25:0972(81)CA - Navy, Washington, DC and Navy, Naval Supply Center, Oakland, CA -- 1987 FLRAdec CA



[ v25 p972 ]
25:0972(81)CA
The decision of the Authority follows:


 25 FLRA No. 81
 
 DEPARTMENT OF THE NAVY 
 WASHINGTON, D.C.
 
 and
 
 DEPARTMENT OF THE NAVY 
 U.S. NAVAL SUPPLY CENTER 
 OAKLAND, CALIFORNIA
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1533, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-30108 
                                               (19 FLRA No. 7)
 
                       DECISION AND ORDER ON REMAND
 
                             I.  Introduction
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the Ninth Circuit.  The court vacated
 the Authority's original decision and remanded the case for further
 proceedings consistent with Federal Employees Metal Trades Council v.
 FLRA, 778 F.2d 1429 (9th Cir. 1985) (FEMTC).  I;  FEMTC, the court
 reversed and remanded the Authority's determinations in Federal
 Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare
 Island Naval Shipyard, Vallejo, California, 16 FLRA 619 (1984) and
 American Federation of Government Employees, Local 1533 and Department
 of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary
 Store, Alameda, California, 16 FLRA 623 (1984) with respect to proposals
 concerning paycheck distribution that the Authority found outside the
 duty to bargain because they concerned the methods and means of
 performing work.
 
    Following the court's remand in FEMTC, we issued our Decision and
 Order on Remand in Federal Employees Metal Trades Council, AFL-CIO, and
 Department of the Navy, Mare Island Naval Shipyard, Vallejo, California;
  American Federation of Government Employees, Local 1533 and Department
 of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary
 Store, Alameda, California, 25 FLRA No. 31 (1987) (Mare Island Naval
 Shipyard).  In Mare Island Naval Shipyard, we reviewed the Authority's
 previous decision that proposals concerning the method of paycheck
 distribution concern the methods and means of performing work under
 section 7106(b)(1) of the Statute.  We concluded that paycheck delivery
 does not involve the methods and means of performing work within the
 meaning of section 7106(b)(1) of the Statute.  We also concluded that
 (1) the proposals related to matters affecting working conditions of
 bargaining unit employees, (2) the agency failed to demonstrate a
 compelling need for its regulation to bar negotiations on the proposals,
 (3) the proposals did not interfere with the agency's right to determine
 its budget or organization, and (4) the proposals were not directly or
 integrally related to the assignment of work or to determinations as to
 the personnel by which the agency's operations were to be conducted.
 
    Consistent with our decision in Mare Island Naval Shipyard, we
 conclude in this case that the Respondent U.S. Naval Supply Center (NSC)
 committed unfair labor practices when it failed and refused to bargain
 with the Union concerning a proposed change in the method of paycheck
 and savings bonds distribution.
 
                         II.  History of the Case
 
                                 A.  Facts
 
    On or about January 14, 1983, NSC unilaterally implemented new pay
 distribution procedures for employees in the unit.  /*/ Under those
 procedures, all employees hired on or after October 1, 1982 were
 required to have their paychecks and savings bonds either directly
 deposited in a financial institution or delivered to a nonwork address.
 Before implementation of the new procedures, the Union had requested
 that Respondent NSC negotiate on the substance of the change in paycheck
 and savings bonds distribution.  NSC refused on the grounds that the
 change constituted a determination as to the "technology, methods, and
 means of performing work" under section 7106(b)(1) of the Statute and
 because the negotiations were barred by an agency-wide regulation for
 which there was a compelling need.
 
    The General Counsel issued a complaint alleging that the NSC's
 failure and refusal to bargain with the Union violated section
 7116(a)(1) and (5) of the Statute.  The complaint also alleged that
 Respondent Department of the Navy (Navy) violated section 7116(a)(1) and
 (5) of the Statute by interfering with NSC's bargaining obligations with
 the Union on the new pay distribution policy.
 
                B.  The Administrative Law Judge's Decision
 
    The Administrative Law Judge concluded that NSC violated section
 7116(a)(1) and (5) of the Statute when it failed and refused to bargain
 with the Union concerning the proposed change in the method of paycheck
 and savings bonds distribution.  The Judge found that the decision to
 change pay practices involved a negotiable condition of employment.  The
 Judge also dismissed the complaint against Navy because the Navy did not
 interfere with NSC's bargaining obligation.
 
