[ v17 p972 ]
17:0972(132)CA
The decision of the Authority follows:
17 FLRA No. 132
NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-20672
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision in this
regard were filed by the Respondent and an opposition thereto was filed
by the Charging Party. /1/ The Judge found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended dismissal of those portions of the complaint. No
exceptions were filed to the Judge's Decision in this regard.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by unilaterally changing an established past
practice that allowed unit employees who filed grievances under the
agency's grievance procedure challenging their nonselection for
supervisory positions to be represented by union stewards, without first
affording the Charging Party proper notice and an opportunity to bargain
with regard to such change.
The Judge found that, while the Respondent was not obligated to
bargain with the Union as to the role the Union would have in agency
procedures to challenge supervisory selections or as to who would be
allowed to represent employees in those proceedings, the Respondent was
not precluded from bargaining on such matters. He further found that
the Respondent had bargained about and established a practice of
allowing Union stewards to represent employees as personal
representatives in supervisory selection grievances, and that it
violated section 7116(a)(1) and (5) of the Statute by terminating such
practice without first affording the Union adequate notice and an
opportunity to bargain concerning the change. The Authority disagrees.
The Respondent contends, inter alia, that the Judge erred in finding
that the Respondent had agreed to or allowed a practice to develop of
allowing Union stewards to represent employees as personal
representatives in supervisory selection grievances and, in any event,
in concluding that the Respondent's actions involved a change in a
condition of employment of bargaining unit employees.
In reaching his conclusion in this case, the Judge reviewed the role
the Union had taken in several grievances over a period of approximately
three years. He also reviewed the exchange of correspondence between
the parties during that time on the subject of the Union's role in the
grievances, and found that "such conduct on Respondent's part was
tantamount to having bargained with the Union concerning steward's
representation." We disagree. While we agree with the Judge that an
agency is not precluded from bargaining as to the role a labor
organization may take in agency promotion procedures to challenge
supervisory selections, /2/ we find that the record evidence does not
support the Judge's finding that the Respondent's conduct amounted to
bargaining with regard to the Union's role herein. At most, a practice
developed whereby the Respondent accepted as representatives of
grievants, on an ad hoc basis, persons who were sometimes identified as
stewards, and sometimes only as personal representatives. It is not
clear that, when identified as personal representatives, they were also
being recognized in their capacity as stewards. In fact, in our view,
the very exchange of correspondence relied upon by the Judge leads
rather to the conclusion that no agreement as to the exact role the
Union may take was reached, but instead continued to be a matter in
dispute.
It is well settled that procedures for filling supervisory positions
are matters outside the duty to bargain, as such procedures concern
non-bargaining unit positions and do not concern conditions of
employment of bargaining unit employees within the meaning of section
7103(a)(14), and that a change in such procedures therefore does not
constitute a violation of section 7116(a)(1) or (5) of the Statute. /3/
In the Authority's view, procedures for challenging the selection of
supervisors are integrally related to the procedures for filling
supervisory positions. Therefore, since the Respondent had no duty to
bargain concerning the supervisory selection process itself, the
Authority concludes that the Respondent also had no obligation under the
Statute to bargain concerning the role of the Union, if any, in agency
procedures to challenge supervisory selections, inasmuch as such matters
similarly do not concern conditions of employment within the meaning of
section 7103(a)(14) of the Statute. In this regard, the Authority notes
that section 7102(e) of the Statute /4/ provides that employees have the
right to engage in collective bargaining, through their exclusive
representative(s), with respect to conditions of employment. It follows
that employees' exclusive representative(s) also have the statutory
right to represent employees only with respect to their conditions of
employment. Having determined that the matters here involved do not
concern conditions of employment of bargaining unit employees, the
Authority concludes that the Respondent did not violate section
7116(a)(1) or (5) of the Statute by unilaterally changing a past
practice concerning the representation of unit employees in these
matters. Accordingly, and noting particularly that no exceptions were
filed with respect to the Judge's recommended dismissal of certain other
allegations of the complaint, the Authority shall order that the
complaint be dismissed in its entirety. /5/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20672 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., May 10, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Dennis C. Dambly, Esq. and
James E. Cradock, Esq.
For the Respondent
Mary W. Haller, Esq. and
James R. Lawrence, Esq. on the brief
For the Charging Party
Carol J. Dixon, Esq. and
Bruce D. Rosenstein, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq.
Upon an unfair labor practice charge filed by the National Treasury
Employees Union (herein referred to as NTEU or the Union) on July 16,
1982 against the Nuclear Regulatory Commission (herein referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region III, issued a Complaint and Notice of Hearing on
September 30, 1982 alleging Respondent unilaterally changed an
established practice of allowing Union stewards to represent unit
employees filing grievances concerning supervisory selections under the
agency grievance procedure.
A hearing on the Complaint was conducted on November 30, 1982 in
Washington, D.C., at which time all parties were represented by counsel
and afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses and argue orally. Briefs were filed by all
parties and were duly considered.
