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35:0631(70)CA
The decision of the Authority follows:
35 FLRA No. 70
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
UNITED STATES ARMY ADJUTANT GENERAL
PUBLICATION CENTER
ST. LOUIS, MISSOURI
(Respondent/Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2761
(Charging Party/Union)
7-CA-40547
(24 FLRA 695)
DECISION AND ORDER ON REMAND
April 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761). The court reversed the Authority's determination that the Respondent had no duty to bargain with the Union over its cancellation of the annual picnic. The court remanded the case to the Authority for further action that may be required consistent with the court's opinion.
Consistent with the court's decision, we find that in the circumstances of this case, the annual picnic was a condition of employment within the meaning of section 7103(a)(14) of the Federal Service Labor-Management Relations Statute (the Statute) and that the Respondent's unilateral termination of the picnic violated section 7116(a)(1) and (5) of the Statute. We further find that a status quo ante remedy is appropriate in this case.
II. History of the Case
A. Facts
From 1966 until 1984, the Respondent held an annual picnic for management and employees. For all of the picnics, the Respondent set the date and consulted with the Union about the plans for the picnic that year. Prior to June 1981, the majority of the picnics were held on weekends off the Respondent's premises. The picnics in 1981, 1982, and 1983 were held on the Respondent's premises during working hours. Although picnic activities included games, tours, and movies, time was set aside to present pins, letters of appreciation, and monetary awards to deserving employees.
During the planning of the 1984 picnic, disputes arose between the Union and the Respondent about the picnic's format. Specifically, the Union objected to the Respondent's announcement that those employees not participating in the picnic would be required to work the entire day or take annual leave. While the Union was surveying employees to see if they wanted to participate under those circumstances, the Respondent cancelled the annual picnic without providing the Union with an opportunity to bargain over the Respondent's decision.
B. Administrative Law Judge's Decision
The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally cancelled the annual picnic. The Judge found that the annual picnic, which had been held for at least 18 years and for 3 consecutive years during work hours, constituted an established past practice. The Judge further found that the annual picnic was a condition of employment because it was arranged by management, used by management to award and recognize deserving employees, and authorized by management to be held on duty time. The Judge determined that the Respondent's cancellation of the picnic had more than a de minimis impact on employees and granted the General Counsel's request for a status quo ante remedy.
C. Authority's Decision
Before the Authority, the Respondent excepted to the Judge's finding that the picnic concerned conditions of employment. The Respondent also excepted to the Judge's recommendation for a status quo ante remedy. The Respondent argued that a status quo ante remedy reinstating the practice of holding the picnic during work hours would violate its right to assign work under section 7106(a)(2)(B) because it "would grossly disrupt government operations and impair the efficiency and effectiveness of the Agency's operations (citations omitted)." Exceptions at 6. The Respondent further argued that a status quo ante remedy was inappropriate because the effect of such a remedy would be to "mandatorily requir[e] the Respondent to grant administrative leave without an exercise of its discretion" in violation of the Federal Personnel Manual (FPM), Supplement 990-2, Book 630, Subchapter S11-5, Agency-wide regulations, and 31 U.S.C. § 1301. Id. at 7, 8.
In United States Army Adjutant General Publication Center, St. Louis, Missouri, 24 FLRA 695 (1986), the Authority reversed the Administrative Law Judge and found that the annual picnic was not a condition of employment within the meaning of section 7103(a)(14) of the Statute. Consequently, the Authority concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute because the Respondent's cancellation of the picnic did not give rise to a duty to bargain.
Because the Authority concluded that the picnic did not concern conditions of employment, the Authority found that it was unnecessary to consider the other issues addressed in the Judge's decision or in the Respondent's exceptions.
D. Court's Decision
In AFGE, Local 2761, the court found that the Respondent's practice of holding an annual picnic was a condition of employment. The court noted that the picnic: (1) was to occur on the employer's premises; (2) involved an adjustment in the hours that the employees were to spend working at their jobs; (3) was paid for by the employer; and (4) was used by the employer as an opportunity to present employee awards and otherwise foster a productive work relationship between employees and management. The court stated that the Respondent "created an explicit nexus between the picnic and employment at the Center" and reversed the Authority's finding that the Respondent did not have a duty to bargain over the cancellation of the annual picnic. AFGE, Local 2761, 866 F.2d at 1449.
III. Analysis
A. Whether the Respondent Violated Section 7116(a)(1) and (5) of the Statute
An agency must negotiate with the exclusive representative over unit employees' conditions of employment, except as provided otherwise by Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. See Department of the Army, Fort Greely, Alaska, 23 FLRA 858, 864 (1986). Even if the subject matter of a change in conditions of employment is outside the duty to bargain, an agency must bargain about the impact and implementation of a change that has more than a de minimis impact on unit employees. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). The court found that the Respondent's practice of holding an annual picnic during work hours was a condition of employment and concluded that "the Authority's determination that the [Respondent] did not have a duty to bargain over cancellation of the annual picnic was arbitrary and capricious." AFGE, Local 2761, 866 F.2d at 1449.
The Authority accepts the court's decision as the law of the case. Consistent with the court's decision, we find that the annual picnic was a condition of employment within the meaning of section 7103(a)(14) of the Statute and that the Respondent had a duty to bargain over its decision to cancel the picnic. Consequently, we conclude that the Respondent's unilateral termination of the picnic violated section 7116(a)(1) and (5) of the Statute.
B. Remedy
Having found that the Respondent violated the Statute, we must consider the exceptions raised by the Respondent concerning the appropriate remedy. For the following reasons, we find that a status quo ante remedy is appropriate in this case.
Where management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change, the Authority will grant a status quo ante remedy in the absence of special circumstances. See Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281 (1986). A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153 (1990).
The Respondent argued that a status quo ante remedy would violate its right to assign work, the FPM, Agency-wide regulations, and 31 U.S.C. § 1301. Because, as found by the court, the Respondent had a duty to bargain over its decision to cancel the picnic, the Respondent's contentions provide no basis for challenging the remedy. Noting no special circumstances in this case, we conclude that a status quo ante remedy is appropriate here because the Respondent unilaterally changed a negotiable condition of employment. Accordingly, we will order the Respondent, upon the Union's request, to reinstate its practice of observing the annual picnic during working hours. If the Respondent seeks to change its practice of observing the annual picnic during working hours, it must first bargain with the Union about any such change in conditions of employment.
IV. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Army Adjutant General Publication Center, St. Louis, Missouri shall:
1. Cease and desist from:
(a) Terminating its annual picnic without first notifying the American Federation of Government Employees, AFL-CIO, Local 2761, the exclusive representative of its employees, and affording it the opportunity to negotiate over its decision to terminate the practice of holding the annual picnic during working hours.
(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 Federal Service Labor-Management Relations Statute:
(a) Upon request, reinstate the practice of observing the annual picnic during working hours and refrain from making changes in that practice without first bargaining with the American Federation of Government Employees, AFL-CIO, Local 2761.
(b) Post at its facilities at the United States Army Adjutant General Publication Center, St. Louis, Missouri, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Commander of the Publication Center 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 these Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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 terminate our annual picnic without first notifying the American Federation of Government Employees, AFL-CIO, Local 2761, the exclusive representative of our employees, and affording it the opportunity to negotiate over our decision to terminate the practice of holding the annual picnic during working hours.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, reinstate the practice of observing the annual picnic during working hours and refrain from making changes in that practice without first bargaining with the American Federation of Government Employees, AFL-CIO, Local 2761.
_______________________
(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 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 VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 844-5224.
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