U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL OCEAN SERVICE, RIVERDALE, MARYLAND and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2640, AFL-CIO
U.S. DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL OCEAN SERVICE, RIVERDALE, MARYLAND
Case No. WA-CA-30981
Frances C. Silva
Counsel For the Respondent
Stephen G. De Nigris
Counsel For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), on or about April 13, 1993 by changing the work schedules of certain bargaining unit employees without affording the Charging Party (Union) prior notice and an opportunity to bargain over the impact and implementation of the decision.
Respondent admits that it committed an unfair labor practice in violation of section 7116(a)(5) when a first-line supervisor changed the work schedules of some employees in the Distribution Branch without bargaining with the Union. Respondent also states that it "will not contest summary judgment on the 5 U.S.C. § 7116(a)(1) charge."
On February 18, 1994 Counsel for the General Counsel moved for summary judgment. The motion was referred to this Office by the Acting Regional Director and all parties were afforded an opportunity to respond to the motion.
Considering all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendations.
The American Federation of Government Employees, Local 2640, AFL-CIO (AFGE or Union) is a labor organization under 5 U.S.C. § 7103(a)(4).
The Department of Commerce is an agency under 5 U.S.C. § 7103(a)(3). The National Oceanic and Atmospheric Administration (NOAA) is a primary national subdivision under 5 C.F.R. § 2421.5, and the National Ocean Service (NOS) is an activity under 5 C.F.R. § 2421.4. The Coast and Geodetic Survey (CGS) is a line office of NOS.
The original charge was filed by the Union with the Washington Regional Director on September 16, 1993. The first amended charge was filed by the Union on December 7, 1993.
A copy of the charge and first amended charge was served on the Respondent.
During the period covered by the complaint, Doris Gordon occupied the position of Supervisory Supply Technician, Accounting Order Processing Unit, Distribution Branch, Aeronautical Charting Division, CGS, NOS, NOAA.
During the time period covered by the complaint, Gordon was a supervisor under 5 U.S.C. §§ 7103(a)(10) and was acting on behalf of Respondent.
The Union is the exclusive representative of a unit of Respondent's employees appropriate for collective bargaining. The unit was described in a September 5, 1977 collective bargaining agreement as consisting "of all employees of the Reproduction Division and Distribution Division, Office of Aeronautical Charting and Cartography, National Ocean Survey, less supervisory personnel, and employees in the immediate office of the division chiefs." The chief representative signing for Respondent was the Director, National Ocean Survey, now known as the National Ocean Service. The Reproduction Division and Distribution Division are now branches.
On or about April 13, 1993, Respondent, through Gordon, unilaterally changed the work schedules of certain bargaining unit employees.
The Union was not afforded any prior notice or opportunity to negotiate over the impact and implementation of the Respondent's decision to change bargaining unit employees' work schedules.
The parties agree that there is no material issue of fact in dispute and that summary judgment is appropriate. Moreover, Respondent does not dispute, and I find, that it committed an unfair labor practice in violation of section 7116(a)(1) and (5) of the Statute on or about April 13, 1993 by unilaterally changing the work schedules of certain bargaining unit employees without providing the Union notice and an opportunity to bargain over the impact and implementation of the decision to change bargaining unit employees' work schedules.
The only issue that remains is what remedy is appropriate. The General Counsel seeks a remedial notice to employees to be signed by the Under Secretary of Commerce/ Administrator of NOAA, status quo ante relief, a bargaining order, and any other appropriate relief. The General Counsel seeks a notice signed by the Under Secretary of Commerce/Administrator of NOAA because this "is the third of several cases wherein the Respondent admits its unlawful conduct."
Respondent opposes this remedy. Respondent points out that it has admitted to unfair labor practice charges in three cases; all other charges have been denied and are as yet unadjudicated. Respondent claims that the level of recognition is at activity's branch level, the work schedule was changed by a first-line supervisor in the distribution branch, and there was no involvement in the admitted violation at the department, primary national subdivision, activity, division, or branch level. Respondent urges that the posting be signed by the distribution branch chief or