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