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39 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Charging Party)

4-CA-70665

DECISION AND ORDER

March 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The Respondent filed exceptions to the Judge's decision, and the General Counsel filed an opposition to the exceptions. The Respondent also filed a motion to disregard a portion of the General Counsel's brief and two motions for leave to supplement its brief. The General Counsel filed oppositions to the motions to supplement the brief.⁽¹⁾

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by detailing certain bargaining unit employees without notifying the Union and giving it an opportunity to bargain concerning the implementation of the details and appropriate arrangements for adversely affected employees.

The Judge found that the Respondent violated the Statute as alleged because the details involved a change in conditions of employment of unit employees that was more than de minimis, and the Union did not waive its rights to notice and to bargain on the impact and implementation of the change. The Judge's recommended remedy included a return to the status quo ante.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, and his recommended order, as modified.⁽²⁾

II. Background

The Charging Party, American Federation of Government Employees (AFGE), represents certain employees of the Respondent, Marine Corps Logistics Base, Albany, Georgia, as part of a consolidated unit. AFGE Local 2317 (Local 2317) is the administrative subdivision of AFGE for purposes of representing these employees.

As more fully detailed by the Judge, a Master Labor Agreement (MLA) between AFGE and the Respondent provides for notice to the appropriate local union of changes in policy at the activity level. Various sections of the MLA pertain to details and temporary promotions and the establishment of standards for employees on extended temporary assignments. The MLA also contains a grievance procedure. ALJ Decision at 3-4.

The facts that led to the unfair labor practice complaint are not in dispute. A management official met with a Local 2317 steward and told him of plans to detail four bargaining unit employees to positions involving different duties for a period of 120 days. On the same afternoon, the official met with the four employees, told them of the details and instructed them to begin the new duties immediately. Management did not notify the president of Local 2317, who was the appropriate union official to be notified of such changes. The steward had no time to relay the information because the details began immediately after his meeting.

As a result of the details, other unit employees began doing some of the work of the detailed employees, in addition to performing their regular duties. The effect on the detailed employees themselves is set out by the Judge at pages 4-6 of his decision. In summary, "their work was less desirable after the details, it involved less skill and technical ability, and it could have adversely affected promotion potential." ALJ Decision at 7.

III. Administrative Law Judge's Decision

The Judge concluded that the details of the four employees constituted a change in conditions of employment, which obligated the Respondent to bargain about impact and implementation unless the impact of the change was de minimis or the Union waived its rights to bargain over the matter. He concluded that the change was not de minimis, and that the Union did not waive its rights either by acquiescing in prior details about which it did not have knowledge or by agreeing to certain provisions of the MLA.

The Judge examined the provisions of the MLA dealing with details, and concluded that the Union did not clearly and unmistakably waive its right to bargain about the impact and implementation of the details at issue in this case. Specifically, he reviewed Article 16 of the contract, set out on pp. 3-4 of his decision, which concerns details and temporary promotions, and by his description:

deals with some of the procedures to be followed and some general impact arrangements. But Article 16 did not on its face even attempt to deal with the impact and implementation of specific individual details nor did it attempt to deal with the local considerations, which it recognized in Article 4. Rather, it is clear Article 16 was an attempt to settle the general national considerations concerning details and temporary promotions, [and] it does not constitute a waiver of AFGE's right to bargain about the impact and implementation of individual details on the local level involving local considerations. Article 16 did not constitute a waiver of the union's right to bargain concerning all aspects of impact and implementation of details.

ALJ Decision at 8.

Regarding the remedy, the Judge said, "there being no showing that a status quo ante remedy would be unduly disruptive, I conclude such a remedy is appropriate." ALJ Decision at 9.

IV. Positions of the Parties

The Respondent argues that its duty to bargain over the impact and implementation of the details was satisfied when it negotiated the MLA containing provisions dealing with that subject. As a result, it argues that although the provisions "do not exhaust the universe of [impact and implementation] matters," Respondent's brief at 11 n.6, the fact that AFGE had an opportunity to bargain over the subject and exercised that opportunity is sufficient to privilege the Respondent's actions in detailing the employees in conformity with the requirements of the MLA. Id. at 11.

