[ v19 p3 ]
19:0003(1)CA
The decision of the Authority follows:
19 FLRA No. 1
DEPARTMENT OF TRANSPORTATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2747, AFL-CIO
Charging Party
Case No. 2-CA-20217
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent, Department of
Transportation, had engaged in the unfair labor practices alleged in the
complaint and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. Thereafter, the
Department of Transportation filed exceptions to the Judge's Decision
and an accompanying brief.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Judge concluded that the Department of Transportation violated
section 7116(a)(1) and (5) of the Statute when it prevented the Third
Coast Guard District from bargaining with the American Federation of
Government Employees, Local 2747, AFL-CIO, the exclusive representative
of a unit of employees at the Third Coast Guard District, concerning the
substance of a proposed change in paycheck and savings bond
distribution. Subsequent to the issuance of the Judge's Decision in
this case, the Authority issued its decision in Federal Employees Metal
Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval
Shipyard, Vallejo, California, 16 FLRA No. 88 (1984), petition for
review filed, No. 85-7039 (9th Cir. Jan. 22, 1985), wherein it found
that the process which an agency adopts to fulfill its payroll
obligation so as to ensure the continued, uninterrupted operation of the
agency constitutes a support operation without which the agency's
mission could not be accomplished. Thus, the Authority found that
mission-related matters which fall within the meaning of "performing
work" under section 7106(b)(1) include support functions which are
integrally related to the agency's mission. In Federal Employees Metal
Trades Council, the Authority found a proposal pertaining to the method
of paycheck distribution to concern the methods and means of performing
work, i.e., the agency's payroll function, within the meaning of section
7106(b)(1) of the Statute /1/ and thus negotiable only at the election
of the agency. /2/ Thus, in the circumstances of this case, the
Authority finds that the Department of Transportation's alleged
interference with the bargaining relationship between the Third Coast
Guard District and the Union, by preventing bargaining concerning the
change of paycheck delivery, did not constitute a violation of section
7116(a)(1) and (5) of the Statute. /3/ Similarly, the Authority finds
that there is no Agency obligation to bargain over its decision to
change the method of distributing savings bonds. In this regard, the
Authority finds that inasmuch as an agency's distribution of savings
bonds is part of the method by which the agency fulfills its payroll
obligation, as would be other things such as paycheck distribution,
accounting for leave, overtime, compensatory time and tax deductions, it
too concerns the methods and means of performing work within the meaning
of section 7106(b)(1) of the Statute and is negotiable only at the
election of the Agency. See Federal Employees Metal Trades Council,
AFL-CIO, supra. Accordingly, the Authority finds that the Respondent's
refusal to bargain concerning a change in the method of distributing
savings bonds did not constitute a violation of section 7116(a)(1) and
(5) of the Statute. Therefore, the complaint shall be dismissed in its
entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-20217 be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 11, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 2-CA-20217
-------------------- ALJ$ DECISION FOLLOWS --------------------
William J. Hufnell and
Marilyn Marton, Esq.
For the Respondent
Richard A. Gomez and
Robert D. Jensen
For the Charging Party
Alfred R. Johnson, Jr., Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq.
Upon an unfair labor practice charge filed by Local 2747, American
Federation of Government Employees, AFL-CIO (herein referred to as the
Union) on January 27, 1982, as amended on March 10, 1982 and August 30,
1982, against the Department of Transportation (herein sometimes
referred to as Respondent or DOT), the General Counsel of the Authority,
by the Regional Director for Region II, issued a Complaint and Notice of
Hearing on September 22, 1982. The Complaint alleged that Respondent
refused to negotiate with the Union on the substance of a change in the
method of delivering paychecks to employees of the Third Coast Guard
District and thereafter unilaterally implemented the change in violation
of section 7116(a)(1) and (5) of the Statute.
