Vol. 7 No. 1
October 1, 1997 - January 31, 1998

The FLRA Bulletin

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

CONTENTS

News to Know

Update on CADR

Authority Cases

Court Cases

FSIP Final Actions

FSIP Settlement Corner

General Counsel Advice to Regional Directors

General Counsel's Settlement Corner

DALE CABANISS SWORN IN AS NEW AUTHORITY MEMBER

News To Know

Following her nomination by President Clinton, and confirmation by the United States Senate, Dale Cabaniss was sworn in by Chair Segal on December 15th as a new Member of the Authority for a five-year term. Ms. Cabaniss replaces Tony Armendariz, who resigned in March of 1997.

Before joining the FLRA, Ms. Cabaniss served as a professional staff member on the Senate Appropriations Subcommittee for Labor and Health and Human Services, where she served as the principal legal advisor to the Chairman, Ted Stevens of Alaska. Ms. Cabaniss also served as the Chief Counsel for the Senate Governmental Affairs Subcommittee on Post Office and Civil Service. In addition, she worked for Senator Frank Murkowski of Alaska as his Legislative Director and Legislative Assistant. Ms. Cabaniss received a B.A. from the University of Georgia and a J.D. from the Columbus School of Law at Catholic University.

FLRA APPOINTS NEW DIRECTOR OF COLLABORATION AND ALTERNATIVE DISPUTE RESOLUTION OFFICE

On December 15th, Phyllis Segal, Chair of the FLRA, Joe Swerdzewski, FLRA General Counsel, and Betty Bolden, Chair of the Federal Service Impasses Panel, announced the appointment of Fern Feil to be the Director of the Collaboration and Alternative Dispute Resolution (CADR) Office and Program.

The Authority, the Office of the General Counsel, and the Federal Service Impasses Panel established this cross-component program in January of 1996. The program offers collaboration and alternative dispute resolution services in pending unfair labor practice, representation, negotiability, and bargaining impasse disputes at every step -- from investigation and prosecution to the adjudication of cases and resolution of bargaining impasses. The CADR program provides partnership facilitation and training activities to assist labor and management in developing constructive approaches to conducting their relationship. The CADR Office has responsibility for coordinating, supporting and expanding the unified alternative dispute resolution (ADR) program.

Ms. Feil brings to the FLRA significant expertise in the use of ADR tools and techniques, as well as her teaching ability. Ms. Feil most recently served as Deputy Director of Mediation Services at the Department of Health and Human Services (HHS), where she directed the Federal Sharing Neutrals Program, designed and provided ADR training, facilitated labor-management interest based negotiations and other group interactions, and mediated disputes (most involving workplace conflicts). Through the Sharing Neutrals Program, more than 90 mediators from 25 different Federal agencies, mediate disputes throughout the government.

Ms. Feil’s previous work experience at HHS included serving as Chief Negotiator and attorney advisor for the Administration for Children and Families, where she led the management team in its successful first interest based negotiation of the agency's National collective bargaining agreement with NTEU. In addition, Ms. Feil served as Assistant HHS Regional Counsel in Philadelphia. She is a member of the adjunct faculty at the Department of Justice Legal Education Institute, and a member of both the District of Columbia and New York Bars. Ms. Feil earned an undergraduate degree in Economics from Cornell University and her J.D. from Duke University Law School.

THE AUTHORITY INVITES COMMENTS ON UNFAIR LABOR PRACTICE PROCEEDINGS

The Federal Labor Relations Authority requested customer input through amici curiae briefs on a series of specific questions arising in a group of cases currently pending before the Authority. On November 17, the Authority issued a Partial Decision and Procedural Order in U.S. Department of Commerce, Patent and Trademark Office, Case No. WA-CA-40743, which decided certain issues, directed the parties to file briefs to address questions contained in the decision, and invited the parties to request oral argument on these issues. The parties in Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts, Case No. BN-CA-41011; U.S. Department of Justice, Immigration and Naturalization Service, Case No. WA-CA-50048; Social Security Administration, Santa Rosa District Office, Santa Rosa, California, Case No. SF-CA-50155; and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, Case No. CH-CA-50399, were also directed to respond to the questions described in the decision. The responses were required to be submitted to the Authority by December 18, 1997.

This group of pending cases requires the Authority to adjudicate unfair labor practice complaints and resolve whether section 2(d) of Executive Order 12871 constitutes an agency election to bargain on section 7106(b)(1) matters -- so called “permissive subjects” -- that can be enforced by the Authority and reviewed in subsequent court proceedings.

Update on CADR

The Collaboration and Alternative Dispute Resolution program (CADR) continues to provide services to labor and management throughout the Federal sector under the leadership of its new director, Fern Feil. FLRA staff used a variety of dispute resolution techniques to facilitate the resolution of pending disputes, cultivate skills in interest-based problem- solving and improve labor-management relationships.

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

Intervening in Pending Disputes

• OGC Regional Office employees facilitated the resolution of multiple unfair labor practice and representation issues arising from the announced 1999 closing of a facility. The parties agreed to develop options for the placement of employees. The unfair labor practice charge was withdrawn and the parties’ relationship improved as a result of this intervention

• An OGC Regional Office employee facilitated the resolution of a pending unfair labor practice charge and a potential unfair labor practice charge by helping the parties create an effective communications mechanism that improves dispute resolution.

