[ v05 p525 ]
05:0525(64)CA
The decision of the Authority follows:
5 FLRA No. 64
INTERNAL REVENUE SERVICE
AND BROOKHAVEN SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 99
Complainant
Case No. 30-08964(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF
EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT THE COMPLAINT
HEREIN BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S DECISION AND
ORDER AND A SUPPORTING BRIEF, AND THE RESPONDENT FILED AN ANSWERING
BRIEF.
THE FUNCTIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE TRANSFERRED TO
THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43
F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION
2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.1). THE
AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE
FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135).
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT. THE AUTHORITY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT HEREWITH. /1/
THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY INSTITUTING A CHANGE
IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS WITHOUT FIRST BARGAINING
WITH THE COMPLAINANT CONCERNING THE SUBSTANCE, IMPLEMENTATION, AND
IMPACT OF THE CHANGE. THE RESPONDENT'S DEFENSE WAS THAT IT HAD NO
OBLIGATION TO BARGAIN ABOUT THE SUBSTANCE OF ITS DECISION AND THAT, IN
FACT, IT DID BARGAIN TO IMPASSE WITH COMPLAINANT CONCERNING
IMPLEMENTATION AND IMPACT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT
VIOLATE SECTIONS 19(A)(1) AND (6) OF THE ORDER BY INSTITUTING A CHANGE
IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS ON JULY 1 OR 2, 1978,
WITHOUT FIRST BARGAINING WITH THE COMPLAINANT CONCERNING THE SUBSTANCE,
IMPLEMENTATION, AND IMPACT OF THE CHANGE. HOWEVER, FOR THE REASONS SET
FORTH BELOW, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW
JUDGE, THAT THE RESPONDENT'S DECISION TO CHANGE THE TOURS OF DUTY OF ITS
COMPUTER OPERATORS WAS NOT EXCEPTED FROM ITS DUTY TO BARGAIN UNDER
SECTION 11(B) OF THE ORDER.
AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE RESPONDENT'S BROOKHAVEN
SERVICE CENTER HAS A COMPUTER BRANCH STAFFED WITH REGULAR TOURS OF DUTY
BOTH ON A 5-DAY PER WEEK, 24-HOUR PER DAY BASIS, AND ON A 6-DAY PER
WEEK, 24-HOUR PER DAY BASIS. HOWEVER, THE AMOUNT OF WORK TO BE
COMPLETED NECESSITATED REGULAR OPERATION OF BOTH SYSTEMS 7 DAYS EACH
WEEK, WITH EMPLOYEES WORKING SUNDAYS RECEIVING OVERTIME ON A CONTINUING
BASIS. IN ORDER TO REDUCE THE USE OF OVERTIME, THE RESPONDENT DECIDED
THAT IT NEEDED TO SCHEDULE EMPLOYEES TO WORK ON WEEKENDS AS A PART OF
THEIR REGULAR TOURS OF DUTY. THE RESPONDENT MET WITH THE COMPLAINANT ON
SEVERAL OCCASIONS TO INFORM IT OF TENTATIVE PLANS TO IMPLEMENT ON JULY 2
A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS INSTEAD
OF AN OVERTIME BASIS AND TO DISCUSS MATTERS PERTAINING TO IMPLEMENTATION
AND IMPACT, INCLUDING PARTICULAR SCHEDULING PATTERNS. THE RESPONDENT
REQUESTED THAT THE COMPLAINANT PROVIDE WRITTEN PROPOSALS CONCERNING THE
PROPOSED 7-DAY WORKWEEK AND THE COMPLAINANT SUBMITTED A LETTER
DOCUMENTING ITS PRIOR PROPOSALS, INCLUDING ITS PROPOSAL THAT NO CHANGE
BE MADE IN EXISTING ITS PRIOR PROPOSALS, INCLUDING ITS PROPOSAL THAT NO
CHANGE BE MADE IN EXISTING TOURS OF DUTY. THE RESPONDENT INFORMED THE
COMPLAINANT THAT ITS DECISION WAS NONNEGOTIABLE UNDER SECTION 11(B) OF
THE ORDER AND THE CHANGE IN TOURS OF DUTY WAS IMPLEMENTED ON JULY 1 OR
2, WITH THREE REGULARLY SCHEDULED SHIFTS ON SUNDAYS.
THE ADMINISTRATIVE LAW JUDGE FIRST CONSIDERED WHETHER THE RESPONDENT
HAD AN OBLIGATION UNDER SECTION 11(B) OF THE ORDER TO BARGAIN OVER THE
SUBSTANCE OF ITS DECISION TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY
OPERATIONS ON A REGULAR BASIS INSTEAD OF AN OVERTIME BASIS. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, BASED ON THE DECISIONS OF THE
FEDERAL LABOR RELATIONS COUNCIL (THE COUNCIL) IN AFGE LOCAL 1940 AND
PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPARTMENT OF AGRICULTURE,
GREENPORT, NEW YORK, 1 FLRC 100(1971) AND FEDERAL EMPLOYEE METAL TRADES
COUNCIL OF CHARLESTON AND U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH
CAROLINA, 1 FLRC 236(1972), THAT THE TEST TO BE APPLIED IN DETERMINING
WHETHER A PROPOSAL FALLS WITHIN THE MEANING OF THE STAFFING PATTERNS
PROVISIONS OF SECTION 11(B) OF THE ORDER SO AS TO BE EXCEPTED FROM THE
OBLIGATION TO BARGAIN IS WHETHER THE PROPOSAL IS INTEGRALLY RELATED TO
AND CONSEQUENTLY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF
DUTY. APPLYING THIS TEST TO THE FACTS OF THE INSTANT CASE, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT HAVE AN
OBLIGATION TO BARGAIN ABOUT ITS DECISION TO CHANGE THE BASIC WORKWEEK TO
INCLUDE REGULAR TOURS OF DUTY ON SUNDAYS. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE CITED THE RESPONDENT'S NEED TO BALANCE ITS
WORKLOAD AGAINST THE BUDGETARY LIMITATIONS OF CONTINUED OVERTIME COSTS
AND FOUND, BASED ON THAT FACT, THAT THE RESPONDENT'S DECISION WAS
INTEGRALLY RELATED TO AND CONSEQUENTLY DETERMINATIVE OF THE NUMBERS OF
EMPLOYEES ASSIGNED TO A TOUR OF DUTY.
