The Union asked to submit its remaining counterproposals the following week, and to resume bargaining thereafter, since it had not had time to prepare a response on all issues. 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. Tr. The FLRAs one-stop shop for all things training with upcoming in-person events near you, YouTube videos, agency training contacts and more. During these negotiations, the Agency spokesman stated that the Agency did not have information on, and had not made decisions about, several issues raised in the Unions proposals, including matters relating to the office furniture to be used at the new headquarters. With regard to whether the ground rules agreement limited bargaining to April 23-24, Jones testified that he removed the word initial from the Unions proposed ground rules, stating, I wanted people to understand . However, in an attempt to reach an agreement or at least narrow the issues, the Agency offered to continue bargaining into the night. Nonetheless, when the Union requested mediation, the Agency refused to participate. You can find all of ourresources in one convenient spot, including guides, FAQs, forms, and more. When asked at the hearing whether the Agency had made decisions with regard to furniture at the time of the April negotiations, Jones said, No. Tr. 12. Later in the conversation, Luther testified, Jones said the Agency wanted to share the drawings with all of the parties at the same time, but they didnt have a sufficient number of the drawings at that point. 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. these things. 14 at 3. Tr. Tr. GC Ex. (All communication between the parties was by email, unless otherwise noted.) But I find the determination of the Authority in the, situation strikingly similar to ours, to be instructive and persuasive. And we expressed those things in our response back to him as to why we werent going to stay longer that night with [no] reasonable expectation of concluding all bargaining. 367, 465. Jones testified that his team tried to find areas where we could compromise[,] but he acknowledged that they did not provide specific counterproposals for each Union proposal. 52. National Labor Relations Board. (As it turned out, the Agency would end up staying past its lease, becoming a holdover tenant. and . to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment . The next day, Luther informed Jones, In light of your rejection of our . The relocation process involved a series of drawings that would increase in complexity as the project progressed. The FLRA, in its decision says that: Our Statute requires that an agency must provide notice, and an opportunity to bargain, before it may change "conditions of employment." "Conditions of employment" are defined, in 7103 (a) (14), as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise . Ex. there has to be an end point. But this interpretation requires an emphasis on selective phrases in the agreement, at the expense of its context. On Monday, April 21, the Union submitted forty-one bargaining proposals. at 7. 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. An overview of the similarities and the differences of the Federal Labor Relations Authority and the National Labor Relations Board. FLRA, 39 F.3d 361 (CADC 1994); Defense . (Despite receiving the floor plans on February 10, the Union would not receive information listing the size and type of each bargaining unit employees workspace at Franklin Court until May 9. 37 at 2. to be incorporated into the final Design Intent Drawings by May 9. Tr. 90-91. ssues. After investigating the charge, the Regional Director of the FLRAs Chicago Region issued a Complaint and Notice of Hearing on January 12, 2015, on behalf of the FLRAs General Counsel (GC), alleging that, On May 15, 2014, the R. espondent . Jones added that the DID process should have started approximately three weeks ago. GC Ex. GC Ex. The FLRA is the federal public sector counterpart to the National Labor Relations Board (NLRB), which governs labor relations between private sector employees and employers. Tr. Durkin also asked if the Agency could put offices or workstations in space slated for socializing; the Agency did not have a response to that request. 431. 409; On April 7, an architect from WDG emailed Crayton and Graham the latest drawings, for their review and comment. Durkin continued: As weve stated over the past two days, we do not agree that negotiations have concluded entirely merely because our two face-to-face bargaining, Agencys counter-proposals and reach an agreement on all of the subjects. 29 at 3-4. Tr. "The FLRA's decision to adopt the NLRB's substantial-impact test also fails to account for the agency's own past assessments of how the differences between the public-sector and. Starting in January and continuing through (and beyond) April, Agency officials engaged in extensive discussions with GSA, the new landlord, and the architects regarding the amount of space it would occupy in the new building, and the configuration of that space, and the Agency consciously froze the Union out of this process entirely. Union Counterproposal 1, pertaining to an office for the Washington Local. Find historical decisions ofthe Assistant Secretary of Labor for Labor-Management Relations and the Federal Labor Relations Council, as well as Foreign Service Labor Relations Board decisions. 