Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, PA and AFGE, Local 148
Federal Labor Relations Authority
23-CA-79; 23-CA-325; 23-CA-329; 11 FLRA No. 111; 11 FLRA 639
March 18, 1983
Before: Haughton, Chairman; Frazier, Applewhaite, Members
Related Index Numbers:
41.7 Collective Bargaining, Duty to Supply Information
72.53 Employer Unfair Labor Practices, Refusal to Bargain in Good Faith, Indicia of Good/Bad Faith and Surface Bargaining
72.612 Employer Unfair Labor Practices, Unilateral Change in Term or Condition of Employment, Established Practice
72.613 Employer Unfair Labor Practices, Unilateral Change in Term or Condition of Employment, Adequacy of Notice of Change
72.77 Employer Unfair Labor Practices, Miscellaneous Unfair Labor Practices, Refusal to Supply Information
Cited Statutes and Regulations
THE FLRA RULES ON CHARGES OF BAD FAITH BARGAINING. (1) In a case decided under E.O. 11491, the Authority found that the union was given adequate notice of a change in past practice. The quarterly roster containing notice of the change, i.e., of the practice of not assigning correctional officers to the mailroom full-time, was posted three weeks before the effective date of the new assignments. Moreover, a union representative was a member of the quarterly roster committee. (2) The Authority overturned the ALJ's finding that the employer had committed a ULP [5 U.S.C. 7115(a)(5)] by engaging in surface bargaining. Although the employer expressed the opinion that the reorganization of its mailroom presented no adverse impact on the unit, and although it rejected over 66 proposals as nonnegotiable, the employer did meet several times with the union. "The mere fact that it was not persuaded to change its position during negotiations did not constitute a showing of bad faith." (3) The employer's delay of two months in supplying certain information to the union did not violate 5 U.S.C. 7114(b)(4)(B). The evidence showed that certain requested data were supplied immediately. The employer searched diligently for the remaining information and supplied it when located.
DECISION AND ORDER*1
The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding finding that the Respondent had engaged in certain 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 and the General Counsel filed exceptions to the Judge's Decision and accompanying briefs, and the Office of Personnel Management (OPM) filed an amicus curiae brief.*2
The functions of the Assistant Secretary of Labor for Labor Management Relations, under Executive Order 11491, as amended, were transferred to the Authority under section 304 of the Reorganization Plan No. 2 of 1978 (43 F.R. 36040), which transfer of functions is implemented by section 2423.1 of the Authority's Rules and Regulations (5 CFR 2423.1). The Authority continues to be responsible for the performance of these functions as provided in section 7135(b) of the Federal Service Labor-Management Relations Statute (the Statute).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and sections 7118 and 7135(b) of 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 in these cases, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith.
In Case No. 23-CA-79, the Judge found that the Respondent, Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, violated sections 19(a)(1) and (6) of Executive Order 11491, as amended (the Order), by changing the prior practice of not assigning correctional officers to the mailroom on a permanent, full-time basis without providing the American Federation of Government Employees, Local 148, AFL-CIO (the Union) notice and an opportunity to bargain over the impact and implementation of the change. Contrary to the Judge, the Authority concludes that, under the Order, the Union had sufficient notice of the management decision changing its practice. Thus, the quarterly roster containing notice of the change was posted on December 8, 1978, approximately three weeks before the effective date of the new assignments of December 31, 1978. Moreover, a Union representative was a member of the Quarterly Roster Committee when the full-time correctional officer was reassigned. Accordingly, the Authority concludes that the Union had sufficient notice of the change to have requested bargaining over the impact and implementation thereof but failed to do so. Therefore, the allegation that the Respondent violated sections 19(a)(1) and (6) of the Or der shall be dismissed. See Southeast Exchange Region of the Army and Air Force Exchange Service, Rosewood Warehouse, Columbia, South Carolina, 6 A/SLMR 237 (May 28, 1976). Cf. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980), reversed sub nom. United States Air Force v. Federal Labor Relations Authority, 681 F.2d 466 (6th Cir. 1982) (wherein the Authority determined under the Statute that appropriate notice must be given t o an agent or other union official as a union representative.*3
