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42:0287(23)CA
The decision of the Authority follows:
42 FLRA No. 23
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent, and cross-exceptions filed by the General Counsel, to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions, and the Respondent filed an opposition to the General Counsel's cross-exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the conditions of employment of bargaining unit employees when it detailed employees into Cost Work Center 732 and reassigned work from Cost Work Center 732 to Cost Work Center 736, without first notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes.
The Judge found that the detail of employees and the reassignment or transfer of work involved changes in conditions of employment of bargaining unit employees that were more than de minimis. The Judge found that the Union had not waived its right to bargain on the impact and implementation of the changes and concluded that the Respondent violated the Statute by refusing to bargain over the changes. The Judge found, however, that the Respondent did not violate the Statute by failing to give the Union prior notice of the changes, because he found that the Union had by acquiescence waived its right to be notified. The Judge recommended that the Respondent be ordered to bargain with the Union concerning the impact and implementation of the changes.
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 the rulings. For the reasons that follow, we agree with the Judge that the Respondent violated the Statute by refusing the Union's request to bargain on the impact and implementation of changes resulting from the detailing of employees and the reassignment of work. However, contrary to the Judge, we find that the Respondent also violated the Statute by failing to give the Union prior notice of the changes. Accordingly, we will issue a remedial order modifying the Judge's recommended Order consistent with our decision.
II. Facts
The American Federation of Government Employees, AFL-CIO (AFGE) is the certified representative of various employees of the United States Marine Corps (Marine Corps). The Charging Party, Local 1482, is the agent of AFGE for bargaining involving unit employees at the Respondent Marine Corps Logistics Base, Barstow, California. Local bargaining is subject to the Master Labor Agreement (MLA) between the Marine Corps and AFGE.
As more fully explained by the Judge, the MLA provides that local past practices pertaining to working conditions that were not altered by the MLA would continue. Various sections of the MLA pertain to details and temporary promotions and the establishment of standards for employees on extended temporary assignments. The MLA also contains a grievance procedure to resolve disputes over the interpretation or application of the MLA.
The Respondent's Repair Division is made up of several Control Centers, each of which is made up of several Cost Work Centers (CWCs). The employees involved in this case were assigned to various CWCs located in Building 573. The employees in each CWC perform repair functions that are similar but discrete. The work environment in each CWC, however, is not the same. The work area of CWC 736, for example, is environmentally controlled and is a clean and quiet area blocked off from the rest of Building 573.
Production requirements in the Repair Division are dictated by a master work schedule that requires adjustments in staffing and workload. The adjustments are accomplished by the reassignment of employees and/or work from one CWC to another. At least since 1981, such adjustments were made virtually on a daily basis, without notice of such action being given to the Union.
On or about February 2, 1989, without notice to the Union, the Respondent detailed four unit employees from various CWCs to CWC 732. The details of three employees lasted 2 months, and that of one employee 8 months. On March 16, 1989, the Respondent announced to employees of CWC 736 that work from CWC 732 would be reassigned to CWC 736. On March 17, 1989, the Union sent the Respondent a demand to bargain over the detailing of employees and the reassignment of work. Without responding to the Union's demand, the Respondent began transferring work on March 20, 1989, and some of the work continued to be done at CWC 736 for at least 7 months.
On April 13, 1989, the Respondent notified the Union that it was rejecting the demand to bargain, stating that although "[t]here has been a rotation of employees . . . and some work has been transferred . . . this does not constitute a reorganization, only a management decision to assign work." Judge's Decision at 5.
Although employees have been detailed to other CWCs in the past and work has been reassigned from one CWC to another, details have normally been for 29 days or less. Although the Union in the past has been aware of such details and transfers, it has not demanded prior notification or bargaining.
The work transferred to CWC 736 was not "particularly complex," but it was "substantially different from the usual duties normally performed" by CWC 736 employees, and "a significant amount of the work" transferred from CWC 732 was performed "outside the [CWC 736] shop in an outdoor environment." Id. at 6. The Union's concerns over the details included "such matters as to which supervisor the detail[ed] employee reported . . . and the source of working equipment and instruction for the new work." Id. The Union's concerns over the transfer of work "included matters of proper training, equipment, clothing and employee evaluations and appraisals." Id.