• CADR Office staff assisted the parties in a pending negotiability appeal by significantly reducing the number of proposals in dispute. The parties mutually resolved 38 proposals. The parties were able to reach agreement in this longstanding dispute only after participating in training on interest-based problem-solving provided by the Boston Regional Office. As a result of services provided under the CADR Program, only 9 disputed proposals required a formal negotiability ruling.

• An OALJ Settlement Judge assisted parties to resolve three ULP disputes arising from the implementation of flexiplace and emergency call procedures, and in another case, assisted parties to resolve a dispute concerning appropriate attire for firefighters while on standby at the fire station on a military base.

• CADR Office staff assisted parties in resolving a negotiability appeal concerning the contracting out of work performed by bargaining unit employees.

Training

• Advanced Statutory Training continues to be provided to union and agency representatives at both the national and local levels. The training session provides the participants an opportunity to discuss the law and strategies to interpret and apply the law to foster productive labor-management relationships. The training covers recent Authority decisions in the following areas: Bargaining Over Section 7116(b)(1) Subjects; Bargaining During the Term of an Agreement - “The Covered By” Doctrine; Requests for Information Under the Statute; Bargaining Over Reorganizations and Downsizing and the Duty of Fair Representation.

Facilitating Labor-Management Relationships

• Departments of Commerce and Health and Human Services: OGC staff have worked with Department representatives on the use of pre- decisional involvement, a process used to include employees in shaping decisions which affect employees and the work they perform. In addition, assistance has been provided to parties seeking to evaluate the effectiveness of their labor-management partnerships.

• FAA -- CADR Office staff assisted FAA and union representatives in developing an internal ADR program. The parties plan to incorporate the program into their collective bargaining agreement.

• D.C. Air National Guard -- CADR Office and Authority staff provided partnership facilitation assistance to union and management representatives.

• U.S.D.A. -- CADR Office staff provided partnership facilitation assistance to union and management representatives in Portland, Oregon.

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

• In Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey and International Brotherhood of Police Officers, National Association of Government Employees, Service Employees International Union, AFL-CIO, 53 FLRA No. 39, the Authority held that where new employees’ positions fall within the express terms of an existing union certification and where their inclusion does not render the bargaining unit inappropriate, those new employees are automatically included in the unit, and a petition to clarify the unit is unnecessary. The Authority determined that the fact that employees have job duties different from those of previously- hired employees does not affect their status as members of the existing unit. The Authority stated that bargaining unit certifications do not become stale with the passage of time if they continue to accurately describe the organization and the employees within their scope. Further, the Authority stated that the “accretion doctrine” does not apply to cases where the positions sought to be included in a unit were never “outside” of the bargaining unit.

Unfair Labor Practice Cases

• In American Federation of Government Employees, Local 2419 and James J. Powers, 53 FLRA No. 69, the Authority rejected an employee’s assertion that his expulsion from Union membership violated sections 7102, 7116(b)(1) and (8), and 7116(c) of the Statute. As an initial matter, the Authority stated that it had jurisdiction under section 7116(b)(1) and (8) of the Statute to resolve the complaint because the case concerned a violation of section 7102 rights, rather than wholly internal union matters, and because no other provision of law was alleged to supersede the Statute. On the merits, the Authority rejected the argument that a union may not deny membership for any other reason than a failure to meet occupational standards or a failure to tender dues as set forth in section 7116(c)(1) and (2) of the Statute. According to the Authority, that interpretation would render meaningless the final proviso of 7116(c), which expressly permits a labor organization to “enforce discipline.” However, consistent with its precedent, the Authority stated that a union may neither discipline an employee for filing an unfair labor practice charge nor take actions against an employee that affects his or her status as an employee. In addition, the Authority stated that, absent a threat to its continued existence, a union may not discipline an employee for mere criticism of its policies. Having considered the employee’s actions in the instant case, the Authority determined that the Union’s discipline of the employee did not violate the Statute and it dismissed the complaint.

• In United States Customs Service, South Central Region, New Orleans District, New Orleans, Louisiana, 53 FLRA No. 67, the Authority examined whether the Respondent committed an unfair labor practice by refusing to furnish approximately 4 years’ worth of data requested by the Union under section 7114(b)(4) of the Statute. The Judge decided that the Respondent did not have an obligation to furnish data for the requested 4-year period, but did have an obligation to furnish data for a period covering 1 year. In reviewing the Judge’s decision, the Authority concluded that the violation found by the Judge was neither alleged in the complaint nor fully and fairly litigated. The Authority determined that it was reasonable for the Respondent to have understood that the dispute concerned only the furnishing of information for a 4-year period, rather than a 1-year period, because the Union had refused to modify its request to a shorter period of time. Accordingly, the Authority concluded that the Judge improperly found that the Respondent’s refusal to furnish the information for the 1-year period constituted a violation of the Statute. The Authority also concluded that the requested information for the 4-year period was not “necessary” within the meaning of section 7114(b)(4) of the Statute.

