[ v16 p528 ]
16:0528(74)CA
The decision of the Authority follows:
16 FLRA No. 74
UNITED STATES DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, D.C., AND ITS CENTRAL REGION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 88
Charging Party
Case No. 5-CA-592
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision finding
that Respondent had engaged in the unfair labor practices alleged in the
complaint and recommending that it cease and desist therefrom and take
certain affirmative action. The Respondent filed exceptions with
respect to the Judge's Decision and the Charging Party filed a response
to Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order, except as modified
herein.
In agreement with the Judge's conclusion, the Authority finds that
the Respondent violated section 7116(a)(1) and (5) of the Statute by (1)
its failure to give the union adequate prior notice of its decision to
change the scheduling of holiday work so as to afford the union the
opportunity to request bargaining concerning the impact and
implementation of the change; and (2) by its subsequent refusal, after
implementation of its decision, to honor the union's request to bargain
over the impact of the change. In so finding, the Authority notes that
where an Agency in exercising a management right under section 7106 of
the Statute decides to change a condition of employment of unit
employees, there exists a statutory duty to negotiate if such change
results in more than a de minimis impact upon unit employees or such
impact is reasonably foreseeable. See U.S. Government Printing Office,
13 FLRA No. 39 (1983) and Department of Health and Human Services,
Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984).
/1/
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 the Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
1. Cease and desist from:
(a) Instituting a change in the assignment of work on holidays
without first notifying the exclusive bargaining representative, the
National Treasury Employees Union and its Chapter 88, and affording it
the opportunity to negotiate concerning the impact and implementation of
such change.
(b) Refusing to negotiate with the National Treasury Employees Union
and its Chapter 88 concerning the impact and implementation of any
change in the assignment of work on holidays.
(c) Dealing directly with bargaining unit employees represented by
the National Treasury Employees Union and its Chapter 88 with respect to
personnel policies and practices or other matters affecting the working
conditions of employees, particularly including the soliciting of
suggestions concerning the procedures to be used in selecting employees
for work on holidays.
(d) In any like or related manner, interfering with, restraining, or
coercing its employees in the rights assured by the Federal Service
Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the National Treasury Employees Union and its Chapter 88
of any decision to change the assignment of holiday work and, where
requested, negotiate concerning the impact and implementation of such
change.
(b) Post at its facilities 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 an appropriate official 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, 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., November 15, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, 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 institute a change in the assignment of work on holidays
without first notifying the exclusive bargaining representative, the
National Treasury Employees Union and its Chapter 88, and affording such
representative the opportunity to negotiate concerning the impact and
implementation of such change.
WE WILL NOT refuse to bargain with the National Treasury Employees
Union and its Chapter 88 concerning the impact and implementation of the
change in the assignment of work on holidays.
WE WILL NOT deal directly with bargaining unit employees represented
by the National Treasury Employees Union and its Chapter 88 with respect
to personnel policies and practices or other matters affecting the
working conditions of employees, particularly including the soliciting
of suggestions concerning the procedures to be used in selecting
employees for work on holidays.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the rights assured by the Federal Service
Labor-Management Relations Statute.
WE WILL notify the National Treasury Employees Union and its Chapter
88 of any change in the assignment of holiday work and, where requested,
negotiate, concerning the impact and implementation of such change.
(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, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604; telephone No.
(312) 886-3468.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
WASHINGTON, D.C., AND ITS CENTRAL REGION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 88
Charging Party
Case No. 5-CA-592
Imelda M. Koett Kirk, Esq.
Toby Bishop, Esq.
For the Respondent
Michael Barkow, Esq.
For the Charging Party
Charles R. Prock, Esq.
Arlander Keys, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq. It
was instituted by the Regional Director of Region 5 by the issuance of a
complaint and notice of hearing on September 23, 1980 based upon a
charge filed on June 26, 1980 by the Charging Party (also referred to
herein as the Union).
The complaint alleges that Respondent refused to bargain in violation
of Section 7116(a)(5) and (1) by unilaterally changing a past practice
concerning the scheduling of holiday work without providing the Union
with adequate notice and/or an opportunity to bargain concerning the
change. It is further alleged that Respondent also violated Section
7116(a)(5) and (1) when it bypassed the Union and bargained directly and
individually with bargaining unit employees concerning a matter
affecting working conditions.
