[ v26 p299 ]
26:0299(39)CA
The decision of the Authority follows:
26 FLRA No. 39
ACTION
Respondent
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2027, AFL-CIO
Charging Party
Case No. 3-CA-60177
DECISION AND ORDER REMANDING CASE
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached decision of the
Administrative Law Judge. /1/ The case concerns whether the Respondent
violated section 7116(a)(1) and (5) of the Statute by refusing to
negotiate over travel and per diem payments for Union representatives on
official time.
II. Background
The pertinent facts in this case are not in dispute. On January 9,
1986, the parties executed a basic collective bargaining agreement. On
February 7, the agency head disapproved certain provisions of the
agreement under section 7114(c) of the Statute. On February 21, the
Union requested negotiations over the payment of travel and per diem for
Union representatives on official time. On February 26, the Respondent
refused to negotiate over the subject. The Respondent asserted that the
subject of travel and per diem was nonnegotiable despite the Authority's
decision in National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
review filed sub nom. Department of the Treasury, U.S. Customs Service,
No. 85-1198 (D.C. Cir. Mar. 27, 1986). The Respondent also asserted
that the Union waived any right to bargain over travel and per diem by
executing the collective bargaining agreement on January 9. The Union
then filed the unfair labor practice charge in this case concerning the
Respondent's February 26 refusal to negotiate.
Subsequently, on May 22, 1986, while the charge was pending, the
parties executed a new collective bargaining agreement with a
retroactive effective date of March 27, 1986. The agreement apparently
has no provision for travel and per diem for Union representatives on
official time and bars further negotiations except as provided in the
agreement. On May 30, 1986, the complaint in this case was issued
alleging that the Respondent's refusal on February 26, 1986, to
negotiate with the Union over travel and per diem allowances for Union
representatives on official time violated section 7116(a)(1) and (5) of
the Statute.
III. Judge's Ruling
At the hearing, after the presentation of the General Counsel's case
in chief, the Judge granted the Respondent's motion to dismiss the
complaint. In his subsequent written decision, the Judge explained the
basis for his ruling. The Judge agreed that the record established as
of February 26, 1986, a prima facie case of a refusal to bargain in
violation of the Statute. The Judge also rejected the Respondent's
basis for its admitted refusal to bargain. He concluded in accordance
with U.S. Customs Service that the subject of travel and per diem for
Union representatives on official time was negotiable. He also
concluded that under Authority precedent the disapproval of a portion of
the January 9 agreement obligated the parties to return to the
bargaining table to complete negotiations. However, the Judge found
that because the parties resumed negotiations and executed a full and
complete collective bargaining agreement after the Respondent's refusal
to bargain, the General Counsel failed to establish a prima facie case
that the Respondent's refusal to bargain constituted an unfair labor
practice. Accordingly, the Judge recommended that the complaint be
dismissed.
IV. Positions of the Parties
The General Counsel contends that the Judge's ruling that he failed
to establish a prima facie case of a violation of the Statute is wrong
both on the facts and the law. The General Counsel maintains that the
ruling should be reversed and that the case should be remanded for
further proceedings.
In its opposition to the General Counsel's exceptions, the Respondent
contends that the General Counsel failed to meet the burden of
establishing that the Respondent had violated the Statute. The
Respondent argues that the Judge correctly dismissed the case on the
basis of the subsequent collective bargaining agreement despite its
earlier refusal to negotiate.
V. Analysis and Conclusions
We reverse the Judge's ruling granting the Respondent's motion to
dismiss and vacate his recommended order. The Judge specifically found
that the record established a prima facie case of a refusal to bargain
in violation of the Statute as of February 26, 1986. On this basis, we
conclude that the General Counsel met his burden and properly rested his
case in chief subject to rebuttal by the Respondent. In American
Federation of Government Employees, Local 495, 22 FLRA No. 98 (1986), we
held that a prima facie case "is one in which the evidence presented
would suffice to show that there is a basis for the theory of the case
if such evidence is presumed to be true and the evidence presented by
the opposing party is disregarded." Slip op. at 6. We find that the
General Counsel met that test.
The evidence introduced by the General Counsel and credited by the
Judge showed that the Respondent refused on February 26, 1986, to
negotiate over travel and per diem allowances for Union representatives
in violation of the Statute. The General Counsel's case in chief was
not required to encompass events subsequent to the refusal to bargain in
order to establish a prima facie case of a violation of the Statute.
