WASHINGTON, D.C.
|
U.S. GEOLOGICAL SURVEY MAPPING APPLICATIONS CENTER RESTON, VIRGINIA
|
|
|
and
|
Case No. WA-CA-80139 |
Frances Corcoran White Representative for the Respondent
Thomas F. Bianco Beth I. Landes Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
The issues in this unfair labor practice case are whether the
Respondent violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute), 5 U.S.C.
§§ 7116(a)(1) and (5), by eliminating the night shift in the press
room on November 21, 1997, without completing bargaining with the
Charging Party (Union) and while negotiable proposals were still
pending.
Respondent contends that it bargained in good faith on six
separate occasions and bargaining had been completed on all
negotiable proposals when it implemented the shift change.
For the reasons explained below, I conclude that the Respondent
violated the Statute as alleged.
A hearing was held in Washington, DC, on September 17, 1998.
The Respondent and the General Counsel were represented by Counsel
and afforded full opportunity to be heard, adduce relevant
evidence, examine and cross-examine witnesses, and file
post-hearing briefs. The Respondent and the General Counsel filed
helpful briefs. Based on the entire
record(1), including my observation
of the witnesses and their demeanor, I make the following findings
of fact, conclusions of law, and recommendations.
The Parties
The National Federation of Federal Employees, Local 1309,
(NFFE/Union) is the exclusive representative of a unit of employees
appropriate for collective bargaining at the Respondent.
Proposed Change
On October 24, 1997, the Respondent notified the Union that it
intended to reduce the number of work shifts in the press room and
quality control functions of the Printing Branch (press room) to
one, by eliminating the night shift on November 24, 1997.
At the time of the notice, there were two shifts, a day shift
and a night shift. There were about 10 employees on the presses and
one in quality control on the night shift and about 10 on the
presses and 2-3 in quality control on the day shift. The day shift
hours began from between 6:30 to 8:00 a.m. for eight and one-half
hours, and the night shift hours started from between 3:00 to 3:30
p.m. for the same amount of time.
Negotiations
On October 28, 1997, the Union requested negotiations and asked
that no changes take place until the negotiations were completed.
The Union also requested information, which was provided by the
Respondent and discussed at the initial meeting on November 6. The
parties did not bargain over or reach agreement concerning ground
rules for the negotiations. On November 13, 1997, the Respondent
and the Union commenced negotiations over the procedures which the
Respondent would use in eliminating the night shift in the press
room and arrangements for employees who would be adversely
affected. The parties exchanged proposals and negotiated on five
separate occasions between November 13 and November 21, 1997. They
did not reach final agreement on any of the proposals, but came to
a tentative agreement on some of them.(2) The Union expected that it might
exchange some of the tentative proposals for agreement on other
proposals. The parties did not sign off or initial any of the
proposals to signify agreement.
At the end of the November 21 session, the Respondent advised
the Union that bargaining was completed, as it had bargained on all
negotiable proposals. Respondent stated that the remaining
proposals were not negotiable, and it would change to an one day
shift on the next workday, Monday, November 24, as previously
announced.
Later that afternoon, the Union sent each member of Respondent's negotiating team another set of bargaining proposals, discussed more fully below. Some of the proposals were in bold print. Some were not. Printed at the top of the document were the words "ITEMS WITHOUT AGREEMENT ARE IN BOLD" (G.C. Exh. No.5). All of the proposals appearing in bold had been presented by the Union previously, and had been discussed fully by the parties during their bargaining sessions. The quoted words were used to indicate the proposals on which tentative agreement had been reached in order to distinguish them from the proposals over which the parties still had major differences.
The Change
As a result of the change on November 24, 1997, the ten
employees on the night shift were switched to the day shift.
Rotation between the night and day shift had previously been
voluntary for many years. However, employees occasionally did move
from the night to the day shift at their discretion by bumping less
senior day shift employees, who, in turn, were moved to the night
shift involuntarily. Two employees had worked nights for 18 and 27
years, respectively.
Employees had a financial incentive to remain on the night
shift: they were paid a night shift differential, which was also
counted in base pay for calculation of retirement pay benefits.