137; GC Ex. And on Dec. 14, 2022, the Los Angeles office of the NLRB agreed to look into a case filed by the National College Players Association (NCPA) alleging unfair labor practices on behalf of University of Southern California football and basketball teams. 382-83. The Union declined to stay beyond 6:30 p.m., and the Agency declared that negotiations were terminated. . 58 at 2. Tr. 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. 17 at 1. Tr. 275; On April 28, Lennie offered further discussions about the BUs concerns that week, and the Union accepted. Tr. (b) Post at all offices of the Agency where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. The Railway Labor Act (RLA) was passed by Congress 9 years before the National Labor Relations Act (NLRA): 1926 and 1935 respectively. Around this time, an architecture firm, WDG, was selected to design the interior space at Half Street. . . The NLRB has no independent statutory power to enforce its decisions and orders, but it may seek enforcement through a U.S. court of appeals. Thus, when the Union asked to bargain on February 5, the Agency was required to do so. Ex. means. Then the Agency advised the Union that GSA was forcing them to finalize all prospective changes to the floor plans within a matter of days. By the time negotiations began with the Union on April 23, it was apparently too late for such changes: the Union was told it could only tweak the floor plans. The reason that knowing the distinction between employment laws and labor laws is important, especially when hiring an attorney, is because lawyers who claim to be both labor and employment lawyers have a tendency to specialize in one and dabble in the other. For example, where attorneys that practice mainly employment law can spend a significant portion of their time dealing with the court system, labor law attorneys may only sparingly deal with the court system because most of their time is spent with government agencies. Larry Sutton, the GSA representative on the project, spoke next. 14 at 3. On May 16, Jones advised the Union that mediation would be pointless[,] since we have moved forward in accordance with the GSAdirective. GC Ex. So what we decided to do . GC Ex. Although both laws cover labor relations and rights, they . What Is a Right-to-Work Law, and How Does It Work? One member is appointed by the President to serve as chairman, chief executive officer, and chief administrative officer of the FLRA. 3; Tr. The ground rules agreement also provided, among other things, that on April 22 there would be a tour of Half Street, a full visual inspection of employee work areas at Franklin Court, and then a briefing from GSA and the architects; the Union would submit its bargaining proposals by noon on April 21, and the Agency would submit counterproposals within three days thereafter; and caucus time could be taken, but no party would caucus for more than one hour, absent mutual agreement. 41, 194); and Katrina Woodcock, a senior field attorney in the Washington Resident Office (Tr. 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. These activities are governed by a handful of federal and state laws, the most prominent being the National Labor Relations Act (NLRA). That AFSCME will publicize how the current NLRB and FLRA are enforcing our federal labor laws to hinder, rather than promote, collective bargaining. The 60 day period for seeking judicial review set forth in the Hobbs Act is jurisdictional in nature, and may not be enlarged or altered by the courts. Without strong labor unions, there can be no equity for working people. 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, . On the other hand, if the Agency had not yet implemented its plans concerning furniture for the new headquarters in late November, the question arises whether its offer to bargain on this issue on November 24 satisfied its duty to bargain. The two had similar exchanges on March 10 and 24. . Isogai indicated that there had been a number of iterations of the drawings (Tr. 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. 401. Luther also stated that the Union would be contacting the FMCS for assistance. Resp. Event Location: This training will be conducted virtually using WebEx during CST. . . Ex. 2023 American Federation of State, County and Municipal Employees, AFLCIO, 43rd International Convention - Boston, MA (2018). The Agency refused to continue bargaining not because the parties had reached impasse, but because the agency believed it had satisfied its duty to bargain, a position I have already rejected. 6. They requested bargaining. 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. 