18:0119(23)CA - Agriculture, Federal Grain Inspection Service and Agriculture, Federal Grain Inspection Service, Destrehan and Belle Chasse, LA and AFGE Local 3157 -- 1985 FLRAdec CA



[ v18 p119 ]
18:0119(23)CA
The decision of the Authority follows:


 18 FLRA No. 23
 
 UNITED STATES DEPARTMENT OF 
 AGRICULTURE, FEDERAL GRAIN INSPECTION
 SERVICE, AND UNITED STATES DEPARTMENT 
 OF AGRICULTURE, FEDERAL GRAIN
 INSPECTION SERVICE, DESTREHAN AND 
 BELLE CHASSE, LOUISIANA 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, Local 3157
 Charging Party
 
                                            Case No. 6-CA-20110
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, exceptions and briefs in support
 thereof were filed by the Respondent and the General Counsel, and an
 opposition to the Respondent's exceptions was filed by the General
 Counsel.
 
    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 recommendations only to the extent
 consistent herewith.
 
    The facts as found by the Judge are not in dispute.  Since 1971 the
 United States Department of Agriculture, Federal Grain Inspection
 Service, Destrehan and Belle Chasse, Louisiana (the Activity) and
 American Federation of Government Employees, AFL-CIO, Local 3157 (the
 Union) have been parties to local collective bargaining agreements which
 provided, inter alia, that unit employees were to be divided into two
 lists, approximately equal in size.  All employees whose names appeared
 on List A would be available for weekend overtime assignment on one
 weekend and would be unavailable, unless they volunteered, on the
 following weekend.  All employees whose names appeared on List B
 similarly would be available for assignment on the alternate weekends.
 As found by the Judge, the "A and B" system rendered one-half of the
 employees unavailable for assignment of weekend overtime, unless they
 volunteered.
 
    Following a unit consolidation petition in Case 22-0739(RO), the
 United States Department of Agriculture, Federal Grain Inspection
 Service (the Agency) and the Union's parent organization, American
 Federation of Government Employees, AFL-CIO (AFGE, on September 21,
 1979, entered into a National or Master Agreement expressly providing
 that existing policies and practices regarding overtime would be
 continued at local offices until changes were established at the local
 level through appropriate consultation or negotiation.  During the term
 of that National or Master Agreement, the Respondent Activity notified
 the Union of its intent to change the method of assigning weekend
 overtime at Destrehan and Belle Chasse and offered to bargain concerning
 the impact and implementation of its decision.  Despite demands by the
 Union, the Activity refused to bargain concerning the decision itself.
 
    The Judge concluded, inter alia, that the A and B system of assigning
 weekend overtime, as provided for in the local agreements, was so
 directly and integrally related to the numbers, types and grades of
 employees assigned thereto as to be negotiable only at the election of
 management, in accordance with section 7106(b)(1) of the Statute.  /1/
 He further concluded that the Respondent had elected to bargain about
 weekend overtime, and hence the method established by the applicable
 provision of the local agreements could not be changed without
 negotiation with the Union.
 
    The Authority does not agree.  Rather, the Authority concludes that
 the Respondent's unilateral change in the method of assigning weekend
 overtime did not violate the Statute since it constituted a change from
 a system which was inconsistent with the rights of management under
 section 7106(a) of the Statute and therefore outside the duty to
 bargain.  Thus, the A and B system established by the local agreements,
 under which half of the unit employees were unavailable for assignment
 on any given weekend unless they volunteered, directly interfered with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  /2/ As found by the Judge, the A and B system guaranteed
 employees every other weekend off.  This resulted in an absolute
 prohibition on management's right to assign overtime work to certain
 employees, even where such assignments were deemed necessary, which
 right is reserved to management by the Statute.  /3/ The extent to which
 the A and B system infringed upon management's statutory rights is
 underscored by record evidence that on occasions when the Respondent was
 unable to obtain sufficient personnel from volunteers and from the list
 of employees available for assignment, it was obliged to have employees
 detailed from other parts of the Agency in order to perform its weekend
 operations.  Therefore, as the Authority concludes that the method of
 assigning weekend overtime in question did not involve a matter over
 which management could bargain at its election as set forth in section
 7106(b)(1) of the Statute, but rather concerned the reserved right of
 management to assign work under section 7106(a)(2)(B) of the Statute,
 the Respondent was at no time under a statutory duty to bargain
 concerning its decision to change the weekend overtime assignment
 system.  Accordingly, the Authority finds that the Respondent did not
 violate the Statute by refusing to bargain about its decision to change
 the method of assigning weekend overtime at Destrehan and Belle Chase,
 Louisiana.  /4/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CA-20110 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Susan E. Jelen, Esquire
    For the General Counsel
 
