[ v12 p412 ]
12:0412(86)CA
The decision of the Authority follows:
12 FLRA No. 86
DEFENSE LOGISTICS AGENCY
(CAMERON STATION, VIRGINIA)
DEFENSE CONTRACT ADMINISTRATION SERVICE
REGION (BOSTON, MA)
DEFENSE CONTRACT ADMINISTRATION SERVICES
PLANT REPRESENTATIVE OFFICE, GENERAL
ELECTRIC (LYNN, MA)
DEFENSE CONTRACT ADMINISTRATION SERVICES
MANAGEMENT AREA, HARTFORD (HARTFORD, CT)
DEFENSE CONTRACT ADMINISTRATION SERVICES
MANAGEMENT AREA, SYRACUSE (SYRACUSE, NY)
DEFENSE CONTRACT ADMINISTRATION SERVICES
RESIDENCY - BINGHAMTON (JOHNSON CITY, NY)
DEFENSE CONTRACT ADMINISTRATION SERVICES
PLANT REPRESENTATIVE OFFICE - RAYTHEON
SERVICE COMPANY (BURLINGTON, MA)
DEFENSE CONTRACT ADMINISTRATION SERVICES
MANAGEMENT AREA - BRIDGEPORT (STRATFORD, CT)
DEFENSE CONTRACT ADMINISTRATION SERVICES
RESIDENCY - BUFFALO (BUFFALO, NY)
DEFENSE CONTRACT ADMINISTRATION SERVICES
PLANT REPRESENTATIVE OFFICE, GENERAL
ELECTRIC (BURLINGTON, VT)
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
Charging Party
Case No. 1-CA-213
DECISION AND ORDER
The Administrative Law Judge in the above-entitled proceeding issued
his Decision finding that the Respondent, Defense Contract
Administration Service Region (Boston, MA), hereinafter referred to as
DCASR-Boston, had engaged in certain unfair labor practices alleged in
the complaint, and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. The Judge further found
that the other named Respondents had not engaged in the unfair labor
practices alleged in the complaint, and recommended that the complaint
be dismissed with regard to them. Thereafter, the General Counsel filed
exceptions to the Judge's Decision and the Respondent filed both an
opposition to the General Counsel's exceptions and cross-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 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 recommendations, as modified below.
The record reveals that on May 9, 1979, the Defense Logistics Agency
(DLA), a primary national subdivision of the Department of Defense,
issued a revised regulation (DLAR No. 5500.1) entitled "Standards of
Conduct" which contained various changes to the existing standards of
conduct regulation. The revised regulation which, among other things,
broadened the category of employees required to submit financial
disclosure forms, was forwarded on May 11, 1979, to DCASR-Boston and the
other subordinate activities named in the complaint, at which levels
there existed units of exclusive recognition represented by various
locals of the National Association of Government Employees (NAGE). The
complaint herein, which named DLA and the subordinate activities as a
single Respondent, alleged that DLA had violated section 7116(a)(1) and
(5) of the Statute by unilaterally, and without prior notice to any of
the NAGE locals involved, revising the standards of conduct regulation
and imposing the revised regulation on DCASR-Boston; that DCASR-Boston
violated section 7116(a)(1) and (5) of the Statute by unilaterally
changing existing conditions of employment in implementing the revised
regulation without furnishing prior notice to NAGE locals and affording
them an opportunity to bargain concerning the changes and/or their
impact and implementation; and that DCASR-Boston bypassed the NAGE
locals and dealt directly with unit employees by announcing to them the
changes in the standards of conduct.
The Respondent's position is that no bargaining obligation existed on
the part of DLA inasmuch as the units of exclusive recognition existed
at levels subordinate to DLA; that the subordinate activities were not
prevented from negotiating on the impact and implementation of the
revised regulation as it pertained to unit employees at those locations;
and that the NAGE locals waived their bargaining rights by failing to
request bargaining at the appropriate levels of exclusive recognition
and by failing to submit impact and implementation proposals.
Additionally, the Respondent argues that the revised regulation
constituted a bar to negotiations under section 7117 of the Statute.
/1/
The Judge found, with regard to the latter assertion, that Part 2424
of the Authority's Rules and Regulations relating to petitions for
review of negotiability issues constitutes the exclusive procedure under
which the Authority can decide questions as to whether there exists a
compelling need for a regulation of an agency or primary national
subdivision. The Authority disagrees.
Section 7117(b)(1) of the Statute /2/ empowers the Authority to
resolve compelling need issues where, during the course of collective
bargaining, "an exclusive representative alleges that no compelling need
exists for any rule or regulation . . . which is then in effect and
which governs any matter at issue in such collective bargaining . . . ."
Thus, where an exclusive representative submits proposals on a matter
subject to collective bargaining and the agency or activity asserts that
such proposals are nonnegotiable because they conflict with an existing
agency regulation for which a compelling need exists, and no actual or
contemplated changes in conditions of employment are involved, the
exclusive manner of resolving the question of compelling need is
pursuant to the procedures set forth in section 7117 of the Statute and
Part 2424 of the Authority's Rules and Regulations. See, e.g., National
Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army
Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA
No. 66 (1981) (Union Proposal V). /3/ By contrast, in exercising its
statutory authority to resolve disputes involving alleged unilateral
changes in conditions of employment where issues of negotiability are
also raised, the Authority has promulgated procedures which recognize a
labor organization's right to seek a resolution of the negotiability
issues by filing an unfair labor practice charge and a negotiability
appeal and which require the labor organization to select the forum in
which to proceed first. (See sections 2423.5 and 2424.5 of the
Authority's Rules and Regulations.) Accordingly, and contrary to the
Judge's conclusion, where a labor organization selects the unfair labor
practice forum with regard to alleged unilateral changes in conditions
of employment affecting unit employees resulting from the issuance of a
new regulation or, as here, modification of an existing regulation, and
agency management raises as an affirmative defense that it refused to
bargain on the basis that there is a compelling need for the regulation
in question, the compelling need issue must perforce be decided in the
unfair labor practice proceeding. /4/ Of course, an agency which raises
compelling need as an affirmative defense in an unfair labor practice
proceeding is required, as it would be in a negotiability proceeding, to
come forward with affirmative support for that assertion. /5/
Turning to the instant case, and contrary to the Respondent's
contention, the Authority finds that the record fails to establish that
a compelling need existed for the revised "standards of conduct"
regulation issued by DLA. In this connection, the Respondent has failed
to come forward with affirmative support for its assertion that a
compelling need exists for the revised regulation so as to excuse it
from its bargaining obligation. /6/ Nor is any such support apparent
from the record. Thus, a bargaining obligation existed unless there is
merit to any of Respondent's other defenses.
As noted above, the record indicates that the revised regulation was
promulgated by DLA on May 9, 1979, became effective on that date, and
was forwarded to subordinate field activities on May 11. Subsequently,
on July 16, DCASR-Boston circulated a bulletin to all employees
announcing the changes made by the revised regulation and, on July 17,
distributed a supplement thereto to employees in the Boston region. The
record indicates that there was no notification given to any NAGE locals
prior to implementation of the revised regulation or the issuance of the
DCASR-Boston supplement.
With respect to an agency's promulgation of regulations relating to
employee standards of conduct, the Authority has previously held that
standards of conduct for employees are matters affecting conditions of
employment within the meaning of the Statute, /7/ and, to the extent
such matters are discretionary, they are within the duty to bargain.
/8/ Where, as here, there are levels of exclusive recognition
subordinate to the level of the agency or primary national subdivision
which issued the regulation, /9/ it is incumbent upon agency management
at the level of exclusive recognition to notify the exclusive
representative of its employees and afford the latter an opportunity to
request bargaining concerning the regulation prior to implementation.
