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16:0456(69)CA
The decision of the Authority follows:
16 FLRA No. 69
U.S. ARMY CORPS OF ENGINEERS
KANSAS CITY DISTRICT
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Charging Party
Case No. 7-CA-30503
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, accompanying exhibits and the parties'
contentions, the Authority finds:
The National Federation of Federal Employees, Local 29, the Union, is
the exclusive representative of all GS and WB non-supervisory employees
of the Kansas City District Corps of Engineers. On August 4, 1982,
Respondent requested the assistance of the Federal Service Impasses
Panel (FSIP or Panel) to consider an impasse arising from negotiations
over the Respondent's proposed implementation of the Missouri River
Division Regulation (MRD-R) 385-1-4, entitled "Occupational Health
Program." This regulation establishes procedures for medical evaluations
of employees pursuant to the Occupational Health Program in the Missouri
River Division which includes employees of the Kansas City District
Corps of Engineers.
Pursuant to the Panel's direction, the Union and Respondent filed
proposals and position statements on the issues at impasse. The Union
submitted the following proposal to the Panel on October 12, 1982:
When an employee is required and/or directed by the employer,
to undergo a medical examination under the provisions of MRD-R
385-1-4, the employee shall be given the opportunity to utilize
either a designated military medical facility, contract physician
or the employee's personal physician. All reasonable and
customary charges and expenses related to such examinations shall
be borne by the employer.
On October 12, 1982, the Respondent proposed that:
Medical examinations for employees of the Kansas City District
will be conducted by a Federal medical officer, military
physician, or local contracted physician as determined by the
employer. All costs related to such examinations will be borne by
the employer.
Respondent's position was that utilization of military medical
facilities and private physicians contracted by the U.S. Army was the
most economical and practical method of providing medical examinations
for Kansas City District employees. In asserting its position, the
Respondent specifically stated that, "While only employees engaged in
health-hazardous occupations are required to have periodic job related
examinations the opportunity to have periodic health-maintenance
examinations is intended for all employees."
The Union and Respondent submitted rebuttal statements of position to
the Panel on October 26, 1982. On January 3, 1983, the Panel issued a
Decision and Order in 82 FSIP 145 ordering the parties to adopt the
following language in a mid-term agreement:
(1) the Union's proposal for bargaining-unit employees in
health-hazardous occupations, as amended to require the affected
employee to pay any difference between the contract price and the
private physician's fee, and (2) the Employer's proposal for all
other bargaining-unit employees.
On January 13, 1983 Respondent requested a clarification of the
above-referenced Decision and Order. In its request for clarification
the Respondent stated that the intent of its proposal was to provide
medical examinations only to employees engaged in health-hazardous
occupations and to 56 bargaining-unit employees working on or nearby a
U.S. Army installation. The FSIP responded to the request to clarify on
January 27, 1983 by restating the Decision and Order and by explaining
that it intended the Employer's proposal to apply to all bargaining-unit
employees except for those involved in health-hazardous occupations,
whether or not the employees are located on or near a U.S. Army military
installation.
The Union and Respondent met and discussed the Panel's Decision and
Order and alternative propositions and arrangements during the period
between January 27 and July 1, 1983. On July 6, 1983 the Union
requested that Respondent implement the Panel's Decision and Order
immediately. On July 12, 1983, Respondent informed the Union that
Respondent was taking immediate steps to implement part (a) of the FSIP
Decision and Order and also that Respondent would not implement part (b)
of the Order concerning employees in non health-hazardous occupations.
Respondent has not implemented the second portion of the Panel's Order.
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (6) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ by failing and refusing to adopt and
implement a Decision and Order of the Panel which requires Respondent to
furnish, at no cost to the employee, medical examinations for all
bargaining-unit employees including those who are not engaged in
health-hazardous occupations.
Section 7119(c)(5)(B)(iii) of the Statute provides that the Panel may
take whatever action is necessary and not inconsistent with the Statute
to resolve an impasse. Section 7119(c)(5)(C) of the Statute provides
that "final action" of the Panel shall be binding on the parties. /2/
While a party to a proceeding before the FSIP may not appeal directly to
the Authority, see State of New York, Division of Military and Naval
Affairs, 2 FLRA 185 (1979), the Authority has held that review of a
final Panel Decision and Order may be obtained through unfair labor
practice procedures initiated by a party alleging noncompliance with a
Panel Decision and Order, /3/ such as the case herein.
Respondent argues that the Panel had no jurisdiction over any issues
pertaining to employees not engaged in health-hazardous occupations,
because that issue was not raised in the initial request for assistance
or in any subsequent documents submitted to the Panel. This argument
cannot be sustained.
The stipulated record shows that the proposals, submissions and
exhibits presented to the Panel discuss bargaining unit employees
engaged in both health-hazardous and non health-hazardous occupations.
For example, in Respondent's initial Request for Assistance to the Panel
it stated that provisions of Missouri River Division Regulation (MRD-R)
385-1-4, Occupational Health Program are applicable to all civilian and
military employees in the Kansas City District. In Respondent's October
12, 1982 position statement to the Panel the Respondent describes its
proposal as the most "economical and practical method of providing
medical examinations for Kansas City District employees," without
stating whether or not the employees described were involved in
health-hazardous occupations. Respondent specifically stated that "the
opportunity to have periodic health maintenance examinations is intended
for all employees." Even Respondent's proposal, as stated above, did not
differentiate between employees in health-hazardous occupations and
those in non health-hazardous occupations. Based on this evidence it
does not appear that the Panel was acting outside of its jurisdiction by
rendering a Decision which ordered the parties to adopt a proposal which
provides medical examinations for all bargaining unit employees.
