19:0497(65)CA - Labor, Washington, DC and ESA, Region 8 Denver, CO and AFGE Local 898 -- 1985 FLRAdec CA
[ v19 p497 ]
The decision of the Authority follows:
19 FLRA No. 65 U.S. DEPARTMENT OF LABOR WASHINGTON, D.C. AND EMPLOYMENT STANDARDS ADMINISTRATION, REGION 8 DENVER, COLORADO Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 898 Charging Party Case No. 7-CA-1109 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel and the Charging Party filed exceptions to the Judge's Decision, and the Respondents filed an opposition to the exceptions. 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 recommended Order, only to the extent consistent herewith. The record indicates that since about 1964 compliance officers within the Respondent's Denver, Colorado Region have, upon request, received individually assigned government-owned vehicles to assist them in the conduct of field investigations, which comprise some 80% of their job duties. Employees were allowed to park their assigned vehicles at their homes overnight, to store job related equipment and materials in the vehicles, and to use them, as required, for home to office travel. On March 5, 1981, the U.S. Department of Labor (Respondent Agency), at which level there exists the unit of exclusive recognition herein, wrote to the National Council of Field Labor Locals (NCFLL), the exclusive representative and the Charging Party's parent organization, concerning a proposal to substantially reduce automobile travel expenses in the Agency's Employment Standards Administration. The letter indicated that one of the "strategies" being suggested to the individual Regional Administrators to achieve this objective was that the practice of making individual assignments of government-owned vehicles be discontinued and that a system of vehicle "pooling" be put into effect. By letter dated March 9, 1981, the NCFLL, on behalf of its constituent locals, responded to the above proposal by demanding negotiations "over procedures and appropriate arrangements regarding the 'strategies' that have been suggested to the Regional Administrators that impact on bargaining unit employees." Subsequently, on March 24, 1981, at a regularly scheduled quarterly labor-management meeting with the Agency, the NCFLL renewed its request to bargain concerning the impact and implementation of the changes in the vehicle usage policy which were occurring nationwide. The Agency declined to bargain with the Union, asserting essentially that the language of the collective bargaining agreement between the parties had reserved to management complete discretion in the area of vehicle assignment and usage. Additionally, on March 20, 1981, the Employment Standards Administration, Region 8 (Respondent Activity) announced by memorandum to its employees the discontinuance of individual government-owned vehicle assignments. No notice of this change was given to the Charging Party. The complaint herein alleges that the Respondents violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in the policy of making individual vehicle assignments to the employees at the Denver and Colorado Springs, Colorado offices without first affording the Charging Party and/or the NCFLL an opportunity to bargain concerning the substance, impact and implementation of the change. As a separate violation of section 7116(a)(1) and (5), the complaint also alleges that the Respondent Agency refused to bargain with the NCFLL concerning its overall plan to reduce government-owned vehicle usage expenses, of which the change involving individual vehicle assignments was one aspect. The Judge found that the Respondents' conduct in terminating the long-standing practice of assigning government-owned vehicles to its field employees on an individual basis (and instituting instead a system of vehicle pooling) did not violate the Statute. Based upon an evaluation of the overall bargaining history of the parties that culminated in their most recent agreement, as well as pertinent agreement language, the Judge found that the Union had consciously yielded to the Respondents complete discretion concerning the assignment and use of vehicles during the term of the agreement, and that the record supported a finding of a clear and unequivocal waiver on the part of the Union concerning any rights it might otherwise have had to negotiate any aspect of changes such as those made by the Respondents. While the Authority adopts the Judge's conclusion concerning the substance of the decision, the Authority does not agree that the Union waived its right to bargain over procedures and appropriate arrangements for employees adversely affected by the termination of individual vehicle assignments within the Denver Region. The Authority has previously held that "a waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right to negotiate." See, e.g., Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981); Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 10 FLRA 172 (1982). In the Authority's view, the agreement language cited by the Respondents and relied on by the Judge does not constitute such a clear and unmistakable waiver. See also U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60 (1985), wherein the same assertion was made that the identical agreement language constituted a waiver of the union's right to bargain over procedures and appropriate arrangements for employees adversely affected by the change in government-owned vehicle usage in another organizational component of the same Agency as is involved herein. In that case, the Authority adopted the Judge's finding that the agreement did not contain a clear and unmistakable waiver of the union's right to bargain over procedures and appropriate arrangements for adversely affected employees. In the instant case, the Authority finds that there was an obligation to bargain over procedures and appropriate