[ v19 p454 ]
19:0454(60)CA
The decision of the Authority follows:
19 FLRA No. 60
U.S. DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION
CHICAGO, ILLINOIS
Respondent
and
NATIONAL COUNCIL OF FIELD LABOR LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-978
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent, and an opposition thereto 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 recommended Order as modified below.
The Authority agrees with the Judge's conclusion that the Respondent
violated section 7116(a)(1) and (5) of the Statute by failing to bargain
with the Charging Party, the National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO (the Union),
concerning procedures and appropriate arrangements for employees
adversely affected by its decision to terminate the established practice
of making individual assignments of government-owned vehicles. The
Authority specifically adopts the Judge's finding that, while under the
parties' collective bargaining agreement the Union did waive certain
rights to bargain over the decision to change the manner in which
government-owned vehicles would be assigned, there was no clear and
unmistakable waiver in the specific circumstances of this case of the
Union's right to bargain over procedures and appropriate arrangements
for employees adversely affected by the termination of individual
vehicle assignments. /1/ Therefore, the Respondent's refusal to bargain
in this latter regard constituted a violation of section 7116(a)(1) and
(5) of the Statute. /2/
With respect to the remedy, the Judge ordered the Respondent to
bargain upon request "and reach agreement" concerning the impact of the
change and to make whole any employees for losses incurred as a result
of the change. In the Authority's view, an order which would compel the
parties to reach agreement is inconsistent with section 7103(a)(12) of
the Statute which provides, in pertinent part, that collective
bargaining means "the performance of the mutual obligation . . . to . .
. bargain in a good faith effort to reach agreement . . . but the
obligation . . . does not compel either party to agree to a proposal or
to make a concession(.)" Accordingly, the Judge's order shall be
modified to require the Respondent to bargain, upon request, concerning
procedures and appropriate arrangements for employees adversely affected
by the termination of individual vehicle assignments. Additionally, to
the extent that the Judge's make whole remedy could have been
interpreted to require reimbursement for certain unauthorized expenses,
the Authority also shall modify that portion of the remedy to require
reimbursement only for those transportation expenses which are
consistent with law and regulation and for which the affected employees
have not otherwise been reimbursed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Labor, Occupational Safety and Health
Administration, Chicago, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, or its designated representatives, concerning
procedures and appropriate arrangements for employees adversely affected
by the termination of individual vehicle assignments.
(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) Upon request, negotiate with the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO, or its
designated representatives, concerning procedures and appropriate
arrangements for employees adversely affected by the termination of
individual vehicle assignments.
(b) Consistent with law and regulation, make whole any employees for
losses incurred as a result of the termination of individual vehicle
assignments for which they have not otherwise been reimbursed.
(c) Post at its facilities in Chicago, Illinois, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Regional Administrator, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to employees
are customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, 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., July 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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 fail or refuse, upon request, to bargain with the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, or its designated representatives, concerning
procedures and appropriate arrangements for employees adversely affected
by the termination of individual vehicle assignments. 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, upon request, negotiate
with the National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO, or its designated representatives,
concerning procedures and appropriate arrangements for employees
adversely affected by the termination of individual vehicle assignments.
WE WILL, consistent with law and regulation, make whole any employees
for losses incurred as a result of the termination of individual vehicle
assignments for which they have not otherwise been reimbursed.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region V,
Federal Labor Relations Authority, whose address is: 175 Jackson
Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose telephone
number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-978
Sheila Cronan, Esq.
For Respondent
Frank L. Burg
For Charging Party
Sharon A. Bauer, Esq.
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R.Chapter XIV, Sec. 2410 et seq.
A charge was filed on March 11, 1981 and amended on June 17, 1981 by
National Council of Field Locals, American Federation of Government
Employees, AFL-CIO (hereinafter called the Union and/or AFGE), against
the U.S. Department of Labor, Occupational Safety and Health
Administration, Chicago, Illinois (hereinafter called Respondent and/or
OSHA). Pursuant to the above described charge and amended charge, on
June 25, 1981, the General Counsel of the FLRA, by the Acting Regional
Director for Region V issued a Complaint and Notice of Hearing alleging
that Respondent violated Sections 7116(a)(1) and (5) of the Statute by
changing a condition of employment and refusing to negotiate with the
Union over the impact and implementation of the change, which refusal
also allegedly constituted a clear breach of the collective bargaining
agreement. OSHA filed an Answer denying that it had violated the
Statute.
