Vol. 7 No. 2
February 1, 1998 - May 31, 1998
The FLRA Bulletin
![](https://webarchive.library.unt.edu/eot2008/20090825153340im_/http://www.flra.gov/images/flranews.gif)
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
Authority Considers Proposed Changes in
Negotiability Regulations
News to Know
FLRA INVITES CUSTOMERS TO COMMENT ON REVISIONS TO NEGOTIABILITY REGULATIONS
The Federal Labor Relations Authority is reviewing its regulations governing
negotiability appeals to determine how the process can be improved. The
Authority developed a list of questions, which was published in the April
20th Federal Register, to serve as the starting point for discussion.
The issues included: the role of alternative dispute resolution; the consequences
when either party fails to comply with procedural requirements; the relationship
between issues arising under the negotiability appeal process and the unfair
labor practice process; and compliance with Authority orders in negotiability
decisions.
Negotiability appeals arise in two situations: (1) when a labor organization
files a petition with the Authority regarding a proposal that the agency
has declared non-negotiable during discussions over a collective bargaining
agreement, or (2) when an agency head disapproves a proposal after it has
been included in a collective bargaining agreement, during the period for
agency head review.
To gather additional information and receive customers views, the Authority
invited interested persons to participate in a focus group meeting on May
12 in Washington, D.C., or to provide written comments on these issues.
The written comments were due by May 29. The May 12 focus group brought
together fifty people, including representatives from unions and agencies,
as well as private practitioners. Chair Segal and Members Wasserman and
Cabaniss attended and participated in this event.
FLRA IS UPDATING ITS MAILING LIST
The FLRA is updating its mailing list for the Bulletin, and other FLRA
releases. If you have an e-mail address, and would like the FLRA to e-mail
the Bulletin directly to you, please send your name, e-mail address, and
any other changes to your regular mailing address, to Bulletin@flra.gov.
NEW REGIONAL ATTORNEYS APPOINTED
The FLRA General Counsel, Joe Swerdzewski, has appointed two new Regional
Attorneys: Charlotte Dye in the Dallas Regional Office and Timothy Sullivan
in the Denver Regional Office. As Regional Attorneys, Ms. Dye and Mr.
Sullivan are responsible for managing all of the legal work for their respective
Regions, including using traditional and alternative dispute resolution
techniques to investigate, settle or prosecute unfair labor practice charges
and to process representation petitions. The Dallas Regional Office covers
Arkansas, Louisiana, New Mexico, Oklahoma, Texas, and Panama. The Denver
Regional Office covers Colorado, Kansas, Missouri, Montana, Nebraska, Idaho,
South Dakota, Utah, Wyoming, Arizona, and Nevada.
Ms. Dye and Mr. Sullivan are both experienced labor relations professionals
who have most recently served the FLRA as Dispute Resolution Specialists.
Ms. Dye received a Doctor of Jurisprudence from Texas Tech University
School of Law and a Master of Public Administration from Texas Tech University
Center for Public Service. In addition to her work for the FLRA, Ms. Dye
is a volunteer mediator and handles pro bono civil cases. She also holds
the position of Vice-President for the Women and the Law Section of the
State Bar of Texas. Mr. Sullivan received a Juris Doctor, with Distinction,
from the University of Oklahoma in 1987. Prior to beginning his career
with the FLRA in 1987, he completed an internship program with the U.S.
Army Judge Advocate General Corps, working in areas of international law
and trial defense. In addition to his work with the FLRA, Mr. Sullivan
volunteers as a tutor and a mediator.
FLRA TRAVELING THE COUNTRY
As part of the Agencys effort to meet with its customers, Members of the
Federal Service Impasses Panel and the General Counsel have been holding
town hall meetings around the country. On May 4, Panel Chair Betty Bolden
and Panel Members Gilbert Carrillo, Bonnie Castrey, Stanley Fisher, Dolly
Gee, Edward Hartfield, and Mary Jacksteit met with their customers in Atlanta,
Georgia. We are committed to providing quality service to agency and
union representatives in the Federal government, said Chair Bolden. Hearing
directly from our customers ensures that we continue to meet their changing
needs, particularly in this time of government-wide reorganization.
On May 1, the General Counsel, Joe Swerdzewski, held a town hall meeting
in Honolulu, Hawaii, and on May 14, held a meeting in Syracuse, New York.
The meetings are intended to provide information regarding the policies
and guidance issued by the General Counsel and give participants an opportunity
to speak with the General Counsel and members of his staff and suggest
ways to improve the quality of OGC services. I believe town hall meetings
are an effective way for the Office of General Counsel to provide information
to the Federal agencies, Federal employees, and organizations representing
Federal employees about how we operate and any changes that we may be contemplating,
said General Counsel Swerdzewski.
FLRA INVITES COMMENTS ABOUT PRESIDENTIAL ACCOUNTABILITY ACT REGULATIONS
In the April 2nd Federal Register, the Federal Labor Relations Authority
requested comments on issues that have arisen as the Agency carries out
its responsibilities under the Presidential and Executive Office Accountability
Act, enacted in October of 1996. The Act directs the FLRA to issue regulations
extending coverage of Chapter 71 of Title 5, the Federal Service Labor-Management
Relations Statute, to the Executive Office of the President no later than
October 1, 1998.
The Executive Office of the President (EOP), with approximately 1,700 employees,
is comprised of thirteen separate offices: the White House Office, the
Executive Residence at the White House, the Office of the Vice President,
the Official Residence of the Vice President, the Office of Policy Development,
the Council of Economic Advisors, the Council on Environmental Quality
and Office of Environmental Quality, the National Security Council, the
Office of Administration, the Office of Management and Budget, the Office
of National Drug Control Policy, the Office of Science and Technology,
and the Office of the United States Trade Representative.
The Act contains a general requirement that the FLRA issue regulations
for the EOP that are the same as the substantive regulations promulgated
by the FLRA for all other agencies under its jurisdiction. The Act also
contains additional requirements for specific offices within the EOP.
Pursuant to legislative history urging the FLRA to engage in extensive
rulemaking, the FLRA requested comments on questions ranging from the
appropriateness of bargaining units to conflict of interest issues. Written
responses were due April 17.