This pay was lost when they were switched to days. In addition, one
employee had supplemented his income by working for employers other
than Respondent during the day.
Of the nine employees who worked on the presses on the night
shift, eight were assigned to the presses on the day shift. One was
assigned to inventory and another was made a temporary supervisor
at about this time.
Four offset press operators, previously assigned to the presses
on the day shift, were detailed to different duties in other units
of the Printing Section.
The Proposals
The parties agreed that the General Counsel's Exh. No. 5 of November 21, 1997, sets forth those proposals on which there was agreement (Respondent) or tentative agreement (Union) and those in bold represented those on which there was no agreement.
The General Counsel contends that the proposals set forth
below, submitted to the Respondent and sought to be negotiated, are
still in dispute. The General Counsel notes that the introductory
paragraph of the set of proposals states that all of the proposals
apply only to employees in the press room and not to all employees
in the Printing Branch. (G.C. Brief at 6-7). See Tr. 11-12.
Proposal 1
When making assignments on the press the Employer will
first
consider qualifications, e.g., experience/seniority
in grade, and then consider seniority in service to break
ties between two equally qualified employees. [Emphasis in
original].
The Union's Position
The Union states that it intended the first sentence to leave
with management complete discretion to establish the qualifications
applicable to assigning operators to presses and to make such
assignments, unless management decided that two operators were
equally qualified. Among equally qualified operators, the
assignment criterion Respondent would be required to use is
seniority.
The Respondent's Position
The Respondent has addressed the original proposal as a whole
and not just the above sentence offered by the General Counsel as
severable and negotiable. The Respondent contends, without further
explanation, that the proposal directly interferes with
management's statutory authority to assign work in accordance with
section 7106(a)(2)(B) of the Statute. The Respondent also claims,
without further explanation, that assignment to a particular press
is a determination of "the numbers, types, and grades of employees
or positions assigned to any organizational subdivision, work
project, or tour of duty" and is a permissive subject of bargaining
as provided for in section 7106(b)(1) of the Statute. Finally, the
Respondent states that the procedures and criteria by which press
assignments are made were not changed as a result of the
elimination of the night shift and, therefore, management's
obligation to bargain in accordance with section 7106(b)(2) and (3)
of the Statute is nonexistent. In this regard, the acting chief of
the Printing Branch, Joseph M. Miller, testified that press
assignments are made by grade level and by a determination of who
works the fastest and best on a particular press. Respondent also
tries to accommodate preferences regarding coworkers. Press
production is the bottom line in making assignments.
Proposal 3B.
If the Employer finds it necessary to start the night
shift
back up, the employer will notify the union and
negotiate with the union as appropriate.
The Union's Position
The Union offered proposal 3B so that it would be able to
bargain should Respondent reinstate the night shift and in order to
obtain some advantage, not otherwise obtained through proposal
3A(3) , for offset press operators
affected adversely by the termination of the night shift. The Union
sought to postpone the decision about what substantive terms to
seek because it preferred to make an assessment of the employees'
situation if and when the night shift actually was reinstated
rather than to guess in November 1997 as to the employees' future
needs. The Union also was particularly concerned about the
potential application of the Authority's "covered by doctrine,"
especially because of the parties' discussion of and tentative
agreement to proposal 3A.
Respondent told the Union at negotiations that bargaining over
proposal 3B was not required because proposal 3A covered all that
was necessary with respect to the possibility that the night shift
might be reinstated, and that proposal 3B did not concern the
impact of the termination of the night shift.
The Respondent's Position
The Respondent claims that the proposal is not related to the
current change in the conditions of employment resulting from
management's exercise of its right to terminate the night shift and
is outside the scope of bargaining in the immediate case. According
to the Respondent, the proposal is neither a procedure that
management will observe in exercising its authority nor an
appropriate arrangement for adversely affected employees since
there can be no adverse effect for an action not taken or proposed.
Should management decide to reinstate the night shift for these
employees, then, according to Respondent, the bargaining obligation
imposed by the Statute would apply. Moreover, management asserts
that proposal 3A (see footnote 3), which provides that employees
coming off the night shift would have priority for electing to
return to that shift, provides an appropriate arrangement for the
affected employees. Respondent also asserts that negotiation
between the parties is a matter covered by their collective
bargaining agreement. However, no testimony in this regard was
elicited, and the agreement is not in evidence.
