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16 FLRA NO. 144

DEPARTMENT OF THE AIR FORCE
LOWRY AIR FORCE BASE, COLORADO

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974

     Charging Party

Case No. 7-CA-652

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision and Order in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and a supporting brief, and the General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations 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 the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. 1 [ v16 p1104 ]

The complaint alleges that Department of the Air Force, Lowry Air Force Base, Colorado (the Respondent) violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing changes in store hours and employee hours of work at the Lowry Air Force Base Commissary without having bargained in good faith with the American Federation of Government Employees, AFL - CIO, Local 1974 (the Union). The Judge found that the changes in store hours and shift hours of Commissary employees were negotiable matters under the Statute and that the Respondent's failure to afford the Union a reasonable opportunity to bargain over such matters prior to their implementation was violative of section 7116(a)(1) and (5) of the Statute. For the reasons which follow, the Authority finds, contrary to the Judge, that the Respondent's conduct was not violative of the Statute, except as indicated below.

The record reveals that on May 30, 1980, the Respondent sent a letter to the Union president indicating that the Commissary store would be opening and closing one hour later; that employees classified as cashiers, day stocking, night stocking, tellers and produce would start work one hour later; and that henceforth there would be two tours of duty for cashiers rather than three. The letter also indicated that any proposals the Union wished to submit with respect to the impact of the changes should be made by June 11 and that implementation of the changes was to take place on July 1. Based on credited testimony, the Judge found that the Union made several verbal requests to negotiate concerning the changes but that the management representatives to whom the requests were made replied that nothing had been finalized and that the parties should adopt a wait-and-see approach. The bargaining requests were made both prior to and after the June 11 deadline established by the Respondent. Subsequently, and at the Union's request, the parties met on June 26 and 27. At this latter meeting, the Union expressed its opinion that there was no need for the proposed changes in store hours although the Union was not attempting to dictate what the hours of operation should be, but that in any event there was no need to change the existing shifts regardless of any changes that might be made in the store hours. The Union also proposed the use of service computation dates as a means by which the most senior employees could choose the shift to which they wished to be assigned. The Respondent declared this proposal to be nonnegotiable, and thereafter implemented the changes as specified in its May 30 letter. No other proposals were made at the meeting and it appeared that the discussion centered around only the one proposal pertaining to the use of service computation date.

In the circumstances here presented, the Authority finds that the General Counsel has failed to establish that the Respondent unlawfully changed the store hours and employee hours of work. In the Authority's view, the change in store hours was a management prerogative insofar as the mission of the agency is to provide commissary services to various personnel and because agency management has the right to determine the [ v16 p1105 ] hours in a day when its work will be performed. 2 Accordingly, there was no obligation to bargain over the change in store hours. However, there was an obligation to bargain over the impact and implementation of such a change and, in this connection, the record indicates that the Respondent properly notified the Union of the change in store hours and solicited proposals concerning the impact of the change, and that thereafter the Union requested bargaining. While the Union may have initially been put off by the Respondent's wait-and-see approach, the record indicates that the parties did in fact meet to discuss the Union's concerns prior to implementation. The record further indicates that, at the meeting, the Union made one specific proposal regarding the use of service computation date in determining shift assignments. No other specific proposals appear to have been made by the Union either at the meeting or at any other time. While there is some evidence that the Union may have expressed a desire to retain the existing shift structure, the effect of the Union's proposal would have been to require the Respondent to employ the employees in question before the store was open for business, and later to operate the store without employees. Clearly such a proposal would have the effect of determining the numbers, types and grades of employees assigned to a work project or a tour of duty, a matter which is bargainable at management's election 3 under section 7106(b)(1) of the Statute. 4 Moreover, if the elimination of the tour [ v16 p1106 ] of duty for cashiers was a concern of the Union, such a matter would also relate to the numbers, types and grades of employees assigned to a tour of duty, and would likewise be bargainable only at the election of the agency under section 7106(b)(1) of the Statute. 5

As noted above, however, the Union did specifically propose that service computation dates be utilized in determining employees' shift assignments. In this regard, the Respondent declared that the Union's proposal was nonnegotiable, and that, in any event, there was no obligation to bargain concerning it because the proposal was made after the June 11 deadline imposed by the Respondent. The record reveals, however, that the Union requested an opportunity to bargain before the June 11 deadline and submitted its proposal at the June 26-27 meetings, the only opportunity afforded it for that purpose, and at a time several days before Respondent implemented its shift and time changes. With respect to the negotiability of the Union's proposal, the Authority has held that a provision concerning the assignment of employees from one or more shifts to another does not involve different positions or different duties, but only involves employees' performing the duties of their positions during a different shift of work. Therefore, such provision does not violate management's rights to assign work or to assign employees and is within the statutory duty to bargain. 6 Accordingly, the Authority finds in the present case that the Union's proposal that service computation dates be utilized in determining shift assignments is negotiable, and that the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to negotiate with the Union concerning that proposal with regard to the impact and implementation of its decision to change the cashiers' hours and tours of duty.

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 Department of the Air Force, Lowry Air Force Base, Colorado shall:

1. Cease and desist from:

(a) Failing or refusing to bargain with the American Federation of Government Employees, AFL - CIO, Local 1974, the exclusive representative of its employees, concerning the utilization of service computation [ v16 p1107 ] dates in determining shift assignments before implementation of any changes in such employees' hours or tours of duty.

(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) Upon request, negotiate with the American Federation of Government Employees, AFL - CIO, Local 1974, the exclusive representative of its employees, concerning the utilization of service computation dates in determining shift assignments.

(b) Post at its Commissary store at Lowry Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receiving such forms, they shall be signed by an appropriate official of the Respondent and shall be posted and maintained by such official for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, in writing, within 30 days from the date of this Order, as to what steps are being taken to comply herewith.

IT IS FURTHER ORDERED that the remaining portions of the complaint in Case No. 7-CA-652, be, and they hereby are, dismissed.

Issued, Washington, D.C., December 27, 1984

Henry B. Frazier III, Acting Chairman
Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES

Footnote 1 The Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings.

Footnote 2 National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768, 775 (1980); International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 437 (1980).

Footnote 3 Compare National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 927 (1979), wherein the Authority found that a proposal which sought to maintain an existing starting and quitting time which fell within the range of starting and quitting times established by the agency was within the duty to bargain.

Footnote 4 Section 7106(b)(1) provides, in relevant part, as follows: 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...(.)

Footnote 5 National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 16 FLRA No. 131 (1984).

Footnote 6 National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA No. 45 (1984) (Provision 4).

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