When asked why the Agency rejected the five counterproposals offered by the Union late on April 24, Jones stated, [W]e were too early on. Second, the Agency effectively gave the Union a matter of hours 3:52 to 6:33 p.m., or perhaps a bit longer, if the Union had agreed to continue bargaining into the evening to analyze the Agencys twenty-one counterproposals and provide written responses to them. They requested bargaining. He said today and tomorrow; thats it.. National Labor Relations Board: 80 Years, Page 11. 367, 465. WE WILL NOT unilaterally change working conditions of employees in the bargaining unit represented by the Union concerning the relocation of the Agency headquarters without notifying the Union and affording it an opportunity to negotiate to the extent required by the Statute. 236. 431. 104. 121, 413, 448-49; GC Ex. No. Synopsis of Rule of Law. $19.95 Buy and instantly download this paper now. Monday, January 13, 2020. . The boards job is to determine whether labor violations have occurred, while the general counsel acts as a supervisor and prosecutor. 29, 30. Synopsis of Rule of Law. The primary responsibilities of the FLRA are to: Resolve complaints of unfair labor practices (ULPs). 32 at 1. The Board. [2], The Authority adjudicates disputes arising under the Civil Service Reform Act, deciding cases concerning the negotiability of collective bargaining agreement proposals, appeals concerning unfair labor practices and representation petitions, and exceptions to grievance arbitration awards. More importantly, the Union continued to keep its original forty-one proposals on the table. Additionally, the bargaining with the Union over furniture lasted for only one day, November 24, and it ended without an agreement or evidence of an impasse. things that we could agree on. Tr. Subsequently, the GC, the Charging Party, and the Respondent filed post-hearing briefs, which I have fully considered. But the ULP also involved, and was of concern to, the Unions members outside the Washington, D.C., area, as the bargaining units are nationwide in scope and many of the Union negotiators worked outside Washington. Nobody disputes that. Tr. Later that day, Stephen Sloper, a member of the Unions Executive Committee, asked FMCS Mediator Kurt Saunders to mediate the dispute. 13, 15. Without unions, pension and health care benefits deteriorate and workers' interests in safe and healthy workplaces and in stable employment go unheard and unheeded by employers and by the government alike. The main dispute is what effect should be given to those terms on which the parties reach agreement: specifically, should they be effectuated retroactively or only prospectively? Were moving from [Franklin Court] to . Atvarious times during the Franklin Court walk-through, Durkin and Luther attempted to measure employee workspaces, and Durkin attempted to ask at least one employee about his workspace. Meanwhile, Nixon and Luther pressed Jones about their need to obtain the drawings and review them in advance of negotiations, and about the Agencys failure to respond to the Unions proposed ground rules. Concepts we will address include: 39. Those it cannot help to protect include public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and, in some cases, supervisors. The Federal Labor Relations Authority ( FLRA) is an independent agency of the United States government that governs labor relations between the federal government and its employees . 16. Declaring an impasse is significant, because it communicates to the opposing side that the time for invoking impasse procedures has arrived. Union Counterproposal 1, pertaining to an office for the Washington Local. Durkin and Nixon asked more questions, most of them directed at Graham, regarding changes that could be made to the drawings. . Dec. 4, 1987), NLRB Union v. Federal Labor Relations Authority, 834 F.2d 191, 1987 U.S. App. In Weingarten, we upheld the National Labor Relations Board's conclusion that an employer's denial of an employee's request to have a union representative present at an investigatory interview, . It could be by teleconference or videoconference. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Chicago Region, Federal Labor Relations Authority, whose address is: 224 S. Michigan Ave., Suite 445, Chicago, IL 60604, and whose telephone number is: (312) 886-3465. GC Ex. 42 at 1. In that event, the Agency will pay lodging, travel, and per diem expenses for the Union negotiators for the agreed-upon dates for face-to-face bargaining and for the travel dates immediately preceding and following the bargaining dates. The NLRB Process The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. some of the areas [of] discussions that we had with the Union, such as the Unions suggestion to have a second nursing room. The FLRA claimed that judicial review was barred by the sixty day statute of limitations. But I find the determination of the Authority in the, situation strikingly similar to ours, to be instructive and persuasive. . Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. As the judge noted in, There are a number of signs indicating that the parties were still in the early stages of bargaining when the Agency walked away from the table. The NLRA, otherwise known as the Wagner Act, is one of the most groundbreaking labor laws ever enacted in the United States. Asked to describe this portion of bargaining, Luther testified that there were a number of proposals during the course of the day where the Agencys response was, well, we dont know; we dont know about the furniture [Proposal 36]; we dont know about film on the glass [Proposal 14]; we dont know about coat hooks [Proposal 28]; we dont know about these things yet, which would indicate at some point, there would need to be further discussion about them . Finally, it should be emphasized, as the Authority did in. 33, 35. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one . 129. The April 23 session ended at that point; the parties left it that we disagree[] as to whether bargaining would continue beyond the next day. One example of such a proposal was Union Proposal 36, requiring bargaining over furniture at a later time. These laws include federal and state wage and hour laws, discrimination laws, and leave laws. Tr. About two hours later, the Union team submitted five of its own counterproposals, which the Agency rejected. 409; On April 7, an architect from WDG emailed Crayton and Graham the latest drawings, for their review and comment. One member is appointed by the President to serve as chairman, chief executive officer, and chief administrative officer of the FLRA. Ithink the idea was we would exchange . Tr. Discussion. 472. Between April 29 and May 12, Union officials attempted to initiate mediation of the dispute with the FMCS. When the National Labor Relations Board announced that it would be moving its headquarters to a new building in a different part of the District of Columbia, the National Labor Relations Board Union asked to bargain over the relocation, and the parties ultimately signed a ground rules agreement providing for two days of bargaining. It just wouldnt work. Tr. 237-38. Jones offered the Union a chance to bargain over furniture by telephone, adding, As you may recall, we had some discussions about furniture during the negotiations that took place in April, and you may want to review the Agencys counterproposal of April 24 . Introduction to the FLRA.. SUBMITTED BY:Denise Duncan, RN, President and Delegate Elizabeth Hawkins, RN, Secretary and Delegate UNAC/UHCP California. . 12; Tr. 47 at 1. at 12. Br, (2) the Unions proposals were focused almost entirely on the maintenance of the size of current office space and configuration[,] the Agency rejected the Unions space proposals, the Union did not retreat from its position on maintaining current size and configuration of office space in its partial counter, and the Agency rejected the Unions counterproposals (. On May 19, 2014, the National Labor Relations Board Union (the Union or NLRBU) filed a ULP charge against the National Labor Relations Board (the Agency, NLRB or Respondent). FEDERAL LABOR RELATIONS AUTHORITY OALJ 16-16 Office of Administrative Law Judges WASHINGTON, D.C. 20424. . That AFSCME will publicize how the current NLRB and FLRA are enforcing our federal labor laws to hinder, rather than promote, collective bargaining. The next day, Woodcock informed Jones that the Union would be willing to meet with him to discuss furniture, but that the meeting would not constitute bargaining or a satisfaction of the Agencys bargaining obligation, in light of ongoing efforts to settle the underlying ULP charge previously filed by the Union. Durkin added, Weve used email exchanges, teleconference exchanges, and videoconference exchanges with the Agency numerous times, at the drop of a hat, including over this relocation process and over the ground rules. 25. I conclude that the November bargaining offer was not sufficient, for two reasons. What is the difference between NLRB and FLRA? On April 30, Larry Sutton informed Jones and others at the Agency advising that the GSA needed to receive any Management and Union changes to the space plan/layout . Other labor laws of note are the Railway Labor Act (RLA), the Federal Labor Relations Act (FLRA), as well as state labor laws that govern bargaining rights of state employees. The Union team also asked about furniture. These factors establish that there was a strong potential for further and productive bargaining, if only the Agency had the patience to persist beyond its arbitrary deadline. . In determining whether the Respondent violated 7116(a)(1) and (5), the first inquiry is whether it had an obligation to bargain at all in these circumstances. However, the Unions action was precipitated by the Agencys rejection of those counterproposals, even though they reflected nearly full agreement on those five issues, and by the Agencys declaration that bargaining was over. 1935 Passage of the Wagner Act., National Labor Relations Board. The Agency negotiators explained that the size of restroom facilities was based on a formula in an international code, while the Unions math is not based on anything; youre just coming up with numbers. Tr. 116. This is just one of a series of examples of the kind of power that the NLRB possesses. Tr. Later that morning, Jones and Graham escorted the Union team through Franklin Court. Tr. 72-73; GC Ex. The judge and the Authority rejected this theory and held that while it might be desirable from the Unions viewpoint to be a participant in the, decision-making process at an earlier stage, it is difficult to envision an obligation on SSAs part . The primary way in which the Respondent violated its duty to bargain in good faith was (as already discussed) its premature termination of negotiations on April 25. Also on April 14, an architect at WDG provided Jones with updated drawings for Half Street. By the time the Agency made its limited offer in November to bargain, it had already implemented many aspects of the relocation plans, by making commitments with GSA and the architects. Sotomayors Baseball Ruling Lingers, 14 Years Later., The Washington Post. Employees can file a charge against and employer and labor union at one of its 26 regional offices and the NLRB will investigate. In the afternoon, our team worked as quickly as possible to prepare a good-faith counterproposal in which we tried to address the Unions concerns. to negotiate before a firm decision had been made to relocate.. 