47:1161(107)CA - - Sacramento Air Logistics Center, Mcclellan AFB, CA and AFGE, Local 1857 - - 1993 FLRAdec CA - - v47 p1161
[ v47 p1161 ]
The decision of the Authority follows:
47 FLRA No. 107
FEDERAL LABOR RELATIONS AUTHORITY
SACRAMENTO AIR LOGISTICS CENTER
McCLELLAN AIR FORCE BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
July 14, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally changed the hours of work of employees in its control tower without giving the Union notice or the opportunity to bargain over the impact and implementation of its decision to effectuate the change.
For the reasons stated below, we find that the Respondent did not commit the unfair labor practice alleged and we will dismiss the complaint.
The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide consolidated unit of employees, including employees at the Respondent's facilities. The Charging Party is an agent of AFGE for representing employees at the Respondent's base.
Approximately ten Air Traffic Control Specialists, who are included in the bargaining unit, work in the Respondent's Base Operations Division. These employees are permanently assigned to one of three shifts: a day shift (6:00 a.m.--2:00 p.m.); a swing shift (2:00 p.m.--10:00 p.m.); or a graveyard shift (10:00 p.m.--6:00 a.m.). At least three employees are assigned to each shift. The Air Traffic Control Specialists are considered "base essential" personnel. Stipulation paragraph 6.
Employees assigned to the swing shift receive a pay differential equal to 7% of the base hourly rate for work performed between 6:00 p.m. and 10:00 p.m. Employees assigned to the graveyard shift receive a differential equal to 10% of the base hourly rate for work performed between 10:00 p.m. and 6:00 a.m. The Air Traffic Control Specialists are General Schedule (GS) employees who do not receive any form of differential while they are in a leave status.
The Respondent decided to close its base operations and determined that it would not operate its control tower from 10:00 p.m., December 24, 1991, until 9:00 a.m., December 25, 1991, and from 10:00 p.m., December 31, 1991, until 9:00 a.m., January 1, 1992. Previously, the control tower had not shut down during other base closures. On November 21, 1991, the Respondent issued a letter to Base Operations employees notifying them of its intention to close the control tower at the times indicated. The Respondent then posted a schedule for the month. Employees on the swing shift would not be affected by the hours of the closure. Employees assigned to the day and graveyard shifts were given the opportunity to take an "uncommon tour of duty" (UTD) or annual leave during the period of the closure.
On December 16, 1991, the Respondent notified the Union of its intention to close Base Operations on the specified dates. On December 17, 1991, the Union demanded that the Respondent cease its closure plans and requested to bargain concerning the closure. On December 18, 1991, the Respondent notified the Union that based on the existing provisions of the parties' Master Labor Agreement (MLA) and the local Supplement, the Respondent would not bargain with the Union on the closure. The Base Operations were closed at the specified times on December 24-25 and December 31-January 1.
The Respondent and the Union are bound by the terms of the MLA negotiated at the national level and the Supplement which was negotiated at the local level. Article 23 of the parties' MLA states:
Section 23.09: LEAVE/WORK DURING ACTIVITY SHUTDOWN
If for any reason, the Employer schedules or effects shutdown of activities, a reasonable effort will be made to provide work for employees not having annual leave to their credit. If work cannot be provided for such employees, annual leave may be advanced to the extent determined appropriate by the Employer.
Stipulation paragraph 10.
Article 39 of the parties' local Supplement states:
Section 3. Changes in tours of duty shall be in compliance with applicable laws and regulations and affected individuals will be notified, in writing no later than one (1) week prior to the effective date of such change. Notice periods for changes in tours of duty may be waived by the employees concerned.
Stipulation paragraph 11.
III. Positions of the Parties
The Respondent contends that the Base Operations closure which shut down the control tower was governed by the parties' MLA and the local Supplement. The Respondent asserts that it complied with the MLA by providing the UTD work for employees not electing to take annual leave during the closure. The Respondent also asserts that it complied with the Supplement by providing employees written notice 34 days in advance of the closure and that the written notice more than complied with the 7-day written notice requirement in the Supplement. The Respondent maintains that "[r]ight down the line, item by item, the Respondent followed and complied with the terms of the parties' collective bargaining agreement." Respondent's Brief at 4. Citing Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48, 60 (D.C. Cir. 1992), the Respondent argues that "[t]o now hold that the Respondent should have bargained yet one more time 'robs [the] provisions covering those matters of all meaning because (the Respondent) is required to bargain anew regarding the same matters already addressed in the agreement.'" Id.
B. General Counsel
The General Counsel argues that the Respondent had a duty to bargain concerning the impact and implementation of its decision to implement changes in employees' shift hours in connection with the closure of its control tower for the holidays because the changes had more than a de minimis impact on bargaining unit employees. According to the General Counsel, the Respondent should reasonably have foreseen the following impact of the change in work hours: (1) employees would not be able to work their regular hours; (2) graveyard shift employees would not receive shift differential for working the UTD hours; (3) those not selecting to work the UTD assignment would be forced to take annual leave; and (4) some employees selecting the UTD assignment would have to work more than 8 hours in a single day, without overtime pay.
The General Counsel contends that the Union did not waive its right to bargain concerning the impact and implementation of the Respondent's decision to shut down operations in its control tower. The General Counsel asserts that the Respondent's argument is inconsistent with the Authority's decision in Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS). The General Counsel argues that there is no language in either the parties' MLA or in the local Supplement which could be interpreted as a clear and unmistakable waiver by the Union of its right to bargain concerning the impact and implementation of the Respondent's decision to close the control tower over the holidays, thereby making employees' regular work unavailable for specified days.
The General Counsel contends that mere reference to a matter in a collective bargaining agreement does not extinguish any further bargaining obligations concerning that subject. According to the General Counsel, the "vague reference" to shutdowns in the MLA and the provision on notice for change in tours of duty in the local Supplement do not address all impact and implementation issues which may be addressed by the Union concerning the closure of the control tower. General Counsel's Brief at 13. The General Counsel argues that if the control tower shutdown had been covered by the parties' agreement, there "would have been no need for the Respondent to improvise" the UTD assignment. Id. at 14.
The General Counsel asserts that there is no express waiver of the Union's right to bargain concerning the Respondent's decision to shut down the control tower during the holidays and the Union did not waive its right to bargain on the basis of the cited agreement provisions. The General Counsel argues that the affected employees should be made whole for the losses suffered by the change, including the reinstatement of leave utilized by employees in connection with the closure of the control tower.
IV. Analysis and Conclusions
In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96 (1993) (Social Security), the Authority established a test for determining when a matter is contained in or covered by a collective bargaining agreement so as to relieve an agency of the obligation to bargain. We find that the approach announced in our Social Security decision is applicable here.
In Social Security, 47 FLRA No. 96, slip op. at 15-16, we held that to determine whether an agreement provision covers a matter in dispute, we will initially determine whether the matter is expressly contained in the collective bargaining agreement. We also noted that we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. If we determine that the matter in dispute is not expressly contained in the collective bargaining agreement, we will next determine whether the subject matter is inseparably bound up with or commonly considered to be an aspect of the matter set forth in the provision such that the negotiations will be presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the agreement provision.
Applying our approach in Social Security to the facts in this case, we find that the subject matter is covered by the parties' MLA and the local Supplement. The express language of the parties' MLA specifically addresses the appropriate arrangements and procedures that the Respondent will follow when it decides to shut down Base Operations, including the control tower. For example, the parties' agreement provides generally that the Respondent is to attempt to find alternate work for employees not electing to take leave during a base closur