48:0031(3)CA - - Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN and Finance Accounting Office for the Secretary of the Army, St. Louis, MI and AFGE, Local 1411 - - 1993 FLRAdec CA - - v48 p31
[ v48 p31 ]
The decision of the Authority follows:
48 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
U.S. ARMY ENLISTED RECORDS AND EVALUATION CENTER
FORT BENJAMIN HARRISON, INDIANA
FINANCE AND ACCOUNTING OFFICE FOR THE
SECRETARY OF THE ARMY
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1411, AFL-CIO
(41 FLRA 885 (1991))
DECISION AND ORDER ON REMAND
August 3, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana and Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri, No. 91-1473 (D.C. Cir. Dec. 4, 1992) (Fort Benjamin Harrison v. FLRA). The complaint alleges that Respondent U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana (EREC) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union over the substance and/or the impact and implementation of changes in the scheduled pay day and in the time between the end of a pay period and the day on which employees receive their paychecks ("pay lag"). The complaint also alleges that Respondent Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri (FAO) violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Respondent EREC and the Union when it implemented the changes prior to the completion of bargaining.
For the following reasons, we find that the Respondents did not violate the Statute as alleged in the complaint.
II. History of the Case
This case concerns changes in pay procedures effected throughout the Department of the Army. Respondent EREC is an activity at Fort Benjamin Harrison, Indiana. The Union represents six units of different activities at Fort Benjamin Harrison, including employees of EREC. The Union and Respondent EREC are parties to a collective bargaining agreement covering the units that the Union represents at Fort Benjamin Harrison. Respondent FAO provides payroll services for approximately 85 activities, including Respondent EREC.
By memorandum dated June 3, 1987, the Army announced that it was modifying Army Regulation 37-105, Chapter 2-2, Finance and Accounting for Installations, Civilian Pay Procedures. The modification required all Army installations to adopt a 12-day pay lag for their civilian employees. Prior to this time, the length of the pay lag varied from installation to installation. The modification also required that all installations be on the same 2-week pay period schedule so as to create a uniform pay day throughout the Army. According to the June 3, 1987, memorandum, the modification was to be implemented by January 2, 1988.
In a memorandum dated July 8, 1987, Respondent FAO advised Respondent EREC and other activities that to comply with the regulation Respondent FAO would begin implementing the 12-day pay lag and standard pay period "on August 8, 1987 with full compliance by September 30, 1987." Judge's Decision at 5. The memorandum stated that the pay lag would increase by 1 day each pay period until it was 12 days and that the change in the standard pay period "would occur with a one week pay period . . . followed by pay periods of two weeks . . . ." Id.
The Union was notified of the pay lag and pay day changes in a memorandum from Respondent EREC dated July 21, 1987 and requested to bargain over the changes. On July 31, 1987, the Union submitted the following proposals:
Union Proposal No. 1
The Employers agree that they will mail/deliver employees['] paychecks no later than 4 workdays after the end of a particular pay period. Pay periods are to mean the current 26 pay periods per year.
Union Proposal No. 2
Employees will not have to accept direct deposit of their pay as a condition of employment but will have one of the following options.
a. Employees will have their paychecks hand delivered and receive Leave and Earning[s] statement, etc., if they desire.
b. Employees may designate any address for the mail distribution of their paychecks, leave and earnings statement, etc.
c. Employees may have their paychecks deposit[ed] and credit[ed] to their personal account in any financial institution.
Union Proposal No. 3
If the Agency alleges non-negotiability of any of the Union's proposal[s] on the basis of "Agency rules or regulations" pursuant to 5 USC, Section 7117(a)(2), no implementation of any part of the Agency proposals will take place until a negotiability determination [has been] made by the FLRA. The Union will move promptly to request such a determination.
Id. at 6.
The parties met on August 10, 1987, in their only bargaining session on the changes. The proposals set forth above were intended to cover both Respondent EREC and certain other activities with employees represented by the Union.(1)
Respondent EREC declared that the first proposal "went to the substance of the [pay lag] change and was not negotiable . . . ." Id. at 7. Respondent EREC refused to bargain on Proposal 3 because "it was a 'ground rule' and therefore already covered by the existing collective bargaining agreement." Id.
As to Proposal 2, Respondent EREC asserted that it was "contrary to an existing agreement" between the parties. Id. Specifically, Respondent EREC asserted that the parties were bound by a 1982 Memorandum of Agreement providing that employees were to "have their paychecks mailed to either a designated mailing address or credited to an account with a financial institution absent a showing of 'genuine hardship.'" Id. at 4 (citation to footnote omitted).(2) As a result of the memorandum, "worksite distribution of paychecks was discontinued . . . ." Id. The Union "did not agree that the  agreement applied to EREC and, in any event, asserted that the proposed change voided that agreement." Id. at 7. At the end of the session, the parties agreed that they were at impasse.
