51:0797(69)CA - - OLAM SW Air Defense Sector, Point Arena Air Force Station, Point Arena, CA and NAGE, Local R12-85 - - 1996 FLRAdec CA - - v51 p797



[ v51 p797 ]
51:0797(69)CA
The decision of the Authority follows:


51 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

OLAM SOUTHWEST AIR DEFENSE SECTOR (TAC)

POINT ARENA AIR FORCE STATION

POINT ARENA, CALIFORNIA

(Respondent/Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R12-85, AFL-CIO

(Charging Party/Union)

SF-CA-20337

_____

DECISION AND ORDER

February 8, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; andTony Armendariz, Member.(1)

I. Statement of the Case

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

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in crew assignments for electronics technicians.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Judge's Decision

The facts are fully set forth in the Judge's decision and are briefly summarized here.

The Agency, a long-range radar site, provides 24-hour, 7-day-per-week radar surveillance at its Radar Maintenance Work Center (Radar Center). The Radar Center employs eight WG-11 electronics technicians who work in crews of two technicians per shift, rotating through 28-day cycles of three shifts.

In January 1992, a supervisor posted the February 1992 schedule containing changes in the crew assignments of four technicians. The Agency did not give the Union prior notification of the changes. The Union submitted a bargaining request, asking that the assignment change be held in abeyance pending bargaining on the impact and implementation of the change and proposing that employees be allowed to choose crew assignments based on seniority. In response, the Respondent rescinded the changed schedule and the parties met to discuss crew assignments. During the meeting, the Respondent advised the Union that the parties would discuss crew assignments in the future. However, on February 12, 1992, without any further discussion or bargaining with the Union, the Agency notified the Union that it was planning to post and implement the previously posted crew assignments. The crew assignments were implemented on March 1, 1992, without bargaining.

Several technicians filed a first-step grievance, alleging that they were being unjustifiably "segregated" because other employees at the base could choose among four different work schedules based on seniority. ALJ's Decision at 7. The Agency denied the first-step grievance,(2) following which the Union, representing the technicians, filed a second-step grievance, also alleging that the technicians were being discriminated against by not being permitted to choose among work schedules. As a remedy, the Union sought to negotiate with the Agency over the crew schedule using a seniority-based system. The Agency denied the second-step grievance, stating, among other things, that there was no evidence of discrimination between the technicians and other employees.

The Union then filed the unfair labor practice (ULP) charge which led to the complaint in this case. The charge alleged that the Agency implemented the change in crew assignments without providing the Union with an opportunity to negotiate on the substance or the impact and implementation of the change.

The ALJ concluded that, under the second sentence of section 7116(d) of the Statute,(3) the filing of the grievance in this case did not bar the subsequently-filed ULP. The ALJ determined that, although the factual predicates of the grievance and the ULP were the same, the grievance concerned only preferential treatment of employees and the ULP, in contrast, concerned only the Agency's statutory obligation to bargain over a change in working conditions.

The ALJ further concluded that the Respondent violated the Statute, as alleged in the complaint, because the crew assignments were changed without bargaining with the Union.(4) The ALJ found, in this connection, that the Union's proposal to make crew assignments based on seniority was negotiable because, as all affected technicians were equally qualified, the proposal did not interfere with management's rights under section 7106(a) of the Statute.

III. Positions of the Parties

A. Respondent

The Agency argues that the ALJ erred in concluding that the grievance and the ULP were based on different theories. According to the Agency, the two actions are based on the same theory--that the Agency committed a ULP by changing conditions of employment without first bargaining with the Union--and such is demonstrated by the fact that both actions sought bargaining as a remedy. As a result, the Agency contends, the filing of the grievance barred the ULP charge. The Agency relies, in part, on the Authority's position, adopted by the court, in American Federation of Government Employees, AFL-CIO, Local 916 v. FLRA, 951 F.2d 276 (10th Cir. 1991) (Local 916).

The Agency also argues that the ALJ erred in finding, based on testimony, that all affected electronics technicians were equally qualified to perform the required tasks. In addition, the Agency argues that the ALJ erred by failing to respond to the allegation in the complaint that "[o]n January 15, 1992, the Charging Party learned of Respondent's intention to change the method of crew assignments for the electronics technicians, WG-8, who perform radar maintenance." Complaint, G.C. Exh. 1(b). According to the Agency, the General Counsel produced no evidence to support the allegation that the Agency intended to change, or changed, the method of crew assignments for WG-8 electronics technicians.

B. General Counsel

The General Counsel argues that the ALJ correctly concluded that the grievance and the ULP charge were based on different legal theories. The General Counsel also argues that the record evidence supports the ALJ's finding that all of the electronics technicians were equally qualified to perform the required tasks of a WG-11 electronics technician. In addition, the General Counsel argues that the Authority should reject the Agency's arguments that the ALJ's decision did not comport with the allegations in the complaint. According to the General Counsel, the Agency was on notice that the actual issue before the ALJ concerned the Agency's unilateral change in crew assignments for WG-11 technicians, and this issue was fully litigated before the ALJ.

IV. Analysis and Conclusions

A. The ALJ Did Not Err in Concluding that Section 7116(d) of the Statute Did Not Bar the Filing of the Grievance Because the Grievance and the ULP Involved Different Legal Theories

The second sentence of section 7116(d) of the Statute governs whether a ULP is barred by a previously-filed grievance.(5) Pursuant to this provision, an aggrieved party has an option of raising certain issues(6) under a grievance procedure or as a ULP charge, "but not under both procedures."(7) As stated by the U.S. Supreme Court, this statutory scheme precludes the same aggrieved party from raising "identical issues" under both procedures, but does not "preclude a union in its institutional capacity as an aggrieved party from filing an unfair labor practice charge to enforce its own independent rights merely because an employee has initiated an appeal or grievance procedure, based on the same factual situation, to enforce his individual rights." Cornelius v. Nutt, 472 U.S. 648, 665 n.20 (1985).

In each case, the determination whether a ULP charge is barred by an earlier-filed grievance requires examining whether "the ULP charge arose from the same set of factual circumstances as the grievance and the theory advanced in support of the ULP charge and the grievance are substantially similar." U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345, 1351 (1991) (Army Finance), petition for review denied sub nom. American Federation of Government Employees, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992) (Local 1411). Only if both requirements are satisfied is a subsequent action barred by a former one. Thus, in Overseas Education Association v. FLRA, 824 F.2d 61, 72-73 (D.C. Cir. 1987) (OEA), the court, affirming the Authority, concluded that a ULP charge alleging discrimination in management's proposal to eliminate a position held by a union official, and a grievance protesting that official's notice of dismissal, were based on different theories. Id. at 72-73. Similarly, the Authority has found that the filing of a ULP charge did not bar a subsequently-filed grievance where the theory advanced in the ULP was that the grievant's proposed suspension violated the Statute because it was based on retaliation for participation in union activities and the theory advanced in the grievance was that the suspension violated the parties' collective bargaining agreement because it was not taken for just and sufficient cause. American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906, 914-15 (1994).

