09:0762(95)CA - HQ, 77th Army Command, Fort Totten, NY and AFGE Local 2739 -- 1982 FLRAdec CA



[ v09 p762 ]
09:0762(95)CA
The decision of the Authority follows:


 9 FLRA No. 95
 
 HEADQUARTERS, 77TH U.S. ARMY COMMAND
 FORT TOTTEN, NEW YORK
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2739, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-498
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHROITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
 BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE
 AUTHORITY FINDS:
 
    ACCORDING TO THE PARTIES' STIPULATION OF FACTS, THE CHARGING PARTY,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO
 (UNION), IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
 NONPROFESSIONAL EMPLOYEES. THE UNION AND THE RESPONDENT ARE PARTIES TO A
 COLLECTIVE BARGAINING AGREEMENT WHICH HAS BEEN IN EFFECT AT ALL TIMES
 MATERIAL HEREIN.  IN OR ABOUT JANUARY 1980, ACTING UNION PRESIDENT
 BRYANT WAS TOLD BY ONE OF THE SHOP STEWARDS THAT THE RESPONDENT PLANNED
 TO CHANGE THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA
 MAINTENANCE SUPPORT ACTIVITIES (AMSA), FROM MONDAY THROUGH FRIDAY, TO
 TUESDAY THROUGH SATURDAY.  APPROXIMATELY 30 WAGE GRADE EMPLOYEES
 ASSIGNED TO THE AMSA WOULD BE AFFECTED BY THE PROPOSED CHANGE.  ON MARCH
 4, 1980, THE PARTIES MET AND BRYANT REQUESTED NEGOTIATIONS OVER THE
 PROPOSED CHANGE IN THE WORKWEEK.  THE RESPONDENT REPLIED THAT THE ISSUE
 WAS NOT NEGOTIABLE.  BRYANT PROPOSED THAT EITHER UNIT EMPLOYEES
 VOLUNTEER FOR SATURDAY WORK ON A "ROUND-ROBIN" BASIS, OR THAT THE
 RESPONDENT PAY OVERTIME FOR A MONDAY THROUGH SATURDAY WORKWEEK.  THE
 RESPONDENT REJECTED THE VOLUNTEER APPROACH ON THE GROUND THAT IT HAD NOT
 WORKED IN THE PAST, AND ALSO REJECTED THE OVERTIME PROPOSAL BECAUSE NO
 MONEY WAS AVAILABLE TO PAY OVERTIME.  THE RESPONDENT REFUSED TO
 NEGOTIATE OVER THE PROPOSED CHANGE.  BY LETTER DATED JUNE 10, 1980, THE
 CHIEF OF MANAGEMENT EMPLOYEE RELATIONS AT FORT INDIANTOWN GAP, INFORMED
 THE RESPONDENT THAT THE PROPOSED CHANGE WAS A PERMISSIVE SUBJECT OF
 BARGAINING, AND FURTHER THAT THE DEPARTMENT OF THE ARMY HAD ADVISED IT
 NOT TO BARGAIN OVER THE PROPOSED CHANGE.  THEREAFTER, ON JUNE 17, 1980,
 THE PARTIES AGAIN MET AND THE UNION AGAIN REQUESTED NEGOTIATIONS,
 SUGGESTING EITHER VOLUNTEERS OR PAID OVERTIME FOR SATURDAY WORK.  THE
 RESPONDENT AGAIN REFUSED TO NEGOTIATE, STATING THAT THE CHANGE WAS TO 0E
 INSTITUTED ON A TEMPORARY BASIS.  ON JULY 7, 1980, THE RESPONDENT
 UNILATERALLY IMPLEMENTED THE CHANGE IN THE WORKWEEK REFERRED TO ABOVE.
 THE COMPLAINT ALLEGES THAT, BY REFUSING TO NEGOTIATE IN GOOD FAITH WITH
 THE UNION CONCERNING THE CHANGE OF WORK SCHEDULES FOR UNIT EMPLOYEES,
 THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /1/
 
