[ v19 p136 ]
19:0136(13)CA
The decision of the Authority follows:
19 FLRA No. 13
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Charging Party
Case Nos. 5-CA-20083
5-CA-20130
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint in Case No.
5-CA-20130, and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. No exceptions were filed
to the Judge's Decision in Case No. 5-CA-20130. The Judge further found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint in Case No. 5-CA-20083, and
recommended dismissal of that complaint. Thereafter, the General
Counsel filed exceptions to the Judge's Decision in Case No. 5-CA-20083,
and the Respondent filed an opposition to the General Counsel'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
entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and recommended Order as modified. /1A/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Air Force, Scott Air Force
Base, Illinois, shall:
1. Cease and desist from:
(a) Closing the snack bar at the Scott Air Force Base golf course
without first notifying the National Association of Government
Employees, Local R7-23, the employees' exclusive bargaining
representative, and affording it the opportunity to bargain concerning
procedures which management officials will observe in exercising the
decision to close the snack bar and concerning appropriate arrangements
for employees adversely affected thereby.
(b) Failing or refusing to provide an opportunity for the National
Association of Government Employees, Local R7-23, the employees'
exclusive bargaining representative, to bargain concerning procedures
relating to the decision to furlough two bargaining unit employees on
January 15, 1982, as a result of the closing of the golf course snack
bar and concerning appropriate arrangements for the employees adversely
affected thereby.
(c) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their 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, bargain with the National Association of Government
Employees, Local R7-23, the exclusive bargaining representative of its
employees, concerning procedures relating to the decision to close the
snack bar at the Scott Air Force Base golf course on December 31, 1981,
and concerning appropriate arrangements for employees adversely affected
thereby.
(b) Upon request, bargain with the National Association of Government
Employees, Local R7-23, the exclusive bargaining representative of its
employees, concerning procedures relating to the decision to furlough
two bargaining unit employees on January 15, 1982, as a result of the
closing of the golf course snack bar and concerning appropriate
arrangements for the employees adversely affected thereby.
(c) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Such forms shall
be signed by the Commander, 375th Air Base Group (MAC), or a designee,
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 ensure that such 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, 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.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-20083 be,
and it hereby is, dismissed.
Issued, Washington, D.C., July 16, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 close the snack bar at the Scott Air Force Base golf course
without first notifying the National Association of Government
Employees, Local R7-23, the exclusive bargaining representative of our
employees, and affording it the opportunity to bargain concerning the
procedures which management officials will observe in exercising the
decision to close the snack bar and concerning appropriate arrangements
for employees adversely affected thereby. WE WILL NOT fail or refuse to
provide an opportunity for the National Association of Government
Employees, Local R7-23, the exclusive bargaining representative of our
employees, to bargain concerning procedures relating to the decision to
furlough two bargaining unit employees on January 15, 1982, as a result
of the closing of the golf course snack bar and concerning appropriate
arrangements for the employees adversely affected thereby. 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, bargain with
the National Association of Government Employees, Local R7-23, the
exclusive bargaining representative of our employees, concerning
procedures relating to the decision to close the snack bar at the Scott
Air Force Base golf course on December 31, 1981, and concerning
appropriate arrangements for employees adversely affected thereby. WE
WILL, upon request, bargain with the National Association of Government
Employees, Local R7-23, the exclusive bargaining representative of our
employees, concerning procedures relating to the decision to furlough
two bargaining unit employees on January 15, 1982, as a result of the
closing of the golf course snack bar and concerning appropriate
arrangements for the employees adversely affected thereby.
. . . (Activity)
Dated: . . . By: (Signature) (Title) 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 Jackson
Boulevard, Suite 1359-A, Chicago, Illinois, 60604, and whose telephone
number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos.: 5-CA-20083, 5-CA-20130
Lt. Col. Gordon B. Finley, Jr., Esquire
Capt. David W. Chappell, Esquire
For the Respondent
Mr. Carl L. Denton
For the Charging Party
Sandra LeBold, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns two unfair labor practice complaints issued by
the Regional Director, Region Five, Federal Labor Relations Authority,
Chicago, Illinois against the Department of the Air Force, Scott Air
Force Base, Illinois (Respondent), based on charges filed by the
National Association of Government Employees, Local R7-23 (Charging
Party or Union). The complaint in Case No. 5-CA-20083 alleged, in
substance, that Respondent violated sections 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et
seq. (the Statute), by discontinuing established overtime assignments to
billeting clerks without having bargained with the Union concerning the
impact and implementation of such change. Respondent's answer denied
any violation of the Statute and averred that it had met its bargaining
responsibilities. The complaint in Case No. 5-CA-20130 alleged, in
substance, that Respondent violated sections 7116(a)(1) and (5) of the
Statute by closing the golf course snack bar and furloughing employees
without giving adequate notice to the Union and affording the Union an
opportunity to bargain concerning the impact and implementation of such
changes. Respondent's answer denied any violation of the Statute and
averred that the furloughs were effectuated only after discussion with
the Union and after it was unable to find acceptable alternative
employment for affected employees.
