[ v09 p784 ]
09:0784(99)CA
The decision of the Authority follows:
9 FLRA No. 99
DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
VALLEJO, CALIFORNIA
Respondent
and
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case No. 9-CA-563
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THE CASE, AND IN VIEW OF THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS AND CONCLUSION THAT THE RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) AND (5) OF THE STATUTE AND HER RECOMMENDATION THAT
THE COMPLAINT BE DISMISSED. THUS, AS FOUND BY THE JUDGE, UNIT EMPLOYEES
SELECTED BY THE RESPONDENT FOR THE NUMEROUS VOLUNTARY TEMPORARY DUTY
(TDY) ASSIGNMENTS IN THE PAST COMMONLY HAVE EXPERIENCED FREQUENT
VARIATIONS IN THEIR HOURS OF WORK AND SHIFTS ONCE SUCH PROJECTS GOT
STARTED, INASMUCH AS IT IS IMPOSSIBLE TO PREDICT PERSONNEL NEEDS WITH
ANY CERTAINTY AND IT IS THEREFORE NECESSARY FOR MANAGEMENT TO MAKE
ADJUSTMENTS IN ORDER TO ACCOMPLISH THE ASSIGNMENT AS EFFECTIVELY AND
EFFICIENTLY AS POSSIBLE. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
RESPONDENT'S FAILURE TO NOTIFY AND BARGAIN WITH THE UNION CONCERNING
EACH OF THE FIVE CHANGES IN SHIFT HOURS ON THE PEARL HARBOR TDY
ASSIGNMENT HEREIN DID NOT CONSTITUTE A CHANGE IN ESTABLISHED CONDITIONS
OF EMPLOYMENT, WAS CONSISTENT WITH AN ESTABLISHED PAST PRACTICE, AND
THEREFORE DID NOT VIOLATE THE DUTY TO BARGAIN UNDER THE STATUTE. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-563 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
A. S. CALCAGNO,
ATTORNEY FOR RESPONDENT
STEFANIE ARTHUR,
ATTORNEY FOR THE GENERAL COUNSEL
BEFORE: ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
CASE NO. 9-CA-563
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE
(HEREINAFTER REFERRED TO AS THE STATUTE), AND THE RULES AND REGULATIONS
ISSUED THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/17/80), 5
CFR 2421 ET SEQ.
PURSUANT TO A CHARGE FILED ON JUNE 30, 1980, AND AMENDED ON SEPTEMBER
22, 1980, BY THE FEDERAL EMPLOYEES METAL TRADES COUNCIL (HEREINAFTER
ALSO REFERRED TO AS THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS
ISSUED ON SEPTEMBER 26, 1980, BY THE REGIONAL DIRECTOR, REGION IX, OF
THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE AUTHORITY).
THE COMPLAINT ALLEGES THAT ON OR ABOUT MAY 5, 1980, AND CONTINUING TO
DATE, RESPONDENT (ALSO REFERRED TO AS MINS) ANNOUNCED AND EFFECTED A
CHANGE IN WORK HOURS, OVERTIME EARNINGS, AND SCHEDULES OF EMPLOYEES
TEMPORARILY ASSIGNED TO DUTY AT PEARL HARBOR, HAWAII, WITHOUT NOTICE TO
THE UNION OR AN OPPORTUNITY TO BARGAIN, IN VIOLATION OF SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. /2/ IN ITS ANSWER, RESPONDENT DENIES
THE ABOVE ALLEGATIONS.
A HEARING WAS HELD IN SAN FRANCISCO ON FEBRUARY 4, 1981, AT WHICH THE
PARTIES WERE GIVEN A FULL OPPORTUNITY TO BE HEARD AND PRESENT EVIDENCE.
BRIEFS WERE SUBMITTED ON APRIL 13, 1981. A MOTION TO CORRECT
TRANSCRIPT, SUBMITTED BY THE GENERAL COUNSEL ON APRIL 14, 1981, IS
UNOPPOSED AND IS GRANTED. THE CHANGE, ON PAGE 43, LINE 15, IS MODIFIED
TO DELETE "BOTH FROM SHOP 38" AND ADD "INCLUDING FRANK CRUZ FROM SHOP
38."
UPON THE BASIS OF THE RECORD MADE AT THE HEARING, MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, THE FOLLOWING FINDINGS
OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER ARE MADE.
FINDINGS OF FACT /3/
1. THE FEDERAL EMPLOYEES METAL TRADES COUNCIL IS THE EXCLUSIVE
BARGAINING AGENT FOR CERTAIN WAGE GRADE EMPLOYEES OF RESPONDENT,
INCLUDING MACHINISTS. A COLLECTIVE BARGAINING AGREEMENT (HEREINAFTER,
THE AGREEMENT) HAS BEEN IN EFFECT BETWEEN THE PARTIES DURING THE PERIOD
RELEVANT TO THIS PROCEEDING. SEE TR 144.
