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23:0724(94)CA
The decision of the Authority follows:
23 FLRA No. 94
OFFICE OF PERSONNEL MANAGEMENT
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 32, AFL-CIO
Charging Party
Case No. 3-CA-50464
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, under
section 2429.1(a) of the Authority's Rules and Regulations, based on a
stipulation of facts by the parties, who have agreed that no material
issue of fact exists. Briefs for the Authority's consideration were
filed by the Respondent and by the General Counsel. The complaint
alleges that the Respondent violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute) by
unilaterally changing a past practice of permitting employees in the
Office of Personnel Management's Job Information and Testing Center
(Respondent JIC) to take their lunch break at any time between 11:30
a.m. and 1:30 p.m. and by refusing to negotiate on the decision and its
impact and implementation on unit employees. For the reasons stated
below, we find no merit to these allegations and will dismiss the
complaint in its entirety. /*/
II. The Facts
The American Federation of Government Employees, Local 32, AFL-CIO
(Union) is the exclusive representative of Respondent's professional
General Schedule and nonprofessional Wage Grade and General Schedule
employees in the Washington, D.C. metropolitan area. On June 7, 1985,
Respondent JIC held a staff meeting at which time unit employees were
reminded of JIC policy requiring that two or three employees be
available from 11:30 a.m. through 1:30 p.m. in order to answer telephone
calls. They were asked to voluntarily cover the telephones during these
hours.
The parties agree that the Respondent's policy of allowing employees
to take their one hour lunch break anytime between 11:30 a.m. through
1:30 p.m. had become an established past practice. The Respondent,
without notifying the Union, unilaterally implemented a written lunch
schedule on July 14 for JIC employees. The written lunch schedule
directed specific employees to take their one hour lunch break at either
11:30 a.m. or 12:30 p.m. and resulted in five or six employees becoming
available for the required telephone coverage. Subsequently, by letter
dated July 24, 1985, the Union requested bargaining over Respondent's
decision to change lunch breaks as well as its impact and implementtion.
The Respondent refused to negotiate over its decision to schedule lunch
breaks.
The parties' negotiated collective bargaining agreement includes an
Alternative Work Schedule Experiment agreement in which paragraphs F and
G of section III entitled "Tour of Duty" provide:
F. In making schedule adjustments to accommodate coverage and
operational requirements, the use of volunteers, or other
voluntary methods, shall be the preferred means of resolving
conflicts. If such means do not serve to provide a resolution,
other methods may be adopted which are fair and equitable to the
employees involved.
G. Management will determine in advance all coverage
requirements necessary. Such determinations shall be subject to
the grievance procedure.
III. Positions of the Parties
The Respondent argues that the adjustment in lunch schedules did not
constitute a unilateral change in an established past practice, but
rather was a reaffirmation in writing of an existing policy and long
established practice to ensure the coverage of telephones between 11:30
a.m. and 1:30 p.m. It contends the only change that occurred was that
employees could no longer adjust their lunch schedules between 11:30
a.m. and 1:30 p.m. Even assuming that there was a change in past
practice, the Respondent argues that bargaining over any adjustments in
lunch schedules was waived by the Union under the parties' negotiated
collective bargaining agreement. Additionally, the Respondent argues
that any dispute concerning differing and arguable interpretations of
the provisions in the parties' agreement should be pursued by the Union
under the parties' negotiated grievance and arbitration procedure and
not through an unfair labor practice procedure.
The General Counsel argues that the change in lunch schedules to
ensure adequate telephone coverage went beyond a reaffirmation of the
Respondent's policy. Rather, the change was a permanent assignment of
employees concerning their non-work schedule, for example, when
employees must take their lunch breaks. The General Counsel contends
that this is a unilateral change in a negotiable condition of
employment. Further, the General Counsel argues that paragraphs F and G
of section III in the negotiated agreement do not establish a clear and
unmistakable waiver by the Union of its right to negotiate over the
subject matter since those provisions are silent on the scheduling of
lunch breaks.