    Mr. William E. Struck
    Mr. Guy Morgan
    For the Respondent
 
    Before:  WILLIAM B. DEVANEY, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101
 et seq., /5/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., was initiated by a charge filed on December 11,
 1981 (G.C. Exh. 1(a)), which alleged violations of Secs. 16(a)(1), (5),
 (7) and (8) of the Statute;  a First Amended Charge filed on January 20,
 1982 (G.C. Exh. 1(d)) which alleged violations of Secs. 16(a)(1) and (5)
 of the Statute;  and a Second Amended Charge filed on August 30, 1982
 (G.C. Exh. 1(f)) which also alleged violations of Secs. 16(a)(1) and (5)
 of the Statute.  The Complaint and Notice of Hearing herein issued on
 September 3, 1982 (G.C. Exh. 1(h)).  The Complaint alleged violations of
 Secs. 16(a)(1) and (5) and the notice of hearing set the hearing for
 October 19, 1982, at a time and place to be determined.  By Order dated
 September 28, 1982, the hearing was rescheduled for November 29, 1982
 (G.C. Exh. 1(k));  and by Order dated November 9, 1982, the hearing was
 again rescheduled, upon Motion of Respondent (G.C. Exhs. 1(m) and (n)),
 to January 13, 1983 (G.C. Exh. 1(o)), pursuant to which a hearing was
 duly held on January 13, 1983, in New Orleans, Louisiana, before the
 undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument which each party waived.  At the
 close of the hearing, February 14, 1983, was fixed at the date for
 mailing post-hearing briefs, which time was subsequently extended, on
 Motion of General Counsel to which Respondent did not object, for good
 cause shown, specifically, delay in receipt of the transcript, to
 February 22, 1983.  Each party timely mailed a very helpful brief,
 received on or before February 24, 1983, which have been carefully
 considered.  Upon the basis of the entire record, I make the following
 findings and conclusions:
 
                                The Issues
 
          The controlling issues are:
 
          1.  Whether the terms of a local agreement, executed in 1976,
       and which carried forward a like provision initially executed in
       1971, with respect to the scheduling of week-end overtime
       continued as an effective agreement following certification of the
       National Council of Federal Grain Inspection Locals nationwide and
       the execution, in 1979, of a National Agreement.
 
          2.  Whether a contractual agreement governing the assignment of
       week-end overtime, if the local agreement survived as a valid and
       continuing collective bargaining agreement, or whether the
       acknowledged and conceded practice of assignment of week-end
       overtime, if the local agreement did not survive the execution of
       a National Agreement, which had been followed consistently from
       1971 until October 31, 1981, could be changed unilaterally by
       Respondent without negotiating on the decision to change an
       existing term and condition of employment because, as Respondent
       asserts, such matter, i.e., assignment of week-end overtime by a
       method which guaranteed each employee, if he wished, every other
       week-end off, was negotiable only at the election of Respondent
       because it was directly and integrally related to the numbers,
       types, and grades of employees assigned to any organizational
       subdivision, work project, or tour of duty, was negotiable only at
       the election of Respondent, pursuant to Sec. 6(b)(1) of the
       Statute, and Respondent refused to negotiate on its decision to
       change the method of assignment of week-end overtime.
 
    There is no dispute that Respondent was obligated to negotiate on the
 impact and implementation of its decision, i.e., "procedures which
 management . . . will observe . . . " or "appropriate arrangements for
 employees adversely affected . . . " by exercise of such authority,
 pursuant to Sec. 6(b)(2) and (3) of the Statute.  Indeed, Respondent
 gave adequate notice and offered to negotiate on impact and
 implementation.  While I fully agree that a union proposal to establish
 such a method of assignment of weekend overtime would have been a
 permissive subject of bargaining negotiable only at the election of the
 agency, I do not agree that the change of an established condition of
 employment is negotiable only at the election of the agency;  but even
 if it were, such change has been made negotiable by the terms of the
 applicable National Agreement.  Accordingly, for reasons more fully set
 forth hereinafter, I conclude that Respondent was obligated to negotiate
 on its proposed change of the established condition of employment
 respecting the assignment of weekend overtime because:  (a) the local
 agreement was not superseded by the National Agreement and Respondent
 was obligated to negotiate on any change of the local agreement;  (b)
 even if the local agreement were superseded, the method of assignment of
 week-end overtime established thereby created a condition of employment
 which remained binding and which Respondent could change only through
 negotiations;  and (c) even if such change of an established condition
 of employment were, contrary to my conclusion, negotiable only at the
 election of Respondent, Respondent, by virtue of the provisions of the
 controlling National Agreement, has contractually elected to negotiate.
 
                                 Findings
 
    1.  The Federal Grain Inspection Service (FGIS) is a primary national
 subdivision of the Department of Agriculture (Tr. 63).  Originally,
 Respondent, FGIS, had one Field Office in New Orleans, Louisiana, which
 served the same area now served by three Field Offices (Tr. 21).  A
 Field Office was established at Lutcher, Louisiana, in 1977, and a Field
 Office was established at Destrehan, Louisiana, in late 1977 or 1978.
 In 1981, the New Orleans Field Office was moved to Belle Chasse,
 Louisiana (Tr. 21, 22).
 
    2.  In 1970, Local 3157 of the American Federation of Government
 Employees was recognized as the exclusive representative of the New
 Orleans Field Office and a collective bargaining agreement was
 negotiated in 1971 (G.C. Exh. 4).  A further collective bargaining
 agreement was negotiated in 1976 (G.C. Exh. 3) and was extended to
 include the Lutcher and Destrehan Field Offices (Tr. 22;  G.C. Exh.
 1(h), Par. 6, Tr. 9).
 
    3.  On December 23, 1977, a national consolidated bargaining unit
 consisting of all employees in the Field Office of FGIS nationwide,
 excluding professional employees, employees engaged in federal personnel
 work in other than a purely clerical capacity, management official,
 supervisors and Regional Office employees was established in Case
 22-0739(RO).  On September 21, 1979, FGIS and the National Council of
 Federal Grain Inspection Locals, American Federation of Government
 Employees, AFL-CIO, entered into a Master collective bargaining
 agreement (G.C. Exh. 2).
 