The cases were consolidated for hearing at Scott Air Force Base,
Illinois. The Respondent, Charging Party, and the General Counsel were
represented and afforded full opportunity to be heard, adduce relevant
evidence, examine and cross-examine witnesses, and file post-hearing
briefs. Based on the entire record, /1/ including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions of law, and recommendations.
I. Case No. 5-CA-20083
A. Findings of Fact
At all times material herein, the Union has been recognized as the
exclusive representative of an appropriate unit of Air Force employees
assigned to Respondent. The applicable collective bargaining agreement
provided in pertinent part, as follows:
Article VII-- Hours of Work and Basic Workweek
Section 10 (Added): Employees of equal qualifications and
grade who work an uncommon tour o(f) duty may exchange shifts or
days off on a voluntary basis subject to the respective
supervisor's approval. Such approval normally will be granted
unless the exchange will interfere with or interrupt the mission
of the organization. Such exchange:
a. Shall be within the same administrative workweek and in
compliance with applicable laws and regulations.
b. (W)ill be based on at least a 24 hour advance written
request.
c. Shall be limited to no more than once per pay period.
The parties agree that employees who are enrolled in a regularly
scheduled course of instruction are exempt from item c above. Article
VIII-- Overtime
Section 1: The Employer agrees to make every effort to give
employees as much notice as possible when overtime is required, and
further agrees to give due consideration to the employees' personal
circumstances, subject to the paramount requirement of fulfilling the
mission of the Employer. It is agreed that the assignment of overtime
work is a function of the Employer.
Section 2: An employee will, upon request, be released from an
overtime assignment if a qualified replacement is available and willing
to work. However if a qualified replacement, as determined by the
Employer, is not available, the employee will work overtime.
. . . .
Section 4: The Employer will make available to the Union upon
request, current records of overtime assignments of employee to aid in
resolving individual claims of unfair and inequitable treatment.
Section 5 (Added): In accordance with applicable Air Force
regulations and subject to the supervisor's approval, an employee may be
granted compensatory time in lieu of overtime pay.
. . . .
Article XXXII-- Excused Absences
Section 3 (Added): Employees normally will be granted minor
deviation in their hours of work for purposes of participating in
officially designated carpools. The granting of such deviation normally
will be made after the employee has made reasonable efforts to
participate in a carpool which is compatible to his/her existing duty
hours. The granting of such minor deviation will be accomplished in
compliance with applicable regulations.
Billeting clerks at Respondent's Billeting Office perform a variety
of tasks quite similar to those of registration desk employees at any
hotel. They greet guests, find them rooms on or off base, handle
telephone calls, post charges, and sell sundry items. From at least
1976 until the action described herein, billeting clerks worked fifteen
minutes overtime per shift in order to count revenues received, turn
over a change fund to their replacement, and put excess monies along
with appropriate accounting forms into a safe. Billeting clerks were
asked if they were willing to work the 15 minutes daily overtime when
they were hired, and their job description provided, "Incumbent in this
position will be required to work an uncommon tour of duty at the main
office which is manned 24 hours a day, seven days a week and includes 15
minutes overtime daily."
The daily overtime began because, with only one clerk on duty at each
of two separate desk locations, the employee could not usually find the
time to render a proper accounting during the shift. Thus, the
accounting was done after the next shift started and the replacement
arrived. In 1980, the two registration desks were consolidated at the
Main Billeting Office. With all personnel at one location, several
overlapping shifts were established, so that usually one employee came
in two hours before the other employee went off duty. However, the
fifteen minutes overtime continued without a proposed change until after
Robert Lee Parker, Sr. became the billeting services officer in February
1981.
Mr. Parker determined that the overtime was no longer necessary on
most shifts, because, with overlapping shifts and two clerks on duty,
the clerk going off duty could stop fifteen or twenty minutes before
going off duty and count the receipts. In this regard, Air Force
Regulation 40-552 of September 15, 1971 provided, in pertinent part:
1. . . . Tours of duty which require the payment of premium
pay rates, for example, . . . overtime . . . are established only
when required for efficient operations.
. . . .
3. . . . Commanders will maintain a continuing check to
determine the necessity for overtime work whether regularly
scheduled or occasional overtime, and insure that overtime work
does not continue beyond the absolute need . . . .
a. Authorization requirement. Overtime work must be ordered
by the appropriate supervisor and approved in writing by the
official designated to authorize overtime payment. . . .
(A)pproval must be obtained before the work is performed except in
an emergency when it must be made a matter of record no later than
the following workday. . . .
