49:1444(130)CA - - Air Force, 375th Combat Support Group, Scott AFB, IL and NAGE, Local R7-23, AFL-CIO, SEIU - - 1994 FLRAdec CA - - v49 p1444
[ v49 p1444 ]
The decision of the Authority follows:
49 FLRA No. 130
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
375TH COMBAT SUPPORT GROUP
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
June 30, 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 the Respondent's exceptions and the General Counsel's cross-exception to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions; the Respondent did not file an opposition to the General Counsel's cross-exception.
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) when it reassigned two bargaining unit employees from positions in the commissary warehouse area to the commissary produce department without completing negotiations with the Union over the impact and implementation of the reassignments and without first providing the Union the opportunity to invoke the services of the Federal Service Impasses Panel (the Panel) after an impasse had been reached. The Judge dismissed the section 7116(a)(6) allegation, and found that the Respondent otherwise had violated the Statute as alleged. He recommended that the Respondent cease and desist from the unlawful conduct and take certain affirmative action.
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 entire record, we adopt the Judge's findings, conclusions, and recommended order only to the extent consistent with this decision.
The Union represents a unit of employees at Scott Air Force Base (the Respondent) that includes employees of the Base commissary.(2) The two employees who were reassigned were members of the pull crew. The pull crew inventoried and verified grocery needs in the commissary store and then pulled the needed items from the warehouse shelves and loaded them on pallets for delivery to the store. Each crew would pull 2,500 to 3,500 cases per shift.
Early in 1991, the Activity began to change its merchandise delivery system. Under the new "Frequent Delivery System," manufacturers send their products to distributors who store the merchandise in their own warehouses. There are five such distributors in the commissary area. Under the new system, order-writers at the commissary store use hand-held computers to order merchandise from the distributors who deliver merchandise to the store. When fully in effect, this method of delivery will eliminate the commissary's warehouse function and all need for pull crews. By letter dated March 22, 1991, the Director of the Northern Region Air Force Commissary Service advised commissary officers of the increased use of the Frequent Delivery System and the significant decrease of warehouse operations.
According to the Judge, by August 1991, there was such "strong pressure" from management to advance the Frequent Delivery System "that the workload for pull crews had decreased so markedly that two pull crew positions had become surplus." Judge's decision at 4. On August 6, 1991, two pull crew employees, Anita Bell and Billy D. Gray, were told they would be reassigned to the produce department. By letter dated and received August 7, 1991, the Respondent informed the Union of the reassignments and attached the employees' old and new work schedules. The Union then asked to meet to discuss the matter on August 9. Also on August 7, the Commissary Officer told Bell that "'. . . there is no negotiating available . . .'" Id. at 5, quoting transcript at 47.
On August 9, the Respondent's labor relations officer, Robert Nelson, and the commissary store supervisor met with the two employees and Carl Denton, president of the Union. The Respondent maintained that it had given notice to the Union because the action was a schedule change, for which notice was required under Article VII of the parties' collective bargaining agreement, and that the employees had been assigned to the produce department because the authorizations for their positions had been moved there from the pull crew. Denton argued that the two employees should not be reassigned because they did not want to go to produce. Denton also stated that Bell, in particular, believed that she had seniority rights and that there were other people with lower seniority who could be reassigned.
Denton requested another meeting, which was held on August 12. At that meeting, the Union made the following proposals:
a. Reassign the pull crew in accordance with seniority.
b. Ask for volunteers first. If there are no volunteers, then reassign the person(s) with the least seniority in accordance with Service Computation Date first.
c. Allow Ms. Anita Bell 120 days under her old schedule in order to take care of personal matters.
d. Leave Mr. Gray where he is until he has had an opportunity to contact his doctor and obtain a release to work in produce due to his diabetes and the possible impact of the environment on that condition.
Judge's decision at 5-6.
Nelson testified that the Union had raised Gray's diabetic condition at the August 9 meeting as well as at the meeting on August 12 and that Nelson had asked for a medical statement both times. Apparently none was produced. Nelson asked the Union if the four proposals could be addressed individually, but the Union insisted that they be negotiated as a package.