On the other hand, in Local 1411, 960 F.2d at 178, the court held in agreement with the Authority that, in contrast to OEA, a ULP charge barred a subsequently-filed grievance where the grievance rested on the same factual predicate and alleged the same statutory and contract violations. In another case, the Authority similarly found that a ULP charge and a grievance were based on the same theory where the ULP alleged that the activity violated the Statute by proposing to discipline the grievance based on reprisal for engaging in union activities and the grievance alleged that the suspension "constituted harassment of the grievant for his union activities." Federal Bureau of Prisons and American Federation of Government Employees, Local 3690, 18 FLRA 314, 315 (1985).

In the case now before us, it is undisputed that the grievance and the ULP arose from the same set of factual circumstances. The issue is whether the "theory advanced in support of the ULP charge and the grievance are substantially similar." Army Finance, 38 FLRA at 1351. If the theories are not substantially similar, section 7116(d) compels a conclusion that the ULP is not barred by the grievance.

With respect to the theory advanced in support of the grievance, the ALJ found that the second-step grievance "addresse[d] only preferential treatment afforded to some employees."(8) ALJ's Decision at 9. An examination of the grievance itself confirms the ALJ's finding. The grievance consists of a form and an attachment, which explains the nature of the grievants' complaint. In the attachment, the Union representative filing the grievance asserts that the purpose of the grievance was to "convinc[e]" a representative of the Respondent to:

grant [the grievants] the opportunity [the Respondent] ha[d] so obligingly allowed the employees who work straight days to do. This is to select between four work schedules.

G.C. Exh. 1-c.(9) The Union representative referenced "the segregation the [grievants] felt":

It does not stem from the fact they are the only twenty-four hour manned duty section. It stems from the fact [that] all other installation employees are allowed to make choices in their available work schedules and the Radar work center employees are not.

Id.

The Agency's recognition that the grievance concerned discrimination against the grievants is clear from the Station Manager's denial of the grievance, in which he concluded that he had found "no evidence of discrimination between employees who work uncommon tours of duty and those who do not[.]" G.C. Exh. 1-d. The denial of the grievance does not refer to the Statute and does not discuss the issue of whether the Respondent was required to bargain with the Union before changing crew assignments. Although the grievance states as a fact that the Respondent "altered the personnel crew schedules as some employees were moved to other crews[,]" the grievance does not raise or mention any issues concerning the Agency's failure to notify or bargain with the Union before implementing the changes.(10)

With respect to the theory advanced in support of the ULP charge, the ALJ found that the charge asserted only that the crew changes violated the Statute because they were implemented without an opportunity for the Union to bargain over them. We agree that the charge encompassed only this theory. More particularly, the charge includes no mention of preferential treatment, and states only that:

On 14 February 1992, the Activity implemented crew personnel changes in the Radar work center . . . without consulting in good faith and/or affording the Union the opportunity to negotiate at its request.

G.C. Exhibit 1(a).

We reject the Agency's argument that section 7116(d) bars the ULP because both the grievance and the ULP requested bargaining as remedies. First, the record does not establish that the grievance and the ULP requested bargaining over the same matters and, even if bargaining is ultimately ordered by both tribunals, there is no reason to conclude that such bargaining will result in a redundant or even overlapping remedy.(11) Second, even assuming that the remedy sought in both fora are the same, the Agency has provided no support, and none is apparent, for the proposition that actions seeking the same remedy present the same issue under the second sentence in section 7116(d) and/or substantially similar theories under the Authority's Army Finance test.(12)

In sum, the record supports the Judge's conclusion that the theories in the grievance and the ULP charge are different. The issue in the grievance was whether "Radar Center employees were being segregated, or discriminated against, by not being able to choose their own schedules." Judge's Decision at 7. This is clearly a different theory than that advanced in the ULP charge. As the Judge found, "there would be no need for the arbitrator to address the unfair labor practice issue" because the "grievance sought only to establish preferential treatment to employees, while the [ULP] sought to establish a statutory violation of Respondent's failure to bargain a change in working conditions." Id. at 9-10. As the legal theories are different, the ALJ's conclusion that the ULP charge was not barred by the grievance is fully consistent with, and compelled by, not only the plain wording of the Statute but also by judicial and Authority precedent interpreting and applying the Statute.(13)

In reaching this conclusion, we find that the Respondent's reliance on the position argued by the Authority, and adopted by the court in Local 916 is misplaced. In that case, a union sought court review of the Authority's decision setting aside an arbitration award. 951 F.2d at 276. The court agreed with the Authority that, under section 7123(a)(1) of the Statute, which provides for judicial review of FLRA orders reviewing arbitration awards only where the orders involve a ULP, the court had no jurisdiction over the proceeding because it did not involve a ULP. Id. at 278-79. Local 916 did not concern whether any subsequent ULP filed over the matter raised in the grievance would have been barred by section 7116(d); the court specifically held that the case did "not involve the duplication . . . prohibited by § 7116(d). . . ." Id. at 279. The decision, and the Authority's decision reviewed therein, speak only to the fact that, whether or not the matter raised in the grievance could have been raised as a statutory ULP, the grievance itself did not raise a statutory ULP issue.

With respect to the latter point, there is no argument, or other basis on which to conclude, that, in the case now before us, the Union was prevented from raising in its grievance an allegation that the Agency's change in crew assignments violated the Statute. However, unlike the first sentence in section 7116(d), which precludes adjudication in a ULP proceeding of issues which "can properly be raised under an appeals procedure," whether or not they are in fact raised,(14) the second sentence of section 7116(d), which is applicable here, states a different rule. It plainly precludes only subsequent litigation of issues that, in the discretion of the aggrieved party, were raised earlier. Accordingly, whether or not the Union could have raised statutory issues in its grievance, the fact remains that the Union did not do so. Accordingly, we conclude, in agreement with the ALJ, that the filing of the grievance did not bar the filing of the ULP charge under section 7116(d) of the Statute, and we deny this exception.

B. The ALJ Did Not Err in Concluding that All Affected Technicians were Equally Qualified to Perform GS-11 Duties

Exceptions to an ALJ's decision must "state the grounds for the exceptions." 5 C.F.R. § 2423.27(a)(3). In addition, an agency's supporting brief must contain "[t]he argument, presenting clearly the points of fact and law relied on in support of the position taken . . . with specific page reference to the transcript and the legal or other material relied on." 5 C.F.R. § 2423.28(a)(3).

The Agency has provided no support for its exception to the ALJ's finding that the supervisor certified all eight of the electronics technicians as being equally qualified to perform the required tasks of a WG-11 electronics technician. The Agency fails to even discuss this exception in its brief. As the Agency has failed to support this exception, the exception is denied.

