09:0784(99)CA - Navy, Mare Island Naval Shipyard, Vallejo, CA and Federal Employees MTC -- 1982 FLRAdec CA



[ v09 p784 ]
09:0784(99)CA
The decision of the Authority follows:


 9 FLRA No. 99
 
 DEPARTMENT OF THE NAVY
 MARE ISLAND NAVAL SHIPYARD
 VALLEJO, CALIFORNIA
 Respondent
 
 and
 
 FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-563
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE
 GENERAL COUNSEL FILED 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 IN THE CASE, AND IN VIEW OF THE
 PARTICULAR CIRCUMSTANCES OF THIS CASE, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS AND CONCLUSION THAT THE RESPONDENT DID NOT VIOLATE
 SECTION 7116(A)(1) AND (5) OF THE STATUTE AND HER RECOMMENDATION THAT
 THE COMPLAINT BE DISMISSED.  THUS, AS FOUND BY THE JUDGE, UNIT EMPLOYEES
 SELECTED BY THE RESPONDENT FOR THE NUMEROUS VOLUNTARY TEMPORARY DUTY
 (TDY) ASSIGNMENTS IN THE PAST COMMONLY HAVE EXPERIENCED FREQUENT
 VARIATIONS IN THEIR HOURS OF WORK AND SHIFTS ONCE SUCH PROJECTS GOT
 STARTED, INASMUCH AS IT IS IMPOSSIBLE TO PREDICT PERSONNEL NEEDS WITH
 ANY CERTAINTY AND IT IS THEREFORE NECESSARY FOR MANAGEMENT TO MAKE
 ADJUSTMENTS IN ORDER TO ACCOMPLISH THE ASSIGNMENT AS EFFECTIVELY AND
 EFFICIENTLY AS POSSIBLE.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
 RESPONDENT'S FAILURE TO NOTIFY AND BARGAIN WITH THE UNION CONCERNING
 EACH OF THE FIVE CHANGES IN SHIFT HOURS ON THE PEARL HARBOR TDY
 ASSIGNMENT HEREIN DID NOT CONSTITUTE A CHANGE IN ESTABLISHED CONDITIONS
 OF EMPLOYMENT, WAS CONSISTENT WITH AN ESTABLISHED PAST PRACTICE, AND
 THEREFORE DID NOT VIOLATE THE DUTY TO BARGAIN UNDER THE STATUTE.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-563 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 A. S. CALCAGNO,
                   ATTORNEY FOR RESPONDENT
 
 STEFANIE ARTHUR,
                  ATTORNEY FOR THE GENERAL COUNSEL
 
 BEFORE:  ISABELLE R. CAPPELLO
                  ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 9-CA-563
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE
 (HEREINAFTER REFERRED TO AS THE STATUTE), AND THE RULES AND REGULATIONS
 ISSUED THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/17/80), 5
 CFR 2421 ET SEQ.
 
    PURSUANT TO A CHARGE FILED ON JUNE 30, 1980, AND AMENDED ON SEPTEMBER
 22, 1980, BY THE FEDERAL EMPLOYEES METAL TRADES COUNCIL (HEREINAFTER
 ALSO REFERRED TO AS THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS
 ISSUED ON SEPTEMBER 26, 1980, BY THE REGIONAL DIRECTOR, REGION IX, OF
 THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE AUTHORITY).
 
    THE COMPLAINT ALLEGES THAT ON OR ABOUT MAY 5, 1980, AND CONTINUING TO
 DATE, RESPONDENT (ALSO REFERRED TO AS MINS) ANNOUNCED AND EFFECTED A
 CHANGE IN WORK HOURS, OVERTIME EARNINGS, AND SCHEDULES OF EMPLOYEES
 TEMPORARILY ASSIGNED TO DUTY AT PEARL HARBOR, HAWAII, WITHOUT NOTICE TO
 THE UNION OR AN OPPORTUNITY TO BARGAIN, IN VIOLATION OF SECTIONS
 7116(A)(1) AND (5) OF THE STATUTE.  /2/ IN ITS ANSWER, RESPONDENT DENIES
 THE ABOVE ALLEGATIONS.
 
