16:0969(129)CA - Labor and AFGE -- 1984 FLRAdec CA
[ v16 p969 ]
16:0969(129)CA
The decision of the Authority follows:
16 FLRA No. 129
UNITED STATES DEPARTMENT OF LABOR
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-20225
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the General Counsel and the Charging Party filed
exceptions to the Judge's Decision. /1/
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 recommended Order.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Respondent, United States Department of Labor, shall:
1. Cease and desist from:
(a) Furloughing bargaining unit employees of the Mine Safety and
Health Administration represented exclusively by the National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, without first notifying the exclusive representative and
affording it the opportunity to negotiate concerning the impact and
implementation of any such decision to furlough.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights accorded them by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain concerning the impact and implementation of
the decision to furlough Mine Safety and Health Administration employees
during the period January 4, 1982 through February 2, 1982.
(b) Post at its facilities wherever bargaining unit employees are
located, 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 of the United States
Department of Labor, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region III, 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., December 18, 1984
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
/s/ RONALD W. HAUGHTON
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 furlough bargaining unit employees of the Mine Safety and
Health Administration represented exclusively by the National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, without first notifying the exclusive representative and
affording it the opportunity to negotiate concerning the impact and
implementation of any decision to furlough.
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
Statute.
WE WILL, upon request, bargain concerning the impact and
implementation of the decision to furlough Mine Safety and Health
Administration employees during the period January 4, 1982 through
February 2, 1982.
. . .
(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.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF LABOR
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-20225
Barbara J. Sullivan, Esquire
For the Respondent
Eileen Hamamura Miller, Esquire
For the General Counsel
Deborah Loeb Bohren, Esquire
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 complaint alleges that the United States Department of Labor
(Respondent), violated Sections 7116(a)(1) and (5) of the Statute by
furloughing approximately 200 employees of the Mine Safety and Health
Administration (MSHA) of the Department of Labor without first
negotiating with the National Council of Field Labor Locals, American
Federation of Government Employees, AFL-CIO (Union or Council), /1A/ in
response to a Union request to negotiate concerning procedures relating
to the implementation of the decision to furlough, and concerning
appropriate arrangements for employees adversely affected by the
decision. /2/ As a remedy counsel for the General Counsel and counsel
representing the Charging Party seek a cease and desist order, the
posting of an appropriate notice to employees, mailing of such notice to
furloughed employees no longer employed by the Respondent, and lastly
that employees affected by the furlough be reimbursed for any and all
pay lost as a result of the furlough.
Counsel representing the Respondent contends that the Respondent did
not fail or refuse to negotiate with the Union; that Respondent
complied with the terms of a governing collective bargaining agreement
and established bargaining practice; that the subject of furloughs was
raised during prior collective bargaining negotiations leading to prior
written agreements, and that the Union waived any bargaining rights
concerning procedures relating to the implementation of the decision to
furlough employees; that management rights conferred on the Respondent
by the provisions of Section 7106(a)(1) and (a)(2)(A) operate to deny
the Union the right to negotiate concerning procedures relating to
methods used to select employees to be furloughed; and lastly, that
backpay would not be an appropriate remedy in any event in light of the
provisions of the Backpay Act of 1966, as amended by the Civil Service
Reform Act of 1978, 5 U.S.C. 5596(b)(1)(A)(i).
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Post-hearing briefs were received
from counsel of record. Based upon the entire record herein, including
my observations of the witnesses and their demeanor, the exhibits and
other relevant evidence adduced at the hearing, /3/ and the briefs
filed, I make the following findings of fact, conclusions and
recommendations.
Findings of Fact
The Furlough
There is no factual dispute concerning key elements of MSHA's
furlough of approximately 220 field organization employees during the
period beginning January 4, 1982, and extending through February 2, 1982
(G.C. Exhs. 18-19, Tr. 385). The decision to implement the furlough was
made by the Assistant Secretary in charge of MSHA and his staff (Tr.
189-190, 379). These officials also decided which employees would be
subject to furlough (Tr. 189-190). Furlough letters to affected
bargaining unit employees were prepared and signed by MSHA management on
December 18, 1981 (Tr. 432-433, 435, 437). MSHA intended to dispatch
all of the letters on December 19, 1981; however, due to a clerical
error, only a portion of the furlough letters were mailed on December
19th. The remainder were mailed on December 28, 1981 (Tr. 435, 448).
