[ v05 p9 ]
05:0009(2)CA
The decision of the Authority follows:
5 FLRA No. 2
DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Complainant
Case Nos. 5-CA-115
5-CA-119
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, THE AUTHORITY NOTES THAT THE DUTY TO NEGOTIATE IN GOOD
FAITH UNDER THE STATUTE REQUIRES THAT A PARTY MEET ITS OBLIGATION TO
NEGOTIATE PRIOR TO MAKING CHANGES IN ESTABLISHED CONDITIONS OF
EMPLOYMENT, DURING THE TERM OF A COLLECTIVE BARGAINING AGREEMENT,
ABSENT, AS HERE, A CLEAR AND UNMISTAKABLE WAIVER OF BARGAINING RIGHTS.
IN THIS CONNECTION, SECTION 7114(A)(1) AND (B)(3) OF THE STATUTE
PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT . . . .
* * * *
(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER
SUBSECTION (A) OF THIS SECTION SHALL INCLUDE THE OBLIGATION--
* * * *
(3) TO MEET AT REASONABLE TIMES . . . AS FREQUENTLY AS MAY BE
NECESSARY . . . (.)
THE PHRASE, "COLLECTIVE BARGAINING," IN TURN, IS DEFINED IN SECTION
7103(A)(12) OF THE STATUTE AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY
COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
TO IN THIS PARAGRAPH DOES
NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
CONCESSION(.)
IT IS APPARENT FROM THE SPECIFIC LANGUAGE OF THE AFOREMENTIONED
PROVISIONS OF THE STATUTE THAT A LABOR ORGANIZATION WHICH IS AN
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN AN APPROPRIATE UNIT IS
ENTITLED TO NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS FOR EMPLOYEES IT
REPRESENTS AND THAT AN AGENCY AND EXCLUSIVE REPRESENTATIVE HAVE A MUTUAL
OBLIGATION TO NEGOTIATE IN GOOD FAITH IN AN EFFORT TO REACH AGREEMENT
WITH RESPECT TO CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN AN
APPROPRIATE UNIT. IN THE AUTHORITY'S JUDGMENT, THE OBLIGATION TO
NEGOTIATE WOULD BE RENDERED MEANINGLESS IF A PARTY WERE ABLE TO
UNILATERALLY CHANGE ESTABLISHED CONDITIONS OF EMPLOYMENT DURING THE TERM
OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT, AS HERE, WITHOUT FIRST
AFFORDING THE EXCLUSIVE REPRESENTATIVE NOTICE OF PROPOSED CHANGES AND AN
OPPORTUNITY TO NEGOTIATE, UNLESS THE EXCLUSIVE REPRESENTATIVE HAD
CLEARLY AND UNMISTAKABLY WAIVED ITS BARGAINING RIGHTS.
SUCH CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF SECTION
7114(A)(1) OF THE STATUTE. MORE SPECIFICALLY, SECTION 7114(A)(1)
CONTAINS LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 7215(A)(1) OF THE
BILL (S. 2640) REPORTED TO THE SENATE BY THE SENATE COMMITTEE ON
GOVERNMENTAL AFFAIRS CONCERNING THE RIGHT OF AN EXCLUSIVE REPRESENTATIVE
TO ACT FOR AND NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN A UNIT.
/1/ AS EXPLAINED BY THE SENATE REPORT ACCOMPANYING THE BILL, /2/ SECTION
7215(A) MANDATES THAT "(W)HERE AGENCY MANAGEMENT PROPOSES TO CHANGE
ESTABLISHED PERSONNEL POLICIES, THE EXCLUSIVE REPRESENTATIVE MUST BE
GIVEN NOTICE OF THE PROPOSED CHANGES AND AN OPPORTUNITY TO NEGOTIATE
OVER SUCH PROPOSALS TO THE EXTENT THEY ARE NEGOTIABLE."
APART FROM THE LITERAL LANGUAGE AND LEGISLATIVE HISTORY OF SECTION
7114(A)(1) OF THE STATUTE, THE CONCLUSION THAT A PARTY MUST MEET ITS
OBLIGATION TO NEGOTIATE PRIOR TO MAKING CHANGES IN ESTABLISHED
CONDITIONS OF EMPLOYMENT IS SUPPORTED BY THE EXPRESS FINDINGS OF
CONGRESS AS STATED IN SECTION 7101(A) OF THE STATUTE, NAMELY, THAT
"LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE STATUTE, NAMELY,
THAT "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL SERVICE
ARE IN THE PUBLIC INTEREST." MOREOVER, THE REQUIREMENT FOR BARGAINING
PRIOR TO CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT ENABLES BOTH
PARTIES EFFECTIVELY TO FULFILL THEIR RESPECTIVE OBLIGATIONS UNDER
SECTION 7114(B)(3) OF THE STATUTE "TO MEET AT REASONABLE TIMES . . . AS
FREQUENTLY AS MAY BE NECESSARY" FOR GOOD FAITH NEGOTIATIONS ON
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
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 DEPARTMENT OF THE AIR FORCE, SCOTT AIR
FORCE BASE, ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE WORK HOURS OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, WITHOUT
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE SUCH A
CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND THE MEMORANDUM OF MARCH 23, 1979, PERTAINING TO CHANGES
IN WORKING HOURS AND RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO
APRIL 15, 1979, IN THE 375TH CIVIL ENGINEERING SQUADRON.