    A HEARING WAS HELD IN SAN FRANCISCO ON FEBRUARY 4, 1981, AT WHICH THE
 PARTIES WERE GIVEN A FULL OPPORTUNITY TO BE HEARD AND PRESENT EVIDENCE.
 BRIEFS WERE SUBMITTED ON APRIL 13, 1981.  A MOTION TO CORRECT
 TRANSCRIPT, SUBMITTED BY THE GENERAL COUNSEL ON APRIL 14, 1981, IS
 UNOPPOSED AND IS GRANTED.  THE CHANGE, ON PAGE 43, LINE 15, IS MODIFIED
 TO DELETE "BOTH FROM SHOP 38" AND ADD "INCLUDING FRANK CRUZ FROM SHOP
 38."
 
    UPON THE BASIS OF THE RECORD MADE AT THE HEARING, MY OBSERVATION OF
 THE WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, THE FOLLOWING FINDINGS
 OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER ARE MADE.
 
                           FINDINGS OF FACT /3/
 
    1.  THE FEDERAL EMPLOYEES METAL TRADES COUNCIL IS THE EXCLUSIVE
 BARGAINING AGENT FOR CERTAIN WAGE GRADE EMPLOYEES OF RESPONDENT,
 INCLUDING MACHINISTS.  A COLLECTIVE BARGAINING AGREEMENT (HEREINAFTER,
 THE AGREEMENT) HAS BEEN IN EFFECT BETWEEN THE PARTIES DURING THE PERIOD
 RELEVANT TO THIS PROCEEDING.  SEE TR 144.
 
    2.  IN DECEMBER 1979, MANAGEMENT OF THE OUTSIDE MACHINE SHOP, SHOP AT
 MINS, ANNOUNCED TO THE MACHINISTS IN THAT SHOP A PROPOSED COMPLEX
 NUCLEAR COMPONENT MODIFICATION PROJECT ON TWO GENERATORS INVOLVING A
 TEMPORARY DUTY ASSIGNMENT (TDY) TO PEARL HARBOR.
 
    3.  THREE MACHINISTS AND ONE SUPERVISOR TESTIFIED AS TO WHAT
 MANAGEMENT TOLD THEM ABOUT THE HOURS OF WORK AND THE TDY ASSIGNMENT TO
 PEARL HARBOR.
 
    A.  ROBERT MARIN, A MACHINIST, TESTIFIED THAT ART RUST, GENERAL
 FOREMAN IN CHARGE OF THE PROJECT, TOLD HIM:
 
    WELL, THEY WERE ANTICIPATING TWELVE HOURS A DAY, SEVEN DAYS A WEEK.
 THIS JOB HAD NEVER
 
    BEEN DONE BEFORE, SO THEY WERE, AS FAR AS THE HOURS OF WORK, IT WAS
 JUST AN ANTICIPATED TWELVE
 
    HOURS A DAY, SEVEN DAYS A WEEK.  THAT WE WERE IN COMPETITION WITH
 OTHER YARDS FOR THIS JOB,
 
    AND WE WANTED TO FINISH IT IN A MOST EFFICIENT MANNER.
 
    (TR 55, AND SEE ALSO TR 57)
 
    B.  GARY BLUM, A MACHINIST, TESTIFIED THAT CHARLIE GEESLAND,
 GRAVEYARD SHIFT FOREMAN, TOLD HIM ABOUT HOURS ON THE TDY ASSIGNMENT, AS
 FOLLOWS:
 
    HE MENTIONED THAT WE WOULD PROBABLY BE WORKING TWELVE HOURS, SEVEN
 DAYS A WEEK ON IT, AND
 
    IT WOULD PROBABLY LAST FOUR TO SIX WEEKS.
 