Proposal 8
Employees can keep the AWS schedules currently in effect or
they may switch to a compressed schedule using the guidelines
attached. The parties agree that altering an employee's press
assignment may be necessary based on that employee's AWS
schedule to ensure that everyone has work. If a problem
develops with AWS/Compressed and scheduling of presses,
the employer and the union agrees to work with each other to
resolve it.
The Union's Position
The General Counsel contends that the Union's language and
interpretation are designed to establish a compressed work schedule
for all offset press operators on the day shift, on and after the
elimination of the night shift. A compressed schedule is one that
permits an employee to work less than 10 days in a pay period.
According to the General Counsel, bargaining over the subject of
compressed work schedules is mandatory, pursuant to the Federal
Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§
6120-6133, e.g., U.S. Department of the Air Force,
416 CSG, Griffiss Air Force Base, Rome, New York, 38 FLRA
1136, 1147 (1990), and there is no basis for concluding that any
portion of proposal eight, including the guidelines attached to it,
would interfere directly or excessively with any retained
management right.
The Union claims that its proposal is an appropriate
arrangement as it seeks to enable one employee in particular, and
other former night shift employees, to obtain day jobs, and thereby
minimize their lost income potential, by working less than 10 days
in a pay period and increasing to three the number of consecutive
days off an employee would have. As the elimination of the night
shift necessarily would result in some offset press operators not
performing their assigned duties, the compressed work schedule
would also provide those employees with the time during the week to
seek employment as offset press operators elsewhere. Thus, the
Union contends that the proposal is tailored to ameliorate the
effect of the termination of the night shift on adversely affected
employees.
Union chief steward Chandler admitted during her testimony that
the existing AWS plan does provide for nine or 10 hour work days
and that management separately agreed that employees could maintain
their current schedule under that plan.
The Respondent's Position
The Respondent views the proposal as an attempt on the part of
the Union to add the provisions of a compressed work schedule as an
option for all employees. The Respondent states that it is not
required to bargain over proposals that would be applied to
employees without regard to whether the group as a whole is likely
to suffer, or has suffered, effects as a consequence of management
action. Respondent claims that there is no adverse effect on any
bargaining unit employee because it proposed no restriction on the
ability of employees to schedule work under the AWS guidelines in
effect and agreed to allow employees to maintain their current AWS
schedule, e.g., nine or 10 hour days.
The Issues
There is no dispute that the Respondent proposed to terminate the night shift in the press room pursuant to management rights under section 7106(a) of the Statute, that the change had more than a de minimis impact on employees, and that the Respondent and the Union engaged in bargaining on several occasions pursuant to section 7106(b)(2) and (3) of the Statute, primarily concerning appropriate arrangements for employees adversely affected by the change.
The issue presented is whether the Respondent implemented the
proposed change prior to completing bargaining with the Union and
while a negotiable proposal was still on the table. The Authority
has held that "[w]here a union submits bargaining proposals and an
agency refuses to bargain over the proposals based on the
contention that they are nonnegotiable, the agency acts at its
peril if it then implements the proposed change in conditions of
employment. If any one of the union's proposals is held to be
negotiable, the agency will be found to have violated section
7116(a)(1) and (5) of the Statute by implementing the change
without bargaining over the negotiable proposal." U.S. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, and
Social Security Administration, Hartford District Office,
Hartford, Connecticut, 41 FLRA 1309, 1317
(1991).
No Agreement
In addition to the proposals at issue being declared
nonnegotiable by the Respondent, the parties had not reached final
agreement on any proposal. An agreement, for purposes of section
7114(b)(5) of the Statute, is one in which authorized
representatives of the parties come to a meeting of the minds on
the terms over which they have been bargaining. International Organization of Masters, Mates and Pilots and
Panama Canal Commission, 36 FLRA 555, 560 (1990). In
determining whether a party has fulfilled its bargaining
obligation, the Authority considers the totality of the
circumstances in a given case. E.g.,
Army and Air Force Exchange Service, 52
FLRA 290, 304 (1996); U.S. Department of the Air
Force Headquarters, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 36 FLRA 524, 531 (1990). In this case,
the parties had no common understanding as to what would constitute
an agreement, through ground rules or otherwise. In fact, at the
time of implementation, there was no expression of agreement given
by either party and no agreement was reached by the parties.