FLRA FORMS AND REGULATIONS AVAILABLE ON WEB SITE
The FLRA has placed its most commonly requested forms, FLRA regulations,
and FLRA job listings on its Web Site, found at www.flra.gov. The Web
Site has been up and running since February of 1997, and has recently averaged
535 hits a day.
Placing our forms and regulations on the Web Site responds to a number
of requests we have received over the past year. We are pleased that the
site has helped us meet our goal of providing easier and quicker access
to information about the FLRA, said Chair Phyllis N. Segal.
The Web Site contains various forms issued by the FLRAs Office of General
Counsel, including those used to file unfair labor practice charges and
representation petitions. The request for assistance form used by the
Federal Service Impasses Panel will also be available. Already on the
Web Site are checklists developed by the Authority for use by the parties
in negotiability and arbitration appeals.
The FLRA Web Site also includes information regarding FLRAs processes
for dealing with unfair labor practices, representation issues, arbitration
appeals, and negotiation disputes; the FLRAs five-year strategic plan;
Authority decisions; Office of the General Counsel policies and guidance;
press releases; decisions of the Federal Service Impasses Panel; and the
FLRA Bulletin.
FLRA OFFICE OF THE GENERAL COUNSEL CONTINUES ITS EFFORTS TO PROVIDE ADVANCED
STATUTORY TRAINING
During fiscal year 1998, the FLRA Office of the General Counsel has conducted
a number of Advanced Statutory Training Seminar sessions for union and
agency representatives at both the national and local levels. The OGC
developed the Seminar to address concerns expressed by both labor and management
practitioners to FLRA General Counsel Swerdzewski. In light of the increasing
complexity of Federal sector labor law, practitioners see a need for more
advanced knowledge of the law and its related concepts. The Seminar deals
with five of the most significant labor-management relations issues in
the Federal sector: (1) the scope of bargaining under the Statute; (2) bargaining
during the contract term and the covered by doctrine; (3) obtaining information
under the Statute; (4) labor relations issues arising from reorganizations
and downsizing; and (5) the duty of fair representation.
The Seminar is targeted for practitioners with a basic understanding of
Federal sector labor law and is designed to increase this understanding.
After completing the seminar, participants will be able to further develop
approaches and practical strategies for productively resolving workplace
issues.
Each session of the Seminar is limited to 15 participants and is between
two and three days long. Seminar enrollment is limited to encourage interaction
among participants. Seminar participants may consist solely of labor or
solely of management representatives, or a combination of the two. Questions
regarding the Advanced Statutory Training Seminar, should be directed to
the Office of the General Counsel at 202-482-6608.
UPDATE ON CADR
Under the Collaboration and Alternative Dispute Resolution program (CADR),
FLRA national and regional office staff assist parties in the resolution
of pending case disputes. The CADR program also assists parties through
partnership facilitation, relationship building, and the development of
ADR programs. Through CADR, FLRA hopes to promote the use of interest-based
problem-solving in labor-management relationships and provide agency and
union representatives with the skills to resolve disputes at earlier stages.
The following illustrates some of the assistance provided to customers
nation-wide:
Intervening in Pending Disputes
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The CADR Program assisted the parties in resolving six negotiability appeals
pending before the Authority and two unfair labor practice cases pending
in a regional office. With the assistance of the CADR service providers,
the parties were able to reach agreement on the particular issues in the
cases and used the opportunity as a stepping stone to improving their labor-management
relationship.
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As part of the pre-hearing conference for a ULP case, an agreement was
reached rehiring a former employee to an equivalent position with back
pay.
Training
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FLRA Staff participated in the National Partnership Councils Skills Building
Workshops, held in Baltimore, Maryland and Atlanta, Georgia. The CADR
Director presented a workshop entitled Tools for Fostering Partnership.
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CADR Office Staff provided training in interest-based problem-solving to
an Agencys local partnership council members. The union and management
representatives were trained on the interest-based negotiation (IBN) and
explored ways to use IBN in partnership settings.
Facilitating Labor-Management Relationships
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The Office of the General Counsel (OGC) has been assisting two large Agencies
in conflicted relations using a new approach, Strategic Planning for a
New Relationship. This three-step approach involves separate meetings
with key management and union leaders to discuss major issues and strategies
available to develop their labor-management relationship. Following these
separate meetings, the chief management and Union representative meet with
OGC staff to discuss the outcomes of their respective separate meetings
and their interests in reworking their labor-management relationship.
If the chief representatives agree upon a significant effort for that purpose,
a third meeting brings together all representatives for joint perspectives
on their existing relationship, the need for change, and a strategic plan
and joint approach in dealing with major issues.
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DOD and FLRA Staff provided partnership facilitation assistance to DOD
union and management representatives on a local partnership council comprised
of firefighters. CADR facilitated the parties discussion of issues unique
to their working environment and worked with the council to develop procedures
for more productive partnership meetings.
AUTHORITY CASES
These summaries of selected cases were prepared by FLRA staff for guidance
and informational purposes only, and may not be used as an official position
of, or interpretation by the Authority. The term Statute throughout
the text refers to the Federal Service Labor-Management Relations Statute
§§7101-7135.
Representation Cases
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In Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam
Memorial Hospital, Sacaton, Arizona and Southwest Native American Health
Care Employees, Local 1386, Liuna, AFL-CIO, 53 FLRA No. 101, the Authority
held that employees detailed from their Agency to a Tribal Corporation
under the Intergovernmental Personnel Act, 5 U.S.C. § 3373, remained employed
in an agency pursuant to section 7103(a)(2) of the Statute. Specifically,
the Authority determined that the Tribal Corporation was not an executive
agency within the meaning of 5 U.S.C. § 105 and that the detailed employees
were employees of the Agency from which they were detailed, in this case,
the Indian Health Service. With respect to the employees bargaining rights
under the Statute, the Authority stated that the Agency was obligated to
bargain with the Union concerning conditions of employment over which it
retained control. In addition, the Authority found that the employees
bargaining unit remained an appropriate unit because there was a community
of interest among the employees in the unit, the unit promoted effective
dealings with the Agency, and the unit promoted efficient operations within
the Agency. The Authority dismissed the petition to clarify the unit and
directed the Regional Director to amend the certification of the unit consistent
with its decision. Subsequently, a motion for reconsideration was submitted,
which was denied.
