[ v18 p768 ]
18:0768(92)CA
The decision of the Authority follows:
18 FLRA No. 92
FEDERAL DEPOSIT INSURANCE
CORPORATION, HEADQUARTERS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-2589
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Authority" in accordance with
section 2429.1(a) of the Authority's Rules and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The complaint alleges, in essence, that the Respondent violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ by insisting to impasse that the
Charging Party (the Union) adopt the Respondent's bargaining proposals
calling for the Union to waive certain of its rights under the Statute.
The record indicates that the Union represents separate units of
professional and nonprofessional General Graded and Wage Grade employees
assigned to the Respondent's Headquarters in Washington, D.C. During
the course of negotiations for a collective bargaining agreement, the
parties jointly requested the Federal Service Impasses Panel (the Panel)
for assistance with respect to certain unresolved articles. Only one of
these articles, containing two separate provisions, is before the
Authority in the instant proceeding.
The provisions in question, Sections 1 and 2.D(5) of Article 51, were
proposed by the Respondent and pertained to mid-contract negotiations.
/2/ The Respondent's latest proposals, as submitted to the Panel, are as
follows:
Section 1
The parties agree that changes in the personnel policies,
practices, and matters relating to conditions of employment of
employees in the bargaining unit which are within the discretion
of the EMPLOYER are subject to negotiation, if the UNION requests
negotiations. Further, if the foregoing changes are not within
the discretion of the EMPLOYER, the UNION has the right to
negotiate on the impact and implementation of those changes, if
the UNION requests negotiations.
Section 2.D(5)
(I)f agreement has not been reached by the Parties after
forty-five (45) calendar days from the date the UNION requested
negotiations, the EMPLOYER has the right to implement the proposed
change in conditions of employment even though the matter has been
referred to a third party for resolution.
The Union's response to the proposed Section 1 was that the language
contained therein would require it to waive certain of its rights under
section 7117(a) of the Statute. /3/ More specifically, the Union argued
that the proposal would prevent it from bargaining over agency-wide
rules and regulations that are "not within the discretion of the
Employer." As to Section 2.D(5), the Union basically that it would be
waiving its statutory right to utilize third-party impasse procedures if
it agreed to allow the Respondent to implement proposed changes prior to
the completion of bargaining.
In its Decision and Order in Federal Deposit Insurance Corporation,
Washington, D.C., and National Treasury Employees Union, 81 FSIP 60
(June 3, 1981), FSIP Release No. 189, the Panel concluded that, with
regard to Article 51, Sections 1 and 2.D(5):
(T)he Union has raised a threshold question concerning its duty
to bargain to impasse over the Employer's proposal, alleging that
its adoption would constitute a waiver of the Union's statutory
rights. The Panel is without jurisdiction to resolve the
question. Until it is resolved in an appropriate forum and
further assistance, if necessary is rendered by the Panel, we
conclude that the parties should withdraw their proposals with
respect to this Article and rely on the applicable sections of the
Statute . . . .
Thereafter, the Union filed an unfair labor practice charge and the
General Counsel issued the complaint herein.
The question here presented is whether the Respondent acted properly
in insisting to impasse over its proposed Article 51, Sections 1 and
2.D(5). Resolution of this question is dependent upon a determination
as to whether the proposals involved a mandatory subject of bargaining
or a "permissive" subject of bargaining. While the Authority has
previously held that parties may bargain to impasse over mandatory
subjects of bargaining, i.e., those matters that are within the required
scope of bargaining, /4/ the Authority has not previously addressed
whether this policy extends also to permissive subjects of bargaining,
i.e., those matters which are either outside the scope of bargaining
required of the parties or are negotiable at the election of an agency
pursuant to section 7106(b)(1) of the Statute. In the Authority's view,
it does not.
It is well-established that a party is not required to bargain over a
permissive subject of bargaining. This applies equally to proposals
advanced by agency management as it does to proposals made by a union.
