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29 FLRA No. 98

U.S. GOVERNMENT PRINTING OFFICE

                   Respondent

      and

JOINT COUNCIL OF UNIONS/GPO

                   Charging Party

Case No. 3-CA-60461

DECISION AND ORDER

I. Decision

The Administrative Law Judge issued the attached decision in this case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint when it put back into effect its old leave without pay policy. He recommended that the complaint be dismissed. The General Counsel has filed exceptions. 1

Pursuant to section 2324.29 of our Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. On consideration of the Judge's decision and the exceptions, we adopt the Judge's findings, conclusions, and recommended order.

II. Order

The complaint in this case is dismissed.

Issued, Washington, D.C.,October 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [PAGE]

U.S. GOVERNMENT PRINTING
  OFFICE

              Respondent

    and

JOINT COUNCIL OF UNIONS/GPO

              Charging Party

Case No. 3-CA-60461

Neal H. Fine, Esquire
Mr. Don McCaughan
         For the Respondent

Mr. John Sagner
Mr. George E. Lord
         For the Charging Party

Patricia Eanet Dratch, Esquire
         For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., against the U.S. Government Printing Office (Respondent or GPO), based on a charge filed by the Joint Council of Unions/GPO (Joint Council or Union). The complaint alleged, in substance that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), on or about March 13, 1986, by [PAGE] unilaterally changing the working conditions of employees represented by the Union regarding use of leave without pay by informing the Union that effective immediately Respondent would be following the provisions of Instruction 645.11, Leave Without Pay.

Respondent's answer admitted the jurisdictional allegations as to Respondent, the Union, and the charge, but denied any violation of the Statute.

A hearing was held in Washington, D.C. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs, and the proposed findings have been adopted where found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

GPO suffered a monetary loss in its printing and binding operations in fiscal year 1982 and projected continued losses in fiscal year 1983. The Public Printer, Danford Sawyer, believed that to stem these losses he had to achieve a reduction in personnel compensation costs. When an attempt to furlough all employees for 6 days was blocked by the Joint Committee on Printing and the U.S. District Court, the Public Printer proposed that costs could be reduced by encouraging employees to take leave without pay during fiscal year 1983. The existing GPO Instruction on Leave Without Pay, 645.11, generally provided that an employee could only take a limited amount of leave without pay each year. The Public Printer wanted to amend, only for fiscal year 1983, the provisions in Instruction 645.11 which limited the amount of leave without pay (LWOP) which could be granted.

On November 9, 1982, the Joint Council was sent a proposal which embodied these desires and aims of the Public Printer. The proposals specifically stated that the limitations on LWOP would be amended for only one year and would be subject to revision or continuation in accordance with GPO's economic conditions. The proposal was submitted to the Joint Council as a GPO Notice. The Joint Council requested negotiations, and negotiations began November 29, 1982, ending April 15, 1983. [ v29 p2 ]

During this period of time negotiations on the first Master Agreement between Respondent and the Joint Council, which had taken 3 1/2 years to complete, were also concluding. 2 Leave was a major stumbling block. The parties ultimately agreed to Article XIII, Leave, as follows:

SECTION 1. New GPO Instructions regarding annual leave, sick leave, court leave, administrative leave, and leave without pay may be negotiated by the parties after this Agreement is signed and be incorporated by reference in the Master Agreement. Such Instructions will replace provisions of existing Supplemental Agreements and existing GPO directives and issuances on the same subject, and each will become effective after agreement is reached.

GPO issues policy and procedure directives as either Notices or Instructions. A Notice is issued for directives which are temporary in nature, while permanent policies are issued as instructions. 3 Notices are always printed on green stock paper, while Instructions are printed on white stock paper. In addition Notices always have a specific cancellation date, while Instructions, being permanent policies, do not contain cancellation dates. The Joint Council was well aware of the differences between Notices and Instructions.