At the end of the August 12 meeting, Nelson informed Denton that the Respondent intended to implement the reassignments on the following day. Denton asked to continue negotiations through the auspices of the Federal Mediation and Conciliation Service and the Panel but Nelson refused.
On August 12, 1991, the Union delivered a letter to the Respondent's Personnel Office protesting the implementation announced for the next day, requesting that the status quo be maintained and that negotiations continue, and stating that the Union was referring the matter to the Panel. On August 14, the Union submitted a request for Panel assistance. The Panel advised Denton and Nelson, by letter dated August 20, 1991, of a request for Panel consideration of an impasse, "concerning the substance and impact and implementation of moving the positions of Ms. Anita Bell and Mr. Billy Gray . . . ." Id. at 7.
The two employees were reassigned to the produce department on August 13, 1991. Bell, a permanent, full-time employee, continued to work the same hours she had worked on the pull crew until December 1, 1991, when she began her new schedule. Gray, a part-time employee, experienced changes in his schedule after reassignment, which he claimed affected his ability to earn night differentials and made it difficult to maintain the eating schedule required by his diabetic condition.
By the time of the hearing, a year after the reassignments of Bell and Gray, the transition to the new warehousing system was nearly complete, all but one of the pull crew had been reassigned to other jobs, and only a minimal amount of pull crew work remained.
Article XIV of the parties' negotiated agreement, entitled "REDUCTION IN FORCE," provides in pertinent part:
Section 1: The Employer agrees to do everything possible to avoid or minimize a reduction-in-force by restricting recruitment and promotions, by meeting ceiling limitations through normal attrition, and by reassignment of surplus employees to vacant positions authorized for staffing. The Employer agrees to notify the Union as far in advance as possible of implementation of officially approved reductions-in-force affecting the unit. The Employer agrees to provide the following information at that time so that the Union may prepare impact and implementation proposals. [There follows specifics concerning the information and how it is to be furnished]
G.C. Exhibit 2.
All pull crew employees working at the warehouse had the same job classification and position description and there is no dispute that each was equally qualified to perform the duties of the pull crew job. Although some of the members of the pull crew other than Bell and Gray had prior experience in the produce department, the Judge found that any one of them could have performed the produce duties. The record does reveal that the Respondent considered some of the crew members to be better qualified than Bell and Gray to adapt to the conditions of the new system when it would be implemented.
III. Judge's Decision
The Judge found that there was no dispute that two pull crew positions had become surplus, and that the Respondent was free to move the two excess manpower authorizations from the warehouse to the produce department. The Judge concluded that the elimination of these positions constituted a reduction-in-force (RIF) and that the parties conceded that Article XIV of their agreement applied to the situation. According to the Judge, the parties disagreed only over how the determination should be made as to who would be reassigned.
The Judge determined that the Union's proposals regarding selection for reassignment are negotiable procedures under section 7106(b)(2) of the Statute, citing Authority precedent that such proposals do not directly interfere with management's rights under section 7106(a)(2)(A) or (C) of the Statute if management retains the right to establish the skills and qualifications necessary to perform the work. In that regard, the Judge noted that the eleven pull crew employees held identical positions, were equally qualified to do the pull crew work, and were equally capable of performing the required work in the produce department. Based on his findings that the Respondent had committed itself in Article XIV, Section 1 of the agreement to reassign surplus employees to vacant positions and had already determined to fill the produce vacancies with surplus pull crew employees, the Judge concluded that the Respondent was obligated to bargain over the proposals.
In reaching this conclusion, the Judge emphasized that at the time of the refusal to bargain over the reassignments in August 1991, only two pull crew positions were surplus. He concluded that whether the two employees selected by the Respondent were competent in the use of hand-held computers, which would be employed eventually in the new delivery system, was "immaterial" to the determination that at the time of the two reassignments the proposals were negotiable because the new positions did not yet exist. Judge's decision at 14.
The Judge concluded that the Respondent had violated section 7116(a)(1) and (5) of the Statute when it refused to bargain over the Union's negotiable proposals concerning selection of employees for reassignment, citing National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834 (1990) and National Guard Bureau, 47 FLRA 1175 (1993). In so finding, he also concluded that Article XIV, Section 1 does not constitute a waiver of the Union's right to bargain over the impact and implementation of reassignments, and that, in the circumstances of this case, the selection of surplus employees for reassignment was not covered by the parties' agreement.
