[ v21 p484 ]
21:0484(64)CA
The decision of the Authority follows:
21 FLRA No. 64
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
WAGE AND HOUR DIVISION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2513, AFL-CIO
Charging Party
Case No. 2-CA-40354
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent 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 Respondent filed exceptions to the Judge's
Decision, and the General Counsel filed a brief opposing the
Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
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, /1/
conclusions and recommended Order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the U.S. Department of Labor, Employment Standards Administration,
Wage and Hour Division, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with the American
Federation of Government Employees, National Council of Field Labor
Locals, AFL-CIO, the exclusive collective bargaining representative of
its employees, concerning the procedures to be observed in the
interstation transfer of the employees of its former Brooklyn Wage-Hour
Office and over appropriate arrangements for any employees adversely
affected by such transfer.
(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 in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain with the American Federation of Government
Employees, National Council of Field Labor Locals, AFL-CIO, concerning
the procedures to be observed in the interstation transfer of the
employees from its Brooklyn Wage-Hour Office to its Bronx and Manhattan
Offices and concerning appropriate arrangements for employees adversely
affected by such interstation transfer.
(b) Post at its Bronx and Manhattan, New York facilities 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 Wage and Hour Administrator, or his designee, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., April 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse, upon request, to bargain with the
American Federation of Government Employees, National Council of Field
Labor Locals, AFL-CIO, the exclusive collective bargaining
representative of our employees, concerning the procedures to be
observed in the interstation transfer of the employees from our former
Brooklyn Wage-Hour Office and over appropriate arrangements for any
employees adversely affected by such transfer.
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, bargain with the American Federation of
Government Employees, National Council of Field Labor Locals, AFL-CIO,
concerning the procedures to be observed in the interstation transfer of
the employees from the Brooklyn Wage-Hour Office to the Bronx and
Manhattan Offices and concerning appropriate arrangements for employees
adversely affected by such transfer.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 2237, New York, New York 10278 and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40354
U.S. DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS
ADMINISTRATION, WAGE
AND HOUR DIVISION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2513,
AFL-CIO
Charging Party
Annabelle T. Lockhart, Esquire
For the Respondent
Peter Richardson
For the Charging Party
Lee Mingledorff, Esquire
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R. Chapter XIV, Section 2410 et seq.
Pursuant to a charge filed on May 24, 1984, by American Federation of
Government Employees, Local 2513, AFL-CIO (hereinafter called AFGE Local
2513) against U.S. Department of Labor, Employment Standards
Administration, Wage and Hour Division (hereinafter called DOL and
Respondent) the General Counsel of the FLRA by the Director of Region II
issued a Complaint and Notice of Hearing on August 31, 1984, alleging
that Respondent violated Section 7116(a)(1) and (5) of the Statute by
reassigning employees between offices without affording the National
Council of Field Labor Locals of the American Federation of Government
Employees, AFL-CIO (hereinafter called the Council) an opportunity to
bargain over the impact and implementation of the reassignment.
Respondent filed an Answer denying it had violated the Statute.
A hearing in this matter was conducted before the undersigned in New
York, New York. Respondent, AFGE Local 2513 and General Counsel of the
FLRA were represented and afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence and to argue
orally. Briefs were filed and have been fully considered. Based upon
the entire record in this matter, my observation of the witnesses and
their demeanor, and my evaluation of the evidence I make the following:
Findings of Fact
The Employment Standards Administration and its Wage and Hour
Division are constituent entities of the Department of Labor. At all
times material herein the Council has been recognized as the exclusive
collective bargaining representative for a unit of employees stationed
throughout the nation in field duty stations of the Department of Labor,
including employees in DOL's Employment Standards Administration, Wage
and Hour Division. At all times material Kathleen Becker has been
Vice-President of AFGE Local 2513 and a designated regional
representative of the Council and an agent acting on its behalf.
Bargaining History and Collective Bargaining Agreement
On August 17, 1978, the DOL and the Council signed a collective
bargaining agreement. This agreement, including the attached appendices
and memoranda of understanding is still binding on the parties. /2/
On July 18, 1977 the Council submitted its initial proposals which
included, inter alia, Section h of Article 31 which provided that where
employees were to be involuntarily transferred, the Council would be
notified and negotiations would be held with respect to the impact of
the transfer on unit employees. The Council also proposed that
supplemental agreements regarding interstation transfers could be
negotiated. The Council maintained its position with regard to the
language in Section h all through 1977. The assistance of the Federal
Mediation and Conciliation Service was requested by the Council in late
1977. Management during this period had submitted two proposals, dated
July 17, 1977 and October 19, 1977, which did not provide for such a
bargaining obligation. On December 23, 1977, management submitted a
third proposal which also did not require bargaining on the impact and
implementation of involuntary reassignments. During this period the DOL
had been adamant that it was not going to agree to bargain on impact and
implementation of reassignments. On April 21, 1978 the Council
submitted a second proposal on interstation transfer and reassignment.
