50:0310(51)CA - - Pueblo Depot Activity, Pueblo, CO and NAGE, Local R14-5 - - 1995 FLRAdec CA - - v50 p310
[ v50 p310 ]
The decision of the Authority follows:
50 FLRA No. 51
FEDERAL LABOR RELATIONS AUTHORITY
PUEBLO DEPOT ACTIVITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 30, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
The Chief Administrative Law Judge issued the attached decision, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by creating a team of unit employees to work on eliminating a backlog of property disposal office (PDO) items without providing the Union with notice and an opportunity to negotiate about the impact and implementation of the change.
No exceptions were filed to the Judge's finding of a violation. The General Counsel filed exceptions to the Judge's failure to order backpay for affected employees.(*) The Respondent did not file an opposition to the General Counsel's exceptions.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute. However, we will modify the Judge's recommended Order to provide an appropriate remedy under the Statute.
II. Judge's Decision
The facts are fully set forth in the attached Judge's decision. The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with an opportunity to negotiate over the impact and implementation of the establishment of the PDO team. Noting that there was no request for a status quo ante remedy, the Judge recommended a prospective bargaining order as a remedy for the violation.
III. Positions of the Parties
The General Counsel contends that a backpay award is appropriate in this case. The General Counsel maintains that all elements of the backpay test have been met and that the requisite causal nexus between the unfair labor practice and the loss of earnings by affected employees has been established.
As noted, there was no opposition to the General Counsel's exceptions and no exceptions to the Judge's finding of a violation.
IV. Analysis and Conclusions
A backpay award is appropriate to remedy an unlawful refusal to bargain over the impact and implementation of a decision when the refusal results in a withdrawal or reduction in an employee's pay, allowances, or differentials, including the opportunity to earn such compensation. United States Customs Service, Southwest Region, El Paso, Texas, 44 FLRA 1128, 1129-30 (1992). This is so even where, as here, a status quo ante remedy is not appropriate. Id. The Respondent's violation of the Statute constitutes an unjustified or unwarranted personnel action that resulted in the reduction of earning opportunities for bargaining unit employees because a substantial amount of overtime work was performed by those employees who were selected by the Respondent to be on the team. Therefore, a backpay award is proper.
However, there is no way to ascertain through compliance proceedings which employees would have been selected for the PDO team and, as a consequence, which employees would have been assigned overtime work had the parties bargained and reached agreement. Accordingly, we conclude that the unfair labor practice can best be remedied by the imposition of a retroactive bargaining order. Backpay will be awarded consistent with the outcome of that bargaining. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990) (where it is clear that some employees have been affected by an unlawful refusal to bargain, but there is no way to ascertain their identity through compliance proceedings, the parties can establish through bargaining the causal nexus between the unlawful refusal to bargain and the loss of pay or benefits that is required by the Back Pay Act, 5 U.S.C. § 5596).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Pueblo Depot Activity, Pueblo, Colorado, shall:
1. Cease and desist from:
(a) Establishing a team of employees dedicated exclusively to do property disposal office (PDO) work, or other special projects, without first notifying the National Association of Government Employees, AFL-CIO, SEIU, Local R14-5, the exclusive representative of certain of its employees, and affording it an opportunity to bargain concerning the impact and implementation of such a team.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request of the National Association of Government Employees, AFL-CIO, SEIU, Local R14-5 bargain concerning the impact and implementation of the establishment of a team of employees to work exclusively on PDO work, and apply retroactively the results of such bargaining.
(b) Based upon agreement reached pursuant to negotiation, and in accordance with the Back Pay Act, 5 U.S.C. § 5596, make whole all employees in the Warehouse and Receiving Unit of the Supply Section who suffered a withdrawal or reduction in pay, allowances, or differentials because of the failure to provide prior notice and the opportunity to bargain over the impact and implementation of the establishment of the PDO team.
(c) Post at its facilities where bargaining unit employees are located, 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, Pueblo Depot Activity, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, 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 establish a team of employees dedicated exclusively to do property disposal office (PDO) work, or other special projects, without first notifying the National Association of Government Employees, AFL-CIO, SEIU, Local R14-5, the exclusive representative of certain of our employees, and affording it an opportunity to bargain concerning the impact and implementation of such a team.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the National Association of Government Employees, AFL-CIO, SEIU, Local R14-5 bargain concerning the impact and implementation of the establishment of a team of employees to work exclusively on PDO work, and apply retroactively the results of such bargaining.
WE WILL, based upon agreement reached pursuant to negotiation, and in accordance with the Back Pay Act, 5 U.S.C. § 5596, make whole all employees in the Warehouse and Receiving Unit of the Supply Section who suffered a withdrawal or reduction in pay, allowances, or differentials because of our failure to provide prior notice and the opportunity to bargain over the impact and implementation of the establishment of the PDO team.
Date: __________________ By: ________________________________
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
PUEBLO DEPOT ACTIVITY, PUEBLO, COLORADO
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, SEIU, LOCAL R14-5
Case No. DE-CA-20287
Roger Corman, Esq. and
Barry E. Lewis, Esq.
For the Respondent
Matthew Jarvinen, Esq. and
Julia D. Hurst, Esq.
For the General Counsel
Before: JOHN H. FENTON
Chief Administrative Law Judge
Statement of the Case
Respondent is charged with having created a team to work exclusively on certain backlogged work (which involved consid-erable overtime) without providing the Union with notice and an opportunity to negotiate concerning the impact and imple-mentation of the change. General Counsel seeks backpay for those employees who were deprived of overtime opportunities. Respondent denies it violated the law for a variety of reasons.
Findings of Fact
The Pueblo Depot stores and disposes of Army property. This case is concerned with the Warehousing and Receiving Unit (W/R Unit), a part of the Supply Section which is in turn a part of the Storage and Distribution Branch of the Mission Division. The entire operation is a satellite of the Army's Tooele Depot in Utah. Approximately 35-50 employees worked in the W/R Unit, under the supervision of Clarence Garbiso, where they were engaged in three tasks: Receiving, Shipping and Property Disposal. The latter, known as PDO work, normally has the lowest priority.
In the Spring and Summer of 1991, because of pressures caused by Desert Storm, Pueblo came under increasing pressure from Tooele to deal with an enormous and growing backlog in PDO work. Finally, Tooele headquarters suggested that a team of two to five employees be dedicated to work exclusively on the backlog for 60 days. Robert Andrews, Chief of the Mission Division, after insisting the task would require 90 days, began the effort to assemble a ten-employee team. It was determined that team members, who normally worked four ten-hour days per week would work six ten-hour days.
It is not clear how it was determined that selections would be made.(1) It is, however, clear that Andrews did not inform Union President Tyrus Escalante or any other Union official of his intention to form a team. Nor did Personnel Management Specialist Michelle Kellogg or any other high ranking management official inform the Union of the decision that had been reached. Kellogg viewed formation of the team as no different from other details, and requiring no notice because covered by the contract.
Ken Mitchell, whose temporary promotion to a supervisory position had just expired, was made the nonsupervisory leader (warehouse foreman) of the team and, as noted, had a heavy input into the selection process. The team's work began between August 19 and August 23, 1991, although the accompanying details were effective on September 22.(2) Sometime in August, surely before the team was fully assembled, warehouseman and Chief Steward Jeffrey Valdez was asked by Mitchell to join the team. Mitchell explained that a team would be working exclusively on PDO matters and would work overtime on Fridays and Saturdays. Valdez declined the opportunity (at least for that weekend) for personal reasons, but promptly reported the matter to President Escalante.
On August 21 Mitchell told Escalante that there was a PDO backlog, that "they were going to get some people together to do it and it was going to involve some overtime, and he wanted to get my (Escalante's) approval to get 10, 15 people and just rotate them through the overtime." While the point is contested, it seems clear Escalante understood that a team or group was to be formed, for he testified that Mitchell "asked me to just rotate the ten or 15 people who were working on the project through the overtime." Escalante responded that "he did not think he could buy off" on that approach because the contract gives priority to the people doing that work - i.e. all the warehouse people. As Escalante testified, he responded to Mitchell's statement that he had to get the work done quickly and therefore to avoid "rotating through" some lazy people, "you go ahead and do what you want, but I am asking you to do like the contract says and rotate them through and equitably distribute the overtime among qualified people in the area."(3)
Escalante thereafter spoke to Warehouse Work Leader Carl Apodaca, who kept the time sheets, requesting that he keep an eye on whether overtime was rotated among all eligible employees. About a month later Apodaca informed him that overtime was being given exclusively to the PDO team. Escalante then met with Andrews, relaying the concerns of W/R employees who were not getting a shot at overtime. Andrews asked him to get a list of employees who desired overtime. Escalante then had Apodaca poll the W/R workforce, and he provided Andrews with the list compiled by Apodaca.(4) Andrews said he would consider it, and would get back. When another payroll period passed, Escalante went to Lt. Colonel Spencer, the Commanding Officer. The meeting resulted in Andrews' statement that he was still considering use of the list of employees who wished to be rotated through overtime, and the Commander's statement that he was confident that Andrews would do the right thing - they should let him work it out.(5)
There was no further contact concerning the issue until Escalante filed the Charge herein on January 27, 1992. By then the project was largely over: the SF-50s terminating the "details" show they were over on January 20, although many in fact worked for Mitchell until February 6. A total of 1865 hours of overtime had been devoted to the project.