The Particular Proposals
In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 178 (1998), the Authority held that in cases where a union both disputes an agency's assertion that a proposal affects management's rights under section 7106(a) of the Statute, and asserts that the proposal is negotiable under section 7106(b), the Authority will first address whether the proposal affects those 7106(a) rights. If the proposal does not affect management's rights under section 7106(a), or if it constitutes a procedure or an appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3), respectively, then the Authority will direct the parties to bargain over that proposal. Id. However, if the Authority finds that the proposal affects management's rights under section 7106(a), and does not constitute a (b)(2) or (b)(3) matter, then the Authority will address whether the proposal concerns matters encompassed by section 7106(b)(1) of the Statute. Id. If the proposal concerns matters negotiable at the agency's election under section 7106(b)(1), then the Authority will dismiss the petition for review. See, e.g., American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1495 (1997).
The First Sentence of Proposal 1 is Negotiable
As set forth above, the first sentence of Proposal 1 would
require the Respondent, when making assignments on the press, to
first consider qualifications, e.g., experience/seniority in grade,
and then consider seniority in service to break ties between two
equally qualified employees. Severance of that sentence from the
rest of the proposal is practicable, and as severance has been
requested, the sentence will be analyzed separately.(4) American Federation of
Government Employees, Local 3354 and U.S. Department of Agriculture
Farm Services Agency, Kansas City Management
Office, 54 FLRA 807, 809 (1998).
The right to assign employees under section 7106(a)(2)(A) of
the Statute includes the right to determine the qualifications and
skills needed to perform the work of the position, including such
job-related individual characteristics as judgment and reliability,
and to determine whether employees meet those qualifications.
National Association of Government Employees,
Local R4-45 and U.S. Department of Defense, Defense Commissary
Agency, Central Region, Virginia Beach, Virginia, et al. 54
FLRA 218, 223 (1998).
The Union stated that it intended the first sentence of proposal 1 to provide for the use of seniority in assigning employees to printing presses under very limited circumstances. Specifically, the Union stated that the proposal was meant to leave with management the discretion to decide what qualifications would be used in assigning employees to printing presses and the discretion to select the specific employees who will be assigned to any particular press, with one exception. That exception is when Respondent determines that two or more employees are equally qualified, in which case the sole selection factor will be seniority. The Union's interpretation is consistent with the language of the sentence, and, therefore, is accepted.
It is well established that a proposal requiring the use of
seniority in making work assignments from among employees
management has determined to be equally qualified to perform the
work does not directly interfere with management's rights to assign
work. American Federation of Government Employees,
Local 1138, Council 214 and U.S. Department of the Air Force, Air
Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air
Force Base, Ohio, 51 FLRA 1725, 1730-31 (1996).
The analytical framework for determining whether a proposal
offered in response to an agency's plan to exercise a retained
right is negotiable as an appropriate arrangement was established
in National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986). First, it must be determined that the proposal constitutes
an appropriate arrangement for employees who will be adversely
affected, that is, whether the proposals seek to address,
compensate for, or prevent adverse effects produced by the exercise
of management's rights. Second, if the proposals are arrangements,
they must be appropriate in order to be negotiable. A proposal is
appropriate if it does not interfere excessively with the exercise
of a retained management right. This determination is made by
weighing the practical need of employees and managers in order to
ascertain whether the benefit to the employees flowing from the
proposal outweighs the proposal's burden on the exercise of the
management right. E.g., American Federation of
Government Employees, Local 3434 and National Aeronautics and Space
Administration, Marshall Space Flight Center, Alabama, 49
FLRA 382, 388-89 (1994).
