Vol. 8 No. 1
October 1, 1998 - January 31, 1999
The FLRA Bulletin
The Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424-0001
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CONTENTS
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News to Know
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Update on CADR
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Authority Cases
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Court Cases
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FSIP Final Action
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FSIP Settlement Corner
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General Counsel's Advice to Regional Directors
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General Counsel's Settlement Corner
FLRA WILL HOLD TWO NATIONAL TRAINING CONFERENCES TO COMMEMORATE ITS 20TH
ANNIVERSARY
News to Know
In 1999 the FLRA commemorates the 20th Anniversary of its founding by holding
two national training conferences. The first conference will be in Denver,
Colorado on May 4 and 5. The second conference will be in Washington, D.C.
on June 14 and 15. Both conferences will offer training on the rights and
obligations under the Statute, skills for resolving disputes through interest
based problem-solving, and the regulatory initiatives undertaken in the
past few years.
Registration materials will be available in mid-March on the FLRA's
web site at www.flra.gov.
RESULTS OF FLRA's 1998 CUSTOMER SURVEY
In Fiscal Year 1998, the FLRA surveyed the 4,405 parties who appeared before
it in the preceding two fiscal years. The Survey was designed to measure
the effectiveness of each of the programs administered by the FLRA, the
impact of the FLRA's decisions and the General Counsel's policies and guidance,
and customer satisfaction with the FLRA's processes.
In general, the Survey revealed that the FLRA is doing a good job meeting
the information needs of its customers and also identified areas where
customers would like further information. Respondents gave generally high
marks to elements of processing matters before the General Counsel and
the Authority. Respondents also affirmed the quality of various categories
of FLRA decisions, but indicated concerns regarding timeliness. Finally,
respondents indicated that decisions resolving legal issues do not necessarily
resolve the underlying problems between the parties.
The Authority and the Office of the General Counsel have formulated
future actions to address concerns revealed in the Survey. Information
regarding the Survey and future action plans are available on the FLRA's
web site at
www.flra.gov.
FEDERAL SERVICE IMPASSES PANEL REAPPOINTMENTS AND RESIGNATIONS
On January 27, 1999, President Clinton announced his intention to reappoint
Federal Service Impasses Panel (FSIP) members Edward F. Hartfield and Mary
E. Jacksteit to second terms. Their terms run through January, 2004.
Panel Member Dolly Gee, whose term expired in January 1999, did not
seek reappointment.
Panel Member Gilbert Carrillo, whose term was to expire in January 2002,
submitted his resignation to President Clinton effective February 15, 1999.
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FLRA WINS HAMMER AWARD
The FLRA's ULP Regulations Reinvention Team has been awarded the Vice President's
Hammer Award for rewriting the post-complaint ULP Regulations. The new
regulations foster settlements between the parties and also facilitates
the exchange of information prior to hearings. As a result of the new regulations,
a higher percentage of parties are crafting their own solutions, and are
doing so earlier in the process. Additionally, through pre-hearing conferences
and exchanging of information, parties understand the facts and legal issues
in dispute before the hearing. In instances where parties are unable to
resolve their dispute and go trial, the revised regulations permit issues
to be narrowed and sharpened, thus providing better case law to the parties. |
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REALIGNMENT OF THE GEOGRAPHICAL JURISDICTION OF THE REGIONAL OFFICES
Effective January 1, 1999, the regional offices managed by the Office of
the General Counsel underwent changes of geographic jurisdiction. Cases
arising in Puerto Rico are now handled by the Boston Region; cases arising
in Europe and North Carolina will be handled by the Washington Region;
and cases arising in Idaho and Nevada will be handled by the San Francisco
Region. A jurisdictional map is available at the FLRA's web site at www.flra.gov.
TRAINING SESSIONS ON NEGOTIABILITY PROCEEDINGS AND INTEREST BASED BARGAINING
TO BE HELD IN FOUR LOCATIONS IN MARCH
The FLRA will hold a two part training workshop in four locations across
the country in March, 1999. Training at each location will consist of a
morning session on the Authority's revised negotiability regulations and
an afternoon session in interest based bargaining. The revised negotiability
regulations take effect April 1, 1999.
The workshops will be in Boston on March 10; Chicago on March 16; Washington,
D.C. on March 18; and Oakland on March 23.
FLRA BEFORE SUPREME COURT ON IG/WEINGARTEN ISSUE
On March 23, 1999, the United States Supreme Court will hear oral arguments
in National Aeronautics and Space Administration, Washington, D.C. and
National
Aeronautics and Space Administration, Office of the Inspector General v.
Federal Labor Relations Authority and American Federation of Government
Employees, AFL-CIO, No. 98-369. The Court will review the Authority's
determination 50 FLRA 601 (1995), enforced, 120 F.3d 1208 (11th Cir. 1997),
that the Agency committed an unfair labor practice by interfering with
a bargaining unit employee's requested union representation during an investigation
by an agent of the Office of the Inspector General. At issue is whether
such an agent is a "representative of the agency" within the meaning of
5 U.S.C. § 7114(a)(2)(B).
UPDATE ON CADR
The three components of the Federal Labor Relations Authority (FLRA) -
the Authority, the Office of General Counsel, and the Federal Service Impasses
Panel- have established the cross-component Collaboration and Alternative
Dispute Resolution Program (CADR). Each component, as part of the CADR
Program, offers collaboration and alternative dispute resolution services
in pending unfair labor practice, representation, negotiability and bargaining
disputes. The components, as part of the CADR Program, also provide partnership
facilitation, training and education activities to assist labor and management
in developing constructive approaches to conducting their relationship.
Recently, the FLRA has codified CADR initiatives in two revised regulations.
First, as described elsewhere in this Bulletin, on November 30, 1998, the
Office of the General Counsel of the FLRA published revised regulations
in the Federal Register (63 Fed. Reg. 65638) concerning unfair labor practice
proceedings. Among other things, the revised regulations implement the
FLRA's agency-wide CADR initiative to assist labor and management parties
in developing collaborative relationships and to provide dispute resolution
services in unfair labor practice cases pending before the Office of the
General Counsel. The revised regulations took effect January 1, 1999.
