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17:0667(97)CA
The decision of the Authority follows:
17 FLRA No. 97
U.S. DEPARTMENT OF COMMERCE
BUREAU OF THE CENSUS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2782, AFL-CIO
Charging Party
Case No. 3-CA-30282
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, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The complaint essentially alleges that the U.S. Department of
Commerce, Bureau of the Census (the Respondent) violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by refusing to reopen contract negotiations after
the membership of the Charging Party, American Federation of Government
Employees, Local 2782, AFL-CIO (the Union), refused to ratify the
tentative agreement reached by the parties. /1/
The Union is the exclusive representative of two bargaining units of
employees of the Respondent who are located in the Washington, D.C.
metropolitan area. The parties' collective bargaining agreement, which
was ratified by the Union's membership and effectuated on June 23, 1977,
was in effect at all times material herein. Article 6 of that agreement
pertaining to the parties' negotiated ground rules, provides in
pertinent part as follows:
ARTICLE 6-- FUTURE NEGOTIATIONS
. . . .
6.2 Proposals. The initiating party shall submit its
proposals, in writing, at least 40 days prior to the scheduled
commencement of negotiations. Following receipt of such
proposals, the other party shall have no more than 20 days in
which to submit, also in writing, any counterproposals or new
matter. No new matter will be admitted for negotiation from
either party following the first 12 hours of negotiations; either
party may at any time submit counterproposals to or modifications
of proposals previously admitted. . . .
6.3 Signifying Agreement. When agreement is reached upon any
proposal, or any part of a proposal, the two chief negotiators
shall signify such agreement, either through their initials or
through some other device, on the face of the proposal. Such
signification shall not, however, preclude the parties from
mutually agreeing to reconsider or revise previously approved
proposals at any time prior to the formal termination of
negotiations. . . .
. . . .
6.7 Effective Date. Any substantive agreement reached shall
become effective between the parties on the date of signing,
following ratification by the membership and approval by the
National President of the Union, and approval by the Director.
On or about June 11, 1980, the Respondent and the Union commenced
negotiations for a new collective bargaining agreement which after
numerous sessions was completed on September 1, 1982. /2/ Thereafter,
the Respondent and the Union initialed off on a final package of
proposals to constitute their tentative collective bargaining agreement.
The Respondent was informed by the Union at that time that the
tentative agreement would be placed before its membership for a
ratification vote. On or about September 23, the Union's membership,
after having reviewed the subject agreement, voted against ratification.
On or about September 24, the Union notified the Respondent of the
outcome of the ratification vote and requested the resumption of
negotiations.
On or about October 21, the Respondent wrote to the Union noting,
inter alia, that in light of the vote not to ratify the tentative
agreement, it was incumbent on the Union to submit proposals in advance
of further negotiations; the Respondent also in such letter, and again
on or about November 4, requested the Union to clarify the bargaining
authority of its negotiators. The Union submitted 26 proposals on
December 29, certain of which concerned matters not previously proposed
during the period between June 1980 and December 29, 1982, and whose
omission from the tentative contract had been noted by the Union's
membership as a reason for its rejection.
By letter dated January 19, 1983, the Respondent, noting the Union's
proposals, informed the latter that it would, pursuant to Article 6.3 of
the ground rules, reconsider only those six provisions which the parties
had previously negotiated and embodied in their tentative agreement.
Thereafter, on February 1, 1983, the Union filed the unfair labor
practice charge herein.
For the reasons discussed below, the Authority concludes that the
Respondent's admitted refusal to reopen negotiations, pursuant to the
Union's request, except for the six items listed in its memorandum of
January 19, 1983, constitutes a violation of section 7116(a)(1) and (5)
of the Statute.
Section 7114(a)(4) and (b)(2) of the Statute provides, in relevant
part, as follows:
Sec. 7114. Representation rights and duties
. . . .
(a)(4) Any agency and any exclusive representative in any
appropriate unit in the agency, through appropriate
representatives, shall meet and negotiate in good faith for the
purposes of arriving at a collective bargaining agreement. . . .
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
. . . .
(2) to . . . discuss and negotiate on any condition of
employment(.)
It is apparent from the specific language of the aforementioned
provisions of the Statute that an agency and the exclusive
representative of its unit employees have an obligation to negotiate in
good faith with respect to any condition of employment affecting unit
employees in an effort to arrive at a collective bargaining agreement.
