19:0290(40)CA - Army Reserve Components Personnel and Administration Center, St. Louis, MO and AFGE Local 900 -- 1985 FLRAdec CA

 19 FLRA No. 40
 
 U.S. ARMY RESERVE COMPONENTS PERSONNEL
 AND ADMINISTRATION CENTER
 ST. LOUIS, MISSOURI
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 900, AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-20375
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Acting Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
 
    The American Federation of Government Employees, Local 900, AFL-CIO
 (the Union), has been recognized by the U.S. Army Reserve Components
 Personnel and Administration Center (the Respondent) since January 8,
 1970, as the exclusive representative of all career or career
 conditional civilian employees of the U.S. Army Reserve Components
 Personnel and Administration Center, St. Louis, Missouri.  Since April
 18, 1980, the Union has also been certified as the exclusive
 representative of all temporary and part-time employees and employees on
 excepted appointments, including VRA employees and handicapped
 employees, with a reasonable expectation of continued employment beyond
 90 days.  The Respondent and the Union are parties to a collective
 bargaining agreement dated August 6, 1974.
 
    The parties' collective bargaining agreement provides in Article XI,
 Section 7 that each shift shall be allowed two paid 15 minute rest
 periods (breaks) during the middle of the first and last half of each
 shift.  Although the parties subsequently negotiated a separate
 flex-time agreement, Article XI of the parties' agreement remained
 unchanged.  There is no collective bargaining agreement of any type
 between the parties establishing the periods between which the breaks
 must be taken.
 
    Since at least 1978 and continuing until on or about June 15, 1982,
 unit employees in all sections of the Respondent's Enlisted Gains Branch
 of the Data Management Division were permitted, with the knowledge of
 Respondent, to take their 15 minutes morning break at any time between
 8:45 and 10:00 a.m. and their 15 minutes afternoon break at any time
 between 1:45 and 3:00 p.m.  On or about June 15, 1982, the Respondent
 implemented a change in the break practices in all sections of the
 Enlisted Gains Branch by requiring these unit employees to take their
 morning break between 9:00 and 9:30 a.m. and their afternoon break
 between 2:00 and 2:30 p.m.  The Union was never notified or given the
 opportunity to bargain with respect to the change.
 
    The Respondent has a policy at its St. Louis facility to delegate to
 individual supervisors, including branch supervisors, discretion to
 establish the time periods in which employees take their morning and
 afternoon breaks.  Not all unit employees at the Respondent's facility,
 including those in the Data Management Division, of which the Enlisted
 Gains Branch is a subdivision, were subject to uniform break periods.
 Since at least 1978, branch supervisors in some branches other than the
 Enlisted Gains Branch have at various times changed the time periods in
 which unit employees were allowed to take their breaks.  Those changes
 were undertaken by the Respondent's supervisors without prior notice to
 the Union.  When the Union discovered that changes in break periods were
 made, it contacted the individual supervisor involved in an attempt to
 resolve the problems accompanying a change in break schedules.  The
 Respondent contends that it had not received any requests to bargain on
 the aforementioned changes.
 
    The complaint herein alleges that the Respondent violated section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute /1/ (the Statute) when it unilaterally implemented the change in
 the time periods in which unit employees were allowed to take their 15
 minute morning and 15 minute afternoon breaks without affording the
 Union adequate notice and an opportunity to bargain over such change.
 
    The Respondent's position is that the establishment of new break
 period times in the Enlisted Gains Branch was not a change in a
 condition of employment.  The Respondent asserts that its supervisors'
 right to set break period times had become a condition of employment at
 its St. Louis facility in that the supervisors, in unilaterally changing
 break periods in other branches outside of the Enlisted Gains Branch,
 had established a past practice.  It contends that, as the Union had
 acquiesced in such prior changes, the Union thereby waived its
 bargaining rights herein.  The Respondent also contends that the
 establishment of new break period times is consistent with the parties'
 collective bargaining agreement in that the new break periods are
 approximately in the "middle" of the morning and afternoon shifts as
 stated in the agreement.  Furthermore, the Respondent takes the position
 that, inasmuch as the change in break periods did not have a substantial
 impact on working conditions of employees in the Enlisted Gains Branch,
 it had no obligation to bargain over such changes.
 