Negotiability Cases

• In National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker, Alabama, 53 FLRA No. 76, the Authority addressed the negotiability of three proposals. The Authority concluded that a proposal allowing teacher partners to alternate lunchroom student supervision duties in order to provide each partner with duty free time at lunch constituted an appropriate arrangement and, therefore, was within the duty to bargain. The Authority found a proposal requiring the Agency to provide 30 days’ notice before terminating the contract of probationary employees, and a proposal requiring the Agency to give due consideration to all responses or replies made by the probationary employee, inconsistent with management’s right to hire employees under 7106(a)(2)(A) of the Statute and, therefore, outside of the duty to bargain.

• In National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA No. 49, the Authority examined the negotiability of four proposals. The Authority determined that the first three proposals, which addressed increasing the number of positions and the filling of vacancies, concerned the numbers of employees or positions assigned to an organizational subdivision. Thus, the Authority concluded that the proposals were negotiable at the election of the Agency under section 7106(b)(1) of the Statute and dismissed the petition as to the three proposals. The Authority also dismissed the petition as to the fourth proposal, concluding that the meaning of the proposal was not sufficiently clear to permit disposition.

Arbitration Cases

• In U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA No. 46, the Authority examined an arbitration award that sustained a grievance challenging an employee’s separation during a reduction-in-force on grounds that the agency improperly applied RIF laws and regulations and the agency discriminated against the grievant during the RIF on the basis of a handicapping condition. The arbitration award provided back pay and travel expenses to the employee and granted attorney fees and costs to the Union. First , the Authority determined that the agency’s failure to participate in the hearing did not preclude it from filing exceptions with the Authority. However, the Authority stated that, consistent with its regulation, 5 C.F.R. § 2429.5, it would not consider any evidence that had not been before the Arbitrator. On the merits, the Authority rejected exceptions challenging the award on fair hearing, nonfact, and essence grounds. With respect to the agency’s claim that the travel and per diem expenses awarded by the arbitrator exceeded the allowable amount under 5 U.S.C. § 5724a, the Authority stated that 5 U.S.C. § 5724a does not address such expenses and that the agency’s reliance on the statute was misplaced. Finally, with respect to the agency’s claim that the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101 et seq., precludes an employee from receiving both workers’ compensation and back pay during the same period of time, the Authority noted that an exception to this rule exists for awards of back pay under the Rehabilitation Act. Because the Authority was unable to determine whether, in whole or in part, the back pay award was based on a finding of unlawful discrimination, the Authority remanded the case to the parties for clarification on this issue.

• In U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1- 109, 53 FLRA No. 50, the Authority declined to assert jurisdiction over the Agency’s exception to an arbitration award. The Authority noted that under section 7122(a) of the Statute, it lacks jurisdiction to resolve arbitration awards that relate to matters described in section 7121(f) of the Statute, including matters covered under 5 U.S.C. §§ 4303 and 7512. In this case, the Authority found that the grievant’s AWOL charge was inextricably intertwined with his removal, a matter covered under section 7512. Because the Authority determined that the AWOL charge could not be separated from the ultimate determination to remove the grievant, the Authority decided that it did not have jurisdiction to review the matter. In reaching this determination, the Authority acknowledged that its refusal to assert jurisdiction could leave the agency without a forum to challenge the arbitration award. However, the Authority stated that the agency could have avoided this result by addressing the AWOL charge as part of the MSPB settlement or by refusing to enter into the settlement agreement unless the union agreed to waive its right to seek review of the award. Moreover, the Authority concluded that, although there may be cases where no forum has jurisdiction to review an arbitration award, the advancement of Congressional policies of uniformity, discouragement of forum shopping, and avoidance of multiple litigation, as well as the need for clarity and predictability with respect to questions concerning jurisdiction overrode any potential for unreviewable awards.

Court Cases

• American Federation of State, County & Municipal Employees, Local 3719 v. FLRA, No. 97- 01043 (D.D.C. Jan. 20, 1998), seeking review of 52 FLRA 1093 (1997). The district court granted the Authority’s motion to dismiss for lack of subject matter jurisdiction a complaint seeking review of an Authority decision in a representation case. The Authority had affirmed a Regional Director’s determination excluding certain employees from a bargaining unit because they were engaged in security work that directly affected national security. The court agreed with the Authority that the court could not review such actions under 5 U.S.C. § 7123(a), and that the Supreme Court’s decision in Leedom v. Kyne did not apply. The court recognized that section 7123(a) authorizes only the courts of appeals to review the Authority’s orders, and precludes any court from reviewing an order of the Authority involving a representation matter.

• Robert W. Wildberger, Jr. v. FLRA, F.3d , 1998 WL 590140, No. 95-1614 (D.C. Cir. Jan. 9, 1998), reviewing 51 FLRA 413 (1995). The D.C. Circuit denied in part and granted in part a petition for review of an Authority determination dismissing three consolidated unfair labor practice (ULP) complaints against the petitioner’s former employing agency. The Authority had dismissed the complaints for lack of jurisdiction pursuant to section 7116(d) of the Statute, which bars issues that “can properly be raised under an appeals procedure” from being raised as ULPs. The court upheld the dismissal of two complaints concerning the petitioner’s proposed removal and a threat. However, the court found that section 7116(d) did not bar the Authority’s jurisdiction over the petitioner’s disparate treatment complaint. Accordingly, the court remanded the disparate treatment complaint to the Authority for a determination on the merits.