               C.  The Authority's Decision in 19 FLRA No. 7
 
    In its original decision in this case (19 FLRA No. 7 (1985)), the
 Authority followed the precedent established in the original Mare Island
 Naval Shipyard case, 16 FLRA 619 (1984).  The Authority concluded,
 contrary to the Judge, that the method of paycheck and savings bonds
 distribution was a method and means of performing work within the
 meaning of section 7106(b)(1) of the Statute and was negotiable only at
 the election of the Agency.  Therefore, the Authority found that NSC's
 refusal to bargain on the change in the method of paycheck and savings
 bonds distribution did not violate section 7116(a)(1) and (5) of the
 Statute.  The Authority also adopted the Judge's conclusion that Navy
 did not prevent NSC from fulfilling its bargaining obligation to the
 Union and dismissed the complaint against Navy.
 
                      III.  Positions of the Parties
 
    Following the court's remand, both parties filed supplemental
 submissions.  We have accepted those submissions for filing under
 section 2429.26 of our Regulations.  Navy submitted the same brief in
 this case as it did in Mare Island Naval Shipyard.  The Union
 essentially states that there is no merit to the Agency's contentions.
 
                               IV.  Analysis
 
    As noted above, the Navy's arguments in this unfair labor practice
 case are the same that it made in the negotiability cases involving Mare
 Island Naval Shipyard.  We fully considered and addressed those
 arguments in Mare Island Naval Shipyard.  Accordingly, for the reasons
 stated in that decision, we reject the contention in this case that the
 method of paycheck and savings bonds distribution is not within the duty
 to bargain.  Therefore, the NSC's refusal to bargain with the Union over
 the proposed change in the method of paycheck and savings bonds
 distribution violated section 7116(a)(1) and (5) of the Statute.  We
 also find, in agreement with the Judge, that the Navy did not interfere
 with the NSC's bargaining obligation and therefore did not commit an
 unfair labor practice.
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of our Regulations and section 7118 of
 the Statute, we find that the Respondent NSC violated section 7116(a)(1)
 and (5) of the Statute by failing and refusing to bargain concerning a
 proposed change in the method of paycheck and savings bonds
 distribution.  We also find that the Navy did not commit an unfair labor
 practice.
 
                                   ORDER
 
    The Department of the Navy, U.S. Naval Supply Center, Oakland,
 California, shall:
 
    1.  Cease and desist from:
 
    (a) Instituting any change in the established policy and practice of
 the hand delivery of employee paychecks and savings bonds on the
 premises without first notifying the American Federation of Government
 Employees, Local 1533, AFL-CIO, the exclusive representative of its
 employees, and affording the representative the opportunity to negotiate
 in good faith, to the extent consonant with law and regulations, prior
 to any decision concerning such policy and practice.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its employees in their rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Rescind and withdraw the decision to change the method of
 paycheck and savings bonds distribution unlawfully implemented on
 January 14, 1983.
 
    (b) Reinstate the policy and practice of the hand delivery of
 paychecks and savings bonds on the premises as it existed prior to
 October 1, 1982.
 
    (c) Notify the American Federation of Government Employees, Local
 1533, AFL-CIO of any proposed change regarding the hand delivery of
 paychecks and savings bonds on the premises and, upon request, negotiate
 with such representative, to the extent consonant with law and
 regulations, on any such proposal.
 
    (d) Post at its facility at the Department of the Navy, U.S. Naval
 Supply Center, Oakland, California, 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 Commanding Officer
 and they shall be posted 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 the Notices are not altered, defaced, or covered by
 any other material.
 
    (3) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 IX, in writing, within 30 days from the date of this Order, what steps
 have been taken to comply with this Order.
 
    The portion of the complaint alleging a violation of the Statute by
 the Department of the Navy is dismissed.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) The parties stipulated that prior to January 14, 1983 all
 employees in the bargaining unit had the option of receiving their
 paychecks and savings bonds at their work location or at a nonwork
 address.  This option had been available to NSC employees for at least
 30 years.
 
 
 
 
 
 
                          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 institute any change in the established policy and
 practice of the hand delivery of employee paychecks and savings bonds on
 the premises without first notifying the American Federation of
 Government Employees, Local 1533, AFL-CIO, the exclusive representative
 of our employees, and affording it the opportunity to negotiate in good
 faith, to the extent consonant with law and regulations, prior to any
 decision concerning such policy and practice.
 
    WE WILL NOT in any like or related manner, interfere with, restrain
 or coerce our employees in their rights assured by the Federal Service
 Labor-Management Relations Statute.
 
    WE WILL rescind and withdraw the decision to change the method of
 paycheck and savings bonds distribution which we unlawfully implemented
 on January 14, 1983.
 
    WE WILL reinstate the policy and practice of the hand delivery of
 paychecks and savings bonds on the premises as it existed prior to
 October 1, 1982.
                                       (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.