26:0177(20)CA - DOD, Army, McAlester Army Ammunition Plant and AFGE Local 2815 -- 1987 FLRAdec CA



[ v26 p177 ]
26:0177(20)CA
The decision of the Authority follows:


 26 FLRA No. 20
 
 UNITED STATES DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE ARMY 
 McALESTER ARMY AMMUNITION PLANT
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES,LOCAL 2815, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-1041 
                                             (20 FLRA No. 73)
 
                       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 District of Columbia Circuit.
 The court granted the Authority's unopposed motion and remanded the case
 for further consideration in the light of the decision in the Ninth
 Circuit in Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429
 (9th Cir. 1985) (FEMTC).  In 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).  In those cases, the Authority had determined that proposals
 concerning paycheck distribution were outside the duty to bargain
 because they concerned the methods and means of performing work under
 section 7106(b)(1) of the Federal Service Labor-Management Relations
 Statute (the Statute).
 
    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,
 25 FLRA No. 31 (1987).  (Mare Island Naval Shipyard).  In Mare Island
 Naval Shipyard, we reviewed and reversed the Authority's previous
 decision that the method of paycheck distribution concerned the methods
 and means of performing work.  We concluded that paycheck delivery does
 not involve 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 regulations to bar negotiations on the proposals;  (3) the
 proposal 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 determination 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 United States Department of Defense,
 Department of the Army, McAlester Army Ammunition Plant (Respondent)
 committed unfair labor practices when it failed and refused to bargain
 with the Union concerning a proposed change in the method of paycheck
 distribution.  Accordingly, we reverse the Authority's previous decision
 in this case, United States Department of Defense, Department of the
 Army, McAlester Army Ammunition Plant, 20 FLRA No. 73 (1985).
 
                         II.  History of the Case
 
                                 A.  Facts
 
    The record indicates that since 1941, when the plant was opened,
 employees had the option of receiving their paychecks on the premises or
 having them mailed, either to a home address or to a bank.  The record
 further indicates that in 1981, at the time of the alleged change, more
 than 90 percent of the 700 employees at the plant received their
 paychecks on the premises.  In February 1981, there were rumors at the
 plant of a proposed change in the method of paycheck delivery.  On
 February 18, 1981, a meeting was held between the Respondent and the
 Union to discuss a proposed change in the delivery of paychecks.  The
 Respondent presented a chart which reflected the savings that could be
 achieved by mailing paychecks.  The Union expressed opposition to the
 change.  However, there was a dispute as to the final outcome of the
 discussion.  The Respondent alleged that the Union agreed to the change
 while the Union strongly denied that it had agreed.  It was decided at
 the meeting to poll the employees.  The employees were polled on
 February 19 and 99 percent of the employees opposed the change.  On that
 same day, the Union made a request to negotiate over the issue.  A
 meeting was held on March 2 to discuss the change further.  At that
 time, the Respondent stated that the issue was not negotiable and that
 it would not consider negotiating with the Union since the means of
 delivering paychecks was a management right.  On March 12, 1981, the
 employees were informed that beginning with the pay period on March 17,
 1981, paychecks were to be mailed and hand delivery on the premises
 would cease.
 
                  B.  Administrative Law Judge's Decision
 
    The Judge found that the established practice of the hand delivery of
 employees' paychecks on the premises was a condition of employment and
 that the Respondent's decision to change this established condition of
 employment was not excepted from the obligation to bargain by section
 7106 of the Statute.  The Judge concluded that the Respondent violated
 section 7116(a)(1) and (5) of the Statute by the failure and refusal to
 bargain in good faith with the Union prior to announcing to all
 employees its decision to change the existing practice of the hand
 delivery of paychecks, and prior to the implementation of its decision
 on March 17, 1981.
 
                C.  Authority's Decision in 20 FLRA No. 73
 
    In its original decision in this case, the Authority followed the
 precedent established in the original Mare Island Naval Shipyard case,
 16 FLRA 619.  The Authority concluded that the Respondent's notice to
 the Union of its intent to change the method of paycheck delivery
 concerned a matter negotiable only at the election of the agency under
 section 7106(b)(1) of the Statute.  The Authority found that the
 Respondent's refusal to bargain concerning its decision in effect
 constituted notice to the Union that the Respondent would no longer be
 bound by the provision concerning the permissive subject of bargaining
 in the parties' agreement.  The Authority concluded that the
 Respondent's refusal to bargain concerning a change in the method of
 paycheck delivery did not constitute a violation of section 7116(a)(1)
 and (5) of the Statute.  Accordingly, the Authority dismissed the unfair
 labor practice complaint in its entirety.
 
                       III.  Analysis and Conclusion
 
    With the exception of one additional assertion, the Respondent's
 arguments made in this unfair labor practice case are the same arguments
 that were presented in Mre Island Naval Shipyard.  We fully considered
 those arguments in our decision on remand in that case.  Accordingly,
 for the reasons stated in that decision, we reject the Respondent's
 contention in this case that the method of paycheck distribution is not
 within its duty to bargain.  As to the Respondent's additional argument,
 we find, in agreement with the Judge, that the Respondent's decision to
 mail paychecks using the facilities of the U.S. Postal Service, did not
 constitute a determination "with respect to contracting out" within the
 meaning of section 7106(a)(2)(B) of the Statute.  Therefore, we find in
 agreement with the Judge that the Respondent's refusal to bargain with
 the Union over the proposed change in the method of paycheck
 distribution violated section 7116(a)(1) and (5) of the Statute.
 
                                   ORDER
 
    The United States Department of Defense, Department of the Army,
 McAlester Army Ammunition Plant shall:
 
    1.  Cease and desist from:
 
    (a) Instituting any change in the established policy and practice of
 the hand delivery of employee paychecks on the premises without first
 notifying the American Federation of Government Employees, Local 2815,
 AFL-CIO, the exclusive representative of its employees, and affording
 such representative the opportunity to negotiate in good faith, to the
 extent consonant with law, regulations and the Statute, 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 its memorandum of February 19, 1981, entitled Subject:
 "Mailing Payroll Checks" which was unlawfully implemented on March 17,
 1981.
 
    (b) Reinstate the policy and practice of the hand delivery of
 paychecks on the premises as it existed prior to February 19, 1981.
 
    (c) Notify the American Federation of Government Employees, Local
 2815, AFL-CIO of any proposed change regarding the hand delivery of
 paychecks 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 McAlester Army Ammunition Plant,
 McAlester, Oklahoma, copies of 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, McAlester Army
 Ammunition Plant and 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.
 
    (e) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 VI, in writing, within 30 days from the date of this Order, what steps
 have been taken to comply with this Order.
 
    Issued, Washington, D.C., March 13, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 institute any change in the established policy and
 practi