    (TR 42) MR. BLUM ALSO TALKED TO MR. RUST, WHO "MENTIONED THAT WE
 WOULD BE WORKING TWELVE HOURS, SEVEN DAYS . . . . " (TR 42) MR. BLUM
 ALSO TESTIFIED ABOUT A MEETING OF EVERYONE INVOLVED IN THE TDY
 ASSIGNMENT TO PEARL HARBOR, AND RECALLED THAT FRANK CRUZ, GENERAL
 FOREMAN ON THE GRAVEYARD SHIFT FOR THE TRIP, "MENTIONED THAT HE DIDN'T
 KNOW WHAT SHIFTS WE WOULD BE WORKING, BUT WE WOULD BE WORKING TWELVE
 HOURS A DAY, SEVEN DAYS A WEEK." (TR 44)
 
    C.  ROBERT RENTFROW, A MACHINIST, TESTIFIED ALSO TO A MEETING OF ALL
 THOSE INVOLVED IN THE TDY ASSIGNMENT TO PEARL HARBOR.  MR. RUST AND
 CHARLES PERSALL, GRAVEYARD NUCLEAR COORDINATOR, CONDUCTED THE MEETING.
 MR. RENTFROW RECALLED THEIR TELLING THE PARTICIPANTS:
 
    THEY GAVE US A BROAD IDEA OF WHAT WE MAY BE DOING FOR THE
 MODIFICATION THAT NEEDED TO BE
 
    DONE TO THE SPECIFIC PIECE OF EQUIPMENT, AND THEY TOLD US THAT THEY
 PROJECTED THE JOB TO LAST
 
    FOUR TO SIX WEEKS, AND WE WOULD BE WORKING TWELVE HOURS A DAY ON THE
 PROJECT UNTIL IT WAS
 
    FINISHED.
 
    (TR 19) MR. RENTFROW ALSO RECALLED BEING TOLD THAT THE PROJECT WAS TO
 BE "SEVEN DAYS PER WEEK, EVERY DAY, UNTIL THE JOB WAS DONE." (TR 19)
 
    D.  MR. RUST, THE GENERAL FOREMAN, TESTIFIED AS TO WHAT HE TOLD THE
 EMPLOYEES ASSIGNED TO THE PEARL HARBOR TDY PROJECT.  HE RECALLED TELLING
 THEM THAT THE PROJECT "WOULD INVOLVE LONG HOURS" AND THAT "WE WOULD
 PROBABLY WORK TWELVE HOUR (SHIFTS)." (TR 114) MR. RUST CLAIMS THAT HE
 GAVE NO GUARANTEE OF TWELVE HOUR SHIFTS OR OVERTIME.
 