The Judge found in Case No. 23-CA-329 that the Respondent failed to meet its statutory duty to negotiate regarding the impact and implementation of a reorganization of its mailroom and records office, in violation of sections 7116(a)(1) and (5) of the Statute. As found by the Judge, the Union received timely notice in May 1979, of the reorganization which was scheduled to be effective in July of that year. The Union requested bargaining with respect to the impact and implementation of the reorganization and the Respondent suggested a date for a meeting. The Union responded that it would not be able to negotiate until the Respondent supplied it with "written proposals," specifically plans on the procedures for implementing the reorganizati on and for avoiding any adverse effects thereof on the employees involved. The Respondent indicated its willingness to meet with the Union, but stated that it did not believe there would be any adverse impact on the employees involved, and further stated that any impact was "covered by provisions of the Master Agreement." On June 25, the parties met and discussed ground rules but reached no agreement. The parties next met again on November 2, and again discussed ground rules. Additionally, the Union pre sented the Respondent with 66 proposals. When the parties then met on November 9, the Respondent indicated that it would respond in writing by addressing generally the negotiability of each of the Union's proposals. Subsequently, the Respondent stated th at each proposal was non-negotiable either because it was in conflict with certain provisions of the Master Agreement or outside the scope of the reorganization. On November 27, the Union submitted alternative proposals to the Respondent which were rejec ted as non-negotiable under the Master Agreement. Based on the foregoing, the Authority concludes, contrary to the Judge, that the Respondent was willing to meet and negotiate in good faith over the impact and implementation of its decision to reorganize the mailroom and records office, and the mere fact that it was not persuaded to change its position during the negotiations, as set forth above, does not constitute a showing of bad faith. Accordingly, the allegations in Case No. 23-CA-329 shall be dism issed. See Norfolk Naval Shipyard, 9 FLRA No. 6 (1982), appeal docketed, No. 82-1876 (D.C. Cir. July 30, 1982); Division of Military and Naval Affairs, State of New York, (Albany, New York), 7 FLRA No. 51 (1981).
Finally, the Judge found that the Respondent violated sections 7116(a)(1) and (5) of the Statute by the approximately two-month delay in supplying certain requested information which was necessary and relevant for the Union to perform its representational function. Section 7114(b)(4)(B) of the Statute specifically requires an agency to furnish the exclusive representative of its employees, upon request, with information that is reasonably available and necessary for full and proper discus sion, understanding, and negotiation of subjects within the scope of collective bargaining.*4 It follows that such information must be furnished in a timely manner under the circumstances in order to effectuate the purposes and policies of the Statute. I t is undisputed that the Union made a series of requests for information which, according to the Judge, the Respondent furnished "almost immediately." As further found by the Judge specifically with regard to the 18 items of information requested by the Union on June 25, and which are at issue herein, some items were unpublished or unavailable and could not be supplied. Additionally, it is uncontroverted that some of the information requested by the Union was not contained in the Respondent's current re cords but that diligent searches for the requested information were made. Finally, as found by the Judge, almost all of the requested information was supplied to the Union. Under these circumstances, the Authority concludes, contrary to the Judge, that t he time it took for the Respondent to produce the information was not unreasonable and that the Respondent did not violate the Statute as alleged. Accordingly, the allegations in Case No. 23-CA-325 shall be dismissed.
IT IS HEREBY ORDERED that the consolidated complaint in Case Nos. 23-CA-79, 23-CA-325, and 23-CA-329 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., March 18, 1983
Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
1. The Judge inadvertently erred by concluding that the deletion of certain paragraphs of the consolidated complaint constituted withdrawal of the charge in Case No. 23-CA-325. Paragraph 9 of the complaint, which was not withdrawn, is the basis of the allegations in Case No. 23-CA-325 which were addressed by the Judge. Thus, the Authority's decision covers the complaint as originally consolidated.
2. The OPM was granted permission to participate in this proceeding as amicus curiae pursuant to section 2429.9 of the Authority's Rules and Regulations.
