Vol. 6 No. 2
February 1, 1997 - May 31, 1997

The FLRA Bulletin

The Federal Labor Relations Authority 607 14th Street, N.W.
Washington, D.C. 20424-0001

FLRA PROPOSES ULP REG CHANGES

CONTENTS
News to Know
Update on CADR
Authority Cases
Court Cases
FSIP Final Actions
General Counsel Advice to Regional Directors
General Counsel's Settlement Corner

News to Know

FLRA ISSUES PROPOSED ULP REG REVISIONS

The FLRA published proposed revisions to its unfair labor practice (ULP) complaint regulations in the Federal Register on May 23.

These proposed regulations are intended to facilitate dispute resolution, clarify the issues to be adjudicated, provide more flexibility to the participants in the ULP process, simplify the filing and service requirements, and streamline ULP proceedings. In addition to requesting written comments, which were requested by June 30, the FLRA held focus groups in Chicago and Washington, D.C. to receive comments about the proposed regulations.

"Our goals in revising these regulations are to maximize early and constructive resolution of ULP complaints, and make it easier for parties to understand and comply with our ULP procedures," said Chair Phyllis Segal. "New proposed provisions are aimed at encouraging settlement discussions and sharpening the issues that need to be litigated. In addition, the regulations have been reorganized to ensure the parties know what they need to do and when they need to do it."

To make the process easier for parties in ULP proceedings, the revisions strive for consistency, to the extent possible, with regulations issued by other agencies adjudicating disputes involving federal agencies and employees, such as the Merit Systems Protection Board and the Equal Employment Opportunity Commission. To encourage alternative dispute resolution, the proposed regulations incorporate the FLRA's successful ALJ settlement project begun two years ago, which has decreased last minute "courthouse steps" settlements, saving time and money for all parties. In addition, the new regulations would allow an ALJ to issue a bench decision if both parties agree, and specify the procedures for filing a summary judgment motion. The proposed regulations also allow for fax filing of most motions.

FEDERAL LABOR RELATIONS AUTHORITY MEMBER TONY ARMENDARIZ RESIGNS

Tony Armendariz tendered to the President his resignation from the Federal Labor Relations Authority (FLRA), effective March 15, 1997. Member Armendariz was originally appointed to the Authority in 1989 and was reappointed to a 5-year term ending in July of 1997. Member Armendariz returned to his home in San Antonio, Texas.

Prior to his nomination in 1989, he served as General Counsel for the University System of South Texas. For four years, he was Assistant Attorney General for the State of Texas and, prior to that, District Counsel for the Houston District Office of the Equal Employment Opportunity Commission. He and his family lived in Venezuela for over 10 years where he was associated with a law firm and later the operations of a subsidiary of Dart Industries. Mr. Armendariz holds a degree in Business Administration from Trinity University, a J.D. from St. Mary's University School of Law and a Masters of Comparative Law from Southern Methodist University. He also studied law at the Universidad Católica Andrés Bello in Caracas, Venezuela.

GENERAL COUNSEL ISSUES GUIDANCE ON THE IMPACT OF COLLECTIVE BARGAINING AGREEMENTS ON THE DUTY TO BARGAIN AND OTHER STATUTORY RIGHTS

General Counsel Joseph Swerdzewski issued guidance to the FLRA Regional Directors on the impact of collective bargaining agreements on the duty to bargain and other statutory rights. The memorandum provides a comprehensive overview of the General Counsel's views on issues arising from the impact of collective bargaining agreements on the duty to bargain during the term, and upon the expiration, of those agreements. (See page 11 for further details.)

"This memorandum provides guidance to the Regional Directors in investigating, deciding and resolving disputes where a collective bargaining agreement affects the matters in dispute," General Counsel Swerdzewski said. " The distinction between rights granted under the Statute and rights and benefits obtained through collective bargaining is significant, but is often misunderstood. In view of the importance of understanding how contracts can affect statutory rights, I have issued this guidance and made it available to the public to set forth my views and to help the parties better understand the legal doctrines that have been developed, and thereby avoid disputes."

The guidance and an executive summary is available at www.flra.gov or by faxing a request to (202) 482-6608.

