[ v17 p896 ]
The decision of the Authority follows:
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).