• American Federation of Government Employees, Local 2986 v. FLRA, 130 F.3d 450 (D.C. Cir. 1997), seeking review of 51 FLRA 1549 & 1693 (1996). The D.C. Circuit dismissed, per curiam, union petitions for review of two Authority decisions reviewing arbitration awards, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In the cases involved, the Authority set aside arbitrators’ awards granting severance pay. The court concluded that it lacked jurisdiction under section 7123, and determined that other jurisdictional grounds, such as that provided by the Supreme Court’s Leedom v. Kyne decision, did not apply.

• Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997), seeking review of Case No. WA-CA-50352, petition for cert. filed, ____ U.S.L.W. ____ (U.S. Feb. 2, 1998) (No. 97-1266). The D.C. Circuit dismissed the union’s petition for review of a decision of the FLRA General Counsel declining to issue a ULP complaint, on the ground that the court lacked jurisdiction under section 7123 of the Statute. In its decision, the D.C. Circuit reaffirmed its ruling in Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982), where the court flatly declared that it had no jurisdiction to review decisions by the FLRA General Counsel declining to issue ULP complaints because such decisions do not constitute final agency orders under section 7123. To avoid any “lingering confusion,” the court indicated that the Supreme Court’s intervening decision in Heckler v. Chaney, 470 U.S. 821 (1985), did not change the law of the D.C. Circuit regarding the nonreviewability of the FLRA General Counsel’s decisions.

• United States Department of the Interior, Washington, D.C. and U.S. Geological Survey, Reston, Virginia v. FLRA, 132 F.3d 157 (4th Cir. 1997), reviewing 52 FLRA 475 (1996), petitions for cert. filed, 66 U.S.L.W. 3520 (U.S. Jan. 15, 1998) (No. 97-1184); ____ U.S.L.W. ____ (U.S. Jan. 28, 1998) (No. 97- 1243). In this case, the Fourth Circuit considered for the third time the issue of union-initiated midterm bargaining. The court first considered the issue in SSA v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA) , where it held, in direct conflict with the D.C. Circuit’s decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), that the statutory obligation to bargain in good faith did not extend to union-initiated bargaining during the term of an agreement. In Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997) (Energy), relying on SSA, the court found a collective bargaining provision authorizing midterm bargaining that had been imposed by the Federal Service Impasses Panel to be inconsistent with law. The court held in the present case, which involved a refusal to bargain over a contract proposal authorizing union- initiated midterm bargaining, that its decision was controlled by SSA and Energy. Although recognizing the difficulties that the conflict with the D.C. Circuit presented, the court noted that “recourse for resolution must be sought elsewhere.” 132 F.3d at 162.

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.

Teachers’ Salaries and Compensation for “Make-Up Days”

• Department of Defense, Domestic Dependents Elementary and Secondary Schools, Camp Lejeune Dependents Schools, Camp Lejeune, North Carolina and Lejeune Education Association, Federal Education Association, NEA, Case No. 97 FSIP 104 (October 9, 1997), Panel Release No. 402 (Opinion and Decision). The Panel directed the parties to mediation-arbitration with Panel Member Bonnie Prouty Castrey. When the parties were unable to resolve their dispute through mediation, an arbitration hearing was conducted on the issues of (1) salary for the 1997-98 and 1998-99 school years (SY) and (2) compensation for “make-up days.” As to the first issue, the Arbitrator ordered the parties to adopt an across-the-board pay increase of 3 percent for the 1997-98 SY with an additional 2 percent longevity increase for teachers having 10 or more years experience. For the 1998-99 SY, the arbitrator ordered an across-the-board pay increase of the greater of 3 percent or the North Carolina State increase. The Arbitrator rejected a Union proposal to place employees on the Fort Bragg Schools pay scale and ordered continuation of all Camp Lejeune District Schools pay practices not negotiated. As to the second issue, the Arbitrator ordered a provision requiring the Employer to give teachers additional compensation equal to their daily rate when they are required to provide instruction to students on a day designated as non-instructional.

Parking and Shuttle Bus Service

• Department of the Navy, Naval Aviation Depot, Naval Air Station, Jacksonville, Florida and Local 22, International Federation of Professional and Technical Engineers, AFL-CIO; Local 512, International Brotherhood of Teamsters, AFL-CIO; Local 1943, National Federation of Federal Employees; Local 3, National Association of Aeronautical Employees; Local 1, National Association of Government Inspectors and Quality Assurance Personnel, Case No. 97 FSIP 100 (October 16, 1997) Panel Release No. 402, (Opinion and Decision). The Panel directed the parties to mediation-arbitration with Panel Member Gilbert Carrillo. Mediation failed to resolve the parties’ dispute regarding the number of parking spaces to be designated as reserved and the schedule for shuttle-bus service between employee work sites and the Navy Exchange parking lot. The Arbitrator conditionally ordered adoption of the Employer’s proposal to decrease the number of reserved parking spaces and maintain the status quo of providing shuttle-bus service to the Navy Exchange parking lot only during the hours 0600 to 0730 and 1500 to 1630. His award was conditioned upon the accomplishment of several measures to increase the number of “open-parking” spaces and alleviate parking difficulties for employees. The Arbitrator ordered that if the Employer failed to provide 500 additional “open parking” spaces within a designated period of time, as it indicated it could during mediation, it would be required to expand shuttle-bus service.