Unfair Labor Practice Cases
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In U.S. Geological Survey, Caribbean District Office, San Juan, Puerto
Rico and American Federation of Government Employees, AFL-CIO, Local 1503,
53 FLRA No. 86, the Authority found that the Respondent committed an unfair
labor practice under section 7116(a)(1) and (5) of the Statute, by refusing
to bargain over a grievance and arbitration procedure and by engaging in
unlawful conduct that precluded the completion of negotiations for a collective
bargaining agreement before the expiration of the 1-year period following
the Unions certification.
- With respect to the remedy, the Authority acknowledged that it had never
issued a remedial order in which the length of a unions certification
year period had been extended as a result of agency misconduct. The Authority
discussed that private sector precedent addressed this issue with respect
violations of section 9(c)(3) of the National Labor Relations Act (NLRA),
which bars a representation petition filed within 12 months from the date
of the last election. Noting that section 7111(f)(4) of the Statute and
section 9(c)(3) of the NLRA are substantially similar, the Authority determined
that private sector precedent provided an appropriate guide in fashioning
a Federal sector remedy. Thus, the Authority adopted the National Labor
Relations Boards rule that a unions majority status, which is presumed
for one year following its certification, may be extended beyond one year
where an employers misconduct serves to deprive the union of a full year
of actual bargaining. Having found that the Respondents conduct was sufficiently
egregious and pervasive throughout the certification year, the Authority
decided that the Respondents conduct warranted a complete renewal of the
Unions certification year.
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In Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C.
and Federal Bureau of Prisons, Federal Correctional Institution Englewood,
Littleton, Colorado, 53 FLRA No. 137, the Authority found that the Office
of Internal Affairs did not commit an unfair labor practice by its investigation
of an alleged assault following a Union meeting, but that the Federal Correctional
Institution did commit an unfair labor practice by suspending the Union
President for walking out of a counseling meeting.
- The Authority determined that the Internal Affairs investigation of the
Union meeting was reasonable because viewed objectively it did not interfere
with, restrain, or coerce employees in the exercise of rights protected
under the Statute. In particular, the Authority found that the Internal
Affairs agents conducting the investigation did not seek disclosure of
confidential information, and that no unit member interviewed by Internal
Affairs was representing another unit member in a disciplinary proceeding
or other proceeding requiring confidentiality. Moreover, the Authority
concluded that the Internal Affairs agents exercised care not to trespass
on union business during the investigation, and that the agents avoided
the substance of the Union meeting.
- However, the Authority determined that the Federal Correctional Institution
did commit an unfair labor practice by suspending the Union President for
walking out of a counseling meeting with the Associate Warden. The Authority
found that the counseling meeting was called solely as a result of the
Union Presidents actions as Union President. Because the Union President
attended the counseling meeting in her capacity as Union President, the
Authority concluded that her actions during the meeting were protected
under the Statute unless they constituted flagrant misconduct.
- The Authority decided that the Union Presidents actions did not constitute
flagrant misconduct for four reasons. First, the counseling meeting did
not occur in a public area. Second, the Union Presidents departure from
the meeting was clearly impulsive, not a designed reaction to the Associate
Wardens decision to issue a counseling letter to the Union President for
her activity as Union President. Third, the Union Presidents action was
directly provoked by the Associate Wardens refusal to recognize the protected
nature of the Union Presidents activity. Fourth, although the decision
to leave the meeting was imprudent, union representatives are granted leeway
when they are acting in the capacity of union representatives.
Negotiability Cases
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In American Federation of Government Employees, HUD Council of Locals 222,
Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA
No. 22, the Authority addressed the negotiability of one proposal. After
the Agency notified the Union that it intended to achieve a reduction in
headquarters staff by making available only to headquarters staff certain
vacant positions in the Agencys field offices, the Union submitted a proposal
stating that field office employees could also apply for the vacant positions.
The Authority concluded that the proposal did not affect managements
right to make selections under section 7106(a)(2)(C) of the Statute because
it did not limit the Agencys selection options.
- In the course of reaching this conclusion, the Authority addressed the
test set forth in National Association of Government Employees, Local R5-184
and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky,
51 FLRA 386 (1995) (VAMC, Lexington) for resolving conflicting claims that
a proposal is outside the duty to bargain under section 7106(a) of the
Statute and electively bargainable under section 7106(b)(1). The Authority
stated that this case made evident an anomaly not present in VAMC, Lexington:
that adhering to the sequence of analysis in VAMC, Lexington could result
in dismissal of a negotiability petition in a case, such as this one, where
the disputed proposal would be found within the duty to bargain if the
parties dispute over section 7106(a) were resolved. Thus, the Authority
determined that where an agency asserts that a provision affects a management
right or rights under section 7106(a) of the Statute and a union disputes
such an assertion, the Authority will address and resolve this claim even
though the Union also asserts that the provision is electively bargainable
under section 7106(b)(1).
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In National Association of Government Employees, Local R5-168 and U.S.
Department of the Army, Fort Polk, Louisiana, 53 FLRA No. 143, the Authority
addressed the negotiability of one proposal, requiring the Agency to designate
mechanics as WG-5803-10 employees. The Authority noted that section 7103(a)(14)(B)
of the Statute excludes policies, practices, and matters relating to the
classification of any position from the definition of conditions of employment.
It also noted that classification entails the identification of the appropriate
title, series, grade, and pay system of a position. The Authority determined
that the Unions proposal identified the series (5803) and grade (10) into
which specific mechanic positions would be placed and, thus, related to
the classification of those positions. Accordingly, the Authority held
that the proposal was related to the classification of mechanics positions
and, therefore, was outside the Agencys duty to bargain under the Statute.