C. The ALJ Did Not Err In Deciding That the Respondent Violated the Statute by Implementing Changes in Crew Assignments of WG-11 Technicians

The Authority does not judge a complaint based on rigid pleading requirements. U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 173 (1991). In particular, the Authority will consider matters that are fully and fairly litigated between the parties, even where such matter is not specified in a complaint. U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 468 (1995).

Although the complaint erroneously referred to the technicians as WG-8 employees, the record shows that the Agency was well aware that the issues before the ALJ concerned the WG-11 technicians. Among other things, both the Union President and the supervisor testified at the hearing that at the time of the alleged ULP, all the technicians in question were WG-11 employees. See Transcript at 15-16, 140. As such, we find that the Agency has failed to support its assertion that the ALJ erred in deciding that the case involved changes in WG-11 crew assignments.

The Agency also has failed to establish that the ALJ erred in concluding that the Agency violated the Statute by implementing a change in the actual crew assignments, despite the complaint's assertion that the alleged unlawful change was in the method of making those assignments. The record amply demonstrates that the parties understood that the issue before the Authority concerned the change in the crew assignments themselves. See, e.g., Transcript at 9 (representative of the General Counsel stated that the Respondent violated the Statute "when it unilaterally changed crew assignments"); Id. at 103 (Respondent's representative stated that "what we're talking about here, is crew alignments"). There is no assertion, or other basis in the record to find, that the Respondent did not understand the subject of the dispute, or that the dispute was not fully and fairly litigated. Therefore, we deny this exception.

Based on the foregoing, and noting that no exceptions were filed to the ALJ's recommended Order, we conclude that the ALJ did not err in holding that the Agency violated section 7116(a)(1), (5) and (8) of the Statute by unilaterally implementing a change in crew assignments for electronics technicians, and we issue the following Order.

V. Order

Pursuant to section 2423.9 of the Authority's Regulations and section 7118 of the Statute, OLAM Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, shall:

1. Cease and desist from:

        (a) Unilaterally changing working conditions of employees exclusively represented by the Union by changing

crew assignments of electronics technicians at the Radar Maintenance Work Center, without first completing bargaining with the Union over the decision to change crew assignments, or over the procedures for implementing the change and appropriate arrangements for affected employees.

        (b) Refusing to bargain with the Union over the changes in working conditions of unit employees.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Upon request of the Union, rescind the crew assignments of the electronics technicians at the Radar Maintenance Work Center that were made on February 14, 1992 (to begin on March 1, 1992), and return to the crew assignments which existed prior to that date.

        (b) Give notice to, and upon request, negotiate with the Union over the decision to change crew assignments of electronics technicians at the Radar Maintenance Work Center and/or over the procedures for implementing the change and appropriate arrangements for affected employees.

        (c) Post at its facilities in OLAM Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, where bargaining unit members represented by the Union are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

        (d) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the San Francisco Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of our employees exclusively represented by the National Association of Government Employees, Local R12-85, AFL-CIO, by changing crew assignments of electronics technicians at the Radar Maintenance Work Center, without first completing bargaining with the Union over the decision to change crew assignments and/or over the procedures for implementing the change and appropriate arrangements for affected employees.

WE WILL NOT refuse to bargain with the Union over the changes in working conditions of unit employees, such as the method by which crew assignments of Radar Maintenance Work Center personnel are made.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL, upon request of the Union, rescind the crew assignments of the electronics technicians at the Radar Maintenance Work Center that were made on February 14, 1992 (to begin March 1, 1992), and return to the crew assignments which existed prior to that date.

WE WILL give notice to, and upon request, negotiate with the Union over the decision to change crew assignments of electronics technicians at the Radar Maintenance Work Center.

_____________________________
(Activity)

Date:_____________ By:_______________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-1791, and whose telephone number is: (415) 744-4117.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

OLAM SOUTHWEST AIR DEFENSE SECTOR (TAC) POINT ARENA AIR FORCE STATION, POINT ARENA, CALIFORNIA

Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,

LOCAL R12-85, AFL-CIO

Charging Party

Case No. SF-CA-20337

Steven E. Sherwood, Esq.
For the Respondent

Gary J. Liebermann, Esq.
For the General Counsel

Before: ELI NASH, JR.
Administrative Law Judge

DECISION

Statement of the Case

This proceeding arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101, et seq., herein called the Statute, and the Rules and Regulations of the Authority, 5 C.F.R. § 2411, et seq. It was initiated by an unfair labor practice charge filed against the Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California (herein called the Respondent) by the National Federation of Federal Employees, Local R12-85, AFL-CIO (herein called the Union). The Complaint alleges that Respondent engaged in unfair labor practices within the meaning of section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in crew assignments for electronics technicians at Respondent's Radar Work Center.

A hearing was held before the undersigned in San Francisco, California at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.(1)

Findings of Fact

Respondent is a long-range radar site assigned to the Tactical Air Command. The Radar Maintenance Work Center (herein called the Radar Center) provides 24-hour, 7 days a week radar surveillance, including maintenance, preventive maintenance, repairing malfunctions and recording events. Supervisors at the site include, Thomas Hayes, the Respondent's Station Manager; Ronald Dzuba, the Radar Center supervisor; and Leonardo Balambao, a supervisor.

At all times material herein, the Union was certified as the exclusive representative for Respondent's general schedule and wage grade employees, including electronics mechanics at the Radar Center. Respondent and the Union are parties to a collective bargaining agreement. At all times material herein, Michael Terry, who works as an electronics mechanic in the Radar Center, held the position of Union President, the official designated to receive notification of changes in conditions of employment.

A. The work schedule of electronics mechanics at the Radar Center.

There are eight electronics mechanics employed at the Radar Center who work in crews of two mechanics per shift. In order to supply 24-hour, 7 days a week maintenance coverage to the Radar Center, the four crews work a 28-day cycle rotating through a day shift (0800 to 1600) to a midnight shift (0001 to 0800), and finally an evening shift (1600 to 2400). These eight employees receive a four day break after finishing the midnight shift and rotating to the evening shift, and a two day break after finishing the evening shift and rotating to the day shift.(2)

The above schedule allows electronics mechanics employees to plan vacations in conjunction with the four days off between the midnight and evening shifts when scheduling their annual leave at the beginning of the year. Although Respondent's supervisors post a monthly schedule, Terry also drafts a yearly schedule for employees to assist them in projecting their annual leave for their requests at the beginning of the year.(3)

In March 1992, Dzuba certified all eight of the electronics mechanics as being equally qualified to perform the required tasks of a WG-11 electronics mechanic. Not only did all eight have the same wage grade, all eight employees had the same position description. In addition, all the electronics mechanics are often required to work alone, with full responsibilities, and also are required to train new employees.

