Tr. Tr. Jones replied that the design plans were the Agencys proposals. 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. GC Exs. These include white papers, government data, original reporting, and interviews with industry experts. 3 at 1. 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? 2423.32. 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. GC Ex. at 1, 5; The Respondent contends that it fulfilled its bargaining obligation under the Statute. The Agencys bargaining team consisted of managers based at headquarters, and the Agencys executive leadership inserted itself into the dispute more than once. 24. , 41 FLRA at 340 n.*. We certainly would have done that. . On April 3, Jones told the Union, with regard to a walk-through of Franklin Court, that people will be working and cannot be disturbed, so you should not plan on measuring/inspecting individual employee workspace or conversing with employees during duty time. GC Ex. 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. 159-61; GC Ex. The committee was led by Troy Crayton, the Agencys Facilities Chief, and it included representatives from each division of the Agency, as well as representatives from the Professional Association and the Union. . Tr. 221. The chairman is also ex officio chairman of the Foreign Service Labor Relations Board. These include the Agencys refusal to furnish necessary information to the Union prior to April 23 and delaying the start of bargaining until many of the most significant decisions affecting the size and configuration of the new headquarters offices had been made. The Chicago Regional Office of the Federal Labor Relations Authority offers this training to parties involved in "change bargaining" under the Federal Service Labor-Management Relations Statute. 100-01, 230-31. Br. Jones responded to Durkins request on February 10, providing a timeline for the move and floor plans of the Franklin Court building. Subsequently, the GC, the Charging Party, and the Respondent filed post-hearing briefs, which I have fully considered. . 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. . Tr. the judges discussion of the agencys duty to allow a reasonable time for the bargaining process to occur. In the late afternoon, about an hour before bargaining was scheduled to end, the Agencys bargaining team submitted twenty-three counterproposals. 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. . To make matters worse, the Union was told that it only had a few days to make any further comments on the floor plans, and that all issues relating to the move had to be negotiated in that time even issues that were not tied to the Agencys final comments on the floor plans. Graham and Lennie responded that the Agency was requesting those changes. the background and history of the move, and talked about it being a very tight timeline, tight monetary restrictions. Tr. Without strong labor unions, there can be no equity for working people. GC Ex. 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 . Otherwise, if retroactivity of any term is dependent on the Respondents consent, the negotiations are likely to be as fruitless as those on April 23 and 24. With respect to the Agencys obligation to bargain over the relocation, Jones testified, We gave them the drawings. . That AFSCME will publicize how the current NLRB and FLRA are enforcing our federal labor laws to hinder, rather than promote, collective bargaining. I guess we will have to agree to disagree about any further bargaining. Annual Subscription ($175 / Year). Despite significant differences between the parties' proposed telework arrangements, both parties identified maximizing telework opportunities for bargaining unit employees as a primary interest. Substantive bargaining did not begin until the second day, at which time the parties discussed most of the forty-one proposals submitted by the Union. 104. 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. at 30. 14 at 3. 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. Tr. 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. With regard to the drawings, Jones stated, We have not yet received the final drawings from the architect.. What We Do., National Labor Relations Board. 428. On March 10, Durkin noted that the construction schedule called for final DIDs to be submitted by March 13, and for Agency review and approval to be completed by March 27, yet the Agency had not even begun ground rules negotiations with the Union; she asked how the Agency intended to provide a reasonable amount of time for bargaining with the Union, in light of these facts. . The second method is to petition the agency for amendment or rescission of the regulations and then to appeal the agencys action. While private-sector employees are entitled to collectively bargain . Paid for by the American Federation of State, County & Municipal Employees, AFL-CIO, 1625 L St., NW, Washington, DC, 20036. D.C. 165, 126 L.R.R.M. some of the areas [of] discussions that we had with the Union, such as the Unions suggestion to have a second nursing room. Also, Jones acknowledged that [t]here wasnt a deadline on furniture for May 9th. Tr. . Employment Law Research: What you should know about SEO, Minimum Wage: The difference between Federal and State laws, State Laws Federal Laws Topics Articles Resources, Pregnant Women: How to Create a Healthy Work Environment, New Job in Florida? . . He said today and tomorrow; thats it.. . 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. 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. In response to Proposal 12 that employees who had window offices at Franklin Court would have the same at Half Street Jones stated, well try to see how many window offices we can get in the Washington Resident Office, but again they are the only people who have offices.. What Is the National Labor Relations Board (NLRB)? informed the Union that the Respondent had fulfilled its obligation to bargain regarding the headquarters office move, and that [s]ince on or about April 25, 2014, and May 15, 2014, the Respondent has failed and refused to negotiate with the Union over the headquarters office move to the extent required by the [S]tatute, in violation of 7116(a)(1) and (5) of the Statute. 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. At the time of the hearing, the relocation of the NLRB headquarters was scheduled to take place by June 2015. The Union team attempted to see what the differences were between the Unions proposals and the Agencys counterproposals. However, in an attempt to reach an agreement or at least narrow the issues, the Agency offered to continue bargaining into the night. Tr. The Union team then met up with the remainder of the Agencys bargaining team. 12 at 1. Isogai indicated that there had been a number of iterations of the drawings (Tr. The General Counsel claims that the Agency was required to bargain until either an agreement or impasse was reached, citing. 