18:0119(23)CA - Agriculture, Federal Grain Inspection Service and Agriculture, Federal Grain Inspection Service, Destrehan and Belle Chasse, LA and AFGE Local 3157 -- 1985 FLRAdec CA
[ v18 p119 ]
18:0119(23)CA
The decision of the Authority follows:
18 FLRA No. 23
UNITED STATES DEPARTMENT OF
AGRICULTURE, FEDERAL GRAIN INSPECTION
SERVICE, AND UNITED STATES DEPARTMENT
OF AGRICULTURE, FEDERAL GRAIN
INSPECTION SERVICE, DESTREHAN AND
BELLE CHASSE, LOUISIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, Local 3157
Charging Party
Case No. 6-CA-20110
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, exceptions and briefs in support
thereof were filed by the Respondent and the General Counsel, and an
opposition to the Respondent's exceptions was filed by the General
Counsel.
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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The facts as found by the Judge are not in dispute. Since 1971 the
United States Department of Agriculture, Federal Grain Inspection
Service, Destrehan and Belle Chasse, Louisiana (the Activity) and
American Federation of Government Employees, AFL-CIO, Local 3157 (the
Union) have been parties to local collective bargaining agreements which
provided, inter alia, that unit employees were to be divided into two
lists, approximately equal in size. All employees whose names appeared
on List A would be available for weekend overtime assignment on one
weekend and would be unavailable, unless they volunteered, on the
following weekend. All employees whose names appeared on List B
similarly would be available for assignment on the alternate weekends.
As found by the Judge, the "A and B" system rendered one-half of the
employees unavailable for assignment of weekend overtime, unless they
volunteered.
Following a unit consolidation petition in Case 22-0739(RO), the
United States Department of Agriculture, Federal Grain Inspection
Service (the Agency) and the Union's parent organization, American
Federation of Government Employees, AFL-CIO (AFGE, on September 21,
1979, entered into a National or Master Agreement expressly providing
that existing policies and practices regarding overtime would be
continued at local offices until changes were established at the local
level through appropriate consultation or negotiation. During the term
of that National or Master Agreement, the Respondent Activity notified
the Union of its intent to change the method of assigning weekend
overtime at Destrehan and Belle Chasse and offered to bargain concerning
the impact and implementation of its decision. Despite demands by the
Union, the Activity refused to bargain concerning the decision itself.
The Judge concluded, inter alia, that the A and B system of assigning
weekend overtime, as provided for in the local agreements, was so
directly and integrally related to the numbers, types and grades of
employees assigned thereto as to be negotiable only at the election of
management, in accordance with section 7106(b)(1) of the Statute. /1/
He further concluded that the Respondent had elected to bargain about
weekend overtime, and hence the method established by the applicable
provision of the local agreements could not be changed without
negotiation with the Union.
The Authority does not agree. Rather, the Authority concludes that
the Respondent's unilateral change in the method of assigning weekend
overtime did not violate the Statute since it constituted a change from
a system which was inconsistent with the rights of management under
section 7106(a) of the Statute and therefore outside the duty to
bargain. Thus, the A and B system established by the local agreements,
under which half of the unit employees were unavailable for assignment
on any given weekend unless they volunteered, directly interfered with
management's right to assign work under section 7106(a)(2)(B) of the
Statute. /2/ As found by the Judge, the A and B system guaranteed
employees every other weekend off. This resulted in an absolute
prohibition on management's right to assign overtime work to certain
employees, even where such assignments were deemed necessary, which
right is reserved to management by the Statute. /3/ The extent to which
the A and B system infringed upon management's statutory rights is
underscored by record evidence that on occasions when the Respondent was
unable to obtain sufficient personnel from volunteers and from the list
of employees available for assignment, it was obliged to have employees
detailed from other parts of the Agency in order to perform its weekend
operations. Therefore, as the Authority concludes that the method of
assigning weekend overtime in question did not involve a matter over
which management could bargain at its election as set forth in section
7106(b)(1) of the Statute, but rather concerned the reserved right of
management to assign work under section 7106(a)(2)(B) of the Statute,
the Respondent was at no time under a statutory duty to bargain
concerning its decision to change the weekend overtime assignment
system. Accordingly, the Authority finds that the Respondent did not
violate the Statute by refusing to bargain about its decision to change
the method of assigning weekend overtime at Destrehan and Belle Chase,
Louisiana. /4/
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-20110 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Susan E. Jelen, Esquire
For the General Counsel
Mr. William E. Struck
Mr. Guy Morgan
For the Respondent
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101
et seq., /5/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on December 11,
1981 (G.C. Exh. 1(a)), which alleged violations of Secs. 16(a)(1), (5),
(7) and (8) of the Statute; a First Amended Charge filed on January 20,
1982 (G.C. Exh. 1(d)) which alleged violations of Secs. 16(a)(1) and (5)
of the Statute; and a Second Amended Charge filed on August 30, 1982
(G.C. Exh. 1(f)) which also alleged violations of Secs. 16(a)(1) and (5)
of the Statute. The Complaint and Notice of Hearing herein issued on
September 3, 1982 (G.C. Exh. 1(h)). The Complaint alleged violations of
Secs. 16(a)(1) and (5) and the notice of hearing set the hearing for
October 19, 1982, at a time and place to be determined. By Order dated
September 28, 1982, the hearing was rescheduled for November 29, 1982
(G.C. Exh. 1(k)); and by Order dated November 9, 1982, the hearing was
again rescheduled, upon Motion of Respondent (G.C. Exhs. 1(m) and (n)),
to January 13, 1983 (G.C. Exh. 1(o)), pursuant to which a hearing was
duly held on January 13, 1983, in New Orleans, Louisiana, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument which each party waived. At the
close of the hearing, February 14, 1983, was fixed at the date for
mailing post-hearing briefs, which time was subsequently extended, on
Motion of General Counsel to which Respondent did not object, for good
cause shown, specifically, delay in receipt of the transcript, to
February 22, 1983. Each party timely mailed a very helpful brief,
received on or before February 24, 1983, which have been carefully
considered. Upon the basis of the entire record, I make the following
findings and conclusions:
The Issues
The controlling issues are:
1. Whether the terms of a local agreement, executed in 1976,
and which carried forward a like provision initially executed in
1971, with respect to the scheduling of week-end overtime
continued as an effective agreement following certification of the
National Council of Federal Grain Inspection Locals nationwide and
the execution, in 1979, of a National Agreement.