arrangements for employees adversely affected by the termination of individual vehicle assignments within the region and that the Respondents' failure to do so violated section 7116(a)(1) and (5) of the Statute. With respect to that portion of the complaint alleging a failure of the Respondent Agency to bargain with the NCFLL, the Authority further finds that the Agency violated section 7116(a)(1) and (5) of the Statute by refusing to bargain, as requested, over procedures and appropriate arrangements for employees adversely affected by the reduction in government-owned vehicle usage expenses. To remedy the unfair labor practice conduct, the Authority finds that it will effectuate the purposes and policies of the Statute to order the Activity to bargain, upon request, over procedures and appropriate arrangements for employees adversely affected by the termination of individual vehicle assignments; to order that the Agency bargain over procedures and appropriate arrangements for employees adversely affected by any proposed reductions in government-owned vehicle usage expenses; and to order, consistent with law and regulation, that employees be made whole for losses incurred as a result of the change and for which they have not otherwise been reimbursed. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the U.S. Department of Labor, Washington, D.C. and Employment Standards Administration, Region 8, Denver, Colorado, shall: 1. Cease and desist from: (a) Refusing to bargain with the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, over procedures and appropriate arrangements for employees adversely affected by the reduction in government-owned vehicle usage expenses. (b) Failing to notify the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, or its designated representatives, of the termination of individual vehicle assignments at the Denver and Colorado Springs, Colorado offices and affording such representatives an opportunity to request bargaining over procedures and appropriate arrangements for employees adversely affected by such change. (c) 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) Upon request, negotiate with the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, concerning procedures and appropriate arrangements for employees adversely affected by any proposed reduction in government-owned vehicle usage expenses. (b) Upon request, negotiate over procedures and appropriate arrangements for employees adversely affected by the termination of individual vehicle assignments at the Denver and Colorado Springs, Colorado offices. (c) Consistent with law and regulation, make whole any employees for losses incurred as a result of the termination of individual vehicle assignments and for which they have not otherwise been reimbursed. (d) Post at its facilities within the Employment Standards Administration, 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 both the head of the Employment Standards Administration, or a designee, and the Regional Administrator for Region 8, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, 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., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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 refuse to bargain with the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, over procedures and appropriate arrangements for employees adversely affected by the reduction in government-owned vehicle usage expenses. WE WILL NOT fail to notify the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, or its designated representatives, of the termination of individual vehicle assignments at the Denver and Colorado Springs, Colorado offices and afford such representatives an opportunity to request bargaining over procedures and appropriate arrangements for employees adversely affected by such change. 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, upon request, negotiate with the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, concerning procedures and appropriate arrangements for employees adversely affected by any proposed reduction in government-owned vehicle usage expenses. WE WILL, upon request, negotiate over procedures and appropriate arrangements for employees adversely affected by the termination of individual vehicle assignments at the Denver and Colorado Springs, Colorado offices. WE WILL, consistent with law and regulation, make whole any employees for losses incurred as a result of the termination of individual vehicle assignments and for which they have not otherwise been reimbursed. (Agency) (Activity) Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202, and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 7-CA-1109 James E. Culp, Attorney for Respondents Cathy A. Auble and Joseph Swerdzewski, Attorneys for the General Counsel, Federal Labor Relations Authority Before: Isabelle R. Cappello Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp. V, 1981), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a charge filed on March 30, 1981, by the Charging Party, the Acting Regional Director of Region 7 of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and, on November 22, 1982, filed the complaint initiating this proceeding. The complaint alleges that Respondent U.S. Department of Labor, Washington, D.C. (hereinafter, "Respondent-Washington" or "DOL") and Respondent Employment Standards Administration, Region 8, Denver, Colorado (hereinafter, "Respondent-Denver") have violated 5 U.S.C. 7116(a)(1) and (5). /1/ It is alleged that Respondent-Washington violated these provisions on or about March 24, 1981, when it refused to bargain over proposed reduction in government-owned, vehicle-usage expenses, and that Respondent-Denver violated them on or about March 20, 1981, when it unilaterally changed the working conditions of its employees by cancelling the individual assignment