U.S. Naval Ordnance Station, Louisville, Kentucky (Respondent) and Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO (Complainant) 



[ v03 p283 ]
03:0283(43)CA
The decision of the Authority follows:


 3 FLRA No. 43
 
 U.S. NAVAL ORDNANCE STATION,
 LOUISVILLE, KENTUCKY
 Respondent
 
 and
 
 LOCAL LODGE 830,
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS AND AEROSPACE
 WORKERS, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 41-6355(CA)
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO REGIONAL DIRECTOR
 SEYMOUR X. ALSHER'S ORDER TRANSFERRING CASE TO THE FEDERAL LABOR
 RELATIONS AUTHORITY IN ACCORDANCE WITH SEC. 206.5(A) OF THE REGULATIONS
 OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SEC.  304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE
 FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC.  7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
 BRIEFS SUBMITTED BY THE PARTIES, THE AUTHORITY FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SEC.
 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY UNILATERALLY
 MAKING CHANGES IN ITS BLOOD DONOR PROGRAM ON JULY 20, 1978, WITHOUT
 NEGOTIATING ABOUT ITS DECISION WITH THE COMPLAINANT, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES.  THE RESPONDENT'S POSITION IS THAT THE
 PARTIES' NEGOTIATED AGREEMENT CONTAINED A WAIVER OF THE COMPLAINANT'S
 BARGAINING RIGHTS PURSUANT TO SEC. 11(A) OF THE ORDER.  WHILE THE
 PARTIES' LATEST NEGOTIATED AGREEMENT HAD EXPIRED AT THE TIME OF THE
 ALLEGED UNILATERAL CHANGE, THE RESPONDENT CONTENDS THAT THE WAIVER
 CONTAINED THEREIN SURVIVED THE EXPIRATION OF THE AGREEMENT AS A TERM AND
 CONDITION OF EMPLOYMENT, CITING THE FEDERAL LABOR RELATIONS COUNCIL'S
 (THE COUNCIL) DECISION IN INTERNAL REVENUE SERVICE, OGDEN SERVICE
 CENTER, AND INTERNAL REVENUE SERVICE, ET AL, FLRC NO. 77A-40, REPORT NO.
 147 (MARCH 23, 1978).
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 
    THE COMPLAINANT HAS BEEN THE EXCLUSIVE REPRESENTATIVE FOR A UNIT OF
 THE RESPONDENT'S EMPLOYEES SINCE 1962.  CONSECUTIVE NEGOTIATED
 AGREEMENTS HAVE BEEN IN EFFECT SINCE THAT TIME.  THE PARTIES' LATEST
 AGREEMENT WAS ENTERED INTO ON SEPTEMBER 20, 1974 AND WAS AMENDED, IN
 PART, ON SEPTEMBER 20, 1976.  THE AGREEMENT EXPIRED BY ITS TERMS ON
 SEPTEMBER 19, 1977, AND IT WAS EXTENDED BY MUTUAL AGREEMENT UNTIL
 NOVEMBER 19, 1977.  ARTICLE 4 OF THE PARTIES' SEPTEMBER 20, 1974
 NEGOTIATED AGREEMENT DEALS WITH THE EXTENT OF THE PARTIES' BARGAINING
 OBLIGATION.  SECTION 1 OF ARTICLE 4 DEFINES CONSULTATION AS A SEEKING OF
 THE VIEWS OF THE OTHER PARTY WHICH RESULTS IN AN "OBJECTIVE EXPLORATION
 AND CONSIDERATION" OF THOSE VIEWS.  SECTION 1.B(3) STATES THAT
 "CONSULTATION, UNLIKE NEGOTIATION, DOES NOT INVOLVE JOINT DECISION
 MAKING, AND THE CONSULTATIVE PROCESS NEED NOT RESULT IN AGREEMENT."
 ARTICLE 4 THEN STATES THAT "MATTERS APPROPRIATE FOR CONSULTATION COVER
 ASPECTS OF POLICIES, PROCEDURES AND WORKING CONDITIONS THAT WOULD AFFECT
 EMPLOYEES IN THE UNIT", INCLUDING THE CHANGING OF ANY WORK PRACTICE.
 SECTION 2 OF ARTICLE 4 DEFINES NEGOTIATION AS "DISCUSSION BETWEEN THE
 EMPLOYER AND UNION REPRESENTATIVES, ON MATTERS WITHIN THE DISCRETION OF
 THE EMPLOYER, LEADING TO A MUTUALLY AGREED TO WRITTEN EMPLOYER-UNION
 AGREEMENT." AND IT INDICATES THAT "NEGOTIATION MAY OCCUR AT THE TIME AN
 EXISTING AGREEMENT EXPIRES AND A NEW ONE IS REQUIRED." THE NEGOTIATED
 AGREEMENT MAKES NO REFERENCE TO THE RESPONDENT'S BLOOD DONOR PROGRAM.
 
