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12:0009(4)CA
The decision of the Authority follows:
12 FLRA No. 4
U.S. DEPARTMENT OF JUSTICE
FEDERAL PRISON SYSTEM
Respondent
and
COUNCIL OF PRISON LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-2000
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts and the parties' contentions, the Authority finds:
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) when it failed and refused to grant
official time to the Union's employee representative for negotiations
over the impact and implementation of a memorandum issued by the
Respondent entitled "Guidelines for Questioning Employees Regarding
Misconduct." By such conduct it is alleged that the Respondent failed to
comply with the requirements of section 7131(a) of the Statute /1/ and
further refused to negotiate in good faith within the meaning of section
7116(a)(5) of the Statute.
The stipulated record reflects that the Respondent notified the Union
of its intended issuance of the Guidelines on November 13, 1980; that
subsequent to such notification, the Guidelines were issued on November
24, 1980; and that thereafter, on January 9, 1981, the Union requested
to bargain over the impact and implementation of such Guidelines. The
record further reflects that the parties scheduled negotiations for
January 29, 1981. However, the Respondent informed the Union that it
would not grant official time to the Union's designated employee
representative for such negotiations. /2/ Having been so informed by
the Respondent, the Union employed the services of an attorney who
conducted negotiations concerning such matters on January 29, 1981, as
scheduled, and reached agreement with management over the matters in
dispute.
The Respondent takes the position, among other things, that inasmuch
as the Union's request to bargain was made some 56 days after the Union
was given notice of the impending issuance of the Guidelines, it was
under neither a statutory nor a contractual /3/ obligation to bargain.
Therefore, the Respondent argues, its decision to bargain was an
"election" which carried with it no obligation to provide official time
to the Union representative.
The Authority finds no merit to the Respondent's argument. As
previously noted by the Authority, the Statute requires that, prior to
effecting a change in established conditions of employment, an agency
must give the exclusive representative adequate advance notice and an
opportunity to negotiate over such change and/or the impact and
implementation thereof. See, e.g., Department of Treasury, Internal
Revenue Service, Jacksonville District, 3 FLRA 630 (1980). The record
reflects that, following notice to the Union, the Respondent did
initiate a change in conditions of employment, and, upon the subsequent
request of the Union, did enter into negotiations over the impact and
implementation of such change. Nothing in the stipulated record
indicates that the Respondent and the Union (as exclusive representative
of the Respondent's employees) undertook these negotiations other than
in fulfillment of their mutual obligation under the Statute to bargain
in good faith with respect to the impact and implementation of the
Respondent's decision to effectuate a change in conditions of
employment, /4/ or that the Union was asked to or in fact did waive its
employee negotiator's right to critical time under section 7131(a) of
the Statute /5/ for such negotiations. While it may be argued that the
Respondent could have refused to bargain because the Union, by its
delayed request for negotiations, had waived its contractual or
statutory right to request and participate in such negotiations, that
issue is not before the Authority inasmuch as, in fact, the parties
herein did engage in collective bargaining pursuant to the obligation to
negotiate concerning a change in conditions of employment of the
Respondent. Consistent with the Authority's decision in Bureau of
Alcohol, Tobacco and Firearms, Western Region, Department of Treasury,
San Francisco, California, 4 FLRA No. 40 (1980), enforced sub nom.
Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 672 F.2d 732, 736-37 (9th Cir. 1982), /6/ and the rationale
set forth therein, it follows that the Respondent, by entering into
collective bargaining within the meaning of section 7131(a) of the
Statute, was obligated, upon request, to provide official time to the
Union's designated employee negotiator during such negotiations.
Inasmuch as the Respondent failed and refused to grant the Union's
request for official time, it thereby failed and refused to comply with
section 7131(a) of the Statute in violation of section 7116(a)(1) and
(8) of the Statute. /7/
The Charging Party contended in its brief that it should be made
whole for the fees of the private attorney used to conduct negotiations.
