48:0102(10)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE, Local 1482 - - 1993 FLRAdec CA - - v48 p102



[ v48 p102 ]
48:0102(10)CA
The decision of the Authority follows:


48 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1482, AFL-CIO

(Charging Party/Union)

8-CA-90328

(42 FLRA 287 (1991))

_____

DECISION AND ORDER ON REMAND

August 9, 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 U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California v. FLRA, No. 91-1565 (D.C. Cir. Dec. 4, 1992) (Marine Corps, Barstow 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 unilaterally changing the conditions of employment of bargaining unit employees when it detailed employees and reassigned work without first notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes. On remand, we find, for the reasons that follow, that the Respondent did not violate the Statute as alleged in the complaint. Accordingly, we will dismiss the complaint.

II. History of the Case

A. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the certified representative of various employees of the United States Marine Corps (Marine Corps). The Charging Party, Local 1482, is the agent of AFGE for bargaining over matters involving unit employees at the Respondent Marine Corps Logistics Base, Barstow, California. Local bargaining is subject to the Master Labor Agreement (MLA) between the Marine Corps and AFGE.

The Respondent's Repair Division is made up of several Control Centers, each of which is made up of several Cost Work Centers (CWCs). The employees involved in this case were assigned to various CWCs located in Building 573. Production requirements in the Repair Division are dictated by a master work schedule that requires adjustments in staffing and workload. The adjustments are accomplished by the reassignment of employees and/or work from one CWC to another. At least since 1981, such adjustments were made virtually on a daily basis, without notice of such action being given to the Union.

In February 1989, without notice to the Union, the Respondent detailed four unit employees from various CWCs to CWC 732. The details of three employees lasted 2 months, and that of one employee 8 months. In March 1989, the Respondent announced to employees of CWC 736 that work from CWC 732 would be reassigned to CWC 736. The Union demanded to bargain over the detailing of employees and the reassignment of work. Without responding to the Union's demand, the Respondent began in March 1989 transferring work, some of which continued to be done at CWC 736 for at least 7 months. In April 1989, the Respondent notified the Union that it was rejecting the demand to bargain.

B. Administrative Law Judge's Decision

The Judge found that the detailing of employees from CWC 732 and the transfer of work to CWC 736 constituted changes in unit employees' conditions of employment that were more than de minimis. The Judge rejected the Respondent's contention that it had no duty to bargain because the detail of employees and the transfer of work were covered by the terms of Article 16 of the parties' MLA and the Union had thereby waived its right to bargain.(1) The Judge found that "the record does not disclose that the Union waived its right in any way to demand bargaining on the impact and implementation of the changes after it became aware that such changes had been, or were to be, put into effect." Judge's Decision at 14.

The Judge also rejected the Respondent's contention that Article 5, Section 1 of the MLA constituted a "zipper clause" that relieved management from its obligation to bargain with the Union. The Judge found, however, that over an extended period of time the Respondent detailed employees and transferred work without giving the Union prior notice and that the Union neither voiced objection to this procedure nor requested to bargain on the changes.

The Judge concluded that "[a]ccordingly, while in the circumstances herein [the] Respondent was not obligated under the Statute to notify the Union that the details or transfer of work was to take place, [the] Respondent was required to bargain with the Union over the impact and implementation of the changes upon demand." Id. The Judge concluded that the Respondent's failure to do so violated section 7116(a)(1) and (5) of the Statute.

C. Authority's Decision in 42 FLRA 287

In 42 FLRA 287 (Marine Corps, Barstow I), the Authority agreed with the Judge's finding that the Union did not waive its right to bargain over the impact and implementation of the Respondent's decisions to detail employees and transfer work. The Authority also agreed with the Judge's conclusion that the Respondent had, therefore, breached its statutory duty to bargain with the Union over those matters. The Authority, contrary to the Judge, found that the Union did not by acquiescence waive its right to receive prior notice of those decisions, and concluded that the Respondent had, therefore, breached its statutory duty in that respect.

In reaching its decision in Marine Corps, Barstow I, the Authority relied on its decision in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060 (1991) (Marine Corps, Albany I), then pending on review before the United States Court of Appeals for the District of Columbia Circuit. The Authority noted that Marine Corps, Albany I "involved the same Agency, the same National Union, and the same Master Labor Agreement" that were involved in Marine Corps, Barstow I. 42 FLRA at 295.(2) In Marine Corps, Albany I, the Authority concluded that because the terms of Article 16 of the MLA did not specifically address the subject matter of the union's demand to bargain--that is, the impact and implementation of management's decisions as to detailing employees--the subject matter was not "covered by" the MLA and the union had not expressly waived its right to bargain on impact and implementation.

Based on the rationale in Marine Corps, Albany I, the Authority found in Marine Corps, Barstow I that the Union did not, by the terms of Article 16 of the MLA, waive its right to bargain over the impact and implementation of the decisions to detail employees and transfer work. Also based on the rationale in Marine Corps, Albany I, the Authority found that Article 5, Section 1 of the MLA did not constitute a "zipper clause" that relieved the Agency of its obligation to give notice or to bargain with the Union. The Authority concluded that the Agency violated the Statute by deciding to detail employees and reassign work, without first notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the decisions.

