19:0497(65)CA - Labor, Washington, DC and ESA, Region 8 Denver, CO and AFGE Local 898 -- 1985 FLRAdec CA
[ v19 p497 ]
19:0497(65)CA
The decision of the Authority follows:
19 FLRA No. 65
U.S. DEPARTMENT OF LABOR
WASHINGTON, D.C. AND EMPLOYMENT
STANDARDS ADMINISTRATION, REGION 8
DENVER, COLORADO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 898
Charging Party
Case No. 7-CA-1109
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondents had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
and the Charging Party filed exceptions to the Judge's Decision, and the
Respondents filed an opposition to the 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 recommended Order, only to the extent
consistent herewith.
The record indicates that since about 1964 compliance officers within
the Respondent's Denver, Colorado Region have, upon request, received
individually assigned government-owned vehicles to assist them in the
conduct of field investigations, which comprise some 80% of their job
duties. Employees were allowed to park their assigned vehicles at their
homes overnight, to store job related equipment and materials in the
vehicles, and to use them, as required, for home to office travel. On
March 5, 1981, the U.S. Department of Labor (Respondent Agency), at
which level there exists the unit of exclusive recognition herein, wrote
to the National Council of Field Labor Locals (NCFLL), the exclusive
representative and the Charging Party's parent organization, concerning
a proposal to substantially reduce automobile travel expenses in the
Agency's Employment Standards Administration. The letter indicated that
one of the "strategies" being suggested to the individual Regional
Administrators to achieve this objective was that the practice of making
individual assignments of government-owned vehicles be discontinued and
that a system of vehicle "pooling" be put into effect. By letter dated
March 9, 1981, the NCFLL, on behalf of its constituent locals, responded
to the above proposal by demanding negotiations "over procedures and
appropriate arrangements regarding the 'strategies' that have been
suggested to the Regional Administrators that impact on bargaining unit
employees." Subsequently, on March 24, 1981, at a regularly scheduled
quarterly labor-management meeting with the Agency, the NCFLL renewed
its request to bargain concerning the impact and implementation of the
changes in the vehicle usage policy which were occurring nationwide.
The Agency declined to bargain with the Union, asserting essentially
that the language of the collective bargaining agreement between the
parties had reserved to management complete discretion in the area of
vehicle assignment and usage. Additionally, on March 20, 1981, the
Employment Standards Administration, Region 8 (Respondent Activity)
announced by memorandum to its employees the discontinuance of
individual government-owned vehicle assignments. No notice of this
change was given to the Charging Party.
The complaint herein alleges that the Respondents violated section
7116(a)(1) and (5) of the Statute by unilaterally implementing a change
in the policy of making individual vehicle assignments to the employees
at the Denver and Colorado Springs, Colorado offices without first
affording the Charging Party and/or the NCFLL an opportunity to bargain
concerning the substance, impact and implementation of the change. As a
separate violation of section 7116(a)(1) and (5), the complaint also
alleges that the Respondent Agency refused to bargain with the NCFLL
concerning its overall plan to reduce government-owned vehicle usage
expenses, of which the change involving individual vehicle assignments
was one aspect.
The Judge found that the Respondents' conduct in terminating the
long-standing practice of assigning government-owned vehicles to its
field employees on an individual basis (and instituting instead a system
of vehicle pooling) did not violate the Statute. Based upon an
evaluation of the overall bargaining history of the parties that
culminated in their most recent agreement, as well as pertinent
agreement language, the Judge found that the Union had consciously
yielded to the Respondents complete discretion concerning the assignment
and use of vehicles during the term of the agreement, and that the
record supported a finding of a clear and unequivocal waiver on the part
of the Union concerning any rights it might otherwise have had to
negotiate any aspect of changes such as those made by the Respondents.
While the Authority adopts the Judge's conclusion concerning the
substance of the decision, the Authority does not agree that the Union
waived its right to bargain over procedures and appropriate arrangements
for employees adversely affected by the termination of individual
vehicle assignments within the Denver Region.
The Authority has previously held that "a waiver will be found only
if it can be shown that the exclusive representative clearly and
unmistakably waived its right to negotiate." See, e.g., Department of
the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981); Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 10 FLRA 172 (1982). In the Authority's view, the
agreement language cited by the Respondents and relied on by the Judge
does not constitute such a clear and unmistakable waiver. See also U.S.
Department of Labor, Occupational Safety and Health Administration,
Chicago, Illinois, 19 FLRA No. 60 (1985), wherein the same assertion was
made that the identical agreement language constituted a waiver of the
union's right to bargain over procedures and appropriate arrangements
for employees adversely affected by the change in government-owned
vehicle usage in another organizational component of the same Agency as
is involved herein. In that case, the Authority adopted the Judge's
finding that the agreement did not contain a clear and unmistakable
waiver of the union's right to bargain over procedures and appropriate
arrangements for adversely affected employees. In the instant case, the
Authority finds that there was an obligation to bargain over procedures
and appropriate arrangements for employees adversely affected by the
termination of individual vehicle assignments within the region and that
the Respondents' failure to do so violated section 7116(a)(1) and (5) of
the Statute. With respect to that portion of the complaint alleging a
failure of the Respondent Agency to bargain with the NCFLL, the
Authority further finds that the Agency violated section 7116(a)(1) and
(5) of the Statute by refusing to bargain, as requested, over procedures
and appropriate arrangements for employees adversely affected by the
reduction in government-owned vehicle usage expenses.