    4.  Local 3157 represents bargaining unit employees in the Belle
 Chasse, Destrehan and Lutcher Field Offices.  The president is
 responsible for the entire Local.  Each Field Office has an executive
 vice president who is responsible for local Field Office matters and
 reports to the president (Tr. 20, 21, 41, 42, 58).
 
    5.  The employees at the Field Offices who work as agricultural
 commodity graders are responsible for the inspection and weighing of
 grain.  They work in both grain elevators, and on numerous floating rigs
 (Tr. 41).  The employees work three basic shifts:  the day shift
 (0700-1530);  swing shift (1530-2330);  and night shift (2300-0730) (Tr.
 18, 19).  The basic work week is Monday through Friday.
 
    6.  In 1971, Local 3157 and Respondent negotiated, as part of their
 Basic Agreement, a weekend overtime provision (G.C. Exh. 4, Par. 13.3)
 which, with slight modifications, was carried over into their 1976
 agreement (G.C. Exh. 3, Par. 13.2) which provided, in part, as follows:
 
          "To assure the health and welfare of employees, it is agreed
       that approximately 50 percent of said employees shall be free of
       any work assignment on weekends between 1900 hours on Friday and
       0600 hours on Monday . . . .  This will be achieved by the
       Employer preparing an A and B listing of all Agricultural
       Commodity Graders and Agricultural Commodity Aids.  These lists
       will be approximately equal in number and grade levels.  The
       employees whose names appear on List A will be considered
       available for overtime assignment at anytime during the weekend.
       Those employees on List B will be considered unavailable for any
       work assignment.  The lists will be alternated weekly.  Employees
       may mutually agree to change from the available list to the
       unavailable list and vice versa . . . upon approval of the
       Employer.  Employees shall notify the Employer of these changes no
       later than 1600 hours on the Thursday preceding the weekend
       involved.
 
          "Employees that have not mutually agreed to change from the
       unavailable list to the available list may volunteer for weekend
       overtime assignment by notifying the Employer not later than 1600
       hours on the Thursday preceding the weekend involved.  It is
       further agreed that anyone on the available list has the option to
       be off for all or part of the weekend, if a trade has not been
       made, provided there is a volunteer to cover the assignment.
 
          "Overtime will be assigned to employees in the following order:
 
          "1.  Employees on the available list who wish to work.
 
          "2.  Volunteers.
 
          "3.  Employees on the available list who do not wish to work.
 
          . . . " (G.C. Exh. 3, Par. 13.2).
 
    7.  The A and B system was in effect from 1971 until October 31,
 1981.  Essentially, the A and B system guarantees employees every other
 weekend off.  Further, it provided an opportunity for employees who
 desired to work overtime to do so, and permitted employees on the
 available list who did not want to work overtime an opportunity for
 alternate arrangements.
 
    8.  The National Agreement addressed the matter of overtime and
 specifically provided that:  (a) overtime can most appropriately be
 determined at each Field Office;  and (b) that existing policies and
 practices regarding overtime shall be continued at each office until
 changes are established at the Field Office level through appropriate
 consultation or negotiation.  Thus, Article 18, "HOURS OF WORK AND
 OVERTIME" provided as follows:
 
          "The Parties acknowledge that the Federal Grain Inspection
       Service has both regulatory and service responsibilities to the
       Grain industry and marketing complex.  As such, the Agency must
       meet work demands as presented by the industry.  These conditions
       and requirements vary significantly throughout the Agency insofar
       as the scheduling of work assignments and overtime.  Therefore,
       the Parties agree that the subjects of hours of work and overtime
       can most appropriately be continued and determined at each Field
       Office.  Existing policies and practices regarding hours of work
       and overtime will be continued at each office until changes are
       established at the Field Office level through appropriate
       consultation or negotiation as provided in the Articles of this
       Agreement covering local agreements." (G.C. Exh. 2, Art. 18).
 
    9.  Article 31, "NEGOTIATION OF LOCAL AGREEMENTS", of the National
 Airport provides as follows:
 
          "Section 1 Negotiations
 
          "As provided for in Section 3 below local agreements may be
       negotiated at the Field Office level by an AFGE Local which
       represents all of the bargaining unit employees assigned to the
       respect in Field Office.
 
          "Section 2 Relationship to Master Agreement
 
          "It is understood by the Parties to this Agreement that this is
       the Master Agreement and that only a local agreement may be
       negotiated at the local level.  The Master Agreement is governing
       and controlling and nothing may be included in the local
       supplemental agreement which is in conflict with the Agreement.
       The rights clauses apply to all supplemental agreements
       negotiated.  Where provisions of an agreement are in conflict with
       the terms of the Master Agreement, the terms of the Master
       Agreement will govern.
 
          "Section 3 Coverage
 
          "It is understood that the only purpose of local agreements is
       for coverage of items which have application at the respective
       Field Office;  the Parties therefore agree that the only subjects
       that may be appropriate for negotiation at the local level are (1)
       hours of work (2) scheduling of overtime (3) local changes in
       personnel policies and practices and other matters affecting
       conditions of employment." (G.C. Exh. 2, Art. 31)
 
    10.  On, or about, October 5, 1981, Respondent's Field Office
 supervisors at Belle Chasse, Destrehan and Lutcher each sent a
 memorandum to the respective executive president of Local 3157 for their
 office. Each memorandum was identical and stated as follows:
 
          "This is to serve as preliminary notification of management's
       intent to implement a new system of scheduling weekend overtime.
 
