[ v08 p604 ]
08:0604(111)CA
The decision of the Authority follows:
8 FLRA No. 111
FEDERAL CORRECTIONAL INSTITUTION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2052, AFL-CIO
Charging Party
Case No. 3-CA-861
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. THE JUDGE FURTHER FOUND THAT THE RESPONDENT HAD
NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDED DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. EXCEPTIONS
TO THE JUDGE'S DECISION AND ORDER WERE FILED BY THE RESPONDENT AND THE
CHARGING PARTY. THE GENERAL COUNSEL FILED A MOTION TO CORRECT THE
JUDGE'S ORDER SO AS TO INCLUDE A BARGAINING ORDER, AND THE RESPONDENT
FILED AN OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, AS
MODIFIED BELOW.
THE JUDGE CONCLUDED THAT THE RESPONDENT'S FAILURE AND REFUSAL TO
NEGOTIATE REGARDING THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING
CERTAIN CHANGES AND THE IMPACT THAT THOSE CHANGES HAD ON ADVERSELY
AFFECTED EMPLOYEES CONSTITUTED VIOLATIONS OF SECTION 7116(A)(5) AND (1)
OF THE STATUTE. THE CHANGES IMPLEMENTED BY THE RESPONDENT INVOLVED THE
RELOCATION OF A CORRECTIONAL OFFICER FROM A GUARD TOWER TO A MOBILE
PATROLMAN POSITION; THE ASSIGNMENT OF ONE CORRECTIONAL OFFICER AT THE
DORMITORIES TO WORK AT TWO DORMITORIES IN LIEU OF ASSIGNING ONE
CORRECTIONAL OFFICER TO EACH SEPARATE DORMITORY; AND THE ADDITION OF A
POSITION TO THE RECEIVING AND DISCHARGE UNIT. THE CHARGING PARTY HAD
REQUESTED BARGAINING OVER PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN
IMPLEMENTING THE CHANGES AND ON THE IMPACT OF THOSE CHANGES ON ADVERSELY
AFFECTED EMPLOYEES, BUT SUCH REQUESTS WERE DENIED BY THE RESPONDENT AS
INVOLVING NONNEGOTIABLE MATTERS. THE AUTHORITY ADOPTS THE JUDGE'S
FINDINGS AND CONCLUSION THAT THE RESPONDENT VIOLATED SECTION 7116(A)(5)
AND (1) OF THE STATUTE BY THE FOREGOING CONDUCT.
AS A REMEDY, THE JUDGE ORDERED THE RESPONDENT TO CEASE AND DESIST
FROM THE UNFAIR LABOR PRACTICES FOUND, AND TO POST THE CUSTOMARY NOTICE
TO ITS EMPLOYEES. THE JUDGE CONCLUDED, HOWEVER, THAT A STATUS QUO ANTE
REMEDIAL ORDER WAS NOT APPROPRIATE BECAUSE THE RESPONDENT WAS NOT
OBLIGATED TO BARGAIN AS TO THE DECISION TO TAKE PARTICULAR ACTION, BUT
WAS ONLY REQUIRED TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF
THE CHANGES. IN THIS REGARD, THE JUDGE RELIED ON CASES DECIDED UNDER
EXECUTIVE ORDER 11491, AS AMENDED.
IN DISCHARGING ITS RESPONSIBILITIES UNDER THE STATUTE, THE AUTHORITY
IS VESTED WITH WIDE DISCRETION TO FASHION APPROPRIATE REMEDIES FOR
VIOLATIONS OF ANY PROVISIONS OF THE STATUTE. /1/ THUS, CONTRARY TO THE
JUDGE'S CONCLUSION, STATUS QUO ANTE REMEDIES MAY BE ISSUED IN CERTAIN
REFUSAL TO BARGAIN CASES EVEN WHEN THE AGENCY'S DECISION ITSELF WAS NOT
NEGOTIABLE. WHERE, AS HERE, MANAGEMENT HAS EXERCISED ITS RESERVED
RIGHTS UNDER SECTION 7106 OF THE STATUTE WITHOUT FULFILLING ITS DUTY TO
BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE CONCERNING THE PROCEDURES IT
WILL OBSERVE IN THE EXERCISE THEREOF AND REGARDING APPROPRIATE
ARRANGEMENTS FOR BARGAINING UNIT EMPLOYEES ADVERSELY AFFECTED THEREBY,
PURSUANT TO SECTIONS 7106(B)(2) AND 7106(B)(3) OF THE STATUTE,
RESPECTIVELY, THE AUTHORITY ON OCCASION HAS ISSUED ORDERS REQUIRING A
RETURN TO THE STATUS QUO ANTE. /2/ HOWEVER, THE APPROPRIATENESS OF A
STATUS QUO ANTE REMEDY MUST BE DETERMINED ON A CASE-BY-CASE BASIS,
CAREFULLY BALANCING THE NATURE AND CIRCUMSTANCES OF THE PARTICULAR
VIOLATION AGAINST THE DEGREE OF DISRUPTION IN GOVERNMENT OPERATIONS THAT
WOULD BE CAUSED BY SUCH A REMEDY. /3/ ACCORDINGLY, IN DETERMINING
WHETHER A STATUS QUO ANTE REMEDY WOULD BE APPROPRIATE IN ANY SPECIFIC
CASE INVOLVING A VIOLATION OF THE DUTY TO BARGAIN OVER IMPACT AND
IMPLEMENTATION, THE AUTHORITY CONSIDERS, AMONG OTHER THINGS, (1)
WHETHER, AND WHEN, NOTICE WAS GIVEN TO THE UNION BY THE AGENCY
CONCERNING THE ACTION OR CHANGE DECIDED UPON; (2) WHETHER, AND WHEN,
THE UNION REQUESTED BARGAINING ON THE PROCEDURES TO BE OBSERVED BY THE
AGENCY IN IMPLEMENTING SUCH ACTION OR CHANGE AND/OR CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION
OR CHANGE; (3) THE WILLFULLNESS OF THE AGENCY'S CONDUCT IN FAILING TO
DISCHARGE ITS BARGAINING OBLIGATIONS UNDER THE STATUTE; (4) THE NATURE
AND EXTENT OF THE IMPACT EXPERIENCED BY ADVERSELY AFFECTED EMPLOYEES;
AND (5) WHETHER, AND TO WHAT DEGREE, A STATUS QUO ANTE REMEDY WOULD
DISRUPT OR IMPAIR THE EFFICIENCY AND EFFECTIVENESS OF THE AGENCY'S
OPERATIONS.
IN THE INSTANT CASE, AFTER CONSIDERING THE ABOVE MENTIONED FACTORS,
THE AUTHORITY FINDS THAT NO STATUS QUO ANTE REMEDY IS REQUIRED OR
NECESSARY IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE
STATUTE. RATHER, THE AUTHORITY CONCLUDES THAT A PROSPECTIVE BARGAINING
ORDER SHOULD FULLY REMEDY THE BARGAINING VIOLATION. IMPORTANTLY, THE
RECORD INDICATES THAT WHILE THE ASSIGNMENT AND STAFFING CHANGES
IMPLEMENTED BY THE RESPONDENT WERE DIRECTED TOWARDS ACCOMPLISHING THE
MISSION OF CONTROLLING THE INMATES AT THE CORRECTIONAL FACILITY AND
THEREBY INCREASING THE SECURITY SAFETY AND WELFARE OF THE STAFF, ONLY A
FEW OF THE APPROXIMATELY 110 CORRECTIONAL OFFICERS AT THE FACILITY WERE
DIRECTLY AFFECTED BY THE CHANGES. THUS, THE IMPACT ON EMPLOYEES WITHIN
THE BARGAINING UNIT IS MINIMAL. ACCORDINGLY, THE JUDGE'S ORDER IS
ADOPTED AS MODIFIED TO INCLUDE A BARGAINING ORDER WHICH WAS
INADVERTENTLY OMITTED.