A hearing was held in Cincinnati, Ohio at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent and the General Counsel have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. At all times material herein, Respondent has operated and
supervised a facility in Cincinnati, Ohio known as the Bureau of
Alcohol, Tobacco and Firearms Central Regional Office, hereinafter
called the Activity, which Regional office has Area offices in
Cincinnati, Ohio; Indianapolis, Indiana; Louisville, Kentucky;
Cleveland, Ohio; Detroit, Michigan; and Frankfort, Kentucky.
2. At all times material herein, the National Treasury Employees
Union has been the exclusive representative of all non-professional
General Schedule and Wage Grade employees employed by the regional
offices of the Bureau of Alcohol, Tobacco and Firearms, Department of
the Treasury, with certain exclusions.
3. Since September 19, 1977, and at all times material herein, the
Bureau of Alcohol, Tobacco and Firearms and the National Treasury
Employees Union have been, and are now, parties to a collective
bargaining agreement covering the employees in the unit referred to
above.
4. At all times material herein, National Treasury Employees Union,
Chapter 88, has been, and is now, an agent of National Treasury
Employees Union.
5. Past Practice Prior to May 26, 1980
Inspectors employed by the Respondent are assigned to work at
Distilled Spirits Plants owned and operated by private companies. Since
these plants do not honor all Federal holidays, it is necessary three or
four times each year to assign an inspector to work on a Federal holiday
(like President's Day, Memorial Day and Columbus Day) at a particular
plant. By law, Respondent had to have an inspector remain at the plant
the entire time it was in operation. The inspector would report to
work, remove the locks, perform other duties as required during the day,
/2/ and secure the locks at closing time. If the plant were in
operation for eight hours, the inspector was paid for eight hours work
at the regular rate, in addition to the eight hours pay he was already
being paid for the holiday. The method utilized by management to select
inspectors for this assignment was for the supervisor to obtain
volunteers from among the inspectors normally assigned to the particular
plant in question. /3/ Since this informal method was apparently
successful and caused no problems or resulted in grievances, a different
or more formal method of selection was never an issue.
6. Public Law No. 96-39, effective January 1, 1980 made certain
charges which in Respondent's opinion permitted it to make
determinations, on a plant-by-plant basis, that holiday work no longer
required the continued presence of an inspector during the entire time
the plant was in operation. Respondent determined that it was only
necessary to dispatch an inspector to the plant in the morning to unlock
the facilities (and be paid for two hour's work) and to return at the
end of the day to lock the facilities (and again be paid for two hour's
work). This determination was not communicated to the Union.
7. On May 20, 1980 shortly before the Memorial Day holiday on May
26, Officer-in-Charge John Beauchamp, an agent of Respondent, came to
the Government office at the Seagrams's plant to obtain volunteers for
duty on Memorial Day. He first explained Respondent's new procedure for
holiday work (as discussed above) so that any volunteer would know he
would only receive pay for four hours, rather than eight hours, as in
the past. Present at this discussion were employees Clay Ballinger, Tom
Woods and Abrey Milstead. The latter two employees testified at the
hearing and are hereby credited in all respects. The discussions
initiated by Beauchamp lasted about fifteen minutes. Beauchamp raised
the subject of their being a need for a fair system of selecting people
for overtime work. Various suggestions were discussed including length
of overall government service, length of service with this particular
agency, and alphabetical or reverse alphabetical order. Beauchamp even
suggested the possibility of drawing names out of a hat. According to
Milstead, the discussion ended with Beauchamp asking the employees to
discuss it among themselves and see if they could come up with an idea.
8. This meeting was promptly reported to Union President Martin J.
Connell who, on or about May 20, called Beauchamp and challenged his
actions. According to Connell, whom I credit, Beauchamp replied that
(1) no change was being made, (2) employees were volunteering rather
than being required to work, and (3) his conversations with employees
were discussions, not negotiations. By letter dated May 21 to
Respondent's Regional Personnel Officer, Robert H. Lumpkin, the Union
made a request to bargain about the substance, impact and implementation
of Respondent's decision to change its past practice with respect to
working on Federal holidays. The Union also protested Respondent's
failure to notify it of the change and Respondent's actions in bypassing
the Union and dealing directly with individual employees.
9. On May 22, Beauchamp asked Milstead if he was still interested in
working on Memorial Day and told him the old policy had changed, so he
would only get paid for four hours. Milstead declined. Beauchamp said
that he might have to use some system of selection for the coming
holiday because he needed two employees, but only had one volunteer.