Underlying this theory, the Respondent invokes the contract doctrine of "accord and satisfaction," arguing that the contract provisions pertaining to covered matters represent concessions given by management in exchange for corresponding benefits. It further argues that to impose a duty to negotiate when management acts within the parameters of the agreement would deprive it of the benefits for which it contracted and would transform the agreement into a unilateral contract. Id. at 8 n.3.

In the alternative, the Respondent argues that, assuming arguendo the MLA did not cover the impact and implementation of details, AFGE waived its rights regarding this matter because the Preamble to the MLA states in part that it "constitute[s] a total agreement" between the parties and that it "prescribes certain rights and obligations of employees, the council and the employer, and establishes procedures that meet the special requirements and needs" of the United States Marine Corps. These provisions of the Preamble, with portions of Article 5 and Article 40,⁽³⁾ are asserted to constitute an express waiver by AFGE of bargaining rights regarding matters not covered by the MLA. Id. at 12-14.

The General Counsel argues that the Authority should adopt the findings of the Judge that the MLA did not contain complete procedures for impact and implementation arrangements, that there was no evidence of acquiescence by AFGE after prior details, and that there was no waiver by the Union of its right to engage in impact and implementation bargaining over details.

V. Analysis and Conclusions

A. The Respondent Has a Duty to Bargain Unless the Matter Is Covered by the MLA or the Union Otherwise Waived Its Right to Bargain in the Future

The decision to detail employees is a management right within the meaning of section 7106(a)(2) of the Statute. However, an agency has a duty to bargain over the procedures that it will observe in exercising its authority and appropriate arrangements for employees adversely affected by the exercise of its authority ("impact and implementation") under section 7106(b)(2) and (3) of the Statute, unless those matters are covered by the parties' negotiated agreement or the union otherwise has clearly and unmistakably waived its right to bargain about those matters. U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988) (Corps of Engineers, Kansas City District).

The Authority will consider a negotiable matter to be covered by the agreement, and therefore to be removed from the area of required bargaining, if the particular subject matter of a union's bargaining request is specifically addressed in the negotiated agreement. If the particular subject matter is not specifically addressed, we will not conclude that the subject is contained in the agreement. Corps of Engineers, Kansas City District, 31 FLRA at 1235. In that situation, we then look to see whether the union nevertheless otherwise waived its right to engage in future bargaining about that subject.

Id.

A waiver can be established by express agreement or, when the plain language of the contract is not a sufficient guide to the intention of the parties, by reliance on bargaining history. Corps of Engineers, Kansas City District, 31 FLRA at 1236. Although the mere failure to request bargaining with regard to past management actions, without more, does not extinguish the right to request bargaining when a further management action occurs, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA 664, 666 (1987), in certain circumstances a waiver also could be established by past practice. However established, a waiver of a union's statutory right must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, North East Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990).

A waiver by express agreement may be established by a "zipper clause," comprehensively foregoing bargaining on all matters not contained in the agreement, Internal Revenue Service, 29 FLRA 162, 166 (1987); Corps of Engineers, Kansas City District 31 FLRA at 1236, or by specifying a particular subject matter that is precluded from further bargaining during the term of the agreement. A waiver by bargaining history may occur when matters that were discussed during negotiations were not specifically covered in the resulting contract. See U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632 (1990). Generally, the right to bargain over a subject matter during the term of the contract will be considered waived if it was fully discussed and explored at the bargaining table. Internal Revenue Service, 29 FLRA at 167.