CONTRARY TO THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE, THE
AUTHORITY FINDS THAT THE RESPONDENT'S DECISION IS NOT EXCEPTED FROM THE
DUTY TO BARGAIN UNDER SECTION 11(B) OF THE ORDER. THE ADMINISTRATIVE
LAW JUDGE CORRECTLY IDENTIFIED THE TEST TO BE APPLIED, BUT HE DID NOT
DEMONSTRATE HOW AND IN WHAT MANNER THE CHANGE IN THE BASIC WORKWEEK WAS
INTEGRALLY RELATED TO AND DETERMINATIVE OF THE NUMBERS, TYPES, AND
GRADES OF EMPLOYEES ASSIGNED TO THE SUNDAY SHIFTS. IN THIS REGARD, THE
FACTS HEREIN ARE SUBSTANTIALLY SIMILAR TO THOSE IN U.S. NAVAL SUPPLY
CENTER, SUPRA. IN THAT CASE, THE FACILITY PROVIDED AROUND-THE-CLOCK
SERVICE TO THE FLEET 7 DAYS A WEEK. THE UNION PROPOSED TO ESTABLISH A
BASIC WORKWEEK OF FIVE 8-HOUR DAYS, MONDAY THROUGH FRIDAY. THE AGENCY
ARGUED THAT THE PROPOSAL WOULD REQUIRE IT TO PAY AVOIDABLE OVERTIME FOR
SATURDAY AND SUNDAY WORK AND, IN ADDITION, RELYING ON THE PLUM ISLAND
CASE, ARGUED THAT IT WAS NOT REQUIRED TO NEGOTIATE ON THE ESTABLISHMENT
OR CHANGE OF TOURS OF DUTY. THE COUNCIL REJECTED THIS CONTENTION,
FINDING NO INDICATION THAT THE PROPOSAL TO AFFIRM MONDAY THROUGH FRIDAY
ST THE BASIC WORKWEEK WOULD REQUIRE BARGAINING ON THE "NUMBERS, TYPES,
AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO A . . . TOUR OF DUTY"
WITHIN THE MEANING OF SECTION 11(B) OF THE ORDER.
MORE PARTICULARLY, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS AND OFFICE OF THE
ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, U.S.
DEPARTMENT OF AGRICULTURE, 3 FLRC 325(1975), A CASE NOT CITED BY THE
ADMINISTRATIVE LAW JUDGE, THE UNION PROPOSED A BASIC WORKWEEK OF FIVE
8-HOUR DAYS, MONDAY THROUGH FRIDAY, TO BEGIN AT 6 A.M. AND NOT COMMENCE
AFTER 6 P.M. ON EACH MONDAY. APPLYING THE PRINCIPLES OF U.S. NAVAL
SUPPLY CENTER, SUPRA, THE COUNCIL FOUND THAT THE UNION'S PROPOSAL WAS
NOT INTEGRALLY RELATED TO THE TYPES OF EMPLOYEES ASSIGNED TO THE
PROPOSED TOURS OF DUTY, SINCE THE EMPLOYEES ON EACH TOUR OF DUTY WOULD
CONTINUE TO BE FOOD INSPECTORS; NOR WAS IT INTEGRALLY RELATED TO THE
NUMBER OF EMPLOYEES ASSIGNED TO THE PROPOSED TOURS OF DUTY, SINCE THE
PROPOSAL RELATED ONLY TO THE DAYS OF THE BASIC WORKWEEK, WHICH HAD AN
IMPACT ON OVERTIME COSTS, BUT NOT ON THE NUMBERS OF EMPLOYEES ASSIGNED.
THE CIRCUMSTANCES OF THE INSTANT CASE ARE NOT MATERIALLY DIFFERENT
FROM THOSE IN U.S. NAVAL SUPPLY CENTER AND ANIMAL AND PLANT HEALTH
SERVICE. IN THIS CASE, THE ADMINISTRATIVE LAW JUDGE FOUND, AS THE
COUNCIL FOUND IN THOSE CASES, THAT THE DECISION TO CHANGE THE BASIC
WORKWEEK WOULD AFFECT THE AMOUNT OF OVERTIME TO BE PAID. HOWEVER, THE
ADMINISTRATIVE LAW JUDGE CITED NO EVIDENCE IN THE RECORD IN THIS CASE,
AND THE COUNCIL FOUND NO EVIDENCE IN THOSE CASES, THAT THE DECISION TO
CHANGE THE BASIC WORKWEEK IN ITSELF WAS DETERMINATIVE OF THE NUMBERS,
TYPES, AND GRADES OF EMPLOYEES ASSIGNED TO THE PROPOSED TOURS OF DUTY,
I.E., IN THIS INSTANCE, THE PROPOSED REGULAR SHIFTS ON SUNDAY. THUS,
BASED ON THE COUNCIL'S DECISIONS IN U.S. NAVAL SUPPLY CENTER AND ANIMAL
AND PLANT HEALTH SERVICE, THE RESPONDENT'S DECISION TO CHANGE THE BASIC
WORKWEEK TO INCLUDE REGULAR TOURS OF DUTY ON SUNDAY IS NOT EXCEPTED FROM
THE DUTY TO BARGAIN UNDER SECTION 11(B) OF THE ORDER.
IN THIS REGARD, CONTRARY TO THE RESPONDENT'S CONTENTION THAT, UNDER
THE COUNCIL'S PLUM ISLAND DECISION, IT HAD A RIGHT UNDER SECTION 11(B)
TO ESTABLISH A NEW TOUR OF DUTY ON SUNDAY, THE RECORD INDICATES THAT THE
RESPONDENT HAD FOR SOME TIME MAINTAINED SUCH A TOUR OF DUTY ON AN
OVERTIME BASIS. THUS, ITS DECISION HEREIN DID NOT INVOLVE THE
ESTABLISHMENT OF A NEW TOUR OF DUTY BUT A CHANGE FROM SCHEDULING AN
ALREADY ESTABLISHED TOUR OF DUTY ON AN OVERTIME BASIS TO SCHEDULING IT
AS PART OF A REGULAR TOUR OF DUTY, I.E., AS A PART OF THE BASIC
WORKWEEK.
BASED ON ALL THE FOREGOING REASONS, THE AUTHORITY FINDS THAT THE
RESPONDENT'S DECISION TO ESTABLISH A REGULAR TOUR OF DUTY ON SUNDAYS IN
THE CIRCUMSTANCES OF THE CASE IS NOT EXCEPTED FROM THE RESPONDENT'S DUTY
TO BARGAIN UNDER SECTION 11(B) OF THE ORDER. ACCORDINGLY, BY REFUSING
TO NEGOTIATE ON ITS DECISION TO CHANGE THE EXISTING SUNDAY OVERTIME TOUR
OF DUTY SO AS TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS
ON A REGULAR BASIS, THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER. /2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE AND THE BROOKHAVEN SERVICE CENTER,
HOLTSVILLE, LONG ISLAND, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN TOURS OF DUTY OF EMPLOYEES DESIGNED TO
IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS
WITHOUT FIRST NOTIFYING AND, UPON REQUEST, BARGAINING IN GOOD FAITH WITH
THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 99, THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES.
(B) REFUSING TO MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
99, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO: CHANGES IN
TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED TO IMPLEMENT A SCHEDULE OF
COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
(A) RESCIND AND REVOKE THE CHANGE IN TOURS OF DUTY IMPLEMENTED ON
JULY 1 OR 2, 1978, IMPLEMENTING FOR COMPUTER OPERATORS A SCHEDULE OF
COVERAGE OF SUNDAY OPERATIONS ON A REGULAR BASIS.