Arbitration Cases
-
In American Federation of Government Employees, Local 3258 and U.S. Department
of Housing and Urban Development, Boston, Massachusetts, 53 FLRA No. 115,
the Authority set aside an arbitration award denying as non-arbitrable
a grievance contesting an Agencys determination that certain employees
were required to submit confidential financial disclosure reports pursuant
to 5 C.F.R. Part 2634. Because the Unions exceptions challenged the substantive
arbitrability of the grievance requiring an interpretation of 5 C.F.R.
§ 2634.906, the Authority applied a de novo standard of review to the award.
- The Authority interpreted 5 C.F.R. § 2634.906. It provides that any complaint
by an individual that his/her position has been improperly determined to
require the submission of a confidential financial disclosure report shall
be reviewed by an agency head or designee, and a decision on the complaint
shall be final. The Authority concluded that this section does not preclude
the filing of grievance under the negotiated grievance procedure. In reaching
this conclusion, the Authority found that nothing in the plain wording
of the regulation, or its supplementary information, established that the
Agencys confidential filing determinations were immune from challenge
by a union through the negotiated grievance procedure. Moreover, the Authority
noted the policy that doubts as to whether an issue is covered by a negotiated
grievance procedure should be resolved in favor of such coverage.
-
In National Treasury Employees Union and Federal Deposit Insurance Company,
53 FLRA No. 134 (1998), the Authority reviewed an arbitration award that
sustained, in part, a grievance alleging that an Agencys classification
of certain employees as exempt from the coverage of the Fair Labor Standards
Act (FLSA) violated law and regulation. The arbitration award denied the
grievance as to GG-11 examiners because the arbitrator determined that
these examiners were properly classified as professional employees. The
award did provide other employees, whose improper classification the Agency
later acknowledged, partial back pay. The Union filed exceptions claiming
that (1) the GG-11 examiners were not professional employees, and (2) the
Arbitrator erred in failing to provide liquidated damages to those employees
who were improperly classified.
- In its decision the Authority discussed the status of the examiners. It
conducted a three-part analysis. First, the Authority determined that
the GG-11 examiners were professional employees within the meaning of
5 C.F.R. § 551.206(a) and, thereby, were exempt from the overtime provisions
of the FLSA. Second, the Authority held that the portion of the award
denying liquidated damages to those employees wrongly classified as exempt
was contrary to section 260 of the FLSA, because the Agencys denial of
overtime was not based on a good faith belief that it was in compliance
with the FLSA. Third, the Authority held that the award was contrary to
the statute of limitations contained in section 255(a) of the FLSA with
respect to the calculation of back pay.
- In addressing the calculation of back pay, the Authority expressly overruled
U.S. Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and American Federation of Government Employees, 47
FLRA No. 78 (1993) and its progeny. The Authority explained that the FLSA
provides an independent statutory basis for an award of back pay and, therefore,
a violation of the FLSA is remedied under the FLSA and not the Back Pay
Act. The Authority also explained that, although nothing in the Back Pay
Act limits the period of recovery, the FLSA expressly limits the period
of time an employee may recover back pay for a violation. The Authority
reasoned that, as the statute of limitations is an integral part of the
substantive rights afforded by the FLSA, it cannot be disregarded in the
negotiated grievance procedure. Thus, the Authority concluded that the
FLSA limits an arbitrators latitude to fashion remedies.
- The Authority modified the award to include the payment of liquidated damages
to those examiners and liquidators who were wrongfully classified as exempt
under the FLSA and remanded the award to the parties for submission to
the arbitrator for a determination as to the appropriate statute of limitations
under the FLSA to be applied in calculating the award of back pay.
COURT CASES
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Department of Justice, Immigration & Naturalization Service, Northern Region,
Twin Cities, Minnesota v. FLRA, F.3d, 1998 WL 271092, No. 97-1388 (D.C.
Cir. May 29, 1998), seeking review of 51 FLRA 1467 (1996) and 52 FLRA 1323
(1997) . The D.C. Circuit denied an agencys petition for review of an
Authority decision in a section 7114(b)(4) information case. The Authority
had ruled that the Agency committed a ULP by failing to provide the Union
with certain disciplinary records the Union had requested in connection
with a proposed removal. The Court found that the Union was acting as
an exclusive representative under the Statute, notwithstanding the fact
that the Union had chosen to represent an employee at the oral reply stage
of the disciplinary process. The Court also agreed with the Authority
that the requested information was necessary at the oral reply stage
of the proposed removal action because the Union needed the documents concerning
how the Agency disciplined other employees to assess whether the proposed
punishment was appropriate. The Court therefore agreed with the Authority
that the Agency committed a ULP by refusing the Unions request for the
disciplinary records.
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American Federation of Government Employees, Local 2343 v. FLRA, __ F.3d
__, 1998 WL 271093, No. 97-1355 (D.C. Cir. May 29, 1998), seeking review
of 52 FLRA 1195 (1997). The D.C. Circuit denied a Unions petition for
review of an Authority unfair labor practice (ULP) decision in an information
case arising under section 7114(b)(4) of the Statute. The complaint alleged
that the Agency improperly refused to provide documents requested by the
Union in connection with a pending grievance. Characterizing as conclusory
the Unions claim that it needed the information to prepare for arbitration
of its previously filed grievance, the Authority found that the Union
failed to articulate a particularized need for the documents. The Court
agreed, rejecting the Unions claim that the connection between the information
the Union sought and the grievance was self-evident.
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Johanna K. Begay v. Department of the Interior, __ F.3d __, 1998 WL 272809,
No. 98-3104 (Fed. Cir. May 15, 1998), seeking review of 53 FLRA 984 (1997).
The Federal Circuit dismissed for lack of jurisdiction an individuals
petition for review of an Authority decision overturning an arbitration
award. Although not the named respondent, the Authority participated in
the case as an amicus curiae. The Authority had set aside an arbitration
award, which sustained a grievance challenging the use of certain reduction-in-force
procedures resulting in Begays separation from service. The Court determined
that it did not have jurisdiction to review the Authoritys decision under
28 U.S.C. § 1296(a)(2) and 3 U.S.C. § 431. The Court also found that no
other circuit court would have jurisdiction to review the Authoritys decision.