Upon the entire record in this matter /6/ and from my evaluation of
the evidence, I make the following:
Findings of Fact and Conclusions of Law
Issues
Essentially, the General Counsel contends that on June 14, 1982
Respondent unilaterally terminated a practice of allowing Union
stewards, both in their capacities as Union officials and personal
representatives, to represent bargaining unit employees who were
grieving their non-selection to supervisory positions through the agency
grievance procedures.
Respondent denies that a practice of permitting Union stewards in
their capacity as Union officials to represent employees ever existed
and contends that if such a practice did exist, the application of
section 7116(a)(4)(A) of the Statute precludes a finding of violation
regarding its termination. /7/ Respondent admits the existence of a
practice of permitting Union stewards to act as personal representatives
of employees who were grieving their non-selection to supervisory
positions under the agency grievance procedure, but contends the
unilateral discontinuance of the practice did not violate the Statute
since Respondent's action involves a matter which is not a working
condition within the meaning of the Statute. Background and the Alleged
Practice
At all times since November 1978 the Union has been the exclusive
collective bargaining representative of various of Respondent's
employees. Union representation is provided employees through NTEU
Chapter 208.
The record reveals that prior to the filing of this unfair labor
practice charge, nine employees had grievances concerning their
non-selection to supervisory positions processed by Respondent under the
agency grievance machinery, the only procedure available to contest such
matters. The agency grievance procedure, set forth in NRC Manual
Chapter 4157 and in effect at all times prior to November 30, 1982,
provides in section B.1.d. that employees shall have the right to " . .
. be accompanied, represented, and advised by representatives of their
own choosing in presenting grievances." Section B.3. pertains to the
rights of unions in these proceedings and provides:
"Employee Unions. An employee union which has been granted
exclusive recognition for the bargaining unit in which an employee
is located shall have the opportunity to be represented at formal
discussions between the employee and NRC officials which relate to
the adjustment of the grievance. Nothing in this provision shall
preclude employees from handling their own grievances, if they
wish, or choosing their own representatives. Employee unions may
not initiate grievances under the provisions of this chapter but
may present a grievance on behalf of an employee or group of
employees in the recognized bargaining unit in accordance with the
appropriate provisions of the collective bargaining agreement
currently in effect."
After the Union became the exclusive representative, employee Harry
Mitchell filed the first grievance concerning an employees'
non-selection for a supervisory position on September 19, 1979.
Thereafter, the Union filed another grievance on behalf of Mitchell
relative to the dispute. The matter was subsequently heard at step 3 by
a Grievance Examiner. /8/ During the grievance proceedings Mitchell was
represented by a Union steward at the early stages. When that steward
left the agency another steward, Martin Levy, was appointed by the
Chapter 208 President to represent Mitchell and Levy thereafter
"handled" the grievance on behalf of Mitchell. When the grievance came
to be heard by a Grievance Examiner, Martha Finlaton, NTEU Assistant
Counsel and Martin Levy appeared as co-counsel, the appearance portion
of the Grievance Examiner Report and Recommendation stating:
"Martha Finlaton, Esq.
Martin Levy, Esq.
National Treasury Employees Union for the Grievant."
Subsequently, Respondent's official who reviewed the grievance adopted
the findings and conclusions of the Examiner. The letter of the
reviewing official notifying the parties of this action was sent to
Finlaton, identified as Assistant Counsel, NTEU and Levy, who was
identified as "Steward."
The second, unit employee who utilized the agency grievance procedure
concerning a supervisory selection was James Snell. Snell filed five
grievances concerning five separate supervisory vacancy announcements in
late November 1980. The grievances were first filed under a negotiated
Interim Agreement between the Union and Respondent which existed at the
time. In its initial response management indicated that the proper
manner of proceeding with such grievances was under the agency
procedures and James Thomas, Chapter President and also a steward,
subsequently refiled the grievance under that procedure. By memorandum
dated January 13, 1981 from Snell to management, Snell appointed five
individuals including Thomas as "personal representatives." The
memorandum listed the five individuals by name and gave no indication
that they were Union officials although the record reveals that at least
four of the five persons were Union stewards. /9/ When the grievances
went to the final step under the agency procedure, presentation before a
Grievance Examiner, Thomas appeared as Snell's "personal representative"
for two of the grievances and two other stewards represented Snell for
the remaining three grievances.