ORDER
PURSUANT TO SECTION 7118 OF THE STATUTE AND SECTION 2423.29 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS THAT THE
FEDERAL PRISON SYSTEM, CORRECTIONAL INSTITUTION, PETERSBURG, VIRGINIA,
SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING WORK ASSIGNMENTS OF A CORRECTIONAL OFFICER FROM A GUARD
TOWER TO ANY NEW OR
ADDITIONAL CREATED POSITIONS, INCLUDING THAT OF A PERIMETER
PATROLMAN; ASSIGNING ONE
CORRECTIONAL OFFICER TO WORK AT TWO DORMITORIES IN LIEU OF ASSIGNING
ONE CORRECTIONAL OFFICER
TO EACH SEPARATE DORMITORY; AND ADDING A POSITION TO THE RECEIVING
AND DISCHARGE UNIT, AND
ASSIGNING AN ADDITIONAL OFFICER TO WORK FULL-TIME THEREAT, WITHOUT
FIRST AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY TO NEGOTIATE, UPON REQUEST, WITH
RESPECT TO THE PROCEDURES
WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGES AND
CONCERNING APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) NOTIFY AND BARGAIN IN GOOD FAITH WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2052, AFL-CIO, UPON REQUEST, CONCERNING THE PROCEDURES TO BE
OBSERVED IN IMPLEMENTING
THE CHANGED WORK ASSIGNMENTS AND RELOCATIONS OF BARGAINING UNIT
PERSONNEL, AND CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
CHANGES AND RELOCATIONS.
(B) POST AT ITS FACILITIES AT THE FEDERAL PRISON SYSTEM, CORRECTIONAL
INSTITUTION,
PETERSBURG, VIRGINIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE FEDERAL
LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE CHIEF
CORRECTIONAL SUPERVISOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES
TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF CORRECTIONAL
SUPERVISOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION III, IN WRITING, WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-861 IN ALL
OTHER RESPECTS BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON,
D.C., MAY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 CHANGE THE WORK ASSIGNMENTS OF A CORRECTIONAL OFFICER
FROM A GUARD TOWER TO THAT OF A PERIMETER PATROLMAN OR TO ANY OTHER NEW
OR ADDITIONALLY CREATED POSITION, ASSIGN ONE CORRECTIONAL OFFICER TO
WORK AT TWO DORMITORIES, IN LIEU OF ASSIGNING ONE OFFICER TO WORK AT
EACH SEPARATE DORMITORY, OR ADD A POSITION TO THE RECEIVING AND
DISCHARGE UNIT, WITHOUT FIRST AFFORDING THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2052, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
BARGAINING REPRESENTATIVE, UPON REQUEST, AN OPPORTUNITY TO NEGOTIATE
WITH RESPECT TO THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
IMPLEMENTING SUCH CHANGES AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED THEREBY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL NOTIFY AND BARGAIN IN GOOD FAITH WITH THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2052, AFL-CIO, UPON REQUEST, CONCERNING
THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING THE CHANGED WORK
ASSIGNMENTS AND RELOCATIONS OF BARGAINING UNIT PERSONNEL, AND CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
CHANGES AND RELOCATIONS.
(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, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE
ADDRESS IS: 1111 18TH STREET, N.W., WASHINGTON, D.C. 20036, AND WHOSE
TELEPHONE NUMBER IS: (202 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
FEDERAL PRISON SYSTEM,
CORRECTIONAL INSTITUTION,
PETERSBURG, VIRGINIA /4/
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2052
CHARGING PARTY
CASE NO.: 3-CA-861
WILLIAM C. OWEN, ESQUIRE
RONALD BROWN, ESQUIRE
FOR THE RESPONDENT
CLARA A. WILLIAMSON, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 23, 1980
BY THE ACTING REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C., A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY 24,
1980.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREIN CALLED THE ACT.) IT IS BASED UPON A CHARGE
FILED ON FEBRUARY 13, 1980 BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2052 (HEREIN CALLED THE UNION OR CHARGING PARTY)
AGAINST FEDERAL PRISON SYSTEM CORRECTIONAL INSTITUTION, PETERSBURG,
VIRGINIA (HEREIN CALLED THE EMPLOYER OR RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT ON OR ABOUT JANUARY 29,
1980, AFTER A PROPER REQUEST FROM THE UNION, THE RESPONDENT REFUSED TO
NEGOTIATE PROPOSED CHANGES IN ASSIGNMENT OF ITS CORRECTIONAL STAFF; AND
THAT RESPONDENT IMPLEMENTED SUCH CHANGES ON JANUARY 31, 1980. /5/ IT
WAS FURTHER ALLEGED THAT BY SUCH REFUSALS THE UNION WAS DENIED THE
OPPORTUNITY TO BARGAIN REGARDING THE IMPACT OF SUCH CHANGES ON
BARGAINING UNIT AS WELL AS THE METHODS AND PROCEDURES TO BE UTILIZED IN
IMPLEMENTING THE CHANGE-- ALL IN VIOLATION OF SECTIONS 7116(A)(1) & (5)
OF THE ACT.
RESPONDENT'S ANSWER, DATED JULY 15, 1980, DENIED THE ALLEGATIONS IN
THE COMPLAINT AND THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED. /6/
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS,
THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES, CLASS ACT,
WAGE BOARD, AND PROFESSIONAL, EMPLOYED BY RESPONDENT AT PETERSBURG,
VIRGINIA.
2. A MASTER COLLECTIVE BARGAINING AGREEMENT COVERING SUCH UNIT
EMPLOYEES BECAME EFFECTIVE ON JUNE 1, 1978, AND, BY ITS TERMS, REMAINED
IN EFFECT FOR 18 MONTHS. THE AGREEMENT, MADE AND ENTERED INTO BETWEEN
THE FEDERAL PRISON SYSTEM (BUREAU OF PRISONS & FEDERAL PRISON
INDUSTRIES, INC.) AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(COUNCIL OF PRISON LOCALS), CONTAINED AN AUTOMATIC RENEWAL CLAUSE
EXTENDING IT FOR 6 MONTHS.
