[ v14 p539 ]
14:0539(81)CA
The decision of the Authority follows:
14 FLRA No. 81
UNITED STATES DEPARTMENT OF THE
INTERIOR, LOWER COLORADO DAMS
PROJECT, WATER AND POWER RESOURCES
SERVICE
Respondent
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 640,
AFL-CIO-CLC
Charging Party
Case No. 9-CA-174
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed. /1/ Exceptions were filed by the
General Counsel and the Charging Party, and Oppositions thereto were
filed by the Respondent.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the 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 the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by unilaterally removing from the bargaining unit
represented by the Charging Party, International Brotherhood of
Electrical Workers, Local 640, AFL-CIO-CLC (the Union) a position
described as "General Foreman." As stipulated by the parties and found
by the Judge, the Union is the bargaining representative of a unit
described as "(A)ll hourly employees . . . in the trades and crafts of
the (Parker-Davis) Project who are exempt from the Classification Act of
1979, as amended, and who are engaged in operation and maintenance
activities for the Project." Historically, this unit has included
supervisory as well as nonsupervisory employees. This unit continued in
existence as appropriate under the provisions of Section 15 of Executive
Order 10988, and Section 24 of Executive Order 11491, as amended.
Section 7135(a)(1) of the Statute authorizes the renewal or continuation
of such units which came into existence prior to the effective date of
the Statute.
In 1977, as a result of the creation of the Department of Energy,
approximately two-thirds of the unit represented by the Union was
transferred to the new Department, and the Parker-Davis Project became
part of the Lower Colorado Dam Project in the ensuing reorganization.
After the reorganization, the Respondent agreed with the Union to
attempt coordinated bargaining involving the Respondent, the Union and
the American Federation of Government Employees, AFL-CIO, which
exclusively represents a separate unit of Respondent's employees.
Thereafter, the Union agreed to enter into a Memorandum of Understanding
(MOU) with the Respondent identifying four specific General Foreman
positions as the only ones having supervisory duties and removing such
positions from the bargaining unit as they became vacant. On March 17,
1978, the Union signed the MOU, which purported to amend the unit
description appearing in the parties' 1977 collective bargaining
agreement, and on April 3 the MOU was explained to a Headquarters
representative of the International Brotherhood of Electrical Workers,
AFL-CIO (IBEW) for later submission to the International President for
his approval, in accordance with the terms of the parties' 1977
agreement. By letter dated August 21, 1978, the International President
of the IBEW advised the Respondent that he would not approve the MOU.
By letter dated August 25, 1978, the Office of the Secretary of the
Interior advised the IBEW that the MOU had become operative by virtue of
the provisions of Section 15 of Executive Order 11491, as amended. On
August 27, the Respondent implemented the provisions of the MOU by
filling a vacant General Foreman position and removing the new incumbent
of that position from the bargaining unit. Neither the Union nor the
IBEW protested, and no unfair labor practice charge was filed concerning
the Respondent's action. In July 1979, IBEW learned that the Respondent
intended to fill another General Foreman vacancy and remove the position
from the bargaining unit. Although IBEW informed the Respondent that it
considered the MOU to have no validity and that the Respondent had no
right to remove any position from the bargaining unit, Respondent
reasserted the validity of the MOU on August 14, 1979, and advertised
the availability of the General Foreman position on August 29, 1979. On
September 28, 1979, the instant charge was filed. On October 21, 1979,
the vacant position was filled and removed from the bargaining unit.
The Administrative Law Judge issued his Decision recommending that
the complaint be dismissed on two grounds. The Judge found that (1) the
charge upon which the complaint is based was untimely filed under the
provisions of section 7118(a)(4)(A) of the Statute, and (2) the Union's
acceptance of underlying considerations leading to the MOU and the long
period of inaction by the IBEW after the MOU was signed constituted
acquiescence in or approval thereof. With regard to his finding of
untimeliness, the Judge relied upon the Supreme Court's decision in
Local Lodge No. 1424, International Association of Machinists, AFL-CIO
v. National Labor Relations Board, (Bryan Manufacturing Company), 362
U.S. 822 (1960). More specifically, he found that the unlawful conduct
asserted in the charge and the complaint concerned the continued
enforcement of the MOU, which itself was "entirely benign," i.e., lawful
on its face, and that the allegation that enforcement of this agreement
constituted an unfair labor practice could be sustained only by relying
upon the refusal of IBEW's International President to approve the MOU,
an event which occurred in August 1978, more than 6-months prior to the
filing of the charge. Concluding that the Supreme Court in Bryan had
declared such reliance upon events outside the 6-month limitations
period to convert what is otherwise legal into something illegal to be
inconsistent with the policies underlying that statutory provision, the
Judge dismissed the complaint as untimely. With regard to his second
ground for dismissing the complaint, the Judge found that the signing of
the MOU resulted from the Respondent's agreement not to file an RA
petition questioning the continued appropriateness of the unit
represented by the Union, and to promote joint negotiations with the
Union and the AFGE. The Judge reasoned that acceptance of the
Respondent's activities in this regard over a long period of time
constituted, in effect, IBEW's acquiescence in or approval of the MOU.
The Authority disagrees with both findings.
Section 7118(a)(4) of the Statute provides:
. . . .
Sec. 7118. Prevention of unfair labor practices
(a)(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period, the General
Counsel may issue a complaint based on the charge if the charge
was filed during the 6-month period beginning on the day of the
discovery by the person of the unfair labor practice.
A literal reading of this language clearly establishes that, except
for the circumstances specified in section 7118(a)(4)(B) of the Statute,
conduct or events occurring more than 6 months before the filing of an
unfair labor practice charge cannot serve as the basis for a complaint.