    4.  THE OUTSIDE MACHINE SHOP CONSISTS OF APPROXIMATELY 650 EMPLOYEES
 AND THEY FREQUENTLY PARTICIPATE IN TDY TRIPS AWAY FROM MINS.  IN 1980,
 THERE WERE BETWEEN 100 AND 110 TDY TRIPS.  THE TDY TRIPS RANGE FROM
 THREE DAYS TO TWO MONTHS.  THEY ARE GENERALLY UNSCHEDULED AND UNPLANNED.
  FIXED SHIFTS AND OVERTIME CANNOT BE PREDICTED.  THE TDY TRIPS OFTEN
 INVOLVE SHIPS, WITH OPERATIONAL COMMITMENTS, WHICH HAVE BROKEN DOWN AND
 ARE UNABLE TO REACH NORMAL REPAIR FACILITIES.  WORKING SCHEDULES ARE
 DICTATED BY SOMEONE OTHER THAN THE MINS, NORMALLY THE COMMAND THAT
 MANAGES THE PARTICULAR VESSEL.  REPAIRS MUST BE FITTED INTO OPERATING
 CONDITIONS AND SCHEDULES.  FIXED SHIFT HOURS DO NOT NORMALLY APPLY
 BECAUSE THE EQUIPMENT IN THE VESSEL, AND THE PEOPLE WHO CONTROL THE
 ABILITY TO WORK ON THE EQUIPMENT, DO NOT WORK STANDARD FIXED HOURS.  THE
 EQUIPMENT TO BE REPAIRED, IF NUCLEAR, HAS TO BE PUT IN A SAFE CONDITION,
 BY THE SHIP'S CREW, BEFORE REPAIR WORK CAN COMMENCE.  SOMETIMES MINS
 CREWS HAVE TO GET OFF THE DOCKS TO ACCOMMODATE TORPEDO LOADINGS.  THE
 SHIPYARD REPAIR CREWS MUST ADAPT THEIR HOURS TO THE SHIP'S CONDITIONS
 AND NEEDS.  THIS IS IN CONTRAST TO THE PREPLANNED WORK DONE ON SHIPS
 WHICH ARE SCHEDULED INTO MINS FOR REPAIRS AND ALLOW THE SHIPYARD TO SET
 THE CONDITIONS UNDER WHICH THE REPAIR WORK WILL PROCEED.  NORMALLY, MINS
 STARTS PREPLANNING AS MUCH AS TWO YEARS BEFORE THE SHIPS ARRIVE FOR
 WORK.  CURRENTLY EIGHT NUCLEAR POWERED SUBMARINES ARE BEING REPAIRED AT
 MINS;  AND THIS ALLOWS THE SHIPYARD FLEXIBILITY AS TO MOVING REPAIR
 CREWS ON AND OFF EACH SUBMARINE AS THE WORK LOAD GOES UP AND DOWN.  ON
 TDY ASSIGNMENTS, THERE IS NO OTHER WORK TO WHICH EMPLOYEES CAN BE
 ASSIGNED.  IN ASSIGNING WORK FORCES TO TDY JOBS, MINS WILL NORMALLY
 "OVER KILL" ON THE JOB, IN THE BEGINNING, AND THEN CUT BACK, TOWARDS THE
 END, TO GET COSTS IN LINE.  (TR 95) AS THE AMOUNT OF WORK REQUIRED TO BE
 ACCOMPLISHED DIMINISHES, SOME EMPLOYEES MAY BE SENT BACK TO MINS, AND
 HOURS MAY CHANGE.
 
    5.  THE PEARL HARBOR TDY ASSIGNMENT HERE AT ISSUE INVOLVED A UNIQUE
 PROBLEM WITH NO HISTORY UPON WHICH TO PLAN THE WORK.  MINS WAS DIRECTED
 BY THE U.S. NAVY TO TAKE ON THE JOB, AS IT HAD THE LARGEST TECHNICAL
 WORK FORCE AVAILABLE TO ACCOMPLISH THE WORK.  MINS DID NOT "GET A HANDLE
 ON THE SIZE OF THE WORK FORCE" NECESSARY FOR SEVERAL MONTHS AFTER THE
 JOB WAS ASSIGNED.  (TR 94) AT PEARL HARBOR, RESPONDENT'S CREW HAD TO
 INTERFACE HEAVILY WITH CREWS OF THE PEARL HAR0OR NAVAL SHIPYARD, WHICH
 HAD TO COMPLETE WORK ON THE TWO GENERATORS BEFORE THE MINS CREW COULD
 BEGIN ITS ASSIGNED WORK ON THE SAME TWO GENERATORS.
 
    6.  THE TDY ASSIGNMENT TO PEARL HARBOR, WAS A TYPICAL TDY SITUATION
 IN THAT THERE WAS AN "OVERKILL," AT FIRST, WITH TWELVE-HOUR SHIFTS, AND
 THEN A CUT BACK, TO NINE HOURS, TO BRING COSTS INTO LINE. THE WEIGHT OF
 THE EVIDENCE SHOWS THAT THE MACHINISTS, WHILE WARNED TO EXPECT LONG
 HOURS, WERE NOT ASSURED THAT THE TWELVE HOUR SHIFTS WOULD CONTINUE
 THROUGHOUT THE ASSIGNMENT.  SEE FINDING 3, SUPRA.  ONE MACHINIST, ROBERT
 RENTFROW, TESTIFIED TO THE CONTRARY.  SEE FINDING 3C, SUPRA.  HOWEVER,
 TWO OTHER MACHINISTS WERE LEFT WITH THE IMPRESSION THAT THE TWELVE-HOUR
 SHIFTS WERE ONLY "ANTICIPATED" OR "PROBABLE." SEE FINDINGS 3A AND B.
 AND ONE ACKNOWLEDGED THAT THE WORK WAS TO BE FINISHED IN "A MOST
 EFFICIENT MANNER." SEE FINDING 3A.  THE GENERAL FOREMAN ON THE TDY
 ASSIGNMENT, UPON WHOSE STATEMENTS ALL THREE MACHINISTS RELIED, HIMSELF
 RECALLED GIVING NO GUARANTEE OF TWELVE-HOUR SHIFTS.
 