          "The system will be based on selection of those employees
       having the lowest total number of hours of overtime worked since
       the beginning of the fiscal year.  This will eliminate the "A" and
       "B" team concept.
 
          "We will be happy to discuss this system with you.  If we have
       not received any response from you by October 30, 1981, the system
       will be implemented as of that date." (G.C. Exhs. 5, 6 and 7).
 
 A copy of each memorandum was also sent to Mr. Vincent Volpe, then
 president of Local 3157 (G.C. Exhs. 5, 6, and 7;  Tr. 25, 26, 27).
 
    11.  After receiving the memorandum, Mr. Volpe contacted his
 supervisor, Mr. Jon Ruzek, who told him that the decision on overtime
 scheduling was coming from Mr. Struck, and, accordingly, Mr. Volpe
 called Mr. William E. Struck in Washington, D.C.  Mr. Volpe informed Mr.
 Struck that the Union objected to the change;  that the A and B system
 was the product of negotiation;  that the Union was most willing to
 negotiate the matter but that elimination of the A and B system without
 negotiations would be contrary to the Civil Service Reform Act of 1978
 (Tr. 28).  Mr. Struck responded that the decision was management's
 because it was a permissive item of negotiation rather than a mandatory
 item;  that management would negotiate the impact of the new system but
 the decision was their's and they were making it (Tr. 28).
 
    12.  On October 12, 1981, after his conversation with Mr. Struck, Mr.
 Volpe, in his capacity as president of Local 3157, wrote Mr. Ruzek, with
 a copy, inter alia, to Mr. Struck, and gave notice to Respondent that
 the Union wished to negotiate the proposed change in working conditions.
  Mr. Volpe pointed out that implementation of . . . this 'New System'
 (change in working condition) without first bargaining with the Union
 (Local 3157) . . . would be contrary to Title VII of the Civil Service
 Reform Act and Article 18 of the National Contract.  Further, the
 subject 'Scheduling of Weekend Overtime' is clearly a negotiable subject
 for the Local Supplement Agreement (per Article 31, sections 1 and 2 of
 the National Agreement)." (G.C. Exh. 8).  Respondent did not reply to
 Mr. Volpe's letter.
 
    13.  However, on, or about, October 22, 1981, during the course of a
 meeting concerning the negotiation of the impact of the move of the New
 Orleans Field Office to Belle Chasse, Mr. Struck brought up the issue of
 the elimination of the A and B system.  This meeting was attended by:
 Mr. Struck, Mr. Ruzek and Mr. Dave Mundwiler, a labor relations
 specialist from Washington, D.C., for Respondent;  Mr. Volpe, Mr. Harold
 Drivon, the incoming president of Local 3157, Mr. Wayne Picou, vice
 president for Belle Chasse, and Mr. Al Garcia, AFGE National
 Representative, for the Union.  The Union stated that it wanted to
 negotiate the decision;  but Mr. Struck again indicated that this was a
 permissive item for negotiation;  that the decision to eliminate the A
 and B system was management's and they were making the decision.  Mr.
 Struck indicated that the new system was going to be implemented at the
 end of the month;  that they were willing to listen to impact and
 implementation comments;  but that management would not negotiate the
 decision (Tr. 30-32, 45-47).  Indeed, at the hearing, Mr. Struck stated,
 
          "Vince, I think that your interpretation that we refused to
       bargain on the decision was absolutely correct, and I would just
       state that for the record." (Tr. 40).
 
    14.  The new overtime scheduling system was implemented on October
 31, 1981, in the Belle Chasse, Destrehan and Lutcher Field Offices.  The
 new system calls for employees to be divided into two Divisions, with
 each Division scheduled on alternating weekends.  The system was based
 on the employees' accumulated overtime for the fiscal year.  Therefore,
 if an employee had a lot of accumulated overtime, he would not be
 allowed to work even if he wished;  on the other hand, employees with
 little accumulated overtime were forced to work even if they did not
 want to work overtime.  There was no volunteer or trade off provisions
 and the system did not guarantee weekends off (Tr. 34, 35, 51, 52).
 
    15.  The Division system is currently in effect at the Belle Chasse
 and Destrehan Field Offices.  Certain changes have been made in the
 Belle Chasse system as a result of grievance settlements and
 negotiations with Mr. Ruzek.  These include a volunteer off procedure as
 well as a volunteer on procedure.  Employees are also allowed to swap
 shifts or job sites (Tr. 36, 52, 53, 81);  however, there is no
 guaranteed weekend off.
 
    16.  The Division system was in effect at the Lutcher Field Office
 from October 31, 1981, until April 8, 1982.  The Union at the Lutcher
 Field Office negotiated a local supplemental agreement with management
 at the Lutcher Field Office.  The overtime scheduling system at Lutcher
 is a volunteer sign off system.  It does not guarantee weekends off.
 Employees who do not desire to work overtime sign a list.  Management
 picks employees who have not signed off for overtime positions.  If more
 employees are needed, they are selected from the sign off list on the
 basis of low overtime hours previously worked (G.C. Exh. 11, Tr. 58,
 59).
 