Thus, any charge alleging an unfair labor practice which is necessarily
based on conduct or events which occurred more than 6 months before the
filing of the charge is untimely under the provisions of section
7118(a)(4)(A) of the Statute, unless it is established that the
respondent agency or labor organization prevented the person filing the
charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party. /2/ This limiting provision has the
effect of preventing the litigation of stale charges, wherein the
recollection of witness may be clouded, the availability of witnesses is
diminished, and the loss of documentary evidence is increased. To allow
the processing of complaints which rely, as the basis for the allegation
of violation, on events or conduct which occurred more than 6 months
prior to the filing of the charge upon which the complaint is based
would be contrary to express statutory language. However, in the
opinion of the Authority, where the conduct or events complained of
occur within the 6-month period preceding the filing of the charge and
in and of themselves may constitute unfair labor practices, evidence of
events occurring more than 6 months prior to the filing of the charge
may be utilized to explain the conduct or events occurring within the
6-month period. /3/
Applying the foregoing principles herein, the Authority concludes,
contrary to the Judge, that the unfair labor practice charge was timely
within the meaning of section 7118(a)(4)(A) of the Statute. Thus, as
discussed below, the action of the Respondent in removing a position
from the bargaining unit in and of itself may be the basis for an
alleged unfair labor practice. The unfair labor practice charge was
filed within 6 months of such conduct and therefore was timely.
Accordingly, when Respondent asserted the provisions of the MOU as
justification for its action in removing a position from the bargaining
unit, the General Counsel and the Union were not time barred from
introducing evidence that the MOU never went into effect because IBEW's
International President refused to approve it as required by the
parties' collective bargaining agreement. That is, the General Counsel
was not relying upon the MOU or evidence concerning the MOU as an
affirmative element in establishing the unfair labor practice, but was
merely rebutting an affirmative defense raised by the Respondent.
With regard to the alternative finding that the Union acquiesced in,
or approved of, the MOU, the Authority also disagrees with the Judge.
Whatever may have been the underlying motives of the parties in
attempting to amend or supplement the unit description in their
negotiated agreement, it is clear from the Judge's findings of fact that
both parties were aware that any such amendment or supplement had to be
approved, inter alia, by IBEW's International President to be effective.
If the Respondent took certain actions, and refrained from taking
others, in the expectation of approval by IBEW's International
President, it assumed the risk that such approval would not be
forthcoming. The Respondent's expectation of subsequent approval cannot
itself constitute a substitute for approval of the MOU by the
International President. Nor does the period of inaction by IBEW, in
the absence of a time limit within which approval or disapproval was
required, support a finding of acquiescence in, or approval of, the MOU.
In any event the Respondent had specific notice as of August 21, 1978,
that the International President would not approve the MOU, and such
disapproval was consistently maintained thereafter.
Therefore, the Respondent acted unilaterally when it removed the
position of General Foreman from the Union's exclusively recognized
bargaining unit. The Authority has held that an agency's unilateral
withdrawal of a labor organization's exclusive recognition for a
bargaining unit constituted a violation of section 7116(a)(1) and (5) of
the Statute. See Defense Logistics Agency, 5 FLRA No. 21 (1981). See
also Interpretation and Guidance, 4 FLRA 754 (1980), wherein the
Authority held that an agency acts at its peril in removing an employee
from a bargaining unit based upon a determination that the employee is a
supervisor or management official for merit pay purposes. Accordingly,
the Authority concludes that by its action on August 14, 1979 in
removing from the bargaining unit the vacant position of General Foreman
(Electrical), the Respondent violated section 7116(a)(1) and (5) of the
Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Department of the Interior, Lower Colorado Dams
Project, Water and Power Resources Service, shall:
1. Cease and desist from:
(a) Implementing the provisions of the Memorandum of Understanding
dated March 17, 1978, in the absence of the requisite approval by the
International President of the International Brotherhood of Electrical
Workers, AFL-CIO.
(b) Refusing to accord recognition to the International Brotherhood
of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
representative of its employees, with regard to a position described as
General Foreman (Electrical).
(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) Continue to recognize the International Brotherhood of Electrical
Workers, Local 640, AFL-CIO-CLC as the exclusive representative of its
employees for the unit described in the collective bargaining agreement
dated July 1977, including the position of General Foreman (Electrical),
unless and until modified in a manner consistent with the Statute.
(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 appropriate official 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 IX, 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., May 11, 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 implement the provisions of the Memorandum of
Understanding dated March 17, 1978, in the absence of the requisite
approval by the International President of the International Brotherhood
of Electrical Workers, AFL-CIO.
WE WILL NOT refuse to accord recognition to the International
Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
representative of our employees, with regard to a position described as
General Foreman (Electrical).
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 continue to recognize the International Brotherhood of
Electrical Workers, Local 640, AFL-CIO-CLC, as the exclusive
representative of our employees for the unit described in the collective
bargaining agreement dated July 1977, including the position of General
Foreman (Electrical), unless and until modified in a manner consistent
with the Statute.
(Agency)
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 any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, CA. 94108 and whose
telephone number is: (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-174
Hugh D. Jascourt, Esq.
Michael C. Nash, Esq.
Bea Chester, Esq.
For the Respondent
Thomas Angelo, Esq.
For the General Counsel
Mr. James A. Doran
Elihu I. Leifer, Esq.
