[ v17 p281 ]
17:0281(40)CA
The decision of the Authority follows:
17 FLRA No. 40
UNITED STATES DEPARTMENT OF
AGRICULTURE, PLANT PROTECTION AND
QUARANTINE, ANIMAL AND PLANT HEALTH
INSPECTION SERVICE
Respondent
and
NATIONAL ASSOCIATION OF AGRICULTURE
EMPLOYEES, formerly THE FEDERAL PLANT
QUARANTINE INSPECTOR'S NATIONAL
ASSOCIATION
Charging Party
Case No. 6-CA-1195
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other unfair labor practices and recommended
dismissal of the complaint with respect to them. Exceptions to the
Judge's Decision were filed by the General Counsel, and the Respondent
filed an opposition to the General Counsel's exceptions and
cross-exceptions to the Judge's Decision.
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 recommended Order as modified herein.
The Judge found that the Respondent had discussed its intent to
establish a new national policy on instream boardings of ships at ports
with the Union, but that it had not given the Union notice, prior to
actual implementation, as to what the policy would be or when it would
be effective. The Authority, contrary to the Respondent's exceptions,
agrees with the Judge's conclusion that the Respondent thereby violated
section 7116(a)(1) and (5) of the Statute, as it had not afforded the
Union the requisite prior notice of its final decision and an
opportunity to bargain concerning the impact and implementation of the
decision.
The Judge recommended that the Respondent be ordered to rescind its
new national policy, to return to its prior discretionary policy, and to
desist from implementing such changes without first affording the Union
notice and an opportunity to bargain with regard to impact and
implementation. The Judge found, however, that a remedy that would
require the Respondent to also award backpay to employees who may have
lost overtime as a result of the change is unwarranted.
Regarding the General Counsel's exception to the Judge's failure to
recommend an award of backpay, the Authority has held that backpay
orders in unfair labor practice proceedings must be in compliance with
the Back Pay Act, 5 U.S.C. 5596, and that to comply with the Act there
must be a determination that an employee has been adversely affected by
an unjustified or unwarranted personnel action and a determination that
but for the improper action such employee would not have suffered a loss
or reduction in pay, allowances, or differentials. Federal Aviation
Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA
No. 89 (1984); Department of the Air Force, Air Force Systems Command,
Electronic Systems Division, 14 FLRA No. 63 (1984). In this case the
request for backpay is premised on the alleged loss of overtime which
the employees would have received if the instream boardings had
continued. However, as found by the Judge, the Respondent had the right
to implement a national policy resulting in the a discontinuance of
instream boardings and the General Counsel does not dispute the
Respondent's right to effectuate such a decision without bargaining on
the substance of its decision. The violation is not based on that
decision, but on the failure to bargain over the impact and
implementation of the decision, once made. Since it has not been shown
that the employees would have worked overtime but for the Respondent's
failure to bargain over the impact and implementation of its decision,
the Authority concludes that a backpay order is not warranted.
Regarding the Judge's proposed remedy that the Respondent should be
required to return to its prior policy pending completion of bargaining
on impact and implementation, as found by the Judge the Respondent did
give the Union advance notice of a likely change in policy and asked for
comments from the Union even though the change was within its rights to
make. While the employees were affected by the decision to implement a
new policy, the record does not establish the nature and extent of the
impact on the employees of the failure to bargain concerning the impact
and implementation of the decision. The Authority has also concluded
that an order to return to the prior discretionary policy with regard to
instream boardings would seriously disrupt or impair the efficiency and
effectiveness of the Respondent's operations. In this regard, the
Respondent has persuasively argued that effective national policy
favored uniformity at all ports and that a return to a situation where
instream boardings resumed at some but not all ports of entry would be
confusing and disruptive, not only of its own operations, but of
commercial shipping as well. In consideration of these factors it is
concluded that an order which requires the Respondent to bargain, upon
request, over the impact and implementation of its decision will best
effectuate the purposes and policies of the Statute. Federal
Correctional Institution, 8 FLRA 604, 606 (1982). Department of the
Treasury, Internal Revenue Service, Jacksonville District, Jacksonville,
Florida, 15 FLRA No. 187 (1984).
ORDER
Pursuant to section 2323.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Department of
Agriculture, Plant Protection and Quarantine, Animal and Plant Health
Inspection Service, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in the terms and conditions of
employment of its employees without first notifying the National
Association of Agriculture Employees, formerly the Federal Plant
Quarantine Inspector's National Association, the exclusive
representative of certain of its employees, and affording the exclusive
representative an opportunity to bargain concerning the impact and
implementation of such changes.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request, bargain with the National Association of
Agriculture Employees, formerly the Federal Plant Quarantine Inspector's
Association, concerning the impact and implementation of its national
policy regarding instream boardings.