2. Whether a contractual agreement governing the assignment of
week-end overtime, if the local agreement survived as a valid and
continuing collective bargaining agreement, or whether the
acknowledged and conceded practice of assignment of week-end
overtime, if the local agreement did not survive the execution of
a National Agreement, which had been followed consistently from
1971 until October 31, 1981, could be changed unilaterally by
Respondent without negotiating on the decision to change an
existing term and condition of employment because, as Respondent
asserts, such matter, i.e., assignment of week-end overtime by a
method which guaranteed each employee, if he wished, every other
week-end off, was negotiable only at the election of Respondent
because it was directly and integrally related to the numbers,
types, and grades of employees assigned to any organizational
subdivision, work project, or tour of duty, was negotiable only at
the election of Respondent, pursuant to Sec. 6(b)(1) of the
Statute, and Respondent refused to negotiate on its decision to
change the method of assignment of week-end overtime.
There is no dispute that Respondent was obligated to negotiate on the
impact and implementation of its decision, i.e., "procedures which
management . . . will observe . . . " or "appropriate arrangements for
employees adversely affected . . . " by exercise of such authority,
pursuant to Sec. 6(b)(2) and (3) of the Statute. Indeed, Respondent
gave adequate notice and offered to negotiate on impact and
implementation. While I fully agree that a union proposal to establish
such a method of assignment of weekend overtime would have been a
permissive subject of bargaining negotiable only at the election of the
agency, I do not agree that the change of an established condition of
employment is negotiable only at the election of the agency; but even
if it were, such change has been made negotiable by the terms of the
applicable National Agreement. Accordingly, for reasons more fully set
forth hereinafter, I conclude that Respondent was obligated to negotiate
on its proposed change of the established condition of employment
respecting the assignment of weekend overtime because: (a) the local
agreement was not superseded by the National Agreement and Respondent
was obligated to negotiate on any change of the local agreement; (b)
even if the local agreement were superseded, the method of assignment of
week-end overtime established thereby created a condition of employment
which remained binding and which Respondent could change only through
negotiations; and (c) even if such change of an established condition
of employment were, contrary to my conclusion, negotiable only at the
election of Respondent, Respondent, by virtue of the provisions of the
controlling National Agreement, has contractually elected to negotiate.
Findings
1. The Federal Grain Inspection Service (FGIS) is a primary national
subdivision of the Department of Agriculture (Tr. 63). Originally,
Respondent, FGIS, had one Field Office in New Orleans, Louisiana, which
served the same area now served by three Field Offices (Tr. 21). A
Field Office was established at Lutcher, Louisiana, in 1977, and a Field
Office was established at Destrehan, Louisiana, in late 1977 or 1978.
In 1981, the New Orleans Field Office was moved to Belle Chasse,
Louisiana (Tr. 21, 22).
2. In 1970, Local 3157 of the American Federation of Government
Employees was recognized as the exclusive representative of the New
Orleans Field Office and a collective bargaining agreement was
negotiated in 1971 (G.C. Exh. 4). A further collective bargaining
agreement was negotiated in 1976 (G.C. Exh. 3) and was extended to
include the Lutcher and Destrehan Field Offices (Tr. 22; G.C. Exh.
1(h), Par. 6, Tr. 9).
3. On December 23, 1977, a national consolidated bargaining unit
consisting of all employees in the Field Office of FGIS nationwide,
excluding professional employees, employees engaged in federal personnel
work in other than a purely clerical capacity, management official,
supervisors and Regional Office employees was established in Case
22-0739(RO). On September 21, 1979, FGIS and the National Council of
Federal Grain Inspection Locals, American Federation of Government
Employees, AFL-CIO, entered into a Master collective bargaining
agreement (G.C. Exh. 2).
4. Local 3157 represents bargaining unit employees in the Belle
Chasse, Destrehan and Lutcher Field Offices. The president is
responsible for the entire Local. Each Field Office has an executive
vice president who is responsible for local Field Office matters and
reports to the president (Tr. 20, 21, 41, 42, 58).