To remedy the unfair labor practice conduct, the Authority finds that
it will effectuate the purposes and policies of the Statute to order the
Activity to bargain, upon request, over procedures and appropriate
arrangements for employees adversely affected by the termination of
individual vehicle assignments; to order that the Agency bargain over
procedures and appropriate arrangements for employees adversely affected
by any proposed reductions in government-owned vehicle usage expenses;
and to order, consistent with law and regulation, that employees be made
whole for losses incurred as a result of the change and for which they
have not otherwise been reimbursed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Labor, Washington, D.C. and Employment
Standards Administration, Region 8, Denver, Colorado, shall:
1. Cease and desist from:
(a) Refusing to bargain with the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, the
exclusive representative of its employees, over procedures and
appropriate arrangements for employees adversely affected by the
reduction in government-owned vehicle usage expenses.
(b) Failing to notify the National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO, or its designated
representatives, of the termination of individual vehicle assignments at
the Denver and Colorado Springs, Colorado offices and affording such
representatives an opportunity to request bargaining over procedures and
appropriate arrangements for employees adversely affected by such
change.
(c) In any like or related manner interfering with, restraining, or
coercing 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 Statute:
(a) Upon request, negotiate with the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, concerning
procedures and appropriate arrangements for employees adversely affected
by any proposed reduction in government-owned vehicle usage expenses.
(b) Upon request, negotiate over procedures and appropriate
arrangements for employees adversely affected by the termination of
individual vehicle assignments at the Denver and Colorado Springs,
Colorado offices.
(c) Consistent with law and regulation, make whole any employees for
losses incurred as a result of the termination of individual vehicle
assignments and for which they have not otherwise been reimbursed.
(d) Post at its facilities within the Employment Standards
Administration, 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 both the head of the Employment Standards
Administration, or a designee, and the Regional Administrator for Region
8, or a designee, and shall be posted and maintained for 60 consecutive
days thereafter, including bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced, or covered
by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, 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.
Issued, Washington, D.C., July 31, 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 refuse to bargain with the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, the
exclusive representative of our employees, over procedures and
appropriate arrangements for employees adversely affected by the
reduction in government-owned vehicle usage expenses. WE WILL NOT fail
to notify the National Council of Field Labor Locals, American
Federation of Government Employees, AFL-CIO, or its designated
representatives, of the termination of individual vehicle assignments at
the Denver and Colorado Springs, Colorado offices and afford such
representatives an opportunity to request bargaining over procedures and
appropriate arrangements for employees adversely affected by such
change. 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 National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, concerning
procedures and appropriate arrangements for employees adversely affected
by any proposed reduction in government-owned vehicle usage expenses.
WE WILL, upon request, negotiate over procedures and appropriate
arrangements for employees adversely affected by the termination of
individual vehicle assignments at the Denver and Colorado Springs,
Colorado offices. WE WILL, consistent with law and regulation, make
whole any employees for losses incurred as a result of the termination
of individual vehicle assignments and for which they have not otherwise
been reimbursed.
(Agency)
(Activity)
Dated: . . . 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 VII,
Federal Labor Relations Authority, whose address is: 1531 Stout Street,
Suite 301, Denver, Colorado 80202, and whose telephone number is: (303)
837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-1109
James E. Culp,
Attorney for Respondents
Cathy A. Auble and
Joseph Swerdzewski,
Attorneys for the General Counsel, Federal Labor Relations
Authority
Before: Isabelle R. Cappello
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge filed on March 30, 1981, by the Charging Party,
the Acting Regional Director of Region 7 of the Federal Labor Relations
Authority (hereinafter, the "Authority") investigated and, on November
22, 1982, filed the complaint initiating this proceeding.
The complaint alleges that Respondent U.S. Department of Labor,
Washington, D.C. (hereinafter, "Respondent-Washington" or "DOL") and
Respondent Employment Standards Administration, Region 8, Denver,
Colorado (hereinafter, "Respondent-Denver") have violated 5 U.S.C.
7116(a)(1) and (5). /1/ It is alleged that Respondent-Washington
violated these provisions on or about March 24, 1981, when it refused to
bargain over proposed reduction in government-owned, vehicle-usage
expenses, and that Respondent-Denver violated them on or about March 20,
1981, when it unilaterally changed the working conditions of its
employees by cancelling the individual assignment of government-owned
vehicles to employees in its Denver and Colorado Springs offices and by
substituting the pooling of government-owned vehicles in these offices,
without providing prior notice to the National Council of Field Labor
Locals of the American Federation of Government Employees (hereinafter,
"NCFLL") or Local 898 and affording them the opportunity to bargain over
the substance, impact and implementation of this change.