Second, CADR initiatives were also codified in the new Negotiability
Regulations. Part 2424.10 of the regulations identifies for the parties
another voluntary option for resolving a Negotiability Appeal. Under the
new negotiability procedures CADR representatives are available to assist
the parties to reach a resolution to their dispute. Parties interested
in those services may direct their questions to the CADR Office at (202)
482-6503, 607 14th St., NW, Washington, D.C. 20424-0001.
The following illustrate of some of the alternative dispute resolution
services delivered by the FLRA components as part of the CADR Program:
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The OALJ's voluntary ULP settlement program has received 57 requests for
assistance, through January 1999 of the fiscal year. During the same period,
including cases pending from FY 98, 60 complaints were settled without
litigation, while 9 complaints went to hearing. The successful settlement
rate of 87% is slightly higher than our historical average.
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Facilitated discussions in16 negotiability cases. The parties achieved
a better understanding of their issues and interests.
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Resolved 462 disputes filed as unfair labor practice charges using collaboration
and alternative dispute resolution processes. For example, following the
filing of two unfair labor practice charges, ADR services were provided
which resulted in the parties' creating pre-decisional involvement processes
and resolving the underlying dispute that had given rise to the unfair
labor practice charges.
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Delivered 85 facilitation, training and education sessions from October
1998 through January 1999. These sessions included town meetings to discuss
issues with representatives of agencies and unions. The facilitation, training
and education sessions covered matters such as pre-decisional involvement
and evaluation of partnership efforts.
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Trained FLRA staff on the use of ADR techniques in a workshop on the "Facilitating
Labor- Management Relationships."
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Provided statutory training to numerous agencies and unions on issues such
as dealing with information requests, scope of bargaining, Weingarten issues,
formal discussions, etc.
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Provided training and education to assist parties dealing with representation
issues arising from agency reorganizations. These included meetings held
under section 2422.13(a) of the Authority's regulations, under which all
parties affected by representation issues that may be raised in a petition
are encouraged to meet before the petition is filed to discuss their interests
and narrow and resolve the issues.
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Helped a Union/Management group resolve a potential negotiability dispute
involving 207 proposals. The parties also agreed to forego the filing of
unfair labor practice charges and withdrew issues presented to arbitration
concerning the interpretation of certain contract provisions. As a result
of the interest-based negotiation sessions, the parties began the process
of mending their relationship by establishing a partnership council and
charging that partnership with defined tasks.
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Facilitated regional level discussions between agency and union representatives
on the subject of predecisional involvement. The parties were attempting
to use the process to deal with various issues relating to the reorganization
of agency operations and sought to establish a common understanding among
labor and union officials about the meaning of predecisional involvement
in order to avoid future conflicts over that issue.
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Conducted a relationship-building session that facilitated the parties'
joint labor-management council meeting and mid-term bargaining sessions.
As a result, the parties reached agreement on several matters and developed
a process for addressing other matters.
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Assisted an agency and a union that were both new to labor-management relations,
by providing information on labor law and labor relations to help the parties
in their initial collective bargaining negotiations.
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Developed and applied an assessment tool for use in evaluating a nationwide
agency-union partnership council.
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Facilitated the renegotiation of the parties' collective bargaining agreement
as a follow-up to earlier training and negotiation preparation. Negotiations
were completed in three days; previous agreements had taken up to six months
to negotiate.
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Continued nationwide efforts assisting one agency's national partnership
council's initiative to provide its local facilities with training and
facilitation to assist in the development of effective local level partnerships.
AUTHORITY CASES
These summaries of selected cases were prepared by FLRA
staff for guidance and informational purposes only, and may not be used
as an official position of, or interpretation by the Authority. The term
"Statute" throughout the text refers to the Federal Service Labor-Management
Relations Statute §§7101-7135.
Representation Cases
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In National Mediation Board and American Federation of Government Employees,
54 FLRA 1474 (1998) (Member Wasserman concurring), the Authority reviewed
a Regional Director's (RD) decision dismissing the Union's petition for
a representation election on the ground that the proposed unit contained
employees who administer a labor relations statute that covers members
of unions affiliated with the petitioning union. Employees who administer
a labor relations statute are precluded from representation by affiliated
unions pursuant to section 7112(c)(2) of the Statute. The Authority adopted
the RD's position that because the Union is affiliated with the AFL-CIO,
and because other affiliates of the AFL-CIO represent employees covered
by the Railway Labor Act (RLA), the Union is precluded from representing
employees who administer the RLA. In reaching this conclusion, the Authority
construed, for the first time, the statutory phrase "affiliated directly
or indirectly," as encompassing two affiliates of the AFL-CIO. According
to the Authority, the legislative history of section 7112(c) and the construction
of a similar phrase in section 9(b)(3) of the National Labor Relations
Act supports this construction of the phrase and is consistent with the
Statute's goal of preventing appearances of conflict of interest. The Authority
rejected the Union's arguments that its relationship to the AFL-CIO cannot
fall within section 7112(c)(2) because the AFL-CIO does not, itself, represent
individuals.
However, the Authority found that the RD committed prejudicial
procedural error by refusing to evaluate the statutory exclusion of particular
employees on the ground that the Union had not formally requested to amend
its petition. Finding that nothing in case law or regulation requires such
a formal request, the Authority ordered the RD to exclude from the petitioned-for
unit employees who fall within the section 7112(c) exclusion, and to make
necessary findings with respect to the adequacy of the showing of interest,
and the appropriateness of the unit.
Unfair Labor Practice Cases
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In United States Immigration and Naturalization Service, Washington,
D.C. and National Border Control Council, American Federation of Government
Employees, AFL-CIO, 55 FLRA 69 (1999) (Member Wasserman dissenting
in part), the Authority reviewed a Judge's decision finding that the Respondent
violated section 7116(a)(1), (5), and (6) of the Statute in implementing
a new Air Operations Manual after the Union had requested the assistance
of the Federal Service Impasses Panel (the Panel). In remanding the case,
the Authority modified the framework for determining when an agency violates
section 7116(a)(6) by implementing a change in conditions of employment
(thereby refusing to maintain the status quo).
