21:0484(64)CA - Labor, Employment Standards Administration, Wage and Hour Division and AFGE Local 2513 -- 1986 FLRAdec CA



[ v21 p484 ]
21:0484(64)CA
The decision of the Authority follows:


 21 FLRA No. 64
 
 U.S. DEPARTMENT OF LABOR 
 EMPLOYMENT STANDARDS ADMINISTRATION 
 WAGE AND HOUR DIVISION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2513, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-40354
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his 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, the Respondent filed exceptions to the Judge's
 Decision, and the General Counsel filed a brief opposing the
 Respondent's 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 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, /1/
 conclusions and recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Department of Labor, Employment Standards Administration,
 Wage and Hour Division, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing, upon request, to bargain with the American
 Federation of Government Employees, National Council of Field Labor
 Locals, AFL-CIO, the exclusive collective bargaining representative of
 its employees, concerning the procedures to be observed in the
 interstation transfer of the employees of its former Brooklyn Wage-Hour
 Office and over appropriate arrangements for any employees adversely
 affected by such transfer.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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, bargain with the American Federation of Government
 Employees, National Council of Field Labor Locals, AFL-CIO, concerning
 the procedures to be observed in the interstation transfer of the
 employees from its Brooklyn Wage-Hour Office to its Bronx and Manhattan
 Offices and concerning appropriate arrangements for employees adversely
 affected by such interstation transfer.
 
    (b) Post at its Bronx and Manhattan, New York facilities copies of
 the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon receipt of such forms, they shall be signed
 by the Wage and Hour Administrator, or his designee, and shall be posted
 and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, 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., April 24, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, 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 fail and refuse, upon request, to bargain with the
 American Federation of Government Employees, National Council of Field
 Labor Locals, AFL-CIO, the exclusive collective bargaining
 representative of our employees, concerning the procedures to be
 observed in the interstation transfer of the employees from our former
 Brooklyn Wage-Hour Office and over appropriate arrangements for any
 employees adversely affected by such transfer.
 
    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, bargain with the American Federation of
 Government Employees, National Council of Field Labor Locals, AFL-CIO,
 concerning the procedures to be observed in the interstation transfer of
 the employees from the Brooklyn Wage-Hour Office to the Bronx and
 Manhattan Offices and concerning appropriate arrangements for employees
 adversely affected by such transfer.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Region II, Federal Labor Relations Authority, whose address
 is:  26 Federal Plaza, Room 2237, New York, New York 10278 and whose
 telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 2-CA-40354
 
 U.S. DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS
 ADMINISTRATION, WAGE
 AND HOUR DIVISION
    Respondent
 
 
                                    and
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2513,
 AFL-CIO
    Charging Party
 
    Annabelle T. Lockhart, Esquire
    For the Respondent
 
    Peter Richardson
    For the Charging Party
 
    Lee Mingledorff, Esquire
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101
 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
 Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
 C.F.R. Chapter XIV, Section 2410 et seq.
 
    Pursuant to a charge filed on May 24, 1984, by American Federation of
 Government Employees, Local 2513, AFL-CIO (hereinafter called AFGE Local
 2513) against U.S. Department of Labor, Employment Standards
 Administration, Wage and Hour Division (hereinafter called DOL and
 Respondent) the General Counsel of the FLRA by the Director of Region II
 issued a Complaint and Notice of Hearing on August 31, 1984, alleging
 that Respondent violated Section 7116(a)(1) and (5) of the Statute by
 reassigning employees between offices without affording the National
 Council of Field Labor Locals of the American Federation of Government
 Employees, AFL-CIO (hereinafter called the Council) an opportunity to
 bargain over the impact and implementation of the reassignment.
 Respondent filed an Answer denying it had violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in New
 York, New York.  Respondent, AFGE Local 2513 and General Counsel of the
 FLRA were represented and afforded full opportunity to be heard, to
 examine and cross-examine witnesses, to introduce evidence and to argue
 orally.  Briefs were filed and have been fully considered.  Based upon
 the entire record in this matter, my observation of the witnesses and
 their demeanor, and my evaluation of the evidence I make the following:
 
                             Findings of Fact
 
    The Employment Standards Administration and its Wage and Hour
 Division are constituent entities of the Department of Labor.  At all
 times material herein the Council has been recognized as the exclusive
 collective bargaining representative for a unit of employees stationed
 throughout the nation in field duty stations of the Department of Labor,
 including employees in DOL's Employment Standards Administration, Wage
 and Hour Division.  At all times material Kathleen Becker has been
 Vice-President of AFGE Local 2513 and a designated regional
 representative of the Council and an agent acting on its behalf.
 