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The case was initially transferred to the Authority by the parties on
a stipulated record under the provisions of 5 C.F.R. 2429.1. However,
by order dated June 11, 1982, the Authority returned the case to the
Office of Administrative Law Judges for decision. The Authority's order
noted that a stipulation of facts prepared by the parties had been
agreed to by the parties "at the hearing," and that 5 C.F.R. 2423.26(a)
required the issuance of an administrative law judge decision in such
cases.
The complaint alleges that since on or about August 14, 1979, and
continuing to April 30, 1980, the date of issuance of the complaint, the
United States Department of the Interior, Lower Colorado Dams Project,
Bureau of Reclamation, (Respondent), /4/ failed or refused, and is
continuing to fail or refuse, to bargain in good faith with the
International Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC,
(Charging Party or Union) /5/ in violation of Sections 7116(a)(1) and
(5) of the Statute. The unfair labor practices outlined were predicated
on a letter dated August 14, 1979, addressed to Mr. James A. Doran, an
International Representative of the IBEW, by Mr. V. B. Wilkinson,
Project Manager, Lower Colorado Dams Project, for the purpose of
notifying the Charging Party that the Respondent was removing from the
unit of recognition, a Foreman position at the Davis Dam,
notwithstanding the fact that the Charging Party expressed opposition to
a change in the structure of the bargaining unit. /6/
Counsel representing the Respondent argues that the charge filed
herein was not filed within the 6-month period following the occurrence
of the unfair labor practice alleged, and that it was time barred by the
provisions of Section 7118(a)(4) of the Statute. It is also argued that
the IBEW waived any right to interpose objections to the action taken by
the Respondent.
Based upon the entire record herein, including the stipulations of
fact, the exhibits, /7/ and the briefs filed by the parties, I make the
following findings of fact, conclusions and recommendation.
Findings of Fact
The following stipulations of fact entered into the record are
accepted as true:
1. Since at least 1951 the unit of recognition involved herein was
contractually created by the Bureau of Reclamation, Department of the
Interior, and the IBEW, and included supervisory employees (Stip. 2, Tr.
5). /8/
2. This unit of recognition was "grandfathered" under the provisions
of Section 15 of Executive Order 10988, and Section 24 of Executive
Order 11491 (Stip. 2, Tr. 5).
3. The unit of recognition is described as follows in the preamble
of a 1977 collective bargaining agreement executed by the Bureau of
Reclamation, Department of the Interior and the IBEW:
(A)ll hourly employees . . . in the trades and crafts of the
(Parker-Davis) Project, /9/ who are exempt from the Classification
Act of 1979, as amended, and who are engaged in operation and
maintenance activities for the Project (Stip. 2, Tr. 5; Exh.
2(h)).
4. The collective bargaining agreement requires that any amendments
or renewals be approved by the IBEW (Stip. 3, Tr. 6).
5. Since 1976, the Parker-Davis Project has proposed to Local 640
officials various plans to remove supervisory employees from the
bargaining unit (Stip. 4A, Tr. 6).
6. In October of 1977, Public Law 95-91 created a Department of
Energy which resulted in the transfer to the Department of Energy, from
the Department of the Interior, about 66 percent of the employees in the
bargaining unit represented by Local 640 at the Parker-Davis Project
(Stip. 4B, Tr. 6).
7. As a result of the transfer, bargaining unit employees remaining
at the Parker-Davis Project were merged by the Bureau of Reclamation
into the "Boulder Canyon Project," and the latter was renamed /7/ "The
Lower Colorado Dams Project Office" (Stip. 4B, Tr. 6).
8. As a result of the reorganization, the Bureau of Reclamation of
the Department of the Interior proposed the filing of an RA petition to
create a single bargaining unit since the American Federation of
Government Employees represented a larger work force of employees at the
Boulder Canyon Project (Stip. 4B, Tr. 6-7).
9. Faced with the possibility of losing a representation election,
Local 640 opposed the filing of an RA petition and expressed a desire
for coordinated bargaining with the two mentioned existing bargaining
units (Stip. 4B, Tr. 7).
10. On February 6, 1978, representatives of the Respondent met with
representatives of Local 640 (Stip. 4C, Tr. 7).
11. The eventual result of the February 6, 1978 meeting was that
management acceded to the proposed coordinated bargaining approach and
Local 640 agreed on March 17, 1978, to enter into a Memorandum of
Understanding which would remove four specified foreman positions from
the bargaining unit through attrition as the incumbents left these
positions (Stip. 4C, Tr. 7; Exhs. 2(c), 3(a)).
12. Since formulation of the Memorandum of Understanding outlined,
management has refrained from filing an RA petition although the
coordinated bargaining effort met with a lack of success and was
terminated by mutual agreement of the parties (Stip. 4C, Tr. 7). /11/
13. The Memorandum of Understanding was typed by Local 640, and the
date "March 17, 1978," typed at the bottom of the document, represents
the date on which Mr. Glynn Ross, /12/ Local 640's Business Agent signed
the Memorandum of Understanding on behalf of Local 640. Representatives
of the Lower Colorado Dams Project did not sign the document at that
time (Stip. 4D, Tr. 7, Exh. 2(b)).
14. The Memorandum of Understanding provided that only employees
designated as "General Foreman" will have supervisory responsibility,
that other "Foremen" will not have supervisory responsibility, and that
the description of the unit of recognition as being inclusive of "all
hourly employees," would not be construed as including those classified
as "General Foremen" (Exh. 2(b)).
15. Employees holding the position designated as "General Foremen,"
and any other position referred to in the Memorandum of Understanding,
are, or were supervisors within the meaning of Section 2(c) of Executive
Order 11491, and Section 7103(a)(10) of the Statute (Stip. 1, Tr. 5).