It therefore appeared that the furlough was effectuated on December 19th
and December 29th, with January 4, 1982, being the day on which the
actual furlough began. /4/
MSHA decided that the furlough of employees was necessitated by
Congressional action on a continuing resolution enacted by the Congress
on December 15, 1981. It prohibited MSHA from obligating or expending
funds "to prescribe, issue, administer, or enforce any standard, rule,
regulation, or order under the Federal Mine Safety and Health Act of
1977 with respect to any person engaged in the surface mining of stone,
clay, colloidal phosphate, sand, or gravel, or with respect to any
person engaged in construction activities on the surface area of any
coal or other mine" (Post-hearing Stipulation of Facts dated May 26,
1982). The Congressional action prohibited surface mine inspections
(Stipulation of Facts dated May 26, 1982). The continuing resolution
became effective on December 16, 1981, and continued for a period ending
on March 31, 1982 (Tr. 380-381). It imposed no specific limitation on
expenditures. It merely prohibited spending on certain MSHA activities
(Tr. 449).
The Union's Request to Negotiate
On December 14, 1981, Mr. Jesse Rios, President of the Council,
became aware of rumors that MSHA planned to furlough a number of
employees in various MSHA offices throughout the nation (Tr. 35-36, 39).
Mr. Rios was employed by the Department of Labor in Chicago. On the
same date, Mr. Rios telephoned Mr. Isaac Cole, Director, of the Division
of Collective Bargaining, Office of Labor Management Relations, United
States Department of Labor (Tr. 40-41). Mr. Cole said that he had not
heard anything about such furloughs, but that he would convey the
inquiry to Mr. Robert Hastings, Director of the Department's Office of
Labor Management Relations, and that they would "get back to (Mr. Rios)
as soon as possible." The record reflected that Mr. Hastings and/or Mr.
Cole, together with Mr. Elwood Taub, Deputy Director of the Office of
Labor Management Relations, had authority to determine whether or not
the Department of Labor would negotiate concerning furloughs (Tr. 204).
An unrelated bargaining session attended by representatives of the
Council and the Department of Labor in Washington, D.C. coincided with
the rumors of furlough. The session convened on December 15, 1981, for
the purpose of negotiating matters relating to the Employment Standards
Administration. The Council was represented by Mr. Paul Stewart,
Executive Vice President of the Council, and Mr. Elwood Knittle, Mr. Ben
Furlong, and Mr. Charles Davis, Council Vice Presidents. Mr. Knittle
was an employee of MSHA, and had previously been delegated authority to
deal with the Department of Labor on MSHA matters (Tr. 32). /5/ The
Department negotiating team was led by Mr. Hastings and Mr. Cole.
Between 10:30 a.m. and 11:00 a.m. on December 15th, during a break in
negotiations, Mr. Hastings advised Mr. Stewart that he had received
information from MSHA that there would be a furlough and that about 300
MSHA employees would be affected. He announced that his office would be
receiving more definite information "shortly," and that the Department
would give the Union formal written notice (Tr. 208). At approximately
the same time, Mr. Hastings informed participants in negotiations that
the then applicable continuing resolution had expired, that a new
continuing resolution had passed both houses of Congress, and that
language in the legislation would operate to affect MSHA operations (Tr.
129-130, 223).
As a result of the report received from Mr. Hastings, the Union team
caucused, and then telephoned Mr. Rios in Chicago to discuss the issue.
Mr. Rios asked the Union negotiators to bring the matter up at the
bargaining table, and obtain an official position from Mr. Hastings (Tr.
224-225). Mr. Rios also asked Mr. Stewart to report back to him. Mr.
Stewart thereafter asked Mr. Hastings about the issue at the bargaining
table and was told that Mr. Hastings would apprise the Union as soon as
specifics were known, and that "furloughs were not negotiable" (Tr.
225). /6/
Mr. Stewart reported to Mr. Rios what Mr. Hastings said at the
bargaining table (Tr. 131, 133-134). They agreed to request immediate
bargaining on impact and implementation issues relating to the expected
decision to furlough because it was anticipated that the furlough was
imminent (Tr. 45-46, 225-226). /7/ A written bargaining request was
then drafted during the telephone conversation (Tr. 46, 136-137). It
was agreed that Mr. Rios' name would be affixed to the request to avoid
procedural objections (Tr. 48-49, 138), and that an effort would be made
to have Mr. Rios travel to Washington, to join the bargaining team then
in Washington so that negotiations on furlough issues could commence
(Tr. 46, 226).