The Judge also concluded that the Union's proposals that specifically concern Bell and Gray are negotiable appropriate arrangements under section 7106(b)(3) of the Statute, and that the Respondent violated section 7116(a)(1) and (5) by refusing to bargain over those proposals. The Judge dismissed the section 7116(a)(6) allegation because he found that there had been no bargaining, and, therefore, that there had been no impasse.(3)
IV. Positions of the Parties
A. Respondent's Exceptions
The Respondent argues that the reassignments were covered by the parties' collective bargaining agreement, and that, therefore, it has discharged its obligation to bargain over the impact and implementation of the reassignments through the collective bargaining process. In support of its position, the Respondent relies on Department of the Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), and Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993), in which the Authority stated that it would no longer apply a waiver analysis to cases where the underlying dispute is governed by the interpretation and application of specific provisions of a bargaining agreement.
Reviewing the language of Article XIV, Section 1, the Respondent argues, first, that the reassignment portion of that provision was properly invoked because "it was clear to management officials that a RIF was inevitable for pull crew employees[.]" Respondent's exceptions at 14. The Respondent also asserts that the reference to impact and implementation bargaining rights, in the third sentence of Article XIV, applies only when a RIF occurs. Reading these two parts of the article together, argues the Respondent, requires the conclusion that "no residual impact and implementation bargaining rights for reassignments to avoid or minimize RIFs were contemplated." Id.
In this regard, the Respondent argues that, when read in its entirety, Article XIV demonstrates that the parties sought to address all issues concerning impact and implementation bargaining over reassignments to minimize RIFs. In support, it asserts that it is evident that impact and implementation was on the minds of the parties because Article XIV references that subject regarding the implementation of RIFs and that because impact and implementation bargaining was omitted "in the reassignment portion [of Article XIV], it is safe to assume the parties consciously omitted it." Id. at 15. Furthermore, the Respondent contends that reassignments to avoid a RIF require quick action to be effective, and that, therefore, the Union benefits from the omission of time-consuming bargaining. The Respondent also notes Denton's testimony that impact and implementation bargaining was not discussed in terms of reassignments in lieu of a RIF. Finally, the Respondent relies on the many reassignment actions it took during the prior two years that did not result in Union requests to bargain over impact and implementation. In sum, the Respondent maintains that the matter is covered by the parties' agreement and that it had no obligation to bargain over the Union's proposals.
In the alternative, the Respondent argues that even if the reassignments were not covered by the agreement, it had no duty to bargain because the reassignments did not change the employees' conditions of employment, which had been established in the parties' agreement.
In addition, the Respondent asserts that the seniority and volunteer proposals are not negotiable proposals. The Respondent argues that those proposals interfere with its right to assign work because they do not leave management the ability to determine which employees have the necessary skills to perform the "available jobs." Id. at 22. In that connection, the Respondent contends that the reassigned employees were less skilled than others in the pull crew at using hand-held computers, which would be required in the new warehouse operation when it took effect.
The Respondent maintains that it had no duty to bargain about the two remaining proposals because there had been no change in conditions of employment. Nonetheless, it contends that it attempted to bargain over those proposals because its labor relations officer "believed that the shift changes were not necessarily covered by the contract provision regarding reassignments," and because of "concern about the health of Mr. Gray[.]" Id. at 23. Thus, the Respondent contends that it did not refuse to bargain; rather, it asserts that it was prevented from further attempts to bargain because the Union "refused to bargain over these two proposals unless the non-negotiable proposals were included," and "the Union has repeatedly refused to provide medical documentation regarding Mr. Gray's medical condition . . . ." Id.
B. General Counsel's Cross-exception and Opposition to Respondent's Exceptions
The General Counsel excepts to the Judge's finding that the reassignments were made as a result of a RIF. The General Counsel argues that Article XIV of the negotiated agreement does not apply to this situation, and maintains that, contrary to the Judge's finding, the General Counsel never conceded that point.