The Court agreed in this regard with other courts of appeals that because
a ULP was not an explicit or a necessary ground for the Authoritys decision,
no court would have jurisdiction under section 7123(a) of the Statute.
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Dennis R. Means v. Phyllis N. Segal, Chair, FLRA, No. 97-1301 (D.D.C. Apr.
15, 1998). The District Court adopted the report and recommendation of
the magistrate judge and granted the Authoritys motion to dismiss or,
in the alternative, for summary judgment. The complaint sought to compel
the FLRAs General Counsel to issue ULP complaints and to obtain documents
withheld by the General Counsel under the Freedom of Information Act (FOIA).
Recognizing that the General Counsel has unreviewable discretion to decline
to issue ULP complaints, the Court dismissed the complaints ULP claims
because it lacked subject matter jurisdiction. The Court also granted
the Authoritys motion for summary judgment with regard to the plaintiffs
FOIA claim. It found that the portions of the attorney notes and the investigative
reports withheld from the Plaintiff were protected from disclosure by the
deliberative process privilege and the attorney-client and work product
privileges. The court also upheld the General Counsels claim that FOIA
Exemption 7© [protection of privacy interests of third parties] and FOIA
Exemption 7(D) [protection of identity of confidential sources] protected
from disclosure several documents created during the investigation of the
ULP charges.
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National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998),
reviewing 52 FLRA 1159 (1997). The D.C. Circuit denied in part and granted
in part a petition for review of an Authority decision dismissing ULP charges
against the Agency. The Agency had denied NTEU a permit to distribute
literature on the sidewalks of an agency facility at which another union
was the exclusive representative. The Authority determined (1) that the
denial of a permit did not amount to unlawful assistance to the incumbent
Union under section 7116(a)(3), and (2) that, applying the principles of
Babcock & Wilcox, the permit denials did not discriminate against NTEU
under section 7116(a)(1). The Court affirmed the Authoritys decision
that the Agency did not unlawfully assist the incumbent. The Court also
found, however, that the Babcock & Wilcox rule did not protect the Agencys
denial of permits to NTEU because the Agency did not have a general no-solicitation
policy. Noting that the Authority was not required to adopt Babcock &
Wilson, the Court remanded the case to the Authority to re-examine the
question whether the Agency violated section 7116(a)(1). However, the
Court concluded that if the Authority determined that the Agency did violate
section 7116(a)(1), the Authority was obliged to apply retroactively its
newly adopted standard and award NTEU a remedy. The Authoritys petition
for re-hearing was denied by the D.C. Circuit Court.
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.
Tours of Duty
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Department of the Army, Headquarters, Fort Carson, Fort Carson, Colorado
and Local 1345, American Federation of Government Employees, AFL-CIO, Case
No. 97 FSIP 124 (February 3, 1998), Panel Release No. 406 (Decision and
Order). The Panel directed the parties to participate in an informal conference
with a Panel Staff Member to assist them in resolving a dispute over what
the tours of duty and lunch periods should be for approximately 14 mechanics
who maintain and repair target systems on artillery ranges when military
units are present (i.e., when the ranges are in a hot status). After
the informal conference failed to resolve the dispute completely, the parties
final offers and the recommendation of the Panel Staff for settling the
impasse were presented to the Panel. Because the Employer alleged that
the Unions proposal was outside its duty to bargain, and the FLRA had
never previously addressed the Employers nonnegotiability argument, the
Panel directed the parties to withdraw their proposals to permit the Union
to request a written declaration of nonnegotiability from the Employer.
Overtime and Official Time
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Department of Justice, Board of Immigration Appeals, Falls Church, Virginia
and Local 3525, American Federation of Government Employees, AFL-CIO, Case
No. 97 FSIP 143 (February 6, 1998), Panel Release No. 406 (Decision and
Order). The parties impasse initially involved numerous articles in negotiations
over a successor collective bargaining agreement. The Panel determined
that the dispute should be resolved through an informal conference with
a Panel representative. During the informal conference, all but two of
the issues were voluntarily settled. The representative subsequently reported
to the Panel the parties final offers and her recommendations for settling
the dispute. Thereafter, the Panel issued a decision ordering the adoption
of a modified version of the Employers proposal on the overtime issue,
essentially requiring overtime for bargaining-unit employees to be distributed
by seniority from a pool of eligible employees, with management determining
the qualifications for eligibility for the pool. It also required the
Employer to announce in writing the qualifications which it relied upon
in determining employees eligibility for the overtime pool; upon written
request from an employee determined to be ineligible for the pool, to specify
in writing the qualifications he or she lacks; and to redetermine eligibility
for the pool no less than twice per year. The Panel adopted the Unions
proposal on the official time issue which, among other things, permits
Union representatives to use official time in amounts that are reasonably
necessary to accomplish representational purposes, and establishes various
procedures for its use.
Salary Increases for Teachers During the 1997-98 School Year
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Department of Defense, Domestic Dependents Elementary and Secondary Schools,
Fort Stewart School System, Fort Stewart, Georgia and Fort Stewart Association
of Educators, Federal Education Association, NEA, Case No. 98 FSIP 11 (February
5, 1998), Panel Release No. 406 (Opinion and Decision). The Panel directed
the parties to resolve their dispute through mediation-arbitration, whereby
Chair Betty Bolden was granted authority to (1) mediate with respect to
the outstanding issues and (2) issue a binding decision on any that remained
unresolved. When mediation efforts failed to result in a complete settlement
of the dispute, a hearing was conducted, and an Arbitrators Opinion and
Decision was issued essentially adopting the Employers proposal granting
teachers and teaching assistants an across-the-board increase of 3 percent,
and appropriate step increases for School Year 1997-98 retroactive to August
1, 1997.
Length of Phase-In Period for the Elimination of Overtime
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Department of Agriculture, Animal and Plant Health Inspection Service,
Plant Protection and Quarantine, Baltimore, Maryland and Local 006, National
Association of Agriculture Employees, Case No. 98 FSIP 33 (April 7, 1998),
Panel Release No. 408 (Decision and Order). The Panel determined that
the impasse, which arose from bargaining over the establishment of an evening
shift at Baltimore Washington International Airport (BWI), should be resolved
on the basis of written submissions from the parties, including rebuttals.