IV. Analysis
A. Change in Conditions of Employment
It is clear from the parties' stipulation of facts that the
Respondent changed an established past practice that allowed unit
employees to take their one hour lunch break anytime between 11:30 a.m.
through 1:30 p.m. to one that required that the lunch break be at a
fixed time, either 11:30 a.m. or 12:30 p.m. As acknowledged by the
Respondent, employees could no longer adjust their lunch hour as had
been their previous practice.
B. Waiver
In our view, by entering into agreement with Respondent on paragraphs
F and G noted above, the Union clearly and unmistakably waived its right
to bargain over the Respondent's subsequent decision to change lunch
schedules to ensure adequate telephone coverage. In so concluding, we
view the Tour of Duty contract provision as constituting agreement that
the Respondent can determine coverage requirements, which dictate the
lunch hour scheduling at issue in this case, and that the forum for the
resolution of such determiniations is the grievance procedure. By
agreeing to these provisions, the Union waived its right to prior
negotiations on such a scheduling change. See Defense Logistics Agency,
Defense General Supply Center, Richmond, Virginia, 20 FLRA No. 62
(1985).
V. Conclusion
We have considered all the facts and circumstances of this case,
including the positions of the parties, and conclude that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute, as alleged.
Accordingly, we shall dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-50464 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, Concurring:
I agree with the conclusion of my colleagues that the complaint must
be dismissed. However, I base my conclusion on a finding that, in the
circumstances, no unilateral change in conditions of employment took
place. I reach this finding as follows. It is stipulated that there
was an established practice at the Activity for employees to take their
one hour lunch break "anytime from 11:30 a.m. through 1:30 p.m. as long
as two or three employees were available for telephone coverage."
(Stipulation Section 6(b), emphasis added.) Clearly, the right of the
employees to set times of their lunch hour was not unconditional. An
employee's ability to select "anytime" during that two-hour period was
conditioned on the availability of employees for telephone coverage.
The requirement for adequate telephone coverage was a part of the
established practice.
The collective bargaining agreement provides, among other things,
that the use of volunteers, or other voluntary methods, shall be the
preferred means of resolving conflicts in making schedule adjustments
(section III, Paragraph F), and that management will determine in
advance all coverage requirements necessary, subject to the grievance
procedure. (Section III, paragraph G.) The Activity's supervisor,
between June 7 and July 15, 1985, observed no phone coverage on several
occasions between 12:30 p.m. and 1:30 p.m.; on June 14, 1985, pursuant
to the above contract provisions, employees were reminded of the need to
voluntarily check with co-workers before leaving for lunch to ensure
adequate phone coverage. (Stipulation Sections 7 and 8.) Thus,
management sought voluntary employee action to meet the coverage
requirements. On July 15, 1985, the supervisor implemented the written
lunch schedule whereby specific employees were directed to take their
one hour lunch break at either 11:30 a.m. or 12:30 p.m. in order to
insure adequate telephone coverage. (Stipulation Section 9.) Apparently
concluding that "voluntary methods" had not "serve(d) to provide" a
resolution of the problem management then made "schedule adjustments to
accommodate coverage and operational requirements."
These actions did not constitute a unilateral change in conditions of
employment. Instead, they amounted to nothing more than an attempt by
management to insure that the existing requirement for adequate
telephone coverage was met in accordance with the provisions of the
collective bargaining agreement.
If the Union believes that the Activity failed to comply with the
provisions and procedures of the collective bargaining agreement in this
instance, it may, of course, resort to the negotiated grievance
procedure. As noted, for example, section III, paragraph G subjects
determinations of coverage requirements to the grievance procedure.
Also, such issues as whether volunteers or a voluntary method of
coverage were tried, whether they were successful, and whether the other
method eventually adopted by management (i.e., the setting of hours) was
fair and equitable would all appear to be subject to the grievance
procedure.
Since I find that no violation of the Statute has been established
because there was not a unilateral change in a condition of employment,
I find it unnecessary to reach the waiver issue addressed by my
colleagues.
Issued, Washington, D.C., October 31, 1986
/s/ Henry B. Frazier, III, Member
--------------- FOOTNOTES$ ---------------
(*) Member Frazier's separate opinion is set forth, infra.