          Bargaining History and Collective Bargaining Agreement
 
    On August 17, 1978, the DOL and the Council signed a collective
 bargaining agreement.  This agreement, including the attached appendices
 and memoranda of understanding is still binding on the parties.  /2/
 
    On July 18, 1977 the Council submitted its initial proposals which
 included, inter alia, Section h of Article 31 which provided that where
 employees were to be involuntarily transferred, the Council would be
 notified and negotiations would be held with respect to the impact of
 the transfer on unit employees.  The Council also proposed that
 supplemental agreements regarding interstation transfers could be
 negotiated.  The Council maintained its position with regard to the
 language in Section h all through 1977.  The assistance of the Federal
 Mediation and Conciliation Service was requested by the Council in late
 1977.  Management during this period had submitted two proposals, dated
 July 17, 1977 and October 19, 1977, which did not provide for such a
 bargaining obligation.  On December 23, 1977, management submitted a
 third proposal which also did not require bargaining on the impact and
 implementation of involuntary reassignments.  During this period the DOL
 had been adamant that it was not going to agree to bargain on impact and
 implementation of reassignments.  On April 21, 1978 the Council
 submitted a second proposal on interstation transfer and reassignment.
 This proposal accepted management's proposals in a number of areas and
 in proposed Section 5 of Article 24 omitted reference to negotiations on
 impact and implementation, providing only that management would notify
 the Council of all proposed transfers "at least three (3) weeks in
 advance." This was the first time the Council had been willing to drop
 its efforts to get contractual recognition of bargaining rights in this
 area.  The parties' final proposal in this area was dated May 4, 1978.
 It was a joint proposal and its only change from the Council's April 28,
 1978 proposal is to be found in Section 5 wherein the notice period of
 transfers to be furnished the Union was reduced to two weeks.  The May
 4, 1978 Joint Proposal is the current wording of Article 24 of the
 parties' national agreement which deals with interstation transfers.
 /3/
 
  The Closing of the Brooklyn Wage-Hour Office And Interstation Transfer
 of Employees
 
    On September 2, 1984 Respondent's Local Labor Relations Officer,
 Brenda Judson, notified the Council that Respondent intended to reassign
 all unit employees of the Brooklyn Area Office to the Bronx and
 Manhattan Area Offices.  Becker, on behalf of the Council, requested
 negotiations on the implementation of the move and its impact on the
 affected unit employees.  This request also contained a list of initial
 proposals.  These initial proposals sought, among other things, to
 bargain regarding familiarizing employees with their new work sites;
 evacuation plans;  the location and use of fire extinguishers;  the
 methods (including seniority) by which employees would be assigned desk
 and work locations at their new work site;  the utilization of
 partitions in the new space;  parking arrangements for employees at the
 new site;  telephones;  territorial assignments of employees;  office
 equipment;  the ability to keep personal items;  new business cards for
 employees;  ventilation;  window drapes;  desk lamps;  a non-smoking
 area;  office availability to employees outside of normal duty hours;
 keys to the restroom and office;  and administrative time for moving and
 relocating which would not be counted as time under the employee's
 productivity standards.
 
    On September 20, 1983, Judson wrote to Jesse Rios, the President of
 the Council, stating that management would not relocate employees until
 bargaining over the impact and implementation of the relocations was
 completed.  On September 29, 1983, Respondent, at the national level,
 repudiated the local official's offer and announced that DOL had no
 obligation to bargain over the impact and implementation of the
 relocation and that the relocation had no material effect on bargaining
 unit employees.  On October 4, 1984, the Council again requested
 negotiations but the Council received no response from Respondent.  No
 negotiations ever took place.
 
