27:0268(38)CA - DOE, Western Area Power Admin., Golden, CO and IBEW Locals 640, 1759, 2159 -- 1987 FLRAdec CA
[ v27 p268 ]
27:0268(38)CA
The decision of the Authority follows:
27 FLRA No. 38 U.S. DEPARTMENT OF ENERGY, WESTERN AREA POWER ADMINISTRATION, GOLDEN, COLORADO Respondent and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCALS 640, 1759, 2159 Charging Party Case No. 7-CA-30398 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by which the parties agree that no material issue of fact exists. The General Counsel has filed a brief which has been adopted by the Charging Party (Union) in support of its position. The Respondent has not filed a statement of position. The case concerns Respondent's actions in conducting a study of the functions and pay system for its wage-board supervisory craftsmen in July 1982-March 1983 and its action in implementing new wage rates for the supervisory craftsmen in June 1983. The complaint alleges that the Respondent committed violations of the Statute by (1) bargaining directly with unit employees and bypassing the Union in the conduct of the study, (2) establishing the study without notifying and bargaining with the Union, and (3) implementing new pay rates without notifying and bargaining with the Union. II. Background The Union is the exclusive representative for Respondent's wage-board employees, including wage-board employees occupying the positions of foremen I, foremen II, and foremen III. It has continued as the exclusive representative of bargaining units including these employees since 1980. The Union and the Respondent are parties to a collective bargaining agreement which provides that the pay rates for these employees will be determined through collective bargaining. Stipulation exhibit 2 at 18. The Union and the Respondent have been involved in a continuing dispute, since 1981, on whether employees occupying the positions of supervisory craftsmen, which were reclassified from the foremen I-III positions, are members of the Union's bargaining units. This dispute was the subject of a 1982 decision by an Authority administrative law judge (ALJ) in Authority Case No. 7-CA-1229. The ALJ's decision in Case No. 7-CA-1229 was under Authority review when the events of this case occurred and when the parties entered into the stipulation. By agreement of the parties, the processing of this case was held in abeyance until the Authority issued its decision. In July 1986 this decision issued as U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA No. 86 (1986) (WAPA 3), petition for review filed sub nom. U.S. Department of Energy v. FLRA, No. 86-2414 (10th Cir. Sept. 25, 1986). In WAPA 3 the Authority determined that (1) Respondent's wage-board supervisory craftsmen were members of the Union's bargaining units and (2) the Union was entitled to bargain concerning their wage rates. As regards the events in this case, in July 1982 Respondent initiated a study of the functions and pay system for supervisory craftsmen. The stated purpose of the study was to determine the need for revisions in the pay rates for supervisory craftsmen. The Union was not notified of the establishment of the study or its implementation. In written communications to the managers of Respondent's five area offices from July 1982 through February 1983, Respondent stated that the study would be conducted by a study group (labeled as a "task force" in 1983) composed of management officials and supervisory craftsmen designated by the managers, scheduled meetings for the study, and described the study's progress. On January 20, 1983, the Union filed a grievance with Respondent which alleged that Respondent had violated the parties' collective bargaining agreement and decisions of the Authority by unilaterally establishing a procedure to grade or classify supervisory craftsmen. Stipulation exhibit 13. The parties agreed that the grievance would be held in abeyance pending a final decision on the unit status of the supervisory craftsmen. Stipulation 19. On January 24, 1983, Respondent advised the office managers that as a result of a meeting of the study group on December 13, 1982, phase I of the study, concerning the establishment of functions and position descriptions for the supervisory craftsmen positions, was complete. The managers were advised that phase II of the study, concerning pay criteria for the positions, would begin at a February 8 meeting. Stipulation exhibit 15. This written communication listed the supervisory craftsmen who had been designated for participation in the study and it was distributed to these supervisory craftsmen. The February 8 meeting was held, but was not attended by supervisory craftsmen. On February 18, 1983, Respondent advised the managers that classification criteria for the supervisory craftsmen positions had been approved as discussed on February 8. The managers were instructed to prepare for discussions of the pay criteria in meetings on March 14-15, 1983. These meetings were held, and were attended by the supervisory craftsmen who had been listed in Respondent's communication to the managers on January 24, 1983. On March 