The parties exchanged proposals several times during the course of negotiations. A major point of dispute throughout the negotiations was whether the LWOP policy would be issued as a Notice or as an Instruction. Each GPO proposal was presented in the form of a Notice for a fixed period of time which would only amend the limitation provisions of the existing Instruction 645.11. The Joint Council, however, presented each of its proposals in the form of a permanent Instruction, which would supersede the provisions of [ v29 p3 ] instruction 645.11. The Joint Council proposed that the Instruction "be in effect for the duration of the Master Agreement or 3 years thereof."

At a negotiation session on April 11, 1983 the parties specifically discussed the difference between a Notice and Instruction and reiterated their reasons for wanting one or the other. GPO, by Lawrence Kennelly, principal negotiator, explained that management wanted the policy to be in the form of a Notice so it would expire on a specific date. The Public Printer was fearful that GPO might lose personnel over a period of time and would no longer be able to afford having personnel on leave without pay. The Joint Council, by George E. Lord, chief negotiator, explained that they wanted it to be an Instruction so that it would continue as part of the Master Agreement and Management would have to negotiate any change. (Tr. 122-123; 136).

On April 15, 1983, the parties reached agreement on the LWOP policy. As a result of a concession on GPO's part concerning how LWOP would be considered by selecting officials under the merit promotion program, the Joint Council agreed to a Notice. (Tr. 148). 4

GPO Notice 645-110 on voluntary LWOP was issued on may 15, 1983. It provided, in pertinent part, as follows:

1. Purpose. This Notice shall be in effect until March 13, 1986, and it explains the new LWOP program.

4 Impact on Existing GPO Regulations and Policies. Some GPO regulations will be altered by this program. These are: [ v29 p4 ]

a. GPO instruction 645.11, Subject: LWOP. This Instruction is amended. . . .

8 Negotiation. This Notice has been negotiated between the appropriate management officials and the Joint Council of Unions of the GPO.

9. Cancellation. This Notice is cancelled on March 13, 1986.

The cancellation date for the Notice, March 13, 1986, was four days after the expiration of the Master Agreement.

GPO Instruction 645.11 was not terminated by issuance of the Notice. it remained in full effect with only the amendments provided by the Notice altering its provisions during this three year period.

There is no evidence that the Joint Council ever requested bargaining over LWOP after agreement on the Notice until it submitted its proposals for the second collective bargaining agreement in January 1986.

In late January or early February 1986, Neal Fine, Respondent's Deputy Director of Labor Relations, called George Lord, Joint Council Chairman, and asked Lord the Union's position with respect to what LWOP would be in effect upon the expiration of the negotiated LWOP Notice. Lord responded, inter alia, that the Union's position was that LWOP policy was tied to the master agreement, and that it was his understanding that the negotiated policy would stay in effect until negotiations over any new policy were completed. Lord told Fine that if Fine could show him that at any time during the negotiations over LWOP the Union had agreed to implement the prior LWOP policy (Instruction) upon the expiration of the negotiated policy (Notice), the Union would concede the point. Lord informed Fine that if Respondent intended to unilaterally invoke a new policy upon the expiration of the negotiated Notice, the Union would file an unfair labor practice charge. Additionally, Lord told Fine that such a unilateral action by Respondent would seriously impair the on-going negotiations for a second master agreement. [ v29 p5 ]

By letter dated March 13, 1986, Respondent, by Neal Fine, notified the Joint Council that GPO Notice 645-110 was negotiated to be in effect only until March 13, 1986 and, effective immediately, GPO would be following GPO Instruction 645.11.

The reinstitution of GPO Instruction 645.11 had a substantial impact on bargaining unit employees. in this regard, the most significant difference between the negotiated LWOP policy and the policy reinstituted by Respondent on March 13, 1986, was that the negotiated policy removed limits on the amount of LWOP employees could use. Thus, under the reinstituted Instruction, significant numbers of employees who would have been carried in LWOP status under the negotiated policy are now being placed in an absent without leave (AWOL) status. The number of employees on AWOL has roughly doubled since Respondent's reinstitution of the Instruction.