3. In conformity with section 902(b) of the Civil Service Reform Act of 1978 (92 Stat. 1224), this aspect of the present case is decided on the basis of Executive Order 11491, as amended, as if the Statute had not been enacted. The Decision and Order does not prejudge in any manner either the meaning or application of related provisions in the Statute or the result which would be reached by the Authority if the case had arisen under the Statute rather than the Executive Order.
4. Section 7114(b)(4)(B) provides:
Sec. 7114. Representation rights and duties
. . . . . . .
(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation --
. . . . . . .
(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data --
. . . . . . .
(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.)
Statement of the Case
These proceedings*1 arose 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., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 2, January 17, 1980. 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to amended charges filed on February 26, 1980 and February 21, 1980, respectively a consolidated Complaint issued on March 31, 1980. The consolidated Complaint alleged that Bureau of Prisons, herein called Respondent, unilaterally changed its established practice by assigning a correctional officer to work in the mailroom at its Lewisburg, Pennsylvania location without bargaining with American Federation of Government Employees, Local Union 148, herein called the Union, in violation of sections 19(a)(1) and (6) of Executive Order 11491, as amended. The complaint further alleges that Respondent has refused and continues to refuse to negotiate concerning the procedures to be used in the reorganization of its mailroom and Records Office a nd the impact of the reorganization on unit employees in violation of sections 7116(a)(1) and (5) of the Statute. Finally, the Complaint alleged that Respondent failed and refused to furnish certain necessary and relevant information concerning the above reorganization in a timely manner.
A hearing was held in the captioned matter on June 10 and 11, 1980, in Lewisburg, Pennsylvania. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted timely briefs which have been duly considered.
Upon the basis of the entire record, including my observation of the witness and their demeanor, I make the following findings of fact, conclusions and recommendations and Order.
Findings of Fact
At all times material herein the Union has been the exclusive representative for the purposes of collective bargaining at the Respondent's Lewisburg, Pennsylvania location.
A. Case No. 23-CA-79
Respondent operates a mailroom at its Lewisburg facility which prior to about November 15, 1978 was staffed by one supervisory and two regular mail room employees. The duties of these mailroom employees included processing incoming and outgoing inmate mail, posting inmate money to commissary accounts, supervising inmate details in the mailroom and giving orientation to new arrivals. Mailroom employee Jeff Booth received a promotion around November 15, 1978 and was replaced in the mailroom by correctional officer Chuck Spurr. Unlike mailroom employees, the primary duties of correctional officers included care, custody, safety and security of inmates, sanitation within the limited area of his supervision and tool control. Also, correctional of ficers have a higher GS grade than mailroom employees.*2
While the mailroom had at one time been under the control of the Custody Department, it has been staffed by civilian employees since about 1968. Between 1976 and November 1978 correctional officers were regularly assigned to duties in the mailroom. The record established that correctional officers were assigned for a few hours a day, not exceeding a period from three to five days, that one officer might work in the morning, another in the afternoon, and that officers picked up and delivered package s to the mailroom. Correctional officers were normally assigned to the mailroom when a backlog occurred, but according to Ms. Deborah Spidle, a mailroom employee and union official, no backlog existed when Officer Spurr was assigned. Spidle also testifie d that Spurr reported to the Mailroom Supervisor rather than the Operations Lieutenant. Finally, Spidle testified that Spurr, unlike previous assignments of correctional officers worked a full 8 hour day for 5 days a week from the time he was initially assigned. Respondent offered testimony that a correctional officer, had been assigned to the mailroom for an 8 hour shift for seven days in December 1977.
Shortly after correctional officer Spurr began working in the mailroom, Spidle asked her immediate Supervisor Leon Poplawski how long Spurr would be working there. Poplawski told her that he did not know and suggested that she ask Department Head Don Storer. Subsequently, Spidle talked with Storer who told her that Spurr "was only there temporarily until they had filled the vacancy left by Booth." Spidle checked the Daily Duty Roster and found that Spurr was assigned to the mailroom. She then checked the Master Duty Roster and found that Spurr was not assigned to the mailroom on that roster. Spurr's name admittedly did not appear on the Master Duty Roster as assigned to the mailroom until December 8, 1978.*3
According to Spidle, she talked with supervisors over the next several weeks but, was always told that Spurr's assignment was temporary until they got a permanent replacement. She first discovered upon the posting of the December 8, 1978 Master Duty Roster, that Spurr had been assigned to the mailroom on a permanent basis.