16. At the time the Memorandum of Understanding was agreed to, the
unit of recognition described in the collective bargaining agreement
(Paragraph 3 above) was in existence (Stip. 2, Tr. 5).
17. The effect of the Memorandum of Understanding was designed to
remove supervisory employees from the unit of recognition described in
the 1977 collective bargaining agreement (Stip. 2, Tr. 5).
18. The Memorandum of Understanding was treated as an amendment to
the collective bargaining agreement by responsible management officials
of the Department of the Interior (Stip. 3, Tr. 6).
19. On April 3, 1978, Mr. Michael C. Nash, Labor Relations Officer,
Bureau of Reclamation, met with Mr. Gil Bateman and Mr. Robert Crum,
representatives of IBEW's International Headquarters, supplied them with
copies of the Memorandum of Understanding reached by Local 640, and the
Bureau of Reclamation, explained the document, discussed it, and
requested expedited processing of it by the IBEW (Stip. 4E, Tr. 7).
20. Mr. Nash urged that the IBEW approve the Memorandum of
Understanding before submission of the document to the Department of
Interior for approval under the provisions of Section 15 of Executive
Order 11491 (Stip. 4E, Tr. 8).
21. Mr. Nash twice contacted Mr. Crum, but was not able to obtain an
indication of IBEW's position concerning the Memorandum of Understanding
(Stip. 4F, Tr. 8).
22. The first vacancy affected by the Memorandum of Understanding
occurred on April 21, 1978, and Mr. Daniel B. Jensen, Labor Relations
Officer for the Lower Colorado Region, Bureau of Reclamation, repeatedly
stressed to Mr. Nash, the need to fill the vacancy; and to execute the
implement the Memorandum of Understanding (Stip. 4G, Tr. 8).
23. On May 15, 1978, Mr. Nash informed Mr. Daniel B. Jensen, that it
would be unreasonable to have to wait a further period of time for IBEW
to approve the Memorandum of Understanding, and that Local Bureau of
Reclamation management had the authority to sign the document and
forward it for Agency approval in accordance with Section 15 of
Executive Order 11491 (Stip. 4G, Tr. 8).
24. On May 15, 1978, Mr. Jensen signed the Memorandum of
Understanding on behalf of the Lower Colorado Dams Project Office, and
on this same date forwarded the Memorandum of Understanding for approval
by the Bureau of Reclamation, Department of the Interior (Stip. 4G, Tr.
8).
25. By letter dated june 7, 1978, Mr. B. H. Spillers, chief,
Division of Personnel and Management, Bureau of Reclamation, transmitted
to IBEW, copies of the Memorandum of Understanding reached at the Local
level, noted that the Bureau of Reclamation "strongly endorsed" the
document, and urged that the IBEW International President approve the
Memorandum of Understanding (Stip. 5, Tr. 8, Exh. 2(c)).
26. In Mr. Spillers' June 7, 1978, letter, it was noted that upon
approval by IBEW, Mr. Spillers' office would obtain the approval of the
Memorandum of Understanding by the Office of the Secretary, Department
of the Interior, and would send a finalized copy of the Memorandum of
Understanding to IBEW (Exh. 2(c)).
27. Mr. Spillers' June 7, 1978, letter reflected the following
statement of position by the Bureau of Reclamation relative to the
effect of the Memorandum of Understanding:
The exclusion of these supervisors will be accomplished through
a process of attrition. That is, as supervisory positions become
vacant and are subsequently refilled, they will be excluded from
the bargaining unit. There are currently four such positions at
the two Dams, one of which is vacant.
This negotiated agreement represents the best efforts of the
local parties to accommodate the interests of each other . . .,
thus obviating the need for submitting this matter to the
Assistant Secretary for Labor-Management Relations.
. . . .
On a related matter, representatives of Local 640 and American
Federation of Government Employees Local Union 1978, the
recognized representative of hourly employees at Hoover Dam, are
currently meeting with management representatives in an
encouraging attempt to implement coordinated bargaining for all
hourly employees at the Lower Colorado Dams Project. If
coordinated bargaining is successful, it should eliminate the need
for the Bureau (of Reclamation) to file a representation petition
with the Department of Labor (Exh. 2(c)).
28. Following transmission of Mr. Spillers' June 7, 1978 letter to
the ibew, Mr. Jensen, acting as labor relations officer, for the lower
Colorado Region, contacted Mr. Nash, Labor Relations Officer for the
Bureau of Reclamation, at least once a week for an undetermined period
to relate problems encountered in holding open the April 21, 1978
vacancy affected by the terms of the Memorandum of Understanding, and to
inquire when Mr. Jensen could act to fill the vacancy in accordance with
the Memorandum of Understanding (Stip. 6, Tr. 8-9).
29. By letter dated August 21, 1978, Mr. Charles H. Pillard,
International President of the IBEW advised Mr. Spillers that he would
not approve the Memorandum of Understanding (Exh. 2(c)). /13/
30. By internal memorandum dated August 21, 1978, Mr. Spillers,
informed Mr. John F. McKune, Director of Personnel, Office of the
Secretary of Interior, of the circumstances surrounding his June 7, 1978
transmission of the Memorandum of Understanding to the IBEW
International President for approval, and noted the fact that copies of
the correspondence had then been submitted to McKune. Mr. Spillers
requested that Mr. McKune's office approve the Memorandum of
Understanding because, "(a)s a practical matter it can, and if necessary
should be argued, that your approval is merely ministerial at this time
as Section 15 (of Executive Order 11491) requirements have already
triggered (Agency) approval" (Exh. 3(b)). /14/
31. By letter dated August 25, 1978 Mr. John F. McKune, on behalf of
the Office of the Secretary, Department of the Interior, advised Mr.
