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22:0586(64)CA
The decision of the Authority follows:
22 FLRA No. 64
U.S. DEPARTMENT OF AGRICULTURE
FOOD SAFETY AND INSPECTION SERVICE
Respondent
and
NATIONAL JOINT COUNCIL OF FOOD
INSPECTION LOCALS, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-30722
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice is before the Authority under section
2429.1(a) of the Authority's Rules and Regulations, based on a
stipulation of facts by which the parties have agreed that no material
issue of fact exists. Briefs for the Authority's consideration were
filed by the Respondent, the General Counsel and the Charging Party (the
Union).
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by insisting on bargaining to impasse with the Union on a
matter which was outside the Union's duty to bargain.
II. Background
The Union represents a nationwide unit of permanent full-time food
inspectors in the field service of the Respondent's Meat and Poultry
Inspection Program. In July 1983 the parties initiated negotiations.
They reached impasse on about 26 proposed agreement articles in
September 1983. One of the articles, "Article 34," was at impasse
because the Union opposed proposals by the Respondent which would
require the parties to attempt to resolve potential unfair labor
practices informally before an unfair labor practice charge could be
filed under the Authority. /1/
In December 1983 the Respondent requested the assistance of the
Federal Service Impasses Panel (the Panel) to resolve the impasse. The
Respondent continued to press its position for Article 34 in the
mediation phase of the Panel's proceedings and in a Panel arbitration
hearing, and the Union continued its opposition. On March 23, 1984, the
day following the Panel's arbitration hearing, the Respondent withdrew
its proposals for Article 34 and agreed to the provisions for Article 34
which had been proposed by the Union.
III. Positions of the Parties
The General Counsel and the Union argue that the Respondent's Article
34 proposal, on "pre-charge" procedures, was outside the Union's duty to
bargain because it would require the Union to waive its statutory right
to file unfair labor practice charges in the manner provided by section
7118 of the Statute. They assert that the Respondent's insistence on
bargaining concerning a subject which was outside the Union's duty to
bargain (that is, on a "permissive" subject of bargaining" should be
found to be a violation of the Respondent's statutory duty to bargain in
good faith.
The Respondent argues that it did not fail to bargain in good faith,
because its proposed "pre-charge" procedure would not unlawfully
interfere with the Union's rights and was within the Union's duty to
bargain.
IV. Analysis
A. Insisting on proposals which are outside the duty to
bargain
In Federal Deposit Insurance Corporation, Headquarters, 18 FLRA No.
92 (1985), a case which presented an issue directly analogous to this
case, the Authority found that agency management had insisted on
bargaining to impasse, to and including Panel proceedings under section
7119 of the Statute, concerning a proposal which was outside the union's
duty to bargain. In that decision the Authority first considered
whether this practice amounted to a failure to bargain in good faith and
decided in the affirmative, stating in part:
(P)arties cannot insist on bargaining to impasse with respect
to . . . matters (which are outside the duty to bargain). . . .
Where a matter falls outside the required scope of bargaining . .
. there is no mutual obligation to bargain at all.
Finding that one of the proposals on which management had insisted
was outside the union's duty to bargain, the Authority concluded that
such conduct constituted a failure to bargain in good faith in violation
of section 7116(a)(1) and (5) of the Statute.
In this case it is stipulated that the Respondent insisted on
bargaining to impasse, up to an including Panel proceedings, concerning
proposals which were opposed by the Union. As indicated in Federal
Deposit Insurance Corporation, the resolution of this case depends on
whether the Respondent's proposal was outside the Union's duty to
bargain.
B. Whether the proposal was outside the Union's duty to
bargain
1. The Proposal: Respondent's Article 34 proposal would require
either party to notify the other of a dispute and to follow certain
procedures in an attempt to resolve the dispute before the complaining
party could file an unfair labor practice charge with the Authority.
/2/ The Union objected to the proposal because in its view the proposal
would prevent the Union from exercising its right to file an unfair
labor practice charge under section 7118 of the Statute. /3/
2. Application of section 7118: Section 7118 provides that an
unfair labor practice charge may be filed at any time within six months
from the date of the event complained of, or within six months of its
discovery if discovery of the event has been prevented or concealed. If
the charge is not filed within six months, the General Counsel is
precluded from issuing a complaint. The person filing a charge may do
so as soon as the events or actions complained of have occurred or have
been discovered. Alternatively, such person has at least six months to
discover the occurrence, consider available options, and choose a
position before filing the charge. See United States Department of
Labor, 20 FLRA No. 34 (1985), petition for review filed, No. 85-1770
(D.C. Cir. Nov. 22, 1985) (the General Counsel may not issue a complaint
on a charge filed more than six months from the date of the occurance
unless the respondent has prevented discovery of the occurrence).
