[ v29 p1236 ]
The decision of the Authority follows:
29 FLRA No. 96 DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, PEARL HARBOR, HAWAII Respondent and HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Case Nos. 98-CA-60042 98-CA-60043
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding relating to the implementation of a quality circle program. The Judge found that the Respondent had committed an unfair labor practice by changing conditions of employment without providing advance notice and an opportunity to bargain to the Charging Party (the Union). The Judge also found that the Respondent had not committed other unfair labor practices alleged in the complaint. The General Counsel has filed exceptions to the Judge's Decision and the Respondent has filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge at the hearing and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Department [PAGE] of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, shall:
1. Cease and desist from:
(a) Implementing changes in the quality circle program relative to bargaining unit employees without first obtaining the agreement of the Hawaii Federal Metal Trades Council, AFL - CIO, the exclusive collective bargaining representative.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Withdraw Instruction 5200.15B and the quality circle program in effect under the Instruction and operate the quality circle program under the provisions of Instruction 5200.15A unless and until Instruction 5200.15A is properly modified or withdrawn as required by the Statute.
(b) Post at its offices in Pearl Harbor, Hawaii, copies of the attached Notice on forms furnished by the Authority. Upon receipt they will be signed by the Shipyard Commander and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards, where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered.
(c) Notify the Regional Director, Region IX, Federal Labor Relations Authority, within 30 days of the date of this Order, in writing, as required under section 2423.30 of the Authority's Regulations, of the steps it has taken to comply.
Issued, Washington, D.C.,October 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p2 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement changes in the quality circle program relative to bargaining unit employees without first obtaining the agreement of the Hawaii Federal Employees Metal Trades Council, 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 them by the Statute.
WE WILL withdraw Instruction 5200.15B and the quality circle program in effect under that Instruction and operate the quality circle program under the provisions of Instruction 5200.15A unless and until Instruction 5200.15A is properly modified or withdrawn as required by the Statute.
_____________________________ (Agency or 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.
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, CA 94103, and whose telephone number is: (415) 995-5000. [PAGE]
DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, PEARL HARBOR, HAWAII Respondent and HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Case Nos.: 98-CA-60042 98-CA-60043 Karole A. Steinaner For the Respondent Clyde T. Hayashi For the Charging Party R. Timothy Sheils, Esq. and Susan E. Jelen, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge
Statement of the Case
This matter arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. (herein the Statute).
Upon unfair labor practice charges having been filed by the above captioned Charging Party against the above captioned Respondent, the General Counsel of the Federal Labor Relations Authority, by the Regional Director for Region IX, issued a Consolidated Complaint and Notice of Hearing essentially alleging Respondent changed working conditions of bargaining unit employees by unilaterally implementing a new quality circle program which program [PAGE] allegedly constituted bypassing the Charging Party (herein the Union or MTC) through Respondent's dealing directly with bargaining unit employees.
A hearing on the Complaint was conducted in Honolulu, Hawaii at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered. 1
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Union has been the exclusive collective bargaining representative of Respondent's nonsupervisory employees except management officials, professional employees and various employees working with cryptographic equipment. In 1982 Respondent implemented a pilot Quality Circle (QC) Program at the Pearl Harbor Naval Shipyard (sometimes referred to as the Shipyard). The matter had been discussed with the Union and the program was implemented with the Union's concurrence. Apparently the pilot program proved successful and on April 29, 1983, after negotiations with the Union on the matter, a QC Program for shipyard employees was established. 2 The program appeared in a document entitled NAVSHIPYDPEARLINST 5200.15 (herein Instruction 5200.15) which set forth how the QC Program would operate. The Instruction included the following information:
a. A Quality Circle is a small group of people doing same type of work, trained in problem solving, who voluntarily meet together on a regular basis to identify, analyze and solve production and other problems in their [ v29 p2 ] area. Quality Circles were developed in Japan in 1962 and have played a significant role in improving the quality of that country's output of goods and services. The Quality Circles concept came to the United States in about 1972. Since its arrival many U.S. companies and corporations and Naval Shipyards have adopted the technique with good results.
"4. Objectives. The objectives of the quality circle program are to:
a. Develop a positive, 'Think Shipyard,' attitude on the part of employees and supervisors. b. Reduce errors and enhance quality of workmanship. c. Inspire more effective teamwork. d. Promote job involvement. e. Increase positive employee motivation. f. Create a problem-solving capability. g. Build an attitude of 'problem prevention.' h. Improve shipyard communication. i. Develop more harmonious manager/worker relationships. j. Promote a personal and leadership development. k. Promote safety awareness. l. Promote a sense of pride of belonging. m. Enrich the quality of working life. n. Promote meaningful employment.
a. The Q. C. Program will be managed by a Steering Committee, comprised of personnel from Department and Offices of the Shipyard. The committee shall be responsible for selecting the program manager, facilitators, and determining their length of service. The program manager and facilitators will be members of the Quality Circle Steering Committee.
