09:0762(95)CA - HQ, 77th Army Command, Fort Totten, NY and AFGE Local 2739 -- 1982 FLRAdec CA
[ v09 p762 ]
09:0762(95)CA
The decision of the Authority follows:
9 FLRA No. 95 HEADQUARTERS, 77TH U.S. ARMY COMMAND FORT TOTTEN, NEW YORK Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO Charging Party Case No. 2-CA-498 DECISION AND ORDER THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHROITY'S RULES AND REGULATIONS. UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS: ACCORDING TO THE PARTIES' STIPULATION OF FACTS, THE CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO (UNION), IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S NONPROFESSIONAL EMPLOYEES. THE UNION AND THE RESPONDENT ARE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH HAS BEEN IN EFFECT AT ALL TIMES MATERIAL HEREIN. IN OR ABOUT JANUARY 1980, ACTING UNION PRESIDENT BRYANT WAS TOLD BY ONE OF THE SHOP STEWARDS THAT THE RESPONDENT PLANNED TO CHANGE THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE SUPPORT ACTIVITIES (AMSA), FROM MONDAY THROUGH FRIDAY, TO TUESDAY THROUGH SATURDAY. APPROXIMATELY 30 WAGE GRADE EMPLOYEES ASSIGNED TO THE AMSA WOULD BE AFFECTED BY THE PROPOSED CHANGE. ON MARCH 4, 1980, THE PARTIES MET AND BRYANT REQUESTED NEGOTIATIONS OVER THE PROPOSED CHANGE IN THE WORKWEEK. THE RESPONDENT REPLIED THAT THE ISSUE WAS NOT NEGOTIABLE. BRYANT PROPOSED THAT EITHER UNIT EMPLOYEES VOLUNTEER FOR SATURDAY WORK ON A "ROUND-ROBIN" BASIS, OR THAT THE RESPONDENT PAY OVERTIME FOR A MONDAY THROUGH SATURDAY WORKWEEK. THE RESPONDENT REJECTED THE VOLUNTEER APPROACH ON THE GROUND THAT IT HAD NOT WORKED IN THE PAST, AND ALSO REJECTED THE OVERTIME PROPOSAL BECAUSE NO MONEY WAS AVAILABLE TO PAY OVERTIME. THE RESPONDENT REFUSED TO NEGOTIATE OVER THE PROPOSED CHANGE. BY LETTER DATED JUNE 10, 1980, THE CHIEF OF MANAGEMENT EMPLOYEE RELATIONS AT FORT INDIANTOWN GAP, INFORMED THE RESPONDENT THAT THE PROPOSED CHANGE WAS A PERMISSIVE SUBJECT OF BARGAINING, AND FURTHER THAT THE DEPARTMENT OF THE ARMY HAD ADVISED IT NOT TO BARGAIN OVER THE PROPOSED CHANGE. THEREAFTER, ON JUNE 17, 1980, THE PARTIES AGAIN MET AND THE UNION AGAIN REQUESTED NEGOTIATIONS, SUGGESTING EITHER VOLUNTEERS OR PAID OVERTIME FOR SATURDAY WORK. THE RESPONDENT AGAIN REFUSED TO NEGOTIATE, STATING THAT THE CHANGE WAS TO 0E INSTITUTED ON A TEMPORARY BASIS. ON JULY 7, 1980, THE RESPONDENT UNILATERALLY IMPLEMENTED THE CHANGE IN THE WORKWEEK REFERRED TO ABOVE. THE COMPLAINT ALLEGES THAT, BY REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE UNION CONCERNING THE CHANGE OF WORK SCHEDULES FOR UNIT EMPLOYEES, THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. /1/ THE GENERAL COUNSEL CONCEDES THAT THE DECISION TO CHANGE THE UNIT EMPLOYEES' WORKWEEK HEREIN WAS A PERMISSIVE SUBJECT OF BARGAINING UNDER SECTION 7106(B)(1) OF THE STATUTE, /2/ AND THAT THE RESPONDENT AT ITS ELECTION COULD CHOOSE NOT TO BARGAIN THEREON. /3/ HOWEVER, THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT WAS REQUIRED TO NEGOTIATE CONCERNING THE IMPACT AND PROCEDURES FOR IMPLEMENTING THE DECISION TO CHANGE THE EMPLOYEES' WORKWEEK, PURSUANT TO SECTION 7106(B)(2) AND (3) OF THE STATUTE, /4/ AND THAT ITS REFUSAL TO DO SO CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND (5). THE AUTHORITY AGREES. THUS, AS PREVIOUSLY INDICATED, THE RESPONDENT ON SEVERAL OCCASIONS REJECTED REQUESTS BY THE UNION TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION PROPOSALS TO THE EFFECT THAT EMPLOYEES WORKING ON SATURDAYS AS A RESULT OF THE RESPONDENT'S DECISION TO CHANGE THE WORKWEEK BE VOLUNTEERS OR RECEIVE OVERTIME PAY FOR SUCH WORK. ACCORDINGLY, THE AUTHORITY FINDS THAT, BY SUCH REFUSAL TO NEGOTIATE CONCERNING THE IMPACT AND IMPLEMENTATION OF THE CHANGES IN THE WORKWEEK, THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. SEE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981). SEE ALSO INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA AND NATIONAL TREASURY EMPLOYEES UNION, 7 FLRA NO. 54(1981). THE GENERAL COUNSEL HAS REQUESTED THAT, AS A REMEDY, THE AUTHORITY ORDER A RETURN TO THE STATUS QUO ANTE. HOWEVER, NOTING PARTICULARLY