On June 16, 1981 the Union was provided a new work schedule for
billeting clerks to be effective July 12, 1981. Respondent noted that
the improved management posture had eliminated the need for routine
overtime and a twenty-minute, on-the-clock lunch period.
On July 8, 1981 the Union requested that the status quo be maintained
and that management enter into negotiations on the duty hours and other
changes for billeting clerks. Respondent answered by requesting that
the Union submit proposals by August 4, 1981. The Union did so, again
proposing that the status quo be maintained except that employees be
allowed to leave their work area during the duty-free lunch period.
The parties met on August 26, 1981. The Union reiterated its request
for the status quo. Respondent took the position that overtime was
addressed by the contract and management had no continuing obligation to
bargain on whether employees would or would not work the daily overtime.
The Union indicated that if something could be worked out on the lunch
hour issue, it would indicate to the employees that the Union's chances
of prevailing on the overtime issue did not look good. Following the
session, the Union directed a letter to Respondent which stated in part:
Again, I restate the Union's demand that the status quo,
including the payment of overtime, be retained until the matter is
fully negotiated. We request that management provide a written
statement declaring its position that the change of duty hours to
eliminate overtime is nonnegotiable. We also request to continue
negotiations on the subject and if management feels we are at
impasse then I request a statement outlining their final position
so that we can proceed to the next step.
On August 31, 1981 Respondent replied, stating that the Agency would
maintain the status quo, with respect to the lunch period, but not with
respect to the overtime. Respondent also, stated, in part, as follows:
2. . . . With respect to management's intent to eliminate the
1/4 hour daily overtime assignment to billeting clerks, it is our
understanding that the union's proposal, in essence, would have
management continue with the daily overtime assignment. We
believe the union's proposal conflicts with language previously
agreed to in Article VIII, section 1 of our now expired Agreement:
"It is agreed that the assignment of overtime work is a
function of the Employer."
Rather than address impact and implementation, the union's
proposal addresses the substance of management's proposed action.
To negotiate the substance of our proposed action would, in
effect, be an acknowledgement of a continuing obligation to
bargain over proposed changes in personnel policy practices and
procedures. It is our belief that such a management obligation
does not exist. For these reasons it is our firm belief that
there is no basis for further negotiations.
3. As indicated during our negotiating session, it is our
intent to eliminate the 1/4 hour daily assignment of overtime to
billeting clerks effective 6 September 1981.
By letter dated September 1, 1981 the Union submitted amended
proposals and requested that "the status quo on overtime be retained
until mutual agreement on the above impact and implementation proposals
is achieved." /2/ The overtime was eliminated effective September 6,
1981, but, upon protest by the Union, was reinstated by Respondent
effective September 20, 1982 "as an interim action" and "until further
notice."
Respondent analyzed the Union's proposals, drafted counter-proposals,
and scheduled an impact and implementation bargaining session for
September 22, 1981. Thereafter, the parties met twice, on September 22,
1981 and again in late October, but failed to reach any agreement.
Despite a delay in resuming negotiations between late October and
December, 1981, neither party chose to invoke the procedures provided by
section 7119 of the Statute for the resolution of negotiation impasses.
Carl Denton, Union president, did telephone Ray Rush, labor relations
officer, several times to inquire if and when the parties could get back
to the bargaining table. Mr. Rush replied that Respondent was
formulating its position and would advise the Union by letter of its
intentions.
During this period, Mr. Rush conferred on the matter with various
other members of Respondent's staff, including the operating official in
charge, attorneys in the Office of the Staff Judge Advocate, and the
base commander. Respondent ultimately decided that the continued
certification of overtime as necessary, when it was felt that it was
not, and the continued payment for such overtime could no longer be
permitted.
On Friday, December 4, 1981 Mr. Rush hand carried a letter to Mr.
Denton at about 1:00 p.m. The letter notified the Union that effective
at 1:00 a.m. Sunday, December 6, 1981, management would no longer assign
billeting clerks to work 15 minutes daily overtime for the purpose of
taking a money count at the end of their respective shifts. Respondent
stated that the action was taken "after giving due regard to the
negotiations regarding this matter, which have transpired between the
parties."
Shortly thereafter, Mr. Denton telephoned Mr. Rush and asked him not
to implement the change as the Union would like to engage the services
of the Federal Mediation and Conciliation Service (FMCS) or Federal
Services Impasses Panel (FSIP). Mr. Rush replied that it was out of his
hands and too late to do anything about it.
The Union did not contact the FMCS or FSIP. It filed the unfair
labor practice charge on December 17, 1981.