III. Administrative Law Judge's Decision
The Judge found that the detailing of four employees from CWC 732 and the transfer of work to CWC 736 constituted changes in unit employees' conditions of employment. The Judge also found that because "the transfer of work, and the details, were for a substantial period of time" and "involved a significant change in work duties and location of work," the changes were more than de minimis. Judge's Decision at 9.
The Judge rejected the Respondent's contention that it had no duty to bargain because the detail of employees and the transfer of work were covered by the parties' MLA and the Union had, by the terms of the MLA, waived its right to bargain. The Judge found that, although Article 16 of the MLA refers to details of employees, the MLA "does not cover matters concerning the impact and implementation of the detail of employees . . . or the transfer of . . . work" and "does not specifically address the transfer of work and matters concerning the impact and implementation of such action." Id. at 13. The Judge concluded that "neither an examination of the agreement nor the record herein supports the existence of a clear and unmistakable waiver by the Union of its right to bargain on the impact and implementation of the detail of employees and transfer of work in question." Id.
The Judge also rejected the Respondent's alternative contention that Article 5, Section 1 of the MLA, which essentially provides that past practices will continue in effect, "constitutes a 'zipper clause' relieving management from any obligation to notify and bargain with the Union on employee details." Id. The Judge noted that the Union had not received notice of the details until after the details had been implemented, and first received notice of the transfer of work virtually simultaneously with the transfer. The Judge found that this notice did not provide the Union "with an adequate opportunity to exercise its right to negotiate on the impact and implementation of the change" and that the lack of notice "standing alone, would be violative of the Statute." Id.
The Judge found, however, that over an extended period of time the Respondent detailed employees and transferred work without giving the Union prior notice and that the Union neither voiced objection to this procedure nor requested to bargain on the changes. The Judge found that "[t]hus a past practice was established with the Union's passive acquiescence whereby the Union was not notified when such details and transfers occurred." Id. at 14. The Judge concluded that "[i]n view of the existence of this longstanding practice Respondent was not obliged to notify the Union prior to effectuating the present details or work transfer." Id.
The Judge also concluded, however, that "the record does not disclose that the Union waived its right in any way to demand bargaining on the impact and implementation of the changes after it became aware that such changes had been, or were to be, put into effect." Id. The Judge noted that when a union becomes aware of changes over which management is obliged to bargain, the union may request to bargain or it might decide, for a variety of reasons, that it need not bargain over the matter. The Judge found, therefore, that the failure of the Union to demand bargaining over any given change in the past "cannot be construed as express or implied consent sufficient to establish a past practice" that amounted to a waiver of the Union's right. Id. The Judge found that to hold otherwise "would merely encourage unions to go through a wasteful, time consuming, useless exercise of making bargaining demands when matters were really not in dispute or filing unfair labor practice charges over situations of no consequence or benefit to employees." Id.
The Judge stated that "[a]ccordingly, while in the circumstances herein Respondent was not obligated under the Statute to notify the Union that the details or transfer of work was to take place, Respondent was required to bargain with the Union over the impact and implementation of the changes upon demand." Id. The Judge concluded that the Respondent's failure to do so violated section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties (1)
A. Respondent's Exceptions
The Respondent excepts to the Judge's conclusion that the Respondent breached its statutory obligation to bargain as to the detail of employees and the reassignment of work.(2)
The Respondent states that, under the private-sector standard set in NLRB v. Jacobs Manufacturing Company, 196 F.2d 680 (2d Cir. 1952) (Jacobs Mfg. Co.), adopted by the Authority in Internal Revenue Service, 29 FLRA 162 (1987) (IRS), "federal agencies are not required to renegotiate subjects covered by a collective bargaining agreement over the life of the agreement." Respondent's Exceptions at 10. The Respondent argues that the Judge erred in finding that the MLA does not cover the subject of detailing employees because he required that the subject be more specifically covered than is required by Jacobs Mfg. Co. and IRS. The Respondent asserts that if the standard of Jacobs Mfg. Co. is properly applied, the Authority should find that Article 16 of the MLA covers the subject of detailing employees and that the Respondent, therefore, had no duty to bargain with the Union on the impact and implementation of the details.