428. 4 at 9. As for who should sign the notice, the Authority typically directs the posting of a notice to be signed by the highest official of the activity responsible for the violation. Similarly, when Jones was asked whether the Union gave any oral supplementation to its counterproposals, he stated: I dont really recall. Published on May 23, 2006 in Law ( Labor ) , Business ( General ) Tweet. 109-10, 256-57. D.C. 165, 126 L.R.R.M. . 30. It's a tool that's. 5. Based on the above precedent, I find that the planned relocation to a new building involved a change in conditions of employment. adopts similar guidelines in concluding that no impasse had been reached: among the factors cited were that neither party had actually declared an impasse; the parties had modified their proposals and demonstrated a responsiveness to the bargaining process; and the parties had not yet had a reasonable opportunity to invoke the processes of FSIP. 42FLRA at 1279-80. About 450 people work at its headquarters office in Washington, D.C. Tr. Brief Fact Summary. On May 19, the Union filed the ULP charge. The Respondent contends that if a violation is found, retroactive relief, including a retroactive bargaining order, would be inappropriate. Graham, who attended the meeting and who worked closely with the GSA contract officer, testified that once the comments on the preliminary drawings were submitted, it would have been difficult, if not impossible, for architects to change certain aspects of the design, such as the location of walls or the number or size of workspaces. 451. GC Ex. Larry Sutton, the GSA representative on the project, spoke next. AFSCME will also encourage elected officials at all levels to commit to allowing workers to freely choose unions by using voluntary recognition, expedited elections and neutrality agreements; and. . The issue before me is whether, by participating in the two days of negotiations called for in the ground rules agreement, the Agency fulfilled its statutory duty to bargain concerning the relocation. When an agency has an obligation to bargain, it must continue bargaining until (1)the parties have reached agreement on all negotiable proposals; (2) an impasse has been reached following good faith bargaining, with no timely invocation of the statutory impasse procedures; or (3) the union has waived its bargaining rights. . With regard to the dates for bargaining, Durkin testified that the ground rules agreement went into detail concerning face-to-face bargaining, but not concerning other types of bargaining such as by email or teleconference. 148-49, 168. 43 at 9, 23, 29, 36, 49), and others dated April 2 (. Gwynne A. Wilcox. Jt. Tr. 106-07. Event Location: This training will be conducted virtually using WebEx during CST. Tr. In the proposed ground rules, the Union called for an initial bargaining session. At the same time, negotiations were also underway with the Union, Agency and FLRA to settle the Unions ULP charge. When workers are stripped of union protections, wages stagnate or decline, and inequities grow. 30 at 3) were highlighted by the Union team in the late afternoon of April 24, because these were issues where there was common ground . In sum, the parties could have engaged in productive discussions over the Unions proposals after April 24. Jones replied that the design plans were the Agencys proposals. The architects finalized design intent drawings in August. 403-04. 115. The General Counsel claims that the Agency was required to bargain until either an agreement or impasse was reached, citing. Immediately upon returning from lunch at 1:10 p.m., the Agency team requested a caucus, so that it could prepare counterproposals. A hearing was held in this matter on March 25-27, 2015, in Washington, D.C. All parties were represented and afforded an opportunity to be heard, to introduce evidence, and to examine witnesses. Based on feedback from committee members at the October 15 meeting, the Agency successfully appealed to GSA officials for expanded furniture options; the Agency needed to solicit and obtain employee preferences regarding types of furniture by December 3. Upon receipt of such forms, they shall be signed by the General Counsel and the Chairman of the National Labor Relations Board, and shall be posted and maintained for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, nationwide. Tr. GSA signed a lease on behalf of the Agency, on January 29, 2014. for the Agencys new headquarters space, located in a newly constructed building at 1015 Half Street, S.E., Washington, D.C. (Half Street). According to Durkin, Abruzzo stated that the project was up to $20 million over budget and that the more delay there is, the more this will cost. Tr. . In determining whether a party has fulfilled its bargaining responsibilities, the Authority considers