23:0724(94)CA - OPM and AFGE Local 32 -- 1986 FLRAdec CA



[ v23 p724 ]
23:0724(94)CA
The decision of the Authority follows:


 23 FLRA No. 94
 
 OFFICE OF PERSONNEL MANAGEMENT
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 32, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-50464
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, under
 section 2429.1(a) of the Authority's Rules and Regulations, based on a
 stipulation of facts by the parties, who have agreed that no material
 issue of fact exists.  Briefs for the Authority's consideration were
 filed by the Respondent and by the General Counsel.  The complaint
 alleges that the Respondent violated section 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 unilaterally changing a past practice of permitting employees in the
 Office of Personnel Management's Job Information and Testing Center
 (Respondent JIC) to take their lunch break at any time between 11:30
 a.m. and 1:30 p.m. and by refusing to negotiate on the decision and its
 impact and implementation on unit employees.  For the reasons stated
 below, we find no merit to these allegations and will dismiss the
 complaint in its entirety.  /*/
 
                              II.  The Facts
 
    The American Federation of Government Employees, Local 32, AFL-CIO
 (Union) is the exclusive representative of Respondent's professional
 General Schedule and nonprofessional Wage Grade and General Schedule
 employees in the Washington, D.C. metropolitan area.  On June 7, 1985,
 Respondent JIC held a staff meeting at which time unit employees were
 reminded of JIC policy requiring that two or three employees be
 available from 11:30 a.m. through 1:30 p.m. in order to answer telephone
 calls.  They were asked to voluntarily cover the telephones during these
 hours.
 
    The parties agree that the Respondent's policy of allowing employees
 to take their one hour lunch break anytime between 11:30 a.m. through
 1:30 p.m. had become an established past practice.  The Respondent,
 without notifying the Union, unilaterally implemented a written lunch
 schedule on July 14 for JIC employees.  The written lunch schedule
 directed specific employees to take their one hour lunch break at either
 11:30 a.m. or 12:30 p.m. and resulted in five or six employees becoming
 available for the required telephone coverage.  Subsequently, by letter
 dated July 24, 1985, the Union requested bargaining over Respondent's
 decision to change lunch breaks as well as its impact and implementtion.
  The Respondent refused to negotiate over its decision to schedule lunch
 breaks.
 
    The parties' negotiated collective bargaining agreement includes an
 Alternative Work Schedule Experiment agreement in which paragraphs F and
 G of section III entitled "Tour of Duty" provide:
 
          F.  In making schedule adjustments to accommodate coverage and
       operational requirements, the use of volunteers, or other
       voluntary methods, shall be the preferred means of resolving
       conflicts.  If such means do not serve to provide a resolution,
       other methods may be adopted which are fair and equitable to the
       employees involved.
 
          G.  Management will determine in advance all coverage
       requirements necessary.  Such determinations shall be subject to
       the grievance procedure.
 
                      III.  Positions of the Parties
 
    The Respondent argues that the adjustment in lunch schedules did not
 constitute a unilateral change in an established past practice, but
 rather was a reaffirmation in writing of an existing policy and long
 established practice to ensure the coverage of telephones between 11:30
 a.m. and 1:30 p.m.  It contends the only change that occurred was that
 employees could no longer adjust their lunch schedules between 11:30
 a.m. and 1:30 p.m.  Even assuming that there was a change in past
 practice, the Respondent argues that bargaining over any adjustments in
 lunch schedules was waived by the Union under the parties' negotiated
 collective bargaining agreement.  Additionally, the Respondent argues
 that any dispute concerning differing and arguable interpretations of
 the provisions in the parties' agreement should be pursued by the Union
 under the parties' negotiated grievance and arbitration procedure and
 not through an unfair labor practice procedure.
 