When Spurr's tour in the mailroom ended in March 1979 he was replaced by another correctional officer, Anthony Lupo. Spidle testified that she was at one point instructed by Poplawski to teach Lupo the full range of mailroom work. Correctional officers have continued to work in the mailroom since approximately November 15, 1978.
The Union was never given notice that correctional officers would be assigned on a permanent basis to the mailroom. Respondent offered evidence that correctional officer Shamburg, who was also a Union officer at that time, was a member of the Quarterly Roster Committee, and through his presence the Union was aware of the assignment.
B. Case No. 23-CA-329
On or about May 28, 1979, Ms. Spidle, then employees in Respondent's mailroom, met with her Department Head Don Storer and Union representative Joan Sampsell. Storer told Spidle that it had been decided that the mailroom was going to be turned over to the Custody Department and that she was going to be assigned to work in the Records Office as a Records Clerk beginning July 1, 1979. At that time, Spidle asked Storer for the position description of the job to which she was being reassigned, about performance standards for the job, annual leave and training. Storer explained the position and its duties. He told Spidle that she would have the position description in about a week. Also Storer told her not to worry about the leave and that training would be on-the-job training.
On May 30, 1979 the Union requested to "negotiate the procedures by which the reassignments of various unit members is to be implemented and the adverse affects on the employees involved." The request indicated that the areas of concern were the mailroom, Records Office and Correctional Service.
Respondent, on June 11, 1979, supplied copies of position descriptions requested by Union representative Sampsell and suggested that it was available to meet on June 14, 1979. The Union responded to the June 14 proposal on June 13, 1979 stating that it would not be able to negotiate "until you have given us your written proposals". The Union specifically requested plans on the implementing procedures and the avoidance of adverse affects on the employees involved.
On June 15, 1979 Respondent answered stating that it did not believe there would be "any adverse impact on the employees involved in the Records Office reorganization." Respondent further stated that it believed the impact was covered by provisions of the Master Agreement and that it was prepared to meet on June 25, 1979.
Thereafter on June 21, 1979, the Union made two separate requests for information. The first request asked for current position descriptions of the Records Control Assistant, Records Control Specialist and the Good Time Clerk. The second request asked for "a copy of the FES for the 301 series." On June 26, 1979 Respondent supplied the GS-301 series but stated that there were no published FES Standards for the 301 series.
On June 25, 1979 the parties met but were unable to get beyond the Union's proposal for ground rules for the negotiations. Also on June 25, 1979 the Union submitted a request for information containing some 18 items. This request again asked for, among other things, position descriptions for affected positions, performance standards for the mailroom and Records Office and the FES for 301 series, which had been previously requested.
Around June 27, 1979 the Union requested five (5) additional items related to the FPM and one item related to DLJ Order 1135.1A, Departmental Merit Promotion Guidelines. All of these items were supplied by Respondent on July 6 1979, except FPM 335 thru 32 which Respondent claimed, at that time, and still claims does not exist.
Respondent responded to the June 25, 1979 Union request for information on August 31, 1979. While much of the information was supplied, Ms. Spidle testified that the Union did not receive the specific position descriptions, performance standards, the Danbury Fire Report, or the FES for the Correctional Officer Series 007. According to Respondent the June 25, 1979 request contained duplications of requests for information already supplied to the Union. Other requests Respondent contends were for certain information which was not in its current records. Respondent maintains that it made a diligent search for the information but was unable to satisfy all of the Union's requests.
The parties did not meet again until November 2, 1979 under the auspices of a Federal Mediator. Again the parties discussed ground rules but, failed to arrive at any ground rules. At this meeting the Union presented sixty-six written proposals including a request to return to the status quo of July 1, 1979. Respondent asserted surprise at this number of proposals stating that it had expected only three or four proposals to be presented at this meeting.
The parties next met on November 9, 1979, with Respondent indicating that it would get back to the Union and give them a written response to the proposals, giving its impression as to the general negotiability of each item.