Respondents deny violating the Statute. They argue that the 1981
changes did not change working conditions and that the NCFLL waived any
right to impact bargaining by virtue of Articles 2 and 17 of the
applicable collective bargaining agreement (also referred to as the
"contract"). See TR13-15. They also argue that this is simply a case
of contract interpretation, and should have been resolved through the
contract's grievance-arbitration procedures.
A hearing on the issues was held in Denver, Colorado, on January 13,
1983. The parties appeared, adduced evidence, and examined witnesses.
Briefs were filed by the parties on February 14, 1983. Based upon the
record made in this proceeding, my observation of the demeanor of the
witnesses, and the briefs, I enter the following findings of fact,
conclusions of law, and recommended order.
Findings of Fact /2/
1. It is admitted that the Charging Party (also referred to as
"Local 898") is a labor organization within the meaning of 5 U.S.C.
7103(a)(4), that Respondent-Washington is an agency within the meaning
of 5 U.S.C. 7103(a)(3), and that Respondent-Denver is a subordinate
activity of Respondent-Washington.
2. It is admitted that NCFLL is the certified exclusive
representative of all DOL employees stationed throughout the nation in
field offices of Respondent-Washington, with certain exceptions not here
relevant. Local 898 is one of many affiliates of NCFLL.
The 1978 contract and its bargaining history
3. The NCFLL and DOL have been parties to a collective bargaining
agreement ("contract") since January 28, 1970. See R1.24. On August
17, 1978, the 1970 contract was replaced by one which has been in effect
during all times material to this proceeding. See GC2.112.
4a. Article 17 of the 1978 contract provides as follows:
Section 1-- Assignment of GSA Vehicles or Leased Vehicles
(A) Employees may be assigned GSA vehicles or leased vehicles
in accordance with GSA usage objectives which for passenger
carrying vehicles is a minimum of 3,000 miles per quarter or
12,000 miles per year.
(B) GSA or leased vehicles may be made available by the
supervisor to those employees who do not wish to drive their POV
and are required to travel on official business on a daily or
almost daily basis and/or there is no public transportation
available, or when an employee is required to carry heavy and/or
bulky equipment for the performance of his/her job.
(C) It is agreed and understood that no employee shall be
required to provide a privately owned vehicle for use on
Department business or to maintain a privately owned vehicle as a
condition of employment.
Section 2-- Use of GSA Vehicles
In accordance with GSA requirements that Government-owned or
leased vehicles be used only for official purposes, vehicles
assigned to employees on either a specific trip or regular basis
may be parked at or near the employee's residence during non-duty
hours only if the employee is required by his/her supervisor to
travel to a temporary duty post in the morning or return home at
night without first reporting to his/her duty station, and/or the
supervisor has determined that it is more advantageous to the
Government to do so. In such event the supervisor will give the
employee prior written approval to park the Government-owned or
leased vehicle at or near his/her residence during non-duty hours.
Section3-- Unsafe Vehicles
Any GSA vehicle or leased vehicle which is reported to be
unsafe by the operator shall be returned immediately to GSA or the
leasing company (or such facility contacted for instructions) for
repair or replacement. If the vehicle cannot be repaired or
replaced, the employee will, as soon as practicable (within an
hour if possible, provide the supervisor with an estimate of the
situation and obtain appropriate instructions.
See GC2.42-43. There was no similar article in the 1970 contract which
mentioned GSA cars only in connection with safety and health.
4b. Doyle Loveridge testified to the intent of the parties in
negotiating Article 17 of the contract. He was a member of management's
negotiating team and attended all bargaining sessions. Part of his
testimony was as follows. During negotiations on the 1978 contract, DOL
"wanted to tie down very specifically and carefully how (GSA and POV)
cars (were) to be used so that (it) could control (its) expenses and
control how (it would) get (its) work done." (TR84). /3/ GSA cars are
"a very critical budget item" to the Wage and Hour Division, which is a
part of the Employment Standards Administration ("ESA") of DOL, and to
the Occupational Safety and Health Administration ("OSHA"), another
subordinate activity of DOL. ESA and OSHA require extensive travel of
their employees, in carrying out their responsibilities. DOL felt that
it had to maintain discretion over the use of GSA cars, in negotiating
Article 17 of the contract. Therefore, DOL insisted that the key word
"may" be used in referring to GSA cars being assigned to employees. The
NCFLL bargained for use of the word "will." During the negotiations over
Article 17 "the concept of pooling or renting cars" was specifically
considered (TR89 and see also 103-104 and 115-116). Management pointed
out that, while it recognized its obligation to furnish vehicles to
compliance officers ("CO's") of ESA and OSHA, there were many ways of
doing that, including assignment of cars, pooling of cars, and public
transportation in metropolitan areas. These various methods were
discussed at great length. NCFLL took the bargaining position that, if
employees "wanted an assignment of a car to them individually, that if
they required the use on a daily basis, that management must assign a
car" (TR89-90). Management insisted that it had to have "discretion to
provide transportation in other methods" (TR90). There were no specific
negotiations over how assignment of cars was to be terminated. All the
union members of the bargaining team were from the Wage and Hour
Division of ESA and were "very familiar" with the usage of GSA and POV
cars because it was so important to their activities" (TR89).