(B) NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R7-23, OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE
SUCH A CHANGE.
(C) POST AT ITS FACILITIES AT THE DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER, HEADQUARTERS, 375TH
AIR BASE GROUP (MAC) AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE
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, REGION 5, FEDERAL LABOR
RELATIONS AUTHORITY, SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO,
ILLINOIS 60604, 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., JANUARY 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
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 CHANGE THE WORK HOURS OF EMPLOYEES REPRESENTED
EXCLUSIVELY BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R7-23, WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN,
TO THE EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO
EFFECTUATE SUCH A CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE MEMORANDUM OF MARCH 23, 1979, PERTAINING TO
CHANGES IN WORKING HOURS IN THE 375TH CIVIL ENGINEERING SQUADRON AND
RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO APRIL 15, 1979, IN
THE 375TH CIVIL ENGINEERING SQUADRON.
WE WILL NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-23, OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE
SUCH A CHANGE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604, AND
WHOSE TELEPHONE NUMBER IS: (312) 866-3468.
-------------------- ALJ$ DECISION FOLLOWS --------------------
BRENDA M. ROBINSON, ESQUIRE
SANDRA LEBOLD, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION 5, 219 S. DEARBORN STREET
ROOM 1638
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
MAJOR JAMES E. DUMERER, ESQUIRE
UNITED STATES AIR FORCE
CENTRAL LABOR LAW OFFICE
RANDOLPH AIR FORCE BASE, TEXAS 78148
ROBERT B. KNOWLES, ESQUIRE
UNITED STATES AIR FORCE
375TH AIR BASE GROUP/JA
SCOTT AIR FORCE BASE, ILLINOIS
FOR THE RESPONDENT
RAYMOND MALLOY, ESQUIRE
2139 WISCONSIN AVENUE, N.W.
WASHINGTON, D.C. 20007
FOR THE CHARGING PARTY
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
CASE NOS. 5-CA-115
5-CA-119
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., AS A
RESULT OF A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON
SEPTEMBER 10, 1979 BY THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR
RELATIONS AUTHORITY, CHICAGO, ILLINOIS AGAINST THE DEPARTMENT OF THE AIR
FORCE, SCOTT AIR FORCE BASE, ILLINOIS (RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
U.S.C. SECTION 7116(A)(5) BY UNILATERALLY CHANGING THE DUTY HOURS OF
CERTAIN UNIT EMPLOYEES ON APRIL 15, 1979 AND MAY 21, 1979 AND BY
REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R7-23 (CHARGING PARTY OR UNION) AT VARIOUS
TIMES CONCERNING MATTERS WITH RESPECT TO SUCH ALLEGED CHANGES IN
CONDITIONS OF EMPLOYMENT.
RESPONDENT DENIED THE ALLEGATIONS AND ASSERTED THAT IN MAKING CHANGES
IN THE SCHEDULED WORK DAY IT COMPLIED WITH PROVISIONS OF THE PARTIES'
LABOR MANAGEMENT AGREEMENT, AND, WITH RESPECT TO THE MAY 21, 1979
CHANGE, THE UNION FAILED TO SUBMIT PROPOSALS UPON REQUEST.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT SCOTT AIR
FORCE BASE, ILLINOIS. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
EXAMINE AND CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS HAVE BEEN
RECEIVED FROM THE GENERAL COUNSEL, FLRA AND THE RESPONDENT AND DULY
CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
BACKGROUND
1. LOCAL R7-23, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AT ALL
TIMES MATERIAL, WAS THE EXCLUSIVE REPRESENTATIVE OF UNITS OF FEDERAL
EMPLOYEES AT SCOTT AIR FORCE BASE, ILLINOIS INCLUDING CIVILIAN EMPLOYEES
IN THE 375TH CIVIL ENGINEERING SQUADRON, 375TH AIR BASE GROUP, 375TH
AAW, AND HEADQUARTERS, MAC. THE UNION AND RESPONDENT WERE PARTIES TO A
LABOR-MANAGEMENT AGREEMENT WHICH WAS IN EFFECT FOR THREE YEARS DURING
THE PERIOD SEPTEMBER 3, 1976 TO SEPTEMBER 2, 1979.
2. ARTICLE III, SECTIONS 1 AND 3 AND ARTICLE VII, SECTION 2 OF THE
AGREEMENT PROVIDED AS FOLLOWS:
ARTICLE III - MATTERS APPROPRIATE FOR CONSULTATION AND
NEGOTIATIONS
SECTION 1: IT IS AGREED AND UNDERSTOOD THAT MATTERS APPROPRIATE FOR
CONSULTATION OR NEGOTIATION BETWEEN THE PARTIES ARE PERSONNEL POLICIES,
PRACTICES AND PROCEDURES RELATED TO WORKING CONDITIONS WHICH ARE WITHIN
THE DISCRETION OF THE EMPLOYER, INCLUDING BUT NOT LIMITED TO SUCH
MATTERS AS SAFETY, TRAINING, LABOR-MANAGEMENT COOPERATION, EMPLOYEE
SERVICES, METHODS OF ADJUSTING GRIEVANCES OR APPEALS, GRANTING OF LEAVE,
PROMOTION PLANS, DEMOTION PRACTICES, APPLICATION OF PAY PRACTICES,
REDUCTION-IN-FORCE PRACTICES AND HOURS OF WORK.
