21:0339(45)CO - AFGE, Local 2782 and Dept. of Commerce, Bureau of the Census -- 1986 FLRAdec CO
[ v21 p339 ]
21:0339(45)CO
The decision of the Authority follows:
21 FLRA No. 45 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, AFL-CIO Respondent and DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS Charging Party Case No. 3-CO-50002 DECISION AND ORDER The Administrative Law Judge issued the attached Decision 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. The Respondent filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations 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 Federal Service Labor-Management Relations Statute, it is hereby ordered that the American Federation of Government Employees, Local 2782, AFL-CIO, shall: 1. Cease and desist from: (a) Unilaterally refusing or failing to proceed to arbitration regarding three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984, contrary to the requirements of section 7121 of the Federal Service Labor-Management Relations Statute, after receiving timely notice of the Department of Commerce, Bureau of the Census' desire to invoke arbitration. (b) In any like or related manner interfering with, restraining, or coercing unit 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, proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984. (b) Post at its business offices and its normal meeting places, including all places where notices to members and employees of the Department of Commerce, Bureau of the Census, are customarily posted, copies of the attached Notice, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the American Federation of Government Employees, Local 2782, AFL-CIO, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members and other employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (c) Submit appropriate signed copies of such Notices to the Director, Bureau of the Census, for posting in conspicuous places where the unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, 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., April 18, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT: WE WILL NOT unilaterally refuse or fail to proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984, contrary to the requirements of section 7121 of the Federal Service Labor-Management Relations Statute, after receiving timely notice of the Department of Commerce, Bureau of the Census desire to invoke arbitration. WE WILL NOT in any like or related manner interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Statute. WE WILL, upon request, proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984. (Labor Organization) 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, Federal Labor Relations Authority, Region III, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 3-CO-50002 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782, AFL-CIO Respondent and DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS Charging Party/Agency Erica F. Cooper, Esquire Bruce D. Rosenstein, Esquire For the General Counsel Ruth A. Sanders Russ Davis For the Respondent Paul A. Bath For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq., and the Rules and Regulations issued thereunder. Pursuant to an amended charge first filed on October 3, 1984, by the Department of Commerce, Bureau of Census, (hereinafter called the Charging Party or Bureau), a Complaint and Notice of Hearing was issued on December 31, 1984, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint, which was amended at the hearing, alleges in substance that the American Federation of Government Employees, Local 2782, AFL-CIO, (hereinafter called the Union) violated Sections 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in failing and refusing to proceed to arbitration on three grievances filed by the Bureau. A hearing was held in Washington, D.C. on February 20, 1985. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel submitted a post hearing brief on March 20, 1985, which has been duly considered. /1/ Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions, and recommendations. Findings of Fact The Union is and has been the exclusive collective bargaining representative of two units of the Bureau's employees stationed in the Washington, D.C. Metropolitan Area. On June 23, 1977, the Union and the Bureau executed a collective bargaining agreement covering the above mentioned employees. The agreement was to be effective for a period of three years and from year to year thereafter absent appropriate notice by either party to the contrary. /2/ Article 7 of the collective bargaining agreement sets forth a grievance procedure, the last step of which is binding arbitration. If the parties can not mutually agree on the selection of an arbitrator, then, in accordance with the grievance procedure, a list of seven arbitrators is to be secured from Federal Mediation and Conciliation Service (FMCS). Upon the receipt of the list from FMCS, the parties will alternately take turns striking single names from the list until only one arbitrator's name remains on the list. The grievance procedure further provides that either party to the collective bargaining agreement may "as the final step in the grievance procedure" invoke arbitration following the receipt of the opposing parties decision pursuant to Section 7.10 of the grievance procedure which is entitled "Formal Grievance". On or about October 28, 1983, after approximately six months of bargaining by Mr. David Warner on behalf of the Bureau and Mr. Edward Hanlon, then Chief Steward and Chief Negotiator for the Union, Mr. Hanlon and Mr. Warner initialed off on a new collective bargaining contract. /3/ The collective bargaining contract was subject to ratification by the Union membership, and a 30 day period thereafter for final approval by higher representatives of the Bureau. Also on October 28, 1983, Mr. Hanlon and Mr. Warner entered into a Memorandum of Understanding (MOU) wherein the Union agreed to withdraw "all unfair labor practices which have been filed and are currently pending, including those being investigated and those already scheduled for hearings". The Union also agreed