After receiving their submissions, the Panel adopted a compromise solution
whereby, for 2 years following the issuance of its decision, one employee
would work a regularly scheduled tour of duty, while a second would work
on a call-back basis. At the end of 2 years, the second slot would be
staffed as a regular tour of duty. The Panel concluded that a 2-year phase-in
period to allow employees to adjust to a reduction in overtime income balanced
the equities better than either of the parties proposals.
Construction of a Barrier Wall and a Reopener Provision
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Social Security Administration, Mesa Field Office and Council 147, AFGE,
AFL-CIO, Case No. 97 FSIP 146 (April 16, 1998), Panel Release No. 408 (Opinion
and Decision). The parties reached an impasse over numerous issues involving
the relocation and redesign of the Mesa Field Office. Panel Member Dolly
M. Gee was designated to mediate the dispute, and if a complete settlement
did not occur, authorized to issue an arbitration award to resolve those
issues that remained. While many of the issues were resolved during the
mediation phase of the process, Ms. Gee eventually was required to issue
a written decision regarding the two that remained concerning (1) the layout
and design of the front end interviewing (FEI) area, and (2) whether the
Union may reopen negotiations on the use of Plexiglas in the reception
counter windows no earlier than 6 months after the office relocation.
In essence, she adopted modified versions of the Unions proposals on both
issues, finding that, in the circumstances presented, the construction
of a low barrier wall in the FEI area represented a reasonable precautionary
safety measure for employees, and that permitting the Union to reopen the
issue of whether Plexiglas should be installed in the service representatives
windows no earlier than 6 months after the office relocation was reasonable.
Reduction-in-Force
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U.S. Army Corps of Engineers, South Pacific Division, San Francisco, California
and Local 49, International Federation of Professional and Technical Engineers,
Case No. 98 FSIP 64 (May 12, 1998), Panel Release No. 409 (Decision and
Order). This case concerned negotiations over the impact and implementation
of the Employers decision to conduct a reduction in force (RIF) affecting
four bargaining-unit members. The Panel determined that the parties should
meet informally with Panel Member Bonnie Prouty Castrey in an attempt to
resolve voluntarily the approximately 20 issues which were at impasse.
When the parties were unable to resolve the matter during the informal
conference, Ms. Castrey presented their final offers to the Panel, along
with her recommendations for settling the dispute. Shortly thereafter,
the Panel issued a Decision and Order in which it ordered the parties to
withdraw their proposals on a number of issues because the Employers implementation
of the RIF on May 4, 1998, had essentially rendered them moot. On the
issues of training, job duties, and access to personnel records, it ordered
the adoption of the Employers final offers, while it adopted compromise
wording on the issues of Union access to subject-matter experts for determining
the qualifications of bargaining-unit employees, bulletin boards, and the
E-Mail system, official time, and civilian performance plans. Finally,
it ordered the Employer to withdraw its proposal that the RIF MOU essentially
serve to resolve all of the parties pending unfair labor practice cases
and negotiability petitions before the Federal Labor Relations Authority,
stating that it was unwilling to waive a partys rights under the Statute.
Fugitive Felon Project
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Social Security Administration (SSA), Baltimore, Maryland and Council 220,
American Federation of Government Employees, Case No. 98 FSIP 24 (May 29,
1998), Panel Release No. 409 (Decision and Order). This case arose from
national-level bargaining over the Employers implementation of the Office
of Inspector Generals (OIG) Fugitive Felon Project, developed to meet
certain requirements of the 1997 amendment of Title XVI, the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (commonly referred to as
the Welfare Reform Act), P.L. 104-193. In particular, the parties negotiated
over the laws requirement that the SSA Commissioner furnish Federal, State,
or local law enforcement officers with information about fugitive felons
and probation and parole violators, including their addresses; the OIG
would convey information obtained by bargaining-unit employees to law enforcement
agencies. The Panel determined that the impasse should be resolved on
the basis of written submissions from the parties, including rebuttals;
the Panel was to select between the parties final offers on a package
basis, to the extent that they were otherwise legal. After considering
their final offers and written submissions, the Panel adopted the Employers
final offer to resolve the dispute. The Panel concluded that those proposals,
in conjunction with already agreed-to portions of the memorandum of understanding
being negotiated, Project instructions, and the master collective bargaining
agreement, afforded sufficient safeguards for unit employees. The adopted
proposals emphasized making contact with individuals who are fugitive felons
by telephone, discouraging them from seeking in-office interviews and,
when such individuals present themselves at field offices, giving office
managers the latitude to respond flexibly to meet situations that may arise.
FSIP SETTLEMENT CORNER
ABOUT THIS COLUMN
In addition to the issuance of final actions (i.e., Decisions and Orders
by the full Panel and Arbitrators Opinions and Decisions by its designated
representatives), the Panel also fulfills its statutory obligations by
assisting the parties in their efforts to achieve voluntary settlements.
From February 1, 1998 through May 30, 1998, Panel Members were successful
in obtaining complete settlements in the following cases.
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In Department of the Air Force, Westover Air Reserve Base, Chicopee, Massachusetts
and Local 3707, American Federation of Government Employees, AFL-CIO, Case
No. 98 FSIP 58 (closed May 5, 1998), the parties reached impasse over four
issues concerning a dress code policy for the employees in the Military
Personnel Office. Panel Member Stanley M. Fisher assisted the parties
in resolving the dispute during a telephone conference held as a preliminary
step in preparation for an informal conference.
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In Social Security Administration, Vallejo Field Office, Vallejo, California
and Local 3172, American Federation of Government Employees, AFL-CIO, Case
No. 98 FSIP 97 (closed May 28, 1998), the parties reached impasse over
the floor plan for a new field office space; Panel Member Bonnie Prouty
Castrey conducted a mediation-arbitration procedure which ultimately resulted
in a complete settlement.
