34:0554(94)CA - - Navy, Charleston Naval Shipyard, Charleston, SC and Planners, Estimators, Progressmen and Schedulers Association, Local No. 8 - - 1990 FLRAdec CA - - v34 p554



[ v34 p554 ]
34:0554(94)CA
The decision of the Authority follows:


34 FLRA NO. 94

DEPARTMENT OF THE NAVY
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA
(Respondent)

and

PLANNERS, ESTIMATORS, PROGRESSMEN AND
SCHEDULERS ASSOCIATION, LOCAL No. 8
(Charging Party)

4-CA-70731

DECISION AND ORDER

January 24, 1990

Before Chairman McKee and Members Talkin and Armandariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina (Respondent) had not engaged in the unfair labor practice alleged in the complaint. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by failing to bargain in good faith with the Planners, Estimators, Progressmen and Schedulers Association, Local No. 8 (Charging Party), the Federal Employees Metal Trades Council of Charleston, and the American Federation of Government Employees, Local 1864. Bargaining concerned the Respondent's proposal to discontinue reimbursing bargaining unit employees for mileage between employees' residences and temporary duty stations in the Charleston, South Carolina, area.

The Charging Party filed exceptions to the Judge's Decision. Neither the General Counsel nor the Respondent filed exceptions or an opposition to the Charging Party's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no  prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusion, and recommended order dismissing the complaint. II. Order

The complaint is dismissed.

DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD
CHARLESTON, SOUTH CAROLINA

Respondent

and

PLANNERS, ESTIMATORS,
PROGRESSMEN AND SCHEDULERS
ASSOCIATION, LOCAL NO. 8

Case No. 4-CA-70731

Delores T. Griffin, Esquire
For the Respondent

Kenneth D. Battle, Esquire
For the General Counsel, FLRA

Before: JOHN H. FENTON
Chief Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. section 7101, et seq. (herein the Statute).


Upon an unfair labor practice charge filed by the Planners, Estimators, Progressmen and Schedulers Association, Local 8 (PEPSA) against Charleston Naval Shipyard (Respondent), the General Counsel of the Federal Labor Relations Authority (Authority), by the Regional Director for Region IV, issued a Complaint and Notice of Hearing alleging that Respondent violated the Statute by failing to bargain in good faith with PEPSA, Federal Employees Metal Trades Council of Charleston (MTC) and American Federation of Government Employees, Local 1864 (AFGE) concerning Respondent's proposal to discontinue reimbursing bargaining unit employees for mileage to Temporary Duty Station locations in the Charleston, South Carolina area. 
A hearing on the Complaint was conducted in Charleston, South Carolina at which both parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for the Respondent and counsel for the General Counsel and have been carefully considered.

Upon the entire record in this case, and my evaluation of
the evidence, I make the following:

Findings of Fact

PEPSA, MTC and AFGE are the three recognized collective
bargaining representatives at the Shipyard.

L. Jerelyn Knight, Head of the Administrative Division of the Shipyard brought what she believed to be a costly inequity to the attention of Michael Geffen, the Shipyard's Chief Legal Counsel. It was that travel regulations provided for mileage to be paid for private vehicle travel between an employee's residence and a temporary duty station, even where such station is in fact closer to that residence than the regular place of work. Thus some employees were compensated for traveling shorter distances than other uncompensated employees drove to the Shipyard.

Geffen took a sampling which indicated that such practice cost about $20,000.00 per month and decided to do something about it if he could. The Joint Travel Regulations of the Department of Defense provided for such mode of payment, although decisions of the Comptroller General gave agencies the power to provide mileage reimbursement to the extent that travel to a temporary duty station exceeded the normal commute to the regular or permanent place of work (herein called differential mileage). Borrowing from the experience of other shipyards, he decided to redefine what was the permanent duty station to include the three counties in the Charleston area. By doing so he could eliminate altogether the payment of such costs in that entire area.
A proposed change in the travel regulations was drafted and forwarded to the three unions on March 20, 1986. Pursuant to their contracts, which gave them ten working days to request consultation over proposed changes, and ten more days to submit proposals for negotiation if agreement was not reached, each union requested consultation.