Reviewing the terms of the Statute and its purposes and policies,
the Authority stated that preventing the implementation of changes in conditions
of employment prior to the competition of bargaining is an objective of
the general duty to bargain enforced by section 7116(a)(5). The Authority
found that nothing in the express terms of the Statute or in its purposes
or policies imposes a separate, implied obligation under section 7116(a)(6)
to maintain the status quo. The Authority concluded that, henceforth,
the question of whether an agency violates section 7116(a)(6) of the Statute
by implementing changes in conditions of employment would be resolved based
on whether the agency cooperates with Panel procedures or a Panel decision
requiring it to maintain the status quo. The Authority noted that
this modification does not make any change in the bargaining obligation
of agencies and unions, as the agency's obligation under section 7116(a)(5)
to maintain the
status quo -- both up to and through impasse resolution
procedures -- remains intact. The Authority left to the Panel to determine
whether to adopt specific procedures concerning the maintenance of the
status quo, or whether to issue such orders under specific instances.
Finding that the record before the Authority in this case did not provide
a sufficient basis for resolving the complaint under the modified framework,
the Authority remanded the complaint to the Judge for a determination of
what, if any, further proceedings were necessary.
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In Air Force Flight Test Center, Edwards Air Force Base, California
and American Federation of Government Employees, Local 3854, AFL-CIO,
55 FLRA 116 (1999) (Chair Segal concurring), the Authority found that the
Respondent violated section 7116(a)(1) and (5) of the Statute by changing
a skilled trades program for aircraft mechanics (rivetized workforce and
training program) without notifying and providing the Union with the opportunity
to bargain over the impact and implementation of the decision. In reaching
that conclusion, the Authority also found that the Respondent unilaterally
discontinued its career-ladder policy under which aircraft mechanics in
the program were entitled to noncompetitive promotions. To remedy the violation,
the Authority ordered, among other things, status quo ante relief and retroactive
promotions and back pay. As a preliminary matter in its decision, the Authority
rejected the Respondent's argument that the Judge was precluded from conducting
his own "fact-finding" in the case. Noting that the Authority's Regulations
require administrative law judges to inquire fully into relevant and material
facts concerning the subject matter of the hearing, the Authority found
that the Respondent had not shown that the Judge inquired into irrelevant
or immaterial matters, or that the Judge relied on such matters in rendering
his decision.
Negotiability Cases
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In National Federation of Federal Employees, Local 1669 and U.S. Department
of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith,
Arkansas, 55 FLRA 63 (1999), the Authority concluded that consistent
with Authority precedent, a proposal concerning uniform allowances for
National Guard civilian technicians is within the duty to bargain. The
Agency had argued that Authority precedent concerning the negotiability
of uniform allowance proposals was no longer applicable following amendments
of the Technician Act, 32 U.S.C. § 709(b). As a result of these amendments,
civilian technicians who receive a uniform allowance under 37 U.S.C. §
417 or 418, may not receive an allowance under 5 U.S.C. § 5901 or
10 U.S.C. § 1593. The Agency contended that proposals concerning uniform
allowances are outside the duty to bargain on 3 grounds: (1) because bargaining
is contrary to the terms of sections 417 and 418; (2) because the amendments
rendered the provision of uniform allowances a military aspect of employment;
and (3) because sections 417 and 418 "deal comprehensively" with uniform
allowances.
The Authority found that nothing in sections 417 and 418 prohibited
bargaining over uniform allowances. Additionally, the Authority held that
sections 417 and 418 did not render uniform allowances a military aspect
of employment. The Authority explained its precedent has consistently found
that proposals concerning uniforms worn during the time when technician
duties are performed relates to a civilian aspect of employment. The Authority
also found that the comprehensiveness of a statute does not determine whether
a proposal is outside the duty to bargain, and that the appropriate inquiry
is whether the statute provides the Agency with discretion to agree to
the proposal.
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In American Federation of Government Employees, Locals 3807 and 3824
and U.S. Department of Energy, Western Area Power Administration, Golden,
Colorado, 55 FLRA 1 (1998), the Authority addressed the negotiability
of four proposals submitted by the Union in response to an Agency regulation
providing that, except in certain circumstances, compensatory time not
taken within 26 pay periods would be forfeited. Prior to the regulation,
compensatory time not used within 26 pay periods was converted to overtime
compensation.. All four proposals were found within the duty to bargain.
Proposal 1 stated that the proposed change was unacceptable
to the Union. Proposal 2 stated that the continuing practice of paying
overtime for compensatory time not used within 26 pay periods would be
acceptable. The Authority found that Proposals 1 and 2 did not conflict
with 5 C.F.R § 550.114(d), because that regulation granted the Agency
discretion -- i.e., it did not require the Agency -- to fix a time limit
for the use of compensatory time. The Authority also found that there was
no compelling need for the Agency regulation. In addition, the Authority
found that Proposals 1 and 2 did not affect the Agency's right to determine
its budget under section 7106(a)(1) of the Statute, because there was no
contention that the proposals prescribed particular programs, operations,
or amounts to be included in the Agency's budget, and because the Agency
did not establish that the proposals would cause a significant and unavoidable
increase in costs that was not offset by compensating benefits. As Proposals
1 and 2 were not contrary to law on any of the bases asserted by the Agency,
the Authority found Proposals 1 and 2 to be within the duty to bargain.
Proposal 3 allowed employees to choose between compensatory
time and overtime pay as compensation for overtime work. The Authority
concluded that 5 C.F.R. § 550.114(c) gives the Agency head discretion
to provide for compensatory time rather than overtime payment for certain
employees, and that the Agency may exercise its discretion through negotiation
to allow individual employees to elect overtime rather than compensatory
time. As Proposal 3 was not contrary to 5 C.F.R. § 550.114(c), and
as the Agency argued no other grounds, the Authority found Proposal 3 to
be within the duty to bargain.
