[ v26 p256 ]
26:0256(32)CA
The decision of the Authority follows:
26 FLRA No. 32
DEPARTMENT OF TRANSPORTATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2747, AFL-CIO
Charging Party
Case No. 2-CA-20217
(19 FLRA No. 1)
DECISION AND ORDER ON REMAND
I. Introduction
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The court granted the Authority's unopposed motion and remanded the case
for further consideration in light of the decision of the Ninth Circuit
in Federal Employees Metal Trades Council v. FLRA, 778 F.2d 1429 (9th
Cir. 1985) (FEMTC). In FEMTC, the court reversed and remanded the
Authority's determinations in Federal Employees Metal Trades Council,
AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 16 FLRA 619 (1984) and American Federation of Government
Employees, Local 1533 and Department of Navy, Navy Commissary Store
Region, Oakland, and Navy Commissary Store, Alameda, California, 16 FLRA
623 (1984). In those cases, the Authority determined that proposals
concerning paycheck distribution were outside the duty to bargain
because they concerned the methods and means of performing work under
section 7106(b)(1) of the Federal Service Labor-Management Relations
Statute (the Statute).
Following the court's remand in FEMTC, we issued our Decision and
Order on Remand in Federal Employees Metal Trades Council, AFL-CIO, and
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California,
25 FLRA No. 31 (1987) (Mare Island Naval Shipyard). In Mare Island
Naval Shipyard, we reviewed and revised the Authority's previous
decision that the method of paycheck distribution concerned the methods
and means of performing the agency's work. We concluded that paycheck
delivery does not involve methods and means of performing work within
the meaning of section 7106(b)(1) of the Statute. We also concluded
that: (1) the proposals related to matters affecting working conditions
of bargaining unit employees; (2) the Agency failed to demonstrate a
compelling need for its regulations to bar negotiations on the
proposals; (3) the proposals did not interfere with the Agency's right
to determine its budget or organization; and (4) the proposals were not
directly or integrally related to the assignment of work or to
determinations as to the personnel by which the Agency's operations were
to be conducted.
Consistent with our decision in Mare Island Naval Shipyard, we
conclude in this case that the Dep,rtment of Transportation (Respondent)
committed unfair labor practices when it prevented the Third Coast Guard
District from bargaining with the American Federation of Government
Employees, Local 2747, AFL-CIO (the Union) the exclusive representative
of the unit of employees at the Third Coast Guard District, concerning
the substance of a proposed change in paycheck and savings bonds
distribution. Accordingly, we reverse the Authority's previous decision
in this case, Department of Transportation, 19 FLRA No. 1 (1985).
II. History of the Case
A. Facts
In early January 1982, Barry Lang, Labor Relations Specialist for the
Third Coast Guard District informed Union President Richard Gomez that
the Respondent was going to issue an order which would end the
distribution of employee paychecks and savings bonds at the worksite.
At that time, the majority of the unit employees had been receiving
their checks and bonds at the worksite for some time. Gomez asked Lang
what management's position would be if the Union put forth a bargaining
proposal that pay procedures remain "as is." Lang replied that
management would take the position that such a proposal would be
nonnegotiable since it would conflict with the Respondent's regulation
for which a compelling need existed. Lang further told Gomez that the
Union could appeal the determination to the Authority, but in any event,
management would be glad to entertain any proposal he had to negotiate
on the impact and implementation of the order. Gomez later told Lang
that he did not wish to bargain on the impact and implementation aspect
of this matter.
On January 7, 1982 the Respondent issued Order 2730.3 entitled
"Distribution of Paychecks and U.S. Savings Bonds." The effect of this
order was to discontinue the practice of delivering employees' paychecks
and bonds to the employees' offices. Under the order, all future checks
and bonds were to be delivered by direct mail delivery.
On January 22, 1982, the Coast Guard, as a component of the
Respondent, notified all of its constituent organizations that they were
to comply with the requirements of the Respondent's Order 2730.3 by
February 19, 1982. The Union received a copy of this message and on the
same day submitted to the Third District Commander a written request
that the parties negotiate on this matter. The Union's request also
contained its bargaining proposal that paychecks continue to be
distributed to employees at the worksite as they had been in the past.
The Union further contended that no compelling need existed for the
Respondent's action.
By memorandum to the Union dated January 25, 1982 the Third District
refused to negotiate on the Union's proposal contending that the
proposal was not negotiable "because it conflicts with Respondent's
Order 2730.3 of January 7, 1982 for which a compelling need exists." On
January 28, 1982, the Third District issued a notice to employees which
stated that the delivery of Third District paychecks at the jobsite
would cease by February 15, 1982 and by that date, all employees must
designate their home address, a post office box or a financial
institution for the receipt of paychecks. By February 16, 1982 all
employees of the Third District complied with this notice and thereafter
the direct distribution of paychecks and bonds at the worksite ceased.
B. Administrative Law Judge's Decision
The Judge found under the circumstances that the Respondent had not
met its burden of demonstrating that Order 2730.3 is essential, as
distinguished from helpful or desirable, to the execution of its
functions in a manner which is consistent with the requirement of an
effective and efficient government. Accordingly, he concluded that the
Respondent by requiring the Third Coast Guard District to implement the
Order 2730.3 discontinuing the distribution of unit employees' paychecks
and bonds, a condition of employment within the meaning of the Statute,
violated section 7116(a)(1) and (5) of the Statute. The Respondent did
not contend that the paycheck and bond distribution is not a condition
of employment.