/10/ Accordingly, when DCASR-Boston was notified by DLA of the revised
regulation, DCASR-Boston was in turn obligated to notify NAGE Local
R1-210 and afford it an opportunity to request bargaining on negotiable
matters pertaining to both the substance and impact and implementation
of the revised regulation as it applied to employees represented by
Local R1-210. The failure of DCASR-Boston to so notify Local R1-210
constituted a violation of section 7116(a)(1) and (5) of the Statute.
/11/ However, as the record fails to establish that DCASR-Boston was
prevented from fulfilling its statutory bargaining obligation with Local
R1-210 by the acts and conduct of DLA, no violation will be found
against DLA. /12/
With respect to that portion of the complaint alleging that
DCASR-Boston violated section 7116(a)(1) and (5) by failing to notify
the NAGE locals at the subordinate levels within DCASR-Boston and to
afford them an opportunity to request bargaining, the Authority finds,
in agreement with the Judge, that this allegation must be dismissed.
Thus, the record fails to establish that DCASR-Boston prevented the
subordinate levels of agency management from fulfilling their respective
statutory obligations to notify the appropriate NAGE locals so as to
afford them an opportunity to bargain over the revised regulation. /13/
Similarly, the Authority finds, in agreement with the Judge, that the
allegation in the complaint that DCASR-Boston violated section
7116(a)(5) in bypassing the NAGE locals and dealing directly with unit
employees must be dismissed. Thus, the record fails to establish that
there was an attempt by DCASR-Boston to deal directly with employees or
to threaten or promise benefits to them. See Division of Military and
Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71
(1982).
Finally, the General Counsel argues that unit employees who were
transferred as a result of the application of the revised standards of
conduct regulations should be restored to their former positions and
made whole. In response, the Respondent argues that any transfers which
may have occurred were required under the provisions of 18 U.S.C. 208,
/14/ rather than the revised standards of conduct regulation. Only one
employee is specifically mentioned in the record as having been
transferred after the revised regulation was issued. The record
indicates that this employee was found to have been in a conflict of
interest situation under the provisions of law and regulation prior to
the issuance of the revised regulation. The commander of the local
facility at which the employee was located, who was not the responsible
management official for resolving conflict of interest situations, took
certain actions which, in his view, eliminated the conflict of interest.
After the revised regulation was issued, this same commander determined
that the employee was still in a conflict of interest situation and that
additional corrective action was needed. The transfer was the result of
this determination. In the Authority's view, restoration of this
employee to his former post of duty, as requested by the General
Counsel, would not be appropriate in the circumstances of this case.
Thus, in support of its contention that transfers of employees in
conflict of interest situations are required by 18 U.S.C. 208, rather
than the revised regulation, the Respondent submitted evidence which
demonstrated that employees who were in conflict of interest situations
similar to that of the employee here in question had been transferred in
previous years under the provisions of that law. While the employee in
question was not transferred until after the revised regulation was
issued, noting that he was found to be in a conflict of interest before
the revised regulation was issued and that employees in similar
situations previously had been transferred pursuant to 18 U.S.C. 208,
the Authority concludes that restoration of the employee to his former
post of duty would not effectuate the purposes and policies of the
Statute in these circumstances. Accordingly, the General Counsel's
request for such a remedy herein is denied.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Defense Contract Administration Service Region,
Boston, Massachusetts shall:
1. Cease and desist from:
(a) Unilaterally implementing a revised standards of conduct
regulation without first notifying the National Association of
Government Employees, Local R1-210, the exclusive representative of its
employees, and affording Local R1-210 an opportunity to bargain
concerning the revised regulation as it would affect unit employees.
(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) Rescind the revised standards of conduct regulation and
supplement thereto as it applies to the unit employees represented by
the National Association of Government Employees, Local R1-210, and
reinstitute the preexisting standards of conduct regulation as it
applied to these unit employees.
(b) Notify the National Association of Government Employees, Local
R1-210, of any intended change in the standards of conduct regulation as
it applies to unit employees represented by Local R1-210, and afford
Local R1-210 an opportunity to request bargaining concerning such
changes.
(c) Post at the Defense Contract Administration Service Region,
Boston, Massachusetts, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Such forms shall be
signed by the Commander, Defense Contract Administration Service Region,
Boston, Massachusetts, or his 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
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, 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.
IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-213, to the
extent that it alleges a violation of section 7116(a)(1) and (5) of the
Statute by the named Respondents other than the Defense Contract
Administration Service Region, Boston, Massachusetts be, and it hereby
is, dismissed.
IT IS FURTHER ORDERED that the complaint in Case No. 1-CA-213, to the
extent that it alleges that the Defense Contract Administration Service
Region, Boston, Massachusetts (1) failed to notify the exclusive
representatives of employees at subordinate levels within the Region and
afford them an opportunity to request bargaining, and (2) committed an
unlawful bypass in violation of section 7116(a)(5) of the Statute be,
and it hereby is, dismissed.
Issued, Washington, D.C., July 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 unilaterally implement a revised standards of conduct
regulation without first notifying the National Association of
Government Employees, Local R1-210, the exclusive representative of our
employees, and affording it an opportunity to bargain concerning the
revised regulation as it would affect unit employees. WE WILL NOT in
any like or related manner interfere with, restrain, or coerce our
employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL rescind the revised
standards of conduct regulation, and supplement thereto, as it applies
to our employees represented exclusively by the National Association of
Government Employees, Local R1-210, and WE WILL reinstitute the
preexisting standards of conduct regulation as it applies to these
employees. WE WILL notify the National Association of Government
Employees, Local R1-210, of any intended changes in the standards of
conduct regulation as it applies to employees represented exclusively by
Local R1-210, and afford Local R1-210 an opportunity to request
bargaining concerning such changes.
(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,
Region I, Federal Labor Relations Authority whose address is: 441
Stuart Street, 9th Floor, Boston, Massachusetts 02116 and whose
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-213
Richard Zaiger, Esq.
For the General Counsel
Thomas Rhodes, Esq.
Sumner Marcus, Esq.
For the Respondent
Richard C. Remmes, Esq.
For the Charging Party
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq.
It was instituted by the issuance of a Complaint and Notice of Hearing
on April 25, 1980. The original charge of December 3, 1979 named
"Defense Logistics Agency, DCASR-Boston" as the Activity against whom
the charge was filed and stated that the Agency (of which the Activity
is a part) is the Department of Defense, Defense Logistics Agency. The
First Amended Charge of February 13, 1980 named as additional Activities
eight subordinate DCAS offices in eight other cities located in 4
states. The Second Amended Charge of April 11, 1980 additionally named
Defense Logistics Agency, Headquarters, Cameron Station, Alexandria,
Virginia. /15/ A principal issue in this case is the distinction, if
any, between other various Agency levels: national, regional and
sub-regional.
The Complaint alleges that Section 7116(a)(1) and (5) of the Statute
has been violated by the following Activities or Agencies which are
collectively referred to in the Complaint as Respondent, rather than as
separate or joint Respondents: the Defense Logistics Agency, Cameron
Station, Virginia; the Defense Contract Administration Service Region
I, Boston, Massachusetts; Defense Contract Administration Service Plant
Representative Office, General Electric, Lynn, Massachusetts; Defense
Contract Administration Services Management Area, Hartford, Connecticut,
Defense Contract Administration Services Management Area, Syracuse, New
York; Defense Contract Administration Services Residency-Binghamton,
Johnson City, New York; Defense Contract Administration Services Plant
Representative Office-Raytheon Service Company, Burlington,
Massachusetts; Defense Contract Administration Services Management
Area-Bridgeport, Stratford, Connecticut; Defense Contract
Administration Services Residency, Buffalo, New York; and Defense
Contract Administration Services Plant Representative Office, General
Electric, Burlington, Vermont.