(b) Post at its headquarters and at all facilities in each of its
Regions, copies of the attached Notice to be furnished by the Federal
Labor Relations Authority. Copies of said Notice shall be signed by the
Deputy Administrator, Plant Protection and Quarantine, or designee(s),
and shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2323.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, 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 those allegations of the complaint found
to be without merit be, and they hereby are, dismissed. /1A/
Issued, Washington, D.C., March 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 unilaterally institute changes in the terms and conditions
of employment of employees without first notifying the National
Association of Agriculture Employees, formerly the Federal Plant
Quarantine Inspector's Association, the exclusive representative of
certain of our employees, and affording the exclusive representative an
opportunity to bargain concerning the impact and implementation of such
changes. 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, bargain with the National Association of Agriculture
Employees, formerly the Federal Plant Quarantine Inspector's National
Association, concerning the impact on our employees of the change in our
national policy with regard to instream boardings.
. . . (Agency or Activity)
Date: . . . By: . . . (Signature) (Title) 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 its provisions,
they may communicate directly with the Regional Director, Region VI,
Federal Labor Relations Authority, whose address is: Bryan & Ervay
Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose
telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 6-CA-1195
James E. Dumerer, Esquire
For the General Counsel
Mr. James S. Eddy
For the Charging Party
Alice K. Barnett, Esquire.
Mr. Stanley E. Kensky
For the Respondent
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.21, et seq., was initiated by a charge filed on May 28,
1981, alleging violations of Secs. 16(a)(1), (5), (7) and (8) of the
Statute (G.C. Exh. 1(a)). A Complaint and Notice of Hearing issued on
August 4, 1981 (G.C. Exh. 1(c)), the Complaint alleging violations only
of Secs. 16(a)(1) and (5); and on October 13, 1981, an Order issued
Setting Place of Hearing (G.C. Exh. 1(g)), pursuant to which a hearing
was duly held before the undersigned in New Orleans, Louisiana, on
October 27, 1981.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
December 1, 1981, was fixed as the date for mailing post-hearing briefs
and Counsel for Respondent and for the General Counsel each timely
mailed an excellent brief, received on December 3, 1981, which have been
carefully considered. Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
The Issue
The principal issue in this case is, as set forth in Paragraph 9 of
the Complaint, whether Respondent on, or about, April 17, 1981, " . . .
unilaterally changed existing terms and conditions of employment in
discontinuing instream ship boardings without affording the Union proper
notice and an opportunity to bargain over the impact and implementation
of said change." The Complaint, in Paragraph 10, alleges a further
unfair labor practice as the result of an asserted breach of contract;
however, as a preponderance of the evidence does not support the alleged
breach of contract, this allegation will be dismissed without reaching
the further question as to whether, if a breach of the contract alleged,
namely a failure to "meet and discuss and attempt resolution" of any
alleged unfair labor practice alleged, were shown, such breach would
constitute an independent unfair labor practice. /2/
Findings and Discussion
At all times material, the Union has been recognized as the exclusive
representative for all professional Plant Protection and Quarantine
Officers and all non-professional employees of the United States
Department of Agriculture, Animal and Plant Health Inspection Service,
Plant Protection and Quarantine, with certain exclusions, as more fully
described in the parties current agreement (Jt. Exh. 1). Prior to
April, 1981, each Plant Protection and Quarantine (PPQ) regional office
had discretion to determine whether PPQ Officers would board vessels
instream or to wait and board upon arrival at the dock. For many years,
instream boarding had been a customary practice in all regions;
however, the practice of instream boarding had been largely discontinued
in some regions over the years and, following a death on the Delaware
River in 1978 or 1979, of a Customs Officer (formerly a PPQ Inspector),
routine instream boarding was generally discontinued, although each
region, or even each port, pursuant to the discretionary authority
granted, could, and did, determine to board some vessels instream. The
ports of New Orleans and Baton Rouge, in the South Central Region, were
two of the few ports where vessels continued to be boarded instream on a
routine basis.
There is no doubt that Respondent, in 1980, to alleviate the
disparate policies at the various ports of entry, determined that a
uniform national policy was needed. Accordingly, Mr. Harvey L. Ford,
Deputy Administrator, advised the Regional Directors by memorandum dated
July 16, 1980, and by separate letter, dated July 16, 1980, to Mr. Eddy
enclosed a copy of the memorandum to the Regional Director, and stated,
in part, as follows:
"We do not consider this a negotiable item, but I welcome your
input." (Res. Exh. 1).
Mr. Ford's memorandum to Regional Directors stated as follows:
"We have received a request to discontinue all 'instream'
boardings because of the potential safety hazards to PPQ
personnel, except under extreme emergency pest-risk conditions.