Pillard that the Memorandum of Understanding had become operative by
virtue of the provisions of Section 15 of Executive Order 11491. The
Department's position was stated as follows:
It is the intent of the local parties to remove supervisory
positions from representation by Local Union 640 through the
reasonable process of attrition. That is, as such positions
became vacant, as one currently is, the new incumbent will no
longer be in the bargaining unit. Over a period of time, all such
positions and incumbents will be excluded from representation by
the local union (Stip. 6, Tr. 9, Exh. 2(e)).
32. On August 25, 1978, Mr. Nash first became aware of Mr. Pillard's
August 21, 1978 disapproval of the Memorandum of Understanding, and
after inquiring as to whether the Office of the Secretary had
transmitted a reply to the IBEW, he was informed that Mr. McKune's
August 25, 1978 letter to Mr. Pillard had been sent (Stip. 6, Tr. 9).
33. On August 25, 1978 Mr. Nash informed Mr. Jensen that the Office
of the Secretary had approved the Memorandum of Understanding, and that
it was permissible for Mr. Jensen to implement the Memorandum of
Understanding at the Local level (Stip. 7, Tr. 9).
34. On August 27, 1978, Local management in the Lower Colorado
Region promoted Mr. Armund J. Oswood, Jr., to the position of General
Foreman (Electrical) at the Parker Dam Field Division, and removed him
from the bargaining unit under authority reflected in the Memorandum of
Understanding (Stip. 7, Tr. 9-10; Exh. 3(c)).
35. On July 18, 1979, Mr. James A. Doran, International
Representative of the IBEW, learned of Mr. Jensen's plans to remove a
vacant Davis Dam Field Division General Foreman (Electrical) position
from the bargaining unit on authority reflected in the Memorandum of
Understanding reached early in 1978 by the Bureau of Reclamation and
Local 640 (Exhs. 2(f), and 2(i)).
36. By letter dated July 31, 1979, Mr. Doran advised Mr. Jensen that
the Memorandum of Understanding had no validity as it had never been
approved by IBEW International President Pillard, and that Mr. Jensen
had no right to remove the vacant Davis Dam Field Division supervisory
position from the bargaining unit (Exh. 2(f)).
37. On August 14, 1979, Mr. V. B. Wilkinson, Project Manager, Lower
Colorado Dams Project, reaffirmed the validity of the Memorandum of
Understanding, and stated that it had become binding on the parties
prior to Mr. Pillard's August 21, 1978 disapproval. He stated:
The Lower Colorado Dams Project intends to issue a vacancy
announcement for the position of General Foreman, Electrician at
Davis Dam. This position is excluded from the bargaining unit,
consistent with our negotiated Memorandum of Understanding with
Local 640 (Exh. 2(g)).
38. On August 29, 1979 a Vacancy Notice was issued to advertise the
position of General Foreman (Electrical) at the Davis Dam (Exh. 2(i)).
39. On October 21, 1979, Mr. William A. Morris was promoted to the
vacant General Foreman (Electrical) position, and the position was
removed from the bargaining unit (Exh. 2(j)).
40. On September 28, 1979, a charge was filed alleging the following
facts as constituting unfair labor practices: /15/
(a) On August 14, 1979, Mr. V. B. Wilkinson, Project Manager,
Lower Colorado Dams Project, informed the Charging Party that he
was posting a vacancy for the position of General Foreman,
Electrician, at Davis Dam.
(b) Mr. Wilkinson cited the Memorandum of Understanding.
(c) Since any changes to the collective bargaining agreement
between the parties must be approved by both the President of the
IBEW and the Office of the Secretary of the Interior, and the
President of the IBEW has expressly withheld his approval of the
Memorandum of Understanding, there is no valid authority for
Project Manager Wilkinson's unilateral action.
(d) Representation of certain levels of supervisory employees
is a valuable "grandfathered right" of the IBEW in certain Bureau
of Reclamation Agreements and can only be terminated by mutual
agreement.
Discussion and Conclusions
Counsel representing the Respondent argues that the provisions of
Section 7118(a)(4)(A) of the Statute require that the complaint be
dismissed because the alleged unfair labor practice occurred in August
of 1978, or more than six months before the filing of the charge on
September 28, 1979. Counsel representing the General Counsel and the
Charging Party disagree. They contend that the charge alleges facts
relating to the Respondent's continued enforcement of an illegal
agreement (The Memorandum of Understanding); that this pattern of
conduct commenced as early as August 25, 1978, when the Office of the
Secretary advised that the Memorandum of Understanding had become
operative; that this conduct continued thereafter to the date of
issuance of the complaint; and that the charge was timely because it
was filed within six months of August 14, 1979, the last action of the
Respondent in its continuing enforcement of the Memorandum of
Understanding. Accordingly, they rely upon Mr. V. B. Wilkinson's August
14, 1979, notice to the Union that the Respondent "intends to issue a
vacancy announcement for the position of General Foreman, Electrician at
Davis-Dam" (Exhs. 1(a), 1(c), 1(g) and 2(g)).
Section 7118(a)(4)(A) of the Statute provides:
(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority. /16/
It is clear from the charge filed on September 28, 1979, that the
unfair labor practice set forth in the charge, and thereafter restated
in the complaint, depends upon the establishment of a pattern of alleged
unlawful conduct which occurred in August of 1978; that is, on conduct
which occurred more than six months before the filing of the charge.