(B) UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99 WITH RESPECT TO
ANY PROPOSED CHANGES IN THE TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED
TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR
BASIS.
(C) POST AT THE BROOKHAVEN SERVICE CENTER, HOLTSVILLE, LONG ISLAND,
NEW YORK, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF THE
FORMS, THEY SHALL BE SIGNED BY THE CHIEF OF THE COMPUTER BRANCH, AND
THEY SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
CUSTOMARILY ARE POSTED. THE CHIEF OF THE COMPUTER BRANCH SHALL TAKE
REASONABLE STEPS TO INSURE THAT NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION 2, ROOM 241, 26
FEDERAL PLAZA, NEW YORK, N.Y. 10278, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
ISSUED, WASHINGTON, D.C., APRIL 21, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN TOURS OF DUTY OF OUR COMPUTER
OPERATORS, DESIGNED TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY
OPERATIONS ON A REGULAR BASIS, WITHOUT FIRST NOTIFYING AND, UPON
REQUEST, BARGAINING IN GOOD FAITH WITH THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THEIR RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
WE WILL RESCIND AND REVOKE THE CHANGE IN TOURS OF DUTY IMPLEMENTED ON
JULY 1 OR 2, 1978, IMPLEMENTING FOR OUR COMPUTER OPERATORS A SCHEDULE OF
SUNDAY OPERATIONS ON A REGULAR BASIS.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99, WITH RESPECT TO
ANY PROPOSED CHANGES IN THE TOURS OF DUTY OF COMPUTER OPERATORS DESIGNED
TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS ON A REGULAR
BASIS.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE
ADDRESS IS: FEDERAL LABOR RELATIONS AUTHORITY, REGION 2, NEW YORK, ROOM
241, 26 FEDERAL PLAZA, NEW YORK, N.Y. 10278; AND WHOSE TELEPHONE NUMBER
IS (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ELLIOT M. CARLIN, ESQUIRE
FOR THE RESPONDENT
WILLIAM F. WHITE, ESQUIRE
FOR THE COMPLAINANT
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER).
ON DECEMBER 26, 1978, A COMPLAINT WAS FILED BY NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 99 /3/
ALLEGING THAT INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER /4/
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER. /5/ ON OCTOBER 30,
1979, REGIONAL DIRECTOR RONALD T. SMITH ISSUED A NOTICE SCHEDULING THE
HEARING FOR DECEMBER 11, 1979 IN NEW YORK CITY. BY REQUEST OF THE
PARTIES, THE SITUS OF THE HEARING WAS CHANGED TO HOLTSVILLE, NEW YORK.
ESSENTIALLY, THE COMPLAINT ALLEGES THAT RESPONDENT INSTITUTED A
CHANGE IN THE TOURS OF DUTY OF ITS COMPUTER OPERATORS ON JULY 2, 1978
WITHOUT FIRST BARGAINING WITH THE UNION CONCERNING THE SUBSTANCE,
IMPLEMENTATION AND IMPACT OF THE CHANGE. RESPONDENT'S DEFENSE IS THAT
IT HAD NO OBLIGATION TO BARGAIN ABOUT THE SUBSTANCE OF ITS DECISION AND
THAT, IN FACT, IT DID BARGAIN TO IMPASSE WITH THE UNION CONCERNING
IMPACT AND IMPLEMENTATION.
AT THE HEARING, ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
ORALLY. THEREAFTER, RESPONDENT AND THE COMPLAINANT FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED. /6/
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS OF FACT
THE COMPUTER BRANCH OF THE BROOKHAVEN SERVICE CENTER, INTERNAL
REVENUE SERVICE (BSC) IS PART OF THE COMPUTER SERVICE DIVISION, ALONG
WITH TWO OTHER BRANCHES, THE ACCOUNTING BRANCH AND THE DATA CONVERSION
BRANCH. BSC, LIKE ALL IRS SERVICE CENTERS, IS "COMPUTER BOUND;" THAT
IS, THE PROCESSING OF TAX RETURNS AND TAXPAYER ACCOUNTS IS DONE BY
COMPUTER. THE COMPUTER BRANCH OPERATES EIGHT MAJOR COMPUTER SYSTEMS,
INCLUDING A "REAL TIME SYSTEMS" (THE CONTROL DATA, OR CDC COMPUTER), AND
THE "DIRECT DATA ENTRY SYSTEM" (THE HONEYWELL COMPUTER). THE REAL TIME
SYSTEM PROVIDES ACCESS TO TAXPAYER ACCOUNTS FROM REMOTE TERMINALS IN
VARIOUS I.R.S. DISTRICTS, INCLUDING MANHATTAN, BROOKLYN AND ALBANY. FOR
EXAMPLE, IF A TAXPAYER COMES TO A DISTRICT OFFICE TO INQUIRE ABOUT THE
STATUS OF HIS OR HER ACCOUNT OR TO MAKE A PAYMENT, THE ACCOUNT MAY BE
ACCESSED AND ADJUSTED FROM THE REMOTE TERMINAL IN THE DISTRICT OFFICE.
THE DIRECT DATA ENTRY SYSTEM IS USED TO PROCESS INFORMATION KEYED IN
FROM TERMINALS AT THE SERVICE CENTER. THERE ARE ABOUT 110 EMPLOYEES IN
THE ENTIRE BRANCH, APPROXIMATELY 52 OF WHOM WORK ON THE SYSTEMS REFERRED
TO ABOVE.
PRIOR TO JULY, 1978, THE COMPUTER BRANCH WAS STAFFED WITH REGULAR
TOURS OF DUTY BOTH ON A FIVE-DAY PER WEEK, TWENTY-FOUR-HOUR PER DAY
BASIS, AND A SIX-DAY PER WEEK, TWENTY-FOUR HOUR PER DAY BASIS. THE REAL
TIME SYSTEM WAS STAFFED ON THE SIX-DAY WEEK BASIS. HOWEVER, DURING THE
PERIOD APRIL THROUGH JUNE 1978, AND EVEN BEFORE THAT, IT WAS NECESSARY
TO OPERATE BOTH SYSTEMS SEVEN DAYS EACH WEEK, WITH EMPLOYEES WORKING
SUNDAYS RECEIVING OVERTIME ON A REGULAR BASIS. REGULAR WEEKEND
OPERATIONS WERE NECESSARY ON THE CDC SYSTEM IN ORDER TO UPDATE WORKLOAD
TO BE INPUTTED INTO THE HONEYWELL SYSTEM MADE IT NECESSARY TO REGULARLY
OPERATE THAT COMPUTER ON WEEKENDS. THUS, THE FACT THAT THERE WAS MORE
WORK THAN COULD BE COMPLETED FROM MONDAYS THROUGH FRIDAYS, AS WELL AS
THE LIMITED CAPACITY OF THE EXISTING COMPUTERS, NECESSITATED REGULAR
WEEKEND OPERATIONS. THESE OPERATIONS ACCOUNTED FOR APPROXIMATELY 10,000
OVERTIME HOURS IN BOTH 1976 AND 1977.