THOMAS R. COLOSI AND DAVID W. GEISS APPOINTED AS MEMBERS OF THE FOREIGN SERVICE IMPASSE DISPUTES PANEL

Phyllis Segal, Chair of the FLRA, appointed Thomas R. Colosi and David W. Geiss to three year terms on the Foreign Service Impasse Disputes Panel (the Panel). Mr. Colosi will serve as Chair of the Panel and Mr. Geiss will serve as the Department of Labor representative on the Panel.

Mr. Colosi is the Vice President of the Office of National Affairs of the American Arbitration Association. He has extensive experience as an advocate and as a neutral in a variety of dispute settlement processes. Mr. Colosi also trains advocates and neutrals in negotiation, mediation, mini-trials, fact-finding, and arbitration. Mr. Colosi has written extensively on dispute resolution training techniques and negotiations. On and Off the Record: Colosi on Negotiation is his most recent book, published in 1993.

Mr. Geiss is the Chief, Reports and Disclosure Section, Office of Labor-Management Standards, Employment Standards Administration at the Department of Labor. He joined the Labor Department as the Executive Assistant to the Assistant Secretary for the Office of the American Workplace, after working 12 years as the Chief of Staff to Congressman William D. Ford of Michigan. In the House of Representatives, Mr. Geiss worked on many issues related to labor-management cooperation, as well as educational programs directed at the workforce of the 21st century.

The Panel assists in resolving impasses arising from collective bargaining over conditions of employment affecting Foreign Service personnel in the State Department, the U.S. Information Agency, the Agency for International Development, and the Departments of Agriculture and Commerce. The Foreign Service Act requires the Chair of the FLRA to appoint to the five-member Panel individuals who are knowledgeable in the field of labor-management relations or the conduct of foreign affairs. The Panel must be composed of two members of the Foreign Service, one member of the Federal Service Impasses Panel, one individual employed by the Department of Labor, and one public member who does not hold any other office or position in the Government. All members serve on a part-time basis.

Other members of the Panel are Betty Bolden, Chair of the Federal Service Impasses Panel; George Lannon, representing the State Department; and Dorothy Young, representing the Agency for International Development.

OFFICE OF GENERAL COUNSEL MANUALS

These policy and guidance memoranda are provided to the Regional Directors for their use in processing cases. The interpretations of the Statutes relied upon in these memoranda represents the OGC's position, and is not an official position of, or interpretation by, the Authority.

The manuals are available through the Government Printing Office, which can be reached at (202) 512-1800.

Guide for Hearing Officers in Representation Proceedings

Issued March 1996

The guidance for hearing officers is intended to provide procedural and operational guidance to the OGC staff in conducting hearings in Authority representations cases, and should be used in conjunction with the Representation Case Handling Manual. The guide describes techniques for conducting the hearing and developing a complete record. The guide consists of steps to be considered and techniques available for utilization by the Hearing Officer in preparing and conducting the hearing. The guide, which includes citations to applicable representation cases, is useful to all practitioners in representation case hearings.

Representation Case Handling Manual

Issued March 1997

The Representation Case Handling Manual provides procedural and operational guidance for OGC staff in processing representation cases. The manual provides assistance to parties in understanding the representation process and the regulatory requirements. It is intended to be used both by OGC staff and practitioners in processing representation cases. The manual consists of two parts: Part One contains substantive information providing policy guidance, checklists and techniques for processing representation petitions and Part Two consists of a cross-reference table that cross-references by subject matter the Statute, the regulations, and pertinent sections of the manual. The manual also includes flow charts, appendices, forms and figures.

Update on Collaboration and Alternative Dispute Resolution Program (CADR)

CADR is continuing to assist labor and management throughout the Federal sector. In St. Louis, FLRA staff provided collaboration and ADR training at a session sponsored by the OGC and AFGE St. Louis Area Council No. 245. In Hawaii, OGC staff conducted a regional training seminar for labor and management. In Massachusetts, FLRA joined with EEOC and MSPB in hosting a training program which included sessions on representation and ULP issues, partnership, and OGC Facilitation, Intervention, Training and Education (FITE) services.

FLRA staff also presented briefings and workshops at conferences, including the SFLRP Annual Symposium, the Federal Managers' Association Annual Conference, and the National Partnership Council.

The following illustrates some of the assistance provided to customers nation-wide:

Intervening in Pending Disputes

Training

Facilitating Labor-Management Relationships

Authority Cases

The case summaries 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 or Federal Service Impasses Panel. The term "Statute" throughout the text refers to the Federal Service Labor-Management Relations Statute §§7101-7135.