Since December 6, 1981, Billeting clerks have not been routinely
assigned overtime. However, billeting clerks on the late night
(10pm-6am) and early (6am-2pm) shifts have been required to work 15
minutes overtime approximately 2-3 times a week, and such overtime has
also been required occasionally on other shifts when replacements have
not reported as scheduled. In such circumstances, such overtime has
always been determined to be necessary and paid.
The discontinuance of the assignment of routine overtime had some
impact on bargaining unit employees. The seven billeting clerks each
lost overtime pay for a maximum of one hour and fifteen minutes per
week. Although they are still required to work overtime as needed, they
are often provided little or no advance notice. In such cases,
billeting clerks have to request and justify the payment of overtime
after it has been worked. Since the money count can no longer be made
at the end of the shift, the number of accountings required between
employees on the various shifts has increased. B. Discussion and
Conclusions
The complaint alleges that Respondent violated sections 7116(a)(1)
and (5) of the Statute (1) on December 4, 1981 when it refused, and
continues to refuse, to bargain with the Union concerning the impact and
implementation of discontinuing established overtime assignments to
billeting clerks and (2) by discontinuing overtime assignments to
billeting clerks on or about December 6, 1981 without having bargained
with the Union concerning the impact and implementation of such change.
The General Counsel asserts that the routine assignment of overtime
became by practice a term and condition of employment; that the change
resulted in substantial and material adverse impact on bargaining unit
employees; and that Respondent did not bargain in good faith in an
effort to reach agreement on the issue. The General Counsel alleges
that after the parties met in September and October, Respondent did not
declare the Union proposals nonnegotiable, did not declare an impasse,
kept promising the Union a written response that never materialized, and
refused the Union's request that it be allowed to seek assistance from
the FMCS or FSIP when it discontinued the overtime on December 4, 1981.
Respondent defends on the basis that it did not change conditions of
employment in eliminating the practice of billeting clerks working
overtime. Respondent claims that it always had to determine such work
to be necessary and assign it before it could be worked, and continues
to make these determinations. Respondent also asserts that the parties'
negotiated agreement prescribes procedures to be followed in assigning
or not assigning overtime, and it incurred no obligation beyond the
procedures set forth in their agreement. Respondent maintains that,
even if it did effect a change, there was no duty to bargain about it,
as it was an exercise of the exclusive authority to assign work under
section 7106(a), was negotiable only at the election of the agency
pursuant to section 7106(b)(1), or was clearly and unmistakably waived
by the negotiated agreement. Respondent also contends that the evidence
fails to prove that employees were adversely affected, or that the
Union's proposals were designed to address adverse effects and, hence,
negotiable. Finally, Respondent maintains that it fulfilled any duty to
afford the Union notice and an opportunity to bargain concerning the
impact and implementation of its decision.
The evidence amply establishes that the routine assignment to
billeting clerks of fifteen minutes daily overtime for a period of five
years became by practice a condition of employment. It is also clear
that the billeting clerks were adversely affected by the proposed
discontinuance of the overtime.
It is well established that, even where an agency's decision to
change a past practice involves the exercise of a reserved management
right under the Statute, the agency is required to notify the employee's
exclusive representative before making the change and to afford the
exclusive representative an opportunity to bargain, upon request,
concerning the procedures to be used in implementing the change and on
appropriate arrangements for employees adversely affected by the change.
Department of the Interior, U.S. Geological Survey, 9 FLRA No. 65
(1982). Any waiver of such a statutory right must be clear and
unmistakable. Department of the Air Force, Scott Air Force Base, 5 FLRA
No. 2 (1981). The collective bargaining agreement acknowledges that the
assignment of overtime is a function of the employer and sets forth
procedures to be followed in assigning overtime. However, the agreement
contains no clear and unmistakable waiver with respect to the Union's
right to bargain over the impact and implementation of a change in past
practice concerning established overtime assignments.
The principle issue is whether Respondent refused to negotiate in
good faith over impact and implementation, and thus violated sections
7116(a)(5) and (1) of the Statute, when it discontinued the established
overtime assignments on December 6, 1981. Section 7114(b) of the
Statute provides, in relevant part, that the duty to negotiate in good
faith includes the obligation: "(1) to approach the negotiations with a
sincere resolve to reach a collective bargaining agreement; . . . . (3)
to meet at reasonable times and convenience places as frequently as may
be necessary, and to avoid unnecessary delays. . . . " See also, section
7103(a)(12) (definition of collective bargaining), and Department of the
Air Force, Scott Air Force Base, Illinois, supra.
The record reflects that the Respondent first proposed the
elimination of the overtime to be effective July 1981, but did not
permanently eliminate it until some five months later in December 1981.
During this period, the Union was afforded notice and an opportunity to
negotiate. The Union insisted on bargaining on the substance of the
proposal through August 1981. It later amended its proposals in
September 1981 when faced with another proposed implementation date.
Respondent presented counterproposals, and the parties did negotiate in
late September and October.
Between the last negotiating session in late October, and December 4,
1981, when notice of implementation was given, the Union inquired
several times if and when the parties could get back to the bargaining
table. Respondent replied that it was formulating its position and
would advise the Union by letter of its intentions. A preponderance of
the evidence fails to show that there was "unnecessary delay" on
Respondent's part during this period.
Five of the seven proposals (a-d, f) offered by the Union during the
negotiations did not deal with the impact and implementation of the
elimination of routine overtime, but with procedures to be followed
concerning the subsequent assignment of any overtime. I agree with
Respondent that it had no duty to negotiate procedures for the
assignment of overtime as they had already been negotiated and were
contained in Article VIII of the negotiated agreement. The Union made
no showing that these procedures did not apply to the billeting clerks.
Union proposal e provided, "Management shall make every effort to
eliminate the impact of the elimination of routine overtime as the
occasion arises." There was no duty to bargain concerning this proposal
as it was insufficiently specific and delimited in form and content.
Cf. Association of Civilian Technicians, Alabama ACT, 2 FLRA No. 39
(1979).
The only remaining Union proposal was g, "Management shall give the
employees two weeks notice after the conclusion of these negotiations
prior to eliminating overtime and shall ensure that all employees are
served with a copy of the negotiated agreement pertaining to this
subject." The proposal to furnish a copy of the agreement to each
employee was negotiable and, in a normal situation, the underlined
portion of the proposal for two weeks notice after the conclusion of
negotiations prior to eliminating overtime, would have been negotiable.
However, in the instant case, the overtime was unnecessary and
management was bound by Air Force regulation not to assign it. The
Respondent was obligated to change the past practice so as to conform
with the requirements of law and regulation. See 5 U.S.C. 5542, 5 CFR
550.111, AFR 40-552. The obligation to bargain over the impact of the
decision could not justify a delay in correcting the practice, although
negotiations on other appropriate impact and, where possible,
implementation proposals could go forward after implementation. Cf.
Department of the Interior, U.S. Geological Survey, supra. Section 7101
provides that the Statute "should be interpreted in a manner consistent
with the requirement of an effective and efficient Government."
I conclude that Respondent did not violate section 7116(a)(5) and (1)
of the Statute, as alleged, by discontinuing established overtime
assignments to billeting desk clerks without having bargained with the
Union concerning the impact and implementation of such change.
Respondent did bargain in good faith with the Union for several months
prior to making the change, and it was not necessary in this instance
that implementation be further delayed pending the completion of the
collective bargaining process, including the exhaustion of procedures
for the resolution of negotiation impasses.
The next issue for consideration is whether, as alleged, Respondent
by letter dated December 4, 1981 refused, and continues to refuse, to
bargain in good faith with the Union concerning the impact and
implementation of discontinuing established overtime assignments to
billeting clerks.
Respondent's letter of December 4, 1981 merely advised the Union of
the date of implementation which was to be two days later. It did not
declare the Union's proposals nonnegotiable, or declare an impasse. The
Union's only response was a request that the change not be implemented
as it would like to engage the services of the FMCS or FSIP.
Although it would have been a much better practice for Respondent to
have set forth its position on the Union's proposals in its December 4,
1981 letter, its failure to do so did not amount to a refusal to bargain
in good faith on impact and implementation in view of the negotiations
previously conducted and the proposals and counter-proposals presented.
The letter did not foreclose the possibility of further negotiations if
the Union had legitimate impact issues to discuss. /3/ It also did not
preclude the Union from invoking the services of the FMCS or FSIP. As
noted, continuing negotiations on impact and possibly implementation
could have gone forward after implementation in this instance. Cf.
Department of Interior, U.S. Geological Survey, supra; compare United
States Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No. 15
(1982).
Under all the circumstances, it is concluded that a preponderance of
the evidence does not support a violation of section 7116(a)(1) and (5)
as alleged, and it is recommended that the complaint in Case No.
5-CA-20083 be dismissed.
II. Case No. 5-CA-20130
A. Findings of Fact
The Union is the exclusive representative of an appropriate unit of
regular and intermittent non-appropriated fund employees at Scott Air
Force Base, Illinois.
The Scott Air Force Base golf course snack bar is a non-appropriated
fund instrumentality which must pay its own operating expenses from
current revenue. Due to the seasonal nature of its business, it had
closed every year from November through March. However, employees were
told in 1981 that the snack bar would remain open all of the winter of
1981-1982 except for a long-planned renovation which would take place
from approximately April to October 1982. Nevertheless, when the snack
bar began to lose money in October and November 1981, the operating
officials also requested permission to close. Permission was granted in
late December.
On December 31, 1981 Respondent closed the snack bar for a period of
about three months. The closing was brought about because of extensive
financial losses. As it turned out, the closing was also necessary
because the contract for the renovation project was entered into earlier
than expected, and it was necessary that the facility be vacated and
prepared for this renovation.
Employees at the snack bar contacted the Union on or about December
30, 1981 concerning the snack bar closing on December 31 and the
possibility of furloughs to be effective January 1, 1982. Union
president Carl Denton contacted Ray Rush, labor relations officer, on
December 31, 1981. Mr. Denton stated that the Union wanted to enter
into negotiations on the impact of the change and requested that the
status quo should be maintained in the interim. On the same day,
December 30, 1981, Mr. Denton submitted a written bargaining request
with proposals. Mr. Rush confirmed the closing of the snack bar, but,
after conferring with the operating officials, advised Mr. Denton that
there would be no January 1, 1982 furlough for the seven employees in
the snack bar. He advised Mr. Denton of a management meeting with the
golf course employees on January 4, 1982.
On January 4, 1982, a meeting was held regarding the snack bar
closing. Present at the meeting were Mr. Rhodes, NCO Club assistant
manager, Ms. Gardner, Union vice-president, Fay Edivien, another Union
officer, and approximately three of the snack bar employees. Union vice
president Gardner expressed the Union's concern that the snack bar be
kept open or that all employees be placed in other jobs. Mr. Rhodes
indicated that the snack bar was losing money and could not be kept
open, but he felt all employees could be placed in other positions at
the NCO Club, although a furlough still might be necessary.
Ms. Gardner reported to Union president Denton on the meeting, and
Denton submitted a second request to bargain on January 4, 1982. The
letter provided, in part, as follows:
1. Bargaining unit employees be provided available work in
other areas at the same wages and hours that they are currently
under.
2. That the employees be allowed to go back to their old job
at the golf course as soon as it opens.
3. That management provide a date when the golf course is
expected to reopen.
4. That the golf course remain open until mutual agreement is
reached with the union on the implementation of arrangements for
the affected employees.
5. That the union be provided a listing showing the name, job
title, series, type of employee (GS, WG, NAF), grade and service
comp date of all employees who work at or in connection with the
gold course.
6. That management provide a list of all NAF vacancies,
regardless of whether a fill action has been submitted, to the
union. This list should have job location, series, grade and
title.
On January 12, 1982, Respondent notified the Union that it proposed
to furlough two snack employees, Julie Pierpoint and Evelyn Bertram,
effective January 15, 1982. Upon receipt of this notice, Union
president Denton requested a meeting with Respondent.
Mr. Denton and another Union representative, Frank Holton, met with
Respondent's representatives, Ray Rush, William R. Witham, and Mr.
Rhodes on January 13, 1982. Mr. Denton requested the status of the
snack bar employees, and the Respondent provided information on several
of the employees. The Union reiterated that it expected management to
accommodate the employees in other positions with the same number of
hours; that the Union wanted to negotiate proper arrangements for the
affected employees; and that the status quo should be retained during
the negotiations.
The record reflects that the only subsequent contact between the
Union and Respondent concerning this matter occurred sometime in late
January when Union vice president Gardner contacted Mr. Witham
concerning snack bar employee Sandra Dombal. Ms. Gardner told Mr.
Witham that Ms. Dombal was having a real hardship financially, and asked
whether there was anything he could do for her. Mr. Witham subsequently
found Ms. Dombal employment at the base bowling alley commencing
February 1, 1982.
After the closing of the snack bar, Elizabeth Schoenborn, personnel
staffing specialist, searched for alternate jobs for the employees at
the bowling center, officers club, and NCO Club. Generally, she was
unsuccessful.
The closing of the snack bar on December 31, 1981 resulted in changes
for snack bar employees in their duty hours, schedules, and amounts of
time worked, as follows:
-Julie Pierpoint, foodhandler (regular part time) was
transferred to the NCO Club until January 15, 1982. She was
furloughed from January 15, 1982 until March 28, 1982. On or
about March 3, 1982 she was offered a temporary job at the
Officers Club.
-Evelyn Bertram, short order cook (regular part time) was
transferred to the NCO Club until January 15, 1982. She was
furloughed from January 15, 1982 until the end of March 1982. On
or about March 3, 1982 she was offered a temporary job at the
Officers Club.
-Sandra Dombal, food service worker (intermittent part time)
worked three hours per day for about a week, one four-hour day,
and then had no work until January 19, 1982. She worked at the
NCO Club for about two weeks and then found a new job at the
bowling center commencing February 1, 1982.
-Jacquelin Williams, bartender (intermittent part time) was
laid off from late December 1981 until late February 1982.
On or about March 3, 1982, jobs were offered to two employees, Mrs.
Pierpoint and Mrs. Bertram, at the officers club. By about March 27,
1982 all displaced employees had returned to their jobs at the renovated
golf course snack bar or had been placed elsewhere on the base. B.