At 12:15 p.m. on December 15th, Mr. Stewart personally delivered an
impact and implementation bargaining request to Mr. Hastings' office
(Tr. 226). The request for negotiations referred specifically to the
proposed furlough of MSHA employees and included the following language:
The NCFLL is interested in the procedures to be used by the DOL
in effectuating such an action and the negative impact on the
bargaining unit employees (G.C. Exh. 4).
The request then designated the previously identified Union negotiating
teams, with the addition of Mr. Rios, as the appropriate individuals to
represent the Union in connection with the negotiations requested.
After lunch on December 15th, Mr. Hastings acknowledged receipt of
the written bargaining request, and said that he would respond to Mr.
Rios in due course (Tr. 140, 227). Union representatives strongly
objected to this procedure, and insisted on arranging for immediate
negotiations in the event furloughs were imposed on bargaining unit
employees (Tr. 140-141, 144-145). Mr. Hastings then clearly conveyed
the message that the Department of Labor did not think the subject was
negotiable, and insisted that there was no obligation to negotiate in
this case (Tr. 145-146). There was a specific refusal to negotiate
concerning procedures management would use to effect any furlough (Tr.
144-145, R. Exh. 9 at 6-7, Tr. 227-228, 229). /8/
Respondent's Refusal to Negotiate
The parties stipulated that the continuing resolution was signed into
law by the President at about 3:45 p.m. on December 15th (Tr. 315).
Respondent's representatives were closely monitoring the passage of the
legislation right up to the point of signature, and were well aware of
the restrictive provisions and the possibility of the need to furlough
MSHA employees (Tr. 438-439). In fact, the decision to effect a
furlough was made by Respondent's representatives on December 15th (Tr.
438). During the December 15th meeting Mr. Hastings reported late in
the day that 215 employees would be furloughed, that the furlough would
take effect on January 4, 1982, and that notices would go out to
employees late in December (Tr. 228). /9/ Instructions regarding the
furlough would necessarily have been transmitted to managers in the
field prior to December 19th, the date on which the first group of
furlough notices were mailed; and there were discussions with district
and field office supervisors prior to December 18th (Tr. 440-441).
The negotiating session which commenced on December 15, 1981,
continued through December 18, 1981; however, the parties did not
negotiate impact and implementation issues relating to the furlough.
The topic was mentioned intermittently by Union representatives, but
there was no negotiation or serious discussion of the subject because
Respondent's representatives took the position that no obligation to
negotiate existed (Tr. 184-185, 228, 230-232). /10/
On December 16, 1981, Mr. Cole phoned Mr. Rios in Chicago to apprise
him that a press release would be issued concerning the proposed
furlough, and further that he would telex the document to Mr. Rios that
same day (Tr. 50-52). /11/ Mr. Rios reiterated his prior bargaining
request. Mr. Cole indicated that there would be a formal response to
the handwritten memorandum delivered to Mr. Hastings on December 15th,
and that the (Mr. Cole) had no authority to respond for Mr. Hastings
(Tr. 53). However, Mr. Cole repeated arguments previously stated by Mr.
Hastings in opposition to the request (Tr. 54). During the conversation
Mr. Cole supplied a number of administrative details concerning the
furlough, thus indicating that the Department's implementation of the
furlough plan was nearly complete (Tr. 54-55). /12/
In a further effort to obtain information concerning the furlough,
Mr. Rios unsuccessfully attempted to phone Mr. Cole on December 15th or
December 16th to request a list of names of any MSHA employees selected
for furlough, and their office assignments (Tr. 49-50). The request was
made to an assistant of Mr. Cole's who agreed to advise Mr. Cole of the
request. /13/
On December 18, 1981, Mr. Rios received a telephone call from Mr.
Cole or Mr. Taub. The caller advised that paperwork on the furlough had
been completed, /14/ that the Union would be receiving official notice
concerning the furlough by telex that day, and that the press release
transmitted on December 16th was not considered notice to the Union (Tr.