THE GENERAL COUNSEL'S CONCESSION THAT THE DECISION TO CHANGE THE WORKWEEK WAS A RESERVED RIGHT UNDER SECTION 7106(B)(1) IN THE CIRCUMSTANCES OF THIS CASE, THE AUTHORITY FINDS THAT THE REQUESTED REMEDY IS NOT WARRANTED HEREIN WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE RESPONDENT'S DECISION TO CHANGE THE WORKWEEK. THUS, BALANCING THE NATURE AND CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD APPARENTLY BE CAUSED BY SUCH A REMEDY, AND TAKING INTO CONSIDERATION THE VARIOUS FACTORS SET FORTH IN FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111(1982), THE AUTHORITY CONCLUDES THAT AN ORDER REQUIRING THE RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND IMPLEMENTATION WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE. SEE U.S. CUSTOMS SERVICE, REGION V, NEW ORLEANS, LOUISIANA, 9 FLRA NO. 15(1982). IN SO CONCLUDING, THE AUTHORITY NOTES THAT THE GENERAL COUNSEL'S REQUEST FOR A STATUS QUO ANTE REMEDY IS UNSUPPORTED BY ANY REASONS WHY SUCH A REMEDY SHOULD BE GRANTED IN THE CIRCUMSTANCES PRESENTED HEREIN. ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT HEADQUARTERS, 77TH U.S. ARMY COMMAND, FORT TOTTEN, NEW YORK, SHALL: 1. CEASE AND DESIST FROM: (A) CHANGING THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO DO SO, AND AFFORDING IT THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH LAW AND REGULATION CONCERNING THE PROCEDURES THAT MANAGEMENT WILL OBSERVE IN EFFECTING SUCH CHANGE AND CONCERNING THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) UPON REQUEST, NEGOTIATE WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION, CONCERNING THE PROCEDURES MANAGEMENT WILL OBSERVE IN EFFECTING THE CHANGE IN THE WORKWEEK OF EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE SUPPORT ACTIVITIES, AND CONCERNING THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES. (B) POST AT ITS FACILITIES AT HEADQUARTERS, 77TH U.S. ARMY COMMAND, FORT TOTTEN, NEW YORK, 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 COMMANDER, HEADQUARTERS, 77TH U.S. ARMY COMMAND, FORT TOTTEN, NEW YORK, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, 10007, 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., AUGUST 4, 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 WORKWEEK OF UNIT EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR NONPROFESSIONAL EMPLOYEES, OF OUR DECISION TO MAKE SUCH CHANGE, AND AFFORDING IT THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION, CONCERNING THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EFFECTUATING THE CHANGE AND CONCERNING THE IMPACT SUCH CHANGE 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 BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL, UPON REQUEST, NEGOTIATE WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR NONPROFESSIONAL EMPLOYEES, TO THE EXTENT CONSONANT WITH LAW AND REGULATION, CONCERNING THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EFFECTING THE CHANGE IN THE WORKWEEK OF EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE SUPPORT ACTIVITIES, AND CONCERNING THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT 0E 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, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, N.Y., 10007 AND WHOSE TELEPHONE NUMBER IS: (212) 581-8100, EXT. 7233. --------------- FOOTNOTES$ --------------- /1/ SEC. 7116. UNFAIR LABOR PRACTICES (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER; * * * * (5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED BY THIS CHAPTER(.) /2/ SEC. 7106. MANAGEMENT RIGHTS (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR ORGANIZATION FROM NEGOTIATING-- (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF DUTY, OR ON THE TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.) /3/ ACCORDINGLY, IT IS UNNECESSARY FOR THE AUTHORITY TO REACH OR PASS UPON THAT QUESTION. /4/ SECTION 7106(B)(2) AND (3) PROVIDES: (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR ORGANIZATION FROM NEGOTIATING-- (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING ANY AUTHORITY UNDER THIS SECTION; OR (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.