Representation Cases

In United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia and American Federation of Government Employees, Local 53, AFL-CIO, et al, 52 FLRA No. 97, the Authority established the following framework for proceeding when, after reorganization, both successorship and accretion principles are claimed to apply to the same employees. First, the Authority will determine whether employees who have been transferred are included in, and constitute a majority of, a separate appropriate unit in the gaining organization under section 7112(a) of the Statute. The outcome of this inquiry governs whether successorship or accretion principles will be applied next. If it is determined that the transferred employees are not included in, and constitute a majority of employees in, a separate appropriate unit in the gaining organization, then the Authority will apply its long-established accretion principles. If, on the other hand, this initial determination is that the transferred employees are included in a separate appropriate unit in the gaining organization under section 7122(a), and if they constitute a majority of the employees in that unit, the Authority will apply the remainder of the successorship factors set forth in Naval Facilities Engineering Service Center, Port Hueneme, 50 FLRA 363 (1995) (Port Hueneme), with respect to the unit determined to be appropriate. The outcome of the Port Hueneme analysis will determine whether the gaining organization is a successor for the purposes of collective bargaining with the labor organization(s) that represented the transferred employees at their previous employer.

In National Association of Government Employees/Service Employees International Union, Local 5000, AFL-CIO-CLC and Service Employees International Union, AFL-CIO-CLC and Department of Veterans Affairs, Washington, D.C., 52 FLRA No. 109 (Member Wasserman dissenting), the Authority affirmed the Regional Director's decision and order dismissing the petition for amendment of certification. In so doing, the Authority addressed the agreement of the two affected unions to remove employees from one union's unit and to add them to the other union's unit. The Authority rejected the unions' claim that the agreement was dispositive in this case because the agreement involved two consolidated units in the same agency for which the same national union had ultimate jurisdiction. The Authority stated that in order to find that the agreement was dispositive, it would be necessary to create an exception to existing representation case policies. In this regard, the Authority concluded that the circumstances in this case did not warrant such an exception because a finding that the union's agreement was dispositive would impermissibly interfere with the fundamental rights of unit employees to determine their exclusive representation. The Authority further stated that granting the petition would establish a form of voluntary recognition in which both the Authority's process and the employees' votes would be unnecessary.

Unfair Labor Practice Cases

In Social Security Administration and National Treasury Employees Union and American Federation of Government Employees, 52 FLRA No.114, the Authority, on remand from the United States Court of Appeals for the District of Columbia Circuit (NTEU v. FLRA, 986 F.2d 537 (D.C. Cir. 1993)) established and applied revised frameworks for when nonemployee organizers must be granted access to agency premises, under section 7116(a)(1), and for evaluating allegations of sponsorship, control, and assistance to labor organizations, under section 7116(a)(3). If an agency is charged with violating section 7116(a)(1), because it denied a labor organization access to agency premises, the Authority will examine whether the agency has a non-discriminatory access policy and whether there are other reasonable means available to the labor organization for communicating its message to the employees concerned. If an agency is charged with violating section 7116(a)(3) by granting or denying access to services and facilities over which the agency exercises control, the Authority will analyze whether the agency action interfered with employee freedom of choice by failing to maintain an appropriate arms-length relationship with the labor organization involved.

Negotiability Cases

In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA No. 106 (Member Armendariz dissenting in part), the Authority dismissed the petition for review pursuant to section 2424.10 of the Authority's regulations, finding that three proposals, which prescribed alternatives for providing dental assistant duties, were negotiable at the election of the Agency under section 7106(b)(1) of the Statute because they concerned numbers, types and grades of employees or positions assigned to an organizational subdivision, work project or tour of duty. The Authority noted that in construing section 7106(b)(1), it would interpret the term "types" as referring to distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns. The Authority further stated that the party claiming that a particular proposal concerns "types" within the meaning of 7106(b)(1) bears the burden of establishing a relationship between the claimed type and staffing patterns. The Authority concluded that temporary employees constitute a type of employee within the meaning of section 7106(b)(1) because temporary employees' limited tenure identifies them as a distinguishable class, kind, group or category.

