49:0994(96)CA - - Navy Resale Activity, Naval Station, Charleston, SC and Federal Employees Metal Trades Council of Charleston - - 1994 FLRAdec CA - - v49 p994

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[ v49 p994 ]
49:0994(96)CA
The decision of the Authority follows:


49 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NAVY RESALE ACTIVITY

NAVAL STATION

CHARLESTON, SOUTH CAROLINA

(Respondent)

and

FEDERAL EMPLOYEES METAL TRADES

COUNCIL OF CHARLESTON

(Charging Party/Union)

AT-CA-20721

_____

DECISION AND ORDER

May 17, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by reducing the hours of work of various of its employees without providing the Union with notice and an opportunity to bargain on the impact and implementation of the reduction. The Judge found that the Respondent did not violate the Statute as alleged.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Background

The facts, which are set forth more fully in the Judge's decision, are summarized below.

The Union is the exclusive collective bargaining representative of certain of the Respondent's employees affiliated with the Navy Exchange operations in Charleston, South Carolina. The Respondent is a non-appropriated fund instrumentality and part of its objective is to be self-supporting through the selling of goods and services to its patrons.

In correspondence dated April 10, 1992, the Respondent was advised by the Navy Exchange Service Center, Jacksonville Regional Office, that it was required to reduce expenditures by 10 percent for the remainder of 1992. The Respondent's warehouse manager decided to meet the mandated 10 percent cost reduction goal by reducing the hours of all warehouse employees. Accordingly, on or about April 17, 1992, the Respondent's warehouse employees were notified by management that the work hours for full and part-time employees were to be reduced, effective 7 days later. Full-time employees who had normally worked 40 hours a week had their base hours reduced to 35 and part-time employees who had normally worked 34 hours a week had their base hours reduced to 30. The Judge found that in the past, except for a reduction-in-force (RIF) situation, some warehouse employees' hours were never reduced while others experienced only minor fluctuations in work hours. The Judge further found that the Respondent's sales employees, who are covered by the same collective bargaining agreement, had experienced a larger degree of fluctuations in work hours, but a general across-the-board cut in hours had never been effectuated.

On April 24, 1992, the Union delivered a letter to the Respondent protesting the reduction in hours, contending that such action was a violation of the Statute and Article 8 of the parties' agreement. The letter requested that prior to implementing any permanent changes to bargaining unit members' hours of work, the parties should "meet and discuss the reasoning and legality of the changes and the impact on each employee affected." Judge's decision at 3. The Union also stated that it reserved the right to request additional meetings for negotiations before the Respondent implemented any changes.

The reduction in hours for warehouse employees was effectuated on April 27, 1992. On this date the Respondent sent a letter to the Union stating that the 10 percent reduction in expenses had been mandated by the Navy Exchange Command and that, although the directive might result in the elimination of positions or in RIFs, all efforts would be made to minimize the impact of this action. Representatives of the Respondent and the Union met on April 29, 1992. The Union essentially asked the Respondent to restore the employees' work hours and to bargain over the impact and implementation of any change, suggesting that a RIF be utilized instead of a reduction in hours. The Respondent refused to restore the reduced hours, taking the position that it had the right to reduce hours. The meeting concluded without any agreement.

III. Judge's Decision

Before the Judge, the General Counsel contended that by reducing the working hours of its warehouse employees without bargaining with the Union over the impact and implementation of the changes, the Respondent violated section 7116(a)(1) and (5) of the Statute. The Respondent denied that it had violated the Statute, contending that any changes in work hours had followed specific negotiated procedures set forth in Article 8 of the parties' agreement, and that it had no further duty to bargain over work hour changes.(2) The Respondent argued that this case is controlled by Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), in which the court concluded that the Authority incorrectly applied its "clear and unmistakable waiver" standard and its "covered by" standard in assessing the duty to bargain where an employer's action was grounded on a term of the parties' collective bargaining agreement. The Respondent took the position that the agreement reflects its entire legal obligation to provide notice of changes in hours of work, which it fulfilled by giving notice to the affected employees. The General Counsel disagreed and argued that the seven day notice requirement of Article 8, Section 4 merely reflects the Respondent's statutory obligation.

In determining whether Article 8 covers the matter at issue, as claimed by the Respondent, the Judge examined the Authority's recent decision in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), issued pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The Judge explained that in IRS the Authority re-examined its approach to resolving situations wherein a collective bargaining agreement is raised as a defense to a refusal to bargain allegation. The Judge noted that the Authority's approach required a determination as to the meaning of the parties' collective bargaining agreement to resolve the unfair labor practice complaint.(3)

The Judge then noted that after the parties had filed their briefs in this case, the Authority issued its decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA). In SSA the Authority modified its approach when faced with an argument that matters in dispute are "covered by" or "contained in" a collective bargaining agreement and that, therefore, an agency has no obligation to engage in further bargaining over those matters. The Judge reviewed SSA and the framework set forth in that case to determine whether a contract provision covers a matter in dispute.