Contrary to the conclusion of the Judge, we find that the subsequent
execution of a collective bargaining agreement by the parties does not
affect the General Counsel's prima facie case of an earlier refusal to
bargain. The effect of the terms and execution of the subsequent
collective bargaining agreement in this case are matters which may be
raised by the Respondent in response to the General Counsel's prima
facie case, for example, as an affirmative defense or in mitigation.
The General Counsel is not required to include in his prima facie case
responses to anticipated defenses which have not yet been raised or
proven by the Respondent. Accordingly, the Judge erred in granting the
motion to dismiss. We therefore remand this case to the Judge for the
purpose of reopening the proceedings in this matter to determine whether
the Respondent violated the Statute as alleged in the complaint.
VI. Order
The complaint in Case No. 3-CA-60177 is remanded for action
consistent with our decision.
Issued, Washington, D.C., March 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-60177
ACTION
Respondent
and
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, LOCAL 2027, AFL-CIO
Charging Party
Stewart A. Davis, Esquire
Joanna Dailey, Esquire
For the Respondent
Mr. Rodney T. White
For the Charging Party
Peter A. Sutton, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judges
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /2/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether the
Complaint, which alleges a refusal to bargain a particular Union demand,
is barred by the subsequent negotiation of an agreement in which the
parties provided that " . . . they have bargained fully with respect to
all proper subjects of bargaining and have settled all such matters as
set forth in this Agreement . . . ", where the negotiated agreement
neither excepted the demand from coverage of the agreement nor reserved
the right to pursue the demand.
This case was initiated by a charge filed on March 10, 1986 (G.C.
Exh. 1(a) which alleged violations of Section 14(b)(1) and (2),
16(a)(1), (5) and (8) of the Statute. The Complaint and Notice of
Hearing issued on May 30, 1986 (G.C. Exh. 1(c)), alleged violations of
Section 16(a)(1) and (5) only, and set the hearing for July 22, 1986,
pursuant to which a hearing was duly held on July 22, 1986, in
Washington, D.C. before the undersigned. At the conclusion of General
Counsel's case, Respondent's motion to Dismiss, after oral argument, was
granted; however, the parties were granted leave to file briefs on or
before August 5, 1986, and General Counsel on August 5, 1986, filed a
brief in opposition to the granting of Respondent's Motion to Dismiss
which has been carefully considered. For reasons set forth hereinafter,
I adhere to my ruling made at the hearing.
Findings
No testimony was presented. General Counsel's case consisted wholly
of six exhibits, and minor stipulations of the parties, as follows:
1. G.C. Exhibit 1(a)-1(k) -- Formal documents
2. G.C. Exhibit 2 -- Memorandum dated February 21, 1986, from Mr.
Rod White, President of American Federation of State, County and
Municipal Employees, Local 2027, AFL-CIO (hereinafter referred to as the
"Union") to Mr. Tom Hyland, LRO, which stated:
"In light of the recent FLRA decision on the negotiability of
travel and per diem payments for Union representatives on official
time, the Union is hereby exercising the right to bargain.
"I would suggest we begin appropriate negotiations during the
week of March 3, 1986 . . . . " (G.C. Exh. 2).
3. G.C. Exhibit 3 -- Memorandum from Mr. Hyland to Mr. White dated
February 26, 1986, which stated, in part, as follows:
"First, it should noted that the FLRA's decision regarding the
duty to bargain over travel and per diem is not only inconsistent
with the Supreme Court's decision in BAFT v. FLRA of November 29,
1983 but is also in violation of a government-wide rule and
regulation (46 Comp. Mem. 21, 21-22 of 1966) . . . The FLRA's
decision in 21 FLRA 2 will be contested in the Courts in the near
future.
Beyond that, it is the position of the Agency that in executing
the basic labor-management agreement of February 9, 1986, the AEU
waived any right to bargain over travel and per diem expenses for
Union representatives.
. . . .
Although the Parties were at one time impassed over the subject
of Agency payment of travel and per diem expenses for Union
representatives, the AEU withdrew that proposal . . . (prior to
the execution of the basic labor-management agreement).
"Consequently, no duty to bargain over the proposed matter
exists and the Agency, therefore, elects not to bargain." (G.C.
Exh. 3).