2. IN DECEMBER 1979, MANAGEMENT OF THE OUTSIDE MACHINE SHOP, SHOP AT
MINS, ANNOUNCED TO THE MACHINISTS IN THAT SHOP A PROPOSED COMPLEX
NUCLEAR COMPONENT MODIFICATION PROJECT ON TWO GENERATORS INVOLVING A
TEMPORARY DUTY ASSIGNMENT (TDY) TO PEARL HARBOR.
3. THREE MACHINISTS AND ONE SUPERVISOR TESTIFIED AS TO WHAT
MANAGEMENT TOLD THEM ABOUT THE HOURS OF WORK AND THE TDY ASSIGNMENT TO
PEARL HARBOR.
A. ROBERT MARIN, A MACHINIST, TESTIFIED THAT ART RUST, GENERAL
FOREMAN IN CHARGE OF THE PROJECT, TOLD HIM:
WELL, THEY WERE ANTICIPATING TWELVE HOURS A DAY, SEVEN DAYS A WEEK.
THIS JOB HAD NEVER
BEEN DONE BEFORE, SO THEY WERE, AS FAR AS THE HOURS OF WORK, IT WAS
JUST AN ANTICIPATED TWELVE
HOURS A DAY, SEVEN DAYS A WEEK. THAT WE WERE IN COMPETITION WITH
OTHER YARDS FOR THIS JOB,
AND WE WANTED TO FINISH IT IN A MOST EFFICIENT MANNER.
(TR 55, AND SEE ALSO TR 57)
B. GARY BLUM, A MACHINIST, TESTIFIED THAT CHARLIE GEESLAND,
GRAVEYARD SHIFT FOREMAN, TOLD HIM ABOUT HOURS ON THE TDY ASSIGNMENT, AS
FOLLOWS:
HE MENTIONED THAT WE WOULD PROBABLY BE WORKING TWELVE HOURS, SEVEN
DAYS A WEEK ON IT, AND
IT WOULD PROBABLY LAST FOUR TO SIX WEEKS.
(TR 42) MR. BLUM ALSO TALKED TO MR. RUST, WHO "MENTIONED THAT WE
WOULD BE WORKING TWELVE HOURS, SEVEN DAYS . . . . " (TR 42) MR. BLUM
ALSO TESTIFIED ABOUT A MEETING OF EVERYONE INVOLVED IN THE TDY
ASSIGNMENT TO PEARL HARBOR, AND RECALLED THAT FRANK CRUZ, GENERAL
FOREMAN ON THE GRAVEYARD SHIFT FOR THE TRIP, "MENTIONED THAT HE DIDN'T
KNOW WHAT SHIFTS WE WOULD BE WORKING, BUT WE WOULD BE WORKING TWELVE
HOURS A DAY, SEVEN DAYS A WEEK." (TR 44)
C. ROBERT RENTFROW, A MACHINIST, TESTIFIED ALSO TO A MEETING OF ALL
THOSE INVOLVED IN THE TDY ASSIGNMENT TO PEARL HARBOR. MR. RUST AND
CHARLES PERSALL, GRAVEYARD NUCLEAR COORDINATOR, CONDUCTED THE MEETING.
MR. RENTFROW RECALLED THEIR TELLING THE PARTICIPANTS:
THEY GAVE US A BROAD IDEA OF WHAT WE MAY BE DOING FOR THE
MODIFICATION THAT NEEDED TO BE
DONE TO THE SPECIFIC PIECE OF EQUIPMENT, AND THEY TOLD US THAT THEY
PROJECTED THE JOB TO LAST
FOUR TO SIX WEEKS, AND WE WOULD BE WORKING TWELVE HOURS A DAY ON THE
PROJECT UNTIL IT WAS
FINISHED.
(TR 19) MR. RENTFROW ALSO RECALLED BEING TOLD THAT THE PROJECT WAS TO
BE "SEVEN DAYS PER WEEK, EVERY DAY, UNTIL THE JOB WAS DONE." (TR 19)
D. MR. RUST, THE GENERAL FOREMAN, TESTIFIED AS TO WHAT HE TOLD THE
EMPLOYEES ASSIGNED TO THE PEARL HARBOR TDY PROJECT. HE RECALLED TELLING
THEM THAT THE PROJECT "WOULD INVOLVE LONG HOURS" AND THAT "WE WOULD
PROBABLY WORK TWELVE HOUR (SHIFTS)." (TR 114) MR. RUST CLAIMS THAT HE
GAVE NO GUARANTEE OF TWELVE HOUR SHIFTS OR OVERTIME.