Acknowledging that Article 8 does not address the question of notification to the Union of a change in the basic work week, the Judge examined Section 4 of that provision, which requires only that notice be given to employees of changes in tours of duty. The Judge found that Article 8 "does not provide that the only notice of a general change in tours of duty which need be given is the one set forth in Section 4, nor does it otherwise clearly indicate that no notice be provided the Union." Judge's decision at 10. The Judge stated that to resolve "this ambiguity" he was required to examine any past practice or bargaining history as to the meaning or prior application of Article 8 regarding changes in hours. Id. The Judge found that the record contained no evidence of past practice. He then examined the testimony of one of the Respondent's managers, a member of the Respondent's negotiating team, concerning the bargaining history of Article 8. According to the Judge, the manager testified that in the current agreement the language of Article 8 had been changed from that contained in the prior agreement, and that Article 8 now reflected the Respondent's need for flexibility in scheduling work hours in view of the mission of the exchange to provide service to its patrons. The manager also testified that management had "inferred" from this language that when it changed work hours it was required only to provide the affected employees with 7 days notice, and that once it satisfied that notice requirement, it could change tours of duty "[w]ithout any additional negotiation." Id. at 12.

The Judge also examined Article 6, Section 1 of the parties' agreement, which the General Counsel claimed reaffirms the Respondent's statutory obligation to negotiate concerning hours of work.(4) The Judge concluded that there was no support for the General Counsel's argument. The Judge found that although Article 6, Section 1 lists hours of work as a subject appropriate for "discussion and/or negotiations, . . . 'discussion' may be Respondent's only obligation where, for instance, the agreement otherwise covered the subject." Id. at 13.

The Judge concluded that Article 8 of the parties' agreement covered the matter of a change in the working hours of warehouse employees and, accordingly, that the Respondent had no obligation under the Statute to notify the Union and provide it with an opportunity to bargain on the impact and implementation of the change. In this regard, the Judge found that the prior agreement contained a requirement that the Respondent notify the Union if it intended to change employees' tours of duty in emergencies, and that the parties had deleted that requirement in the current agreement. In addition, the Judge concluded that the parties had "revised and simplified" the language in the current agreement in order to provide more flexibility to the Respondent in operating the exchange and assigning work hours to employees. Id. The Judge then determined that it was reasonable to infer that the Respondent was obligated to provide only the notice required by the terms of Article 8 before changing work hours, and that "the parties reasonably should have contemplated that in these circumstances the agreement would foreclose the requirement for further bargaining on changes in employees' work hours." Id. Accordingly, the Judge recommended that the complaint be dismissed.

IV. Positions of the Parties

A. The General Counsel

The General Counsel contends that the Judge erred by refusing to consider the General Counsel's alternative argument that Article 8 did not cover the issue of reduction of working hours. The General Counsel also claims that although the Judge set forth the Authority's test in SSA, he did not properly apply it to the facts of this case.

The General Counsel asserts that although the Judge correctly observed that Article 8 of the parties' agreement does not specifically address the question of notification to the Union when a change in the basic work week or hours occurs, he failed to recognize that the parties' agreement does not address any aspect of a reduction in working hours. The General Counsel maintains that the Judge did not address the General Counsel's argument that the Respondent has not met its burden of proving that the general statement in Article 8, Section 1 concerning the Respondent's right to determine working hours and hours of operation refers to a reduction in working hours. The General Counsel argues that, when read in context, Article 8, Section 1 refers to the hours of the day the facility will be open to the public, which does not necessarily correspond to working hours in the warehouse. The General Counsel contends that it is "difficult to imagine that the parties, when agreeing to language concerning maximum service to the public, were contemplating a reduction in working hours." Brief to Exceptions at 5 (emphasis in original).

The General Counsel asserts that it is more likely that the parties were considering changes in which hours of the day the employees worked rather than in the total number of hours worked. The General Counsel contends that policies implementing across-the-board reductions in working hours for employees are not common in the Federal sector and that, when they do occur, they are negotiated within the context of RIF and furlough provisions of collective bargaining agreements rather than in the context of tours of duty and administrative work weeks. Accordingly, the General Counsel maintains that the issue of reduced employee work hours was neither expressly contained in the parties' agreement, inseparably bound up with provisions in the agreement, or contemplated by the parties when negotiating the agreement.