to abide by Article 30 of the "proposed new agreement" pending ratification of the Agreement. Article 30 of the new Agreement provides, among other things, that the Union will give the Bureau 30 days notice prior to filing any unfair labor practice charge. According to the credited testimony of Mr. Warner, the Union ratified the new October 28, 1983 collective bargaining agreement between the parties on or about November 9 or 10, 1983. On or about December 10, 1983, approximately 30 days following ratification, the Bureau began to implement the contract. Thus, the Bureau established an alternate work schedule, provided Union access to the mails, prepared a survey concerning employee interest in a day care center, effected changes in employees' work space, etc. However, despite the fact that the Bureau had been implementing the terms of the new collective bargaining agreement, the Union, due to a controversy surrounding Article 19.2 of the new collective bargaining agreement which pertained to alternate work schedules for unit employees in the Bureau's Computer Services Division, refused to formally sign the new collective bargaining agreement. By separate Memorandums date March 8, 1984, the Bureau filed three separate "Formal" grievances against the Union. Two of the grievances concerned alleged violations of the October 28, 1983 MOU and the third grievance concerned an alleged "intentionally false, inflammatory letter" from the Union to unit employees in connection with a pending representation matter before the Federal Labor Relations Authority. /4/ When the Union failed to respond to the grievances, the Bureau by three separate letters dated April 14, 1984, consistent with applicable provisions of both the 1977 and 1983 collective bargaining contracts, invoked arbitration on each of the grievances. Attached to each of the three April 14, letters invoking arbitration was a copy of the original grievance, a proposed settlement and a Form R-43 which was utilized under the 1977 contract to obtain a list of arbitrators from the FMC. Neither the March 8, 1984 grievances nor the April 13, 1984, letters invoking arbitration specifically mentioned which contract the Bureau was proceeding under. On April 23, 1984, the Union responded to the Bureau's request for arbitration taking the position that the November, 1983 collective bargaining contract was "void, null, and without any legal meaning whatsoever" due to pending litigation thereon before the Federal Labor Relations Authority, and that in such circumstances the matters raised in the grievances were "not grievable or arbitrable at this time". The Union closed its letter stating as follows: However, if the Agency wishes to seek enforcement of any provision of the 1977 agreement currently in legal effect, it may do so pursuant to the negotiated grievance procedure of that contract. The Union will, of course process any management grievance pursuant to the 1977 contract. By memorandum dated May 4, 1984, the Bureau notified Mr. Hanlon, then president of the Union, that it was unaware of any authority for the Union's position that it could make a unilateral determination concerning the arbitrability and/or grievability of any matter. The memorandum further advised the Union that the Bureau intended to proceed "independently to arbitration" and give serious thought to filing an unfair labor practice predicated upon the Union's refusal to process grievances. Four days later, on May 8, 1984, the Bureau filed a completed FMCS Form R-43, entitled "Request For Arbitration Panel". On May 14, 1984, the FMCS forwarded a panel of arbitrators to both the Union and the Bureau. On July 19, 1984, the Bureau and the Union entered into a Memorandum of Agreement covering the disputed language appearing in Article 19.2 of the new collective bargaining agreement which pertained to alternative work schedules for unit employees in the Bureau's Computer Division. Paragraphs (a), (b) and (c) dealt solely with Article 19.2. Paragraphs (d), (e) and (f) read as follows: (d) Immediately sign the current (November 9, 1983) contract without the article 19.2. (e) The contract is effective as of the date of signature of this memorandum. However, any agency actions taken under the November 9 contract must be considered as if the contract had taken effect when implemented by the agency. The agency will not raise the defense of timeliness with respect to grievances concerning the issues of physical relocation, or the impact of reorganization under article 23 and 24, respectively, occurring between December 10, 1983 and July 19, 1984. (f) The Agency will withdraw the unfair labor practice charge filed in Case No. 3-CO-40019 now pending. On July 23, the Bureau sent a memorandum to the Union wherein it requested the Union's position on the Bureau's March 8, 1984 grievances. By Memorandum dated August 13, 1984, the Union requested that the parties take immediate steps to form a five member arbitration panel pursuant to Sections 9.3 and 10.3 of the new contract. The Union proposed September 10, 1984, as the date the parties would each submit a list of 10 arbitrators. /5/ By Memorandum dated August 14, 1984, the Bureau reiterated its request for the Union's position on the Bureau's three pending grievances and asked for a response by August 17, 1984. On August 17, 1984, the Union replied to the Bureau's July 3, 1984 memorandum stating in pertinent part as follows: Obviously, the confusion over which contract was in effect from December 10, 1983, to July 19, 1984, made the processing of any grievance very difficult -- Union, Agency, or employee. That confusion has now, hopefully, been cleared up. I have not made a final determination of arbitrability or grievability on your grievance. However, to provide an answer to your July, 1984, letter and consider your grievances, I require reasonable official time. Article 5 did not contemplate the right of management to file a grievance. No such management right is required by law. I am willing to consider a final response to your March, April, and July correspondence and forward it to you within 10 workdays if in return you recognize that the Union