GENERAL COUNSELS ADVICE TO REGIONAL DIRECTORS
ABOUT THIS COLUMN
The FLRAs General Counsel, Joseph Swerdzewski, has, among other statutory
duties, final authority over the issuance of complaints under the Federal
Service Labor-Management Relations Statute. The General Counsels 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 OGCs
position, and are not an official position of, or interpretation by, the
Authority.
PROCESSING § 7111(f) CLAIMS OF CORRUPT INFLUENCES
The General Counsel issued guidance to Regional Directors to discuss how
§ 7111(f) claims of corrupt influences should be considered in light of
the Authoritys decisions in Division of Military And Naval Affairs (New
York National Guard), Latham, New York and National Federation of Civilian
Technicians, 53 FLRA No. 17, 53 FLRA 111 (1997) and U.S. Information Agency,
Washington, D.C. and American Federation of Government Employees, Local
1812, AFL-CIO, 53 FLRA No. 85, 53 FLRA 999 (1997).
In order to file a petition for recognition, a Union petitioner must be
free from corrupt influences. When a petition is filed by a labor organization,
the labor organization/petitioner, by signing the petition form, certifies
that it has submitted to the Department of Labor and to the activity/agency
in the case, in compliance with section 7111(e) of the Statute, a roster
of its officers and representatives, a copy of its constitution and bylaws,
and a statement of its objectives. This Statutory requirement is codified
at section 2422.3(b) of the FLRA Regulations. Thus, when the Region determines
that a petitioner has complied with this section, the Region is making
a finding that the petitioner is not subject to corrupt or anti-democratic
influences.
The General Counsel also noted that violations of standards of conduct
do not automatically establish corrupt influences warranting revocation
or denial of certification of a union. If a third party with jurisdiction
over conduct alleged to constitute reasonable cause to believe that a labor
organization is subject to corrupt or anti-democratic influences finds
a violation, that finding establishes only reasonable cause to believe
that the presumption of freedom from corrupt or anti-democratic influences
has been rebutted. It does not establish that, in fact, the union is subject
to corrupt and anti-democratic influences. This finding is within the
Authoritys sole province to make.
In order to effectively process claims that a union is subject to corrupt
influences, the Regions issue a show cause order requiring the party filing
the challenge to establish a basis upon which a charge of corruption or
anti-democratic influences can be substantiated. The order requires that
the challenging party submit the following information, documents and argument:
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Whether there has been, or is currently pending, a proceeding before
a third party that is based on the same or substantially similar allegations
that support the section 7111(f) claim;
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If a third party has found no violation based on the same or substantially
similar conduct, why the challenge or petition should not be dismissed,
absent withdrawal;
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If a third party has found a violation based on the same or substantially
similar conduct, why that violation establishes under the Statute that
a labor organization is subject to corrupt or anti-democratic influences
requiring the denial or revocation of certification;
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If a third party proceeding is pending, assuming the allegations before
the third party are true, why they establish under the Statute that a labor
organization is subject to corrupt or anti-democratic influences requiring
the denial or revocation of certification; and
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If there has been no proceeding before a third party and none is currently
pending based on the same or substantially similar conduct, why the challenge
or petition should not be dismissed, absent withdrawal.
The General Counsel further advised the Regions to obtain clearance from
the Office of the General Counsel prior to staying any pending representation
proceeding because of a challenge raising corrupt or anti-democratic issues.
Similarly, in view of the small number of cases raising this issue and
the absence of Authority decisions and legislative history, after receipt
of a response to an order to show cause discussed above, the Regions obtain
clearance from the Office of the General Counsel prior to taking action
on any challenge or petition raising the corrupt or anti-democratic influences
issue.
THE IMPACT OF TRUSTEESHIPS ON REPRESENTATION PETITIONS
The General Counsel issued guidance to Regional Directors on the relationship
between trusteeships and representation petitions seeking a change in affiliation
depending upon whether the trusteeship was imposed before or after the
filing of the petition and whether the validity of the trusteeship is pending.
Trusteeship Imposed After Representation Petition is Filed
In the case where the trusteeship is imposed after the filing of the petition
the Regions continue to process the representation petition and apply Authority
precedent in Veterans Administration Hospital, Montrose, New York, 4 A/SLMR
858 (1974), review denied, 3 FLRC 259 (1975), adopted by the Authority
in Florida National Guard, St. Augustine, Florida, 25 FLRA No. 60, 25 FLRA
728 (1987). In the General Counsels view, until the Authority rules on
the issue, when a trusteeship is imposed after a reaffiliation vote and
after the filing of a petition to change the certification, the trusteeship
cannot affect the processing of the petition and the issuance of a new
certification.
Trusteeship Imposed Before Representation Petition is Filed
Where a valid trusteeship is imposed prior to the petition, the petition
is dismissed. Whether the reaffiliation vote precedes or is subsequent
to the imposition of the trusteeship, if the trusteeship is valid, the
Regions recognize the designated trustee as the representative of the Union.
The key is when the petition is filed and the validity of the trusteeship,
not when the vote to reaffiliate was taken.
Validity of a Trusteeship Pending Before the Assistant Secretary
In a situation where the validity of a trusteeship is being challenged
before the Department of Labor, the Authoritys guidance in U.S. Environmental
Protection Agency, Washington, D.C. and National Federation of Federal
Employees, Local 2050, 52 FLRA No. 76, 52 FLRA 772 (1996) (EPA) controls.
Thus, where Regional Directors determine that the trusteeship was properly
imposed, the Regional Director presumes the validity of the trusteeship
and dismisses the petition on the ground that the person purporting to
act for the incumbent labor organization has no authority to act. However,
if the Regional Director determines that the trusteeship was improperly
imposed, the petition is placed in abeyance until the Secretary renders
a decision. At that time, the Regional Director takes action as is appropriate
based on the Assistant Secretarys decision.
Validity of a Trusteeship Not Pending Before the Assistant Secretary
If there is no proceeding pending before the Assistant Secretary, the Regional
Director still determines if the trusteeship was properly imposed by:
(1) examining the procedural requirements of the parent unions constitution
and bylaws and deciding if those provisions were followed; (2) deciding
if the local union was afforded a fair hearing; and (3) determining if
the trusteeship was authorized or ratified after that hearing as provided
for in the parent unions constitution and bylaws. The Regional Director
also determines if the purpose of the trusteeship was to preclude reaffiliation.