Next, the General Counsel contends that the parties' agreement also does not cover notice to the Union of changes in employee hours. The General Counsel asserts that the Judge erred in applying SSA with respect to the notice issue. The General Counsel notes that the Judge correctly concluded that the issue of notice is not expressly contained in the parties' agreement and that the Judge implicitly found that the reduction in working hours was not "inseparably bound up with" the issues covered in Article 8 because he proceeded to decide whether the parties should have contemplated a connection between the issues. Id. at 7. The General Counsel argues that the Judge, in determining that the parties contemplated such a connection, took a "major leap outside the facts of this case." Id. at 8. The General Counsel contends that the Judge erroneously incorporated the agreement's provisions concerning emergencies. According to the General Counsel, the fact that the Respondent can take action in emergencies without notice has no bearing on this case because the situation in this case does not involve an emergency and neither the Union nor the Respondent ever asserted that the emergency clause was relevant.

Finally, the General Counsel claims that SSA compels a finding of a violation in this case. The General Counsel asserts that there were no negotiations between the parties concerning the impact and implementation of a reduction in working hours. The General Counsel states that when the parties' agreement was negotiated, "the Union could hardly have anticipated Respondent's harsh, unexpected action, nor have contemplated that it was waiving all future bargaining rights as long as Respondent notified individual employees as was already required by law." Id. at 13.

B. The Respondent

The Respondent claims that the provisions of the parties' agreement dispose of the issue in question and that no further negotiations were necessary or required before the Respondent implemented the changes in employee work hours. The Respondent argues that the testimony of its official, relied on by the Judge, fully supported the Judge's conclusion that the agreement covered the issue in question. The Respondent contends that the General Counsel's assertions are not supported by any evidence or testimony. The Respondent notes that no one from the Union's negotiating team testified in support of the interpretation suggested by the General Counsel. In this regard, the Respondent asserts that the General Counsel had an opportunity to present evidence and testimony covering the meaning of the provisions in question but failed to present any evidence or testimony to support its interpretation. Accordingly, the Respondent maintains that the Judge's decision should be affirmed.

V. Analysis and Conclusions

In SSA, we set forth a framework for deciding whether an agency has a duty to bargain over an otherwise bargainable matter by determining whether the matter in dispute is contained in or covered by a provision in an existing agreement. See, for example, Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1242, 1244-45 (1993).

In SSA we stated, as relevant here, that in determining whether an agreement provision covers a matter in dispute, we will initially examine whether the matter is expressly contained in the collective bargaining agreement. If the language of the agreement provision does not expressly encompass the subject matter of the proposals, we will next 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.'" 47 FLRA at 1018 (quoting C & S Industries, Inc., 158 NLRB 454, 459 (1966)) (citation omitted). We stated that "[i]n this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision." Id. 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 (citation omitted). When it is difficult to determine whether the matter is plainly an aspect of a subject covered by the agreement, we give controlling weight to the parties' intent. If we conclude that the subject matter was not one that should have been contemplated as within the intended scope of the provision, we will find that it is not covered by that provision, and there will be a continued obligation to bargain.

Applying our approach in SSA to the facts in this case, we agree with the Judge, for the reasons stated in his decision, that Article 8 of the parties' agreement covered the type of change in working hours effectuated by the Respondent and, consequently, that the Respondent had no further obligation to bargain with the Union before making the change. In so concluding, we disagree with our dissenting colleague that the language of Article 8 indicates that the parties did not intend to foreclose bargaining over across-the-board reductions in base hours or that the subject matter of a general reduction in hours was not one that should have been contemplated as within the intended scope of that provision. Accordingly, we will dismiss the complaint in this case.

VI. Order

The complaint is dismissed.




Dissenting Opinion of Member Talkin

In my view, the subject matter of the Union's request to bargain--the impact and implementation of the Respondent's decision to make a general reduction in the base working hours of certain warehouse employees--is neither expressly contained in the negotiated agreement nor inseparably bound up with the provisions of Article 8 of the parties' agreement. Accordingly, contrary to my colleagues, I would find that the Respondent had a duty to bargain further on these matters and violated the Statute when it did not provide the Union with notice of this change in employees' conditions of employment and an opportunity to bargain over the impact and implementation of such a change.

Initially, I agree with the Judge that Article 8 is ambiguous regarding whether the Respondent is obligated to notify the Union when it changes the employees' hours. In addition, I see nothing in that provision to govern the type of change in base hours that took place in this case. Although Article 8 addresses the Respondent's right to determine employees' work hours in concert with its right to establish exchange operating hours and to change an assigned tour of duty if it has given proper notice to the affected employee, the intended scope of neither of those actions is clear from the language of the agreement. Therefore, I conclude that the matter of a reduction in employees' base hours of work is not expressly encompassed by the language of Article 8.

