The Agency denied the request, insisting that the ground rules limited bargaining to two days. If complete agreement is not reached after the conclusion of negotiations, either party may request mediation from the Federal Mediation and Conciliation Service (FMCS). Additionally, the evidence conclusively demonstrates that the parties had not reached impasse. These issues could and should have been addressed by the parties through bargaining at subsequent times over the next several months, right up to the date the NLRB finally moved to Half Street. Declaring an impasse is significant, because it communicates to the opposing side that the time for invoking impasse procedures has arrived. Durkin and Nixon asked more questions, most of them directed at Graham, regarding changes that could be made to the drawings. 5. The ground rules agreement states, The parties will conduct two bargaining sessions on April 23-24, from 9:00 a.m. to 5:00 p.m. GC Ex. and agreed to get it to us as soon as he was able to. Tr. to negotiate before a firm decision had been made to relocate.. . Jt. 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. . 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. 115-16. According to Luther, Sutton also said that there had been a great deal of work with [various Agency officials] . The NLRA, otherwise known as the Wagner Act, is one of the most groundbreaking labor laws ever enacted in the United States. GC Ex. Tr. Tr. 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). On May 16, Jones advised the Union that mediation would be pointless[,] since we have moved forward in accordance with the GSAdirective. GC Ex. Concurrence. All events occurring after April 25 are tainted by the Agencys termination of bargaining on that date, and all events after May 16 are similarly tainted by the Agencys refusal to join in mediation. Tr. More importantly, the Union continued to keep its original forty-one proposals on the table. Effective Friday July 31, 2020, the agency now extends the prohibition on in-person filings indefinitely. As for whether the parties had reached impasse by the end of the April 23-24 bargaining session, Durkin stated that they had not, noting that neither party submitted last best offers or asserted they were at impasse. 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. 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. Graham indicated that this decision didnt need to be made until the move-in date, prompting Durkin to argue, this is why we need to continue bargaining after today. Jones responded to Durkins request on February 10, providing a timeline for the move and floor plans of the Franklin Court building. Finally, it should be emphasized, as the Authority did in. at 330. 34. 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. 41, 194); and Katrina Woodcock, a senior field attorney in the Washington Resident Office (Tr. The primary responsibilities of the FLRA are to: Resolve complaints of unfair labor practices (ULPs). . A few days later, the Union tried to initiate mediation of the dispute, but the Agency refused to participate. . Giving employees the freedom to decide whether they want union representation and, if yes, by which union by conducting secret ballot elections. Even after receiving permission to extend their caucus beyond the allotted hour, the Union negotiators realized that we were rushing and we were not going to be able to do a very thorough job of reviewing the proposals and that concerned us. The Board. 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. Tr. Similarly, the Respondent cannot blame GSA for its unlawful bargaining. 7 at 1-3. Accordingly, I recommend that the Authority adopt the following Order: Pursuant to 2423.41(c) of the Rules and Regulations of the Authority and 7118 of the Federal Service Labor-Management Relations Statute (theStatute), the National Labor Relations Board (the Agency) shall: (a) Terminating bargaining over the relocation of its headquarters office prior to reaching an agreement or prior to reaching an impasse with the National Labor Relations Board Union (the Union). GC Ex. 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. Therefore the union can usually rest in at least a legal assurance that, whenever the agency notifies it of a proposed change and gives it the opportunity to bargain, its opportunity will be adequate. The FLRA is an independent administrative federal agency that administers the labor-management relations program for 2.1 million non-postal federal employees worldwide. things that we could agree on. Tr. Thats a change in conditions. We were quite exhausted. The Respondent alleges that after meeting with the Union negotiating team on April22 and then bargaining with them on April 23 and 24, the parties had reached impasse, as neither party had budged an inch on its proposals on the size and configuration of space. Resp. In, Once the Agency stopped bargaining on April 25, it began to unilaterally implement all manner of decisions related to the relocation. WHEREAS: 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. However, it is my experience that this is the exception and not the rule. It also helps employees conduct union elections. 42 at 1. With regard to Proposal 1, which required the Agency to keep the Union informed about the relocation, Jones said it has always been our intention to keep the Union informed. 1(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. Labor law governs union and management relationships and employee collective bargaining rights. 14 at 3. 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. 162, 250, 285-86, 349-52, 474, 477; GC Ex. 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 (. ", National Labor Relations Board. They had just a few of the drawings. Tr. . 220. . GC Ex. 1959 Landrum-Griffin Act., National Labor Relations Board. Jones was asked whether he had any version of the drawings, draft or otherwise, that he was not disclosing. at 327. The Board has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. 