The next employee involved in a supervisory selection grievance was
Frank Costello. On January 8, 1981, steward Martin Levy sent a
memorandum on Union stationery to management which began: "In
accordance with NRC Manual Chapter 4157, specifically paragraphs 041 and
A.4.c. among others, on behalf of Mr. Frank Costello, I wish to file a
Grievance. Mr. Costello has requested that I act as his
Representative." The letter was signed "Martin Levy, Steward NTEU
Chapter 208." Levy sent another letter to management on Union stationery
concerning the processing of this grievance on March 13, 1981. In that
letter Levy stated, inter alia:
"Also, it is my understanding that for some obscure reason, the
Labor Relations Branch Personnel are advising Management Officials
that the Union can not represent Bargaining Unit Employees for
certain grievances. Since the law clearly gives the Union the
authority to represent Bargaining Unit Employees in all
grievances, we find this action disturbing. However, if you
accept this premise, then I am filing this request for a hearing,
under protest, as the personal representative of the Bargaining
Unit Employee. If you recognize the right of the Union to
represent Bargaining Unit Employees in all matters which they can
grieve, then I am representing the Bargaining Unit Employee as the
Chief Steward of NTEU Chapter 208."
When management next responded to matters concerning the Costello
grievance on April 1, 1981, its memorandum was addressed to "Martin
Levy, Personal Representative for Mr. Costello" and referred to Levy in
that manner again in the text of the letter.
The fourth supervisory selection grievance involved employee Paul
Guinn. In a memorandum dated February 19, 1981 to management "key line
official" Vandy Miller, signed by Jim Thomas, President, NTEU Chapter
208, /10/ on Union stationery, Thomas indicated that he was filing a
grievance under Manual Chapter 4157 concerning Guinn. /11/ After naming
Guinn as the grieving employee and setting forth details relating to the
grievance, Thomas concluded: "The grievant has requested that NTEU
represent him in this matter. Acting in that capacity, I hereby request
that you waive further meetings . . ." On March 1, 1981, Paul Bird,
Respondent's Director, Division of Organization and Personnel, sent a
memorandum to Thomas with the subject heading: "Role of NTEU in Agency
Grievance Procedure." The memorandum stated, as follows:
"This is in reference to your memorandum dated February 19,
1981, to Vandy Miller in which you filed a formal grievance on
behalf of Paul Guinn under the Agency Grievance Procedure, NRC
Appendix 4157. A copy of this memorandum was subsequently
referred to me to clarify the Union's rule in an Agency grievance.
NRC Chapter 4157-032 delegates this responsibility to the
Director, Division of Organization and Personnel. Mr. Miller
believes and I agree that such a clarification is necessary before
he issues an official response to the grievance.
"The matter in question is the first sentence in your last
paragraph-- 'The grievant has requested that NTEU represent him in
this matter.' NRC Appendix 4157, Part B.3. states that 'Employee
unions may not initiate grievances under the provisions of this
chapter but may present a grievance on behalf of an employee or
group of employees in the recognized bargaining unit in accordance
with the appropriate provisions of the collective bargaining
currently in agreement effect.' Since the grievance concerns a
non-bargaining unit position, the interim agreement is not
applicable. The proper channel, therefore, is the agency
grievance procedure. However, since NTEU as an entity is
prohibited from initiating a grievance under 4157, the above
grievance is improperly filed.
"If Mr. Guinn wants you to represent him in this matter, you
may do so only as his personal representative. Should the NTEU
wish to have a representative present at any formal discussion
between Mr. Guinn and NRC officials regarding this grievance, such
will be permitted. Please be advised that the above
interpretation applies to any subsequent grievances filed by the
Union under 4157. . . . "
On March 4, 1981, Thomas sent Miller the following Memorandum on
Union stationery:
"I received on this date a memorandum from Paul Bird, Director
of Personnel, indicating that it is the NRC's position that the
February 19, 1981 formal agency grievance appeal which I filed
with you on behalf of Paul Guinn is improper. The basis for this
assessment is that 4157, Part B.3 precludes Unions from filing
agency grievances on behalf of employees. While I personally
disagree with this interpretation, I am forced to follow it.
Therefore, please consider this memorandum as a modification of
the February 19 grievance appeal which deletes all references to
Union representation and inserts the phrase personal
representative in its place.
"Please be further advised that Chapter 208 is following this
management directive under protest. As such, we do not forfeit
any right to appeal the management decision to preclude Union
representation in agency grievances.
"Finally, now that the matter of Union representation on this
case has been resolved, I would appreciate your complying with my
request for a prompt response to the grievance appeal, if at all
possible."
Thomas signed the document as "President, NTEU Chapter 208."
On March 18, 1981 "key line official " Miller denied Guinn's
grievance. Miller's memorandum was addressed to Thomas as
President of NTEU Chapter 208 and indicated it was a response to
"the grievance you filed on behalf of Paul Guinn . . . " also
refers to the Guinn grievance as "your grievance."
Thomas appealed Miller's denial of Guinn's grievance to the Division
Director. The appeal, written on plain letterhead on March 26, 1981 and
signed by Thomas, President, NTEU Chapter 208 stated, inter alia:
"Pursuant to NRC Manual and Appendix 4157, I wish to appeal the
March 18, 1981 denial of the formal agency grievance filed on
behalf of Paul Guinn on February 19, 1981 and amended on March 4,
1981. Please be advised that I am acting as Mr. Guinn's personal
representative in this matter under protest; NTEU Chapter 208
maintains that the Union should be allowed to represent employees
in the bargaining unit as an entity and not be required to
designate personal representatives. This information is not being
furnished as an issue in this grievance but merely to preserve our
right to contest management's decision to disallow Union
representation to bargaining unit employees at a later date."