Applying the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993), I further conclude that the disputed matter is not inseparably bound up with and plainly an aspect of the matter set forth in the agreement so as to foreclose further negotiations on the matter. Just as I find no express language in Article 8 addressing a general reduction in employees' base working hours, I also find no implicit references in the provision to that matter. It is clear from the language of Article 8, section 1 that the parties negotiated that provision to allow "optimum use of the facilities" and "maximum service to patrons." Such language suggests that the parties foresaw that the Respondent would need to expand or modify the hours of operation to meet fluctuations in the needs of its customers. I do not believe that, in negotiating such flexibility, the parties envisioned that in order to maximize customer service, the Respondent would be required to reduce on a long-term basis the base working hours of unit employees.

An examination of Article 8, section 4 supports my position. That section permits the Respondent to change, with advance notification to the employee in most situations, only assigned tours of duty. A tour of duty refers to an employee's regularly scheduled hours of work; it does not establish the number of hours worked during a period, but, rather, sets forth when during the day or week those hours will be scheduled.(*) At issue in this case is an across-the-board reduction in the base number of the employees' work hours, which will affect the long-term earnings of many employees. In my view, such a reduction in hours is not plainly an aspect of the routine scheduling changes that I believe were anticipated by Article 8 of the parties' agreement. See, for example, United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225, 233 (1993) (provision in the parties' bargaining agreement that allowed the respondent to vary tours of duty covered only routine scheduling changes in tours of duty and shifts, and did not privilege the respondent to change its organizational structure without bargaining with the union over the impact and implementation of the change).

Finally, I do not find that the parties reasonably should have contemplated that Article 8 would preclude bargaining over a general reduction in base hours. I find significant the Judge's uncontested finding that in the past, except for a RIF situation, the Respondent had never implemented an across-the-board reduction in hours. Therefore, at the time the parties negotiated Article 8 in the current bargaining agreement, there was no indication that the Respondent needed the same flexibility with regard to the number of hours as it professed to need with regard to the scheduling of hours. I note, in this regard, that the testimony of the Respondent's negotiator discloses that when the parties negotiated Article 8, the discussion focussed on the Respondent's need for flexibility in scheduling and its right to change the employees' tours of duty. I see no indication that the parties ever discussed a possible general reduction in base hours.

In these circumstances, I conclude that the evidence does not establish that when they negotiated Article 8 the parties should have contemplated that the provision would cover a general across-the-board reduction in employees' base work hours in addition to the more common occurrence of normal changes to the employees' work schedules. Accordingly, as I conclude that the matter involved in this case is not contained in or covered by Article 8, I would find that the Respondent violated the Statute when it failed to bargain with the Union over the impact and implementation of its decision to reduce the base number of hours worked by certain of its warehouse employees.




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


 Authority's Footnotes Follow:

1. The dissenting opinion of Member Talkin is set forth at the end of this decision.

2. Article 8, entitled "Basic Work Week and Hours of Work," provides, in relevant part:

Section 1. It is agreed that the Navy Exchange is a service organization for the convenience of authorized patrons. Accordingly, working hours will be determined by the Employer to provide optimum use of the facilities and provide the maximum service to patrons. The Employer reserves the right to determine hours of operation of the Exchange.

. . . .

Section 4. A Unit employee's assigned tour of duty shall not be changed without voluntary consent, unless the employee has been given seven (7) calendar days advance notification of such change. However, in this connection, it is understood that the Employer retains the right to change employee's tours of duty in order to meet emergency situations.

Judge's decision at 4.

3. After IRS issued the Judge notified the parties by an Order to Show Cause and Notice of Hearing that he was prepared to reopen the hearing to receive evidence concerning the interpretation and application of that portion of the parties' agreement relied on by the Respondent as a defense to its refusal to negotiate. Both the Respondent and the General Counsel opposed reopening the hearing. Accordingly, the Judge did not reopen the hearing.

4. Article 6 of the parties' agreement provides, in relevant part:

Section 1. Subjects appropriate for discussion and/or negotiation between the Employer and Council include personnel policies and practices and matters affecting working conditions which fall within the scope of authority of the Employer. Such subjects may include but are not limited to various aspects of health and safety, training, labor-management cooperation, employee services, methods of adjusting grievances, hours of work, promotion plans, procedures for leave and reduction-in-force procedures.

. . . .

Section 3.

Discuss: The term discuss, where used in this Agreement, means the part