25:0972(81)CA - Navy, Washington, DC and Navy, Naval Supply Center, Oakland, CA -- 1987 FLRAdec CA
[ v25 p972 ]
25:0972(81)CA
The decision of the Authority follows:
25 FLRA No. 81
DEPARTMENT OF THE NAVY
WASHINGTON, D.C.
and
DEPARTMENT OF THE NAVY
U.S. NAVAL SUPPLY CENTER
OAKLAND, CALIFORNIA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1533, AFL-CIO
Charging Party
Case No. 9-CA-30108
(19 FLRA No. 7)
DECISION AND ORDER ON REMAND
I. Introduction
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the Ninth Circuit. The court vacated
the Authority's original decision and remanded the case for further
proceedings consistent with Federal Employees Metal Trades Council v.
FLRA, 778 F.2d 1429 (9th Cir. 1985) (FEMTC). I; FEMTC, the court
reversed and remanded the Authority's determinations in Federal
Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare
Island Naval Shipyard, Vallejo, California, 16 FLRA 619 (1984) and
American Federation of Government Employees, Local 1533 and Department
of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary
Store, Alameda, California, 16 FLRA 623 (1984) with respect to proposals
concerning paycheck distribution that the Authority found outside the
duty to bargain because they concerned the methods and means of
performing work.
Following the court's remand in FEMTC, we issued our Decision and
Order on Remand in Federal Employees Metal Trades Council, AFL-CIO, and
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California;
American Federation of Government Employees, Local 1533 and Department
of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary
Store, Alameda, California, 25 FLRA No. 31 (1987) (Mare Island Naval
Shipyard). In Mare Island Naval Shipyard, we reviewed the Authority's
previous decision that proposals concerning the method of paycheck
distribution concern the methods and means of performing work under
section 7106(b)(1) of the Statute. We concluded that paycheck delivery
does not involve the methods and means of performing work within the
meaning of section 7106(b)(1) of the Statute. We also concluded that
(1) the proposals related to matters affecting working conditions of
bargaining unit employees, (2) the agency failed to demonstrate a
compelling need for its regulation to bar negotiations on the proposals,
(3) the proposals did not interfere with the agency's right to determine
its budget or organization, and (4) the proposals were not directly or
integrally related to the assignment of work or to determinations as to
the personnel by which the agency's operations were to be conducted.
Consistent with our decision in Mare Island Naval Shipyard, we
conclude in this case that the Respondent U.S. Naval Supply Center (NSC)
committed unfair labor practices when it failed and refused to bargain
with the Union concerning a proposed change in the method of paycheck
and savings bonds distribution.
II. History of the Case
A. Facts
On or about January 14, 1983, NSC unilaterally implemented new pay
distribution procedures for employees in the unit. /*/ Under those
procedures, all employees hired on or after October 1, 1982 were
required to have their paychecks and savings bonds either directly
deposited in a financial institution or delivered to a nonwork address.
Before implementation of the new procedures, the Union had requested
that Respondent NSC negotiate on the substance of the change in paycheck
and savings bonds distribution. NSC refused on the grounds that the
change constituted a determination as to the "technology, methods, and
means of performing work" under section 7106(b)(1) of the Statute and
because the negotiations were barred by an agency-wide regulation for
which there was a compelling need.
The General Counsel issued a complaint alleging that the NSC's
failure and refusal to bargain with the Union violated section
7116(a)(1) and (5) of the Statute. The complaint also alleged that
Respondent Department of the Navy (Navy) violated section 7116(a)(1) and
(5) of the Statute by interfering with NSC's bargaining obligations with
the Union on the new pay distribution policy.
B. The Administrative Law Judge's Decision
The Administrative Law Judge concluded that NSC violated section
7116(a)(1) and (5) of the Statute when it failed and refused to bargain
with the Union concerning the proposed change in the method of paycheck
and savings bonds distribution. The Judge found that the decision to
change pay practices involved a negotiable condition of employment. The
Judge also dismissed the complaint against Navy because the Navy did not
interfere with NSC's bargaining obligation.