4c. Howard Butler also testified as to the intent of the parties in
negotiating Article 17 of the contract. He was president of NCFLL, at
the time of the negotiations, and also attended all bargaining sessions.
He is a compliance officer for the Wage and Hour Division. Part of his
testimony was as follows. Article 17 "was standards negotiated between
the Council and the Department whereas employees of the Department of
Labor if they met the standards would expect to receive from the U.S.
Department of Labor either a GSA vehicle or a leased vehicle" (TR 129
and see also T4130 and 131). The "immediate supervisor" of the
individual employee applied "the test", namely whether a field employee
"had to go out to temporary duty points on a regular basis" to perform
"the majority of their work" (TR130). If employees met this test, they
would "(a)bsolutely" have a vehicle to do so, which would include
"individual assignments of cars" (TR130). "Absolutely", became "I
think" when, on cross-examination, Counsel for Respondents asked whether
Article 17 meant that "management provided GSA cars to individuals on an
individual basis" (TR135) and after Mr. Butler conceded that the word
"may," eventually adopted in Article 17, does mean that "it is not
required" (TR134). He also testified: "I think we had mandatory
language," when asked whether the union "did propose mandatory language
for the requirement that the government provide cars for these
individuals" (TR134). Mr. Butler agreed with Mr. Loveridge that there
were no specific negotiations on how to terminate use of
individually-assigned cars.
4d. Mr. Loveridge's testimony was given in a confident manner, and
was consistent with a rational reading of the language of Article 17.
Mr. Butler seemed less sure of his facts; and, if he meant to testify
that employees had an absolute right to an individually-assigned car,
his testimony is inconsistent with the discretionary language adopted.
Where their testimony is in conflict, I credit that of Mr. Loveridge.
Specifically, I find that Section 1(A) of Article 17 clearly means that
management reserves a discretionary right to assign GSA vehicles which
includes assigning them on a pooled or doubling-up basis and requiring
them to be parked at the office, overnight.
5a. Article 2 of the 1978 contract deals with "Governing Laws and
Regulations." Section 5 provides as follows:
Section 5-- Management Proposals for Change During the Term of
the Agreement
(A) Management agrees to transmit to the NCFLL proposed changes
relating to personnel policies, practices, and matters affecting
working conditions of bargaining unit employees, or which impact
on them, proposed during the term of this Agreement and not
covered by this Agreement, as far in advance as possible.
(B) Upon receipt of such a proposed change from Management, the
NCFLL may, within 15 working days, request negotiations concerning
the proposed change.
(C) Upon timely request from the NCFLL, the parties shall meet
and confer within 30 calendar days concerning any negotiable
aspects of the proposed change and/or its impact on bargaining
unit employees.
(D) Any changes of regulations or amendments to this Agreement
which are negotiated and agreed to pursuant to this Section will
be duly executed by the parties and will become an integral part
of this Agreement and subject to all of the terms and conditions
of this Agreement.
See GC2.4-5.
5b. The 1970 contract, in Article 4, contained its Governing
Regulations" (R1.3); and it contained no section similar to that quoted
in finding 5a, supra. See R1.3-4. Article 5 of the 1970 contract did
contain the following language, however: " . . . any prior benefits and
practices and understandings which have been mutually acceptable to the
parties which are not specifically altered by this Agreement shall not
be changed unless mutually agreed to by the parties" (R1.4-5).
5c. Mr. Loveridge gave undisputed testimony as to the intent of
Section 5 of Article 2, as quoted in finding 5a, supra. He testified
that management negotiated "circumstances where impact negotiations
would have been required," and "clearly intended to limit those where it
would be required and to those that are not specifically negotiated
during this process" (TR93 and see also TR94). Management made
proposals to accomplish this.
5d. Mr. Loveridge also testified that the NCFLL made proposals which
would have resulted in everything going to it for impact negotiation.
See TR94-95 and R3i). Discussions took place on what the management
language meant, namely that subjects covered by the contract would
"automatically be excluded from referral" (TR95). The language proposed
by management became the final language.
See TR95 and compare R3k.4 with the language of Section 5 of Article
2 set forth in finding 5a, supra. Mr. Butler, called as a rebuttal
witness, did not dispute this testimony of Mr. Loveridge concerning
Section 5 of Article 2. Nor did any other union negotiator.
Accordingly, I credit the testimony of Mr. Loveridge, and find that
Section 5 of Article 2 was intended to limit bargaining, and not to
require it as to matters covered by the contract, for example, the
discretionary assignment of vehicles to employees, set forth in Article
17, as quoted in finding 4a, supra.