of government-owned vehicles to employees in its Denver and Colorado Springs offices and by substituting the pooling of government-owned vehicles in these offices, without providing prior notice to the National Council of Field Labor Locals of the American Federation of Government Employees (hereinafter, "NCFLL") or Local 898 and affording them the opportunity to bargain over the substance, impact and implementation of this change. Respondents deny violating the Statute. They argue that the 1981 changes did not change working conditions and that the NCFLL waived any right to impact bargaining by virtue of Articles 2 and 17 of the applicable collective bargaining agreement (also referred to as the "contract"). See TR13-15. They also argue that this is simply a case of contract interpretation, and should have been resolved through the contract's grievance-arbitration procedures. A hearing on the issues was held in Denver, Colorado, on January 13, 1983. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed by the parties on February 14, 1983. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact, conclusions of law, and recommended order. Findings of Fact /2/ 1. It is admitted that the Charging Party (also referred to as "Local 898") is a labor organization within the meaning of 5 U.S.C. 7103(a)(4), that Respondent-Washington is an agency within the meaning of 5 U.S.C. 7103(a)(3), and that Respondent-Denver is a subordinate activity of Respondent-Washington. 2. It is admitted that NCFLL is the certified exclusive representative of all DOL employees stationed throughout the nation in field offices of Respondent-Washington, with certain exceptions not here relevant. Local 898 is one of many affiliates of NCFLL. The 1978 contract and its bargaining history 3. The NCFLL and DOL have been parties to a collective bargaining agreement ("contract") since January 28, 1970. See R1.24. On August 17, 1978, the 1970 contract was replaced by one which has been in effect during all times material to this proceeding. See GC2.112. 4a. Article 17 of the 1978 contract provides as follows: Section 1-- Assignment of GSA Vehicles or Leased Vehicles (A) Employees may be assigned GSA vehicles or leased vehicles in accordance with GSA usage objectives which for passenger carrying vehicles is a minimum of 3,000 miles per quarter or 12,000 miles per year. (B) GSA or leased vehicles may be made available by the supervisor to those employees who do not wish to drive their POV and are required to travel on official business on a daily or almost daily basis and/or there is no public transportation available, or when an employee is required to carry heavy and/or bulky equipment for the performance of his/her job. (C) It is agreed and understood that no employee shall be required to provide a privately owned vehicle for use on Department business or to maintain a privately owned vehicle as a condition of employment. Section 2-- Use of GSA Vehicles In accordance with GSA requirements that Government-owned or leased vehicles be used only for official purposes, vehicles assigned to employees on either a specific trip or regular basis may be parked at or near the employee's residence during non-duty hours only if the employee is required by his/her supervisor to travel to a temporary duty post in the morning or return home at night without first reporting to his/her duty station, and/or the supervisor has determined that it is more advantageous to the Government to do so. In such event the supervisor will give the employee prior written approval to park the Government-owned or leased vehicle at or near his/her residence during non-duty hours. Section3-- Unsafe Vehicles Any GSA vehicle or leased vehicle which is reported to be unsafe by the operator shall be returned immediately to GSA or the leasing company (or such facility contacted for instructions) for repair or replacement. If the vehicle cannot be repaired or replaced, the employee will, as soon as practicable (within an hour if possible, provide the supervisor with an estimate of the situation and obtain appropriate instructions. See GC2.42-43. There was no similar article in the 1970 contract which mentioned GSA cars only in connection with safety and health. 4b. Doyle Loveridge testified to the intent of the parties in negotiating Article 17 of the contract. He was a member of management's negotiating team and attended all bargaining sessions. Part of his testimony was as follows. During negotiations on the 1978 contract, DOL "wanted to tie down very specifically and carefully how (GSA and POV) cars (were) to be used so that (it) could control (its) expenses and control how (it would) get (its) work done." (TR84). /3/ GSA cars are "a very critical budget item" to the Wage and Hour Division, which is a part of the Employment Standards Administration ("ESA") of DOL, and to the Occupational Safety and Health Administration ("OSHA"), another subordinate activity of DOL. ESA and OSHA require extensive travel of their employees, in carrying out their responsibilities. DOL felt that it had to maintain discretion over the use of GSA cars, in negotiating Article 17 of the contract. Therefore, DOL insisted that the key word "may" be used in referring to GSA cars being assigned to employees. The NCFLL bargained for use of the word "will." During the negotiations over Article 17 "the concept of pooling or renting cars" was specifically considered (TR89 and see also 103-104 and 115-116). Management pointed out that, while it recognized its obligation to furnish vehicles to compliance officers ("CO's") of ESA and OSHA, there were many ways of doing that, including assignment of cars, pooling of cars, and public transportation in metropolitan areas. These various methods were discussed at great length. NCFLL took the bargaining position that, if employees "wanted an assignment of a car to them individually, that if they required the use on a daily basis, that management must assign a car" (TR89-90). Management insisted that it had to have "discretion to provide transportation in other methods" (TR90). There were no specific negotiations over how assignment of cars was to be terminated. All the union members of the bargaining team were from the Wage and Hour Division of ESA and were "very familiar" with the usage of GSA and POV cars because it was so important to their activities" (TR89). 