Department of Health and Human Services, Region VII and National Treasury Employees Union (Authority decision, April 9, 1984)

Final FLRA decision. The Authority found an unfair labor practice and ordered the agency to execute the agreed ground rules on the union's request. Under 5 U.S.C. § 7123(a), a person aggrieved by a final Authority order may generally seek judicial review within 60 days of issuance. A review petition does not itself stay the order.

Plain-English summary

The National Treasury Employees Union and HHS Region VII agreed on ground rules for collective bargaining negotiations. The union asked the agency to sign a written document recording those rules, but the agency refused, arguing that the duty to sign applied only to a completed collective bargaining agreement. On a stipulated record transferred directly to the Authority, the Authority held that negotiating ground rules is part of collective bargaining and that refusing the requested written agreement violated the duty to bargain in good faith. It ordered the agency to execute the ground rules on request and post a notice to employees.

Decision snapshot

• Authority: Written-agreement duty under 5 U.S.C. § 7114(b)(5) and unfair labor practices under § 7116(a)(1), (5), and (8).
• Outcome: Unfair labor practice found; written ground rules and employee notice ordered.
• Key point: Agreed ground rules for negotiations must be recorded in writing when a party requests it.

Full text (FLRA public release)

[ v14 p258 ]

14:0258(46)CA

The decision of the Authority follows:

14 FLRA No. 46

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION VII
KANSAS CITY, MISSOURI
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 7-CA-669

DECISION AND ORDER

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

Upon consideration of the entire record, including the stipulation of facts and the contentions of the parties, the Authority finds:

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to execute, upon the Union's request, a written document embodying ground rules for negotiations which had been agreed to by both parties.

On June 15, 1979, the Charging Party, National Treasury Employees Union (the Union), was certified as the exclusive representative of a unit composed of all General Schedule and Wage Grade professional and nonprofessional employees of the Department of Health and Human Services, Region VII, Kansas City, Missouri (the Respondent), with certain exclusions. On November 15, 1979, the Respondent and the Union met to negotiate ground rules, and reached full and complete agreement on that same day. On April 1, 1980, the parties began negotiations for a collective bargaining agreement; tentative agreement on several articles was reached before May 23, when negotiations were temporarily suspended at the Union's request.

Negotiations resumed on July 23, with the Union designating a new chief negotiator. The Union submitted ground rules proposals which were identical to those agreed upon in November except for two new ones. The parties reached full agreement on the ground rules proposals that day, the substance of which are concerned entirely with matters relating to the "framework" of negotiations, such as the number of participants for each side; the location of negotiations; a schedule for negotiation meetings; the procedures for initiating, negotiating and agreeing to proposals; and procedures to help resolve impasses.

On July 24, the Union requested that the Respondent execute a written document memorializing the provisions of the agreed-upon ground rules. Respondent refused, asserting that it was not necessary to execute a written document embodying ground rules for negotiations. Since that date, negotiations have continued, but the parties have not reached a final collective bargaining agreement. There is no assertion or evidence that Respondent has failed to bargain in good faith in any other manner, or that it has failed to abide by any of the ground rules agreed to by the parties.

The General Counsel and the Union argue that Respondent's conduct is directly contrary to the obligation imposed by section 7114(b)(5) of the Statute, /1/ and therefore violates section 7116(a)(1), (5) and (8) as alleged. /2/ The Respondent, on the other hand, argues that the obligation contained in section 7114(b)(5) refers only to a collective bargaining agreement, and that the subject agreement on ground rules is not, by statutory definition, a collective bargaining agreement.

The Authority concludes that the Respondent has violated the Statute as alleged. In Department of Defense Dependents Schools, 14 FLRA No. 40(1984), the Authority held that the negotiation of ground rules is part of the good faith negotiating process. The Authority further noted that preliminary arrangements such as the time, place, length and agenda of negotiation meetings are necessary steps in fulfilling the requirement of section 7114 of the Statute that the parties meet "at reasonable times and convenient places." /3/ The Authority concluded that "(t)he fact that some parties mutually agree to set such preliminary arrangements apart and call them ground rules negotiations does not separate them from the collective bargaining process and the parties' mutual obligation to bargain in good faith." It follows that, by refusing the Union's request to execute a written memorial of the agreed-upon ground rules, Respondent has failed to comply with section 7114(b)(5) of the Statute and to fulfill its obligation to bargain in good faith, thereby violating section 7116(a)(1), (5) and (8) of the Statute.

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of Health and Human Services, Region VII, Kansas City, Missouri, shall:

1. Cease and desist from:

(a) Refusing to execute, on request of the National Treasury Employees Union, the exclusive representative of its employees, a written document embodying the agreed-upon ground rules for negotiations.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Execute, at the request of the National Treasury Employees Union, a written document embodying the agreed-upon ground rules for negotiations reached by the parties on July 23, 1980.

(b) 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 an authorized representative of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., April 9, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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 refuse to execute, on request the National Treasury Employees Union, the exclusive representative of our employees, a written document embodying the agreed-upon ground rules for negotiations.

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 Federal Service Labor-Management Relations Statute.

WE WILL execute, at the request of the National Treasury Employees Union, a written document embodying the agreed-upon ground rules for negotiations reached by the parties on July 23, 1980. (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, Region VII, Federal Labor Relations Authority whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.

--------------- FOOTNOTES$ ---------------

/1/ Section 7114(b)(5) provides:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

(5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement.

/2/ Section 7116(a)(1), (5) and (8) provides:

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(;)

(8) to otherwise fail or refuse to comply with any provision of this chapter.

/3/ Section 7114(b)(3) provides:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--

(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays(.)