09:0774(97)CA - Naval Amphibious Base, Little Creek, Norfolk, Virginia and AFGE Local 1625 -- 1982 FLRAdec CA

 9 FLRA No. 97
 
 NAVAL AMPHIBIOUS BASE,
 LITTLE CREEK, NORFOLK, VIRGINIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1625, AFL-CIO
 Charging Party
 
                                           Case No. 3-CA-1449
 
                            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 AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
 FINDS:
 
    THE GENERAL COUNSEL ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) WHEN, BEGINNING ON OR ABOUT AUGUST 25, 1980, IT
 FAILED AND REFUSED TO NEGOTIATE WITH REGARD TO THE IMPACT AND
 IMPLEMENTATION OF A CHANGE IN WORKING CONDITIONS.
 
    AT ALL TIMES MATERIAL HEREIN THE CHARGING PARTY, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1625, AFL-CIO (THE UNION) HAS BEEN THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF NON-APPROPRIATED FUND
 EMPLOYEES IN THE RECREATIONAL SERVICES DEPARTMENT OF THE NAVAL
 AMPHIBIOUS BASE, LITTLE CREEK, NORFOLK, VIRGINIA (THE RESPONDENT), AND A
 COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES HAS BEEN IN EFFECT.
 ON OR ABOUT AUGUST 20, 1980, AN AGENT OF THE RESPONDENT NOTIFIED THE
 UNION TELEPHONICALLY OF ITS INTENTION TO ISSUE AN "ADVANCE NOTICE OF
 PROPOSED ADVERSE ACTION" TO TWO EMPLOYEES.  THE SPECIFIC ADVERSE ACTION
 WAS A CHANGE IN THEIR STATUS FROM REGULAR PART-TIME TO INTERMITTENT.
 THE UNION, IN WRITING, REQUESTED NEGOTIATIONS REGARDING WHAT IT
 CONTENDED WAS A PROPOSED CHANGE IN WORKING CONDITIONS AND REQUESTED
 THAT
 ALL ACTIONS BE HELD IN ABEYANCE PENDING THE COMPLETION OF THE BARGAINING
 PROCESS.  THE RESPONDENT REPLIED THAT THE MATTER INVOLVED THE EXERCISE
 OF A RESERVED MANAGEMENT RIGHT, PARTICULARLY AS IT WAS INTEGRALLY
 RELATED TO THE NUMBERS AND TYPES OF EMPLOYEES ASSIGNED TO A WORK PROJECT
 OR TOUR OF DUTY AND, HENCE, WAS NOT WITHIN THE DUTY TO BARGAIN SINCE THE
 RESPONDENT "DID NOT ELECT TO BARGAIN" ON THE MATTER.  /1/ A "NOTICE OF
 ADVERSE ACTION" WAS ISSUED TO THE TWO EMPLOYEES INVOLVED ON SEPTEMBER 5,
 1980, INDICATING AN EFFECTIVE DATE OF SEPTEMBER 26, 1980.  AS A
 CONSEQUENCE OF THEIR CHANGE IN STATUS, THE TWO EMPLOYEES SUFFERED A
 REDUCTION OF WORKING HOURS;  LOST THEIR ELIGIBILITY FOR PAID ANNUAL,
 SICK AND HOLIDAY LEAVE, AND HEALTH BENEFITS;  WERE EXCLUDED FROM THE
 BARGAINING UNIT;  AND FELL INTO A LOWER RETENTION GROUP FOR
 REDUCTION-IN-FORCE PURPOSES.
 
    THE GENERAL COUNSEL CONTENDS THAT, PURSUANT TO SECTION 7106(B)(2) AND
 (3) OF THE STATUTE, /2/ THE RESPONDENT WAS OBLIGATED TO AFFORD THE UNION
 REASONABLE NOTICE OF, AND AN OPPORTUNITY TO NEGOTIATE OVER, THE
 PROCEDURES TO BE USED IN EXERCISING ITS AUTHORITY, AND APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY ITS DECISION TO CHANGE
 THE STATUS OF THE TWO EMPLOYEES.  THE GENERAL COUNSEL FURTHER CONTENDS
 THAT, WHILE THE PARTIES' COLLECTIVE BARGAINING AGREEMENT CONTAINS A
 PROVISION RELATING TO THE PROCEDURES TO BE FOLLOWED IN EFFECTUATING
 NON-DISCIPLINARY ADVERSE ACTIONS SUCH AS THOSE INVOLVED HEREIN, THE
 AGREEMENT DOES NOT CONSTITUTE A CLEAR AND UNMISTAKABLE WAIVER OF THE
 UNION'S RIGHT TO BARGAIN, AND THAT THE RESPONDENT'S FAILURE TO FULFILL
 ITS BARGAINING OBLIGATION CONSTITUTED A VIOLATION OF THE STATUTE.  AS A
 REMEDY, THE GENERAL COUNSEL REQUESTS THAT THE AUTHORITY ORDER THE
 RESPONDENT TO:  (1) RETURN TO THE STATUS QUO ANTE;  (2) MAKE THE
 EMPLOYEES WHOLE FOR THEIR LOSSES;  AND (3) CEASE AND DESIST FROM ITS
 ACTIONS AND POST AN APPROPRIATE NOTICE.
 