More specifically, the Complaint sets forth the following
allegations:
1. On or about May 9, 1979, Respondent by its Agent Lt. General
Gerald J. Post, Director, Defense Logistics Agency, Cameron Station,
Virginia, unilaterally and without notice to any of the locals of the
National Association of Government Employees (hereafter NAGE) involved
in this proceeding revised DLAR 5500.1 and thereafter imposed Revised
DLAR 5500.1 on its subordinate Activity, Defense Contract Administration
Service Region, Boston (hereafter DCASR-Boston).
2. On July 16, 1979, Respondent by its Agent Colonel Charles
Wheeler, Commander, DCASR-Boston dealt directly with employees and
by-passed the NAGE locals involved in this proceeding by announcing
directly to employees changes in standards of conduct.
3. On July 17, 1979 Respondent by its Agent Colonel Charles Wheeler,
unilaterally changed existing conditions of employment by implementing
Revised DLAR 5500.1 without furnishing notice and/or opportunity to
bargain concerning such change and/or the impact and implementation of
such change to any of the NAGE locals involved in this proceeding.
Respondent's defense, which will be more specifically detailed later
in this decision, essentially is that it had no obligation to bargain
about the substance of the decision and that NAGE waived its right to
bargain about impact and implementation of the decision.
At the hearing in Boston, Massachusetts all parties were afforded
full opportunity to be heard, adduce evidence, examine and cross-examine
witnesses, and argue orally. Thereafter, Respondent and the General
Counsel filed briefs which have been duly considered. /16/
Upon consideration of the entire record in this case, /17/ from my
observation of the witnesses and their demeanor, and from all of the
testimony and evidence presented at the hearing, I make the following
findings of fact, conclusions of law and recommended order.
Findings Of Fact
1. The Defense Logistics Agency (DLA) is a primary national
subdivision of the Department of Defense, and its headquarters is
located in Cameron Station, Virginia. DCASR-Boston is a regional
headquarters. Within the area under the jurisdiction of DCASR-Boston
are various management area offices (DCASMA), plant representative
offices (DCASPRO) and resident offices.
a. At all times material herein various locals of the National
Association of Government Employees have been the exclusive
representative of employees in nine (9) separate units within the
DCASR-Boston region. Each unit is covered by a separate collective
bargaining agreement. NAGE Local R1-210 represents an appropriate unit
of employees at DCASR-Boston. NAGE Local R1-110 represents an
appropriate unit of employees at Respondent's General Electric Resident
Office in Lynn, Massachusetts. NAGE Local R1-76 represents an
appropriate unit of employees at Respondent's Management Area Office in
Hartford, Connecticut. NAGE Local R2-65 represents an appropriate unit
of employees at Respondent's Management Area Office in Hartford,
Connecticut. NAGE Local R2-65 represents an appropriate unit of
employees at Respondent's Binghamton Residency Office in Johnson City,
New York which also includes employees of Respondent located at the IBM
plant in Owego, New York. NAGE Local R1-211 represents an appropriate
unit of employees at Respondent's Raytheon Plant Representative Office
in Burlington, Massachusetts. NAGE Local R1-181 represents an
appropriate unit of employees at Respondent's Bridgeport Management Area
in Stratford, Connecticut. NAGE Local R2-45 represents an appropriate
unit of employees at Respondent's Resident Office in Buffalo, New York.
NAGE Local R1-170 represents an appropriate unit of employees at
Respondent's General Electric Plant Representative Office in Burlington,
Vermont.
2. The National Association of Government Employees does not have
national consultation rights with DLA; nor does a direct bargaining
relationship exist between DLA and the National Association of
Government Employees or any of the local union referred to above.
3. On March 23, 1977, DLA issued DLAR Regulation No. 5500.1
entitled, "Standards of Conduct" (GCX). DLAR No. 5500.1 was applicable
to HQ DLA and all field activities and "prescribe(s) the standards of
conduct relating to possible conflict between private interests and
official duties, required of all DLA personnel, regardless of
assignment" (GCX 13, p. 1). Among the procedures set forth for
implementing DLAR No. 5500.1 was the requirement that all DLA personnel
classified at GS-13 or above submit initial and annual statements of
Affiliations and Financial Interests (DD Form 1555) (GCX 13, pp. 14-15).
4. By letter dated February 16, 1979, DLA by its General Counsel,
Karl Kabeisman, requested permission from the Office of Personnel
Management (OPM) to require, "certain civilian employees of . . . DLA
below the grade of GS-13 whose duties otherwise (met) the criteria for
filing", to file DD Form 1555 (RX 8). This letter points out that it is
the nature of one's duties, regardless of grade level, which can give
rise to a conflict of interest. It is undisputed that prior approval by
OPM is required by the Federal Personnel Manual before an agency can
expand the filing requirements of DD Form 1555 to employees below the
GS-13 level.
5. By letter dated March 5, 1979, Bernard Wrable, Director, Office
of Government Ethics, OPM, granted the DLA request, "subject to the
understanding . . . that while immediate supervisors will identify
positions which should be subject to the filing of statements, actual
decisions on each such position will be filed by Commanders, their
general counsels or other senior officials" (RX 9).
6. On May 9, 1979, DLA issued a new DLAR No. 5500.1 (GCX 15) which
superseded the March 23, 1977 Regulation. This new regulation is also
referred to herein as the Revised DLAR No. 5500.1. The document stated
that this "DLAR implements DOD Directive 5000.7, Standards of Conduct"
and is "applicable to HQ DLA and all DLA field activities." I find that
the effective date of this new or revised regulation was May 9, 1979 and
that it was immediately effective. This finding is based upon the
document itself as well as the testimony of Sumner Marcus (R 15),
Counsel for DCASR-Boston.
While the "Purpose and Scope" Section of the predecessor regulation
referred to "conflict between private interests and official duties,"
the "Purpose and Scope" Section set forth in revised DLAR 5500.1 refers
to "even the appearance, of an actual or potential conflict of interest
. . . ." (Cf. GCX 15, p. 1 and GCX 13, p. 1). Second, the revised DLAR
5500.1 itself contains a section entitled, "Significant Changes," (GCX
15, pp. 8-9) which states:
This DLAR has been revised to make general refinements of
existing policy and functional responsibilities. The DLAR amends
the categories of employees required to file DD Forms 1555,
Confidential Statement of Affiliations and Financial Interests,
Department of Defense Personnel; expands the information required
to be submitted on a disqualification notice; alters the
reporting requirements for suspected violations of the standards
of conduct statutes and regulations; and provides for advice to
military personnel leaving active military service and civilians
leaving federal employment.
The foregoing paragraphs speaks in general terms only. For any employee
or Union official to determine what is actually meant by the phrase
"amends the categories of employees required to file DD Forms 1555," it
is necessary to obtain a copy of the 1977 regulation and compare it
line-by-line with the 1979 revised regulation. The result of such
comparison would show that in 1977 forms were required to be filed by
"DLA personnel classified at GS-13 or above" (GCX 13 p. 16) whereas the
revised regulation applies to all "DLA personnel, civilian or military,
regardless of grade or rank", whose official responsibilities require
making certain types of decisions (GCX 15 p. 12). It is not until the
last page (p. 13) of the regulation that there is an oblique reference
to the fact that the new regulation may apply to personnel below grade
GS-13. Although the revised regulation (DLAR 5500.1) itself was
effective on May 9, 1979, the reporting form did not have to be filed
until October 31, 1979, almost six months later.