A hearing on the Complaint was conducted on January 11, 1983 and
September 21, 1983 at which all parties were represented and afforded
full opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. Briefs, including supplemental briefs, were
filed by Respondent and the General Counsel and have been carefully
considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact and Conclusions of Law
Background
At all times material herein the Union has been the exclusive
collective bargaining representative of various employees of the Third
Coast Guard District of the U.S. Coast Guard located in New York, New
York (the Third District herein). The U.S. Coast Guard (the Coast Guard
herein) is an organizational entity within the Department of
Transportation.
Sometime prior to January 1983 Barry Lang, Labor Relations Specialist
for the Third District, received a notice from Virgil Jackson, Civilian
Personnel Specialist with Coast Guard Headquarters in Washington, D.C.,
that the Department of Transportation was going to promulgate an order
which would end the distribution of paychecks and savings bonds at
employees' worksites. At that time the majority of the approximately
380 Third District bargaining unit employees had been receiving their
checks and bonds at the worksite for some time. Jackson suggested the
Lang inform the Union of the pending issuance. Jackson and Lang agreed
that no negotiations with any union was required since the Agency had a
meritorious "compelling need" argument. Lang based his opinion on his
recollection of a Coast Guard Commandant "instruction" which, in his
view, indicated that any DOT order should be regarded as having
compelling need attached to it.
In early January 1983 Lang contacted Union President Richard Gomez
and informed him that an order was going to be issued by DOT which would
end the distribution of employee paychecks at the worksite. Gomez
inquired as to what management's position would be if the Union
submitted a bargaining proposal that pay procedures remain "as is." Lang
replied that management would take the position that such a proposal was
nonnegotiable since it would conflict with the DOT regulation for which
a compelling need existed. Lang further informed 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. At some time subsequent
to the meeting with Lang described above, Gomez told Lang he did not
wish to bargain on the impact and implementation aspects of the matter.
On January 7, 1982 the Department of Transportation issued DOT Order
2730.3 entitled: "Distribution of Paychecks and U.S. Savings Bonds."
The Order, applicable to all civilian employees in the Department of
Transportation stated as its purpose:
"This order prescribes departmental policy for distributing
paychecks and U.S. Savings Bonds and ADVISES EMPLOYEES WHO ARE
NOT
ALREADY COMPLYING WITH PROVISIONS OF THIS ORDER THAT
CORRECTIVE
ACTION IS REQUIRED BY FEBRUARY 26, 1982."
In addition to requiring all entities of Respondent, including all
Districts of the United States Coast Guard, to discontinue the practice
of delivering employee paychecks and bonds to the employee's office or
post of duty, the Order also provided that future delivery would be
accomplished by either: (a) direct mail delivery to an address or post
office box (other than the office or post of duty) designated by the
employee in writing or; (b) to a financial institution that was
designated by the employee. The Order concluded with a paragraph
entitled "Waiver," which stated: "Requests for waivers to the
provisions of this order shall be addressed to the Office of Financial
Management, M-80."
DOT is comprised of various components such as the Coast Guard, the
Federal Aviation Administration, the Federal Highway Administration and
the Maritime Administration. At the time DOT Order 2730.3 issued, all
but around 5,000 of the approximately 60,000 employees within the DOT
organization were already in compliance with the requirements of the
Order. Thus, full compliance with DOT's Order would result in virtually
all employees under DOT's jurisdiction receiving paychecks and bonds at
non-worksite locations.
