09:0762(95)CA - HQ, 77th Army Command, Fort Totten, NY and AFGE Local 2739 -- 1982 FLRAdec CA
[ v09 p762 ]
09:0762(95)CA
The decision of the Authority follows:
9 FLRA No. 95
HEADQUARTERS, 77TH U.S. ARMY COMMAND
FORT TOTTEN, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2739, AFL-CIO
Charging Party
Case No. 2-CA-498
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHROITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE
AUTHORITY FINDS:
ACCORDING TO THE PARTIES' STIPULATION OF FACTS, THE CHARGING PARTY,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO
(UNION), IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
NONPROFESSIONAL EMPLOYEES. THE UNION AND THE RESPONDENT ARE PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT WHICH HAS BEEN IN EFFECT AT ALL TIMES
MATERIAL HEREIN. IN OR ABOUT JANUARY 1980, ACTING UNION PRESIDENT
BRYANT WAS TOLD BY ONE OF THE SHOP STEWARDS THAT THE RESPONDENT PLANNED
TO CHANGE THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA
MAINTENANCE SUPPORT ACTIVITIES (AMSA), FROM MONDAY THROUGH FRIDAY, TO
TUESDAY THROUGH SATURDAY. APPROXIMATELY 30 WAGE GRADE EMPLOYEES
ASSIGNED TO THE AMSA WOULD BE AFFECTED BY THE PROPOSED CHANGE. ON MARCH
4, 1980, THE PARTIES MET AND BRYANT REQUESTED NEGOTIATIONS OVER THE
PROPOSED CHANGE IN THE WORKWEEK. THE RESPONDENT REPLIED THAT THE ISSUE
WAS NOT NEGOTIABLE. BRYANT PROPOSED THAT EITHER UNIT EMPLOYEES
VOLUNTEER FOR SATURDAY WORK ON A "ROUND-ROBIN" BASIS, OR THAT THE
RESPONDENT PAY OVERTIME FOR A MONDAY THROUGH SATURDAY WORKWEEK. THE
RESPONDENT REJECTED THE VOLUNTEER APPROACH ON THE GROUND THAT IT HAD NOT
WORKED IN THE PAST, AND ALSO REJECTED THE OVERTIME PROPOSAL BECAUSE NO
MONEY WAS AVAILABLE TO PAY OVERTIME. THE RESPONDENT REFUSED TO
NEGOTIATE OVER THE PROPOSED CHANGE. BY LETTER DATED JUNE 10, 1980, THE
CHIEF OF MANAGEMENT EMPLOYEE RELATIONS AT FORT INDIANTOWN GAP, INFORMED
THE RESPONDENT THAT THE PROPOSED CHANGE WAS A PERMISSIVE SUBJECT OF
BARGAINING, AND FURTHER THAT THE DEPARTMENT OF THE ARMY HAD ADVISED IT
NOT TO BARGAIN OVER THE PROPOSED CHANGE. THEREAFTER, ON JUNE 17, 1980,
THE PARTIES AGAIN MET AND THE UNION AGAIN REQUESTED NEGOTIATIONS,
SUGGESTING EITHER VOLUNTEERS OR PAID OVERTIME FOR SATURDAY WORK. THE
RESPONDENT AGAIN REFUSED TO NEGOTIATE, STATING THAT THE CHANGE WAS TO 0E
INSTITUTED ON A TEMPORARY BASIS. ON JULY 7, 1980, THE RESPONDENT
UNILATERALLY IMPLEMENTED THE CHANGE IN THE WORKWEEK REFERRED TO ABOVE.
THE COMPLAINT ALLEGES THAT, BY REFUSING TO NEGOTIATE IN GOOD FAITH WITH
THE UNION CONCERNING THE CHANGE OF WORK SCHEDULES FOR UNIT EMPLOYEES,
THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. /1/
THE GENERAL COUNSEL CONCEDES THAT THE DECISION TO CHANGE THE UNIT
EMPLOYEES' WORKWEEK HEREIN WAS A PERMISSIVE SUBJECT OF BARGAINING UNDER
SECTION 7106(B)(1) OF THE STATUTE, /2/ AND THAT THE RESPONDENT AT ITS
ELECTION COULD CHOOSE NOT TO BARGAIN THEREON. /3/ HOWEVER, THE GENERAL
COUNSEL CONTENDS THAT THE RESPONDENT WAS REQUIRED TO NEGOTIATE
CONCERNING THE IMPACT AND PROCEDURES FOR IMPLEMENTING THE DECISION TO
CHANGE THE EMPLOYEES' WORKWEEK, PURSUANT TO SECTION 7106(B)(2) AND (3)
OF THE STATUTE, /4/ AND THAT ITS REFUSAL TO DO SO CONSTITUTED A
VIOLATION OF SECTION 7116(A)(1) AND (5). THE AUTHORITY AGREES. THUS,
AS PREVIOUSLY INDICATED, THE RESPONDENT ON SEVERAL OCCASIONS REJECTED
REQUESTS BY THE UNION TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION
PROPOSALS TO THE EFFECT THAT EMPLOYEES WORKING ON SATURDAYS AS A RESULT
OF THE RESPONDENT'S DECISION TO CHANGE THE WORKWEEK BE VOLUNTEERS OR
RECEIVE OVERTIME PAY FOR SUCH WORK. ACCORDINGLY, THE AUTHORITY FINDS
THAT, BY SUCH REFUSAL TO NEGOTIATE CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE CHANGES IN THE WORKWEEK, THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE. SEE NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, 6 FLRA NO. 22(1981). SEE ALSO INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, FRESNO, CALIFORNIA AND NATIONAL TREASURY
EMPLOYEES UNION, 7 FLRA NO. 54(1981).