In addition, Section IV of the revised regulation entitled,
"Definitions" defined "financial interest" as follows (GCX 15):
c. Financial Interest. Any wages, salaries, interest,
dividends or any other form of income or benefit received by
virtue of the relationship; includes potential benefit, such as
pre-employment contacts with a potential future employer.
Nowhere in the definition section of the predecessor regulation was the
term "financial interest" defined (GCX 13, pp. 9-10).
Finally, revised DLAR 1500.1 provided that "(s)upplementation is
permitted at all levels" (GCX 15, p. 1). An example of such
"supplementation" is G.C. Exhibit 14. To me, this exhibit demonstrates
that the word "supplementation" merely means that DCASR-Boston and
subordinate organizations have discretion with respect to minor or
routine matters. I specifically find that this "supplementation"
language did not have the effect of delegating discretionary authority
to subordinate organizations to make or negotiate changes in the
regulation itself, as distinguished from supplemental additions which do
not have the effect of changing the substance of the regulations (Tr.
175). While Respondent asserts that the regulation did not "prohibit"
DCASR-Boston from negotiating impact and implementation, I find that it
did not expressly authorize and delegate such responsibility either.
7. On July 16, 1979 the Commander, DCASR-Boston by its Counsel and
Standards of Conduct Officer, Sumner Marcus, distributed a bulletin to
all employees within its region highlighting the changes in DLAR 5500.1
(GCX 12), and on July 17, 1979 DCASR-Boston issued its own regulation
supplementing DLAR 5500.1 within its region (GCX 14). It is undisputed
that notice of the revised regulation was not given to any official of
any of the NAGE locals involved in this proceeding prior to its
distribution to employees on July 17, 1979. However, Christopher
Themistocles, President of Local R1-120 received a copy of GCX 14 in his
individual capacity as an employee.
8. On September 26, 1979, DCASR-Boston issued guidelines pertaining
to the filing of DD Form 1555 under revised DLAR 1500.1. The guidelines
set forth a number of positions which probably would require the
incumbent to file DD Form 1555, the procedure for identifying additional
positions, and set October 31, 1979 as the date by which DD Form 1555
must be filed.
9. By letter dated October 24, 1979, NAGE by its Attorney, Richard
Remmes, requested on behalf of all the NAGE locals within the
DCASR-Boston Region "to negotiate the recent changes in DLAR 5500.1 as
they refer to changes in the requirements for filing financial
disclosure statements . . . ." (GCX 17). Remmes went on to state that,
"until we have had an opportunity to negotiate this matter and consult
on the impact and procedures, I am requesting the status quo ante be
maintained".
10. By memorandum dated October 30, 1979, DCASR-Boston replied to
Remmes and invited "Union views" on "DCASR-Boston implementation" of
DLAR 5500.1; DCASR-Boston Supplement 1 to DLAR 5500.1; and the
September 26, 1979, DCASR-Boston guidelines. The views could be
submitted through the unit manager, the NAGE Council of DCASR-Boston
locals, or directly. In addition, the deadline for filing DD Form 1555
was extended approximately one month to November 30, 1979 in order to
provide an "opportunity to comment" on the revised DLAR. The memorandum
went on to state that, "(t)o meet Agency imposed deadlines, (union)
input must be received by 14 November in order to receive due
consideration" (GCX 18).
11. The parties met on November 2, 1979. /18/ Marcus stated that
the new regulation would expand the filing requirement from 150
employees to 1000. Remmes stated he could not see the sense to the new
regulation since there had been no change in 18 U.S.C. 208; he referred
to conflicts in interest involving spouses working at the same location
which had been brought to his attention. Marcus explained that, "the
DLA interpretation had changed", and, "under the interpretation now
salary alone makes a conflict of interest. If your wife receives a
salary from the same corporation then you are in a conflict of
interest". The Union protested management's failure to give notice to
the Union in June 1979, when the DLAR was received; requested certain
information; and protested the DLA determination that employees below
the GS-13 level must file DD Form 1555. At this meeting NAGE also
demanded that the filing requirements be delayed pending resolution of
complaints under FPM Chapter 735.1-4 that certain positions had been
improperly included in the filing requirements. Finally, Newdick
indicated that DCASR-Boston could take no action since they had to meet
"the mandates of higher authority" and the meeting concluded with no
agreement. Both Themistocles and Remmes testified that a proposal was
made for a "grandfather principle" so that the revised regulation would
have no impact on current employees. The minutes of this meeting are in
the records as Respondent's Exhibit No. 1.
12. Although the November 30, 1979, date for the filing of DD Form
1555 was not further extended the parties discussed DLAR 5500.1 on
December 13, 1979. Again the Respondent indicated that it did not have
the authority to negotiate the substance of the decision and no
agreement was reached regarding Revised DLAR 5500.1.
(The Involuntary Reassignment of Golotko)
13. Edward Golotko is a quality assurance specialist assigned to
Respondent's DCASPRO at IBM in Owego, New York.
a. It is undisputed that when Golotko was employed by the Respondent
in early 1977 his wife was already an IBM employee. It is also
undisputed that approximately four or five months after Golotko was
employed his immediate supervisor, Mr. Bryant, spoke to Golotko
regarding a possible conflict of interest, but nothing came of it. At
that time Golotko's wife was involved in the production of products
inspected by her husband i.e., Federal work.
b. Thereafter, the subject came up again and Golotko spoke to the
officer-in-charge of the Respondent's operations in Owego, Commander
Carl S. Park. In May 1979, the situation was resolved when Golotko's
wife transferred to the commercial (non-Federal) side of IBM and Golotko
was specifically told by Park that a conflict "no longer" existed.
c. Thereafter, in late May or June 1979, Golotko was again called to
Park's office and told that, "the conflict of interest had re-arisen"
because of a change in the applicable regulation. At this time Golotko
was part of NAGE Local R2-56 but not a union member. Subsequent to this
meeting, Park met with James Hall, Vice President of NAGE Local R2-56
and pointed out the changes in the applicable Regulation which now
emphasized the "appearance" of a conflict in interest.
d. By letter dated August 24, 1979, Edward Golotko was informed that
he was in violation of the provisions of 18 U.S.C. 208 /19/ because
"your wife is employed by the IBM Corporation, Owego, New York and your
duty assignment is at the same plant." Under "the provisions of 18
U.S.C. 208 and DLAR 5500.1" he was given three (3) choices: resign,
accept a transfer to another location, or have his wife resign from IBM
(GCX 20).
e. Golotko wrote a letter of protest (GCX 21) and stated that his
wife would remain at IBM. Commander Park wrote a letter in September
1979, on Golotko's behalf which referred in a straightforward manner to
the changes in the Regulation as the reason for Golotko's problem (GCX
21), /20/ Golotko was then transferred to a new location thirty (30)
miles from Owego in January 1980. The record is clear that prior to the
issuance of Revised DLAR 5500.1 in May 1979, a number of bargaining unit
employees were allowed to work at the same company which employed their
spouses and that responsible management was aware of this fact. (R 71,
9-82) /21/
(Impact on Other Employees)
14. On or about the date of the instant hearing four other employees
of the Respondent at various locations in New York State were confronted
with the same choices presented to Golotko. The four employees were
Edward Prusik, Andrew Kucer, M. Pauline Van Derbeck and Larry Tomenga
(GCX 23-26). Like Golotko, each is a quality assurance specialist and
each is married to an employee of a civilian contractor doing business
with DLA. (GCX 23-26, p. 1 of each exhibit). The record also reveals
that on March 20, 1980, Sumner Marcus responded to an inquiry from
Commander Parks regarding "Standards of Conduct-- Conflicts of Interest"
(GCX 29). Park's inquiry sought, "a final determination in the cases of
five employees"-- Van Derbeck and Kucer, and three clerical employees.