PRIOR TO MARCH 31, 1978, THE PROCEDURES FOR AUTHORIZING OVERTIME AT
BSC WERE CONTROLLED ENTIRELY WITHIN THE SERVICE CENTER. THUS, THE
BRANCH REQUIRING OVERTIME DURING A SPECIFIC PERIOD WOULD SUBMIT A
REQUEST THROUGH CHANNELS TO THE DIVISION CHIEF LEVEL. IF THE DIVISION
CHIEF APPROVED THE USAGE, THE RESOURCES MANAGEMENT DIVISION WOULD VERIFY
THAT THERE WAS ADEQUATE FUNDING FOR THE REQUIRED OVERTIME HOURS.
HOWEVER, DUE TO A SUBSTANTIAL NATIONAL DEFICIT IN THE APPROPRIATIONS BY
WHICH ALL I.R.S. SERVICE CENTER OPERATIONS ARE FUNDED, IT WAS DETERMINED
BY THE IRS REGIONAL COMMISSIONER, NORTH-ATLANTIC REGION, THAT NO
OVERTIME EXPENDITURE COULD BE MADE WITHOUT HIS APPROVAL. (RESP.
EXHIBIT. NO. 1). LATER, ON MAY 23, 1978, WILLIAM CAINE, CHIEF,
RESOURCES MANAGEMENT DIVISION, BSC, WAS NOTIFIED THAT IN ADDITION TO THE
NEW REQUIREMENT THAT OVERTIME USAGE BE APPROVED BY THE REGIONAL
COMMISSIONER, THE ALLOCATION OF OVERTIME FUNDS FOR BSC WAS BEING
IMMEDIATELY WITHDRAWN BY THE REGION. THUS IT WOULD BE NECESSARY TO
REQUEST BOTH APPROVAL AND SPECIFIC ALLOCATION OF FUNDS FROM THE
NORTH-ATLANTIC REGION FOR ANY OVERTIME USE.
ACCORDING TO WILLIAM CAINE, CHIEF OF THE RESOURCES MANAGEMENT
DIVISION, AND HENRY PATRICK, CHIEF OF THE COMPUTER BRANCH, VARIOUS
OPTIONS EXISTED TO REDUCE OVERTIME USAGE: TO HIRE AND TRAIN ADDITIONAL
PERSONNEL; TO CHANGE TOURS OF DUTIES OF INDIVIDUAL EMPLOYEES; OR TO
CHANGE ENTIRE SHIFTS. FOR THE COMPUTER BRANCH, HOWEVER, TO HIRE AND
TRAIN ADDITIONAL PEOPLE WOULD NOT HAVE RESOLVED THE PROBLEM SINCE THERE
WAS FULL UTILIZATION OF THE EXISTING COMPUTERS DURING THE WEEK, AND
EMPLOYEES COULD NOT BE HIRED FOR WEEKENDS ONLY. NOR WOULD IT BE
FEASIBLE TO INCREASE THE CAPACITY OF THE COMPUTERS BY PURCHASING
ADDITIONAL UNITS, SINCE IT WOULD TAKE ONE TO TWO YEARS TO OBTAIN AND
MAKE THEM OPERATIONAL (RE. 109). HAVING CONSIDERED AND REJECTED THE
FOREGOING ALTERNATIVES, AND GIVEN THE IMMEDIACY OF THE NEED TO CUT BACK
OVERTIME USAGE, MANAGEMENT CONCLUDED, ACCORDING TO MR. PATRICK, THAT IT
NEEDED TO SCHEDULE EMPLOYEES TO WORK ON WEEKENDS WITHOUT WORKING IN AN
OVERTIME MODE (TR. 110).
ON OR ABOUT MAY 24, 1978, HENRY PATRICK ANNOUNCED TO MARIE LOCASCIO,
NTEU STEWARD, THAT HE WISHED TO MEET WITH NTEU TO DISCUSS A PROPOSED
CHANGE IN THE WORK WEEK IN THE COMPUTER BRANCH. ON MAY 26, 1978, A
FORMAL MEETING WAS HELD IN THE COMPUTER BRANCH OFFICE. PRESENT AT THE
MEETING FOR MANAGEMENT WERE PATRICK, AND SHIFT SUPERVISORS RICHIE
SHERIFF, JOHN FESTA AND TONY SANNIOLA, WHILE FOR NTEU, JUDY OSLAGER
(CHAPTER PRESIDENT), JOAN SHERIDAN AND MARIE LOCASCIO (STEWARDS)
ATTENDED. ALSO PRESENT AT NTEU'S BEHEST WERE TWO BARGAINING UNIT
EMPLOYEES, JOHN BRAGOLI AND CHARLIE HILL. MR. PATRICK CREDIBLY
TESTIFIED THAT THE PURPOSE OF THE MEETING WAS TO INFORM THE UNION OF
TENTATIVE PLANS TO IMPLEMENT A SCHEDULE OF COVERAGE OF SUNDAY OPERATIONS
ON A REGULAR BASIS, INSTEAD OF AN OVERTIME BASIS. AT THIS MEETING,
VARIOUS PROPOSED SCHEDULES AND TYPES OF SCHEDULES WERE DISCUSSED; TYPES
OF SHIFTS (VERTICAL AND HORIZONTAL ROTATING SHIFTS, FIXED SHIFTS); THE
REASON FOR THE CHANGE; AND A TENTATIVE JULY 2, 1978 IMPLEMENTATION
DATE.
ON DIRECT EXAMINATION, UNION STEWARD MARIE LOCASCIO WAS ASKED TO
ELABORATE ON THE AMOUNT OF DETAILS PROVIDED BY MR. PATRICK AT THIS
MEETING. SHE REPLIED THAT "IT DIDN'T REALLY SOUND LIKE ANYTHING WAS
CONCRETE." SHE CHARACTERIZED MANAGEMENT'S PRESENTATION WITH THIS
QUOTATION-- "THIS IS WHAT WE ARE THINKING ABOUT DOING." (THIS TESTIMONY
CORROBORATES THE RESPONDENT'S POSITION THAT, AT THIS POINT IN TIME, A
DEFINITIVE METHOD OF IMPLEMENTATION HAD NOT BEEN DECIDED UPON, AND THAT
RESPONDENT WAS OPEN TO SUGGESTIONS FROM THE UNION). THE UNION
REPRESENTATIVES EXPRESSED A PREFERENCE FOR ROTATING SHIFTS AND REQUESTED
THAT WEEKENDS BE COVERED BY VOLUNTEERS. WHEN THE MEETING TERMINATED
AFTER ABOUT TWO HOURS, IT WAS AGREED TO MEET AGAIN AFTER MS. LOCASCIO
CONSULTED THE SHIFT EMPLOYEES. AFTER THE MEETING, THE UNION REQUESTED
NEGOTIATIONS ON THE SUBSTANCE, IMPACT AND IMPLEMENTATION OF THE PROPOSED
CHANGES IN THE TOURS OF DUTY.