4c. Howard Butler also testified as to the intent of the parties in negotiating Article 17 of the contract. He was president of NCFLL, at the time of the negotiations, and also attended all bargaining sessions. He is a compliance officer for the Wage and Hour Division. Part of his testimony was as follows. Article 17 "was standards negotiated between the Council and the Department whereas employees of the Department of Labor if they met the standards would expect to receive from the U.S. Department of Labor either a GSA vehicle or a leased vehicle" (TR 129 and see also T4130 and 131). The "immediate supervisor" of the individual employee applied "the test", namely whether a field employee "had to go out to temporary duty points on a regular basis" to perform "the majority of their work" (TR130). If employees met this test, they would "(a)bsolutely" have a vehicle to do so, which would include "individual assignments of cars" (TR130). "Absolutely", became "I think" when, on cross-examination, Counsel for Respondents asked whether Article 17 meant that "management provided GSA cars to individuals on an individual basis" (TR135) and after Mr. Butler conceded that the word "may," eventually adopted in Article 17, does mean that "it is not required" (TR134). He also testified: "I think we had mandatory language," when asked whether the union "did propose mandatory language for the requirement that the government provide cars for these individuals" (TR134). Mr. Butler agreed with Mr. Loveridge that there were no specific negotiations on how to terminate use of individually-assigned cars. 4d. Mr. Loveridge's testimony was given in a confident manner, and was consistent with a rational reading of the language of Article 17. Mr. Butler seemed less sure of his facts; and, if he meant to testify that employees had an absolute right to an individually-assigned car, his testimony is inconsistent with the discretionary language adopted. Where their testimony is in conflict, I credit that of Mr. Loveridge. Specifically, I find that Section 1(A) of Article 17 clearly means that management reserves a discretionary right to assign GSA vehicles which includes assigning them on a pooled or doubling-up basis and requiring them to be parked at the office, overnight. 5a. Article 2 of the 1978 contract deals with "Governing Laws and Regulations." Section 5 provides as follows: Section 5-- Management Proposals for Change During the Term of the Agreement (A) Management agrees to transmit to the NCFLL proposed changes relating to personnel policies, practices, and matters affecting working conditions of bargaining unit employees, or which impact on them, proposed during the term of this Agreement and not covered by this Agreement, as far in advance as possible. (B) Upon receipt of such a proposed change from Management, the NCFLL may, within 15 working days, request negotiations concerning the proposed change. (C) Upon timely request from the NCFLL, the parties shall meet and confer within 30 calendar days concerning any negotiable aspects of the proposed change and/or its impact on bargaining unit employees. (D) Any changes of regulations or amendments to this Agreement which are negotiated and agreed to pursuant to this Section will be duly executed by the parties and will become an integral part of this Agreement and subject to all of the terms and conditions of this Agreement. See GC2.4-5. 5b. The 1970 contract, in Article 4, contained its Governing Regulations" (R1.3); and it contained no section similar to that quoted in finding 5a, supra. See R1.3-4. Article 5 of the 1970 contract did contain the following language, however: " . . . any prior benefits and practices and understandings which have been mutually acceptable to the parties which are not specifically altered by this Agreement shall not be changed unless mutually agreed to by the parties" (R1.4-5). 5c. Mr. Loveridge gave undisputed testimony as to the intent of Section 5 of Article 2, as quoted in finding 5a, supra. He testified that management negotiated "circumstances where impact negotiations would have been required," and "clearly intended to limit those where it would be required and to those that are not specifically negotiated during this process" (TR93 and see also TR94). Management made proposals to accomplish this. 5d. Mr. Loveridge also testified that the NCFLL made proposals which would have resulted in everything going to it for impact negotiation. See TR94-95 and R3i). Discussions took place on what the management language meant, namely that subjects covered by the contract would "automatically be excluded from referral" (TR95). The language proposed by management became the final language. See TR95 and compare R3k.4 with the language of Section 5 of Article 2 set forth in finding 5a, supra. Mr. Butler, called as a rebuttal witness, did not dispute this testimony of Mr. Loveridge concerning Section 5 of Article 2. Nor did any other union negotiator. Accordingly, I credit the testimony of Mr. Loveridge, and find that Section 5 of Article 2 was intended to limit bargaining, and not to require it as to matters covered by the contract, for example, the discretionary assignment of vehicles to employees, set forth in Article 17, as quoted in finding 4a, supra. 