On January 22, 1982 the Coast Guard Commandant notified by teletype
all its constituent organizations, including the Third District, that
they were to comply with the requirements of DOT Order 2730.3 by
February 19, 1982. The Union received a copy of the Commandant's
teletype on January 22 and, on that same day, submitted to the Third
District Commander a written request that the parties negotiated on the
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 DOT 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 DOT Order 2730.23
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 to 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 therefore direct distribution of
paychecks and bonds at the worksite ceased. Respondent's Contentions
Recognition for representational purposes herein runs between the
Union and the Third District. Accordingly, Respondent contends that no
bargaining obligation exists between DOT, the named Respondent, and the
Union and therefore, no failure or refusal to bargain within the meaning
of the Statute can be found in these circumstances. /4/ Respondent
further contends that the proper forum to resolve this matter is through
the negotiability appeal procedure as a "compelling need" case and, in
any event, a "compelling need" exists for the issuance of DOT Order
2730.3. /5/ The Proper Respondent
In Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA No. 9
(1982), the Authority held:
" . . . under the Statute, when the obligation to negotiate is
breached by the acts and conduct of agency management, such a
breach may provide the basis for a section 7116(a)(1) and (5)
violation regardless of the location of that agency management in
the agency chain of command. In the instant case, where agency
management at the Regional level directed the immediate
implementation of a policy which altered an established condition
of employment in the Galveston District, such act was properly
found to have violated section 7116(a)(1) and (5) of the Statute."
(Footnotes omitted).
In Department of Health and Human Services, et al., the Authority
reached the conclusion cited above holding Region IV violated section
7116(a)(1) and (5), notwithstanding the fact that the union therein was
the bargaining representative for Galveston District employees and not
the parent Region IV employees. The complaint against the Galveston
District was dismissed since the Authority found their conduct in
implementing the directive was merely the ministerial action of
complying with instructions of higher agency management " . . . because
it had no choice except to do so . . . " See also Department of the
Interior Water and Power Resources Service, Grand Coulee Project, Grand
Coulee, Washington, 9 FLRA No. 46 (1982). In a subsequent case, Defense
Logistics Agency (Cameron Station Virginia), et al., 12 FLRA No. 86, 12
FLRA 412, (1983), the Authority similarly dismissed that portion of a
complaint against an activity because the record failed to establish
that the parent organization " . . . prevented the subordinate levels of
agency management from fulfilling their respective statutory obligations
. . . " (Id. at 418).
Thus it would appear from an analysis of the cases cited above that
an unfair labor practice of refusing to bargain may be established
against a parent organization where the parent organization (higher
agency management) directs a subordinate activity that has a bargaining
obligation with a union to alter an established condition of employment
and no opportunity to negotiate is afforded the union. On the other
hand, no unfair labor practice lies against a subordinate activity where
the subordinate has no choice but to comply with the instruction of
higher management or is prevented by higher management from fulfilling
its bargaining obligations.
In the case herein recognition runs between the Third District and
the Union. However, DOT is the Third District's "top" management and
its regulations are binding on the Third District. By its terms DOT
Order 2730.3 required compliance by all employees within approximately
seven weeks from the date of the Order. Indeed, recognizing its
obligation to follow the dictates of higher management in dealing with
the Union on the matter at issue, the Third District clearly took the
position that the Union's proposal on distributing employee paychecks
was not negotiable as to its substance since it conflicted with the DOT
regulation which it was required to follow. While the Order indicated
that a waiver to its provisions could be requested, no standards for
requesting a waiver were set forth in the Order. Nor was there any
indication in the Order that the waiver language was applicable to only
individual employees or the waiver could be obtained by an entire
organizational entity within the Department or whether a bargaining
obligation on the part of a subordinate activity would be an acceptable
reason for granting such a waiver. Indeed, quite obviously the Third
District did not interpret the waiver language to apply to it as an
organization because of its outstanding bargaining obligation with the
Union, as evidenced by the lack of its having made any request for a
waiver. Accordingly, in the circumstances herein I conclude that DOT
Order 2730.3 provided no discretion on the part of the Third District as
to whether the substance of the Order could be ignored, modified or
implemented. Thus, the Third District had no choice but to comply with
the requirements of the Order and thereby alter an established condition
of employment without negotiating with the Union on the matter.