    On January 18, 1984, the Council received notification of the
 reassignments of employees and on January 23, 1984, employees received
 their reassignment notifications.  On February 6, 1984, the
 reassignments took place as scheduled.  Two employees were transferred
 to the Bronx Wage and Hour Area Office and seven employees were
 transferred to the Manhattan Wage and Hour Area Office.
 
    With regard to the impact of the relocation on employees, (1) travel
 time has been significantly increased both in terms of getting into the
 office from home and in traveling to investigate work sites in the
 boroughs of Queens, Brooklyn, and Staten Island;  (2) there is increased
 cost due to parking and a lack of available parking spaces;  (3) because
 there are now 17 compliance officers in the Manhattan Office there is
 greater noise and crowding than before;  and (4) there are now
 proportionately fewer clerical employees providing support to compliance
 officers than before the relocation.  The Brooklyn office employees had
 partitions to divide work spaces, increase privacy and reduce noise
 levels.  Now employees have no partitions and fewer phones per employee
 than before.  There were serious ventilation problems in the Manhattan
 Area Office which were made more serious by the introduction of
 additional employees in the same space.  Prior to the move there had
 been no discussion as to how the move would occur or when employees
 would be able to pack.  The move caused some employees to use more time
 in traveling in to and out from Manhattan to investigate work sites in
 Queens, Brooklyn and Staten Island.  With respect to one employee extra
 time amounted to between 20 minutes and 45 minutes each way.  Depending
 on the number of visits one would have to make to a particular site,
 this could add several hours to the time it took to investigate each
 case.  Performance standards require employees to close a certain
 percentage of cases in 45 days and all cases by 180 days.  In addition
 employees are held to a certain standard of effective time utilization
 which would also be affected by increased travel time.  There was more
 on-street parking available in Brooklyn than in Manhattan, 12 DOL
 reserved parking spaces in Brooklyn versus none in Manhattan.  Five of
 the seven employees transferred from the Brooklyn office used their
 privately owned vehicles in conducting their investigations and trying
 to find a parking space around the Manhattan Area Office could take from
 5 minutes to two hours to locate, depending on the time of day.
 Management apparently had made no adjustments in performance standards
 based on the increased travel time or the difficulty in locating parking
 spaces.  There were some asbestos hazards in the new location and,
 unlike the old work site where there were phones within reach of every
 desk, in Manhattan there were fewer phones per employee and many
 employees now had to leave their desk area to get to a phone.  Manhattan
 also had a problem with pests.  Certain office procedures which were
 different from the Brooklyn office had an impact on an employee's
 ability to be in the field for investigations.  One of these was the
 requirement that each employee do technical assistance for an entire
 day.  In Brooklyn no employee was assigned this task but employees who
 happened to be in the office would pick up this responsibility.  After
 the transfer, the former Brooklyn Area Office employees had to perform
 technical assistance one day a week until they caught up with the time
 already served by the other Manhattan employees in that endeavor.  Such
 employees perform technical assistance two times a month.  One employee
 lost 24 field days due to this requirement between the transfer of
 February 6, 1984 and the date of the hearing.
 
                        Discussion and Conclusions
 
    The interstation transfer by DOL of the employees of the Brooklyn
 Wage-Hour Office to the Bronx and Manhattan Wage-Hour Offices was a
 change in the working conditions that affected, or could reasonably be
 foreseen to affect, the transferred employees.  Absent any privilege
 Respondent would be required to notify the Council of the change and to
 bargain concerning its impact and implementation.  Cf. U.S. Department
 of Labor, Occupational Safety and Health Administration, Chicago,
 Illinois, 19 FLRA No. 60 (1985).
 
    Respondent contends that it had no obligation to bargain concerning
 the implementation and impact of the interstation transfer because the
 Council allegedly waived its statutory right for such bargaining when
 the Council dropped its contractual proposal that Respondent bargain
 about the impact and implementation of interoffice transfers.
 Respondent's argument confuses a statutory right as opposed to a
 contractual right.  The latter is a right set forth and secured in the
 collective bargaining agreement and it is enforced by utilizing the
 means for enforcing contractual rights, including grievance and
 arbitration procedures.  Rights granted by the Statute must be enforced
 utilizing the methods provided by the Statute including unfair labor
 practice procedures.  The procedures for the enforcement of contractual
 rights are often more speedy and effective than those for enforcing
 rights provided by the Statute.
 