The Respondent's proposal conflicts with section 7118 because, in
requiring that the filing of charges would be delayed pending time spent
on informal settlement efforts, the Union would be prevented from filing
as soon as an event has occurred or been discovered.
Notwithstanding this result, which conflicts with the Union's rights
under section 7118, the Respondent argues that its proposed procedures
are analogous to the procedures determined to be within the duty to
bargain in American Federation of Government Employees, AFL-CIO, Local
1999 and Army-Air Force Exchange, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA 153, 153-58 (1979) (hereinafter Dix-McGuire), enforced
sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In Dix-McGuire
it was decided that procedures which would merely delay the exercise of
statutory rights were within the duty to bargain. However, as indicated
by the Authority in its decision and by the D.C. Circuit in affirming
the Authority's decision, the question presented in that case concerned
the reconciliation of two apparently conflicting statutory rights, i.e.,
the right of management in exercising rights reserved to management as
provided under section 7106(a) of the Statute and the right of labor
organizations in negotiating procedures bearing on the exercise of these
management rights as provided under section 7106(b)(2) of the Statute.
Unlike the question presented in Dix-McGuire, the right of a party to
file an unfair labor practice charge under section 7118 does not involve
the exercise of a management right to which section 7106(b)(2) is
applicable. Additionally, the right to file a charge is not subject to
any competing statutory right of an opposing party to be free from being
subject to a charge. Hence, there is no analogy between the issue in
Dix-McGuire and the issue raised by the Respondent.
The Respondent also cites Headquarters, Fort Sam Houston, Department
of the Army and American Federation of Government Employees, AFL-CIO,
Local 2154, 8 FLRA 394 (1982), in support of its position. In that case
the agency excepted to an arbitrator's award to the effect that a
contractual pre-charge procedure, i.e., a procedure which had been
negotiated by the parties, was unenforceable. In granting the exception
and in setting the award aside, the Authority concluded that the
arbitrator had erred in denying the grievance on the basis that the
negotiated pre-charge procedure was unenforceable, stating that the
Statute did not prohibit the union from agreeing to submit potential
charges to management before it filed charges with the Authority. Thus,
the Respondent is correct in arguing that Fort Sam Houston held that
these procedures are "negotiable," but only to the extent that
"negotiable" is understood to mean "not illegal." It does not also mean,
as the Respondent has argued, that a party may be compelled to bargain
on the subject if it chooses not to do so. /4/
Contrary to the Respondent's assertions, this conclusion is not
contradicted, but is supported by the report to Congress on these
matters by the General Accounting Office in 1982. Steps Can Be Taken To
Improve Federal Labor-Management Relations and Reduce the Number and
Costs of Unfair Labor Practice Charges, GAO/FPCD-83-5 (Nov. 5, 1982).
Recognizing that statutory rights were involved, the GAO did not
conclude that pre-charge procedures should be required. It recommended
that settlement discussions take place after a charge is filed and that
investigations be delayed for such purpose. In this regard, section
2423.2(c) of the Authority's Rules and Regulations now provides that
investigations will normally not commence until parties have been
afforded a reasonable time, not to exceed 15 days, for such purpose.
We acknowledge the Respondent's references to the Authority's
comments in Fort Sam Houston on the need to encourage informal
settlements. We strongly encourage parties engaged in Federal
labor-management relations to take the initiative in settling unfair
labor practice disputes at any stage. When settlement efforts are
postponed, until charges are filed or the General Counsel decides
whether a complaint should issue, timely solutions to the problem which
gave rise to the dispute may be lost. Recognizing this, parties often
lose the incentive to seek their own solutions and concentrate their
efforts on litigation. A failure by the parties to attempt at every
stage to resolve disputes voluntarily undermines the bilateralism which
the Statute and the Authority are committed to fostering.
Far too many disputes are taken to litigation because the parties do
not talk with each other and seek mutually satifactory resolutions of
their differences. The best resolutions of differences are the
resolutions the parties work out themselves. Many unfair labor practice
disputes appear to be susceptible to resolution by the parties
themselves if they would initiate contact with each other in an attempt
to resolve the dispute and approach such discussions with the thought
that their differences can and should be resolved.
We support the objective of Respondent's proposal and see no problem
with the proposal insofar as it encourages the informal settlement of
disputes. The difficulty lies in the proposal's requirement that
settlement discussions must delay the filing of a charge. We interpret
section 7118 of the Statute to establish certain rights regarding the
filing of charges which a party may rely upon and withhold from
bargaining if it so chooses. As in Fort Sam Houston, a party may decide
to waive these rights if it decides that there are benefits to that.
However, also consistent with Fort Sam Houston, a party can decide to
stand on its statutory right and refuse to bargain the issue.
