23:0724(94)CA - OPM and AFGE Local 32 -- 1986 FLRAdec CA
[ v23 p724 ]
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 conditions of employment. Instead, they amounted to nothing more than an attempt by management to insure that the existing requirement for adequate telephone coverage was met in accordance with the provisions of the collective bargaining agreement. If the Union believes that the Activity failed to comply with the provisions and procedures of the collective bargaining agreement in this instance, it may, of course, resort to the negotiated grievance procedure. As noted, for example, section III, paragraph G subjects determinations of coverage requirements to the grievance procedure. Also, such issues as whether volunteers or a voluntary method of coverage were tried, whether they were successful, and whether the other method eventually adopted by management (i.e., the setting of hours) was fair and equitable would all appear to be subject to the grievance procedure. Since I find that no violation of the Statute has been established because there was not a unilateral change in a condition of employment, I find it unnecessary to reach the waiver issue addressed by my colleagues. Issued, Washington, D.C., October 31, 1986 /s/ Henry B. Frazier, III, Member --------------- FOOTNOTES$ --------------- (*) Member Frazier's separate opinion is set forth, infra.