This proposal accepted management's proposals in a number of areas and
in proposed Section 5 of Article 24 omitted reference to negotiations on
impact and implementation, providing only that management would notify
the Council of all proposed transfers "at least three (3) weeks in
advance." This was the first time the Council had been willing to drop
its efforts to get contractual recognition of bargaining rights in this
area. The parties' final proposal in this area was dated May 4, 1978.
It was a joint proposal and its only change from the Council's April 28,
1978 proposal is to be found in Section 5 wherein the notice period of
transfers to be furnished the Union was reduced to two weeks. The May
4, 1978 Joint Proposal is the current wording of Article 24 of the
parties' national agreement which deals with interstation transfers.
/3/
The Closing of the Brooklyn Wage-Hour Office And Interstation Transfer
of Employees
On September 2, 1984 Respondent's Local Labor Relations Officer,
Brenda Judson, notified the Council that Respondent intended to reassign
all unit employees of the Brooklyn Area Office to the Bronx and
Manhattan Area Offices. Becker, on behalf of the Council, requested
negotiations on the implementation of the move and its impact on the
affected unit employees. This request also contained a list of initial
proposals. These initial proposals sought, among other things, to
bargain regarding familiarizing employees with their new work sites;
evacuation plans; the location and use of fire extinguishers; the
methods (including seniority) by which employees would be assigned desk
and work locations at their new work site; the utilization of
partitions in the new space; parking arrangements for employees at the
new site; telephones; territorial assignments of employees; office
equipment; the ability to keep personal items; new business cards for
employees; ventilation; window drapes; desk lamps; a non-smoking
area; office availability to employees outside of normal duty hours;
keys to the restroom and office; and administrative time for moving and
relocating which would not be counted as time under the employee's
productivity standards.
On September 20, 1983, Judson wrote to Jesse Rios, the President of
the Council, stating that management would not relocate employees until
bargaining over the impact and implementation of the relocations was
completed. On September 29, 1983, Respondent, at the national level,
repudiated the local official's offer and announced that DOL had no
obligation to bargain over the impact and implementation of the
relocation and that the relocation had no material effect on bargaining
unit employees. On October 4, 1984, the Council again requested
negotiations but the Council received no response from Respondent. No
negotiations ever took place.
On January 18, 1984, the Council received notification of the
reassignments of employees and on January 23, 1984, employees received
their reassignment notifications. On February 6, 1984, the
reassignments took place as scheduled. Two employees were transferred
to the Bronx Wage and Hour Area Office and seven employees were
transferred to the Manhattan Wage and Hour Area Office.
With regard to the impact of the relocation on employees, (1) travel
time has been significantly increased both in terms of getting into the
office from home and in traveling to investigate work sites in the
boroughs of Queens, Brooklyn, and Staten Island; (2) there is increased
cost due to parking and a lack of available parking spaces; (3) because
there are now 17 compliance officers in the Manhattan Office there is
greater noise and crowding than before; and (4) there are now
proportionately fewer clerical employees providing support to compliance
officers than before the relocation. The Brooklyn office employees had
partitions to divide work spaces, increase privacy and reduce noise
levels. Now employees have no partitions and fewer phones per employee
than before. There were serious ventilation problems in the Manhattan
Area Office which were made more serious by the introduction of
additional employees in the same space. Prior to the move there had
been no discussion as to how the move would occur or when employees
would be able to pack. The move caused some employees to use more time
in traveling in to and out from Manhattan to investigate work sites in
Queens, Brooklyn and Staten Island. With respect to one employee extra
time amounted to between 20 minutes and 45 minutes each way. Depending
on the number of visits one would have to make to a particular site,
this could add several hours to the time it took to investigate each
case. Performance standards require employees to close a certain
percentage of cases in 45 days and all cases by 180 days. In addition
employees are held to a certain standard of effective time utilization
which would also be affected by increased travel time. There was more
on-street parking available in Brooklyn than in Manhattan, 12 DOL
reserved parking spaces in Brooklyn versus none in Manhattan. Five of
the seven employees transferred from the Brooklyn office used their
privately owned vehicles in conducting their investigations and trying
to find a parking space around the Manhattan Area Office could take from
5 minutes to two hours to locate, depending on the time of day.
Management apparently had made no adjustments in performance standards
based on the increased travel time or the difficulty in locating parking
spaces. There were some asbestos hazards in the new location and,
unlike the old work site where there were phones within reach of every
desk, in Manhattan there were fewer phones per employee and many
employees now had to leave their desk area to get to a phone. Manhattan
also had a problem with pests. Certain office procedures which were
different from the Brooklyn office had an impact on an employee's
ability to be in the field for investigations. One of these was the
requirement that each employee do technical assistance for an entire
day. In Brooklyn no employee was assigned this task but employees who
happened to be in the office would pick up this responsibility. After
the transfer, the former Brooklyn Area Office employees had to perform
technical assistance one day a week until they caught up with the time
already served by the other Manhattan employees in that endeavor. Such
employees perform technical assistance two times a month. One employee
lost 24 field days due to this requirement between the transfer of
February 6, 1984 and the date of the hearing.
