40:1211(106)CA - - DOD, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1991 FLRAdec CA - - v40 p1211

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40:1211(106)CA
The decision of the Authority follows:


40 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF DEFENSE

WARNER ROBINS AIR LOGISTICS CENTER

ROBINS AIR FORCE BASE, GEORGIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987

(Charging Party/Union)

4-CA-80513

DECISION AND ORDER

May 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to assign a designated union negotiator to the dayshift pursuant to an agreement between the parties. The Judge recommended that the complaint be dismissed.

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. We adopt the Judge's findings and conclusions only to the extent consistent with this decision.

Contrary to the Judge, we find that the Respondent's refusal to assign the Union's designated negotiator to the dayshift, admittedly a breach of the parties' ground rules agreement, amounted to a repudiation of the agreement in violation of section 7116(a)(1) and (5) of the Statute. Accordingly, we will issue an appropriate remedial order.

II. Facts

On April 22, 1987, the Respondent and the Union entered into an agreement establishing ground rules for the negotiation of a local supplemental agreement. Among other things, the ground rules agreement (the agreement) provided that: (1) union negotiators would be changed to the dayshift for the duration of the time they served on the Union's negotiating team; (2) the Union's team was not to exceed four persons; (3) the Union would provide the Respondent with a list of 10 negotiators and alternate negotiators; and (4) the Union would provide the Respondent with specific minimum notice periods when the Union intended to replace a regular team member with an alternate or to change the composition of the negotiating team. Judge's Decision at 3-4. On April 27, the Union designated a list of 10 employees, from which it named four to begin negotiations. Id. at 4.

By letter dated February 24, 1988, the Union notified the Respondent that two members of the negotiating team would be replaced. The Union named nightshift employee Ralph McInvale and another employee as the replacements. Id. McInvale was a "shift responsible operator" on the nightshift in the Respondent's sewage treatment plant. Transcript at 55-56. As a shift responsible operator, McInvale was responsible for the sewage treatment plant in the absence of the supervisor. Id. at 56. McInvale was a WG-9, one grade higher than the journeyman grade. Id. at 56, 60. McInvale also was a shop steward and the Union's representative on the basewide safety committee. Id. at 53.

By letter dated February 26, the Respondent replied, acknowledging the Union's designation of the two employees as members of the negotiating team, but stating that "it will be impossible to assign Mr. McInvale to dayshift for this purpose." Judge's Decision at 4. The Respondent explained that "there is no work commensurate with [McInvale's] grade available on the Mon-Fri dayshift" and there was no other employee "of the appropriate grade available to assign to Mr. McInvale's shift responsible position in his absence." Id. at 5. The Respondent stated that "[b]ased upon the situation you may prefer to assign some other steward to the negotiating team instead." Id. The Union did not reply. On March 10, the Union filed the unfair labor practice charge that led to the instant complaint.

III. Administrative Law Judge's Decision

The Judge noted that the Authority has held that not every breach of contract is an unfair labor practice. The Judge cited the Authority's decisions in Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA 516 (1983) (Harry S. Truman Hospital); U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251 (1982); and Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982).

The Judge stated that "[e]ach party assumes that Respondent's refusal to assign Mr. McInvale to the dayshift was a breach of contract." Judge's Decision at 4 n.2. The Judge found that by not placing McInvale on the dayshift the Respondent "may thereby have violated its agreement with the Union, as General Counsel asserts and Respondent presumably agrees (Respondent's Brief, p. 5), although the agreement . . . is susceptible to varying and arguable interpretations." Judge's Decision at 5. The Judge nonetheless concluded "that Respondent did not reject or repudiate its agreement with the Union in any respect." Id. at 5-6.