    7.  OVER 70 EMPLOYEES WERE SELECTED FOR THE PEARL HARBOR TDY JOB.
 EIGHTEEN WERE MACHINISTS, WHO WERE TO PERFORM THE ACTUAL MODIFICATION
 WORK.  AS IT REQUIRED IN ALL RADIOLOGICAL WORK, A MOCK-UP PRACTICE WAS
 UNDERGONE BEFORE THE EMPLOYEES WERE SENT TO PEARL HARBOR.  DURING THIS
 MOCK-UP PERIOD, THE EMPLOYEES, AT FIRST, KEPT TO THEIR REGULAR
 EIGHT-HOUR SHIFTS, AS PROVIDED IN THE AGREEMENT, AND WERE CALLED TO COME
 IN EARLY OR TO STAY OVER, AS NEEDED.  SOMEWHERE AROUND THE END OF MARCH,
 OR THE FIRST PART OF APRIL, THE EMPLOYEES, ON MOCK-UP TRAINING, WENT ON
 TWO, TWELVE-HOUR SHIFTS, WHILE STILL AT MINS.  ALTHOUGH SOME TECHNICAL
 PROBLEMS WERE SOLVED IN THE COURSE OF THE MOCK-UP, OTHER WERE NOT
 ANTICIPATED AND WERE CONFRONTED ONLY AFTER THE ACTUAL JOB BEGAN.  AS IS
 NORMAL ON TDY ASSIGNMENTS, THE EARLY STAGES OF THE WORK REQUIRED MORE
 TIME AND PERSONNEL BECAUSE THE ACTUAL WORK PROCEDURE WAS BEING
 ESTABLISHED, PROBLEMS WERE BEING ENCOUNTERED AND SOLVED, AND PREPARATORY
 TASKS WERE BEING PERFORMED.  AS THE WORK PROGRESSED AND PROBLEMS WERE
 SOLVED, THERE WAS NO LONGER THE SAME NEED.  IN ALL, MR. RUST SCHEDULED
 FIVE CHANGES IN SHIFT HOURS FOR ALL PERSONNEL ON THE PEARL HARBOR TDY
 JOB.  THE FIRST CONTINGENT OF THE MACHINISTS ARRIVED IN PEARL HARBOR
 AROUND APRIL 3.  THEY SWITCHED BACK AND FORTH BETWEEN THE DAY OR
 GRAVEYARD SHIFT, AS NEEDED.  THE ACTUAL MODIFICATION WORK BEGAN AROUND
 APRIL 16;  AND THE MACHINISTS WERE PUT ON FOUR, TWELVE-HOUR SHIFTS, WITH
 FOUR ASSIGNED TO EACH SHIFT, IN TWO-MAN TEAMS EACH PERFORMING THE
 IDENTICAL JOB.  THE TWELVE-HOUR SHIFTS WERE WORKED UP UNTIL MAY 5, WHEN
 A CUTBACK TO NINE-HOUR ONES WAS PUT INTO EFFECT.  AFTER THE CUTBACK, THE
 MACHINISTS CONTINUED TO WORK ON THE SAME TWO-MAN TEAMS;  AND THE SAME
 TWO TEAMS WERE ASSIGNED TO EACH SHIFT.  BY JUNE 2, THE TDY ASSIGNMENT
 WAS FINISHED.  THE FIRST CONTINGENT LEFT PEARL HARBOR ON MAY 23.
 