B. The Matter Is Not Covered by the Parties' Agreement

In Corps of Engineers, Kansas City District, 31 FLRA at 1235-36, we stated that we will determine whether a matter is covered by a collective bargaining agreement by using the standard set forth in Internal Revenue Service, 29 FLRA at 167:

The particular words of proposals offered during contract and mid-term negotiations need not be identical for a waiver to exist. On the other hand, the fact that a mid-term proposal may relate to a general subject area covered in a collective bargaining agreement will not relieve an agency of its obligation to bargain. Rather, the determinative factor is whether the particular subject matter of the proposals offered during contract and mid-term negotiations is the same.

See also, U.S. Department of Labor, Washington, D.C., 38 FLRA 1374, 1382 (1991) (U.S. Department of Labor).

Therefore, the proper approach in this case is to determine whether the MLA specifically addresses the impact and implementation of employee details, the particular subject matter of the Union's bargaining request, to determine whether the matter as to which the Union sought to bargain is contained in the parties' agreement. See U.S. Department of Labor, 38 FLRA at 1383.

The Judge found that Article 16 of the MLA,⁽⁴⁾ concerning details,

did not on its face even attempt to deal with the impact and implementation of specific individual details nor did it attempt to deal with the local considerations, which it recognized in Article 4. Rather, it is clear Article 16 was an attempt to settle the general national considerations concerning details and temporary promotions, [and] it does not constitute a waiver of AFGE's right to bargain about the impact and implementation of individual details on the local level involving local considerations.

ALJ Decision at 8. Thus, although the Judge's discussion is couched in terms of a traditional waiver analysis, it also clearly supports a conclusion that the terms of the MLA do not specifically address the particular subject matter of the Union's bargaining request and that, therefore, the matter about which the Union sought to bargain is not covered by the agreement. We agree with the Judge's conclusion and note, in this regard, that the Respondent concedes that the MLA does not cover the entire subject matter of impact and implementation bargaining over details. Respondent's brief at 11 n.6.

The Respondent argues that it satisfied its obligation to bargain over the matter when it negotiated certain provisions in the MLA that apply to employee details. It asserts that so long as it complied with these contractual requirements in implementing the details, it has not committed an unfair labor practice. Indeed, it argues that had this case arisen in the private sector regulated by the National Labor Relations Board (NLRB), it would have had no obligation to bargain under the "landmark decision" in NLRB v. Jacobs Manufacturing Co., 196 F.2d 680 (2d Cir. 1952).

We conclude that the parties' agreement on a few items arguably concerning impact and implementation of details is not sufficient to establish an intent to forgo bargaining on other impact and implementation matters, and unless established by bargaining history, no such finding can be made. Accordingly, we do not find that the issues over which the Union requested bargaining were covered by the agreement.

We disagree with the Respondent that the application of private sector case law would require the dismissal of this dispute as involving nothing more than a dispute over the interpretation and/or application of the labor agreement. Respondent's Brief at 4. In NL Industries v. NLRB, 536 F.2d 786, 790 (8th Cir. 1976), the court relied on NLRB v. Jacobs Manufacturing Co. to hold that bargaining over mandatory subjects during the term of a contract is required "unless the contract expressly dealt with the subject matter" (emphasis supplied). Applying the same view of the requirements of NLRB v. Jacobs Manufacturing Co., the NLRB, in Armour & Co., 280 NLRB 824, 827 (1986), rejected the employer's argument that the bargaining agreement was sufficiently comprehensive with respect to the general subject of severance allowances so as to relieve it of an obligation to bargain about the allocation of severance and vacation pay when it terminated operations. Rather, it adopted the conclusion of the administrative law judge that "the severance and other plant closure provisions of the agreement do not 'clearly and unmistakably' prohibit the Union's request for bargaining about the evidently virgin subject of allocation." Id. at 828.

In this case, the negotiated provisions in Article 16 concerning details deal with such procedural matters as: when employees may be detailed; how details shall be documented; when details shall result in temporary promotions; when competitive procedures must be used to fill higher-graded positions; and the status of dues deduction for detailed employees. We agree with the Judge that those provisions have no bearing on such issues as the effects of the details on an employee who was required to do dirtier or more physically demanding work, the effect of a change in supervision on a detailed employee, or the problems of employees who were competitively disadvantaged by the change of duties on detail. See ALJ Decision at 5-6.

