOSAL TO BE NEGOTIABLE.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999, AND
ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FOR DIX, NEW
JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16 (NOVEMBER 29, 1979).
THERE IS NO DISPUTE THAT THE UNION'S PROPOSAL IN THE INSTANT CASE IS,
IN ALL MATERIAL RESPECTS, IDENTICAL TO THE LANGUAGE OF THE UNION'S
PROPOSAL IN THE FORT DIX CASE. RESPONDENT, HOWEVER, STILL SEEKS TO
DISTINGUISH THE INSTANT PROPOSAL, ARGUING THAT A DIFFERENT BARGAINING
UNIT AND DIFFERENT PARTIES WERE INVOLVED IN FORT DIX. HOWEVER, AN
UNFAIR LABOR PRACTICE WILL BE FOUND EVEN WHERE THE PARTIES INVOLVED IN
THE PRIOR NEGOTIABILITY CASE WERE DIFFERENT AS LONG AS NO "MEANINGFUL
DIFFERENCES" CAN BE FOUND BETWEEN THE TWO PROPOSALS. DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
CHICAGO, ILLINOIS, 2 FLRA NO. 74(1980).
I MUST CONCLUDE AND HOLD THAT THERE ARE NO MEANINGFUL DIFFERENCES
BETWEEN THE NEGOTIABLE PROPOSAL IN FORT DIX AND THE PROPOSAL REJECTED BY
MANAGEMENT AS NONNEGOTIABLE IN THE INSTANT CASE. BOTH PROPOSALS
PROVIDED, ESSENTIALLY, THAT AN EMPLOYEE THE AGENCY HAS DECIDED TO
DISCIPLINE BY SUSPENSION OR REMOVAL MAY NOT ACTUALLY BE SUSPENDED OR
REMOVED PENDING COMPLETION OF THE CONTRACTUAL GRIEVANCE PROCEDURE,
INCLUDING ARBITRATION. ALSO, IN BOTH CASES THE AGENCY'S BASIC POSITION
IS THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE BECAUSE THE PROCEDURE IT
CREATES WOULD UNREASONABLY DELAY THE EXERCISE OF THE AGENCY'S AUTHORITY
UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO SUSPEND AND REMOVE
EMPLOYEES. SINCE I AM CONSTRAINED TO FOLLOW THE AUTHORITY'S POSITION IN
FORT DIX, IT IS CLEAR THAT THE RESPONDENT HAS VIOLATED SECTION
7116(A)(5) AND (1) OF THE STATUTE BY REFUSING TO NEGOTIATE WITH THE
UNION CONCERNING THE "STAY OF ACTION" PROPOSAL.
THE ONLY ISSUE REMAINING FOR DECISION IS WHETHER THE UNION AND THE
REGIONAL DIRECTOR ARE PRECLUDED FROM INSTITUTING THE INSTANT UNFAIR
LABOR PRACTICE PROCEEDING BY VIRTUE OF SECTION 2424.5 OF THE AUTHORITY'S
REGULATIONS. THAT SECTION PROVIDES, IN PART, AS FOLLOWS:
CASES WHICH SOLELY INVOLVE AN AGENCY'S ALLEGATION THAT THE DUTY TO
BARGAIN IN GOOD FAITH
DOES NOT EXTEND TO THE MATTER PROPOSED TO BE BARGAINED AND WHICH DO
NOT INVOLVE ACTUAL OR
CONTEMPLATED CHANGES IN CONDITIONS OF EMPLOYMENT MAY ONLY BE FILED
UNDER THIS PART (I.E., AS A
NEGOTIABILITY APPEAL).
IN MY VIEW, THE UNDERLINED PORTION OF THE ABOVE-QUOTED SENTENCE
REFERS TO AN AGENCY'S ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH
DOES NOT EXTEND TO A MATTER PROPOSED TO BE BARGAINED BECAUSE, AS
PROPOSED, THE MATTER IS INCONSISTENT WITH LAW, RULE, OR REGULATION. 5
C.F.R. 2424.1. THE INSTANT CASE DOES NOT "SOLELY" INVOLVE THIS TYPE OF
QUESTION BECAUSE IT WAS NECESSARY TO MAKE A FACTUAL DETERMINATION AS TO
WHETHER THE UNION HAD WAIVED ITS STATUTORY RIGHT TO NEGOTIATE WITH
RESPECT TO A PARTICULAR PROPOSAL. THE AUTHORITY HAS PREVIOUSLY HELD,
UNDER ANALOGOUS CIRCUMSTANCES, THAT FACTUAL DETERMINATIONS CAN BEST BE
MADE THROUGH UTILIZATION OF THE INVESTIGATORY AND FORMAL HEARING
PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
REGULATIONS GOVERNING UNFAIR LABOR PRACTICES PROCEEDINGS. SEE, E.G.,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF
THE INTERIOR, BUREAU OF MINES, ALBANY METALLURGY RESEARCH CENTER,
ALBANY, OREGON, CASE NO. O-NG-80, 2 FLRA NO. 28(1979). THEREFORE, I
MUST CONCLUDE AND HOLD THAT THE INSTANT CASE WAS PROPERLY BROUGHT BEFORE
THE UNDERSIGNED AS AN UNFAIR LABOR PRACTICE PROCEEDING.
IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE AUTHORITY ADOPT THE
FOLLOWING:
ORDER
PURSUANT TO 5 C.F.R. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY,
COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) DECLARING NONNEGOTIABLE A PROPOSAL MADE IN THE COURSE OF
NEGOTIATIONS BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1867, WHICH
INVOLVES A MATTER PREVIOUSLY
DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1867,
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROPOSAL TO STAY
THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE
EMPLOYEE HAS EXHAUSTED
APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
(B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE AIR FORCE, U.S.
AIR FORCE ACADEMY,
COLORADO, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY
SHALL BE SIGNED BY THE
SUPERINTENDENT OF THE USAF ACADEMY, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
BULLETIN BOARDS AND ALL OTHER
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
SUPERINTENDENT SHALL TAKE
REASONABLE STEP TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION VII, SUITE 680, CITY
CENTER SQUARE, 1100 MAIN
STREET, KANSAS CITY, MISSOURI 64105, IN WRITING WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 7, 1980
WASHINGTON, D.C.
APPENDIX
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DECLARE NONNEGOTIABLE ANY PROPOSAL MADE IN THE COURSE OF
NEGOTIATIONS BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1867, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE
NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1867, NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS REGARDING THE PROPOSAL TO STAY THE DISCIPLINARY
SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED
APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN 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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
TELEPHONE NUMBER ARE: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
KANSAS CITY, MISSOURI 64105, (816) 274-2199.
--------------- FOOTNOTES: ---------------
/1/ DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, 5 FLRA NO.
2(1981).
/2/ THE JUDGE CITED THE AUTHORITY'S DECISION IN DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
CHICAGO, ILLINOIS AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
94, 1 FLRA NO. 74(1980), WHICH WAS DECIDED ON THE BASIS OF E.O. 11491,
AS AMENDED, IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE
REFORM ACT OF 1978 (92 STAT. 1224).
/3/ AT THE HEARING, THE UNDERSIGNED INCORRECTLY STATED THAT BRIEFS
COULD BE "MAILED" RATHER THAN "FILED" NO LATER THAN 30 DAYS AFTER THE
HEARING. 5 C.F.R. 2423.25. RESPONDENT'S COUNSEL RELIED UPON THIS DATE
IN GOOD FAITH, AND TIMELY FILED HIS BRIEF IN ACCORDANCE THEREWITH.
ALTHOUGH HE DID NOT OBJECT TO THE DUE DATE AT THE HEARING, THE GENERAL
COUNSEL NOW MOVES TO REJECT RESPONDENT'S BRIEF AS UNTIMELY FILED. IN
THE INTEREST OF FAIRNESS, I HEREBY DEEM RESPONDENT'S BRIEF TO HAVE BEEN
TIMELY FILED. 5 C.F.R. 2423.19(T).
/4/ THE GROUND RULES FOR THE PARTIES' PREVIOUS NEGOTIATED CONTRACT
HAD RETAINED THIS RIGHT FOR BOTH THE UNION AND MANAGEMENT.
/5/ I CREDITED THE UNION'S WITNESSES WITH REGARD TO THIS POINT.
/6/ ALTHOUGH MANAGEMENT'S SPOKESMAN TESTIFIED THAT HE HAD MENTIONED
THE GROUND RULE DEFENSE TO THE MEDIATOR, THIS DEFENSE WAS COMMUNICATED
TO THE UNION UNTIL AFTER THE UNFAIR LABOR PRACTICE CHARGE INITIATING
THIS PROCEEDING WAS FILED.
/7/ IT IS ALSO NOTED THAT THE PROPOSAL IN ISSUE CONSTITUTED AN
ARGUABLE EXTENSION OF A CONCEPT FOUND IN THE ARTICLE ON DISCIPLINARY
ACTIONS WHICH WAS ALREADY ON THE BARGAINING TABLE. SECTION C(2) OF THAT
ARTICLE, AS ADOPTED, SETS FORTH CERTAIN PROCEDURES WHICH DELAY PUNITIVE
ACTIONS BY THE EMPLOYER AFTER IT "DETERMINES THAT A SUSPENSION OR
REMOVAL FOR DISCIPLINARY CAUSE IS APPROPRIATE." THE EMPLOYEE MUST FIRST
BE GIVEN NOTICE WITH REASONS AND TIME TO RESPOND AND THE EMPLOYER MUST
GIVE A WRITTEN DECISION.