    17.  Under the A and B system, except for volunteers, only one half
 the employees could be required to work weekend overtime.  Accordingly,
 to meet work requirements, Respondent had detailed employees from other
 Field Offices.  Employees were detailed from Mobile, Alabama;  Arkansas;
  Chicago, Portland, Oregon;  Baltimore;  and from other locations (Tr.
 65, 66).  However, details were also common between the three Louisiana
 Field Offices, for example, Destrehan employees being detailed to Belle
 Chasse (Tr. 89, 95, 96).  Employees from outside the State of Louisiana
 were usually detailed for a longer period of time than a weekend (Tr.
 77, 78, 96).  The cost of operating the Federal Grain Inspection
 Service, including the cost of detailing employees, is reimbursed to the
 government by the grain industry.  Under the user fee concept,
 Respondent provides a voluntary service for which the participating
 grain industry pays (Tr. 78).
 
    18.  The 1976 Local Agreement (G.C. Exh. 3) was for a term of one
 year but contained an automatic renewal provision (Art. 2) and no notice
 was ever given by either party of "its desire to effect changes", at
 least prior to October 31, 1981.  As noted above, Mr. Struck in October,
 1981, refused to negotiate on the decision to change the A and B system.
  In 1982, Respondent sought to negotiate three separate local agreements
 and the Union's proposals, presumably for both Destrehan and Belle
 Chasse and, certainly for Belle Chasse, were submitted in April or May,
 1982, but there was no response from Respondent /6/ (Tr. 55-56).
 
                                Conclusions
 
    1.  The provision of Local 3157's Local Agreement concerning weekend
 overtime was a valid collective bargaining agreement which could be
 changed only by negotiations.
 
    Consolidation of the various local units of recognition into a single
 nationwide unit in 1977 did not, in and of itself, affect any changes of
 the 1976 Agreement of Local 3157.  Indeed, the record shows that
 thereafter the 1976 Agreement was extended to include the Lutcher and
 Destrehan Field Offices. It is certainly true that the National
 Agreement of September 21, 1979, did supersede many provisions of local
 agreements.  Indeed, Article 31, Section 2, of the National Agreement
 specifically provides, in part, that:  " . . . this is the Master
 Agreement . . . .  The Master Agreement is governing and controlling and
 nothing may be included in the local supplemental agreement which is in
 conflict with the Agreement . . . .  Where provisions of an agreement
 are in conflict with the terms of this Master Agreement, the terms of
 the Master Agreement will govern." (G.C. Exh. 2, Art. 31, Sec. 2).
 However, as to hours of work and overtime, Section 18 of the National
 Agreement (also referred to therein as the "Master Agreement" or
 "Agreement") as to "Hours of Work & Overtime" first recognized that
 because of varying conditions throughout FGIS, ". . . hours of work and
 overtime can most appropriately be continued and determined at each
 Field Office" and then specifically provided that,
 
          " . . . Existing policies and practices regarding hours of work
       and overtime will be continued at each office until changes are
       established at the Field Office level through appropriate
       consultations or negotiation as provided in the Articles of this
       Agreement covering local agreements." (G.C. Exh. 2, Art. 18).
 
 Article 31 of the National Agreement, which governs "Negotiation of
 Local Agreements" further specifically provides, in part, as follows:
 
          " . . . the Parties therefore agree that the only subjects that
       may be appropriate for negotiation at the local level are (1)
       hours of work (2) rescheduling of overtime (3) local changes in
       personnel policies and practices and other matters affecting
       conditions of employment." (G.C. Exh. 2, Art. 31, Sec. 3).
 
 Consequently, since Article 18 of the National Agreement provided that
 existing policies and practices regarding hours of work and overtime
 will be continued at each office until "changes are established at the
 Field Office level through . . . negotiation . . . ." and Article 31 of
 the National Agreement provided for negotiation at the local level,
 inter alia, of "(2) scheduling of overtime", it is abundantly clear that
 nothing in the National Agreement was intended to supersede in any
 manner existing policies and practices regarding hours of work and
 overtime.  Not only is there nothing in Paragraph 13.2 of Local 3157's
 Local Agreement which is in conflict with any term of the National
 (Master) Agreement, but, to the contrary, Article 18 of the National
 (Master) Agreement provides that " . . . the subjects of hours or work
 and overtime can most appropriately be continued and determined at each
 Field Office.  Existing policies and practices regarding hours of work
 and overtime will be continued at each office until changes are
 established at the Field Office level through . . . negotiation . . . ."
 and Article 31 of the National (Master) Agreement provides for local
 negotiations, inter alia, of "scheduling of overtime".  Respondent's
 assertion that the National Agreement superseded Par. 13.2 of Local
 3157's Local Agreement concerning the assignment of weekend overtime is
 rejected as contrary to the clear and unambiguous provision of Articles
 18 and 31 of the National (Master) Agreement.
 
    As the terms of the Local Agreement concerning the scheduling of
 weekend overtime are separate and distinct, are not in conflict with any
 term the National (Master) Agreement, and the National (Master)
 Agreement specifically provides for the continuation of existing
 policies and practices concerning, inter alia, overtime until changed at
 the Field Office level through negotiation, Paragraph 13.2 of the Local
 Agreement continued, after execution of the National Agreement, as a
 valid agreement.  Moreover, the record shows that the terms of the Local
 Agreement were consistently followed after execution of the National
 (Master) Agreement until unilaterally changed by Respondent on October
 31, 1981.  As a valid collective bargaining agreement, the terms of the
 Local Agreement concerning weekend overtime could be changed lawfully
 only through negotiations and Respondent's refusal to negotiate /7/ with
 regard thereto violated Secs. 16(a)(5) and (1) of the Statute.
 