For example, the basis of the charge depends upon a showing that there
was "no valid authority for Project Manager Wilkinson's (August 14,
1979) action." It depends upon a showing that Mr. Pillard expressly
withheld his approval of the Memorandum of Understanding by letter dated
August 21, 1978; and upon proof that the Union's representation of
supervisory employees under the 1977 collective bargaining agreement was
not affected by the Memorandum of Understanding relied upon by the
Respondent. Without proof in the areas outlined, separate proof of Mr.
Wilkinson's August 14, 1979 notice (relied upon herein to avoid the
restrictive provisions of Section 7118(a)(4)(A) would be innocuous.
That is, the mere issuance of the notice would not represent the
continuance of an unfair labor practice. Here, there is a complete
dependence upon events occurring outside the 6-month period to bring Mr.
Wilkinson's August 14, 1979 notice into the ambit of the 6-month
limitation.
In the private sector, Section 10(b) of the National Labor Relations
Act, 29 U.S.C. 160(b), provides a similar 6-month statute of
limitations. For purposes of decision in this case, Section 10(b) is
nearly identical to the provisions of Section 7118(a)(4)(A). In Local
Lodge 1424 v. N.L.R.B., 362 U.S. 822 (1960), a case construing Section
10(b), /17/ the United States Supreme Court supplied the following
language to guide in determining whether evidence of events occurring
more than six months before the filing of an unfair labor practice
charge may be used to establish an unfair labor practice:
It is doubtless true that Sec. 10(b) does not prevent all use
of evidence relating to events transpiring more than six months
before the filing and service of an unfair labor practice charge.
However, in applying rules of evidence as to the admissibility of
past events, due regard for the purposes of Sec. 10(b) requires
that two different kinds of situations be distinguished. The
first is one where occurrences within the six-month limitations
period in and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events may be
utilized to shed light on the true character of matters occurring
within the limitations period; and for that purpose Sec. 10(b)
ordinarily does not bar such evidentiary use of anterior events.
The second situation is that where conduct occurring within the
limitations period can be charged to be an unfair labor practice
only through reliance on an earlier unfair labor practice. There
the use of the earlier unfair labor practice is not merely
'evidentiary,' since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with
illegality that which was otherwise lawful. And where a complaint
based upon that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice.
This case falls within the purview of the second factual illustration
described by the Court. /18/ Here the unlawful conduct condemned in the
charge and the complaint concerns the continued enforcement of the
Memorandum of Understanding, as evidenced by Mr. Wilkinson's August 14,
1979 letter to the Union. However, the Memorandum of Understanding is
entirely benign. It would not be possible to cloak this agreement with
illegality without first making reference to events occurring prior to
the 6-month period, that is events occurring in August of 1978. This
precise factual picture was referred to by the Supreme Court in Local
Lodge 1424 in the following terms:
Where, as here, a collective bargaining agreement and its
enforcement are both perfectly lawful on the face of things and an
unfair labor practice cannot be made out except by reliance on the
fact of the agreement's original unlawful execution, an event
which, because of limitations, cannot itself be made the subject
of an unfair labor practice complaint, we think that permitting
resort to the principle that Sec. 10(b) is not a rule of evidence,
in order to convert what is otherwise legal into something
illegal, would vitiate the policies underlying that section.
These policies are to bar litigation over past events 'after
records have been destroyed, witnesses have gone elsewhere, and
recollections of the events in question have become dim and
confused,' H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of
course to stabilize existing bargaining relationships.
. . . .
In any real sense, then, the complaints in this case are 'based
upon' the unlawful execution of the agreement, for its
enforcement, though continuing, is a continuing violation solely
by reason of circumstances existing only at the date of execution
. . .. Put another way, if the sec. 10(B) proviso is to be given
effect, the enforcement, as distinguished from the execution, of
such an agreement as this constitutes a suable unfair labor
practice only for six months following the making of the
agreement. (Footnotes omitted).
Counsel representing the General Counsel cites Internal Revenue
Service and IRS Richmond District Office, 3 FLRA No. 3 (1980), 3 FLRA
18, as precedent for a finding that the charge herein was filed in a
timely manner. However, that case involved alleged violations of
Executive Order 11491 Sections 19(a)(1), (2) and (6) based upon the
monitoring of a union steward's telephone calls. Administrative Law
Judge Garvin Lee Oliver rejected a contention that the telephone
monitoring commenced more than six months before the filing of the
charge. However, his finding reflects that the copying of messages
(acts constituting unfair labor practices), occurred within the 6-month
period of limitations. Further, it was clear from the decision that
proof of the unfair labor practices alleged would not have depended upon
proof of events occurring prior to the commencement of the period of
limitations. Because of these circumstances the charge underlying the
complaint was deemed to have been filed in a timely manner. /19/
An analysis of the record in this case reflects a second basis for
dismissal of the complaint. As noted the complaint essentially involves
a dispute as to the legal effect to be accorded the Memorandum of
Understanding. That is, it is the implementation of the provisions of
the Memorandum of Understanding by the Respondent which gives rise to
the alleged unfair labor practice. It is not possible to determine
issues relating to this implementation without interpreting and applying
the provisions of the collective bargaining agreement.
The parties did stipulate that the collective bargaining agreement
required any amendments or renewals to be approved by the IBEW, /20/
that the Memorandum of Understanding was considered to be an amendment
of the agreement because it provided for the removal of supervisory
employees from the bargaining unit described in the agreement, and that
by letter dated August 21, 1978 the IBEW International President refused
to approve the Memorandum of Understanding. However, these stipulations
do not resolve key questions concerning whether or not the Memorandum of
Understanding was a binding amendment of the collective bargaining
agreement under the terms of that agreement.
