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39 FLRA No. 139

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NAVAL AVIATION DEPOT

NORFOLK, VIRGINIA

(Respondent)

and

LOCAL LODGE 39

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS

AFL-CIO

(Charging Party/Union)

34-CA-80771

DECISION AND ORDER

March 28, 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 filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent did not file a response to the exceptions.

The complaint alleged that the Respondent terminated a work shift for certain bargaining unit employees without notifying the Union and giving it the opportunity to negotiate over the impact and implementation of the change in working conditions, in violation of Section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute).

The Respondent denied violating the Statute, arguing that its reassignment of all three employees who remained on an existing shift in one shop was not a termination of the shift, as that shift remains in existence throughout the rest of its facility and bargaining unit employees continue to be employed in that shift. The parties' collective bargaining agreement contains procedures for rotation of employees on and off shifts. There is no dispute that the Respondent followed these procedures.

The Judge found that the discontinuance of the shift in only one shop did not constitute an elimination of the entire shift at the Activity, and that the employees were reassigned in accordance with the terms of the agreement. He further concluded that as the procedures for reassigning employees to other shifts are contained in the agreement, and those procedures were followed, the Respondent had no obligation to bargain on the impact and implementation of the reassignments. In the alternative, the Judge concluded that, at most, the Respondent's view was based on an "arguable interpretation of the negotiated agreement," and that dismissal of the complaint was justified on that basis. ALJ Decision at 9. Therefore, the Judge recommended that the complaint be dismissed.

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, conclusions and recommended order that the complaint be dismissed, for the following reasons.

We agree with the Judge, for the reasons he stated, that the shift was not terminated, and that the impact and implementation of the Respondent's decision to discontinue the shift in one shop is covered by provisions of the negotiated agreement dealing with the reassignment or shift rotation of employees. As the matter sought to be negotiated is contained in the agreement and there is no assertion that the procedures in the agreement were not properly followed, the Respondent had no further duty to bargain on the impact and implementation of the reassignments. Compare Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774, 777-78 (1982) with U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231, 1234-36 (1988).

For the reasons stated in Internal Revenue Service, Washington, D.C., 39 FLRA No. 137 (1991), we reject the Judge's alternative basis for dismissing the complaint. In brief, when a union asserts a statutory right to bargain on the impact and implementation of a management decision, we will not dismiss the case on the ground that the matter involves differing and arguable interpretations of the negotiated agreement.

II. Order

The complaint is dismissed.

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

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