3. THE MISSION OF THE CORRECTIONAL DEPARTMENT OF THIS INSTITUTION IS
THE SECURITY, SAFETY AND WELFARE OF THE STAFF. THERE ARE 110
CORRECTIONAL POSITIONS, AND IN ORDER TO OBTAIN NEW ONES, REQUESTS MUST
GO TO CONGRESS THROUGH THE REGIONAL OFFICE IN PHILADELPHIA. CAPTAIN,
CURD, WHO CAME TO RESPONDENT IN DECEMBER, 1979, IS IN CHARGE OF THE
CORRECTIONAL DEPARTMENT. HE IS EMPOWERED TO CHANGE AND ADD POSTS TO
FULFILL THE MISSION AS AFORESAID. IN ADDITION TO CORRECTIONAL OFFICERS,
THE BASIC JOB CATEGORIES INCLUDE CASEWORKERS, COUNSELORS AND MECHANICAL
SERVICE EMPLOYEES. CORRECTIONAL OFFICERS CONTROL THE INMATES THROUGH
SECURITY MEASURES, PATROLLING THE COMPOUND AND WORKING IN THE GUARD
HOUSE AND CONTROL CENTER. BOTH CASEWORKERS, WHO KEEP RECORDS OF PAROLE
HEARINGS AND THE LIKE, AND COUNSELORS ARE DEEMED OFFICE-TYPE WORKERS.
4. CORRECTIONAL OFFICERS ARE ROTATED QUARTERLY THROUGH THE VARIOUS
31 CORRECTIONAL POSTS, WHICH INCLUDE GUARD TIMES, DORMITORIES, FOOT
PATROLS, AT THE INSTITUTION. A ROSTER IS PREPARED UNDER THE DIRECTION
OF THE CAPTAIN, AND A ROSTER COMMITTEE INSURES THAT EMPLOYEES ARE
ROTATED ON A FAIR AND EQUITABLE BASIS. THE QUARTERLY ROSTER CONTAINS
THE NAMES OF THE OFFICERS OCCUPYING POSTS, AND IT INFORMS THEM WHERE
THEY WILL WORK IN THE FORTHCOMING QUARTER. THE NAMES OF EMPLOYEES ARE
PLACED OPPOSITE PARTICULAR POSITIONS ON THE ROSTER.
5. A ROSTER COMMITTEE OVERSEES THE EQUITABLE ASSIGNMENT OF OFFICERS.
PRIOR TO JANUARY, 1980 ONE UNION STEWARD AND ONE CORRECTIONAL
SUPERVISOR SERVED THEREIN. SUBSEQUENTLY CAPTAIN CURD DECIDED TO PUT
SEVERAL SUPERVISORS ON THE COMMITTEE. THE UNION OBJECTED AND ASKED FOR
EQUAL REPRESENTATION AT A FEBRUARY MEETING, BUT CURD REFUSED. THE
MARCH, 1980 ROSTER PROVIDED FOR SEVERAL SUPERVISORS AND ONE UNION
REPRESENTATIVE TO BE ON THE COMMITTEE.
6. IN THE LATTER PART OF JANUARY, 1980 CAPTAIN CURD CALLED JAMES
LONG, 2ND VICE-PRESIDENT OF THE UNION, TO HIS OFFICE. LONG NEGOTIATES
SHIFT SCHEDULES FOR FARM EMPLOYEES. HE IS NOT RESPONSIBLE FOR THE
CUSTODIAL ROSTER. A DISCUSSION ENSUED REGARDING PENDING GRIEVANCES. AT
THE END OF THE DISCUSSION CURD GAVE LONG A COPY OF THE PROPOSED ROSTER
FOR THE MARCH-MAY, 1980 QUARTER, WHICH WOULD BECOME EFFECTIVE ON MARCH
9, 1980. CURD EXPLAINED TO LONG THAT, APART FROM ELIMINATING A GS-7
POSITION AND CREATING A SUPERVISORY ONE AS A LIEUTENANT, THERE WOULD BE
SOME CHANGES IN RECEIVING AND DISCHARGE, THE CELLHOUSE, AND THE
COMPOUND. /7/
7. LONG GAVE THE ROSTER TO NATHANIEL NELSON, CUSTODIAL CORRECTIONAL
STEWARD, WHO IS THE UNION REPRESENTATIVE ON THE ROSTER COMMITTEE, AND
THE LATTER CALLED CURD TO INQUIRE WHY THE CAPTAIN DISCUSSED THE ROSTER
WITH LONG INSTEAD OF THE STEWARD. CURD INFORMED NELSON THAT SINCE LONG
WAS IN THE OFFICE HE TOLD THE LATTER ABOUT THE PROPOSALS, THAT HE HAD
THE AUTHORITY TO MAKE THE CHANGES AND THEY WOULD BE MADE. SEVERAL WEEKS
LATER CURD ASKED LONG WHAT HE THOUGHT ABOUT THE ROSTER. THE UNION
OFFICIAL REPLIED THAT IT WAS ESSENTIAL TO NEGOTIATE ON IT, AND CURD
STATED THERE WAS NOTHING TO NEGOTIATE SINCE THE ROSTER WOULD "STAND AS
IT IS."
8. TOWARD THE END OF JANUARY, 1980 ROBERT E. HOWARD, PRESIDENT OF
THE UNION, WAS TOLD BY A SUPERVISOR THAT CERTAIN CHANGES WERE BEING MADE
AT THE INSTITUTION, VIZ: THE ABANDONMENT OF TOWER 3, A REDUCTION IN THE
NUMBER OF COMPOUND PATROL OFFICERS, REQUIRING ONE CORRECTIONAL OFFICER
TO WORK TWO INMATE DORMITORIES, AND THE REDUCTION OF OVERTIME.
9. BY LETTER DATED JANUARY 29, 1980 ADDRESSED TO THE CHIEF
CORRECTIONAL SUPERVISOR FROM HOWARD, THE UNION PRESIDENT REQUESTED THAT
MANAGEMENT SEND HIM A COPY OF ALL PROPOSED CHANGES; THAT RESPONDENT
NEGOTIATE ALL SUCH CHANGES AFTER THE UNION REVIEWED SAME. SEVERAL DAYS
LATER, UPON BEING CALLED TO CURD'S OFFICE, HOWARD REPEATED THE UNION'S
DESIRE TO NEGOTIATE THE PROPOSED CHANGES. WHEREUPON THE EMPLOYER'S
REPRESENTATIVE INFORMED HOWARD THERE WAS NOTHING TO NEGOTIATE.
10. RECORD FACTS SHOW THAT WHEN CAPTAIN CURD ARRIVED FOR DUTY IN
DECEMBER, 1979, OF THE FOUR GUARD TOWERS AT THE INSTITUTION ONLY TOWERS
1 AND 2 WERE MANNED FULL TIME. TOWER 3 WAS MANNED ONE-THIRD TO ONE-HALF
THE TIME, AND TOWER 4 WAS STAFFED ONLY WHEN THE INMATES USED THE
BALLPARK. THE GUARD AT TOWER 3, WHEN NOT STATIONED THEREAT, WOULD FILL
IN ELSEWHERE AT THE COMPOUND. EFFECTIVE JANUARY 31, 1980 GUARD TOWER
NO. 3 WAS ABOLISHED. THE GS-7 POSITION WAS ELIMINATED, AND THE REGIONAL
OFFICER ESTABLISHED A GS-11 LIEUTENANT (SUPERVISOR) POSITION TO
INVESTIGATE CHARGES AND COMPLAINTS. WHEN THE TOWER MAN FROM NO. 3 WAS
TAKEN OFF THE ROSTER, RESPONDENT SUBSTITUTED A ROVING PATROL POST. A
MOBILE PATROLMAN WAS ASSIGNED TO PATROL AROUND THE PERIMETER, AND HIS
JOB FUNCTIONS OVERLAP THOSE OF THE OFFICER FORMERLY ASSIGNED TO TOWER
NO. 3.