The record does not disclose any further communication between the
parties regarding this matter.
The next grievance considered was that involving employee Jack Bell
which was initiated on February 23, 1981. Chief Steward Martin Levy
represented Bell and the record reveals that Levy's correspondence to
management was written on Union stationery and signed by Levy as Chief
Steward, NTEU Chapter 208. In one of those letters Levy stated that ".
. . it is our understanding that based on the Civil Service Reform Act
of 1978, a union official has a right to represent a bargaining unit
employee and to do so as a union official." However, the grievance
involved two separate matters; one dealing with a non-selection issue
under the agency procedure and the other concerning the proper "key line
official" under the negotiated Interim Agreement and it is not clear as
to what Levy's comment regarding the rights of Union officials apply.
Respondent's subsequent correspondence to Levy addressed him as Chief
Steward of NTEU Chapter 208, but in correspondence of August 26, 1981 to
Chapter 208 President, James Thomas from one of Respondent's attorneys'
concerning this matter, the attorney referred to a previous meeting of
July 30 wherein Thomas and Levy acted as personal representatives for
Bell and Paul Guinn, who also had a grievance under consideration at the
time. At some undisclosed time when the Bell grievance involved a
proceeding before Judge Greg, who I assume was a Grievance Examiner,
Levy identified himself as Bell's personal representative.
The sixth supervisory selection grievance concerned employee John
Nehemias. On June 19, 1981 a formal written grievance was filed with
Respondent under Union letterhead by Lynne O'Reilly, who identified
herself as a steward for NTEU Chapter 208. O'Reilly indicated in the
grievance that Nehemias requested she represent him in the matter. The
grievance was resolved informally. The agency's covering memorandum
returning the grievance to O'Reilly on July 9 identified O'Reilly as a
personal representative and did not refer to her as a steward.
The seventh grievance involved employee Peter Hearn and was submitted
on August 17, 1981 by steward Leah Tremper in the same manner as the
Nehemias grievance. Management's response to Tremper of October 2, 1982
and a subsequent notification of the scheduling of a hearing in the
matter identified Tremper as steward for NTEU Chapter 208. When
Respondent notified Tremper on April 19, 1982 of its final disposition
of the matter, it referred to Tremper only as "personal representative."
The eighth grievance concerned employee Leonard Gordon and was filed
by steward Martin Levy on September 10, 1981, again, in the same manner
as the prior two grievances considered herein. Management's response to
Levy on October 7, 1981 referred to Levy only as "personal
representative" as did management's notification to Levy of its final
disposition of the matter on January 26, 1982.
The last grievance processed under Manual Chapter 4157 was filed on
July 16, 1981 by steward Teresa Barnhart on behalf of employee Gary
Staley. This grievance was filed in the same format as the prior three
grievances, above. Management's first response to Barnhart identified
her as steward for NTEU Chapter 208. An interim decision by management
was adverse to Staley and by memorandum of September 4, 1981, under
Union letterhead and signed by Barnhart as steward for NTEU Chapter 208,
Barnhart took issue with the decision. In the text of the memorandum
Barnhart stated she was appealing the decision "as personal
representative and Union Steward for Gary B. Staley." The matter went to
hearing before an examiner at which time Barnhart was referred to and
acted as Staley's "personal representative" and Chief Steward Martin
Levy was referred to as "the Union's representative." /12/ Management's
final disposition of the matter was transmitted to Barnhart on February
3, 1982, and identified Barnhart only as "personal representative."
On June 4, 1982 Steward Allen Brodsky filed a written supervisory
selection grievance under Manual Chapter 4157 on behalf of James Martin
in the same format as the prior four grievances. On June 14, 1982 Greg
Benoit, Respondent's Chief of Labor Relations Branch, sent the following
memorandum to Brodsky:
"This is to inform you that we are rejecting the grievance you
filed, dated June 4, 1982, on behalf of Mr. James A. Martin, Jr.
We are rejecting this grievance because we feel it is a conflict
of interest for a potential SES member to be represented by the
National Treasury Employees Union (NTEU). It is our feeling that
if you were to prevail in Mr. Martin's behalf he would be beholden
to you personally and to the NTEU. We feel it would be improper
for a member of the SES to have an indebtedness to NTEU.
"We will allow Mr. Martin 10 days from the date of your receipt
of this memorandum to refile his grievance represented by someone
other than an NTEU Steward or officer."