THE SAME PARTIES MET AGAIN AT LEAST TWO OR THREE TIMES ON OR ABOUT
MAY 31, 1978, JUNE 5, 1978 AND JUNE 6, 1978. AT THESE LATER MEETINGS,
THE UNION AND MANAGEMENT NEGOTIATED OVER MANY ISSUES CONCERNING THE
IMPACT AND IMPLEMENTATION OF THE DECISION TO ESTABLISH REGULAR SHIFTS TO
COVER THE ENTIRE WEEKEND, INCLUDING PARTICULAR SCHEDULING PATTERNS TO BE
USED. FOR EXAMPLE, THE UNION OBJECTED TO ANY PROPOSED SCHEDULE WHICH
WOULD REQUIRE AN EMPLOYEE TO WORK BOTH DAYS OF THE WEEKEND. MANAGEMENT
AGREED TO DISCARD ANY PROPOSED SCHEDULE WHICH CONTAINED SUCH A
REQUIREMENT. FURTHER, WHILE A FIXED SCHEDULE WAS MORE EXPEDITIOUS FROM
MANAGEMENT'S POINT OF VIEW, MANAGEMENT AGREED TO THE UNION'S PREFERENCE
FOR ROTATING SCHEDULES. IN THIS WAY, AN EMPLOYEE WOULD NOT BE REQUIRED,
FOR EXAMPLE, TO WORK ON SUNDAYS FOREVER. NTEU'S REQUEST THAT SUNDAYS BE
STAFFED WITH VOLUNTEERS RESULTED IN A CANVASS BY MANAGEMENT OF SHIFT
EMPLOYEES TO SOLICIT VOLUNTEERS. AS A RESULT OF THE CANVASS, SOME
VOLUNTEERS WERE DISCOVERED, BUT NOT A SUFFICIENT NUMBER TO STAFF SUNDAYS
ON A REGULAR BASIS. THIS CORRESPONDED WITH THE UNION'S OWN EFFORTS TO
OBTAIN VOLUNTEERS, WHICH DISCLOSED ONLY TWO EMPLOYEES. THE UNION DID
NOT PRESENT NAMES OF ANY PARTICULAR EMPLOYEES WHO WOULD VOLUNTEER. IN
FACT, AS TO ASSIGNING PARTICULAR EMPLOYEES TO PARTICULAR SHIFTS, THERE
WAS A LARGE DEGREE OF LATITUDE ALLOWED BY MANAGEMENT; THE EMPLOYEES
WERE ASKED TO SUBMIT THEIR PREFERENCES AS TO WHAT SHIFTS THEY WANTED,
AND TO WORK OUT AMONG THEMSELVES THE COVERAGE ON SUNDAYS.
OTHER ISSUES WERE NEGOTIATED AT THESE MEETINGS BUT NO AGREEMENT WAS
REACHED. NTEU WANTED NURSES ON DUTY AT BSC AT NIGHTS AND ON WEEKENDS;
MANAGEMENT DECLINED. (THIS TOPIC IS ALSO CONTROLLED BY THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT, JOINT EXHIBIT 1, ARTICLE 19). ALSO
DISCUSSED WERE THE UNION'S PROPOSALS FOR SUPPORT COVERAGE FOR WEEKEND
SHIFTS, INCLUDING PROVIDING RESIDENT PROGRAM ANALYSTS; ADDITIONAL
LIBRARY COVERAGE AND SCHEDULERS FOR ALL 21 SHIFTS DURING THE WEEK; AND
A REQUEST TO DELAY IMPLEMENTATION TO ACCOMMODATE THE EMPLOYEES' VACATION
PLANS. AS TO THIS LATTER REQUEST, MANAGEMENT RESPONDED BY AGREEING TO
ACCOMMODATE THE EMPLOYEES' VACATION PLANS AND ACCORDING TO MR. PATRICK
NO EMPLOYEE WAS DEPRIVED OF HIS OR HER VACATION OVER THE SUMMER OF 1978.
HOWEVER, MANAGEMENT WOULD NOT AGREE TO DELAY IMPLEMENTATION UNTIL THE
END OF THE SUMMER. NTEU DID NOT PROVIDE ANY PROPOSALS CONCERNING A
PROCEDURE TO BE USED TO ACCOMMODATE EMPLOYEES, AND MR. PATRICK BELIEVED
THE UNION WAS SATISFIED WITH HIS AGREEMENT THAT NO ONE WOULD LOSE THEIR
VACATION.
NOTWITHSTANDING THE SEVERAL MEETINGS DESCRIBED ABOVE, MANAGEMENT
REQUESTED ON JUNE 6, 1979 THAT NTEU PROVIDE IT WITH ITS WRITTEN
PROPOSALS BY JUNE 19, CONCERNING THE PROPOSED SEVEN-DAY WORK WEEK IN THE
COMPUTER BRANCH (COMPLAINANTS' EXHIBIT 1). THIS WAS DONE ON THE ADVICE
OF "EMPLOYEE MANAGEMENT RELATIONS" IN ORDER TO DOCUMENT WHAT THE UNION'S
POSITION WAS. THERE AFTER, MEETINGS WERE HELD AT THE UNION'S REQUEST
WITH THE EMPLOYEES OF ALL THREE EXISTING SHIFTS TO TELL THEM OF THE
PROPOSALS. A LATTER MEETING WAS HELD WITH SOME OF THE SHIFT EMPLOYEES
ON OR ABOUT JUNE 15, 1978 WITH ACTING SHIFT MANAGER DON MITCHELL, AT
WHICH THE EMPLOYEES WERE PRESENTED WITH A SHIFT SCHEDULE, AND TOLD TO
SUBMIT THEIR PREFERENCES. FROM THIS, MANAGEMENT COULD ASSIGN EMPLOYEES
TO GIVEN SHIFTS. THE UNION'S LETTER DOCUMENTING ITS PRIOR PROPOSALS,
ALL OF WHICH HAD BEEN REPEATEDLY DISCUSSED AT THE EARLIER MEETINGS, WAS
NOT SUBMITTED UNTIL JUNE 19, 1978. THESE WERE THE ONLY PROPOSALS WHICH
NTEU SUBMITTED TO MANAGEMENT (TR. 44) OTHER THAN ONE PROPOSED SCHEDULE
SUBMITTED BY AN EMPLOYEE.
MANAGEMENT MADE ITS WRITTEN RESPONSE TO THE PROPOSALS ON JUNE 23,
1978. NO FURTHER NEGOTIATIONS WERE HAD, NOR DID NTEU RESORT TO THE
FEDERAL SERVICE IMPASSES PANEL. THE CHANGE IN TOURS OF DUTY WAS
IMPLEMENTED ON JULY 1 OR JULY 2, 1978, WITH THREE REGULARLY SCHEDULED
SHIFTS ON SUNDAYS. AS A RESULT OF THE IMPLEMENTATION, THE AMOUNT OF
OVERTIME UTILIZED IN THE COMPUTER BRANCH WAS DRASTICALLY REDUCED, WITH
OVERTIME BEING UTILIZED ONLY ON AN EMERGENCY BASIS. (TR. 136).