Discussion and Conclusions
The complaint alleges that Respondent closed the snack bar on
December 31, 1981 and furloughed two employees on January 15, 1982
without giving the Union adequate notice and an opportunity to bargain
on the impact and implementation of such changes in terms and conditions
of employment.
Respondent contends that there was no change in conditions of
employment as the snack bar closing was an annual event; that it
substantially complied with the negotiated agreement concerning changes
in work schedules; and that it worked in good faith with the Union
through Mr. Denton and Ms. Gardner concerning the closing and in trying
to obtain alternative employment for the employees.
The closing of the snack bar in December 1981 represented a change
from previous years as the snack bar had previously closed in November,
and employees had been told it would remain open all of the 81-82
winter. Moreover, absent clear and unmistakable evidence of waiver, the
right to bargain need not be exercised at every opportunity. Department
of the Air Force, Scott Air Force Base, 5 FLRA No. 2 (1981). There was
no waiver of the right to bargain here. The actions taken can not be
equated with mere changes in work schedules or interruptions of work on
a regularly scheduled workday which are the actions covered by the
collective bargaining agreement.
Respondent was obligated by section 7106(b)(2) and (3) of the Statute
to afford the Union reasonable notice of its intention to close the
nonappropriated fund snack bar and an opportunity to negotiate with
respect to the procedures which management would observe in exercising
its authority and appropriate arrangements for employees adversely
affected by its exercise of authority, unless such negotiations would
prevent the agency from acting at all. Department of the Air Force,
47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65
(1980).
The closing of the snack bar resulted in employee transfers, changed
working hours, reduced working hours, and ultimately, furloughs.
Respondent was also obligated to afford the Union notice and an
opportunity to negotiate concerning the impact and implementation of
these changes. Department of Health and Human Services, Social Security
Administration, 10 FLRA No. 20 (1982); Federal Correctional
Institution, 8 FLRA No. 111 (1982); Department of the Air Force, Scott
Air Force Base, 5 FLRA No. 2 (1981).
The record reflects that Respondent did not provide the Union
reasonable notice of the closing of the snack bar on December 31, 1981.
The Union received notice from employees of the closing on December 30
and requested to negotiate on the impact and implementation of such a
change on December 30, 1981, January 4, 1982, and January 13, 1982.
Respondent agreed on January 4, 1982 to try to find other jobs for the
employees, and it appears that it did attempt to find other employment
for the employees. However, apart from informational-type exchanges on
January 4 and January 13, 1982, there is no evidence that Respondent
engaged in collective bargaining with the Union. That is, there is no
evidence that Respondent met with the Union and bargained in a good
faith effort to reach agreement with respect to appropriate arrangements
for the adversely affected employees as requested by the Union and as
required by the Statute. Respondent simply proceeded unilaterally to
make such arrangements. Respondent did honor the Union's subsequent
request that it make a special effort to find employment for Ms. Dombal;
however, this occurred after she had already been transferred and after
her working hours had been drastically reduced.
Similarly, while Respondent provided notice to the Union on January
12, 1981 of the furloughs of two employees on January 15, 1982, there is
no evidence that Respondent negotiated with the Union, as requested,
concerning the impact and implementation of the furloughs. The
Authority has held that Union proposals designated to establish
equitable furlough and recall procedures would be within an agency's
duty to bargain. National Treasury Employees Union, 7 FLRA No. 42
(1981).
It is concluded that Respondent violates section 7116(a)(1) and (5)
of the Statute in these respects as alleged.
In addition to requesting the usual notice and bargaining order,
counsel for the General Counsel argues persuasively that a back pay
award is the only means of fully insuring that the Respondent will
fulfill bargaining obligations in the future. However, in order for
retroactive back pay to be authorized under the Back Pay Act, /4/ there
must be a determination not only that the employee has suffered an
unjustified or unwarranted personnel action within the meaning of the
Act, but also that such action directly resulted in the denial of pay
that the aggrieved employee would otherwise have received. Picatinny
Arsenal, U.S. Army Armament Research and Development Command, Dover, New
Jersey, 7 FLRA No. 109 (1982); American Federation of Government
Employees, Local 2811, 7 FLRA No. 97 (1982); Veterans Administration
Hospital, 4 FLRA No. 57 (1980).
It is not possible to conclude from the record that by Respondent's
failure to negotiate on impact and implementation the snack bar
employees were affected by unjustified or unwarranted personnel actions
which directly resulted in the loss of pay. To put it another way, it
appears that back pay would not be appropriate in the absence of a
finding that the snack bar employees would have remained on the payroll
had negotiations occurred. It is not possible to draw this conclusion
from the record.