Proposal 4 provided that if legislation is enacted permitting
the Agency to grant 1.5 hours of compensatory time for every hour of extra
work, then the Agency would institute such a policy. Because the proposal
would apply only if legislation consistent with the proposal's wording
was signed
into law, the Authority concluded that Proposal 4 was not contrary
to law.
Arbitration Cases
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In American Federation of Government Employees, Local 2028 and U.S.
Department of Veterans Affairs Medical Center, Pittsburgh, Pennsylvania,
54 FLRA 1467 (1998), the Authority denied exceptions to an arbitration
award that found "just cause" for an Agency's 3-day suspension of an employee
based on the charge of complicity in the unauthorized removal of coffee
from the food service storage. In its exceptions, the Union asserted that
the arbitrator sustained the grievant's suspension on grounds other than
those set forth in the Agency's notice of discipline, and therefore, the
grievant was not afforded sufficient notice in violation of 5 U.S.C. §
7503(b). The Authority rejected these claims.
The Authority explained that the requirements of section 7503(b)
give an employee against whom disciplinary action is imposed the opportunity
to defend against the charge. Examining the record in this case, the Authority
concluded that the grievant was clearly on notice that he was facing possible
suspension because foodstuffs under his control were removed by another
employee outside of his service area. The Authority determined the Arbitrator's
factual finding that the grievant had not properly secured and protected
items supported sustaining the suspension, because it established the grievant's
association with the removal of the coffee. Further, the Authority, in
assessing due process rights under section 7503(b), found that Federal
employees suspended for 14 days or less are not entitled to post-suspension
proceedings, and that such due process rights attach only to predecisional
proceedings. The Authority concluded that, in this case, it was not clear
whether the Union's exceptions involved a claim that the grievant was denied
due process at the predecisional or post-decisional stage. However, the
Authority noted that it would reach the same result in either event, because
the grievant was provided with sufficient notice to defend against the
charge. Thus, the Authority concluded that the Union failed to establish
that the grievant was denied due process under section 7503(b).
In General Services Administration and American Federation
of Government Employees, Council of GSA Locals, Council 236, 54 FLRA
1582 (1998) (GSA), the Authority set aside an arbitrator's award finding
that the Agency's refusal to bargain over the Union's proposal violated
the parties' Memorandum of Understanding (MOU), which required the Agency
to negotiate over the subjects set forth in section 7106(b)(1). The Arbitrator
determined that the subject of the proposal -- contracting out -- concerned
the methods and means of performing work within the meaning of section
7106(b)(1), and consequently, the Agency's refusal to bargain over the
proposal violated the parties' agreement. Applying the test for determining
whether a proposal concerns the methods and means of performing work, the
Authority rejected the Arbitrator's determination that proposals about
contracting out concern the "methods" or "means" of performing work. The
Authority concluded that such proposals "do not relate to the way in which
an agency performs its work or the tools or devices that may be used in
accomplishing it." Rather, as "such proposals relate to an agency's decision-making
process concerning by whom the work is best performed -- either in-house
by agency employees or by employees outside of an organization[,]" the
Authority concluded that the Arbitrator's finding of a MOU violation was
deficient, because the Agency had not refused to bargain over a section
7106(b)(1) matter.
COURT CASES
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Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 98-5170 (D.C.
Cir. Oct. 6, 1998), seeking review of a district court decision (No. 97-1301)
(D.D.C. Apr. 15, 1998). The D.C. Circuit summarily affirmed the district
court's dismissal of an appeal of the General Counsel's refusal to issue
ULP complaints and release information under the Freedom of Information
Act. The district court determined that it lacked jurisdiction over the
ULP claims and that the FLRA had properly withheld agency documents under
FOIA Exemptions 5, 7(C), and 7(D).
FSIP FINAL ACTIONS
These summaries of selected cases were prepared by FLRA
staff for guidance and informational purposes only, and may not be used
as an official position of, or interpretation by the Federal Service Impasses
Panel. The term "Statute" throughout the text refers to the Federal Service
Labor-Management Relations Statute §§7101-7135.
Duration of Caucus Sessions
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Department of Energy, Oak Ridge, Tennessee and Local 268, Office and
Professional Employees International Union, AFL-CIO, Case No. 98 FSIP
161 (November 2, 1998), Panel Release No. 414 (Arbitrator's Opinion
and Decision). The case concerned negotiations over a ground rule on
the duration of caucuses during negotiations for a successor collective
bargaining agreement. The Panel designated staff to engage in expedited
arbitration by teleconference to resolve the parties' dispute. Under this
procedure, the designated Panel representative is required to issue a decision
within 2 workdays of the close of the hearing. The Arbitrator issued an
Opinion and Decision ordering adoption of the Union's proposal, which establishes
a standard of reasonableness for the length of caucus sessions.
Compressed Work Schedule
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Department of Veterans Affairs, Portland Veterans Administration Medical
Center, Portland, Oregon and Local 2157, American Federation of Government
Employees, AFL-CIO, Case No. 98 FSIP 145 (December 4, 1998), Panel
Release No. 415 (Decision and Order). The parties' impasse involved a Union
proposal to establish a compressed work schedule (CWS) of six 12-hour days
and one 8-hour day per pay period for nurses on two wards. The sole issue
before the Panel was whether the findings on which the Employer based its
determination not to establish the proposed CWS were supported by evidence
that the schedule would cause an adverse agency impact under the Federal
Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C.
§§ 6120-6133. The Panel directed the parties to participate in
an informal conference with Panel Member Dolly M. Gee. When the parties
were unable to resolve their dispute during the course of the informal
conference, Ms. Gee reported to the Panel on the status of the dispute,
including the parties' final positions and her recommendation for resolving
the matter. After considering the record before it, the Panel found that
the Employer had not met its statutory burden to show that the proposed
CWS is likely to diminish service to the public, reduce productivity, or
increase costs, and ordered the parties to negotiate over the Union's proposal.