C. The Authority's Decision in 19 FLRA No. 1
In its original decision in this case, the Authority followed the
precedent established in the original Mare Island Naval Shipyard case,
16 FLRA 619 (1984). The Authority concluded, contrary to the Judge,
that the Respondent's alleged interference with the bargaining
relationship between the Third Coast Guard District and the Union, by
preventing bargaining concerning the change of paycheck and savings bond
delivery, did not violate section 7116(a)(1) and (5) of the Statute.
The Authority found that the Respondent had no obligation to bargain
over its decision to change the method of distributing paychecks and
savings bonds because such distribution involved the method by which the
Respondent fulfilled its payroll obligations. The Authority found that
the distribution constituted a method and means of performing work
within the meaning of Section 7106(b)(1) of the Statute and was
negotiable only at the election of the Respondent. Accordingly, the
Authority found that the Respondent's refusal to bargain concerning a
change in the method of distributing paychecks and savings bonds did not
constitute a violation of section 7116(a)(1) and (5) of the Statute and
ordered that the complaint be dismissed in its entirety. In view of its
decision, the Authority found it unnecessary to address the Respondent's
assertion that a compelling need existed under section 7117 of the
Statute for the regulation involved in the case.
III. Positions of the Parties
Following the court's remand, the Union filed a supplemental
submission, which we have accepted under section 2429.26 of our
Regulations. The Union argues in agreement with the Judge that the
Respondent failed to prove that a compelling need existed for the
Respondent's Order 2730.3. The Union further contends that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
refusing to allow the Third Coast Guard District to bargain with the
Union concerning the substance of a proposed change in paycheck and
savings bond distribution.
IV. Analysis
As noted above, in the Authority's previous decision in this case,
the Authority did not address the issue of whether a compelling need
existed under section 7117 of the Statute for the Respondent's Order
2730.3 because of our application of FEMTC. However, the Authority
fully considered and addressed the issue of compelling need for
substantially similar regulations in Mare Island Naval Shipyard.
Accordingly, for the reasons stated in that decision, and in agreement
with the Judge in the instant case, we find that the Respondent's
contention that there was a compelling need for its Order 2730.3, under
section 2424.11(a) of the Authority's Rules and Regulations, cannot be
sustained. Therefore, the Respondent's refusal to allow the Third Coast
Guard District to bargain with the Union concerning the substance of a
proposed change in paycheck and savings bond distribution, a condition
of employment within the meaning of the Statute, violated section
7116(a)(1) and (5) of the Statute.
ORDER
The Department of Transportation shall:
1. Cease and desist from:
(a) Unilaterally changing established conditions of employment at the
Third Coast Guard District of the U.S. Coast Guard concerning the manner
of distributing paychecks and savings bonds of employees represented by
American Federation of Government Employees, Local 2747, AFL-CIO, the
employees' exclusive collective bargaining representative.
(b) In any like or related manner interfering with restraining or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Withdraw and rescind Order 2730.3 concerning the manner of
distribution of paychecks and savings bonds applicable to employees of
the Third Coast Guard District represented by American Federation of
Government Employees, Local 2747, AFL-CIO, and reinstate the procedures
and policies in effect prior to its issuance.
(b) Notify American Federation of Government Employees, Local 2747,
AFL-CIO, the exclusive representative of the employees of the Third
Coast Guard District, of any intended change in the manner of
distributing bargaining unit employees' paychecks and savings bonds and
upon request negotiate with the representative to the extent consonant
with law and regulations on any change.
(c) Post at its Office of the Secretary, Department of
Transportation, Washington, D.C. facility and its Third Coast Guard
District, U.S. Coast Guard, New York, New York facility 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
Secretary, Department of Transportation, Washington, D.C., or another
official personally designated by the Secretary, and they shall be
posted for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where notices to
employees in the Office of the Secretary, Department of Transportation,
Washington, D.C., and in the Third Coast Guard District, U.S. Coast
Guard, New York, New York are customarily posted. Reasonable steps
shall be taken to ensure that notices are not altered, defaced or
covered by any other material.
(d) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
II, in writing, within 30 days from the date of this Order, what steps
have been taken to comply with this Order.
Issued, Washington, D.C., March 17, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 unilaterally change established conditions of employment
at the Third Coast Guard District of the U.S. Coast Guard concerning the
manner of distributing paychecks and savings bonds of employees
represented by American Federation of Government Employees, Local 2747,
AFL-CIO, the Employees' exclusive collective bargaining representative.
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 rescind Order 2730.3 concerning the manner of distribution of
pay checks and savings bonds as applicable to employees of the Third
Coast Guard District represented by American Federation of Government
Employees, Local 2747, AFL-CIO, and reinstate the procedures and
policies in effect prior to its issuance.
WE WILL notify American Federation of Government Employees, Local
2747, AFL-CIO, the exclusive representative of the employees of the
Third Coast Guard District, of any intended change in the manner of
distributing bargaining unit employees' paychecks and savings bonds and
will, upon request, negotiate with the representative to the extent
consonant with law and regulations on any change.
(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 this provision, they may communicate directly with Regional
Director, Region II, Federal Labor Relations Authority, whose address:
26 Federal Plaza, Room 24-102, New York, New York 10278 and whose
telephone number is: (212) 264-4934.