We plan to make a national policy decision regarding 'instream'
boarding in the very near future. However, before a decision is
made I would like to have your input.
"May I have your comments by July 28, 1980." (Res. Exh. 1,
Attachment).
Mr. Eddy testified that he never received the July 16, 1980, letter
addressed to him (Tr. 49). It is evident that he did not submit any
comments by July 28, 1980, as requested; but whether he received the
letter, enclosing the memorandum, and I agree with Respondent's
assertion (Res. Brief, n.2) that "it is evident that he did", there is
no possible question that he received the memorandum to Regional
Directors, if not in the mail, then at his meeting with Mr. Ford on
August 22, 1980 (Jt. Exh. 2, Tr. 14-15, 17-18, 50).
Mr. Ford's memorandum to Regional Directors, dated July 16, 1980,
which I find Mr. Eddy did receive and to which he responded in writing
by letter dated September 2, 1980, is critical to resolution of the
issue in this case. There is no doubt whatever that Respondent gave
notice to the Union, not later than August 22, 1980, when Mr. Ford and
Mr. Eddy met for several hours at the airport in New Orleans, of its
intention to promulgate "a national policy regarding 'instream' boarding
. . . ." But I do not find in the memorandum to Regional Directors or in
Mr. Ford's testimony concerning his discussion with Mr. Eddy on August
22, 1980, any statement of what that "national policy" was to be.
Plainly, as I read and understand the memorandum, it said, "We have
received a request to discontinue all 'instream' boardings"; "We plan
to make a national policy decision . . ."; but " . . . before a
decision is made I would like to have your input." (Res. Exh. 1,
Attachment). Nor do I have any doubt, as Mr. Ford testified, that Mr.
Eddy fully understood that there was going to be a change. Thus, Mr.
Ford very credibly testified,
"A. Well, the whole gist of the conversation was a preparation
if I can term it that on Jim's part to convince me that a change
in that policy was not in the best interest of the organization in
terms of biological need. There was a quite persuasive argument
in that regard. From the whole tenor of his presentation, one
would gather that he understood that there was going to be a
change, or that there was a proposed change-- that we intended to
change that policy." (Tr. 86).
Indeed, Mr. Ford's objective, wholly consistent with his statement to
Mr. Eddy that "We do not consider this a negotiable item, but I do
welcome your input", was to obtain the input not only of the Union but
of his Regional Directors before a national policy decision was made.
Nor do I find any inconsistency in Mr. Ford's testimony, which I fully
credit, that Mr. Eddy said that "overtime wasn't a consideration" (Tr.
86) in its position; or in the last sentence of Mr. Eddy's written
response of September 2, 1980, that, "I feel that if there are strong
unfavorable conditions brought about by any overly drastic changes that
do affect working conditions, then we'll have to get together again, and
do what we must do." (Jt. Exh. 2). That is, Mr. Eddy told Mr. Ford on
August 22 that the Union was opposed to elimination of instream
boardings for various reasons, including biological needs and the
likelihood of missed vessels, and that its concern was not based on
overtime considerations, and in his letter of September 2, Mr. Eddy
again stated reasons for opposing any policy which eliminated instream
boardings and, because the policy was yet to be determined, concluded, .
. . if there are strong unfavorable conditions brought about by any
overly drastic changes . . . then we'll have to get together again. . .
."
Any possible doubt that the memorandum of July 16 represented, as of
that date, Respondent's decision as to national policy regarding
instream boarding is dispelled by Mr. Ford's further testimony,
"A. Well, not only did we get the impact from the association
or get the letter from the association, or have a meeting with the
association in which they brought up several points, but as a
result of some of these things and some of the questions that the
Regional Directors asked, my concern was that perhaps we might be
too hasty and that the vessels that were sitting instream may
(sic) ought to be boarded prior to-- we ought not have them
sitting out there for long periods of time without boarding them.
We not only had a problem that could have occurred in New Orleans,
but we had vessels sitting out in the Chesapeake Bay that were not
being boarded. I was concerned about those. This raised that
issue at that time. I had my veterinarian begin to look into this
problem as to whether perhaps rather than cutting out all instream
boarding, we ought to reconsider and put some sort of a time limit
on a vessel sitting without someone going on board. We talked to
veterinarian services which is our sister agency and just simply
took a long time to resolve that particular issue and to decide
not to change but to go ahead with the way we originally intended
to which was to do away with instream boardings." (Tr. 92-93).
Nevertheless, from the notice of July 16, 1980, which stated, "We
plan to make a national policy decision regarding 'instream' boarding in
the very near future. However, before a decision is made I would like
to have your input", Respondent gave the Union no notice of what its
"national policy decision regarding 'instream' boarding" was to be; nor
did it give any notice, prior to actual implementation, as to when its
national policy decision would be effective. To the contrary,
Respondent unilaterally issued to its Regional Directors a memorandum
dated April 7, 1981, which was implemented by Area III, "effective
immediately" by memorandum dated April 17, 1981 (G.C. Exh. 2).
