20:0121(13)CA - DOD, Navy, Washington, DC and NAGE Locals R4-97, R4-103, R4-1 and R4-96 -- 1985 FLRAdec CA
[ v20 p121 ]
The decision of the Authority follows:
20 FLRA No. 13 DEPARTMENT OF DEFENSE DEPARTMENT OF THE NAVY WASHINGTON, D.C. Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R4-97, R4-103, R4-1 and R4-96 Charging Party Case Nos. 4-CA-30150 4-CA-30151 4-CA-30152 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: The consolidated complaint, as amended, alleges that the Respondent, Department of Defense, Department of the Navy, violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to bargain with the National Association of Government Employees (NAGE), Locals R4-1 and R4-96 over a unilateral change in pay practices by applying to all newly hired employees a policy of mailing paychecks, leave and earnings statements to an off-station address or a bank or financial institution. It is also alleged that Respondent Navy, by its Naval Mine Warfare Engineering Activity, violated section 7116(a)(1) and (5) of the Statute by failing to give NAGE Locals R4-97 and R4-103 notice and an independent violation of section 7116(a)(1) of the Statute by interfering with, restraining and coercing its employees in the exercise of their rights guaranteed by section 7102 of the Statute. On or about October 6, 1981, the Respondent issued SECNAV Instruction 7200.17 establishing as a specific policy that civilian pay be distributed directly to financial institutions or by mail to the employees for all civilian employees hired after October 1, 1982, and, where feasible, to discontinue hand delivery of pay, leave and earnings statements for current civilian personnel located at two of its activities, the Naval Weapons Station (NWS) and Naval Mine Warfare Engineering Activity (NMWEA), both located at Yorktown, Virginia. NAGE Locals R4-1 and R4-96 are the exclusive representatives of units of employees at the NWS and NAGE Locals R4-97 and R-103 exclusively represent units of employees at NMWEA. /2/ The SECNAV Instruction did not foreclose bargaining at any subordinate level, as it provided that such levels should support "to the maximum extent possible within current labor agreement and resource constraints" the discontinuance by 1 October 1982, of hand delivery of pay and leave earnings statements for civilian employees through the use of PDQI/Direct Deposit or mail." The new paycheck policy took effect on October 1, 1982. The General Counsel alleges, inter alia, that the Respondent violated section 7116(a)(1) and (5) of the Statute when it prevented its subordinate elements, the NWS and the NMWEA, from fulfilling their bargaining obligation when it gave them a specific directive concerning the change in the method of paycheck delivery. The Respondent contends that its directive to change the method of paycheck delivery did not foreclose bargaining at any subordinate level because it contained the provision, noted above, that such levels should support "to the maximum extend possible within current labor agreement and resource constraints" the new method of paycheck delivery. It also takes the position that the NWS and NMWEA cannot be found to have violated section 7116(a)(1) and (5) of the Statute as they were not Respondents in this case. Finally, the Respondent contends that it did not violate section 7116(a)(1) and (5) of the Statute because the acts complained of were an exercise of management rights under section 7106(b)(1) of the Statute to determine the methods and means of performing work. The Authority finds that the Respondent did not violate section 7116(a)(1) and (5) of the Statute as alleged. The Respondent's Instruction 7200.17 concerning the change in the method of paycheck delivery did not unconditionally direct its subordinate levels to make the change, but rather gave them the direction to change the policy "to the maximum extent possible within current labor agreement . . . constraints." Thus, as argued by the Respondent, the activities at the level of exclusive recognition retained the authority to bargain to the extent consistent with law and regulation. As to the question of whether NWS and NMWEA, those activities at the level of exclusive recognition, fulfilled any obligation they might have had to adhere to their negotiated agreements, since neither activity was named as a Respondent herein, /3/ the Authority shall not address the allegation that they violated the Statute by failing to adhere to the parties' negotiated agreement. /4/ The Authority finds that inasmuch as the respondent did not prevent NWS and NMWEA from fulfilling their duty to bargain with the Union at the level of exclusive recognition, the consolidated complaint alleging violations of section 7116(ay(1) and (5) of the Statute must be dismissed. /5/ See Harry Diamond Laboratories and Department of the Army and Department of Defense, 15 FLRA No. 43(1984). ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 4-CA-30150, 4-CA-30151 and 4-CA-30152 be, and it hereby is, dismissed. Issued, Washington, D.C. September 11, 1985 (s) HENRY B. FRAZIER, III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS, JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Section 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; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ NAGE Locals R4-1, R4-96, and R4-97 are parties to collective bargaining agreements with NWS and NMWEA, respectively. /3/ The record reveals and the Authority has been administratively advised that unfair labor practice charges against the NWS and NMWEA concerning the change in the method of paycheck delivery were withdrawn by NAGE in Case Nos. 34-CA-30021, 34-CA-30026 and 34-CA-30027. /4/ In view of the Authority's decision herein, it is unnecessary to address the Respondent's assertion that a compelling need exists under section 7117 of the Statute for the agency regulation involved herein. /5/ In view of this disposition, the Authority finds it unnecessary to reach the merits of whether the subordinate levels were required to bargain. Cf. Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 16 FLRA No. 88(1984), petition for review filed, No. 85-7039 (9th Cir. Jan. 22, 1985) (wherein the Authority found a proposal pertaining to the method of paycheck distribution to concern the methods and means of performing work, i.e., the agency's payroll function, within the meaning of section 7106(b)(1) of the Statute and thus negotiable only at the election of the agency).