4. G.C. Exh. 4 -- letter dated February 7, 1986, from Ms. Donna M.
Alvarado to Mr. Rodney T. White, President of the Union, informing the
Union, pursuant to Section 14(c) of the Statute, of the disapproval of
certain provisions of the negotiated agreement.
5. G.C. Exhibit 5 is a signed agreement dated May 22, 1986, which
provides as follows:
"The parties agree that effective date of the Action-AEU Basic
Labor Management Agreement shall be March 27, 1986, the date that
the Parties negotiated an agreement to resolve the issues
disapproved by the Agency Director on February 7, 1986."
6. G.C. Exhibit 6 is the "Basic Labor-Management Agreement" between
Action and Action Employees Union, American Federation of State, County
and Municipal Employees Local 2027. Under "Definitions and Status of
Bargaining" it is provided as follows:
"B. Status of Bargaining
The parties agree that, except for the subjects of Performance
Appraisal, Reduction-in-Force, and Incentive and Performance
Awards (for which bargaining will be limited to the ACTION
Orders), they have bargained fully with respect to all proper
subjects of bargaining and have settled all such matters as set
forth in this Agreement, pending any final decision on outstanding
matters by the Federal Labor Relations Authority concerning
proposals including negotiability questions." /3/ (G.C. Exh. 6).
Article XXVI provides, in part, as follows:
"Section B. Mid-term renegotiation of Agreement articles may
take place upon the first and second anniversary dates of the
Agreement upon notice of either Party. Such notice shall be
tendered in writing at least thirty (30) days prior to the
anniversary dates. Each Party may offer no more than five (5)
articles for renegotiation at each mid-term negotiation session."
(G.C. Exh. 6).
CONCLUSIONS
On January 9, 1986, the parties executed an agreement /4/
(Stipulation, Tr. 11) which the Director disapproved in part on February
7, 1986. As General Counsel very correctly notes, when an agency head,
pursuant to Section 14(c) of the Statute, disapproves a portion of an
agreement, the agreement fails and the parties are obligated to return
to the bargaining table to bargain a new agreement, Department of the
Interior, National Park Service, Colonial National Historical Park,
Yorktown, Virginia, 20 FLRA No. 65, 20 FLRA 537 (1985), wherein the
Autority stated, in part, as follows:
". . . the failure of the Agency head to approve the agreement
constituted a failure of a condition precedent, and the parties
were effectively returned to the bargaining table to negotiate
until agreement could be reached . . . This obligation to bargain
a new agreement is limited only by any 'ground rules' or
procedures agreed upon by the parties under which negotiations
were to be conducted." (20 FLRA at 542, n. 7).
See, also, U.S. Department of Commerce, Bureau of the Census, 17 FLRA
No. 97, 17 FLRA 667 (1985) (rejection by union membership).
The agreement of January 9, 1986, having failed, the Union on
February 21, 1986, demanded bargaining on travel and per diem for Union
representatives on official time, a demand it had made but had withdrawn
prior to execution of the January 9, 1986, agreement. Its demand was
negotiable, National Treasury Employees Union, 21 FLRA No. 2, 21 FLRA 6
(1986) and Respondent's refusal to bargain because it was barred by the
execution of the agreement of January 9, 1986, was without basis for the
reason that the agreement of January 9, 1986, failed upon the Director's
disapproval in part and the obligation of the parties to bargain a new
agreement was " . . . limited only by any 'ground-rules' or procedures
agreed upon by the parties under which negotiations were to be
conducted." The Exhibits constituting the record in this case neither
show any "'ground-rules' or procedures" nor do the Exhibits constituting
the record assert any limitation to the parties' obligation to negotiate
a new agreement.
As of February 26, 1986, I quite agree with General Counsel that the
record established a prima facie case of a refusal to bargain in
violation of Sections 16(a)(5) and (1) of the Statute. But the parties
did resume negotiations and did reach a full and final Agreement on
March 27, 1986, which Agreement was signed on May 22, 1986 (G.C. Exh.
