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40:0244(26)CA
The decision of the Authority follows:
40 FLRA No. 26
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally discontinuing Class A telephone service for bargaining unit employees in its Graphic Arts Negative Engraving Division (GAN), without affording the Union an opportunity to bargain over the change.
The Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
II. Respondent's Exceptions
The Respondent expresses disagreement with certain findings of fact by the Judge and reiterates arguments that it was not obligated to bargain over the decision to discontinue Class A telephone service for unit employees in GAN because: (1) there was no established past practice of providing employees in GAN access to Class A telephone service; (2) the impact of the change on unit employees' conditions of employment was de minimis; and (3) the use of Class A telephone service by GAN employees involves the technology of performing work under section 7106(b)(1) of the Statute. For the reasons set forth in the Judge's decision, we reject these arguments.
We also reject the Respondent's argument that bargaining over its decision to discontinue Class A telephone service would be inconsistent with 41 C.F.R. § 201-38.007-6 which, according to the Respondent, "provides that an agency should not 'increase' the level of service on existing telephones to accommodate personal use." Exceptions at 13. The Respondent claims, in this regard, that by "eliminating the Class A telephone service in GAN, the Agency avoided having an increase in telephone service merely to accommodate personal use." Id. at 14.
It is well established that "'insofar as an agency has discretion regarding a matter affecting conditions of employment it is obligated under the Statute to exercise that discretion through negotiations unless precluded by regulatory or statutory provisions.'" U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25, 36 (1990) (quoting U.S. Customs Service, 21 FLRA 6, 10 (1986)). We conclude that 41 C.F.R. § 201-38.007-6 did not mandate that the Respondent eliminate the Class A telephone service of unit employees without providing the Union with notice and an opportunity to bargain over its decision. Instead, that determination was within the Respondent's discretion and, accordingly, within the duty to bargain. Compare National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 615, 618-21 (1990), petition for review as to other matters filed sub nom. National Treasury Employees Union v. FLRA, No. 91-1048 (D.C. Cir. Jan. 25, 1991) (proposal that union be provided with office space to include a telephone held not inconsistent with 41 C.F.R. § 201-38.007-1(a) and (b)); Professional Airways Systems Specialists and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA 149, 152-54 (1990) (proposal that unit employees in travel status have use of Government telephones "to take care of personal business" held not inconsistent with 41 C.F.R. § 201-38.007).
Based on the foregoing, we agree with the Judge that the Respondent violated section 7116(1) and (5) of the Statute by unilaterally discontinuing the Class A telephone service for unit employees in GAN without affording the Union an opportunity to bargain over its decision to do so. We also agree with the Judge, for the reasons set forth in his decision, that a status quo ante remedy is appropriate and necessary to effectuate the purposes and policies of the Statute.
III. 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 Defense Mapping Agency Aerospace Center, St. Louis, Missouri, shall:
1. Cease and desist from:
(a) Removing the Class A telephone service from its Graphic Arts Negative Engraving Division (GAN) and unilaterally changing the policy whereby GAN employees are allowed to use such telephones to make personal and union-related calls, without notifying the National Federation of Federal Employees, Local 1827, the exclusive representative of its employees, and affording it an opportunity to bargain, to the extent consistent with law and regulations, on the decision to make such change.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Restore the Class A telephone service in the Graphic Arts Negative Engraving Division (GAN).
(b) Reinstate the policy whereby GAN employees are allowed to use the Class A telephones within GAN to make personal and union-related telephone calls.
(c) Notify the National Federation of Federal Employees, Local 1827, the exclusive representative of its employees, of any intention to change the policy at the Graphic Arts Negative Engraving Division and, upon request, bargain with the Union to the extent consistent with law and regulations on any decision to make such change.
(d) Post at its facilities at 8900 S. Broadway, 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 Area Director, and they 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, Chicago Region, 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
WE WILL NOT remove the Class A telephone service from our Graphic Arts Negative Engraving Division (GAN) and unilaterally change the policy whereby GAN employees are allowed to use such telephones to make personal and union-related calls, without notifying the National Federation of Federal Employees, Local 1827, the exclusive representative of our employees, and affording it an opportunity to bargain, to the extent consistent with law and regulations, on the decision to make such change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL restore the Class A telephone service in the Graphic Arts Negative Engraving Division (GAN).
WE WILL reinstate the policy whereby GAN employees are allowed to use the Class A telephones within GAN to make personal and union-related telephone calls.
WE WILL notify the National Federation of Federal Employees, Local 1827, the exclusive representative of our employees, of any intention to change the policy at the Graphic Arts Negative Engraving Division and, upon request, bargain with the Union to the extent consistent with law and regulations, on any decision to make such 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, Chicago Region Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and whose telephone number is: (312) 353-6306.
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