* * * *
SECTION 3: FOR THE PURPOSE OF THIS AGREEMENT THE TERMS
"CONSULTATION" AND "NEGOTIATION" ARE DEFINED AS FOLLOWS:
A. CONSULTATION. VERBAL OR WRITTEN DISCUSSION BETWEEN
REPRESENTATIVES OF THE EMPLOYER AND REPRESENTATIVES OF THE UNION FOR THE
PURPOSE OF OBTAINING THEIR VIEWS OR ADVISING THEM OF DESIRED ACTIONS
WHICH AFFECT EMPLOYEES IN THE REPRESENTATION UNIT.
B. NEGOTIATION. BARGAINING OF THE EMPLOYER AND THE UNION ON
APPROPRIATE ISSUES RELATING TO TERMS OF EMPLOYMENT, WORKING CONDITIONS,
AND PERSONNEL POLICIES AND PRACTICES WITH THE VIEW OF ARRIVING AT A
MUTUALLY ACCEPTABLE AGREEMENT.
* * * *
ARTICLE VII - HOURS OF WORK AND BASIC WORKWEEK
* * * *
SECTION 2: WHEN A CHANGE IN THE WORKDAYS OR WORKWEEKS CURRENTLY IN
EFFECT IS CONTEMPLATED IN AN AREA, THE EMPLOYER AGREES TO NOTIFY THE
EMPLOYEES CONCERNED AND THE UNION PRIOR TO MAKING SUCH CHANGE. IF A
CHANGE IS MADE, EXCEPT IN EMERGENCIES, SUCH CHANGE WILL BE ANNOUNCED IN
WRITING AT LEAST FOURTEEN (14) DAYS IN ADVANCE OF THE DAY THE WORK
STARTS, AND SUCH CHANGE NORMALLY WILL CONTINUE AT LEAST TWO PAY PERIODS.
3. DURING THE BARGAINING SESSIONS CONCERNING ARTICLE VII, SECTION 2,
THERE WAS NEVER ANY INTENT VOICED BY THE UNION OR MANAGEMENT NEGOTIATING
TEAMS THAT ARTICLE VII, SECTION 2 WOULD ESTABLISH A TIMETABLE FOR
NEGOTIATION. THE CONCERN VOICED BY THE UNION WAS THAT MANAGEMENT HAD
SOMETIMES CHANGED THE DUTY HOURS ON SHORT NOTICE AND SUCH CHANGES WERE
OF BRIEF DURATION. THE PROVISION WAS NEGOTIATED IN LIGHT OF THE UNION'S
CONTENTION THAT NOTICE WAS REQUIRED OF THE CHANGES AND THAT THERE SHOULD
BE A MINIMUM DURATION FOR SUCH CHANGES. (TR. 104-108.)
4. ON DECEMBER 1, 1977 A REVISION TO SCOTT AFB SUPPLEMENT 1 TO AIR
FORCE REGULATION 40-610, "WEEKLY AND DAILY SCHEDULING OF WORK," WAS
PROPOSED TO INCLUDE THE HOURS OF DUTY OF HEADQUARTERS, AFCS, A NEW
COMPONENT AT SCOTT AFB. A COPY OF THE PROPOSED SUPPLEMENT, SETTING
FORTH THE HOURS OF DUTY FOR ALL SCOTT AFB PERSONNEL AND PROCEDURES FOR
REQUESTING CHANGES IN SUCH TOURS OF DUTY, WAS FORWARDED TO THE UNION
"FOR YOUR REVIEW AND COMMENT." THE UNION SUBMITTED A COMMENT CALLING FOR
THE INSERTION OF THE WORD "THE" BEFORE "LOCAL UNION," WHICH CHANGE WAS
ADOPTED IN THE FINAL COPY. (GENERAL COUNSEL'S EXHIBIT 3).
5. AS SET FORTH IN THE REGULATION, NORMALLY A MANAGEMENT
ORGANIZATION'S REQUEST FOR A CHANGE IN THE BASIC TOUR OF DUTY OR HOURS
OF WORK WOULD BE SUBMITTED TO THE CIVILIAN PERSONNEL OFFICE FOR APPROVAL
AND A COPY WOULD BE SENT TO THE UNION. IF THE ORGANIZATION FAILED TO
SEND A COPY TO THE UNION, THE CIVILIAN PERSONNEL OFFICE OFTEN DID, WITH
THE NOTATION THAT THE REQUEST WAS FOR THE UNION'S "REVIEW AND COMMENTS."
(RESPONDENT'S EXHIBIT 1, 2, 4). USUALLY, NO PARTICULAR DEADLINE WAS
PROVIDED FOR THE UNION'S RESPONSE, AND OFTEN THE UNION DID NOT RESPOND.
(RESPONDENT'S EXHIBIT 2, 3, 4, 5, 6, 8). THE UNION PRESIDENT, CARL L.
DENTON, TESTIFIED THAT THE UNION MADE NO RESPONSE, OR REQUEST TO
NEGOTIATE A PROPOSED CHANGE, IF THE EMPLOYEES WERE IN FAVOR OF THE
CHANGE, OR IF THE REQUEST HAD BEEN INITIATED BY AN EMPLOYEE.
6. THERE WERE OCCASIONS WHEN MANAGEMENT FAILED TO GIVE THE UNION
ADVANCE NOTICE OF PROPOSED CHANGES. WHEN THIS OCCURRED, AND THE
REQUESTED CHANGE WAS APPROVED ANYWAY, THE EFFECTIVE DATE OF THE CHANGE
WAS NOT EXTENDED. IN ALL CASES INVOLVING APPROVAL OF CHANGES IN DUTY
HOURS, THE CIVILIAN PERSONNEL OFFICE NOTIFIED THE MANAGEMENT
ORGANIZATION OF THE APPROVAL AND THAT COMPLIANCE WITH ARTICLE VII,
SECTION 2 OF THE AGREEMENT, DEALING WITH THE ANNOUNCEMENT AND DURATION
OF THE CHANGE, WAS REQUIRED. THIS PROVISION WAS INTERPRETED BY
MANAGEMENT TO REQUIRE AT LEAST 14 DAYS ADVANCE NOTICE TO THE EMPLOYEES
AND THE UNION OF THE EFFECTIVE DATE OF SUCH CHANGE.
7. UNTIL CARL L. DENTON BECAME PRESIDENT OF THE UNION IN MAY 1978
THERE WERE NEVER ANY SPECIFIC REQUESTS BY THE UNION TO NEGOTIATE CHANGES
IN DUTY HOURS UNDER THE AGREEMENT. IN THE SUMMER OF 1978, THE UNION
REQUESTED TO NEGOTIATE A PROPOSED CHANGE IN DUTY HOURS FOR THE
CONSOLIDATED AIRCRAFT MAINTENANCE SQUADRON AND IN NOVEMBER 1978 THE
UNION REQUESTED TO NEGOTIATE PROPOSED CHANGES BY THE COMMISSARY
INVOLVING THE WORK DAY AND A PAID WORK BREAK. IN BOTH INCIDENTS FORMAL
NEGOTIATIONS WERE NOT HELD, BUT THE ORIGINAL HOURS WERE RETAINED
FOLLOWING RECEIPT OF THE UNION'S OBJECTIONS AND MANAGEMENT'S
REEVALUATION. IN SEPTEMBER 1978 THE UNION REQUESTED TO MEET WITH
MANAGEMENT TO DISCUSS THE RATIONALE FOR A CHANGE IN THE DUTY HOURS FOR
FIRE FIGHTERS. THE PARTIES MET, BUT AFTER MANAGEMENT DID NOT ACCEPT THE
UNION'S OBJECTIONS, THE UNION DID NOT PURSUE THE MATTER BECAUSE OF THE
EXPRESSED DESIRE OF THE UNION MEMBERS.
CASE NO. 5-CA-115
8. ON MARCH 7, 1979, LT. COL. DON R. TIMMER SENT A MEMORANDUM TO THE
COMMANDER AND CHIEF OF CIVILIAN PERSONNEL REQUESTING THAT THE LUNCH
BREAK FOR EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON BE INCREASED
BY 15 MINUTES FROM 30 TO 45 MINUTES AND THAT THE WORKDAY BE ADJUSTED
ACCORDINGLY TO START 15 MINUTES EARLIER FROM 0715 TO 1600 HOURS, INSTEAD
OF 0730 TO 1600 HOURS. THE STATED REASON FOR THE CHANGE WAS THE LOSS OF
TIME ARISING FROM THE INABILITY OF PERSONNEL TO TRAVEL FROM THEIR WORK
CENTER TO EATING FACILITIES IN 30 MINUTES. THERE ARE APPROXIMATELY 300
EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON.
9. SENIOR AIRMAN DEBORAH F. KERR TYPED THE MARCH 7, 1979 LETTER AND
SENT A COPY TO THE UNION PRESIDENT, CARL L. DENTON, BY THE USUAL MAIL
METHOD; HOWEVER THE FACT THAT A COPY WAS SENT TO THE UNION WAS NOT
NOTED ON THE LETTER AND NEITHER MR. DENTON NOR LOREN DONOHO, THE UNION
EXECUTIVE VICE PRESIDENT, RECEIVED IT.
10. ON MARCH 23, 1979 LT. COL. DON R. TIMMER, COMMANDER, 375TH CIVIL
ENGINEERING SQUADRON, SCOTT AFB, ILLINOIS SENT A MEMORANDUM TO ALL
BRANCH CHIEFS ANNOUNCING THAT EFFECTIVE APRIL 15, 1979 THE NORMAL DUTY
HOURS FOR THE 375TH CIVIL ENGINEERING SQUADRON WOULD BE CHANGED FROM
0730-1600 TO 0715-1600 HOURS WITH A SCHEDULED LUNCH BREAK FROM 1115 TO
1200 HOURS. (GEN. COUNSEL'S EX. 1A). THE UNION WAS NOT SENT A COPY OF
THIS LETTER.
11. ON OR ABOUT APRIL 2, 1979 SOME UNION MEMBERS BROUGHT THE NOTICE
OF THE CHANGE AND THE MARCH 23, 1979 ANNOUNCEMENT TO THE ATTENTION OF
THE UNION PRESIDENT, CARL L. DENTON. ON APRIL 2, 1979 MR. DENTON WROTE
TO THE CIVILIAN PERSONNEL OFFICER REQUESTING CONFIRMATION OF WHETHER
SUCH A CHANGE IN DUTY HOURS HAD BEEN PROPOSED OR ANNOUNCED AND, IF SO,
THAT THE PARTIES ENTER INTO NEGOTIATION IN ACCORDANCE WITH ARTICLE III
OF THE AGREEMENT. (GEN. COUNSEL'S EX. 1A, 4/2/79).