5), and made the Basic Labor-Management Agreement (G.C. Exh. 6)
effective March 27, 1986. /5/ The final agreement of the parties
neither excepted the travel and per diem issue from its coverage, nor
reserved the right to negotiate the travel and per diem issue. By
contrast, the parties specifically left open for bargaining ACTION
Orders concerning Performance Appraisals, Reduction-in-Force, and
Incentive Awards; and negotiability questions pending before the
Authority. /6/ Because the final agreement of the parties specifically
stated that,
"The parties agree . . . they have bargained fully with respect
to all proper subjects of bargaining and have settled all such
matters as set forth in this Agreement . . . . " (G.C. Exh. 6)
General Counsel failed to make a prima facie showing that, following
resumption of negotiations after Respondent's initial refusal to
bargain, and the negotiation and execution of a full and complete
collective bargaining agreement, Respondent's refusal to bargain on
February 26, 1986, constituted an unfair labor practice in violation of
Sections 16(a)(5) or (1) of the Statute. There is no question that the
Union's demand was a "proper subject" of bargaining; but the parties'
March 27, 1986, negotiated agreement included the "Definition and Status
of Bargaining" clause, as General Counsel concedes (G.C. Brief, p. 3).
Accordingly, execution of the final, full agreement on May 22, 1986,
barred negotiation of all proper subjects of bargaining, pursuant to the
parties' "Zipper clause", not reserved for further bargaining.
The finality of the Agreement of May 22, 1986, was further addressed
by the parties in Article XXVI which limits mid-term negotiation to the
first and second anniversary dates of the Agreement. Moreover, after
negotiation and execution of a basic collective bargaining agreement,
there is no obligation on the part of an agency to bargain over
union-initiated proposals except as the parties may have provided in
their Agreement. Internal Revenue Service, 17 FLRA No. 103, 17 FLRA 731
(1985); Defense General Supply Center, Richmond, Virginia, 20 FLRA No.
63, 20 FLRA 516 (1985).
Therefore, because General Counsel has failed to make a prima facie
case that Respondent refused to bargain in violation of Sections
16(a)(5) or (1) of the Statute, it is recommended that the Authority
adopt the following:
ORDER
The Complaint in Case No. 3-CA-60177 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: August 19, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In its opposition to the General Counsel's exceptions, the
Respondent contends that the exceptions are untimely. The Judge set the
date of September 18, 1986, for filing exceptions by counting 30 days
from the date of his decision. The General Counsel's exceptions were
filed on September 19, 1986. However, under the Authority's Rules and
Regulations, the exceptions had to be filed by September 22, 1986.
United States Department of Justice, Bureau of Prisons, Metropolitan
Correctional Center, New York, New York, 25 FLRA No. 7 (1986). Thus, we
conclude the General Counsel's exceptions were timely filed.
(2) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(5) will be referred to,
simply, as "Section 16(a)(5)."
(3) G.C. Exh. 3, which, of course, was neither challenged nor
controverted, stated that, " . . . The only standing matter before the
Federal Labor Relations Authority involving a proposal by the AEU
relates to a single negotiability question concerning procedures to be
followed prior to certain disability retirement cases." (.G.C. Exh. 3).
(4) The reference in G.C. Exhibit 3, second paragraph, to " . . .
agreement of February 9, 1986" is, pursuant to the stipulation of the
parties in error and the date should be January 9, 1986. The reference
in the penultimate paragraph to "August 23, 1986" is obviously in error
and, presumably, the year should be 1985 if the month and day were
correct.
(5) The printed Agreement, G.C. Exh. 6, although dated February 7,
1986, the date the Director approved the agreement of January except for
certain portions which were disapproved (G.C. Exh. 4), rather than March
27, 1986, the effective date as set forth in the Agreement of May 22,
1986 (G.C. Exh. 5), presumably reflects the final and complete agreement
of the parties, i.e., the portion of the January 9, 1986, agreement not
disapproved, plus the negotiated resolution of the issues disapproved on
February 7, pursuant to the Agreement of May 22, 1986 (G.C. Exh. 5).
Thus, the parties stipulated that, " . . . this agreement, G.C. Exhibit
No. 6, is the one referred to G.C. Exhibit No. 5" (Tr. 13) and General
Counsel in his Brief states, " . . . The parties' March 27, 1986
negotiated agreement includes the 'Definition and Status of Bargaining'
clause . . . . " (G.C. Brief, p. 3). In any event, the agreement of the
parties consists of G.C. Exh. 5 together with G.C. Exh. 6.
(6) While not a model of draftsmanship, the concluding phrase in
"Status of Bargaining", " . . . pending any final decisions on
outstanding matters by the Federal Labor Relations Authority concerning
proposals including negotiability questions" (G.C. Exh. 6) meant
decisions on negotiability questions only, which construction is
established by G.C. Exhibit 3, and does not extend to the Union's charge
of March 10, 1986, as contended by General Counsel.