25:0972(81)CA - Navy, Washington, DC and Navy, Naval Supply Center, Oakland, CA -- 1987 FLRAdec CA
[ v25 p972 ]
25:0972(81)CA
The decision of the Authority follows:
25 FLRA No. 81 DEPARTMENT OF THE NAVY WASHINGTON, D.C. and DEPARTMENT OF THE NAVY U.S. NAVAL SUPPLY CENTER OAKLAND, CALIFORNIA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1533, AFL-CIO Charging Party Case No. 9-CA-30108 (19 FLRA No. 7) DECISION AND ORDER ON REMAND I. Introduction This case is before the Authority pursuant to a remand from the United States Court of Appeals for the Ninth Circuit. The court vacated the Authority's original decision and remanded the case for further proceedings consistent with Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429 (9th Cir. 1985) (FEMTC). I; FEMTC, the court reversed and remanded the Authority's determinations in Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 16 FLRA 619 (1984) and American Federation of Government Employees, Local 1533 and Department of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary Store, Alameda, California, 16 FLRA 623 (1984) with respect to proposals concerning paycheck distribution that the Authority found outside the duty to bargain because they concerned the methods and means of performing work. Following the court's remand in FEMTC, we issued our Decision and Order on Remand in Federal Employees Metal Trades Council, AFL-CIO, and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California; American Federation of Government Employees, Local 1533 and Department of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary Store, Alameda, California, 25 FLRA No. 31 (1987) (Mare Island Naval Shipyard). In Mare Island Naval Shipyard, we reviewed the Authority's previous decision that proposals concerning the method of paycheck distribution concern the methods and means of performing work under section 7106(b)(1) of the Statute. We concluded that paycheck delivery does not involve the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. We also concluded that (1) the proposals related to matters affecting working conditions of bargaining unit employees, (2) the agency failed to demonstrate a compelling need for its regulation to bar negotiations on the proposals, (3) the proposals did not interfere with the agency's right to determine its budget or organization, and (4) the proposals were not directly or integrally related to the assignment of work or to determinations as to the personnel by which the agency's operations were to be conducted. Consistent with our decision in Mare Island Naval Shipyard, we conclude in this case that the Respondent U.S. Naval Supply Center (NSC) committed unfair labor practices when it failed and refused to bargain with the Union concerning a proposed change in the method of paycheck and savings bonds distribution. II. History of the Case A. Facts On or about January 14, 1983, NSC unilaterally implemented new pay distribution procedures for employees in the unit. /*/ Under those procedures, all employees hired on or after October 1, 1982 were required to have their paychecks and savings bonds either directly deposited in a financial institution or delivered to a nonwork address. Before implementation of the new procedures, the Union had requested that Respondent NSC negotiate on the substance of the change in paycheck and savings bonds distribution. NSC refused on the grounds that the change constituted a determination as to the "technology, methods, and means of performing work" under section 7106(b)(1) of the Statute and because the negotiations were barred by an agency-wide regulation for which there was a compelling need. The General Counsel issued a complaint alleging that the NSC's failure and refusal to bargain with the Union violated section 7116(a)(1) and (5) of the Statute. The complaint also alleged that Respondent Department of the Navy (Navy) violated section 7116(a)(1) and (5) of the Statute by interfering with NSC's bargaining obligations with the Union on the new pay distribution policy. B. The Administrative Law Judge's Decision The Administrative Law Judge concluded that NSC violated section 7116(a)(1) and (5) of the Statute when it failed and refused to bargain with the Union concerning the proposed change in the method of paycheck and savings bonds distribution. The Judge found that the decision to change pay practices involved a negotiable condition of employment. The Judge also dismissed the complaint against Navy because the Navy did not interfere with NSC's bargaining obligation. C. The Authority's Decision in 19 FLRA No. 7 In its original decision in this case (19 FLRA No. 7 (1985)), the Authority followed the precedent established in the original Mare Island Naval Shipyard case, 16 FLRA 619 (1984). The Authority concluded, contrary to the Judge, that the method of paycheck and savings bonds distribution was a method and means of performing work within