The parties met on July 18. The unions were represented by their Presidents: Mr. Myers for PEPSA, Mr. Linn for MTC  and Mr. Jordan for AFGE. Respondent was represented by Mr. Geffen, Ms. Knight and Labor Relations Specialist Bradford. Their individual and collective team, recollections are sufficiently different to make one wonder whether they were in the same room. I received no sense of who told the truth, or the closest approximation of it, from their demeanor, and their exists no  convincing reason on this record to discredit anyone except Myers, for reasons to be examined at the chronologically appropriate time. Because I do not rest my findings on my observation of the witnesses and their demeanor, but rather base them on the entire record and the "logic of events," I shall set out the testimony of each. I do so because I believe my findings of fact ought not be insulated from reversal by the Authority should it disagree with my assessment of this record.
It is useful here to briefly restate the Complaint. It alleged that PEPSA and MTC (but not AFGE) countered Respondent's proposed abolition of mileage reimbursement by proposing that employees receive differential mileage, and that management's negotiators responded "in essence, that Respondent would contact the labor organization representatives after investigation to determine if the proposal could be accepted and get back to the labor organizations to continue bargaining." Thereafter, it alleges, Respondent implemented the "proposal as presented by" PEPSA and MTC without ever having reached agreement with PEPSA (no mention of MTC and AFGE), thereby refusing to bargain in good faith with PEPSA "and other labor organizations." Counsel for the General Counsel's opening statement claimed that management "agreed to investigate whether it could accept the proposal and get back to the unions," and further, that management "implemented the proposal of PEPSA and MTC without getting back to the unions."

For starts, these descriptions of the allegedly violative conduct raise questions, before any defense is entered, as to how the agreement allegedly reached would make any sense with respect to AFGE. What, that is, was to be accomplished by checking out the acceptability of the proposal made by PEPSA and MTC, and to then get back to all three unions, where AFGE had never advanced such a proposal (and in fact, according to all union witnesses, was adamantly and vociferously opposed to any reduction in
mileage payments)?

Myers of PEPSA made the suggestion that differential mileage might be a valid alternative to management's proposal. He testified that he said his union "might be receptive" and that Linn of MTC said essentially the same thing, adding that he would need the concurrence of his executive board. He further testified that Jordan of AFGE remained adamantly opposed to any reduction throughout the discussion, and that Bradford responded to the proposal by saying that he would have to check back with management and get back to the unions to negotiate any change they came up with. He is the only union negotiator to attribute to management an explicit promise to bargain or negotiate at a later date. He said that no other proposals were made, whatever that precisely means, and he did not specifically address whether there was any discussion of the impact of the proposed changes on car-pool riders or particular TDY locations (as his colleagues claim).

Linn of MTC gave essentially the same testimony with respect to Myers' counterproposal, his own agreement with it, and Jordan's everlasting opposition. However, he added that, at some unclear point in the discussions, he raised the question of the impact of a reduction or elimination of mileage payments on certain work in the Shipyard or a South Yard and/or car-pool participants. Pools were encouraged by the Shipyard to reduce traffic congestion, with preference in parking. However, participants who were temporarily assigned to other duty stations were apparently often required to keep up their payments to the car or van pool to keep their space for their return. According to Linn, no specific proposals were offered concerning pools or the "South Yard," but it was made clear that accommodation of the affected employees would have to be discussed in detail before there would be agreement to a proposal to pay the difference. Management responded to the union's proposal by saying that a waiver of travel regulations would be necessary in order to accept the union's proposal, and that it would get back to them after it received the waiver, "if that occurred." Management also, he said, took the position that it would be pointless to address the union's concerns until it was known whether such a waiver could be secured.