Respondent's contention that its right to make a national policy
decision concerning instream boarding was not negotiable has not been
questioned; nevertheless, although it was not obligated to do so,
Respondent sought the views of the Union, as well as its own Regional
Directors, to assist it in arriving at its policy decision. Respondent
argues that because of its memorandum of July 16, 1980, stated, "We have
received a request to discontinue all 'instream' boardings" and inasmuch
as its policy statement, dated April 7, 1981, concluded that, "all
routine 'instream' ship boardings should be immediately discontinued", a
fortiori, it had given notice to the Union not later than August 22,
1980, the date on which Mr. Ford and Mr. Eddy met and when, if not
before, the Union received actual notice of Respondent's national policy
decision. If this were true, there would considerable merit to
Respondent's assertion that the Union, with ample opportunity to request
impact and implementation bargaining after notice of the policy
decision, had failed to do so and, if Respondent's failure to give a
specific time as to when such policy was to become effective ("We plan
to make a . . . decision . . . in the very near future") was not, alone,
a bar, cf., Department of the Treasury, Internal Revenue Service,
Indianapolis, Indiana, A/SLMR No. 909, 7 A/SLMR 844 (1977), the Union
might be deemed to have waived its right to bargain. But Respondent's
basic premise is false and is contrary to the record. As noted above,
the July 16, 1980, memorandum neither stated, nor purported to state,
Respondent's decision. To the contrary, the July 16, 1980, memorandum
while clearly stating that "We have received a request to discontinue
all 'instream' boardings" went on to state quite plainly that, "We plan
to make a national policy decision regarding 'instream' boarding . . .
However, before a decision is made I would like to have your input." The
entire thrust of the discussion between Mr. Ford and Mr. Eddy on this
matter on August 22 was Mr. Eddy's solicited "input" as to what the
policy should be concerning instream boarding which, as requested, Mr.
Eddy supplemented by his written response of September 2, 1980. There
can be no doubt that Mr. Eddy fully understood that discontinuance of
all instream boarding was, indeed, under consideration; but it is
equally clear that, while discontinuance of all instream boarding was
under consideration, Respondent had made no decision as to what its
policy decision would be. Certainly, Mr. Eddy confidently believed
that, for reasons he stated, all instream boarding would not be
discontinued; but concluded his letter of September 2, 1980, by stating
that if there are "any overly drastic changes that do affect working
conditions, we'll have to get together again . . . ." Mr. Ford, quite
candidly, testified that,
" . . . my concern was that perhaps we might be too hasty and
that the vessels that were sitting instream may (sic) ought to be
boarded prior to-- we ought not have them sitting out there for
long periods of time without boarding them . . . I had my
veterinarian begin to look into this problem as to whether perhaps
rather than cutting out all instream boarding, we ought to
reconsider and put some sort of a time limit on a vessel sitting
without someone going on board. We talked to veterinarian
services . . . and just simply took a long time to resolve that
particular issue . . . ."
Finally, the national policy as set forth in the memorandum of April 7,
1981, provided that, "all routine 'instream' ship boardings should be
immediately discontinued except for extraordinary or emergency pest-risk
situations." This statement of policy was significantly different in two
respects from the "request" referred to in the July 16, 1980,
memorandum: First the "request to discontinue all 'instream' boardings,
became "all routine 'instream' ship boardings"; and Second, the
exception in the request referred to in the July 16, 1980, memorandum,
"except under extreme emergency" became, in the policy statement,
"except for extraordinary or emergency". Then the policy statement of
April 7, 1981, set forth examples of situations "which could be
considered extraordinary or emergency pest-risk situations and could
require 'instream' boarding . . . ." as follows:
"1. Reports from the shipping line or ship's Master that live
insects were found aboard.
"2. Reports confirmed by the shipping line or Master or
observation by a reliable source that live ruminants or swine are
aboard.
"3. Reports from maritime industry, Customs, Immigration,
Coast Guard, etc., that a particular vessel is dumping garbage,
and/or garbage cans are outside the rail, and/or there is an
excessive accumulation of garbage to the point of falling
overboard and the situation is not corrected within 48 hours
through contact with the shipping line and/or ship's agent.
"'Instream' boarding is not justified on coastwise vessels
reported to have had garbage violations and stores sealed at a
previous port."
Of course, the above details of Respondent's "Policy on Stream, Bay, and
Outside Harbor Ship Boardings", as well as provisions for documentation
in writing for each "instream" boarding appeared for the first time in
the policy statement of April 7, 1981, which was unilaterally
implemented by Respondent, without any prior notice to the Union on, or
prior to, April 17, 1981.