6a. Section 6 of Article 2 of the 1978 contract provides: Section 6-- Past Practices It is agreed and understood that any prior benefits and practices and understandings which have been reduced to writing and were mutually acceptable to the parties and which are not specifically covered by the Agreement or in conflict with it since the granting of exclusive recognition shall not be changed unless mutually agreed to by the parties. See GC2.5. 6b. Mr. Loveridge also testified as to the intent of Section 6 of Article 2 of the 1978 contract, as quoted in finding 6a, supra. He testified that: Well, at the time of negotiation it was recognized that there were a lot of agreements in the various locals that may have been reached and that were not familiar to everyone and it was very clear that we were negotiating a new contract, that we wanted to include and make this as comprehensive a contract as possible, and that it would not include any part practice that would carry forward with the exception of any of those that had been reduced to writing, and anything that had not been included in this contract. If we bargained and negotiated about an item then there would be past practice carried forward to that item. (TR96). He testified that there were discussions on this matter, and that NCFLL acquiesced in the language proposed by management. Mr. Butler, testifying as a rebuttal witness, did not dispute the testimony of Mr. Loveridge concerning Section 6 of Article 2. Accordingly, I credit this testimony of Mr. Loveridge. Notice procedures 7. Under the 1978 contract, Respondent-Washington notifies the NCFLL of Article 2, Section 5 changes. For local changes, notice is given to designated regional representatives, with a copy to the president of NCFLL. The alleged violative act by DOL 8. On March 5, 1981, the Director of the Division of Collective Bargaining for DOL sent Mr. Butler, the then President of NCFLL, the following letter. This is to advise you that ESA is proposing to reduce automobile travel expenses by 25%. This reduction will apply to the total cost of automobile travel. With regard to GSA car expenses the following strategies have been suggested to the Regional Administrators: (1) Pooling cars at the Area Office or Field Station. (2) Doubling-up in the utilization of cars. (3) Strict limitation of home-to-office travel in individually assigned cars by careful monitoring of daily work assignments and/or elimination or restriction of overnight parking privileges. (4) Review of current vehicle utilization to determine the propriety of individual car assignments, and elimination or reallocation of cars where the 3,000 miles per quarter objective and other relevant criteria are (sic) not being met. (5) Utilization of GSA motor pools for daily dispatch of vehicles. (6) Pooling cars between ESA agencies and/or other DOL agencies. If you have any comments on these changes, please contact this office within fifteen (15) days of receipt of this letter. See GS3(a) & (b). 9. On March 9, 1981, a vice-president of NCFLL, in a reply to the March 5 letter from DOL demanded "bargaining over procedures and appropriate arrangements regarding the 'strategies' that have been suggested to the Regional Administrators that impact on bargaining unit employees" (GC4). 10. At the next regular quarterly meeting between NCFLL and Respondent-Washington, held on March 24, 1981, the demand for bargaining as set forth in finding 9, supra, was placed on the agenda for discussion. The representatives for the union did not challenge the right of management to do the things necessary to cut back on the budget, but requested impact and implementation bargaining, for instance, over "how you are going to reassign whatever cars are left over" (TR28). The union also wanted to discuss "the impact this would have on the performance of the compliance officers who are required presently and were then also to maintain a certain level of performance or productivity," and what would be the impact on their performance appraisal, if these officers were forced to sit in an office, rather than be out in the field performing their investigative role (TR28). Also the union wanted to discuss the monetary impact on the CO's who, "facing the possible repercussions of a bad rating," would have "to pick up (their) keys and take out (their) own personal vehicle" (TR29). The union also wanted to know about accident liability and overall reimbursement. These union concerns were not limited to any geographic area. 11. Productivity standards for the CO's did not change in 1981. The standards in 1981 and now require "at least 70 percent inspection activity on the part of the (CO's)" (TR34). 12. Management response to these union concerns was that it felt all these issues were addressed by Article 17 of the 1978 contract, that is, that it had "the right to assign" and "the right to take away the cars" (TR30). There were no negotiations over this matter at the March 24 meeting. At a subsequent session of the March quarterly meeting, NCFLL raised the issue again. Management response was that it would not negotiate the issue, but would let NCFLL know that "formally" (TR36). 13. In March 1981, "(j)ust about everyone had a vehicle individually assigned to them" (TR35). Any change would "affect every office that lost cars from the east coast to the west coast" (TR35). 14. In July 1981, NCFLL placed the matter back on the national bargaining table, because it had not received a formal response to its bargaining demand of March 9. No national-level bargaining over the matter has taken place, however. 15a. In the period of time between the March and July quarterly meetings, the NCFLL was advised by various presidents of its locals that CO's in ESA and OSHA were required to turn in their individually-assigned, government-owned vehicles, and that the ESA and OSHA regions were pooling these vehicles. 