Another significant difference between the two policies is that under the Instruction the approval for LWOP must come from the division or department head while the negotiated policy permitted employees to request LWOP from appropriate supervisors. A further difference in the policies concerns the effect of LWOP use on merit promotions and on the performance appraisal system. Under the negotiated policy an employee's LWOP use would not be a factor in merit promotion, while it is a possible adverse consideration in merit promotion under the Instruction. Similarly, employees being carried in an AWOL status, who formerly would have been on LWOP, may be adversely affected in their appraisals since unauthorized absences can be considered in rating employees. Employees have been subjected to disciplinary actions because, after being refused LWOP, they were placed on AWOL.

At the time Respondent reinstituted the Instruction, the parties were in negotiations over a second collective bargaining agreement. The parties had exchanged complete sets of proposals, including proposals on LWOP, had executed a ground rules agreement, and had commenced negotiations in February 1986. GPO's first proposal proposed "no change" in the language of the Master Agreement concerning leave. The Joint Council submitted a counter-proposal which included a proposal for in excess of 240 hours of LWOP to be approved by supervisors and for mandatory approval for certain categories of employees. [ v29 p6 ]

Discussion, Conclusions and Recommendations

The General Counsel contends that Respondent violated section 7116(a)(1) and (5) of the statute by implementing its previous LWOP policy without providing the Union notice and an opportunity to negotiate the substance, impact, and implementation of this change in working conditions. The General Counsel maintains that Respondent never proposed reinstitution of the prior LWOP policy (Instruction) upon expiration of the negotiated policy (Notice), and the negotiated policy is completely silent as to what happens upon expiration of the agreement. The General Counsel asserts that the negotiated LWOP agreement had been incorporated by reference into the Master Agreement, but, even if it were a separate agreement, Respondent's obligation was to maintain the terms and conditions of the Notice upon its expiration. The General Counsel claims that Respondents' unilateral action is particularly egregious since the parties were actively engaged in negotiations over a second master agreement and had exchanged proposals, including specific LWOP proposals, at the time. The General Counsel seeks a status quo ante remedy.

Respondent defends on the basis that the voluntary leave without pay program contained in the Notice was never incorporated by reference into the parties' Master Agreement; the Council made a clear and unmistakable waiver of its bargaining rights; the dispute should have been submitted to arbitration; and a status quo ante remedy is not appropriate.

It is well settled that the duty to negotiate in good faith under the statute requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment, absent a clear and unmistakable waiver of bargaining rights. such a waiver may be shown by the language of the agreement, the negotiations leading to the agreement, or the past practices of the parties in implementing the agreement. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). The Authority has also held that existing personnel policies, practices, and matters affecting working conditions, established pursuant to the parties' mutual obligation to negotiate over mandatory subjects of bargaining, continue to the maximum extent possible, upon the expiration of a negotiated agreement, absent an express agreement to the contrary or unless modified in a manner consistent with the Statute. U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981); Federal Aviation Administration, Northwest Mountain Region, 14 FLRA 644, 647 (1984). [ v29 p7 ]

The resolution of the dispute in this matter involves differing and arguable interpretations of Article XIII of the Master Agreement, the 1983 agreement which resulted in GPO Notice 645.110, and a consideration of the negotiations leading to the Notice. In cases involving disputed interpretations of an agreement, the aggrieved party's remedy is through the grievance and arbitration procedures available to the parties rather than through unfair labor practice procedures. Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey, 24 FLRA No. 8, 24 FLRA 64, 69 (1986); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA 512, 521-22 (1980).

Assuming, however, that the case is properly the subject of an unfair labor practice proceeding on the theory that it involves an alleged failure to bargain under the Statute and an alleged failure to maintain existing working conditions upon the expiration of an agreement, the record will be considered further on that basis. Tinker Air Force Base, supra; Iowa National Guard and National Guard Bureau, 8 FLRA 500, 510 (1982).

A preponderance of the evidence fails to establish that Respondent violated section 7116(a)(1) and (5) of the Statute when it terminated the Notice and reinstituted the Instruction. Respondent based its action on the Notice's clear and unmistakable termination/cancellation language to which the Joint Council was bound.