Conclusions
Respondent's unilateral implementation of its policy on instream
boarding, on or about April 17, 1981, without first affording the Union
an opportunity to negotiate concerning the procedures which Respondent
would observe in implementing the change and concerning appropriate
arrangements for employees adversely affected by such change, violated
Secs. 16(a)(5) and (1) of the Statute. Norfolk Naval Shipyard,
Portsmouth, Virginia, 6 FLRA No. 22 (1981); Department of the Treasury,
Internal Revenue Service, 3 FLRA 630 (1980). As the record shows that
Respondent had not made any policy decision regarding possible
discontinuance of all instream boardings either on July 16, 1980, when
it issued its memorandum to Regional Directors, and, which it also
transmitted to the Union, or on August 22, 1980, when it met with the
Union, it necessarily follows that the Union did not waive its right to
bargain on impact and implementation by failing to request negotiations
after notice of Respondent's July 16, 1980, memorandum. Were this
conclusion wrong, I would, nevertheless, find that Respondent's
unilateral issuance and implementation of its April 7, 1981, "Policy on
Stream, Bay, and Outside Harbor Ship Boardings" violated Secs. 16(a)(5)
and (1) of the Statute for the reason that its April 7, 1981, statement
of policy was materially different from the "request" it gave notice, on
July 16, 1980, it had under consideration, and, as Respondent did not
implement, as its policy decision, such "request", Respondent was
obligated to give the Union notice of its substantially different policy
prior to its implementation. cf., Department of Health and Human
Services, Social Security Administration, Southeastern Program Service
Center, Birmingham, Alabama, 5 FLRA No. 52 (1981). In this regard,
although I am aware that the Statute, as did the Executive Order, may
impose somewhat different obligations and confer somewhat different
rights when a matter subject to mandatory bargaining, as distinguished
from a reserved right subject only to bargaining on impact and
implementation, is involved, nevertheless, I would apply to impact and
implementation bargaining the standards imposed by the Assistant
Secretary as to a change subject to mandatory bargaining, namely, that:
" . . . the Respondent was obligated to notify the Complainant
prior to making its final determination or decision . . . ."
Southeast Exchange Region of the Army and Air Force Exchange
Service, Rosewood Warehouse, Columbia, South Carolina, A/SLMR No.
656, 6 A/SLMR 237, 239 (1976).
Indeed, while this was not, so far as I am aware, expressly articulated
as to impact and implementation bargaining, there is no doubt that
decisions of the Assistant Secretary, as to impact and implementation
bargaining, consistently reached a like result, see, for example,
Department of the Navy, Naval Plant Representative Office, Baltimore,
Maryland, A/SLMR No. 456, 5 A/SLMR 125 (1975); Jacksonville District,
Internal Revenue Service, Jacksonville, Florida, A/SLMR No. 893, 7
A/SLMR 758 (1977); and more important, that decisions of the Authority
have consistently reached a like result, see, by way of example,
Department of Treasury, Internal Revenue Service, Jacksonville District,
3 FLRA 630 (1980); Internal Revenue Service, Washington, D.C., 4 FLRA
No. 68 (1980); San Antonio Air Logistics Center (AFLC), Kelly Air Force
Base, Texas, 5 FLRA No. 22 (1981). Although the impasse procedures of
Sec. 19 of the Statute may not be available, /3/ which was,
specifically, a reason that appropriate notice must be given as to when
changes are intended to be put into effect, U.S. Army Corps of
Engineers, Philadelphia District, A/SLMR No. 673, 6 A/SLMR 339 (1976),
and by inference was certainly an underlying reason that the agency was
obligated to notify the union "prior to making its final determination
or decision . . . .", Rosewood Warehouse, supra; nevertheless both
logic and reason mandate that the exclusive representative must be
notified prior an agency's implementation of its final determination or
decision in order that the exclusive representative have a reasonable
opportunity to request bargaining with respect to impact and
implementation. Here, Respondent's final determination or decision with
respect to instream boarding was materially different from the
"proposal" it had under consideration initially and, certainly, areas of
concern vis-a-vis impact and implementation were vastly different. For
example, had Respondent discontinued all instream boarding except under
extreme emergency pest-risk conditions, which proposal it initially had
under consideration, concerns subject to impact and implementation
bargaining would have been severely limited; but Respondent's actual
policy statement was quite different as it discontinued only routine
instream boardings; introduced, as a further exception, "extraordinary"
situations' gave examples as to what could be considered extraordinary
or emergency situations which could require instream boarding; and
provided for documentation, all of which greatly broadened the areas of
possible concern subject to impact and implementation bargaining. In