The General Counsel notes that RIFs are governed by 5 U.S.C. § 3502 and 5 C.F.R. Part 351. According to the General Counsel, those provisions require that when an agency decides to conduct a RIF, it must determine the numbers and types of positions to be eliminated and identify the employees who will be affected, following a specific procedure. The General Counsel argues that the Respondent did not follow the specified procedure and produced no evidence to indicate that a RIF was imminent. Rather, the General Counsel asserts that the Respondent "unilaterally interprets the language [of Article XIV] to its own benefit and contends that the Article gave it the right to unilaterally implement these reassignments simply because it 'anticipated' that a RIF 'could' be possible." General Counsel's cross-exception and opposition at 5 (emphasis in original).
2. Opposition to Respondent's Exceptions
In response to the Respondent's contention that the reassignments are covered by the parties' negotiated agreement, the General Counsel argues that even if Article XIV does apply to this situation, the Union explicitly reserved the right to negotiate impact and implementation issues concerning reassignments by expressly providing in Article XIV for impact and implementation proposals.
The General Counsel asserts that the parties' intent in negotiating Article XIV is evidenced by the testimony of the Union negotiator who stated that the Union did not intend by the language of the agreement to give up its right to negotiate over the impact and implementation of reassignments made to avoid a RIF. The General Counsel argues that it would be "illogical . . . to include a reference to impact and implementation negotiations within a section of the contract if [the parties] intended that section to foreclose further negotiations." Id. at 13. To further indicate such intent, the General Counsel states that the Respondent's claim that it was obligated under Article VII of the agreement to notify the Union of schedule changes so the Union could enter into negotiations over those changes is inconsistent with the Respondent's contention that under Article XIV it could reassign employees without negotiating over the reassignments.The General Counsel asserts that the Respondent's remaining contentions are unsupported by any evidence. The General Counsel also maintains that the Judge correctly found that the Respondent's changes in the employees' conditions of employment had an effect that was more than de minimis and that the seniority and volunteer proposals were negotiable.
V. Analysis and Conclusions
We conclude, contrary to the Judge, that, by agreeing to the language of Article XIV, Section 1 of the collective bargaining agreement, the Respondent satisfied its obligation to negotiate regarding the impact and implementation of the reassignments at issue in this case.
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 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 to determine whether an agreement provision covers a matter in dispute, we will determine 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 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.
Applying SSA to the facts in this case, we conclude first that the disputed reassignments of the pull crew employees were taken to avoid or minimize a potential RIF. As such, the reassignments are clearly encompassed by the first sentence of Article XIV, which expressly addresses reassignments as a means of avoiding or minimizing a RIF. In this connection, we conclude that the second sentence of the provision, which requires notice to the Union of the implementation of "officially approved" RIFs, and the third sentence, in which the Respondent "agrees to provide . . . information [at the time of the notice] so that the Union may prepare impact and implementation proposals[,]" specifically address RIFs and not reassignments made to avoid or minimize RIFs. Interpreted in the context of the provision as a whole, we find it reasonable to conclude that the subject matter of the proposals at issue herein--the impact and implementation of reassignments made to avoid or minimize a potential RIF--is inseparably bound up with and plainly an aspect of the subject discussed in Article XIV so as to foreclose further negotiations on that matter. In this regard, we find it significant that, in Article XIV, the parties reached agreement on the use of the reassignments to avoid or minimize a potential RIF, and also reached agreement on impact and implementation bargaining regarding other matters.(4) It is clear to us that, in agreeing to this provision, the parties contemplated, or should have contemplated, that the provision would be interpreted as foreclosing further bargaining over reassignments to avoid RIFs.