the totality of the circumstances of the case. Finally, the GC requests a nationwide posting. So what we decided to do . , retain . The Union team consisted of Julia Durkin, an attorney at the Agencys Denver Regional Office, who served as a local president and had bargained over an office move in Denver (Tr. . . The Agency cut bargaining off before this could happen. Tr. The Agencys proposed interpretation of the ground rules also ignores paragraph 13, which states that either party may request mediation from the Federal Mediation and Conciliation Service (FMCS). Mutual consent is not required for mediation. As already noted, the Respondent terminated negotiations on April 25. "University of Southern California. been deprived of monetary benefits as a result of an agencys unilateral action, In other cases, however, the Authority has found that a prospective bargaining order is better suited to the facts of the case. In order to evaluate this defense, I consider the meaning of the ground rules agreement, using the standards and principles of interpreting agreements applied by arbitrators and the federal courts. (b) Unilaterally changing working conditions of bargaining unit employees represented by the Union concerning the relocation of Agency headquarters without notifying the Union and affording it the opportunity to negotiate to the extent required by the Statute. . 274-75. On March 14, Durkin proposed two consecutive days of face-to-face bargaining, to occur on April 16 and 17. Jones replied that same day, conceding that the process has fallen slightly behind schedule.. On Monday, April 21, the Union submitted forty-one bargaining proposals. Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute. the background and history of the move, and talked about it being a very tight timeline, tight monetary restrictions. Tr. GC Exs. . Tr. The NLRBs objective is to safeguard most private-sector employees rights to bargain for better wages and working conditions, either with or without a union. The Agency would have offices on the third through sixth floors. The Respondent is an agency within the meaning of 7103(a)(3) of the Statute. Other labor laws of note are the Railway Labor Act (RLA), the Federal Labor Relations Act (FLRA), as well as state labor laws that govern bargaining rights of state employees. the advantage conferred by the privilege to retain or waive its right to retroactive application of bargaining terms. 856 F.2d at 299. 288), and Graham and Jones both acknowledged that no agreement was reached. According to its website, the NLRBs core duties are: The NLRB is a fairly small agency, with 26 regional offices dotted across the United States. Thus the November teleconference cannot truly be considered pre-implementation. As with many of the decisions made between the Respondent and the architects in February and March, the Respondent had already narrowed the Unions ability to negotiate to a significant extent. Featherbedding describes an unlawful practice of forcing employers to increase labor costs, such as hiring unnecessary workers. . When they have agreed on an issue, the presumption should be to implement it retroactively, although the Union will have to weigh the feasibility and the cost of retroactivity, insofar as it affects what the Agency may otherwise be able to agree to, in the overall agreement. The relocation process involved a series of drawings that would increase in complexity as the project progressed. and it didnt fit. Tr. GC Ex. At the Agencys headquarters, the Union represents about sixty-two employees. This Notice must remain posted for sixty (60) consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. When parties agree to language that expressly waives the statutory right to bargain, the Authority will find that such language constitutes a waiver.. , 25 FLRA 787, 789-90 (1987). WHEREAS: at 1, 5; The Respondent contends that it fulfilled its bargaining obligation under the Statute. GC Ex. Tr. P. Br. 25 at 5, 7. . 37 at 2. We didnt get them I didnt get them till April 14th, when Troy Crayton passed them out to everyone. Tr. . The General Counsel argues that the Respondent violated 7116(a)(1) and (5) of the Statute when, on and after April 25, it unilaterally terminated bargaining with the Union regarding its relocation of its headquarters. GC Br. But I, again, reiterated to them that we were willing to stay late to try to hammer out an agreement. 202. Each has its own procedures and rules that if an attorney does not know could result catastrophic error. As Luther described in her testimony, the five issues addressed in the Unions Initial response to Agencys counterproposal of 4/24/14 (GC Ex. 6. The Federal Labor Relations Authority (FLRA) has a similar mandate to the NLRB. Notwithstanding the lack of drawings, Jones and Durkin began on March 12 to discuss ground rules and potential dates for negotiations. (As it turned out, the Agency would end up staying past its lease, becoming a holdover tenant. 33, 42-43, 403; GC Ex. At the FLRA, decisions have been made on representation cases despite the union-petitioner withdrawing and mooting the cases; and, Employers in the private sector routinely hire union busters and use legal strategies to stall representation elections, and even after unions win an election, employers delay the bargaining process to frustrate workers efforts to secure a first contract; and. 41, 217-18); Donna Nixon, an attorney in the Detroit Region and a district vice president of the Union (Tr. Graham testified that the Agencys comments to GSA incorporated . 