Compelling Need
Respondent contends that a compelling need within the meaning of
section 7117 of the Statute existed for the Order. /6/ To support its
position Respondent elicited testimony which revealed that the Order was
promulgated at a time when its budget and resources were reduced and the
Order was seen as a means of saving money and jobs. By reducing the
work of "designated agents" in distributing paychecks, the overall
savings to the Department by using the direct mailing process was
established to have been in excess of 100,000 a year. /7/ Testimony was
adduced which indicated that direct mailing of checks improved the
security of paycheck distribution and delivery since less individuals
handled the checks. Thus, worksite distribution of checks involved
mailing the checks from Kansas City to the payroll offices and the
transfer to designated agents for distribution. An employee would
occasionally not be available to receive a paycheck and a designated
agent would sometimes not follow the "formal" procedure of returning the
check to the payroll office for safekeeping but keep the check in a desk
drawer instead of awaiting the return of the employee. However, no
specific testimony was adduced as to the frequency of such desk drawer
retention nor is there any evidence that checks were, in fact, lost or
stolen while using this procedure.
Respondent further argues that since there exists 120 bargaining
units covering over 23,000 employees under DOT's jurisdiction, if a
compelling need was not found to exist herein, Respondent could be faced
with bargaining demands and negotiations which could produce many
different paycheck distribution systems resulting in costs far exceeding
those involved in the previous distribution system.
Section 2424.11(a) of the Authority's Rules and Regulations, entitled
"Illustrative Criteria," provides:
"A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the
following illustrative criteria:
"(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government."
Respondent suggests that an examination of the illustrative criteria
contained in section 2424.11 of the Authority's Interim Regulations
(Federal Register, Vol. 44, No. 147, July 30, 1979), would be helpful in
determining compelling need herein. The relevant criteria in the
Interim Regulations provided:
"(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission of the
agency or primary national subdivision;
"(b) The rule or regulation is essential, as distinguished from
helpful or desirable, to the management of the agency or the
primary national subdivision;
. . . .
"(e) The rule or regulation establishes uniformity for all or a
substantial segment of the employees of the agency or primary
national subdivision where this is essential to the effectuation
of the public interest."
When the Final Rules and Regulations were published (Federal
Register, Vol. 45, No. 12, January 7, 1980), the Authority, in the
Part-by-Part Analysis of Comments and Changes portion of the
publication, explained certain revisions in section 2424.11 as follows:
"The Authority also has considered the illustrative criteria.
Criterion (a), namely, the rule or regulation is essential to the
accomplishment of the mission of the agency or primary national
subdivision, has been amended to cover, also, the execution of
agency functions. In addition, this criterion has been clarified
to emphasize that it must be applied consistent with the finding
and purpose of Congress stated in 5 U.S.C. 7101 that the
provisions of the Statute should be interpreted in a manner
consistent with the requirement of an effective and efficient
Government.
"As to criteria (b) and (e) of the interim rules and
regulations, they were determined to be unnecessary and therefore
this section has been amended to delete them. It was determined
that the essence of these criteria is subsumed in amended
criterion (a)."
Accordingly, Respondent takes the position that DOT Order 2730.3,
when viewed in the context of its purpose, i.e., financial savings,
improved security of paycheck delivery, and uniformity of paycheck
delivery, meets the requirements set forth in section 2424.11 of the
Regulations. Respondent contends the Order: (1) is essential to the
execution of functions of the agency in a manner which is consistent
with the requirement of an effective and efficient government; (2) is
essential to the management of the agency; and, (3) establishes
uniformity for a substantial segment of the employees of the agency
where this is essential to the effectuation of the public interest.
To support its contention Respondent relies on American Federation of
Government Employees, Local 2875, and Department of Commerce, National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service, Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA
441 (1981) wherein the Authority in finding no compelling need for an
agency regulation, stated:
"The Agency does not demonstrate that the policy reflected in
the subject regulation requiring leave charges to be made in
increments of one hour was established because operation of its
payroll and leave administration functions would be less costly if
leave was charged to employees in hourly, as opposed to
quarter-hour, increments. That is, the Agency does not show that
modification of its present payroll data system to accommodate
leave charges in quarter hour increments would preclude the Agency
from administering its payroll functions efficiently and
effectively . . . . " (Id. at 448, 449).