We recognize that Union President Denton testified that it was not the Union's intention at the time it negotiated Article XIV to give up its right to bargain over the impact of any reassignment to avoid a RIF. We also recognize, however, the Respondent's contention that impact and implementation bargaining was "on the minds of the parties" during the negotiation of Article XIV and, as such, the absence of any provision for it in the "reassignment portion" of that provision means that it is "safe to assume the parties consciously omitted [impact and implementation bargaining over reassignments]." Respondent's Exceptions at 15. In our view, having specifically bargained over the Respondent's obligation to reassign employees to avoid a RIF as well as the obligation to bargain over the impact and implementation of a RIF, the parties should have contemplated that further bargaining over the impact and implementation of reassignments to avoid or minimize a potential RIF would be foreclosed unless they expressly stated otherwise.(5)
Based on the foregoing, we conclude that the subject matter of the Union's proposals was covered by the parties' agreement. See Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 52 (1994). Accordingly, we conclude further, consistent with SSA, that the Respondent was not obligated to bargain with the Union over the impact and implementation of its decision to reassign employees to the produce department, and we will dismiss the complaint.(6)
The complaint is dismissed.
Dissenting Opinion of Member Talkin
I would apply the Authority's decision in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA) to conclude that impact and implementation proposals regarding the method of reassignment are not contained in or covered by the agreement so as to foreclose further negotiations on the matter. In my view, there is neither express language in Article XIV that addresses the method of reassignment of pull crew employees in the circumstances here, nor implicit references in the provision to that matter. Rather, I see the subject matter in dispute as only tangentially related to the provisions of the negotiated agreement. Accordingly, I would find that the Respondent had a duty to bargain further on these matters and violated the Statute when it refused to complete bargaining with the Union over proposals (a) and (b).(1)
In this regard, I find it significant that Article XIV is entitled "Reduction in Force." Thus, although Article XIV contemplates the use of reassignments to "avoid or minimize" a RIF, reassignments are mentioned in Article XIV only as one of four possible tools for achieving that result. Moreover, reassignments that arise as a result of bumping or retreat rights are an aspect of the formal RIF process, but reassignment specifically to avoid a RIF is not in any way an integral part of that process. In my view, it is unreasonable to conclude that by negotiating a provision covering RIFs, the parties also foreclosed further bargaining over each of the enumerated actions that could be taken instead of a RIF. In other words, I conclude that bargaining over the reassignments that are at issue in this case is not a matter that is inseparably bound up with the subject that was negotiated in Article XIV.
Recognizing that the third sentence of Article XIV is ambiguous in that it does not specifically state whether the provision contemplates that the Union may formulate impact and implementation proposals only in the event of an actual RIF, under SSA I next examine the remaining evidence to ascertain the intent of the parties in negotiating that provision. As noted by my colleagues, the only evidence on the record regarding the intent of the parties at the time Article XIV was negotiated is testimony by Union President Denton, who had participated in the negotiations. Denton testified that it was not the Union's intention at the time to give up its right to bargain over the impact of any reassignment to avoid a RIF. The Respondent offered no contemporaneous evidence of any contrary intent of the parties. Nor did it offer any evidence to support its contention in its exceptions that because impact and implementation was "on the minds of the parties" during the negotiation of Article XIV, the absence of any provision for it in the "reassignment portion" of that provision means that it is "safe to assume the parties consciously omitted it." Respondent's exceptions at 15.
From the foregoing, it is clear to me that, in negotiating Article XIV, the parties bargained over the subject of RIFs, and not reassignments. Accordingly, I conclude that the evidence does not establish that when they negotiated Article XIV the parties should have contemplated that the provision would bar further bargaining over the impact and implementation of reassignments made to avoid or forestall a RIF. The reference in Article XIV to reassignments in a purely hortatory manner should not now serve to bar impact and implementation bargaining over the type of reassignments at issue here. Rather, it reflects the fact that reassignments are "only tangentially related" to that provision," SSA, 47 FLRA at 1019, and should not be deemed as covered by the parties' agreement.
Accordingly, as in my view the subject of the Union's bargaining demand is not contained in or covered by the parties' agreement, I conclude, consistent with the Authority's decision in SSA, that the Respondent was obligated to bargain with the Union over the impact and implementation of its decision to reassign employees to the produce department, provided that the Union's proposals were negotiable and the Union did not waive its right to bargain in some other manner.(2)
Proposals (a) and (b) require that the Respondent seek volunteers from the pull crew for the jobs that had been moved to the produce department, and if there are no volunteers, that the Respondent reassign pull crew employees in accordance with seniorit