C. The Authority's Decision in 19 FLRA No. 7
In its original decision in this case (19 FLRA No. 7 (1985)), the
Authority followed the precedent established in the original Mare Island
Naval Shipyard case, 16 FLRA 619 (1984). The Authority concluded,
contrary to the Judge, that the method of paycheck and savings bonds
distribution was a method and means of performing work within the
meaning of section 7106(b)(1) of the Statute and was negotiable only at
the election of the Agency. Therefore, the Authority found that NSC's
refusal to bargain on the change in the method of paycheck and savings
bonds distribution did not violate section 7116(a)(1) and (5) of the
Statute. The Authority also adopted the Judge's conclusion that Navy
did not prevent NSC from fulfilling its bargaining obligation to the
Union and dismissed the complaint against Navy.
III. Positions of the Parties
Following the court's remand, both parties filed supplemental
submissions. We have accepted those submissions for filing under
section 2429.26 of our Regulations. Navy submitted the same brief in
this case as it did in Mare Island Naval Shipyard. The Union
essentially states that there is no merit to the Agency's contentions.
IV. Analysis
As noted above, the Navy's arguments in this unfair labor practice
case are the same that it made in the negotiability cases involving Mare
Island Naval Shipyard. We fully considered and addressed those
arguments in Mare Island Naval Shipyard. Accordingly, for the reasons
stated in that decision, we reject the contention in this case that the
method of paycheck and savings bonds distribution is not within the duty
to bargain. Therefore, the NSC's refusal to bargain with the Union over
the proposed change in the method of paycheck and savings bonds
distribution violated section 7116(a)(1) and (5) of the Statute. We
also find, in agreement with the Judge, that the Navy did not interfere
with the NSC's bargaining obligation and therefore did not commit an
unfair labor practice.
V. Conclusion
Pursuant to section 2423.29 of our Regulations and section 7118 of
the Statute, we find that the Respondent NSC violated section 7116(a)(1)
and (5) of the Statute by failing and refusing to bargain concerning a
proposed change in the method of paycheck and savings bonds
distribution. We also find that the Navy did not commit an unfair labor
practice.
ORDER
The Department of the Navy, U.S. Naval Supply Center, Oakland,
California, shall:
1. Cease and desist from:
(a) Instituting any change in the established policy and practice of
the hand delivery of employee paychecks and savings bonds on the
premises without first notifying the American Federation of Government
Employees, Local 1533, AFL-CIO, the exclusive representative of its
employees, and affording the representative the opportunity to negotiate
in good faith, to the extent consonant with law and regulations, prior
to any decision concerning such policy and practice.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind and withdraw the decision to change the method of
paycheck and savings bonds distribution unlawfully implemented on
January 14, 1983.
(b) Reinstate the policy and practice of the hand delivery of
paychecks and savings bonds on the premises as it existed prior to
October 1, 1982.
(c) Notify the American Federation of Government Employees, Local
1533, AFL-CIO of any proposed change regarding the hand delivery of
paychecks and savings bonds on the premises and, upon request, negotiate
with such representative, to the extent consonant with law and
regulations, on any such proposal.
(d) Post at its facility at the Department of the Navy, U.S. Naval
Supply Center, Oakland, California, 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 the Commanding Officer
and they shall be posted 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 the Notices are not altered, defaced, or covered by
any other material.
(3) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
IX, in writing, within 30 days from the date of this Order, what steps
have been taken to comply with this Order.
The portion of the complaint alleging a violation of the Statute by
the Department of the Navy is dismissed.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) The parties stipulated that prior to January 14, 1983 all
employees in the bargaining unit had the option of receiving their
paychecks and savings bonds at their work location or at a nonwork
address. This option had been available to NSC employees for at least
30 years.
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 any change in the established policy and
practice of the hand delivery of employee paychecks and savings bonds on
the premises without first notifying the American Federation of
Government Employees, Local 1533, AFL-CIO, the exclusive representative
of our employees, and affording it the opportunity to negotiate in good
faith, to the extent consonant with law and regulations, prior to any
decision concerning such policy and practice.
WE WILL NOT in any like or related manner, interfere with, restrain
or coerce our employees in their rights assured by the Federal Service
Labor-Management Relations Statute.
WE WILL rescind and withdraw the decision to change the method of
paycheck and savings bonds distribution which we unlawfully implemented
on January 14, 1983.
WE WILL reinstate the policy and practice of the hand delivery of
paychecks and savings bonds on the premises as it existed prior to
October 1, 1982.
(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 IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, California 94103, and
whose telephone number is: (415) 995-5000.