All participants agree that Jordan of AFGE was vociferously opposed to management's proposal. He and his colleagues assert that his position never changed, and he said that it never would. In addition to arguing that management should make some sacrifices, he asserted that he raised the question of impact on pool riders and he contended that Navy had no power to change the relevant DOD regulation. Like Linn, he testified that management did not deal with these concerns on the ground it would be a waste of time to do so before it was known whether the necessary waiver could be secured. In his view, management never agreed to the proposal of the other two unions; rather it said that it did not know whether it could get a waiver.
Bradford, for management, testified that its negotiators had been empowered by the Shipyard Commander to accept the anticipated union counterproposal and that they did so, adding that they would see what it would take to implement it. Thus he claimed that such agreement was not contingent upon approval of the waiver - that is, agreement was reached, although its implementation was not a certainty. It would be done if it legally could be done, and if it couldn't "we'd have to get back with them." To his surprise, he testified, no other proposals were made, including specifically any respecting impact on car pools. And Jordan finally, after discussion of anticipated savings and their importance in competing with private shipyards, said that although he didn't like it, he could live with the unions' proposal. At no time, as he recalled it, was there any discussion of the need to get, or the method for getting, a waiver of regulations, or of any timetable for the allegedly agreed-upon compromise. Nor did anyone say, in haec verba, that agreement had been reached.

Ms. Knight added little, recalling no specifics among those in controversy. It was her "reaction" that agreement was reached on the differential. She recalled no words of Jordan's, but observed that he became quiet after the other unions countered, and never indicated he was against the differential they proposed.

Geffen, on the other hand was positive in his recollection that, while Jordan was at first opposed to the differential, he finally threw up his hands, said it represented the best they were going to work out, that he didn't like it but would go along. He further testified that they told the unions that they agreed with the differential proposal, that Linn did not condition his proposal on clearance with his executive board, and that there was no discussion about how the Shipyard would implement the agreed-upon proposal. That is, there was no  discussion respecting management's authority to implement the proposal, and further, no other proposals regarding car pools or any other matter were received from the unions. Management, he testified, did not even decide which of several procedures it would follow to secure a waiver until after the meeting. In his view it would certainly have been done, one way or the other.

Clearance through the Department of the Navy in Washington took months. Not until April 23, 1987 did management contact the unions, after a December grant of a waiver of the Joint Travel Regulations. On that day Bradford called each of the union presidents to report that the waiver had been secured, read them the language of the new instruction providing for differential mileage, and to request that they sign-off on it.

Myers denied that he ever received such a call. He is not credited for a number of reasons. Thus, Bradford made a note of his calls. It is clearly accurate as to Linn and Jordan, i.e. it conforms to their versions. Sandwiched between the two is his brief account of the conversation with Myers, in which he noted that Myers said that the new regulation "was what we agreed to and it was 'OK' to put out the change." The fact that he accurately reported what Linn and Jordan said lends credence to this account. And Myer's denial that any contact occurred is undercut by the testimony of his successor as PEPSA President, Van Fleming. Fleming drafted the unfair labor practice charge, in which he alleged that Code 160 (labor relations) called on April 23 to ask that PEPSA sign "their proposal" and that PEPSA refused to do so. Fleming testified that he received such information from Myers, who was president at material times, and that he had no independent knowledge of such events. Also supporting the claim that Myers agreed to implementation is the fact that Respondent sent on May 8 to Linn and Jordan a notice of intent to implement the new regulation notwithstanding their disagreement, but did not send one to Myers. This is consistent with the claim that Myers had orally consented to implementation. 1

Linn was called by Bradford on April 23, and informed that the waiver had been granted and a new instruction providing for differential mileage drawn up for his approval. He admitted on cross-examination that, consistent with Bradford's notes regarding the incident, he told Bradford "we have changed our mind. You should have struck while the iron was hot." Describing that remark as "part of our conversation", he testified that he told Bradford that he was surprised that Bradford thought it was only necessary that he sign off on the new regulation, that the unions had intended to "come back to the table and to discuss that proposal, just as we had the original proposal." Bradford called Jordan on the same day, said the waiver had been secured and that Jordan should come over and sign the new instruction. Both agree that Jordan said he had never agreed to differential mileage and that he remained unalterably opposed to it.

On May 8, as noted above, Respondent wrote Linn and Jordan. The letters recited management's view of the July IS consultation: that the parties agreed upon differential mileage and agreed that management would take all necessary steps to remove the obstacle in the Joint Travel Regulations; that the discussions ended with a commitment that the regulations would be changed to permit differential payment if authorization to do so was obtained; and that management in good faith followed through, obtaining the waiver and revising "its original position to reflect the parties' agreement." Linn, it said, advised that his union had changed its mind and would not concur in the revision. Jordan, it said, advised that his union had not originally agreed to the compromise language and would not concur in the revision. Each was then informed that, in view of this history, Respondent intended to implement the revised regulation on May 26. As already noted, perhaps because he had not reneged, Myers was sent no such letter. 2

On May 14 MTC responded to the May 8 declaration of intent to implement. It contended that the agreement reached on July 18 was that Respondent would substitute a proposal for differential mileage payment if it was authorized to do so, asserting there was no commitment to accept such proposal without further discussion. It also argued that any agreement to change mileage reimbursement would require a Memorandum of Understanding. It requested bargaining, and proposed that "assignment of personnel to work within the complex, but outside of the CIA and such  work begins or ends at other than an employee's normal working hours shall be filled by volunteers if possible."