A hearing was conducted before the undersigned in Chicago, Illinois.
General Counsel of the FLRA, Respondent and Charging Party were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record /3/ in this matter, my observation of
the witnesses and their demeanor and from my evaluation of the evidence,
I make the following:
Findings of Fact
The Union is the exclusive collective bargaining representative for a
nation-wide unit composed of all employees stationed in the field duty
offices of the Department of Labor (DOL), with certain exclusions not
relevant to this case. Included in the above described unit are
employees of OSHA in the Chicago Region, which covers Ohio, Indiana,
Michigan, Minnesota, Illinois, and Wisconsin.
The Union is represented on the regional level by regional
representatives. At all times material herein Frank Burg was Acting
President of AFGE Local 648 and Kenneth Maglicic was President of AFGE
Local 2089 and both were designated regional representatives for the
Union.
At all times material herein the Union and Department of Labor have
been parties to a collective bargaining agreement which provides for
negotiations at the regional level between Union regional
representatives and regional representatives of Department of Labor
concerning issues having a region wide impact. Such regional
negotiations have occurred in the past and have resulted in oral and
written agreements. The Union's regional representatives are
responsible for negotiating with Respondent on issues of regional scope
and for meeting with management on a quarterly basis.
The collective bargaining agreement provides, in part:
Article 2 Sections (1), (5), and (6) provide:
GOVERNING LAWS AND REGULATIONS
Section 1-- Precedence of Laws and Regulations
In the administration of all matters covered by this Agreement,
officials and employees are governed by existing or future laws
and regulations of appropriate authorities including policies set
forth in the Federal Personnel Manual; by published
Department/Agency policies and regulations in existence at the
time this Agreement was approved; and by subsequently published
Department/Agency policies and regulations required by law or by
the regulations of appropriate authorities.
Section 5-- Management Proposals for Change During the Term of
the Agreement
(A) Management agrees to transmit to the NCFLL proposed changes
relating to personnel policies, practices, and matters affecting
working conditions of bargaining unit employees, or which impact
on them, proposed during the terms of this Agreement and not
covered by this Agreement, as far in advance as possible.
(B) Upon receipt of such a proposed change from Management, the
NCFLL may, within 15 working days, request negotiations concerning
the proposed change.
(C) Upon timely request from the NCFLL, the parties shall meet
and confer within 30 calendar days concerning any negotiable
aspects of the proposed change and/or its impact on bargaining
unit employees.
(D) Any changes of regulations or amendments to this Agreement
which are negotiated and agreed to pursuant to this Section will
be duly executed by the parties and will become an integral part
of this Agreement and subject to all of the terms and conditions
of this Agreement.
Section 6-- Past Practices
It is agreed and understood that any prior benefits and
practices and understandings which have been reduced to writing
and were mutually acceptable to the parties and which are not
specifically covered by the Agreement or in conflict with it since
the granting of exclusive recognition shall not be changed unless
mutually agreed to by the parties.
Article 17 provides:
GSA VEHICLES OR LEASED VEHICLES
Section 1-- Assignment of GSA Vehicles or Leased Vehicles
(A) Employees may be assigned GSA vehicles or leased vehicles
in accordance with GSA usage objectives which for passenger
carrying vehicles is a minimum of 3,000 miles per quarter or
12,000 miles per year.
(B) GSA or leased vehicles may be made available by the
supervisor to those employees who do not wish to drive their POV
and are required to travel on official business on a daily or
almost daily basis and/or there is no public transportation
available, or when an employee is required to carry heavy and/or
bulky equipment for the performance of his/her job.
(C) It is agreed and understood that no employee shall be
required to provide a privately owned vehicle for use on
Department business or to maintain a privately owned vehicle as a
condition of employment.
Section 2-- Use of GSA Vehicles
In accordance with GSA requirements that Government-owned or
leased vehicles be used only for official purposes, vehicles
assigned to employees on either a specific trip or regular basis
may be parked at or near the employee's residence during non-duty
hours only if the employee is required by his/her supervisor to
travel to a temporary duty post in the morning or return home at
night without first reporting to his/her duty station, and/or the
supervisor has determined that it is more advantageous to the
Government to do so. In such event the supervisor will give the
employee prior written approval to park the Government-owned or
leased vehicle at or near his/her residence during non-duty hours.