Based on this reasoning we decide that the procedures proposed by the
Respondent are permissive subjects of bargaining for the Union because
the procedures would require the Union to waive certain of its statutory
rights. In certain situations, without fault by either party, delaying
the filing of a charge could mean that the charge would be filed more
than six months after the occurrence. The General Counsel would not be
able to act on the charge. This we feel is not consistent with section
7118 of the Statute. We are not persuaded by the Respondent's reasoning
that its proposals should be found to be within the duty to bargain
insofar as they would only delay filings. The Statute provides that a
party may file as soon as it wants to, and neither the language of the
Statute nor the legislative history suggests that this right should be
qualified.
V. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties, and concludes that the
Respondent did violate section 7116(a)(1) and (5) of the Statute, as
alleged in the complaint, by insisting or bargaining to impasse
concerning a proposal which was outside the Union's duty to bargain.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the U.S. Department of Agriculture, Food
Safety and Inspection Service shall:
1. Cease and desist from:
(a) Insisting to impasse on a matter which is outside the
required scope of bargaining with the National Joint Council of
Food Inspection Locals, American Federation of Government
Employees, AFL-CIO, the exclusive representative of its employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at 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 head of
the U.S. Department of Agriculture, Food Safety and Inspection
Service, or a designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
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, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply with it.
Issued, Washington, D.C., July 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The text of the Respondent's proposal is set forth in Appendix 1.
(2) We deny the Respondent's motion to strike portions of the General
Counsel's brief which are alleged to be an inaccurate description of the
disputed proposal because we find that the General Counsel's description
of the proposal is consistent with the record.
(3) The applicable provisions of section 7118 are set forth in
Appendix 2.
(4) See American Federation of Government Employees, AFL-CIO and
Equal Employment Opportunity Commission, 15 FLRA 283, 284 (1984), in
which the Authority explained that while an agency cannot be required to
negotiate procedures for the selection of candidates for supervisory
positions, once negotiated, such procedures are enforceable.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT insist to impasse on a matter which is outside the
required scope of bargaining with the National Joint Council of Food
Inspection Locals, American Federation of Government Employees, AFL-CIO,
the exclusive representative of our employees.
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
Statute.
(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 for Region III, Federal Labor Relations Authority, whose
address is: 1111 18th Street, NW. 7th Floor (P.O. Box 33758),
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
Appendix 1
As pertinent herein, the procedures proposed by the Respondent, which
led to the submission of the parties' impasse to the Panel, were as
follows:
Article XXXIV Unfair Labor Practice Charges
Section A -- Informal Resolution
It is the intent of the Service and the Union that
labor-management conflicts arising during the life of this
Agreement be resolved promptly and equitably using bilateral
resolution procedures.
Section B -- Procedures
It is understood . . . that nothing in this section shall
preclude either the Service or the Union from exercising rights
under section 7116 of the . . . Statute. However, in the interest
of informally settling labor-management disputes bilaterally, the
Service and the Union agree that: Prior to . . . the . . . filing
(of) an unfair labor practice charge with the . . . Authority the
charging party shall provide written notice to the other party;
(2) Notice shall be provided or received only by (designated
officials of the Service and the Union); (3) Such notice shall
provide a statement of the particular subsections of . . . the
Statute alleged to have been violated; the time; the place; and
the date of the alleged unfair labor practice . . . ; and
requested relief or settlement . . . ; (4) The parties shall have
(30) calendar days after receipt of notice . . . in which to
informally resolve the matter in dispute; (5) If not resolved
during the above-mentioned (30) calandar day period, the charging
party may escalate the matter to the . . . Authority; (6)
Extensions to the informal resolution period shall only be
approved by mutual consent. . . . (Emphasis added.)
Section C -- Exceptions
Employees filing unfair labor practice charges shall not be
compelled to utilize these procedures, but may do so at their own
election. Unfair labor practice allegations concerning strikes or
other work stoppage activities covered by Section 7116(b)(7) of
the . . . Statute are excluded from these procedures.
Appendix 2
The provisions of section 7118 of the Statute which are relevant to
the dispute are as follows:
Section 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any
person with having engaged in or engaging in an unfair labor
practice, the General Counsel shall investigate the charge and may
issue and cause to be served upon the agency or labor organization
a complaint. In any case in which the General Counsel does not
issue a complaint because the charge fails to state an unfair
labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not
issuing a complaint.
. . . . .
(4)(A) Except as provided in subparagraph (b) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of --
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery to the alleged
unfair labor practice during the 6-month period,
the General Counsel may issue a complaint based on the charge
if the charge was filed during the 6-month period beginning on the
day of the discovery by the person of the alleged unfair labor
practice.
(5) The General Counsel may prescribe regulations providing for
informal methods by which the alleged unfair labor practice may be
resolved prior to the issuance of a complaint.