Days Off Under a 5-4/9 Compressed Work Schedule

• Department of the Treasury, Internal Revenue Service, Fresno Service Center, Fresno, California and Chapter 97, National Treasury Employees Union, Case No. 97 FSIP 102 (November 18, 1997), Panel Release No. 403 (Decision and Order). The Panel directed the parties to participate in an informal conference with Panel Member Dolly M. Gee to resolve two issues relating to Compressed Work Schedules (CWS). Although they resolved one of the issues, the other, which concerned the procedure for restricting employees’ choice of scheduled off days under a 5-4/9 CWS, remained in dispute. After considering the Panel Member’s report and recommendations for settlement, the Panel ordered the parties to adopt a modified version of the Union’s proposal. That modified proposal provided: (1) where more than 25 percent of employees on the CWS option choose a particular Monday or Friday as their off day, the least senior employee would be scheduled for a Monday or Friday off day in accordance with past practice; (2) should such scheduling result in fewer employees than needed to perform necessary work, the parties would maintain the status quo pending resolution of the scheduling dispute; (3) if the parties cannot achieve informal resolution of the dispute, they would invoke expedited arbitration under their master collective bargaining agreement; and (4) employees could voluntarily select as their off day a Tuesday, Wednesday, or Thursday that is not identified as a critical cycle day.

Multi-skill Training Program

• Department of the Air Force, Wright-Patterson Air Force Base, Headquarters, Air Force Materiel Command, Wright-Patterson AFB, Ohio and Council 214, American Federation of Government Employees, AFL-CIO, 97 FSIP 88 (November 12, 1997), Panel Release No. 403 (Decision and Order). Initially, the Panel determined that the parties should resume their negotiations on a concentrated schedule with the assistance of the Federal Mediation and Conciliation Service to narrow or resolve the dispute arising from negotiations over the Employer’s decision to establish a multi-skill training program (MTP). Under the proposed MTP, journeymen-level employees would be trained in additional skills and trades to enable them to perform a wider variety of functions. Unresolved issues included matters relating to: definitions; scope of local negotiations; training; competitive levels; compensation; leave and work assignment; Performance Acceptance Certification; monitoring of the program; applicability of the program to an existing local multi-skill agreement; conflict with other agreements; and waiver of rights. The resumed negotiations failed to produce a complete settlement and the Panel directed the parties to provide written submissions, after which it would select between the parties’ final offers on a package basis to the extent that they were otherwise legal. The Panel adopted the Employer’s final package, modifying only a provision which concerned a subject of bargaining permissive to the Union. The Panel essentially concluded that the Union’s final offer would undercut the Employer’s stated reason for establishing the MTP: to make the organization more efficient and competitive with the private sector.

Numerous Issues Involving a Successor Collective Bargaining Agreement

• Department of the Army, Headquarters 10th Mountain Home Division and Fort Drum, New York and Local 400, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 94 (January 2, 1998), Panel Release No. 405 (Decision and Order). The Panel directed the parties to resume negotiations, on a concentrated schedule, over all issues remaining in dispute in their negotiation over a successor collective bargaining agreement, with the assistance of the Federal Mediation and Conciliation Service; if those negotiations proved unsuccessful, the Panel would select between the parties’ final offers on an article-by-article basis to resolve the matter, to the extent that they were otherwise legal. When the parties’ concentrated efforts failed to resolve the dispute, the Panel directed them to present written submissions and rebuttal statements. The Panel ordered the adoption of the following: (1) the Employer’s final offer stating a smoking policy that generally prohibited smoking in Government vehicles and buildings, but providing for outdoor smoking areas, smoking breaks, and attendance at smoking cessation classes; (2) the Employer’s final offer, modified to eliminate certain permissive subjects of bargaining, specifying amounts, allocation, and administration of official time; (3) the Employer’s final offer permitting the use of leave without pay, advanced annual leave, and sick leave in the event of the death of an immediate family member; (4) a modified version of the Union’s final offer (which avoids potential interference with management’s right to require employees to undergo fitness-for-duty exams), relating to notification by employees of on-duty injury, medical testing of employees, procedures for employee grievances alleging unsafe or unhealthful working conditions, and establishment of Health and Safety Committees; (5) the Employer’s final offer regarding the provision of training and development opportunities that would promote effective employees performance; (6) the Employer’s final offer specifying actions that it would take to assist employees in improving their performance in order that they may demonstrate acceptable performance; (7) the Employer’s final offer requiring preparation of an SF-50 for employees who are detailed to a higher-graded position for more than 30 days; and (8) the Employer’s final offer relating to accommodations for employees in adverse environmental conditions and designation of emergency-essential personnel.

