41:1011(80)CA - - Air Force, Nellis AFB, NV and AFGE Local 1199 - - 1991 FLRAdec CA - - v41 p1011
[ v41 p1011 ]
The decision of the Authority follows:
41 FLRA No. 80
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 Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleged, and the Judge found, that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when, on five occasions over a period of 6 months, the Respondent changed the conditions of employment of bargaining unit employees on the night shift by assigning them to the day shift without notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes.
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. For the reasons that follow, we adopt the Judge's findings, conclusions, and recommended Order as modified.
The Union is the exclusive representative of a bargaining unit of about 1100 employees at Nellis Air Force Base. The employees involved in this case are among the approximately 100 employees employed in the Equipment Maintenance Squadron (EMS), 57th Fighter Weapons Wing.
For the past 10 years, the EMS employees have worked on two shifts--a day shift and a swing or night shift. Over the years, EMS employees have been transferred by management back and forth between these two shifts. Some employees have started on one shift but later were transferred to another shift and remained on that shift. Some have volunteered for, or requested, a change in shift assignment.
The usual practice when transferring an employee from one shift to another has been to inform the employee verbally, and then give the employee written notice of the effective date of the change. The Union has not been given notification of such changes.
On September 9, 1988, the EMS supervisor notified the Union that all EMS employees on the night shift would be changed to the day shift in order to save money. The Union responded that this action was a change in working conditions that was negotiable, but was told that management had already negotiated the matter during the collective bargaining process. The Union called the Respondent's Civilian Personnel Officer (CPO) and told him that the contemplated action was a change in working conditions that had not been negotiated. The CPO replied that the matter was not negotiable because it was covered under Article 22.2 of the parties' negotiated agreement.(*)
Between September 9, 1988, and March 14, 1989, on five occasions, the Respondent gave notices to EMS employees of changes in their shift assignments and of the effective dates of these changes, resulting in all EMS bargaining unit employees on the night shift being changed to the day shift. The Union was not given a copy of any of these notices. Nonetheless, when notices were given to employees on September 9 and March 2, the Union requested that management stop making changes in shift assignments until the matter could be negotiated. Both times, the Respondent's CPO replied that the changes were made in accordance with Article 22 of the parties' agreement. As a result of the changes, among other things, the EMS employees lost a shift differential amounting to approximately seven and one-half percent of their pay, and some employees were obliged to make different babysitting and transportation arrangements.
III. Administrative Law Judge's Decision
The Judge rejected the Respondent's arguments that the changes in shift assignments were not changes in the conditions of employment of unit employees because the changes merely implemented an established past practice which did not involve notice to the Union. The Judge also rejected the Respondent's claim that, in any event, the Union had waived its right to bargain about the changes because Article 22.2 of the parties' agreement obligated the Respondent only to notify employees of the changes. The Judge further rejected the Respondent's claim that it had offered to bargain about the changes.
The Judge found that the changes in employees' shift assignments involved changes in conditions of employment of unit employees that were more than de minimis and that the Respondent had not notified the Union of the changes and provided the Union with an opportunity to bargain on the impact and implementation of those changes. As a remedy, the Judge ordered the Respondent, on request of the Union, to return to the status quo ante and to make employees whole for pay lost as a result of the changes.
IV. Positions of the Parties
A. Respondent's Exceptions
The Respondent excepts to the Judge's conclusion that the changes in employees' shift assignments constituted a change in conditions of employment. The Respondent argues that the changes in shift assignments did not constitute changes in conditions of employment because such changes in shift assignments without notice to the Union were an established past practice. The Respondent states that management "would change shifts of employees on a routine, recurring basis without notifying the Union or offering [the Union] the opportunity to bargain[.]" Respondent's Brief In Support of Exceptions (Exceptions) at 6.
The Respondent contends that, even if the changes in shift assignments constituted changes in conditions of employment, there was no duty to notify and bargain with the Union because the Union had waived its statutory right to bargain. In support of its contention, the Respondent argues that Article 22.2 of the parties' collective bargaining agreement requires that notice of a change in tour of duty be given only to employees affected by the change.
The Respondent "concedes" that, if a violation of the Statute is found, "an award of backpay is appropriate based upon Authority precedent." Exceptions at 10. The Respondent excepts, however, to the Judge's recommended remedy. The Respondent contends that the scope of the Judge's backpay award is improper to the extent that it would require the Respondent to make employees whole for the entire period of time from the date of the changes in shift assignments to the date of the backpay award. The Respondent argues that, because the duty to bargain is only over the impact of the changes in conditions of employment, the make whole remedy should be limited to an amount consistent with the outcome of the bargaining ordered by the Authority, consistent with the type of remedy established by the Authority in Federal Aviation Administration, Washington, D.C., 27 FLRA 230 (1987) (FAA-II).
B. General Counsel's Opposition
The General Counsel disagrees with the Respondent's contention that it had no duty to bargain because changes in shift assignments did not constitute changes in conditions of employment. The General Counsel also disagrees with the Respondent's contention that the Union waived its right to bargain. The General Counsel claims that these contentions were specifically addressed and rejected by the Judge. The General Counsel argues that "the Judge's decision is soundly reasoned, legally correct and fully supported by the record evidence." Opposition at 3.
The General Counsel agrees with the remedy ordered by the Judge. The General Counsel acknowledges that the Judge's remedy is "not totally consistent" with the remedy ordered in FAA-II, but requests that the Authority reconsider the make whole remedy it fashioned in FAA-II. Id. at 5. The General Counsel proposes that specific remedies be ordered by the Authority on a case-by-case basis. The General Counsel argues that the remedy ordered by the Judge in this case is warranted; that is, "that the employees be returned to the positions they occupied prior to the unfair labor practice, which requires the payment of the shift differential lost by reason of the Respondent's violation of the Statute." Id. at 11. In the alternative, if the Authority concludes that the Judge's make whole remedy is not appropriate, the General Counsel agrees that the Authority should modify the Judge's make whole order to conform with the order in FAA-II.
