26:0256(32)CA - Transportation and AFGE Local 2747 -- 1987 FLRAdec CA

 26 FLRA No. 32
 
 DEPARTMENT OF TRANSPORTATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2747, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-20217 
                                                 (19 FLRA No. 1)
 
                       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 District of Columbia Circuit.
 The court granted the Authority's unopposed motion and remanded the case
 for further consideration in light of the decision of the Ninth Circuit
 in Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429 (9th
 Cir. 1985) (FEMTC).  In 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).  In those cases, the Authority determined that proposals
 concerning paycheck distribution were outside the duty to bargain
 because they concerned the methods and means of performing work under
 section 7106(b)(1) of the Federal Service Labor-Management Relations
 Statute (the Statute).
 
    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,
 25 FLRA No. 31 (1987) (Mare Island Naval Shipyard).  In Mare Island
 Naval Shipyard, we reviewed and revised the Authority's previous
 decision that the method of paycheck distribution concerned the methods
 and means of performing the agency's work.  We concluded that paycheck
 delivery does not involve 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 regulations 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 Dep,rtment of Transportation (Respondent)
 committed unfair labor practices when it prevented the Third Coast Guard
 District from bargaining with the American Federation of Government
 Employees, Local 2747, AFL-CIO (the Union) the exclusive representative
 of the unit of employees at the Third Coast Guard District, concerning
 the substance of a proposed change in paycheck and savings bonds
 distribution.  Accordingly, we reverse the Authority's previous decision
 in this case, Department of Transportation, 19 FLRA No. 1 (1985).
 
                         II.  History of the Case
 
                                 A.  Facts
 
    In early January 1982, Barry Lang, Labor Relations Specialist for the
 Third Coast Guard District informed Union President Richard Gomez that
 the Respondent was going to issue an order which would end the
 distribution of employee paychecks and savings bonds at the worksite.
 At that time, the majority of the unit employees had been receiving
 their checks and bonds at the worksite for some time.  Gomez asked Lang
 what management's position would be if the Union put forth a bargaining
 proposal that pay procedures remain "as is." Lang replied that
 management would take the position that such a proposal would be
 nonnegotiable since it would conflict with the Respondent's regulation
 for which a compelling need existed.  Lang further told Gomez that the
 Union could appeal the determination to the Authority, but in any event,
 management would be glad to entertain any proposal he had to negotiate
 on the impact and implementation of the order.  Gomez later told Lang
 that he did not wish to bargain on the impact and implementation aspect
 of this matter.
 
    On January 7, 1982 the Respondent issued Order 2730.3 entitled
 "Distribution of Paychecks and U.S. Savings Bonds." The effect of this
 order was to discontinue the practice of delivering employees' paychecks
 and bonds to the employees' offices.  Under the order, all future checks
 and bonds were to be delivered by direct mail delivery.
 
    On January 22, 1982, the Coast Guard, as a component of the
 Respondent, notified all of its constituent organizations that they were
 to comply with the requirements of the Respondent's Order 2730.3 by
 February 19, 1982.  The Union received a copy of this message and on the
 same day submitted to the Third District Commander a written request
 that the parties negotiate on this matter.  The Union's request also
 contained its bargaining proposal that paychecks continue to be
 distributed to employees at the worksite as they had been in the past.
 The Union further contended that no compelling need existed for the
 Respondent's action.
 
    By memorandum to the Union dated January 25, 1982 the Third District
 refused to negotiate on the Union's proposal contending that the
 proposal was not negotiable "because it conflicts with Respondent's
 Order 2730.3 of January 7, 1982 for which a compelling need exists." On
 January 28, 1982, the Third District issued a notice to employees which
 stated that the delivery of Third District paychecks at the jobsite
 would cease by February 15, 1982 and by that date, all employees must
 designate their home address, a post office box or a financial
 institution for the receipt of paychecks.  By February 16, 1982 all
 employees of the Third District complied with this notice and thereafter
 the direct distribution of paychecks and bonds at the worksite ceased.
 
                  B.  Administrative Law Judge's Decision
 
    The Judge found under the circumstances that the Respondent had not
 met its burden of demonstrating that Order 2730.3 is essential, as
 distinguished from helpful or desirable, to the execution of its
 functions in a manner which is consistent with the requirement of an
 effective and efficient government.  Accordingly, he concluded that the
 Respondent by requiring the Third Coast Guard District to implement the
 Order 2730.3 discontinuing the distribution of unit employees' paychecks
 and bonds, a condition of employment within the meaning of the Statute,
 violated section 7116(a)(1) and (5) of the Statute.  The Respondent did
 not contend that the paycheck and bond distribution is not a condition
 of employment.
 