D. Court's Decision on Review of Marine Corps, Albany I

Following the Authority's decision in Marine Corps, Barstow I, the court issued its decision in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Marine Corps, Albany v. FLRA), denying enforcement of the Authority's order in Marine Corps, Albany I. 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." 962 F.2d at 56 (footnote omitted). The court held that in Marine Corps, Albany I 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 56-57.

The court also held that the approach taken by the Authority in Marine Corps, Albany I was "impermissible" because it "contravenes the policies" of the Statute. Id. at 59. Finally, the court held that the Authority's decision in Marine Corps, Albany I was inconsistent with the principles of private sector labor law, upon which the Authority relied before the court. For all of these reasons, the court held that the Authority had improperly applied a waiver analysis to determine when a matter is "covered by" a negotiated agreement.

The court then concluded that the impact and implementation of details are "covered by" Article 16 of the MLA, which, according to the court, "defines when employee 'details' will be implemented, to what kinds of positions an employee may be detailed, how long a detail may last and what effect a detail will have on an employee's salary and liability for union dues." Id. at 61. The court held that although Article 16 does not specifically address the full range of impact and implementation issues that might conceivably arise, the respondent was not obligated to bargain with the union in that case "because the 'impact and implementation' issues relevant to [its] actions are 'covered by' the MLA--that is, the agency and the union had already bargained with respect to those matters." Id. at 62 (emphasis in original). See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 45 FLRA 502, 504-05 (1992) (Marine Corps, Albany II).

E. Court's Order in Marine Corps, Barstow v. FLRA

By order dated December 4, 1992, the court, without decision, remanded the Authority's decision in the instant case for reconsideration in light of the court's decisions in Marine Corps, Albany v. FLRA and Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992).

III. Analysis and Conclusions

In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), we set forth a framework for determining when a matter is contained in or covered by a collective bargaining agreement. See, for example, Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1242, 1244-45 (1993) (McClellan AFB). See also Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993).

In SSA, 47 FLRA at 1018-19, 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 the collective bargaining agreement does not expressly encompass the matter, we will next determine whether the subject matter is so commonly considered to be an aspect of the matter set forth in the agreement that the subject is inseparably bound up with and plainly an aspect of a subject expressly covered by the contract. If so, we will conclude that the subject matter is covered by the agreement provision.

We have applied our approach in SSA to the facts in this case. As noted above, in Marine Corps, Albany v. FLRA, the court found that Article 16, among other things, "defines when employee 'details' will be implemented, to what kinds of positions an employee may be detailed, how long a detail may last and what effect a detail will have on an employee's salary and liability for union dues." Marine Corps, Albany v. FLRA, 962 F.2d at 61. We find, consistent with the court's conclusion as to Article 16 based on substantially similar facts in Marine Corps, Albany v. FLRA, that the subject matter of the Union's request to bargain--that is, the impact and implementation of the Respondent's decisions to detail employees and transfer work in the circumstances described above--is an aspect of, and is inseparably bound up with, the provisions of Article 16 of the MLA such that the Respondent was not obligated to bargain further on these matters. See Marine Corps, Albany II.

Accordingly, consistent with our decision in SSA, we conclude that the Respondent was not obligated to bargain with the Union over the impact and implementation of its decisions to detail employees and reassign work and did not violate the Statute by refusing to do so. Because the Respondent did not have an obligation to bargain, it also did not violate the Statute by implementing its decisions without first notifying the Union of the decisions. We will dismiss the complaint.

IV. Order

The complaint is dismissed.

APPENDIX

Article 16: Details and Temporary Promotions

Section 1. A detail is a temporary assignment of an employee to a different position (or set of duties) for a specified period with the employee normally returning to his or her regular duties at the end of the detail. Details are intended for meeting temporary needs of an organization when necessary services cannot be obtained by other desirable or practical means.

Section 2. Employees may be detailed to a different position at the same grade level, a higher grade level or a lower grade level; or to a set of duties which have not been classified. OPM and agency directives and the MLA shall apply to detail assignments.

Section 3. Details of more than 30 consecutive days to a position of a different title, series and grade must be documented on an SF-50 and recorded in the employee's Official Personnel Folder (OPF). Details of less than 30 days will be documented by the supervisor and provided to the employee. The employee may submit an SF-172, Amendment to Personal Qualifications Statement, to be included in their OPF.

Section 4. When it is known in advance that a temporary assignment of a unit employee to a position within the unit classified at a higher grade will extend for more than 30 days, the employee, if qualified, shall be temporarily promoted for the period of the assignment. If during the course of an employee's detail to a higher graded position, it becomes apparent that the temporary requirement to fill the position will extend beyond 30 days, management will determine whether to terminate the detail and fill the position through other means or to allow the detailed employee to continue in the assignment. If it is decided that the detailed employee should continue in the position, he or she will be temporarily promoted effective on the 31st day of the assignment.

Section 5. Extended details during major reorganizations may be an exception to the policy of this Article provided the details are accomplished in accordance with OPM and agency regulations.

Section 6. Temporary promotions in excess of 120 days shall be made under competitive merit staffing procedures. Prior service under all temporary promotions or details to higher graded positions within the preceding 12 months is included in the determination of the 120 day limitation. Details to higher graded positions and temporary promotions of 120 days or less need not be filled through competitive procedures. When competitio