Employer Rights, Matters for Consultation and Negotiation, Awards, and
Negotiated Grievance Procedure Exclusions
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Department of the Air Force, Langley Air Force Base, Langley AFB, Virginia
and Local R4-26, National Association of Government Employees, SEIU, AFL-CIO,
Case No. 98 FSIP 146 (December 4, 1998), Panel Release No. 415
(Decision
and Order). The Panel directed the parties to participate in an informal
conference with staff to assist them in resolving a dispute over parts
of four articles to be included in a successor agreement. When the parties
failed to resolve all but part of one of the disputed issues during the
informal conference, the Panel considered their final offers and the representative's
recommendations for resolving the impasse. Thereafter, the Panel ordered
the parties to adopt the Employer's proposal to include a provision paraphrasing
section 7106(b) of the Statute in the "Employer Rights" article. The Panel
further ordered that the parties adopt the Union's proposal to delete a
section describing the scope of bargaining from an article addressing "Matters
Appropriate for Consultation and Negotiation." With respect to an article
relating to performance awards, the Panel ordered adoption of compromise
language that requires, subject to budgetary constraints, mandatory awards
within specified ranges for employees receiving performance ratings of
very good or outstanding. To resolve the parties' dispute over exclusions
from the negotiated grievance procedure, the Panel ordered adoption of
a modified version of the Union's proposal. The modified version ordered
excludes terminations of temporary promotions for reasons other than performance
or conduct from consideration under the negotiated grievance procedure
but does not exclude complaints over granting performance awards.
Overseas Rotation Policy
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Department of Justice, Immigration and Naturalization Service, Washington,
D.C. and National Immigration and Naturalization Service Council, American
Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 162 (December
4, 1998), Panel Release No. 415 (Decision and Order). The Panel
directed the parties to participate in an informal conference with staff
to assist them in resolving a dispute over the time-frame for the return
of employees currently stationed in Canada to positions in the U.S. When
the parties failed to resolve the issue during the informal conference,
the Panel considered their final offers and the representative's recommendations
for resolving the impasse. After considering the full record, the Panel
ordered the parties to adopt the following compromise wording: Employees
with 10 or more years in Canada can request one 18-month extension and
a second 1-year extension of their overseas tour; employee with 5 but less
than 10 years can request one 18-month extension; and employees with 3½
to 5 years can request a 1-year extension. Approval of the requests will
be granted unless the employee has a disciplinary or performance problem.
Ground Rules for Negotiations
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Department of Justice, U.S. Attorney's Office, District of New Jersey,
Newark, New Jersey, and Local 2149, American Federation of Government Employees,
AFL-CIO, Case No. 98 FSIP 168 (December 11, 1998), Panel Release No.
415 (Opinion and Decision). The Panel designated staff to engage in mediation-arbitration
by telephone in order to resolve the dispute over three ground rules for
successor collective bargaining agreement negotiations. Following the mediation
portion of the procedure, the parties remained at an impasse over only
one issue addressing tentative agreements reached during bargaining. In
his decision, the Arbitrator ordered adoption of the Union's proposal that
the parties initial and date tentative agreements on an article-by-article
basis, and reopen those agreements only by mutual consent.
Smoking Policy
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Department of the Army, Army Corps of Engineers, Memphis District, Memphis,
Tennessee and Local 259, National Federation of Federal Employees,
Case No. 98 FSIP 159 (January 22, 1999), Panel Release No. 416 (Decision
and Order). In this dispute arising from local bargaining over an Agency-wide
"no smoking" policy, the Panel issued an Order to Show Cause why wording
previously adopted by the Panel in similar circumstances should not also
be mandated to settle the parties' impasse. Upon consideration of the parties'
responses to that Order, the Panel determined that the record was not sufficient
and directed the parties to submit additional statements and documentary
information. After considering the parties' responses to the Order, final
offers, and additional submissions, the Panel directed the parties to adopt
the wording of its Order with respect to all areas except for the Administration
Building and on vessels. Essentially, smoking would be prohibited indoors
and limited to Employer-designated outdoor smoking areas; however, the
status quo would be maintained with respect to smoking in an existing indoor
smoking room in the Administration Building and on the decks of vessels
except in areas posted as "no smoking."
Noise Abatement for Computer Printers
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Department of the Treasury, Internal Revenue Service, Brooklyn District
Office, Brooklyn, New York and Chapter 53, National Treasury Employees
Union, Case No. 98 FSIP 121 (January 28, 1999), Panel Release No. 416
(Decision
and Order). The Panel determined that the impasse, which arose from
bargaining over noise abatement measures for computer printers, should
be resolved on the basis of a single written submission from the parties.
After considering the parties' submissions, the Panel determined that the
parties should adopt a modified version of the Union's proposal. The provision
adopted requires that if the assistance of the General Services Administration
(GSA) is needed to implement the parties' plan to erect acoustical screens
or relocate printers, the Employer will make reasonable efforts to secure
GSA's cooperation within 45 calendar days.
Time-frame for Requesting Annual Leave
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Department of the Army, U.S. Army Signal Center, Fort Gordon, Fort Gordon,
Georgia and Local 2017, American Federation of Government Employees,
AFL-CIO, Case No. 98 FSIP 163 (January 28, 1999), Panel Release No. 416
(Decision and Order). The Panel directed the parties to participate
in an informal conference with Panel staff to assist them in resolving
a dispute over five issues that arose during negotiations over a successor
agreement. When the parties failed to resolve one of the five issues in
dispute during the informal conference, the Panel considered their final
offers and the staff recommendations for resolving the impasse over the
remaining issue. Thereafter, the Panel ordered the parties to adopt the
Union's proposal, which will maintain the status quo and require employees
to submit non-emergency leave requests "normally in advance."
FSIP SETTLEMENT CORNER
ABOUT THIS COLUMN
In addition to the issuance of final actions (i.e.,
Decisions and Orders by the full Panel and Arbitrator's Opinions and Decisions
by its designated representatives), the Panel also fulfills its statutory
obligations by assisting the parties in their efforts to achieve voluntary
settlements. From October 1, 1998 through January 31, 1999, Panel Members
were successful in obtaining complete settlements in the following cases.
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In U.S. Army Engineer, Waterways Experiment Station, Vicksburg, Mississippi
and Local 3310, AFGE, AFL-CIO, Case Nos. 99 FSIP 1 and 2 (closed December
18, 1998), the parties separately filed requests for assistance in a dispute
that concerned 23 issues arising from negotiations over the Science and
Technology Laboratory Personnel Management Demonstration Project Plan.