5. The employees at the Field Offices who work as agricultural
commodity graders are responsible for the inspection and weighing of
grain. They work in both grain elevators, and on numerous floating rigs
(Tr. 41). The employees work three basic shifts: the day shift
(0700-1530); swing shift (1530-2330); and night shift (2300-0730) (Tr.
18, 19). The basic work week is Monday through Friday.
6. In 1971, Local 3157 and Respondent negotiated, as part of their
Basic Agreement, a weekend overtime provision (G.C. Exh. 4, Par. 13.3)
which, with slight modifications, was carried over into their 1976
agreement (G.C. Exh. 3, Par. 13.2) which provided, in part, as follows:
"To assure the health and welfare of employees, it is agreed
that approximately 50 percent of said employees shall be free of
any work assignment on weekends between 1900 hours on Friday and
0600 hours on Monday . . . . This will be achieved by the
Employer preparing an A and B listing of all Agricultural
Commodity Graders and Agricultural Commodity Aids. These lists
will be approximately equal in number and grade levels. The
employees whose names appear on List A will be considered
available for overtime assignment at anytime during the weekend.
Those employees on List B will be considered unavailable for any
work assignment. The lists will be alternated weekly. Employees
may mutually agree to change from the available list to the
unavailable list and vice versa . . . upon approval of the
Employer. Employees shall notify the Employer of these changes no
later than 1600 hours on the Thursday preceding the weekend
involved.
"Employees that have not mutually agreed to change from the
unavailable list to the available list may volunteer for weekend
overtime assignment by notifying the Employer not later than 1600
hours on the Thursday preceding the weekend involved. It is
further agreed that anyone on the available list has the option to
be off for all or part of the weekend, if a trade has not been
made, provided there is a volunteer to cover the assignment.
"Overtime will be assigned to employees in the following order:
"1. Employees on the available list who wish to work.
"2. Volunteers.
"3. Employees on the available list who do not wish to work.
. . . " (G.C. Exh. 3, Par. 13.2).
7. The A and B system was in effect from 1971 until October 31,
1981. Essentially, the A and B system guarantees employees every other
weekend off. Further, it provided an opportunity for employees who
desired to work overtime to do so, and permitted employees on the
available list who did not want to work overtime an opportunity for
alternate arrangements.
8. The National Agreement addressed the matter of overtime and
specifically provided that: (a) overtime can most appropriately be
determined at each Field Office; and (b) that existing policies and
practices regarding overtime shall be continued at each office until
changes are established at the Field Office level through appropriate
consultation or negotiation. Thus, Article 18, "HOURS OF WORK AND
OVERTIME" provided as follows:
"The Parties acknowledge that the Federal Grain Inspection
Service has both regulatory and service responsibilities to the
Grain industry and marketing complex. As such, the Agency must
meet work demands as presented by the industry. These conditions
and requirements vary significantly throughout the Agency insofar
as the scheduling of work assignments and overtime. Therefore,
the Parties agree that the subjects of hours of work and overtime
can most appropriately be continued and determined at each Field
Office. Existing policies and practices regarding hours of work
and overtime will be continued at each office until changes are
established at the Field Office level through appropriate
consultation or negotiation as provided in the Articles of this
Agreement covering local agreements." (G.C. Exh. 2, Art. 18).
9. Article 31, "NEGOTIATION OF LOCAL AGREEMENTS", of the National
Airport provides as follows:
"Section 1 Negotiations
"As provided for in Section 3 below local agreements may be
negotiated at the Field Office level by an AFGE Local which
represents all of the bargaining unit employees assigned to the
respect in Field Office.
"Section 2 Relationship to Master Agreement
"It is understood by the Parties to this Agreement that this is
the Master Agreement and that only a local agreement may be
negotiated at the local level. The Master Agreement is governing
and controlling and nothing may be included in the local
supplemental agreement which is in conflict with the Agreement.
The rights clauses apply to all supplemental agreements
negotiated. Where provisions of an agreement are in conflict with
the terms of the Master Agreement, the terms of the Master
Agreement will govern.
"Section 3 Coverage
"It is understood that the only purpose of local agreements is
for coverage of items which have application at the respective
Field Office; the Parties therefore agree that the only subjects
that may be appropriate for negotiation at the local level are (1)
hours of work (2) scheduling of overtime (3) local changes in
personnel policies and practices and other matters affecting
conditions of employment." (G.C. Exh. 2, Art. 31)
10. On, or about, October 5, 1981, Respondent's Field Office
supervisors at Belle Chasse, Destrehan and Lutcher each sent a
memorandum to the respective executive president of Local 3157 for their
office. Each memorandum was identical and stated as follows:
"This is to serve as preliminary notification of management's
intent to implement a new system of scheduling weekend overtime.
"The system will be based on selection of those employees
having the lowest total number of hours of overtime worked since
the beginning of the fiscal year. This will eliminate the "A" and
"B" team concept.
"We will be happy to discuss this system with you. If we have
not received any response from you by October 30, 1981, the system
will be implemented as of that date." (G.C. Exhs. 5, 6 and 7).
A copy of each memorandum was also sent to Mr. Vincent Volpe, then
president of Local 3157 (G.C. Exhs. 5, 6, and 7; Tr. 25, 26, 27).