The Respondent argues, in the alternative, that even if Article 16 is found not to specifically cover all aspects of the detailing of employees, the preamble of the MLA, along with Article 5, constitutes a "zipper clause" that "wraps up any obligation to bargain the subject of details midterm." Id. at 44. The Respondent contends that the Union had an opportunity to negotiate all aspects of details of employees, including the impact of details on employees, at the time the MLA was negotiated.
As to the reassignment of work, the Respondent states that "[o]ur arguments of this aspect of the [Judge's] decision parallel the arguments . . . related to the detail of employees into CWC 732." Id. at 56-57. Thus, the Respondent argues that the reassignment of work is a detail, that the reassignments in this case did not constitute a change in conditions of employment because the reassignment of work was a matter covered by the MLA, and that the Respondent had no duty to bargain with the Union on the impact and implementation of the reassignment of work.
The Respondent contends that, in any event, under Article 13 of the MLA "employees and the Union have a right to grieve if they disagree with management's interpretation or application of the MLA." Id. at 4. The Respondent contends, therefore, that the "Judge's refusal to defer the parties' contractual dispute to the negotiated grievance procedure in this case was improper." Id.
B. General Counsel's Opposition to the Respondent's Exceptions
According to the General Counsel, the Judge correctly determined that the Union did not waive its right to demand bargaining on the impact and implementation of the Respondent's decision to detail employees and transfer work. The General Counsel acknowledges that in IRS the Authority applied the rationale of the private-sector case, Jacobs Mfg. Co., in determining whether a subject matter is "covered" by an agreement's terms. The General Counsel argues, however, that the Respondent misinterprets the standard set by the Authority in the IRS case.
The General Counsel disputes the Respondent's contention that, under IRS, the fact that a negotiated agreement contains a general reference to a subject matter is sufficient to bar mid-term bargaining over all aspects of that subject matter for the life of the agreement. The General Counsel contends that the Authority has already made clear that it defines what is "covered" by the terms of an agreement more narrowly than the Respondent interprets IRS. Citing U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988) (Kansas City District), the General Counsel argues that the Authority, applying the IRS standard, found that although the agreement in that case addressed a general subject matter, it did not address certain procedures related to the subject matter; therefore, the union had not waived its right to mid-term bargaining on those procedures.
The General Counsel states that while the Authority recognizes that parties' agreements may contain "zipper" clauses and clauses specifically waiving bargaining rights, the parties' MLA in this case contains neither of these types of clauses. The General Counsel asserts, contrary to the Respondent, that neither the language of the preamble to the MLA or Article 5 can be considered a clear and unmistakable waiver of the Union's bargaining rights.
The General Counsel urges the Authority to reject the Respondent's argument that the Judge should have deferred this case to arbitration under the MLA, and its request that the Authority adopt a policy of deferral to arbitration. The General Counsel argues that the Authority should adhere to its consistent position that section 7116(d) of the Statute precludes deferral to arbitration, citing Federal Aviation Administration, Spokane Tower/Approach Control, 15 FLRA 668 (1984) and U.S. Customs Service, Region VIII, San Francisco, California, 18 FLRA 377 (1985).
C. General Counsel's Cross-Exceptions
The General Counsel excepts to the Judge's conclusion that the Union had passively acquiesced in a past practice of not being notified when details and transfers of work took place, and that the Respondent, therefore, was not obligated to notify the Union prior to effectuating the details and transfers of work in this case. The General Counsel states that "[t]here is no factual basis for the conclusion of the [Judge] in this regard[.]" General Counsel's Cross-Exceptions at 6-7.
The General Counsel states that there was no knowledge of previous work transfers within the Repair Division and the only evidence of the Union's knowledge of details involved details of individual employees. The General Counsel argues that "[w]here the only details of which the Union was aware involved a single employee at a time and where such details were generally no longer than 29 days, the record cannot support a finding that the Union 'acquiesced' in the absence of notice regarding the instant detail of four employees for a period of two months and longer." Id. at 7-8.