PRIOR TO THE ABOLITION OF TOWER NO. 3 THIS POST WAS MANNED ON A THREE
SHIFT BASIS BY THE GS CORRECTIONAL OFFICERS. THE OFFICER WHO WORKED ON
THE SHIFTS AT 4:00 P.M.-12:00 A.M. AND 12:00 A.M.-8:00 A.M. RECEIVED
NIGHT DIFFERENTIAL PAY AT THE RATE OF 7% AND 10% ON THE RESPECTIVE
SHIFTS. CURD'S TESTIMONY REFLECTS THAT THE PERIMETER PATROLMAN REPLACED
THE OFFICER ON TOWER NO. 3; THAT BOTH THE TOWER 3 OFFICER AND THE
PERIMETER PATROLMAN WERE CONCERNED WITH SECURITY. FURTHER, HE TESTIFIED
THAT THE PERIMETER PATROL OFFICER WORKED THE SAME HOURS AS THE TOWER
OFFICER AND THUS NO NIGHT DIFFERENTIAL PAY WAS LOST.
11. PRIOR TO JANUARY 31, 1980 TWO COMPOUND PATROLMEN PATROLLED THE
INNER PART OF THE COMPOUND. THEY MOVED PROPERTY TO THE CELLHOUSE, TOOK
INMATES FROM THE COMPOUND FOR DISCIPLINE, MAINTAINED SWITCH WIRES, AND
RELIEVED DORM OFFICERS AT LUNCHTIME. ONE PATROLMAN WORKED FROM 4:00
P.M. TO 12:00 , MIDNIGHT. THE OTHER, WHO WAS DESIGNATED AS
"ACTIVITIES", WORKED FROM 2:00 P.M.-10:00 P.M., AND WORKED FOR A FEW
HOURS IN THE MAILROOM WHEN HIS SHIFT COMMENCED. CURD TESTIFIED THAT
SINCE JANUARY 31 THE ROSTER DESIGNATED TWO MEN AS COMPOUND PATROLMEN,
BOTH OF WHOM ARE FULL-TIME EMPLOYEES AND WORK 4:00 P.M.-12:00 MIDNIGHT.
/8/
12. IN SUPPORT OF ITS POSITION THAT OVERTIME WAS DIMINISHED AFTER
JANUARY 31, 1980, GENERAL COUNSEL ADDUCED EVIDENCE FROM HOWARD THAT
CASEWORKERS WERE REQUIRED TO RELIEVE CORRECTIONAL OFFICERS. HOWARD WAS
NOT AWARE THAT THE CASEWORKERS RELIEVED THESE OFFICERS BEFORE THE SAID
DATE, AND HE TESTIFIED THAT IF THEY DID SO IT WAS WITHOUT HIS KNOWLEDGE.
A MEMO WAS ISSUED BY THE EMPLOYER DATED JANUARY 25, 1980 TO
CORRECTIONAL SUPERVISORS ADVISING THEM THAT, TO COMBAT OVERTIME, /9/
CERTAIN POSTS (MOBILE PATROLMAN, CELLHOUSE OFFICER, R & D OFFICERS,
SECURITY OFFICERS) COULD BE VACATED IF THESE ARE EXTRA PEOPLE AVAILABLE.
CURD TESTIFIED THAT SOME OF THESE ITEMS HAVE BEEN IMPLEMENTED.
ALTHOUGH UNABLE TO SPECIFY WHICH ONES ARE IN EFFECT, HE STATED THEY WERE
EFFECTED ROUTINELY IN THE PAST.
13. THERE ARE TWO INMATE DORMITORIES AT THE INSTITUTION: MARYLAND
HALL & DELAWARE HALL. IN THE PAST A CORRECTIONAL OFFICER WAS ASSIGNED
TO EACH DORM. HIS DUTY IS TO MAINTAIN THE SECURITY OF THE DORMITORY BY
LOOKING OUT FOR THE SAFETY OF THE INMATES. THIS OFFICER ALSO HANDLES
PROPERTY IN THE DORMS, MAINTAINING SANITARY CONDITIONS, AND LOCATES
INMATES CALLED FOR REVIEWS. IN FEBRUARY, 1980 THE INSTITUTION POSTED
ITS MARCH-MAY, 1980 ROSTER WHICH PROVIDED THAT ONE CORRECTIONAL OFFICER
WOULD BE ASSIGNED TO WORK BOTH DORMS. COMMENCING ON APRIL 27, 1980 THE
RESPONDENT IMPLEMENTED THIS CHANGE IN RESPECT TO MANNING THOSE
BUILDINGS. THE MARYLAND HALL OFFICER, INSTEAD OF WORKING 7:30 A.M.-4:00
P.M. DAILY, WAS ASSIGNED TO WORK THEREAT FROM 12:00 NOON TO 8:30 P.M.
AFTER 4:00 P.M. HE TOOK UP A POSITION OUTSIDE OF THE RECREATION AREA.
THE DELAWARE HALL OFFICER WAS ASSIGNED TO WORK HIS UNIT AND THE MARYLAND
HALL IN THE MORNINGS. THE MEMO ISSUED ON APRIL 18 SET FORTH THIS
CHANGE. IT STATED THAT THERE MAY BE TIMES ON WEEKENDS WHEN COUNSELORS
COULD PROVIDE COVERAGE FOR THAT VACATED POST AT THE MARYLAND HALL; THAT
ARMED VEHICLE COVERAGE WILL BE PROVIDED BY VACATING THE LATE R & D
OFFICER POSITION FROM 5:00 P.M.-8:00 P.M.; AND THAT WEEKEND AND HOLIDAY
COVERAGE WILL BE PROVIDED VACATING A COMPOUND PATROLMAN POST.
14. PRIOR TO FEBRUARY, 1980 THE ROSTER CONTAINED ONE POSITION IN THE
RECEIVING AND DISCHARGE (R & D) UNIT. THIS PARTICULAR UNIT WAS
RESPONSIBLE FOR RECEIVING INMATES AND RELEASING THEM UPON DIRECTION, AS
WELL AS RETURNING THEIR PROPERTY UPON RELEASE FROM THE INSTITUTION. ONE
OFFICER WORKED THEREAT REGULARLY FROM 7:30 A.M.-4:00 P.M. IN ORDER TO
COMPLETE HIS DUTIES THIS OFFICER WAS ALSO REQUIRED TO WORK ADDITIONAL
HOURS WHEN BUSES CAME IN WITH INMATES. CURD RECEIVED COMPLAINTS THAT IT
WAS TOO MUCH WORK FOR ONE PERSON TO HANDLE THIS JOB ON A REGULAR BASIS.
