Denver Regional Office Recent Authority Decisions Bars to ULP - - PowerPoint PPT Presentation

Federal Labor Relations Authority

Case Law Update

Denver Regional Office

Recent Authority Decisions

• Bars to ULP Charges and Grievances
• Time Limitations to File ULP Charges
• Conditions of Employment
• Past Practices
• FLRA Review of Arbitration Awards

Bars to ULP Charges and Grievances

5 U.S.C. § 7116(d)

5 U.S.C. § 7116(d) “Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121 (e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, at the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.” (Emphasis added.)

70 FLRA No. 104

United States Dep’t of the Navy Navy Region Mid-Atlantic, Norfolk,

• Va. and International Brotherhood of

Police Officers Local 800

70 FLRA No. 104

• 2012: Union filed three ULP charges alleging Agency violated Section

7116(a)(5) of the Statute when it: refused to provide the Union with a list of changes to BUEs’ training requirements, failed to meet with the Union to discuss changes, and refused to designate someone with authority to bargain (Sewells Point Precinct)

• Two ULP charges dismissed (Union waived right to bargain), One ULP charge withdrawn
• 2013: Union filed two ULP charges alleging Agency failed to notify

Union prior to implementing training requirements (CNRMA)

• Charges untimely
• 2014: Union filed ULP charge alleging Agency failed to notify Union

prior to implementing training requirements (Norfolk)

• Charge untimely
• 2015: Union filed ULP charge alleging Agency implemented new

training requirement (Sewells Point Precinct)

• Charge untimely

70 FLRA No. 104

• 2016: Union filed a grievance against the Agency alleging that

Agency violated the agreement by failing to provide the Union an opportunity to bargain prior to requiring two BUEs stationed at Norfolk to perform new training requirement (PAT).

• Arbitration:

– Union argued grievance was a contractual claim while ULPs were statutory claims – Agency argued earlier ULP dismissals were proof Agency provided sufficient notice and Union waived its right – Arbitrator decided earlier ULPs would bar grievance but Agency did not raise such an argument – Arbitrator found Agency failed to satisfy contractual obligation to bargain prior to implementing the PAT

70 FLRA No. 104

• Authority disagreed with Arbitrator’s award and held

that Section 7116(d) of the Statue applies to the earlier filed ULPs

– “Section 7116(d) bars the grievance when the theories advanced in the ULP charge and the grievance are substantially similar.”

• Old rule Clear distinction between legal theories supporting allegations
• f contract violations and allegations of statutory violations, finding that

the theories are not substantially similar for purposes of § 7116(d).

• New rule No distinction between legal theories of contractual

violations and Statutory violations if legal theories are substantially similar

Time Limitations to File ULP Charges

5 U.S.C. § 7118(a)(4)(A)

• 5 U.S.C. § 7118(a)(4)(A) states: “no complaint

shall be issued on any alleged [ULP] which

• ccurred more than [six] months before the

filing of the charge with the Authority.”

70 FLRA No. 132

U.S Department of Defense, Education Activity and Federal Education Association

70 FLRA No. 132

• November 2003: Arbitrator found that Agency failed to provide employees with sufficient information

related to their pay. Arbitrator directed the Agency to modify its payroll system accordingly

• 2004 – 2010: Arbitrator held several “implementation hearings” with the parties to discuss how the

Agency would comply with the Arbitrator’s directive

• March 2010: Arbitrator sent the Agency a letter articulating the specific revisions that the Agency was

required to make to its payroll system in order to comply with his earlier awards. Agency contacted its payroll service provider, the Defense Finance and Accounting Service (DFAS), and asked it to make those revisions

• April 2010: DFAS responded to Agency, declining to make all of the Arbitrator’s directed revisions as

such revisions were not available in the payroll system

• May 2010: Agency forwarded DFAS’s response to the Union and the Arbitrator
• August 2010: Agency and DFAS presented to the Union and the Arbitrator an updated version of the

payroll system. Union demonstrated to everyone that the system did not satisfy the award

• 2010 – 2015: Arbitrator continued to hold implementation hearings with the Union and Agency
• May 2015: Agency informed Arbitrator and Union that the Arbitrator’s “perpetual jurisdiction” had placed

the Agency in an “untenable position” and that the Agency would not make some of the revisions August 2015: Arbitrator issued additional award as Agency had failed to implement Arbitrator’s award