As a general rule, a proposal must be tailored to compensate or
benefit employees who will suffer adverse consequences as a result
of management's exercise of a retained right, and may not have such
broad application that it affects all employees regardless of their
likelihood of suffering adverse consequences. The Authority has
recognized, however, that in circumstances where it is nearly
impossible to ascertain in advance which employees will actually
suffer adverse consequences, strict application of the general rule
would effectively eliminate the ability of a union to draft a
proposal that would compensate the actual sufferers. In those
circumstances, the Authority has found a proposal to be an
arrangement if it would apply to a group of employees each of whom
is in the same position with respect to the possibility of
suffering adverse consequences but none of whom can be identified
in advance as the one(s) who will actually suffer. Id.; National Treasury Employees
Union, Chapter 243 and U.S. Department of Commerce, Patent and
Trademark Office, 49 FLRA 176, 181-85, 191-94 (1994).
Contrary to the Respondent's position that no change occurred
in the procedures and criteria by which press assignments are made
as a result of the elimination of the night shift, since Respondent
lacked sufficient presses and work to accommodate all offset press
operators on one shift, some of them clearly would not be able to
be assigned to perform the duties of their position in a one-shift
operation. Accordingly, each one of the employees, those who were
to be switched to the day shift and those already working on the
day shift, faced equally the possibility of not being among those
who would continue to perform their assigned duties after the night
shift was terminated. The Union proposal is a method for
determining which of the operators among equally qualified
employees would continue to perform their assigned duties. Thus,
the proposal seeks to address, compensate for, or prevent adverse
effects produced by the exercise of management's rights and
constitutes an arrangement for employees who will be adversely
affected. It is appropriate as it provides benefits to these
employees and does not interfere excessively with the exercise of a
retained management right.
Proposal 3B is Negotiable
As set forth above, Proposal 3 provides that the Respondent
will notify the Union and negotiate with it as appropriate if the
Respondent finds it necessary to reinstate the night shift.
Contrary to the Respondent's position, I find that the proposal
does relate to the elimination of the night shift. As the General
Counsel argues, the proposal calls for bargaining if and when the
night shift is reinstated so that the Union would be in a position
to know fully the situation of the employees at that time rather
than to speculate in November 1997 about their future situation. A
union is not foreclosed from later bargaining over issues that it
could not reasonably anticipate would become relevant at the time
of a change in conditions of employment. U.S.
Patent and Trademark Office, 46 FLRA 278, 279 (l992). The
proposal would also prevent possible application of the "covered by
doctrine," see U.S.
Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 47 FLRA 1004 (1993)
(SSA, Baltimore), and thus would not
foreclose further bargaining as a result of eventual agreement on
proposal 3A. The Respondent has not identified any law, regulation,
or Government-wide rule or regulation which would bar negotiation
on this proposal or demonstrated in what manner the proposal would
interfere with any management right excessively or indirectly.
Accordingly, I find that proposal 3B is negotiable.
Proposal 8 is Not Negotiable
As set forth above, Proposal 8 would, among other things, allow
employees to keep the AWS schedules currently in effect or switch
to a compressed work schedule under certain guidelines.
Contrary to the Respondent's position that the provision would
apply to all employees, the Union has clarified the matter by
stating that the provision applies only to all offset press
operators on the day shift, on and after the elimination of the
night shift. In interpreting a proposal, the Authority looks to its
plain wording and any union statement of intent. If the union's
explanation is not inconsistent with the plain wording, the
Authority adopts that explanation for the purpose of construing
what the proposal means and, based on its meaning, deciding whether
it is, or is not, within the duty to bargain. International Federation of Professional and Technical
Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia, 54 FLRA No. 120
(1998). The clarification comports with the plain
wording of the proposal and the preamble to the proposed memorandum
of understanding and is adopted. See,e.g., National Education Association, Overseas Education
Association, Laurel Bay Teachers Association and U.S. Department of
Defense, Department of Defense Domestic Schools, Laurel Bay
Dependents Schools, Elementary and Secondary Schools, Laurel Bay,
South Carolina, 51 FLRA 733, 737 (1996).