ACCORDINGLY, HE POSTED ANOTHER OFFICER'S POSITION AND PROVIDED FOR AN
ADDITIONAL PERSON AS A FULL TIME OFFICER IN THIS UNIT. /10/
15. RECORD FACTS SHOW THAT THERE ARE NOW ON THE ROSTER FOUR MORE
GS-7 CORRECTIONAL OFFICERS THAN WHEN THE GS-7 TOWER GUARD WAS ELIMINATED
ON JANUARY 31, 1980. FURTHER, THE MARCH, 1980 ROSTER REFLECTED AN
ADDITIONAL NON-SUPERVISORY OFFICER THAN PREVIOUSLY. MOREOVER, THE
RECORD DOES NOT ESTABLISH PRECISE LOSS OF OVERTIME WITH RESPECT TO THE
CORRECTIONAL OFFICER AS A RESULT OF THE CHANGE IN POST POSITIONS. IN
RESPECT TO THE IMPACT OF ANY CHANGES UPON SECURITY AT THE INSTITUTION,
THE RECORD CONSISTS OF TESTIMONY BY THE UNION OFFICIAL THAT THEY
BELIEVED THESE CHANGES WOULD AFFECT SECURITY OF BOTH INMATE AND
OFFICERS.
CONCLUSIONS
IT IS CONTENDED BY GENERAL COUNSEL THAT RESPONDENT VIOLATED THE ACT
BY INSTITUTING CERTAIN UNILATERAL CHANGES IN WORKING CONDITIONS. WHILE
CONCEDING THAT THE EMPLOYER HAD THE OBLIGATION TO NEGOTIATE THE DECISION
TO MAKE SUCH CHANGES, THE GENERAL COUNSEL INSISTS RESPONDENT WAS
REQUIRED TO BARGAIN REGARDING THE IMPACT AND IMPLEMENTATION THEREOF.
THE PRINCIPAL CHANGES, OVER WHICH THE RESPONDENT SHOULD HAVE ALLEGEDLY
BARGAINED WITH THE UNION, CONCERN (A) DISESTABLISHMENT OF TOWER 3 WHICH
INVOLVED THE ELIMINATION OF THE GS-7 GUARD POSITION AND THE
ESTABLISHMENT OF A MOBILE PATROLMAN; (B) THE CREATION OF A GS-11
SUPERVISORY POSITION TO INVESTIGATE CHARGES AND COMPLAINTS; (C) A
REDUCTION IN COMPOUND PATROLMEN FROM TWO TO ONE; (D) THE DISCONTINUANCE
OF ASSIGNING ONE CORRECTIONAL OFFICER TO EACH DORMITORY (MARYLAND AND
DELAWARE HALLS), AND REQUIRING, AFTER APRIL 27, 1980, THAT ONE OFFICER
WORK BOTH DORMS; (E) ADDING A POSITION TO THE RECEIVING AND DISCHARGE
UNIT SO THAT, AFTER JANUARY, 1980, TWO CORRECTIONAL OFFICERS WORKED
THEREAT. BY UNILATERALLY EFFECTING THESE CHANGES, RESPONDENT ALLEGEDLY
HAS VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE ACT. /11/
IN RESPECT TO THE CHANGES MADE AT TOWER 3, RESPONDENT MAINTAINS THESE
MOVES DID NOT CONSTITUTE CHANGES IN WORKING CONDITIONS. IT INSISTS NO
NEW DUTIES WERE IMPOSED ON CORRECTIONAL OFFICERS, NO NEW FUNCTIONS WERE
ADDED AND NO PRACTICES WERE ALTERED. AS SUCH, THE CHANGE MERELY
RESHUFFLED POSTS. IN RESPECT TO THE OTHER REVISIONS, THE EMPLOYER
CONTENDS THEY WERE ROUTINE ADJUSTMENTS WHICH WERE AN INTEGRAL PART OF
ITS PAST PRACTICE; THAT SUCH CHANGES ARE THE PRACTICE SO THAT, IN
REALITY, NO CHANGES IN WORKING CONDITIONS TOOK PLACE.
RESPONDENT ALSO TAKES THE POSITION THAT, IN ANY EVENT, ANY CHANGES
INSTITUTED HAD NO ADVERSE IMPACT UPON THE UNIT EMPLOYEES, AND THEREFORE
NO UNFAIR LABOR PRACTICE FINDING IS WARRANTED. /12/
TOWER NO. 3-- REVISIONS AND REASSIGNMENT OF PERSONNEL
WHILE IT IS RECOGNIZED THAT RESPONDENT'S PAST PRACTICE INVOLVED
ROTATING OFFICERS THROUGH CORRECTIONAL POSTS, I DO NOT AGREE THAT ITS
ACTION WITH REGARD TO TOWER NO. 3 CONSTITUTED NO CHANGE IN WORKING
CONDITIONS. IN THIS INSTANCE, ON JANUARY 31, THE EMPLOYER NOT ONLY
ABOLISHED THIS PARTICULAR TOWER-- WHICH DECISION MIGHT NOT BE
CHALLENGED, BUT IT CREATED A PERIMETER PATROLMAN TO REPLACE THE TOWER
GUARD. THIS CREATION RESULTED IN MORE THAN A ROTATIONAL MANOEUVRE. NO
PERIMETER GUARD, IN LIEU OF AN OFFICER AT THIS TOWER, HAD PREVIOUSLY
BEEN ON THE ROSTER. FURTHER, THE PERIMETER PATROLMAN'S WORKING
CONDITIONS, I.E. THE LOCATION OF HIS GUARD DUTIES, EXTENT OF HIS
PATROLLING, AND SCOPE OF FUNCTIONS, CONTRAST WITH THE CONDITIONS
SURROUNDING A GUARD OFFICER CONFINED TO THE TOWER.
IT MAY WELL BE, AS RESPONDENT ARGUES, THAT THE NEW POST INVOLVES
SECURITY FUNCTIONS, AS WAS TRUE IN REGARD TO THE TOWER OFFICER, AND NO
CHANGE IN HOURS OR PAY RESULTED FROM THE ABOLITION OF TOWER NO. 3.
NEVERTHELESS, THE REASSIGNMENT OF THIS OFFICER INVOLVED A RELOCATION OF
WORK PERFORMANCE. IN AIRCRAFT, FIRE AND RESCUE DIVISION, AIR OPERATIONS
DEPARTMENT, NAVAL AIR STATION, NORFOLK, VIRGINIA, 3 FLRA NO. 18 THE
CHANGE IN WORK SITE FOR HELIPORT CREWS WAS HELD TO HAVE EFFECTED A
CHANGE IN WORKING CONDITIONS. SEE ALSO DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, A/SLMR NO. 1045. IN EACH
INSTANCE THE EMPLOYER WAS OBLIGATED TO BARGAIN WITH THE UNION REGARDING
THE IMPACT AND IMPLEMENTATION OF THE CHANGE OR REASSIGNMENT.
THE ESTABLISHMENT OF A PERIMETER PATROLMAN POST HEREIN, WITH ITS
DIFFERENT WORKSITE AND SCOPE OF OPERATIONS, CAN, IN MY OPINION, IMPACT
UPON THE PARTICULAR OFFICER WHO MANNED THE GUARD TOWER. MOREOVER, THE
TYPE OF OPERATION AFFECTS THE SECURITY AT THE INSTITUTION SINCE THE
PERIMETER PATROL DIFFERS SIGNIFICANTLY FROM A GUARD WATCH. IN THE CASE
AT BAR THE RECORD REFLECTS THAT RESPONDENT REFUSED TO NEGOTIATE AS TO
ANY OF THE CHANGES OR REVISIONS WHICH IT INSTITUTED AFTER JANUARY 31,
1980. CAPTAIN CURD CLEARLY EXPRESSED THIS REFUSAL TO THE UNION.
ACCORDINGLY, AND SINCE I CONCLUDE THE CHANGES IN SECURITY AT TOWER NO.