22 at 3-5. My reaction to this was that we rejected this because it wasnt a comprehensive proposal. The next day, May 7, most of the Union team participated in a videoconference with NLRB General Counsel Griffin and Rachel Lennie, which focused primarily on the Unions pending information requests and its need to have this information in order to bargain properly. The Authority has defined impasse as that point in negotiations at which the parties are unable to reach agreement.. 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. . Since the Respondents ULP in this case was its improper termination of bargaining over the impact and implementation of the proposed relocation, it is clear that an appropriate remedy must (among other things) order the Agency to return to the bargaining table and resume negotiations from the point at which they ended on April 24. Over the weekend of December 13 and 14, the Agency needed to vacate a portion of its office space at Franklin Court to enable the new tenants to move in; this required employees in the vacated space to move into the remaining Agency space at Franklin Court. 34. And, without strong enforcement of labor laws, unions cannot effectively function. 36 at 1; On May 6, the Union submitted an information request asking for information about the size and type of workspace each employee had at Franklin Court, and the size of building space at Franklin Court not specifically assigned as personal workspace, among other things. 23. The primary responsibilities of the FLRA are to: Resolve complaints of unfair labor practices (ULPs). . 39. 278-79; GCEx. 322.) By walking away from the table before there was a deadlock, and by then implementing unilateral decisions concerning conditions of employment at the new building, the Agency violated its duty to bargain in good faith and thus violated 7116(a)(1) and (5) of the Statute. . Tr. 469. Jt. These include white papers, government data, original reporting, and interviews with industry experts. Each year, a new board member is appointed by the president, with the blessing of the Senate, for a five-year term. The NLRB administers and enforces the National Labor Relations Act, conducting secret ballot elections to determine whether employees wish to be represented by a union, and resolving alleged ULPs committed by employers and unions in the private sector. 40. Describing this part of the bargaining session, Durkin testified that it appeared that the design was fluid, and that changes were still being contemplated . Nonetheless, their disagreement about the meaning of paragraph 2 of the ground rules agreement became evident almost immediately. Now that the relocation has been completed, and all employees are working at the Half Street building, it is not at all clear how many of the decisions unilaterally imposed by the Agency can be undone through retroactivity. Marvin E. Kaplan. 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 . The Agency insists that a fixed date for concluding negotiations is implied in the ground rules, but the law requires such a waiver of the Unions statutory rights to be explicit. At this time FLRA remains fully operational. 13 at 1. , the agency must allow a reasonable time for the bargaining process to occur. I conclude that the November bargaining offer was not sufficient, for two reasons. . Ex. 30 at 3. Yet on May 10, Agency officials submitted final comments on the floor plans to GSA and the architects, which paved the way for construction of the new offices to begin; and in subsequent months the Agency made other decisions on structural and design aspects of Half Street without negotiating with the Union. Notwithstanding the lack of an agreement with the Union on the impact and implementation of the relocation, the Agency asserts that it fulfilled its bargaining obligation because (1) the Union had waived its right to bargain beyond April 24 by signing the ground rules agreement, and (2) the negotiations reached impasse on April 24. 367; On May 13, FMCS Mediator Saunders emailed the Union, saying that he had discussed the Unions mediation request with the Agency, but that there was no mutual agreement to mediate. GC Ex. Find a listing of FLRA contacts that you can call for more information. But, he continued, there is not going to be ongoing bargaining. 29. The parties will conduct two bargaining sessions at the Agencys current headquarters on the following dates: April 23, 2014 from 9:00 a.m. to 5:00 p.m. April 24, 2014 from 9:00 a.m. to 5:00 p.m. 7. GC Ex. . But I, again, reiterated to them that we were willing to stay late to try to hammer out an agreement. A conference call discussing furniture issues was conducted on that date, although the Union told Jones it did not consider the discussion to satisfy the Agencys statutory duty to bargain. National Labor Relations Board: 80 Years, Page 11. Ithink the idea was we would exchange . The Board is supported by a General Counsel, who is also nominated by the President of the United States, with the advice and consent of the Senate, for a term of five years. (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. GC Ex. With regard to the drawings, Jones stated, We have not yet received the final drawings from the architect.. Impact of the NLRB on Professional Sports., The New York Times. Nor should it be construed . Tr. What is the difference between NLRB and FLRA? About 450 people work at its headquarters office in Washington, D.C. Tr. Watch free online FLRA trainings on our Youtube channel and dont forget to subscribe to receive updates on new videos. as a full agreement. GC Ex. 