15b. In the New York City Region, ESA and OSHA employees were required to turn in their individually assigned cars. These same employees experienced a cutback in availability of cars and were, therefore, subject to an arrangement whereby the remaining cars were available only upon special request by the employees. 15c. In Region 4, Atlanta, employees were required to turn in their individually assigned cars. The cars were then pooled, parked at the office, and shared among the employees. The result was that employees would not have a car available in order to make inspections and would consequently have to work in the office, waiting for a car to become available instead of making field trips. In particular, one field station experienced a 50 percent cutback in car availability and, because the travel in that field station is extensive, two of the four employees do not have a car for a week at a time. 15d. In Region 6, Dallas, employees had to turn in their individually-assigned cars, and the cars were pooled. The new rules required that any car checked out from the pool in the morning had to be returned by 4:30 that same afternoon. A similar result occurred in Region 8, Denver, and Region 7, Kansas City. 15e. In Region 5, Chicago, the employees were required to turn in their individually-assigned vehicles. An unspecified number of these vehicles were returned to GSA in order to realize a cash savings. The result was that fewer cars were available for employee use, so the employees had to rotate usage of the cars. Similar actions were taken in the other regions, and employees in those regions were likewise affected. 15f. Of the 10 DOL regions, all were affected by the change-- "some greater than others" (TR41). The alleged violative Act by Respondent-Denver 16. The charge in this case was filed by the President of Local 898, representing employees in Region 8, headquartered in Denver, Colorado. There are two other locals in Region 8-- Local 3416 and Local 3505. Each local has a designated regional representative, each of whom is supposed to receive notice of local changes in Region 8. The president of Local 898 filed the complaint on the day after she learned, on March 24, 1981, from a union steward, that, on March 20, 1981, the ESA Area Administrator of the Denver Area had sent out individual memorandums to each CO, in which he notified each of changes in ESA car assignments. See TR52 and GC5(A) and (b). Management did not give notice of the change to the union's designated regional representatives. 17. The March 20, 1981, memorandum from the ESA Area Administrator read as follows: Effective 4-01-81, the following changes will be made which will affect all personnel assigned to the Denver Area office. Area Office. a. All individual assignments of GSA vehicles on a permanent basis will be cancelled. b. A pool of six GSA automobiles will be maintained for the use of all CO's assigned to the Denver AO. Three GSA vehicles will be turned into GSA Motor Pool prior to 4-01-81. c. The GSA pool cars will be parked in existing parking spaces at the Area Office overnight and on weekends. Exceptions to this will be considered on an individual basis. d. The GSA pool cars will be utilized by all CO's while conducting official business. e. Any CO who elects to drive their own private vehicle, when a pool car is available, will be reimbursed at a reduced rate of 16 1/2[ per mile. If a pool car is not available, use of a privately owned vehicle, if approved by your supervisor, will be reimbursed at 22 1/2[ per mile. f. If a pool car is not available and the CO does not wish to use their own vehicle, we will consider the use of a dispatch vehicles from GSA when economical, feasible, and necessary. Colorado Springs Field Station a. All individual assignments of GSA vehicles on a permanent basis will be cancelled. b. A pool of two GSA automobiles will be maintained for all CO's assigned to the Colorado Springs Field Station. c. The GSA pool cars will be parked in existing parking spaces at the Field Station Office, overnight and on weekends. Exceptions to this will be considered on an individual basis. d. The GSA pool cars will be utilized by all CO's while conducting official business. e. Any CO who elects to drive their own private vehicle, when a pool car is available will be reimbursed at a reduced rate of 16 1/2[ per mile. If a pool car is not available, use of a privately owned vehicle, if approved by your supervisor, will be reimbursed at 22 1/2[ per mile. Fort Collins Field Station Use of the CO's privately owned vehicle in this Field Station will remain unchanged at this time. Bismarck, Fargo, Sioux Falls and Rapid City Field Stations. GSA automobile assignments in these Field Stations will remain unchanged at this time. Pueblo Field Station. GSA automobile assignments in this Field Station will remain unchanged at this time. If you have any questions regarding these changes please contact me. 18. Before implementation of the April 1, 1981 changes, the Area Administrator of the CO's, and a union steward met and discussed "how to implement what (the CO's) were told they were going to do (in the March 20 memorandums)" (TR74). During these discussions, the Area Administrator, Wallace Barker, told the steward and the CO's that "(h)ehad been ordered to get rid of some cars, cut the expenses," and that he had no latitude in the matter (TR75). /4/ 19. The ESA Denver area administrated by Mr. Barker covers Colorado and North and South Dakota. CO's in this area are out in the field, doing investigative work, between 75 and 80 percent of their worktime. In the Denver Area Office, at the time of the March 20, 1981, memorandums set forth in finding 17, supra, there were 11 CO's. The Denver area CO's spend between 80 to 90 percent of their worktime in the Denver metropolitan area. They also cover Boulder and some smaller towns east and west of Denver. CO's in seven field stations cover the rest of the geographic area under the jurisdiction of ESA's Region 8. 