In National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA No. 117 (Chair Segal concurring in part), the Authority addressed the negotiability of three proposals and seven provisions. Among other things, the Authority held that a provision that authorized Union representatives to schedule their use of official time was not contrary to law and was within the duty to bargain. The Authority rejected the Agency's argument concerning official time as a "restrictive interpretation of section 7131(d)" because it would upset the balance of official time usage that Congress intended to create. In doing so, the Authority interpreted section 7131(d) as requiring parties to negotiate over the scheduling of official time used by union representatives to afford both sides an opportunity to determine the conditions under which employees will be able to use official time. The Authority noted that restrictions on official time are properly imposed by the parties themselves, who are authorized to negotiate only an amount of time that is "reasonable, necessary, and in the public interest."

Arbitration Cases

In National Treasury Employees Union, Chapter 45 and U.S. Department of the Treasury, Internal Revenue Service, Tulsa, Oklahoma, 52 FLRA No. 135, the Authority rejected exceptions to an arbitrator's award denying a grievance challenging the Agency's 3-day suspension of the grievant. The Authority concluded that the award was not contrary to 5 U.S.C. § 7503 and 5 C.F.R. § 752.203 and did not deprive the grievant of substantive due process under the Constitution. In doing so, the Authority noted that it has found that employees, as defined in 5 U.S.C. § 7511, have a constitutional due process right in actions covered by 5 U.S.C. § 7512, which include removals, suspensions for more than 14 days, reductions in grade and pay, and furloughs of 30 days or less. The Authority also noted that although employees subject to actions covered by 5 U.S.C. § 7503, which involve suspensions for 14 days or less, also have a constitutional due process right, that right does not include entitlement to post-suspension proceedings. The grievant's suspension in this case was an action covered by 5 U.S.C. § 7503. Accordingly, the Authority found that the Arbitrator's denial of the Union's request to raise a defense in the hearing did not violate the grievant's right to constitutional due process because there is no constitutional requirement for any post-suspension proceeding at all, let alone the procedures that an arbitrator must follow in the hearing.

Court Cases

U.S. Dept. of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia v. FLRA, 106 F.3d. 1158 (4th Cir. Feb. 13, 1997), reviewing 51 FLRA 124 (1995). The Fourth Circuit denied enforcement to an Authority decision finding that the Department of Energy (the Department) committed unfair labor practices under section 7116(a)(1), (5) and (6) of the Statute by refusing to approve a contract provision that had been included in the parties' collective bargaining agreement at the direction of the Federal Services Impasses Panel. The provision would have required midterm bargaining on union-initiated proposals not contained in or covered by the collective bargaining agreement. The court relied on its decision in Social Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992), in which the court held that it was not an unfair labor practice for an agency to refuse to bargain on a union-initiated mid-term bargaining demand.

American Federation of Government Employees, Local 32 v. FLRA, 110 F.3d. 810 (D.C. Cir. April 18, 1997), reviewing 51 FLRA 491 (1995). In this negotiability case, the D.C. Circuit upheld the Authority's decision finding nonnegotiable a proposal establishing competitive areas for use in reductions-in-force. The court agreed with the Authority that the union's proposal purports to define supervisors' competitive areas, along with those of unit employees, and thus was beyond the scope of the agency's duty to bargain as discussed by the court in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992).

National Treasury Employees Union v. FLRA, 112 F.3d 402 (9th Cir. April 25, 1997), reviewing 50 FLRA 656 (1995). The Ninth Circuit dismissed for lack of subject matter jurisdiction a union petition for review of an Authority arbitration review decision that did not involve an unfair labor practice. The Authority had set aside an arbitrator's award finding that the Custom Service violated applicable law when it implemented a new procedure for vessels to make entry to ports. In its opinion, the court rejected as "strained" the D.C. Circuit's statutory construction and holding in a similar case, where that court found jurisdiction to review a similar Authority decision. See United States Department of the Treasury v. FLRA, 43 F.3d 682 (D.C. Cir. 1994). Instead, the Ninth Circuit relied upon a plain reading of 5 U.S.C. § 7123(a) to find that FLRA arbitration review decisions, including a determination as to whether a grievance alleges a violation of a law that affects conditions of employment, are not subject to judicial review.