Beauchamp "rehashed" the same systems of scheduling that he had brought
up at the previous meeting. Ballinger and Woods were present and
participated in the brief discussion lasting only five or ten minutes.
According to Woods, it was on May 22 that Beauchamp said "How do you
guys want to handle this? It's whatever you guys decide." I find that
Beauchamp made this remark and in my opinion it is not significant
whether it occurred on May 20 or May 22. The person who had already
volunteered was Don Coleman. While there, Beauchamp telephoned employee
Jimmie Redeford. When Redeford inquired about the hours he was told
that "the Bureau had decided to count it as two emergency call backs
instead of a regular eight hour tour." Redeford agreed to work.
According to Redeford, whom I credit, he also had a conversation with
either Camper or Beauchamp (both Officers-in-Charge) in which he was
asked his opinion as to whether seniority or alphabetical basis was the
more equitable way to assign overtime work. He replied that he didn't
care for either method.
10. By letter of May 30 (Jt. Exh. No. 3) Respondent replied to the
Union's bargaining request of May 21 and stated that the duties required
on a holiday were properly determined by management and that the method
of determining who receives an assignment to work on a holiday was
governed by Article 23 of the contract, which concern "overtime" (Jt.
Exh. No. 2). Although Respondent's letter characterized the holiday
work as "overtime," it is clear from subsequent correspondence (Jt. Exh.
Nos. 4 and 5) that Coleman and Redeford received holiday pay and not
overtime.
11. By letter of June 24, the Union again requested to negotiate
"concerning the scheduling of a split workday (especially on a holiday)
. . . ." Respondent's reply dated July 1 characterized the Union's
letter as a request "to negotiate a work schedule to cover periods when
no work is required by law" (Jt. Exh. No. 8). The record does not
establish, by testimony or documentary evidence, that Respondent ever
replied affirmatively to the Union's request to bargain.
Issues
A. Whether Respondent had an obligation to bargain concerning his
decision to change a work assignment.
B. Whether Respondent had an obligation to bargain concerning the
impact and implementation of its decision to change an existing practice
with respect to work assignments on Federal holidays.
C. Whether Respondent failed to provide the Union with notice of its
decision.
D. Whether Respondent bypassed the Union and violated 5 U.S.C.
7116(a)(1) and (5) by meeting with bargaining unit employees and
discussing and soliciting suggestions for securing employees to perform
the new work assignment on holidays.
Discussion and Conclusions of Law
A. Past Practice-- Holiday Work
It is clear from the record that a past practice existed whereby
employees were assigned to work and to perform specific duties at
distilleries which were in operation on certain Federal holidays. This
same past practice encompassed a requirement that assigned employees
remain at the plant the entire time it was in operation, whether that be
less than eight hours, more than eight hours, or exactly eight hours.
The employee would be paid at a regular time rate for the number of
hours on duty, in addition to his normal eight hours of pay for the
holiday.
Notwithstanding Respondent's contention that no change in past price
occurred, I have no difficulty on this record in finding and concluding
that on May 20, 1980, the Respondent changed its past practice,
discussed above, and instituted a new practice whereby employees
assigned to work on a Federal holiday were not required to stay on the
premises of the distillery while it was in operation. The direct impact
of this change or employees was that they were required to only spend a
minimum amount of time at the plant and be paid only for four hours of
work (two at the beginning of the day and two at the end of the day),
even though the actual time required to perform their duties may have
only added up to at most a total of two hours altogether. /4/
I also find that a past practice existed with respect to the
procedures followed by Respondent in the selection and assignment of
employees to actually work on Federal holidays. After making a
determination that a particular distillery would be in operation on a
Federal holiday, management representatives at the supervisory level
would obtain volunteers from among the employees. Because employees
were in effect receiving double-time pay for holiday work, there was no
shortage of volunteers. The record in this case demonstrates that with
respect to the Memorial Day holiday, Respondent utilized the same
practice as in the past in selecting employees; that is, it sought
volunteers. However, because the new schedule for holidays would result
in lower pay, it was obvious that the practice of seeking volunteers
might not be as successful as in the past and, therefore, a different
procedure might become necessary. Accordingly, I find that Respondent
did not change its procedures for selection of employees to work on
Federal holidays. Later in this decision, I will discuss the alleged
violation of Section 7116(a)(5) based upon the conversations with
employees initiated by supervisors concerning any new selection
procedures to be utilized in the future.
B. Respondent's Obligation to Bargain about its Decision to Change a
Work Assignment
Section 7106(a)(2)(A)(B) gives management the right to assign and
direct employees, and the right to assign work. In the lead case
involving the Bureau of Public Debt, /5/ The Authority fully analyzed
the rights of management to direct its employees and assign work under
Section 7106(a) of the Statute and stated as follows:
The right to direct employees in the agency is not defined in
the Statute, is not specifically discussed in the legislative
history and has not been applied in prior decisions of the
Authority. Therefore, consistent with the main purpose and
meaning of the Statute and in the absence of any indication that
the phrase as used in the Statute has a meaning other than its
ordinary meaning, /6/ the right "to direct . . . employees in the
agency" means to supervise and guide them in the performance of
their duties on the job.
The right to assign work to employees or positions under
section 7106(a), subject to the provisions of section 7106(b), is
composed of two discretionary elements: (1) the particular duties
and work to be assigned, and (2) the particular employees to whom
or positions to which it will be assigned. /7/ Furthermore,
management discretion in this regard includes the right to assign
general continuing duties, /8/ to make specific periodic work
assignments to employees, /9/ to determine when such assignments
will occur /10/ and to determine when the work which has been
assigned will be performed. /11/
In the present case, the Respondent's main defense is that it had no
obligation to bargain with the Union about its "decision to assign
employees to work on Memorial Day unlocking in the morning and locking
in the afternoon" because Section 7106(a) reserves to agency management
the right to assign employees in the agency and to assign work.
As noted in the Bureau of Public Debt case, the right to assign work
to employees is composed of two discretionary elements: (1) the
particular duties and work to be assigned, and (2) the particular
employees to whom it will be assigned. From the foregoing, it follows
that an agency also has the right not to assign particular duties or, if
you will, to make a change in the duties which have been assigned as a
matter of practice over a period of years. That's what this case is
really all about. I conclude that Respondent had a reserved management
right, ab initio, to decide whether on Federal holidays certain duties
had to be performed at plants and distilleries that remained in
operation on those holidays. Respondent had a right to determine what
duties had to be performed, to select the employees to perform those
duties, and to determine the number of hours required to be spent at the
plant or distillery by said employees. Similarly, I conclude Respondent
had a right to change the duties assigned. Here, the duty of locking
and unlocking has not been changed; that is still required. What has
been changed is the requirement that an employee remain at the plant or
distillery during the entire shift performing a few minor duties as
assigned or simply sitting around reading newspapers in the absence of
any assigned duties. Because of the passage of Public Law No. 96-39,
the agency now has discretion to determine its true needs in terms of
the degree of supervision required at these plants and distilleries.
The agency exercised this discretion and concluded that the time to be
spent by an employee at these plants on Federal holidays would be
reduced to the minimum amount of time actually required to perform the
unlocking and locking function. /12/ It is my conclusion that
Respondent had no obligation to bargain about this decision and,
therefore, did not violate Section 7116(a)(5) when it refused to bargain
about its decision. /13/
The General Counsel argues that this is simply a case of bargaining
about "work schedules" or a "method of scheduling work on holidays." I
disagree. The term "work schedule" and the cases cited involve hours of
work during which assigned work will be performed and the Authority has
held that hours of work or work schedules are negotiable. But the
present case involves an underlying determination, which only can be
decided by management, as to whether particular work needs to be
performed in the first instance. Thus, I view this as an "assignment of
work" case, and not as "scheduling of hours" case. Indeed, in the
present case no change was made in the reporting time in the morning or
the quitting time at the end of the day, both of which times appear to
be dictated by the distillery's hours of operations. Rather, what
Respondent did was to decide that there was no work to be assigned in
between the opening and securing of the locks, and no need to pay an
employee for performing no work. /14/ The Federal Labor Relations
Council, predecessor to the Authority, has held in a case arising under
the Executive Order that an agency is not required to bargain on whether
or not work on overtime (as well as on regular time) is needed, or on
the nature of the work to be performed, or the tasks to be assigned.
/15/ The Council's language is applicable herein since this case
essentially involves a determination by management as to whether it
needs an employee to be present at a distillery on a holiday and, if so,
whether that employee should be assigned work to perform while he is
there. Accordingly, for these additional reasons, I reject the General
Counsel's position.
C. Respondent's Obligation to Notify the Union and Negotiate
Concerning the Impact and Implementation of its Decision to Change a
Work Assignment
Notwithstanding my finding and conclusion that Respondent had no
obligation to negotiate its decision to change a work assignment, a
different question is presented with respect to whether the Respondent
nevertheless had an obligation to notify the Union of its decision and
bargain upon request concerning the impact and implementation of the
decision.
My understanding of the case law is that an agency acts at its peril
when it decides to institute a change in employees' conditions of
employment without first providing the collective bargaining
representative with adequate notice of the proposed change, so as to
afford the Union with a reasonable opportunity to submit a request to
bargain. /16/ The reason an agency acts at its peril is that its
obligation to notify depends upon whether it has an obligation to
negotiate, which in turn depends upon whether there is a reasonable
likelihood that the change would result in a substantial impact on
employees. In my view, the General Counsel has the burden of showing
substantial impact in order to trigger an agency's obligation to
negotiate Section 7106(b)(2) "procedures" and Section 7106(b)(3)
"impact." /17/ Absent such showing, an agency has no obligation to
negotiate changes which do not have a substantial impact on employees'
conditions of employment.
Applying the above rationale to the facts of this case, I find first
of all that Respondent's change of work assignments had an immediate
impact of reducing the holiday wages previously earned in the past and
requiring employees to make two trips to employers' distillery on
holidays. As a result, the desirability of working on holidays was
substantially diminished because an employee would now earn
approximately fifty percent less wages. Whereas in the past an employee
might elect to forego an opportunity to spend a holiday with family and
friends because of the monetary attraction to double pay, the change in
job requirements removed this incentive. Indeed, the facts of this case
demonstrate this clearly since one employee declined to volunteer when
he learned of the change in assignment. /18/ Further, the Respondent's
supervisor also foresaw that this change would decrease the number of
volunteers and perhaps require a new method of selection as evidenced by
the fact that he, in discussion directly with employees, brought up the
subject of possibly having to adopt a new selection procedure in the
future.
I find and conclude the Respondent's change in work assignments had a
substantial impact adversely affecting employees and that, accordingly,
Respondent had an obligation to bargain about its impact and
implementation as well as to provide the Union with adequate notice
prior to the change. Not only did Respondent fail to fulfill these
obligations but when the Union did request to bargain, orally and in
writing, the request was refused. By the foregoing conduct, the
Respondent violated Section 7116(a)(1) and (5). /19/
II. Respondent's Conduct in Dealing Directly with Employees
It is clear from the credited testimony that Respondent's agents
initiated discussions with employees concerning the possible need to
formulate a new selection procedure for holiday work now that the
changed work assignment resulted in less pay. Respondent's agents
correctly anticipated that the new work assignment would present
difficulties in obtaining holiday workers on a strictly voluntary basis,
as in the past. But the case law is clear that when management is
considering a change in the existing procedures for selection of
employees, the proper party to consult is the exclusive bargaining
representative. It is the Union's function to represent employees in
dealings with management. For this reason it is unlawful for
Respondent, through its supervisors, to deal directly with employees
because by so doing Respondent bypasses the Union. The act of bypassing
the Union demonstrates to employees that the Respondent feels free to
ignore the Union and this of course diminishes and disparages the
Union's true representational role as the employees' bargaining agent.
Respondent's defense, which I reject, is that the subject
conversations were merely caused, passing remarks, which were mere
statements of fact or opinion. But this defense is based upon crediting
Respondent's witnesses and discrediting the General Counsel's witnesses.
As noted above, I have credited the General Counsel's witnesses in all
respects. This might be a different case factually if all that were
present were statements to the effect that "it looks like we're going to
have a problem and maybe we'll need to formulate a new selection
system"-- and no more than that. Here, however, there is evidence that
Respondent actually mentioned some possible alternative selection
procedures and asked the employees to think about them and see if they
could come up with their own ideas. Even stronger evidence of bypassing
is Beauchamp's statements "How do you guys want to handle this? It's
whatever you decide." In my view, this direct dealing with employees and
the solicitation of their views on conditions of employment constitutes
a classic bypassing violation. Accordingly, I find that Respondent
violated both Section 7116(a)(1) and Section 7116(a)(5) by the conduct
described above. /20/
E. Respondent's Additional Defense
At the hearing I rejected evidence concerning an alleged settlement
which Respondent believes should preclude the Union from litigating this
case and which it argues is a waiver of the right to negotiate "about
any change . . . regarding implementation of the Trade Agreement Act . .