3, WITH THE ATTENDANT CREATION OF A NEW PERIMETER PATROLMAN, WAS A
CHANGE IN WORKING CONDITIONS, I FIND THAT THE EMPLOYER RAN AFOUL OF THE
ACT. RESPONDENT'S FAILURE AND REFUSAL TO BARGAIN REGARDING THE IMPACT
AND IMPLEMENTATION OF THIS CHANGE VIOLATED SECTIONS 7116(A)(1) AND (5)
THEREOF.
ESTABLISHMENT OF GS-11 SUPERVISOR'S POSITION
ONE OF THE CHANGES INSTITUTED BY RESPONDENT CONCERNED A NEW
CORRECTIONAL POSITION-- A GS-11 LIEUTENANT WHOSE FUNCTION INVOLVED
INVESTIGATING CHARGES AND COMPLAINTS. THE RECORD REVEALS THAT THIS IS A
SUPERVISORY CLASSIFICATION. A READING OF THE AUTHORITY'S VIEWS WITH
REGARD TO MANAGEMENT'S OBLIGATION WHEN SUCH A POSITION IS FILLED
CONSTRAINS ME TO CONCLUDE AN EMPLOYER HAS NO DUTY TO BARGAIN THEREON.
IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. DEPARTMENT OF LABOR, WASHINGTON,
D.C., O-NG-14, THE UNION PROPOSED THAT THE EMPLOYER FOLLOW THE MERIT
PROMOTION PLAN WHEN FILLING SUPERVISORY OR MANAGEMENT POSITIONS WITH
BARGAINING UNIT EMPLOYEES. THE AUTHORITY CONCLUDED THE PROPOSAL WAS
OUTSIDE THE SCOPE OF THE DUTY TO BARGAIN. SINCE THE POSITION IS OUTSIDE
THE BARGAINING UNIT, IT WAS HELD THAT THE PROPOSAL DOES NOT RELATE TO
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
IN VIEW OF THE FACT THAT THE AUTHORITY DECIDED THAT THE AGENCY HAS NO
OBLIGATION TO BARGAIN OVER MATTERS RELATING TO NON-BARGAINING UNIT
POSITIONS, I FIND NO VIOLATION HEREIN BASED ON RESPONDENT'S REFUSAL TO
BARGAIN REGARDING THE IMPACT OR IMPLEMENTATION OF ITS GS-11 LIEUTENANT'S
SUPERVISORY POSITION.
REDUCTION IN COMPOUND PATROLMEN
BASED ON MY FINDINGS OF FACT, AS HEREIN SET FORTH, THE COMPOUND HAS
BEEN PATROLLED BY TWO PATROLMEN BOTH BEFORE AND AFTER JANUARY 31, 1980.
ALTHOUGH THE ROSTER PRIOR TO THAT DATE DESIGNATED THE PATROLMAN AS
"ACTIVITIES", IT APPEARS BOTH INDIVIDUALS PERFORMED THE SAME DUTIES.
SUBSEQUENT TO THE AFORESAID DATE RESPONDENT DESIGNATED BOTH OFFICERS AS
PATROLMEN. ACCORDINGLY, I CONCLUDE THERE WAS NO REAL CHANGE IN RESPECT
TO THE NUMBER AND DUTIES OF COMPOUND PATROLMEN. THE CHANGE CONSISTED
MERELY OF A DESIGNATION ON THE ROSTER DIFFERENT FROM AN EARLIER ONE. AS
SUCH, I FIND NO SUBSTANTIAL CHANGE AND CONCLUDE NO VIOLATION EXISTS
HEREIN BY REASON THEREOF.
ASSIGNMENT OF ONE OFFICER TO WORK TWO DORMITORIES
COMMENCING ON APRIL 27, 1980 RESPONDENT ALTERED ITS COVERAGE OF THE
MARYLAND AND DELAWARE HALLS BY THE CORRECTIONAL OFFICERS. WHEREAS EACH
DORM HAD BEEN ATTENDED BY AN OFFICER WHO WAS RESPONSIBLE FOR ITS
SECURITY AND CERTAIN MAINTENANCE, AFTER SAID DATE ONE CORRECTIONAL
OFFICER COVERED BOTH DORMITORIES. THIS OFFICER WAS REQUIRED TO MAINTAIN
SECURITY AT BOTH SITES, LOCATE INMATES WHEN NECESSARY, HANDLE SANITARY
PROBLEMS ARISING AT EACH DORM, AND LOCK UP ONE HALL WHEN SECURING THE
OTHER. THUS IT BECOMES CLEAR THAT THE REDUCTION OF COVERAGE FOR THE
DORM IMPOSED ADDITIONAL DUTIES AND BURDENS UPON THE REMAINING
CORRECTIONAL OFFICER. MOREOVER, THE HOURS WERE ALSO CHANGED AFTER APRIL
27 SO THAT THE OFFICER ATTENDING BOTH HALLS WORKED A DIFFERENT SCHEDULE.
THE ADDITIONAL RESPONSIBILITIES AND COVERAGE EFFECTED BY THIS CHANGE
INVOLVED MORE THAN A MERE ROTATION OF OFFICERS TO THE POSTS. ASSIGNING
ONE OFFICER TO WORK TWO HALLS, IN CONTRAST TO THE PAST PRACTICE OF
UTILIZING A SEPARATE OFFICER FOR EACH DORM, CONSTITUTED A DIRECT CHANGE
IN WORKING CONDITIONS.
ALTHOUGH THE BASIC CHANGE WITH REGARD TO THESE TWO DORMS MAY NOT BE
NEGOTIABLE, IT SEEMS CLEAR THAT RESPONDENT IS REQUIRED TO BARGAIN
REGARDING THE IMPACT AND IMPLEMENTATION THEREOF. IN COMPELLING ONE
OFFICER TO WORK TWO HALLS THE EMPLOYER HAS EFFECTED A CHANGE WHICH IS
SIGNIFICANT, AND ITS ADVERSE EFFECT UPON THE REMAINING OFFICER, BASED
UPON THE WORK DUTIES AND HOURS INVOLVED, APPEARS OBVIOUS TO THE
UNDERSIGNED. IT HAS BEEN HELD THAT REQUIRING EMPLOYEES TO WORK TWO
CONSECUTIVE SHIFTS RESULTS IN A SIGNIFICANT EFFECT UPON UNIT EMPLOYEES.
THUS, CHANGING HOURS OF DUTY FOR THREE SUCH INDIVIDUALS IMPOSED A DUTY
UPON THE EMPLOYER TO BARGAIN OVER IMPACT AND IMPLEMENTATION. INTERNAL
REVENUE SERVICE, AUSTIN SERVICE CENTER, 2 FLRA NO. 97. ACCORDINGLY, AND
INASMUCH AS RESPONDENT REFUSED TO NEGOTIATE AS TO THE DISCONTINUANCE OF
THE PRACTICE OF ASSIGNING A CORRECTIONAL OFFICER TO EACH DORMITORY, I
CONCLUDE THAT IT HAS VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE ACT.
