20:0121(13)CA - DOD, Navy, Washington, DC and NAGE Locals R4-97, R4-103, R4-1 and R4-96 -- 1985 FLRAdec CA

20 FLRA No. 13

DEPARTMENT OF DEFENSE 
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 
Respondent 

and 

NATIONAL ASSOCIATION OF GOVERNMENT 
EMPLOYEES, LOCALS R4-97, R4-103, 
R4-1 and R4-96 
Charging Party

                                      Case Nos. 4-CA-30150
                                                4-CA-30151
                                                4-CA-30152

                           DECISION AND ORDER

   This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.

   Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:

   The consolidated complaint, as amended, alleges that the Respondent,
Department of Defense, Department of the Navy, violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) /1/ by failing and refusing to bargain with the
National Association of Government Employees (NAGE), Locals R4-1 and
R4-96 over a unilateral change in pay practices by applying to all newly
hired employees a policy of mailing paychecks, leave and earnings
statements to an off-station address or a bank or financial institution.
 It is also alleged that Respondent Navy, by its Naval Mine Warfare
Engineering Activity, violated section 7116(a)(1) and (5) of the Statute
by failing to give NAGE Locals R4-97 and R4-103 notice and an
independent violation of section 7116(a)(1) of the Statute by
interfering with, restraining and coercing its employees in the exercise
of their rights guaranteed by section 7102 of the Statute.

   On or about October 6, 1981, the Respondent issued SECNAV Instruction
7200.17 establishing as a specific policy that civilian pay be
distributed directly to financial institutions or by mail to the
employees for all civilian employees hired after October 1, 1982, and,
where feasible, to discontinue hand delivery of pay, leave and earnings
statements for current civilian personnel located at two of its
activities, the Naval Weapons Station (NWS) and Naval Mine Warfare
Engineering Activity (NMWEA), both located at Yorktown, Virginia.  NAGE
Locals R4-1 and R4-96 are the exclusive representatives of units of
employees at the NWS and NAGE Locals R4-97 and R-103 exclusively
represent units of employees at NMWEA.  /2/ The SECNAV Instruction did
not foreclose bargaining at any subordinate level, as it provided that
such levels should support "to the maximum extent possible within
current labor agreement and resource constraints" the discontinuance by
1 October 1982, of hand delivery of pay and leave earnings statements
for civilian employees through the use of PDQI/Direct Deposit or mail."
The new paycheck policy took effect on October 1, 1982.

   The General Counsel alleges, inter alia, that the Respondent violated
section 7116(a)(1) and (5) of the Statute when it prevented its
subordinate elements, the NWS and the NMWEA, from fulfilling their
bargaining obligation when it gave them a specific directive concerning
the change in the method of paycheck delivery.  The Respondent contends
that its directive to change the method of paycheck delivery did not
foreclose bargaining at any subordinate level because it contained the
provision, noted above, that such levels should support "to the maximum
extend possible within current labor agreement and resource constraints"
the new method of paycheck delivery.  It also takes the position that
the NWS and NMWEA cannot be found to have violated section 7116(a)(1)
and (5) of the Statute as they were not Respondents in this case.
Finally, the Respondent contends that it did not violate section
7116(a)(1) and (5) of the Statute because the acts complained of were an
exercise of management rights under section 7106(b)(1) of the Statute to
determine the methods and means of performing work.

   The Authority finds that the Respondent did not violate section
7116(a)(1) and (5) of the Statute as alleged.  The Respondent's
Instruction 7200.17 concerning the change in the method of paycheck
delivery did not unconditionally direct its subordinate levels to make
the change, but rather gave them the direction to change the policy "to
the maximum extent possible within current labor agreement . . .
constraints." Thus, as argued by the Respondent, the activities at the
level of exclusive recognition retained the authority to bargain to the
extent consistent with law and regulation.

   As to the question of whether NWS and NMWEA, those activities at the
level of exclusive recognition, fulfilled any obligation they might have
had to adhere to their negotiated agreements, since neither activity was
named as a Respondent herein, /3/ the Authority shall not address the
allegation that they violated the Statute by failing to adhere to the
parties' negotiated agreement.  /4/ The Authority finds that inasmuch as
the respondent did not prevent NWS and NMWEA from fulfilling their duty
to bargain with the Union at the level of exclusive recognition, the
consolidated complaint alleging violations of section 7116(ay(1) and (5)
of the Statute must be dismissed.  /5/ See Harry Diamond Laboratories
and Department of the Army and Department of Defense, 15 FLRA No.
43(1984).

                                  ORDER

   IT IS ORDERED that the consolidated complaint in Case Nos.
4-CA-30150, 4-CA-30151 and 4-CA-30152 be, and it hereby is, dismissed.

   Issued, Washington, D.C. September 11, 1985

                                      (s) HENRY B. FRAZIER, III
                                      Henry B. Frazier III, Acting
                                      Chairman
                                      (s) WILLIAM J. MCGINNIS, JR.
                                      William J. McGinnis, Jr., Member
                                      FEDERAL LABOR RELATIONS AUTHORITY






--------------- FOOTNOTES$ ---------------


   /1/ Section 7116(a)(1) and (5) provides:

         Section 7116.  Unfair labor practices

         (a) For the purpose of this chapter, it shall be an unfair
      labor practice for an agency--

         (1) to interfere with, restrain, or coerce any employee in the
      exercise by the employee of any right under this chapter;

                                 * * * *

         (5) to refuse to consult or negotiate in good faith with a
      labor organization as required by this chapter(.)


   /2/ NAGE Locals R4-1, R4-96, and R4-97 are parties to collective
bargaining agreements with NWS and NMWEA, respectively.


   /3/ The record reveals and the Authority has been administratively
advised that unfair labor practice charges against the NWS and NMWEA
concerning the change in the method of paycheck delivery were withdrawn
by NAGE in Case Nos. 34-CA-30021, 34-CA-30026 and 34-CA-30027.


   /4/ In view of the Authority's decision herein, it is unnecessary to
address the Respondent's assertion that a compelling need exists under
section 7117 of the Statute for the agency regulation involved herein.


   /5/ In view of this disposition, the Authority finds it unnecessary
to reach the merits of whether the subordinate levels were required to
bargain.  Cf. Federal Employees Metal Trades Council, AFL-CIO and
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California,
16 FLRA No. 88(1984), petition for review filed, No. 85-7039 (9th Cir.
Jan. 22, 1985) (wherein the Authority found a proposal pertaining to the
method of paycheck distribution to concern the methods and means of
performing work, i.e., the agency's payroll function, within the meaning
of section 7106(b)(1) of the Statute and thus negotiable only at the
election of the agency).