FSIP FINAL ACTIONS

Notice to Employees Before Monitoring Calls in Connection with Telephone Monitoring Pilot

Social Security Administration, Baltimore, Maryland and SSA General Committee, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 159 (February 3, 1997), Panel Release No. 394 (Decision and Order). The Panel directed the parties to participate in an informal conference with Panel Member Stanley M. Fisher to resolve disputes over the implementation of the Field Office Telephone Service Monitoring Pilot. The parties met and resolved 11 of the 12 issues in dispute. With regard to the final issue of whether employees should be given notice prior to each monitored call, the Panel adopted the Employer's proposal not to give such notice because it might undermine the integrity of the data collected. Employees will receive a copy of the parties' Memorandum of Understanding indicating, among other things, that those telephones that would be monitored during the pilot would be labeled.

Dress Policy

Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts and Council of Locals 163, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 137 (February 6, 1997), Panel Release No. 394 (Decision and Order). The Panel directed the parties to provide written submissions to resolve their dispute concerning a dress policy for the Northeastern Region. The Panel adopted compromise wording to require employees to dress in a manner consistent with dress practices of the customer or host contractor; jeans, athletic wear, and sneakers were prohibited regardless of existing practices. The Panel also adopted wording to require formal business attire for meetings with high ranking contractors and Government officials. Exceptions to the dress policy were specified for office moves and during floor checks in manufacturing and shipyard environments. In the latter two areas, employees would be required to wear safety equipment; jeans and sneakers also could be worn if deemed safe by the supervisor. Non-compliance with the dress policy would result in progressively more severe disciplinary actions, as in other cases where employees fail to adhere to Employer policies. The two isolated incidents cited by the Employer in support of its position were insufficient to demonstrate a need for male employees to wear a tie and have a jacket available at all times.

Official Time for Union Representatives Conducting Labor-Management Business

Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Local 41, International Federation of Professional and Technical Engineers, AFL-CIO, Case No. 96 FSIP 155 (February 10, 1997), Panel Release No. 394 (Opinion and Decision). The Panel directed the parties to resolve their dispute through mediation-arbitration before Executive Director H. Joseph Schimansky. Mediation efforts successfully enabled the parties to resolve 4 of the 5 issues at impasse. A brief arbitration hearing was conducted on the remaining issue of whether the parties' initial agreement should include a bank of official time hours to be used by Union representatives for labor-management business. The Arbitrator adopted a modified version of the Employer's final offer to resolve the dispute: Until the beginning of fiscal 1998, the parties are to follow current official time practices; then a bank of 1,500 hours of official time per fiscal year, as proposed by the Employer, would be established, and a reopener provision would permit further negotiations should additional amounts to cover unforseen circumstances be necessary. Finally, the Union's wording simply stating that official time would not be abused was included in the agreement instead of the Employer's proposed list of internal Union matters for which the use of official time would be prohibited.

Preamble/Parties to the Agreement; Employer Rights; Employee Rights; Union Representation; Negotiations; Holidays; Downsizing (RIF); Leave; Union Use of Employer's Facilities and Support; and Critical Incident Stress Program