In situations where: (1) there is no pending Department of Labor proceeding
when a petition is filed after imposition of the trusteeship; and (2) the
Region finds that the trusteeship lacks either procedural validity or was
established to block reaffiliation, the Region obtains clearance from the
Office of the General Counsel prior to continue processing the reaffiliation
petition.
GENERAL COUNSELS SETTLEMENT CORNER
ABOUT THIS COLUMN
In accordance with the OGCs 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 Comply With the Parties Memorandum of Understanding by
Providing Printers and Trackers as per the Display System Replacement Schedule
After issuance of complaint and notice of hearing, the parties agreed that
the Agency will comply with a Memorandum of Understanding (MOU) concerning
the installation of new equipment for an ARTC center. The Agreement provides
that the Agency will provide 63 printers and 29 trackers for the ARTC Center
as per the Display System Replacement deployment schedule and that any
deviations from the terms of the MOU will be made only by mutual agreement
of the parties.
Agency Agrees to Post Notice and to Expunge from its Records Any Information
Regarding the Admonishment of an Employee
In a pre-complaint settlement agreement, the parties agreed that the Agency
would post a notice to all employees at the facility stating that the Agency
will expunge from all its files, both official and unofficial, all records
of, and references to, the admonishment issued to a unit employee for engaging
in protected Union activity.
Agency Agrees to Furnish Information and Copies of Data at Least One Week
Prior to the Arbitration of Grievance
After issuance of complaint and notice of hearing, the parties agreed that
the Agency will furnish to the Union, at least one week prior to the arbitration
of the grievance, electronic mail messages and all other documents on which
the Agency relied in deciding to rescind an employees use of the Agencys
electronic mail system. The Agency will also post a notice to all employees,
signed by the Director of Labor Management Relations for the Agency, stating
that the Agency will fulfill its bargaining obligation with respect to
responding to requests for information which includes informing the Union
in a timely manner if the information does not exist and not destroying
or discarding information that has become the subject of a ULP charge before
the final disposition of the charge.
Agency Agrees to: (1) Follow Specific Procedures and Negotiate over the
Impact and Implementation of a Plan to Relocate Permanent Duty Stations;
(2) in the Future, Provide the Union with Notice and the Opportunity to
Bargain over Changes in Conditions of Employment; and (3) Reimburse Unit
Employee for Commuting Costs Incurred as a Result of a Change of Duty Station
In a pre-complaint settlement agreement, the parties agreed that the Agency
will post information stating that in the future, the Agency will provide
the Union with prior notice and the opportunity to bargain over changes
in unit employees conditions of employment, including changes in unit
employees permanent duty stations. Within 10 days of the effective date
of the agreement the Agency will provide the Union with a written explanation
of the relocation plans and a written offer to negotiate over the impact
and implementation of these plans. Upon the Unions request, within 30
days of the effective date of the agreement, the Agency agreed to negotiate
over the impact and implementation of the decision to relocate permanent
duty stations. The parties agreed that the Agency would pay a unit employee
$292.50 for the excess in commuting expenses incurred for a 3-month period
after his permanent duty station was changed.
Agency Agrees to: (1) Negotiate Prior to Requiring Employees to File Financial
Disclosure Reports, (2) Advise Employees of a Limitation of the Amount
of Financial Investment an Employee May Have in the Area of the Employees
Primary Responsibility, and (3) Grant Compensatory Time to Those Employees
Who Previously Filed These Reports
After issuance of complaint and notice of hearing, the parties agreed that
the Agency will send a memorandum to bargaining unit employees notifying
them of a settlement agreement which suspends the mandatory collection
of certain financial disclosure reports for bargaining unit employees and
allows the employees to request the return of previously-filed reports.
The parties agreed that the employees could voluntarily file the reports.
The memo also advised employees of a limitation of the amount of financial
investment an employee may have in the area of the employees primary responsibility.
The parties agreed that the Agency would grant 1 ½ hours of compensatory
time to employees who previously filed financial disclosure reports. Finally,
the parties agreed that the Agency would fulfill its bargaining obligations
under the Statute before requiring employees to file annual confidential
financial disclosure report forms.
Agency Agrees to Process Quality Step Increases and to Make Them Retroactive
to the Date They Were Actually Recommended
After issuance of complaint and notice of hearing, the parties agreed that
the Agency will process quality step increases (QSIs) for certain employees
as set forth in memoranda which recommended the QSIs. It was further agreed
that the QSIs will be made retroactive to the date which they were recommended
in the memoranda and interest will be paid on the accumulated retroactive
payment.
UNILATERAL SETTLEMENT AGREEMENTS
The following settlement agreements were approved by a Regional Director
applying the OGCs Settlement Policy over the objection of the charging
party because the settlement effectuated the purposes and policies of the
Statute:
Agency Agrees to Furnish Sanitized Information Concerning Former Office
Manager and His Family Which May Only Be Used For the Purpose For Which
it Was Requested and Which Will Not Be Revealed to Any Parties Who Are
Not Directly Involved in the Litigation of the Case
After issuance of complaint and notice of hearing, the Agency agreed to
post a notice which states its agreement to furnish the Union sanitized
copies of SS5s processed for a former unit employee and his wife and two
daughters in a two-year period. Identifying information on the SS5s will
be sanitized. The Agency also agreed that the information will not be
used for any purpose other than for the purpose for which the Union requested
the information (litigation of a specific case) and that the information
would not be revealed to any parties who are not directly involved in the
litigation.
Agency Agrees to Provide Labor-management Relations Training to Management
Personnel and Not to Interfere With, Restrain, or Coerce Employees Protected
Right to File Grievances
In a pre-complaint settlement agreement which is contained in a posting
to all employees, the Agency agreed to give the Union notice of all formal
discussions with bargaining unit members who have designated the Union
as their representative in Equal Employment Opportunity (EEO) complaints.
The Agency also agreed to notify all of its managers and EEO counselors
of its obligation to recognize and deal with the Union when it is the designated
representative for EEO complaints.
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