DISCUSSION AND CONCLUSIONS
I. DID THE ACTIVITY HAVE AN OBLIGATION TO BARGAIN OVER THE SUBSTANCE
OF ITS DECISION TO CREATE TOURS OF DUTIES AND REGULAR SHIFTS TO COVER
SUNDAY OPERATIONS IN THE COMPUTER BRANCH?
THERE IS NO DISPUTE THAT THE REASON FOR MAKING A CHANGE IN PAST
PRACTICE WAS THE EDICT FROM HIGHER AUTHORITY TO ELIMINATE OR
SUBSTANTIALLY REDUCE THE AMOUNT OF OVERTIME WORK. IN BOTH 1976 AND
1977, THESE OPERATIONS ACCOUNTED FOR APPROXIMATELY 10,000 OVERTIME HOURS
EACH YEAR.
COMPLAINANT CONTENDS THAT RESPONDENT HAD AN OBLIGATION TO BARGAIN
ABOUT ITS DECISION. RESPONDENT CONTENDS THAT ITS DECISION WAS
NON-NEGOTIABLE UNDER SECTION 11(B) OF THE ORDER.
TWO CASES DECIDED BY THE FEDERAL LABOR RELATIONS COUNCIL SET THE
EARLY PRECEDENT CONCERNING THE DUTY TO NEGOTIATE OVER THE SUBSTANCE OF
PROPOSED CHANGES OF TOURS OF DUTY. IN PLUM ISLAND ANIMAL DISEASE
LABORATORY, DEPARTMENT OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11,
THE COUNCIL HELD NON-NEGOTIABLE A UNION PROPOSAL WHICH WOULD HAVE
REQUIRED BARGAINING ON CHANGES IN TOURS OF DUTY, REASONING:
. . . (T)HE ESTABLISHMENT OR CHANGE OF TOURS OF DUTY WAS INTENDED TO
BE EXCLUDED FROM THE
OBLIGATION TO BARGAIN UNDER SECTION 11(B) (OF EXECUTIVE ORDER 11491).
. . . (T)HE AGENCY HAS THE RIGHT TO DETERMINE THE "STAFFING PATTERNS"
FOR ITS ORGANIZATION
AND FOR ACCOMPLISHING ITS MISSION. CLEARLY, THE NUMBER OF ITS WORK
SHIFTS OR TOURS OF DUTY,
AND THE DURATION OF THE SHIFTS, COMPRISE AN ESSENTIAL AND INTEGRAL
PART OF THE "STAFFING
PATTERNS" NECESSARY TO PERFORM THE WORK OF THE AGENCY. FURTHER, THE
SPECIFIC RIGHT OF AN
AGENCY TO DETERMINE THE "NUMBER, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES" ASSIGNED TO A
SHIFT OR TOUR OF DUTY, AS PROVIDED IN SECTION 11(B), OBVIOUSLY
SUBSUMES THE AGENCY'S RIGHT TO
FIX OR CHANGE THE NUMBER AND DURATION OF THOSE SHIFTS OR TOURS.
THE COUNCIL REFINED THIS HOLDING IN FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON AND U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH
CAROLINA, FLRC NO. 71A-52(REPORT NO. 31, 1972) BY HOLDING THAT THE PLUM
ISLAND DOCTRINE APPLIED ONLY IN SITUATIONS WHERE THE AGENCY'S STAFFING
PATTERN WOULD BE AFFECTED. THE NEW TEST FASHIONED BY THE COUNCIL IN
THIS AND RELATED CASES IS WHETHER THE CHANGE IS INTEGRALLY RELATED AND
CONSEQUENTLY DETERMINATIVE OF THE NUMBERS, TYPES, AND GRADES OF
EMPLOYEES OR STAFFING PATTERNS. THIS TEST HAS BEEN APPLIED CONSISTENTLY
IN SUBSEQUENT CASES UNDER THE ORDER AND ESSENTIALLY HAS BEEN ADOPTED BY
THE AUTHORITY IN CASES ARISING UNDER SECTION 7106(B)(1) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. /7/
AS CORRECTLY POINTED OUT BY RESPONDENT IN ITS BRIEF, IN SUBSEQUENT
CASES DECIDED BY THE COUNCIL AND THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, THE DISTINCTION WAS MADE BETWEEN
ESTABLISHING OR CHANGING SHIFTS AND/OR TOURS OF DUTY (NON-NEGOTIABLE)
AND MERELY CHANGING CERTAIN EMPLOYEES' WORK DAYS OR HOURS, AND ASSIGNING
THEM TO GIVEN SHIFTS (NEGOTIABLE UNDER 11(A)).
THE FACTS OF THIS CASE CLEARLY DEMONSTRATE THAT THE ESTABLISHMENT OF
NEW TOURS OF DUTY COULD NOT BE ACCOMPLISHED WITHOUT FIRST DECIDING THE
NUMBERS OF EMPLOYEES REQUIRED TO WORK ON SUNDAYS. ALTHOUGH THE CHANGE
WAS REQUIRED TO REDUCE OVERTIME PAY IT ALSO HAD THE EFFECT OF INCREASING
PREMIUM PAY. THE AGENCY THEREFORE HAD TO DETERMINE ITS STAFFING PATTERN
WITH ONE EYE ON THE AMOUNT OF WORK THAT NEEDED TO BE ACCOMPLISHED ON
WEEKENDS, AND ONE EYE ON ITS BUDGETARY LIMITATIONS. I CONCLUDE THAT THE
DECISION TO ESTABLISH NEW TOURS OF DUTY WAS INTEGRALLY RELATED TO AND
DETERMINATIVE OF THE STAFFING PATTERN REQUIRED, ESPECIALLY THE NUMBERS
OF EMPLOYEES INVOLVED. /8/ THEREFORE, I FIND THAT RESPONDENT DID NOT
HAVE AN OBLIGATION TO BARGAIN ABOUT ITS DECISION IN THIS CASE.
II. DID THE RESPONDENT NEGOTIATE IN GOOD FAITH WITH THE UNION
CONCERNING IMPACT AND IMPLEMENTATION?
THERE IS NO DISPUTE THAT RESPONDENT NOTIFIED THE UNION OF ITS INTENT
TO CHANGE THE TOURS OF DUTY. THIS WAS DONE ON OR ABOUT MAY 24 WHEN
HENRY PATRICK SO INFORMED NTEU STEWARD MARY LOCASCIO. ON THE SAME DATE
THE UNION SUBMITTED A WRITTEN REQUEST TO BARGAIN. ALSO, THERE IS NO
DISPUTE THAT A SERIES OF MEETINGS WERE HELD BETWEEN MAY 25 AND JUNE 9 AT
WHICH IMPACT AND IMPLEMENTATION WERE DISCUSSED.