short, while I have found that Respondent had not made its policy
decision until well after August 22, 1980 - indeed, the record strongly
infers that it had not made its policy decision until on or about April
7, 1981, when it issued its policy statement - and, having made no
policy decision, most assuredly had not given notice of its policy
decision so as to set in motion the Union's obligation, if it desired
negotiations, to request bargaining on impact and implementation. But
if this conclusion were wrong, nevertheless, as previously held in
Department of Health and Human Services, Social Security Administration,
Southeastern Program Service Center, Birmingham, Alabama, 5 FLRA No. 52
(1981), as Respondent did not implement the proposal it had under
consideration, it was obligated to give notice of its substantially
different policy decision and afford the Union a reasonable opportunity
prior to its implementation to request negotiations on its impact and
implementation. I find no basis in the record to support Respondent's
assertion that the Union in any manner waived or abandoned its right to
negotiate on impact and implementation; but if, contrary to my finding,
there were any such waiver or abandonment, clearly it did not extend to
Respondent's policy statement of April 7, 1981. Finally, Respondent's
placing of "Instream boarding policy" on the agenda for the June 3,
1981, consultation meeting neither cured nor excused /4/ Respondent's
violation of its bargaining obligation to give the Union notice of its,
policy decision prior to its implementation. Jacksonville District,
Internal Revenue Service, Jacksonville, Florida, A/SLMR No. 893, 7
A/SLMR 758 (1977); Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA No. 2 (1981); San Antonio Air Logistics Center (AFLC),
Kelly Air Force Base, Texas, 5 FLRA No. 22 (1981); Norfolk Naval
Shipyard, Portsmouth, Virginia, 6 FLRA No. 22 (1981).
Remedy
General Counsel seeks restoration of the status quo ante, including
back pay for overtime lost by unit employees as a result of the
violation.
In a true sense, this is not a situation where it is possible to
restore the status quo. Vessels have long since come and gone. Nor
would it be proper, in my opinion, to order any monetary reimbursement.
First, Respondent's right, unilaterally, to make the decision to
discontinue all routine instream boardings is not questioned. The
Authority has made clear that negotiations on "procedures" and "impact"
may not operate to prevent management from exercising rights reserved
under the Statute to management. American Federation of Government
Employees, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire
Exchange, Fort Dix, New Jersey, Case No. O-NG-20, 2 FLRA 152 (1979);
National Treasury Employees Union, Case No. O-NG-3, 2 FLRA 254 (1979);
American Federation of Government Employees, Local 1712, Case No.
O-AR-104, 6 FLRA No. 85 (1981). In the Local 1712 case, supra, the
Authority stated, in part as follows:
"The Authority has also held that, while the rights of
management set forth in Section 7106(a) are subject to Section
7106(b)(2), this provision only authorizes the establishment of
procedures to the extent that they do not prevent management from
acting at all." (6 FLRA No. 85 at p. 468).
As Respondent had the right under Sec. 6 to discontinue all routine
instream boarding, an award of backpay for asserted loss of overtime
earnings would interfere with the right of management, contrary to Sec.
6, as to prevent Respondent from taking action it was, and is,
authorized to take. Professional Air Traffic Controllers Organization,
Case No. O-AR-100, 5 FLRA No. 101 (1981).
Second, the loss of overtime earnings opportunity asserted did not
result from the unfair labor practice alleged and found, namely the
failure and refusal to give notice of the policy decision prior to its
implementation to permit negotiation on impact and implementation. That
is, the discontinuance of all routine instream boarding was not "an
unjustified or unwarranted personnel action" within the meaning of
Section 702 of the Civil Service Reform Act of 1978 which amended
Section 5596(b) of Title 5, United States Code to provide for back pay
in case of unfair labor practices and grievances, notwithstanding that
Respondent's violation of its bargaining obligation with respect to
"procedures" or "appropriate arrangements for employees adversely
affected by the exercise of any authority under this section by such
management officials", constituted an unfair labor practice. cf.
Defense Logistics Agency, 5 FLRA No. 21 (1981) where the Authority
ordered reimbursement of "an amount equal to the dues that AFGE would
have received but did not receive as a result of the unlawful refusal to
honor . . . valid dues deduction authorizations."
It is recognized that the Authority has, in appropriate cases,
granted a status quo ante remedy in impact and implementation
situations, San Antonio Air Logistics Center (AFLC), Kelly Air Force
Base, Texas, 5 FLRA No. 22 (1981); Norfolk Naval Shipyard, Portsmouth,
Virginia, 6 FLRA No. 22 (1981); but it has denied a status quo ante
remedy when inappropriate, General Services Administration, 6 FLRA No.