In American Federation of Government Employees, AFL-CIO, 4 FLRA 272
(1980), for example, the Authority determined that an agency's proposals
which would have infringed on a union's right to designate its own
representatives when dealing with agency management were outside the
required scope of bargaining. Therefore, the union's refusal to bargain
over the proposals was found not to have violated the Statute. In
Division of Military and Naval Affairs, State of New York, Albany, New
York, 15 FLRA No. 65 (1984) and in International Association of Fire
Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980)
(Proposal No. III), the Authority determined, respectively, that agency
management was not required to bargain over matters which were within
the ambit of section 7106(b)(1) of the Statute and therefore bargainable
only at the election of the agency, or over those matters which are
outside the required scope of bargaining. While in such instances,
neither agency management nor the union could be required to bargain,
nothing in the Statute would preclude bargaining if the parties chose to
do so. In this latter connection, the Authority has held that where
parties are negotiating a collective bargaining agreement and have
elected to bargain over permissive subjects of bargaining and have
reached agreement thereon, the parties are bound to adhere to those
terms during the life of their agreement. However, upon the agreement's
expiration, either party may elect to no longer be bound by such terms
and, in effect, reassert its right not to negotiate with regard to such
permissive subjects of bargaining. Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984).
Clearly, if parties are not required to bargain over permissive
subjects of bargaining, it follows that parties cannot insist on
bargaining to impasse with respect to such matters within the meaning of
section 7119 of the Statute. As previously noted, the Authority
determined in Vermont Air National Guard, supra, that parties may
bargain to impasse over mandatory subjects of bargaining. In so
deciding, the Authority noted that parties have a mutual obligation to
bargain in good faith and that where an impasse in negotiations is
reached, either party may request the assistance of the Panel under
section 7119. Where a matter falls outside the required scope of
bargaining or is negotiable only at the election of an agency, there is
no mutual obligation to bargain at all. If parties do bargain over such
matters either may withdraw at any time prior to reaching agreement.
In order to determine whether in the instant case the Respondent's
conduct in insisting to impasse on the two proposals was violative of
the Statute, it is necessary to examine whether the proposals were
mandatory or permissive subjects of bargaining.
The Authority turns first to Article 51, Section 1. That proposal
provides that changes in personnel policies, practices and matters
relating to conditions of employment of unit employees which are within
the Employer's discretion are subject to negotiations, upon the Union's
request. For changes that are not within the discretion of the
Employer, the Union has the right to negotiate, upon request, over the
impact and implementation of those changes. The Union and the General
Counsel argue that the language of the proposal would require the Union
to waive certain of its statutory rights under section 7117(a) of the
Statute, specifically with regard to agency-wide rules and regulations
that are "not within the discretion of the Employer." In this
connection, there appears to be some confusion as to whether the term
"Employer" refers to the Respondent herein or to the Board of Directors
of the Federal Deposit Insurance Corporation which, according to the
parties' stipulation, establishes agency-wide policy. The Respondent
argues essentially that the proposal does not conflict with the Statute
and therefore cannot constitute a waiver of the Union's statutory
rights.
In the Authority's view, nothing contained in the proposal is
inconsistent with the Statute so as to remove it from the required scope
of bargaining. The objection to the proposal raised by both the General
Counsel and the Union, as noted above, concerns a limitation on
bargaining over agency-wide rules and regulations. Section 7117(a) of
the Statute, as here relevant, extends the duty to bargain to rules and
regulations issued by an agency or primary national subdivision of that
agency where ;o compelling need for the rule or regulation is found to
exist pursuant to the Authority's Rules and Regulations, /5/ so as to
bar negotiations on conflicting proposals. In this regard, the
Authority determined in Defense Logistics Agency (Cameron Station,
Virginia), 12 FLRA 412 (1983), aff'd sub nom. Defense Logistics Agency,
et al. v. FLRA, 754 F.2d 1003 (1985), that agency management at the
level of exclusive recognition may be required to bargain over an
agency-wide rule or regulation as it applies to unit employees where no
compelling need has been demonstrated for the rule or regulation to bar
negotiations or the matter is not otherwise removed from the required
scope of bargaining. /6/ Such bargaining would, of course, apply to the
substance, procedures, and appropriate arrangements for employees
adversely affected by the agency-wide rule or regulation. But see, U.S.
Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984), rev'd sub
nom. United States Army Engineer Center v. FLRA, No. 84-1327 (4th Cir.
May 23, 1985).