/13/
ADDITION OF A POSITION TO RECEIVING AND DISCHARGE UNIT
IN RESPECT TO THE R&D UNIT RECORD FACTS SHOW THE ROSTER HAD CONTAINED
ONLY ONE CORRECTIONAL OFFICER'S POSITION THEREAT. CURD'S TESTIMONY
INDICATES THAT, PRIOR TO JANUARY 31, 1980, THERE WERE TWO OFFICERS
WORKING IN THAT UNIT. THUS, HE AVERS, THE ADDITION OF ANOTHER R&D
OFFICER ON THE ROSTER AFTER JANUARY 31 MERELY REFLECTED THE EXISTING
SITUATION THEREAT.
WHILE IT IS TRUE THAT TWO OFFICERS WORKED IN THAT AREA BEFOREHAND,
THE RECORD INDICATES THAT ONLY ONE MAN WORKED A FULL DAY-TIME SCHEDULE.
THE OTHER OFFICER ASSISTED THE REGULAR EMPLOYEE AND DID NOT WORK FULL
TIME. CURD'S ACTION RESULTS IN CHANGING THE HOURS OF THE OTHER OFFICER
SO THAT HE ALSO WORKED FULL TIME. EACH R&D OFFICER WORKED A FULL SHIFT
AND THE FIRST EMPLOYEE WAS NOT REQUIRED TO WORK BEYOND THE END OF DUTY
HOURS AS IN THE PAST.
UNDER THESE CIRCUMSTANCES I CANNOT AGREE WITH RESPONDENT THAT THE
CHANGE EFFECTED BY IT WAS LIMITED TO THE ROSTER. THERE WAS, IN FACT, A
CHANGE IN THE HOURS OF THE OFFICER WHO ASSISTED IN R&D, AND, TO SOME
EXTENT, IN THE HOURS OF WORK PERFORMED BY THE ORIGINAL OFFICER. THE
CHANGING OF HOURS-- INCLUDING STARTING AND QUITTING TIMES-- IS A MATTER
CONCERNING WHICH AN EMPLOYER MUST BARGAIN. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR NO.
858. FURTHER, REASSIGNING EMPLOYEES FROM ONE SHIFT TO ANOTHER REQUIRES
THAT AN AGENCY BARGAIN OVER THE IMPACT AND IMPLEMENTATION THEREOF.
DEPARTMENT OF NAVY, NAVAL PLANT REPRESENTATIVE OFFICE, BALTIMORE,
MARYLAND, A/SLMR NO. 486.
ALTHOUGH RESPONDENT HEREIN DOES ESTABLISH A PAST PRACTICE OF ROTATING
OFFICERS TO DIFFERENT POSTS AND THUS MAKING SOME REASSIGNMENTS, I AM
PERSUADED THAT NO SUCH PRIOR PRACTICE EXISTED WITH RESPECT TO THE ACTION
TAKEN IN THE R&D UNIT. THE ADDITIONS OF A FULL TIME OFFICER IN THIS
AREA, AND THE ATTENDANT CHANGE SHIFTS AND HOURS, IS DISTINGUISHABLE FROM
ROTATIONAL ASSIGNMENTS WHICH HAS BEEN THE PRACTICE AT THE INSTITUTION.
ACCORDINGLY, I CONCLUDE RESPONDENT, BY MAKING THESE CHANGES IN THE R&D
UNIT, HAS VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE ACT BY REFUSING TO
NEGOTIATE REGARDING THE IMPACT AND IMPLEMENTATION THEREOF.
HAVING FOUND THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE ACT BY REFUSING TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF
CERTAIN UNILATERAL CHANGES IN WORKING CONDITIONS EFFECTED BY IT. I
RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER.
ORDER /14/
PURSUANT TO SECTION 7118(E)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE FEDERAL PRISON SYSTEM, CORRECTIONAL
INSTITUTION, PETERSBURG, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) ABOLISHING A GUARD TOWER OR ANY OTHER POSITION, AND RELOCATING A
CORRECTIONAL OFFICER
TO ANY NEWLY CREATED POSITION, INCLUDING THE PERIMETER PATROLMAN,
WITHOUT AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052, THE EMPLOYEES'
COLLECTIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING THE
CHANGE AND RELOCATION OF
THE CORRECTIONAL OFFICER, AND ON THE IMPACT IT WILL HAVE ON ADVERSELY
AFFECTED EMPLOYEES.
(B) INSTITUTING A CHANGE AT THE DORMITORIES, MARYLAND AND DELAWARE
HALLS, WHEREBY ONE
CORRECTIONAL OFFICER IS ASSIGNED TO WORK AT AND COVER BOTH OF THE
DORMITORIES, IN LIEU OF
ASSIGNING ONE CORRECTIONAL OFFICER TO EACH SEPARATE DORMITORY,
WITHOUT AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEE, LOCAL 2052, THE EMPLOYEES
COLLECTIVE BARGAINING
REPRESENTATIVE, AN OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH
CHANGE AND ASSIGNMENT,
AND TO THE IMPACT IT WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(C) ADDING ANOTHER POSITION TO THE ROSTER OF A CORRECTIONAL OFFICER
FOR THE RECEIVING AND
DISCHARGE UNIT, AND THE ASSIGNING OF AN ADDITIONAL FULL TIME OFFICER
TO WORK AT THE RECEIVING
AND DISCHARGE UNIT, WITHOUT AFFORDING AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2052,
THE EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVE, AN OPPORTUNITY
TO NEGOTIATE, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN
IMPLEMENTING SUCH ADDITION AND ASSIGNMENT, AND ON THE IMPACT IT WILL
HAVE ON ADVERSELY
AFFECTED EMPLOYEES.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES OF THE ACT:
(A) POST AT ITS FACILITIES AT THE FEDERAL PRISON SYSTEM, CORRECTIONAL
INSTITUTION,
PETERSBURG, VIRGINIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY
THE CHIEF CORRECTIONAL SUPERVISOR, AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF
CORRECTIONAL SUPERVISOR
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 7, 1980
WASHINGTON, D.C.
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 FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY CHANGE EXISTING CONDITIONS OF EMPLOYMENT,
INCLUDING (A) ABOLISHING A GUARD TOWER AND RELOCATING A CORRECTIONAL
OFFICER TO PERIMETER PATROLMAN, OR OTHER NEWLY CREATED POSITIONS, (B)
ASSIGNING ONE CORRECTIONAL OFFICER TO WORK AT TWO DORMITORIES IN LIEU OF
ASSIGNING ONE OFFICER TO WORK AT EACH SEPARATE DORMITORY, (C) ADDING A
POSITION TO THE RECEIVING AND DISCHARGE UNIT AND ASSIGNING AN ADDITIONAL
OFFICER TO WORK FULL TIME THEREAT, WITHOUT FIRST AFFORDING AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052, THE EMPLOYEES'
COLLECTIVE BARGAINING REPRESENTATIVE, AN OPPORTUNITY TO NEGOTIATE, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH CHANGES AND ON THE IMPACT
IT WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE ACT.
AGENCY OR ACTIVITY
DATED: BY:
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 THE NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 1133 15TH STREET,
N.W., ROOM 300, WASHINGTON, D.C. 20005.
--------------- FOOTNOTES: ---------------
/1/ SECTION 7105(G)(3) OF THE STATUTE PROVIDES:
(G) IN ORDER TO CARRY OUT ITS FUNCTIONS UNDER THIS CHAPTER, THE
AUTHORITY MAY--
. . . .