Discussion and Conclusions
The interstation transfer by DOL of the employees of the Brooklyn
Wage-Hour Office to the Bronx and Manhattan Wage-Hour Offices was a
change in the working conditions that affected, or could reasonably be
foreseen to affect, the transferred employees. Absent any privilege
Respondent would be required to notify the Council of the change and to
bargain concerning its impact and implementation. Cf. U.S. Department
of Labor, Occupational Safety and Health Administration, Chicago,
Illinois, 19 FLRA No. 60 (1985).
Respondent contends that it had no obligation to bargain concerning
the implementation and impact of the interstation transfer because the
Council allegedly waived its statutory right for such bargaining when
the Council dropped its contractual proposal that Respondent bargain
about the impact and implementation of interoffice transfers.
Respondent's argument confuses a statutory right as opposed to a
contractual right. The latter is a right set forth and secured in the
collective bargaining agreement and it is enforced by utilizing the
means for enforcing contractual rights, including grievance and
arbitration procedures. Rights granted by the Statute must be enforced
utilizing the methods provided by the Statute including unfair labor
practice procedures. The procedures for the enforcement of contractual
rights are often more speedy and effective than those for enforcing
rights provided by the Statute.
In the instant case, when the Council dropped its contractual demand
to bargain about the impact and implementation of interstation transfers
the Council was merely abandoning its attempt to secure a contractual
right which it could then enforce through the contract. Nothing in the
record establishes or implies that the Council was in any way giving up
its statutory rights. This distinction between statutory rights and
contractual rights has long been recognized in the field of labor
relations and it has similarly been recognized that giving up the
securing of a contractual right does not constitute the waiver of a
statutory right. Cf. Timber Roller Bearing Company v. NLRB, 325 F 2d
746 (6th Cir. 1963) at 751. 4 The waiver of a statutory right must be
clear and unmistakable. U.S. Department of Labor, Occupational Safety
and Health Administration, Chicago, Illinois, supra. The record in the
subject case shows no such clear and unmistakable waiver of the
Council's statutory right to bargain about the impact and implementation
of the interoffice transfer of employees. Agreeing that two weeks
notice would be sufficient notice of such a transfer hardly constitutes
a waiver of the right to bargain about the implementation and impact of
such a transfer. Thus, I conclude the Council did not waive its right
to bargain after the implementation and impact of the interoffice
transfer of papers.
I conclude, further, in the absence of such a waiver, DOL violated
section 7116(a)(1) and (5) of the Statute by refusing to negotiate with
the Council concerning the impact and implementation of the interoffice
transfer of employees from the Brooklyn Wage-Hour Office to the
Manhattan and Bronx offices.
Having found and concluded that DOL violated Sections 7116(a)(1) and
(5) of the Statute, I recommend that 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, the
Authority hereby Orders, that the United States Department of Labor,
Employment Standards Administration, Wage and Hour Division, Chicago,
Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain with
American Federation of Government Employees, National Council of
Field Labor Locals, AFL-CIO, the exclusive collective bargaining
representative of its employees, concerning the impact and
implementation of any interoffice transfer of employees.
(b) In any like or related manner interfere with, restrain, or
coerce any employee in the exercise of right assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Upon request bargain with American Federation of Government
Employees, National Council of Field Labor Locals, AFL-CIO
concerning the impact of the inter-office transfer of employees
from the Brooklyn Wage-Hour Office to the Bronx and Manhattan
Offices and concerning the impact and implementation of any future
interoffice transfers of employees.
(b) Post at its Bronx and Manhattan facilities 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 an appropriate official of the Respondent and shall be
posted and maintained by such official for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
all other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, in writing,
within 30 days from the date of this Order, as to what steps are
being taken to comply herewith.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: September 12, 1985
Washington, D.C.
FOOTNOTES$ -----------
(1) On pages 3 and 4 of his Decision, the Judge inadvertently noted
the wrong year in describing the events leading up to the allegation in
the unfair labor practice complaint. Thus, on pages 3 and 4
respectively, he referred to events occurring on September 3, 1983 and
October 4, 1983, rather than 1984. These inadvertencies are hereby
corrected.
(2) Article 24 of the collective bargaining agreement entitled
"Interstation Transfer," provides in relevant part:
Section 5 -- Notice to NCFLL
The NCFLL President or his/her designee will be notified of all
proposed transfers of bargaining unit employees at least 2 weeks
in advance.
(3) DOL's chief negotiator testified that he felt that when the
Council agreed to the final language this constituted a clear and
unequivocal waiver of the Council's right, during the term of the
agreement, to negotiate over the impact of interstation transfers. The
Council negotiators testified that the Council had no intention of
waiving its statutory rights.
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse, upon request to bargain with American
Federation of Government Employees, National Council of Field Labor
Locals, AFL-CIO the exclusive collective bargaining representative of
our employees, concerning the impact and implementation of any
interoffice transfer of employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL upon request bargain with American Federation of Government
Employees, National Council of Field Labor Locals, AFL-CIO concerning
the impact of the interoffice transfer of employees from the Brooklyn
Wage-Hour Office to the Bronx and Manhattan Offices and concerning the
impact and implementation of future interoffice transfer of employees.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278
and whose telephone number is: (212) 264-4934.