On August 13, 1987, Respondent EREC informed the Union that Respondent FAO would begin implementing the changes on August 17, 1987. The Union immediately filed a request for assistance with the Federal Service Impasses Panel (Panel). Sometime prior to August 17, 1987, Respondent EREC's Labor Relations Officer contacted Respondent FAO and "requested that FAO delay the implementation until negotiations were completed." Id. Notwithstanding Respondent EREC's request, Respondent FAO began its implementation on August 17, 1987, and completed the changes in October, 1987. On November 16, 1987, the Panel declined to assert jurisdiction over the matter.
The Union filed an unfair labor practice charge, and the General Counsel subsequently issued a complaint which alleged that Respondent EREC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the substance and the impact and implementation of the changes in the pay lag and pay day. The complaint also alleged that Respondent FAO violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Respondent EREC and the Union when it implemented the pay lag and pay day changes prior to the completion of bargaining.
B. Administrative Law Judge's Decision
The Judge dismissed the complaint as to Proposals 1 and 3. The Judge noted that the Respondents argued before him that Proposals 1 and 3 conflicted with a regulation for which there was a compelling need. In view of this argument, the Judge concluded that under Federal Emergency Management Agency, 32 FLRA 502 (1988), the issue of the negotiability of those proposals was not a proper one for resolution in the unfair labor practice forum.
With respect to Proposal 2, which sets forth three options for paycheck delivery, the Judge found that the proposal was within Respondent EREC's duty to bargain. The Judge rejected the Respondents' arguments that the proposal directly interfered with management's rights to assign employees and work and concluded that the proposal was negotiable.
The Judge further rejected the Respondents' claim that the 1982 supplemental agreement between Respondent EREC and the Union "effectively waived [U]nion-initiated bargaining during the term of the agreement" and barred negotiations over the proposal because the supplemental agreement did not provide for worksite distribution of paychecks. Judge's Decision at 10. The Judge found that the 1982 agreement applied to Respondent EREC. Id. at 4 n.2. However, the Judge rejected the Respondents' claim that the Union had waived its right to bargain on paycheck delivery and held that by unilaterally changing the employees' pay day, the Respondents were estopped from relying on the terms of the supplemental agreement as a defense for refusing to bargain. To allow the Respondents to do so, the Judge found, would destroy the equality of bargaining envisioned by the Statute. Therefore, the Judge held that whenever an agency exercises its rights under the Statute to effectuate changes in conditions of employment, the agency is obligated to bargain over any negotiable union proposals bearing a substantial relationship to the change, irrespective of prior existing agreements on similar matters.
Having found that Proposal 2 was negotiable and that Respondent EREC refused to bargain over Proposal 2, the Judge concluded that Respondent EREC violated section 7116(a)(1) and (5) of the Statute. The Judge further concluded that Respondent FAO violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Respondent EREC and the Union when it implemented the changes in the pay lag and pay day prior to the completion of bargaining over the impact and implementation of the changes.
To remedy the unfair labor practices, the Judge recommended that Respondent EREC be ordered to bargain over the impact and implementation of the changes in the pay lag and pay day and that Respondent FAO "reimburse the unit employees for all monies lost and/or interest charged as a result of the change at a time when negotiations had not been completed." Id. at 14.
C. Authority's Decision in 41 FLRA 885
In 41 FLRA 885, the Authority adopted the Judge's conclusion that Proposals 1 and 3 were not properly before the Authority in this unfair labor practice proceeding.
With respect to Proposal 2, the Authority adopted the Judge's findings that Proposal 2 "sufficiently relates to the impact and implementation of the change in the pay lag" and "does not directly interfere with management's rights to assign work and assign employees." 41 FLRA at 897.
The Authority further found that the Union did not waive its statutory right to bargain over Proposal 2 when it agreed to the provisions of the 1982 supplemental agreement.(3) In this regard, the Authority examined the wording of the relevant provisions of the agreement and found that because the agreement "did not eliminate worksite pay delivery[,]" the Union "did not clearly and unmistakably waive its right to bargain about worksite pay delivery." Id. at 898 (citing Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991), vacated and remanded, 963 F.2d 429 (D.C. Cir. 1992) (IRS v. FLRA); and U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770 (1990)). Accordingly, the Authority concluded that the parties' 1982 supplemental agreement did not prevent bargaining over Proposal 2 and that Respondent EREC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over Proposal 2.
Moreover, the Authority concluded that because Respondent FAO implemented the pay lag and pay day changes before Respondent EREC fulfilled its bargaining obligation, Respondent FAO interfered with the bargaining relationship between the Union and Respondent EREC in violation of section 7116(a)(1) of the Statute.