Department of Transportation, Federal Aviation Administration, Washington, D.C. and Local R3-10, National Association of Government Employees, SEIU, AFL-CIO, Case No. 96 FSIP 146 (April 15, 1997), Panel Release No. 396 (Opinion and Decision). The Panel declined to assert jurisdiction over several issues that were the subject of a negotiability appeal before the FLRA; it asserted jurisdiction over the 10 remaining issues and directed the parties to mediation-arbitration before Executive Director H. Joseph Schimansky. On the first issue, the Arbitrator rejected the Employer's contention that the Union's proposal was essentially new, in part because both parties had modified their original wording. As to the second issue, the Arbitrator ordered the parties to include section 7106 of the Statute in its entirety as the Employer Rights article. With regard to the third issue, the Arbitrator ordered adoption of the Union's final offer on Section 5, covering official time, travel, and per diem allowances for employees attending meetings scheduled by the Employer away from the facility; the Arbitrator was persuaded that wording to restrict advocates and witnesses in grievance-arbitration proceedings from receiving such allowances was unnecessary because the section only provides them to bargaining-unit employees for meetings scheduled by the Employer. Regarding the fourth issue concerning official time, the Arbitrator modified the parties' proposals to grant a bank of 3,500 hours per calendar year, and authorized additional official time for negotiations, including FMCS and FSIP proceedings, and contractual and Employer committee functions. Union representatives would be required to provide management with enough information to justify approving individual requests and to track its use. With respect to the payment of travel and per diem expenses for negotiations, including FMCS and FSIP proceedings, the Arbitrator ordered the parties to share such expenses equally for one Union representative.On the fifth issue, negotiation procedures, the Arbitrator ordered adoption of a modified version of the Union's proposal that grants 30 days for submitting impact-and-implementation proposals; contains no prohibition of publicity on negotiations; recognizes that the parties may discuss and negotiate to find solutions to matters not covered by or contained in the agreement or otherwise waived during negotiations; eliminates the need for notice of proposed changes at multiple levels by requiring a single notice to the Union official at the level at which the change is being made; and does not expand the Union's access to information beyond what is provided under section 7114(b)(4) of the Statute. With respect to the sixth issue addressing holiday work schedules, the Arbitrator ordered the parties to adopt wording identical to the agreements the Employer currently has with the National Air Traffic Controllers Association (NATCA) and National Associations of Air Traffic Specialists (NAATS) to prevent confusion when a holiday falls on an employee's regular day off. As to issue seven concerning downsizing, the Arbitrator used the NATCA and NAATS contracts as a guide, and ordered the parties to negotiate procedures that management will follow when the Employer decides that a reduction-in-force action within the unit is necessary. On the eighth issue concerning three sections that address leave policy, the Arbitrator adopted the Union's proposal to eliminate the adverb "medically" to modify "incapacitated" in a section dealing with the granting of sick leave because the section was clear without its addition. He also ordered adoption of the Employer's proposal on a section requiring employees absent on sick leave from one workweek to another to call the supervisor on the first workday of each biweekly period, unless specifically required otherwise by the supervisor. Regarding a section on medical documentation in connection with sick leave use, the Arbitrator imposed a compromise to meet the legitimate interests of both parties. With respect to the ninth issue concerning the Union's use of Employer's facilities and support, the Arbitrator ordered that permanent space be made available at the work facility of the Union President, as well as reasonable access to facsimile machines and other equipment for representational matters, without charge, when proper requests are made because the unit is small and geographically dispersed. With respect to the tenth issue dealing with the Critical Incident Stress Program (CISP), the arbitrator relinquished jurisdiction on the basis of legal arguments raised by the Employer for the first time during the hearing to give the Union the option of pursuing a negotiability appeal. Finally, on the issue as to whether a partial agreement should be imposed on the parties while they await the FLRA's negotiability decision over other Union proposals, the arbitrator ordered the Union to withdraw this issue since it was not one over which the Panel originally asserted jurisdiction.

Selection Procedures for Career Transition Assistance Program

Federal Deposit Insurance Corporation, Washington, D.C. and National Treasury Employees Union, Case No. 97 FSIP 1 (May 2, 1997), Panel Release No. 397 (Decision and Order). The Panel determined that the dispute concerning the selection procedures for vacant positions under the Career Transition Assistance Program (CTAP) should be resolved on the basis of a single written submission. The program, assisting employees affected by downsizing to obtain other employment in the same agency, gives priority to surplus and displaced employees who are "well-qualified" for agency vacancies within local commuting areas. The Panel adopted a compromise solution requiring the Employer to select the eligible or well-qualified employee with the highest adjusted creditable service, if it determines that the competing employees are otherwise equally qualified for the position, because the approach satisfies the Employer's interest in considering performance appraisals and the Union's interest in using seniority as a basis for selection.

Governing Regulations; Union Representation on Committees; Official Time; Equal Employment Opportunity; Uniform Clothing; Grievance Procedures; Furloughs; Publication and Distribution of Agreement; Effective Date and Duration of Agreement