60-61). /15/ Mr. Rios again mentioned the Union's request for
negotiations. Although implementation of the furlough had in fact
occurred, either Mr. Cole or Mr. Taub endeavored to leave the erroneous
impression that the Respondent might negotiate before implementation.
It was noted that the Respondent did not at that time think negotiations
were required (Tr. 61-62). The caller clearly indicated that the
difference in position would have to be adjudicated in some manner (Tr.
62). The caller stated:
Right now I believe that we are not going to get negotiations
but we will reply to your written request (Tr. 62).
A letter dated December 18, 1981 was telexed to Mr. Rios, ostensibly
as a belated post-implementation official notice of the furlough
decision, although the Respondent had previously given earlier oral and
written notice of the action (G.C. Exh. 6), and had in fact accepted for
later reply, the Union's December 15th bargaining request. The December
18th letter included no reply to the December 15th bargaining request.
On December 22, 1981, Mr. Taub phoned Mr. Rios and advised that the
bargaining request would not be honored by the Respondent (Tr. 71-72,
102, 350). During this conversation Mr. Taub advised Mr. Rios that Mr.
Rios' earlier request (on December 15th or 16th) for a list of names of
MSHA employees selected for furlough would not be granted because the
Department of Labor considered the information exempt under the
provisions of the Privacy Act (Tr. 348-349).
The Union subsequently mailed to the Respondent, a second formal
impact and implementation bargaining request in the form on a letter
dated December 18, 1981, addressed to Mr. Hastings by Mr. D. L. Coleman,
a Union Vice-President acting on behalf of Mr. Rios (G.C. Exh. 7). This
letter, coinciding with the date on which final notices were mailed to
MSHA employees not previously notified on December 19, 1981, was
followed on December 29, 1981, with the filing of a formal charge
alleging a failure to bargain on impact and implementation (G.C. Exh.
1(a)). /16/
The administrative machinery set in motion on December 19, and 28,
1981, with the transmission of formal notice to MSHA employees selected
for furlough, continued without interruption; and as mandated the
period of furlough commenced for all affected employees on January 4,
1982. The record is clear that impact and implementation bargaining
negotiations, in response to the request, did not occur prior to the
filing of the charge, and further, that negotiations have not occurred
since. A subsequent exchange of correspondence following receipt of the
Union's December 28th letter was pursued by the parties in an effort to
reach an accommodation on the issues posed by the filing of the charge.
This exchange is not deemed relevant and is given no consideration in
connection with the disposition of this case.
Discussion and Conclusions
Under the provisions of Section 7106(a)(2)(A) of the Statute,
management officials have the authority "to hire, assign, direct,
layoff, and retain employees in the agency, or to suspend, remove,
reduce in grade or pay, or take other disciplinary action against such
employees . . . " Section 7106(a)(2)(B) gives management officials the
right "to assign work, . . . and to determine the personnel by which
agency operations shall be conducted. . . . " Also, Section 7106(b)(1)
provides that "the numbers, types, and grades of employees or positions
assigned to any organizational subdivision, work project, or tour of
duty . . . " are negotiable only at the election of the agency.
However, Sections 7106(b)(2) and (b)(3) of the Statute impose an
obligation on agencies to give reasonable notice of an intention to
effectuate changes in the conditions of employment, /17/ and to provide
an opportunity to negotiate with respect to procedures designed for
exercising these management rights, and with respect to arrangements for
employees adversely affected; that is, on the impact and implementation
of such management decisions.
In this case the Union was apprised of the decision to furlough as
early as the afternoon of December 15, 1981, during collective
bargaining on other unrelated issues. A bargaining request filed with
the Respondent early on December 15th in anticipation of the decision to
furlough was accepted by the Respondent without reservation, and
retained for appropriate action by the Respondent. It was retained
after finalization (on December 15th) of the MSHA decision to furlough
employees, with the full understanding that the Respondent would reply
to the request. Despite the request, the Respondent effectuated the
furlough of bargaining unit employees without first bargaining on impact
and implementation. In fact, it clearly appeared that steps toward
eventual implementation were proceeding apace even while repeated
requests were being made by the Union to persuade the Respondent to
bargain, and while the Respondent was refusing to accede to the Union's
requests. This refusal to bargain was in large measure, admitted by the
Respondent's representatives (Tr. 300, 320-323; Respondent's Brief at
16 and 21). In fact, the Respondent's post-hearing brief acknowledged
that during the pertinent period, representatives of the Respondent were
in doubt as to what subjects were negotiable under the Statute
(Respondent's Brief at 12).