THE ISSUE TO BE RESOLVED IS WHETHER THESE MEETINGS AND THE
DISCUSSIONS THAT TOOK PLACE CONSTITUTED "NEGOTIATIONS" SUFFICIENT TO
HAVE SATISFIED THE RESPONDENT'S OBLIGATION TO BARGAIN ABOUT IMPACT AND
IMPLEMENTATION. REGARDLESS OF HOW THE PARTIES OR PARTICIPANTS
"CHARACTERIZED" THESE MEETINGS, THE QUESTION IS WHETHER OR NOT
RESPONDENT FULFILLED ITS OBLIGATIONS UNDER THE ORDER.
COMPLAINANT CONTENDS THAT THESE MEETINGS "ONLY CONCERNED THE
POTENTIAL IMPACT OF NEW TOURS OF DUTY ON BARGAINING UNIT EMPLOYEES," AND
BECAUSE ACTIVITY DID NOT HAVE A CONCRETE PROPOSAL TO OFFER, THESE
MEETINGS DID NOT RISE TO THE LEVEL OF BEING "NEGOTIATIONS." /9/ IN MY
OPINION, COMPLAINANT'S CONTENTION IS NOT SUPPORTED BY THE EVIDENCE.
IT HAS BEEN CONSISTENTLY HELD BY THE ASSISTANT SECRETARY, STARTING
WITH THE DECISION IN NASA, KENNEDY SPACE CENTER, A/SLMR NO. 223(1972), 2
A/SLMR 566, 569, THAT IF WHAT TAKES PLACE BETWEEN THE PARTIES ACTUALLY
AMOUNTS TO BARGAINING OR NEGOTIATIONS, THE OBLIGATION TO BARGAIN UNDER
THE EXECUTIVE ORDER WILL HAVE BEEN MET. SEE ALSO OFFICE OF ECONOMIC
OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 251(1973); 3
A/SLMR 128. THUS, IF MANAGEMENT CONSULTS WITH UNION OFFICIALS (SUCH AS
A CHAPTER PRESIDENT OR A STEWARD) WITH AN "OPEN MIND," SEEKS INPUT IN
THE FORM OF COMMENTS OR PROPOSALS ON THE SUBJECT IN QUESTION, AND MAKES
CERTAIN CONCESSIONS TO THE UNION, THERE IS NO QUESTION THAT BARGAINING
OR NEGOTIATIONS HAVE TAKEN PLACE. SOCIAL SECURITY ADMINISTRATION,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, MID-AMERICAN PROGRAM
CENTER, A/SLMR RULING ON REQUEST FOR REVIEW NO. 414(1974); MARE ISLAND
NAVAL SHIPYARD, VILLEJO, CALIFORNIA, A/SLMR RULING ON REQUEST FOR REVIEW
NO. 600(1975); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, WESTERN PROGRAM CENTER, SAN FRANCISCO,
CALIFORNIA, A/SLMR NO. 501(1975); 5 A/SLMR 225; DUGWAY PROVING
GROUND, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE, DUGWAY, UTAH,
A/SLMR NO. 511(1975), 5 A/SLMR 287; AND DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRANCH OFFICE, ANGLETON,
TEXAS, A/SLMR NO. 982(1978), 8 A/SLMR 170.
THE ACTIVITY'S BARGAINING OBLIGATION IN THE INSTANT MATTER WAS TO
NEGOTIATE OVER THE IMPACT AND IMPLEMENTATION OF ITS DECISION TO CHANGE
THE TOURS OF DUTY IN THE COMPUTER BRANCH TO COVER ITS SUNDAY OPERATIONS
ON A REGULAR BASIS. MANAGEMENT OFFICIALS MET ON SEVERAL OCCASIONS WITH
JUDY OSLAGER, PRESIDENT OF NTEU CHAPTER 99, AND JOAN SHERIDAN AND MARIE
LOCASCIO, NTEU STEWARDS, BETWEEN MAY 26, 1978 AND JUNE 9, 1978. IN AT
LEAST THREE AND IN POSSIBLY FIVE OF THESE MEETINGS, MANAGEMENT CONSULTED
THE UNION CONCERNING ITS COMMENTS AND PROPOSALS ABOUT HOW TO IMPLEMENT
THE CHANGE. SCHEDULES, SHIFTS, ROTATIONS, WEEKENDS, VOLUNTEERS,
VACATIONS, SUPPORT COVERAGE, AND FLEXI-TIME WERE SOME OF THE TOPICS
DISCUSSED. THAT THERE WERE SEVERAL BARGAINING UNIT EMPLOYEES PRESENT AT
THESE MEETINGS DOES NOT CHANGE THE NATURE OF THE MEETINGS, AS THESE
EMPLOYEES WERE PRESENT AT THE UNION'S REQUEST (TR. 48, 117). THREE
UNION PROPOSALS WERE ACTED UPON FAVORABLY BY MANAGEMENT. FIRST, AFTER
AT LEAST ONE OF MANAGEMENT'S SCHEDULES MET WITH STRONG OPPOSITION
BECAUSE IT WOULD REQUIRE SOME BRANCH EMPLOYEES TO REGULARLY WORK BOTH
DAYS OF A WEEKEND, MANAGEMENT DISCARDED ALL PROPOSED SCHEDULES WITH A
SIMILAR FRAMEWORK. SECOND, NTEU EXPRESSED A PREFERENCE FOR ROTATING, AS
OPPOSED TO FIXED, SHIFTS, SO THAT NO EMPLOYEE WOULD BE REQUIRED TO WORK
SUNDAYS ALL THE TIME. ALTHOUGH A FIXED SCHEDULE IS MORE ADVANTAGEOUS
FROM A MANAGEMENT STANDPOINT, THE COMPUTER BRANCH AGREED THAT THE NEW
TOURS OF DUTY WOULD BE STAFFED WITH ROTATING SHIFTS. THIRD, WHEN THE
UNION REQUESTED THAT THE THREE SUNDAY SHIFTS BE STAFFED ENTIRELY WITH
VOLUNTEERS, MANAGEMENT UNDERTOOK A CANVASS TO SOLICIT VOLUNTEERS FOR
SUNDAYS. ALTHOUGH INSUFFICIENT VOLUNTEERS WERE FOUND, MANAGEMENT DID
ALLOW THE EMPLOYEES TO SET FORTH THEIR SHIFT PREFERENCES AND TO TRADE OR
SWAP SHIFTS IF THEY COULD TO AVOID SUNDAY WORK.