    THE GENERAL COUNSEL CONCEDES THAT THE DECISION TO CHANGE THE UNIT
 EMPLOYEES' WORKWEEK HEREIN WAS A PERMISSIVE SUBJECT OF BARGAINING UNDER
 SECTION 7106(B)(1) OF THE STATUTE, /2/ AND THAT THE RESPONDENT AT ITS
 ELECTION COULD CHOOSE NOT TO BARGAIN THEREON.  /3/ HOWEVER, THE GENERAL
 COUNSEL CONTENDS THAT THE RESPONDENT WAS REQUIRED TO NEGOTIATE
 CONCERNING THE IMPACT AND PROCEDURES FOR IMPLEMENTING THE DECISION TO
 CHANGE THE EMPLOYEES' WORKWEEK, PURSUANT TO SECTION 7106(B)(2) AND (3)
 OF THE STATUTE, /4/ AND THAT ITS REFUSAL TO DO SO CONSTITUTED A
 VIOLATION OF SECTION 7116(A)(1) AND (5).  THE AUTHORITY AGREES.  THUS,
 AS PREVIOUSLY INDICATED, THE RESPONDENT ON SEVERAL OCCASIONS REJECTED
 REQUESTS BY THE UNION TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION
 PROPOSALS TO THE EFFECT THAT EMPLOYEES WORKING ON SATURDAYS AS A RESULT
 OF THE RESPONDENT'S DECISION TO CHANGE THE WORKWEEK BE VOLUNTEERS OR
 RECEIVE OVERTIME PAY FOR SUCH WORK.  ACCORDINGLY, THE AUTHORITY FINDS
 THAT, BY SUCH REFUSAL TO NEGOTIATE CONCERNING THE IMPACT AND
 IMPLEMENTATION OF THE CHANGES IN THE WORKWEEK, THE RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (5) OF THE STATUTE.  SEE NORFOLK NAVAL SHIPYARD,
 PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981).  SEE ALSO INTERNAL REVENUE
 SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA AND NATIONAL TREASURY
 EMPLOYEES UNION, 7 FLRA NO. 54(1981).
 
    THE GENERAL COUNSEL HAS REQUESTED THAT, AS A REMEDY, THE AUTHORITY
 ORDER A RETURN TO THE STATUS QUO ANTE.  HOWEVER, NOTING PARTICULARLY THE
 GENERAL COUNSEL'S CONCESSION THAT THE DECISION TO CHANGE THE WORKWEEK
 WAS A RESERVED RIGHT UNDER SECTION 7106(B)(1) IN THE CIRCUMSTANCES OF
 THIS CASE, THE AUTHORITY FINDS THAT THE REQUESTED REMEDY IS NOT
 WARRANTED HEREIN WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE
 RESPONDENT'S DECISION TO CHANGE THE WORKWEEK.  THUS, BALANCING THE
 NATURE AND CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF
 DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD APPARENTLY BE CAUSED BY
 SUCH A REMEDY, AND TAKING INTO CONSIDERATION THE VARIOUS FACTORS SET
 FORTH IN FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111(1982), THE
 AUTHORITY CONCLUDES THAT AN ORDER REQUIRING THE RESPONDENT TO BARGAIN
 UPON REQUEST ABOUT IMPACT AND IMPLEMENTATION WILL BEST EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE.  SEE U.S. CUSTOMS SERVICE, REGION
 V, NEW ORLEANS, LOUISIANA, 9 FLRA NO. 15(1982).  IN SO CONCLUDING, THE
 AUTHORITY NOTES THAT THE GENERAL COUNSEL'S REQUEST FOR A STATUS QUO ANTE
 REMEDY IS UNSUPPORTED BY ANY REASONS WHY SUCH A REMEDY SHOULD BE GRANTED
 IN THE CIRCUMSTANCES PRESENTED HEREIN.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT HEADQUARTERS, 77TH U.S. ARMY COMMAND, FORT
 TOTTEN, NEW YORK, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CHANGING THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA
 MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE
 NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO
 NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO
 DO SO, AND AFFORDING IT THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT
 CONSONANT WITH LAW AND REGULATION CONCERNING THE PROCEDURES THAT
 MANAGEMENT WILL OBSERVE IN EFFECTING SUCH CHANGE AND CONCERNING THE
 IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF 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 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
 CONCERNING THE PROCEDURES MANAGEMENT WILL OBSERVE IN EFFECTING THE
 CHANGE IN THE WORKWEEK OF EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE
 SUPPORT ACTIVITIES, AND CONCERNING THE IMPACT OF SUCH CHANGE ON
 ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST AT ITS FACILITIES AT HEADQUARTERS, 77TH U.S. ARMY COMMAND,
 FORT TOTTEN, NEW YORK, 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 COMMANDER, HEADQUARTERS, 77TH
 U.S. ARMY COMMAND, FORT TOTTEN, NEW YORK, AND SHALL BE POSTED AND
 MAINTAINED 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
 INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 1751, 26
 FEDERAL PLAZA, NEW YORK, 10007, 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., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, 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 CHANGE THE WORKWEEK OF UNIT EMPLOYEES ASSIGNED TO THE
 AREA MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE
 EXCLUSIVE REPRESENTATIVE OF OUR NONPROFESSIONAL EMPLOYEES, OF OUR
 DECISION TO MAKE SUCH CHANGE, AND AFFORDING IT THE OPPORTUNITY TO
 NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION, CONCERNING
 THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EFFECTUATING THE CHANGE
 AND CONCERNING THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED
 EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF T