44:0036(4)CA - - Navy, Marine Corps, Washington, DC and Marine Corps Reserve Support Center, Overland Park, KS and AFGE Local 2904 - - 1992 FLRAdec CA - - v44 p36

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[ v44 p36 ]
44:0036(4)CA
The decision of the Authority follows:


44 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS

WASHINGTON, D.C.

AND

MARINE CORPS RESERVE SUPPORT CENTER

OVERLAND PARK, KANSAS

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2904

(Charging Party/Union)

7-CA-80594

DECISION AND ORDER

February 21, 1992

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

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

The complaint alleges that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally prohibiting smoking in two rest rooms that had previously been designated as smoking areas without providing the Union notice and an opportunity to bargain over the substance, impact and implementation of the decision. The Judge found that the Respondents did not violate the Statute and recommended dismissal of the complaint.

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. However, for the reasons set forth below, we find, contrary to the Judge, that the Respondents violated section 7116(a)(1) and (5) of the Statute, as alleged.

II. Background and Judge's Decision

This case arose at a local level activity which is part of a nationwide bargaining unit. The level of exclusive recognition is at the national level. A nationwide master labor agreement (MLA) covers the entire bargaining unit. Article 4, Sections 1 and 2 provide for bargaining during the term of the agreement as follows:

Section 1 The employer will notify the council of policy changes originating above the activity level that give rise to a bargaining obligation under the statute. Where such changes originate at the activity level, the activity will notify the appropriate local union.

Section 2 Any bargaining that might result from changes initiated above the activity level will be accomplished by the employer and the council unless they mutually agree otherwise. Normally bargaining resulting from changes initiated at the activity level will be accomplished by the local parties, however, either party to this MLA retains the right to transfer such negotiations to the level at which the recognition exists.

The original dispute which resulted in the decision in United States Marine Corps, Washington, D.C. and Marine Corps Finance Center, Kansas City, Missouri, 33 FLRA 105 (1988), reversed on reconsideration 42 FLRA 3 (1991) (Member Armendariz concurring in part and dissenting in part) (Marine Corps), petition for review filed sub nom. United States Marine Corps, Washington, D.C. v. FLRA, No. 91-1527 (D.C. Cir. Nov. 11, 1991), began in 1986 when the Marine Corps proposed a Tobacco Prevention Plan (TPP). The parties negotiated a memorandum of understanding (MOU) at the national level and reached agreement on all issues except for designation of smoking areas at local facilities. On reconsideration, in 42 FLRA 3, the Authority found that the Respondents committed the unfair labor practice as charged by refusing to bargain over a Union proposal that smoking areas would be bargained at each local facility.(2)

After implementation of the Marine Corps' TPP at the Marine Corps Reserve Support Center (the Activity) in May 1987, the Respondents banned all smoking inside the building. Late in the summer of 1987, the Respondents designated three smoking areas--the lunchroom and two rest rooms on the main floor. On January 12, 1988, after the Respondents notified the Union that the need for additional space required the Respondents to take one-half of the lunchroom space for storage of computer equipment, the parties bargained and agreed that Room 128 would be a nonsmokers' room. On April 7, the Deputy Director again wrote the Union to inform it that, in his view, Room 128 was better suited to use as a smokers' break room. The Union president agreed.

On May 26, 1988, the Respondents announced to the Union that Room 128 would be available to smokers on June 1. The Respondents further told the Union that smoking would not be permitted in the cafeteria and, for the first time, said that smoking would be prohibited in the two rest rooms as well. On June 7, the Union requested bargaining and protested the elimination of the rest room smoking areas. On June 9, the Respondents offered to consult with the Union on June 14 on those matters. The parties met on June 14, and could not resolve the issue.

The Respondents informed the Union of their intent to implement the changes in designated smoking areas on June 20. On that day, the Union requested assistance from the Federal Mediation and Conciliation Service (FMCS) and asked that the Respondents delay implementation pending completion of negotiations with the assistance of FMCS. On June 21, the Respondents refused to delay, stating that they had fulfilled their obligations under the MOU to meet and consult. The Respondents added that the change was required by lack of adequate ventilation in the rest rooms and that the Respondents' labor relations officer would be available for consultation if further discussion was needed. The new policy took effect on June 20 and was followed by an unfair labor practice charge on June 27.