20. From 1964 until April 1, 1981, any CO in the Denver Area Office who wanted an individually-assigned GSA car had one assigned to him. They took the GSA cars home, parked them at their residences, and used them all week long, whenever they needed them. After April 1, three compliance officers shared two GSA cars; parked the cars downtown in designated parking spots, rather than taking them to their residences; and checked the cars in and out, each day. One CO had always driven his own personal car, and continued to do so, after April 1. Now, there are nine CO's. One still drives his personal car. The other eight are divided into pairs sharing one GSA car; and there is a "floating vehicle" which each CO has every eighth day (TR63). 21. The sharing of GSA cars has affected the time in which some CO's can complete investigations. Depending on where the field investigations are, extra time is spent in travel. One CO estimated that, since the April 1, 1981, change, he has lost about an hour a day to travel time. Because the cars are kept downtown, one CO, who lives 13 miles from the Area Office, testified that he has found it "impossible" to schedule early morning and night interviews of employees, when an employer asks that the employees not be interviewed at the work establishment (TR67). Before April 1, 1981, this GO generally left from his home to go to the establishment he was investigating, and then returned directly to his home. He basically only came into the Denver Area Office to type up reports, do travel vouchers, and attend meetings. This CO spends 60 percent less time in the field, since he lost his individually-assigned car. 22. In July 1981, critical elements were assigned to each job. It seemed to one CO that, since this date, it has been harder to get an extension to complete an investigation on which there are problems. He could not say whether he had a decrease in productivity requirements since July 1981. He thought he was taking longer to do cases. 23. One CO in the Denver Area Office now uses his private car for official business about five times a month. Before April 1, 1981, he so used his private car "maybe once a year" (TR72). He finds that he now has to drive over 26 miles before he can charge a mile as a business expense. This is because travel regulations now require that he deduct home-to-work travel. It used to be that he was reimbursed for such travel. 24. Loss of the individually-assigned car has also meant the loss to the CO's of a "portable office" (TR73). One CO used his car to keep supplies, handbooks, foul-weather equipment, and a hard hat. With a shared car, such use is no longer "available" because of "too many people using a car and not replacing things" (TR73). These materials weigh 50, 60, or 70 pounds. He now carries needed materials in his briefcase. 25. The one CO who testified as set forth in findings 21, 22, 23, and 24, supra, was Donald Jack Klein. He felt that his situation was "typical," and that all CO's in his office were "affected in the same manner" (TR76). He knows this because they "talk all the time" (TR76). His testimony was basically unrebutted, except for testimony that studies had been made, since April 1, 1981, indicating that productivity of the CO's had increased since pooling of cars replaced individually-assigned cars. See TR117, 120, and 121-124. The methods used to make the study were not shown; and the studies themselves were not introduced into evidence. The results of the studies may be unreliable, in that the work of supervisors was counted and, for a short while at least, there were fewer supervisors in 1980 than in 1981. See TR124-125. Mr. Klein was knowledgeable about the work of the CO's and appeared honest and sincere, in giving his testimony. It also makes sense that the use of an individually-assigned car would allow a CO to schedule his field work in a more efficient manner than having to depend upon his turn coming up for use of a pool car, and that the productivity of the CO would be higher, as a result. Accordingly, I find that the pooling of cars in ESA's Region 8 has made the work of the typical CO more difficult, and has made him somewhat less productive. 27. CO's in the Colorado Springs Field Station have worse mobility problems than in the Denver Area Office. There, three CO's share two cars. CO's at the Colorado Springs station cover areas as far away as 300 miles, over some rough terrain, which is hard to travel over in the wintertime. It is office policy that if a CO goes on a trip out of town, he must try to schedule a full week away from the office. So, when two of the three CO's at Colorado Springs are away for a week, the third one has no vehicle to use during that week. One CO in Colorado Springs who has received a poor performance rating since the April 1, 1981, recission of individually-assigned cars, attributes his performance problems to this change. Discussion and Conclusions A. Since, under their applicable collective bargaining agreement (the 1978 contract) the parties reserved to management complete discretion as to the assignment of vehicles to employees who needed them to perform their duties, the decision here at issue, to terminate the assignments, did not constitute a bargainable change in working conditions. /5/ Compare Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA No. 97, 9 FLRA 774 (8/4/82). The decision to terminate individual assignments of cars, and switch to pooling, was simply implementation of the 1978 contract between the parties. The fact that management allowed to continue, for several years after signing the 1978 contract, the past practice of assigning vehicles to employees on an individual basis, was also an exercise by management of its bargained-for-and-won right, under the contract, to exercise complete discretion over the matter. B. Furthermore, in Article 2, Section 5(A) of the 