The Panel directed that Panel Member Bonnie Prouty Castrey conduct an informal
conference with the parties to resolve the issues at impasse. The parties
reached voluntary agreements on all the issues.
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In Department of Health and Human Services, Public Health Service, Indian
Health Service, Navajo Area, Window Rock, Arizona and Navajo Nation Health
Care Employees, Local 1376, Laborers' International Union of North America,
AFL-CIO, Case No. 99 FSIP 6, (closed January 26, 1999), the Union filed
a request for assistance in resolving a variety of issues that arose in
negotiations over a collective bargaining agreement. During a mediation-arbitration
conducted by Panel Chair Betty Bolden, they reached a voluntary settlement
on all the disputed items.
GENERAL COUNSEL'S ADVICE TO REGIONAL DIRECTORS
ABOUT THIS COLUMN
The FLRA's General Counsel, Joseph Swerdzewski, has,
among other statutory duties, final authority over the issuance of complaints
under the Federal Service Labor-Management Relations Statute. The General
Counsel's approach in deciding whether to issue a complaint in a particular
set of circumstances influences the direction of the law. For that reason,
and to keep the parties informed of the policies being pursued by the Office
of the General Counsel (OGC), the Bulletin highlights selected cases that
were considered by the OGC pursuant to requests for case-handling advice
from Regional Directors, and summarizes guidance issued on novel legal
issues. The interpretations of the Statute relied upon in the advice and
guidance represents the OGC's position, and are not an official position
of, or interpretation by, the Authority.
THE RELATIONSHIP BETWEEN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE AND EQUAL EMPLOYMENT OPPORTUNITY MATTERS
Regional Directors are frequently required to make decisions on the merits
of unfair labor charges where the subject matter of the dispute involves
the EEO process. This memorandum serves as guidance to the Regional Directors
in investigating, resolving, litigating and settling unfair labor practice
charges where there are EEO implications. It also is intended to assist
parties in improving their labor-management relationship by avoiding litigation
and facilitating collective bargaining.
The Guidance describes how rights and obligations under the Statute
are applicable to EEO matters and processing EEO complaints, and where
appropriate, suggests strategies to avoid unfair labor practice and contract
disputes from arising in the context of processing of an EEO complaint.
In particular, the Guidance discusses that many EEO matters in the Federal
service are within the scope of bargaining under the Statute, noting particularly
alternative dispute resolution (ADR) programs and EEO case processing procedures.
The Guidance also explores the duty to bargain over changes in conditions
of employment that are made as a result of terms contained in an EEO settlement
agreement, identifies the situations where a union has an institutional
right to be represented at meetings where EEO complaints are the topic
of discussion, and explores a union's right to EEO-related information
under section 7114(b)(4) of the Statute, the relationship between protected
statutory activity and processing EEO complaints, and the responsibilities
that the Statute imposes upon an exclusive representative when representing
an employee as the union in an EEO complaint and when otherwise representing
the bargaining unit in EEO matters. To assist the parties in recognizing
these rights and obligations and their application, the Guidance includes
a chart summarizing the statutory rights covered by this Guidance and their
application to EEO complaints and other EEO matters. Copies of this Guidance
Memorandum may be downloaded from the FLRA's web site at: www.flra.gov.
SECTION 7111(f)(1) AND WHETHER A LABOR ORGANIZATION MAY BE SUBJECT TO CORRUPT
INFLUENCES
The advice in this case follows the advice given in a case summarized in
Vol. 7, No. 2 of the FLRA Bulletin concerning processing § 7111(f)
claims of corrupt influences. In the previous advice, the General Counsel
discussed two Authority decisions which concluded that there is a presumption
that a labor organization is free from corrupt and anti-democratic influences
if the union is subject to governing requirements that meet the specified
standards in section 7120(a)(1) through (a)(4) of the Statute. When a labor
organization files a petition, its signature certifies that it has submitted
to the Department of Labor (DOL) and to the activity/agency in the case,
in compliance with section 7111(e), a roster of its officers and representatives,
a copy of its constitution and bylaws, and a statement of its objectives.
This creates a rebuttable presumption that the labor organization is free
from corrupt influences.
In this case, the Union filed a petition and a majority of the votes
in the ensuing election favored the Union as the exclusive representative.
No party challenged the status of the Union and there were no allegations
that the Union was subject to corrupt influences. After the election, but
before the certification of the Union as the exclusive representative,
the Region learned that the Union and its President had been named defendants
in a complaint brought by the DOL in Federal district court alleging violations
of the Employee Retirement Income and Security Act of 1974 (ERISA), 29
U.S.C. §§ 1001 et seq., as amended. In responding to the Region's
Order to Show Cause why the Region should not suspend the issuance of the
Certification of Representative pending completion of court proceedings,
the Union acknowledged that it is a defendant in the proceeding brought
by the DOL but that DOL's unproven allegations do not establish that the
Union is subject to "corrupt influences."
The General Counsel noted that the Authority has not comprehensively
defined what constitutes "corrupt influences" within the meaning of section
7111(f)(1) nor does the legislative history of section 7111(f)(1) or 7120
define the term. Thus, the General Counsel applied the plain and ordinary
definition of a "corrupt influence," and concluded that if true, the nature
and scope of the alleged ERISA violations engaged in by the Union and its
President would fit within the definition of a "corrupt influence." In
this regard, the DOL has alleged, among other things, that the defendants
have embarked on an illegal money-making scheme by setting up and operating
benefit plans to their personal benefit in violation of ERISA requirements.
The DOL maintains that the Union is not legitimate and that the Union President
established it as a front to assist in the collection of monies from the
Trusts. In addition, the Judge presiding over the district court case has
found that the DOL has made a preliminary showing of merit to its claims
and has issued a preliminary injunction. The General Counsel also noted
that several of the defendant trustees are the targets of a possible criminal
investigation. Under these circumstances which involve serious, substantial
and credible claims of corrupt conduct, the General Counsel concluded that
reasonable cause has been established to rebut the presumption of freedom
from corrupt influences. Further, the Union has not presented any evidence
or argument to establish that it is, in fact, free from corrupt influences.