274. full proposals. Tr. They were joined by Lennie, Abruzzo, and Robert Schiff, the Chairmans Chief of Staff. And even if the Union had been able to write up a full set of responses that evening, the parties would have needed much more than that day to properly address them and try to reach compromises. . . 8 at 2. Brief Fact Summary. GC Ex. Ex. 237-38. On its 80th anniversary, celebrated in 2015, the NLRB reported that more than 90% of the cases it receives are dealt with by its regional offices without requiring the board to intervene with formal litigation. In accordance with directives from the General Services Administration (GSA), the Agency was authorized to lease no more than 155,000 rentable square feet of office space, nearly a 40% reduction from the 247,219 square feet it leased at Franklin Court. Case digests provide a brief synopsis of the most pertinent principles in merits decisions issued by the Authority. Similarly, when Jones was asked whether the Union gave any oral supplementation to its counterproposals, he stated: I dont really recall. GC Ex. Daniel Liberto is a journalist with over 10 years of experience working with publications such as the Financial Times, The Independent, and Investors Chronicle. . 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. The General Counsel claims that the Agency was required to bargain until either an agreement or impasse was reached, citing. It's a tool that's. The chairman is also ex officio chairman of the Foreign Service Labor Relations Board. 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, . 300, 439-41. Where they mainly differ is in the portion of the workforce they serve. 112-14, 169. 47 FLRA at326-27. The Authority has stated that the location in which employees perform their duties, as well as other aspects of employees office environments, are matters at the very heart of the traditional meaning of conditions of employment.. Jones did not articulate his understanding of paragraph 2 to the Union team until substantive negotiations had begun on April 23, and the Union immediately disputed his understanding. 2423.32. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. 1(a). First, on the morning of April 24, the Agency revealed that it lacked information on, and had not made decisions about, issues pertaining to frosted glass (Union Proposal 14), cubicle height (Proposal 20), task lighting (Proposal 24), coat hooks (Proposal 28), and furniture (Proposal 36). 288), and Graham and Jones both acknowledged that no agreement was reached. Asked why the Agency rejected the Unions counterproposals, when those counterproposals largely accepted Agency positions, Jones stated: We werent going to start bargaining piecemeal, at least not at that point. The President can designate the Chairman with no separate Senate confirmation required. Resp. 288, 367, 465. GC Ex. When Jones forwarded these drawings to the Union the same day, it was the first time the Union had seen any drawings or floor plans for the new building. In the late afternoon, about an hour before bargaining was scheduled to end, the Agencys bargaining team submitted twenty-three counterproposals. At this time FLRA remains fully operational. 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. 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. 375. Were moving. The Union stands ready and willing to continue good faith bargaining regarding the HQ relocation at mutually agreeable future times and dates. 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. Tr. Similarly, neither side used the term impasse or described proposals as a last best offer. Although invoking the word impasse does not magically produce one, it is common for negotiators to advise their counterparts when they believe progress has been deadlocked. Tr. 162.) (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. GC Ex. 115. 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. 221. Graham told them, [W]e dont know about furniture because the Agency doesnt have money, adding that the Agency planned to purchase furniture using a monthly payment plan administered by GSA. Tr. 403-04. 386-87; Jt. 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 court has distinguished three types of challenges on appeal. 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. With respect to the Agencys obligation to bargain over the relocation, Jones testified, We gave them the drawings. In this vein, the Agency continued to submit changes to the design drawings to GSA and to make decisions about furniture options (most significantly, adopting GSAs FIT program, which drastically limited the remaining furniture choices), window and glass treatments, lighting, and cubicle height. Regional Offices., National Labor Relations Board. When you visit the site, Dotdash Meredith and its partners may store or retrieve information on your browser, mostly in the form of cookies. Tr. Durkin testified at the hearing that she had already requested much of this information, but had not received it, in earlier requests. Jones added that bargaining other than face-to-face bargaining would present a number of practical difficulties, saying, We couldnt possibly try to negotiate a subject as complicated as the complete relocation of the Agencys headquarters by email or telephone. 469. First, a party who possesses standing can challenge the regulations directly on the ground that the issuing agency acted in excess of its statutory authority in promulgating them. But, he continued, there is not going to be ongoing bargaining. Tr. If mediation assistance takes place, but no agreement is reached, either party may thereafter request assistance from the Federal Service Impasses Panel. 