By citing this language Respondent seems to urge that a showing of a
less costly payroll operation would support a finding that a rule in
furtherance thereof would meet the requirement of section 2424.11 of the
Regulations since cost savings would be " . . . consistent with the
requirements of an effective and efficient government." However, in the
above quoted language, the Authority, in finding no compelling need,
merely pointed out that the modification sought by the Union would not
"preclude the Agency from administering its payroll functions
efficiently and effectively." Moreover, the Authority held that the
obligation to bargain does not require an agency to agree to a proposal.
In this latter regard the Authority further stated:
" . . . after bargaining over the Union's proposal, should the
Agency's estimate of the cost of implementing the Union's proposal
remain an obstacle to agreement, those considerations as to cost
may be presented to the Federal Service Impasses Panel in a
proceeding to resolve a negotiation impasse pursuant to section
7119 of the Statute." (Id. at 449).
An agency which raises compelling need as an affirmative defense in
an unfair labor practice proceeding is obligated to affirmatively
support that assertion. Defense Logistics Agency, (Cameron Station,
Virginia), 12 FLRA No. 86 (1983). Thus, Respondent must show that DOT
Order 2730.3 is . . . essential as distinguished from helpful or
desirable to the accomplishment of its mission. National Federation of
Federal Employees, Local 1332 and Headquarters, U.S. Army Material
Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361
(1981) at 371. Financial savings to the Agency alone is not sufficient
to demonstrate the essentiability of the Order within the meaning of
section 2424.11(a) of the Regulations. American Federation of
Government Employees, AFL-CIO, Local 2875, supra, at 220. Indeed, if
savings and security were viewed by Respondent as being essential to the
accomplishment of its mission, Respondent nevertheless has now shown why
these objectives could not be achieved through means other than
requiring all employees to use the system of direct deposit of paychecks
and bonds. Cf. American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217 (1981), at 220 and American Federation of
Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank
Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981), at 407-408.
Further, the Authority has held that an agency's desire to have a
uniform policy does not in itself demonstrate that a regulation meets
the compelling need criteria of section 2424.11(a) of the Regulations.
American Federation of Government Employees, AFL-CIO, Local 2670, et
al., 10 FLRA No. 19 (1982). Rather, an agency must demonstrate and
justify, under the Authority's criteria, an "overriding need" that the
policy reflected in the rule be uniformly applied throughout the agency.
Id. at 74. Whether other unions will seek to negotiate on this matter
is speculative at best. In any event Respondent's concern, if it should
materialize and is deemed significant, could be presented to the Federal
Service Impasses Panel for resolution. Cf. American Federation of
Government Employees, Local 2875, supra, at 449. Accordingly, I find
Respondent has not shown an "overriding need" for a uniform policy of
direct deposit of paychecks and bonds as opposed to worksite
distribution to those employees who would opt for this type of delivery.
In the circumstances herein I conclude that Respondent has 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, I conclude that the
Department of Transportation, by requiring the Third Coast Guard
District to implement DOT Order 2730.3 discontinuing the distribution of
unit employees' paychecks and bonds, a condition of employment within
the meaning of the Statute, /8/ violated section 7116(a)(1) and (5) of
the Statute and recommend the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that 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 Local 2747, American Federation of
Government Employees, 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 as applicable to
employees of the Third Coast Guard District represented by Local
2747, American Federation of Government Employees, AFL-CIO, and
reinstate the procedures and policies in effect prior to its
issuance.