b. Participation of shipyard employees in Quality Circles will be completely voluntary. Involved department employees are free to join, [ v29 p3 ] not join, drop-out, or re-enter the program. However, once an employee opts to participate, it should be with a commitment to participate until at least one management presentation is completed.
c. The number of circles to be established, number facilitators, and circle expansion rate shall be controlled by the Productivity Improvement Group. The Quality Circle Steering Committee shall make recommendations to the group for approvals in this area.
e. Quality Circles will have absolute autonomy within the guidelines of this instruction regarding the selection of problems on which to work. Employees and managers may make suggestions through the Program Manager for consideration by the appropriate circle.
f. Quality Circles will:
(1) Direct their primary attention to problems and projects under their control.
(2) Assure that each member has an equal vote: One person, one vote.
(3) Utilize the Quality Circle techniques as described in their manual.
(4) Set up schedules for meetings and presentations.
(5) Identify, analyze, and solve problems. Management approval, if necessary, will be obtained before proceeding to implement solutions.
(6) Conduct presentations to management regarding specific recommendations, accomplishments, and status.
(7) Attempt to improve communications, harmony, and involvement throughout the Shipyard.
g. Quality Circles will not address such subjects as benefits and salaries, employment [ v29 p4 ] policies, labor relations, personalities or any other subjects deemed by the Steering Committee to be outside the scope of the Quality Circle Program.
j. The Quality Circle Steering Committee shall be comprised of designated representatives from Departments and Offices. The Hawaii Federal Employees Metal Trades Council, AFL - CIO, may have a representative on the Committee by submitting a list of not less than three (3) members nominated by the MTC President to Code 160.
k. Prior to implementing proposed changes to personnel policy or practices or other general conditions of employment submitted by Quality Circles which adversely impact on bargaining unit employees, the MTC will be notified.
"6. Responsibilities 3
a. Shipyard Commander: The Shipyard Commander is committed to the concept that quality of working life and productivity can both be enhanced by active and vigorous management support of the Quality Circles Program. To this end he will direct those necessary actions to ensure positive management support of the program.
b. Chairman - Steering Committee: Will be responsible for the indoctrination of appropriate personnel on Quality Circle concepts.
c. The Steering Committee: will provide guidance in the implementation and conduct of the program. Specifically the committee will:
(1) Establish goals and objectives for the Quality Circle Program. [ v29 p5 ]
(2) Evaluate the qualifications of Facilitator and Program Manager candidates and select the Facilitator and Program Manager.
(3) Develop milestones to identify and control expansion of circles, and periodically review and update the milestones.
(4) Establish training requirements for the Facilitators and Program Manager and training policy for the shipyard.
(5) Identify the parameters which will be used in baseline measurements and evaluation of the program.
(6) Resolve conflicts which cannot be resolved by the Program Manager, the Facilitator, or Circle Leader and participants.
(7) Establish policies for publicity of Q. C. Program.
(8) Review operating budget.
(9) Establish policies for awards and recognition (management presentation certificates, pins, plaque, etc.).
(10) Establish policies for handling non-functioning circles.
(11) Establish general circle policies."
The Instruction went on to state that the Program Manager was responsible for promoting, implementing, operating and the day to day management of the QC Program including training of all personnel, including circle leader selection and activities, monitoring expenditures of the program to ensure they remain within budgetary constraints established by the Quality Circle Steering Committee, acting as liaison between the Steering Committee and QC leaders and issuing written guidelines to QC leaders ". . . with the review/approval of the Steering Committee." Facilitators were to work directly for the Program Manager in effectuating the above responsibilities.
The QC Program was revised by Instruction 5200.15A dated May 7, 1984 after negotiations between Respondent and the Union. The program remained substantially the same as the prior one except with regard to operation of the Steering Committee, certain Union functions and language regarding QC [ v29 p6 ] meetings. Thus, under, section 5 entitled "Policy", supra, item "j" and "k" were revised and a new section "l" was inserted as follows:
"j. The Quality Circle Steering Committee shall be comprised of designated representatives from Departments and Offices as noted below. The Hawaii Federal Employees Metal Trades Council, AFL - CIO, shall have a representative and one alternate representative on the Committee nominated by the MTC President. The MTC representative shall be exempt from Quality Circle Leader Training as noted below.
"k. Prior to implementing proposed changes to personnel policy or practice or other general conditions of employment submitted by Quality Circles which impact on bargaining unit employees, the MTC will be notified and the above proposed changes will be negotiated with the MTC if so requested prior to implementation.
"l. In all Quality Circle meetings attended by management (excluding supervisory/ management officials who are part of the Circle and the Program Manager) and at all management presentations by Quality Circles, the Chief Steward designated in that particular shop, office or code shall be afforded the right to be present. If the Chief Steward is unavailable, his/her designated alternate shall be afforded the right to be present."