. ." On September 24, 1980 the Union withdrew a charge in Case No.
3-CA-838 filed in a different Regional office than is involved herein.
Subsequent thereto on October 1, 1980, the Union and Respondent entered
into a Memorandum of Understanding in "full and complete settlement and
satisfaction of any and all causes of action, damages, claims and
demands related to implementation of the Act." The Memorandum did not
specifically refer to Case No. 5-CA-592, the present case, which was
pending in Region 5 and in which a Complaint and Notice of Hearing had
already issued on September 23. The Authority's Rules and Regulations
clearly require a Regional Director's participation in the withdrawal
and settlement of a case. Withdrawal of a charge requires the
Director's approval and only the Director can withdraw a complaint.
Here, the Director was not a party to the settlement and has not
withdrawn the complaint. Accordingly, I must reject Respondent's
contention that this matter has been settled and is properly before me.
/21/
F. Remedy
Having concluded that Respondent had no obligation to bargain about
its decision to change its holiday work assignment, I find that a status
quo ante remedy is inappropriate. However, I shall recommend that
Respondent negotiate, upon request, concerning the impact and
implementation of its decision.
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 the Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region:
1. Cease and desist from:
(a) Instituting a change in the assignment of work on holidays
without first notifying National Treasury Employees Union and its
Chapter 88, and affording it the opportunity to meet and
negotiate, to the extent consonant with law and regulations,
concerning the impact and implementation of such change.
(b) Refusing to bargain with National Treasury Employees Union
and its Chapter 88 concerning the impact and implementation of any
change in the assignment of work on holidays.
(c) Dealing directly with bargaining unit employees represented
by National Treasury Employees Union and its Chapter 88 with
respect to personnel policies and practices or other matters
affecting the working conditions of employees, particularly
including the soliciting of suggestions concerning the procedures
to be used in selecting employees for work on holidays.
(d) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the National Treasury Employees Union and its
Chapter 88 of any change in the assignment of work on holidays and
afford it the opportunity to meet and negotiate, to the extent
consonant with law and regulations, concerning the impact and
implementation of such change.
(b) Bargain, upon request, with the National Treasury Employees
Union and its Chapter 88, to the extent consonant with law and
regulations, concerning the impact and implementation of any
change in the assignment of work on holidays, including the
procedures to be used in selecting employees for work on holidays.
(c) Post at its facilities 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 an appropriate official and they shall be posted for 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. The
Agency 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, what steps have been
taken to comply therewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: April 20, 1982
Washington, D.C.
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
TITLE 5
OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute a change in the assignment of work on holidays
without notifying the exclusive bargaining representative, the National
Treasury Employees Union and National Treasury Employees Union, Chapter
88, and affording such representative the opportunity to meet and
negotiate to the extent consonant with the law and regulations,
concerning the impact and implementation of such change.
WE WILL notify the National Treasury Employees Union and National
Treasury Employees Union, Chapter 88, of any change in the assignment of
holiday work and, upon request, meet and negotiate concerning the impact
and implementation of such change.
WE WILL NOT deal directly with bargaining unit employees represented
by the National Treasury Employees Union and National Treasury Employees
Union, Chapter 88, with respect to personnel policies and practices or
other matters affecting the working conditions of employees,
particularly including the soliciting of suggestions concerning the
procedures to be used in selecting employees for work and holidays.
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.
(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 any of its provisions, they may communicate directly with the
Regional Director, Region V, Federal Labor Relations Authority, whose
address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604;
telephone No. (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ Thus, the Authority rejects the Judge's discussion herein with
regard to a "substantial" impact test and burden of proof pertaining
thereto contained on page 10 of his Decision.
/2/ Apparently, it was not always easy to find other duties to assign
on a holiday, so it was not uncommon for the inspector to have no duties
other than removing and securing the locks.
/3/ The opportunity to earn an additional full day's pay was a
sufficient inducement to obtain the requisite number of inspectors
needed.