121. It also provides that there may be additional dates for face-to-face bargaining, but this requires the mutual agreement of the parties. The three members cannot be from the same political party. In the weeks and months that followed, the Agency unilaterally made decisions about the design and layout of the new headquarters, including issues such as office furniture and other matters that had been discussed (but not resolved) during bargaining. The Agency offers two primary justifications for its actions: itargues that the Union waived its right to further bargaining when it agreed to the ground rules, and it further insists that when the second day of bargaining ended, the parties had reached impasse. The Union team attempted to see what the differences were between the Unions proposals and the Agencys counterproposals. The next day, Luther informed Jones, In light of your rejection of our . Tr. 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. Durkin replied that we anticipate continuing bargaining, and that the Union was focusing here now on time sensitive issues like the size of offices, but we anticipate bargaining over these things into the future. Tr. 14 at 3. Hiro Isogai, a designer at WDG, showed slides of each floors layout, explained their details, and answered questions. (All communication between the parties was by email, unless otherwise noted.) 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. Although both laws cover labor relations and rights, they . (a fact the Agency belatedly understood several months later, when it offered to return to the table), and the Agencys termination of bargaining in April was arbitrary and unreasonable. . On the first day of the hearing, the GC moved to amend the complaint to allege, On April 25, 2014, and on May 15, 2014, the Respondent . The parties discussed the number of stalls needed in the mens and womens restrooms (Union Proposal 31), and the Union team argued the Agencys floor plan was grossly inadequate. Ex. All of the Unions proposals relating to size and configuration were dismissed out of hand by Jones, and the Unions refusal to accept his rejection of those proposals was interpreted as intransigence. (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. 126. . marked the opening to broader compromises, but the Agency chose instead to close the book on bargaining. 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 . . Later that day, Stephen Sloper, a member of the Unions Executive Committee, asked FMCS Mediator Kurt Saunders to mediate the dispute. . 2023 American Federation of State, County and Municipal Employees, AFLCIO, 43rd International Convention - Boston, MA (2018). While the parties had some subsequent discussions about the relocation, no further negotiations occurred until at least November. What is the difference between NLRB and FLRA? Find everything you need to know about filing a casewith the FLRA. 24. 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. Since its inception in 1935, the NLRB has successfully defended the rights of private-sector employees across all types of industries. 39. It then listed five Union counterproposals (which are set forth in the appendix). Issued, Washington, D.C., February 11, 2016, Date: _________________ By: _______________________________________________, Chairman, National Labor Relations Board (Signature), Date: _________________ By: ______________________________________________, General Counsel, National Labor Relations Board (Signature), Collaboration and Alternative Dispute Resolution Office (CADRO), Archival Decisions, Legislative History, & Foreign Service Decisions, NATIONAL LABOR RELATIONS BOARD AND NATIONAL LABOR RELATIONS BOARD UNION. 17 at 1. During bargaining, Jones would be joined by Jessica Graham, Assistant Chief of the Space Management Section, Facilities Branch; Andrew Krafts, Deputy Chief Counsel to Member Nancy Schiffer; and Rachel Lennie, an Assistant General Counsel. 465. 39. Based on the above precedent, I find that the planned relocation to a new building involved a change in conditions of employment. 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 . 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. On March 14, Durkin proposed two consecutive days of face-to-face bargaining, to occur on April 16 and 17. Shortly after Jones sent his email, the Union and Agency teams met briefly to gather their things and leave. 113. Three of the Unions counterproposals were identical to the Agencys, and the other two were very close. at 30. Created by the Civil Service Reform Act of 1978, it is a quasi-judicial body with three full-time members who are appointed for five-year terms by the President with the advice and consent of the Senate. During this period, Agency officials were negotiating with the architects how much space each division of the Agency needed, how large the offices and cubicles could be, and other meaningful design issues. at 12. . 104. 6. On Wednesday, April 23, the Unions bargaining team met with Agency representatives Jones and Graham. . FLRA, 39 F.3d 361 (CADC 1994); Defense . The Respondent did not object to the motion, and I granted it. While denying that it had floor plans of the existing offices, the Agency prevented Union officials from taking. For all of the above reasons, the Agency failed to bargain in good faith and violated 7116(a)(1) and (5) of the Statute. . 74-75; GC Ex. 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. 1935 Passage of the Wagner Act., National Labor Relations Board. some of the areas [of] discussions that we had with the Union, such as the Unions suggestion to have a second nursing room. 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. 425. As an attorney, I am often asked what the difference is between employment law and labor law. At the same time, negotiations were also underway with the Union, Agency and FLRA to settle the Unions ULP charge. 274-75. LEXIS 15827, 266 U.S. App. Tr. . It could be by teleconference or videoconference. In other words, the paragraph simply specified the dates on which bargaining would be conducted. A new building involved a change in conditions of employment Union tried to initiate mediation the. 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