Defense Logistics Agency, Defense Industrial Plant Equipment Center, Memphis, Tennessee and American Federation of Government Employees, Local 3986 (Authority decision, March 26, 1992)

Final FLRA decision. This is the Authority's final unfair labor practice order under 5 U.S.C. §§ 7116 and 7118. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Defense Logistics Agency ended a compressed work schedule at its Memphis equipment center after the employees had gained union representation. The union alleged that the agency made the change without bargaining. The Authority agreed with the administrative law judge that the schedule was an established condition of employment and that the agency had to bargain over the decision to terminate it. It adopted the judge's unfair labor practice finding and ordered the center, upon request, to restore the schedule and bargain over proposed changes. The center also had to post a notice to employees for 60 days.

Decision snapshot

• Authority: Duty to bargain and unfair labor practices under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Judge's violation finding affirmed; restoration on request, bargaining, and notice posting ordered.
• Key point: A compressed schedule established before union certification remained a condition of employment that the agency could not end without bargaining.

Full text (FLRA public release)

[ v44 p599 ]
44:0599(50)CA

The decision of the Authority follows:

44 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEFENSE LOGISTICS AGENCY

DEFENSE INDUSTRIAL PLANT EQUIPMENT
CENTER

MEMPHIS, TENNESSEE

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3986

(Charging Party/Union)

4-CA-00870

DECISION AND ORDER

March 26, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent'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 terminating a compressed work schedule (CWS) for certain of its employees without bargaining with the Union over the substance and/or impact and implementation of that action. The Judge found that the Respondent violated the Statute by refusing to bargain over the substance of its decision to terminate CWS and recommended that a status quo ante remedy be ordered.

The Judge found that the CWS program was established at a time when the bargaining unit employees were unrepresented and was terminated after the Union had been certified as the employees' exclusive representative. The Judge concluded that because the CWS program was an established condition of employment for bargaining unit employees at the time the Respondent terminated the program, the Respondent was required to bargain with the Union over the Respondent's decision to terminate the CWS program. In reaching his conclusion, the Judge found that the Respondent had not shown that under the Work Schedules Act or under the Statute it was entitled to terminate the CWS program without first bargaining with the Union. We agree.(1)

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and

find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings,(2) conclusions, and recommended Order.

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 Defense Logistics Agency, Defense Industrial Plant Equipment Center, Memphis, Tennessee shall:

1. Cease and desist from:

(a) Unilaterally terminating the compressed work schedule program for its Memphis, Tennessee headquarters employees, without first affording the American Federation of Government Employees, the exclusive bargaining representative of those employees, the opportunity to negotiate with respect to any proposed changes in such program.

(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 Federal Service Labor-Management Relations Statute:

(a) Upon request, reestablish the previous compressed work schedule program for its headquarters employees and afford the American Federation of Government Employees, the exclusive bargaining representative of those employees, the opportunity to negotiate with respect to any proposed changes in such program.

(b) Post at its Memphis, Tennessee headquarters, 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 Commander of the Defense Industrial Plant Equipment Center, 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, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 unilaterally terminate a compressed work schedule program for our headquarters employees, without first affording the American Federation of Government Employees, the exclusive bargaining representative of the employees, the opportunity to negotiate with respect to any proposed changes in such program.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, reestablish the previous compressed work schedule program for our headquarters employees and afford the American Federation of Government Employees, the exclusive bargaining representative of the employees, the opportunity to negotiate with respect to any proposed changes in such program.

______
(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 any of its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, NE., Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.

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

1. Because we agree that the Respondent was required to
   bargain with the Union over the substance of the Respondent's decision to terminate the CWS program, we do not rely on the cases cited by the Judge at page 13 of his decision that involved a duty to bargain only as to the impact and implementation of a change in conditions of employment.

2. Insofar as the Respondent argues in Exceptions 6 and 8
   that the Judge erred in finding that the Union requested bargaining, the exceptions pertain to the Judge's credibility findings on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345, 346 n.1 (1990).