The Respondent claims that the proposal cannot constitute an
arrangement for employees who will be adversely affected by the
exercise of management's rights because the Respondent has proposed
no restrictions on the ability of concerned employees to maintain
their current schedule or to schedule their work under the existing
AWS guidelines, which provide for nine or 10 hour days. A
compressed schedule is one that permits a full-time employee to
work an 80-hour bi-weekly basic work requirement in less than 10
days. The existing AWS plan was not made part of the record nor
were the proposed compressed schedule guidelines, but Union chief
steward Chandler did admit that the existing AWS plan provides for
nine or 10 hour work days. Since the Union's goal was to allow
employees to work less than 10 days in a pay period, the existing
plan provides the desired relief for adversely affected employees
expressed by the Union. As the matter sought to be bargained is an
aspect of matters already negotiated, the proposed compressed
schedule is covered by the existing plan in this respect.
SSA, Baltimore, 47 FLRA at 1017-19. Since
there was no management action to change this condition of
employment, there is no obligation in the immediate case to bargain
in this respect.
The Violation
In addition to the first sentence of proposal 1 and proposal 3B
being negotiable, the parties had not reached final agreement on
any proposal. Therefore, negotiable proposals were on the table,
and bargaining had not been completed at the time Respondent
implemented the proposed change. Accordingly, the Respondent
violated section 7116(a)(1) and (5) of the Statute, as alleged.
The Remedy
In addition to requesting an order requiring the Respondent to complete bargaining with the Union and post an appropriate notice, the General Counsel requests a status quo ante remedy, requiring the Respondent to reinstate the night shift, and a backpay award, requiring the Respondent to pay employees for the amount of night differential lost as a result of the termination of the night shift.
In Federal Correctional Institution, 8
FLRA 604 (1982) (FCI), the Authority set
forth criteria for determining whether status quo
ante relief would be appropriate in situations where the
bargaining obligation pertaining to a change is limited to the
impact and implementation of the decision. The Authority will
consider, among other things:
(1) whether, and when, notice was given to the union by
the agency concerning the action or change decided upon;
(2) whether, and when, the union requested bargaining on
the procedures to be observed by the agency in
implementing such action or change and/or concerning
appropriate arrangements for employees adversely affected
by such action or change; (3) the willfulness of the
agency's conduct in failing to discharge its bargaining
obligations under the Statute; (4) the nature and extent
of the impact experienced by adversely affected employees;
and (5) whether,and to what degree, a status quo ante
remedy would disrupt or impair the efficiency and
effectiveness of the agency's operations.Id. at 606.
The criteria set forth in FCI are not
all-inclusive, rather, on a case-by-case basis, the Authority may
rely on "other things" in determining the appropriateness of a
status quo ante remedy. Id.
The uncontroverted evidence in this case establishes that many of the FCI factors are met. The Union received notice from the Respondent by letter dated October 24, 1997. The Union then requested bargaining by letter on October 28, 1997. The Respondent willfully declared negotiations over the change complete on November 21, 1997, and implemented the change on November 24, 1997, prior to reaching impasse or agreement with the Union. This was an arbitrary date chosen by the agency, as no evidence was presented demonstrating that it was necessary that the agency implement this change on that date. Further, negotiable proposals remained on the table at the time of implementation. The change had a significant impact on unit employees: it reduced their pay by eliminating a night shift differential; it eliminated the pay some employees received, and others could potentially receive, from day jobs with other employers; and some employees were required to perform other duties.
The General Counsel urges that a status quo
ante remedy would not disrupt or impair the efficiency and
effectiveness of the agency's operations because, since the
termination, the agency reinstated the night shift in the press
room during the period May to August 1998. However, the night shift
was originally eliminated because there was not enough work to
justify the running of the presses on two shifts. There is no
evidence that there is now enough work to justify reinstatement of
the night shift. Therefore, I conclude that a status quo ante remedy would disrupt or impair the
efficiency and effectiveness of the agency's operations and would
not be an interpretation "consistent with the requirement of an
effective and efficient Government" as required by section 7101 of
the Statute.