In the instant case, the General Counsel and the Union apparently are
concerned that the proposal would limit the Union's opportunity to
bargain over agency-promulgated rules and regulations only to their
impact and implementation, thus removing the Union's right to bargain as
to the substance of such rules and regulations. In the Authority's
view, whether the term "Employer" refers to the Respondent or to that
level of agency management which is responsible for establishing
agency-wide rules and regulations, bargaining as to the substance of
such rules and regulations at the level of exclusive recognition would
be proscribed only where there was a compelling need for the rule or
regulation or where the matter was otherwise removed from the required
scope of bargaining because of an inconsistency with law, rule or
regulation, including the Statute. Simply because an agency-wide rule
or regulation is not within the discretion of agency management at the
level of exclusive recognition would not remove it from the required
scope of bargaining. /7/ In fact, even the Respondent concedes that a
change in agency policy for which no compelling need has been found to
exist would be within the discretion of the Employer and therefore
negotiable in substance. As to the proposed Section 1, therefore, the
Authority does not view the language contained therein as a limitation
on the Union's right to bargain over agency-wide rules and regulations.
Rather, the proposal appears to be an accurate reflection of the
statutory rights and obligations of the parties to bargain over changes
in personnel policies, practices, and matters relating to conditions of
employment of unit employees. Accordingly, the Authority finds the
proposal to be within the required scope of bargaining, and therefore
the Respondent's insistence to impasse on the proposal does not
constitute a violation of the Statute.
The Respondent's proposed Article 51, Section 2.D(5), on the other
hand, does not fall within the required scope of bargaining. The
language of that proposal would allow the Respondent to implement a
proposed change in conditions of employment if agreement has not been
reached by the parties after forty-five days from the date the Union
requested negotiations, even if the matter has been referred to a
third-party for resolution. The Union and the General Counsel argue
that the proposal would preclude the Union from fully utilizing the
impasse machinery provided for in the Statute. The Authority agrees and
notes that section 7119 of the Statute provides for third-party
resolution of negotiation impasses and permits either party to a
negotiation impasse to request the assistance of the Federal Service
Impasses Panel. The Authority has previously determined that where
parties have reached an impasse in their negotiations, and one party
timely invokes the services of the Panel, the parties are required to
maintain the status quo, to the maximum extent possible, i.e.,
consistent with the necessary functioning of the agency, in order to
allow the Panel to take whatever action is deemed appropriate; and,
further, that a failure or refusal to do so will constitute a violation
of the Statute. Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, 18 FLRA No. 61 (1985). To the extent that the proposed
Section 2.D(5) would allow the Respondent to implement proposed changes
in conditions of employment while such matters are pending before the
Panel for resolution, the proposal would limit the Union's right to
insist upon the maintenance of the status quo to the maximum extent
possible until the Panel has taken appropriate action. Therefore, the
proposal is not within the required scope of bargaining. While the
Union may of course choose to bargain over the proposal, the Authority
finds that it cannot be required to do so. Accordingly, the
Respondent's insistence to impasse on a proposal which does not concern
a mandatory condition of employment is violative of section 7116(a)(1)
and (5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Federal Deposit Insurance Corporation,
Headquarters shall:
1. Cease and desist from:
(a) Insisting to impasse on a matter which is outside the required
scope of bargaining with the National Treasury Employees Union, the
exclusive representative of unit employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the head of the Federal Deposit
Insurance Corporation, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including 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.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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 portion of the complaint in Case No.
3-CA-2589 found not to have violated the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C., June 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 insist to impasse on a matter which is outside the
required scope of bargaining with the National Treasury Employees Union,
the exclusive representative of our 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
Statute.
(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 for Region III, Federal Labor Relations Authority, whose
address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Another section of Article 51 was also before the Panel but was
not raised as an issue in the unfair labor practice complaint herein.
/3/ Section 7117(a) provides, in relevant part:
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.
/4/ Vermont Air National Guard, Burlington, Vermont, 9 FLRA 737
(1982).
/5/ See Part 2424, Subpart B of the Authority's Rules and
Regulations.
/6/ While the Authority's determination in this regard was upheld by
the D.C. Circuit, the case was remanded to the Authority for the sole
purpose of permitting the petitioners to present evidence as to whether
or not there existed a compelling need for the particular regulation at
issue.
/7/ See, in this connection, National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 13 FLRA 554 (1983)
and American Federation of Government Employees, AFL-CIO, Local 3656 and
Federal Trade Commission, Boston Regional Office, Massachusetts, 4 FLRA
702 (1980).