There are several provisions of the 1985 collective bargaining agreement which relate to this controversy.(6)
Matters Appropriate for Negotiations
Section 1. Matters appropriate for negotiations are personnel policies, practices and matters, whether established by rules, regulations or otherwise, affecting working conditions, except that such term does not include policies, practices and matters relating to political activities, classification of any position or as specifically provided for by Federal statue [sic].
Section 2. The Union will have fifteen (15) calendar days from the announcement of a local management initiated change in personnel policy/practice within which to submit a [written] request to negotiate the change or the impact and implementation thereof. The Union will be deemed to have assented to such change if it has failed to submit such request within 15 days.
Section 1. Overtime work assignments will be distributed equitably on a rotational basis among qualified employees, consistent with workload requirements. Preference will be given to those employees who are currently assigned to the job. If no currently assigned employees are available, consideration will be given to those other employees qualified to do the job. . . .
d. In those instances where an official may desire to assign overtime inconsistent with the first paragraph of Section 1, the Union will be so advised and furnished the reasons therefore in writing if requested by the Union President. The Union may grieve the operating official's decision if it disagrees with the reasons supplied.
Section 1. Details in excess of 30 days will be recorded on SF-52 where the employee will perform duties substantially different from those normally performed. Details to duties or a position of the same grade, series and basic duties as the position to which regularly assigned need not be recorded.
Section 2. The Civilian Personnel Office will notify employees detailed for more than 30 days of the reason for the detail, the nature of the duties to be performed and the duration of the detail.
Escalante testified that, given the opportunity, he would have bargained over the method used by the Depot to select qualified employees to serve on the PDO team, either on a rotational basis if the project was of brief duration or by seniority. General Counsel Exhibit No. 9 shows the composition of the team, as well as the names of others, from the Ammunition Branch, who did PDO work on a straight-time basis. Clearly, the Union's real concern, as expressed from the very beginning, was the loss of overtime for the W/R employees who would ordinarily have rotated through such work. None received any overtime during the period of the team's existence. Nevertheless, Respondent is alleged to have denied the Union any opportunity to bargain over procedures and appropriate arrangements for employees adversely affected by establishment of the team.
Positions of the Parties
General Counsel contends Respondent did not inform the Union of its decision to form teams until after the fact, presenting it with a fait accompli concerning a change in conditions of employment which had a more than de minimis impact on adversely affected employees. Further, General Counsel asserts that such notice as may have been given by Pino and Mitchell about the change was so vague and unspecific concerning what exactly was planned, and when, as to deny the Union an adequate and reasonable opportunity to request bargaining.
Respondent agrees that it did not engage in so-called impact and implementation bargaining, on the ground it was not obligated to do so in the absence of a request. It points to Section 2 of Article VII as requiring that the Union submit a written request to bargain within 15 days of the announcement of a management-initiated change in conditions. It asserts that both Pino and Mitchell had announced the contemplated changes without provoking a request from the Union. Respondent also argues that there was, in any event, no duty to bargain concerning the impact of details, both because the procedure for details is covered by the contract and because the Union had waived any right to bargain by a consistent past practice of not seeking to bargain about details. Finally, Respondent asserts that the contract's procedures for dealing with claimed violations of the overtime provisions was to file a grievance, and that the remedy for any such violation is to accord a preference in such overtime assignments to those wrongly deprived of the opportunity.
Discussion and Conclusions
The first question is whether Respondent was required to give notice, and if so whether the notice was given in time to provide the Union with an adequate opportunity to request bargaining.