Union President Thomas strongly objected to Respondent's action and
by memorandum of July 2, 1982 to Thomas, Benoit re-asserted and further
supported management's position on excluding Union representation in
grievances involving selections for upservisory positions. Discussion
As stated above, Counsel for the General Counsel contends that prior
to June 14, 1982 a practice existed whereby Union stewards, in their
capacity as Union officials, were permitted to represent employees in
supervisory selection grievances. It is well settled that in order to
establish a term and condition of employment by practice, under the
Statute the practice must have been consistently exercised for a
substantial period of time with the employer's knowledge and consent.
Department of the Navy, Naval Underwater Systems Center, Newport Naval
Base, 3 FLRA 413 (1980); and Social Security Administration,
Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982).
In the case herein, while the evidence relative to the Mitchell
grievance (the first) may tend to support the General Counsel's
contention, the next grievance (Snell) is more ambiguous. In the Snell
grievance the Union steward is identified both as "steward" and
"personal representative" and it does not appear that during the
processing of this matter the Union ever clearly and expressly declared
its intention to management that the Union was representing employees
through its steward.
The next grievance (Costello) was also initiated in a somewhat
ambiguous manner. However, during the processing of the following
grievance, that involving employee Guinn, the Union, qua Union, clearly
disclosed its intention to act as the employee's representative in the
grievance. Respondent's reaction was equally clear. Thus, Respondent
on March 1, 1981 specifically rejected Union representation of Guinn,
although Respondent obviously had no objection to Union stewards
representing employees as "personal representatives" and on March 4 the
Union acceded to Respondent's position, albeit under protest. Chief
Steward Levy's March 13, 1981 memorandum to Respondent when processing
the Costello grievance recognized that Respondent's Labor Relations
Branch was sensitive to the Union acting in a representational capacity
for employees when the agency grievance procedure was invoked and Levy
indicated he was representing Costello as Union Chief Steward or as
Costello's personal representative, whichever would be acceptable to
Respondent, again under protest. Management's subsequent communication
to Levy addressed him as Costello's "personal representative," thus
indicating it was rejecting Union representation in the matter.
Thereafter, Respondent's conduct in all the following grievance
proceedings was consistent with this practice and Union stewards,
although referring to themselves as stewards, never again indicated they
were claiming to represent employees in their capacity as officials of
the Union or that the Union, qua Union, was representing the
individuals.
In view of the foregoing, I find that the standards set by the
Authority for finding the existence of a practice, Department of the
Navy, supra and Social Security Administration, supra have not been met
and accordingly, I conclude that the evidence is insufficient to
establish that a practice of allowing the Union or Union stewards, as
Union officials, to represent employees in Manual Chapter 4157
proceedings concerning supervisory selections ever existed. In any
event, I find that if such a practice existed it was discontinued on
March 1, 1981. Since no unfair labor practice charge concerning the
discontinuance was filed within 6 months of such action, I conclude the
matter is not a proper subject for litigation herein by virtue of the
provisions of section 7118(a)(4)(A) of the Statute, supra.
I further find and conclude, as indeed Respondent admits, that prior
to June 14, 1982 a practice existed whereby Union stewards were
permitted to represent unit employees as personal representatives in
supervisory selection grievances under the agency grievance procedure.
However, Respondent contends that it was privileged to unilaterally
discontinue the practice. Respondent argues that supervisory selection
procedures are not working conditions within the meaning of the Statute
and accordingly, it had no duty to bargain with the Union prior to
changing its policy in the matter. Respondent relies upon the ruling of
the Authority in International Association of Fire Fighters, Local F-16
and Philadelphia Naval Shipyard, 3 FLRA 438 (1980), and a line of cases
which follow this case. /13/ Although, not obligated to bargain on the
matter, Respondent acknowledges that it is not prohibited from doing so
and may elect to bargain on supervisory selection procedures if it so
chooses. Nevertheless, Respondent avers that it has never bargained
with the Union on grievance procedures concerning supervisory selections
and points to record testimony which reveals that at some undisclosed
time during negotiations which led to the 3-year collective bargaining
agreement which was signed by the parties on April 15, 1981, the Union
proposed that supervisory selection procedures be included in the
negotiated agreement and Respondent refused to negotiate on the issue.
Further, Respondent contends that bargaining unit employees cannot gain
any collective rights in areas outside their working conditions except
by contract and since no contractual right in the matter at issue herein
exists, Respondent had no duty to bargain before changing its policy.
In the Philadelphia Naval Shipyard case, supra, and numerous cases
decided thereafter, the Authority has held that promotional procedures
applicable to nonbargaining unit supervisory positions were negotiable
only at the election of the agency involved. The Authority reasoned
that since the duty to bargain under the Statute extends only to
conditions of employment of bargaining unit employees, and under the
Statute supervisors are excluded from inclusion in collective bargaining
units, an agency is not obliged to bargain with a union on promotion
procedures for filling nonbargaining unit supervisory positions.