    THE POLICIES AND PROCEDURES CONCERNING THE DONATION OF BLOOD TO THE
 BLOOD BANK BY THE RESPONDENT'S EMPLOYEES WERE LAST SET FORTH IN A 1975
 POLICY STATEMENT KNOWN AS NOSLOUINST 12630.6A.  IT WAS STIPULATED THAT
 IT HAD BEEN THE LONG-STANDING POLICY OF THE RESPONDENT TO GRANT ITS
 EMPLOYEES UP TO FOUR HOURS OF ADMINISTRATIVE LEAVE FOR PARTICIPATION IN
 THE BLOOD DONOR PROGRAM.  ON APRIL 24, 1978, THE RESPONDENT SENT THE
 COMPLAINANT COPIES OF A PROPOSED NEW POLICY STATEMENT CONCERNING THE
 BLOOD DONOR PROGRAM, AND A MEMORANDUM SEEKING COMMENTS REGARDING THE
 NEW
 POLICY.  THE MAJOR CHANGES IN THE PROGRAM WOULD HAVE LIMITED THE
 GRANTING OF ADMINISTRATIVE LEAVE FOR PARTICIPATION IN THE BLOOD DONOR
 PROGRAM TO DAY SHIFT EMPLOYEES AND LIMIT THE PERIOD OF LEAVE GRANTED TO
 TWO HOURS.  THE COMPLAINANT MADE A TIMELY REQUEST FOR NEGOTIATIONS
 CONCERNING THE PROPOSED NEW POLICY PURSUANT TO ITS RIGHTS UNDER SEC.
 11(A) OF THE ORDER.  THE RESPONDENT TOOK THE POSITION THAT THE PARTIES'
 NEGOTIATED AGREEMENT, AT ARTICLE 4 CONTAINED A WAIVER OF THE
 COMPLAINANT'S SEC. 11(A) BARGAINING RIGHTS, AND THAT, WHILE THE
 AGREEMENT HAD TERMINATED, THE WAIVER CONTINUED AS A TERM AND CONDITION
 OF EMPLOYMENT, CITING THE COUNCIL'S OGDEN SERVICE CENTER DECISION,
 ABOVE.  UNDER THESE CIRCUMSTANCES, THE RESPONDENT INDICATED ITS
 WILLINGNESS TO CONSULT WITH THE COMPLAINANT, THEREBY FULFILLING ITS
 OBLIGATION PURSUANT TO ARTICLE 4 OF THE AGREEMENT.  AS THE PARTIES WERE
 UNABLE TO RESOLVE THEIR DIFFERENCES OVER THE EXTENT OF THEIR BARGAINING
 OBLIGATION WITH RESPECT TO THE CHANGES IN THE BLOOD DONOR PROGRAM, THERE
 WAS NEVER ANY DISCUSSION OF THE SPECIFIC MATTERS RAISED BY THE
 RESPONDENT'S NEW POLICY STATEMENT, AND THE RESPONDENT ISSUED A FINAL
 VERSION OF THE NEW INSTRUCTION ON JULY 20, 1978.  THERE HAS BEEN A
 MARKED DECREASE IN THE INCIDENCE OF BLOOD DONATIONS AMONG THE
 RESPONDENT'S EMPLOYEES SINCE THE ISSUANCE OF THAT FINAL INSTRUCTION.
 