AFGE responded to the May 8 memo on the same day. Jordan denied ever agreeing to the alleged compromise, expressed his umbrage at being told he ever had, and requested negotiations "on this proposed instruction." On June 29 Respondent by memo told Jordan that the "opportunity to submit proposals for bargaining when the subject instruction was in proposal form has passed, therefore, your request to negotiate is considered untimely." A few weeks later PEPSA's unfair labor practice charge was filed.
CONCLUSIONS

I conclude that the General Counsel has not established, by a preponderance of the evidence, that Respondent violated its duty to bargain.

The General Counsel in essence argues that the facts show that Respondent agreed to determine from higher authority whether the proposed change in mileage reimbursement could be done consistent with law and regulation, and to get back to the unions for further negotiations if approval of the differential approach was secured. Put another way, the prosecutor claims that the July 18 agreement was that management would ascertain whether the union's proposal was a valid, or legally available, method for mileage reimbursement and that it promised to negotiate about it in the event it was determined by Navy/Defense to be a viable option.

Respondent contends that it accepted the proposal of all three unions, that agreement was reached to put it into place once clearance to do so was secured, and that such agreement was not contingent upon any MIP waiver of regulation. That is, management knew from Comptroller General Decisions that it could pay the difference, but had not settled upon the method by which to effect the necessary change in the Joint Travel Regulations.
In its view then, a full agreement was reached on a subject specifically cleared by the Shipyard Commander, no other proposals were on the table, and nothing remained to be done except sign off on amended language providing for payment of differential mileage once the obstacle in the Joint Travel Regulations had been removed.

Neither of these arguments is altogether consistent with the evidence Marshalled by the party advancing it. Thus, General Counsel's witnesses said that AFGE never agreed to differential mileage payments. If that is so, then agreement to determine whether such a proposal was viable, before resuming negotiations, would not appear to make much sense for AFGE. It was opposed without respect to whether Respondent could legally put the proposal of the other two unions into place. Nothing was to be achieved by taking a break in the negotiations until clearance to make the change was obtained. That would advance matters only with PEPSA and MTC. As for Respondent, its contention that its agreement to payment of differential mileage was not contingent upon securing a MIP waiver collides with the testimony of the lead man on its negotiating team, Mr. Bradford. Although he asserted the agreement reached was not contingent upon a waiver, he described that as meaning that agreement was reached even though its implementation was not a certainty. As he put it, it would be done if it legally could be done, and if it couldn't, "we'd have to get back to them." Thus, there was in fact, in his judgment if not in Geffen's, a possibility that the parties would have to resume negotiations. And that gives rise to the further possibility that such a "contingency" was in fact discussed and that such discussions form a basis for the belief of the union witnesses that management would "get back to them."

I am persuaded primarily by two factors that General Counsel's case is not supported by a preponderance of the evidence. First, only Myers said that Respondent promised to resume negotiations in so many words, and for reasons already explored I do not credit him. (And, in such circumstances, I think it highly likely that he did, when called by Bradford, agree that the new language reflected their agreement and could be put into place.) The others asserted that Respondent's negotiators sought to defer discussion of impact on those in car pools, on the ground it was pointless to do so unless and until the necessary waiver was obtained. 3 Yet Linn admitted, without a satisfactory explanation of what he could possibly have meant, that he did indeed say to Bradford, when called upon to sign off on the new language providing for differential payment, that MTC had changed its mind and that Respondent should have "struck while the iron was hot." It is difficult to give this any interpretation other than that the union had changed its mind during the nine months between the consultation session and the request that it agree that the new regulation was faithful to the agreement reached. It surely indicates that swifter action by Respondent in securing a waiver of the Joint Travel Regulations would have met with that union's approval.


Thus the record furnishes fairly convincing evidence that PEPSA and MTC reneged on an agreement reached. Two of the most damaging statements to the unions' cause were uttered by union officials Linn and Fleming. In such circumstances I feel constrained to conclude that the General Counsel has failed to show that Respondent promised to resume negotiations once it received authority to provide differential mileage payments. Rather, it appears that Respondent promised to get back to finalize the agreement if and/or when it received clearance, or to begin all over again if it did not. Because, as noted, it made no sense to defer negotiations with AFGE in violent opposition to any change in the reimbursement regulations, I am persuaded that AFGE, while strongly opposing any change, did finally acquiesce in part-payment as a better deal than the prospect of no payment at all. It is to be noted that its contract provided that, if agreement was not reached in "consultation" sessions, it was within ten days, to submit proposals for negotiation. No  such request was made until some nine months after AFGE's alleged flat-out refusal to accept either management's or the other labor organizations' proposals.
All parties understood that Respondent would, at a minimum, take whatever steps were necessary to secure, or attempt to secure, the right to cease payment of all mileage to TDY locations and commence payment only for mileage in excess of the commuting distance to permanent work. This would, allegedly, end the inequity of having some employees paid to drive a shorter distance than the norm while others were not reimbursed for the regular drive to their duty station, would save Respondent considerable money, and would enhance its ability to bid successfully against competing private shipyards. Acceptance of such an approach was infinitely preferable to the Respondent's draconian proposal to eliminate all such payments, even for those required to drive far greater distances than their normal commute. That proposal clearly got the desired response: a union request that they compromise by limiting reimbursement to those employees adversely affected by temporary assignments requiring them to travel greater distances. The prospect of successfully resisting such a change was hardly encouraging. Thus, it seems to me, it was in the cards for the unions reluctantly to accept the more palatable of the two options. The evidence is very strong that PEPSA and MTC did just that. There are no circumstances tending strongly to undermine Jordan's assertion that he never did and never would agree even to the compromise. Nevertheless, I believe his recollection to be in error. While he strongly opposed any decrease in compensation, and in his mind never "agreed" to it, he stood alone among the unions and I believe he acquiesced in the best he could get of a bad bargain. If he did not then there was, again, no point in deferring discussion about the impact on car poolers, as he says occurred. I doubt that any discussion of car poolers occurred except as an example of why there ought not be any reduction in payments associated with temporary assignments. And it seems significant that no  specific proposals for dealing with that problem were ever advanced, perhaps because nobody could think of any. If the subject was thrown out at all, it was as an equitable reason not to cut reimbursement. There is no indication that anyone had any serious proposals to make in that regard.

In sum, the General Counsel has not established by a preponderance of the evidence that Respondent violated section 7116(a)(1) and (5) by reneging on a promise to resume bargaining once it was authorized to accept the proposal of two of the unions to pay differential mileage. Accordingly, I recommend that
the Authority issue the following:

ORDER

The Complaint in Case No. 4-CA-70731 is dismissed in its
entirety.

JOHN H. FENTON
Chief Administrative Law Judge

Issued, Washington, D.C., February 10, 1989

FOOTNOTES

Footnote 1 It is significant that Myers was not recalled with respect to any conversation he had with Fleming, and the report that PEPSA would not sign the new regulatory language.
Footnote 2 For what it is worth, Respondent prepared but never filed a grievance against MTC. It tracked the above description of the agreement allegedly reached, and MTC's change of mind. The fact that none was prepared against PEPSA would make sense; the fact that none was prepared against AFGE is not explained and is arguably inconsistent with Respondent's
position.

Footnote 3 Just where such discussions would go is not clear. No proposals were ever made, respecting how to accommodate those who were required to go to a temporary assignment and yet allegedly had to continue payments to a pool going to the regular shipyard assignment. Such a concern obviously furnished grounds to oppose any diminution in mileage payments, and may have been expressed. But the fact that no  specific proposal for accommodating the "victims" of such a policy change was ever made, even when a proposal was made in connection with Respondent's declaration of intent to implement, certainly undermines the unions' claims that negotiation of such matters was postponed pending receipt of a waiver.




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