president or designees are entitled to reasonable amounts of official time over and above that contained in Article 5 to process management grievances. By Memorandum dated August 15, 1984, the Bureau replied to the Union's August 13, 1984, letter concerning its request that the parties take immediate steps to form a permanent arbitration panel by September 1, 1984. The Bureau, pointing out that there would not be sufficient time to review the qualifications of the arbitrators, suggested October 31, 1984, as the date to select a panel of arbitrators. On August 17, 1984, the Union answered the Bureau's August 15, 1984, memorandum. The Union accused the Bureau of stalling on the matter and suggested September 17, 1984 as an alternate date for exchanging lists of arbitrators. On August 20, 1984, the Union again wrote the Bureau concerning its pending grievances. Thus, the Union agreed to process the pending grievances filed by the Bureau through Articles 8, 9 and 10 of the new 1983 contract provided it was allowed additional official time to perform such activities. Articles 8, 9 and 10 of the new contract are the grievances and arbitration provisions of the new contract. On September 7, 1984, the Bureau sent a memorandum to the Union wherein it set forth its position on the official time provisions of the contract. By a separate memorandum, also dated September 7, 1984, the Bureau informed the Union that while it expected to have its list of arbitrators ready for exchange by the end of October, it was of the opinion that the establishment of a panel should not prevent the parties from proceeding immediately to arbitration on the unresolved grievances. On October 26, 1984, the Bureau notified the Union that it was prepared to meet for purposes of establishing the arbitration panel called for in the new contract. As of the date of the hearing, the Union had not agreed to proceed to arbitration on the Bureau's three grievances. Discussion and Conclusions The General Counsel takes the position that the record supports a conclusion that the Union failed and/or refused to participate in the submission of the Bureau's three grievances to arbitration and thereby violated Sections 7116(b)(1) and (8) of the Statute. In support of this position the General Counsel points out that none of the three grievances were predicated solely upon provisions of the 1983 contract and as such were actionable under the grievances and arbitration provisions of either the 1979 or 1983 contract. In such circumstances according to the General Counsel, even if it be concluded as contended by the Union that the 1983 contract was not in effect at the time of the initial request for arbitration of the three grievances, then the Union was under an obligation to process the grievances under the 1979 contract, which by its terms remained in effect until superseded by a new collective bargaining contract. In this latter context the General Counsel points out, and I so find, that both the form and procedures utilized in the processing of such grievances comported in all respects with the grievance and arbitration provisions of the 1979 collective bargaining contract. The Union's sole defense to the instant complaint appears to be that due to various disagreements concerning the wording of various provisions of the 1983 contract, including the provisions dealing with grievances and arbitration, the 1983 contract was not in effect at the time the Bureau requested arbitration of its grievances. In such circumstances, since the Bureau was in fact requesting arbitration under the provisions of the 1983 contract, it, the Union, was under no obligation to process the grievances. According to the Union it was always willing to process the grievances under the 1979 collective bargaining agreement. The Authority has held that an agency has a right under the Statute to process grievances through the negotiated grievance and arbitration procedures. Laborer's International Union of North America, AFL-CIO-CLC, Local 1267, and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686. The Authority has further held that once arbitration is invoked by one party to a collective bargaining agreement, the other party is obligated to proceed to, and participate in, the requested arbitration proceedings. A failure of a party to so participate, is violative of Section 7121 of the Statute and constitutes an unfair labor practice. Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C. and AFGE, Local 12, AFL-CIO, 10 FLRA 316. The obligation to participate in arbitration also applies to threshold questions concerning grievability and arbitrability, Department of Labor, Employment Standards, et al, supra. In view of the foregoing state of the law, it is obvious that resolution of the instant complaint turns on whether or not the Union did, as alleged in the complaint, refuse to proceed to arbitration on the Bureau's three grievances. A thorough review of the record, particularly the Union's responses to the Bureau's request for arbitration, makes it clear that the Union had no intention of cooperating in the requested arbitration proceedings. Thus, the Union in its first response dated April 23, 1984, took the position that the grievances were not arbitrable since they concerned issues covered by the November 1983 collective bargaining agreement, which, according to the Union, was "null and void, and without any legal meaning whatsoever". In line with such position, the Union made it clear that it would only honor grievances predicated on the 1979 collective bargaining agreement and then only under the grievance and arbitration provisions of such agreement. Thereafter, when the Bureau subsequently, in accordance with the past practice under the grievance and arbitration provisions of the 1979 agreement, requested and received a list of arbitrators from the Federal Mediation and Conciliation Service, the Union, which had been furnished a copy of the list of arbitrators supplied by the Federal Mediation and Conciliation Service, made no effort whatsoever to participate in the selection of an arbitrator. Even after July 19, 1984, when all the problems with the 1983 collective