U.S. Department of Justice, Federal Bureau of Prisons, Washington, D.C. and Council of Prison Locals 33, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 162 (May 16, 1997), Panel Release No. 397 (Opinion and Decision). The Panel directed the parties to resolve multiple issues arising from negotiations over a successor collective bargaining agreement through mediation-arbitration before Panel Member Gilbert Carrillo. If some or all of the issues were not resolved during the proceeding, the Arbitrator was restricted to selecting from between the parties' final offers on an article-by-article basis. At the conclusion of the hearing all or parts of nine articles remained at impasse. First, the Arbitrator adopted the Union's proposal on the timing of negotiations and implementation, requiring the parties to negotiate to completion, absent overriding exigencies, before the Employer would be free to implement. Regarding Union representatives on formerly Agency-only committees, the Arbitrator adopted the Employer's proposal which would permit: one Union representative to sit on each of five listed committees and others to be designated to sit on committees, work groups, or task forces established at some future time; the Union representative to receive training related to the function of the committee; and by request, the Union representative's comments to be included in final committee reports. As official time, the Arbitrator adopted the Employer's proposal that: granted the Council president 100 percent official time and created banks of time for specific uses. With respect to Equal Employment Opportunity, the Arbitrator adopted the Employer's proposal to permit one Union representative to attend certain national conferences, but without the Employer being responsible for the costs of attending. Regarding uniform clothing, the Arbitrator adopted the Union's proposal: employees required to wear uniforms would receive a $400 uniform allowance; uniform policy changes would be negotiated before such changes were implemented; and the section on the style of safety-toed footwear was eliminated because its legality was not clearly established. Regarding grievance procedures, the Arbitrator adopted the Union's proposals but essentially deleted a section that would have permitted the Union to sign off on all settlement agreements because such wording may infringe on individual employee rights to settle grievances on their own behalf. In the event the FLRA dismisses an unfair labor practice charge on a matter involving differing and arguable interpretations of the CBA, the Arbitrator found meritorious the Union's proposal permitting it to file a grievance within 30 days. As to furlough selection procedures, the Arbitrator adopted the Employer's proposal that it determine the number and types of positions to be vacated, and select employees to be furloughed by asking for volunteers and then selecting those to be furloughed in an equitable manner, and to consider employees' preferences when furloughs are on less than a full-time basis. With regard to the publication and distribution of the agreement, the Arbitrator adopted the Union's proposal which provided for a 75-day time frame to publish and distribute the CBA following ratification and Agency-head review. On the effective date and duration of the agreement, the Arbitrator adopted the Union's proposal that, consistent with 5 U.S.C. § 7114(c), the agreement would take effect upon completion of the ratification and Agency-head review process because such a period would provide ample time to educate unit employees on the terms and conditions of the new agreement.

General Counsel's Advice to Regional Directors on the Impact of Collective Bargaining Agreements on the Duty to Bargain and Other Statutory Rights

ABOUT THIS COLUMN

The FLRA's General Counsel, Joseph Swerdzewski, has 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 in the interest of keeping the parties informed of the policies being pursued by the Office of the General Counsel (OGC), the FLRA Bulletin highlights selected cases which 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 case-handling advice and guidance represents the OGC's position, and is not an official position of, or interpretation by, the Authority.)

According to Joe Swerdzewski, the FLRA's General Counsel, "collective bargaining agreements have a significant impact on the manner in which the parties can exercise their statutory rights." The General Counsel issued a Guidance Memorandum for Regional Directors to use in investigating, deciding and resolving unfair labor practice disputes where a collective bargaining agreement affects the matters in dispute. The distinction between rights granted under the Statute and rights and benefits obtained through collective bargaining is significant and explained in the memorandum. The memorandum outlines the "covered by" doctrine established by the Authority to determine whether there is a duty to bargain over a specific topic during the term of an agreement and makes suggestions for the Regions to assist the parties in avoiding and resolving "covered by" disputes. It also explores the legal theories which the Office of the General Counsel will test in those areas where the law has not yet been developed. The memorandum also discusses the limitations which a contract may place on the exercise of statutory rights-- the "contract interpretation"--doctrine and also suggests how to avoid these disputes. In addition, the memorandum examines the duty to bargain over union-initiated requests to bargain during the term of an agreement. It provides guidance on distinguishing between violations of contract rights and violations of statutory rights, and discusses the "repudiation" doctrine, the duty to bargain pursuant to reopener clauses contained in contracts, as well as the duty to bargain supplemental agreements.

Attached to the Guidance Memorandum are: (1) a summary of "covered by" cases decided by the Authority; (2) a decisional analysis for determining the duty to bargain after a contract expires; and (3) an Executive Summary, in a question and answer format, of the Guidance Memorandum.

GENERAL COUNSEL'S QUALITY POLICY FOR REPRESENTATION PETITIONS

General Counsel Joe Swerdzewski issued a representation petition quality policy and time goals to ensure the fair, timely, and complete processing of representation cases. The policy outlines the standards of quality for the processing of each representation petition and complements the General Counsel's Quality in Unfair Labor Practice Investigations Policy. It establishes standards for processing representation petitions under the streamlined representation regulations promulgated in 1996. The time goals will serve as targets for the Regions to strive for in processing representation case. The policy is available at www.flra.gov or by faxing a request to (202) 482-6608.