V. Analysis and Conclusions
A. The Union Did Not Waive Its Right to Bargain
We agree with the Judge's findings that the Respondent "had no intention of negotiating any aspect of the change" and that "a submission of proposals under such circumstances would have been a futile act." Judge's Decision at 9. We also agree with the Judge, for the reasons he gave, that the assignments of employees from the night shift to the day shift were changes in conditions of employment and that the changes were more than de minimis. The Respondent, therefore, was obligated to give prior notice of the changes to the Union and afford the Union an opportunity to bargain over the impact and implementation of the changes, absent a showing that the Union had waived its right to bargain.
The Respondent argues that by agreeing to Article 22.2 of the parties' negotiated agreement, the Union waived its right to bargain over shift changes. We do not agree. Subsequent to the Judge's decision in this case, we 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), petition for review filed sub nom. Internal Revenue Service v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991). To resolve defenses to alleged interference with statutory rights based on a collective bargaining agreement, we will determine whether the charging party has clearly and unmistakably waived its statutory right. Id. at 1574. See also Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116, 1117 (1991); and Department of Veterans Affairs, Veterans Administration Medical Center, Boise, Idaho, 40 FLRA 992, 996-97 (1991).
Article 22.2 of the parties' negotiated agreement obligates the Respondent to give specific advance notice of changes in shift assignments to employees. Article 22.2 does not address the right of the Union to notification of changes in shift assignments or to bargain over the impact and implementation of those changes. Consequently, we find that by agreeing to Article 22.2, the Union did not clearly and unmistakably waive its right to be notified of shift changes and given an opportunity to bargain over the changes. See Marine Corps Logistics Base, Barstow, California, 39 FLRA 1126, 1132-34 (1991), petition for review filed sub nom. Marine Corps Logistics Base, Barstow, California v. FLRA, No. 91-1212 (D.C. Cir. May 9, 1991); and Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060, 1069-70 (1991) (Department of the Navy), petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991).
We also find that the Respondent has not demonstrated that the Union waived its right to bargain over the impact and implementation of shift changes by past practice. However established, a waiver of the Union's statutory right must be clear and unmistakable. Department of the Navy, 39 FLRA at 1066. The record does not demonstrate that, prior to the changes in this case, the Union refused opportunities to bargain about changes in conditions of employment. On the contrary, as the Respondent admits, on two occasions that involved the creation of special shifts, the parties in fact bargained. Judge's Decision at 6; Exceptions at 8-9. The Union was never given specific notice of changes in shift assignments as to individual employees. We find that the mere failure of the Union to request bargaining with regard to specific changes in past shift assignments did not extinguish the Union's right to request bargaining over the changes in shift assignments in this case. Id. See also Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664, 666 (1987).
Accordingly, because we find that the Union did not waive its right to bargain, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute when it changed bargaining unit employees from the night shift to the day shift without first notifying the Union and affording the Union an opportunity to bargain concerning the impact and implementation of the changes.
B. The Backpay Remedy
For the reasons stated by the Judge, we agree with his finding that a status quo ante order is appropriate in this case. In this regard, we note that the Respondent does not challenge that finding. The Respondent concedes that if the Authority finds a violation, an award of backpay is appropriate. However, the Respondent argues that we should apply FAA-II to determine the amount of backpay to be awarded employees and should reject the broader test applied by the Judge. The General Counsel contends that the Judge's recommended make-whole award is appropriate.
Subsequent to the filing of the Respondent's exceptions and General Counsel's opposition, we decided "that FAA-II was wrong insofar as it requires the amount of backpay to be determined by the outcome of bargaining between the parties." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 290 (1990) (HHS, SSA). We stated in this connection:
Accordingly, in this and future cases involving an agency's failure to engage in impact and implementation bargaining where the remedy includes a status quo ante award and we conclude that the agency's actions resulted in a withdrawal or reduction in pay, allowances or differentials of identifiable employees, we will then order the agency to make such employees whole for that withdrawal or reduction. We will leave to the compliance stage any questions as to the actual amount to be paid.
HHS, SSA, 37 FLRA at 292 (footnote omitted).
We agree with the Judge that the Respondent's changes in shift assignments resulted in a withdrawal of the shift differential that the employees had been receiving prior to the changes. Thus, the causal nexus required by the Back Pay Act has been established. HHS, SSA, 37 FLRA at 289-90.
Although fashioned prior to the issuance of HHS, SSA, the Judge's recommended order is consistent with the intent of the order in that case. We adopt the Judge's recommended order, modifying it to conform to the order in HHS, SSA. Accordingly, we will order the Respondent to return to the status quo ante and to make employees whole for the shift differential they lost as a result of changing them from the night shift to the day shift. The amount of the backpay owed will be a matter for compliance. HHS, SSA, 37 FLRA at 291-93.
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 the Air Force, Nellis Air Force Base, Nevada shall:
1. Cease and desist from:
(a) Unilaterally changing its employees' tours of duty without first notifying the American Federation of Government Employees, Local 1199, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to bargain concerning the procedures to be observed in implementing such changes, and the appropriate arrangements for employees adversely affected by such changes.
(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 1199, AFL-CIO, the exclusive representative of its employees, rescind the changes in the tours of duty of those employees in the Equipment Maintenance Squadron which placed them on the day shift, and restore them to their former tours of duty on the night shift.
(b) Make whole and provide backpay for all employees in the Equipment Ma