45:0502(42)CA - - Navy, Marine Corps Logistics Base, Albany, GA and AFGE - - 1992 FLRAdec CA - - v45 p502



[ v45 p502 ]
45:0502(42)CA
The decision of the Authority follows:


45 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Charging Party)

4-CA-70665

(39 FLRA 1060 (1991))

DECISION AND ORDER ON REMAND

July 15, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. Marine Corps Logistics Base, Albany, Georgia v. FLRA, Nos. 91-1211 and 91-1212 (D.C. Cir. Apr. 24, 1992) (Marine Corps Logistics Base v. FLRA). The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by detailing certain bargaining unit employees without notifying the Union and giving it an opportunity to bargain concerning the implementation of the details and appropriate arrangements for adversely affected employees. In accordance with the instructions of the court, we will dismiss the complaint.

II. Background

This case involves the interpretation of the Master Labor Agreement (MLA) between the Marine Corps and the American Federation of Government Employees, AFL-CIO, which

governed the relations between the parties herein. Article 16 of that agreement governs details of employees. As the court stated, Article 16 provides, among other things:

that an employee's duties may be changed in order to "meet[] temporary needs . . . when necessary services cannot be obtained by other desirable or practical means"; the reassignment may be to a higher or lower grade level, or to a set of duties that has not yet been classified. . . . Article 16 also places limits upon the duration of a "detail" and addresses certain procedural matters relevant to the implementation of details, including how details must be documented, when details will result in temporary promotions, when competitive procedures must be used and how deductions of union dues will be handled for detailed employees.

Marine Corps Logistics Base v. FLRA, slip op. at 6.

In May 1987, the Respondent detailed four bargaining unit employees to positions involving different and less desirable duties for a period of 120 days. The Respondent notified the employees' union steward on the day the details took effect. The Union subsequently requested bargaining with the Respondent over the impact of the reassignments on the four affected employees. The Respondent refused to bargain, asserting that it had no bargaining obligation because it had complied with the procedures contained in Article 16 of the MLA. The Union then filed the charge in this case.

The Administrative Law Judge concluded that the Respondent had violated the Statute as alleged. The Judge found that the Union had not waived its rights to bargain over the impact and implementation of the decision to detail the four employees either by acquiescing in prior details about which it had no knowledge or by agreeing to the terms of the MLA. The Authority affirmed the Judge's decision. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060 (1991) (Marine Corps, Albany). The Authority concluded that the terms of the MLA do not specifically address the particular subject matter of the Union's bargaining request and that, therefore, the matter about which the Union sought to bargain is not covered by that agreement. The Authority noted that the negotiated provisions in Article 16 dealt with various procedural matters concerning details, but had "no bearing on such issues as the effects of the details on an employee who was required to do dirtier or more physically demanding work, the effect of a change in supervision on a detailed employee, or the problems of employees who were competitively disadvantaged by the change of duties on detail." 39 FLRA at 1068-69. In addition, the Authority found that the MLA contained no express waiver of the Union's right to bargain and that there had been no waiver by past practice or bargaining history. Accordingly, the Authority found a violation of section 7116(a)(1) and (5) of the Statute and ordered the Respondent to negotiate with the Union over the impact and implementation of the details.

In Marine Corps Logistics Base v. FLRA, the court granted the Respondent's petition for review and denied enforcement of the Authority's order. The court concluded that the Authority had departed, without sufficient justification, from the precedent established in Internal Revenue Service, 29 FLRA 162 (1987). The court stated that under Internal Revenue Service an "agency must engage in mid-term negotiations over an otherwise bargainable matter raised by the union, except when: (1) the matter is covered by the parties' collective bargaining agreement; or (2) the union has 'clearly and unmistakably' waived its right to bargain, either by express agreement (e.g., a zipper clause), or through its bargaining history with the agency." Slip op. at 16. The court held that in Marine Corps, Albany the Authority had "conflated the two steps" of this analysis by applying the same test for whether a matter is "covered by" an agreement as it applies when determining when a union has waived its right to negotiate through bargaining history. Id. at 17.

The court also held that the approach taken by the Authority in Marine Corps, Albany is "impermissible" because it "contravenes the policies" of the Statute. Id. at 22. Finally, the court held that the Authority's decision in Marine Corps, Albany is inconsistent with the principles of private sector labor law, upon which the Authority relied before the court. For all