The General Counsel "agrees with the Respondent that there is no basis in Authority precedent for the [Judge's] bifurcation of the Respondent's notice and bargaining obligations under the Statute." Id. at 8-9. The General Counsel asserts, however, that the Respondent in its opposition to the General Counsel's cross-exceptions inappropriately relies on Authority cases in which the Authority found that there was no obligation to bargain because there was in fact no change in conditions of employment. The General Counsel asserts also that the only Authority case cited by the Judge is inapposite because in that case there was no showing of a change in past practice. The General Counsel urges the Authority to reject this portion of the Judge's rationale.
D. Respondent's Opposition to the General Counsel's Cross-Exceptions
The Respondent opposes the General Counsel's cross-exceptions. The Respondent cites to the Authority's decisions in Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 9 FLRA 784 (1982) (Mare Island) and Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774 (1982) (Little Creek), in support of the Judge's finding that, because of the practice in this case of not giving notice to the Union prior to reassignments in the past, the Union waived its right to notice. The Respondent states that the Judge's "decision falls within the analytical framework of Mare Island and Little Creek." Respondent's Opposition at 12.
The Respondent agrees with the General Counsel that the Judge's "bifurcation of the duty to notify and bargain in this case is inexplicable." Id. at 12-13. However, contrary to the General Counsel, the Respondent argues that the Judge had "no legitimate basis . . . for finding a continuing duty to bargain once the Judge determined that the parties' practices relieved Respondent of any duty to provide prior notice." Id. at 13.
V. Analysis and Conclusions
A. Respondent's Refusal to Bargain Violated the Statute
Subsequent to the Judge's decision, the Authority issued its decision in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060 (l991) (Department of the Navy), petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991), which involved the same Agency, the same National Union, and the same Master Labor Agreement. In Department of the Navy, applying the standard set forth in Kansas City District and IRS, we found that the Union did not, by the terms of the MLA, waive its right to bargain over the impact and implementation of management decisions to detail employees.
Applying that standard to the facts of this case, we find that the Union in this case did not by the terms of the MLA waive its right to bargain over the impact and implementation of changes concerning the detail of employees. The Respondent contends that the transfer of work is a detail and advances the same arguments as to the transfer of work as it did for the detail of employees. Therefore, we also conclude, based on our rationale in Department of the Navy, that the Union did not, by the terms of the MLA, waive its right to bargain over the impact and implementation of management's decision to transfer work. In agreement with the Judge, and based on his rationale, we find that the transfer of work was a change in conditions of employment.
In addition, we find, for the reasons stated in Department of the Navy, that the preamble, along with Article 5, Section 1 of the MLA, does not constitute a "zipper clause" that relieved the Respondent of its obligation to give notice or to bargain with the Union. See 39 FLRA at 1069 n.5. Accordingly, we find, in agreement with the Judge, that the Respondent violated the Statute by refusing the Union's request to bargain on the impact and implementation of management's decision to detail employees and reassign work.
B. Respondent's Failure to Notify the Union Violated the Statute
Although a waiver of a union's statutory right may be established by past practice, the waiver must be clear and unmistakable. The mere failure to request bargaining with regard to past management actions, without more, does not extinguish the right to require bargaining when a further management action occurs. Department of the Navy, 39 FLRA at 1066. The Authority has also held that, where action taken by management differs from previous action, a union's failure to request bargaining as to the earlier action is not a basis for finding a waiver by acquiescence. See, for example, U.S. Department of Agriculture, Food Safety and Inspection Service and American Federation of Government Employees, National Joint Council of Food Inspection Locals, 41 FLRA 654, 660 (1991).
The Judge found that the Union was aware of past details and transfers of work and did not demand notice. However, the record shows that the past details of which the Union was aware involved transfers of individual employees and were "normally for 29 days or less." Judge's Decision at 5. The record also shows that "[o]n one occasion when a shop was reorganized due to closing down work . . . management notified and bargained with the Union on the matter." Id. at n.5. We find that in the circumstances of this case, where the details involved a group of employees and the details lasted for periods substantially longer than 29 days, the Union did not clearly and unmistakably waive its right to be notified of the changes.