The Respondent having violated the Statute and, accordingly, having committed an unjustified personnel action that resulted in the reduction of earning opportunities for night differential for bargaining unit employees, a backpay award under the Back Pay Act is proper to remedy the refusal to bargain. United States Customs Service, Southwest Region, El Paso, Texas, 44 FLRA 1128, 1129-30 (1992) (A backpay award ordered where employees lost opportunities to earn overtime, night differential, and Sunday premium pay when the agency unilaterally changed shifts and tours of duty, even where a status quo ante award was deemed to be inappropriate.) The purpose of a "make whole" remedy is to place individuals who have been adversely affected by an improper action in the situation where they would have been if the improper action had not occurred. Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521 (1988).
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the U.S. Geological Survey, Mapping
Applications Center, Reston, Virginia,
shall:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate,
consonant with the obligations imposed by the Statute, with the
National Federation of Federal Employees, Local 1309, the exclusive
representative of its employees, over proposals it submitted
regarding the procedures to be observed and appropriate
arrangements for employees adversely affected by the elimination of
the night shift in the press room on November 24, 1997, including
those proposals found to be negotiable by the Authority.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their 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 Statute:
(a) Upon request of the National Federation of Federal
Employees, Local 1309, the exclusive representative of its
employees, negotiate in good faith concerning the procedures to be
observed and appropriate arrangements for employees adversely
affected by the elimination of the night shift in the press room on
November 24, 1997, including those proposals found to be negotiable
by the Authority.
(b) Consistent with law and regulation, compensate
bargaining unit employees for appropriate night differential or
other pay, allowances, and differentials which the employees would
have received if changes in the tours of duty and work shifts due
to the elimination of the night shift in the press room on November
24, 1997, had not occurred.
(c) Post at the U.S. Geological Survey, Mapping
Applications Center, Reston, Virginia, where bargaining unit
employees represented by the National Federation of Federal
Employees, Local 1309, are located, 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 Director,
U.S. Geological Survey, 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 2423.41(e) of the Authority's Rules
and Regulations, notify the Regional Director of the Washington
Regional Office, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, November 10, 1998.
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Geological Survey, Mapping Applications Center, Reston, Virginia, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT fail or refuse to meet and negotiate, consonant with the obligations imposed by the Statute, with the National Federation of Federal Employees, Local 1309, the exclusive representative of our employees, over proposals it submitted regarding the procedures to be observed and appropriate arrangements for employees adversely affected by the elimination of the night shift in the press room on November 24, 1997, including those proposals found to be negotiable by the Federal Labor Relations Authority (Authority).
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, upon request of the National Federation of Federal
Employees, Local 1309, negotiate in good faith concerning the
procedures to be observed and appropriate arrangements for
employees adversely affected by the elimination of the night shift
in the press room on November 24, 1997, including those proposals
found to be negotiable by the Authority.
WE WILL, consistent with law and regulation, compensate bargaining
unit employees for appropriate night differential or other pay,
allowances, and differentials which the employees would have
received if changes in the tours of duty and work shifts due to the
elimination of the night shift in the press room on November 24,
1997, had not occurred.
(Activity)
Date: ____________________ 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, Washington Regional Office,
Federal Labor Relations Authority, whose address is: 1255 22nd
Street, NW., Suite 400, Washington, DC 20037 and whose telephone
number is: (202) 653-8500.
1. Page 11 lines 4 and 5 of the transcript are corrected to read as follows:
extraordinary circumstances considering the
representations in the response. Respondent's
representative is not a lawyer and strict
construction of the rules
2. The acting chief of the Printing Branch, Joseph M. Miller, testified that he believed that the parties had reached agreement on all proposals except those deemed nonnegotiable. He did not explain the reason for his belief, or whether he believed that the agreement between the parties was tentative or binding. His prior experience in collective bargaining was limited to one occasion several years ago, and he could not recall how the parties manifested their agreement on that occasion. I have credited the detailed testimony in this respect of Union chief steward Lisbeth Chandler in finding that there was only tentative agreement on the proposals deemed negotiable by the Respondent.
3. Proposal 3A, as to which there was tentative agreement, provides:
The Parties agree that should the workload
increase to a level which can again support
a two-shift operation and the Employer decides
to reinstate the night shift, those employees
being moved to the day shift will have first
consideration to night shift positions for which
they volunteer and qualify.
4. I assume from this request that the Union no longer desires a negotiability determination in this forum concerning the rest of the disputed proposal.