We also find, in agreement with the Judge, that this case is unlike Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774 (1982) (Naval Amphibious Base), relied on by the Respondent to support its argument that its entire bargaining obligation regarding impact and implementation of details was met when it negotiated the agreement containing references to impact and implementation bargaining over details. As the Judge here noted, the Authority found in Naval Amphibious Base that the collective bargaining agreement had established "substantially all the procedures and arrangements in non-disciplinary adverse action." ALJ Decision at 8-9. In addition, the record in that case did not establish that management, in implementing nondisciplinary adverse actions, had established new, or changed existing, personnel policies, practices or matters affecting working conditions. 9 FLRA at 777. Here, in contrast, the MLA admittedly did not contain the whole "universe" of possible conditions that might pertain to the impact and implementation of employee details, Respondent's brief at 11 n.6, and, as found by the Judge in another context, did not "even attempt to deal with the impact and implementation of specific individual details nor did it attempt to deal with the local considerations[.]" ALJ Decision at 8.

United Mine Workers of America, District 31 v. NLRB, 879 F.2d 939 (D.C. Cir. 1989) (see note 1, above), is similarly distinguishable. There, the collective bargaining agreement fully defined the matter sought to be negotiated.

C. The Agreement Does Not Contain an Express Waiver of the Union's Right To Bargain

On consideration of the agreement we conclude that it contains no express waiver of the Union's right to bargain over this matter in the future. Clearly, the MLA does not contain a zipper clause,⁽⁵⁾ and, based on our agreement with the Judge's analysis of Article 16 above, the MLA contains no clear and unmistakable intent to waive the right to negotiate over issues involving the impact and implementation of details that are not contained in that agreement. We reiterate that we will not infer from the inclusion in an agreement of certain specific items related to the impact and implementation of an agency's decisions regarding a condition of employment that the statutory right to bargain has been waived as to all future impact and implementation matters involving that subject.

D. There Is No Waiver by Past Practice or Bargaining History

In this case, the Judge has determined that the record fails to establish knowledge by AFGE of previous management decisions to detail employees. Therefore, the fact that AFGE did not in the past seek bargaining over impact and implementation does not operate to waive that right by past practice, or acquiescence.

Further, a waiver by bargaining history is not established. The Respondent does not assert that all related matters were discussed and not included, but merely that whatever provisions the MLA contains regarding impact and implementation bargaining over details excuses its obligation to bargain further over any related matters. Thus, the record does not support a finding that the full range of issues involving the impact and implementation of decisions about details was fully discussed in negotiations over the MLA.⁽⁶⁾

VI. Conclusion

We conclude, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to notify AFGE or bargain with it concerning the impact and implementation of its decision to detail employees. Accordingly, we will order the relief recommended by the Judge.⁽⁷⁾

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, Department of the Navy, Marine Corps Logistics Base, Albany,Georgia, shall:

1. Cease and Desist from:

(a) Failing and refusing to meet and negotiate with American Federation of Government Employees, Local 2317, the agent of the exclusive representative of their employees, American Federation of Government Employees, over the procedures that it will observe in exercising its authority with regard to the detail of bargaining unit employees and concerning appropriate arrangements for employees adversely affected by such changes.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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 Federal Service Labor-Management Relations Statute:

(a) Notify American Federation of Government Employees, Local 2317, the agent of the exclusive representative of their employees, American Federation of Government Employees, of any intention to detail employees and, upon request, negotiate with such representative concerning the procedures to be observed in implementing such detail and concerning appropriate arrangements for employees adversely affected by such detail.

(b) Rescind details of employees made on May 18, 1987, with respect to those employees still on such details.