A persuasive argument may be interposed in opposition to the
contention that the IBEW did not approve the Memorandum of
Understanding. The Memorandum of Understanding stemmed in part from the
Respondent's agreement not to file an RA petition, and Respondent's
actual forbearance in this regard. The parties stipulated that since
March 16, 1978, the Respondent has refrained from filing an RA petition.
It also appeared that the Respondent engaged in coordinated bargaining
with the Union, and the American Federation of Government Employees as a
result of the Union's agreeing to the terms of the Memorandum of
Understanding. Such coordinated bargaining was apparently allowed to
continue with IBEW's knowledge.
The IBEW became fully aware of the reliance being placed upon the
consideration underlying the Memorandum of Understanding on or about
June 7, 1978, when Mr. Spillers transmitted to the IBEW, copies of the
Memorandum of Understanding and explained how it had evolved at the
Local level. A period of approximately 75 days elapsed before the IBEW
apprised the Respondent of its disapproval. /21/ It may be argued that
acceptance of benefits from the Respondent's agreement not to file an RA
petition; Respondent's participation in coordinated bargaining at the
Local level; and the long period of inaction of the IBEW under the
circumstances outlined, constituted acquiescence on the part of the IBEW
with respect to the provisions of the Memorandum of Understanding, or
approval of the Memorandum of Understanding by the IBEW within the
meaning of the collective bargaining agreement.
It is well settled that alleged unfair labor practices which involve
differing and arguable interpretations of a negotiated agreement, as
distinguished from alleged actions which constitute clear and patent
breaches of a negotiated agreement, are not deemed to be violative of
the Statute. In such cases the aggrieved party's remedy lies within the
grievance and arbitration procedures in the negotiated agreement rather
than through unfair labor practice procedures. Iowa National Guard and
National Guard Bureau, 8 FLRA No. 101 (1982), 8 FLRA 504; Division of
Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
No. 71 (1982), 8 FLRA 309; U.S. Patent and Trademark Office, 3 FLRA No.
123 (1980), 3 FLRA 823; Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma, 3 FLRA No. 82 (1980), 3 FLRA 11; Department of
the Navy, Naval Weapons Station, Concord, California, 1 FLRA No. 13
(1979), 1 FLRA 132.
Here supervisors were included within the unit of recognition solely
by reason of collective bargaining agreements dating back to at least
1951. /22/ The gravamen of the complaint lies in the contention that
the Respondent breached those portions of the collective bargaining
agreement which included these supervisory employees within the unit of
recognition. The record does not reflect that the Respondent's conduct
constituted a clear and patent breach of these portions of the
agreement. On the contrary, it is at least arguable, despite the IBEW's
refusal to sign the Memorandum of Understanding, that the 1977
collective bargaining agreement was effectively amended by the
Memorandum of Understanding in accordance with procedures reasonably
contemplated by the parties.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following Order pursuant to 5 C.F.R. 2423.29(c).
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-174, be, and
it hereby is, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: August 12, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ This case was initially transferred directly to the Authority
pursuant to section 2429.1 of the Authority's Rules and Regulations. On
June 11, 1982, the Authority remanded the case to the Judge for a
Decision, pursuant to section 2423.26(a) of the Authority's Rules and
Regulations.
/2/ In this regard, the House Committee Report accompanying H.R.
11280 stated with respect to section 7118(a)(4), which was ultimately
enacted and signed into law without change, as follows:
Subsection (a)(4) prohibits the issuance of a complaint based
upon an unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority unless the
person aggrieved was prevented from filing the charge because the
agency or labor organization against whom the charge is made
failed to perform a duty owed to the aggrieved person, or due to
concealment. In addition, the concealment or failure to perform a
duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence.
H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53 (1978),
reprinted in Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978, at
698-699 (1979).
/3/ To the same effect in the private sector under section 10(b) of
the National Labor Relations Act, see Local Lodge No. 1424,
International Association of Machinists AFL-CIO v. National Labor
Relations Board, 362 U.S. 822 (1960).
/4/ The Water and Power Resources Service was formerly known as the
Bureau of Reclamation, and was identified as such in the complaint.
However, the parties appropriately identified the Bureau of Reclamation
as the Water and Power Resources Service in briefs submitted to the
Authority. The complaint is deemed to have been amended in this regard.
/5/ The International Brotherhood of Electrical Workers has been
referred to herein as the "IBEW" when reference is being made to the
International Union, and the designation "Local 640" has been utilized
to designate Local 640, as separate and distinct from the IBEW.
/6/ If otherwise unjustified, such conduct would constitute a refusal
to accord recognition to a labor organization lawfully selected to
represent bargaining unit employees. A refusal to accord recognition,
if established by a preponderance of the evidence, would be an unfair
labor practice within the meaning of Sections 7116(a)(1), and (5) of the
Statute. Defense Logistics Agency, 5 FLRA No. 21 (1981).
/7/ A transcript of stipulations reached by the parties in this case
refers to General Counsel Exhibits 1(a) through 1(h), Joint Exhibits 1
through 10, and Respondent Exhibits 1 through 3. These were renumbered
with a single sequence of numbers and letters when the Regional Director
submitted the stipulated record to the Authority under the provisions of
5 C.F.R. 2429.1. The following table reflects the change made: (TABLE
OMITTED)
/8/ References are to enumerated stipulations reflected in the
transcript included as part of the record.