Under section 6. "Responsibilities", the language relating to the Steering Committee in subsection c. was revised to read:
"c. The Steering Committee: Will provide guidance in the implementation and conduct of the program. The Steering Committee will consist of representatives from Code 130, 140, 150, 200, 300, 500, 600, and 2300 who have attended Quality Circle Leader Training or equivalent. Representatives from other offices or codes may be added to the steering committee as deemed necessary by the Quality Assurance Director. To stimulate new ideas, two representatives with the longest length of service on the Steering Committee will normally [ v29 p7 ] be rotated every six months. Specifically, the Steering Committee will . . ." 4
In addition, the 1984 revision to the QC Program expanded language relative to Department or Office heads arranging for QCs to meet one hour each week during normal working hours.
The QC Program Manager was Melvin Nakagawa of Respondent's Quality Assurance Office. He was assisted by a staff of four Facilitators and one secretary to administer the program. Facilitators were supervisory or non-supervisory employees who had expressed an interest in the position and were selected by a committee from the Steering Committee. Those selected to be Facilitators were then given leadership training in QC operations. when a shop supervisor or employee conveyed interest in forming a QC, the Program Manager and a Facilitator would meet with the group to instruct them in QC concepts and problem solving techniques. Thereafter the Facilitator would monitor the QC and provide any advice or assistance needed. QCs met one hour each week during worktime, identified what problems they wished to address and developed a proposed solution. Thereafter, the QC made a presentation to a management group which would determine whether the QCs proposal was feasible. The management group could accept, decline or modify the proposal. A Union representative was invited to attend the management presentation and frequently did. Management presentation schedules were issued quarterly and supplied to Steering Committee members.
The record reveals that QCs considered such various matters 5 as poor accessibility to storage records; inadequate utilization of personnel during down time; time wasted; delays during engine testing; no standardized material ordering system; inability to set up equipment; lack of sharp tools; too many discrepancies in toolroom inventories; lack of training; excessive time spent to dump rubbish; poor training procedures; loss of time/money in overhaul procedures; excessive time spent on paperwork; poor [ v29 p8 ] information on job specifications; inadequate job transportation; unavailability of tools; excessive back injuries on certain assignments; insufficient forklifts; historical data not readily accessible or retrievable; lack of equipment to perform work functions; lack of dumpsters and storage cabinets; lack of a hot/cold water drinking fountain; awards for non-use of sick leave and personal recognition to boost morale; and establishing a designated covered lunch area with a bench for certain employees working dockside.
The record further reveals that although the Steering Committee met frequently in 1983, only five or six Steering Committee meetings were held in 1984. 6 At one meeting in 1984 at which the union representative was not present, the Steering Committee decided that further meetings were unnecessary and meetings were suspended. 7 This action was taken since, according to the testimony of Program Manager Nakagawa, the purpose of the Steering Committee was to establish objectives, policies, responsibilities and procedures and since the Committee concluded that the QC Program was successfully launched, no further Steering Committee meetings were necessary and, in any event, it could be revived in the future if required.
In October 1984 the Shipyard experienced a reorganization and the 34 QCs in operation began to rapidly diminish in number until by the end of December 1984, only 10 QCs existed and by April 1985 only two remained viable. During this period QC Program Manager Nakagawa was transferred to the Management Engineering Information Office, his QC activities were sharply reduced to a part-time function and all four Facilitators and the secretary who had been detailed to the QC operation returned to their original organizations.
In March 1985 the Shipyard Commander met with the approximately 6000 Shipyard employees in a series of large meetings dealing with increasing productivity and lowering [ v29 p9 ] costs. During some of these sessions employees raised matters related to the utilization of Quality Circles. It would appear that as a result of these meetings the Shipyard Commander issued a "Notice" on May 15, 1985 which stated as its "purpose":
". . . To establish a Shipyard Improvement Program, using Quality Circle concepts, which is dedicated toward productivity improvement, cost reduction, and overall work improvement in the performance of ship repairs and overhauls, and which will provide an avenue for communicating needs in these areas to senior Shipyard management and the Shipyard Commander. The thrust of this Program is twofold;
"a. promoting involvement of individual workers in eliminating impediments to job progress and developing productivity enhancements.
"b. promoting collaborative efforts of such overhaul principals as Ship Superintendents, General Foremen, Code 365 Chief Test Engineers, Planners, and Project Engineers, to support timely achievement of overhaul milestone events."
The Notice further provided, inter alia, for detailing personnel as follows:
"(1) A Program Manager (designated Code 10OQC) will promote, implement, operate, and manage this program on a day-to-day basis, and will serve as the liaison between the Program Coordinators in the Operations Shop Groups and senior Shipyard management/Shipyard Commander. He will also train the teams made up of key overhaul personnel in Quality Circle techniques, monitor their progress, and serve as liaison between these teams and senior Shipyard management/Shipyard Commander.
"(2) A Program Coordinator will be assigned to each Operations Shop Group, to train shop teams in Quality Circle techniques and to manage the Program within the Shop Group. The Pro ram Coordinator will monitor and advise Code 100QC of progress within the Group and provide liaison [ v29 p10 ] between team members and shop management for implementation of initiatives identified by shop teams."
In late May 1985 Union Vice President Galen Gregory received a copy of the Notice from a steward. Accordingly, on June 5 Gregory sent the following letter to Jeffrey Wataoka, head of Respondent's Employee Relations and Services Division:
"It has been brought to my attention by one of our Stewards that (a Notice) dated 15 May 1985 has been issued without notification to the HFEMTC or to myself, a member of the Quality Circle Steering Committee. I believe this to be a case of bad faith bargaining and management contempt for the Civil Service Reform Act.
"Will you please rectify this situation to foster good labor-management relations? Please contact me personally as to your findings."
On June 20, Wataoka replied, stating inter alia:
"This is in response to your letter of June 5, 1985 concerning the Notice on Shipyard Improvement Program. As indicated in the Notice, the program will utilize Quality Circle concepts of which you are familiar. In our discussions, you expressed concern about proposed changes in the Quality Circles Program without MTC input. I have discussed this matter with Mr. Melvin Nakagawa, the Program Manager for Quality Circles (Code 100QC), 8 and he has assured me that the basic Quality Circles Program is not changed (i.e., prior to implementing proposed changes to personnel policies, practices, or other general condi-tions of employment submitted by the Quality Circles, the MTC will be notified and the changes will be negotiated as appropriate. Further, the Chief Steward in a particular organization shall be afforded the right to be present at management presentations by Quality Circles.)" [ v29 p11 ]
Within a few days Gregory met with Wataoka and Nakagawa. Gregory complained that the Union had not been informed about Respondent re-establishing the QC Program. 9 During the conversation Gregory was informed that the new Improvement Program would not involve any substantive changes in the QC Program or the Union's rights with regard to that program. However, Nakagawa indicated that there would be some changes in the QC Program conforming to the Shipyard Commander's wishes. Gregory asked why the Notice was issued if the QC Program hadn't changed. Management had difficulty responding to the question but assured Gregory that if any changes were made, the Union would be notified. Gregory inquired as to what happened to the Steering Committee that was supposed to help administer the program since it had not met for some time. Nakagawa acknowledged that the Steering Committee had not met and indicated that the Union hadn't been attending the meetings when they were held. Gregory told Nakagawa and Wataoka that any change in the QC Program including the status of the Steering Committee should be set forth in a proposed instruction so the Union would have an opportunity to negotiate on the matter. Nakagawa indicated he would get a proposed instruction to the Union "shortly".
On July 3, 1985, without further notice to the Union, the Shipyard Commander issued a Memorandum which set forth the following "immediate steps" to be taken by various Departments to expedite the implementation of the Shipyard Improvement Program with enclosures which set forth detailed responsibilities of the following Departments and personnel:
"a. Operations Department
(1) Provide Code 100QC with lists of nominees from each of the Production Shop Groups for the position of Program Coordinator. Nominees shall be from positions with skill levels compatible with the responsibilities listed in enclosure (1) for Program Coordinators. Code 100QC will select individuals from this list for detail to the Program Coordinator positions.
(2) Provide Code 100QC with lists of key overhaul personnel (Planners, Ship Superintendents, [ v29 p12 ] Chief Test Engineers, General Foremen) for participation in this Program as members of submarine and surface ship project teams.
"b. Engineering Department
(1) Provide Code 100QC with lists of key overhaul personnel (waterfront engineering support team) for participation in this Program as members of submarine and surface ship project teams.
(1) Establish cost class to cover charges incurred by this Program including labor expenditures by the Program Manager, Program Coordinators, and team members.
"d. Code 100QC
(1) Select personnel for detail as Program Coordinators in the Operations Shop Groups. Direct Program Coordinators in establishing the operating structure for this Program in the Operations Shops, using the guidelines provided in enclosures (1) and (2).
(2) Develop a network of QC project teams comprised of key overhaul personnel, using guidelines provided in enclosures (1) and (2).
(3) Develop strategy for extending this Program throughout all Shipyard Departments and Offices to reduce cost of our total work operations."
Shortly after the issuance of the July 3 memorandum, four Coordinators 10 were appointed by different shop group Department heads and added to Code 100QC under Nakagawa's leadership. By late August the four Coordinators had completed 56 hours of QC Coordinator training. [ v29 p13 ]
On August 29 an article appeared in the Shipyard Log, the Shipyard newspaper distributed to all employees, announcing Nakagawa as "head of the newly established Quality Circle (QC) Shipyard Improvement Program" and the selection of Coordinators. After reading the article Gregory confronted Wataoka and complained that although the Union had been promised a copy of a proposed instruction on the matter, the article indicated the program had already been set up prior to negotiations with the Union. Wataoka admitted a mistake had occurred and promised to provide the Union with a proposed instruction by the third week of September.