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. In, Once the Agency stopped bargaining on April 25, it began to unilaterally implement all manner of decisions related to the relocation. However, on November 21, Jones advised the Union negotiating team that the Agency was in the process of finalizing its furniture order for the new building, and he invited the Union to participate in bargaining by telephone over any Union proposals concerning furniture on November 24. President John F. Kennedy (Memorandum to the Heads of Agencies on Employee-Management Relations in the Federal Service, June 22, 1961). Find historical decisions ofthe Assistant Secretary of Labor for Labor-Management Relations and the Federal Labor Relations Council, as well as Foreign Service Labor Relations Board decisions. . [T]here were some [Union] proposals that were left out of our counter that we werent able to agree to. Tr. 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. As we said several times throughout the course of the day, we were willing to work late last evening in an attempt to reach an agreement, or narrow the issues, but the Union team was unwilling to continue beyond 6:30. 11 at 1. . Synopsis of Rule of Law. Tr. . They were joined by Lennie, Abruzzo, and Robert Schiff, the Chairmans Chief of Staff. and we explicitly request continued bargaining. In an exchange of emails between the Union and Saunders on May5, Luther reiterated the Unions interest in mediation to assist us in resolving the issues with the Agency, and she suggested the week of May 13th for that purpose. at 1, 5; The Respondent contends that it fulfilled its bargaining obligation under the Statute. 25. In this regard, the GC asserts that there was no clear and unmistakable waiver of the Unions right to bargain to agreement or impasse. Jones and Graham advised the Union team that they could only make minor changes or tweaks to the floor plans, which had first been shown to the Union only nine days earlier. Ex. Thus the April 23 and 24 bargaining sessions scheduled in paragraph 2 were clearly not the only negotiations that the parties anticipated. 431. . "University of Southern California. 45. at 327. . The FLRA is an independent administrative federal agency that administers the labor-management relations program for 2.1 million non-postal federal employees worldwide. Fourth, the parties were close to agreement on a number of issues. , 50 FLRA 701, 704 (1995), it is clear that the relocation of NLRB headquarters from Franklin Court to Half Street would significantly change the conditions of employment for all employees. According to Durkin, Jones said no, were not going to continue bargaining. 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. . At the Agencys headquarters, the Union represents about sixty-two employees. The premise of this argument is false: many of the Unions original proposals including Proposals 14 (frosted windows), 15 (locks on office doors), 20 (height of cubicles), 24 (task lighting) 25 (ergonomic task chairs), 26 (desks), 27(storage), 28 (coat hooks), 29 (phones), 30 (printers), 31 (restrooms), 32 (lactation rooms), 33 (storage for printers), 35 (color and style of flooring, carpeting, and walls), 36 (furniture), and 37 (moving arrangements) had little or nothing to do with the size or configuration of offices. Harry Jones, Assistant General Counsel for Labor and Employee Relations, represented management during the move. My Account Portal About Us National Labor Relations Act NLRB Process Board Rules & Regulations Board Rulemaking Careers It also provides that there may be additional dates for face-to-face bargaining, but this requires the mutual agreement of the parties. Later that day, Sloper reminded Jones of the provision in the ground rules agreement for mediation and asked whether the Agency believed that mediation has been completed according to the terms of the ground rules agreement., morning: Bargaining has concluded, and there has been no mediation. immediately as to whether there was a fixed deadline for the end of bargaining suggests strongly to me that there was never a meeting of the minds on that provision. Each has its own procedures and rules that if an attorney does not know could result catastrophic error. If the Agency had not cut off bargaining, the parties could easily have reached agreement on these points. Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 117. We had only exchanged two proposals. Tr. 237-38. Its your bargaining obligation to continue bargaining over these aspects. Tr. Donna Nixon was scheduled to be on a flight that night. 10. Finally, a nationwide posting will emphasize to employees that the agency that enforces labor laws in the private sector must itself comply with labor laws in the public sector. FEDERAL LABOR RELATIONS AUTHORITY OALJ 16-16 Office of Administrative Law Judges WASHINGTON, D.C. 20424. 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. 425. Tr. 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. . Jones replied, Not on April 10th. Ch. Durkin testified at the hearing that she had already requested much of this information, but had not received it, in earlier requests. After the Union team spent most of April 23 touring the Franklin Court building, Jones expressed his impatience with the lack of actual bargaining and emphasized that negotiations would conclude at the end of the day on April 24. 1947 Taft-Hartley Substantive Provisions., National Labor Relations Board. Also, according to Durkin, Lennie told attendees that they had been working with the architects for months to try to fit everything in, and that they had received design drawings a month prior and . 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. at 12. View the legislative history of the Federal Service Labor-ManagementRelations Statute, the Civil Service Reform Act, andthe Foreign Service Act. Tr. 5. 233), and officials of both unions asked that they be given copies of the exercises that had been done, so that the unions could evaluate the feasibility of different alternatives. The FLRA initially decided that disclosure was "prohibited by law" under 7114 (b) (4). 409; This evidence shows that there was a significant period of time prior to April 14 in which the Agency was able to make meaningful changes in the size and configuration of the office space at Half Street. The Authority has held that a retroactive bargaining order is appropriate where a respondents unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. The Respondent argues that its actions were justified, given the fact that it was under pressure to give the architects comments on the preliminary drawings by May 9. It did so by negotiating ground rules for bargaining over the relocation, and then by negotiating with the Union for the time allotted to negotiations in those ground rules. The chairman is also ex officio chairman of the Foreign Service Labor Relations Board. . 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. Tr. It then listed five Union counterproposals (which are set forth in the appendix). 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. Because the ground rules agreement cannot reasonably be interpreted as limiting the parties bargaining period to two days, I conclude that the Union did not waive its right to bargain until either an agreement was reached or the parties had come to an impasse. A few days later, the Union tried to initiate mediation of the dispute, but the Agency refused to participate. Monday, January 13, 2020. The FLRA is the federal public sector counterpart to the National Labor Relations Board (NLRB), which governs labor relations between private sector employees and employers. Dec. 4, 1987), NLRB Union v. Federal Labor Relations Authority, 834 F.2d 191, 1987 U.S. App. 236. . cubicles. Jones also acknowledged on the morning of April 25 that there was more bargaining for the parties to do, when he faulted the Union for ending talks at 6:30 p.m. Well meet today and tomorrow [April 23-24], and thats it. Tr. . . On April 10, the three of them discussed these issues over the phone. Labor Board Calls for Revote at Amazon Warehouse in Alabama in Major Victory for Union., National Labor Relations Board. On December 23, Jones sent Woodcock an email, offering one additional bargaining session in January in an attempt to resolve all outstanding issues related to the headquarters relocation. GC Ex. In response to the unions argument that excluding it from negotiations with the prospective landlord would prevent it from contributing to the important decisions affecting the relocation, the judge said: Since it is the responsibility of an agency seeking to make the change to insure that it has fulfilled its bargaining obligation before implementation . An agencys regulations may be attacked in two ways after the statute of limitations has expired. . 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. 32, 264. Gwynne A. Wilcox. 115-16. . 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. About two hours later, the Union team submitted five of its own counterproposals, which the Agency rejected. The fact that the parties disagreed. . willing to continue bargaining regarding the headquarters relocation by various means, including but not limited to face-to-face bargaining, telephonic bargaining, email and video conferencing. 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