Thus, based on the facts of the case, particularly the imposition of a
preliminary injunction, the General Counsel directed the Region not to
certify the Union and, absent withdrawal, to dismiss the petition.
THE APPLICATION OF RIGHTS UNDER THE STATUTE TO TITLE 38 EMPLOYEES AT THE
DEPARTMENT OF VETERANS AFFAIRS (DVA)
Guidance was issued to provide Regional Directors containing a decisional
analysis to follow in processing ULP charges filed by professional employees
employed by the Department of Veterans Affairs (DVA) who are governed by
Title 38 of the U.S. Code and who also seek to exercise rights under the
Statute. The decisional analysis, based on an examination of relevant Authority
and U.S. Circuit Court decisions, outlines the steps to determine whether
a right otherwise encompassed by the Statute is superseded by a condition
of employment established pursuant to the Title 38 statutory scheme.
Summary of Applicable Statutory Scheme
The pertinent provisions Title 38 are set forth at sections 7401, 7421,
7422 and 7403. Under section 7401 of Title 38, the DVA Secretary has authority
to appoint personnel--hybrid (e.g., licensed practical nurses, other therapists)
and non-hybrid employees (e.g., doctors, nurses)--necessary for the professional
medical care of veterans. Section 7421 of the DVA Statute grants the DVA
Secretary exclusive discretion to establish regulations relating to the
working conditions of certain professional personnel without regard to
the provisions of Title 5. In 1991, Congress amended the DVA Statute to
give certain collective bargaining rights to DVA employees in section 7422,
subject to three exceptions set forth at subsections (b)-(d). In relevant
part, subsection (b) states that such collective bargaining may not cover
matters relating to (1) professional conduct or competence; (2) peer review;
or (3) employee compensation. Further, under subsection (d), the DVA Secretary
decides whether an issue concerns one of these matters. Section 7403(f)(3)
grants DVA hybrid employees rights under Title 5 concerning adverse actions,
disciplinary actions, and grievance procedures.
Decisional Analysis
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Is there a DVA regulation in existence which purports to address the
right which is the subject of the ULP charge?
In the General Counsel's view, a statutory right will only be overridden
if, in fact, a DVA regulation governs the matter in dispute. Absent a regulation,
the Region finds that the DVA Secretary has not exercised the authority
under section 7421 and the section 7422(d) preclusion is therefore inapplicable.
During an investigation of a charge involving Title 38 employees, the Regions
request that the charged party produce any such regulation.
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If a regulation exists, was it prescribed pursuant to the DVA Secretary's
section 7421(a) authority?
Only if a regulation is issued under the DVA Secretary's authority
under section 7421 will the Authority's jurisdiction be precluded. Therefore,
when a charged party alleges that a DVA regulation bars the exercise of
a statutory right under section 7422(d), the Region requests evidence establishing
that the regulation was issued pursuant to the authority of the Secretary
under section 7421.
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If a properly issued regulation exists, does the regulation conflict
with the exercise of the statutory right at issue?
In the General Counsel's view, relying upon case precedent (citations
below), a determination must be made as to whether the regulation asserted
to bar the existence of a statutory right indeed conflicts with that right.
When the charged party produces a regulation issued pursuant to section
7421 authority and which is asserted to cover section 7422(b) matters,
the Regions request the charged party to explain why the statutory right
is inconsistent with the regulation.
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If a properly issued regulation exists, has the Secretary made a section
7422(d) determination that the issue which is the subject of the ULP charge
concerns matters or questions arising out of one of the three matters under
section 7422(b)?
Even if a regulation has been prescribed under the Secretary's section
7421 authority and it conflicts with a statutory right which is the subject
of a ULP charge, the FLRA is not barred from asserting jurisdiction unless
the Secretary or his designee has asserted under section 7422(d) that the
matter concerns a section 7422(b) matter. Accordingly, when the charged
party produces a regulation issued pursuant to section 7421 authority,
explains why the statutory right is inconsistent with the regulation, and
asserts that the regulation covers a section 7422(b) matter, the Regions
request the charged party to produce evidence establishing that a section
7422(d) determination has been made.
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When can the Title 38 defense be raised?
There is no restriction when a Title 38 defense can be raised although
communication of such a defense to the charging party prior to the filing
of a charge is preferable.
Hybrid Employees
In the General Counsel's view, absent the applicability of section 7403(f)(3),
hybrid employees are subject to the same Title 38 restriction as non-hybrid
employees and the decisional analysis discussed above is the same.
Relevant Case Law concerning the rights of Title 38 employees under the
Statute
Department of Veterans Affairs, Veterans Affairs Medical Center, Washington,
D.C., 53 FLRA 822 (1997)
Department of Veterans Affairs, Veterans Affairs Medical Center,
Hampton, Virginia, 51 FLRA 84 (1995), affirmed on reconsideration,
51 FLRA 1741 (1996)
Department of Veterans Affairs, Veterans Affairs Medical Center,
Jackson, Mississippi, 49 FLRA 71 (1994), affirmed sub nom. National
Federation of Federal Employees, 73 F.3d 390 (D.C. Cir. 1996)
Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir.
1993)
GENERAL COUNSEL'S SETTLEMENT CORNER
ABOUT THIS COLUMN
In accordance with the OGC's Settlement Policy, parties
have entered into numerous novel settlement agreements resolving pending
ULP cases. This policy, issued in conjunction with the Prosecutorial Discretion
Policy, provides Regional Directors with the flexibility to develop, with
the parties, innovative remedies that maximize the purposes and policies
of the Statute, resolve the specific issues and meet the needs of the parties.
To encourage parties to jointly resolve disputes consistent with principles
and objectives set forth in the Settlement Policy, selected provisions
of recent settlement agreements follow. The parties are not identified
in order to maintain confidentiality.