11. After receiving the memorandum, Mr. Volpe contacted his
supervisor, Mr. Jon Ruzek, who told him that the decision on overtime
scheduling was coming from Mr. Struck, and, accordingly, Mr. Volpe
called Mr. William E. Struck in Washington, D.C. Mr. Volpe informed Mr.
Struck that the Union objected to the change; that the A and B system
was the product of negotiation; that the Union was most willing to
negotiate the matter but that elimination of the A and B system without
negotiations would be contrary to the Civil Service Reform Act of 1978
(Tr. 28). Mr. Struck responded that the decision was management's
because it was a permissive item of negotiation rather than a mandatory
item; that management would negotiate the impact of the new system but
the decision was their's and they were making it (Tr. 28).
12. On October 12, 1981, after his conversation with Mr. Struck, Mr.
Volpe, in his capacity as president of Local 3157, wrote Mr. Ruzek, with
a copy, inter alia, to Mr. Struck, and gave notice to Respondent that
the Union wished to negotiate the proposed change in working conditions.
Mr. Volpe pointed out that implementation of . . . this 'New System'
(change in working condition) without first bargaining with the Union
(Local 3157) . . . would be contrary to Title VII of the Civil Service
Reform Act and Article 18 of the National Contract. Further, the
subject 'Scheduling of Weekend Overtime' is clearly a negotiable subject
for the Local Supplement Agreement (per Article 31, sections 1 and 2 of
the National Agreement)." (G.C. Exh. 8). Respondent did not reply to
Mr. Volpe's letter.
13. However, on, or about, October 22, 1981, during the course of a
meeting concerning the negotiation of the impact of the move of the New
Orleans Field Office to Belle Chasse, Mr. Struck brought up the issue of
the elimination of the A and B system. This meeting was attended by:
Mr. Struck, Mr. Ruzek and Mr. Dave Mundwiler, a labor relations
specialist from Washington, D.C., for Respondent; Mr. Volpe, Mr. Harold
Drivon, the incoming president of Local 3157, Mr. Wayne Picou, vice
president for Belle Chasse, and Mr. Al Garcia, AFGE National
Representative, for the Union. The Union stated that it wanted to
negotiate the decision; but Mr. Struck again indicated that this was a
permissive item for negotiation; that the decision to eliminate the A
and B system was management's and they were making the decision. Mr.
Struck indicated that the new system was going to be implemented at the
end of the month; that they were willing to listen to impact and
implementation comments; but that management would not negotiate the
decision (Tr. 30-32, 45-47). Indeed, at the hearing, Mr. Struck stated,
"Vince, I think that your interpretation that we refused to
bargain on the decision was absolutely correct, and I would just
state that for the record." (Tr. 40).
14. The new overtime scheduling system was implemented on October
31, 1981, in the Belle Chasse, Destrehan and Lutcher Field Offices. The
new system calls for employees to be divided into two Divisions, with
each Division scheduled on alternating weekends. The system was based
on the employees' accumulated overtime for the fiscal year. Therefore,
if an employee had a lot of accumulated overtime, he would not be
allowed to work even if he wished; on the other hand, employees with
little accumulated overtime were forced to work even if they did not
want to work overtime. There was no volunteer or trade off provisions
and the system did not guarantee weekends off (Tr. 34, 35, 51, 52).
15. The Division system is currently in effect at the Belle Chasse
and Destrehan Field Offices. Certain changes have been made in the
Belle Chasse system as a result of grievance settlements and
negotiations with Mr. Ruzek. These include a volunteer off procedure as
well as a volunteer on procedure. Employees are also allowed to swap
shifts or job sites (Tr. 36, 52, 53, 81); however, there is no
guaranteed weekend off.
16. The Division system was in effect at the Lutcher Field Office
from October 31, 1981, until April 8, 1982. The Union at the Lutcher
Field Office negotiated a local supplemental agreement with management
at the Lutcher Field Office. The overtime scheduling system at Lutcher
is a volunteer sign off system. It does not guarantee weekends off.
Employees who do not desire to work overtime sign a list. Management
picks employees who have not signed off for overtime positions. If more
employees are needed, they are selected from the sign off list on the
basis of low overtime hours previously worked (G.C. Exh. 11, Tr. 58,
59).
17. Under the A and B system, except for volunteers, only one half
the employees could be required to work weekend overtime. Accordingly,
to meet work requirements, Respondent had detailed employees from other
Field Offices. Employees were detailed from Mobile, Alabama; Arkansas;
Chicago, Portland, Oregon; Baltimore; and from other locations (Tr.
65, 66). However, details were also common between the three Louisiana
Field Offices, for example, Destrehan employees being detailed to Belle
Chasse (Tr. 89, 95, 96). Employees from outside the State of Louisiana
were usually detailed for a longer period of time than a weekend (Tr.
77, 78, 96). The cost of operating the Federal Grain Inspection
Service, including the cost of detailing employees, is reimbursed to the
government by the grain industry. Under the user fee concept,
Respondent provides a voluntary service for which the participating
grain industry pays (Tr. 78).