Having found that the Union did not waive its right to bargain over the impact and implementation of the Respondent's decision to detail employees and transfer work, we also find that the Union did not waive its right to receive prior notice of those decisions. Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by detailing employees and reassigning work, without first notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes. We shall modify the Judge's recommended order in keeping with this decision.
Finally, for the reasons stated in Internal Revenue Service, Washington, D.C., 39 FLRA 1568, 1573 (1991), we reject the Respondent's contention that the Judge improperly refused to defer the subject matter of this unfair labor practice to arbitration. In brief, when a union asserts a statutory right to bargain on the impact and implementation of a management decision, we will not dismiss the case on the ground that the matter involves differing and arguable interpretations of the negotiated agreement. See Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991). Accordingly, it is unnecessary to address the General Counsel's contention that section 7116(d) of the Statute precludes deferral to arbitration.
VI. 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 U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California shall:
1. Cease and desist from:
(a) Detailing bargaining unit employees and reassigning work from one Cost Work Center to another, without first notifying the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of its employees, and affording it the opportunity to bargain concerning the procedures that will be observed in implementing such details and reassignments of work, and appropriate arrangements for employees adversely affected by such actions.
(b) Refusing to bargain with the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of its employees, concerning the impact and implementation of detailing bargaining unit employees to Cost Work Center 732 on or about February 2, 1989, and the reassignment of work from Cost Work Center 732 to Cost Work Center 736 beginning on or about March 20, 1989.
(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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) Consistent with law and regulation, notify the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of its employees, of the intention to detail bargaining unit employees or reassign work from one Cost Work Center to another and, prior to implementation, afford it an opportunity to bargain concerning the procedures that will be observed in implementing such details and reassignments of work, and appropriate arrangements for employees adversely affected by such actions.
(b) Upon request, bargain with the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of its employees, concerning the impact and implementation of detailing bargaining unit employees to Cost Work Center 732 on or about February 2, 1989, and the reassignment of work from Cost Center 732 to Cost Work Center 736 beginning on or about March 20, 1989.
(c) Post at its facilities at the Marine Corps Logistics Base, Barstow, California, 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, Marine Corps Logistics Base, 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, San Francisco, California 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.
WE WILL NOT detail bargaining unit employees or reassign work from one Cost Work Center to another, without first notifying the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of our employees, and affording it the opportunity to bargain concerning the procedures that will be observed in implementing such details and reassignments of work, and appropriate arrangements for employees adversely affected by such actions.
WE WILL NOT refuse to bargain with the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of our employees, concerning the impact and implementation of detailing bargaining unit employees to Cost Work Center 732 on or about February 2, 1989, and the reassignment of work from Cost Work Center 732 to Cost Work Center 736 beginning on or about March 20, 1989.
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, consistent with law and regulation, notify the American Federation of Government Employees, Local 1482, AFL-CIO, the agent of the exclusive representative of our employees, of the intention to detail bargaining unit employees or reassign work from one Cost Work Center to another and, prior to implementation, afford it an opportunity to bargain concerning the procedures that will be observed in implementing such details and reassignments of work, and appropriate arrangements for employees adversely affected by such actions.
WE WILL, upon request, bargain with the American Federation of Government Employees, Local 1482, the agent of the exclusive representative of our employees, concerning the impact and implementation of detailing bargaining unit employees to Cost Work Center 732 on or about February 2, 1989, and the reassignment of work from Cost Work Center 732 to Cost Work Center 736 beginning on or about March 20, 1989.
(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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, San Francisco, California Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. A letter of position filed by the Union beyond the date for filing exceptions or an opposition has not been considered in deciding this case because the Union did not provide the Authority, as requested, with proof that its letter had been served on the other parties.
2. The General Counsel requests that we disregard the Respondent's exceptions on the grounds that the exceptions do not satisfy the requirements of section 2423.27 of the Authority's Regulations. We find, contrary to the General Counsel's argument, that the Respondent's exceptions are sufficiently specific as to questions upon which exceptions are taken, and sufficiently precise in identifying portions of the record relied upon, to satisfy the requirements of section 2423.27. Therefore, the General Counsel's request is denied.