12. ON APRIL 10, 1979 THE CIVILIAN PERSONNEL OFFICER ADVISED MR.
DENTON BY MEMORANDUM THAT, AS STATED IN THE MARCH 23, 1979 LETTER, THE
CHANGE IN DUTY HOURS FOR THE 375TH CIVIL ENGINEERING SQUADRON WOULD
BECOME EFFECTIVE APRIL 15, 1979. THE MEMORANDUM STATED THAT MANAGEMENT
CONSIDERED THE CONTROLLING PROVISION OF THE NEGOTIATED AGREEMENT TO BE
ARTICLE VII, SECTION 2, AND THAT, UNLESS THE UNION COULD PROVIDE
EVIDENCE TO THE CONTRARY, MANAGEMENT CONSIDERED ITS CONTRACTUAL
OBLIGATION FULFILLED.
13. ON APRIL 11, 1979 MR. DENTON CONTACTED RAYMOND RUSH, LABOR
RELATIONS SPECIALIST, TO SEE IF THE CHANGE COULD NOT BE POSTPONED UNTIL
THE PARTIES REACHED AGREEMENT ON THE CHANGE. MR. RUSH RECOMMENDED TO
CIVIL ENGINEERING SQUADRON THAT THEY POSTPONE MAKING THE CHANGE AS THERE
WAS A QUESTION AS TO WHEN AND HOW THE UNION RECEIVED NOTICE OF THE
CHANGE. THE CIVIL ENGINEERING SQUADRON OFFICIALS REPLIED THAT THIS WAS
NOT NECESSARY AS EVEN IF THE UNION FIRST RECEIVED NOTICE ON OR ABOUT
APRIL 2, 1979, AS THE UNION ALLEGED, THIS WOULD STILL HAVE COMPLIED WITH
THE REQUIRED 14 DAYS NOTICE PRIOR TO MAKING THE CHANGE. ON APRIL 12 AND
13, 1979 MR. DENTON WAS INFORMED THAT THE CIVILIAN PERSONNEL OFFICE
COULD DO NOTHING FURTHER.
14. ON APRIL 13, 1979 MR. DENTON AND DANIEL W. HAMILTON, A UNION
TRUSTEE AND SHOP STEWARD, MET WITH LT. COL. DON R. TIMMER, COMMANDER,
375TH CIVIL ENGINEERING SQUADRON; MR. SPRICK, DEPUTY CHIEF; OTTO
CLEMENTS, SUPERVISOR; AND LT. COL. WATRING, COMMANDER-DESIGNATE. MR.
DENTON SHOWED LT. COL. TIMMER SEVERAL PAGES OF SIGNATURES OF EMPLOYEES
WHO OBJECTED TO THE CHANGE AND EXPLAINED THEIR OBJECTIONS WHICH INCLUDED
THE DISRUPTION OF SOME CAR POOLS. MANAGEMENT OFFERED THE RATIONALE FOR
THE CHANGE THAT THE MILITARY PERSONNEL IN THE SQUADRON COULD NOT OBTAIN
THEIR MEAL AT THE MESS HALL IN 30 MINUTES. HOWEVER, THE MEETING WAS
CONCLUDED AFTER MANAGEMENT STATED THAT THEY WERE NOT THERE TO BARGAIN
ABOUT THE CHANGE AND THEY NEED DO NO MORE THAN INFORM THE UNION OF THE
CHANGE.
15. THE CHANGE IN HOURS AND LUNCH HOURS WENT INTO EFFECT ON APRIL
15, 1979 AS ANNOUNCED.
CASE NO. 5-CA-119
16. DURING A CONTRACT NEGOTIATING SESSION ON MAY 1, 1979 MANAGEMENT
BROUGHT UP A POTENTIAL TRAFFIC PROBLEM ON SCOTT DRIVE, A MAIN ROAD INTO
THE BASE, AND STATED THAT MANAGEMENT WAS INTERESTED IN ALTERNATIVES FOR
ALLEVIATING THE PROBLEM. MR. DENTON INDICATED THAT THE UNION WAS ALL
FOR EXPLORING ALTERNATIVES, AND THE UNION BROUGHT UP THE POSSIBILITY OF
OPENING A BARRICADED ROAD AND GENERALLY REROUTING TRAFFIC.
17. THE NEXT DAY, MAY 2, 1979, THE UNION WAS INFORMED BOTH ORALLY
AND BY MEMORANDUM THAT BECAUSE OF THE TRAFFIC PROBLEM CAUSED BY A
CONSTRUCTION AND REPAIR PROJECT ON SCOTT DRIVE, MANAGEMENT HAD
DETERMINED THAT A TEMPORARY ADJUSTMENT TO WORKING HOURS WAS NECESSARY
IN
THREE ORGANIZATIONS EFFECTIVE MAY 21, 1979 THROUGH SEPTEMBER 30, 1979.
THE THREE ORGANIZATIONS AND THE CHANGES WERE AS FOLLOWS:
HQ MAC FROM 0745-1630 TO 0800-1645
375 AAW FROM 0730-1600 TO 0700-1530 EXCEPT 375 AAW/LGS
375 ABG FROM 0730-1600 TO 0700-1530 EXCEPT 375 ABG/DE
(GENERAL COUNSEL'S EX. 1C, 2 MAY 1979).