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. He indicated that at that point in the process, major changes, such as adding movable walls or more bathroom stalls, would be difficult, if not impossible. 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. The architects finalized design intent drawings in August. 39. On April 16, the Union submitted a second information request, asking for documents showing the specific spaces and offices assigned to bargaining unit employees and to the Union in the new building; the rooms and spaces assigned for common purposes and as other than personal workspace; and the locations and dimensions of these spaces. 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. 138-39; 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. 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. Well meet today and tomorrow [April 23-24], and thats it. Tr. Tr. The NLRB My Account Portal is an NLRB website that allows individuals to view cases and inquiries to which they are a party, e-file documents in those cases/inquiries, view their e-file history and manage their user profile. GC Ex. Thus the April 23 and 24 bargaining sessions scheduled in paragraph 2 were clearly not the only negotiations that the parties anticipated. GC Br. But the agency told the union that no final decision had been made about the relocation, and indeed the relocation did not occur. It protects the rights of most private-sector employees, who can petition it for help in efforts to collectively bargain for better wages and working conditions. 33, 42-43, 403; GC Ex. Tr. 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. He said that when the management team caucused after lunch on the 24th, we were only able to begin discussion of the Unions 40+ proposals . Similarly, it is apparent that the parties were a few short conversations away from reaching agreement on the issue of an additional nursing room; Jones himself admitted that the parties were still in the early stages of bargaining when the Agency left the table. . 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. Was NLRB barred by the statute of limitations? 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. If the parties had truly intended to establish a fixed time period for the negotiation of all issues related to the Agencys relocation, it could have done so, simply by stating that April 24 would be the last day for bargaining and by further specifying a fixed period for engaging in mediation and invoking FSIP assistance. GC Ex. 1(a). Tr. About NLRB., National Labor Relations Board. 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. Tr. 278. The National Labor Relations Board (NLRB) was established by the National Labor Relations Act (NLRA) in 1935, and it enforces statutorily defined unfair labor practices on the part of employers, labor organizations, or their agents. Tr. Case digests provide a brief synopsis of the most pertinent principles in merits decisions issued by the Authority. Before implementing a change in conditions of employment, an agency must provide a union with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain, if the change will have more than a de minimis effect on conditions of employment. Should those rights not be respected and lead to unfair treatment, its the NLRBs job to investigate and, if necessary, take action. Tr. While the NLRA governs labor relations for most private sector employers, it specifically excludes employers covered under the Railway Labor Act ("RLA") the earlier federal statute enacted to avoid interruptions to interstate commerce and transportation via rail or air. View the legislative history of the Federal Service Labor-ManagementRelations Statute, the Civil Service Reform Act, andthe Foreign Service Act. Br. Labor law governs union and management relationships and employee collective bargaining rights. 117. to be incorporated into the final Design Intent Drawings by May 9. 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. 5 C.F.R. the advantage conferred by the privilege to retain or waive its right to retroactive application of bargaining terms. 856 F.2d at 299. GC Ex. 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. 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. It was further agreed that all employees will be working in a space about 40% smaller than the offices they have occupied for the past twenty-one years. By contrast, Jones testified that it was never contemplated that we would do this any other way than face-to-face. Tr. 10. Tr. Jones added that the DID process should have started approximately three weeks ago. GC Ex. Ex. Tr. . 105. 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. 110-12, 363-64. Graham testified that the Agencys comments to GSA incorporated . 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). The FLRA was adopted after President Jimmy Carter sought legislation to bring comprehensive reform to civil service system and regularize federal labor relations. However, we are willing to tentatively agree to the following parts of the Agencys counterproposal, with the following changes. GC Ex. [I]t was not necessary to explicitly lay out those types of bargaining, because they dont involve the same logistics that face-to-face bargaining does. Tr. . at 327. About two hours later, the Union team submitted five of its own counterproposals, which the Agency rejected. A few days later, the Union tried to initiate mediation of the dispute, but the Agency refused to participate. 3 at 2. 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. 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). Later that day, Stephen Sloper, a member of the Unions Executive Committee, asked FMCS Mediator Kurt Saunders to mediate the dispute. 12; Tr. 1959 Landrum-Griffin Act., National Labor Relations Board. Finally, a petitioners contention that the challenged regulation should be amended or rescinded because it conflicts from the statute from which its authority derives is reviewable outside the statutory limitations period. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one . The FLRA is charged with safeguarding. Some of the drawings were dated April 9 (GC Ex. 42 at 1. Although both laws cover labor relations and rights, they . 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. 16. . Its mission, in short, is to allow private-sector employees working for companies that do business across state lines to join forces and engage in activities such as protests or strikes with or without a union. 47 FLRA at326-27. 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