6a. Section 6 of Article 2 of the 1978 contract provides:
Section 6-- Past Practices
It is agreed and understood that any prior benefits and
practices and understandings which have been reduced to writing
and were mutually acceptable to the parties and which are not
specifically covered by the Agreement or in conflict with it since
the granting of exclusive recognition shall not be changed unless
mutually agreed to by the parties.
See GC2.5.
6b. Mr. Loveridge also testified as to the intent of Section 6 of
Article 2 of the 1978 contract, as quoted in finding 6a, supra. He
testified that:
Well, at the time of negotiation it was recognized that there
were a lot of agreements in the various locals that may have been
reached and that were not familiar to everyone and it was very
clear that we were negotiating a new contract, that we wanted to
include and make this as comprehensive a contract as possible, and
that it would not include any part practice that would carry
forward with the exception of any of those that had been reduced
to writing, and anything that had not been included in this
contract. If we bargained and negotiated about an item then there
would be past practice carried forward to that item.
(TR96). He testified that there were discussions on this matter, and
that NCFLL acquiesced in the language proposed by management. Mr.
Butler, testifying as a rebuttal witness, did not dispute the testimony
of Mr. Loveridge concerning Section 6 of Article 2. Accordingly, I
credit this testimony of Mr. Loveridge.
Notice procedures
7. Under the 1978 contract, Respondent-Washington notifies the NCFLL
of Article 2, Section 5 changes. For local changes, notice is given to
designated regional representatives, with a copy to the president of
NCFLL.
The alleged violative act by DOL
8. On March 5, 1981, the Director of the Division of Collective
Bargaining for DOL sent Mr. Butler, the then President of NCFLL, the
following letter.
This is to advise you that ESA is proposing to reduce
automobile travel expenses by 25%. This reduction will apply to
the total cost of automobile travel. With regard to GSA car
expenses the following strategies have been suggested to the
Regional Administrators:
(1) Pooling cars at the Area Office or Field Station.
(2) Doubling-up in the utilization of cars.
(3) Strict limitation of home-to-office travel in individually
assigned cars by careful monitoring of daily work assignments
and/or elimination or restriction of overnight parking privileges.
(4) Review of current vehicle utilization to determine the
propriety of individual car assignments, and elimination or
reallocation of cars where the 3,000 miles per quarter objective
and other relevant criteria are (sic) not being met.
(5) Utilization of GSA motor pools for daily dispatch of
vehicles.
(6) Pooling cars between ESA agencies and/or other DOL
agencies.
If you have any comments on these changes, please contact this
office within fifteen (15) days of receipt of this letter.
See GS3(a) & (b).
9. On March 9, 1981, a vice-president of NCFLL, in a reply to the
March 5 letter from DOL demanded "bargaining over procedures and
appropriate arrangements regarding the 'strategies' that have been
suggested to the Regional Administrators that impact on bargaining unit
employees" (GC4).
10. At the next regular quarterly meeting between NCFLL and
Respondent-Washington, held on March 24, 1981, the demand for bargaining
as set forth in finding 9, supra, was placed on the agenda for
discussion. The representatives for the union did not challenge the
right of management to do the things necessary to cut back on the
budget, but requested impact and implementation bargaining, for
instance, over "how you are going to reassign whatever cars are left
over" (TR28). The union also wanted to discuss "the impact this would
have on the performance of the compliance officers who are required
presently and were then also to maintain a certain level of performance
or productivity," and what would be the impact on their performance
appraisal, if these officers were forced to sit in an office, rather
than be out in the field performing their investigative role (TR28).
Also the union wanted to discuss the monetary impact on the CO's who,
"facing the possible repercussions of a bad rating," would have "to pick
up (their) keys and take out (their) own personal vehicle" (TR29). The
union also wanted to know about accident liability and overall
reimbursement. These union concerns were not limited to any geographic
area.
11. Productivity standards for the CO's did not change in 1981. The
standards in 1981 and now require "at least 70 percent inspection
activity on the part of the (CO's)" (TR34).
12. Management response to these union concerns was that it felt all
these issues were addressed by Article 17 of the 1978 contract, that is,
that it had "the right to assign" and "the right to take away the cars"
(TR30). There were no negotiations over this matter at the March 24
meeting. At a subsequent session of the March quarterly meeting, NCFLL
raised the issue again. Management response was that it would not
negotiate the issue, but would let NCFLL know that "formally" (TR36).
13. In March 1981, "(j)ust about everyone had a vehicle individually
assigned to them" (TR35). Any change would "affect every office that
lost cars from the east coast to the west coast" (TR35).
14. In July 1981, NCFLL placed the matter back on the national
bargaining table, because it had not received a formal response to its
bargaining demand of March 9. No national-level bargaining over the
matter has taken place, however.
15a. In the period of time between the March and July quarterly
meetings, the NCFLL was advised by various presidents of its locals that
CO's in ESA and OSHA were required to turn in their
individually-assigned, government-owned vehicles, and that the ESA and
OSHA regions were pooling these vehicles.
15b. In the New York City Region, ESA and OSHA employees were
required to turn in their individually assigned cars. These same
employees experienced a cutback in availability of cars and were,
therefore, subject to an arrangement whereby the remaining cars were
available only upon special request by the employees.