18. MR. DENTON ORALLY REQUESTED THAT THE PARTIES MEET AND CONFER ON
THE CHANGE AND, ON MAY 9, 1979, WROTE THE CIVILIAN PERSONNEL OFFICER
REQUESTING THAT THE CHANGE IN DUTY HOURS BE RETRACTED AND THAT
MANAGEMENT MEET AND CONFER ON THE MATTER. (GENERAL COUNSEL'S EX. 1C,
MAY 9, 1979).
19. MANAGEMENT RESPONDED BY LETTER ON OR ABOUT MAY 12, 1979,
ADVISING THAT ANY OBLIGATION TO THE UNION WAS FULFILLED WHEN NOTICE
REGARDING THE CHANGE WAS PROVIDED TO THE UNION ON MAY 2, 1979. HOWEVER,
MANAGEMENT INDICATED THAT IF THE UNION HAD A BETTER SOLUTION, THAT ANY
RECOMMENDATION BE SUBMITTED IN WRITING AT THE EARLIEST OPPORTUNITY.
20. THE TEMPORARY CHANGES ANNOUNCED ON MAY 2, 1979 WENT INTO EFFECT
ON MAY 21, 1979 AND CONTINUED TO SEPTEMBER 1979, AT WHICH TIME THE
CONSTRUCTION AND REPAIR PROJECT ENDED AND THE ORIGINAL HOURS WERE PLACED
BACK INTO EFFECT.
21. MID-CONTRACT NEGOTIATIONS COMMENCED IN SEPTEMBER 1978. THE
UNION PROPOSED A CHANGE TO ARTICLE VII, SECTION 2, AS FOLLOWS:
SECTION 2. WHEN A CHANGE IN THE HOURS, DAYS, OR WEEKS CURRENTLY IN
EFFECT, IS CONTEMPLATED
IN AN AREA THE EMPLOYER AGREES TO MEET AND CONFER WITH THE UNION ON
THE CHANGE. IF THE CHANGE
IS MADE, SUCH CHANGE WILL BE ANNOUNCED IN WRITING AND DELIVERED TO
THE UNION AT LEAST FOURTEEN
(14) DAYS IN ADVANCE OF THE DAY THE WORK STARTS, AND SUCH CHANGE
NORMALLY WILL BE FOR A PERIOD
OF AT LEAST TWO (2) PAY PERIODS (4 WEEKS) AND WILL BEGIN AND END WITH
THE NORMAL PAY
PERIOD. THE NOTICE TO THE UNION WILL INCLUDE THE INCLUSIVE DATES OF
THE CHANGE, THE WORK
AREAS AND SITES INVOLVED, THE OFFICE SYMBOLS, THE NAMES OF THE
EMPLOYEES EFFECTED AND THE
CURRENT AND PROPOSED HOURS AND DAYS OF WORK.
MANAGEMENT INTERPRETED THIS PROPOSAL AS A MOVE FROM BEING REQUIRED
UNDER THE OLD CONTRACT TO MERELY GIVE NOTICE OF CHANGES IN THE WORKDAY
TO BEING OBLIGATED TO MEET AND CONFER ON THE CHANGE. THE UNION,
HOWEVER, SAW THE PROVISION AS A NECESSARY CLARIFICATION OF THEIR
PREVIOUSLY EXISTING RIGHTS UNDER THE CONTRACT.
22. SINCE THE EXPIRATION OF THE SEPTEMBER 3, 1976 CONTRACT AND
PURSUANT TO THE LAW, THE PARTIES HAVE BARGAINED ON CHANGES IN THE
REGULATION DEALING WITH THE WORKDAY AND WORKWEEK INVOLVING OTHER AREAS.
(TR. 33-34).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
IN DENYING THAT IT HAS COMMITTED ANY UNFAIR LABOR PRACTICE HEREIN,
RESPONDENT DOES NOT CONTEND THAT THE CHANGES IN WORKING HOURS WERE
DETERMINATIVE OF THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITION
AND, CONSEQUENTLY, NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE. SEE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 66 AND INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE
CENTER, 1 FLRA 106(1979). RATHER, RESPONDENT ASSERTS THAT IT COMPLIED
WITH ARTICLE VII, SECTION 2 OF THE CONTRACT BY WHICH THE UNION WAIVED
ITS RIGHT TO NEGOTIATE THE CHANGES. IN RESPONDENT'S VIEW, THE
REQUIREMENT TO NOTIFY THE UNION CAME UNDER THE AGREEMENT'S DEFINITION OF
"CONSULTATION" RATHER THAN "NEGOTIATION."
A WAIVER OF A RIGHT MUST BE CLEAR AND UNMISTAKABLE. CF. NASA,
KENNEDY SPACE CENTER, FLORIDA, A/SLMR NO. 223, 2 A/SLMR 566, 569(1972).
NO CLEAR AND UNMISTAKABLE WAIVER IS EVIDENT FROM THE LANGUAGE OF THE
AGREEMENT, THE NEGOTIATIONS LEADING TO THE AGREEMENT, OR THE PAST
PRACTICES OF THE UNION AND MANAGEMENT IN IMPLEMENTING THE AGREEMENT.
ARTICLE III, SECTION 1 OF THE AGREEMENT PROVIDES THAT "MATTERS
APPROPRIATE FOR CONSULTATION OR NEGOTIATION BETWEEN THE PARTIES . . .