In support of this conclusion, the Judge cited the Respondent's February 26, 1988 letter to the Union and determined that "[c]onsequently, Respondent did not violate its agreement by refusing to assign Mr. McInvale to the dayshift but, rather, stated that it could not assign him in grade because there was no work available at his grade and, in addition, it stated that there was no replacement available for Mr. McInvale." Id. at 6. The Judge noted that the letter also stated that "[b]ased upon the situation, you may prefer to assign some other steward to the negotiating team instead." Id. (emphasis in Judge's decision). Further, the Judge stated that because the Union never replied to the Respondent's letter, the Respondent "never had to face the issue of replacing Mr. McInvale on the midnight shift since the Union never indicated that Mr. McInvale was interested in being reassigned at a lower grade." Id. at 6-7.

The Judge found that the Respondent did not repudiate the agreement in violation of the Statute. The Judge stated that "if [the Respondent's] failure to assign Mr. McInvale to the dayshift were a breach of contract, it was not a flagrant violation and did not rise to the level of an unfair labor practice." Id. at 7. The Judge then noted that "while Respondent did not reassign Mr. McInvale to the dayshift, its failure to reassign him may not have constituted a breach of contract." Id.

Finally, the Judge found that "[m]oreover, as the existence of an unfair labor practice in this case depends on resolution of differing but arguable interpretations of a collective bargaining agreement, the Union's remedy more appropriately lies within the grievance machinery of the parties' agreements rather than through the unfair labor practice procedures." Id. The Judge recommended that the complaint be dismissed.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's "conclusion 'that the Respondent did not reject or repudiate its agreement with the Union in any respect.'" Exceptions at 1. The General Counsel also excepts to the Judge's "failure to address the issue in dispute--specifically, whether Respondent, regardless of the appropriate interpretation of the ground rules agreement, was privileged to ignore the agreement." Id. at 2 (emphasis in original).

The General Counsel argues that the Judge was not presented with the issue whether the matter involved a differing and arguable interpretation of the parties' agreement. The General Counsel states that "[t]he parties agree that Respondent should have placed McInvale on the dayshift under the rules." General Counsel's Brief in Support of Exceptions (Brief) at 4 (emphasis in original). In this regard, the General Counsel notes that "[a]s the Judge noted, 'Each party assumes that Respondent's refusal to assign Mr. McInvale was a breach of contract.'" Brief at 4 n.4, citing Judge's Decision at 4. The General Counsel contends that the issue, therefore, was not whether the parties' agreement had been breached, but whether the admitted breach of the agreement constituted a repudiation of the agreement in violation of the Statute.

The General Counsel asserts that the only two issues before the Judge were the merits of the Respondent's two affirmative defenses: (1) the failure to put McInvale on the dayshift constituted only a single instance of breach and did not rise to the level of an unfair labor practice, and (2) the parties' agreement is illegal because it interferes with management's right to determine the personnel by which operations will be conducted, and the right to assign work. The General Counsel contends that "[u]nfortunately, the Judge either ignored or completely overlooked" these two issues. Id. at 5.

As to the first issue, the General Counsel argues that the Respondent's "single instance" defense is without merit, noting that the Respondent denied several requests by McInvale himself to be put on the dayshift, and admitted that further requests would have been denied. In any event, the General Counsel argues, the single instance in this case was sufficient to find a violation of the Statute because the Respondent's announced intention not to abide by the terms of the agreement was an outright repudiation of the agreement.

As to the second issue, the General Counsel states that the Respondent's argument that the parties' contract unlawfully interferes with management's right to assign work is also without merit. The General Counsel argues that the Authority has rejected this argument in the past, citing the Authority's decision in Military Entrance Processing Station, Los Angeles, California, 25 FLRA 685, 688 (1987). The General Counsel also argues that the Respondent's statement that it had no one to replace McInvale is contradicted by the record and, in any event, such a fact would not constitute a defense to the Respondent's repudiation of the contract's requirements. In this regard, the General Counsel cites the decision of the Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, Council of Locals No. 214 v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986).

B. Respondent's Opposition

The Respondent argues that the Judge's underlying holding that the Respondent did not repudiate the parties' agreement and his conclusion that the Respondent did not violate the Statute were correct. The Respondent requests that the General Counsel's exceptions be denied.

The Respondent notes the Judge's conclusion that the parties' agreement did not necessarily require the placement of members of the negotiating team on the dayshift. The Respondent states that "[b]oth the Charging Party and the Respondent understood the agreement to levy such a requirement." Opposition at l. The Respondent notes that the Judge on the other hand "concluded that '. . . if [the Respondent's] failure to assign Mr. McInvale to the dayshift were a breach of contract, it was not a flagrant violation and did not rise to the level of an unfair labor practice.'" Id. at 1-2. Noting also that it is this holding of the Judge to which the General Counsel takes exception, the Respondent argues that the Judge's conclusions and comments concerning the interpretation of the parties' agreement were nothing more than "dicta," should "not invalidate the decision," and are "not dispositive of the case." Id. at 2-3.

The Respondent states that the Judge "ruled that even if the contract language does require the permanent transfer of negotiating team members to the dayshift, the onetime failure of the Respondent to do this does not constitute a repudiation or flagrant breach of the agreement and, hence, is not an unfair labor practice." Id. at 2. The Respondent argues that this holding of the Judge "is in accord with a long line of precedent decisions as set forth in the [Judge's] Decision." Id.

The Respondent states that the General Counsel has mischaracterized the issue as involving the entitlement of negotiators to official time, whereas the parties' agreement does not concern official time. The Respondent argues that "the agreement in issue goes to shift assignments and not to the granting of official time." Id. at 4. The Respondent states that, while it has honored these provisions, the requirement that management place employees on the dayshift unlawfully contravenes management's right under section 7106 of the Statute to assign work and to determine the personnel who will carry out the agency's operations. Finally, the Respondent asserts that it "has acted in good faith in this matter by honoring the agreement in all instances but one, and its justified failure in that one instance does not amount to a repudiation of the agreement." Id. at 4.

V. Analysis and Conclusions

We find that the Respondent's actions constituted a repudiation of the parties' agreement in violation of section 7116(a)(1) and (5) of the Statute.

A. The Interpretation of the Parties' Agreement Is Not at Issue

In reaching his conclusion that the Respondent did not repudiate the parties' agreement, the Judge made various findings and comments as to the meaning of the parties' agreement and whether the issue before him involved differing and arguable interpretations of the agreement.

The Judge, while stating that "each party assumes that Respondent's refusal to assign McInvale to the dayshift was a breach of contract," and that he did "not construe the meaning of the agreement," nonetheless commented on the meaning of the agreement. Judge's Decision at 4 n.2. Further, the Judge, while stating that the Respondent presumably agreed that it had violated the parties' agreement, added that "the agreement . . . is susceptible to varying and arguable interpretations." Id. at 5. Finally, after concluding that the Respondent did not repudiate the parties' agreement in violation of the Statute, the Judge stated that "the existence of an unfair labor practice in this case depends on resolution of differing but arguable interpretations of a collective bargaining agreement." Id. at 7.

The General Counsel argues in the exceptions that the Judge was not presented with the issue whether the matter involved a differing and arguable interpretation of the parties' agreement. The Respondent in its opposition agrees that the Judge was not presented with that issue.

We find that the interpretation of the parties' agreement is not at issue in this case and that the Judge, therefore, erred in finding that the resolution of the unfair labor practice issue "depends on resolution of differing but arguable interpretations of a collective bargaining agreement." Judge's Decision at 7. We specifically reject this finding. Moreover, we note that we recently rejected the analytical framework utilized by the Judge and stated that we will not "dismiss complaints alleging the violation of a statutory right based on a finding that the parties have proffered differing and arguable interpretations of [a] collective bargaining agreement." Internal Revenue Service, Washington, D.C., 39 FLRA 1568, 1573 (1991). Further, we do not adopt the Judge's other findings and comments concerning the interpretation of the parties' agreement. The only issue presented by this case is whether the Respondent, by refusing to assign McInvale to the dayshift, violated section 7116(a)(1) and (5) of the Statute.