(c) Post at its facilities in Albany, Georgia, 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 Commanding Officer, Marine Corps Logistics Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all 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, Atlanta, Georgia Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to meet and negotiate with American Federation of Government Employees, Local 2317, the agent of the exclusive representative of our employees, American Federation of Government Employees, over the procedures that it will observe in exercising its authority with regard to the detail of bargaining unit employees and concerning appropriate arrangements for employees adversely affected by such changes.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL notify American Federation of Government Employees, Local 2317, the agent of the exclusive bargaining representative of our employees, of any intention to detail employees and, upon request, negotiate with such representative concerning the procedures to be observed in implementing such detail and concerning appropriate arrangements for employees adversely affected by such detail.

WE WILL rescind details of employees made on May 18, 1987 with respect to those employees still on such details.

________________________
(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 any of its provisions, they may communicate directly with the Regional Director, Atlanta, Georgia Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E., Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)

 1. In its motions to supplement its brief, the Respondent seeks to add a decision of the National Labor Relations Board that issued after it filed its brief, Island Creek Coal Company, 289 NLRB No. 121, 129 LRRM 1244 (1988), and the decision of the Court of Appeals for the District of Columbia Circuit enforcing that decision, United Mine Workers of America, District 31 v. NLRB, 879 F.2d 939 (D.C. Cir. 1989). It is the obligation of parties to inform the Authority of cases that may be pertinent to a pending case. The Authority can then determine their pertinence, and, if necessary, request supplemental statements from the parties. In this case, the Authority takes notice of the decisions cited by the Respondent but sees no need for further supplemental statements from the parties with regard to those decisions. Accordingly, the motions to supplement Respondent's brief are denied.

2. In his recommended order, the Judge directed that notices posted by the Respondent be signed by "a responsible official." The Authority has held that notices shall be signed by an official designated by the Authority rather than one determined by the Respondent. U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990). The Judge's recommended Order has been modified to substitute "base commander" for "a responsible official."

3. Article 5 provides, in pertinent part:

Past practices pertaining to personnel policies, practices, and working conditions in operation on the effective date of this agreement will continue if they comply with applicable law and regulations and they have not been altered or addressed by this MLA.

Joint Exh. 1.

Article 40 provides, in pertinent part:

Section 1 This agreement shall become effective 120 days following the date on which it is approved by the Department of the Navy and shall remain in effect for a period of three years. Thereafter, this agreement shall remain in effect from year-to-year unless either party shall notify the other in writing not more than 120 days nor less than 45 days before the expiration date of the agreement of its desire to terminate or renegotiate this agreement.

* * * *

Section 3 If portions of this agreement are found to be unworkable, this agreement may be opened for modification provided that any such request is submitted in writing, along with the new language being proposed, and both the employer and the council consent to opening the agreement for the purpose requested. A written notice of desire to modify the (footnote continued on next page.) agreement during the term of the agreement will not have the effect of terminating or modifying the agreement.

4. Article 16 of the MLA is set out on pp. 3-4 at n.1 of the ALJ Decision.

5. Insofar as the Agency relies on language in the Preamble to the MLA stating that the MLA "constitutes (together with any amendments that the parties might later agree upon) the total agreement between the [parties]," Respondent's brief at 13, we agree with the NLRB that "[s]uch a provision does (footnote continued on next page.) not affect the statutory duty to bargain." Armour & Co., 280 NLRB at 828 n.12. Similarly, we find nothing in either Article 5 or Article 40 of the MLA that limits the parties' statutory bargaining obligations.

6. We grant the Respondent's motion to disregard a portion of the General Counsel's brief that appears to characterize the Respondent's agreement to enter into a stipulation regarding proffered testimony as a stipulation regarding the issue of waiver by bargaining history.

7. In the absence of exceptions to the Judge's recommended remedy, we adopt that remedy with the modification noted in note 2, above. We note, however, that the Judge did not analyze the appropriateness of the recommended status quo ante remedy under the criteria established by the Authority in Federal Correctional Institution, 8 FLRA 604 (1982). Based on a thorough review of the record in this case, we conclude that, applying those criteria, a status quo ante remedy is warranted in the circumstances of this case.

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