    2.  Conditions of employment continued, even if Local 3157's Local
 Agreement did not, unless modified in a manner consistent with the
 Statute.
 
    Here, scheduling of weekend overtime was a condition of employment
 established by collective bargaining, initially in 1971 and
 re-negotiated in 1976, and consistently followed from 1971 until October
 31, 1981, when unilaterally changed by Respondent.  If, contrary to my
 conclusion that the provisions of Local 3157's Local Agreement continued
 after execution of the National (Master) Agreement as a valid agreement,
 the Local Agreement did not survive as a valid agreement after execution
 of the National (Master) Agreement, certainly the conditions of
 employment concerning weekend overtime, established by collective
 bargaining, clearly continued and were consistently followed for more
 than two years after execution of the National (Master) Agreement.  In
 U.S. Nuclear Regulatory Commission, 6 FLRA No. 9, 6 FLRA 18 (1981), the
 Authority held, in part, as follows:
 
          " . . .  In the Authority's opinion, the purposes and policies
       of the Statute are best effectuated by a requirement that existing
       personnel policies, practices, and matters affecting working
       conditions continue, to the maximum extent possible, upon the
       expiration of a negotiated agreement, absent an express agreement
       to the contrary or unless modified in a manner consistent with the
       Statute.  (Citations omitted) We see no distinction in the
       circumstances of this case where there has been a change in the
       exclusive representative since the expiration of the agreement.
       The stability of the new bargaining relationship is enhanced by a
       required maintenance of existing personnel policies and practices,
       and matters affecting working conditions pending the negotiation
       of a new agreement." (6 FLRA at 20).
 
 Respondent relies upon U.S. Naval Station, Mayport, Florida, 6 FLRA No.
 26, 6 FLRA 133 (1981), in which the Authority set aside an arbitrator's
 award on the basis of the Council's decision in Internal Revenue
 Service, Ogden Service Center, et. al., A/SLMR No. 806, 7 A/SLMR 201
 (1977) and Department of the Treasury, Internal Revenue Service,
 Brookhaven Service Center, A/SLMR No. 859, 7 A/SLMR 532 (1977), 6 FLRC
 310 (1978), A/SLMR 1052, 8 A/SLMR 603 (1978) (Ogden), A/SLMR 1053, 8
 A/SLMR 612 (1978) (Brookhaven), and, in effect, asserts "modified in a
 manner consistent with the Statute" in U.S. Nuclear Regulatory
 Commission, supra, means herein that Respondent retained the right upon
 "supersession" of the Local Agreement, " . . . to unilaterally change
 provisions contained therein relating to 'permissive' subjects of
 bargaining . . . ", as the Council had held in Ogden and Brookhaven,
 supra, and as the Authority had noted are followed in U.S. Naval
 Station, supra, as to a 1978 grievance.  I do not agree with
 Respondent's conclusion.
 
    It is unquestionably true that the A and B system, more fully set
 forth in Paragraph 13.2 of the Local Agreement, because it rendered
 one-half of the employees unavailable for assignment of weekend overtime
 work, except for volunteers, was " . . . so directly and integrally
 related to the numbers, types, and grades of employees assigned thereto
 as to be determinative of such numbers, types and grades and therefore
 is negotiable at the election of the agency." American Federation of
 Government Employees, Local 3669, AFL-CIO and Veterans Administration
 Medical Center, Minneapolis, Minnesota, 2 FLRA 640 (1980).  If the Union
 were seeking to establish the A and B system as a new condition of
 employment it would be negotiable, pursuant to Sec. 6(b)(1) of the
 Statute, only at the election of Respondent and, as the Authority noted
 in its Medical Center decision, supra, Congressman Ford stated,
 
          " . . . not only are they (agencies) under no obligation to
       bargain, but in fact they can start bargaining and change their
       minds and decide they do not want to talk about it any more, and
       pull it off the table . . . ." (Legislative History, p. 949, 2
       FLRA at 643, n.4).
 
 But we are not dealing with a new condition of employment.  To the
 contrary, the condition of employment in question, scheduling of weekend
 overtime, had, albeit a permissive subject of bargaining, been
 established by collective bargaining in 1971;  re-negotiated in 1976;
 and had remained in continuous effect until unilaterally discontinued by
 Respondent on October 31, 1981.  As an established condition of
 employment, Respondent could not unilaterally alter the condition of
 employment.  Pennsylvania Army and Air National Guard, 1 FLRA 310
 (1979);  U.S. Nuclear Regulatory Commission, supra;  Department of the
 Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981).
 Although the Authority in U.S. Naval Station, Mayport, Florida, supra,
 followed the Counsel's decision that, ". . . upon the expiration of a
 negotiated agreement (management) retains the right to unilaterally
 change provisions contained therein relating to 'permissive' subjects of
 bargaining . . . .", 6 FLRA at 136, the Authority made it clear that it
 did so because, " . . . the law applicable to this case is that which
 existed at the time of the Activity's actions in 1978." (6 FLRA at 136,
 n. 3).  By its decisions in Department of the Air Force, Scott Air Force
 Base, Illinois, supra, and in U.S. Nuclear Regulatory Commission, supra,
 the Authority, as to the Statute, has adopted a broader rule, namely
 that, as stated in U.S. Nuclear Regulatory Commission, supra;
 
          " . . .  The stability of the new bargaining relationship is
       enhanced by a required maintenance of existing personnel policies
       and practices, and matters affecting working conditions pending
       the negotiation of a new agreement." (6 FLRA at 20)
 
 Indeed, the Authority's decision in Pennsylvania Army and Air National
 Guard, supra, as to the duty to bargain prior to changing an established
 condition of employment under the Executive Order, was to like effect.
 See, also, Department of the Navy, Naval Underwater Systems Center,
 Newport Naval Base, 3 FLRA 412 (1980);  Internal Revenue Service and
 Brookhaven Service Center, IRS, 4 FLRA No. 30 (1980);  Department of the
 Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No.
 48 (1981);  Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73,
 9 FLRA 648 (1982).
 