               C.  The Authority's Decision in 19 FLRA No. 1
 
    In its original decision in this case, 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 Respondent's alleged interference with the bargaining
 relationship between the Third Coast Guard District and the Union, by
 preventing bargaining concerning the change of paycheck and savings bond
 delivery, did not violate section 7116(a)(1) and (5) of the Statute.
 The Authority found that the Respondent had no obligation to bargain
 over its decision to change the method of distributing paychecks and
 savings bonds because such distribution involved the method by which the
 Respondent fulfilled its payroll obligations.  The Authority found that
 the distribution constituted 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 Respondent.  Accordingly, the
 Authority found that the Respondent's refusal to bargain concerning a
 change in the method of distributing paychecks and savings bonds did not
 constitute a violation of section 7116(a)(1) and (5) of the Statute and
 ordered that the complaint be dismissed in its entirety.  In view of its
 decision, the Authority found it unnecessary to address the Respondent's
 assertion that a compelling need existed under section 7117 of the
 Statute for the regulation involved in the case.
 
                      III.  Positions of the Parties
 
    Following the court's remand, the Union filed a supplemental
 submission, which we have accepted under section 2429.26 of our
 Regulations.  The Union argues in agreement with the Judge that the
 Respondent failed to prove that a compelling need existed for the
 Respondent's Order 2730.3.  The Union further contends that the
 Respondent violated section 7116(a)(1) and (5) of the Statute by
 refusing to allow the Third Coast Guard District to bargain with the
 Union concerning the substance of a proposed change in paycheck and
 savings bond distribution.
 
                               IV.  Analysis
 
    As noted above, in the Authority's previous decision in this case,
 the Authority did not address the issue of whether a compelling need
 existed under section 7117 of the Statute for the Respondent's Order
 2730.3 because of our application of FEMTC.  However, the Authority
 fully considered and addressed the issue of compelling need for
 substantially similar regulations in Mare Island Naval Shipyard.
 Accordingly, for the reasons stated in that decision, and in agreement
 with the Judge in the instant case, we find that the Respondent's
 contention that there was a compelling need for its Order 2730.3, under
 section 2424.11(a) of the Authority's Rules and Regulations, cannot be
 sustained.  Therefore, the Respondent's refusal to allow the Third Coast
 Guard District to bargain with the Union concerning the substance of a
 proposed change in paycheck and savings bond distribution, a condition
 of employment within the meaning of the Statute, violated section
 7116(a)(1) and (5) of the Statute.
 
                                   ORDER
 
    The Department of Transportation shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally changing established conditions of employment at the
 Third Coast Guard District of the U.S. Coast Guard concerning the manner
 of distributing paychecks and savings bonds of employees represented by
 American Federation of Government Employees, Local 2747, AFL-CIO, the
 employees' exclusive collective bargaining representative.
 
    (b) In any like or related manner interfering with restraining or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
    (a) Withdraw and rescind Order 2730.3 concerning the manner of
 distribution of paychecks and savings bonds applicable to employees of
 the Third Coast Guard District represented by American Federation of
 Government Employees, Local 2747, AFL-CIO, and reinstate the procedures
 and policies in effect prior to its issuance.
 
    (b) Notify American Federation of Government Employees, Local 2747,
 AFL-CIO, the exclusive representative of the employees of the Third
 Coast Guard District, of any intended change in the manner of
 distributing bargaining unit employees' paychecks and savings bonds and
 upon request negotiate with the representative to the extent consonant
 with law and regulations on any change.
 
    (c) Post at its Office of the Secretary, Department of
 Transportation, Washington, D.C. facility and its Third Coast Guard
 District, U.S. Coast Guard, New York, New York facility 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
 Secretary, Department of Transportation, Washington, D.C., or another
 official personally designated by the Secretary, and they shall be
 posted for 60 consecutive days thereafter in conspicuous places,
 including all bulletin boards and other places where notices to
 employees in the Office of the Secretary, Department of Transportation,
 Washington, D.C., and in the Third Coast Guard District, U.S. Coast
 Guard, New York, New York are customarily posted.  Reasonable steps
 shall be taken to ensure that notices are not altered, defaced or
 covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 II, in writing, within 30 days from the date of this Order, what steps
 have been taken to comply with this Order.
 
    Issued, Washington, D.C., March 17, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 unilaterally change established conditions of employment
 at the Third Coast Guard District of the U.S. Coast Guard concerning the
 manner of distributing paychecks and savings bonds of employees
 represented by American Federation of Government Employees, Local 2747,
 AFL-CIO, the Employees' exclusive collective bargaining representative.
 
    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 rescind Order 2730.3 concerning the manner of distribution of
 pay checks and savings bonds as applicable to employees of the Third
 Coast Guard District represented by American Federation of Government
 Employees, Local 2747, AFL-CIO, and reinstate the procedures and
 policies in effect prior to its issuance.
 
    WE WILL notify American Federation of Government Employees, Local
 2747, AFL-CIO, the exclusive representative of the employees of the
 Third Coast Guard District, of any intended change in the manner of
 distributing bargaining unit employees' paychecks and savings bonds and
 will, upon request, negotiate with the representative to the extent
 consonant with law and regulations on any 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 this provision, they may communicate directly with Regional
 Director, Region II, Federal Labor Relations Authority, whose address:
 26 Federal Plaza, Room 24-102, New York, New York 10278 and whose
 telephone number is:  (212) 264-4934.