Termination of a 5-4/9 Compressed Work Schedule

• Department of Transportation, Federal Aviation Administration, Kansas City, Missouri and Local ZKC, National Air Traffic Controllers Association, Case No. 98 FSIP 19 (January 30, 1998), Panel Release No. 406 (Decision and Order). The Panel ordered the parties to participate in an informal conference with a Panel Staff member to assist them in resolving their dispute and, if unable to achieve resolution through that means, to submit a single written statement. The issue at impasse was the Employer’s decision to terminate a 5-4/9 compressed work schedule (CWS) because, under the Flexible and Compressed Work Schedules Act (the Act), 5 U.S.C. § 6131, the Agency head’s designee determined that it was causing an adverse agency impact. After considering the Employer’s data, which included unsubstantiated graphs and charts regarding alleged increases in overtime costs, the Panel found that the evidence presented did not establish that the CWS had caused an adverse agency impact under the Act. In this regard, the Panel found that the data that the Employer provided in support of its determination that the CWS was causing an adverse agency impact was defective in several respects and, consequently, inconclusive and not in accordance with the framework established under the Act. The Panel noted that CWS was only one of many factors influencing work schedules and that the key to addressing the Employer’s perceived concerns might lie in the annual negotiations over watch schedules that were just beginning. The Panel emphasized that if the Employer gathers new evidence demonstrating that the CWS has had an adverse agency impact, it again could move to terminate the schedule and, if necessary, seek the Panel’s assistance. Concluding that the Employer had not met its statutory burden, the Panel ordered the continuation of the 5-4/9 CWS.

FSIP Settlement Corner

ABOUT THIS COLUMN

In addition to the issuance of final actions, the Panel also fulfills its statutory obligations by assisting the parties in their efforts to achieve voluntary settlements.

In Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Chapter 201, NTEU, Case No. 98 FSIP 16, the parties reached impasse over the payment of travel and per diem expenses for Union representatives in upcoming successor agreement negotiations; the mediation assistance was provided telephonically by Panel Member Edward F. Hartfield.

In Federal Deposit Insurance Corporation, Dallas, Texas and Chapter 260, NTEU, Case Nos. 97 FSIP 135 and 98 FSIP 1, Panel Member Bonnie Prouty Castrey assisted the parties where the impasse involved four issues in connection with the Employer’s decision to relocate about 400 bargaining- unit employees to downtown Dallas.

In Federal Deposit Insurance Corporation, Dallas, Texas and Chapter 275, NTEU, Case No. 98 FSIP 29, Panel Member Castrey was successful in mediating a complete settlement, concerning the consolidation of a newly-certified unit of bank examiners from two separate field offices to a new location in North Dallas.

In Government Printing Office, Washington, D.C. and Printing Crafts Joint Council, AFGE, AFL-CIO, Case No. 97 FSIP 131, the mediation efforts of Panel Member Stanley M. Fisher were instrumental in helping the parties to reach a voluntary settlement of a dispute over their first-ever alternative work schedule program.

General Cousel’s Advice to Regional Directors

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 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 DUTY TO BARGAIN OVER AN OFFICE RELOCATION

This case concerns a novel issue regarding when the duty to bargain attaches to an office relocation, and more specifically, whether the Agency failed to fulfill any bargaining obligation prior to the issuance of the Solicitation for Offers (SFO). An SFO contains an agency’s space needs, including the technical requirements and specifications. In this case, the Agency issued an SFO for a new centralized campus facility without providing the Union with notice and an opportunity to bargain.

The General Counsel determined that the Regions should decide charges alleging a refusal to bargain over office relocations based on the basic principle that agencies cannot make unilateral decisions on otherwise negotiable matters (including matters within their discretion) that concern conditions of employment. Many decisions made by an agency in the process of determining whether to relocate, where to relocate and the specifics of the building to which the agency will relocate, although subject to outside law and regulations and possible negotiation with other entities (such as GSA), nonetheless would be negotiable to the extent they are within the agency’s discretion.

The General Counsel believes that agency decisions on matters that would otherwise be negotiable should not be allowed to be made unilaterally if that unilateral action removes that negotiable matter from the realm of collective bargaining at some latter time. For example, if the agency makes a unilateral decision on an otherwise negotiable matter, such as parking requirements during the course of the procurement process, the agency has effectively deferred negotiations until there is little remaining to negotiate.

The OGC determined that some matters set forth in the SFO address negotiable conditions of employment: child care center, fitness center, cafeteria, heath unit, parking, and interior environmental considerations, and therefore, should have been negotiated, to the extent of the Agency’s discretion, prior to issuance of the SFO. In order to present this significant issue to the Authority, absent settlement, the Regional Director was advised to issue a complaint alleging that the Agency violated section 7116(a)(1) and (5) of the Statute when it unilaterally decided to either include in the SFO, or request that GSA include in the SFO, matters which were otherwise within the scope of bargaining. In addition to a traditional cease and desist order and remedial posting, the Region is directed to seek an order requiring the Agency to bargain to the extent of its discretion over those negotiable matters set forth in the complaint.

EMPLOYEES STATUTORILY EXCLUDED FROM AN APPROPRIATE BARGAINING UNIT RETAIN THE SAME STATUTORY RIGHTS AS OTHER UNREPRESENTED EMPLOYEES

This case presents the issue of whether employees precluded by section 7112 of the Federal Service Labor-Management Relations Statute from being in an appropriate unit, may otherwise engage in protected activity under the Statute. The charge alleges that during an organizational drive and before the filing of a representation petition, Agency managers engaged in conduct which interfered with, restrained and coerced employees in their organizing efforts in violation of section 7116(a)(1) of the Statute.

In the absence of any legislative history or precedent under the Statute to the contrary, the General Counsel determined that employees who are excluded from bargaining rights under section 7112 are nonetheless afforded the same protections under the Statute as other unrepresented employees. To hold otherwise, would be to expand the list of employees and agencies excluded by the Statute, which is the sole province of the Congress and the President under section 7103(b).