18. The 1976 Local Agreement (G.C. Exh. 3) was for a term of one
year but contained an automatic renewal provision (Art. 2) and no notice
was ever given by either party of "its desire to effect changes", at
least prior to October 31, 1981. As noted above, Mr. Struck in October,
1981, refused to negotiate on the decision to change the A and B system.
In 1982, Respondent sought to negotiate three separate local agreements
and the Union's proposals, presumably for both Destrehan and Belle
Chasse and, certainly for Belle Chasse, were submitted in April or May,
1982, but there was no response from Respondent /6/ (Tr. 55-56).
Conclusions
1. The provision of Local 3157's Local Agreement concerning weekend
overtime was a valid collective bargaining agreement which could be
changed only by negotiations.
Consolidation of the various local units of recognition into a single
nationwide unit in 1977 did not, in and of itself, affect any changes of
the 1976 Agreement of Local 3157. Indeed, the record shows that
thereafter the 1976 Agreement was extended to include the Lutcher and
Destrehan Field Offices. It is certainly true that the National
Agreement of September 21, 1979, did supersede many provisions of local
agreements. Indeed, Article 31, Section 2, of the National Agreement
specifically provides, in part, that: " . . . this is the Master
Agreement . . . . The Master Agreement is governing and controlling and
nothing may be included in the local supplemental agreement which is in
conflict with the Agreement . . . . Where provisions of an agreement
are in conflict with the terms of this Master Agreement, the terms of
the Master Agreement will govern." (G.C. Exh. 2, Art. 31, Sec. 2).
However, as to hours of work and overtime, Section 18 of the National
Agreement (also referred to therein as the "Master Agreement" or
"Agreement") as to "Hours of Work & Overtime" first recognized that
because of varying conditions throughout FGIS, ". . . hours of work and
overtime can most appropriately be continued and determined at each
Field Office" and then specifically provided that,
" . . . Existing policies and practices regarding hours of work
and overtime will be continued at each office until changes are
established at the Field Office level through appropriate
consultations or negotiation as provided in the Articles of this
Agreement covering local agreements." (G.C. Exh. 2, Art. 18).
Article 31 of the National Agreement, which governs "Negotiation of
Local Agreements" further specifically provides, in part, as follows:
" . . . the Parties therefore agree that the only subjects that
may be appropriate for negotiation at the local level are (1)
hours of work (2) rescheduling of overtime (3) local changes in
personnel policies and practices and other matters affecting
conditions of employment." (G.C. Exh. 2, Art. 31, Sec. 3).
Consequently, since Article 18 of the National Agreement provided that
existing policies and practices regarding hours of work and overtime
will be continued at each office until "changes are established at the
Field Office level through . . . negotiation . . . ." and Article 31 of
the National Agreement provided for negotiation at the local level,
inter alia, of "(2) scheduling of overtime", it is abundantly clear that
nothing in the National Agreement was intended to supersede in any
manner existing policies and practices regarding hours of work and
overtime. Not only is there nothing in Paragraph 13.2 of Local 3157's
Local Agreement which is in conflict with any term of the National
(Master) Agreement, but, to the contrary, Article 18 of the National
(Master) Agreement provides that " . . . the subjects of hours or work
and overtime can most appropriately be continued and determined at each
Field Office. Existing policies and practices regarding hours of work
and overtime will be continued at each office until changes are
established at the Field Office level through . . . negotiation . . . ."
and Article 31 of the National (Master) Agreement provides for local
negotiations, inter alia, of "scheduling of overtime". Respondent's
assertion that the National Agreement superseded Par. 13.2 of Local
3157's Local Agreement concerning the assignment of weekend overtime is
rejected as contrary to the clear and unambiguous provision of Articles
18 and 31 of the National (Master) Agreement.
As the terms of the Local Agreement concerning the scheduling of
weekend overtime are separate and distinct, are not in conflict with any
term the National (Master) Agreement, and the National (Master)
Agreement specifically provides for the continuation of existing
policies and practices concerning, inter alia, overtime until changed at
the Field Office level through negotiation, Paragraph 13.2 of the Local
Agreement continued, after execution of the National Agreement, as a
valid agreement. Moreover, the record shows that the terms of the Local
Agreement were consistently followed after execution of the National
(Master) Agreement until unilaterally changed by Respondent on October
31, 1981. As a valid collective bargaining agreement, the terms of the
Local Agreement concerning weekend overtime could be changed lawfully
only through negotiations and Respondent's refusal to negotiate /7/ with
regard thereto violated Secs. 16(a)(5) and (1) of the Statute.
2. Conditions of employment continued, even if Local 3157's Local
Agreement did not, unless modified in a manner consistent with the
Statute.
Here, scheduling of weekend overtime was a condition of employment
established by collective bargaining, initially in 1971 and
re-negotiated in 1976, and consistently followed from 1971 until October
31, 1981, when unilaterally changed by Respondent. If, contrary to my
conclusion that the provisions of Local 3157's Local Agreement continued
after execution of the National (Master) Agreement as a valid agreement,
the Local Agreement did not survive as a valid agreement after execution
of the National (Master) Agreement, certainly the conditions of
employment concerning weekend overtime, established by collective
bargaining, clearly continued and were consistently followed for more
than two years after execution of the National (Master) Agreement. In
U.S. Nuclear Regulatory Commission, 6 FLRA No. 9, 6 FLRA 18 (1981), the
Authority held, in part, as follows:
" . . . In the Authority's opinion, the purposes and policies
of the Statute are best effectuated by a requirement that existing
personnel policies, practices, and matters affecting working
conditions continue, to the maximum extent possible, upon the
expiration of a negotiated agreement, absent an express agreement
to the contrary or unless modified in a manner consistent with the
Statute. (Citations omitted) We see no distinction in the
circumstances of this case where there has been a change in the
exclusive representative since the expiration of the agreement.
