36:0509(61)CA - - Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, CA and IAM Lodge 739 - - 1990 FLRAdec CA - - v36 p509

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[ v36 p509 ]
36:0509(61)CA
The decision of the Authority follows:


36 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

NAVAL AVIATION DEPOT

NAVAL AIR STATION ALAMEDA

ALAMEDA, CALIFORNIA

(Respondent)

and

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS

LODGE 739, AFL-CIO

(Charging Party/Union)

9-CA-80529

DECISION AND ORDER

August 3, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally imposing a 10-hour per week limitation on the use of official time by the chief steward to perform representational duties.

The Respondent did not file an exception to the Judge's Decision. The General Counsel filed exceptions only to the Judge's recommended Order. The Respondent filed an opposition to the General Counsel'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, conclusions, and recommended Order, as modified.

II. General Counsel's Exceptions

The General Counsel contends that the Judge's recommended Order directing the Respondent to bargain with the Union with regard to any changes in established past practices concerning the use of official time by the chief steward does not remedy the Respondent's violation of the Statute. The General Counsel contends that the Respondent also should be required to "rescind its unilateral change and restore the previous practice." General Counsel's Brief in Support of Exceptions at 2. According to the General Counsel, such a remedy is consistent with previous decisions by the Authority in similar cases.

The General Counsel also excepts to the Judge's recommended Order requiring that the Notice be signed by the "Commander or a designee." General Counsel's Exceptions at 2 (emphasis in original). The General Counsel contends that the Notice should be signed by the Commander of the Naval Aviation Depot and that the "[u]se of a designee would diminish the effectiveness of the Notice." General Counsel's Brief in Support of Exceptions at 3. The General Counsel maintains that "compliance issues relating to whether the designee was in fact a proper signatory could be raised, leading to additional investigation and possible litigation." Id.

III. Respondent's Opposition

The Respondent claims that "[t]he ten hour limitation has been rescinded." Respondent's Opposition at 1. Therefore, the Respondent asserts that "there is no need" to modify the Judge's recommended remedy to require that the change be rescinded. Id.

The Respondent also asserts that "[a]n ALJ has the latitude to determine that a notice may be signed by the Commander, or designee." Id. at 2 (Underscoring omitted). According to the Respondent, "[s]erious violations with Command wide effect may well require the top official to sign the notices[,]" while "[t]echnical violations by line supervisors which have minimal effect may be remedied by the signature of a designee." Respondent's Brief in Support of its Opposition at 2.

IV. Analysis and Conclusions

Where an agency violates the Statute by changing a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Statute requires the imposition of a status quo ante remedy, in the absence of special circumstances. See Veteran Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281 (1986). In these situations, a return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 509 (1988), enforced sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989).

The Respondent has not established any special circumstances to show that a status quo ante remedy is not warranted in this case. Although the Respondent asserts that it has rescinded the unlawful change, there is no indication in the Judge's decision or other evidence in the record before us to support that assertion. In the absence of evidence that the 10-hour limitation has been rescinded, we find that an order directing the Respondent to rescind the unlawful change and restore the prior past practice is appropriate and will effectuate the purposes and policies of the Statute. Accordingly, we will order the Respondent to rescind the 10-hour-per-week limitation on the use of official time by the chief steward and to reinstate the prior practice concerning that matter.

We also agree with the General Counsel that the Judge's recommended Order requiring that the Notice be signed by the "Commander, or a designee," should be modified. The remedial purposes of the Statute are best effectuated if a Notice is signed by an official designated by the Authority rather than one determined by a respondent. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230 (1990) (Authority ordered that Notice be signed by the Commanding Officer of the Sacramento Air Logistics, rather than a "responsible official"); Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air force Base, California, 35 FLRA 764 (1990) (Authority ordered that Notice be signed by the Exchange Manager of the McClellan Air Force Base, rather than by "an authorized representative"); U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 34 FLRA 247 (1990) (Authority ordered that the Notice be signed by the Commanding Officer of the Lexington-Blue Grass Army Depot, rather than by "a designee").

We reject the Respondent's contention that this case involves a "technical" violation of the Statute which may be remedied by the signature of a designee. Moreover, in none of the cases cited by the Respondent in support of its assertions did the Authority provide for a notice to be signed by a designee. In these circumstances, we find that requiring the Commander of the Naval Aviation Depot to sign the Notice effectuates the remedial purposes of the Notice by signifying that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations. Accordingly, we will modify the Order to require that the Notice be signed by the Commander of the Naval Aviation Depot.

V. Order

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Department of the Navy, Navy Aviation Depot, Naval Air Station Alameda, Alameda, California shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in an established past practice with respect to the use of official time by the chief steward engaged in representational duties on behalf of the exclusive representative without providing notice to, and upon request bargaining with the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, the exclusive representative of its employees, or any other exclusive representative.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of 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 the 10-hour-per-week limitation on the use of official time by the chief steward to perform representational duties and reinstate the established past practice concerning the use of official time by the chief steward.

(b) Notify the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, the exclusive representative of its employees of any intention to change the established past practices concerning the use of official time by the chief steward and, upon request, negotiate with such representative, to the extent consistent with law and regulation, on any decision to change the established practices.

(c) Post at its Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California facility, 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 Commander of the Naval Aviation Depot, and shall be posted and maintained for 60 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 such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change the established past practice with respect to the use of official time by the chief steward engaged in representational duties on behalf of the exclusive representative without first notifying the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, the exclusive representative of our employees, and affording it the opportunity to bargain, to the extent consistent with law and regulation, on the decision to change the established practice.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the 10-hour-per-week limitation on the use of official time by the chief steward to perform representational duties and reinstate the established past practice concerning the use of official time by the chief steward.

WE WILL notify the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, the exclusive representative of our employees of any intention to change the established past practices concerning the use of official time by the chief steward to engage in representational duties, and, upon request, negotiate with such representative, to the extent consistent with law and regulation, on any decision to change the established practices.

__________________________
(Activity)

Dated: ___________ By: ___________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be alter