The Authority more fully explicated its rationale in a prior case,
National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO and U.S. Department of Labor, Washington,
D.C., 3 FLRA 290 (1980). In that case a Union, during contract
negotiations, proposed that competitive procedures in the agency's Merit
Promotion Plan be utilized when filling supervisory or management
positions with bargaining unit employees. The Authority held the
proposal was outside the agency's duty to bargain under the Statute,
explaining:
" . . . The proposal puts conditions on filling supervisory and
management positions which are outside the unit and may not be
included in appropriate units by operation of section 7112(b)(1)
of the Statute. An exclusive representative's obligation and
correlative rights, however, extend only to employees in the unit,
under section 7114(a)(1). Furthermore, the definition of
"collective bargaining" found in section 7103(a)(12) . . .
restricts the scope of the obligation to bargain in good faith to
matters affecting the conditions of employment of employees in an
appropriate unit. Consequently, the agency has no obligation to
bargain over matters relating to the non-bargaining unit positions
referred to in the proposal. Thus, as the proposal goes beyond
the representation rights of the exclusive representative and does
not directly relate to conditions of employment of unit employees,
it is outside the duty to bargain under the Statute." (Footnote
omitted.)
Clearly then, under the Statute procedures for filling supervisory
positions, including unilaterally making changes in those procedures,
are matters outside an employer's duty to bargain since such procedures
concern nonbargaining unit positions. Department of the Navy, Naval
Underwater Systems Center, Newport, Rhode Island, 11 FLRA 316 (1983).
In my view the procedure to challenge the selection of supervisors, such
as the agency grievance procedure herein, similarly is not a matter over
which an employer is obligated to bargain. Such grievance procedure,
including who may represent a grievant in the proceeding, is an integral
part of and so closely related to the selection procedure itself as to
require being accorded the same treatment and consideration as the
selection procedure. Accordingly, I conclude Respondent had no
obligation to bargain with the Union as to what role the Union would
have in agency procedures to challenge supervisory selections or who
would be allowed to represent employees in those procedures.
However, while Respondent was not obligated to bargain with the Union
on the matter, it was not precluded from bargaining if it so desired and
could thereby provide the Union with rights it would not ordinarily
possess but for Respondent's relinquishment of those rights. Thus,
Respondent was free to bargain away its rights to unilateral control
over who would represent employees when challenging supervisory
selections.
The scope of the concept of what constitutes "bargaining" under the
Statute has not yet been fully defined. However, a contention that in
"negotiations" a union must make a specific proposal and discussions
must somehow lead to a written contract has been rejected as being ". .
. too limited an interpretation that would frustrate meaningful
negotiations in favor of some sort of stylized form of communication."
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
North Atlantic Region, (New York, New York), 8 FLRA 296 at 304 (1982).
Indeed, it is not uncommon that all "bargaining" between parties on a
matter takes place through an exchange of correspondence, with no
face-to-face meetings having ever occurred. Further, a "bargaining
obligation" can be breached in situations where no contract or agreement
is envisioned but information is sought by a union, and an employer
refuses to produce the information. Veterans Administration Regional
Office, Denver, Colorado, 7 FLRA 629 (1982); Bureau of Alcohol, Tobacco
and Firearms, National Office and Western Region, San Francisco,
California, 8 FLRA 547 (1982); and Internal Revenue Service, Western
Region, San Francisco, California, 9 FLRA 480 (1982). The issue in
Veterans Administration, Denver, supra, concerned an employer's
obligation to furnish information requested by a Union related to the
processing of an employee's grievance. The Authority held that the duty
of an agency to "negotiate" in good faith with a union as required by
section 7114(a)(1) of the Statute includes the obligation to furnish
such information. Thus, the Authority has clearly recognized that the
words "bargain" and "negotiate" have an expansive meaning and are to be
applied to situations beyond that of mere face-to-face exchanges of
proposals at the conclusion of which the parties anticipate the
execution of a written document.
In the case herein Union stewards represented all unit employees who
grieved their non-selection for supervisory positions from the time the
Union became the exclusive collective bargaining representative in
November 1978 until Respondent unilaterally refused to permit such
representation in June 1982, and Respondent was aware that stewards were
representing employees in these grievances. After the Union obtained
its exclusive representation status, Respondent engaged in a course of
conduct which clearly and unmistakably reflected a practice or policy of
dealing with the Union to the limited extent of permitting stewards to
act as personal representatives for unit employees in supervisory
selection grievances. Respondent could have refused to allow such
representation. In March 1981 with regard to recognizing the Union, qua
Union, as a representative of employees in these proceedings it
unequivocally refused to permit such representation. Nevertheless,
Respondent opted to deal with stewards and permit their appearance as
personal representatives. The issue of steward representation of
employees was clearly put in contention during the grievances concerning
employees Paul Guinn and Costello. When Respondent rejected the
December 16, 1980 grievances concerning Guinn, steward Levy was
explicitly advised that he could not represent Guinn as a Union steward,
supra. Later in March 1981 when dealing with Guinn's grievance, Union
President Thomas was advised that the Union could not represent Guinn
but the letter permitted Thomas, also a steward, to represent Guinn as a
personal representative. Although "under protest", the Union accepted
Respondent's position on the matter and thereafter, during the Guinn and
Costello grievances, and five succeeding grievances over the next 15
months, stewards consistently acted as personal representative in
supervisory selection grievances and Respondent fully recognized and
unequivocally dealt with them on the grievances.