By letter dated November 13, 1979 Respondent responded to the sixty-six Union proposals stated, in essence, that the proposals were either in conflict with certain articles of the Master Agreement or outside the scope of reorganization of the mailroom or records office.
On November 27, 1979 the Union submitted alternative proposals to Respondent concerning the impact and implementation of the reorganization. Thereafter, on December 12, 1979, Respondent by letter rejected the Union's alternative proposals as non-negotiable under the Master Agreement.
Personnel Officer John O'Connor testified that he interpreted the contract as a waiver of adverse impacts on reassignments. O'connor also testified that "all impacts on general areas of concern that employees generally worry about -- leave, overtime, these kind of things" were all covered by the Master Agreement.
Discussion and Conclusions
Case No. 23-CA-79
It is well settled that an obligation exists to bargain over the impact and implementation of any changes in job duties, reorganizations and reassignments. The instant case reveals that Respondent had decided prior to December 1978 to replace mailroom employees with correctional officers and accomplish this through the December 8, 1978 posting of the Quarterly Roster assigning Correctional Officer Spurr to the mailroom for a three month period and thereafter assigning correctional officers to the mailroom for similar three month periods. I reject Respondent's contention that the Union received notice of the reassignment by virtue of correctional officer Shamburg's presence on the confidential Quarterly Roster Committee and find that the Unio n through acceptable procedures was never informed that such reassignments were to be made. Thus, the Union was presented with a fait accompli.
There is substantial contradictory testimony as to when Officer Spurr first began working in the mailroom and whether or not correctional officers worked in the mailroom to the extent to establish a practice of their temporary assignment from the "Sick and Annual Reliefs". However, the crucial issue in this matter is not whether bargaining was required for the temporary assignment, but whether the reassignment by Quarterly Roster on December 8, 1978, which duties were to commence on December 31, 1978 required notice and bargaining.*4 Based on the instant record, I find that Respondent has assigned full-time correctional officers to the mailroom during Christmas and busy periods and that the assignment of Spurr was consistent with such assignment s from the "Sick and Annual Reliefs" which were never before objected to by the Union. Therefore, Respondent was not required to bargain over its decision to assign correctional officers to the mailroom on a temporary basis.
However, as case law establishes under the Executive Order, Respondent did have an obligation to bargain over the procedures and impact and implementation of, assigning correctional officers to the mailroom from the Quarterly Roster. There is ample record evidence to show that correctional officers were not assigned to the mail room prior to December 31, 1978, on a full time basis, from the Quarterly Roster. Accordingly, it is found that Respondent is obligated to bargain as to the procedures and impact flowing from the assignment of correctional officers to the mailroom effective December 31, 1978 and its failure to give notice and to bargain concerning this reassignment violated sections 19(a)(1) and (6) of Executive Order 11491, as amended.
Case No. 23-CA-379
A. The Reorganization
Under the provisions of the Statute Respondent was privileged to decide that it wanted to reorganize and reassign certain correctional officer posts and mailroom employees. Nevertheless, Respondent was obligated to negotiate, to the extent consonant with law and regulation, on the procedures to be utilized and on the impact such decision would have on employees adversely affected by such action.
In the case at bar, the decision to reorganize the mailroom and Records Office was made on or about May 11, 1979. The Union was informed of this decision in a timely fashion and since on or about May 28, 1978 the Union made a broad and continuing request on the Respondent to bargain concerning the reorganization. Although the parties met on several occasions Respondent has refused since that time to negotiate stating it saw no adverse impact to the reorganization and rejected Union proposals to negotiate as being non-negotiable.
Based on the instant record, it is concluded that Respondent had no intention of negotiating with the Union in good faith regarding the reorganization of the mailroom. Personnel Officer O'Connor testified that he felt that the adverse impact of the reorganization was covered by the Master Agreement. O'Connor also told the Union that there was no adverse impact. Consequently, bargaining never got off the ground. The record indicates that Respondent had made up its mind when it went to the bargaining table that it was unnecessary to negotiate concerning the impact of its decision to reorganize. O'Connor's statement that there was no adverse impact leads me to believe that Respondent's obdurate position was not subject to change by bargaining. Furthermore, Respondent maintained this position throughout by contending that all items were non-negotiable or the impact was covered by the Master Agreement. In such circumstances, where an agency approaches the bargaining table with its mind already m ade up that there is nothing to negotiate about, it can hardly content that its bargaining obligation has been met. Accordingly, it is concluded that Respondent failed to fulfill its obligation to negotiate with the Union concerning the procedures to be utilized and the impact of its decision to reorganize the mailroom on adversely affected employees in violation of sections 7116(a)(1) and (5) of the Statute.