    8.  THE DECISION TO CUT THREE HOURS OFF THE TWELVE-HOUR SHIFTS WAS
 MADE AFTER IT BECAME APPARENT, TO RESPONDENT, THAT FATIGUE FROM THE LONG
 SHIFT WAS STARTING TO SHOW ON THE EMPLOYEES, AND THAT THEY WERE BECOMING
 LESS PRODUCTIVE AND STARTING TO BICKER WITH EACH OTHER.  ALSO, THE U.S.
 NAVY REPRESENTATIVES AT THE SITE WERE CONSTANTLY POINTING OUT THE FACT
 THAT MINS WAS "SPENDING AN AWFUL LOT OF MONEY RAPIDLY," AND THEY "WERE
 NOT CONVINCED THAT THE PEOPLE WERE TOTALLY BEING UTILIZED THAT WERE ON
 THE JOBSITE FOR THOSE TWELVE HOUR SHIFTS." (TR 125)
 
    9.  THE THREE MACHINISTS WHO TESTIFIED AT THE HEARING WERE UPSET BY
 THE CUTBACK IN HOURS.  THE CUT AFFECTED THE AMOUNT OF TIME THEY HAD TO
 PREPARE FOR THE SIX-HOUR STRETCH SPENT IN THE CRAMPED, RADIOACTIVE
 ENVIRONMENT OF THE WORKSPACE.  THE PREPARATION TIME WAS SPENT ON A
 VARIETY OF TASKS PRIMARILY RELATED TO SORTING, MODIFYING AND PREPARING
 EQUIPMENT.  AFTER APPROXIMATELY THREE WEEKS, THESE TASKS WERE NO LONGER
 REQUIRED.  AS A RESULT OF LESS PREPARATION TIME, MOST OF THE MECHANICS
 GOT "A LITTLE UP-TIGHT" AND EXPERIENCED "A LITTLE TENSENESS AMONG THE
 CREW THAT (THEY) WERE WORKING WITH AS A TEAM," AND WERE "A LOT MORE
 RUSHED." (TR 27, 48).  ALSO, THE CUTBACK IN HOURS RESULTED IN A LOSS OF
 EARNINGS.  FEWER HOURS WERE WORKED, AND THE NEW SHIFT RESULTED IN A LOSS
 OF THE 10 PERCENT GRAVEYARD DIFFERENTIAL FOR THOSE ON THAT SHIFT.
 INSTEAD, THEY WENT TO A 7 1/2 PERCENT DIFFERENTIAL.  TWO OF THE
 MACHINISTS WERE COUNTING ON THE EXTRA PAY TO FINANCE TRIPS, TAKEN BY
 RELATIVES, TO JOIN THEM IN PEARL HARBOR.  ONE MACHINIST WAS COUNTING ON
 THE EXTRA PAY TO CARRY HIM WHILE HE WAS OFF WORK AND HAVING AN
 OPERATION.
 
    10.  EMPLOYEES WHO VOLUNTEER FOR TDY ASSIGNMENTS GENERALLY DO SO
 BECAUSE THEY CONSIDER THEM TO BE A "GOOD DEAL." (TR 167) THE THREE
 MACHINISTS WHO TESTIFIED AT THE HEARING VOLUNTEERED FOR THE TDY
 ASSIGNMENT TO PEARL HARBOR BECAUSE OF THE EXPECTATION OF EXTRA MONEY
 EARNED FROM THE LONG HOURS AND BECAUSE OF THE EXPERIENCE TO BE GAINED
 FROM WORKING ON THE DIFFICULT TASKS INVOLVED.  MINS REGARDS A TDY
 ASSIGNMENT AS A PRESTIGE TYPE OF JOB FOR WHICH IT "SELECT(S) ITS EXPERTS
 TO GO GET THE CUSTOMER OUT OF TROUBLE." (TR 94)
 