Section 3-- Unsafe Vehicles
Any GSA vehicle or leased vehicle which is reported to be
unsafe by the operator shall be returned immediately to GSA or the
leasing company (or such facility contacted for instructions) for
repair or replacement. If the vehicle cannot be repaired or
replaced, the employee will, as soon as practicable (within an
hour if possible), provide the supervisor with an estimate of the
situation and obtain appropriate instructions.
During late January or early February 1981 Ronald McCann, Chicago
Regional Administrator of OSHA gave Burg and Maglicic a copy of a draft
regional instruction concerning the assignment and use of
government-owned vehicles. McCann informed Burg and Maglicic that
because of financial and budgetary limitations, the Region would change
its policy regarding the assignment and use of government-owned vehicles
and that the regional instruction would apply to all OSHA employees in
the region. Burg asked McCann to negotiate with AFGE concerning the
adverse impact of the proposed regional instruction.
On February 5, 1981 the Union, by letter, requested a meeting to
negotiate concerning the adverse impact of the regional instruction. On
February 6, 1981 Maglicic submitted proposals regarding the proposed
regional instruction and the assignment of government-owned vehicles.
On February 9, 1981 Burg received from McCann a response to AFGE's
February 5, 1981 letter in which McCann stated he was dealing with the
Union solely for informational purposes and refused to negotiate with
the Union concerning the regional instruction.
On February 13, 1981 Maglicic, Burg, McCann, OSHA Labor Relations
Officer Richard Izzo, McCann's Special Assistant Charlie Smith, and OSHA
representative Gerald Farenga met. The Union representatives requested
again to bargain about the adverse impact of the proposed regional
instruction changing the assignment of government-owned vehicles. The
OSHA representatives refused to bargain with the AFGE representatives
about such adverse impacts.
On or about February 18, 1981, without notice to the Union, the basic
provisions of the draft instruction concerning the use of
government-owned vehicles were implemented in the Chicago Region and by
all OSHA Area Directors and remain in force and effect. At all times
material herein OSHA has refused to bargain about the adverse impact of
the alleged changes in the use of government-owned vehicles. /4/ No
written agency policy statement was issued.
Chapter 400 of the Department of Labor Regulations (DLMS-7 Chapter
400) had been in effect prior to the negotiation of the collective
bargaining agreement between DOL and the Union. DLMS-7 Chapter 400
paragraphs 411 and 434(a) provide:
411 Criteria for GSA Car Assignments. Considering direct and
indirect costs to the DOL, assignment of GSA cars to individual
drivers is advantageous only when an average of more than 1,000
miles per month of official travel can be anticipated. Cars
normally will not be assigned to employees unless this level of
utilization can be anticipated. Exceptions may be made for
drivers who use cars for official business at least daily or
almost daily, or when trips of more than 10 days are made by
drivers who do not meet the 1,000 miles-per-month official travel
requirement. Vacations or other leave do not affect this
determination nor will temporary details of work assignments
terminate eligibility for the use of a GSA vehicle unless these
exceed the period allowed or remaining on the current DL Form
1-289. Employees may be assigned a GSA car if their supervisors
certify, and provide written justification, that a compelling
official need overrides the 1,000-miles requirement, and an
overall savings to the Government is clearly indicated. DOL
Agency Administrative Officers must approve or disapprove these
exceptions for field employees. Copies of the justification for
these exceptions will accompany the request to the organization
acquiring the car (the RAMO in the field or the Division of Supply
and Property Management, Office of Administrative Services, DAPS,
OASAM, for the National Offices).
434 Identification of Vehicles. All vehicles are to be
identified in accordance with GSA regulations, except unmarked
vehicles used where identification would be contrary to the public
interest. Identification plates are furnished by the GSA.
a. Authorization for use of unmarked vehicles has been granted
for investigative, law enforcement, and compliance duties in
accordance with Federal Property Management Regulations
101-38.605. The DOL Agencies which may authorize the use of
unmarked vehicles, as justified, are:
(1) Labor-Management Services Administration.
(2) Occupational Safety and Health Administration.
(3) Employment Standards Administration.
(4) Bureau of Apprenticeship and Training, Employment and
Training Administration.
b. If unmarked vehicles for other staffs are deemed desirable,
justification statements will be submitted to the OASAM or the
appropriate RAMO for case-by-case consideration.
Compliance Officers and Industrial Hygienists are employed by OSHA in
the Chicago Region and are in the unit represented by AFGE. In the
Chicago Region, from at least 1973 until on or about February 18, 1981,
Compliance Officers and Industrial Hygienists at all grade levels were,
if requested, assigned GSA vehicles without any limitation concerning
miles driven. The employees were given the GSA car keys, credit card
and car packet by their supervisors. These employees often were
required to report first thing in the morning to field worksites in
factories, etc. and then, at the close of the day the employees returned
home. /5/ Employees used the GSA cars, without restriction, for travel
to and from their residences and field worksites and/or the Area
Offices. Compliance Officers and Industrial Hygienists utilize
extensive and heavy equipment and printed materials in performing their
duties. They were able to store the inspection equipment and printed
material in the individually assigned GSA cars, /6/ rather than store
the equipment and material at their desks and have to load and unload
the cars every day.
The policy concerning the utilization of government-owned vehicles
instituted in February 1981 resulted in a number of changes.
Government-owned cars were no longer assigned to individual employees
and the employees were required to return the cars that had been
individually assigned. The GSA cars were pooled at the OSHA Area
Offices and the Compliance Officers and Industrial Hygienists had to
request the use of a GSA car from the supervisors on a daily basis.
Such a request was required each time a GSA car was needed to conduct a
field visit. The employee was required to pick up the GSA car from the
pool at the beginning of each workday and to return it at the end of the
day. The inspection equipment and printed material had to be loaded
into each GSA car every morning and removed every evening and stored in
the office. There were substantially fewer GSA cars assigned to the
OSHA Area Offices. Compliance Officers and Industrial Hygienists using
GSA owned vehicles were no longer allowed to travel from their homes
directly to field worksites and return, but rather had to go to their
offices to obtain and then return the GSA cars on a daily basis. In
this regard such employees were encouraged to utilize privately owned
cars because the number of GSA cars was reduced and employees could go
directly from home to field worksite and visa versa, in a privately
owned car. Finally the employees were no longer able to use the GSA
cars to commute between their residences and the Area Offices.
Discussion and Conclusions
The record establishes that on or about February 18, 1981 a change
occurred. The past practice with respect to the assignment and
utilization of GSA cars by unit employees was substantially changed. It
is concluded that such a change altered, in a very fundamental way, the
manner in which employees conducted their business and therefore was a
substantial change in working conditions. It affected, or could be
reasonably foreseen to affect, how the individual employees went to the
worksites, how often and where they carried and stored the inspection
equipment and printed material, how many inspections they could conduct
and how their performance would be appraised. Absent any privilege,
Respondent would be required to notify AFGE of such an anticipated
change and, upon request, to bargain with AFGE concerning the decision,
its impact and its implementation. Cf. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980);
Department of the Treasury, Internal Revenue Service, Jacksonville
District, 3 FLRA No. 103 (1980); Internal Revenue Service and
Brookhaven Service Center, 4 FLRA No. 30 (1980); and Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 9 FLRA 73 (1982).
Respondent urges that it had no obligation to bargain because its new
or changed policy with respect to the use of GSA cars was "consistent"
with the collective bargaining agreement and Chapter 400 DLMS-7. This
contention is rejected. The mere fact that Respondent acted
consistently with certain terms of the collective bargaining agreement
and DLMS does not mean that Respondent did not change existing working
conditions. Both the collective bargaining agreement and DLMS gave OSHA
broad discretion as to the utilization and assignment of the GSA cars.
OSHA had consistently, over a 9 or 10 year period, exercised that
discretion by assigning cars to individual employees. That then became
a working condition cf. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48 (1981); Department
of the Navy, Naval Underwater System, Newport Naval Base, supra; and
Internal Revenue Service, Brookhaven Service Center, supra. The
contract and DLMS, by recognizing the supervisor's discretion in
assigning GSA cars, merely state that the Union cannot bargain over any
change in the exercise of that discretion. In neither the contract nor
DLMS has the Union stated that it gives up, or waives, its statutory
right to bargain over the impact and implementation of the subject
change. Any waiver of such a statutory right must be clear and
unmistakable Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA No. 2; Social Security Administration, Mid-America
Service Center, Kansas City, Missouri, 9 FLRA 229 (1982); and see also
Library of Congress, 9 FLRA 427 (1982). There was no such waiver, with
respect to AFGE's right to bargain over the impact and implementation of
the change in the assignment of GSA cars. Thus the contract, although
it may have waived whatever right AFGE might have had concerning the
decision to change the assignment of government-owned cars, it did not
waive the Union's right to bargain concerning the impact and
implementation of any such discretion to change the use of GSA vehicles.
