48:0857(89)CA - - USDA, Forest Service, Pacific Northwest Region, Portland, OR and NFFE, Forest Service Council, Region 6 - - 1993 FLRAdec CA - - v48 p857

[ v48 p857 ]
The decision of the Authority follows:

48 FLRA No. 89











(Charging Party/Union)




November 4, 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 General Counsel filed a motion to strike certain portions of the Respondent's brief.(1)

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 implemented certain details of unit employees without providing the Union with an opportunity to bargain over the impact and implementation of the details. For the following reasons, we find that the Respondent did not violate the Statute. Accordingly, we will dismiss the complaint.

II. Facts

The National Federation of Federal Employees, Forest Service Council (NFFE) is the exclusive representative of a nationwide consolidated bargaining unit of employees of the USDA Forest Service, including employees of the Respondent. The Charging Party is an agent of NFFE for representing the Respondent's unit employees.

On July 21, 1992, the Respondent notified the Union of its intention to implement voluntary and involuntary details of unit employees, under the provisions of Article 16.9 of the parties' Master Labor Agreement (MLA), to four National Forests in Eastern Oregon for workload-related reasons.(2) The Union requested to bargain over the implementation of the involuntary details and submitted proposals to the Respondent. The Respondent refused to bargain with the Union and began detailing unit employees. Ultimately, the Respondent detailed approximately 293 employees, from 1 week to 4 months.

The parties stipulated that:

The [Respondent] has previously ordered/directed employees to report for a detail as a known past practice only where the employee was under investigation for misconduct and/or was disruptive in the workplace.

Stipulation at 5, para. 21.

III. Positions of the Parties

A. Respondent

The Respondent contends that it was not obligated to bargain over any of the Union's proposals because Article 16.9 of the MLA establishes procedures for voluntary and involuntary details of unit employees. Although the Respondent notes the parties' stipulation that the procedures in Article 16.9 of the MLA have been used to involuntarily detail employees only in certain situations, the Respondent argues that Article 16.9 "does not differentiate among types of involuntary details, or the reasons for them. . . . [but] cover[s] all types of involuntary details." Respondent's Brief at 9.

B. General Counsel

The General Counsel contends that the Respondent's decision to direct involuntary details of unit employees constituted a change in the parties' past practice and gave rise to a bargaining obligation. The General Counsel argues that the implementation of widespread involuntary details resulted in more than a de minimis impact on unit employees.

IV. Analysis and Conclusions

We conclude that the Respondent was not obligated to bargain over Union proposals related to the disputed details because, as discussed below, the proposals concerned matters that were contained in or covered by the parties' agreement. 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 whether proposals are covered by a provision in an existing agreement. We stated, as relevant here, that in determining whether a contract provision covers a matter in dispute, we will first look to whether the express language of the provision reasonably encompasses the subject matter. In this examination, 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." Id. at 1018 (citation omitted). If the agreement provision does not expressly encompass the subject matter proposed for negotiations, we will then determine whether the subject matter is so commonly considered 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.'" Id. (citation omitted). If so, we will conclude that the subject matter is covered by the agreement provision. In making these determinations, we will, "where possible or pertinent, examine all record evidence." Id. at 1019.

Applying SSA here, we find that the Union's bargaining request involves matters which are covered by Article 16.9 of the parties' MLA, which addresses and establishes procedures for implementing, and appropriate arrangements for employees affected by, details. Among other things, the provision, which does not distinguish between voluntary and involuntary details, defines when details may be implemented, when an employee may be excused from a detail, what effect a detail will have on an employee's salary, and how a detailed employee's performance will be appraised. Based on the record, we find that the Respondent's involuntary details of unit employees is an aspect of, and is inseparably bound up with, the provisions of Article 16.9 of the MLA such that the Respondent was not obligated to bargain with the Union over the matter. For example, U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 48 FLRA 102, 106-07 (1993); Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1161, 1165-66 (1993).

We also find that the record fails to establish the existence of a binding past practice modifying the terms of Article 16.9. To find the existence of such a past practice, there must be a showing that the practice was consistently exercised for an extended period of time, with the agency's knowledge and express or implied consent. For example, U.S. Department of the Treasury, Internal Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137 (1991). As noted above, the parties stipulated that the Respondent has involuntarily detailed employees "only where the employee was under investigation for misconduct and/or was disruptive in the workplace." Stip. at 5, para. 21. We conclude that this stipulation does not establish that, even if the Respondent used involuntary details only in certain situations, that fact leads to a conclusion that Article 16.9 does not apply to other involuntary details. Instead, we find it equally plausible that, as the Respondent argues, Article 16.9 was used only in connection with certain involuntary details because those were the only kind of involuntary details needed during the relevant period. We note, as discussed previously, that the wording of Article 16.9 is broad and, by its plain terms, applies to all details.

Accordingly, we conclude that the Respondent was not obligated to bargain with the Union over the involuntary details of unit employees because that subject is covered by the parties' MLA. As the Respondent had no obligation to bargain, it did not violate the Statute by refusing to do so. Therefore, we will dismiss the complaint.

V. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. The General Counsel moves to strike portions of the Respondent's brief which refer to a document filed by the Union in a negotiability case on the grounds that the document is not among the exhibits stipulated by the parties. We grant the General Counsel's motion. In deciding this case, we have not considered any evidence not included in the parties' stipulation. See Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 41 FLRA 1091 (1991). See also U.S. Customs Service, Washington, D.C., 39 FLRA 749, 757 (1991).

2. Article 16.9 of the MLA provides as follows, in pertinent part:

9. Details:

    a. A detail is the temporary assignment of an employee to a different position or to a different set of duties . . . .

    b. Detailers [sic] may be used to meet emergencies or situations occasioned by abnormal workload, changes in mission or organization, training, absences of personnel. . . .

    c. For details within the Forest Service, the following mechanism will apply:

        (1) Employees detailed to a higher graded position will be temporarily promoted . . . .

        (2) When . . . there are two or more equally qualified employees, Mana