B. Refusal To Furnish Information in a Timely Fashion
Without question an agency is required to submit any information requested by a Union which is relevant and necessary for the Union to perform its bargaining obligation. Further, unfair labor practices have been found where an employer during negotiations unreasonably delayed furnishing information in a reasonable time. See Pretem, Inc, 240 NLRB No. 81 (1979); International Credit Service, A Division of Rucos County Credit Bureau, Inc. 240 NLRB No. 102 (1979); Smith's Complete Market, 237 NLR B 1424 (1978).
Respondent contends that the Union's requests for information indicated its attempts to delay the mailroom reorganization. This contention is not supported by the record. While the Union made several requests for information on June 6, June 11, June 25 and June 27, 1979, all these requests for information which would aid it in preparing for negotiations concerning the announced reorganization. Further, Respondent contends only that the Danbury Fire Reports were irrelevant or unnecessary. Moreover, current position descriptions, performance standards and other matters are without doubt relevant and necessary since not to provide the Union with this information would place it in the position of bargaining in the dark. The record indicates that a great deal or almost all of the information was subsequently supplied. The question in this matter, however, is whether the eighteen (18) items requested by the Union on June 25, 1976 and supplied over two months thereafter were supplied in a timely fash ion. As already noted there is no question that most, if not all of the information requested was necessary and relevant for the Union to perform its responsibilities.
While certain items requested by the Union on June 25, 1976 were unpublished or unavailable and could not be supplied, Respondent offered no plausible explanation for the delay of over two months. Nor does it appear from the record that Respondent needed in excess of two months to gather and pass the requested information on to the Union. In this regard, the June 25 request was the only request of the four which Respondent did not comply with almost immediately, indicating that Respondent was well aware of its duty to timely furnish information. Since the parties were already engaged in negotiations concerning the reorganization, it is my view that it was incumbent on Respondent to, absent unusual circumstances, supply any necessary and relevant information as expeditiously as possible. There is no showing on the record that any intervening forces or unusual circumstances prevented it from supplying the information well before August 31, 1979.*5 While Respondent contends that some of the information was not in its records and that it made diligent searches for information, there is no reason why it could not have informed the Union of those problems and supplied it with whatever information it did have in a timely manner.
Based on the above, it is found that the approximate two month delay in supplying necessary and relevant information while the parties were engaged in negotiations constitute a violation of sections 7116(a)(1) and (5) of the Statute.
Since the Respondent had no obligation to meet and confer concerning the decision to affect the change, a status quo remedy based on Respondent's failure to negotiate the impact and implementation of the decision would not be warranted. However, Respondent does have an obligation to bargain upon request concerning impact and implementation of the decision. Department of the Treasury, Internal Revenue Service, Jacksonville District, 3 FLRA No. 103 (July 17, 1980); Adjutant General's Office, Puert o Rico Air National Guard, 3 FLRA No. 55 (June 3, 1980); Department of the Air Force, 47th Flying Training Wing, Laughlin Air Force Base, Texas, 2 FLRA No. 24.
Having found that the Bureau of Prisons, Lewisburg, Pennsylvania has violated sections 19(a)(1) and (6) of Executive Order 11491, as amended and sections 7116(a)(1) and (5) of the Statute, I recommend that the Authority issue the following order:
Pursuant to section 2400.2 of the Rules and Regulations of the Federal Labor Relations Authority and 5 U.S.C. 7135, the Authority hereby orders that Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, shall:
1. Cease and desist from:
(a) Unilaterally instituting a change in assignment to mail room personnel without affording the Union notice and an opportunity to bargain over the impact and implementation of said decision.