15c. In Region 4, Atlanta, employees were required to turn in their
individually assigned cars. The cars were then pooled, parked at the
office, and shared among the employees. The result was that employees
would not have a car available in order to make inspections and would
consequently have to work in the office, waiting for a car to become
available instead of making field trips. In particular, one field
station experienced a 50 percent cutback in car availability and,
because the travel in that field station is extensive, two of the four
employees do not have a car for a week at a time.
15d. In Region 6, Dallas, employees had to turn in their
individually-assigned cars, and the cars were pooled. The new rules
required that any car checked out from the pool in the morning had to be
returned by 4:30 that same afternoon. A similar result occurred in
Region 8, Denver, and Region 7, Kansas City.
15e. In Region 5, Chicago, the employees were required to turn in
their individually-assigned vehicles. An unspecified number of these
vehicles were returned to GSA in order to realize a cash savings. The
result was that fewer cars were available for employee use, so the
employees had to rotate usage of the cars. Similar actions were taken
in the other regions, and employees in those regions were likewise
affected.
15f. Of the 10 DOL regions, all were affected by the change-- "some
greater than others" (TR41).
The alleged violative Act by Respondent-Denver
16. The charge in this case was filed by the President of Local 898,
representing employees in Region 8, headquartered in Denver, Colorado.
There are two other locals in Region 8-- Local 3416 and Local 3505.
Each local has a designated regional representative, each of whom is
supposed to receive notice of local changes in Region 8. The president
of Local 898 filed the complaint on the day after she learned, on March
24, 1981, from a union steward, that, on March 20, 1981, the ESA Area
Administrator of the Denver Area had sent out individual memorandums to
each CO, in which he notified each of changes in ESA car assignments.
See TR52 and GC5(A) and (b). Management did not give notice of the
change to the union's designated regional representatives.
17. The March 20, 1981, memorandum from the ESA Area Administrator
read as follows:
Effective 4-01-81, the following changes will be made which
will affect all personnel assigned to the Denver Area office.
Area Office.
a. All individual assignments of GSA vehicles on a permanent
basis will be cancelled.
b. A pool of six GSA automobiles will be maintained for the
use of all CO's assigned to the Denver AO. Three GSA vehicles
will be turned into GSA Motor Pool prior to 4-01-81.
c. The GSA pool cars will be parked in existing parking spaces
at the Area Office overnight and on weekends. Exceptions to this
will be considered on an individual basis.
d. The GSA pool cars will be utilized by all CO's while
conducting official business.
e. Any CO who elects to drive their own private vehicle, when
a pool car is available, will be reimbursed at a reduced rate of
16 1/2[ per mile. If a pool car is not available, use of a
privately owned vehicle, if approved by your supervisor, will be
reimbursed at 22 1/2[ per mile.
f. If a pool car is not available and the CO does not wish to
use their own vehicle, we will consider the use of a dispatch
vehicles from GSA when economical, feasible, and necessary.
Colorado Springs Field Station
a. All individual assignments of GSA vehicles on a permanent
basis will be cancelled.
b. A pool of two GSA automobiles will be maintained for all
CO's assigned to the Colorado Springs Field Station.
c. The GSA pool cars will be parked in existing parking spaces
at the Field Station Office, overnight and on weekends.
Exceptions to this will be considered on an individual basis.
d. The GSA pool cars will be utilized by all CO's while
conducting official business.
e. Any CO who elects to drive their own private vehicle, when
a pool car is available will be reimbursed at a reduced rate of 16
1/2[ per mile. If a pool car is not available, use of a privately
owned vehicle, if approved by your supervisor, will be reimbursed
at 22 1/2[ per mile.
Fort Collins Field Station
Use of the CO's privately owned vehicle in this Field Station
will remain unchanged at this time.
Bismarck, Fargo, Sioux Falls and Rapid City Field Stations.
GSA automobile assignments in these Field Stations will remain
unchanged at this time.
Pueblo Field Station.
GSA automobile assignments in this Field Station will remain
unchanged at this time.
If you have any questions regarding these changes please
contact me.
18. Before implementation of the April 1, 1981 changes, the Area
Administrator of the CO's, and a union steward met and discussed "how to
implement what (the CO's) were told they were going to do (in the March
20 memorandums)" (TR74). During these discussions, the Area
Administrator, Wallace Barker, told the steward and the CO's that
"(h)ehad been ordered to get rid of some cars, cut the expenses," and
that he had no latitude in the matter (TR75). /4/
19. The ESA Denver area administrated by Mr. Barker covers Colorado
and North and South Dakota. CO's in this area are out in the field,
doing investigative work, between 75 and 80 percent of their worktime.
In the Denver Area Office, at the time of the March 20, 1981,
memorandums set forth in finding 17, supra, there were 11 CO's. The
Denver area CO's spend between 80 to 90 percent of their worktime in the
Denver metropolitan area. They also cover Boulder and some smaller
towns east and west of Denver. CO's in seven field stations cover the
rest of the geographic area under the jurisdiction of ESA's Region 8.