Respondent urges that pursuant to the provisions of Article 2 Section
6 of the Contract, entitled "Past Practices", the practice of assigning
cars to individual employees was not a "past practice" because it was
not in writing. However, this position rests on a misinterpretation and
misapplication of the clear language of the contract and a further
erroneous assumption that because AFGE and Respondent used the term
"past practice" in the contract, that phrase has the same meaning when
used by the FLRA in interpreting the Statute. Article 2 Section 6 of
the contract merely provides that if the parties have any local or side
agreements, that are not in conflict with the National agreement, the
side and local agreements remain in full force and effect unless the
parties mutually agree to a change on modification. Article 2 Section 6
of contract does not attempt to deal with existing working conditions
that have not been reduced to writing and incorporated into a written
agreement. /7/ Such existing working conditions are not subject to
Article 2 Section 6 of the contract and accordingly are governed by the
Statute, as interpreted by the FLRA, and by Article 2 Section 5 of the
Contract. Again, as discussed above, any waiver by AFGE of its right to
be notified and to bargain about the adverse impact that would result
from changes in existing working conditions would have to be clear and
unmistakable, Department of the Air Force, Scott Air Force Base,
Illinois, supra and Social Security Administration, Mid-America Service
Center, Kansas City, Missouri, supra. There is no such waiver in the
subject situation.
In light of all of the foregoing it is concluded that Respondent
violated Sections 7116(a)(1) and (5) of the Statute by changing the
existing working conditions with respect to assignment of
government-owned vehicles and refusing to negotiate with the Union
concerning the impact /8/ and implementation of such change. Cf. U.S.
Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982);
and U.S. Department of Justice, U.S. Immigration and Naturalization
Service, 9 FLRA 253 (1982).
General Counsel of the FLRA urges additionally that OSHA's refusal to
bargain with AFGE concerning the impact and implementation of the change
in the assignment of the government-owned vehicles was such a clear and
patent of Article 2 Section 5 of the collective bargaining agreement as
to constitute a violation of Sections 7116(a)(1) and (5) of the Statute.
Article 2 Section 5 of the collective bargaining agreement provides
that Respondent must notify AFGE of any proposed changes "relating . . .
to working conditions of bargaining employees . . ." and upon request by
AFGE, meet and confer "concerning any negotiable aspects of the proposed
change and/or its impact on bargaining unit employees." Normally a mere
allegation of breach of contract is not an unfair labor practice and the
parties must resort to the procedures provided for contract
interpretation and enforcement. Cf. Iowa National Guard and National
Guard Bureau, 8 FLRA 500 (1982). However where the breach is clear and
patent and is so fundamental to the parties' basic statutory rights and
status as to undermine and make a mockery of the basic collective
bargaining relationship, the FLRA has quite properly recognized that
such a breach does rise to the level of unfair labor practice. Veterans
Administration Hospital, Danville, Illinois, 4 FLRA No. 59 (1980). It
is concluded that OSHA's refusal to bargain with AFGE concerning the
impact of such an important and far reaching change as the change in the
assignment of GSA cars was such a clear and patent breach of the
collective bargaining agreement, that, by its nature, it undermined the
basic collective bargaining relationship established by the Statute.
Accordingly OSHA's refusal to bargain, as clearly required by the
collective bargaining agreement, constituted a violation of Sections
7116(a)(1) and (5) of the Statute.
Having concluded that Respondent violated Sections 7116(a)(1) and (5)
of the Statute it is necessary to fashion a meaningful remedy that fully
corrects the violations, if the Statute is, to any degree, to achieve
its aims of protecting the rights of federal employees to engage in
meaningful collective bargaining. A status quo ante remedy would
normally appear to be the most effective means of correcting a violation
like the one found herein, providing the parties with an opportunity to
start over and proceed according to law, /9/ it is sometimes unclear
when a status quo ante order is appropriate. In the subject case,
because OSHA apparently does not have sole authority to obtain whatever
number of cars it desires from GSA /10/ I am reluctant to recommend a
status quo ante remedy. But see U.S. Department of Justice, U.S.