    11.  THE DECISION TO CUT BACK TO A NINE-HOUR SHIFT WAS MADE AROUND
 APRIL 30 OR 31.  MR. RUST, ON ONE OF THOSE DATES, CALLED WILLIAM
 REDMOND, THE PRODUCTION SUPERINTENDENT FOR THE OUTSIDE MACHINE SHOP,
 ABOUT THIS DECISION, AS HE REGARDED IT AS "A MAJOR CHANGE IN THE OVERALL
 CONCEPT OF THE WAY (HE) HAD FORESEEN THE JOB AND (HE) JUST FELT THAT IT
 WAS (HIS) RESPONSIBILITY TO KIND OF REFER IT TO HIM SINCE HE WAS, HE IS,
 (HIS) SUPERVISOR." (TR 131)
 
    12.  DURING THE WEEK OF MAY 1, MR. PERSALL VERBALLY DISCUSSED THE
 CHANGE IN HOURS WITH MR. BENSHOOF, THE UNION'S CHIEF STEWARD, UPON
 INSTRUCTIONS FROM MR.  REDMOND, AND "OUT OF COURTESY." (TR 108) MR.
 BENSHOOF ASKED MR. PERSALL "TO SEND HIM A 'NOT' STATING WHAT WAS GOING
 ON SO HE WOULD HAVE IT FOR HIS RECORDS." (TR 109) SUCH A "NOTE" WAS SENT
 TO THE METAL TRADES COUNCIL, ON MAY 1.  SEE GC 2.  THIS MARKED THE FIRST
 TIME THAT MINS HAD INFORMED THE UNION OF A CHANGE IN SHIFT HOURS ON A
 TDY ASSIGNMENT.
 
    13.  THE UNION RECEIVED THE MAY 1 "NOTE" ON MAY 5.  GIL REYES,
 PRESIDENT OF MACHINISTS UNION LOCAL 252, AN AFFILIATE OF THE UNION,
 FIRST LEARNED OF THE CHANGE UPON RECEIPT OF THIS COMMUNICATION.  HE
 CALLED MR. REDMOND TO COMPLAIN ABOUT THE "ODD HOURS," OUTSIDE THE HOURS
 OF WORK IN THE NEGOTIATED CONTRACT, AND THE LACK OF PRIOR NOTICE.  (TR
 33) MR.  REDMOND WAS TO GET BACK TO MR. REYES WITHIN A FEW WEEKS.  WHEN
 HE FAILED TO DO SO, MR. REYES FILED THE INSTANT CHARGE.
 
    14.  THE UNION HAS NEVER ASKED, BEFORE, TO NEGOTIATE A CHANGE IN
 WORKING HOURS ON A TDY ASSIGNMENT.
 
    15.  THE AGREEMENT, IN ARTICLE XXXVII, DEALS WITH "TRAVEL AND
 TEMPORARY DUTY ASSIGNMENT." IT HAS NO PROVISION AS TO SHIFT HOURS.
 ARTICLE IX DEALS WITH "HOURS OF WORK." IT LISTS THE HOURS FOR SCHEDULED
 EIGHT-HOUR WORK SHIFTS.  THERE IS NO PROVISION FOR TWELVE-HOUR SHIFTS.
 MANAGEMENT AT MINS HAS NEVER INTERPRETERED ARTICLE IX AS APPLYING TO TDY
 ASSIGNMENTS.  THE AGREEMENT PROVIDES THAT THE REGULAR SHIFT HOURS OF
 EMPLOYEES MAY BE CHANGED, WITHOUT THE NORMAL ADVANCE NOTIFICATION ONLY
 UNDER CERTAIN CONDITIONS, INCLUDING "UNPREDICTABLE OR EMERGENT
 OPERATIONS" WHERE "NO ADVANCE PLANNING OR SCHEDULING IS POSSIBLE." SEE R
 1.26 AND GC 4.3
 
    16.  IN PROCESSING A GRIEVANCE, THE UNION BECAME AWARE OF A
 TWELVE-HOUR SHIFT SITUATION ON ANOTHER TDY ASSIGNMENT, IN SCOTLAND, AND
 DID NOT REQUEST BARGAINING AS TO IT.
 