/4/ Respondent's decision to pay for a total of four hours work is
based upon 5 C.F.R. 550.131 which provides that "an employee who is
assigned to duty on a holiday is entitled to pay for at least two hours
of holiday work." Thus, if one employee opened the locks in the morning
and a different employee was assigned to secure the locks at the end of
the shift, each employee would be entitled to a minimum of two hours'
pay.
/5/ National Treasury Employee Union and Department of Treasury,
Bureau of the Public Debt, 3 FLRA No. 119 (1980), 3 FLRA 768.
/6/ See Webster's Third New International Dictionary (Unabridged
1976)).
/7/ American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
No. 77 (1980), at 18 and 28 of the decision.
/8/ American Federation of Government Employees, AFL-CIO, Local 1999
and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New
Jersey, 2 FLRA No. 16 (1979) at 7-9 of decision.
/9/ National Labor Relations Board Union, Local 19 and National Labor
Relations Board, Region 19, 2 FLRA No. 98 (1980).
/10/ Id.
/11/ International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA No. 66 (1980) at 1-4 of decision.
/12/ The obvious purpose of the change was to save money by reducing
the hours worked. While this is a laudable objective to be sought by a
government agency, the Authority (and its predecessor, the Federal Labor
Relations Council) has concluded that cost is only one factor to be
considered and weighed against other factors. American Federation of
Government Employees, AFL-CIO, 2 FLRA No. 77, 2 FLRA 603 at 608.
/13/ In negotiability cases, the Authority has found that union
proposals which would restrict management's right to assign work are not
within the duty to bargain. See International Association of Fire
Fighters, Local F-48, AFL-CIO, 3 FLRA No. 76, 3 FLRA 488; National
Federation of Federal Employees, Local 1624, 3 FLRA No. 30, 3 FLRA 141;
American Federation of Government Employees, Local 1603, 3 FLRA No. 1, 3
FLRA 3; International Association of Firefighters, AFL-CIO, CLC, Local
F-116, 7 FLRA No. 122.
/14/ Since management has the right and the discretion to determine
what work will be assigned and performed by its employees, I do not have
to address the question of whether the work assigned was essential and
necessary, or whether it was in the nature of "make work." Moreover,
since the Union never had the opportunity to submit specific proposals,
Respondent is merely engaging in speculation when it suggests (on page 8
of its brief) that the Union is in effect seeking the continuation of an
alleged "featherbedding" situation which, in the private sector, would
be a violation of Section 8(b)(6) of the Labor Management Relations Act,
as amended.
/15/ National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, Region VII, FLRC No. 76A-28, 5 FLRC 249,
259-260 (1977).
/16/ See my discussion of this subject in U.S. Government Printing
Office, 3-CA-549 (April 9, 1981), which is pending before the Authority.
/17/ The existence of a substantial impact test seems clear and, with
respect to Section 7106(b)(3), it would seem that substantial impact
means adverse impact. While the Authority has not addressed this issue,
it is my opinion that Section 7106(b)(2) also requires use of a
substantial impact test. What is less clear, however, is whether the
requirement of showing adverse impact is also applicable to Section
7106(b)(2). Because of my ultimate conclusions, I do not have to
resolve this issue in this proceeding.
/18/ When Milstead declined, the supervisor telephoned Redeford. Why
did he choose to call Redeford? Was it his turn to be called, was he
selected at random, or was it favoritism? Clearly the Union had a
legitimate concern in the procedures to be followed by the agency in the
exercise of their management right to select employees.
/19/ United States Air Force, Air Force Logistics Command, Aerospace
Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70.
/20/ Internal Revenue Service, Washington, D.C., 4 FLRA No. 68
(1980). See also Internal Revenue Service, Ogden Service Center, 7
A/SLMR 1032 (1977) where the Assistant Secretary stated that "the
gravamen of the violation herein consists of the solicitation of views
and recommendations from unit employees, selected by the Respondent, on
matters for which the Complainant under the Order was entitled to be
dealt with exclusively." See also VA, Veterans Administration, Veterans
Administration Hospital, Muskogee, Oklahoma and American Federation of
Government Employees, Local 2250 3 A/SLMR 491 (1973); Department of the
Navy, Naval Air Station, Fallon, Nevada 4 A/SLMR 590 (1974).
/21/ In so doing, I reach the same conclusion as Judge Chaitovitz in
a case involving the same parties, decided June 4, 1981 (AOLJ-81-116),
case Nos. 5-CA-535, 536, 537.