The Judge found that Article 4, Section 2 of the MLA:

merely restates or reflects the rights and obligations set forth in the Statute, neither adding nor detracting therefrom. It permits negotiations (even encourages them) below the level of recognition by mutual consent, but allows either party to insist upon national level negotiations. In the discussions looking forward to an MOU concerning smoking policy, the [Marine] Corps refused to agree that designation of smoking areas would be the subject of local level negotiations.

Judge's Decision at 14-15.

In the Judge's view, "the question [before the Authority in 33 FLRA 105] was not whether the MLA placed an unequivocal limitation on the [Respondents'] duty to bargain but rather the opposite: in the absence of any statutory duty to bargain, did the [Marine] Corps commit itself by contract to local level bargaining concerning Activity commander decisions regarding where smoking was to be allowed?" Id. at 15. The Judge found that there was no statutory duty to bargain below the national level of recognition and a mutual obligation to bargain locally could exist only as a result of agreement reached by the parties. According to the Judge, the MLA clearly did not require local bargaining and the Marine Corps was privileged, under the MLA, to reject the Union's proposal for such bargaining. Therefore, the Judge found that the Respondent Activity was under no obligation to bargain with the Local and that its refusal to bargain did not violate the Statute. Id. The Judge concluded that the Authority should use this rationale rather than the approach stated in 33 FLRA 105 and recommended that the Authority dismiss the complaint in this case in its entirety.

III. General Counsel's Exceptions

The General Counsel asserts that the facts in this case differ substantially from those in 33 FLRA 105. In particular, the General Counsel argues that, in this case, the parties bargained to agreement over the use of the cafeteria as a smoking area and, prior to implementation of the agreement, the Respondents unilaterally implemented other changes in designated smoking areas. The General Counsel asserts that although the Respondents may have been entitled, under Article 4 of the MLA, to transfer local-level bargaining to the national level, the Respondents never sought such a transfer. Accordingly, the General Counsel maintains that the Respondents' implementation of changes in conditions of employment was unlawful.

IV. Respondents' Opposition

The Respondents argue that, in the absence of a contractual obligation, there is no statutory duty in a consolidated bargaining unit to negotiate at levels below the level of exclusive recognition. The Respondents note, in this case, that the complaint does not allege a violation of any bargaining obligation owed to the exclusive representative--AFGE headquarters--or its duly constituted national agent, Council 240. Rather, the Respondents state, the complaint alleges a violation of a bargaining obligation allegedly owed to Local 2904 of the Union, an entity that holds no exclusive recognition.

The Respondents contend that the General Counsel must show that there exists a contractual obligation to bargain with Local 2904 concerning changes in smoking areas and that the Respondents patently breached that contractual obligation. The Respondents contend that neither of these elements is present in this case. The Respondents assert that banning of smoking in the two rest rooms resulted from, and was an integral aspect of, the TPP and, as such, it was a part of the change which the Authority concluded the Respondents had implemented without breach of the duty to bargain in 33 FLRA 105. Accordingly, the Respondents agree with the Judge that the complaint in this case should be dismissed.

V. Analysis and Conclusions

The complaint in this case alleges that the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing a change in designated smoking areas "prior to the completion of negotiations with the Union concerning the substance, impact and implementation of such an action." General Counsel Exhibit 1(b) at para. 12. For the following reasons, we conclude that the Respondents violated the Statute, as alleged.

It is clear that the Respondents changed conditions of employment without bargaining. There is no question, in this regard, that the Respondents' elimination of two rest rooms as designated smoking areas constituted a change in conditions of employment. Moreover, consistent with the Authority's decision in Marine Corps, 42 FLRA 3, there is no question that the Respondents were required to bargain over the decision to make the change. That is, the Respondents' assertion that they were privileged to make the change following consultation, rather than bargaining, with the Union was rejected in Marine Corps and is rejected here also.