Immigration and Naturalization Service, supra. However, in order to
fashion a meaningful remedy that returns the parties, as nearly as
possible, to the situation they would have been in if OSHA had not
violated the Statute, I will recommend that, inter alia, OSHA must, upon
request bargain and reach agreement with the Union concerning the
adverse impact of the change in assigning GSA cars and make whole any
employee for any loss he incurred as a result of the change for the
period February 18, 1981 until the date agreement is reached.
Having found and concluded that OSHA violated Sections 7116(a)(1) and
(5) of the Statute, I recommend that the Authority issue the following:
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 United States Department of Labor,
Occupational Safety and Health Administration, Chicago, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with
American Federation of Government Employees, National Council of
Field Labor Locals, AFL-CIO the exclusive collective bargaining
representative of its employees, concerning the impact and
implementation of any change in the assignment of government-owned
vehicles to employees.
(b) In any like or related manner interfere with, restrain, or
coerce any employee in the exercise of right assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Upon request bargain and reach agreement with American
Federation of Government Employees, National Council of Field
Labor Locals, AFL-CIO concerning the impact of the change in the
assignment of government-owned vehicles to employees instituted in
February 1981 and, make whole any employee for any loss he might
have incurred because of the change in assignment of
government-owned cars for the period from February 18, 1981 until
the date agreement is reached.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receiving such forms, they shall be signed by an appropriate
official of the Respondent and shall be posted and maintained by
such official for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and all other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered,
defaced, or covered by other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, in writing,
within 30 days from the date of this Order, as to what steps are
being taken to comply herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: August 31, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO 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 fail and refuse, upon request to bargain with American
Federation of Government Employees, National Council of Field Labor
Locals, AFL-CIO the exclusive collective bargaining representative of
its employees, concerning the impact and implementation of any change in
the assignment of government-owned vehicles to employees. WE WILL NOT,
in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of rights assured by the Statute. WE WILL
upon request bargain and reach agreement with American Federation of
Government Employees, National Council of Field Labor Locals, AFL-CIO
concerning the impact of the change in the assignment of
government-owned vehicles to employees instituted in February 1981 and,
make whole any employee for any loss he might have incurred because of
the change in the assignment of government-owned vehicles for the period
from February 18, 1981 until the date of agreement is reached.
(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 its provisions, they
may communicate directly with the Regional Director of the Federal Labor
Relations Authority whose address is: 175 W. Jackson Blvd., Suite
A-1359, Chicago, IL 60604 and whose telephone number is (312) 886-3468.
--------------- FOOTNOTES$ ---------------
/1/ See, e.g., Department of the Air Force, U.S. Air Force Academy, 6
FLRA 548 (1981); and Office of Program Operations, Field Operations,
Social Security Administration, San Francisco Region, 10 FLRA 172
(1982).
/2/ In view of our conclusion, we find it unnecessary to and do not
pass upon whether the Respondent's conduct also breached the parties'
collective bargaining agreement.
/3/ The transcript of the hearing is hereby corrected as follows:
FROM TO
Page 14, line 7, "DAT" "BAT"
Page 15, line 13, "Rhea" "Rios"
Page 20, line 13, "post" "proposed"
Page 127, line 24, "1980" "1981"
/4/ A second draft on the subject of the use of government-owned
vehicles was prepared by Respondent in May 1981 and was sent to OSHA
National office for review.
/5/ Often as much as 80 percent of the employees' time was spent at
field worksites.
/6/ Many of these GSA cars were station wagons which were convenient
for using and transporting the equipment and material.
/7/ Respondent's interpretation would make Article 2 Section 5 of the
contract, which deals with changes in working conditions, totally
meaningless.
/8/ The record in the subject case establishes that the change in the
assignment of government-owned automobiles had substantial adverse
impact on the employees.
/9/ E.g. U.S. Customs Service, Region V, New Orleans, Louisiana,
supra; Department of the Air Force, Scott Air Force Base, Illinois,
supra; and Federal Correctional Institution, 8 FLRA 604 (1982).
/10/ Presumably GSA might not have cars available and might not be
able to obtain them.