    However, even if the Ogden-Brookhaven-U.S. Naval Station rule
 concerning "permissive subjects of bargaining" applied generally under
 the Statute, "upon the expiration of a negotiated agreement", it would,
 nevertheless, have no application here for the reason that if the Local
 Agreement had "expired" because it was superseded by the National
 (Master) Agreement, certainly the National (Master) Agreement had not
 expired, as it was approved September 21, 1979, and was for a term of
 three years from the date of approval (G.C. Exh. 2, Art. 35), and the
 National (Master) Agreement, as more fully set forth above, expressly
 provided that, "Existing policies and practices regarding . . . overtime
 will be continued at each office until changes are established at the
 Field Office level through . . . negotiation as provided in the Articles
 of this Agreement covering local agreements" (G.C. Exh. 2, Art. 18) and
 further that, " . . . the Parties . . . agree that the only subjects
 that may be appropriate for negotiation at the local level are . . . (2)
 scheduling of overtime (3) local changes in personnel policies and
 practices and other matters affecting conditions of employment".  (G.C.
 Exh. 2, Art. 31, Sec. 3).  Accordingly, pursuant to the terms of the
 National (Master) Agreement, the condition of employment concerning the
 scheduling of weekend overtime continued in effect until changed at the
 Field Office level through negotiations, which were provided for, at the
 local level, by the National (Master) Agreement.  Respondent was not
 free to change conditions of employment which were embodied in its
 collective bargaining agreement, for, as stated by the Authority, in
 Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
 2 (1981),
 
          " . . . the obligation to negotiate would be rendered
       meaningless if a party were able to unilaterally change
       established conditions of employment during the term of an
       existing collective bargaining agreement, as here, without first
       affording the exclusive representative . . . an opportunity to
       negotiate . . . ."
 
 See, also, United States Department of Labor, 7 FLRA No.  107, 7 FLRA
 688 (1982), where Judge Sternburg, whose decision was adopted by the
 Authority, well stated that,
 
          " . . . To hold otherwise would destroy not only the integrity
       of the agreement but disrupt the labor harmony that the agreement
       was designated to foster." (7 FLRA at 696).
 
 Respondent violated Sec. 16(a)(5) of the Statute by unilaterally
 changing the established condition of employment concerning the
 scheduling of weekend overtime and further violated Sec. 16(a)(5) of the
 Statute by refusing to negotiate with the Union, upon request,
 concerning such change of a condition of employment.  Such conduct also
 constitutes a derivative violation of Sec. 16(a)(1) in that it
 interfered with, restrained, or coerced employees in the exercise of
 their rights assured by the Statute.
 
    As the National (Master) Agreement expressly provided:  (a) that
 existing policies and practices regarding overtime would be continued at
 each office until changed through negotiation;  (b) that the parties
 agreed that scheduling of overtime was an appropriate subject for
 negotiation at the local level;  and (c) that local agreements may be
 negotiated at the Field Office level, Respondent clearly and patently
 breached the Agreement by its unilateral suspension of the provisions of
 Articles 18 and 31 thereof and thereby, also, violated Secs. 16(a)(5)
 and (1) of the Statute.  Veterans Administration Hospital, Danville,
 Illinois, 4 FLRA No. 59 (1980);  U.S. Department of Labor, Occupational
 Safety and Health Administration, Chicago, Illinois, Case No. 5-CA-978,
 OALJ 82-126 (August 31, 1982).
 
    Presumably, Respondent, by its assertion that,
 
          " . . . The Union has never appealed the Agency contention that
       the A and B team concept was non-negotiable . . . ." (Respondent's
       Brief p. 2).
 
 contends that the Union should have filed a negotiability appeal rather
 than an unfair labor practice charge.  When an agency changes an
 established condition of employment and refuses to bargain on the ground
 that the matter is not negotiable, it acts at its peril that it is right
 and its refusal to bargain may, at the option of the labor organization,
 be resolved through the unfair labor practice procedures.  Utilization
 of the negotiability appeal procedure is mandatory only in those cases
 which "do not involve actual or contemplated changes in conditions of
 employment" 22 C.F.R. 2424.5.  See, Department of Health and Human
 Services, Social Security Administration, Baltimore, Maryland and
 American Federation of Government Employees, AFL-CIO, Case No.
 9-CA-20054 (OALJ 83-2, October 6, 1982).  Not only would a negotiability
 appeal provide an incomplete and inadequate remedy where an agency has
 already changed a condition of employment, but where, as here, there was
 an unilateral change coupled with a refusal to bargain resolution of
 which involve both factual and legal issues, a negotiability appeal
 would have been inappropriate.  See, for example, National Treasury
 Employees Union and Department of the Treasury, U.S. Customs Service,
 Washington, D.C., 3 FLRA 329 (1980);  American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 6 FLRA No. 15, 6 FLRA 44 (1981).
 
