Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council (Authority decision, June 4, 1982)

Final FLRA decision. The Authority decided this unfair labor practice complaint on a stipulated record and dismissed it. Under 5 U.S.C. § 7123(a), an aggrieved party may seek judicial review of a final Authority order within 60 days of issuance.

Plain-English summary

The union at Norfolk Naval Shipyard asked to negotiate a broader grievance procedure after the parties had reached a tentative successor agreement containing a grievance procedure. The agreement had not been ratified or signed. The shipyard declined further bargaining, and an unfair labor practice complaint followed. On a stipulated record transferred directly to the Authority, the Authority found that the shipyard had fulfilled its bargaining obligation by negotiating the tentative agreement. It dismissed the complaint, reasoning that the union's failure to seek ratification did not restart the shipyard's duty to bargain.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(5), and 7121.
• Outcome: The unfair labor practice complaint was dismissed.
• Key point: A tentative agreement containing a grievance procedure satisfied the bargaining obligation despite the union's lack of ratification.

Full text (FLRA public release)

[ v09 p36 ]
09:0036(6)CA

The decision of the Authority follows:

9 FLRA NO. 6

NORFOLK NAVAL SHIPYARD

Respondent

and

TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL

Charging Party

Case No. 3-CA-2116

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and briefs submitted by the General Counsel and the Respondent, the Authority finds:

The complaint herein alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute on January 23, 1981, and continuing thereafter, by failing and refusing to negotiate for a full scope grievance procedure with the Charging party, Tidewater Virginia Federal Employees Metal Trades Council (the Union). The Respondent admits to the conduct alleged, but takes the position that it had no further obligation to negotiate with the Union in the circumstances of this case.

The undisputed facts as stipulated by the parties 1 are as follows: [ v9 p36 ]

The Union is recognized as the exclusive bargaining representitive of a unit of the Respondent's employees. The Union and the Respondent are presently operating under a two-year collective bargaining agreement negotiated in 1977, pending the completion of negotiations for a new agreement. They were engaged in such negotiations from May 1979 until October 2, 1980, when they reached a tentative agreement that included a grievance procedure. To date, the tentative agreement has neither been ratified by the Union membership nor executed by the parties.

By letter dated January 15, 1981, in a one sentence statement, the Union "... opt(ed) (effective this date) for a full scope grievance procedure." By letter dated January 23, 1981, the Respondent stated that it had complied with the Authority's Interpretation and Guidance in Case No. 0-PS-2 2 and had no further obligation to negotiate.

In its brief, the General Counsel contends that until the parties have in place a grievance procedure negotiated in accordance with section 7121 of the Statute, either party may seek to renegotiate the scope of the existing procedure. The General Counsel argues that, based on the Authority's Interpretation and Guidance, supra, parties have the option of negotiating a section 7121 grievance procedure as a separate interim agreement without having to await the ratification and execution of a successor contract. The Respondent contends, among other things, that even assuming the Union's January 15, 1981 letter was a request to renegotiate the grievance procedure, the Respondent had met its obligation under the Statute by reaching a tentative agreement with the Union containing a grievance procedure and by requesting that the Union take whatever steps are necessary to implement that agreement.

In the circumstances of this case, the Authority finds that the Respondent has met its obligation pursuant to the Authority's Interpretation and Guidance, supra, with regard to negotiating a grievance procedure under the Statute, and therefore did not violate section 7116()(1) and (5) of the Statute. Thus, the parties have engaged in good faith negotiations under the Statute and have reached a full tentative agreement which includes a section 7121 grievance procedure. However, the record does not disclose that the Union has even attempted to obtain membership ratification of the tentative agreement. That failure cannot serve to revive the Respondent's bargaining obligation. Accordingly, the complaint shall be dismissed. [ v9 p37 ]

ORDER

IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-2116 be, and it hereby is, dismissed.

Issued, Washington, D.C., June 4, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p38 ]

FOOTNOTES

Footnote 1 The General Counsel has moved to
strike portions of the Respondent's brief on the grounds that the brief contains factual material not included in the stipulation of facts. In reaching its decision in the instant case, the Authority has considered only facts contained in the stipulation, and therefore the motion to strike is denied.

Footnote 2 2 FLRA 273 (1979)