In my view such conduct on Respondent's part was tantamount to having
bargained with the Union concerning steward's representation. During
the Guinn grievance the issue of the Union's role in these supervisory
selection grievances was clearly joined, the parties expressed their
positions on the subject and the matter was resolved by a procedure
obviously agreeable to both parties: the Union acquiesced, albeit under
protest, to Respondent's position precluding Union representation of
employees and Respondent permitted stewards to represent employees as
their personal representatives. That resolution consistently governed
the succeeding five grievances during the following 15-month period.
Further, such representation by stewards was not contrary to the
language of Manual Chapter 4157 whereby employees were permitted to
choose their own representatives in these proceedings. /14/ Thus, while
Respondent may not have been obligated to bargain with the Union on
permitting stewards to act as personal representatives in processing
grievances under the agency procedures, I find and conclude that its
actions indicated it in fact "bargained" with the Union within the
meaning of the term "bargain" as used by the Authority in Philadelphia
Naval Shipyards, supra, and cases following thereafter.
Accordingly, I conclude that Respondent, before terminating the
practice of stewards representing employees as personal representatives
in supervisory selection grievances, was obligated to provide the Union
with adequate notice and an opportunity to bargain about the
discontinuance of the practice and the procedures which management
officials would observe in discontinuing the practice and appropriate
arrangements for employees adversely affected by such action. I further
conclude that by its failure to give the Union adequate notice and an
opportunity to bargain concerning the change, Respondent violated
section 7116(a)(1) and (5) as alleged. Remedy
Counsel for the General Counsel and counsel for the Union contend
that a status quo ante order is appropriate in this case. I agree.
Prior to Respondent's refusal to permit representation by Union
stewards in June 1982, stewards represented every employee who grieved
supervisory non-selection. Respondent's refusal clearly conveyed that
representation by stewards would not be permitted in the future and to
so request would indeed be a futile act. Accordingly, regardless if
requested after June 1982, I infer that grieving employees would have
selected stewards to represent them in such matters but for Respondent's
conduct and I will treat all Manual Chapter 4157 proceedings after June
1982 as voidable at the discretion of the aggrieved employee if the
employee desires representation by a steward. If voided, the matter
will then be re-processed and if the grievant is successful, Respondent
will make the grievant whole for any loss of earnings or benefits
suffered from the time the grievant initially failed in the prior
non-selection grievance when deprived of a Union steward to act as the
grievant's personal representative.
In view of the entire foregoing I recommend that the Authority issue
the following:
ORDER
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Refusing to permit Union stewards, designated as "personal
representatives," from representing unit employees when the
employees grieve their non-selection for supervisory positions in
Manual Chapter 4157 proceedings without first affording National
Treasury Employees Union, the employees exclusive collective
bargaining representative, notice and an opportunity to bargain,
consonant with the obligations imposed by the Statute, concerning
any proposed change in such practice.
(b) In any like or related manner, interfering with,
restraining, or coercing 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) Rescind the memorandum of June 14, 1982 to Union Steward
Allen Brodsky and the memorandum of July 2, 1982 to Local 208
President James Thomas regarding the rejection of grievances where
Union stewards are selected by employee grievants to represent
them in Manual Chapter 4157 proceedings involving employees'
non-selection for supervisory positions.
(b) Upon request, recognize Union stewards designated as
"personal representatives" of unit employees when employees grieve
their non-selection for supervisory positions in Manual Chapter
4157 proceedings.
(c) Upon request of any aggrieved unit employee, rehear the
grievance of employee Gary Staley and any grievance brought after
June 14, 1982 in a Manual Chapter 4157 proceeding concerning the
employee's non-selection for a supervisory position, where the
employee designates a Union steward as his "personal
representative" and, if successful in the grievance, make the
grievant whole for any loss of earnings or benefits suffered.