22, 1983, Respondent disseminated final pay criteria for wage-board supervisory personnel to the office managers, explaining that the final criteria had been adjusted in accordance with the manager's views and as a result of questions raised by the task force. Respondent also indicated that the effective date of the new criteria would be established by Respondent's administrator. On March 23, 1983, Respondent acknowledged the Union's January 20 grievance and stated that the parties' negotiated grievance procedure would apply to the grievance if the supervisory craftsmen were determined to be members of the Union's bargaining units. Stipulation exhibit 14. The Union's January 20 grievance continued to be held in abeyance by mutual consent. Stipulation 19. The Union filed an unfair labor practice charge against the Respondent on May 23, 1983, alleging that Respondent violated section 7116(a)(2) and (5) of the Statute by (1) refusing to consult or negotiate in good faith with the Union on or about February 8, 1983, and (2) interfering with the rights of supervisory craftsmen to participate in the Union's affairs since February 8, 1983. Stipulation exhibit 3. The Respondent implemented new classification and pay criteria for supervisory wage-board positions on June 13, 1983. The Union filed a second unfair labor practice charge against the Respondent on October 28, 1983, alleging that by creating a task force on pay rates for supervisory craftsmen which included unit employees, Respondent had bypassed the Union and bargained directly with employees since November 1982, in violation of section 7116(a)(1) and (5) of the Statute. The charge stated that the Union became aware of this bypass on February 8, 1983. The charge also alleged that Respondent violated section 7116(a)(1) and (5) by implementing new pay rates for supervisory craftsmen on June 13, 1983, without notifying and bargaining with the Union. Stipulation exhibit 4. III. Positions of the Parties The General Counsel notes that in WAPA 3, the Authority concluded that Respondent's wage-board supervisory craftsmen are members of the Union's bargaining units and that the Union is entitled to bargain concerning pay rates for these personnel. Based on WAPA 3 and the record in this case, the General Counsel argues that Respondent committed the violations alleged in the complaint. The General Counsel also argues that the Union's grievance of January 20, 1983, does not bar further processing of the complaint under section 7116(d) of the Statute. IV. Analysis and Conclusions A. The bypass allegations We conclude that the allegations in the complaint concerning the alleged bypasses are barred from further processing under section 7118(a)(4)(A) of the Statute. Section 7118(a)(4) of the Statute prohibits the General Counsel from issuing a complaint that is based on an unfair labor practice charge which is filed more than 6 months after the actions or events complained of have occurred. For example, Military Entrance Processing Station, Los Angeles, California, 25 FLRA No. 57 (1987). In this case, the paragraphs in the complaint which concern the alleged bypass on the charge which the Union filed on October 28, 1983. This date is more than 8 months after the most recent alleged bypass (February 8, 1983) and the date the Union stated it first learned of the alleged violation (also February 8, 1983). On these facts, the Union's October 28 charge was untimely filed. Accordingly, the allegations in the complaint which refer to Respondent's alleged bypass violations must be dismissed. B. The establishment of the study We conclude that the paragraphs in the complaint concerning Respondent's alleged violation in establishing the task force study without notifying and bargaining with the Union are barred by section 7116(d) of the Statute. Section 7116(d) effectively provides that when in the discretion of the aggrieved party, an issue has been raised under the negotiated grievance procedure, the issue may not subsequently be raised as an unfair labor practice. See Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA No. 68 (1986). In this case, on January 20, 1983, the Union filed a grievance under the parties' negotiated grievance procedures which alleged that Respondent violated the parties' collective bargaining agreement and Authority decisions by establishing a procedure to grade and classify supervisory craftsmen without notice to and participation by the Union. We find that the paragraphs in the complaint alleging that Respondent violated the Statute by establishing the task force study, which are based on the Union's charges, raise substantially the same issue as the earlier filed grievance. Consequently, this allegation is precluded by section 7116(d) from being raised under the unfair labor practice procedure. We reject the General Counsel's contention that we should not address this issue because it was not raised by Respondent. Because the issue is presented by the stipulation and the issue concerns the Authority's jurisdiction, it must be addressed. See Portsmouth Naval Shipyard, 23 FLRA No. 68. C. Revised pay rates We conclude that Respondent violated the Statute by implementing new pay rates for supervisory craftsmen on June 13, 1983, without notifying and bargaining with the Union, as alleged in the remaining paragraphs of the complaint. In WAPA 3, 22 FLRA No. 86 (1986), we considered whether Respondent was justified in refusing to bargain concerning pay rates for its wage-board supervisory craftsmen in 1981 based on its assertions that its supervisory craftsmen could not be members of the Union's bargaining units. As explained in WAPA 3, we determined that Respondent's supervisory craftsmen were members of the Union's bargaining units. We also determined that by the enactment of Section 704 of the Civil Service Reform Act of 1978, Congress intended that the pay of these personnel would be determined through collective bargaining. Based on these determinations and the record in WAPA 3, which showed that Respondent had refused to bargain concerning pay rates for supervisory craftsmen, we concluded that Respondent's refusal to bargain was unjustified and clearly violative of section 7116(a)(1) and (5) of the Statute. The record in this case shows that the refusal to bargain by the Respondent in WAPA 3 was continued into 1983. As found in WAPA 3, Respondent implemented new pay rates for supervisory craftsmen in 1981 while refusing the Union's requests for bargaining. In this case the record shows that Respondent revised the pay rates for supervisory craftsmen and ignored the Union's statutory rights to bargain. As in WAPA 3, the refusal-to-bargain violation is clear. V. Decision The allegations in the complaint which concern Respondent's alleged bypasses of the Union and its action in establishing the task force study must be dismissed. Further processing of these allegations is barred under sections 7118(a)(4) and 7116(d) of the Statute. The third allegation, which states that Respondent violated section 7116(a)(1) and (5) by implementing new pay rates for supervisory craftsmen in June 1983 without notifying and bargaining with the Union must be sustained. Regarding the appropriate remedy, in WAPA 3 we concluded that the violations in that case required a remedy under which the Respondent would be ordered to bargain as requested by the Union and to give retroactive effect to the agreement reached. We conclude that Respondent's conduct in this case in ignoring the Union's statutory bargaining rights requires the same remedy. Accordingly, in remedying this violation, we will require the Respondent to bargain concerning pay rates for supervisory craftsmen as requested by the Union and give retroactive effect to the agreement reached. VI. Order A. Pursuant to section 2423.29 of the Authority's rules and regulations and section 7118 of the Statute, the United States Department of Energy, Western Area Power Administration, Golden, Colorado, shall -- 1. Cease and desist from: (a) Implementing changes in the pay rates of supervisory craftsmen without notifying and bargaining with the exclusive representative, the International Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under the Statute. 2. Take the following affirmative action to effectuate the purposes and policies of the Statute: (a) Upon request, negotiate in good faith with the exclusive representative, the International Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159, concerning the rates of pay for supervisory craftsmen, including the revisions in pay rates for these personnel which were implemented on June 13, 1983, and apply whatever agreement is reached concerning the June 13, 1983, revisions retroactively. (b) Post at its facilities in Golden, Colorado, and its facilities in each of its area offices, copies of the attached Notice on forms furnished by the Authority. Upon receipt of such forms, they shall be signed by the Administrator and shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to emlployees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered. (c) Notify the Regional Director of Region VII, Federal Labor Relations Authority, in writing as required under section 2423.30 of the Authority's rules and regulations, of the steps taken to comply with this Order. B. The allegations in the complaint concerning bypasses of the Union and the establishment of the task force study are dismissed. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT: WE WILL NOT implement changes in the pay rates of supervisory craftsmen without notifying and bargaining with the International Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159, the exclusive representative of these employees. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon reqquest, negotiate in good faith with the International Brotherhood of Electrical Workers, AFL-CIO, Locals 640, 1759, and 2159, concerning the rates of pay for supervisory craftsmen, including the revisions in pay rates for supervisory craftsmen which we implemented on June 13, 1983, and apply whatever agreement is reached concerning the June 13, 1983, revisions retroactively. ... (Activity) Dated: ... By: ... (Signature) ... (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303) 837-5224.