/9/ The Project, identified as the Parker-Davis Project in the
agreement, later became a part of the Bureau of Reclamation's Lower
Colorado Dams Project.
/10/ At Tr. 6:19 the transcript mistakenly reflects the word
"remained," rather than "renamed."
/11/ Counsel for the General Counsel noted that the transcript record
of stipulations mistakenly refers to "a lot of success," rather that "a
lack of success" (G.C. Brief at 2, footnote 2). Respondent's counsel
also noted the error (R. Brief at footnote 2).
/12/ The Index and Description of Exhibits mistakenly refers to a
"Mr. Roth" as signing on behalf of Local 640.
/13/ Mr. Pillard's disapproval was based in part on the fact that
issues involving Local 640's representation of supervisory employees
were posed in Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, Case No. 72-7371 (RO). This
representation case was then pending before the Assistant Secretary for
Labor Management Relations under Executive Order 11491. The National
Federation of Federal Employees, Local 1487 (NFFE) sought an election in
a unit of all Wage Board employees in the trades and crafts employed by
the Yuma Projects Office, excluding supervisors as defined in Executive
Order 11491. On November 22, 1978, the Assistant Secretary found the
proposed unit appropriate, but recognized Local 640's right to represent
certain supervisory employees and non-supervisory employees at the Yuma
Projects Office, as the IBEW unit had historically by agreement included
supervisory employees.
In allowing supervisory employees to be a part of the bargaining unit
despite the provisions of Section 2(c) of Executive Order 11491, the
Assistant Secretary relied upon an August 9, 1978 Interpretation of the
Federal Labor Relations Council (FLRC No. 78P-2, 6 FLRC 1315), which
held that Section 24(1) of Executive Order 11491 maintains the validity
of otherwise lawful provisions in an agreement entered into before the
effective date of Executive Order 10988 (January 17, 1962), if such
agreement has been renewed or continued in substance after the effective
date of Executive Order 10988, notwithstanding any inconsistency of such
provision with limitations or proscriptions imposed by Executive Order
11491. The Assistant Secretary concluded that NFFE's petition
constituted an appropriate attempt to sever a unit of nonsupervisory
employees from the unit exclusively represented by IBEW; that the only
question was whether such employees wished to be separately represented
by NFFE; and that if a majority of the voting nonsupervisory employees
chose the IBEW as their representative, the existing unit of supervisory
and nonsupervisory employees would continue, whereas if a majority of
the voting nonsupervisory employees chose NFFE as their exclusive
representative, such employees would be severed from the existing IBEW
unit, and the NFFE would be certified as their exclusive representative
A/SLMR No. 1151 (1978), 8 A/SLMR 1246.
NFFE subsequently won the election and thereafter was certified as
the exclusive representative of the nonsupervisory unit found
appropriate. IBEW appealed to the Authority as the Federal Service
Labor Management Relations Statute had been enacted during the interim
period. It was contended that the NFFE petition should have been
dismissed. The petition for review was denied. 1 FLRA No. 119
(September 28, 1979), 1 FLRA 1050.
In light of principles outlined in Section 15, of Executive Order
10988; Section 24(1) of Executive Order 11491; the Federal Labor
Relations Council's August 9, 1978, Interpretation; and the results
reached in Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, supra, it is abundantly clear that
inclusion of supervisory employees in the unit of recognition was
appropriate, and further that the continuation of this policy and
practice depended entirely upon the continuance of contractual
provisions providing for the inclusion of supervisors. This was a
contractual issue of appropriate concern to the parties, as distinct
from authority vested in the Assistant Secretary to determine the
composition of bargaining units.
/14/ On August 18, 1978, a draft of a letter taking this position was
prepared by Mr. Nash for Mr. McKune's signature. It was forwarded to
Mr. McKune with Mr. Spillers' August 21, 1978 memorandum (Stip. 6, Tr.
8-9; Exh. 3(b)).
/15/ The September 28, 1979 charge alleged violations of Sections
7116(a)(1), (2) and (5) of the Statute. The basis of an amended charge
dated April 24, 1980, was identical to that utilized in the September
28th charge; however the charge dated April 24, 1980 omits reference to
Section 7116(a)(2).
/16/ The provisions of subparagraph B do not apply to the facts of
this case.
/17/ This case, popularly known as the Bryan Manufacturing Company
case, involved an unfair labor practice complaint predicated on the
enforcement and maintenance of a union-shop contract that was executed
at a time when the union did not represent a majority of the employees.
The unlawful execution of the contract occurred outside the 6-month
period of limitations.
/18/ Counsel representing the General Counsel and the Charging Party
argue that the facts of this case fall within the first illustration.
For reasons stated herein this contention is rejected.
/19/ The complaint was subsequently dismissed on other grounds.
/20/ The specific procedure for effecting such approval was not
stipulated, and it is not clearly described in the collective bargaining
agreement. See Exh. 2(c).
/21/ The parties stipulated that as early as April 3, 1978, IBEW
representatives received copies of the Memorandum of Understanding from
the Respondent, together with a briefing, and a request that approval of
the IBEW be expedited. It could also be argued that the IBEW, through
Local 640 representatives became aware of Local 640's March 17, 1978
agreement to enter into the Memorandum of Understanding. These
circumstances suggest a still longer period of silence on the part of
the International Headquarters of the IBEW.
/22/ This is not a case wherein the Assistant Secretary determined a
unit to be appropriate. The continued inclusion of supervisory
employees depended entirely upon whether the parties renewed or
continued the 1977 collective bargaining agreement in accordance with
authorization for such renewal or continuance provided in Section 24(1)
of Executive Order 11491. See generally note 10 supra.