(3) REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST
FROM VIOLATIONS OF THIS
CHAPTER AND REQUIRE IT TO TAKE ANY REMEDIAL ACTION IT CONSIDERS
APPROPRIATE TO CARRY OUT THE
OF THIS CHAPTER.
SEE ALSO SECTION 7118(A)(7) OF THE STATUTE.
/2/ SEE, E.G., SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR
FORCE BASE, TEXAS, 5 FLRA NO. 22(198 1); NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981).
/3/ IN THIS REGARD, THE AUTHORITY NOTES THAT SECTION 7101(B) OF THE
STATUTE STATES, IN PART, THE INTENT OF CONGRESS THAT "(T)HE PROVISIONS
OF THIS CHAPTER SHOULD BE INTERPRETED IN A MANNER CONSISTENT WITH THE
REQUIREMENT OF AN EFFECTIVE AND EFFICIENT GOVERNMENT."
/4/ THE NAME OF THE EMPLOYER APPEARS AS CORRECTED AT THE HEARING.
/5/ GENERAL COUNSEL FILED A POST-HEARING MOTION TO AMEND THE
COMPLAINT SO AS TO INCLUDE THE DATE OF APRIL 27, 1980 AS A DATE ON WHICH
CHANGES WERE ALSO IMPLEMENTED BY RESPONDENT AT THE PRISON. THE MOTION
IS GRANTED. THE ADDED DATE IS MERELY AN EXTENSION OF THE ALLEGATIONS IN
THE COMPLAINT, AND THE MATTER WAS FULLY LITIGATED AT THE HEARING.
MOREOVER, THE MOTION WAS UNOPPOSED BY RESPONDENT AND THE ADDITION WOULD
NOT REQUIRE REOPENING THE HEARING. SEE ENVIRONMENTAL PROTECTION AGENCY,
PERRINE PRIMATE LABORATORY, A/SLMR NO. 136; NAVAL AIR RESERVE TRAINING
UNIT, MEMPHIS, TENN, A/SLMR NO. 106.
/6/ GENERAL COUNSEL FILED A MOTION DATED SEPTEMBER 8, 1980, TO
CORRECT THE TRANSCRIPT IN RESPECT TO DATES, NAMES, AND MINOR
DISCREPANCIES. THE MOTION, WHICH HAS NOT BEEN OPPOSED, IS HEREBY
GRANTED.
/7/ THE CHANGES, AS OUTLINED TO LONG AND IMPLEMENTED BY RESPONDENT,
WILL BE SET FORTH INFRA.
/8/ LONG'S VERSION IS SOMEWHAT DIFFERENT AS TO THE ENTRIES AND NUMBER
OF PATROLMEN SERVICING THE COMPOUND. HIS RECITAL OF THE FACTS WAS
BASED, HOWEVER, ON HIS UNDERSTANDING THEREOF, AND I HAVE CREDITED CURD
IN THIS REGARD.
/9/ RECORD FACTS SHOW OVERTIME INCREASED AFTER JANUARY 31; AND,
MOREOVER, THE COMPLAINT DOES NOT ALLEGE REDUCTION IN OVERTIME AS A
UNILATERAL CHANGE IN VIOLATION OF THE ACT.
/10/ WHILE CURD TESTIFIED ANOTHER INDIVIDUAL WAS HELPING OUT AS AN
EXTRA IN R & D, THE FULL TIME R & D POSITION HAD BEEN ADDED PRIOR TO THE
FEBRUARY, 1980 ROSTER.
/11/ GENERAL COUNSEL ALSO MAINTAINS THAT THE EMPLOYER FAILED TO GIVE
SUFFICIENT AND ADEQUATE NOTICE TO THE UNION REGARDING THE IMPENDING
CHANGES SO AS TO ENABLE THE LATTER TO PREPARE FOR BARGAINING. IT IS
TRUE THAT PAST DECISIONS UPHOLD THE OBLIGATION TO NOTIFY THE BARGAINING
AGENT OF CONTEMPLATED CHANGES SO THE UNION CAN FORMULATE ITS DEMANDS.
NEVERTHELESS, I AM PERSUADED THAT HOWARD WAS INFORMED, VIA CURD AND
ANOTHER SUPERVISOR, AS TO THE SPECIFIC CHANGES WHICH RESPONDENT INTENDED
TO INSTATUTE AT THE PRISON. WHILE THE MANNER OF NOTIFICATION, AS WELL
AS THE SPECIFICS THEREOF, COULD WELL HAVE BEEN IMPROVED UPON, I CONCLUDE
THE UNION DID RECEIVE ADEQUATE NOTICE OF THE CONTEMPLATED CHANGES IN THE
ROSTER AND THE POST POSITIONS. TO THE SAME EFFECT SEE JUDGE MASON'S
DECISION IN U. S. DEPARTMENT OF AIR FORCE, AIR FORCE SYSTEMS, ET. AL IN
1-CA-256 (SEPTEMBER 17, 1980). CF. U. S. AIR FORCE, AIR FORCE LOGISTICS
COMMAND, ET. AL. 4 FLRA NO. 70.
/12/ RESPONDENT ALSO AVERS THAT NO REQUEST TO BARGAIN REGARDING THE
IMPACT OF ITS CHANGE WAS MADE BY THE UNION. THIS CONTENTION IS REJECTED
SINCE RECORD FACTS REVEAL THAT UNION REPRESENTATIVE REQUESTED
NEGOTIATIONS SEVERAL TIMES.
/13/ GENERAL COUNSEL ALSO CONTENDS THAT RESPONDENT RAN AFOUL OF THE
ACT BY UNILATERALLY REQUIRING CASEWORKERS TO FILL IN FOR DORMITORY
OFFICERS. THE RECORD DOES NOT CLEARLY REFLECT THAT, IN FACT, THE
CASEWORKERS WERE GIVEN SUCH ASSIGNMENT. THUS I DO NOT CONCLUDE
RESPONDENT HAS VIOLATED THE ACT IN THIS REGARD.
/14/ GENERAL COUNSEL SEEKS A STATUS QUO REMEDY WITH RESPECT TO
RESPONDENT'S REFUSAL TO BARGAIN REGARDING THE IMPACT AND IMPLEMENTATION
OF THE CHANGES INSTITUTED HEREIN. DECISIONAL LAW ENUNCIATED BY THE
AUTHORITY HOLDS THAT SUCH A REMEDIAL ORDER IS NOT APPROPRIATE WHERE AN
EMPLOYER IS NOT OBLIGATED TO BARGAIN AS TO THE DECISION TO TAKE
PARTICULAR ACTION INVOLVING ITS EMPLOYEES. THE ADJUTANT GENERAL'S
OFFICE, PUERTO RICO AIR NATIONAL GUARD, 3 FLRA NO. 55. UNDER SECTION
7135 OF THE ACT ALL POLICIES, REGULATIONS AND PROCEDURES ESTABLISHED
UNDER EXECUTIVE ORDER 11491, AS AMENDED, CONTINUE IN FORCE AND EFFECT
UNLESS REVOKED BY THE PRESIDENT OR THE ACT. THUS, ALTHOUGH THIS CASE
AROSE UNDER THE ORDER, THE PRINCIPLE SET FORTH IN THE CITED CASE
CONTROLS SINCE THERE HAS BEEN NO REVOCATION THEREOF.