B. When a Breach of Contract Constitutes a Repudiation in Violation of the Statute

The Judge cited three Authority decisions, including Harry S. Truman Hospital, 11 FLRA 516, for the holding that "[n]ot every breach of contract is an unfair labor practice." Judge's Decision at 5. In Harry S. Truman Hospital, as in the other cases cited by the Judge, the Authority concluded that a single breach of the parties' contract did not, in the circumstances of the case, constitute a repudiation of the agreement in violation of the Statute.

On the other hand, in some cases where a respondent has breached an agreement, the Authority has found that the breach violated the Statute. See, for example, Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 29 FLRA 107, 115 (1987) (Authority found that the agency's refusal to submit a grievance to a joint committee, thereby precluding the union from seeking arbitration, was a repudiation of the entire grievance/arbitration procedure that violated the Statute); and U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA 454, 467 (1985) (Authority adopted the Administrative Law Judge's finding that the agency's refusal to honor a contract requirement to notify and bargain with the union over certain changes in working conditions violated the Statute, and adopted his finding that "where the breach [of a collective bargaining agreement] is clear and patent and is so fundamental to the parties' basic statutory rights and status as to undermine and make a mockery of the basic collective bargaining relationship . . . such a breach does rise to the level of [an] unfair labor practice"). In other cases, the Authority has found, without more, that a breach violated the Statute. See, for example, American Federation of Government Employees, AFL-CIO, 21 FLRA 986 (1986); and Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA 499 (1982).

We agree that not every breach of contract is necessarily a violation of the Statute, but that the repudiation of an agreement does violate the Statute. We also note that these general principles are similar to the principles followed by the National Labor Relations Board (NLRB) in the private sector. See Indiana & Michigan Electric Co., 284 NLRB 53, 59 (1987), in which NLRB stated that "[i]t is well settled that a breach of contract is not per se an unfair labor practice. . . . On the other hand, where a breach of contract, under all the circumstances, amounts to a wholesale repudiation of the collective-bargaining agreement, [the NLRB] will find [a statutory] violation."

We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute. That suggests that a single breach of an agreement, no matter how significant, would not violate the Statute. Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.

C. The Respondent's Conduct Violated the Statute

For the following reasons, we find that the Respondent violated the Statute.

The agreement is a ground rules agreement designed to set the rules that the parties would follow in meeting and bargaining for a local supplement to the national or master agreement. Because the bargaining unit encompassed a multi-shift operation, and the hours agreed upon for negotiation fell within the hours of the dayshift, it was agreed that Union negotiators would be changed to the dayshift in order to be placed on official time. The Respondent's labor relations officer testified that the agreement to put Union negotiators on the dayshift was "in order to minimize disruption" and "because during the course of the ground rules negotiations we had decided it would be the easiest thing to do to keep them all on day shift so that they could serve on official time as negotiators." Transcript at 70-71. As acknowledged by the Respondent, the agreement required the Respondent to place McInvale on the dayshift when it received the Union's letter of February 24, 1988. Id. at 75; Opposition at 1.

The Respondent's labor relations officer also testified that so long as the work situation remained the same, she would have felt bound to respond the same even if the Union had repeated its request as to McInvale. Transcript at 75-76. Thus, we find that, while the Respondent had refused to honor the agreement only as to the specific request for McInvale, it manifested an intent not to honor similar requests by the Union.

By its conduct, the Respondent interfered with the Union's right to choose McInvale or another similarly situated employee as a negotiator and with McInvale's and other employees' right to serve as a negotiator as recognized by the terms of the parties' agreement. The nature and scope of the breach was such as to interfere with the Union's right to choose its representatives in accordance with the parties' agreement. In these circumstances, we find that the Respondent's refusal to honor the Union's request to change McInvale to the dayshift was not a mere breach of the parties' agreement. Rather, the nature and scope of the Respondent's refusal went to the heart of the agreement and the collective bargaining relationship itself and, therefore, amounted to a repudiation of the obligation imposed by the agreement's terms. Such refusal, therefore, constituted a violation of the Statute.

