14:0258(46)CA - HHS, Region VII, Kansas City, MO and NTEU -- 1984 FLRAdec CA
[ v14 p258 ]
14:0258(46)CA
The decision of the Authority follows:
14 FLRA No. 46
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION VII
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 7-CA-669
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts and the contentions of the parties, the Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to execute, upon the Union's
request, a written document embodying ground rules for negotiations
which had been agreed to by both parties.
On June 15, 1979, the Charging Party, National Treasury Employees
Union (the Union), was certified as the exclusive representative of a
unit composed of all General Schedule and Wage Grade professional and
nonprofessional employees of the Department of Health and Human
Services, Region VII, Kansas City, Missouri (the Respondent), with
certain exclusions. On November 15, 1979, the Respondent and the Union
met to negotiate ground rules, and reached full and complete agreement
on that same day. On April 1, 1980, the parties began negotiations for
a collective bargaining agreement; tentative agreement on several
articles was reached before May 23, when negotiations were temporarily
suspended at the Union's request.
Negotiations resumed on July 23, with the Union designating a new
chief negotiator. The Union submitted ground rules proposals which were
identical to those agreed upon in November except for two new ones. The
parties reached full agreement on the ground rules proposals that day,
the substance of which are concerned entirely with matters relating to
the "framework" of negotiations, such as the number of participants for
each side; the location of negotiations; a schedule for negotiation
meetings; the procedures for initiating, negotiating and agreeing to
proposals; and procedures to help resolve impasses.
On July 24, the Union requested that the Respondent execute a written
document memorializing the provisions of the agreed-upon ground rules.
Respondent refused, asserting that it was not necessary to execute a
written document embodying ground rules for negotiations. Since that
date, negotiations have continued, but the parties have not reached a
final collective bargaining agreement. There is no assertion or
evidence that Respondent has failed to bargain in good faith in any
other manner, or that it has failed to abide by any of the ground rules
agreed to by the parties.
The General Counsel and the Union argue that Respondent's conduct is
directly contrary to the obligation imposed by section 7114(b)(5) of the
Statute, /1/ and therefore violates section 7116(a)(1), (5) and (8) as
alleged. /2/ The Respondent, on the other hand, argues that the
obligation contained in section 7114(b)(5) refers only to a collective
bargaining agreement, and that the subject agreement on ground rules is
not, by statutory definition, a collective bargaining agreement.
The Authority concludes that the Respondent has violated the Statute
as alleged. In Department of Defense Dependents Schools, 14 FLRA No.
40(1984), the Authority held that the negotiation of ground rules is
part of the good faith negotiating process. The Authority further noted
that preliminary arrangements such as the time, place, length and agenda
of negotiation meetings are necessary steps in fulfilling the
requirement of section 7114 of the Statute that the parties meet "at
reasonable times and convenient places." /3/ The Authority concluded
that "(t)he fact that some parties mutually agree to set such
preliminary arrangements apart and call them ground rules negotiations
does not separate them from the collective bargaining process and the
parties' mutual obligation to bargain in good faith." It follows that,
by refusing the Union's request to execute a written memorial of the
agreed-upon ground rules, Respondent has failed to comply with section
7114(b)(5) of the Statute and to fulfill its obligation to bargain in
good faith, thereby violating section 7116(a)(1), (5) and (8) of the
Statute.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Health and Human Services, Region VII, Kansas
City, Missouri, shall:
1. Cease and desist from:
(a) Refusing to execute, on request of the National Treasury
Employees Union, the exclusive representative of its employees, a
written document embodying the agreed-upon ground rules for
negotiations.
(b) 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) Execute, at the request of the National Treasury Employees
Union, a written document embodying the agreed-upon ground rules
for negotiations reached by the parties on July 23, 1980.
(b) Post at its facilities 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 an authorized
representative of the Respondent 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., April 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 refuse to execute, on request the National Treasury
Employees Union, the exclusive representative of our employees, a
written document embodying the agreed-upon ground rules for
negotiations.
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 execute, at the request of the National Treasury Employees
Union, a written document embodying the agreed-upon ground rules for
negotiations reached by the parties on July 23, 1980.
(Activity)
Dated:
By:
(Signature) (Title)
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 any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority whose address
is: 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(5) provides:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(5) if agreement is reached, to execute on the request of any
party to the negotiation a written document embodying the agreed
terms, and to take such steps as are necessary to implement such
agreement.
/2/ Section 7116(a)(1), (5) and (8) provides:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(;)
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ Section 7114(b)(3) provides:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(3) to meet at reasonable times and convenient places as
frequently as may be necessary, and to avoid unnecessary delays(.)