I reject Respondent's contention that establishment of the team was a mere detail of employees covered by the contract and/or a subject concerning which the Union had waived any bargaining requirement by a consistent past practice of never seeking to negotiate. The contract certainly does not contain a comprehensive treatment of "details", requiring only that they be recorded and that affected employees be given notice and an explanation of their purpose, nature and duration. It does not even purport to establish procedures which cover the matters about which the Union might have bargaining (See Scott AFB, 45 FLRA 557). Nor is the claimed history of Union inaction in the face of details convincing evidence of a waiver. The testimony was vague and generalized, referring, except for one incident, to undescribed (and apparently individual) "details" about which the Union did not seek to bargain. The one acknowledged incident which involved a group of employees and about which the Union decided not to seek bargaining, does not operate to extinguish its right to demand bargaining about, among other things, the method for selecting the team members or the impact of such team on the distribution of overtime. (See, e.g. Nellis AFB, 41 FLRA 1011, 1016).
Respondent, by reference to external labor law, was required to give adequate advance notice of its intent to establish the team, and its contract obligations would, if anything, appear to strengthen the requirement for timely notice enabling the Union to frame its bargaining demands before the change is put in place. Article VII, Section 2 gives the Union 15 days from the "announcement" of a contemplated change within which to submit a written bargaining demand, with the failure to do so being deemed assent to such change. It can forcefully be argued that such provision, far from providing the Depot with a defense based on the absence of a written demand, indicates rather that the contracting parties viewed 15 days as the minimum advance notice of a management initiated change. Clearly, the notice provided here, at best a very few days before the change was implemented, was not reasonable or adequate in the circum-stances. It follows that a violation of Section 7116(a)(1) and (5) occurred.
Despite the short notice, Union President Escalante immediately expressed his desire to keep overtime opportu-nities spread equally among all employees who normally did PDO work, as the contract indicated would normally be the case. He thereafter took his complaint to Andrews, supplying a list of employees interested in overtime, and took the issue, unsuccessfully, to the Depot Commander. However brief the "advance" notice, the Union strongly pressed that issue. In the absence of contract provisions which specifically addressed disputes over the distribution of overtime, the Depot's response to Escalante would clearly establish a refusal to bargain concerning that matter. Article X, Section 1 sets forth a procedure for dealing with disputes over distribution of overtime and for grieving those not resolved. In SSA, Baltimore, Maryland, 47 FLRA 1004, 1017-1019, the Authority set forth at length its new approach to determining whether a matter is "contained in or covered by an agreement." That approach does not require a finding that the matter is expressly contained in the agreement. It is enough that there be reason to conclude that "the parties reasonably should have contemplated that the agreement would foreclose further bargaining" in the circumstances. If the disputed subject matter "is only tangentially related to the provisions of the agreement, and, on examination, we conclude that it was not a subject that should have been contemplated as within the intended scope of the provision, we will not find that it is covered by that provision. In such circumstances there will be an obligation to bargain."
The overtime provision clearly covers disputes over the fairness of overtime opportunities provided to employees, i.e. it is obviously designed to ensure that management administers distribution in a manner designed to give each qualified employee a fair shot at his/her share in normal circumstances. It is less obvious that the language covers or that the parties intended such provision to cover the relatively unusual case, as here, of the creation of a team dedicated exclusively to certain work under its own supervision or leadership, together with the assertion it should have a lock on all associated overtime. Nevertheless, where the contract clearly establishes a method for the resolution of disputes over allocation of overtime opportunities, it would seem to fit the rubric described by the Authority: "the parties reasonably should have contemplated that the agreement would foreclose further bargaining "concerning" that subject matter.
Respondent violated 5 USC 7116(a)(1) and (5) by establishing the PDO team without providing the Union with an adequate opportunity to negotiate over the impact and implementation of such change. Respondent was not, however, obligated to bargain about the change in allocation of overtime caused by establishment of the team, as that matter was covered by the contract. There is no request that the status quo ante be restored as the mission has been accomplished and the team disbanded. I therefore recommend that the Authority issue the following prospective bargaining Order:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Pueblo Depot Activity, Pueblo, Colorado, shall:
1. Cease and desist from:
(a) Implementing a team of employees dedicated exclusively to "PDO" work without first notifying the National Association of Government Employees, AFL-CIO, SEIU, Local R14-5 (NAGE), the exclusive representative of certain of its employees, and affording it an adequate opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees affected by such change.
(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 in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Notify the NAGE of any intended change in working conditions involving establishment of teams to work exclusively on "PDO" work, or other special projects, and prior to implementation, afford it an adequate opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees adversely affected by such change.
(b) Post at its facilities where unit employees are located, 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 Commander, Pueblo Depot Activity, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, March 31, 1994
JOHN H. FENTON
Chief Administrative Law Judge
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement unilateral changes in working conditions of bargaining unit employees by establishing a team to work exclusively on "PDO" work, without first notifying the National