THE GENERAL COUNSEL HAS REQUESTED THAT, AS A REMEDY, THE AUTHORITY
ORDER A RETURN TO THE STATUS QUO ANTE. HOWEVER, NOTING PARTICULARLY THE
GENERAL COUNSEL'S CONCESSION THAT THE DECISION TO CHANGE THE WORKWEEK
WAS A RESERVED RIGHT UNDER SECTION 7106(B)(1) IN THE CIRCUMSTANCES OF
THIS CASE, THE AUTHORITY FINDS THAT THE REQUESTED REMEDY IS NOT
WARRANTED HEREIN WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF THE
RESPONDENT'S DECISION TO CHANGE THE WORKWEEK. THUS, BALANCING THE
NATURE AND CIRCUMSTANCES OF THE VIOLATION AGAINST THE DEGREE OF
DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD APPARENTLY BE CAUSED BY
SUCH A REMEDY, AND TAKING INTO CONSIDERATION THE VARIOUS FACTORS SET
FORTH IN FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111(1982), THE
AUTHORITY CONCLUDES THAT AN ORDER REQUIRING THE RESPONDENT TO BARGAIN
UPON REQUEST ABOUT IMPACT AND IMPLEMENTATION WILL BEST EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE. SEE U.S. CUSTOMS SERVICE, REGION
V, NEW ORLEANS, LOUISIANA, 9 FLRA NO. 15(1982). IN SO CONCLUDING, THE
AUTHORITY NOTES THAT THE GENERAL COUNSEL'S REQUEST FOR A STATUS QUO ANTE
REMEDY IS UNSUPPORTED BY ANY REASONS WHY SUCH A REMEDY SHOULD BE GRANTED
IN THE CIRCUMSTANCES PRESENTED HEREIN.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT HEADQUARTERS, 77TH U.S. ARMY COMMAND, FORT
TOTTEN, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE WORKWEEK FOR UNIT EMPLOYEES ASSIGNED TO THE AREA
MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE
NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO
NONPROFESSIONAL EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF THE DECISION TO
DO SO, AND AFFORDING IT THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT
CONSONANT WITH LAW AND REGULATION CONCERNING THE PROCEDURES THAT
MANAGEMENT WILL OBSERVE IN EFFECTING SUCH CHANGE AND CONCERNING THE
IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF 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 STATUTE:
(A) UPON REQUEST, NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
CONCERNING THE PROCEDURES MANAGEMENT WILL OBSERVE IN EFFECTING THE
CHANGE IN THE WORKWEEK OF EMPLOYEES ASSIGNED TO THE AREA MAINTENANCE
SUPPORT ACTIVITIES, AND CONCERNING THE IMPACT OF SUCH CHANGE ON
ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT ITS FACILITIES AT HEADQUARTERS, 77TH U.S. ARMY COMMAND,
FORT TOTTEN, NEW YORK, 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 COMMANDER, HEADQUARTERS, 77TH
U.S. ARMY COMMAND, FORT TOTTEN, NEW YORK, 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 SAID 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 REGION II, ROOM 1751, 26
FEDERAL PLAZA, NEW YORK, 10007, 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., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 CHANGE THE WORKWEEK OF UNIT EMPLOYEES ASSIGNED TO THE
AREA MAINTENANCE SUPPORT ACTIVITIES, WITHOUT FIRST NOTIFYING THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF OUR NONPROFESSIONAL EMPLOYEES, OF OUR
DECISION TO MAKE SUCH CHANGE, AND AFFORDING IT THE OPPORTUNITY TO
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATION, CONCERNING
THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EFFECTUATING THE CHANGE
AND CONCERNING THE IMPACT SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED
EMPLOYEES.
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, NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2739, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE
OF OUR NONPROFESSIONAL EMPLOYEES, TO THE EXTENT CONSONANT WITH LAW AND
REGULATION, CONCERNING THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTING THE CHANGE IN THE WORKWEEK OF EMPLOYEES ASSIGNED TO THE AREA
MAINTENANCE SUPPORT ACTIVITIES, AND CONCERNING THE IMPACT SUCH CHANGE
WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT 0E 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, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, N.Y., 10007 AND
WHOSE TELEPHONE NUMBER IS: (212) 581-8100, EXT. 7233.
--------------- FOOTNOTES$ ---------------
/1/ SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
* * * *
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER(.)
/2/ SEC. 7106. MANAGEMENT RIGHTS
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
/3/ ACCORDINGLY, IT IS UNNECESSARY FOR THE AUTHORITY TO REACH OR PASS
UPON THAT QUESTION.
/4/ SECTION 7106(B)(2) AND (3) PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.