20. From 1964 until April 1, 1981, any CO in the Denver Area Office
who wanted an individually-assigned GSA car had one assigned to him.
They took the GSA cars home, parked them at their residences, and used
them all week long, whenever they needed them. After April 1, three
compliance officers shared two GSA cars; parked the cars downtown in
designated parking spots, rather than taking them to their residences;
and checked the cars in and out, each day. One CO had always driven his
own personal car, and continued to do so, after April 1. Now, there are
nine CO's. One still drives his personal car. The other eight are
divided into pairs sharing one GSA car; and there is a "floating
vehicle" which each CO has every eighth day (TR63).
21. The sharing of GSA cars has affected the time in which some CO's
can complete investigations. Depending on where the field
investigations are, extra time is spent in travel. One CO estimated
that, since the April 1, 1981, change, he has lost about an hour a day
to travel time. Because the cars are kept downtown, one CO, who lives
13 miles from the Area Office, testified that he has found it
"impossible" to schedule early morning and night interviews of
employees, when an employer asks that the employees not be interviewed
at the work establishment (TR67). Before April 1, 1981, this GO
generally left from his home to go to the establishment he was
investigating, and then returned directly to his home. He basically
only came into the Denver Area Office to type up reports, do travel
vouchers, and attend meetings. This CO spends 60 percent less time in
the field, since he lost his individually-assigned car.
22. In July 1981, critical elements were assigned to each job. It
seemed to one CO that, since this date, it has been harder to get an
extension to complete an investigation on which there are problems. He
could not say whether he had a decrease in productivity requirements
since July 1981. He thought he was taking longer to do cases.
23. One CO in the Denver Area Office now uses his private car for
official business about five times a month. Before April 1, 1981, he so
used his private car "maybe once a year" (TR72). He finds that he now
has to drive over 26 miles before he can charge a mile as a business
expense. This is because travel regulations now require that he deduct
home-to-work travel. It used to be that he was reimbursed for such
travel.
24. Loss of the individually-assigned car has also meant the loss to
the CO's of a "portable office" (TR73). One CO used his car to keep
supplies, handbooks, foul-weather equipment, and a hard hat. With a
shared car, such use is no longer "available" because of "too many
people using a car and not replacing things" (TR73). These materials
weigh 50, 60, or 70 pounds. He now carries needed materials in his
briefcase.
25. The one CO who testified as set forth in findings 21, 22, 23,
and 24, supra, was Donald Jack Klein. He felt that his situation was
"typical," and that all CO's in his office were "affected in the same
manner" (TR76). He knows this because they "talk all the time" (TR76).
His testimony was basically unrebutted, except for testimony that
studies had been made, since April 1, 1981, indicating that productivity
of the CO's had increased since pooling of cars replaced
individually-assigned cars. See TR117, 120, and 121-124. The methods
used to make the study were not shown; and the studies themselves were
not introduced into evidence. The results of the studies may be
unreliable, in that the work of supervisors was counted and, for a short
while at least, there were fewer supervisors in 1980 than in 1981. See
TR124-125. Mr. Klein was knowledgeable about the work of the CO's and
appeared honest and sincere, in giving his testimony. It also makes
sense that the use of an individually-assigned car would allow a CO to
schedule his field work in a more efficient manner than having to depend
upon his turn coming up for use of a pool car, and that the productivity
of the CO would be higher, as a result. Accordingly, I find that the
pooling of cars in ESA's Region 8 has made the work of the typical CO
more difficult, and has made him somewhat less productive.
27. CO's in the Colorado Springs Field Station have worse mobility
problems than in the Denver Area Office. There, three CO's share two
cars. CO's at the Colorado Springs station cover areas as far away as
300 miles, over some rough terrain, which is hard to travel over in the
wintertime. It is office policy that if a CO goes on a trip out of
town, he must try to schedule a full week away from the office. So,
when two of the three CO's at Colorado Springs are away for a week, the
third one has no vehicle to use during that week. One CO in Colorado
Springs who has received a poor performance rating since the April 1,
1981, recission of individually-assigned cars, attributes his
performance problems to this change.
Discussion and Conclusions
A. Since, under their applicable collective bargaining agreement (the
1978 contract) the parties reserved to management complete discretion as
to the assignment of vehicles to employees who needed them to perform
their duties, the decision here at issue, to terminate the assignments,
did not constitute a bargainable change in working conditions. /5/
Compare Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA
No. 97, 9 FLRA 774 (8/4/82). The decision to terminate individual
assignments of cars, and switch to pooling, was simply implementation of
the 1978 contract between the parties. The fact that management allowed
to continue, for several years after signing the 1978 contract, the past
practice of assigning vehicles to employees on an individual basis, was
also an exercise by management of its bargained-for-and-won right, under
the contract, to exercise complete discretion over the matter.