In September and October, 1985 the number of QCs at the Shipyard began to increase. 11 During this same period Union Vice President Gregory made repeated requests from management for a proposed instruction delineating the changes which the new Shipyard Improvement Program made to the QC Program which the Union had previously negotiated (Instruction 5200.15A, supra). Although apologetic, Respondent did not provide a proposed instruction to Gregory until October 10, 1985 when Wataoka gave Gregory a draft copy of the revised instruction which was called a Chop Chain version. The Chop Chain version was for submission to supervisors and management for comment before top management decided on an ultimate instruction. Wataoka told Gregory that the Union could submit comments if it wished and after comments were received from management, Respondent would notify the Union and give it an opportunity to negotiate on the matter. The Chop Chain version differed from Instruction 5200.15A, supra, primarily in that different objectives and policy statements were listed and the Steering Committee was eliminated.
During this time period Respondent's QC Coordinators were meeting with various shop employees to explain the operation and formation of QCs and solicit interest in QC leadership training. One such meeting occurred in Shop 17 on October 10, 1985 where no QC had previously existed. In response thereto, MTC Chief Steward Peter Teijeiro wrote the Shop Superintendent contending the formation of a QC in Shop 17 would be a change in working conditions and stating, inter alia: [ v29 p14 ]
"I believe that the proposal to implement quality circles in Shop 17 is negotiable and I am asking management's proposal in terms of how they plan to proceed with the quality circles program in writing, and submit it to the Union for negotiation prior to implementation of any quality circles in Shop 17."
Wataoka responded to Teijeiro's letter, stating:
". . .we currently have a Quality Circle Program in the Shipyard. Therefore, the formulation of new circles does not constitute a change in general working conditions of employees. Coincidentally, Mr. Melvin Nakagawa (Code 100Q), Mr. Galen Gregory, and I met on the same date of your letter to discuss changes to the current instruction. when management completes the instruction, the MTC will be asked to provide comments.
"The Chief Steward of each shop/office has a significant role in the Quality Circle Program. Specifically, cognizant Chief Stewards will be afforded the opportunity to attend management presentations by Quality Circles. Further, the MTC will be notified prior to implementation of proposed changes to personnel policy or practice or other general conditions of employment submitted by Quality Circles which impact on bargaining unit employees. If requested, the proposed changes will be negotiated in accordance with the CSRA."
Teijeiro challenged Wataoka's position in a letter of October 16, replying, inter alia:
"The QC Program that was presented in Shop 17 was not the same as the program currently in the Shipyard. There are many changes that are being implemented that contradicts the old instructions.
"Some of the significant changes are as follows:
1. The objectives have changed tremendously and no longer encompasses those objectives of the Union. [ v29 p15 ]
2. The current Shipyard instruction provides for a representative of the HFEMTC on the QC Steering Committee.
3. There are no facilitators but only team leaders.
"There are many more changes to the QC Program that was unilaterally changed by the management team without first allowing the Union to bargain on the changes as allowed for by law.
"Most importantly, there is no statement of commitment by the Shipyard Commander to the program. Also, there seems to be a preplanned designed attempt to keep the Union out of the program."
Wataoka replied on October 25:
"Your letter of October 16, 1985 expressed dissatisfaction with my response concerning the formulation of new Quality Circles in Shop 17. My reply was based on the premise that there would not be a change in general working conditions of employees. If there is a change in working conditions affecting bargaining unit employees, management is obligated to notify and negotiate, as appropriate, the proposed personnel action.
"You asked to negotiate the Quality Circle Program prior to implementation in Shop 17. I plan to notify the MTC of the changes in the current instruction and provide the officials an opportunity to comment. I anticipate this will occur in approximately three weeks. . . . Please contact Ben or Galen regarding your participation in negotiation."
On or about November 13 and November 15 the Union served copies of two unfair labor practice charges on Respondent, one alleging unilateral implementation of a new QC Program in Shop 64F and the other alleging unilateral changes in the established QC Program.
On November 22, 1985 Wataoka sent the Union a copy of the proposed QC Program instruction (Instruction 5200.15B). The proposed instruction was almost identical in content to the Chop Chain version previously given to the Union on [ v29 p16 ] October 10, supra. While the proposed instruction was Similar to Instruction 5200.15A, it varied significantly from the prior instruction in various ways, e.g.: by changing the "Objectives; deleting the existence of a Steering Committee, many of the functions of which were given to the Program Manager; the manner in which Coordinators, Facilitators under the prior program, were selected; and no longer affording the Union a right to be present at all QC meetings attended by management although the Union was still permitted to attend QC management presentations as before. 12 QCs were still not to address subjects such as "benefits and salaries" etc. and the Union was to be accorded the right to negotiate on proposed changes as set out in Instruction 5200.15A. The "Objectives" section of the proposed instruction provided:
"4. Objectives. The thrust of the Program is to recommend actions in the areas of productivity improvement, cost reductions and overall improvement in the performance of ship repairs and overhauls. The keys to achieving these objectives rest in our collective ability to inspire effective teamwork, improve Shipyard communications, develop harmonious manager/worker relationship and encourage joint identification of problems to afford quick resolutions. A desirable by-product would be increased morale and worker involvement."
Under "6. Responsibilities," Operations Officers (presumably under the jurisdiction of Department/Office Heads) were required to "(l) Assign personnel to serve full time as QC Program Coordinators in each Operations Shop Group to carry out responsibilities described in (the Instruction)"
On November 22 when Wataoka sent the union a copy of a proposed instruction on the QC Program he requested the Union provide its "comments" on the proposed instruction by November 29. At the request of Vice President Gregory the comment time was extended to December 6. Wataoka met with Union President Benjamin Toyama six or seven times during the period between November 22 and December 6 to discuss the QC issue but Toyama ultimately concluded he would not submit any proposals on the subject. Toyama explained the parties' [ v29 p17 ] respective positions at the final meeting on December 6 as follows:
"My basic thing was they had begun a new program without letting the union know and what I wanted them to do was cease and desist, stop the program, and negotiate this new program with the union.
"Their position was they could not stop whatever they had on the road; that they had to continue with what they had because the shipyard commander wanted it. 'We can recognize your concerns, however, the program can continue."
"My position was you do what you want to and we will do what we have to, and I subsequently -- I had it adjudicated as to an unfair labor practice."
On December 10, 1985 Respondent issued QC Instruction 5200.15B which was identical to the proposed instruction given to the Union on November 22.
Discussion and Conclusions
The General Counsel contends: the 1985 QC Program was a new program, the prior QC Program having been abandoned; the QC Program was a permissive subject of bargaining requiring full agreement from the Union before it could be implemented, which agreement never occurred; and alternatively, the QC Program was a mandatory subject of bargaining and Respondent failed to provide the Union with notice and an opportunity to bargain on the matter prior to implementing the change in a condition of employment. The General Counsel further contends that absent agreement or fulfilling bargaining obligations, the operation of the QC Program constituted a bypass of the union as the employees' collective bargaining representative. As part of the remedy for the alleged conduct the General Counsel requests that the QC Program be withdrawn, leaving a situation where no QC Program exists.
Respondent denies that the 1985 QC Program was a new program and contends it was merely a revitalization of the prior program with only minor modification and the Union was given an opportunity to bargain on the changes but declined. Respondent further contends that the QC Program was not a permissive subject of bargaining involving bypassing the Union but rather simply an information gathering device [ v29 p18 ] permissible under the Statute and, in any event, the Union acquiesced in the use of QCs.
I find the Quality Circle Program herein constituted a permissive or voluntary subject of bargaining wherein it could not be implemented as described in Instruction 5200.15A or B without the concurrence of the Union. In my view the Quality Circles herein, in concept and in operation, exist, at least in part, to deal with management concerning conditions of employment. Such is the function of the Union. See NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), 44 LRRM 2204. The "Objectives" sections of Instruction 5200.15A and B, supra, clearly reveal matters concerning conditions of employment which the Union is necessarily entitled to be given an opportunity to deal with Respondent. Assuming no Union acquiescence in this procedure, it is clear that in achieving the stated objectives, the QCs are designed to bring employees and management together to deal with matters with which the Union has a direct interest. While both Instructions indicate that QCs were not to ". . . address such subjects as benefits and salaries, employment policies, labor relations, personalities or other subjects deemed. . . to be outside this scope of the Quality Circle Program", both Instructions also indicate that the program contemplates employees and managers will be dealing with condition of employment normally the exclusive right of the Union. Thus, sections 5k and 5h of Instruction 5200.15A and B provide:
"Prior to implementing proposed changes to personnel policy or practice, or other general conditions of employment submitted by QC teams which impact on bargaining unit employees, the Metal Trades Council will be notified and the above proposed changes will be negotiated with the MTC if so requested prior to implementation."
The presence of this language reveals it was assumed that matters concerning personnel policies or practices or other general conditions of employment might well be the subject of QC considerations.
Further, QCs operate by having unit employees discussing matters with supervisors and managers in order to resolve problems which involve conditions of employment. Indeed, the record reveals that in practice QCs have considered and dealt with matters related to employee training, establishing a lunch facility, the lack of hot/cold water drinking fountains and safety and awards, areas which generally encompass matters found by the Authority to constitute [ v29 p19 ] conditions of employment. See e.g. Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983), proposal 3; American Federation of Government Employees, AFL - CIO, Social Security Local No. 1760 and Department of Health and Human Services, Social Security Administration, 9 FLRA 813 (1982), proposal 2; American Federation of Government Employees, Social Security Local 3231, AFL - CIO and Department of Health and Human Services, Social Security Administration, 16 FLRA 47 (1984); American Federation of Government Employees, AFL - CIO, Council of Prison Locals and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983); and National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).