4. THE OUTSIDE MACHINE SHOP CONSISTS OF APPROXIMATELY 650 EMPLOYEES
AND THEY FREQUENTLY PARTICIPATE IN TDY TRIPS AWAY FROM MINS. IN 1980,
THERE WERE BETWEEN 100 AND 110 TDY TRIPS. THE TDY TRIPS RANGE FROM
THREE DAYS TO TWO MONTHS. THEY ARE GENERALLY UNSCHEDULED AND UNPLANNED.
FIXED SHIFTS AND OVERTIME CANNOT BE PREDICTED. THE TDY TRIPS OFTEN
INVOLVE SHIPS, WITH OPERATIONAL COMMITMENTS, WHICH HAVE BROKEN DOWN AND
ARE UNABLE TO REACH NORMAL REPAIR FACILITIES. WORKING SCHEDULES ARE
DICTATED BY SOMEONE OTHER THAN THE MINS, NORMALLY THE COMMAND THAT
MANAGES THE PARTICULAR VESSEL. REPAIRS MUST BE FITTED INTO OPERATING
CONDITIONS AND SCHEDULES. FIXED SHIFT HOURS DO NOT NORMALLY APPLY
BECAUSE THE EQUIPMENT IN THE VESSEL, AND THE PEOPLE WHO CONTROL THE
ABILITY TO WORK ON THE EQUIPMENT, DO NOT WORK STANDARD FIXED HOURS. THE
EQUIPMENT TO BE REPAIRED, IF NUCLEAR, HAS TO BE PUT IN A SAFE CONDITION,
BY THE SHIP'S CREW, BEFORE REPAIR WORK CAN COMMENCE. SOMETIMES MINS
CREWS HAVE TO GET OFF THE DOCKS TO ACCOMMODATE TORPEDO LOADINGS. THE
SHIPYARD REPAIR CREWS MUST ADAPT THEIR HOURS TO THE SHIP'S CONDITIONS
AND NEEDS. THIS IS IN CONTRAST TO THE PREPLANNED WORK DONE ON SHIPS
WHICH ARE SCHEDULED INTO MINS FOR REPAIRS AND ALLOW THE SHIPYARD TO SET
THE CONDITIONS UNDER WHICH THE REPAIR WORK WILL PROCEED. NORMALLY, MINS
STARTS PREPLANNING AS MUCH AS TWO YEARS BEFORE THE SHIPS ARRIVE FOR
WORK. CURRENTLY EIGHT NUCLEAR POWERED SUBMARINES ARE BEING REPAIRED AT
MINS; AND THIS ALLOWS THE SHIPYARD FLEXIBILITY AS TO MOVING REPAIR
CREWS ON AND OFF EACH SUBMARINE AS THE WORK LOAD GOES UP AND DOWN. ON
TDY ASSIGNMENTS, THERE IS NO OTHER WORK TO WHICH EMPLOYEES CAN BE
ASSIGNED. IN ASSIGNING WORK FORCES TO TDY JOBS, MINS WILL NORMALLY
"OVER KILL" ON THE JOB, IN THE BEGINNING, AND THEN CUT BACK, TOWARDS THE
END, TO GET COSTS IN LINE. (TR 95) AS THE AMOUNT OF WORK REQUIRED TO BE
ACCOMPLISHED DIMINISHES, SOME EMPLOYEES MAY BE SENT BACK TO MINS, AND
HOURS MAY CHANGE.
5. THE PEARL HARBOR TDY ASSIGNMENT HERE AT ISSUE INVOLVED A UNIQUE
PROBLEM WITH NO HISTORY UPON WHICH TO PLAN THE WORK. MINS WAS DIRECTED
BY THE U.S. NAVY TO TAKE ON THE JOB, AS IT HAD THE LARGEST TECHNICAL
WORK FORCE AVAILABLE TO ACCOMPLISH THE WORK. MINS DID NOT "GET A HANDLE
ON THE SIZE OF THE WORK FORCE" NECESSARY FOR SEVERAL MONTHS AFTER THE
JOB WAS ASSIGNED. (TR 94) AT PEARL HARBOR, RESPONDENT'S CREW HAD TO
INTERFACE HEAVILY WITH CREWS OF THE PEARL HAR0OR NAVAL SHIPYARD, WHICH
HAD TO COMPLETE WORK ON THE TWO GENERATORS BEFORE THE MINS CREW COULD
BEGIN ITS ASSIGNED WORK ON THE SAME TWO GENERATORS.