(b) Unilaterally reorganizing its mailroom and Records office without affording the American Federation of Government Employees, Local 148, AFL-CIO an opportunity to bargain concerning the impact and implementation of said changes.
(c) Withholding or failing to provide in a timely manner, upon request by American Federation of Government Employees, local 148, AFL-CIO any information relevant to the reorganization of mailroom employees, which information is necessary to enable American Federation of Government Employees, Local 148, AFL-CIO to discharge its obligation as the exclusive representative of employees in an appropriate unit.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Notify American Federation of Government Employees, Local 148, AFL-CIO, or any other exclusive representative of any intended reassignment of mailroom personnel in force, and, upon request, bargain in good faith on the impact and implementation of such action.
(b) Notify American Federation of Government Employees, Local 148, AFL-CIO, or any other exclusive representative, of any future reorganization or change in the duties of employees and, upon request, bargain in good faith on the impact and implementation of said changes.
(c) Provide in a timely manner, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, any information concerning the reorganization of employees which is relevant and necessary to enable the American Federation of Government Employees, Local 148, AFL-CIO, to discharge its obligation as the exclusive representative of employees in an appropriate unit.
(d) Post at its Lewisburg, Pennsylvania Penitentiary copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by Respondent 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. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director of Region II of the 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.
ELI NASH, JR. Administrative Law Judge
Dated: January 29, 1981 Washington, D.C.
1. The consolidated complaint was amended at the hearing to delete paragraphs 8(a), (b) and (15). These paragraphs constituted the basis of the charge in 23-CA-325 which was withdrawn.
2. The record revealed that the mailroom supervisor was a GS-6 while at least two correctional officers assigned to the mail room were GS-8's.
3. The daily duty roster lists daily assignments for the approximately 160 correctional officers. The Master Roster lists specific job assignments for a 12 week period. The December 8, 1978 posting referred to above was for the 12 week period from December 31, 1978 to March 24, 1979.
4. Nor do I find, as Respondent suggests in its brief, any reason to discredit the testimony of Ms. Spidle.
5. The General Counsel did not establish by a preponderance of the evidence that the selective manner in which Respondent complied with the requests for information established in bad faith.
NOTICE TO ALL EMPLOYEES
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally institute reassignments in the mailroom without affording American Federation of Government Employees, Local 148, AFL-CIO or any other exclusive representative, adequate notice and a reasonable opportunity to bargain over implementation of said decision and the impact on adversely affected employees.
WE WILL NOT unilaterally change terms and conditions of employment by reorganizing the mailroom and Records Office employees' job duties without affording American Federation of Government Employees, Local 148, AFL-CIO, or any other exclusive representative, adequate notice and a reasonable opportunity to bargain over the implementation of said decision and the impact on adversely affected employees.
WE WILL NOT withhold or fail to provide in a timely manner, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, any information concerning the reorganization of employees which is relevant and necessary to enable the American Federation of Government Employees, Local 148, AFL-CIO, to discharge its obligation as the exclusive representative of employees in an appropriate unit.
WE WILL NOT in any manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed by the Federal Services Labor-Management Relations Statute.
WE WILL notify and, upon request, bargain in good faith with American Federation of Government Employees, Local 148, AFL-CIO, to the extent consonant with law and regulation, concerning the impact on employees of the reassignment of mailroom employees.
WE WILL provide in a timely manner, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, any information concerning the reorganization of employees which is relevant and necessary to enable the American Federation of Government Employees, Local 148, AFL-CIO, to discharge its obligation as the exclusive representative to represent affected employees in an appropriate unit.
________________________________ (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 for the Federal Labor Relations Authority, whose address is: Room 1424, 600 Arch Street, Philadelphia, Pennsylvania 19106.
6 A/SLMR 237
A/SLMR No. 656
76 FLRR 1-4656
4 FLRA 512
4 FLRA No. 70
80 FLRR 1-1450
9 FLRA 36
9 FLRA No. 6
82 FLRR 1-1512
7 FLRA 321
7 FLRA No. 51
81 FLRR 1-1285
5 USC 7116(a)(5)
5 USC 7114(b)(4)(B)