To remedy the unfair labor practices, the Authority adopted the Judge's recommended Order requiring Respondent EREC, on request, to bargain with the Union over the impact and implementation of the changes in the pay lag and pay day and Respondent FAO to reimburse unit employees for all monies lost or interest charged as a result of the changes which were effected at a time when negotiations had not been completed.
D. Court's Order in Fort Benjamin Harrison v. FLRA
By Order dated December 4, 1992, the United States Court of Appeals for the District of Columbia Circuit remanded the Authority's decision in the instant case for reconsideration in light of the court's decisions in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Marine Corps v. FLRA) and IRS v. FLRA.
III. Analysis and Conclusions
In order to resolve this case, we must determine, consistent with the court's decisions, whether Respondent EREC had a duty to bargain over any of the proposals presented by the Union.
A. Proposals 1 and 3
For the reasons stated more fully in 41 FLRA 885, we adopt the Judge's conclusion that Proposals 1 and 3 are not properly before the Authority in this unfair labor practice proceeding.
B. Proposal 2
For the following reasons, we find that Respondent EREC did not have a duty to bargain over Proposal 2 and, therefore, did not violate section 7116(a)(1) and (5) of the Statute by refusing to bargain over that proposal.
Consistent with the court's decision in Marine Corps v. FLRA, the Authority in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA No. 96 (1993) (Social Security Administration), 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 over the matter. Specifically, the Authority stated that where an agency asserts "that it has no obligation to bargain based on the terms of a negotiated agreement[,]" the Authority will examine whether the matters over which the union seeks to bargain are contained in or covered by provisions of a negotiated agreement so as to preclude further bargaining on those matters during the term of that agreement. Social Security Administration, slip op. at 13 n.7. We find that the approach announced in Social Security Administration applies here.
In Social Security Administration, we held that to determine whether an agreement provision covers a matter in dispute, we will initially examine whether the matter is expressly contained in the agreement. We 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 the matter in dispute is not expressly contained in the collective bargaining agreement, we will determine whether the subject matter is inseparably bound up with or so 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.
For the reasons stated in U.S. Army Soldier Support Center, Respondent EREC had a duty to bargain over its decision to change the pay lag and pay day. See, for example, National Federation of Federal Employees and Naval Air Systems Command, Naval Plant Representative Office, St. Louis, Missouri, 38 FLRA 1191 (1990). Respondent EREC provided notice of its intent to change conditions of employment by changing the pay lag and pay day and held one bargaining session at which the Union presented Proposal 2, which concerned the impact and implementation of the changes. Although Respondent EREC does not dispute that it was obligated to bargain over the impact and implementation of the changes, it asserts that it was not obligated to bargain over Proposal 2 because Proposal 2 concerns a matter that is covered by the parties' 1982 supplemental agreement. We agree. Under the approach set forth in Social Security Administration and consistent with our decision in U.S. Army Soldier Support Center, we find that the subject matter of Proposal 2, the option of receiving paychecks by mail, direct deposit, or hand delivery, is contained in the 1982 supplemental agreement. In this regard, the 1982 supplemental agreement provides in relevant part that employees will receive their paychecks either by mail or through credit to an account with a financial institution. The 1982 supplemental agreement further provides that employees experiencing genuine hardship by those choices may request an exemption through the appropriate Finance and Accounting Office. Because the 1982 supplemental agreement specifically addresses delivery of paychecks through direct deposit or by mail and also includes a mechanism for exceptions to those methods of paycheck delivery in specific circumstances, we find that it is reasonable to conclude that the agreement settled the matter of the methods of paycheck delivery, including whether employees could have their paychecks hand-delivered.
We reject the Judge's finding that by unilaterally changing the employees' pay day, the Respondents were estopped from relying on the terms of the 1982 supplemental agreement as a defense for refusing to bargain over Proposal 2 because to find otherwise would "'destroy the equality of the bargaining relationship between the Union and the Respondent envisioned by the Statute.'" 41 FLRA at 918 (quoting the administrative law judge's decision in U.S. Army Soldier Support Center, 41 FLRA at 971). We have already found that Respondent EREC had a duty to bargain over the changes in the pay lag and pay day. This duty to bargain encompassed matters relating to the changes that are not covered by or contained in an agreement between the parties. Our decision in this case finds only that Respondent EREC did not have a duty to bargain over a specific proposal that is covered by the parties' supplemental agreement.
Accordingly, consistent with our decision in Social Security Administration, we conclude that Respondent EREC had no duty to bargain with the Union over Proposal 2 and did not violate section 7116(a)(1) and (5) of the Statute by refusing to do so.
C. Respondent FAO
Having found that Respondent EREC did not have a duty to bargain over Proposal 2 and that Proposals 1 and 3 are not properly before us, we conclude that Respondent FAO did not interfere with the bargaining relationship between Respondent EREC and the Union when it implemented the changes in the pay day and pay lag. A