Moreover, we reject the Respondents' argument that, despite the Authority's decision in Marine Corps, the complaint in this case should be dismissed because the Statute does not require bargaining at the local level. The Respondents assert, in this regard, that the issue is "whether the Marine Corps waived its statutory right not to bargain below the level of exclusive recognition." Respondents' Supplemental Brief at 3 (emphasis omitted).

In refusing to bargain with the Union, the Respondents did not assert that, under the Statute or the MLA, bargaining over elimination of the two designated smoking areas was appropriate only at the national level and did not seek to transfer bargaining to the national level. Indeed, the Respondents provided notice of the disputed changes at the local level. Moreover, the Respondents concede that local bargaining was appropriate with respect to issues arising from the cafeteria modifications. In this regard, the Respondents assert that such bargaining was appropriate because the modifications arose from a shortage of office and storage space. The Respondents distinguish issues concerning elimination of the two rest rooms on the basis that, in the Respondents' view, the latter issues were related to the TPP and, as such, were subject only to consultation. As noted previously, this argument was rejected in Marine Corps.

Put simply, the Respondents unilaterally implemented changes in conditions of employment. The Respondents' argument that it was required only to consult over the changes was rejected in Marine Corps and its assertion that the complaint should be dismissed because the Union sought bargaining at the wrong level is meritless. Accordingly, we conclude that the Respondents violated the Statute.

Where management changes a negotiable condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. See, for example, U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 913 (1990). In these situations, "the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless." Id. In this case, no special circumstances are argued and none are apparent to us. Accordingly, a status quo ante remedy is warranted here.

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 United States Marine Corps, Marine Corps Reserve Support Center, Overland Park, Kansas, on behalf of the Respondents, shall:

1. Cease and desist from:

(a) Changing the designated smoking areas at the Marine Corps Reserve Support Center, Overland Park, Kansas without first notifying the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of its employees, and affording it an opportunity to bargaining concerning any proposed change in designated smoking areas and the impact and implementation of such change.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the changes in the designation of the two rest rooms as smoking areas at the Marine Corps Reserve Support Center, Overland Park, Kansas, and return the two rest rooms to designated smoking areas.

(b) Upon request of the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of its employees, negotiate on the substance and the impact and implementation of the designation of the two rest rooms as smoking areas.

(c) Notify the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of its employees, of any intention to change the designation of smoking areas at the Marine Corps Reserve Support Center, Overland Park, Kansas, and, upon request, bargain concerning such change and the impact and implementation of the change.

(d) Post at facilities at the Marine Corps Reserve Support Center, Overland Park, Kansas, 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 Marine Corps Reserve Support Center, Overland Park, Kansas and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, 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 change the designated smoking areas without first notifying the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of its employees, and affording it an opportunity to bargaining concerning any proposed change in designated smoking areas and the impact and implementation of such change.

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

WE WILL rescind the changes in the designation of the two rest rooms as smoking areas at the Marine Corps Reserve Support Center, Overland Park, Kansas, and return the two rest rooms to designated smoking areas.

WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of our employees, negotiate on the substance and the impact and implementation of the designation of the two rest rooms as smoking areas.

WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 2904, the affiliate of the exclusive representative of our employees, of any intention to change the designation of smoking areas at the Marine Corps Reserve Support Center, Overland Park, Kansas, and, upon request, bargain concerning such change and the impact and implementation of the change.

__________________________
(Activity)

Dated:________ By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director in Denver, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204 and whose telephone number is: (303) 844-5224.

Dissenting Opinion of Member Armendariz

I find that the facts in this case parallel the situation in United States Marine Corps, Washington, D.C., 42 FLRA 3 (1991) (Marine Corps). In Marine Corps, the parties were negotiating over the implementation of the Marine Corps' Tobacco Prevention Plan (TPP) at the national level because it involved a change proposed above the activity level. Article 4, Section 2 of the MLA provides that changes initiated above the activity level will be accomplished by the employer and the council, unless they mutually agree otherwise. In Marine Corps, I found that by agreeing to Article 4, Section 2 of the MLA, the Union clearly and unmistakably waived its right to bargain ove