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39 FLRA No. 138

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE ARMY

U.S. ARMY FINANCE AND

ACCOUNTING CENTER

INDIANAPOLIS, INDIANA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1411

AFL-CIO

(Charging Party/Union)

5-CA-80403

DECISION AND ORDER

March 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union over changes in conditions of employment. The Respondent admitted that it had insisted, as a condition to entering into negotiations, that the Union reduce the size of its negotiating team, but contended that it was privileged to impose such a condition because the parties had agreed to the size limitation on which it was insisting.

The Judge concluded that the Union had waived its statutory right to determine the number of its representatives at the negotiation session and that the waiver provided a complete defense to the Respondent's refusal to negotiate with a team of Union negotiators that outnumbered the management team. The Judge determined that the Union had waived its statutory right under either of two theories: (1) because the Union had clearly and unmistakably substituted a contractual provision for its statutory right, the parties' differences in interpreting the contractual limitations are to be resolved through the contractual grievance procedure; or (2) the clear and unmistakable intention of the parties' contractual arrangements was to limit the Union to the number of representatives management brought to the negotiating sessions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we agree with the Judge that the Union had waived its statutory right to determine the number of its representatives at the negotiation sessions in this case and that the waiver provided a complete defense to the refusal to bargain. Accordingly, we will dismiss the complaint.

We agree with the Judge's conclusion that by agreeing to Article XXXVII, section 4C of the parties' collective bargaining agreement and the 1987 settlement agreement purportedly interpreting that agreement, the Union clearly and unmistakably limited the number of representatives it could have at negotiation sessions to the total number of management representatives. We find that the Judge examined the relevant agreements and the testimony concerning bargaining history and correctly concluded that by entering into the contractual arrangements with the Respondent, the Union clearly and unmistakably waived its statutory right to determine the number of its representatives for the negotiation sessions at issue in this case. We also agree with the Judge that the Union's waiver provided a valid and complete defense for the Respondent's refusal to negotiate with a team of Union negotiators that outnumbered the management team. Accordingly, we reject the General Counsel's argument that the Union's failure to comply with the contractual limitation cannot relieve the Respondent from its duty to bargain over the changes in conditions of employment. Compare Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA 612, 633-34 (1986) (party may lawfully insist on negotiating a ground rules agreement prior to commencing bargaining over proposed changes) with U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 912 (1990) (a party may not lawfully condition further bargaining on reaching an agreement to ground rules unless the ground rules are designed to enable the parties to fulfill their mutual obligation to bargain in good faith and not to impede bargaining).

Accordingly, in agreement with the Judge, we conclude that the Respondent did not violate section 7116(a)(1) and (5), as alleged, and we will dismiss the complaint.

In dismissing the complaint, however, we reject the Judge's alternative theory of violation, under which a "supportable" or "plausible" argument that the parties intended to limit a statutory right by contract would require the parties to use the contractual grievance procedure to resolve any disputes as to the extent of that contractual limitation. Judge's Decision at 5-6. The established approach employed by the Authority to resolve defenses based on a collective bargaining agreement to alleged interference with statutory rights is to determine whether the charging party has clearly and unmistakably waived its statutory right. See Internal Revenue Service, Washington, D.C., 39 FLRA No. 137 (1991).

In adopting the Judge's conclusion that the Union clearly and unmistakably waived its statutory right to designate the number of its representatives for negotiation sessions, we need not address and do not adopt the Judge's statement that it was appropriate to analyze this case in terms of shifting burdens. Decision at 7 n.9.

II. Order

The complaint is dismissed.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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