The stability of the new bargaining relationship is enhanced by a
required maintenance of existing personnel policies and practices,
and matters affecting working conditions pending the negotiation
of a new agreement." (6 FLRA at 20).
Respondent relies upon U.S. Naval Station, Mayport, Florida, 6 FLRA No.
26, 6 FLRA 133 (1981), in which the Authority set aside an arbitrator's
award on the basis of the Council's decision in Internal Revenue
Service, Ogden Service Center, et. al., A/SLMR No. 806, 7 A/SLMR 201
(1977) and Department of the Treasury, Internal Revenue Service,
Brookhaven Service Center, A/SLMR No. 859, 7 A/SLMR 532 (1977), 6 FLRC
310 (1978), A/SLMR 1052, 8 A/SLMR 603 (1978) (Ogden), A/SLMR 1053, 8
A/SLMR 612 (1978) (Brookhaven), and, in effect, asserts "modified in a
manner consistent with the Statute" in U.S. Nuclear Regulatory
Commission, supra, means herein that Respondent retained the right upon
"supersession" of the Local Agreement, " . . . to unilaterally change
provisions contained therein relating to 'permissive' subjects of
bargaining . . . ", as the Council had held in Ogden and Brookhaven,
supra, and as the Authority had noted are followed in U.S. Naval
Station, supra, as to a 1978 grievance. I do not agree with
Respondent's conclusion.
It is unquestionably true that the A and B system, more fully set
forth in Paragraph 13.2 of the Local Agreement, because it rendered
one-half of the employees unavailable for assignment of weekend overtime
work, except for volunteers, was " . . . so directly and integrally
related to the numbers, types, and grades of employees assigned thereto
as to be determinative of such numbers, types and grades and therefore
is negotiable at the election of the agency." American Federation of
Government Employees, Local 3669, AFL-CIO and Veterans Administration
Medical Center, Minneapolis, Minnesota, 2 FLRA 640 (1980). If the Union
were seeking to establish the A and B system as a new condition of
employment it would be negotiable, pursuant to Sec. 6(b)(1) of the
Statute, only at the election of Respondent and, as the Authority noted
in its Medical Center decision, supra, Congressman Ford stated,
" . . . not only are they (agencies) under no obligation to
bargain, but in fact they can start bargaining and change their
minds and decide they do not want to talk about it any more, and
pull it off the table . . . ." (Legislative History, p. 949, 2
FLRA at 643, n.4).
But we are not dealing with a new condition of employment. To the
contrary, the condition of employment in question, scheduling of weekend
overtime, had, albeit a permissive subject of bargaining, been
established by collective bargaining in 1971; re-negotiated in 1976;
and had remained in continuous effect until unilaterally discontinued by
Respondent on October 31, 1981. As an established condition of
employment, Respondent could not unilaterally alter the condition of
employment. Pennsylvania Army and Air National Guard, 1 FLRA 310
(1979); U.S. Nuclear Regulatory Commission, supra; Department of the
Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2 (1981).
Although the Authority in U.S. Naval Station, Mayport, Florida, supra,
followed the Counsel's decision that, ". . . upon the expiration of a
negotiated agreement (management) retains the right to unilaterally
change provisions contained therein relating to 'permissive' subjects of
bargaining . . . .", 6 FLRA at 136, the Authority made it clear that it
did so because, " . . . the law applicable to this case is that which
existed at the time of the Activity's actions in 1978." (6 FLRA at 136,
n. 3). By its decisions in Department of the Air Force, Scott Air Force
Base, Illinois, supra, and in U.S. Nuclear Regulatory Commission, supra,
the Authority, as to the Statute, has adopted a broader rule, namely
that, as stated in U.S. Nuclear Regulatory Commission, supra;
" . . . The stability of the new bargaining relationship is
enhanced by a required maintenance of existing personnel policies
and practices, and matters affecting working conditions pending
the negotiation of a new agreement." (6 FLRA at 20)
Indeed, the Authority's decision in Pennsylvania Army and Air National
Guard, supra, as to the duty to bargain prior to changing an established
condition of employment under the Executive Order, was to like effect.
See, also, Department of the Navy, Naval Underwater Systems Center,
Newport Naval Base, 3 FLRA 412 (1980); Internal Revenue Service and
Brookhaven Service Center, IRS, 4 FLRA No. 30 (1980); Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No.