I reject Respondent's contention that QCs were mere information gathering devices permissible under the Statute. The Authority has frequently held that no unlawful bypass will be found where an employer seeks to elicit factual information and the opinions of employees to ensure the efficiency and effectiveness of its operations. Social Security Administration, Baltimore, Maryland, 20 FLRA 768 (1985); United States Customs Service, 19 FLRA 1032 (1985); and Internal Revenue Service (District, Region, National Office Units), 19 FLRA 353 (1985). However, in so holding the Authority has also stated that an employer's direct contacts with employees must not be conducted in such a way as to amount to attempting to change conditions of employment or negotiate directly with employees concerning matters which are properly bargainable with the exclusive representative. In the case herein, the QC Program envisioned discussions between employees and supervisors concerning negotiable matters, supra, and the presentation of proposals to management resulting in changes in conditions of employment. In these circumstances I conclude the contacts between Respondent and its employees were conducted in such a way as to exceed lawful gathering of facts and opinions from employees.
Accordingly, I conclude that by design and practice QCs performed the function of dealing with management concerning conditions of employment, the rightful and exclusive role of the collective bargaining representative. The operations of QCs herein would then have constituted an unlawful bypass of the Union, except the Union consented to such bypass by agreeing to Instruction 5200.15A. The Union therefore could not claim to have been undermined by QCs when it negotiated and agreed to the vehicle which created the bypass. However, subsequent to the agreement on the QC Program in 1984 and its [ v29 p20 ] implementation, QCs began to disappear. The General Counsel argues that the disuse of QCs amounted to abandonment of the program and Respondent's actions in 1985 constituted the establishment of a new QC Program. The General Counsel reasons that since the Union never agreed to the formation of the new program, a permissive subject of bargaining, Respondent violated the Statute by implementing the 1985 program, the content of which is reflected in Instruction 5200.15B, and bypassed the Union without its consent.
I find the 1985 QC Program was not a new program but rather a revitalization and continuation of an existing plan, albeit with some modifications. QCs never did go entirely out of existence. The record reveals that although the number of QCs declined from 34 in December 1984 and the Facilitators had been disbanded, there remained two QCs viable in April 1985. Thus in May 1985 there still existed a QC Program with a part-time Program manager when the Shipyard Commander called for a "Shipyard Improvement Program, using Quality Circle concepts". Thereafter the Program Manager began to function on a full-time basis, Coordinators (formerly Facilitators) were appointed and efforts to reemphasize the QC Program produced more QCs which operated in a manner very similar to the prior QCs. In these circumstances I conclude that Respondent's conduct vis a vis a QC Program was merely the reaffirmation of an existing policy and the reemphasis did not change a condition of employment with regard to the existence of a QC Program. Cf. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 1011 (1985); United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636 (1984); and Department of the Treasury, Internal Revenue Service, Cleveland, Ohio, 6 FLRA 240 (1981).
However, Respondent not only reaffirmed the QC Program but in the process made substantial changes in its structure and operation. Coordinators, previously Facilitators, 13 were chosen by employees being nominated by a Shop Group supervisor and selected by the QC Program Manager. Previously, an employee made known his interest in being a Facilitator and was selected by the Steering Committee. True the Steering Committee had been disbanded without [ v29 p21 ] objection from the Union, but, as admitted by Program Manager Nakagawa, it could have been revived if required. Indeed, in order to have Coordinators the Steering Committee was required to exist since under Instruction 5200.15A the selection of Facilitators was the responsibility of the Steering Committee.
Further, in revitalizing the QC Program the deletion of the Steering Committee itself was another major change. Apart from its Facilitator selection function, the Steering Committee had numerous other functions which could have been exercised in the revitalization process. Thus, as listed above, the Steering Committee had a part to play in establishing roles and objectives of the QC Program; developing "milestones" to identify and control the expansion of circles; establishing training requirements for Coordinators; establishing policies for publicity of the QC Program; and establishing policies for handling non-functioning circles and general policies as well. Most importantly, the Union had the right to have a representative and an alternate on the Steering Committee under Instruction 5200.15A, which right was deleted when the QC Program was revitalized. 14 While the Union may not have desired to attend Steering Committee meetings in 1984 and had no objection to meetings being discontinued, this does not mean that it was consenting to the abolishment of the Steering Committee as an element of the QC Program and agreeing to have all Steering Committee functions turned over to the QC Program Manager. Rather, it appears that after the QC Program was developed and had been established and in operations under Instruction 5200.15A, the Union found no great need to attend Steering Committee meetings and declined to do so. Such conduct will not support a conclusion that the Union wished to abandon its participation for all time for all purposes and grant Respondent full authority to run or revise the Quality Circle Program without Union involvement. Accordingly, I conclude Respondent's deletion of the Steering Committee when it revitalized the QC Program in 1985 constituted a substantial change which required agreement of the Union before being effectuated. [ v29 p22 ]
The record reveals that the above changes were made prior to notification to the Union and without the Union's agreement. Thus, when Respondent finally gave the union a copy of the Chop Chain draft on October 10, 1985 and the proposed instruction on November 22 indicating deletion of the Steering Committee and a new method of selection of Coordinators and other changes as well, the two changes noted above involving significant aspects of the QC Program had already been effectuated. Giving the Union an opportunity to bargain after changes have been made does not satisfy the obligations imposed by the Statute. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Accordingly, even assuming that the QC Program was not a permissive subject of bargaining, I conclude Respondent's altering essential elements of the Program prior to giving the Union notice and an opportunity to bargain was a violation of its duty to bargain under section 7116(a)(1) and (5) of the Statute.