Marcus' response noted the definition of financial interest as set forth
in the revised regulation. /22/ Marcus concluded that Van Derbeck and
Kucer were in conflict of interest situations but that the three
clerical employees were not.
A fair reading of the Marcus memo makes it clear that the distinction
between a so-called conflict of interest and no conflict of interest is
based on the "position description" i.e., job duties of the DLA
employees (GCX 29). Thus, it is clear that in spousal situations, a
conflict of interest is dependent upon the job duties of a DLA employee;
and, the criteria set forth in the revised regulation for filing DD
Form 1555 appears to be the criteria followed in making such
determinations. Furthermore, attachments to the Marcus reply make it
clear that the new, "DLA policy as set forth in DLAR 5500.1 is to avoid
even the appearance of impropriety." (GCX 29, March 5, 1980 letter from
Admiral Thompson). Put another way, one of the changes in the revised
regulation is to emphasize and eliminate situations involving the
appearance of a conflict of interest even where such situations had
previously been allowed. Although the Respondent asserts that the
revised regulation had no impact on Golotko-type situations, no evidence
was presented that the DLA has in its DCASR-Boston Region or, for that
matter anywhere in the world, ever reassigned an employee where a
private sector spouse has no involvement with Government contracts.
Thus, the underlying facts in each of the examples relied on by the
Respondent either established a direct conflict, like that of Golotko
prior to his wife's transfer to the commercial side of IBM, or were left
unexplained (R 161-163, 176-177, 181; RX 11 and 12). Furthermore, it
was not until after implementation of the revised regulation that any
action was taken against an employee represented by the NAGE Locals
involved in this proceeding even though as shown above, the
uncontradicted evidence establishes the existence of spousal situations
involving possible conflicts of interest.
15. By memo dated March 13, 1980, Sumner Marcus gave notice to the
Union of further proposed changes in DLAR 5500.1 (GCX 31). The proposed
changes (GCX 31) dealt inter alia with an expansion of the definition of
financial interest to add "also includes financial interest of spouse,
minor child and member of household," and clarified Paragraph III D.1 by
adding the following new sentence:
All employees should be aware that not only stocks and other
similar holding, but also the employment of a spouse, minor child
and household member is considered a financial interest
attributable to the DLA employee.
By letter dated March 20, 1980 (GCX 33), the Union responded to Marcus
setting forth a number of proposals.
Discussion and Conclusions of Law
A. In General
When an agency institutes changes in conditions of employment without
prior notice to the collective bargaining representative, it acts at its
peril. If it subsequently is determined that the changes had no impact
or only an insignificant impact on employees, then no obligation to
bargain arises, and there is no accompanying obligation to provide the
Union with adequate advance notice of the changes. In such event, the
Respondent has not violated the Statute. Where, however, the changes
instituted by the agency actually have or are reasonably expected to
have a substantial impact adversely affecting employees, /23/ the duty
to bargain arises and the failure to have provided the exclusive
representative with adequate advance notice of the changes constitutes a
violation of Section 7116(a)(5) and (1). Respondent herein raises a
number of defenses which will be discussed hereinafter. B. Changes In
Conditions Of Employment; Substantial Impact
Adversely Affecting Employees
Respondent contends that Mr. Golotko's reassignment was premised upon
a conflict of interest within the meaning of 18 U.S.C. 208 and,
therefore, did not "result from" the changes in DLAR 5500.1. Respondent
relies on the testimony of Karl Kabeiseman, Standards of Conduct
Counsellor of the Agency who testified that in cases similar to that of
Mr. Golotko, it had been necessary on previous occasions to reassign
employees based upon a spouse's employment. As noted earlier, the
examples cited by Respondent were not precisely the same as Golotko's
case. Be that as it may, the fact remains that responsible Agency
management officials were aware of Golotko's situation and had resolved
the possible conflict of interest by approving an arrangement pursuant
to which his wife changed jobs within her employer's organization.
Thus, insofar as Golotko is concerned his job retention was clearly a
condition of employment within the meaning of Section 7103(a)(14) of the
Act which ultimately was changed by involuntarily reassigning him to a
new geographical location. In fact, it was the publication and issuance
of revised DLAR 5500.1 containing a new definition of financial interest
which prompted Commander Park to reopen the Golotko case, rather than
the new filing requirement itself. I am persuaded by the evidence that
but for the revised DLAR 5500.1 there would not have been a reassignment
of Golotko.
I reject Respondent's contention that the real reason for Golotko's
reassignment was because of 8 U.S.C. 208. There is no evidence of any
amendment to 8 U.S.C. 208 which prompted a revision in DLAR 5500.1.
Thus, I conclude that the General Counsel has successfully demonstrated
that revised DLAR 5500.1 had an adverse impact on the bargaining unit by
virtue of the effect on Golotko and, of course, on others similarly
situated. I also note a large number of employees below Grade 13 would
now have to file DD Form 1555 and, in effect, report matters which might
later be concluded to represent conflicts of interest real or apparent.
Thus, it's not the filing requirement itself so much as it is the
reasonable likelihood of an adverse impact on employees resulting
directly from such filing requirement. It is my conclusion that
Respondent's decision to reinterpret or redefine what constitutes a
"financial interest" and to expand the filing requirements to employees
below Grade 13 had a substantial and adverse impact on employees in the
bargaining unit. C. Failure to Provide Adequate Advance Notice
The Authority has held that appropriate advance notice of proposed
changes in conditions of employment means notice to a Union agent or
official in his or her capacity as a Union representative. United
States Air Force, Air Force Logistics Command, 4 FLRA No. 70. There is
no dispute and, I find, that Respondent failed to provide such notice
herein. The only actual notice received was by one NAGE local
President, Christopher Themistocles of Local R2-110, but this was in his
capacity as en employee. Moreover, it is not surprising that he did not
readily comprehend the extent of the changes for, as discussed earlier,
they were not that easy to ascertain. Respondent's defense that
DCASR-Boston gave "general notice" of the change through its July 16,
1979 bulletin to all employees is noted and found to be inadequate and
improper notice. D. Whether Matters Which Are The Subject Of An
Agency-Wide Regulation are Negotiable?
Section 7117 of the Statute has the effect of removing from the ambit
of collective bargaining those matters which are the subject of a
government-wide or agency-wide rule or regulation under certain
circumstances. Thus, Section 7117 states as follows:
"Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
"(a)(1) Subject to paragraph (2) of this subsection, the duty
to bargain in good faith shall, to the extent not inconsistent
with any Federal law or any Government-wide rule or regulation
only if the rule or regulation is not a Government-wide rule or
regulation.
"(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
"(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
The regulations prescribed by the Authority are set forth in Part 2424
of the Rules and Regulations. There is no dispute that the Unions
herein failed to utilize the procedures established by the Board to
resolve issues concerning "compelling need."
Respondent contends that Section 7117 of the Statute is a bar to
negotiations because DLAR 5500.1 is an agency-wide regulation /24/ and
the Authority has not made a determination that "no compelling need"
exists for the regulation. I find merit to this defense. Indeed, I
specifically find and conclude that Part 2424 of the Rules and
Regulations is the exclusive procedure wherein the Authority may
determine whether compelling need exists for an agency-wide regulation.