48 (1981); Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73,
9 FLRA 648 (1982).
However, even if the Ogden-Brookhaven-U.S. Naval Station rule
concerning "permissive subjects of bargaining" applied generally under
the Statute, "upon the expiration of a negotiated agreement", it would,
nevertheless, have no application here for the reason that if the Local
Agreement had "expired" because it was superseded by the National
(Master) Agreement, certainly the National (Master) Agreement had not
expired, as it was approved September 21, 1979, and was for a term of
three years from the date of approval (G.C. Exh. 2, Art. 35), and the
National (Master) Agreement, as more fully set forth above, expressly
provided that, "Existing policies and practices regarding . . . overtime
will be continued at each office until changes are established at the
Field Office level through . . . negotiation as provided in the Articles
of this Agreement covering local agreements" (G.C. Exh. 2, Art. 18) and
further that, " . . . the Parties . . . agree that the only subjects
that may be appropriate for negotiation at the local level are . . . (2)
scheduling of overtime (3) local changes in personnel policies and
practices and other matters affecting conditions of employment". (G.C.
Exh. 2, Art. 31, Sec. 3). Accordingly, pursuant to the terms of the
National (Master) Agreement, the condition of employment concerning the
scheduling of weekend overtime continued in effect until changed at the
Field Office level through negotiations, which were provided for, at the
local level, by the National (Master) Agreement. Respondent was not
free to change conditions of employment which were embodied in its
collective bargaining agreement, for, as stated by the Authority, in
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2 (1981),
" . . . 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 . . . an opportunity to
negotiate . . . ."
See, also, United States Department of Labor, 7 FLRA No. 107, 7 FLRA
688 (1982), where Judge Sternburg, whose decision was adopted by the
Authority, well stated that,
" . . . To hold otherwise would destroy not only the integrity
of the agreement but disrupt the labor harmony that the agreement
was designated to foster." (7 FLRA at 696).
Respondent violated Sec. 16(a)(5) of the Statute by unilaterally
changing the established condition of employment concerning the
scheduling of weekend overtime and further violated Sec. 16(a)(5) of the
Statute by refusing to negotiate with the Union, upon request,
concerning such change of a condition of employment. Such conduct also
constitutes a derivative violation of Sec. 16(a)(1) in that it
interfered with, restrained, or coerced employees in the exercise of
their rights assured by the Statute.
As the National (Master) Agreement expressly provided: (a) that
existing policies and practices regarding overtime would be continued at
each office until changed through negotiation; (b) that the parties
agreed that scheduling of overtime was an appropriate subject for
negotiation at the local level; and (c) that local agreements may be
negotiated at the Field Office level, Respondent clearly and patently
breached the Agreement by its unilateral suspension of the provisions of
Articles 18 and 31 thereof and thereby, also, violated Secs. 16(a)(5)
and (1) of the Statute. Veterans Administration Hospital, Danville,
Illinois, 4 FLRA No. 59 (1980); U.S. Department of Labor, Occupational
Safety and Health Administration, Chicago, Illinois, Case No. 5-CA-978,
OALJ 82-126 (August 31, 1982).
Presumably, Respondent, by its assertion that,
" . . . The Union has never appealed the Agency contention that
the A and B team concept was non-negotiable . . . ." (Respondent's
Brief p. 2).
contends that the Union should have filed a negotiability appeal rather
than an unfair labor practice charge. When an agency changes an
established condition of employment and refuses to bargain on the ground
that the matter is not negotiable, it acts at its peril that it is right
and its refusal to bargain may, at the option of the labor organization,
be resolved through the unfair labor practice procedures. Utilization
of the negotiability appeal procedure is mandatory only in those cases
which "do not involve actual or contemplated changes in conditions of
employment" 22 C.F.R. 2424.5. See, Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland and
American Federation of Government Employees, AFL-CIO, Case No.
9-CA-20054 (OALJ 83-2, October 6, 1982). Not only would a negotiability
appeal provide an incomplete and inadequate remedy where an agency has
already changed a condition of employment, but where, as here, there was
an unilateral change coupled with a refusal to bargain resolution of
which involve both factual and legal issues, a negotiability appeal
would have been inappropriate. See, for example, National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service,
Washington, D.C., 3 FLRA 329 (1980); American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 6 FLRA No. 15, 6 FLRA 44 (1981).
3. Respondent contractually elected to negotiate.
Other considerations aside, Respondent by Articles 18 and 31 of the
National (Master) Agreement contractually elected to negotiate any
change regarding overtime. Negotiation "at the election of the agency",
as provided in Sec. 6(b)(1) of the Statute, may be made by a collective
bargaining agreement and here the National (Master) Agreement expressly
provided that existing policies and practices regarding overtime would
be continued until changes are established at the Field Office level;
and recited that the parties agreed that scheduling of overtime and
local changes in personnel policies and practices and other matters
affecting conditions of employment were appropriate subjects for
bargaining at the local level. Accordingly, Respondent by its
contractual agreement "elected", i.e., agreed, to negotiate any such
change. Because it was bound by its contractual agreement to negotiate,
Respondent was not free to assert that its proposed change of the
established condition of employment concerning the scheduling of weekend
overtime was negotiable only at its election and by its refusal to
negotiate Respondent violated Secs. 16(a)(5) and (1) of the Statute.