I agree with Respondent that the voluntary LWOP policy negotiated by the parties and contained in the Notice was not made a part of the parties' master Agreement and did not continue to exist after its explicit cancellation date. The testimony of Respondent's negotiators to this effect (Tr. 138-139; 147, 149-150; vol. 2, 10) is consistent with the documentary evidence. Article XIII of the master Agreement provided that "Instructions . . . may negotiated by the parties after this Agreement is signed and be incorporated by reference in the Master Agreement." The parties were well aware that Instructions were issued for directives which were permanent in nature while temporary policies were issued as Notices with a specific cancellation date. The parties not only agreed upon a "Notice," but it contained two specific references to the agreement's expiration cancellation date. It also used the word "amend" rather than "supersede," as urged by the Union, to reference the existing provisions of the permanent Instruction which otherwise [ v29 p8 ] continued in effect. In addition to being an "Instruction," there is the striking absence of any statement in the Notice that it was to "be incorporated by reference in the Master Agreement." The statement in the Notice that it was negotiated by the parties, standing along, cannot be construed to mean that it was incorporated by reference in the Master Agreement and would continue to exist after its explicit cancellation date. Cf. Norris Industries and Automobile Workers, Local 509, 96 LRRM 1078 (1977). During the negotiations, the Joint Council traded the permanency of the provisions for guarantees concerning the non-consideration of LWOP in merit promotions.

It is concluded that the Union clearly and unmistakably waived its right to bargain over Respondent's decision on March 13, 1986 to put back into effect the LWOP policy contained in GPO instruction 645.11. The clear language of GPO Notice 645.10 and its bargaining history establish that its terms were to last only until March 13, 1986. The Joint Council's agreement was a conscious surrendering of its position that the LWOP provisions had to continue concurrently with the master Agreement. The GPO's decision on march 13, 1986 to reinstitute the LWOP policy contained in GPO Instruction 645.11 was only the application of the parties' agreement reached on April 15, 1983.

As negotiated, the Notice was a temporary policy on LWOP which could have been replaced at anytime by a new Instruction negotiated under the provisions of Article XIII of the Master Agreement. In the absence of such a new Instruction, the Notice terminated by its express terms and the old Instruction automatically became effective. There is no evidence that GPO ever refused to negotiate permanent "new GPO Instructions" on leave under Article XIII of the Master Agreement. After the 1983 temporary agreement on LWOP, the Council never requested bargaining over LWOP until it submitted its proposals for the new Master Agreement in 1986.

The Union was well aware from the Notice itself of its march 13, 1986 expiration date. The Union was also alerted to the expiration date by the telephone conversation from a representative of Respondent in early 1986. It did not request bargaining on the impact and implementation of what it should have known was an automatic return to the LWOP policies in GPO Instruction 645.11 on that date. [ v29 p9 ]

It is concluded that a preponderance of the evidence does not demonstrate that Respondent engaged in an unfair labor practice, as alleged in the complaint, by implementing GPO Instruction 645.11 on March 13, 1986.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following order:

ORDER

The complaint in Case No. 3-CA-60461 is dismissed.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: June 16, 1987
       Washington, D.C.

FOOTNOTES

Footnote 1 The Respondent's opposition to the General Counsel's exceptions and the Respondent's cross-exceptions were untimely filed and have not been considered.

Footnote 2 The Master Agreement became effective March 9, 1983 for a period of three years. It provided for a renegotiation period, and that the contract would remain in full force and effect during the renegotiation period including mediation and impasses procedures.

Footnote 3 Council president Lord testified that some Notices inform personnel of permanent policies. No example or other support was provided for this assertion.

Footnote 4 Mr. Lord, Joint Council Chairman, testified that the Union's final offer was that, if management would accept the march 13, 1986 expiration date, which would run concurrently with the Master Agreement, the Union would agree to call it a Notice. I do not credit this testimony as the basis for the final agreement. It is noted that GPO's proposal of April 15, 1983 already included a March 13, 1986 expiration date. The final agreement reflects that additional changes were made in that proposal. These are consistent with other concessions on GPO's part being the basis for agreement as testified to by Edward Blatt, a GPO negotiator.

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