To begin with, a literal reading of the statutory language makes
clear that it is "only if the Authority has determined" (past tense)
that no compelling need exists for an agency-wide regulation that the
duty to bargain even arises. Thus, an initial determination by the
Authority pursuant to its prescribed procedures is a condition precedent
which must be satisfied before a determination can be made that a duty
to bargain in fact exists. The Authority's function under Section 7117
is to determine whether the agency-wide regulation is a bar to
negotiations. Stated differently, the Authority's role is to resolve a
"negotiability" issue; its role is not to resolve the underlying
"obligation to bargain" in the same proceeding.
The General Counsel contends, however, that the issue of "compelling
need" may be resolved in an unfair labor practice proceeding. I reject
this contention for the same reasons stated by Judge Arrigo in Boston
District Recruiting Command, Boston, Massachusetts, Case No. 1-CA-206 et
al., OALJ-81-023, at pp. 13-15, (December 22, 1980). In that case,
Judge Arrigo concluded as follows:
Counsel for the General Counsel also suggests . . . that if the
agency regulation stands as a bar to negotiations, then the
proceeding herein served to put the issue of compelling need
before the Authority for determination. In my view neither the
Statute nor the Authority's regulations appear to envision this
approach. Indeed, section 7117(b)(3) of the Statute provides that
where a hearing is held to make a determination of compelling
need, it, ' . . . shall not include the General Counsel as a
party.' Accordingly, to combine a compelling need determination
with an unfair labor practice proceeding, where the General
Counsel has the responsibility of presenting the evidence in
support of the complaint and carries the burden of proving the
allegations of the complaint, would run contrary to Statutory
prohibition. Therefore, Counsel for General Counsel's contention
is rejected." (footnote omitted).
Therefore, based upon the foregoing reasoning, I conclude that the
Authority does not even have the option of litigating the compelling
need issue in a Section 7116 proceeding where the General Counsel is a
party.
When the Union first learned of the issuance of this agency-wide
regulation, it could have sought a determination by the Authority on the
compelling need issue. Regardless of which way the Authority decided
the case, it is my opinion that its decision would have removed an
impediment to meaningful negotiations and may have assisted in paving
the way to voluntary settlement of the unfair labor practice issues.
Even if a Section 7116 proceeding could not be avoided altogether, the
issues to be litigated might well be narrowed and simplified. In short,
the Statutory scheme of providing an expedited forum before the
Authority, without the presence of the General Counsel, makes sense.
In an excellent brief filed by Counsel for the General Counsel, the
contention is made that the compelling need aspects of Section
7116(a)(2) are only applicable in cases where an agency invokes an
existing rule or regulation as a bar to negotiations. It is argued that
the present case should be viewed as a unilateral change (or revision)
of an existing regulation. Accordingly, it is argued that this issue
may be litigated in a Section 7116 proceeding and that "the compelling
need provisions of the Statute are in reality not applicable to the
facts of this case." I disagree. The problem with this theory is that
its practical effect is to prevent an agency "from acting at all", that
is, issuing a regulation containing a change in conditions of
employment. Moreover, under this theory, even if an agency informed a
Union and proposed putting into effect an agency-wide regulation, and
the Union failed to seek a compelling need determination from the
Authority, the agency still would be required to act at its peril and
risk the allegation that it violated the Act, if it decided to make the
regulation effective notwithstanding the Union's inaction. While it is
true that the legislative history does not envision that an agency may
unilaterally remove issues from the bargaining table merely by issuing
regulations, it does not follow that an agency is prohibited from acting
at all. Section 7117(b)(1) and (2) clearly contemplate that agencies
may issue regulations prior to their being put to a compelling need
challenge. Thus, Section 7117(b)(1) refers to an exclusive
representative challenging a regulation "which is then in effect" and
Section 7117(b)(2)(A) refers in the past tense to an agency "which
issued" the rule or regulation. It follows, therefore, that the
Authority is not deprived of jurisdiction in a Part 2424 proceeding
simply because the agency regulation involves a "unilateral" change.
Furthermore, if a union were permitted to litigate compelling need
issues in an unfair labor practice proceeding with the aid of the
General Counsel, it would mean the union had a choice of forums and
could choose to by-pass the expedited forum designated by the Authority
in Part 2424 of the Rules and Regulations. I concede that Sections
2423.5 and 2426.5 of the Rules and Regulations may raise some doubt as
to my interpretation. However, I believe that the last sentence in
those sections is intended to reserve to the Authority exclusive
jurisdiction of (1) all compelling need issues and (2) those
negotiability issues which, because no action has been taken, may not
form the basis for a possible unfair labor practice and therefore may
not be litigated in a Section 7116 proceeding. I further note that even
in cases where a party elects to file a negotiability petition and is
referred by the Authority to a Section 7116 proceeding it is because (1)
the Respondent denies any changes occurred or (2) resolution of the
dispute is dependent upon the resolution of factual issues related to
the parties' conduct, both of which are more related to the underlying
obligation to bargain. National Treasury Employees Union and NTEU
Chapter 66, 6 FLRA No. 16. Since neither of these situations obtains
here, I believe the Authority could have made a "compelling need"
determination had the Union only invoked the expedited procedures of
Part 2424.
Finally, I would observe that, in the absence of a clear delegation
from the Authority, I am reluctant to assume that I have the authority
to make compelling need determinations in an unfair labor practice
proceeding. And, unless I have that authority, an agency will be
foreclosed from ever obtaining such a determination since, as noted
above, it cannot initiate a petition for review under Section 2424.2 of
the Rules and Regulations. The net result of this discussion is that
the agency regulation is a bar to negotiations. E. Status Of The Named
Respondents And Their Duty To Bargain 1. Respondent DLA /25/
This Respondent argues that simply because no direct bargaining
relationship exists between DLA and any of the NAGE locals, DLA cannot
be found to have violated Section 7116(a)(1) and (5) of the Statute. In
cases arising under the Executive Order and the Statute, it has been
held by the Federal Labor Relations Council /26/ and the Authority /27/
that the absence of a direct bargaining relationship is not a basis, in
and of itself, for escaping liability for committing an unfair labor
practice. Accordingly, this argument is rejected. However, I must
point out that such precedent is not applicable herein, and not
dispositive of the issues of liability. Naval Air Rework, for example,
involved conduct by higher agency headquarters which blatantly
interfered with a contractual relationship of the local parties. That
case did not involve the issuance of an agency-wide regulation. As
previously discussed, it is my opinion that Respondent DLA's agency-wide
regulation is a bar to negotiations. Therefore, the duty to bargain did
not arise, either as to decision or to its impact and implementation.
Accordingly, I recommend dismissal as to Respondent DLA. In reaching
this conclusion I rely on the fact that revised DLAR 5500.1 was issued
on May 9, 1979 and that the effective date of the new filing requirement
was not until October 31, 1979. Thus, there was ample time during which
the Locals could be notified and given a reasonable time in which to
request bargaining about impact and implementation. 2. Respondent
DCASR-Boston
This is not a case, like Naval Air Rework, where the subordinate
activity was performing a ministerial action. DLA's issuance of an
agency-wide regulation did not preclude DCASR-Boston from carrying out
its statutory duty to notify the local union with which it had a
bargaining relationship (Local R1-210) about the revised regulation and
the changes contained therein so that the local could request bargaining
about impact and implementation. As previously noted, formal notice to
the Union was not provided. Accordingly, I find that DCASR-Boston
violated Section 7116(a)(1) and (5).