    THE RESPONDENT CONTENDS, INTER ALIA, THAT ITS ACTIONS DID NOT
 CONSTITUTE A CHANGE IN EXISTING PERSONNEL POLICIES, PRACTICES OR WORKING
 CONDITIONS, AND THAT IT HAD NO OBLIGATION TO BARGAIN ABSENT SUCH A
 CHANGE.  IN THIS REGARD, THE RESPONDENT ASSERTS THAT, WHILE THERE IS A
 DUTY TO BARGAIN CONCERNING BOTH THE PROCEDURES TO BE FOLLOWED IN
 EFFECTUATING NON-DISCIPLINARY ADVERSE ACTIONS AND APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED THEREBY, "THE PARTIES DID,
 IN FACT, BARGAIN INTO THEIR AGREEMENT SUCH PROCEDURES AND ARRANGEMENTS
 SPECIFICALLY APPLICABLE TO THE EFFECTUATION OF NON-DISCIPLINARY ADVERSE
 ACTIONS INVOLVING ANY UNIT EMPLOYEES." (EMPHASIS IN ORIGINAL.) /3/
 MOREOVER, THE RESPONDENT ASSERTS THE RECORD EVIDENCE DEMONSTRATES THAT
 THE AGREED-UPON PROCEDURES AND ARRANGEMENTS WERE INTERPRETED AND
 APPLIED
 HEREIN EXACTLY AS THEY HAD BEEN IN ALL PREVIOUS ADVERSE ACTION CASES
 SINCE THE EXECUTION OF THE PARTIES' AGREEMENT, AND THEREFORE NO CHANGE
 IN PERSONNEL POLICY OCCURRED.
 
    THE AUTHORITY CONCLUDES THAT THE RESPONDENT DID NOT VIOLATE SECTION
 7116(A)(1) AND (5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS CASE.
 THE RECORD DOES NOT ESTABLISH THAT THE RESPONDENT, IN IMPLEMENTING THE
 TWO NONDISCIPLINARY ADVERSE ACTIONS, ESTABLISHED NEW, OR CHANGED
 EXISTING, PERSONNEL POLICIES, PRACTICES OR MATTERS AFFECTING WORKING
 CONDITIONS.  ON THE CONTRARY, THE RECORD EVIDENCE ESTABLISHES THAT THE
 PROCEDURES FOLLOWED BY THE RESPONDENT HEREIN WERE IN NO DIFFERENT FROM
 THOSE PRESCRIBED BY THE PARTIES' NEGOTIATED AGREEMENT OR THOSE WHICH HAD
 BEEN UTILIZED IN PREVIOUS INSTANCES OF NONDISCIPLINARY ADVERSE ACTIONS
 RESULTING IN CHANGES OF EMPLOYEE STATUS OR CATEGORY.  THUS, IT CANNOT BE
 FOUND THAT THE RESPONDENT INCURRED ANY OBLIGATION TO BARGAIN BY ITS
 EFFECTUATION OF NONDISCIPLINARY ADVERSE ACTIONS AGAINST THE TWO
 EMPLOYEES.  IN THE ABSENCE OF EVIDENCE THAT THE RESPONDENT'S ACTIONS
 CONSTITUTED A CHANGE IN PERSONNEL POLICIES, PRACTICES OR MATTERS
 AFFECTING WORKING CONDITIONS, IT HAS NOT BEEN ESTABLISHED THAT A
 VIOLATION OF THE STATUTE OCCURRED.  /4/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-1449 BE, AND
 IT HEREBY IS, DISMISSED.
 
 Issued, Washington, D.C., August 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
 
    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 AN ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR
 TOUR OF DUTY . . . .
 
    /2/ SECTION 7106(B)(2) AND (3) PROVIDE AS FOLLOWS:
 
    (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.
 