• October 2015: Union filed ULP alleging repudiation

70 FLRA No. 132

• In failure-to-comply cases, the six-month period begins to

run when, as relevant here, one party expressly notifies the other that it will not comply with the obligations required by an award

• ALJ held that Agency repudiated Arbitrator’s 2003 award

– Found that Agency notified Union in May 2015 that it would not comply with Award

• Authority reversed, finding ULP charge was untimely

– Found Agency notified Union in May 2010 that it would not comply with Award when it forwarded DFAS’s response to the Union and the Arbitrator

Conditions of Employment

5 U.S.C. § 7103(a)(14)

• 5 U.S.C. § 7103(a)(14) states: “conditions of employment”

means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters –

– (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; – (B) relating to the classification of any position; or – (C) to the extent such matters are specifically provided for by Federal statute

• The Authority has held that a distinction between the

terms conditions of employment and working conditions is improper as such a distinction is inconsistent with the Statute’s legislative history and contrary to Authority and judicial precedent – GSA, Eastern Distribution Center, Burlington, N.J., 68 FLRA 70, 75 (2014)

70 FLRA No. 102

U.S. Dep’t of Homeland Security, U.S. Customs & Border Protection, El Paso, TX and AFGE, Nat’l Border Patrol Council, Local 1929

70 FLRA No. 102

• Arbitrator's decision: Agency violated

Collective Bargaining Agreement, which incorporated section 7116(a)(5) of the Statute, by changing bargaining unit employees’ working conditions without providing the Union with advance notification and the opportunity to bargain.

70 FLRA No. 102

• Arbitrator specifically found the Agency

changed conditions of employment by issuing a memo to bargaining unit employees

• utlining the new procedure for processing

cars at the entry point, including increasing the frequency at which bargaining unit employees were to inspect cars to a secondary checkpoint

70 FLRA No. 102

• Authority disagreed & reversed precedent that

there was no distinction between the terms working conditions and conditions of employment

– “(W)orking conditions are the day-to-day circumstances under which an employee performs his or her job.” 70 FLRA No.102 at 503 (internal quotation marks omitted)

• Old “rule” interchangeable terms with identical Statutory

bargaining implications

• New “rule” “agency only has to bargain over conditions of

employment”

70 FLRA No. 151

American Federation of Government Employees, Local 1633 and U.S. Department of Veteran Affairs, Michael E. Debakey VAMC

70 FLRA No. 153

Social Security Admin., Office of Disability Adjudication and Review, Sacramento, CA and Int’l Fed. of Professional and Technical Engineers, Association of

• Admin. Judges

Past Practices

Past Practices

• A practice that is is consistently and
• penly exercised over a significant

period of time and followed by both parties, or followed by one party and not challenged by the other

– U.S. Dep’t of Labor, Wash., D.C., 38 FLRA 899 (1990)

Past Practices

• Previously, parties could establish

past practices that were different than or inconsistent with the terms

• f their contract

– e.g. U.S. Dep’t of the Navy, Naval Avionics Ctr., Indianapolis, Ind., 36 FLRA 567 (1990)

70 FLRA No. 107

U.S. Small Business Administration and AFGE, Local 3841

70 FLRA No. 107

• Union filed grievance & invoked

arbitration, but waited 6 months to request arbitrators from FMCS

• CBA said:

– Party invoking arbitration must contact FMCS “within fourteen . . . calendar days of invoking arbitration” – “Unless mutually agreed upon, all time limits . . . shall be strictly observed.”

70 FLRA No. 107

• Arbitrator acknowledged Union was

untimely, but said the parties had a past practice that allowed Union not to “strictly comply with the time limits” for arbitration

– Found that grievance was timely, ruled in favor of the Union

70 FLRA No. 107

• Authority disagreed & reversed

precedent on past practices:

– “arbitrators may not modify the plain and unambiguous provisions of an agreement based

• n parties’ past practices”
• Old rule interfered with “stability” of bargained-for

agreements

• New rule “enables parties to rely on the negotiated

terms of their agreements”

70 FLRA No. 107

• TAKEAWAYS:

–Past practices that conflict with plain language of CBAs? Bad. –Past practices that do not conflict with plain language of CBAs? Maybe, but see, 70 FLRA No. 152.

