17:0896(117)CA - DOD, Navy, Naval Ordnance Station, Louisville, KY and Local Lodge 830, IAM -- 1985 FLRAdec CA

 17 FLRA No. 117
 
 DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE NAVY 
 NAVAL ORDNANCE STATION 
 LOUISVILLE, KENTUCKY 
 Respondent
 
 and 
 
 LOCAL LODGE 830 
 INTERNATIONAL ASSOCIATION 
 OF MACHINISTS AND AEROSPACE 
 WORKERS, AFL-CIO 
 Charging Party
 
                                            Case No. 4-CA-20204
 
                            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
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:  The amended complaint alleges that
 the Respondent failed to bargain in good faith with the Charging Party,
 Local Lodge 830, International Association of Machinists and Aerospace
 Workers, AFL-CIO (IAM), in violation of section 7116(a)(1) and (5) of
 the Federal Service Labor Management Relations Statute (the Statute),
 /1/ when, following negotiations between the parties, and no mutual
 agreement having been reached on certain matters, the Respondent
 implemented, on or about January 3, 1982, the reorganization of Cost
 Center 09, Public Works Department and, as a result of the
 reorganization, reassigned David Baumer, Area Steward, from Cost Center
 09, Public Works Department to the Production Maintenance Department,
 Division 205, thereby unilaterally changing the terms of the parties'
 collective bargaining agreement without bargaining with the Charging
 Party.
 
    IAM and the Respondent entered into a collective bargaining agreement
 on or about September 20, 1974, which was amended in part on September
 26, 1976, and expired on September 19, 1977.  The parties have since
 then been engaged in negotiations for a new collective bargaining
 agreement.  On or about June 1981, IAM received notice from the
 Respondent that Cost Center 09, Public Works Department would be
 reorganized, and that some of the functions of the Cost Center would be
 transferred to the Production Maintenance Department, Division 205 (a
 new division created to undertake the transferred functions).  Upon
 receiving the notice, IAM requested that the Respondent bargain
 concerning certain aspects of the proposed change, including the number
 and location of stewards.  During September and October the parties
 bargained over the proposed reorganization, including the matter of
 stewards.  IAM proposed (1) that David Baumer would continue to serve as
 Area Steward of Cost Center 09, and would become the Area Steward of the
 Production Maintenance Department, Division 205, and (2) that Joseph
 Nevitt would continue as Steward of Cost Center 09.  The Respondent
 argued that an already existing vacant steward position should be
 shifted to Division 205 or, alternatively, that Nevitt should become an
 Area Steward.  The parties stipulated that at no time during the
 September-October negotiations did the parties reach mutual agreement
 and, in fact, reached an impasse on certain aspects of the
 reorganization, including the number and location of stewards, and
 specifically the area of stewardship of Baumer.
 
    On or about November 25, 1981, by memorandum to IAM, the Respondent,
 noting the parties' impasse on these issues, and stating that the
 Respondent was available for further negotiations, advised IAM that,
 pursuant to the mandate of its Inspector General, reorganization would
 take effect on January 3, 1982.  On March 5, 1982, IAM filed its charge
 in this case.  It did not at any time seek the assistance of the Federal
 Service Impasses Panel.
 
    The General Counsel contends that no valid impasse had been reached
 herein.  We disagree.  An impasse is that point in negotiations at which
 the parties are unable to reach agreement.  U.S. Air Force, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 288,
 293 (1981);  Department of Health and Human Services, Social Security
 Administration, Baltimore, Maryland, 16 FLRA No. 32 (1981) at 12 of the
 Judge's Decision.  Here, the parties engaged in negotiations, and did
 not reach an agreement at any time.  The Respondent gave the Union more
 than a month's notice of the effective date of the reorganization and
 expressed a willingness to negotiate further, but the Union failed to
 submit any new proposals and did not seek assistance of the Federal
 Service Impasses Panel.  It is well established that an agency may
 implement in these circumstances, and does not violate the Statute by
 doing so.  Id.  See also U.S. Customs Service, 16 FLRA No. 31 (1984).
 /2/ Accordingly, the complaint shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-20204 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 8, 1985.
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) provides:
 
          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/ The General Counsel appears to argue that the following term in
 the parties' expired collective bargaining agreement required the
 Respondent to reach mutual agreement with the Union regarding steward
 assignments before implementing the planned reorganization:  "When
 Station organizational changes result in a redistribution of personnel .
 . . the Employer and the Union will meet to readjust the number of
 stewards. . . .  The degree of any necessary readjustment will be
 determined by mutual agreement."
 
    Apart from other considerations, it is well established that a waiver
 will be found only if it can be shown that a party has clearly and
 unmistakably waived its statutory right, and it has not been shown here
 that the Respondent clearly and unmistakably waived its right to
 implement the planned reorganization following impasse.  See, e.g.,
 Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981)
 and Office of Program Operations, Field Operations, Social Security
 Administration, San Francisco Region, 10 FLRA 172 (1982).