6. THE TDY ASSIGNMENT TO PEARL HARBOR, WAS A TYPICAL TDY SITUATION
IN THAT THERE WAS AN "OVERKILL," AT FIRST, WITH TWELVE-HOUR SHIFTS, AND
THEN A CUT BACK, TO NINE HOURS, TO BRING COSTS INTO LINE. THE WEIGHT OF
THE EVIDENCE SHOWS THAT THE MACHINISTS, WHILE WARNED TO EXPECT LONG
HOURS, WERE NOT ASSURED THAT THE TWELVE HOUR SHIFTS WOULD CONTINUE
THROUGHOUT THE ASSIGNMENT. SEE FINDING 3, SUPRA. ONE MACHINIST, ROBERT
RENTFROW, TESTIFIED TO THE CONTRARY. SEE FINDING 3C, SUPRA. HOWEVER,
TWO OTHER MACHINISTS WERE LEFT WITH THE IMPRESSION THAT THE TWELVE-HOUR
SHIFTS WERE ONLY "ANTICIPATED" OR "PROBABLE." SEE FINDINGS 3A AND B.
AND ONE ACKNOWLEDGED THAT THE WORK WAS TO BE FINISHED IN "A MOST
EFFICIENT MANNER." SEE FINDING 3A. THE GENERAL FOREMAN ON THE TDY
ASSIGNMENT, UPON WHOSE STATEMENTS ALL THREE MACHINISTS RELIED, HIMSELF
RECALLED GIVING NO GUARANTEE OF TWELVE-HOUR SHIFTS.
7. OVER 70 EMPLOYEES WERE SELECTED FOR THE PEARL HARBOR TDY JOB.
EIGHTEEN WERE MACHINISTS, WHO WERE TO PERFORM THE ACTUAL MODIFICATION
WORK. AS IT REQUIRED IN ALL RADIOLOGICAL WORK, A MOCK-UP PRACTICE WAS
UNDERGONE BEFORE THE EMPLOYEES WERE SENT TO PEARL HARBOR. DURING THIS
MOCK-UP PERIOD, THE EMPLOYEES, AT FIRST, KEPT TO THEIR REGULAR
EIGHT-HOUR SHIFTS, AS PROVIDED IN THE AGREEMENT, AND WERE CALLED TO COME
IN EARLY OR TO STAY OVER, AS NEEDED. SOMEWHERE AROUND THE END OF MARCH,
OR THE FIRST PART OF APRIL, THE EMPLOYEES, ON MOCK-UP TRAINING, WENT ON
TWO, TWELVE-HOUR SHIFTS, WHILE STILL AT MINS. ALTHOUGH SOME TECHNICAL
PROBLEMS WERE SOLVED IN THE COURSE OF THE MOCK-UP, OTHER WERE NOT
ANTICIPATED AND WERE CONFRONTED ONLY AFTER THE ACTUAL JOB BEGAN. AS IS
NORMAL ON TDY ASSIGNMENTS, THE EARLY STAGES OF THE WORK REQUIRED MORE
TIME AND PERSONNEL BECAUSE THE ACTUAL WORK PROCEDURE WAS BEING
ESTABLISHED, PROBLEMS WERE BEING ENCOUNTERED AND SOLVED, AND PREPARATORY
TASKS WERE BEING PERFORMED. AS THE WORK PROGRESSED AND PROBLEMS WERE
SOLVED, THERE WAS NO LONGER THE SAME NEED. IN ALL, MR. RUST SCHEDULED
FIVE CHANGES IN SHIFT HOURS FOR ALL PERSONNEL ON THE PEARL HARBOR TDY
JOB. THE FIRST CONTINGENT OF THE MACHINISTS ARRIVED IN PEARL HARBOR
AROUND APRIL 3. THEY SWITCHED BACK AND FORTH BETWEEN THE DAY OR
GRAVEYARD SHIFT, AS NEEDED. THE ACTUAL MODIFICATION WORK BEGAN AROUND
APRIL 16; AND THE MACHINISTS WERE PUT ON FOUR, TWELVE-HOUR SHIFTS, WITH
FOUR ASSIGNED TO EACH SHIFT, IN TWO-MAN TEAMS EACH PERFORMING THE
IDENTICAL JOB. THE TWELVE-HOUR SHIFTS WERE WORKED UP UNTIL MAY 5, WHEN
A CUTBACK TO NINE-HOUR ONES WAS PUT INTO EFFECT. AFTER THE CUTBACK, THE
MACHINISTS CONTINUED TO WORK ON THE SAME TWO-MAN TEAMS; AND THE SAME
TWO TEAMS WERE ASSIGNED TO EACH SHIFT. BY JUNE 2, THE TDY ASSIGNMENT
WAS FINISHED. THE FIRST CONTINGENT LEFT PEARL HARBOR ON MAY 23.
8. THE DECISION TO CUT THREE HOURS OFF THE TWELVE-HOUR SHIFTS WAS
MADE AFTER IT BECAME APPARENT, TO RESPONDENT, THAT FATIGUE FROM THE LONG
SHIFT WAS STARTING TO SHOW ON THE EMPLOYEES, AND THAT THEY WERE BECOMING
LESS PRODUCTIVE AND STARTING TO BICKER WITH EACH OTHER. ALSO, THE U.S.
NAVY REPRESENTATIVES AT THE SITE WERE CONSTANTLY POINTING OUT THE FACT
THAT MINS WAS "SPENDING AN AWFUL LOT OF MONEY RAPIDLY," AND THEY "WERE
NOT CONVINCED THAT THE PEOPLE WERE TOTALLY BEING UTILIZED THAT WERE ON
THE JOBSITE FOR THOSE TWELVE HOUR SHIFTS." (TR 125)
9. THE THREE MACHINISTS WHO TESTIFIED AT THE HEARING WERE UPSET BY
THE CUTBACK IN HOURS. THE CUT AFFECTED THE AMOUNT OF TIME THEY HAD TO
PREPARE FOR THE SIX-HOUR STRETCH SPENT IN THE CRAMPED, RADIOACTIVE
ENVIRONMENT OF THE WORKSPACE. THE PREPARATION TIME WAS SPENT ON A
VARIETY OF TASKS PRIMARILY RELATED TO SORTING, MODIFYING AND PREPARING
EQUIPMENT. AFTER APPROXIMATELY THREE WEEKS, THESE TASKS WERE NO LONGER
REQUIRED. AS A RESULT OF LESS PREPARATION TIME, MOST OF THE MECHANICS
GOT "A LITTLE UP-TIGHT" AND EXPERIENCED "A LITTLE TENSENESS AMONG THE
CREW THAT (THEY) WERE WORKING WITH AS A TEAM," AND WERE "A LOT MORE
RUSHED." (TR 27, 48). ALSO, THE CUTBACK IN HOURS RESULTED IN A LOSS OF
EARNINGS. FEWER HOURS WERE WORKED, AND THE NEW SHIFT RESULTED IN A LOSS
OF THE 10 PERCENT GRAVEYARD DIFFERENTIAL FOR THOSE ON THAT SHIFT.
INSTEAD, THEY WENT TO A 7 1/2 PERCENT DIFFERENTIAL. TWO OF THE
MACHINISTS WERE COUNTING ON THE EXTRA PAY TO FINANCE TRIPS, TAKEN BY
RELATIVES, TO JOIN THEM IN PEARL HARBOR. ONE MACHINIST WAS COUNTING ON
THE EXTRA PAY TO CARRY HIM WHILE HE WAS OFF WORK AND HAVING AN
OPERATION.
10. EMPLOYEES WHO VOLUNTEER FOR TDY ASSIGNMENTS GENERALLY DO SO
BECAUSE THEY CONSIDER THEM TO BE A "GOOD DEAL." (TR 167) THE THREE
MACHINISTS WHO TESTIFIED AT THE HEARING VOLUNTEERED FOR THE TDY
ASSIGNMENT TO PEARL HARBOR BECAUSE OF THE EXPECTATION OF EXTRA MONEY
EARNED FROM THE LONG HOURS AND BECAUSE OF THE EXPERIENCE TO BE GAINED
FROM WORKING ON THE DIFFICULT TASKS INVOLVED. MINS REGARDS A TDY
ASSIGNMENT AS A PRESTIGE TYPE OF JOB FOR WHICH IT "SELECT(S) ITS EXPERTS
TO GO GET THE CUSTOMER OUT OF TROUBLE." (TR 94)
11. THE DECISION TO CUT BACK TO A NINE-HOUR SHIFT WAS MADE AROUND
APRIL 30 OR 31. MR. RUST, ON ONE OF THOSE DATES, CALLED WILLIAM
REDMOND, THE PRODUCTION SUPERINTENDENT FOR THE OUTSIDE MACHINE SHOP,
ABOUT THIS DECISION, AS HE REGARDED IT AS "A MAJOR CHANGE IN THE OVERALL
CONCEPT OF THE WAY (HE) HAD FORESEEN THE JOB AND (HE) JUST FELT THAT IT
WAS (HIS) RESPONSIBILITY TO KIND OF REFER IT TO HIM SINCE HE WAS, HE IS,
(HIS) SUPERVISOR." (TR 131)
12. DURING THE WEEK OF MAY 1, MR. PERSALL VERBALLY DISCUSSED THE
CHANGE IN HOURS WITH MR. BENSHOOF, THE UNION'S CHIEF STEWARD, UPON
INSTRUCTIONS FROM MR. REDMOND, AND "OUT OF COURTESY." (TR 108) MR.