    In the instant case, when the Council dropped its contractual demand
 to bargain about the impact and implementation of interstation transfers
 the Council was merely abandoning its attempt to secure a contractual
 right which it could then enforce through the contract.  Nothing in the
 record establishes or implies that the Council was in any way giving up
 its statutory rights.  This distinction between statutory rights and
 contractual rights has long been recognized in the field of labor
 relations and it has similarly been recognized that giving up the
 securing of a contractual right does not constitute the waiver of a
 statutory right.  Cf. Timber Roller Bearing Company v. NLRB, 325 F 2d
 746 (6th Cir. 1963) at 751.  4 The waiver of a statutory right must be
 clear and unmistakable.  U.S. Department of Labor, Occupational Safety
 and Health Administration, Chicago, Illinois, supra.  The record in the
 subject case shows no such clear and unmistakable waiver of the
 Council's statutory right to bargain about the impact and implementation
 of the interoffice transfer of employees.  Agreeing that two weeks
 notice would be sufficient notice of such a transfer hardly constitutes
 a waiver of the right to bargain about the implementation and impact of
 such a transfer.  Thus, I conclude the Council did not waive its right
 to bargain after the implementation and impact of the interoffice
 transfer of papers.
 
    I conclude, further, in the absence of such a waiver, DOL violated
 section 7116(a)(1) and (5) of the Statute by refusing to negotiate with
 the Council concerning the impact and implementation of the interoffice
 transfer of employees from the Brooklyn Wage-Hour Office to the
 Manhattan and Bronx offices.
 
    Having found and concluded that DOL violated Sections 7116(a)(1) and
 (5) of the Statute, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby Orders, that the United States Department of Labor,
 Employment Standards Administration, Wage and Hour Division, Chicago,
 Illinois, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing, upon request, to bargain with
       American Federation of Government Employees, National Council of
       Field Labor Locals, AFL-CIO, the exclusive collective bargaining
       representative of its employees, concerning the impact and
       implementation of any interoffice transfer of employees.
 
          (b) In any like or related manner interfere with, restrain, or
       coerce any employee in the exercise of right assured by the
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Upon request bargain with American Federation of Government
       Employees, National Council of Field Labor Locals, AFL-CIO
       concerning the impact of the inter-office transfer of employees
       from the Brooklyn Wage-Hour Office to the Bronx and Manhattan
       Offices and concerning the impact and implementation of any future
       interoffice transfers of employees.
 
          (b) Post at its Bronx and Manhattan facilities copies of the
       attached Notice on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receiving such forms, they shall be
       signed by an appropriate official of the Respondent and shall be
       posted and maintained by such official for 60 consecutive days
       thereafter, in conspicuous places, including bulletin boards and
       all other places where notices to employees are customarily
       posted.  Reasonable steps shall be taken to insure that such
       notices are not altered, defaced, or covered by other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, in writing,
       within 30 days from the date of this Order, as to what steps are
       being taken to comply herewith.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  September 12, 1985
    Washington, D.C.
 
 
                                 FOOTNOTES$ -----------
 
    (1) On pages 3 and 4 of his Decision, the Judge inadvertently noted
 the wrong year in describing the events leading up to the allegation in
 the unfair labor practice complaint.  Thus, on pages 3 and 4
 respectively, he referred to events occurring on September 3, 1983 and
 October 4, 1983, rather than 1984.  These inadvertencies are hereby
 corrected.
 
    (2) Article 24 of the collective bargaining agreement entitled
 "Interstation Transfer," provides in relevant part:
 
          Section 5 -- Notice to NCFLL
 
          The NCFLL President or his/her designee will be notified of all
       proposed transfers of bargaining unit employees at least 2 weeks
       in advance.
 
    (3) DOL's chief negotiator testified that he felt that when the
 Council agreed to the final language this constituted a clear and
 unequivocal waiver of the Council's right, during the term of the
 agreement, to negotiate over the impact of interstation transfers.  The
 Council negotiators testified that the Council had no intention of
 waiving its statutory rights.
 
 
 
 
                                 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 fail and refuse, upon reques