77 (1981). Under the circumstances, a status quo ante remedy would be
inappropriate; however, in order to remedy the violation by Respondent
of its bargaining obligation, I shall order that Respondent forthwith
withdraw its memoranda of April 7 and April 17, 1981; to reinstate its
prior discretionary policy regarding instream boarding; that it notify
the Union of any proposed change of policy regarding instream boarding;
and, upon request, negotiate in good faith on the impact and
implementation of any such proposed change of policy. Obviously, such
order will affect the exercise of a reserved right of management, but
will not prevent Respondent from acting at all; rather, Respondent will
be free to act, provided only that it acts in conformance with its
bargaining obligation under the Statute.
Accordingly, having found that Respondent violated Secs. 16(a)(5) and
(1) of the Statute by its unilateral implementation of its "Policy on
Stream, Bay, and Outside Harbor Ship Boardings", I recommend that the
Authority adopt the following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
the United States Department of Agriculture, Plant Protection and
Quarantine, Animal and Plant Health Inspection Service, shall:
1. Cease and desist from:
a) Instituting changes in the established discretionary policy
regarding instream boarding without first notifying the National
Association of Agriculture Employees, formerly the Federal Plant
Quarantine Inspector's National Association, the exclusive
representative of its employees, and affording such representative
the opportunity to negotiate in good faith, to the extent
consonant with law, regulations and the Statute, with regard to
the impact and implementation of such change.
b) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute.
a) Rescind and withdraw the "Policy on Stream, Bay, and Outside
Harbor Ship Boardings" unilaterally implemented by memoranda dated
April 7 and April 17, 1981.
b) Reinstate the discretionary policy concerning instream
boardings as it existed prior to April 7, 1981.
c) Notify the National Association of Agriculture Employees,
formerly the Federal Plant Quarantine Inspector's National
Association, of any proposed change of policy regarding instream
boarding and, upon request, negotiate with such representative, to
the extent consonant with law and regulations, concerning the
impact and implementation of such change.
d) Post at its headquarters and at all facilities in each
Region, 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 Deputy
Administrator, Plant Protection and Quarantine, and they shall be
posted for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. The Deputy Administrator shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
e) Notify the Regional Director of the Federal Labor Relations
Authority for Region VI, whose address is: P.O. Box 2640, Dallas,
Texas, 75221, in writing, within 30 days from the date of this
Order, what steps have been taken to comply therewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 10, 1982
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 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 any change in the discretionary policy regarding
instream boarding without first notifying the National Association of
Agriculture Employees, formerly the Federal Plant Quarantine Inspector's
National Association, the exclusive representative of our employees and
affording it the opportunity to negotiate, to the extent consonant with
law and regulations, concerning the impact and implementation of such
change. WE WILL rescind and withdraw the "Policy on Stream, Bay, and
Outside Harbor Ship Boardings", which we unilaterally implemented by
memoranda dated April 7, 1981, and April 17, 1981. WE WILL reinstate
the discretionary policy concerning instream boardings as it existed
prior to April 7, 1981. 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 notify the National Association of Agriculture
Employees, formerly the Federal Plant Quarantine Inspector's National
Association, of any intended change of policy regarding instream
boarding and, upon request, negotiate, to the extent consonant with law
and regulations, on the impact and implementation of such change.
. . . (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 any 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, whose address is: Federal Labor
Relations Authority, Region VI, P.O. Box 2640, Dallas, Texas, 75221, and
whose telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1A/ In view of this dismissal, and noting particularly the absence
of exceptions in this regard, we find it unnecessary to pass upon the
Judge's rationale with regard to these allegations of the complaint.
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
as "16(a)(1)."
/2/ Article XI of the parties' agreement provides:
"The parties acknowledge the importance of resolving
differences and disputes informally, at the lowest level of
management. Therefore, it is agreed that prior to filing a charge
of Unfair Labor Practice with the Federal Labor Relations
Authority, they will adhere to the following:
The party alleging a violation under Title VII, 7116, shall
notify the other party, in writing, of the alleged violation and
the intent to file a formal charge at least ten (10) days prior to
filing such a charge. The parties will meet to discuss and attempt
resolution within this period of time." (Jt. Exh. 1, p. 13).
By letter dated May 3, 1981 (G.C. Exh. 3), addressed to Mr. Harvey Ford,
Deputy Administrator, Mr. Eddy, President of the National Association of
Agriculture Employees (hereinafter referred to as "Union") advised
Respondent of its intent to file an unfair labor practice charge. Mr.
Eddy's letter was received by Respondent on May 6, 1981 (Tr. 111), and
was received by Mr. Robert H. Strong, then Respondent's Labor Relations
Specialist (Tr. 106), on May 12, 1981. Mr. Strong credibly testified
that on May 12, 1981, he called for Mr. Eddy but ended up talking to Mr.
