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
FEDERAL LABOR RELATIONS AUTHORITY
USDA FOREST SERVICE
PACIFIC NORTHWEST REGION
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
FOREST SERVICE COUNCIL, REGION 6
DECISION AND ORDER
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.
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
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 employee