(d) Post at all its facilities wherein unit employees are
located, 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 Executive Director for
Operations of the Nuclear Regulatory Commission and shall be
posted and maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. The
Executive Director shall take reasonable steps to insure that such
Notices are not altered, defaced, or covered by any other
material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, Washington Regional Office, P.O. Box
33758, Washington, D.C. 20033-0758 in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: June 13, 1983
Washington, DC
APPENDIX
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to permit Union stewards, designated as "personal
representatives, from representing unit employees when the employees
grieve their non-selection for supervisory positions in Manual Chapter
4157 proceedings without first affording the National Treasury Employees
Union, the employees exclusive collective bargaining representative,
notice and an opportunity to bargain, consonant with the obligations
imposed by the Statute, concerning any proposed changes in such
practice. 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. WE
WILL rescind the memorandum of June 14, 1982 to Union Steward Allen
Brodsky and the memorandum of July 2, 1982 to Local 208 President James
Thomas regarding rejection of grievances where Union stewards are
selected by employee grievants to represent them in Manual Chapter 4157
proceedings involving employees' non-selection for supervisory
positions. WE WILL, upon request, recognize Union stewards designated
as "personal representatives" of unit employees when employees grieve
their non-selection for supervisory positions in Manual Chapter 4157
proceedings. WE WILL, upon request of any aggrieved unit employee,
rehear the grievance of employee Gary Staley and any grievance brought
after June 14, 1982 in a Manual Chapter 4157 proceeding concerning the
employee's non-selection for a supervisory position, where the employee
designates a Union steward as his "personal representative" and, if
successful in the grievance, make the grievant whole for any loss of
earnings or benefits suffered.
(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 or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region III, Federal Labor Relations Authority whose address is:
Washington Regional Office, P.O. Box 33758, Washington, D.C.
20033-0758; and whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ The Charging Party's motion to waive the time limit for filing
its Brief in Opposition to the Respondent's exceptions was denied by the
Authority, by letter dated August 24, 1983. Thus, its opposition brief,
untimely filed, has not been considered.
/2/ Cf. American Federation of Government Employees, AFL-CIO, 15 FLRA
No. 63 (1984), in which the Authority noted that while "promotion
procedures for supervisory positions are outside the obligation to
bargain, an agency may bargain on and agree to promotion procedures for
supervisory positions as part of its collective bargaining agreement."
/3/ See Department of the Navy, Naval Underwater Systems Center,
Newport, Rhode Island, 11 FLRA No. 66 (1983), and cases cited therein.
With respect to management's right to make changes concerning matters
which do not affect bargaining unit employees' conditions of employment,
see Department of the Navy, Naval Construction Battalion Center, Port
Hueneme, California, 14 FLRA No. 60 (1984); Federal Aviation
Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA
No. 89 (1984).
/4/ Section 7102 provides in pertinent part:
Sec. 7102. Employees' rights
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right--
. . . .
(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter.
/5/ In view of the foregoing conclusion, we find it unnecessary to
pass upon the Respondent's contentions with respect to the sufficiency
of the complaint, or with respect to the remedy recommended by the
Judge.
/6/ Respondent's unopposed Motion to Correct Transcript is granted.
However, Respondent's request to have received into evidence a letter
from the Regional Director approving the Union's withdrawal of
allegations of section 7116(a)(2) and (8) violations is denied since the
document is irrelevant to a disposition of the matter herein.
/7/ Section 7118(a)(4)(A) provides, in relevant part, that ". . . no
complaint shall be issued based upon any alleged unfair labor practice
which occurred more than 6 months before the filing of the charge with
the Authority."
/8/ Some of the facts relating to Mitchell's grievance are taken from
the Report and Recommendations of the Grievance Review Examiner who
heard the matter. Although Counsel for Respondent objected to the
receipt of this Examiner's Report and Recommendations as an exhibit,
Respondent did not present any evidence which challenged matters
contained in the document relative to the processing of the grievance.
/9/ The record does not disclose whether or not the fifth individual,
George Barber, was a steward but I infer from the totality of the record
that Barber was also a steward.
/10/ As noted above, Thomas, although Chapter 208 President, was also
recognized as a Union steward.
/11/ A grievance on Guinn's behalf concerning this matter had
previously been filed on December 16, 1980 by Union steward Martin Levy.
However, in a memorandum of December 23 Miller rejected that grievance
informing Levy, inter alia, that while the grievance was filed under
Manual Chapter 4157, the grievance used "Interim Agreement" language and
the grievance was "outside the scope of the Interim Agreement." Miller
also advised Levy that he could only represent Guinn ". . . as an NRC
employee, not as a union steward."
/12/ As noted hereinbefore, Section B.1.d. of NRC Manual Chapter 4157
permits the Union to be represented at formal proceedings concerning
such grievances.
/13/ Hawaii Federal Employees Metal Trades Council and Department of
the Navy, Navy Public Works Center, Pearl Harbor, Hawaii, 4 FLRA No. 3
(1980); American Federation of Government Employees, AFL-CIO, Local 2
and Department of the Army, Military District of Washington, 4 FLRA No.
60 (1980); Office of Program Operations, Field Operations, SSA San
Francisco, 5 FLRA No. 45 (1981); American Federation of Government
Employees, AFL-CIO, Local 909 and Department of the Army, Headquarters,
Military Traffic Command, Washington, D.C., 6 FLRA 502 (1981); and
others.
/14/ During the hearing testimony was received which revealed that
Manual Chapter 4157 was "revised" on November 29, 1982, but no
indication was given as to the nature of the revision or if it might
impact on the issues presented herein. Accordingly, I make no findings
or conclusions regarding this matter.
Managing Director for Case
Processing