The General Counsel alleges that DCASR-Boston also had an obligation
to notify the NAGE Locals which had exclusive representation at the
eight subordinate activities named as Respondents in the Complaint. The
evidence does not establish, however, that DCASR-Boston's conduct,
standing alone, may provide the basis in this proceeding for concluding
that the eight subordinate activities were left with nothing to do but
perform the ministerial act of implementing the revised regulation.
/28/ I am not persuaded by the evidence that the eight subordinate
activities were precluded in any way by DCASR-Boston from living up to
their statutory obligation to provide their respective Local Unions with
adequate notice and a reasonable opportunity to bargain about impact and
implementation. Subsequent to the July dissemination by DCASR-Boston of
the revised DLAR 5500.1 there still was time for the remaining
Respondents to notify their respective locals of the revised
regulations. /29/ This they failed to do. However, the Complaint does
not allege a separate violation by each of these Respondents.
Summing up, the only violation I find is that Respondent DCASR-Boston
violated Section 7116(a)(1) and (5) with respect to its duty to bargain
with Local R1-210. /30/
In its brief, the General Counsel makes an extensive well-developed
argument for holding that in reality this case really involves a single
Respondent (DLA Headquarters, DCASR-Boston, and each of the eight
subordinate activities), all in the same chain of command. There is
much to be said for this theory and I note that the General Counsel
relies rather heavily on the views expressed by my colleague, Judge
Arrigo, in Internal Revenue Service, supra, fn. 13. In that case, Judge
Arrigo astutely pointed out the problems encountered by a Charging Party
and the General Counsel in identifying the proper Respondent's--
problems which I believe are a direct result of that portion of the
Naval Air Rework decision which relieved the subordinate activity from
any unfair labor practice liability assertedly because its actions as an
agent of higher authority were only ministerial in nature. The
Authority, however, declined to address the problems discussed by Judge
Arrigo and, therefore, since Naval Air Rework has not been overruled it
constitutes precedent binding upon me. F. The Remedy
Respondent contends that the Union's right to negotiate was waived by
its subsequent conduct and failure to submit specific proposals. In my
view, the issue is whether, under the circumstances of this case, the
Respondent's violation of Section 7116(a)(1) and (5) requires, in
addition to the usual cease and desist order, an order to bargain about
impact and implementation.
In United States Air Force, 4 FLRA No. 70, the Authority held that
the failure of the Activity to give appropriate notice to a union
official in his capacity as a union representative constituted
inadequate notice and, therefore, a violation of the obligation to
bargain in good faith in violation of Section 7116(a)(5) and (1). In
considering the appropriate remedy, the Authority stated as follows:
However, the Complainant did not suggest that a demand to
bargain based on actual knowledge of the change would have been
futile, nor was it shown that the failure of appropriate advance
notice would have made effective negotiation impossible. Indeed,
Steward Price decided that negotiations were unnecessary at the
time. Therefore, as the Union declined to act on its actual
knowledge, it is not deemed appropriate to order bargaining
herein.
The above decision is applicable, I believe, to the present case in
which the Union did act, albeit belatedly and ineptly.
Here, Union President Themistocles had actual knowledge of the
issuance of revised DLAR 5500.1 in July 1979. Yet, it was not until
October 24, 1979, a week before the effective date of the new filing
requirement, /31/ that the Union requested bargaining and requested that
the status quo be maintained. (As discussed previously the Union did
not even seek a compelling need determination from the Authority.)
DCASR-Boston promptly replied on October 3; invited the Union's
comments on DLAR 5500.1, the DCASR-Boston Supplement 1, and the
September 26 guidelines; and extended the date for filing DD Form 1555
to November 30, 1979. Three days later on November 2, the parties met.
From the testimony and the minutes of the meeting it is clear that the
Union's principal goal was to bargain about the substance of the
decision, rather than impact and implementation. Respondent made clear
that as far as the decision was concerned, this had been made by higher
authority and couldn't be negotiated by it. From the evidence it does
not appear that the Golotko case was raised specifically although it may
well have been covered by the abbreviated discussion of a "grandfather
principle."
Respondent asserts that the Union at both meetings (November 2 and
December 13) failed to submit specific proposals on impact and
implementation. This appears to be the case. It seems to me that the
Union's main concern was the substance of the decision which, in my
opinion, was barred from negotiations. On balance, it is clear that
notwithstanding Respondent's failure to provide appropriate advance
notice, the Union nevertheless had an opportunity-- prior to the
effective date for filing the DD Form 1555 to submit specific proposals
and simply failed to do so. Put another way, I am not persuaded by the
evidence in this record that once negotiations were commenced Respondent
refused to receive and consider any Union proposals concerning impact
and implementation. I conclude that the lack of success in the
negotiations is attributable to the conduct of the Union and not to the
Respondent. In these circumstances, I believe it would not effectuate
the purposes of the Act to order bargaining. In view of my conclusion
that Respondent's decision was nonnegotiable and that a bargaining order
on impact and implementation is not appropriate, I also reject the
General Counsel's request for a status quo remedy.
Having found that Respondent DCASR-Boston has engaged in conduct
violative of Sections 7116(a)(1) and (5) of the Act, I recommend that
the Authority issue the following order designed to effectuate the
purposes of the Federal Service Labor-Management Relations Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Defense Contract Administration Service, Region, Boston, MA,
shall:
1. Cease and desist from:
(a) Failing to provide appropriate advance notice of changes in
conditions of employment, involving the revised standards of
conduct regulations, affecting unit employees represented by Local
R1-210, National Association of Government Employees, or any other
labor organization having exclusive representation rights.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of 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 Federal Service Labor-Management a
Relations Statute:
(a) Post at the facility named below 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 an authorized representative and they shall be posted
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. The authorized representative shall take reasonable steps
to insure that such notices are not altered, defaced, or covered
by any other material.
Defense Contract Administration Service Region (Boston, MA)
(b) Notify the Regional Director for Region 1, in writing,
within 30 days from the date of this Order, what steps it has
taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 7, 1981
Washington, DC
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to provide appropriate advance notice of changes in
conditions of employment, involving the revised standards of conduct
regulations, affecting unit employees at DCASR-Boston represented by
Local R1-210, National Association of Government Employees, or any other
labor organization having exclusive representative rights. WE WILL NOT,
in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.
(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,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
8th Floor, Boston, MA 02116, and whose telephone number is: (617)
223-0920.
--------------- FOOTNOTES$ ---------------
/1/ Section 7117(a) of the Statute provides, in pertinent part, as
follows:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
. . . .
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this
subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
/2/ Section 7117(b) provides, in pertinent part, as follows:
(b)(1) In any case of collective bargaining in which an
exclusive representative alleges that no compelling need exists
for any rule or regulation referred to in subsection (a)(3) of
this section which is then in effect and which governs any matter
at issue in such collective bargaining, the Authority shall
determine under paragraph (2) of this subsection, in accordance
with regulations prescribed by the Authority, whether such a
compelling need exists.
(2) For the purpose of this section, a compelling need shall be
determined not to exist for any rule or regulation only if--
(A) the agency, or primary national subdivision, as the case
may be, which issued the rule or regulation informs the Authority
in writing that a compelling need for the rule or regulation does
not exist; or
(B) the Authority determines that a compelling need for a rule
or regulation does not exist.
(3) A hearing may be held, in the discretion of the Authority,
before a determination is made under this subsection. If a
hearing is held, it shall be expedited to the extent practicable
and shall not include the General Counsel as a party. . . .