    /3/ SPECIFICALLY, THE RESPONDENT CITES ARTICLE XX OF THE PARTIES'
 AGREEMENT, ENTITLED "ADVERSE ACTIONS," WHICH PROVIDES IN PERTINENT PART:
 
    SECTION 1.  FOR PURPOSES OF THIS AGREEMENT, ADVERSE ACTIONS ARE THOSE
 DESCRIBED IN SECTION
 
    2 BELOW WHEN TAKEN AGAINST REGULAR FULL TIME AND REGULAR PART TIME
 EMPLOYEES.
 
    SECTION 2.  ADVERSE ACTIONS INCLUDE BOTH DISCIPLINARY AND
 NONDISCIPLINARY TYPES.
 
   *          *          *          *
 
 
    B.  NONDISCIPLINARY TYPES ARE:
 
    (1) FURLOUGH . . . .
 
    (2) REDUCTION IN RANK OR COMPENSATION, EXCEPT TERMINATION OF
 TEMPORARY PROMOTION.
 
    (3) SEPARATION OR DEMOTION DUE TO REDUCTION IN FORCE.
 
    SECTION 4.  GRIEVANCES AGAINST THE ABOVE DESCRIBED NONDISCIPLINARY
 ADVERSE ACTIONS MAY BE
 
    FILED ONLY ON THE BASIS OF ALLEGED PROCEDURAL ERRORS.  COMPLAINTS
 AGAINST THESE ACTIONS
 
    ALLEGING DISCRIMINATION MUST BE PROCESSED UNDER THE CIVIL SERVICE
 REGULATIONS CONTAINED IN
 
    BOOK 713 OF THE FEDERAL PERSONNEL MANUAL SYSTEM.
 
    SECTION 5.  FOR ALL ADVERSE ACTIONS, EXCEPT REDUCTION IN FORCE, THE
 EMPLOYEE WILL BE GIVEN
 
    ADVANCE WRITTEN NOTICE PROPOSING THE ACTION.  THE ADVANCE NOTICE WILL
 CONTAIN SPECIFICALLY AND
 
    IN DETAIL, THE FULL CHARGES AND FULL SUPPORTING REASONS FOR PROPOSING
 THE ACTION.  THE NOTICE
 
    SHALL INFORM THE EMPLOYEE OF HIS RIGHT TO A TEN (10) DAY ANSWERING
 PERIOD WITHIN WHICH HE MAY
 
    REPLY TO THE CHARGES ORALLY AND/OR IN WRITING.  THE ADVANCE NOTICE
 PROPOSING ADVERSE ACTION
 
    WILL BE DELIVERED TO THE EMPLOYEE AT LEAST THIRTY (30) CALENDAR DAYS
 IN ADVANCE OF ANY ACTION
 
    TAKEN AS THE RESULT OF THE PROPOSAL CONTAINED THEREIN.
 
    SECTION 6.  AFTER ALL EVIDENCE RELATING TO THE CHARGES HAS BEEN
 CONSIDERED, INCLUDING THE
 
    EMPLOYEE'S ORAL AND/OR WRITTEN REPLY, IF ANY, THE DECIDING OFFICIAL
 WILL INFORM THE EMPLOYEE
 
    IN WRITING OF HIS DECISION.  THE WRITTEN DECISION MUST BE MADE AND
 DELIVERED PROMPTLY ON
 
    EXPIRATION OF THE EMPLOYEE'S TEN (10) DAY ANSWERING PERIOD OR WITHIN
 TEN (10) CALENDAR DAYS
 
    AFTER RECEIPT OF HIS ORAL AND/OR WRITTEN REPLY, WHICHEVER OCCURS
 FIRST.  THE DECISION LETTER
 
    WILL STATE WHAT CHARGES ARE SUSTAINED AND GIVE THE DATE ON WHICH THE
 ACTION IS TO BECOME
 
    EFFECTIVE.  IN THE DECISION LETTER, THE EMPLOYEE MUST BE FULLY
 ADVISED OF HIS GRIEVANCE
 
    RIGHTS.
 
    SECTION 7.  THE EMPLOYER AGREES TO FURNISH THE EMPLOYEE AN EXTRA COPY
 OF ALL PROPOSALS AND
 
    DECISION LETTERS ON ADVERSE ACTIONS FOR DELIVERY TO THE UNION, IF THE
 EMPLOYEE SO
 
    CHOOSES.  WHERE THE EMPLOYEE GRIEVES SUCH ACTION, COPIES OF ALL
 CORRESPONDENCE THEREAFTER WILL
 
    BE SENT TO THE UNION.
 
    /4/ SEE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, CLEVELAND,
 OHIO, 3 FLRA 656(1980), WHEREIN A COMPLAINT ALLEGING A FAILURE TO
 BARGAIN OVER A CHANGE IN EXISTING CONDITIONS OF EMPLOYMENT WAS DISMISSED
 ON THE BASIS THAT IT HAD NOT BEEN ESTABLISHED THAT SUCH A CHANGE HAD
 ACTUALLY OCCURRED.