The Respondent also argues that even if the issue was before the
Panel it had never ripened into an impasse and that since the Panel is
only empowered to resolve issues at impasse, the Panel exceeded the
scope of its jurisdiction. This argument is also without merit. In
National Aeronautics and Space Administration, Headquarters, Washington,
D.C., 12 FLRA No. 94 (1983), the parties' submissions to the Panel
failed to specifically identify a grievance procedure question as an
impasse issue. The Authority adopted the ALJ's decision in which he
rejected the Respondent's assertion of lack of jurisdiction which was
based on the fact that the grievance procedure was not specifically
identified as an impasse issue. The Authority adopted the Judge's
reasoning that a request to the Panel must be considered in its
entirety; that the Panel's authority is not delimited by technical
language in the initial request for review, but that the entire matter
must be considered and determined as appropriate.
The record in this case reveals that the subject of providing medical
examinations for all employees was posed in the Respondent's initial
request for assistance and in subsequent submissions by the parties to
the Panel. Furthermore, despite assistance from mediators, the parties
had not reached an agreement as to the provision of medical examinations
to employees. As the Panel found, these circumstances constitute an
"impasse" within the meaning of section 2470.2(e) of the Rules and
Regulations of the Federal Service Impasses Panel. /4/
After carefully considering the Respondent's request to the Panel in
its entirety, the Authority concludes that there is no merit to the
Respondent's contentions that the Panel had no jurisdiction to issue a
decision concerning medical examinations for employees in non
health-hazardous occupations since this was an impasse issue presented
to the Panel for resolution. Accordingly, the Authority concludes that
Respondent violated section 7116(a)(1) and (6) of the Statute by failing
and refusing to comply with the decision of the Panel concerning the
provision of medical examinations for all unit employees. In view of
this finding the Authority finds it unnecessary to pass upon whether the
Respondent's conduct also violated section 7116(a)(5) of the Statute.
See State of California National Guard, 8 FLRA 54 (1982), remanded on
other grounds sub nom. California National Guard v. FLRA, No. 82-7187
(9th Cir. Jan 7, 1983), supp. dec. on remand 15 FLRA No. 102 (1984).
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Federal Service Labor-Management
Relations Statute, the Authority hereby orders that U.S. Army Corps of
Engineers, Kansas City District, Kansas City, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to comply with all provisions of the
Decision and Order of the Federal Service Impasses Panel in Case No. 82
FSIP 145, dated January 3, 1983.
(b) In any like or related manner, interfering with, restraining, or
coercing 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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the
Respondent's proposal for all bargaining unit employees not engaged in
health-hazardous occupations, and otherwise cooperate in impasse
procedures and decisions as required by the Federal Service
Labor-Management Relations Statute.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Authority. Upon receipt of such forms, they shall
be signed by the Commander and District Engineer, U.S. Army Corps of
Engineers, Kansas City District, or his designee, and shall be posted
and maintained by him for sixty (60) consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. The Commander 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 Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within thirty (30) days from the date
of this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the portion of the complaint in Case No.
7-CA-30503 which alleges a violation of section 7116(a)(5), be, and it
hereby is dismissed.
Issued, Washington, D.C., November 14, 1984.
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, 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 fail and refuse to comply with all provisions of the
Decision and Order of the Federal Service Impasses Panel in Case No. 82
FSIP 145, dated January 3, 1983.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 82 FSIP 145, by adopting and implementing the
Respondent's proposal for all bargaining unit employees not engaged in
health-hazardous occupations, and will otherwise cooperate in impasse
procedures and decisions as required by the Federal Service
Labor-Management Relations Statute.
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.
(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, of the Federal Labor Relations Authority whose
address is: 1531 Stout Street, Suite 301, Denver, CO 80202 and whose
telephone number is (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116 of the Statute provides:
Sec. 7116. Unfair labor practices
(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;
* * * *
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter(.)
/2/ Section 7119(c)(5) provides in pertinent part:
Sec. 7119. Negotiation impasses; Federal Service Impasses Panel
* * * *
(B) If the parties do not arrive at a settlement after
assistance by the Panel . . . , the Panel may--
* * * *
(iii) take whatever action is necessary and not inconsistent
with this chapter to resolve the impasse.
(C) Notice of any final action of the Panel under this section
shall be promptly served upon the parties, and the action shall be
binding on such parties during the term of the agreement, unless
the parties agree otherwise.
/3/ See National Aeronautics and Space Administration, Headquarters,
Washington, D.C., 12 FLRA No. 94 (1983); State of Nevada National
Guard, 7 FLRA 245 (1981), remanded on other grounds sub nom. Nevada
National Guard v. FLRA, No. 82-7034 (9th Cir. Jan. 7, 1983), supp. dec.
on remand 15 FLRA No. 101 (1984).
/4/ Section 2470.2 provides:
Section 2470.2 Definitions
(e) The term "impasse" means that point in the negotiation of
conditions of employment at which the parties are unable to reach
agreement, notwithstanding their efforts to do so by direct
negotiations and by the use of mediation or other voluntary
arrangements for settlement.