(b) Notify Local 2747, American Federation of Government
Employees, 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 provide such exclusive representative an
opportunity to request negotiations with the Third Coast Guard
District, or other appropriate management representative, and
bargain in good faith on any such proposed change in an
established condition of employment.
(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 receiving such forms,
they shall be signed by the Secretary, Department of
Transportation, Washington, D.C., and shall be posted and
maintained by him for sixty consecutive days thereafter, in
conspicuous places, including bulletin boards and all other places
where notices to employees in the Office of the Secretary,
Department of Transportation, Washington, D.C., and the Third
Coast Guard District, U.S. Coast Guard, New York, New York are
customarily posted. The Secretary, Department of Transportation,
shall take reasonable steps to insure that such Notices are not
altered, defaced, or covered by other material.
(c) Notify the Regional Director, Region II, in writing, within
30 days from the date of this Order, as to what steps have been
taken to comply with this Order.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: January 16, 1984
Washington, D.C.
APPENDIX
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 Local 2747, American Federation of Government Employees,
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
Statute. WE WILL withdraw and rescind Order 2730.3 concerning the
manner of distribution of paychecks and savings bonds as applicable to
employees of the Third Coast Guard District represented by Local 2747,
American Federation of Government Employees, AFL-CIO, and reinstate the
procedures and policies in effect prior to its issuance. WE WILL notify
Local 2747, American Federation of Government Employees, 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 provide such
exclusive representative an opportunity to request negotiations with the
Third Coast Guard District, or other appropriate management
representative, and bargain in good faith on any such proposed change in
an established condition of employment.
. . . (Activity or Agency)
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 its provisions, they
may communicate directly with the Regional Director, Region II, Federal
Labor Relations Authority, whose address is: 26 Federal Plaza, Room
24-102, New York, New York 10278, and whose telephone number is: (212)
264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(b)(1) provides in pertinent part:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, . . . on the technology,
methods, and means of performing work(.)
/2/ The record does not indicate, nor does the General Counsel argue,
that the parties' collective bargaining agreement included provisions
constituting an exercise by the Respondent or the Third Coast Guard
District of the option under section 7106(b)(1) of the Statute to
negotiate with regard to pay practices.
/3/ In view of the decision herein, it is unnecessary to address the
Respondent's assertion that a compelling need exists under section 7117
of the Statute for the Agency regulation involved herein.
/4/ On February 9, 1982 the Union filed a negotiability appeal in
this matter to the Authority. DOT responded to the appeal on March 17,
contending that a compelling need within the meaning of section 7117 of
the Statute existed for the Order, supplying arguments in support
thereof. On April 28 the Union elected, pursuant to section 2424.5 of
the Rules and Regulations, to suspend action on the negotiability appeal
and proceed with the unfair labor practice charge filed on January 27,
1982, supra.
/5/ At the opening of the hearing on January 11, 1983 Respondent
moved to dismiss the Complaint based upon the above contention. I
reserved ruling on the motion. After issuance of Defense Logistics
Center, (Cameron Station, Virginia), et al., 12 FLRA No. 86 on July 29,
1983, infra, I ordered the hearing be reopened to take evidence on the
"compelling need" issue. In view of my disposition of this matter, the
motion is denied.
/6/ Section 7117(a) of the Statute provides:
"(a)(1) Subject to paragraph (2) of this subsection, the duty
to bargain in good faith shall, to the extent not inconsistent
with any Federal law or any Government-wide rule or regulation,
extend to matters which are the subject of any rule or regulation
only if the rule or regulation is not a Government-wide rule or
regulation.
"(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
"(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
/7/ There are 266 designated agents in the DOT and the distribution
of paychecks is but one of their numerous functions. While the
testimony is not clear on this point, it appears that the Third District
has one or two designated agents involved in the distribution of
paychecks. The record does not disclose what portion of this saving was
attributable to changing the paycheck distribution system at the Third
District.
/8/ Respondent does not contend that paycheck and bond distribution
is not a condition of employment.