INCLUD(ES) . . . HOURS OF WORK." ARTICLE VII, SECTION 2 PROVIDES, "WHEN
A CHANGE IN WORKDAYS OR WORKWEEKS CURRENTLY IN EFFECT IS CONTEMPLATED IN
AN AREA, THE EMPLOYER AGREES TO NOTIFY THE EMPLOYEES CONCERNED AND THE
UNION PRIOR TO MAKING SUCH CHANGE. IF A CHANGE IS MADE, EXCEPT IN
EMERGENCIES, SUCH CHANGE WILL BE ANNOUNCED IN WRITING AT LEAST FOURTEEN
DAYS IN ADVANCE OF THE DAY THE WORK STARTS, AND SUCH CHANGE NORMALLY
WILL CONTINUE AT LEAST TWO PAY PERIODS." THERE IS NO LANGUAGE PRESENT IN
ARTICLE VII, SECTION 2 BY ITSELF, OR CONSIDERED TOGETHER WITH THE
DEFINITION OF "CONSULTATION" IN ARTICLE III, SECTION 3.A., WHICH
DIRECTLY AND SPECIFICALLY RESERVES TO MANAGEMENT THE SOLE RIGHT TO
EFFECT CHANGES IN DUTY HOURS FOLLOWING THE MERE NOTIFICATION TO THE
UNION OF SUCH CHANGE. COMPARE FEDERAL AVIATION ADMINISTRATION, A/SLMR
992, 8 A/SLMR 227(1978) AND U.S. ARMY SCHOOL TRAINING CENTER, FORT
GORDON, GEORGIA, A/SLMR NO. 148, 2 A/SLMR 201(1972). THE PRECISE
MEANING OF ARTICLE VI, SECTION 2 IS, AT BEST, AMBIGUOUS. PRIMARILY, IT
PROVIDES FOR NOTICE TO THE UNION AND EMPLOYEES OF A CONTEMPLATED CHANGE,
AND, IF A CHANGE IS MADE, IT PROVIDES FOR THE TIMING OF THE NOTIFICATION
GIVEN TO EMPLOYEES AND THE DURATION OF THE CHANGE. THE LANGUAGE IS NOT
INCONSISTENT WITH, AND DOES NOT SHOW CLEARLY AND UNMISTAKABLY THAT THE
UNION WAIVED ITS RIGHT PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
AND AS SUBSEQUENTLY GRANTED BY 5 U.S.C. SECTION 7103(A)(14) AND SECTION
7114, TO THE OPPORTUNITY, UPON REQUEST, TO MEET WITH THE RESPONDENT AND
NEGOTIATE IN A GOOD-FAITH EFFORT TO REACH AGREEMENT CONCERNING A
PROPOSED CHANGE IN DUTY HOURS. CF. UNITED STATES CUSTOMS SERVICE,
REGION VI, HOUSTON, TEXAS, A/SLMR NO. 1161, 8 A/SLMR 1305(1978);
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT
OFFICE, A/SLMR NO. 962, 8 A/SLMR 40(1978); DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR NO.
858, 7 A/SLMR 523(1977); SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR
FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE, COLUMBUS, SOUTH CAROLINA,
A/SLMR NO. 656, 6 A/SLMR 238, AFFIRMED FLRC NO. 76A-85, 5 FLRC
357(1977).
THE BARGAINING HISTORY LEADING TO THE AGREEMENT DOES NOT SPELL OUT A
CLEAR AND UNMISTAKABLE INTENTION BY THE UNION TO WAIVE ITS RIGHT TO
BARGAIN OVER A CHANGE IN DUTY HOURS. ON THE CONTRARY, THE TESTIMONY OF
THE MANAGEMENT NEGOTIATOR, AS SET FORTH ABOVE, WAS THAT "THERE WAS NO
INTENT OR VOICED INTENT AT THE TABLE THAT THIS NOTICE WAS FOR ANY
PROVISION SUCH AS TO ESTABLISH A TIME FRAME FOR NEGOTIATION." (TR. 107).
A WAIVER WILL NOT BE FOUND MERELY FROM THE FACT THAT AN AGREEMENT OMITS
SPECIFIC REFERENCE TO A RIGHT, OR THAT A LABOR ORGANIZATION HAS FAILED
IN NEGOTIATIONS TO OBTAIN PROTECTION WITH RESPECT TO CERTAIN OF ITS
RIGHTS. CF. NASA KENNEDY SPACE CENTER, FLORIDA, SUPRA, 2 A/SLMR AT 569.
THE PAST PRACTICES OF THE PARTIES IN IMPLEMENTING THE AGREEMENT ARE,
FROM THE RECORD AS A WHOLE, AMBIGUOUS, AND DO NOT DEMONSTRATE A CLEAR
AND UNMISTAKABLE WAIVER. A RIGHT TO BARGAIN NEED NOT BE EXERCISED AT
EVERY OPPORTUNITY: IT EXISTS UNLESS WAIVED BY THE PARTIES. THE UNION'S
FAILURE TO REQUEST BARGAINING ON SOME OTHER OCCASIONS OF CHANGES IN DUTY
HOURS DID NOT CONSTITUTE A CLEAR AND UNMISTAKABLE WAIVER OF ITS RIGHT TO
REQUEST BARGAINING IN CONNECTION WITH THESE CHANGES. CF. DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS,
A/SLMR NO. 1144(1978).