Counsel representing the Respondent argues that the furloughs in
question may properly be classified as adverse actions within the
meaning of Article 14 of the collective bargaining agreement, and that
since procedures relating to adverse actions were the subject of prior
collective bargaining negotiations, the Union effectively waived any
bargaining rights pertaining to the MSHA furloughs. Article 14 merely
refers to Federal Personnel Manual provisions relating to adverse
actions, and provides certain general procedural protections for
bargaining unit employees. This Article does not address the specific
issues raised as part of the Union's request to bargain on impact and
implementation. In this case the main concern of the Union pertained to
the procedures which MSHA management officials would utilize to exercise
the management right of selecting employees to be furloughed, and
appropriate arrangements which might be negotiated to provide for
affected employees, as distinct from procedural matters referred to in
Article 14.
The Authority has made it clear that an agency must meet its
obligations to negotiate prior to making changes in established
conditions of employment during the term of a collective bargaining
agreement, absent a clear and unmistakable waiver of bargaining rights.
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2 (1981); Department of the Air Force, United States Air Force Academy,
6 FLRA No. 100 (1981). The language of Article 14 is not inconsistent
with, and does not show clearly and unmistakably that the Union waived
its rights to bargain over all issues which might touch upon the general
subject of furloughs. That is, there was no showing that the bargaining
history of the parties involved a clear and unmistakable waiver of the
right to bargain on all impact and implementation issues pertaining to
the MSHA furlough. The Authority has held that Union proposals designed
to insure the use of equitable furlough procedures are negotiable if
they do not interfere with management rights under Section 7106.
National Treasury Employees Union, 7 FLRA No. 42 (1981). Here the Union
was not, prior to implementation, or thereafter, provided with an
opportunity to negotiate bargainable proposals relating to impact and
implementation of the decision to furlough. The entire matter was
deferred by the Respondent in favor of almost immediate implementation
of the decision to furlough. It should be noted that this is not a case
where good faith bargaining commenced and non-bargainable issues were
interposed by the Union. Rather, it is one where bargaining was not
permitted in the first instance. Numerous appropriate areas of interest
might have engaged those involved in such a bargaining process. The
mere fact that there was a showing that Union representatives did,
during unrelated bargaining sessions, object to the MSHA decision to
furlough, would not, without more, establish that the Union would have
raised only non-negotiable issues during bargaining on impact and
implementation.
Counsel representing the Respondent also contends that the
Respondent's conduct was in compliance with the provisions of Article 2,
Sec. 5(A), (B) and (C) of the collective bargaining agreement, and that
at most, the course of conduct pursued by the Respondent involved only a
differing and arguable interpretation of these contractual provisions.
In such cases an aggrieved party's remedy would lie within the grievance
and arbitration procedure in the negotiated agreement rather than unfair
labor practice procedures. If this case involved essentially an
interpretation of the collective bargaining agreement in relation to
whether the Respondent met its statutory bargaining obligation to
bargain, the Respondent would be correct. Food Safety and Quality
Service, United States Department of Agriculture, Washington, D.C., 7
FLRA No. 103 (1982); Internal Revenue Service and Brookhaven Service
Center, 6 FLRA No. 127 (1981). However, that is not the case here. The
Respondent's violation of obligations posed by Article 2 is clear and
patent and poses no issue of contract interpretation.
Article 2, Sec. 5(A), (B) and (C) provides:
Section 5 - Management Proposals for Change During the Term of
the Agreement
(A) Management agrees to transmit to the NCFLL proposed changes
relating to personnel policies, practices, and matters affecting
working conditions of bargaining unit employees, or which impact
on them, proposed during the term of this Agreement and not
covered by this Agreement, as far in advance as possible.
(B) Upon receipt of such a proposed change from Management, the
NCFLL may, within 15 working days, request negotiations concerning
the proposed change.
(C) Upon timely request from the NCFLL, the parties shall meet
and confer within 30 calendar days concerning any negotiable
aspects of the proposed change and/or its impact on bargaining
unit employees.