    The Authority finds that an established practice existed prior to
 June 15, 1982 by which unit employees in the Enlisted Gains Branch were
 allowed to take their 15 minute morning break between 8:45 and 10 a.m.
 and their 15 minute afternoon break between 1:45 and 3:00 p.m.  In this
 regard, the record reveals that the practice began in 1978 and continued
 until June 15, 1982, and was consistently exercised by the employees
 without challenge by the Respondent.  It is not alleged nor does it
 otherwise appear that the decision to change break times was a matter
 solely within management rights.  In this regard, the Authority has held
 proposals regarding working hours to be negotiable.  See American
 Federation of Government Employees, AFL-CIO, Local 2875 and Department
 of Commerce, National Oceanic and Atmospheric Administration, National
 Marine Fisheries Service, Southeast Fisheries Center, Miami Laboratory,
 Florida, 5 FLRA 441 (1981) (Union Proposals 1, 2 and 3).  Thus, the
 Respondent was obligated to give the Union notice and an opportunity to
 bargain regarding the substance of the change and its impact and
 implementation.  Unless the Union waived its right to bargain, failure
 to give notice is an unfair labor practice.  See Department of the Air
 Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).  With regard to
 the Respondent's assertion that there was such a waiver, the Authority
 finds that the Union did not clearly and unmistakably waive such right
 to bargain over proposed changes in the timing of break periods.  Thus,
 the stipulated record indicates that, when changes were made in break
 periods in other branches of the Respondent, the Union, upon discovery,
 contacted the appropriate supervisor involved (to resolve problems
 accompanying the change).  Therefore, the Union did not clearly and
 unmistakably waive its right to bargain over such matters.  See
 Department of the Air Force, supra.
 
    With regard to the Respondent's contention that the change in break
 periods had no substantial impact on working conditions, it is the
 Authority's view that where, as here, the decision to make a change was
 itself negotiable, the question is whether the statutory obligation to
 notify and negotiate with the exclusive representative concerning the
 change was fulfilled, not the extent of impact of any unilateral change
 in conditions of employment upon the unit employees.  This latter
 inquiry is appropriate when the bargaining obligation of management is
 limited to procedures and appropriate arrangements pursuant to section
 7106(b)(2) and (3) of the Statute.  See, e.g., Department of the
 Treasury, Internal Revenue Service, Jacksonville District, Jacksonville,
 Florida, 15 FLRA No. 187 (1984).  Therefore, the Authority concludes
 that the unilateral change by the Respondent in a negotiable condition
 of employment constituted a violation of section 7116(a)(1) and (5) of
 the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the U.S. Army Reserve Components Personnel
 and Administration Center, St. Louis, Missouri shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally instituting any change in the established practice
 as it existed prior to June 15, 1982, with regard to when unit employees
 in the Enlisted Gains Branch could take their 15 minute morning and
 afternoon breaks, without first notifying the American Federation of
 Government Employees, Local 900, AFL-CIO, the exclusive representative
 of its employees, and affording such representative the opportunity to
 negotiate over such proposed 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 Statute:
 
    (a) Rescind and revoke its decision to change break periods of unit
 employees in the Enlisted Gains Branch as implemented on June 15, 1982.
 
    (b) Reinstate the practice with regard to when unit employees in the
 Enlisted Gains Branch can take their break periods as it existed prior
 to June 15, 1982.
 
    (c) Notify the American Federation of Government Employees, Local
 900, AFL-CIO, of any proposed change with regard to when unit employees
 can take their break periods and, upon request, negotiate with such
 representative concerning such proposed change.
 
    (d) Post at its facility at the U.S. Army Reserve Components
 Personnel and Administration Center, St. Louis, Missouri, 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, U.S. Army Reserve Components Personnel and
 Administration Center, St. Louis, Missouri, 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
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) 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 herewith.  
 
 Issued, Washington, D.C., July 25, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                         NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT unilaterally institute any change in the established
 practice as it existed prior to June 15, 1982, with regard to when unit
 employees in the Enlisted Gains Branch can take their 15 minute morning
 and afternoon breaks, without first notifying the American Federation of
 Government Employees, Local 900, AFL-CIO, the exclusive representative
 of our employees, and affording it the opportunity to negotiate over
 such proposed change.  WE WILL NOT in any like or related manner
 interfere with, restrain or coerce our employees in the exercise of
 their rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL rescind and revoke the decision to change break
 periods of unit employees in the Enlisted Gains Branch as implemented on
 June 15, 1982.  WE WILL reinstate the practice with regard to when unit
 employees in the Enlisted Gains Branch can take their break periods as
 it existed prior to June 15, 1982.  WE WILL notify the American
 Federation of Government Employees, Local 900, AFL-CIO, of any proposed
 change with regard to when unit employees can take their break periods
 and, upon request, negotiate with such representative concerning such
 proposed change.
                                       (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:  Federal Building &
 U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202
 and whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) states:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)