III. Recommendations
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Air Force, Scott Air
Force Base, Illinois shall:
1. Cease and desist from:
(a) Closing the snack bar at the Scott Air Force Base golf
course without first notifying the National Association of
Government Employees, Local R7-23, the employees'exclusive
bargaining representative, and affording it the opportunity to
negotiate to the extent consonant with law and regulation
concerning the procedures which management officials will observe
in exercising the decision to close the snack bar and appropriate
arrangements for employees adversely affected thereby.
(b) Failing or refusing to provide an opportunity for the
National Association of Government Employees, Local R7-23, to
negotiate, to the extent consonant with law and regulation,
concerning the impact and/or implementation of a decision to
furlough bargaining unit employees represented by it.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their 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, bargain concerning procedures relating to the
implementation of the decision to close the snack bar at the Scott
Air Force Base golf course on December 31, 1981 and concerning
appropriate arrangements for employees adversely affected thereby.
(b) Upon request, bargain concerning procedures relating to the
employees on January 15, 1982 as a result of the closing of the
golf course snack bar and/or concerning appropriate arrangements
for the employees adversely affected.
(c) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander,
375th Air Base Group (MAC) and shall be posted and maintained by
him for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Commander shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Five, Federal Labor Relations Authority, Chicago, Illinois,
in writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-20083 be,
and it hereby is, dismissed.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: February 23, 1983
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
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT close the snack bar at the Scott Air Force Base golf course
without first notifying the National Association of Government
Employees, Local R7-23, the employees' exclusive bargaining
representative, and affording it the opportunity to negotiate to the
extent consonant with law and regulation concerning the procedures which
management officials will observe in exercising the decision to close
the snack bar and appropriate arrangements for employees adversely
affected thereby. WE WILL NOT fail or refuse to provide an opportunity
for the National Association of Government Employees, Local R7-23, to
negotiate, to the extent consonant with law and regulation, concerning
the impact and/or implementation of a decision to furlough bargaining
unit employees represented by it. WE WILL NOT in any like or related
manner, interfere with, restrain, or coerce employees in the exercise of
their rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL, upon request, bargain concerning procedures relating
to the implementation of the decision to close the snack bar at the
Scott Air Force Base golf course on December 31, 1981 and concerning
appropriate arrangements for employees adversely affected thereby. WE
WILL, upon request, bargain concerning procedures relating to the
implementation of the decision to furlough two bargaining unit employees
on January 15, 1982 as a result of the closing of the golf course snack
bar and/or concerning appropriate arrangements for the employees
adversely affected.
(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 of
the Federal Labor Relations Authority, Region Five, whose address is :
175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois, 60604, and
whose telephone number is: (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1A/ Noting particularly the absence of exceptions with respect
thereto, the Authority adopts the Judge's Decision that the Respondent
had engaged in certain unfair labor practices alleged in the complaint
in Case No. 5-CA-20130.
/1/ Respondent's post-hearing motion that official notice be taken of
Air Force Regulation 40-552, dated September 15, 1971, was unopposed,
and is hereby granted.
/2/ The Union's new proposals were as follows:
a. Employees will be released from all duties so that they
will be free to depart the worksite no later than their scheduled
quitting time. In the event that any employee is suffered or
permitted to work even 1 second beyond their scheduled quitting
time, that employee will be paid a minimum of two hours overtime
and will not be required to stay on site after the original reason
the overtime was required has been accomplished.
b. Employees will be given two days notice in writing, when
overtime is required. Failure to provide such notice will give
the employee the right to refuse to work the overtime except when
an emergency exists. Failure of employees to show up for work
when scheduled shall not be considered an emergency.
c. Any employee who has to incur extra expenses because of
overtime worked, shall have those expenses reimbursed within one
day of notice to management.
d. Any employee who misses their normal transportation because
of less than two days notice, shall be provided timely
transportation to their destination at no cost to themselves.
Delays in arriving at their destination shall be reimbursed as
overtime compensation.
e. Management shall make every effort to eliminate the impact
of the elimination of routine overtime as the occasion arises.
f. Management shall administer overtime assignments in a fair
and equitable manner assuring that all employees get an equal
amount. Those employees who do not want overtime, shall have
their share evenly distributed among the remainder.
g. Management shall give the employees two weeks notice after
the conclusion of these negotiations prior to eliminating overtime
and shall ensure that all employees are served with a copy of the
negotiated agreement pertaining to this subject.
/3/ The General Counsel points out that the discontinuance of routine
overtime caused increased work on the shifts. None of the Union's
proposals offered during the six month period identified or sought to
address this possible impact area.
/4/ The Back Pay Act of 1966 was amended by the Civil Service Reform
Act of 1978 (5 U.S.C. 5596). Section 5596(b)(1)(A)(i) now provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee--
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect--
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period; . . . .