The exclusive representative may, however, waive its statutory right to
negotiate on such matters by clear and unmistakable conduct. Library of
Congress, 9 FLRA 427 (1982); Department of the Air Force, U.S. Air
Force Academy, 6 FLRA 548 (1981); Department of the Air Force, Scott
Air Force Base, Illinois, 5 FLRA 9 (1981). Further, with respect to the
bargaining process, the Authority has found that ratification of a
tentative agreement by a union's membership may be a precondition to a
binding agreement. Department of Navy, Norfolk Naval Shipyard,
Portsmouth, Virginia, 13 FLRA 571 (1984).
The Respondent argues that by virtue of Article 6.3 of the parties'
ground rules, which precludes the reconsideration or revision of
proposals previously approved by the parties absent mutual agreement,
the Union waived its right to reopen contract negotiations in the wake
of the ratification vote. The Authority disagrees. In so concluding,
the Authority finds that the Union did not clearly and unmistakably
waive its right to reopen contract negotiations. In this regard,
Article 6.7 of the parties' ground rules on its face specifically
provides for "ratification by the membership" prior to any substantive
agreement becoming effective. Also, the stipulated record reveals that
the parties' existing collective bargaining agreement had been ratified
by the Union's membership prior to its effectuation, and that on the
date the parties initialed off on their final package of proposals
herein, the Union informed the Respondent that such proposals would be
placed before its membership for a ratification vote. Therefore, under
these circumstances, the Authority finds that ratification by the
Union's membership was a precondition to a binding agreement, and that
neither the language of Article 6 of the parties' ground rules nor the
record evidence establishes that the Union clearly and unmistakably
waived its right to reopen contract negotiations following a failure to
ratify the tentative agreement.
At the same time, the Respondent's obligation to bargain is not
without limits under the facts presented. Irrespective of ratification
procedures, Article 6.2 clearly limits the rights of the parties to
raise new matters after the first twelve hours of negotiations.
Pursuant to that contractual provision, the Respondent is not obligated
to negotiate on proposals which are entirely new or which are not
"counterproposals to or modifications of proposals previously admitted .
. . ." Examples of new matters raised by the Union in its proposals
submitted after the ratification vote include a Mini-Arbitration
procedure and the contemplated establishment of a Day Care Center rather
than a Task Force to study the feasibility of such a center.
Since the record reveals that the Respondent refused to negotiate
over certain Union proposals dated December 29, 1982, which were not
entirely new matter, the Authority finds that the Respondent violated
section 7116(a)(1) and (5) of the Statute when it refused to reopen
contract negotiations on such proposals after the Union's membership
refused to ratify the tentative agreement reached by the parties. See
Norfolk Naval Shipyard, 9 FLRA 36 (1982), aff'd sub nom. Tidewater
Virginia Federal Employees Metal Trades Council v. FLRA. No. 82-1876
(D.C. Cir. May 4, 1983).
Accordingly, in view of the foregoing, the Authority concludes that
the Respondent violated section 7116(a)(1) and (5) of the Statute by
refusing to reopen contract negotiations after the Union's membership
refused to ratify the tentative agreement reached by the parties.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the U.S. Department of Commerce, Bureau of the Census shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate in good faith with the American
Federation of Government Employees, Local 2782, AFL-CIO, the exclusive
representative of its employees, with respect to conditions of
employment relating to negotiations for a new collective bargaining
agreement.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
Local 2782, AFL-CIO, the exclusive representative of its employees,
bargain with respect to conditions of employment relating to matters
previously raised during negotiations for a new collective bargaining
agreement, subject to any contractual agreement which may have been
reached and approved by the parties subsequent to December 29, 1982.
(b) Post at all of its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by the Director of the Bureau
of the Census, or his or her designee, 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.
(c) 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.
Issued, Washington, D.C., April 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 refuse to negotiate in good faith with the American
Federation of Government Employees, Local 2782, AFL-CIO, the exclusive
bargaining representative of our employees, with respect to conditions
of employment relating to negotiations for a new collective bargaining
agreement. WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights assured by
the Federal Service Labor-Management Relations Statute. WE WILL
negotiate in good faith with the American Federation of Government
Employees, LOCAL 2782, AFL-CIO, the exclusive bargaining representative
of our employees, upon request, with respect to conditions of employment
relating to matters previously raised during negotiations for a new
collective bargaining agreement, subject to any contractual agreement
which may have been reached and approved by the parties subsequent to
December 29, 1982.
(Agency or Activity)
Dated: . . . By: (Signature) (Title) 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 or compliance with its provisions,
they may communicate directly with the Regional Director, Region III,
Federal Labor Relations Authority, whose address is: 1111 18th Street,
N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8500.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Hereinafter, all dates refer to the year 1982 unless otherwise
indicated.