General Counsel's Settlement Corner

ABOUT THIS COLUMN

In accordance with the OGC's Settlement Policy various 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 Not to Make Threats or Statements Indicating That it Is "At War" with the Union

After issuance of a Complaint and Notice of Hearing under the Foreign Service Labor Relations Act, a Regional Director approved a settlement agreement in which the parties agreed that the agency would post a notice to all employees that requires the agency not to make threats or statements that indicate that (1) the agency is "at war" with the union; (2) that the agency will take steps to cut benefits for the Foreign Service or (3) that the agency will in any manner take steps to remove supervisors from the bargaining unit.

Agency Agrees to Honor Provisions of Bargaining Agreement Concerning Mid-term Bargaining Obligations and Notification to the Union of Any Proposed Reorganization

After issuance of complaint and notice of hearing, the parties agreed that the agency would post a notice to all employees requiring the agency to: (1) honor the provisions of the parties' bargaining agreement concerning mid-term bargaining obligations; and (2) provide the union with a briefing of any proposed reorganization of the Field Branch as well as any agency-initiated mid-term changes in conditions of employment for bargaining unit employees.

Agency Agrees Not to Unilaterally Change Working Conditions of Employees by Altering the "Friday Workday" Policy

In a settlement agreement resolving an unfair labor practice charge, an agency agreed not to unilaterally change working conditions of the unit employees by altering the "Friday Workday" policy without first notifying the union and affording it the opportunity to bargain over the procedures to be observed in implementing the change and appropriate arrangements for unit employees adversely affected by the change.

Agency Agrees to Afford Union Prior Notice of, and Opportunity to Be Present at, Formal Discussions; to Remove a Letter of Caution from Employees' Personnel Files; and to Provide Labor-management Relations Training for its Supervisors.

In a pre-complaint settlement agreement, the agency agreed that it would not conduct formal discussions with any bargaining unit employee concerning any grievance, personnel policy or practice or other general conditions of employment without affording the union prior notice of, and the opportunity to be represented at, the formal discussion. The agency also agreed to remove a letter of caution from employees' personnel files and to provide bargaining unit employees with a letter stating that no reprisal actions would be taken against any employee for engaging in protected activity. Finally, the agency agreed to provide labor-management relations training for its supervisors and managers.

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 to Timely Remit Dues and to Reimburse the Union an Amount Equal to the Dues it Would Have Received but Did Not Receive as a Result of the Agency's Delay in Withholding Dues in Violation of Section 7115 of the Statute.

After issuance of a Complaint and Notice of Hearing, a Regional Director approved a settlement agreement requiring the agency to post a notice to all employees stating that the agency will not refuse to comply with section 7115 of the Statute by failing to remit the regular and periodic dues deducted from employee salaries to the union. The agency also agreed to reimburse the union a sum equal to the regular and periodic dues it would have received from the pay of a unit employee, but did not receive as a result of an unlawful delay in withholding of such dues.

Agency Agrees to Abide by Official Time Provision of Bargaining Agreement and to Restore Annual Leave to Union President That Was Used for Representational Purposes

In a post-complaint settlement agreement, the agency agreed to rescind a memorandum regarding the scheduling of official time in representational matters for the union president. The agency also agreed to abide by the collective bargaining agreement provision governing union representation and official time and to restore annual leave to the union president that was used for representational purposes. Finally, the agency also recognized the right of the union to be represented at appropriate meetings and formal discussions between management and bargaining unit employees regarding any personnel policy or practice or other conditions of employment.

Agency Agrees to Rescind 2 Policies Concerning Dress Code and "English Language Proficiency," and to Bargain over the Impact and Implementation of the Visa Credit Card Purchase Program

In 3 separate pre-complaint settlement agreements that resolved 3 unfair labor practice charges, the agency agreed to rescind the change to its dress code policy and to bargain with the union before any new dress code is implemented. The agency also agreed to rescind the new policy concerning English Language Proficiency and to bargain with the union before any such policy is implemented. Finally, the agency agreed to bargain, upon request, with the union over the impact and implementation of the agency's credit card program.
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