the meaning of section 7106(b)(1) of the Statute and was negotiable only at the election of the Agency. Therefore, the Authority found that NSC's refusal to bargain on the change in the method of paycheck and savings bonds distribution did not violate section 7116(a)(1) and (5) of the Statute. The Authority also adopted the Judge's conclusion that Navy did not prevent NSC from fulfilling its bargaining obligation to the Union and dismissed the complaint against Navy. III. Positions of the Parties Following the court's remand, both parties filed supplemental submissions. We have accepted those submissions for filing under section 2429.26 of our Regulations. Navy submitted the same brief in this case as it did in Mare Island Naval Shipyard. The Union essentially states that there is no merit to the Agency's contentions. IV. Analysis As noted above, the Navy's arguments in this unfair labor practice case are the same that it made in the negotiability cases involving Mare Island Naval Shipyard. We fully considered and addressed those arguments in Mare Island Naval Shipyard. Accordingly, for the reasons stated in that decision, we reject the contention in this case that the method of paycheck and savings bonds distribution is not within the duty to bargain. Therefore, the NSC's refusal to bargain with the Union over the proposed change in the method of paycheck and savings bonds distribution violated section 7116(a)(1) and (5) of the Statute. We also find, in agreement with the Judge, that the Navy did not interfere with the NSC's bargaining obligation and therefore did not commit an unfair labor practice. V. Conclusion Pursuant to section 2423.29 of our Regulations and section 7118 of the Statute, we find that the Respondent NSC violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain concerning a proposed change in the method of paycheck and savings bonds distribution. We also find that the Navy did not commit an unfair labor practice. ORDER The Department of the Navy, U.S. Naval Supply Center, Oakland, California, shall: 1. Cease and desist from: (a) Instituting any change in the established policy and practice of the hand delivery of employee paychecks and savings bonds on the premises without first notifying the American Federation of Government Employees, Local 1533, AFL-CIO, the exclusive representative of its employees, and affording the representative the opportunity to negotiate in good faith, to the extent consonant with law and regulations, prior to any decision concerning such policy and practice. (b) In any like or related manner, interfering with, restraining, or coercing its employees in their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Rescind and withdraw the decision to change the method of paycheck and savings bonds distribution unlawfully implemented on January 14, 1983. (b) Reinstate the policy and practice of the hand delivery of paychecks and savings bonds on the premises as it existed prior to October 1, 1982. (c) Notify the American Federation of Government Employees, Local 1533, AFL-CIO of any proposed change regarding the hand delivery of paychecks and savings bonds on the premises and, upon request, negotiate with such representative, to the extent consonant with law and regulations, on any such proposal. (d) Post at its facility at the Department of the Navy, U.S. Naval Supply Center, Oakland, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material. (3) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region IX, in writing, within 30 days from the date of this Order, what steps have been taken to comply with this Order. The portion of the complaint alleging a violation of the Statute by the Department of the Navy is dismissed. Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) The parties stipulated that prior to January 14, 1983 all employees in the bargaining unit had the option of receiving their paychecks and savings bonds at their work location or at a nonwork address. This option had been available to NSC employees for at least 30 years. 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 established policy and practice of the hand delivery of employee paychecks and savings bonds on the premises without first notifying the American Federation of Government Employees, Local 1533, AFL-CIO, the exclusive representative of our employees, and affording it the opportunity to negotiate in good faith, to the extent consonant with law and regulations, prior to any decision concerning such policy and practice. WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind and withdraw the decision to change the method of paycheck and savings bonds distribution which we unlawfully implemented on January 14, 1983. WE WILL reinstate the policy and practice of the hand delivery of paychecks and savings bonds on the premises as it existed prior to October 1, 1982. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 995-5000.