1978 contract (see finding 5a, supra,) management bargained for and won the right to notify the union only of those proposed changes affecting working conditions, or which impact on them, which were "proposed during the term of this Agreement and not covered by this Agreement." Individual assignment of cars, pooling of cars, and other means of providing cars for employees was discussed, at great length, during the contract negotiations. See findings 4b and d, supra. All the union members on the bargaining team were from the Wage and Hour Division of ESA and were "very familiar" with the usage of GSA and POV cars because it was "so important to their activities" (TR89 and finding 4b, supra). How cars were to be assigned was finally left to management's discretion, as already discussed. Thus, Article 2, Section 5(A) constitutes a clear and unmistakable waiver by the union of its bargaining rights over the matter of car assignments, including the institution of pooling in lieu of the individual assignments of GSA cars. /6/ Unpersuasive is the argument made by the General Counsel, at page 27 of the brief, that because termination of individually-assigned cars was not specifically discussed at the negotiations, the right to bargain over this aspect of management's discretion was not waived. Termination of vehicles is subsumed into the topics discussed and the complete discretion won by management, after hard bargaining over how cars should be assigned. As the General Counsel concedes, at page 26 of its brief, bargaining history can be and has been relied upon in determining whether a union has made a clear and unmistakable waiver of a bargaining right. See, e.g. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2, 5 FLRA at page 8 of the Judge Oliver's decision, which was adopted by the Authority. The bargaining history here supports Respondent's arguments that a clear and unmistakable waiver has occurred, in this case, and that it need not transmit to the union proposed changes relating to the assignment of vehicles. See findings 5c and d, supra. C. Finally, the clear impact of Article 2, Section 6 of the 1978 contract (see finding 6a, supra) is that the parties agreed that past practices, not reduced to writing, and specifically covered by the Agreement, could be changed without mutual agreement of the parties. See finding 6b, supra. There was no evidence that the past practice of assigning cars to employees, on an individual basis, was reduced to writing. And Article 17 of the 1978 contract does specifically cover the matter of car assignments. See finding 4a, supra. Thus, the Authority's decisions on past practices, cited at pages 21-23 of the General Counsel's brief, do not control the outcome of this particular case. The General Counsel notes, in footnote 22 of page 20 of the brief, that, in a similar factual situation, which concerned DOL's Chicago OSHA office change in the assignment of GSA cars, Administrative Law Judge Samuel A. Chaitovitz found a violation where Respondent failed or refused to bargain over adverse impact and implementation. See U.S. Department of Labor, Occupational Health and Safety Administration, Chicago, Illinois, and National Council of Field Labor Locals, American Federation of Government Employees, Case No. 5-CA-978, OALJ-82-126 (August 31, 1982). His decision involves the same articles of the same contract as are here involved. Whether the bargaining history of those articles was established in the case before him is not clear from his decision. In any event, to the extent that the records made in these two cases may be similar, I respectfully disagree with my esteemed colleague. /7/ Thus, it must be concluded that the General Counsel has not here established, by a preponderance of the evidence, that Respondent violated the Statute, as alleged. This conclusion makes consideration of other issues raised by the parties unnecessary. Ultimate Findings and Order Respondents have not been shown, by a preponderance of the evidence, to have violated the Statute, as alleged. Accordingly, the complaint in this case should be, and hereby is dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: March 7, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ These sections provide as follows: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . . /2/ The following abbreviations will be used herein. "TR" refers to the transcript. "GC" refers to the exhibits of the General Counsel, and "R" refers to those of Respondents. "GCBr" refers to the brief of the General Counsel and "RBr" to that of Respondents. Multipage exhibits and the briefs will be designated by page or paragraph number following the exhibit or brief designation. /3/ "GSA" refers to government-owned cars. "POV" refers to privately-owned cars. /4/ Mr. Barker subsequently testified on behalf of Respondent. He was not asked whether he had, or had not made such statements. I have accordingly credited the testimony of the witness who testified to these statements. This witness, Donald Jack Klein, appeared to be honest, sincere, and sure of his facts. /5/ The only restriction on management, in the 1978 contract, is that management may not require the use of a POV as a condition of employment. See finding 4a, supra, quoting GC2.42-43, Article 17, Section 1(C). /6/ Statutory rights to negotiate can be waived, if done "clearly and unmistakably." Department of the Treasury, United States Customs Service, Region I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100, 10 FLRA at 567 (1982). See also Nuclear Regulatory Commission, 8 FLRA No. 124, 8 FLRA at 717 (1982). /7/ Exceptions to the decision in 5-CA-978 were filed on September 30, 1982, by Respondent. In the event exceptions are filed to this decision, the parties should alert the Authority to the similarity of the decisions, so that they may be taken up for consideration at the same time.