Respondent's argument mistakenly assumes that implementation of a
proposed change may preclude bargaining, and also assumes facts not
established by the record. Interestingly, the Respondent contends that
official notice of the furlough was not given until December 18, 1981,
and further that the Union's bargaining request was not transmitted by
the Union until December 28, 1981. /18/ Respondent argues that under
the provisions of Article 2, Sec. 5, the respondent had 30 days from
December 28th within which to commence bargaining. The record reflects
that the first notice of the proposed furlough was given orally to Union
representatives on December 15th. The bargaining request was also
received by the Respondent on December 15th.
Article 2, Sec. 5(B) provides the Union with a 15 day period in which
to request negotiations concerning proposed changes. This requirement
was met on the day on which notice of the change was received. Article
2, Sec. 5(C) provides a 30 day period in which to commence bargaining,
"concerning any negotiable aspects of the proposed change and/or its
impact on bargain unit employees." The Respondent cannot successfully
argue that the furlough was being proposed by the Respondent during
Respondent's implementation of the decision to furlough. Thus, it is
clear that the Respondent was acting in clear violation of Article 2,
Sec. 5(C), by failing to commence bargaining on the "proposed change,"
before the expiration of the 30 day period provided. Moreover, it is
abundantly clear that the negotiated agreement contemplates bargaining
on negotiable issues prior to change. If this were not so, the word
"proposed" would not have been utilized to describe management proposals
in Article 2, Sec. 5(A), (C) and (C). /19/ Respondent's conduct was not
even arguably in compliance with Article 2, Sec. 5 of the collective
bargaining agreement.
From the foregoing and other evidence in the record it is concluded
that the Respondent violated Sections 7116(a)(1) and (5) of the Statute
as alleged in the complaint.
As noted, counsel representing the General Counsel and counsel
representing the Charging Party seek a cease and desist order, the
posting of an appropriate notice, mailing of such notice to furloughed
employees no longer employed by the Respondent; and lastly, that
employees affected by the furlough be reimbursed for any and all pay
lost as a result of the furlough. These parties do not seek a status
quo ante remedy. /20/
Issues relating to back pay are governed by the Back Pay Act of 1966
as amended by the Civil Service Reform Act of 1978 (5 U.S.C. 5596).
Section 5596(b)(1)(A)(i) now provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee--
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect--
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period; . . .
Counsel for the General Counsel and counsel representing the Charging
Party argue persuasively on the basis of the factual picture presented,
that a back pay award is the only means of fully insuring that the
Respondent will fulfill bargaining obligations in the future. However,
in order for retroactive back pay to be authorized under the Back Pay
Act, there must be a determination not only that the employee has
suffered an unjustified or unwarranted personnel action within the
meaning of the Act, but also that such action directly resulted in the
denial of pay that the aggrieved employee would otherwise have received.
Picatinny Arsenal, U.S. Army Armament Research and Development Center,
Dover, New Jersey, 7 FLRA No. 109 (1982); American Federation of
Government Employees, Local 2811, 7 FLRA No. 97 (1982); Veterans
Administration Hospital, 4 FLRA No. 57 (1980).
Here counsel for the General Counsel has established that
implementation of the MSHA furlough imposed unjustified and unwarranted
personnel actions upon affected employees. However, in order to grant a
back pay award the record must show that but for Respondent's failure or
refusal to negotiate in accordance with the Statute, employees
furloughed would not have sustained a loss of pay. It is not possible
to make such a "but for" finding in this case because it is not possible
to determine whether or not all affected employees would have been
furloughed had negotiations occurred. To put it another way, back pay
would not be appropriate in the absence of a finding that all furloughed
employees would have remained on the payroll had negotiations occurred.
It is not possible to draw this conclusion from the record.
The General Counsel's request that notices be mailed "to all
employees who were furloughed in January 1982, if they are presently not
working for Respondent for any reason . . . " would not be appropriate
in this case. There would be no basis for mailing notices to
individuals no longer members of the bargaining unit, and there would be
no basis for such a mailing to Respondent's absent employees without a
specific showing of unusual circumstances. See, Department of the Army,
Fort Bragg Schools, 3 FLRA No. 57 (1980). Here there was no showing
that specific bargaining unit employees would be absent, nor was there
any other indication of special circumstances which would justify a
mailing of the type requested.
