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32:0277(44)CA
The decision of the Authority follows:
32 FLRA No. 44
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1592
Charging Party
Case No. 7-CA-60308
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Charging Party to the attached Administrative Law Judge's Decision. Neither the General Counsel nor the Respondent filed exceptions or opposed the Charging Party's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over changing the Saturday starting and quitting times of the Tuesday through Saturday uncommon tour in the DSFPB section of the Directorate of Distribution.(*)
The Judge concluded that the Respondent violated the Statute by failing and refusing to bargain with the Union over the change in the Saturday starting and quitting times in the DSFPB. His recommended Order requires: (1) the Respondent to rescind the change in duty hours and restore the previously existing duty hours, (2) the Director of the Directorate of Distribution or his designee to sign the remedial Notice, and (3) the Notice to be posted only within the DSFPB section of the Directorate of Distribution.
We conclude, in agreement with the Judge, that the Respondent committed the unfair labor practices alleged in the complaint and that a status quo ante remedy is appropriate and warranted. However, contrary to the Judge, we conclude that the remedial Notice should be signed by the Commanding Officer of the Ogden Air Logistics Center and posted throughout the Center.
II. Administrative Law Judge's Decision
The Judge concluded that the Respondent violated the Statute by failing and refusing to bargain with the Union over the change in the Saturday starting and quitting times in the DSFPB. He addressed the issues of whether the Union: (1) was entitled to bargain over management's decision to change starting and quitting times as well as the impact and implementation of that decision, and (2) waived its right to bargain over the change.
The Judge found that the decision to change starting and quitting times was within the duty to bargain because the Respondent did not demonstrate that the change directly related to the numbers, types, and grades of employees assigned to a work project or tour of duty. He also found that the impact and implementation of the change was within the duty to bargain because its effect on unit employees' conditions of employment was more than "de minimis." ALJ Decision at 11. Finally, the Judge found that the Union had not waived its right to bargain over changes in starting and quitting times.
The Judge's recommended Order requires the Respondent to rescind the change in duty hours and restore the previously existing duty hours. The recommended Order also requires that the Director of the Directorate of Distribution or his designee sign the remedial Notice and for it to be posted only within the facilities of the DSFPB.
III. Positions of the Parties
The Charging Party's exceptions concern only: (1) who should sign the remedial Notice, and (2) where the Notice should be posted. The Charging Party contends that the Notice should be "signed by the Center Commander and posted at all locations on the Base where notices to employees are customarily posted." Exceptions at 3. The Charging Party argues that (1) the Authority has routinely ordered that notices be posted in all locations at a facility and that they be signed by the head of the facility, and (2) previous Authority decisions involving the same Respondent have required Base-wide postings signed by the Center Commander.
Neither the General Counsel nor the Respondent filed exceptions or opposed the Charging Party's exceptions.
IV. Analysis and Conclusion
We agree with the Judge, for the reasons stated in his decision, that the Respondent was obligated to negotiate with the Union concerning its decision to change the existing Tuesday through Saturday tour of duty by changing by 1 hour the wage grade employees' starting and quitting times for Saturday.
We will find a decision to change the starting and quitting times of bargaining unit employees to be negotiable unless the Agency demonstrates that the change is an exercise of management's right to determine (1) the numbers, types or grades of employees or positions assigned to a work project or tour of duty under section 7106(b)(1); or (2) the agency's mission under section 7106(a)(1). In deciding whether a particular change in starting and quitting times involves the exercise of management's rights, we carefully consider and balance the facts and circumstances set forth in the record. See Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281, 299 (1986) (agency obligated to bargain concerning decision to change by 1 hour the starting and quitting times for housekeepers' existing duty hours and ordering a status quo ante remedy) and Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122, 125, 132-33 (1986) (agency had duty to bargain when changing starting and quitting times of laundry employee's existing tour of duty as such a change did not establish a new shift since employee's job duties did not change and he continued working with same employees).
These cases are distinguished from those in which the starting and ending times are shown to interfere with the agency's right to determine its mission of, for example, providing services to the public, American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 869-70 (1986) (Proposal 1), or providing instructional services to students, Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 516-17 (1987) (Proposal 8).