Having found that Respondent violated Secs. 16(a)(5) and (1) of the
Statute by its refusal to bargain on its decision to change an
established condition of employment and by its unilateral implementation
of such change, it is recommended that the Authority adopt the
following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
the United States Department of Agriculture, Federal Grain Inspection
Service, Destrehan and Belle Chasse, Louisiana, shall:
1. Cease and desist from:
a) Changing the method of scheduling weekend overtime of
employees represented exclusively by American Federation of
Government Employees, AFL-CIO, Local 3157 (hereinafter referred to
as Local 3157& at its Destrehan and Belle Chasse, Louisiana, Field
Offices without affording Local 3157 the opportunity to negotiate
thereon.
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 effectuate the
purposes and policies of the Statute:
a) Forthwith, rescind the "New Method of Scheduling Weekend
Overtime", which Respondent unilaterally implemented on October
31, 1981, at its Destrehan and Belle Chasse, Louisiana, Field
Offices
b) Forthwith, reinstate at its Destrehan and Belle Chasse,
Louisiana, Field Offices the A and B system for the assignment of
weekend overtime as more fully set forth in Section 13.2 of Local
3157's 1976 Local Agreement, and maintain such A and B system
until changed in accordance with law.
c) Notify Local 3157 of any intended change in the method of
assignment of weekend overtime, and, upon request, meet and
negotiate in good faith thereon.
d) Post at its facilities at its Destrehan and Belle Chasse
Field Offices 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 Regional Director, Federal
Grain Inspection Service, for the region embrasing the Destrehan
and Belle Chasse Field Offices, 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 of the Destrehan and Belle Chasse Field Offices are
customarily posted. The Regional Director shall take reasonable
steps to insure that such notices are not altered, defaced, or
covered by any other material.
e) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director, Region 6, Federal Labor
Relations Authority, P.O. Box 2640, Dallas, Texas 75221, in
writing, within 30 days from the date of this order as to what
steps have been taken to comply herewith.
\
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 11, 1983
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 CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT change the method of scheduling overtime of employees
represented exclusively by American Federation of Government Employees,
AFL-CIO, Local 3157 (hereinafter "Local 3157"), at our Destrehan and
Belle Chasse, Louisiana, Field Offices without affording Local 3157 the
opportunity to negotiate thereon.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL forthwith rescind, with respect to our Destrehan and Belle
Chassee Field Offices, the "New Method of Scheduling Weekend Overtime"
which we unilaterally implemented on October 31, 1981.
WE WILL forthwith reinstate at our Destrehan and Belle Chasse Field
Offices the A and B system for the assignment of weekend overtime as
more fully set forth in Section 13.2 of Local 3157's 1976 Local
Agreement and we will maintain such A and B system until changed in
accordance with law.
WE WILL notify Local 3157 of any intended change in the method of
assignment of weekend overtime and we will, upon request, meet and
negotiate in good faith with Local 3157 thereon.
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, Region 6, whose
address is: Federal Labor Relations Authority, Region VI, P.O. Box
2640, Dallas, Texas 75221, and whose telephone number is: (214)
767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty . . . .
/2/ Section 7106(a) of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
* * * *
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
/3/ American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Service Locals and Department of
Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Union Proposals 2
and 3); International Organization of Masters, Mates, and Pilots and
Panama Canal Commission, 11 FLRA 115 (1983) (Provision 6); American
Federation of Government Employees, AFL-CIO, National Joint Council of
Food Inspection Locals and Department of Agriculture, Food Safety and
Quality Service, Washington, D.C., 9 FLRA 663 (1982) (Union Proposal 1).
American Federation of Government Employees, Local 3669, AFL-CIO and
Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA
640 (1980), relied upon by the Judge, is distinguishable. That case
involved a proposal concerned only with the scheduling of regular days
off in the context of regular tours of duty of medical personnel in a
round-the-clock hospital setting. It did not involve any circumstances
relating to employees refusing to perform work in an overtime status
when needed to meet exigencies.
/4/ As noted above, the Respondent offered to bargain about the
impact and implementation of its decision, and the complaint alleges
only a refusal to bargain about the decision itself.
/5/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(1) will be referred to simply
as "Sec. 16(a)(1)".
/6/ The Complaint alleges a violation only as to Belle Chasse and
Destrehan. Consequently, no opinion is expressed concerning Lutcher,
i.e., although a new local agreement was negotiated for the Lutcher
Field Office (G.C. Exh. 11), Respondent may, or may not, have bargained
concerning discontinuance of the A and B system at Lutcher. At least it
bargained as to the impact and implementation of the present system of
the assignment of weekend overtime at Lutcher. However, the record is
clear that, despite minor modifications of its Division system at Belle
Chasse and at Destrehan, Respondent has never bargained concerning the
discontinuance of the A and B system at either Belle Chasse or at
Destrehan.
/7/ I am aware that Article 18 of the National (Master) Agreement
uses the terms "consultation or negotiation"; however, Article 31
expressly provides for negotiation. Consequently, the obligation under
the National (Master) Agreement was to negotiate. Department of Health,
Education and Welfare, Social Security Administration, Great Lakes
Program Service Center, Chicago, Illinois, 2 FLRA 559 (1980);
Department of Health, Education and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, A/SLMR No.
1101, 8 A/SLMR 893 (1978). Mr. Struck's offer to " . . . listen to any
comments or any proposals" (Tr. 40) in view of his conceded refusal to
bargain (Tr. 40) did not, of course, meet Respondent's duty to bargain.
Great Lakes Program Center, supra.