Having found that the Respondent violated Sections 7116(a)(1) and (5)
of the Statute, I recommend that the Authority issue the following
order:
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, it is hereby ordered that
the Mine Safety and Health Administration of the United States
Department of Labor shall:
1. Cease and desist from:
(a) Furloughing bargaining unit employees of the Mine Safety
and Health Administration represented exclusively by the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, without first notifying the exclusive
representative and affording it the opportunity to negotiate to
the extent consonant with law and regulations concerning
procedures relating to implementation of any such decision to
furlough, and concerning appropriate arrangements for employees
adversely affected.
(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 effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain concerning procedures relating to the
implementation of the decision to furlough Mine Safety and Health
Administration employees during the period January 4, 1982 through
February 2, 1982, and concerning appropriate arrangements for
employees adversely affected.
(b) Post at its facilities wherever bargaining unit employees
are located, 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 Assistant
Secretary, Mine Safety and Health Administration, United States
Department of Labor, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the 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.
/s/ LOUIS SCALZO
LOUIS SCALZO
Administrative Law Judge
Dated: July 1, 1982
Washington, D.C.
APPENDIX
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT furlough bargaining unit employees of the Mine Safety and
Health Administration represented exclusively by the National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, without first notifying the exclusive representative and
affording it the opportunity to negotiate to the extent consonant with
law and regulations concerning procedures relating to implementation of
any decision to furlough, and concerning appropriate arrangements for
employees adversely affected.
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
Statute.
WE WILL upon request, bargain concerning procedures relating to the
implementation of the decision to furlough Mine Safety and Health
Administration employees during the period January 4, 1982 through
February 2, 1982, and concerning appropriate arrangements for employees
adversely affected.
. . .
(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 any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, N.W., Suite 700, Washington, D.C.,
20036, and whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent also requested modification of the Judge's
recommended Order, and the Charging Party filed an opposition thereto.
/1A/ The Council is an amalgamation of 34 Locals chartered by the
AFGE. It is recognized as the exclusive bargaining representative for
certain employees of the Respondent including certain employees of MSHA.
A number of MSHA employees furloughed were members of the bargaining
unit.
/2/ 5 U.S.C. 7106(b)(2) and (3). This obligation is oftentimes
referred to as impact and implementation bargaining.
/3/ Counsel representing the General Counsel moved to correct the
transcript as follows: (TABLE OMITTED)
The motion to correct is granted. The following additional
corrections are also made in the hearing transcript: (TABLE OMITTED)
/4/ The furlough, classified as a "furlough of 30 days or less," was
based on authority contained in 5 C.F.R.Part 752.
/5/ The Union team convened from various parts of the nation. Mr.
Stewart traveled from Los Angeles, Mr. Knittle from Denver, Mr. Furlong
from Tulsa, and Mr. Davis from Baltimore.
/6/ The record does not reflect that the Respondent was in fact
refusing to bargain with the Union on impact and implementation at this
point.
/7/ Section 7106(a)(2)(D) of the Statute provides a basis for taking
unilateral action in accordance with applicable laws in cases where
action is "necessary to carry out the agency mission during
emergencies." Counsel for the Respondent stipulated that Respondent
would not be relieved of any bargaining obligation because of a need to
implement the decision to furlough on an emergency basis (Tr. 6, 66-68).
/8/ Although the record indicates a Union effort to question the
decision to furlough employees, an issue which would not be negotiable;
it also clearly reflects Respondent's December 15th refusal to bargain
concerning impact and implementation issues.
Of interest in connection with this refusal is General Counsel
Exhibit 11, a Memorandum to Directors of Personnel dated November 3,
1981, from the Office of Personnel Management. The memorandum provides
guidance in the use of furloughs for 30 days or less under adverse
action procedures set out in 5 C.F.R.Part 752. At page 2 it is noted
that "(a)gency management is required to afford unions an opportunity to
collectively bargain on the procedures which will be observed in
exercising this authority (5 U.S.C. 7106(b)(2)) and on appropriate
arrangements to be made for employees adversely affected by the agency's
decision (5 U.S.C. 7106(b)(3))."
/9/ Testimony offered by Respondent's witnesses to the effect that
the Respondent's Office of Management Relations was not aware of issues
posed by the Union's bargaining request until December 16th was
discredited in light of other persuasive proof adduced by counsel for
the Respondent and counsel for the General Counsel.