Agency Posts Notice Agreeing to Comply with Arbitration Award Making an
Employee Whole and to Pay Charging Party's Attorney Fees
After issuance of complaint and notice of hearing, the parties agreed that
the Agency would post a notice agreeing to comply with an arbitrator's
award making an employee whole and to fully comply with future arbitration
awards. In addition, among other things, the Agency agreed to: (1) restore
to the employee the cost of life insurance premiums taken from pay during
a certain period of time; (2) pay the employee interest on backpay awarded
by an arbitrator; (3) restore sick leave balance for time not credited;
(4) restore certain annual leave balance; (5) not strike from a list of
arbitrators to preside at an arbitration of an employee's suspension; (6)
rescind all performance evaluation reports prepared by a certain supervisor;
(7) not allow a certain supervisor any supervisory control over a certain
employee; (8) not rely on the terms of the settlement agreement as a waiver
of any right the employee may have in any subsequent proceeding contesting
the placement of a team leader or supervisor in the chain of command or
in any subsequent proceeding concerning future assignments or personnel
actions taken against the employee; (9) make all contributions to an employees's
Thrift Savings Plan for a determined period of time; and (10) pay the Charging
Party's attorney fees of $2,600
Agency Agrees to Let Employees Resume Alternative Work Schedule (AWS),
to Provide Notice of Intent to Eliminate AWS and to Provide the Union with
an Opportunity to Bargain over the Agency's Elimination of AWS
After issuance of complaint and notice of hearing, the parties agreed that
the Agency would allow unit employees to choose to resume an AWS. If the
Agency should desire to eliminate AWS for those employees who exercise
their option to resume AWS, the Agency will provide the Union with notice
of that decision and will commence bargaining within five days of the Union's
receipt of the notice.
Union Agrees to Post Notice Agreeing not to Use Membership as Criteria
in Recommending a Bargaining Unit Employee for a Non-competitive Promotion
In a post-complaint settlement agreement, the parties agreed that the Union
would post a notice to all employees stating that it would not use membership
as criteria in recommending a bargaining unit employee for a non-competitive
promotion to a paralegal specialist position. The Union also agreed to
represent the interests of all employees in the unit without discrimination
and without regard to labor organization status or membership.
Agency Agrees to Provide the Union with Forms, Logs, Position Descriptions,
and Titles, and to Respond in a Timely Manner to Requests for Data Made
Pursuant to the Statute
In a settlement agreement after issuance of complaint and notice of hearing,
the parties agreed that the Agency would provide the Union with information,
including certain forms, logs and position descriptions and titles to which
it is entitled under the Statute. The Agency also agreed not to refuse
to respond in a timely manner to requests for data made pursuant to the
Statute.
Agency Agrees to Restore Break Room and to Bargain Over Decision to Eliminate
Its Use
After issuance of complaint and notice of hearing, the parties agreed that
the Agency would post a notice to all employees stating that it would not
unilaterally change conditions of employment by eliminating a break room
used by employees without first affording the Union an opportunity to negotiate
with respect to the decision to eliminate the break room. The Agency also
agreed, to the extent that it has not already been accomplished, to restore
the break room for use by the employees unless the Union agrees to use
an alternative room.
Agency Agrees to Compensate Employee for 12 Hours of Absent Without Leave
(AWOL), to Remove All References to AWOL Charges from the Time and Attendance
Records, to Remove from the Employee's Personnel File a Charge in a Letter
of Admonishment 1 Year from the Date of its Issuance, and to Meet with
the Union to Clarify Official Time Procedures
In a pre-complaint settlement agreement, the parties agreed that within
30 days after the signing of the agreement, they would clarify the procedures
to observe in making requests for official time and reduce their understanding
to writing. The Agency also agreed to remove from an employee's Official
Personnel File all references to AWOL charges and to correct the employee's
time and attendance records. Specifically, the Agency will sanitize two
letters of admonishment to delete references to AWOL charges. The Agency
agreed to remove the remaining charge in the letters of admonishment one
year after their dates of issuance. Finally, the Agency will compensate
the employee for 12 hours for which she was charged AWOL.
UNILATERAL SETTLEMENT AGREEMENTS
The following settlement agreements were approved by a
Regional Director applying the OGC's Settlement Policy over the objection
of the charging party because the settlement effectuated the purposes and
policies of the Statute:
Agency Agrees Not to Fill Positions While a Negotiation Impasse over Multiskilling
Is Pending Resolution Before the Federal Service Impasses Panel (FSIP)
In a post-complaint settlement agreement, the Agency agreed to post a notice
to all employees stating that it will not unilaterally fill multiskilled
positions with bargaining unit employees represented by the Union while
a negotiation impasse over multiskilling is pending resolution before the
FSIP. The Agency further agreed to reconsider all selections of bargaining
unit employees for multiskilled positions between certain dates to ensure
that all selections were consistent with a FSIP Decision and Order and
to select a unit employee who was not selected for the multiskilled position
and to make that employee whole for any losses incurred if it is determined
that the person would have been selected had the provisions of FSIP's Order
been applied correctly.
Agency Agrees to Send Letters to Criminal Investigation Division and to
the Union Concerning Union Representational Rights under Section 7114(a)(2)(B)
In a post-complaint settlement agreement, the Agency agreed to send a letter
to the Agency's Criminal Investigation Division (CID) stating that bargaining
unit employees have a right to union representation under section 7114(a)(2)(B).
If requested by a bargaining unit employee who reasonably believes that
discipline may occur, either before or during the questioning, the Agency
stated that the CID agent will cease questioning until such time as the
representative is present. In a separate letter to the Union, the Agency
acknowledged that during a criminal investigation involving a bargaining
unit employee a CID agent wrongfully denied the employee's request for
representation and continued questioning the employee. The Agency assured
the Union that in the future CID agents will comply with section 7114(a)(2)(B)
and the Statute as a whole when conducting an investigation.
Erratum: |
On page 13 of Vol. 7 No. 3 of the FLRA Bulletin, right column,
substitute the following sentence as the last full sentence of the column:
"Absent a contractual limitation on the application of the covered by doctrine,
the matter in dispute in this case would have been ‘covered by' the contract
and there would not have been a statutory duty to bargain over the change
at issue." |