FLRA Review of Arbitration Awards

70 FLRA No. 83

U.S. Dep’t of Justice, Federal Bureau

• f Prisons and AFGE, Local 817,

Council of Prisons Locals #33

Revises framework Authority applies when analyzing exceptions claiming that an arbitral award is contrary to a management right

5 U.S.C. § 7106(a) establishes management rights under the Statute. The substance of management’s decision to exercise these rights is non-negotiable. Right to determine the mission, budget, organization, number of employees and internal security practices Right to hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, discipline, assign work, contract out, determine personnel, make selections for promotion, and take other action as necessary to carry out the mission during emergencies.

5 U.S.C.§ 7106(a) management rights are subject to 5 U.S.C § 7106(b)(3) bargaining

5 U.S.C. § 7106(b)(3) allows negotiation over “appropriate arrangements” for employees adversely affected by the exercise of a management right. Excessive interference test balances a proposal’s benefits to employees against the proposal’s burden on the agency’s exercise of its management rights

Is the Arbitrator’s award contrary to law because it violates a management right under § 7106 of the Statute?

• Does the award affect a management right?
• Does the award provide a remedy for a contract

provision negotiated under § 7106(b)

• Does the contract provision = arrangement?
• Does the arbitrator’s enforcement of the contract

abrogate the exercise of the management right?

• Does the award reasonably relate to negotiated

contract provisions at issue and the harm being remedied?

EPA, 65 FLRA 113 (2010); FDIC, 65 FLRA 102 (2010).

70 FLRA No. 83 (DOJ)

• Agency reserved assignments/days
• ff/shifts for non-bargaining unit U.S.

Public Health Service Commissioned Corps Officers before bargaining unit employees could bid on those shifts.

• Non-bargaining unit Officers allowed to

participate in bidding process.

DOJ Arbitrator’s Decision Agency violated parties’ contract when setting aside shifts/days off for non- bargaining unit Public Health Service Officers before bargaining unit employees could bid on those shifts and should exclude non-bargaining unit Officers from bidding to be consistent with the Statute.

DOJ Arbitrator’s Award

Agency prohibited from setting aside any assignments, days off, or shifts from roster for non-bargaining unit Officers that may available for bargaining unit employee bidding Agency may not allow non-bargaining unit Officers to participate in the bidding process

DOJ Framework

• Has arbitrator found a violation of a contract

provision?

• Does the arbitrator’s remedy reasonably and

proportionally relate to the violation?

• Does arbitrator’s interpretation of the provision

excessively interfere with a § 7106(a) management right?

U.S. Dep’t of Justice, Fed. Bureau of Prisons, 70 FLRA 398, 405 (2018) (DOJ).

Application of DOJ Framework

• Did the arbitrator find a violation of a contract

provision: YES

• Was the arbitrator’s remedy reasonably and

proportionally related to the violation: YES

• Does the arbitrator’s interpretation of Article 18

excessively interfere with the Agency’s right to assign work and employees under § 7106(b): YES

DOJ Authority’s Decision

The Award restricts the Agency to a point where it can no longer assign work to employees

• utside of the bargaining unit and thus,

excessively interferes with management’s right to assign work and employees. Accordingly, the Award is Contrary to Law.

DOJ: Two Big Changes

• Eliminates requirement that contract provision

must be negotiated under § 7106(b) of the Statute.

• Replaces abrogation standard with excessive

interference test in deciding whether an award impermissibly affects management rights.

Member DuBester’s Dissent

• DOJ fails to account for practicalities of (1)

collective bargaining and (2) administration and enforcement of contracts.

• Collective Bargaining = Balancing
• Enforcement = Deference

Authority’s Application of DOJ

• U.S. Dep’t of Justice, Fed. Bureau of Prisons,
• Corr. Inst., Big Spring, Tex., 70 FLRA

44(2018).

• U.S. Dep’t of Justice, Fed. Bureau of Prisons,
• Corr. Complex, Lompoc, Cal., 70 FLRA 596

(2018).

• U.S Dep’t of the Treasury, Internal Revenue

Serv., 70 FLRA 792 (2018).

Representation Decisions

70 FLRA No. 96

U.S. Department of Labor and AFGE, Local 12

70 FLRA No. 97

U.S. Department of Veterans Affairs, Kansas City VA Medical Center and AFGE, Local 3841