/3/ The General Counsel, who is responsible under sections 7104(f)(2)
and 7118 of the Statute for investigating and prosecuting alleged unfair
labor practices, would not be a party to a Part 2424 proceeding since no
unfair labor practice allegations would be involved. See sections
7117(b)(3) and (c)(5) of the Statute.
/4/ See also State of Nevada National Guard, 7 FLRA No. 37 (1981),
appeal docketed, No. 82-7034 (9th Cir. Jan. 18, 1982), remanded January
7, 1983, wherein the Authority addressed the issue of compelling need in
an unfair labor practice proceeding involving the agency's failure to
comply with a decision of the Federal Service Impasses Panel.
/5/ See American Federation of Government Employees, AFL-CIO,
National Joint Council of Food Inspection Locals and Department of
Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA
No. 74 (1982); American Federation of Government Employees, AFL-CIO,
Local 1928 and Department of the Navy, Naval Air Development Center,
Warminster, Pennsylvania, 2 FLRA 451 (1980).
/6/ Indeed, the Respondent did not even raise compelling need as an
affirmative defense in its answer to the complaint but, rather,
addressed this matter for the first time in its post-hearing brief to
the Judge.
/7/ American Federation of Government Employees, AFL-CIO, Local 3385
and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA
No. 58 (1981) (Union Proposal II); National Treasury Employees Union
and Internal Revenue Service, 6 FLRA No. 98 (1981) (Union Proposal
VIII).
/8/ National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748 (1980).
/9/ Inasmuch as there is no collective bargaining relationship
between DLA and NAGE at the primary national subdivision level, the
Authority concludes that DLA had no duty to bargain with NAGE before
revising the regulation involved herein.
/10/ Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2 (1981).
/11/ It follows that, as NAGE Local R1-210 was not provided with
prior notice of the revised regulation, it could not be found to have
waived its bargaining rights as alleged by the Respondent, and therefore
the Authority finds this contention to be without merit.
/12/ The Authority has previously held that the acts and conduct of
higher level agency management may constitute an unfair labor practice
where such conduct prevents agency management at the level of exclusive
recognition from fulfilling its bargaining obligation under the Statute.
Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA No. 9
(1982); Department of the Interior, Water and Power Resources Service,
Grand Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46 (1982).
/13/ There was no allegation in the complaint that these subordinate
levels of agency management had themselves failed to fulfill their
statutory obligation. Accordingly, the Authority need not address
whether there was a violation of the Statute in this regard, or whether
the NAGE locals at these subordinate levels had waived their bargaining
rights.
/14/ Title 18 of the United States Code relating to Crimes and
Criminal Procedure provides, in pertinent part, as follows:
Sec. 208. Acts affecting a personal financial interest
(a) Except as permitted by subsection (b) hereof, whoever,
being an officer or employee of the executive branch of the United
States Government, or any independent agency of the United States,
a Federal Reserve bank director, officer, or employee, or of the
District of Columbia, including a special Government employee,
participates personally and substantially as a Government officer
or employee, through decision, approval, disapproval,
recommendation, the rendering of advice, investigation, or
otherwise, in a judicial or other proceeding, application, request
for a ruling or other determination, contract, claim, controversy,
charge, accusation, arrest, or other particular matter in which,
to his knowledge, he, his spouse, minor child, partner,
organization in which he is serving as officer, director, trustee,
partner or employee, or any person or organization with whom he is
negotiating or has any arrangement concerning prospective
employment, has a financial interest--
Shall be fined not more than $10,000, or imprisoned not more
than two years, or both.
(b) Subsection (a) hereof shall not apply (1) if the officer or
employee first advises the Government official responsible for
appointment to his position of the nature and circumstances of the
judicial or other proceeding, application, request for a ruling or
other determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter and makes full
disclosure of the financial interest and receives in advance a
written determination made by such official that the interest is
not so substantial as to be deemed likely to affect the integrity
of the services which the Government may expect from such officer
or employee, or (2) if, by general rule or regulation published in
the Federal Register, the financial interest has been exempted
from the requirements of clause (1) hereof as being too remote or
too inconsequential to affect the integrity of Government
officers' or employees' services. In the case of class A and B
directors of Federal Reserve banks, the Board of Governors of the
Federal Reserve System shall be the Government official
responsible for appointment.
/15/ Section 7118(a)(4) of the Statute, which bars the issuance of a
complaint based upon any alleged unfair labor practice which occurred
more than 6 months before the filing of the charge, was not interposed
as an affirmative defense by Respondent.
/16/ There being no objection, the General Counsel's Motion to
Correct Transcript is hereby granted as follows: "NAGE" on page 152,
line 5 is corrected to read "AFGE."
/17/ R refers to record citations, GCX to General Counsel Exhibits
and RX to Respondent's Exhibits. The transcript is hereby corrected to
show that GCX 2 and 29 were received into evidence.
/18/ The Union was represented by Remmes, Local R2-110 President
Christopher Themistocles and Vice-President Joe Mazzotta, and two
representatives from Connecticut. The Respondent was represented by
Labor Relations Specialist Edwin Newdick and DCASR Counsel and Standards
of Conduct Officer Sumner Marcus. Remmes acted as spokesman for the
Union.
/19/ 18 U.S.C. 208 is one of the Statutes referred to in DLAR 5500.1.
As set forth in Enclosure 3 pp. 1-2 of GCX 15 that Statute refers to
financial interests and the test for its application is "whether the
individuals might reasonably anticipate that their Government action, or
the decisions in which they participate or with respect to which they
advise, will have a direct and predictable effect upon such financial
interest." The Enclosure also notes that DLA has discretion to grant ad
hoc exemptions.
/20/ Paragraph 6 of GCX 22 states in pertinent part as follows:
"DLAR 5500.1 dated 7 May 1979 further expanded the conflict of
interest implications as to appearance aspects, to cause
management to revisit the prior decision . . . "
/21/ Indeed, at the hearing Commander Park admitted that it was his
policy at Owego that, "an employee could be permitted to work at Owego
IBM even though his wife was employed there as long as the wife was not
on the government side".
/22/ As previously noted the predecessor regulation did not define
financial interest.
/23/ For a discussion of actual versus probable impact see my
decision in U.S. Government Printing Office, Case No. 3-CA-549,
OALJ-81-183 (April 9, 1981).
/24/ For convenience, I will refer to DLAR 5500.1 as an agency-wide
regulation, although DLA actually is a primary national subdivision of
the Department of Defense.
/25/ I note that Respondent DLA's Answer was filed "in its own behalf
only and to the exclusion of all other named Respondents." A separate
Answer was filed by DCASR-Boston.
/26/ Naval Air Rework Facility, Pensacola, Florida and Secretary of
the Navy Department of the Navy, Washington, D.C., 5 FLRC 303, FLRC No.
76A-37 (May 4, 1977), Report No. 125.
/27/ Veterans Administration, 1 FLRA No. 101 (1979); Internal
Revenue Service, Washington, D.C., and Internal Revenue Service,
Hartford District Office, 4 FLRA No. 37 (1980), a case not involving a
violation of Section 7116(a)(5).
/28/ Naval Air Rework Facility, supra fn. 11.
/29/ The July 16 dissemination of the revised regulation by
DCASR-Boston was not an attempt to negotiate or deal directly with
employees and therefore was not an independent violation of Section
7116(a)(5). The General Counsel cites no cases to support his
contention that such conduct "by-passed" the Union. Accordingly, the
allegation in paragraph 5(b) of the Complaint is dismissed.
/30/ Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2.
/31/ The revised DLAR 5500.1 and certain changes were effective May
9, 1979; the effective date for one of the changes (i.e. filing of Form
1555) was October 31 or November 1, 1979.