WITH RESPECT TO THE MAY 21, 1979 CHANGE IN WORKING HOURS, RESPONDENT
ASSERTED THAT, ASSUMING ARGUENDO IT WAS REQUIRED TO NEGOTIATE WITH THE
UNION, RESPONDENT HAD REQUESTED THE UNION ON MAY 12, 1979 TO SUBMIT
RECOMMENDATIONS. RESPONDENT CONTENDS THAT SINCE THE UNION DID NOT
SUBMIT ANY PROPOSALS, IT WAIVED ANY RIGHT TO NEGOTIATE.
THE RECORD REFLECTS THAT THE CHANGE IN DUTY HOURS WAS ANNOUNCED BY
RESPONDENT ON MAY 2, 1979 AND THAT RESPONDENT REQUESTED THE UNION TO
SUBMIT RECOMMENDATIONS ON MAY 12, 1979. AT THE SAME TIME, HOWEVER,
RESPONDENT ALSO STATED THAT IT HAD FULFILLED ITS OBLIGATION TO THE
UNION; THAT IT WAS NOT NECESSARY FOR THE PARTIES TO MEET AND CONFER ON
THE MATTER; AND THAT NO NOTICE OF RETRACTION OF THE CHANGE IN DUTY
HOURS WOULD BE PUBLISHED. GOOD FAITH BARGAINING CAN SCARCELY BE
CONDUCTED WITHIN THE FRAMEWORK OF A STATED POSITION WHICH ASSERTS THAT
AN EMPLOYER IS NOT OBLIGED TO NEGOTIATE. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO. 962,
SUPRA, 8 A/SLMR AT 46. NO OTHER PROPOSALS WERE ADVANCED BY THE
RESPONDENT. BY BASING ITS DEFENSE ON ITS INTERPRETATION OF THE
AGREEMENT THE RESPONDENT ACTED AT ITS PERIL, AND THE FINDING HEREIN,
THAT THE PARTIES' NEGOTIATED AGREEMENT DID NOT CONSTITUTE A CLEAR AND
UNMISTAKABLE WAIVER, IN EFFECT, NULLIFIES THE RESPONDENT'S DEFENSE.
THUS, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE MERE
WILLINGNESS BY THE RESPONDENT TO RECEIVE THE UNION'S RECOMMENDATIONS
AFTER THE ANNOUNCEMENT OF A FAIT ACCOMPLI DID NOT CURE ITS IMPROPER
REFUSAL TO NEGOTIATE IN GOOD FAITH. CF. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, A/SLMR NO. 1096, 8 A/SLMR 859, 860(1978).
ACCORDINGLY, A PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT
RESPONDENT VIOLATED 5 U.S.C. SECTION 7116(A)(5) BY UNILATERALLY CHANGING
THE DUTY HOURS OF UNIT EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON
ON APRIL 15, 1979 AND BY UNILATERALLY CHANGING THE DUTY HOURS OF UNIT
EMPLOYEES IN THE HQ MAC, 375 AAW AND 375 ABG ON MAY 21, 1979, WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CONDITIONS
OF EMPLOYMENT, AND FURTHER VIOLATED 5 U.S.C. SECTION 7116(A)(5) BY
REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE UNION, UPON REQUEST,
CONCERNING MATTERS WITH RESPECT TO SUCH CHANGES OF DUTY HOURS. SUCH
CONDUCT ALSO CONSTITUTES A DERIVATIVE VIOLATION OF 5 U.S.C. 7116(A)(1)
IN THAT IT INTERFERES WITH, RESTRAINS, OR COERCES EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY 5
U.S.C. SECTION 7116(A)(1) AND (5), I RECOMMEND THAT THE AUTHORITY ADOPT
THE FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND 5 C.F.R. SECTION
2423.28(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE
AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE WORK HOURS OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, WITHOUT
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE SUCH A
CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 CARRY OUT THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTES:
(A) RESCIND THE MEMORANDUM OF MARCH 23, 1979 PERTAINING TO CHANGES IN
WORKING HOURS AND RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO
APRIL 15, 1979 IN THE 375TH CIVIL ENGINEERING SQUADRON.
(B) NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R7-23 OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE
SUCH A CHANGE.
(C) POST AT ITS FACILITIES AT THE DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER, HEADQUARTERS, 375TH
AIR BASE GROUP (MAC) AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO 5 C.F.R. SECTION 2423.29, NOTIFY THE REGIONAL
DIRECTOR, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED DECEMBER 19, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1191)
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CHANGE THE WORK HOURS OF EMPLOYEES REPRESENTED
EXCLUSIVELY BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R7-23, WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE DECISION TO
EFFECTUATE SUCH A CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE MEMORANDUM OF MARCH 23, 1979 PERTAINING TO
CHANGES IN WORKING HOURS IN THE 375TH CIVIL ENGINEERING SQUADRON AND
RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO APRIL 15, 1979 IN THE
375TH CIVIL ENGINEERING SQUADRON.
WE WILL NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-23 OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE
SUCH A CHANGE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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, FEDERAL LABOR RELATIONS AUTHORITY, 219 S. DEARBORN
ST., DIRKEN FEDERAL BUILDING, ROOM 1638, CHICAGO, ILLINOIS 60604.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7215(A)(1) OF THE SENATE BILL PROVIDED:
SEC. 7215. REPRESENTATION RIGHTS AND DUTIES
(A) IF A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
SUCH ORGANIZATION
SHALL BE--
(1) THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS
ENTITLED TO ACT FOR AND
NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN THE UNIT(.)
/2/ SEE S. REP. NO. 95-969, 95TH CONG., 2D SESSION 104(1978).