BENSHOOF ASKED MR. PERSALL "TO SEND HIM A 'NOT' STATING WHAT WAS GOING
ON SO HE WOULD HAVE IT FOR HIS RECORDS." (TR 109) SUCH A "NOTE" WAS SENT
TO THE METAL TRADES COUNCIL, ON MAY 1. SEE GC 2. THIS MARKED THE FIRST
TIME THAT MINS HAD INFORMED THE UNION OF A CHANGE IN SHIFT HOURS ON A
TDY ASSIGNMENT.
13. THE UNION RECEIVED THE MAY 1 "NOTE" ON MAY 5. GIL REYES,
PRESIDENT OF MACHINISTS UNION LOCAL 252, AN AFFILIATE OF THE UNION,
FIRST LEARNED OF THE CHANGE UPON RECEIPT OF THIS COMMUNICATION. HE
CALLED MR. REDMOND TO COMPLAIN ABOUT THE "ODD HOURS," OUTSIDE THE HOURS
OF WORK IN THE NEGOTIATED CONTRACT, AND THE LACK OF PRIOR NOTICE. (TR
33) MR. REDMOND WAS TO GET BACK TO MR. REYES WITHIN A FEW WEEKS. WHEN
HE FAILED TO DO SO, MR. REYES FILED THE INSTANT CHARGE.
14. THE UNION HAS NEVER ASKED, BEFORE, TO NEGOTIATE A CHANGE IN
WORKING HOURS ON A TDY ASSIGNMENT.
15. THE AGREEMENT, IN ARTICLE XXXVII, DEALS WITH "TRAVEL AND
TEMPORARY DUTY ASSIGNMENT." IT HAS NO PROVISION AS TO SHIFT HOURS.
ARTICLE IX DEALS WITH "HOURS OF WORK." IT LISTS THE HOURS FOR SCHEDULED
EIGHT-HOUR WORK SHIFTS. THERE IS NO PROVISION FOR TWELVE-HOUR SHIFTS.
MANAGEMENT AT MINS HAS NEVER INTERPRETERED ARTICLE IX AS APPLYING TO TDY
ASSIGNMENTS. THE AGREEMENT PROVIDES THAT THE REGULAR SHIFT HOURS OF
EMPLOYEES MAY BE CHANGED, WITHOUT THE NORMAL ADVANCE NOTIFICATION ONLY
UNDER CERTAIN CONDITIONS, INCLUDING "UNPREDICTABLE OR EMERGENT
OPERATIONS" WHERE "NO ADVANCE PLANNING OR SCHEDULING IS POSSIBLE." SEE R
1.26 AND GC 4.3
16. IN PROCESSING A GRIEVANCE, THE UNION BECAME AWARE OF A
TWELVE-HOUR SHIFT SITUATION ON ANOTHER TDY ASSIGNMENT, IN SCOTLAND, AND
DID NOT REQUEST BARGAINING AS TO IT.
ISSUES POSED BY THE PARTIES
1. WHETHER IRREGULAR SHIFT HOURS AND FREQUENT CHANGES IN SHIFT
HOURS, ON TDY ASSIGNMENTS,
ARE A CONDITION OF EMPLOYMENT. (RBR 5)
2. WHETHER RESPONDENT PROVIDED THE UNION WITH NOTICE AND THE
OPPORTUNITY TO BARGAIN
REGARDING THE CHANGE IN THE HOURS OF THE SHIFTS OF EMPLOYEES ON TDY
AT PEARL HARBOR WHICH WAS
IMPLEMENTED ON MAY 5. (GCBR 2)
3. WHETHER THE UNION WAIVED ITS RIGHT TO NOTICE AND THE OPPORTUNITY
TO BARGAIN CONCERNING
THE CHANGE IN THE HOURS OF THE SHIFTS OF EMPLOYEES ON TDY AT PEARL
HARBOR. (GCBR 2)
4. WHETHER RESPONDENT SHOULD BE ORDERED TO MAKE THE EMPLOYEES WHOLE
FOR THE OVERTIME PAY
THEY LOST AS A RESULT OF RESPONDENT'S UNILATERAL CHANGE IN THE HOURS
OF THEIR SHIFTS WHILE ON
TDY AT PEARL HARBOR. (GCBR 2)
DISCUSSION AND CONCLUSIONS
THE PARTIES ARE IN AGREEMENT THAT RESPONDENT MAY NOT CHANGE A
CONDITION OF EMPLOYMENT WITHOUT NOTIFYING THE UNION AND GIVING IT AN
OPPORTUNITY TO BARGAIN. SEE RBR 5 AND GCBR 7. RESPONDENT ARGUES THAT