The General Counsel further advised the Regions that although these employees would not have the right to representation at formal discussions or investigatory examinations under section 7114(a)(2) (A) and (B), they do have the right to act as a representative and present the views of a labor organization to heads of agencies and other officials of the executive branch of the Government, or other appropriate authorities under section 7102(1) of the Statute. Similarly, although these employees do not have the right to engage in concerted activity, since protected activity under section 7102 of the Statute is limited to assisting or refraining from assisting a labor organization, these employees do have the right to engage in solicitation and distribution activities during non-work times in non-work areas.

THE APPLICATION OF “COVERED BY” TO A MEMORANDUM OF UNDERSTANDING NEGOTIATED AFTER EXPIRATION OF THE PARTIES’ COLLECTIVE BARGAINING AGREEMENT

Three cases were presented for case handling advice that involve the issue of whether a memorandum of agreement (MOA) at the local level on a particular subject matter entered into after the expiration of the master labor agreement (MLA) may be the basis for a “covered by” defense.

The MOA at issue resulted from the settlement of previously filed unfair labor practice charges which were the subject of a consolidated complaint. The MOA makes reference to the parties expired MLA by requiring counseling or disciplinary actions taken under the terms of the MOA be taken in accordance with the provisions of the MLA. The MOA specifically reserves the rights of any unit employee to file grievances under the MLA if they believe that the application of the MOA has violated any right under the MLA. The Agency allegedly implemented changes which it defends triggered no bargaining obligation since the subject matter of those actions was covered by the MOA.

The General Counsel, applying the Authority’s decision in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, (HHS) 47 FLRA 1004 (1993) and the decisional approach set forth in the Office of the General Counsel Guidance on the “Impact of Collective Bargaining Agreement on the Duty to Bargain and Other Statutory Rights” (March 5, 1997), initially concluded that all three cases involve changes in conditions of employment which are more than de minimis and that, absent any potential “covered by” defense, there would be a duty to bargain. It was also concluded that the matter in dispute is covered by the MOA. The issue presented here which the Authority has not yet had an opportunity to address, is whether a MOA which was negotiated after the expiration of the MLA can constitute a “covered by” defense.

The General Counsel determined that when a negotiated agreement, whether labeled a memorandum of agreement, memorandum of understanding or settlement agreement, is deemed to be a part of a current contract, subject to the negotiated grievance procedure and having the same term as the contract, the “covered by” doctrine applies. Thus, the agreement becomes a part of the contract and as such may be relied upon to support a “covered by” or contract interpretation defense.

In the cases presented here, however, the MOA cannot become part of the contract since the contract is no longer in effect. Nonetheless, the General Counsel is of the view that the policy driving the “covered by” doctrine requires an approach that also gives efficacy to agreements between the parties entered into through collective bargaining after a contract expires. There is no reason in law or based on policy considerations to treat agreements entered into during the life of a contract differently from those entered into after a contract expires for the purposes of the application of the “covered by” doctrine. Indeed, the failure to apply the “covered by” doctrine as a general rule to post-contract agreements could lead unions to adopt a strategy of not renegotiating contracts, but rather conducting their labor- management relations through a series of never-ending memoranda of agreements to avoid the application of the “covered by” doctrine. This is exactly one of the primary reasons which prompted the D.C. Circuit and the Authority to develop the “covered by” doctrine.

As stated by the Authority in HHS, the “covered by” doctrine gives credence to the statutory policies of favoring the resolution of disputes through bargaining” and avoiding the “disruption that can result from endless negotiations over the same general subject matter.” The Authority further stated that “upon execution of an agreement, an agency should be free from a requirement to continue negotiations over the same general subject matter.” The Authority has stated that “upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining.” HHS, at 1017-1018.

The General Counsel sees no reason why this policy should not equally be applicable to all agreements, regardless of when they are entered into.

The Regions are further advised that in cases involving disputes over agreements entered into after a contract has expired that are subject to resolution under a negotiated grievance procedure, the “covered by” doctrine is applicable. The General Counsel is of the view that the “covered by” doctrine should not be applicable for disputes involving agreements entered into after a contract expires if disputes over that agreement are not subject to resolution under a negotiated grievance procedure. A contrary view would leave the union with no forum in which to challenge the agency action and would be inconsistent with the policies which gave rise to the “covered by” doctrine.

STANDING TO FILE REPRESENTATION PETITIONS AND THE ROLE OF THE REGIONAL OFFICE IN ADDRESSING CHALLENGES TO AN INDIVIDUAL FILING A PETITION

A representation case was presented for case handling advice that presents issues concerning the standing to file a representation petition, specifically, an amendment of certification petition, and the role of the Regions when the authority of an individual filing a representation petition on behalf of a labor organization or agency is challenged.

The petition, which was filed by an officer of the local exclusive representation, requested a change in affiliation to a different national union. Shortly after the filing, the President of the local union submitted a letter to the Regional Director, which was signed by all members of the Executive Board, excluding the officer who originally filed the petition, requesting withdrawal of the petition. The letter maintained that the Executive Board is the government body of the union and that the Board had not authorized the filing of the petition.