    The General Counsel argues that the change in lunch schedules to
 ensure adequate telephone coverage went beyond a reaffirmation of the
 Respondent's policy.  Rather, the change was a permanent assignment of
 employees concerning their non-work schedule, for example, when
 employees must take their lunch breaks.  The General Counsel contends
 that this is a unilateral change in a negotiable condition of
 employment.  Further, the General Counsel argues that paragraphs F and G
 of section III in the negotiated agreement do not establish a clear and
 unmistakable waiver by the Union of its right to negotiate over the
 subject matter since those provisions are silent on the scheduling of
 lunch breaks.
 
                               IV.  Analysis
 
                  A.  Change in Conditions of Employment
 
    It is clear from the parties' stipulation of facts that the
 Respondent changed an established past practice that allowed unit
 employees to take their one hour lunch break anytime between 11:30 a.m.
 through 1:30 p.m. to one that required that the lunch break be at a
 fixed time, either 11:30 a.m. or 12:30 p.m.  As acknowledged by the
 Respondent, employees could no longer adjust their lunch hour as had
 been their previous practice.
 
                                B.  Waiver
 
    In our view, by entering into agreement with Respondent on paragraphs
 F and G noted above, the Union clearly and unmistakably waived its right
 to bargain over the Respondent's subsequent decision to change lunch
 schedules to ensure adequate telephone coverage.  In so concluding, we
 view the Tour of Duty contract provision as constituting agreement that
 the Respondent can determine coverage requirements, which dictate the
 lunch hour scheduling at issue in this case, and that the forum for the
 resolution of such determiniations is the grievance procedure.  By
 agreeing to these provisions, the Union waived its right to prior
 negotiations on such a scheduling change.  See Defense Logistics Agency,
 Defense General Supply Center, Richmond, Virginia, 20 FLRA No. 62
 (1985).
 
                              V.  Conclusion
 
    We have considered all the facts and circumstances of this case,
 including the positions of the parties, and conclude that the Respondent
 did not violate section 7116(a)(1) and (5) of the Statute, as alleged.
 Accordingly, we shall dismiss the complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-50464 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., October 31, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
    Member Frazier, Concurring:
 
    I agree with the conclusion of my colleagues that the complaint must
 be dismissed.  However, I base my conclusion on a finding that, in the
 circumstances, no unilateral change in conditions of employment took
 place.  I reach this finding as follows.  It is stipulated that there
 was an established practice at the Activity for employees to take their
 one hour lunch break "anytime from 11:30 a.m. through 1:30 p.m. as long
 as two or three employees were available for telephone coverage."
 (Stipulation Section 6(b), emphasis added.) Clearly, the right of the
 employees to set times of their lunch hour was not unconditional.  An
 employee's ability to select "anytime" during that two-hour period was
 conditioned on the availability of employees for telephone coverage.
 The requirement for adequate telephone coverage was a part of the
 established practice.
 
    The collective bargaining agreement provides, among other things,
 that the use of volunteers, or other voluntary methods, shall be the
 preferred means of resolving conflicts in making schedule adjustments
 (section III, Paragraph F), and that management will determine in
 advance all coverage requirements necessary, subject to the grievance
 procedure.  (Section III, paragraph G.) The Activity's supervisor,
 between June 7 and July 15, 1985, observed no phone coverage on several
 occasions between 12:30 p.m. and 1:30 p.m.; on June 14, 1985, pursuant
 to the above contract provisions, employees were reminded of the need to
 voluntarily check with co-workers before leaving for lunch to ensure
 adequate phone coverage.  (Stipulation Sections 7 and 8.) Thus,
 management sought voluntary employee action to meet the coverage
 requirements.  On July 15, 1985, the supervisor implemented the written
 lunch schedule whereby specific employees were directed to take their
 one hour lunch break at either 11:30 a.m. or 12:30 p.m. in order to
 insure adequate telephone coverage.  (Stipulation Section 9.) Apparently
 concluding that "voluntary methods" had not "serve(d) to provide" a
 resolution of the problem management then made "schedule adjustments to
 accommodate coverage and operational requirements."
 
    These actions did not constitute a unilateral change in condi