bargaining agreement had apparently been worked out by the parties, the Union while still contesting the grievability and arbitrability of the Bureau's grievances, refused to pursue the matter any further unless the Bureau recognized that the Union was entitled to a "reasonable amount of official time over and above that contained in Article 5 to process management's grievances". While it is true that in the interim, the Union did propose that steps be taken to establish the permanent panel of arbitrators called for in the 1983 collective bargaining agreement, at no time did it indicate any willingness to participate in the submission of the Bureau's grievances to arbitration under either of the two collective bargaining contracts. Based upon the foregoing, I find that the Union has failed and/or refused to participate in any arbitration proceedings concerning the Bureau's grievances. Rather, the Union has usurped the powers of an arbitrator and unilaterally determined that the grievances are not arbitrable. There is no doubt that as of April 14, 1984, the date the Bureau invoked arbitration, one of the two collective bargaining contracts was in effect. If the Union's position that the 1983 contract was "null and void" is accepted, then the 1979 collective bargaining contract by its terms remained in effect. In such circumstances the Union was obligated to proceed to arbitration pursuant to the grievance and arbitration provisions of such collective bargaining contract. However, despite the fact that the Bureau followed the existing past practice and successfully secured a list of arbitrators from the FMCS, the Union, which was also furnished with a copy of the list of arbitrators, made no attempt to meet with the Bureau for purposes of perfecting the Bureau's request for arbitration. In fact, the Union as late as August 17, 1984, some two months later, admittedly had made no attempt to even investigate the merits of the grievances. /6/ Accordingly, I find that the record supports the conclusion that the Union has failed to comply with Section 7121 of the Statute and by such act has violated Sections 7116(b)(1) and (8) of the Statute. Having found that Respondent violated Sections 7116(b)(1) and (8) of the Statute, I recommend that the Authority issue the following: 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 American Federation of Government Employees, Local 2782, AFL-CIO, shall: 1. Cease and desist from: (a) Unilaterally refusing or failing to proceed to arbitration regarding three grievances filed by the Department of Commerce, Bureau of the Census on March 8, 1984, contrary to the requirements of Section 7121 of the Statute, after receiving timely notice of the Department of Commerce, Bureau of the Census' desire to invoke arbitration. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census on March 8, 1984. (b) Post at its business offices and its normal meeting places, including all places where notices to members and employees of the Department of Commerce, Bureau of the Census are customarily posted, copies of the attached Notice, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the President of the American Federation of Government Employees, Local 2782, AFL-CIO, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and to other employees are customarily posted. The President of the American Federation of Government Employees, Local 2782, AFL-CIO, shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director of 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. /s/ BURTON S. STERNBURG Administrative Law Judge Dated: April 19, 1985 Washington, D.C. -------------- FOOTNOTES$ --------------- (1) In the absence of any objection, the General Counsel's Motion to Correct Transcript is hereby granted. (2) The 1977 contract was amended in 1979 to conform to the provisions of the Civil Service Reform Act. (3) The new contract contained a grievance procedure similar to the one contained in the old contract. However, rather than using such terms as informal grievance, formal grievance, etc., the new contract set forth the progression of the grievances by steps. Thus, step 5 of the new grievance procedure was equivalent to the "formal grievance" in the old contract and like the "formal grievance" was the last chance for discussion between the parties prior to submission of the matter to arbitration. With respect to arbitration, the new contract called for the establishment of a permanent panel of arbitrators which would handle cases on a rotating basis. The procedure for establishing the panel of arbitrators was set forth in the contract. Finally, like the old contract, either party was given access to arbitration. (4) As authority for the grievance, the Bureau cited Article 1.1 which provides in both the 1977 and 1983 contracts that the basic purpose of the collective bargaining agreements is " . . . to provide for constructive and cooperative labor-management relations between the parties". (5) On August 15, the Bureau sent a reply memorandum wherein it suggested October 31, 1984, as the date for exchanging lists of arbitrators. (6) To the extent that it is the Union's position that the October 28, 1983, MOU, on which two of the Bureau's grievances are predicated, is part and parcel of the 1983 collective bargaining agreement and like the 1983 agreement is null and void, I find that this is a threshold determination to be made by an arbitrator, and not the Union. 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 MEMBERS AND OTHER EMPLOYEES THAT: WE WILL NOT refuse to proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984, contrary to the requirements of Section 7121 of the Federal Service Labor-Management Relations Statute, after receiving timely notice of the Department of Commerce, Bureau of the Census' desire to invoke arbitration. WE WILL NOT in any like or related manner interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Statute. WE WILL, upon request, proceed to arbitration regarding the three grievances filed by the Department of Commerce, Bureau of the Census, on March 8, 1984. (Labor Organization) 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.