The General Counsel determined that petitions to clarify or amend an existing unit or to consolidate existing units may only be filed by an agency or labor organization. In this case, the local union is a labor organization and as such, had standing to file the petition seeking an amendment of its certification. Conversely, there is no support for the proposition that a member or members of a labor organization may file a petition to effectuate a change in affiliation if the incumbent labor organization does not abide by the wishes of members to file such a petition.

In the preliminary investigation in all representation cases, the Region examines the petition and determines whether the proper party filed the petition and whether the person signing the petition on behalf of a labor organization or an agency appears to have authority to file. If the signer has apparent authority, the Region should continue to process the petition until and unless that individual’s authority is challenged by the petitioning party. If the Region determines that the individual signing the petition does not have apparent authority or if that person’s authority is challenged, the Region should make further inquiries to determine if the signer had authority to file the petition.

In this case, the local union official had apparent authority to file the petition. However, once that authority was challenged by the local union, the Region becomes obligated to investigate and decide whether the signer had authority to file the petition. Under these circumstances, the Region is directed to issue a notice to show cause why the petition should not be dismissed based on lack of authority of the individual signing the petition. If the Regional Director finds a lack of authority, the Region should dismiss the petition, absent withdrawal by the individual who signed the petition. The Region was advised not to approve a request by the labor organization or the agency to withdraw the petition. Rather, absent withdrawal, by the individual signing the petition, the petition should be dismissed and that individual afforded an opportunity to challenge that decision before the Authority.

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.

VOLUNTARY SETTLEMENT AGREEMENTS

Agency Agrees to Adhere to Compressed Work Schedule

In a pre-complaint settlement agreement, the parties agreed that the Agency would post a notice to all employees stating that it would not conduct any formal discussions within the meaning of section 7114(a)(2)(A) without notifying the Union and affording it an opportunity to be represented at the formal discussion. Accordingly, in the event that the Agency makes a determination concerning the termination of the Compressed Work Schedule (CWS) Program, the Agency agreed to adhere to the provisions of the Statute and the CWS Agreement between the Agency and the Union.

Agency Agrees to Sponsor a Joint Labor- Management Training Program Concerning Statutory Bargaining Obligations and Rights and to Negotiate over Changes Involving the Consolidated Mail Outpatient Pharmacies Program

After issuance of complaint and notice of hearing, the parties agreed the Agency would post a notice to all employees stating that the Agency would provide the Union with notice and an opportunity to bargain over changes in conditions of employment affecting unit employees, including changes involving the Consolidated Mail Outpatient Pharmacies Program. The parties also agreed that the Agency would sponsor a joint labor-management training program in conjunction with the FLRA concerning statutory bargaining obligations and rights. Two one-day training sessions will be held.

Agency Agrees to Reconvene a Step 2 Grievance Meeting and Allow the Union’s Designated Representative to Represent the Grievant

After issuance of complaint and notice of hearing, the parties agreed that to the following: (1) the Agency recognized that the Union has the right to designate its representatives to represent bargaining unit employees at each step in the grievance process and (2) the Agency agreed, upon the Union’s request, to reconvene a particular grievance meeting at step 2 and allow the Union to designate its representative to represent the grievant at the meeting.

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:

Union Agrees to Make Employee Whole for Union Dues Which were Improperly Withheld from her Paycheck

In a pre-complaint settlement agreement, the Union agreed to post a notice to all members and employees stating that it would not interfere with members’ statutory right to revoke their authorization for the Agency to deduct union dues from their paychecks. In particular, the Union agreed to make an employee whole for all dues and monies which were withheld from her pay since the anniversary date at which time her dues revocation form should have been effective, until the date when her dues withholding were actually canceled.

Agency Agrees to Provide Unit Employees at No Charge Uniform Pants and Shirts and to Bargain Over the Elimination of the Practice of Providing Unit Employees with Uniforms and Free Laundering and to Give Retroactive Effect to Agreements Reached

In a post-complaint settlement, the Agency agreed to post a notice stating that before it changes conditions of employment of bargaining unit employees, it will notify the Union of such changes and afford it the opportunity to bargain unless implementation is otherwise allowed under the Statute. The Agency further agreed to bargain over a previous decision to eliminate the practice of providing uniforms to employees in the meat department and free laundering of the uniforms and to give retroactive effect to any agreements resulting from bargaining. Finally, the Agency agreed, that when it decides to make either temporary or permanent changes in working conditions of unit employees, it will notify the Union in writing of its intent to implement such changes and to give the Union the opportunity to negotiate the substance or the impact, as appropriate, of such changes, in accordance with the Statute.

Agency Agrees to Negotiate Internet Use Policy and Impact and Implementation of Electronic Mail Policy

In a post-complaint unilateral settlement agreement, the Agency agreed to post notices stating that it will notify the Union prior to changing conditions of employment of bargaining unit employees and negotiate to the extent required by law. Further, upon request, the Agency agreed: (1) to negotiate with the Union a national policy concerning the use of the Internet, to the extent required by law; (2) restore Internet access to bargaining unit employees who were denied access as a result of the implementation of the Agency’s policy; (3) unblock Internet world wide web sites for bargaining unit employees; and (4) not to use information obtained through Internet access monitoring capability as a basis for taking disciplinary action against bargaining unit employees until negotiations on a nationwide Internet policy have been completed. Finally, the Agency agreed to negotiate with the Union concerning the impact and implementation of a decision to implement Support Services E-MAIL policy/guidance/standards.