IRREGULAR SHIFT HOURS AND FREQUENT CHANGES IN SHIFT HOURS ON TDY ARE A
CONDITION OF EMPLOYMENT; AND THEREFORE IT IS UNDER NO OBLIGATION TO
NOTIFY THE UNION OF SHIFT CHANGES ON TDY JOBS, OR TO BARGAIN CONCERNING
THEM. (RBR 5) THE GENERAL COUNSEL ARGUES THAT THE TDY JOB HERE WAS NOT
TYPICAL, AND DID NOT PRESENT THE KIND OF EXIGENCIES WHICH MANDATE
FLEXIBILITY AND DAY-TO-DAY CHANGES IN WORKING HOURS, SUCH AS BOAT
AVAILABILITY, LOST SHIPYARD HOURS, OR WEATHER. THE GENERAL COUNSEL
ARGUES THAT, HERE, WE ARE CONCERNED WITH A CHANGE FROM REGULARLY
SCHEDULED TWELVE-HOUR SHIFTS, ESTABLISHED EVEN BEFORE THE TDY CREW WENT
TO PEARL HARBOR, TO REGULAR NINE-HOUR SHIFTS, AND THAT THE CHANGE WAS
OCCASIONED SOLELY BY FINANCIAL CONSIDERATIONS. (GCBR 8)
THE GENERAL COUNSEL MAKES NO MENTION OF THE EVIDENCE THAT FINANCIAL
CONSIDERATIONS ARE ALSO A CONSIDERATION ON TDY JOBS; THAT CARE IS TAKEN
TO CONTAIN EXCESSIVE COSTS; THAT MINS TYPICALLY "OVERKILLS," IN TERMS
OF PERSONNEL AND HOURS, AT THE BEGINNING OF A TDY JOB, IN ORDER TO AID
THE CUSTOMER IN GETTING ITS SHIP BACK INTO OPERATION, AND THEN CUTS
BACK, TOWARDS THE END, TO GET COSTS IN LINE. THIS IS EXACTLY WHAT
HAPPENED HERE.
THE PEARL HARBOR JOB WAS A COMPLEX ONE, NOT BEFORE ATTEMPTED. IT WAS
NOT POSSIBLE TO PREDICT PERSONNEL NEEDS, WITH ANY CERTAINTY, UNTIL THE
PROJECT WAS UNDERWAY. FOR EXAMPLE, EQUIPMENT HAD TO BE MODIFIED, AT
PEARL HARBOR, TO ACCOMPLISH THE JOB. ONCE THE TDY CREW WAS SELECTED AND
BEGAN MOCK-UP AND ACTUAL OPERATIONS, A NUMBER OF CHANGES IN SHIFTS AND
SHIFT HOURS WERE SCHEDULED TO ACCOMPLISH THE JOB IN THE MOST EFFICIENT
AND EFFECTIVE MANNER. VOLUNTEERS FOR THE JOB WERE WARNED OF LONG HOURS,
INCLUDING TWELVE-HOUR SHIFTS. TWELVE-HOUR SHIFTS WERE WORKED, FOR ABOUT
THREE WEEKS, UNTIL IT BECAME APPARENT THAT A CUTBACK TO NINE HOURS WOULD
ALLOW THE JOB TO BE FINISHED MORE ECONOMICALLY, AND AS EFFICIENTLY.
SINCE CHANGES IN HOURS AND SHIFTS ARE COMMON ON TDY JOBS, AND TDY JOBS
ARE NUMEROUS, THE CHANGES THAT OCCURRED ON THE PEARL HARBOR TDY JOB
SHOULD NOT HAVE SURPRISED THE EMPLOYEE WHO VOLUNTEERED FOR THE JOB, OR
THE UNION. IT IS FAIR TO CONCLUDE, FROM THE RECORD MADE, THAT
ACCEPTANCE OF A TDY ASSIGNMENT CONSTITUTES ACCEPTANCE OF VARIABLE HOURS
AND SHIFTS, AS NECESSARY TO ACCOMPLISH THE ASSIGNMENT IN THE MOST
"EFFECTIVE AND EFFICIENT" MANNER. SEE SECTION 7101(B) OF THE STATUTE
WHICH PROVIDES THAT INTERPRETATION OF STATUTORY PROVISIONS MUST BE "IN A
MANNER CONSISTENT WITH THE REQUIREMENTS OF AN EFFECTIVE AND EFFICIENT
GOVERNMENT." IT IS THEREFORE CONCLUDED THAT THE RESPONDENT WAS UNDER NO
STATUTORY OBLIGATION TO NOTIFY THE UNION OF EACH CHANGE IN SHIFT HOURS
ON THE PEARL HARBOR TDY JOB, OR TO BARGAIN CONCERNING EACH ONE.