Royal E. Sharp, Vice President of the Union, and discussed " . . .
placing instream boarding on the agenda since we had already scheduled a
meeting of May 28 at that time to satisfy the contract provision." (Tr.
114); that on May 15, 1981, he met with Mr. Eddy on general problems
and that, "I think he brought it up to discuss it, and I again suggested
that we not discuss it there in my office since we had already intended
on putting it on the agenda for the consultation meeting. He consented
to it." (Tr. 115). The meeting scheduled for May 28 was subsequently
rescheduled for June 3, 1981 (Tr. 118); "Instream boarding policy" was
placed on the agenda for the June 3 meeting (Res. Exh. 3) and was
discussed on June 3, 1981. The Union, however, had filed its charge,
which was dated May 22, on May 28, 1981.
Not every breach of contract constitutes an unfair labor practice.
General Services Administration, Region 5, Public Buildings Service,
Chicago Field Offices, A/SLMR No. 528, 5 A/SLMR 424 (1975). A clear,
flagrant and persistent breach of contract may rise to the seriousness
of a unilateral change in the contract and, therefore, constitute an
unfair labor practice. Food Safety and Quality Service, U.S. Department
of Agriculture, Washington, D.C., 7 FLRA No. 103 (1982); Watervliet
Arsenal, U.S. Army Armament Command, Watervliet, New York, A/SLMR No.
726, 6 A/SLMR 526 (1976); but if there is no flagrant or patent breach
constituting a unilateral change, differing and arguable interpretations
of an agreement are not unfair labor practices, Food Safety and Quality
Service, U.S. Department of Agriculture, Washington, D.C., supra;
Watervliet Arsenal, supra; Department of Army, Watervliet Arsenal,
Watervliet, New York, A/SLMR No. 624, 6 A/SLMR 127 (1976). Here, of
course, the record would support: a) notification by Respondent on May
12 of its desire to discuss the matter, pursuant to Article XI, at an
already scheduled consultation meeting on May 28; b) a meeting on May
15, 1981, at which the intended charge was brought up by the Union and
Respondent again suggested that discussion be deferred until the
consultation meeting to which Mr. Eddy, President of the Union,
consented. Without more, it is obvious that there was no flagrant or
patent breach, indeed that there was no intent to violate Article XI in
any manner. I found Mr. Strong to be a wholly credible witness, and his
recollection was confirmed by the conceded addition of "Instream
boarding policy" to the agends for the consultation meeting.
Accordingly, I fully credit Mr. Strong's testimony in this regard; but
even if it were assumed, contrary to the affirmative testimony of Mr.
Strong that "He (Mr. Eddy) consented to it", that the Union had not
specifically consented to deferral of the Article XI discussion until
the scheduled consultation meeting, Respondent's deferral of the
discussion until the consultation meeting would not have constituted so
flagrant or patent a breach of contract as to constitute an unfair labor
practice, as Respondent did not demonstrate any purpose or intent to
vitiate its agreement to "meet to discuss and attempt resolution" of the
Union's intended unfair labor practice charge promptly, albeit not
within the 10 day period.
I have reservations that a violation of Article XI by a failure to
"meet to discuss and attempt resolution" within ten days would
constitute a refusal to consult or negotiate, within the meaning of Sec.
16(a)(5) of the Statute, cf., U.S. Department of Defense, Department of
the Army, Army Materiel Command, Automated Logistics Management Systems
Agency, A/SLMR No. 211, 2 A/SLMR 512 (1972) (unfair labor practice based
on alleged failure of Respondent to respond to charge as provided in
Section 203.2 of the Assistant Secretary's Regulations under E.O.
11491); nevertheless, as it is unnecessary to reach or to decide this
question, I express no opinion as to whether a breach of Article XI
would constitute an independent violation of Sec. 16(a)(5) of the
Statute.
/3/ No opinion is expressed or intimated as to whether Sec. 19
applies when negotiations concern solely impact and implementation
inasmuch as such issue is not involved in this case.
/4/ In full agreement with the statement of Judge Oliver in
Department of the Air Force, Scott Air Force Base, Illinois, Case Nos.
5-C1-115 and 5-CA-119 (1979), adopted by the Authority, 5 FLRA No. 2,
that " . . . the mere willingness . . . to receive the Union's
recommendations after the announcement of a fait accompli did not cure
its improper refusal to negotiate in good faith", Respondent's offer
after implementation, whatever its scope, did not cure its violation;
but, as noted in footnote 2, supra, it appears that Respondent acted in
response to its obligation under Article XI to "meet to discuss and
attempt resolution" of the Union's intended unfair labor practice
charge, rather than to offer to negotiate on impact and implementation.