B. Crew assignment changes prior to the Union becoming the exclusive representative in 1990.

Prior to the Union gaining exclusive representative status in 1990, Respondent changed crew assignments of electronics mechanics at the Radar Center on a temporary basis for illnesses, and on a permanent basis if an employee was leaving the station.(4) Dzuba testified that on one occasion, back in 1987-88, before the Union was certified as the exclusive representative and prior to the onset of any bargaining obligations, Respondent realigned crews because two employees were not getting along. The crew realignment implemented in March 1992 was however, the first crew realignment since the Union was certified in 1990.

During that time, when Respondent realigned crews, normally the supervisors asked the individuals involved if they would rather remain with their crews and work with another employee or switch to another crew.

C. Respondent posts changes in crew assignments in January 1992, and then rescinds change after Union submits bargaining request.

On January 15, 1992, Dzuba posted the schedule for February 1992 which included changes in four employees' crews. Dzuba noted on the schedule the following:

TO BETTER IMPROVE OUR OPERATION THE FOLLOWING CREW CHANGES ARE EFFECTIVE 31 Jan 92. Mr. Ackroyd will go to A Crew 2 FEB 92. Mr. Hays (sic) will go to B Crew 31 Jan 92. Mr. Roskie will go to C Crew 31 Jan 92. Mr. Matz will go to D Crew 4 Feb 92.

The Union did not receive any prior notification of the crew alignment changes before the schedule was posted on January 15, 1992. Furthermore, employees were not asked by supervisors about their preferences on crew assignment changes as happened in the past.

On January 16, 1992, the day after the crew changes were posted, Terry and his crew partner, Dave Ackroyd, who is not a Union official, discussed the changes with Dzuba and Balambao. Dzuba and Balambao informed Terry that the change in crews was made to alleviate a problem of two employees on a crew who were not getting along. Dzuba's testimony that three crews were having problems with each other, while not totally consistent with what he told Terry, that one crew was not getting along does establish a reason for the change. Dzuba also stated that as a result of the problems with the crews, maintenance work was not being completed, however, there is no evidence that any employee was disciplined for failing to complete an assignment. On that same day, Ackroyd expressed his concerns about his scheduled leave in conjunction with the four day break between his rotation from the midnight shift and the evening shift.(5) Ackroyd also explained to his supervisors that a change in his crew would affect his ability to care for his children as his wife's schedule had been coordinated with his crew assignment, and days off, prior to the change.

Later that same day, the Union submitted a written bargaining request to Station Manager Hayes. In the bargaining request, Terry submitted the Union's first proposal as follows:

I request that the schedule change be held in abeyance until such time that the Union has been afforded the opportunity to negotiate on the Impact and Implementation of this schedule change.

After receiving the Union's bargaining request on January 16, 1992, Respondent's representatives contacted civilian personnel at Travis Air Force Base who is responsible for servicing all the personnel at Respondent, for advice on how to proceed. That individual, Barbara Neilson, Chief of Labor and Employee-Management Relations, advised Respondent to pull down the schedule change and bargain with the Union. Neilson testified that under Article 3, § 4 of the parties' Agreement, Respondent was not required to give the Union advance notice because this was not a "significant change", but conceded that once the Union expressed an interest to bargain, there was a duty to bargain. Neilson also testified that Respondent was allowed to implement the realignment under Article 20, § 3 of the Agreement because the crew assignment change was "temporary." Contrariwise, Dzuba more accurately described the crew assignment change as permanent. On January 16, 1992, the schedule with the crew assignment changes, posted on January 15, 1992 was removed by Respondent.

D. Respondent and Union discuss seniority as a basis for crew assignments on February 5, 1992, and Respondent again implements the crew assignment changes shortly thereafter.

On January 28, 1992, Terry received a memorandum from Station Manager Hayes informing him of a "special meeting" scheduled for February 5, 1992. On that day, Terry met with Dzuba, Balambao and Hayes and discussed the crew assignments. At that time, there was no schedule change proposed, or "on the table." Dzuba, Balambao and Hayes expressed their views on why a change in the crew assignments should be made, while Terry proposed again that the crew realignment should be held in abeyance and the Union be allowed to negotiate. In addition to raising concerns voiced earlier by Ackroyd about how crew realignment would effect leave, Terry proposed that employees be allowed to select their crew assignments by seniority.

Respondent, by either Dzuba or Hayes, replied to the Union's proposal with its view that by selecting crew assignments based on seniority would not give it the flexibility in assigning employees. Respondent told Terry that it would consider the proposal, but at that time Respondent's representatives did not think they could accept it. Terry agreed to ask the employees about their preferences with respect to crew assignment changes, while Hayes was going to check with civilian personnel. At the conclusion of the meeting, Hayes told Terry that the parties would discuss crew realignment in the future, including any of the Union's proposals on how to implement the change. Hayes also informed Terry that he would give him his decision on whether to go ahead with the crew assignment changes when he returned from a business trip. Terry's impression that the parties would meet again to discuss crew assignments was based on Hayes' comments.

After February 5, 1992, neither Balambao nor Hayes received any request from the Union for the invocation of the Federal Mediation and Conciliation Service for its mediation assistance, or a notice from the Union that it was invoking the services of the Federal Service Impasses Panel. Similarly, after February 5, 1992 neither Balambao or Hayes received any additional proposals from the Union with respect to crew realignment.

Sometime between the meeting on February 5, 1992, but prior to February 12, 1992, Respondent's managers contacted Neilson at Travis. Although Neilson was not present at any of the meetings with the Union on the issue, including the February 5 session, she concluded nonetheless that Respondent had the right to make a decision on the crew realignment and to announce it.

Thereafter, on February 12, 1992, Hayes wrote Terry a memorandum stating that he appreciated the Union's contributions during the February 5 discussion concerning crew changes, but that he was planning on implementing the new crew assignments effective March 1, 1992. Terry did not receive the letter until February 14, 1992, the day the crew assignments were posted. The crew assignment changes posted on February 14, 1992 were the same changes that were initially posted in January 1992 and taken down by Respondent after recognizing its bargaining obligation. Respondent changed the crew assignments as announced on March 1, 1992.

E. Grievance filed by employees on crew alignment change; Union pursues it at second step of the grievance procedure.

On February 26, 1992, after the schedule change was posted at the Radar Center, several electronics mechanics initiated a grievance on the crew changes. Those employees alleged in the grievance that they were being unjustifiably segregated because other employees at Respondent's base had the ability to choose between several types of alternative work schedules. Radar Center employees thus sought the same opportunities as the other employees on base. Dzuba denied the first step grievance on February 26, 1992 asserting that alternative work schedules were not feasible at the Radar Center because it was the only 24-hour operation on the base.

Shortly after the first step grievance was denied by Dzuba, the Union represented the employees and filed a second step grievance with Station Manager Hayes. The issue there was the same as the first step i.e. that Radar Center employees were being segregated, or discriminated against, by not being able to choose their own schedules. The second step grievance did not raise any issues concerning Respondent's failure to notify, or bargain with the Union before imple-menting the change in crew assignment. As a remedy for the grievance, the Union sought to negotiate with Respondent over the crew schedule using a seniority based system. On March 16, 1992, Hayes denied the second step of the grievance, maintaining that Dzuba had complied with all policies and regulations in making crew assignment changes, and there was no evidence of discrimination. Thereafter, the Union filed the instant unfair labor practice.

F. Impact on employees of crew assignment change in March 1992.

The crew assignment changes in March 1992 extended not only to disruptions in employees' planned annual leave and vacation plans, but also created problems with employees' child care responsibilities and commuting arrangements to the base. With respect to annual leave, the unique schedule of these employees allowed for a four day break between the midnight and evening shift and employees scheduled vacations in conjunction with the four day break. When Respondent unilaterally changed the crew assignments an employee like Ackroyd, who had scheduled a vacation around the four day break, would now be forced to take annual leave for those four days. Respondent maintains that throughout its discussions with the Union, it expressed its willingness to accommodate employees in any manner with respect to annual leave. Neilson, apparently was told by Respondent's management that it offered the Union a hundred percent accommodation for leave problems. She testified that this fulfilled Respondent's bargaining obligation. However, even if employees were allowed to adjust their annual leave, and take annual leave for the regular days off that had previously been scheduled, they would be forced to take annual leave when they normally would not have to.

The change in crew schedules also appears to have impacted directly on employees' child care commitments and travel arrangements to work. In this regard, Ackroyd and his wife coordinated their work schedules to allow one of them to watch their children during the day. When the crew assignment change was implemented with only two weeks notice, Ackroyd's wife (who is not a federal employee) was required to miss regular days of work to take care of their children, the days Ackroyd would have been off had the schedule remained the same. One employee was also required to make new transpor-tation arrangements to work because of the crew change.

Conclusions

The General Counsel's position is that Respondent unilaterally changed a condition of employment by changing crew assignments in the Radar Center in March 1992, without fulfilling its statutory bargaining obligation, in violation of section 7116(a)(1) and (5) of the Statute. It therefore asserts that the change in crew assignments posted by Respondent on February 14, 1992, and effective on March 1, 1992, was the first crew realignment since the Union became the exclusive representative of Respondent's employees in 1990. Prior to 1990, Respondent made crew assignment changes without a union representing employees, and therefore had no duty to bargain. In February/March 1992, the employees were represented and the Union sought to negotiate the crew realignments, but Respondent implemented before negotiations were complete.

Respondent makes several arguments, the most prominent being the instant unfair labor practice is barred under section 7116(d) of the Statute, that the changes in the crew assignments were de minimis, and finally, that the parties had reached impasse during the February 5, 1992 negotiation session.

1. Whether the unfair labor practice is barred under section 7116(d) of the Statute.

In determining whether a grievance is a jurisdictional bar to an unfair labor practice under section 7116(d) the Authority examines whether the subject matters of the unfair labor practice charge and grievance are the same, in terms of the factual predicate and theory. Thus, it specifically looks at whether the unfair labor practice charge and the grievance arose from the same set of factual circumstances and whether the theories advanced in support of the unfair labor practice charge and the grievance are substantially similar. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA 318, 323-24 (1991) (relying on the decision of the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987)).

In this case, the same set of factual circumstances underlie both the second step grievance and the later filed unfair labor practice and both were filed by the Union in its institutional capacity. To avoid this obstacle, the General Counsel maintains that the theories advanced in the two separately filed matters are different. Accordingly, it contends that the theory of the grievance is that some employees at Respondent received preferential treatment because they were permitted to make choices in their available work schedule through an alternative work schedule while the Radar Center employees were not allowed to do so. On the other hand, it contends that the unfair labor practice theory is not concerned with discrimination but rather, whether Respondent implemented a change in conditions of employment without affording the Union the opportunity to bargain. Preferential treatment, in its view, is not at issue in the unfair labor practice case.

Respondent's disagreement is found in its assertion that the theory upon which both the grievance and the unfair labor practice are based arise, in essence, out of the existing duty to bargain over a change in conditions of employment for bargaining unit members. It therefore, argues that any remedy sought by the Union in either the grievance or the unfair labor practice would be predicated upon a violation of some existing duty to bargain.

The plain language of the grievance, reveals that it addresses only preferential treatment afforded to some employees. Although an arbitrator might concur with Respondent and find that there was in fact no preferential treatment, or discrimination, among its employees, there would be no need for the arbitrator to address the unfair labor practice issue, the failure of Respondent to negotiate the crew assignment changes. The same might also be true if the arbitrator found discrimination and ordered Respondent to negotiate with the Union in its institutional capacity, since such an order would still not impose any statutory obligation to bargain on Respondent. The fact that both situations sought a remedy of negotiation with the Union would therefore, seem irrelevant. Nor does it appear that the unfair labor practice issue would ever come before an arbitrator. In short, the grievance sought only to establish preferential treatment to employees, while the unfair labor practice sought to establish a statutory violation of Respondent's failure to bargain a change in working conditions. See Bureau of the Census, 41 FLRA 436, 446-447 (1991).

Based on the foregoing, it is found that while the factual situation in both the grievance and unfair labor practice are identical, the grievance does not address Respondent's Statutory obligation to bargain a change in working conditions and, therefore, the instant unfair labor practice is not barred by section 7116(d) of the Statute.

2. Respondent had an obligation to bargain the change in crew assignments.

The decision to change tours of duty is negotiable only at an agency's election under section 7106(b)(1) of the Statute. In Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988), the Authority held that a "tour of duty is the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative work week."

If the change in crew assignment had a foreseeable impact which was more than de minimis under the Statute then an obligation to bargain over the impact and implementation exists notwithstanding Respondent's right to make the change. There is little question that an obligation to bargain over impact and implementation of any change in job duties or work assignments can exist, even where management is exercising a section 7106 right. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 35 FLRA 1039, 1047 (1990).

A. The change in crew assignments involved a reasonably foreseeable impact which was more than de minimis.

Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) established the standard to be applied in determining whether a change in conditions of employment by an agency is de minimis. There the current standard was established as follows:

. . . In examining the record we will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change of conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved.

The Authority also made it clear that the number of employees involved is not a controlling consideration in the analysis, and therefore, the number of employees involved in a change of employment conditions will not serve to extinguish bargaining obligations. SSA, supra; see also Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574 (1992). Understandably the de minimis inquiry does not focus primarily on the actual effect of a change in employees' conditions of employment, but on the foreseeable effect of the change. U.S. Customs Service (Washington, D.C.) and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891 (1987).

Applying the above standards to this case, it appears that the change in employees' crew assignments does give rise to a duty to bargain. The instant change in crew assignments of four employees, under their unique schedule required them to report to work when normally they would have days off. Further, these employees regularly scheduled their vacations around the four day break between the midnight and evening shifts, and it seems to be reasonable to conclude that the change in crew assignments would have a disruptive effect on employees' lives. Similar changes have already been found to have more than a de minimis impact, since action would disrupt responsibilities and commitments that employees had made predicated on the previously scheduled days off. See, e.g., Veterans Administration Medical Center, Prescott, Arizona, 46 FLRA 471 (1992). It was not only reasonably foreseeable that employees would be forced to rearrange travel plans, take more annual leave, and rearrange child care responsibilities, but Ackroyd and Terry informed and discussed with Respondent some of the complications the crew assignment change had on the employees' lives on separate occasions before Respondent implemented the change.

Respondent suggests that the impact of the crew assignment changes was outside the confines of the facility, such as child care responsibilities, spousal commitments, and travel plans, are not factored into the equation whether a change in conditions of employment is more than de minimis. Respondent finds these as personal inconveniences over which the "employee" has substantial control. Moreover, Respondent asserts the employee could significantly mitigate the effect. Authority's holdings are quite the contrary, for it has found that changes in conditions of employment which intrude on an employee's family, travel and/or educational plans and predicated on periods when the employee was not scheduled to be at work, are reasonably foreseeable impact and trigger a duty to bargain. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 39 FLRA 1357 (1991).

Based on the instant record, it is found that a reasonably foreseeable effect of the change of conditions of employment of bargaining unit employees existed and therefore, the change in conditions of employment had more than a de minimis impact herein.

In such circumstances, it is found that Respondent had an obligation to bargain concerning the impact and implementation of the crew assignment change herein.

B. The crew assignment change was also substantively negotiable.

Section 7106(a) of the Statute provides that subject to section 7106(b), nothing in the Statute shall affect management's right to assign work. Further, the right to assign work includes the right to determine whether individual employees possess the necessary qualifications, and the position or positions to which the work will be assigned. U.S. Department of the Treasury, Customs Service, 38 FLRA 770 (1990).

The record discloses that both prior to, and after the change in crew assignment was implemented on March 1, 1992, employees worked the same rotating schedule. The crew assignment change of employees at the Radar Center, who held the same grade, qualifications, and position descriptions is a matter which was substantively negotiable, and the Union's proposal to negotiate crew assignments by seniority was also negotiable.

In this case, the Union's proposal that crew assignments based on seniority does not interfere with management's rights. Such proposals concerning the assignment of employees from one or more shifts to another does not involve different positions or different duties, but only involves employees' performing the duties of their positions during a different shift of work. Thus a proposal based on service computation dates or seniority in determining such shift assignments, as was made by the Union here, would be negotiable. Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104, 1107 (1984).

The Union's proposal that crew assignments be based on seniority simply does not interfere with any management right because it does not prevent Respondent from securing any coverage it deems necessary, to determine when work will be performed. Nor does it interfere with Respondent's ability to assign particular duties to particular employees. See U.S. Customs, 38 FLRA 787. Furthermore, the proposal does not impact on the number of employees per shift, for here, the Union sought only to negotiate a method to select crew assign-ments by seniority.

As already noted, when the instant change was implemented by Respondent, all eight employees at the Radar Center were of the same wage grade, and certified by their supervisor as being equally qualified to perform their job duties. These employees all had the same position description, and performed the same duties. Although Respondent argues that it needed to maintain the flexibility to place a more experienced mechanic, a WG-11, with a newly hired, WG-8 mechanic, but the record demonstrated otherwise, because at the time the change was implemented, the mechanics were equally qualified WG-11 mechanics and there were no work related distinctions between these employees.(20) In these circumstances, it appears that the Union's proposal did not affect management's right to assign work.

Accordingly, it is found that the subject of crew assignment changes was substantively negotiable.

C. The parties' collective bargaining agreement does not cover the matter in dispute.

A new framework for determining whether a provision in a contract covers a matter in dispute was established in Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). First, the Authority determines whether the matter is expressly contained in the agreement, although recognized exact language is not required. If the provision does not expressly encompass the matter, the Authority determines whether the subject is inseparably bound up with, and thus plainly an aspect of a subject expressly covered by the contract.

Respondent admittedly has a bargaining obligation on the issue of crew assignments if bargaining is requested, but presents a two-fold argument concerning whether it had an obligation to give the Union advance notice of the change. First, it asserts that provisions in the Agreement allow it to make changes which are not significant without prior notification.(21) The provisions relied on by Respondent, Article 3, Sections 3-4, simply restates statutory rights and obligations. Thus, Section 3 discusses management's rights under section 7106 of the Statute and while Section 4 recognizes that under the Statute, and current case law, that even if management rights are exercised, a bargaining obligation over procedural and impact issues still remains.(22) Then it suggests that it was permitted to make the crew assignment change, without notice to the Union, under Article 20, § 3 of the Agreement because it resulted in only a temporary adjustment in the employees' schedule. Regarding this argument, Respondent's own witnesses seem to disagree on the temporary or permanent nature of the change in crews in March 1992. Furthermore, the record demonstrates that the change was more than merely a temporary adjustment. The change in crew assignments not only effected employees in the month following the change in March 1992, but the effects of the change were experienced for many months to follow. After the change in crew assignments, an employee who scheduled a vacation around his four day break for December 1992 would find himself having to take annual leave, or rearranging his vacation plans.

Based on the foregoing, it is found that the change was not a temporary adjustment, and therefore, the subject is not covered under the parties' Agreement and that the contractual provisions relied on by Respondent does not reveal that the Union waived any right to bargain concerning the realignment of the Radar Center crews.

3. Respondent did not fulfill its duty to bargain and the parties did not reach impasse at the February 5, 1992 meeting.

The record reveals that when Respondent posted the crew assignment change in February 1992, effective March 1992, it had not fulfilled its bargaining obligation, and the parties had not reached impasse. When Respondent first posted the crew assignment change in January 1992, the Union expressed its concerns of how the change would impact on employees, and then made a written demand to bargain. The demand to bargain included the proposal that Respondent hold the crew assignment change in abeyance until the change was negotiated. Thereafter, Respondent opted to pull down the crew assignment change and bargain with the Union over the issue. After notifying Terry of a "special meeting" on February 5, 1992, the Union proposed the changes be selected by seniority, and raised additional concerns of how the change would effect employees leave. Respondent informed Terry that it would consider the proposal and that the parties would discuss crew realignment in the future.

Based on these facts, Neilson, who works at Travis, and was not in attendance at the February 5, 1992 session, concluded that Respondent had fulfilled its bargaining obligation and that Respondent should implement the crew realignment. She considered the fact that Respondent's managers had reassured her that they would fully accommodate employees on the leave issue.

A. The crew assignment change was not necessary for the functioning of the agency.

Respondent cites personality difficulties, safety concerns and performance concerns which it contends are "inextricably linked to the core . . ." of its mission as reasons for realignment of the crews.

It is clear that an agency is obligated to bargain before implementing a change in the conditions of employment of its represented employees. Department of the Air Force, Scott Air Force Base, 35 FLRA 844, 852 (1990). The only potentially applicable exception is that of an acute need to implement the change before the negotiations, that is, that expedited implementation was required, "consistent with the necessary functioning of the agency." Social Security Administration, 35 FLRA 296, 302 (1990).

Case law reveals matters dealing with the duty to maintain the status quo while a bargaining impasse is reached before the Federal Service Impasses Panel. As articulated more fully in U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986), the principle applied in those cases is that the status quo must be maintained to the extent possible, that is, to the extent consistent with the necessary functioning of the agency. When an agency chooses to avail itself to this exception and thus to alter the status quo, it must be prepared to provide affirmative support for the assertion that the action taken was consistent with the necessary functioning of the agency. The Authority has also indicated that the phrase "consistent with the necessary functioning of the Agency, may be accurately paraphrased as "necessary for the [agency] to perform its mission." Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Laredo, Texas, 23 FLRA 90 (1986).

Implementation of the crew assignment change before the completion of bargaining was not necessary for the functioning of Respondent as contemplated by the Authority. The crews had been together for over a three year period, and there is no evidence of employees being disciplined prior to the change for not completing assignments. In fact, Dzuba testified that when he spoke to employees about accomplishing maintenance tasks, they responded. In addition, Respondent contends that it realigned crews in the past under circumstances similar to this change without deferring to employees desires. Such an argument completely ignores the fact that there was no exclu-sive representative and therefore, no bargaining obligation at that time. Furthermore, the fact that Respondent did not implement the change when it had planned to on February 1, 1992, undermines any cogent argument that this change was necessary to perform its mission. In these circumstances, it is found that the crew realignment was not "consistent with the necessary functioning of the agency." Under these conditions it appears that there was no necessity for Respondent to implement the crew assignment prior to fulfilling its bargaining obligation.

B. The parties were not at impasse following the February 5, 1992 meeting.

It has been held that an agency violates the Statute when implementing changes in conditions of employment if it implements the changes absent an agreement by the parties, timely invocation of the services of the Federal Service Impasses Panel after impasse following good faith bargaining, or waiver of Union bargaining rights. U.S. Department of the Air Force, 832d Combat Support Group, Luke Air Force Base, Arizona, 36 FLRA 289 (1990). In Luke, supra, it was found that the parties were not at impasse since the respondent would not deviate from its intention to implement the change; the union's proposal not to implement was negotiable; impasse was not declared; the union clearly was not refusing to continue negotiations; there was no waiver by the union; and, no overriding exigency requiring immediate implementation. Furthermore, when the parties exhibit a willingness to bargain no impasse exists. See, also, Davis-Monthan Air Force Base, Tucson, Arizona, 42 FLRA 1267 (1991).

The record discloses that following the February 5, 1992 meeting, the parties were not at impasse with respect to crew assignment changes as contemplated by the Authority in Luke, supra. Rather, Respondent expressed a willingness to consider the Union's proposal, meet in the future, and never declared the parties to be at impasse. Nor did the Union seek the services of the Federal Service Impasses Panel. It must be kept in mind that the Union had negotiable proposals out-standing, including one requesting that the change be held in abeyance pending completion of negotiations. See United States Department of Justice, Immigration and Naturalization Service, Washington, D.C., 31 FLRA 145, 154 (1988) (holding agency had obligation to bargain over proposal to maintain status quo before implementing a change in employment conditions). Additionally, the actions of Respondent's representatives at the February 5 negotiation session demon-strate that the parties were not at impasse, and left the Union with the notion that future negotiation sessions would take place. In this regard, Respondent told the Union that it would consider the proposal on seniority and check with civilian personnel. Hayes also told Terry that he would be willing to discuss the implementation of the crew changes in the future.

Since neither of the parties declared an impasse but seemed to be convening the meeting until a later date, the Union could have reasonably believed that Respondent was considering its proposal by displaying a willingness to discuss the subject in the future. Consequently, when Respondent implemented the crew assignment change by posting the schedule on February 14, 1992, although the parties had discussed the crew assignments, they were not in agreement, or at impasse, and the Union had not, as found earlier, waived its bargaining rights concerning this issue.

Finally, Respondent's expressed willingness to "accommodate" employees annual leave problems created by the change, does not relieve it of the obligation to bargain over the change.

Based on the above, it is found that Respondent implemented a change in conditions of employment without fulfilling its bargaining obligations in violation of section 7116(a)(1) and (5) of the Statute. It is further found that the change in crew assignment was a substantively negotiable matter as to the eight electronics mechanics who were equally qualified, and possessed the same grade and position description. Finally, it is found that the change in crew assignments had more than a de minimis impact on bargaining unit employees, thereby, giving rise to an obligation to bargain the impact and implementation of the crew assignments.

With respect to the remedy in this matter, the General Counsel maintains that a status quo ante is the only appropriate remedy in this matter. After reviewing Respondent's argument and applying the five factors of Federal Correctional Institution, 8 FLRA 604 (1982) it is found that a status quo ante remedy is appropriate in this case.

Accordingly, it is recommended that the Authority adopt the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of our employees exclusively represented by the National Association of Government Employees, Local R12-85, AFL-CIO by changing crew assignments of electronics mechanics at the Radar Maintenance Work Center, without first completing bargaining with the Union over the decision to change crew assignments, or over the procedures for implementing the change and appropriate arrangements for affected employees.

(b) Refusing to bargain with the National Association of Government Employees, Local R12-15, AFL-CIO over the changes in working conditions of unit employees, such as the method by which crew assignments of Radar Maintenance Work Center personnel are made.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request of the National Association of Government Employees, Local R12-85, AFL-CIO, rescind the crew assignments of the electronics mechanics at the Radar Maintenance Work Center that were made on February 14, 1992 (to begin March 1, 1992), and return to the crew assignments which existed prior to that date.

(b) Give notice to, and upon request, negotiate with the National Association of Government Employees, Local R12-85, AFL-CIO over the decision to change crew assignments of electronics mechanics at the Radar Maintenance Work Center.

(c) Post at its facilities in Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, where bargaining unit members represented by the National Association of Government Employees, Local R12-85, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the San Francisco Region, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, December 12, 1994

________________________
ELI NASH, JR.
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilateral change working conditions of our employees exclusively represented by the National Association of Government Employees, Local R12-85, AFL-CIO by changing crew assignments of electronics mechanics at the Radar Maintenance Work Center, without first completing bargaining with the Union over the decision to change crew assignments, or over the procedures for implementing the change and appropriate arrangements for affected employees.

WE WILL NOT refuse to bargain with the National Association of Government Employees, Local R12-85, AFL-CIO over the changes in working conditions of unit employees, such as the method by which crew assignments of Radar Maintenance Work Center personnel are made.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of the National Association of Government Employees, Local R12-85, AFL-CIO, rescind the crew assignments of the electronics mechanics at the Radar Maintenance Work Center that were made on February 14, 1992 (to begin March 1, 1992), and return to the crew assignments which existed prior to that date.

WE WILL give notice to, and upon request, negotiate with the National Association of Government Employees, Local R12-85, AFL-CIO over the decision to change crew assignments of electronics mechanics at the Radar Maintenance Work Center.

__________________________
(Activity)

Date:____________ By:______________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, San Francisco Region, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, and whose telephone number is: (415) 744-4000.




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


Authority's Footnotes Follow:

1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision.

2. The Agency relied on Article 3, Section 2 of the parties' collective bargaining agreement, which provides, in part, that "[t]he EMPLOYER retains the right . . . [i]n accordance with applicable laws . . . to determine the personnel by which the EMPLOYER's operations shall be conducted . . . ."

G.C. Exh. 2.

3. Section 7116(d) provides:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

4. In particular, the ALJ found that: (1) the change in crew assignments had a foreseeable impact on unit employees' working conditions which was more than de minimis; and (2) implementation of the crew assignment change before completion of bargaining was not necessary for the functioning of the Agency. The Agency does not except to these findings.

5. The same provision also applies to determining whether a ULP charge bars a subsequently-filed grievance. The Authority's approach to determining whether a bar exists under section 7116(d) applies in the same way without regard to which action is filed first.

6. Excepted from this requirement are matters wherein, under section 7121(e) and (f) the Statute, an employee has an option of using the negotiated grievance procedure or an appeals procedure.

7. Contrary to the Respondent's assertion that the Authority requires "that the parties be the same in both the grievance and the unfair labor practice[,]" Exceptions at 13, the Authority requires only that both actions be initiated at the discretion of the aggrieved party. In American Federation of Government Employees, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992), for example, the court sustained the Authority's decision that a ULP charge filed by the union barred a subsequent grievance filed by an individual employee where both actions rested on the same factual predicate and alleged the same statutory and contractual violations. There is no dispute in this case that both the second-step grievance and the ULP charge were filed in the discretion of the same aggrieved parties.

8. The ALJ compared the legal theory underlying the ULP with the legal theory underlying the second step grievance, and not the first step grievance. Because no exception was taken to the ALJ's reliance only on the second step grievance, we also will examine only that grievance. We note that both the first and the second step grievances raised the same issue, however, and that both were filed before the ULP charge.

9. The first step grievance had stated that: "The employees in all other work centers at this Station are allowed to alternate between four (4) alternative work schedules on a regular basis." G.C. Exh. 12. The grievants stated their belief that they had been "unjustifiably segregated." Id.

10. In this regard, both the first and second step grievances and the Station Manager's response to the second step grievance refer to the crew schedule changes that were the subject of the ULP charge. These references are consistent with the Judge's conclusion, to which no exceptions were filed, that both the grievance and the ULP arose from the same set of factual circumstances. They do not establish, however, that the same legal theories were involved.

11. In the grievance, the Union requested bargaining over selections for "crew schedule[s]." Attachment 1-a to G.C. Exh. 1(d). In the ULP charge, on the other hand, the Union objected to the Agency's alleged failure to bargain over "crew personnel" changes. G.C. Exh. 1(a). As the only changes effected by the Respondent related to crew pairings, not hours of work, it would be reasonable to read the reference to "crew personnel" in the ULP charge as encompassing only assignments of affected employees to pairs. It is unclear whether the different wording in the grievance indicates that bargaining over different matters was requested. Specifically, in view of the grievance's reference to the four work schedules available to other of Respondent's personnel, the "crew schedule" bargaining referred to therein could be read as encompassing various hours-of-work schedules.

12. It is axiomatic that the same remedy may be awarded as a result of pursuing a myriad of legal theories. See, e.g., U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1422 (1990) (Back pay ordered as remedy for race and national origin discrimination); U.S. Department of the Treasury, Customs Service, Dallas, Texas and National Treasury Employees Union, Chapter 140, 37 FLRA 1022, 1026 (1990) (Back pay ordered as remedy for reprisal taken against employees for whistleblowing activities); American Federation of Government Employees, Local 1698 and Department of the Navy, Aviation Supply Office, 34 FLRA 939, 943 (1990) (Back pay ordered as a remedy for the violation of a collective bargaining agreement); American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223, 1226 (1988) (Back pay ordered as remedy for improper disciplinary action); Federal Aviation Administration, Washington, D.C., 27 FLRA 230, 234 (1987) (Back pay ordered as remedy for refusal-to-bargain). Even though back pay was ordered as a remedy in all of these cases, each case advanced a different issue and proceeded on a distinct legal theory.

13. We note that the Fourth Circuit also has interpreted section 7116(d) as encompassing an analysis of factual predicates and legal theory. Department of Commerce, Bureau of the Census v. FLRA, 976 F.2d 882, 889 (4th Cir. 1992) (Commerce). Commerce involved the first sentence of 7116(d). However, the court stated that the Authority's test under the second sentence, examining whether the two actions arose from the same set of facts and are based on the same legal theory, is "transferable[,]" 976 F.2d at 889, and the court applied that test to determining whether, under the first sentence of section 7116(d), an issue may be raised as a ULP.

14. For a discussion of this aspect of the first sentence of section 7116(d), see United States Small Business Administration, Washington, D.C., 51 FLRA 413, 422 (1995), ("when the factual predicate of the ULP and the statutory appeal is the same, and the legal theory supporting the statutory appeal has been or could properly be raised to the MSPB, we will decline to assert jurisdiction over the unfair labor practice pursuant to [the first sentence in] section 7116(d)." (Emphasis added.))


ALJ's Footnotes Follow:

1. Respondent's unopposed errata to correct brief is granted.

2. Electronics mechanics at the Radar Center alternate working alone the last two days of the day shift, thus, having one or two days off.

3. The record includes a yearly schedule for 1993, and the implementation of the crew changes occurred in March 1992, the schedule is similar to previous schedules drafted by Terry in prior years, and this schedule has been used by supervisors as well.

4. Dzuba testified that on one occasion, back in 1987-88, before the Union was certified as the exclusive representative and prior to the onset of any bargaining obligations, Respondent realigned crews because two employees were not getting along. A 1988 crew realignment, prior to the Union being certified, is not relevant.

5. While there is testimony that Respondent maintained a flexible annual leave policy and was willing to accommodate employees' leave schedules, a change in an employee's crew could force that employee, who had scheduled a vacation, to take annual leave when those days would normally be regular days off.

6. During the initial crew assignment change in January 1992, Terry was informed that the reason for the crew change was because two employees were not getting along and work was not being accomplished. Dzuba, however, testified that no employee had been disciplined for not completing an assignment. While Respondent had the right to make crew assignment changes for disciplinary reasons between two employees, since all the employees were equally qualified, the Union would still retain the right to negotiate crew assignments for the remaining crews by seniority.

7. It is noted, that the General Counsel does not raise the question of advance notice in either its opening argument or in its brief. Therefore, it is deemed unnecessary to address the issue of whether adequate notice was given to the Unio