274. Meanwhile, it withheld from the Union the ongoing dialogue between Agency officials and the new buildings architects about the proposed plans for the new headquarters. . These activities are governed by a handful of federal and state laws, the most prominent being the National Labor Relations Act (NLRA). The Union asserted that its tentative agreement to the counterproposals does not limit or waive the Unions right to submit proposals and/or counterproposals, and to engage in bargaining regarding headquarters relocation. It is their duty, when called upon, to hear labor disputes and resolve them through quasi-judicial proceedings. that these are the bargaining sessions and that if we need more, we can agree mutually to have more; but I didnt want anybody to think that we were agreeing to just have two opening sessions . Many of these proposals were not related to the size of individual offices or cubicles, and indeed the Agency itself had no way of properly or knowledgeably negotiating many of these subjects (such as the height of cubicle walls, frosting on glass, and options for furniture, flooring, and walls) in April or May. 13 at 1. 431. . The Union team had not seen the entire Franklin Court facility the previous day, so the parties agreed to spend the morning continuing Tuesdays walk-through. .. Without strong labor unions, there can be no equity for working people. At least in some respects, the November 24 teleconference offered the Union a hope of shaping the Agencys furniture choices before those choices were finalized in December. Finally, the GC submits that the Respondents [h]alf-hearted, delayed (by months) and qualified bargaining offers in November 2014 and January 2015 did not cure its previous refusals to bargain. On the morning of Tuesday, April 22, the Union bargaining team, and Jones, Graham, and Lennie, toured Half Street, whose interiors were still mostly empty. (c) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of the rights assured them by the Statute. 9; Resp. 34. NLRB Deputy General Counsel Jennifer Abruzzo and Chief Financial Officer Ron Crupi then informed the union officials about financial aspects of the move. Conduct Elections GC Br. Meanwhile, the Agency continued to make decisions with the architects concerning design aspects of the new offices, and while the Union participated in some discussions about these issues as members of the Agencys Space Advisory Committee, those discussions did not constitute bargaining within the meaning of the Statute. By specifying the dates on which negotiations would occur, and by eliminating language proposed by the Union that referred to the sessions as initial bargaining, this language suggests that these were the only two days on which bargaining was required, and that further bargaining would be scheduled only by mutual consent. Based on the foregoing, I conclude that the ground rules agreement did not justify the Respondents decision to end bargaining prior to reaching agreement or impasse. However, other actions by the Agency on and before April 25 contributed to the failure and ultimate breakdown of negotiations. 24. measurements of those offices. Tr. According to Durkin, Jones said no, were not going to continue bargaining. GC Ex. Durkin testified that around this time, the Union team told the Agency team that they were willing to continue bargaining, but we cant continue and expect to wrap up bargaining that night. Tr. Prior to this swing move occurring, the Agency and the Union engaged in formal negotiations and executed a Memorandum of Agreement on the subject on December11. . Thats a change in conditions. Durkin testified about several of the proposals discussed that day. The most important decisions allocating space to each of the Agencys various departments, determining the size and number of offices, cubicles, and break rooms had already been made by the time the Union first saw the floor plans on April14. The Authority has held on a number of occasions that after an agency has unilaterally implemented changes in conditions of employment, subsequent offers to bargain over the changes do not cure the statutory violation, and post-implementation actions are irrelevant. The Union team then met up with the remainder of the Agencys bargaining team. Labor Board Calls for Revote at Amazon Warehouse in Alabama in Major Victory for Union., National Labor Relations Board. GC Exs. . On May 16, Jones provided an additional response to the May 6 information request, forwarding to the Union a variety of drawings for Half Street, including some dated March 26 (GC Ex. GSA approved the increase, and the architects revised their drawings accordingly. If there came a point where we could starting initialing off on things, then we would have done that, but we were too early on. President John F. Kennedy (Memorandum to the Heads of Agencies on Employee-Management Relations in the Federal Service, June 22, 1961). Therefore, the Agency violated its duty to bargain and deprived the Union of a proper opportunity to negotiate the impact and implementation of the move to a new headquarters. 326-27. 162.) Ex. 14 at 3. By terminating negotiations before the Union had a chance to submit a full set of counterproposals, the Agency undercut its claim that negotiations were at an impasse. 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