FROM MY REVIEW OF THE MEETINGS CONDUCTED BETWEEN THE PARTIES, I
CONCLUDE THAT RESPONDENT FULFILLED ITS OBLIGATION TO BARGAIN ABOUT
IMPACT AND IMPLEMENTATION. WHEN RESPONDENT, ON JUNE 6, REQUESTED
COMPLAINANT TO SUBMIT WRITTEN PROPOSALS, THE PURPOSE OBVIOUSLY WAS TO
DOCUMENT WHAT HAD TRANSPIRED TO DATE. I REJECT THE UNION'S ARGUMENT
THAT I SHOULD IGNORE AT LEAST 4 MEETINGS BETWEEN MAY 24 AND JUNE 6 AND
VIEW THIS CASE AS IF NOTHING HAPPENED PRIOR TO THE UNION'S WRITTEN
PROPOSALS OF JUNE 19, THE SUBMISSION OF WHICH WAS DELAYED UNTIL SHORTLY
BEFORE THE TARGET DATE FOR IMPLEMENTATION. RESPONDENT WAS LEFT WITH
LITTLE CHOICE BUT TO PROMPTLY RESPOND IN THE MANNER THAT IT DID,
DOCUMENTING ITS PREVIOUSLY STATED POSITION ON EACH OF THE "PROPOSALS"
SUBMITTED BY THE UNION.
AS POINTED OUT IN RESPONDENT'S EXCELLENT BRIEF, THE BARGAINING
INCLUDED SOME CONCESSION ON RESPONDENT'S PART AND TO SOME EXTENT "BORE
FRUIT" FOR THE UNION. THE FACT THAT THE UNION WAS NOT SUCCESSFUL IN
PERSUADING RESPONDENT FROM MAKING ANY CHARGE AT ALL, IS OF NO
CONSEQUENCE. RESPONDENT CORRECTLY NOTIFIED THE UNION THAT IT PROPOSED
TO INSTITUTE NEW TOURS OF DUTY; THERE WAS BARGAINING; /10/ AN IMPASSE
OCCURRED; AND THE DETAILS WERE SUMMARIZED AND DOCUMENTED IN WRITING.
THE UNION DID NOT RESORT TO THE FEDERAL SERVICE IMPASSE PANEL. THE
RESPONDENT WAS ENTITLED TO IMPLEMENT ITS PROPOSED CHANGES. /11/
IN SUMMARY, I CONCLUDE THAT THE EVIDENCE, WHEN VIEWED IN ITS
ENTIRETY, SIMPLY DOES NOT SUPPORT A FINDING THAT RESPONDENT FAILED TO
FULFILL ITS OBLIGATIONS UNDER THE ORDER TO BARGAIN WITH THE UNION ABOUT
THE IMPACT AND IMPLEMENTATION OF ITS NON-NEGOTIABLE DECISION TO CHANGE
THE TOURS OF DUTY.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT THE COMPLAINT
HEREIN BE DISMISSED IN ITS ENTIRETY.
FRANCIS E. DOWD.
ADMINISTRATIVE LAW JUDGE
DATED: MAY 15, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE PRESENT CASE IS DECIDED ON THE BASIS OF E.O. 11491, AS
AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT. THE DECISION
AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ IN VIEW OF THE AUTHORITY'S DECISION HEREIN, IT IS NOT NECESSARY
FOR THE AUTHORITY TO REACH THE ISSUE OF WHETHER RESPONDENT DISCHARGED
ITS OBLIGATION TO BARGAIN ON MATTERS OF IMPACT AND IMPLEMENTATION, SINCE
IT IS CLEAR THAT RESPONDENT DID NOT MEET ITS OBLIGATION TO BARGAIN AS TO
ANY NEGOTIABLE MATTER RELATING TO THE DECISION ITSELF.
/3/ HEREIN REFERRED TO AS COMPLAINANT, UNION OR NTEU.
/4/ HEREIN REFERRED TO AS RESPONDENT, ACTIVITY OR BSC.
/5/ IN ITS POST-HEARING BRIEF (P. 11, FN.3), COMPLAINANT MOVED FOR
THE FIRST TIME TO AMEND THE COMPLAINT TO ALLEGE AN ADDITIONAL VIOLATION
OF SECTION 19(A)(1) AND (6) BASED UPON RESPONDENT'S ALLEGED BY-PASSING
OF THE UNION AND DEALING DIRECTLY WITH EMPLOYEES. THE MOTION IS DENIED.
IN ACCORDANCE WITH WELL-ESTABLISHED CASE LAW, THE MOTION IS HEREBY
DENIED AS THE AMENDMENT IS NOT BASED UPON FACTS ALLEGED IN THE COMPLAINT
AND THE ISSUE WAS NOT RAISED OR LITIGATED AT THE HEARING. UNITED STATES
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE
TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106, 1 A/SLMR 490;
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, A/SLMR NO.
136, 2 A/SLMR 87; INTERNAL REVENUE SERVICE, WILMINGTON DELAWARE
DISTRICT, A/SLMR NO. 516.
/6/ TO THE MAXIMUM EXTENT POSSIBLE, I HAVE ADOPTED VERBATIM THE
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED IN THE
BRIEFS. FURTHER, UPON DUE CONSIDERATION, AND THERE BEING NO OBJECTION,
RESPONDENT'S MOTION TO CORRECT THE TRANSCRIPT IS GRANTED.
/7/ NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND INTERNAL REVENUE
SERVICE, KANSAS CITY SERVICE CENTER, 2 FLRA NO. 106(SEPT. 13, 1979);
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO, 2 FLRA
NO. 78(FEBRUARY 4, 1980).
/8/ DEPARTMENT OF NAVY, NAVAL PLANT REPRESENTATIVE OFFICE, A/SLMR NO.
486, 5 A/SLMR 125; VETERANS ADMINISTRATION HOSPITAL, SHERIDAN, WYOMING,
A/SLMR NO. 952, 7 A/SLMR 1077; HEADQUARTERS, 63D AIR BASE GROUP (MAC),
A/SLMR NO. 781, 6 A/SLMR 679; VETERANS ADMINISTRATION HOSPITAL,
NORTHPORT, N.Y., A/SLMR NO. 824, 7 A/SLMR 321; VETERANS ADMINISTRATION
HOSPITAL, LINCOLN, NEBRASKA, A/SLMR NO. 1083, 8 A/SLMR 787.
/9/ A SIMILAR CONTENTION WAS MADE BY NTEU IN ANOTHER IRS CASE AND
REJECTED. SEE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT OFFICE, A/SLMR NO. 962, 8 A/SLMR 40, 46.
/10/ IN SUPPORT OF ITS POSITION, COMPLAINANT CITES U.S. ARMY
ELECTRONICS COMMAND, FORT MAMMOTH, NEW JERSEY, A/SLMR NO. 855, WHICH, ON
THE FACTS, PRESENTED A STRONG CASE FOR CONCLUDING THAT THE PARTIES HAD
NOT YET EXHAUSTED BARGAINING POSSIBILITIES OR REACHED IMPASSE. I REACH
A CONTRARY CONCLUSION AND FIND THE CITED CASE NOT TO BE APPLICABLE.
/11/ I AGREE WITH RESPONDENT THAT CASE NO. 30-08865(CA), INVOLVING
THE SAME PARTIES, PRESENTS A FACTUAL SITUATION SIMILAR TO THIS CASE.
HOWEVER, I DO NOT REGARD THE REGIONAL DIRECTOR'S DISMISSAL OF THAT
COMPLAINT AS PRECEDENT BINDING UPON ME.