    3.  Respondent contractually elected to negotiate.
 
    Other considerations aside, Respondent by Articles 18 and 31 of the
 National (Master) Agreement contractually elected to negotiate any
 change regarding overtime.  Negotiation "at the election of the agency",
 as provided in Sec. 6(b)(1) of the Statute, may be made by a collective
 bargaining agreement and here the National (Master) Agreement expressly
 provided that existing policies and practices regarding overtime would
 be continued until changes are established at the Field Office level;
 and recited that the parties agreed that scheduling of overtime and
 local changes in personnel policies and practices and other matters
 affecting conditions of employment were appropriate subjects for
 bargaining at the local level.  Accordingly, Respondent by its
 contractual agreement "elected", i.e., agreed, to negotiate any such
 change.  Because it was bound by its contractual agreement to negotiate,
 Respondent was not free to assert that its proposed change of the
 established condition of employment concerning the scheduling of weekend
 overtime was negotiable only at its election and by its refusal to
 negotiate Respondent violated Secs. 16(a)(5) and (1) of the Statute.
 
    Having found that Respondent violated Secs. 16(a)(5) and (1) of the
 Statute by its refusal to bargain on its decision to change an
 established condition of employment and by its unilateral implementation
 of such change, it is recommended that the Authority adopt the
 following:
 
                                   ORDER
 
    Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
 Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
 the United States Department of Agriculture, Federal Grain Inspection
 Service, Destrehan and Belle Chasse, Louisiana, shall:
 
    1.  Cease and desist from:
 
          a) Changing the method of scheduling weekend overtime of
       employees represented exclusively by American Federation of
       Government Employees, AFL-CIO, Local 3157 (hereinafter referred to
       as Local 3157& at its Destrehan and Belle Chasse, Louisiana, Field
       Offices without affording Local 3157 the opportunity to negotiate
       thereon.
 
          b) 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) Forthwith, rescind the "New Method of Scheduling Weekend
       Overtime", which Respondent unilaterally implemented on October
       31, 1981, at its Destrehan and Belle Chasse, Louisiana, Field
       Offices
 
          b) Forthwith, reinstate at its Destrehan and Belle Chasse,
       Louisiana, Field Offices the A and B system for the assignment of
       weekend overtime as more fully set forth in Section 13.2 of Local
       3157's 1976 Local Agreement, and maintain such A and B system
       until changed in accordance with law.
 
          c) Notify Local 3157 of any intended change in the method of
       assignment of weekend overtime, and, upon request, meet and
       negotiate in good faith thereon.
 
          d) Post at its facilities at its Destrehan and Belle Chasse
       Field Offices copies of the attached notice marked "Appendix" on
       forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Regional Director, Federal
       Grain Inspection Service, for the region embrasing the Destrehan
       and Belle Chasse Field Offices, 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 of the Destrehan and Belle Chasse Field Offices are
       customarily posted.  The Regional Director shall take reasonable
       steps to insure that such notices are not altered, defaced, or
       covered by any other material.
 
          e) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
       2423.30, notify the Regional Director, Region 6, Federal Labor
       Relations Authority, P.O. Box 2640, Dallas, Texas 75221, in
       writing, within 30 days from the date of this order as to what
       steps have been taken to comply herewith.
 \
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  May 11, 1983
    Washington, D.C.
 
 
 
 
                                 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
 STATUTE We Hereby Notify Our Employees That:
 
    WE WILL NOT change the method of scheduling overtime of employees
 represented exclusively by American Federation of Government Employees,
 AFL-CIO, Local 3157 (hereinafter "Local 3157"), at our Destrehan and
 Belle Chasse, Louisiana, Field Offices without affording Local 3157 the
 opportunity to negotiate thereon.
 
    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 forthwith rescind, with respect to our Destrehan and Belle
 Chassee Field Offices, the "New Method of Scheduling Weekend Overtime"
 which we unilaterally implemented on October 31, 1981.
 
    WE WILL forthwith reinstate at our Destrehan and Belle Chasse Field
 Offices the A and B system for the assignment of weekend overtime as
 more fully set forth in Section 13.2 of Local 3157's 1976 Local
 Agreement and we will maintain such A and B system until changed in
 accordance with law.
 
    WE WILL notify Local 3157 of any intended change in the method of
 assignment of weekend overtime and we will, upon request, meet and
 negotiate in good faith with Local 3157 thereon.
                                       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 any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 6, whose
 address is:  Federal Labor Relations Authority, Region VI, P.O. Box
 2640, Dallas, Texas 75221, and whose telephone number is:  (214)
 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Sec. 7106.  Management rights
 
                                  * * * *
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty . . . .
 
 
    /2/ Section 7106(a) of the Statute provides, in relevant part, as
 follows:
 
    Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
                                  * * * *
 
          (2) in accordance with applicable laws--
 
                                  * * * *
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted(.)
 
 
    /3/ American Federation of Government Employees, AFL-CIO,
 International Council of U.S. Marshals Service Locals and Department of
 Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Union Proposals 2
 and 3);  International Organization of Masters, Mates, and Pilots and
 Panama Canal Commission, 11 FLRA 115 (1983) (Provision 6);  American
 Federation of Government Employees, AFL-CIO, National Joint Council of
 Food Inspection Locals and Department of Agriculture, Food Safety and
 Quality Service, Washington, D.C., 9 FLRA 663 (1982) (Union Proposal 1).
 
    American Federation of Government Employees,