However, the Authority concludes that such a remedy would not be
appropriate, noting particularly that the record fails to establish that
the employee who was entitled to but unlawfully denied official time
under section 7131(a) to participate as the Union's designated
representative in negotiations with the Respondent during his regular
work hours and when he would otherwise be in a work or paid leave status
also had been prevented from participating in such negotiations at all.
Thus, where the employee could have participated in negotiations on
annual leave or leave without pay and was entitled under the Statute to
be made whole thereafter for the denial of official time to him for such
negotiations, but the Union instead chose to retain outside counsel, the
Authority finds that reimbursement of the Union's attorney's fees would
not be appropriate. In so concluding, the Authority finds it
unnecessary to determine generally whether, or under what circumstances,
it would be appropriate to reimburse an exclusive representative for
attorney's fees.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the U.S.
Department of Justice, Federal Prison System, shall:
1. Cease and desist from:
(a) Failing and refusing to grant official time to employee Michael
Musky pursuant to the requirements of section 7131(a) of the Federal
Service Labor-Management Relations Statute, as requested, for his
participation as the representative of the Council of Prison Locals,
American Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, in scheduled mid-term negotiations.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute.
(a) Post at its facilities, where bargaining unit employees are
located, copies of the attached Notice of forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by an appropriate official and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegation of the complaint
be, and it hereby is, dismissed.
Issued, Washington, D.C., April 14, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to grant official time to employee
Michael Musky pursuant to the requirements of section 7131(a) of the
Federal Service Labor-Management Relations Statute, as requested, for
his participation as the representative of the Council of Prison Locals,
American Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, in scheduled mid-term negotiations.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Agency/Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice of compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202)653-8507.
--------------- FOOTNOTES$ ---------------
/1/ Section 7131(a) provides:
(a) Any employee representing an exclusive representative in
the negotiation of a collective bargaining agreement under this
chapter shall be authorized official time for such purposes,
including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of
employees for whom official time ia authorized under this
subsection shall not exceed the number of individuals designated
as representing the agency for such purposes.
/2/ As stipulated by the parties, the Respondent maintains a policy
of not granting Union representatives official time for impact
bargaining.
/3/ The parties' negotiated agreement, Article 3, Section (b),
provides in pertinent part that "the Union will have up to thirty
calendar days for review of these proposed issuances, submission of the
Union's comments, and/or requesting negotiations."
/4/ Such bargaining between the parties at the level of exclusive
recognition constituted "the negotiation of a collective bargaining
agreement" within the meaning of section 7131(a) of the Statute, as
distinguished from negotiations such as local supplements to agreements
reached at the level of exclusive recognition which fall within section
7131(d) of the Statute. See Interpretation and Guidance, 7 FLRA No. 105
(1982).
/5/ Cf. Nuclear Regulatory Commission, 8 FLRA No. 124 (1982) (wherein
the Authority found that the union clearly and unmistakably waived
entitlement to travel and per diem while on official time pursuant to
section 7131).
/6/ But see Division of Military and Naval Affairs, State of New York
(Albany, New York), 7 FLRA No. 69 (1981), reversed sub nom. Division of
Military and Naval Affairs v. Federal Labor Relations Authority, 683
F.2d 45 (2d Cir. 1982); U.S. Department of Agriculture, Science and
Education Administration, Agricultural Research, North Central Region,
Dakotas-Alaska Area, 6 FLRA No. 45 (1981), reversed sub nom. United
States Department of Agriculture v. Federal Labor Relations Authority,
No. 81-1948 (8th Cir. Aug. 9, 1982), and Florida National Guard, 5 FLRA
No. 49 (1981), reversed sub nom., Florida National Guard and Department
of Defense v. Federal Labor Relations Authority, No. 81-5466 (11th Cir.
Mar. 7, 1983).
/7/ However, inasmuch as the parties did in fact negotiate and reach
an agreement, the Authority finds no violation of section 7116(a)(5) of
the Statute. See, e.g., Department of the Air Force, Air Force
Logistics Command, Wright patterson Air Force Base, Ohio, 10 FLRA No. 53
(1982).