/10/ Counsel representing the Respondent attached the credibility of
Mr. Davis and Mr. Stewart with respect to their report of the Union's
continued assertion of interest in impact and implementation bargaining
during the period December 16 through 18, 1981. Heavy reliance is
placed on alleged inconsistencies in Mr. Davis' testimony and a written
statement given by Mr. Davis to Authority Investigators. A careful
reading of Mr. Davis' statement reflects no real conflict. This
evaluation and interpretation of the written statement is supported by
the testimony of Mr. Steward as well as many other persuasive elements
in the record indicating the Union's continued interest in completing
impact and implementation bargaining during the ongoing bargaining
sessions.
/11/ G.C. Exh. 5. The document was received by Mr. Rios on December
16th.
/12/ Mr. Rios' testimony is relied upon to supply an account of the
December 16th conversation. Mr. Cole could not recall details of the
conversation (Tr. 287-288).
/13/ Although the complaint alleges no violation of Section 7116 of
the Statute based upon a refusal to supply information falling within
the purview of Section 7114(b)(4), and although it is unnecessary to
determine whether such a violation occurred, it is noted that the
Respondent did in fact refuse to supply the information requested (Tr.
347-350).
/14/ As previously noted, official notice of the furlough was mailed
to the first group of MSHA employees on December 19th.
/15/ Mr. Cole could not recall a conversation on this date. Mr. Taub
denied that he had a conversation on this date with Mr. Rios, and Mr.
Rios' statement to investigators does not specifically mention this
telephone call. However, Mr. Rios was a credible witness, and the
record reflects no reason to discredit Mr. Rios' testimony. Moreover,
other credible elements in the record indicate that the report received
by Mr. Rios was substantially an accurate picture of what was then
happening with respect to the furlough.
/16/ The December 28th communication, sent by mail, was not delivered
until January 5, 1982. The date of preparation and the date of mailing
is not reflected in the record. However, the date of the letter,
together with the content thereof indicates that the document preceded
the actual filing of the charge.
The Respondent argues that this communication was the Union's first
bargaining request. There is no basis in the record to support this
contention. The Respondent accepted the handwritten memorandum
delivered to Mr. Hastings on December 15, 1981, following oral notice of
the possibility of proposed furlough, as a bargaining request; and both
Respondent and the Union thereafter acted on the assumption that it was
a bargaining request.
/17/ The Respondent interposes no argument in opposition to the
contention that the furloughs did effect a change in working conditions
of bargaining unit employees, and further that the change did in fact
have a substantial impact on the terms and conditions of employment.
Nevertheless, it is noted that this element of the case is clearly shown
by the fact that employees furloughed received no pay during the period
of the furlough, by the fact that affected employees were quite limited
with respect to the type of outside employment they might pursue by
conflict of interest regulations, and by the fact that the work of
remaining MSHA employees in offices affected would necessarily have been
altered by the deletion of certain previously performed work activity.
/18/ Even assuming that the Respondent did not give notice until
December 18, 1981, it can hardly be argued that such notice would have
been reasonable in the light of Respondent's completion of furlough
notices on December 18th, and implementation of the initial phase of the
decision on December 19, 1981, with the mailing of furlough notices to
the first group of affected employees.
/19/ Respondent's assumption that impact and implementation
bargaining need not precede effectuation of the proposed change must
also be rejected. The record reflects no clear and unmistakable waiver
of such bargaining rights by the Union. Department of the Air Force,
Scott Air Force Base, Illinois, supra; Department of the Air Force,
United States Air Force Academy, supra.
/20/ In light of this position it is unnecessary to determine whether
a status quo ante remedy would be appropriate under criteria established
by the Authority. See, Federal Correctional Institution, 8 FLRA No. 111
(1982).
Counsel representing the Respondent suggests in her post-hearing
brief that Ms. Alora Baxter was called as a witness for the Respondent
at the request of the administrative law judge to show that a return to
status quo ante would cause a serious disruption of agency activities.
The record does not reflect such a request, and no such request was
otherwise made. Apparently counsel made a determination to call Ms.
Baxter out of an abundance of caution generated by comments made during
a prehearing telephone conference with the parties; and by an on the
record discussion concerning uncertainty as to whether or not the case
posed a status quo ante remedy issue, and if so, whether the Respondent
or the General Counsel had a burden of proof with respect to such issues
(Tr. 22-25, 382-383).