With regard to a remedy, I shall recommend Respondent withdraw Instruction 5200.15B and continue to operate the QC Program under the provisions of Instruction 5200.15A unless and until that instruction is properly modified or withdrawn. Thus, if QCs are to continue under Instruction 5200.15A, Coordinators must be reselected as set forth in Instruction 5200.15A (with regard to Facilitator) and any other QC conduct must proceed under that Instruction including the provisions relating to the functions of the Steering Committee of which the Union is a part. However, I would not require that existing QCs be disestablished while Coordinators (Facilitators) are being reselected under Instruction 5200.15A if Respondent desired to follow that course of action since, except for Coordinator selection, QCs appear to be operating much the same currently as they did previously under Instruction 5200.15A. In these circumstances disestablishment would seem to be needlessly disruptive.
In view of the entire foregoing I conclude Respondent violated section 7116(a)(1) and (5) of the Statute and recommend the Authority issue the following:
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 Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii shall: [ v29 p23 ]
1. Cease and desist from:
(a) Implementing changes in the Quality Circle Program relative to bargaining unit employees without first obtaining the agreement of the Hawaii Federal Employees Metal Trades Council, AFL - CIO, the employees' exclusive collective bargaining representative.
(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights assured by the Federal Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Withdraw Instruction 5200.15B and the QC Program in effect thereunder and continue to operate the QC Program under the provisions of Instruction 5200.15A unless and until Instruction 5200.15A is properly modified or withdrawn as required by the Statute.
(b) Post at its Pearl Harbor, Hawaii 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 Shipyard Commander 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 insure that such Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California, 94103, in writing, within 30 [ v29 p24 ] days from the date of this Order, as to what steps have been taken to comply herewith.
SALVATORE J. ARRIGO Administrative Law Judge Dated: March 20, 1987 Washington, D.C.
[ v29 p25 ]
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 implement changes in the Quality Circle Program relative to bargaining unit employees without first obtaining the agreement of the Hawaii Federal Employees Metal Trades Council, AFL - CIO, the employees' exclusive collective bargaining representative.
WE WILL NOT in any like or related mariner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL withdraw Instruction 5200.15B and the QC Program in effect thereunder and continue to operate the QC Program under the provisions of Instruction 5200.15A unless and until Instruction 5200.15A is properly modified or withdrawn as required by the Statute.
______________________________ (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. [PAGE]
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 IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [ v29 p2 ]
Footnote 1 Counsel for the General Counsel's unopposed motion to amend the transcript as to minor matters is hereby granted.
Footnote 2 The collective bargaining unit is comprised of approximately 5000 employees.
Footnote 3 Item "6" was obviously misnumbered "5" on Instruction 5200.15.
Footnote 4 The specifically designated responsibilities of the Steering Committee continued as set forth in the prior instruction.
Footnote 5 The items were taken from management presentations scheduled for late 1983, QC minutes for 1984 and 1985, and testimony regarding a 1986 QC discussion.
Footnote 6 Meetings were generally called by the Steering Committee Chairman but could be called by any member which included eight members picked by Department heads, four Facilitators and a Union representative.
Footnote 7 Although notified of scheduled Steering Committee meetings and having an "open invitation" to attend, Union representatives were present only at perhaps two such meetings in 1983 and 1984.
Footnote 8 On May 31, 1985, Nakagawa was assigned to the QC Program Manager position on a full-time basis.
Footnote 9 Apparently Gregory was under the impression that the QC Program had been completely dissolved.
Footnote 10 Coordinators performed substantially the same functions as Facilitators under Instruction 5200.15A.
Footnote 11 At the time of the hearing there were 17 QCs at the Shipyard.
Footnote 12 Numerous minor changes also appeared in the proposed instruction.
Footnote 13 I do not consider the redesignation of Facilitators to Coordinators to be a program change giving rise to a duty to bargain.
Footnote 14 I conclude the Steering Committee was conclusively removed from the QC Program when Coordinators were appointed in 1986 since the prior QC Program provided for Coordinator (Facilitator) selection by the Steering Committee.