    THE COUNCIL'S OGDEN SERVICE CENTER DECISION, CITED ABOVE, INDICATED
 IN PERTINENT PART, THAT:
 
    IN OUR VIEW, EXISTING PERSONNEL POLICIES AND PRACTICES AND MATTERS
 AFFECTING WORKING
 
    CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED
 AGREEMENT, CONTINUE AS
 
    ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT, ABSENT AN
 EXPRESS AGREEMENT BY THE
 
    PARTIES THAT SUCH PERSONNEL POLICIES AND PRACTICES AND MATTERS
 AFFECTING WORKING CONDITIONS
 
    TERMINATE UPON THE EXPIRATION OF THE AGREEMENT OR UNLESS OTHERWISE
 MODIFIED IN A MANNER
 
    CONSISTENT WITH THE ORDER.
 
    THUS, BY THE TERMS OF THE COUNCIL'S OGDEN DECISION, IT IS APPROPRIATE
 TO HAVE ONE PORTION OF A NEGOTIATED AGREEMENT, SEC. 2 OF ARTICLE 4 IN
 THIS CASE, SUPERCEDE OR NEGATE ANOTHER PORTION OF THE AGREEMENT UPON THE
 EXPIRATION OF THAT AGREEMENT.
 
    IN THE AUTHORITY'S VIEW, SEC. 2, ARTICLE 4 OF THE PARTIES' SEPTEMBER
 20, 1974 AGREEMENT, WHICH, AS NOTED ABOVE, INDICATED THAT "NEGOTIATIONS
 MAY OCCUR AT THE TIME AN EXISTING AGREEMENT EXPIRES AND A NEW ONE IS
 REQUIRED," BECAME OPERATIVE AT THE TIME THE PARTIES' AGREEMENT
 TERMINATED ON NOVEMBER 19, 1977, AND IT IS THEREFORE UNNECESSARY FOR THE
 AUTHORITY TO REACH THE QUESTION OF WHETHER SEC. 1, ARTICLE 4 OF THE
 PARTIES' AGREEMENT CONSTITUTED A WAIVER BY THE UNION OF ITS 11(A)
 BARGAINING RIGHTS OR WHETHER SUCH A WAIVER WOULD HAVE SURVIVED THE
 AGREEMENT'S TERMINATION PURSUANT TO PRINCIPLES SET FORTH IN THE
 COUNCIL'S OGDEN DECISION.  THE PARTIES HEREIN HAD BEGUN NEGOTIATIONS FOR
 A NEW AGREEMENT PRIOR TO THE DATE ON WHICH THE SEPTEMBER 20, 1974
 AGREEMENT TERMINATED AND THE PARTIES WERE STILL ENGAGED IN NEGOTIATIONS
 FOR A NEW AGREEMENT DURING THE PERIOD BETWEEN THE DATE OF THE ACTIVITY'S
 SUBMISSION TO THE UNION OF ITS PROPOSED NEW INSTRUCTION CONCERNING BLOOD
 DONATIONS AND THE DATE OF THE UNILATERAL IMPLEMENTATION OF THAT POLICY
 BY THE RESPONDENT.  WHILE THE BLOOD DONOR PROGRAM WAS NOT COVERED BY THE
 PARTIES' SEPTEMBER 20, 1974 AGREEMENT, THE CHANGES BROUGHT ABOUT BY THE
 NEW POLICY REGARDING BLOOD DONATIONS FALL WITHIN THE DEFINITION OF
 MATTERS REQUIRING NEGOTIATION BY THE TERMS OF THE PARTIES' OWN
 AGREEMENT, AS THEY ARE A "MATTER WITHIN THE DISCRETION OF THE EMPLOYER"
 RELATED TO PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITIONS OR OTHER RELATIONSHIPS.  THEREFORE, THE AUTHORITY FINDS THAT
 THE RESPONDENT VIOLATED SEC. 19(A)(1) AND (6) OF THE ORDER BY REFUSING
 TO NEGOTIATE WITH THE UNION REGARDING CHANGES IN ITS BLOOD DONOR PROGRAM
 AS PROPOSED ON APRIL 24, 1978, AND IMPLEMENTED ON JULY 20, 1978, BASED
 ON ITS INCORRECT INTERPRETATION OF THE PARTIES' NEGOTIATED AGREEMENT.
 MOREOVER, THE AUTHORITY FINDS THAT THE ISSUES RAISED BY THE CHANGES IN
 THE BLOOD DONOR PROGRAM RELATE TO EXISTING PERSONNEL POLICIES AND
 PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF
 SEC.  11(A) OF THE ORDER.  IN SO FINDING, THE AUTHORITY REJECTS THE
 RESPONDENT'S CONTENTION THAT THE CHANGES EFFECTUATED PURSUANT TO THE
 REVISED INSTRUCTION CONCERNING THE BLOOD DONOR PROGRAM WERE RESERVED TO
 MANAGEMENT UNDER ITS SEC. 12(B)(3) RIGHT TO RELIEVE EMPLOYEES FROM
 DUTIES BECAUSE OF LACK OF WORK OR FOR OTHER LEGITIMATE REASONS OR ITS
 SEC. 12(B)(4) RIGHT TO MAINTAIN THE EFFICIENCY OF GOVERNMENT OPERATIONS
 ENTRUSTED TO THEM.  IN THIS REGARD, THE RESPONDENT HAS PROVIDED NO BASIS
 TO SUPPORT THE CONTENTION THAT THEY HAD A MANAGEMENT RIGHT TO
 UNILATERALLY MAKE CHANGES IN THE ASPECTS OF THE BLOOD DONOR PROGRAM
 WHICH WERE AT ISSUE, AS NO EVIDENCE WAS PRESENTED AS TO THE RELATIONSHIP
 BETWEEN THE ISSUES RAISED BY CHANGES IN THE BLOOD DONOR PROGRAM AND THE
 RESERVED MANAGEMENT RIGHTS SET FORTH IN SEC. 12(B)(3) AND (4).
 ACCORDINGLY, THE RESPONDENT'S UNILATERAL CHANGES CONCERNING THESE
 MATTERS WAS IN DEROGATION OF ITS BARGAINING RESPONSIBILITY UNDER THE
 ORDER.
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 U.S. NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO NEGOTIATE WITH LOCAL LODGE 830, INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, WITH REGARD TO
 CHANGES IN PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITION, INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 POLICIES AND PROVISIONS OF THE ORDER;
 
    (A) RESCIND NOSLOU INSTRUCTION 12630.6B, DEALING WITH THE BLOOD DONOR
 PROGRAM, DATED JULY 20, 1978.
 
    (B) UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH LOCAL LODGE 830,
 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,
 CONCERNING PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITIONS OF EMPLOYEES REPRESENTED BY LOCAL LODGE 830, INCLUDING
 PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
 
    (C) POST AT ITS FACILITY AT THE U.S. NAVAL ORDNANCE STATION,
 LOUISVILLE, KENTUCKY, 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 COMMANDING OFFICER, U.S.
 NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE 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., MAY 28, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 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 REFUSE TO NEGOTIATE WITH LOCAL LODGE 830, INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, WITH REGARD TO
 CHANGES IN PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITIONS, INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL RESCIND NOSLOU INSTRUCTION 12630.6B, DEALING WITH THE BLOOD
 DONOR PROGRAM, DATED JULY 20, 1978.
 
    WE WILL, UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH LOCAL LODGE
 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
 AFL-CIO, CONCERNING PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING
 WORKING CONDITIONS OF EMPLOYEES REPRESENTED BY LOCAL LODGE 830,
 INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.