AS TO THE AGREEMENT BETWEEN RESPONDENT AND THE UNION, THEY HAVE
ENGAGED IN COLLECTIVE BARGAINING CONCERNING TDY ASSIGNMENTS. NO MENTION
IS MADE OF SHIFT CHANGES ON TDY ASSIGNMENTS. SEE ARTICLE XXXVII OF THE
AGREEMENT. THEY HAVE ALSO BARGAINED ABOUT CHANGING OF REGULAR SHIFT
HOURS DURING "UNPREDICTABLE AND EMERGENT OPERATIONS" WHERE NO ADVANCE
PLANNING OR SCHEDULING IS POSSIBLE; AND THEY HAVE AGREED THAT ADVANCE
NOTIFICATION TO THE UNION OF A CHANGE IN REGULAR SHIFT HOURS IS NOT
REQUIRED, UNDER THESE CONDITIONS. SEE ARTICLE IX OF THE AGREEMENT AND
FINDING 15, ABOVE. THE PEARL HARBOR TDY JOB IS SUCH AN "UNPREDICTABLE"
AND "EMERGENT" SITUATION. IN ANY EVENT, RESPONDENT HAS SO INTERPRETED
IT. THE FACT THAT RESPONDENT GAVE THE UNION NOTICE OF ONE OF THE
CHANGES ON THE TDY JOB IN PEARL HARBOR, OUT OF COURTESY, DOES NOT MEAN
THAT IT WAS OBLIGATED TO DO SO. IF RESPONDENT'S INTERPRETATION OF THE
CONTRACT IS INCORRECT, THE UNION MAY UTILIZE THE GRIEVANCE PROCEDURES
PROVIDED FOR IN ARTICLE XXXVIII OF THE AGREEMENT (R1. 91-92). HOWEVER,
DIFFERING AND ARGUABLE INTERPRETATIONS OF AN AGREEMENT ARE NOT
RESOLVABLE AS UNFAIR LABOR PRACTICES. SEE, E.G., OKLAHOMA CITY AIR
LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA 82(1980).
THE PREPONDERANCE OF THE EVIDENCE DOES NOT ESTABLISH THE UNFAIR LABOR
PRACTICES ALLEGED. BECAUSE OF THE RESOLUTION OF THE ISSUE POSED BY THE
RESPONDENT, IN ITS FAVOR, IT IS UNNECESSARY TO RESOLVE THE ADDITIONAL
ISSUES POSED BY THE GENERAL COUNSEL.
ULTIMATE FINDING AND ORDER
RESPONDENT HAS NOT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE, AS ALLEGED.
ACCORDINGLY, THE COMPLAINT IN CASE NO. 9-CA-563 SHOULD BE, AND IT IS
HEREBY DISMISSED.
ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
DATED: MAY 11, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ IT IS NOTED THAT CONSTANT CHANGES IN SHIFT HOURS, AS OCCURRED
HEREIN, ARE UNUSUAL. TYPICALLY, CHANGES IN SHIFT HOURS REQUIRE NOTICE
TO THE UNION, AS THEY REPRESENT A CHANGED CONDITION OF EMPLOYMENT. SEE
DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO.
2(1981).
ADDITIONALLY, IN CONCLUDING THAT NO UNILATERAL CHANGE IN CONDITIONS
OF EMPLOYMENT OCCURRED HEREIN, THE AUTHORITY FINDS IT UNNECESSARY TO
PASS UPON THE JUDGE'S DISCUSSION REGARDING SECTION 7101(B) OF THE
STATUTE OR TO PASS UPON THE JUDGE'S INTERPRETATION OF THE PARTIES'
AGREEMENT.
/2/ SECTION 7116(A)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
AGENCY "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE 0Y THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER."
ONE SUCH "RIGHT" IS "(1) TO ACT FOR A LABOR ORGANIZATION IN THE
CAPACITY OF A REPRESENTATIVE AND THE RIGHT, IN THAT CAPACITY, TO PRESENT
THE VIEWS OF THE LABOR ORGANIZATION TO HEADS OF AGENCIES" AND "(2) TO
ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF EMPLOYMENT
THROUGH REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER." SEE
SECTION 7102 OF THE STATUTE.
SECTION 7116(A)(5) MAKES IT AN UNFAIR LABOR PRACTICE "TO REFUSE TO
CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED
BY THIS CHAPTER."
/3/ REFERENCES TO THE RECORD WILL BE AS FOLLOWS: "TR" REFERS TO THE
TRANSCRIPT; "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL; "R"
REFERS TO THE EXHIBITS OF THE RESPONDENT; "GCBR" REFERS TO THE BRIEF OF
THE GENERAL COUNSEL; AND "RBR" REFERS TO THE BRIEF OF THE RESPONDENT.
MULTI PAGE EXHIBITS WILL BE REFERENCED BY THE EXHIBIT NUMBER AND THEN
THE PAGE NUMBER. ALL DATES REFERENCED WILL BE IN 1980, UNLESS OTHERWISE
SPECIFIED.