We also agree with the Judge that a status quo ante remedy is appropriate. This remedy is warranted where, as here, management unilaterally changed a negotiable term and condition of employment. Effectuation of the purposes and policies of the Statute requires a return to the status quo ante in order not to render meaningless the obligation to bargain. See Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 30 FLRA 697, 701 (1987) (agency ordered to rescind Memorandum which repudiated parties' agreement concerning union's membership and participation on Joint Incentive Awards Committee and to comply with the parties' agreement).
However, contrary to the Judge, whose decision provides no explanation concerning the signatory of the Notice or the scope of the posting, we conclude that the remedial Notice should be signed by the Commanding Officer of the Ogden Air Logistics Center and posted where notices to employees are customarily posted at the Center. We reach this conclusion for the following reasons.
First, the refusal to bargain allegations described in the complaint are based on actions by the Respondent's Labor Relations Officer and not on actions by personnel in the Directorate of Distribution. See Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 29 FLRA 594, 595, 607 (1987) (finding agency's labor relations personnel conducted a "formal discussion" meeting with a bargaining unit employee without notifying the union and ordering that the Notice be signed by the Commanding Officer of the Sacramento Center and posted where notices to employees are customarily posted at the Sacramento facility).
Second, the bargaining unit includes employees located throughout the Ogden Air Logistics Center. The issue in the present case involves a negotiable term and condition of employment--changing established shifts and hours of work--in which members of the bargaining unit who are located outside of the DSFPB section are likely to have an interest.
Third, the geographic location stated in the complaint is the Ogden Air Logistics Center at Hill Air Force Base, Utah and not just the DSFPB section of the Center. Compare Federal Aviation Science and Technological Association Division, National Association of Government Employees, 2 FLRA 802, 803 (1980) (finding nationwide posting not appropriate under E.O. 11491, as amended, where the geographic area referenced in the complaint was only the Respondent's Western Region).
Finally, where unfair labor practices have involved a subordinate organizational element of the Respondent, the Authority has directed that the Notice be signed by the Commanding Officer of the Air Logistics Center rather than the management official in charge of the subordinate organizational element. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA 394, 397, 400 (1985), where the Authority found that the Respondent was obligated to bargain over the impact and implementation of its decision to discontinue a past practice of paying Metal Processing Shop employees for duty-free meal breaks while on an overtime shift. In that case, the Authority did not limit the scope of the posting to the subordinate organizational element but directed the Respondent to post the Notice where notices to employees were customarily posted.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, shall:
1. Cease and desist from:
(a) Instituting any change in the starting and quitting times of the Directorate of Distribution, DSFPB Wage Grade employees on the Tuesday through Saturday uncommon tour without affording the American Federation of Government Employees, Local 1592, the exclusive bargaining representative of its employees, the opportunity to negotiate with respect to such change.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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) Rescind the change in duty hours implemented on April 5, 1986, and restore the previously existing duty hours of 6:00 a.m. to 2:30 p.m. on the Saturday uncommon tour in DSFPB.
(b) Upon request of the American Federation of Government Employees, Local 1592, meet and negotiate concerning the starting and quitting times of Directorate of Distribution, DSFPB Wage Grade employees on the Saturday uncommon tour.
(c) Post at the Ogden Air Logistics Center facility copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer of the Ogden Air Logistics Center and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees of the Center are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notice is not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
Issued, Washington, D.C.,
_______________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the starting and quitting times of the Directorate of Distribution, DSFPB Wage Grade employees on the Tuesday through Saturday uncommon tour without affording the American Federation of Government Employees, Local 1592, the exclusive bargaining representative of our employees, the opportunity to negotiate with respect to such change.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the change in duty hours implemented on April 5, 1986, and restore the previously existing duty hours of 6:00 a.m. to 2:30 p.m. on the Saturday uncommon tour in DSFPB.
WE WILL, upon request of the American Federation of Government Employees, Local 1592, meet and negotiate concerning the starting and quitting times of Directorate of Distribution, DSFPB Wage Grade employees on the Saturday uncommon tour.
_______________________
(Activity)
Dated:___________ By:_____________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and whose telephone number is: (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ The Judge states that "DSFPB is the Central Receiving Branch which receives materials from on and off base." ALJ Decision at 2. The record does not indicate the meaning of the initials "DSFPB".