B. Furthermore, in Article 2, Section 5(A) of the 1978 contract (see
finding 5a, supra,) management bargained for and won the right to notify
the union only of those proposed changes affecting working conditions,
or which impact on them, which were "proposed during the term of this
Agreement and not covered by this Agreement." Individual assignment of
cars, pooling of cars, and other means of providing cars for employees
was discussed, at great length, during the contract negotiations. See
findings 4b and d, supra. All the union members on the bargaining team
were from the Wage and Hour Division of ESA and were "very familiar"
with the usage of GSA and POV cars because it was "so important to their
activities" (TR89 and finding 4b, supra). How cars were to be assigned
was finally left to management's discretion, as already discussed.
Thus, Article 2, Section 5(A) constitutes a clear and unmistakable
waiver by the union of its bargaining rights over the matter of car
assignments, including the institution of pooling in lieu of the
individual assignments of GSA cars. /6/ Unpersuasive is the argument
made by the General Counsel, at page 27 of the brief, that because
termination of individually-assigned cars was not specifically discussed
at the negotiations, the right to bargain over this aspect of
management's discretion was not waived. Termination of vehicles is
subsumed into the topics discussed and the complete discretion won by
management, after hard bargaining over how cars should be assigned.
As the General Counsel concedes, at page 26 of its brief, bargaining
history can be and has been relied upon in determining whether a union
has made a clear and unmistakable waiver of a bargaining right. See,
e.g. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
No. 2, 5 FLRA at page 8 of the Judge Oliver's decision, which was
adopted by the Authority. The bargaining history here supports
Respondent's arguments that a clear and unmistakable waiver has
occurred, in this case, and that it need not transmit to the union
proposed changes relating to the assignment of vehicles. See findings
5c and d, supra.
C. Finally, the clear impact of Article 2, Section 6 of the 1978
contract (see finding 6a, supra) is that the parties agreed that past
practices, not reduced to writing, and specifically covered by the
Agreement, could be changed without mutual agreement of the parties.
See finding 6b, supra. There was no evidence that the past practice of
assigning cars to employees, on an individual basis, was reduced to
writing. And Article 17 of the 1978 contract does specifically cover
the matter of car assignments. See finding 4a, supra. Thus, the
Authority's decisions on past practices, cited at pages 21-23 of the
General Counsel's brief, do not control the outcome of this particular
case.
The General Counsel notes, in footnote 22 of page 20 of the brief,
that, in a similar factual situation, which concerned DOL's Chicago OSHA
office change in the assignment of GSA cars, Administrative Law Judge
Samuel A. Chaitovitz found a violation where Respondent failed or
refused to bargain over adverse impact and implementation. See U.S.
Department of Labor, Occupational Health and Safety Administration,
Chicago, Illinois, and National Council of Field Labor Locals, American
Federation of Government Employees, Case No. 5-CA-978, OALJ-82-126
(August 31, 1982). His decision involves the same articles of the same
contract as are here involved. Whether the bargaining history of those
articles was established in the case before him is not clear from his
decision. In any event, to the extent that the records made in these
two cases may be similar, I respectfully disagree with my esteemed
colleague. /7/
Thus, it must be concluded that the General Counsel has not here
established, by a preponderance of the evidence, that Respondent
violated the Statute, as alleged. This conclusion makes consideration
of other issues raised by the parties unnecessary.
Ultimate Findings and Order
Respondents have not been shown, by a preponderance of the evidence,
to have violated the Statute, as alleged.
Accordingly, the complaint in this case should be, and hereby is
dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 7, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ These sections provide as follows:
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; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . .
/2/ The following abbreviations will be used herein. "TR" refers to
the transcript. "GC" refers to the exhibits of the General Counsel, and
"R" refers to those of Respondents. "GCBr" refers to the brief of the
General Counsel and "RBr" to that of Respondents. Multipage exhibits
and the briefs will be designated by page or paragraph number following
the exhibit or brief designation.
/3/ "GSA" refers to government-owned cars. "POV" refers to
privately-owned cars.
/4/ Mr. Barker subsequently testified on behalf of Respondent. He
was not asked whether he had, or had not made such statements. I have
accordingly credited the testimony of the witness who testified to these
statements. This witness, Donald Jack Klein, appeared to be honest,
sincere, and sure of his facts.
/5/ The only restriction on management, in the 1978 contract, is that
management may not require the use of a POV as a condition of
employment. See finding 4a, supra, quoting GC2.42-43, Article 17,
Section 1(C).
/6/ Statutory rights to negotiate can be waived, if done "clearly and
unmistakably." Department of the Treasury, United States Customs
Service, Region I, Boston, Massachusetts, and St. Albans, Vermont
District Office, 10 FLRA No. 100, 10 FLRA at 567 (1982). See also
Nuclear Regulatory Commission, 8 FLRA No. 124, 8 FLRA at 717 (1982).
/7/ Exceptions to the decision in 5-CA-978 were filed on September
30, 1982, by Respondent. In the event exceptions are filed to this
decision, the parties should alert the Authority to the similarity of
the decisions, so that they may be taken up for consideration at the
same time.