                        ISSUES POSED BY THE PARTIES
 
    1.  WHETHER IRREGULAR SHIFT HOURS AND FREQUENT CHANGES IN SHIFT
 HOURS, ON TDY ASSIGNMENTS,
 
    ARE A CONDITION OF EMPLOYMENT.  (RBR 5)
 
    2.  WHETHER RESPONDENT PROVIDED THE UNION WITH NOTICE AND THE
 OPPORTUNITY TO BARGAIN
 
    REGARDING THE CHANGE IN THE HOURS OF THE SHIFTS OF EMPLOYEES ON TDY
 AT PEARL HARBOR WHICH WAS
 
    IMPLEMENTED ON MAY 5.  (GCBR 2)
 
    3.  WHETHER THE UNION WAIVED ITS RIGHT TO NOTICE AND THE OPPORTUNITY
 TO BARGAIN CONCERNING
 
    THE CHANGE IN THE HOURS OF THE SHIFTS OF EMPLOYEES ON TDY AT PEARL
 HARBOR.  (GCBR 2)
 
    4.  WHETHER RESPONDENT SHOULD BE ORDERED TO MAKE THE EMPLOYEES WHOLE
 FOR THE OVERTIME PAY
 
    THEY LOST AS A RESULT OF RESPONDENT'S UNILATERAL CHANGE IN THE HOURS
 OF THEIR SHIFTS WHILE ON
 
    TDY AT PEARL HARBOR.  (GCBR 2)
 
                        DISCUSSION AND CONCLUSIONS
 
    THE PARTIES ARE IN AGREEMENT THAT RESPONDENT MAY NOT CHANGE A
 CONDITION OF EMPLOYMENT WITHOUT NOTIFYING THE UNION AND GIVING IT AN
 OPPORTUNITY TO BARGAIN.  SEE RBR 5 AND GCBR 7.  RESPONDENT ARGUES THAT
 IRREGULAR SHIFT HOURS AND FREQUENT CHANGES IN SHIFT HOURS ON TDY ARE A
 CONDITION OF EMPLOYMENT;  AND THEREFORE IT IS UNDER NO OBLIGATION TO
 NOTIFY THE UNION OF SHIFT CHANGES ON TDY JOBS, OR TO BARGAIN CONCERNING
 THEM.  (RBR 5) THE GENERAL COUNSEL ARGUES THAT THE TDY JOB HERE WAS NOT
 TYPICAL, AND DID NOT PRESENT THE KIND OF EXIGENCIES WHICH MANDATE
 FLEXIBILITY AND DAY-TO-DAY CHANGES IN WORKING HOURS, SUCH AS BOAT
 AVAILABILITY, LOST SHIPYARD HOURS, OR WEATHER.  THE GENERAL COUNSEL
 ARGUES THAT, HERE, WE ARE CONCERNED WITH A CHANGE FROM REGULARLY
 SCHEDULED TWELVE-HOUR SHIFTS, ESTABLISHED EVEN BEFORE THE TDY CREW WENT
 TO PEARL HARBOR, TO REGULAR NINE-HOUR SHIFTS, AND THAT THE CHANGE WAS
 OCCASIONED SOLELY BY FINANCIAL CONSIDERATIONS.  (GCBR 8)
 
    THE GENERAL COUNSEL MAKES NO MENTION OF THE EVIDENCE THAT FINANCIAL
 CONSIDERATIONS ARE ALSO A CONSIDERATION ON TDY JOBS;  THAT CARE IS TAKEN
 TO CONTAIN EXCESSIVE COSTS;  THAT MINS TYPICALLY "OVERKILLS," IN TERMS
 OF PERSONNEL AND HOURS, AT THE BEGINNING OF A TDY JOB, IN ORDER TO AID
 THE CUSTOMER IN GETTING ITS SHIP BACK INTO OPERATION, AND THEN CUTS
 BACK, TOWARDS THE END, TO GET COSTS IN LINE.  THIS IS EXACTLY WHAT
 HAPPENED HERE.
 
    THE PEARL HARBOR JOB WAS A COMPLEX ONE, NOT BEFORE ATTEMPTED.  IT WAS
 NOT POSSIBLE TO PREDICT PERSONNEL NEEDS, WITH ANY CERTAINTY, UNTIL THE
 PROJECT WAS UNDERWAY.  FOR EXA