D. The Parties' Agreement Does Not Interfere With Management's Statutory Rights

As noted above, the Respondent takes the position that the parties' agreement requiring that management place employees chosen as negotiators on the dayshift unlawfully contravenes management's right under section 7106 of the Statute to assign work and to determine the personnel who will carry out the agency's operations. We find no merit in this position.

Proposals that require management to assign union officials to a specific shift do not violate management's right to assign employees or assign work under section 7106(a)(A) and (B) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1185-87 (1987) (Fort Rucker) (Chairman Calhoun dissenting); International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 148 (1987) (Bureau of Engraving and Printing) (Chairman Calhoun dissenting). However, management has a right, under section 7106(a)(2)(B) of the Statute, to determine that it needs a particular individual on a given shift where it can demonstrate that it needs the specific skills of that individual on that shift. See National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 883-84 (1988) (Internal Revenue Service).

We find nothing in the record to support the Respondent's claim that McInvale could not be replaced on the nightshift. On the contrary, the record shows that when shift responsible operators such as McInvale are absent or on vacation, their shift responsibilities can be and have been performed by lesser-graded employees. Transcript at 67, 85-86, 102. Further, McInvale testified that he was placed on the dayshift for a day on one occasion to serve on the basewide safety committee as the Union's representative. Id. at 54. We conclude, therefore, consistent with Fort Rucker and Bureau of Engraving and Printing, and as distinguished from Internal Revenue Service, that the parties' ground rules agreement does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In any event, even assuming that the requirement that Union representatives be transferred to the dayshift directly interfered with management's right to assign work, we would find the provision enforceable because it would not abrogate management's right. In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (U.S. Customs Service), we stated that

when an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a), we will examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

We also stated in U.S. Customs Service that we expect that the parties in reaching their agreement will have assessed the effect of the provision on management's rights and the benefits to employees, and that the provision should, therefore, be enforced unless it abrogates a management right. 37 FLRA at 314-15. Although U.S. Customs Service involved the enforcement of a negotiated agreement by an arbitrator, we find that the same rationale also applies to unfair labor practice cases in which a claim is made that a provision of the parties' collective bargaining agreement is contrary to section 7106(a). In both types of cases, the question concerns the enforceability of the contractual provision agreed to by the parties. Accordingly, we will apply the test set forth in U.S. Customs Service in unfair labor practice cases where, as here, a claim is made that a provision of the parties' collective bargaining agreement is contrary to section 7106(a) of the Statute.

Applying that test here, we find that the provision at issue is an arrangement for employee Union representatives who are adversely affected when management exercises its right to assign work by assigning those employees duties on particular shifts, thereby limiting their right to serve as negotiators. In particular, the provision mitigates this adverse effect by assuring that employee Union negotiators will be on the dayshift for the duration of negotiations. In our view, the provision does not abrograte the exercise of management's right to assign work. The provision applies only to employees chosen to be Union negotiators and only for the duration of negotiations. The provision does not preclude the assignment of particular duties to employees on various shifts. We also note that the provision does not alter the number of employees who are involved in negotiations or preclude the assignment of other employees to various shifts. In our view, therefore, the provision would be enforceable because it does not abrogate management's right to assign work.

Accordingly, we find that the Respondent's refusal to place McInvale on the dayshift in order that he might serve as a Union negotiator as required by that agreement violated the Respondent's duty to bargain in good faith, contrary to section 7116(a)(1) and (5) of the Statute. We will issue an appropriate remedial order.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia shall:

l. Cease and desist from:

(a) Failing and refusing to honor the ground rules agreement it negotiated with the American Federation of Government Employees, Local 987 (AFGE), the employees' exclusive representative, by failing and refusing to assign Ralph McInvale or any other employee designated as an AFGE negotiator to the dayshift as required by the agreement.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request by the American Federation of Government Employees, Local 987, the employees' exclusive representative, assign designated AFGE negotiators, including Ralph McInvale, to the dayshift as required by the parties' ground rules agreement.

(b) Post at its Robins Air Force Base facilities where employees in the bargaining unit are located 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 Office of the Base, and shall be posted and maintained 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 such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant