[ v03 p283 ]
03:0283(43)CA
The decision of the Authority follows:
3 FLRA No. 43
U.S. NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
Respondent
and
LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
Complainant
Assistant Secretary
Case No. 41-6355(CA)
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO REGIONAL DIRECTOR
SEYMOUR X. ALSHER'S ORDER TRANSFERRING CASE TO THE FEDERAL LABOR
RELATIONS AUTHORITY IN ACCORDANCE WITH SEC. 206.5(A) OF THE REGULATIONS
OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SEC. 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE RESPONSIBLE
FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC. 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
BRIEFS SUBMITTED BY THE PARTIES, THE AUTHORITY FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SEC.
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY UNILATERALLY
MAKING CHANGES IN ITS BLOOD DONOR PROGRAM ON JULY 20, 1978, WITHOUT
NEGOTIATING ABOUT ITS DECISION WITH THE COMPLAINANT, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES. THE RESPONDENT'S POSITION IS THAT THE
PARTIES' NEGOTIATED AGREEMENT CONTAINED A WAIVER OF THE COMPLAINANT'S
BARGAINING RIGHTS PURSUANT TO SEC. 11(A) OF THE ORDER. WHILE THE
PARTIES' LATEST NEGOTIATED AGREEMENT HAD EXPIRED AT THE TIME OF THE
ALLEGED UNILATERAL CHANGE, THE RESPONDENT CONTENDS THAT THE WAIVER
CONTAINED THEREIN SURVIVED THE EXPIRATION OF THE AGREEMENT AS A TERM AND
CONDITION OF EMPLOYMENT, CITING THE FEDERAL LABOR RELATIONS COUNCIL'S
(THE COUNCIL) DECISION IN INTERNAL REVENUE SERVICE, OGDEN SERVICE
CENTER, AND INTERNAL REVENUE SERVICE, ET AL, FLRC NO. 77A-40, REPORT NO.
147 (MARCH 23, 1978).
THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
THE COMPLAINANT HAS BEEN THE EXCLUSIVE REPRESENTATIVE FOR A UNIT OF
THE RESPONDENT'S EMPLOYEES SINCE 1962. CONSECUTIVE NEGOTIATED
AGREEMENTS HAVE BEEN IN EFFECT SINCE THAT TIME. THE PARTIES' LATEST
AGREEMENT WAS ENTERED INTO ON SEPTEMBER 20, 1974 AND WAS AMENDED, IN
PART, ON SEPTEMBER 20, 1976. THE AGREEMENT EXPIRED BY ITS TERMS ON
SEPTEMBER 19, 1977, AND IT WAS EXTENDED BY MUTUAL AGREEMENT UNTIL
NOVEMBER 19, 1977. ARTICLE 4 OF THE PARTIES' SEPTEMBER 20, 1974
NEGOTIATED AGREEMENT DEALS WITH THE EXTENT OF THE PARTIES' BARGAINING
OBLIGATION. SECTION 1 OF ARTICLE 4 DEFINES CONSULTATION AS A SEEKING OF
THE VIEWS OF THE OTHER PARTY WHICH RESULTS IN AN "OBJECTIVE EXPLORATION
AND CONSIDERATION" OF THOSE VIEWS. SECTION 1.B(3) STATES THAT
"CONSULTATION, UNLIKE NEGOTIATION, DOES NOT INVOLVE JOINT DECISION
MAKING, AND THE CONSULTATIVE PROCESS NEED NOT RESULT IN AGREEMENT."
ARTICLE 4 THEN STATES THAT "MATTERS APPROPRIATE FOR CONSULTATION COVER
ASPECTS OF POLICIES, PROCEDURES AND WORKING CONDITIONS THAT WOULD AFFECT
EMPLOYEES IN THE UNIT", INCLUDING THE CHANGING OF ANY WORK PRACTICE.
SECTION 2 OF ARTICLE 4 DEFINES NEGOTIATION AS "DISCUSSION BETWEEN THE
EMPLOYER AND UNION REPRESENTATIVES, ON MATTERS WITHIN THE DISCRETION OF
THE EMPLOYER, LEADING TO A MUTUALLY AGREED TO WRITTEN EMPLOYER-UNION
AGREEMENT." AND IT INDICATES THAT "NEGOTIATION MAY OCCUR AT THE TIME AN
EXISTING AGREEMENT EXPIRES AND A NEW ONE IS REQUIRED." THE NEGOTIATED
AGREEMENT MAKES NO REFERENCE TO THE RESPONDENT'S BLOOD DONOR PROGRAM.
THE POLICIES AND PROCEDURES CONCERNING THE DONATION OF BLOOD TO THE
BLOOD BANK BY THE RESPONDENT'S EMPLOYEES WERE LAST SET FORTH IN A 1975
POLICY STATEMENT KNOWN AS NOSLOUINST 12630.6A. IT WAS STIPULATED THAT
IT HAD BEEN THE LONG-STANDING POLICY OF THE RESPONDENT TO GRANT ITS
EMPLOYEES UP TO FOUR HOURS OF ADMINISTRATIVE LEAVE FOR PARTICIPATION IN
THE BLOOD DONOR PROGRAM. ON APRIL 24, 1978, THE RESPONDENT SENT THE
COMPLAINANT COPIES OF A PROPOSED NEW POLICY STATEMENT CONCERNING THE
BLOOD DONOR PROGRAM, AND A MEMORANDUM SEEKING COMMENTS REGARDING THE
NEW
POLICY. THE MAJOR CHANGES IN THE PROGRAM WOULD HAVE LIMITED THE
GRANTING OF ADMINISTRATIVE LEAVE FOR PARTICIPATION IN THE BLOOD DONOR
PROGRAM TO DAY SHIFT EMPLOYEES AND LIMIT THE PERIOD OF LEAVE GRANTED TO
TWO HOURS. THE COMPLAINANT MADE A TIMELY REQUEST FOR NEGOTIATIONS
CONCERNING THE PROPOSED NEW POLICY PURSUANT TO ITS RIGHTS UNDER SEC.
11(A) OF THE ORDER. THE RESPONDENT TOOK THE POSITION THAT THE PARTIES'
NEGOTIATED AGREEMENT, AT ARTICLE 4 CONTAINED A WAIVER OF THE
COMPLAINANT'S SEC. 11(A) BARGAINING RIGHTS, AND THAT, WHILE THE
AGREEMENT HAD TERMINATED, THE WAIVER CONTINUED AS A TERM AND CONDITION
OF EMPLOYMENT, CITING THE COUNCIL'S OGDEN SERVICE CENTER DECISION,
ABOVE. UNDER THESE CIRCUMSTANCES, THE RESPONDENT INDICATED ITS
WILLINGNESS TO CONSULT WITH THE COMPLAINANT, THEREBY FULFILLING ITS
OBLIGATION PURSUANT TO ARTICLE 4 OF THE AGREEMENT. AS THE PARTIES WERE
UNABLE TO RESOLVE THEIR DIFFERENCES OVER THE EXTENT OF THEIR BARGAINING
OBLIGATION WITH RESPECT TO THE CHANGES IN THE BLOOD DONOR PROGRAM, THERE
WAS NEVER ANY DISCUSSION OF THE SPECIFIC MATTERS RAISED BY THE
RESPONDENT'S NEW POLICY STATEMENT, AND THE RESPONDENT ISSUED A FINAL
VERSION OF THE NEW INSTRUCTION ON JULY 20, 1978. THERE HAS BEEN A
MARKED DECREASE IN THE INCIDENCE OF BLOOD DONATIONS AMONG THE
RESPONDENT'S EMPLOYEES SINCE THE ISSUANCE OF THAT FINAL INSTRUCTION.
THE COUNCIL'S OGDEN SERVICE CENTER DECISION, CITED ABOVE, INDICATED
IN PERTINENT PART, THAT:
IN OUR VIEW, EXISTING PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING
CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED
AGREEMENT, CONTINUE AS
ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT, ABSENT AN
EXPRESS AGREEMENT BY THE
PARTIES THAT SUCH PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS
TERMINATE UPON THE EXPIRATION OF THE AGREEMENT OR UNLESS OTHERWISE
MODIFIED IN A MANNER
CONSISTENT WITH THE ORDER.
THUS, BY THE TERMS OF THE COUNCIL'S OGDEN DECISION, IT IS APPROPRIATE
TO HAVE ONE PORTION OF A NEGOTIATED AGREEMENT, SEC. 2 OF ARTICLE 4 IN
THIS CASE, SUPERCEDE OR NEGATE ANOTHER PORTION OF THE AGREEMENT UPON THE
EXPIRATION OF THAT AGREEMENT.
IN THE AUTHORITY'S VIEW, SEC. 2, ARTICLE 4 OF THE PARTIES' SEPTEMBER
20, 1974 AGREEMENT, WHICH, AS NOTED ABOVE, INDICATED THAT "NEGOTIATIONS
MAY OCCUR AT THE TIME AN EXISTING AGREEMENT EXPIRES AND A NEW ONE IS
REQUIRED," BECAME OPERATIVE AT THE TIME THE PARTIES' AGREEMENT
TERMINATED ON NOVEMBER 19, 1977, AND IT IS THEREFORE UNNECESSARY FOR THE
AUTHORITY TO REACH THE QUESTION OF WHETHER SEC. 1, ARTICLE 4 OF THE
PARTIES' AGREEMENT CONSTITUTED A WAIVER BY THE UNION OF ITS 11(A)
BARGAINING RIGHTS OR WHETHER SUCH A WAIVER WOULD HAVE SURVIVED THE
AGREEMENT'S TERMINATION PURSUANT TO PRINCIPLES SET FORTH IN THE
COUNCIL'S OGDEN DECISION. THE PARTIES HEREIN HAD BEGUN NEGOTIATIONS FOR
A NEW AGREEMENT PRIOR TO THE DATE ON WHICH THE SEPTEMBER 20, 1974
AGREEMENT TERMINATED AND THE PARTIES WERE STILL ENGAGED IN NEGOTIATIONS
FOR A NEW AGREEMENT DURING THE PERIOD BETWEEN THE DATE OF THE ACTIVITY'S
SUBMISSION TO THE UNION OF ITS PROPOSED NEW INSTRUCTION CONCERNING BLOOD
DONATIONS AND THE DATE OF THE UNILATERAL IMPLEMENTATION OF THAT POLICY
BY THE RESPONDENT. WHILE THE BLOOD DONOR PROGRAM WAS NOT COVERED BY THE
PARTIES' SEPTEMBER 20, 1974 AGREEMENT, THE CHANGES BROUGHT ABOUT BY THE
NEW POLICY REGARDING BLOOD DONATIONS FALL WITHIN THE DEFINITION OF
MATTERS REQUIRING NEGOTIATION BY THE TERMS OF THE PARTIES' OWN
AGREEMENT, AS THEY ARE A "MATTER WITHIN THE DISCRETION OF THE EMPLOYER"
RELATED TO PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS OR OTHER RELATIONSHIPS. THEREFORE, THE AUTHORITY FINDS THAT
THE RESPONDENT VIOLATED SEC. 19(A)(1) AND (6) OF THE ORDER BY REFUSING
TO NEGOTIATE WITH THE UNION REGARDING CHANGES IN ITS BLOOD DONOR PROGRAM
AS PROPOSED ON APRIL 24, 1978, AND IMPLEMENTED ON JULY 20, 1978, BASED
ON ITS INCORRECT INTERPRETATION OF THE PARTIES' NEGOTIATED AGREEMENT.
MOREOVER, THE AUTHORITY FINDS THAT THE ISSUES RAISED BY THE CHANGES IN
THE BLOOD DONOR PROGRAM RELATE TO EXISTING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF
SEC. 11(A) OF THE ORDER. IN SO FINDING, THE AUTHORITY REJECTS THE
RESPONDENT'S CONTENTION THAT THE CHANGES EFFECTUATED PURSUANT TO THE
REVISED INSTRUCTION CONCERNING THE BLOOD DONOR PROGRAM WERE RESERVED TO
MANAGEMENT UNDER ITS SEC. 12(B)(3) RIGHT TO RELIEVE EMPLOYEES FROM
DUTIES BECAUSE OF LACK OF WORK OR FOR OTHER LEGITIMATE REASONS OR ITS
SEC. 12(B)(4) RIGHT TO MAINTAIN THE EFFICIENCY OF GOVERNMENT OPERATIONS
ENTRUSTED TO THEM. IN THIS REGARD, THE RESPONDENT HAS PROVIDED NO BASIS
TO SUPPORT THE CONTENTION THAT THEY HAD A MANAGEMENT RIGHT TO
UNILATERALLY MAKE CHANGES IN THE ASPECTS OF THE BLOOD DONOR PROGRAM
WHICH WERE AT ISSUE, AS NO EVIDENCE WAS PRESENTED AS TO THE RELATIONSHIP
BETWEEN THE ISSUES RAISED BY CHANGES IN THE BLOOD DONOR PROGRAM AND THE
RESERVED MANAGEMENT RIGHTS SET FORTH IN SEC. 12(B)(3) AND (4).
ACCORDINGLY, THE RESPONDENT'S UNILATERAL CHANGES CONCERNING THESE
MATTERS WAS IN DEROGATION OF ITS BARGAINING RESPONSIBILITY UNDER THE
ORDER.
ORDER
PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
U.S. NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, WITH REGARD TO
CHANGES IN PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
CONDITION, INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES AND PROVISIONS OF THE ORDER;
(A) RESCIND NOSLOU INSTRUCTION 12630.6B, DEALING WITH THE BLOOD DONOR
PROGRAM, DATED JULY 20, 1978.
(B) UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,
CONCERNING PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES REPRESENTED BY LOCAL LODGE 830, INCLUDING
PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
(C) POST AT ITS FACILITY AT THE U.S. NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY COMMANDING OFFICER, U.S.
NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., MAY 28, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO NEGOTIATE WITH LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, WITH REGARD TO
CHANGES IN PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS, INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND NOSLOU INSTRUCTION 12630.6B, DEALING WITH THE BLOOD
DONOR PROGRAM, DATED JULY 20, 1978.
WE WILL, UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH LOCAL LODGE
830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, CONCERNING PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING
WORKING CONDITIONS OF EMPLOYEES REPRESENTED BY LOCAL LODGE 830,
INCLUDING PROPOSED DIRECTIVES RELATING TO SUCH MATTERS.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1776
PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GEORGIA, 30309,
AND WHOSE TELEPHONE NUMBER IS: (404) 881-2324.