[ v20 p857 ]
20:0857(107)CA
The decision of the Authority follows:
20 FLRA No. 107
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Charging Party
Case No. 5-CA-20109
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practice alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General the Charging Party and the Respondent filed exceptions to the
Judge's Decision, and the Respondent filed an opposition to the
exceptions of the General Counsel and the Charging Party.
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 recommended Order, only to the extent
consistent herewith.
In reaching his conclusion that the Respondent had not violated
section 7116(a)(1) and (5) of the Statute, the Judge found that the
change of hours for the Battery Shop, which employed only one employee,
from the hours of 3:00 a.m.-- 11:30 a.m. to the hours of 7:00 a.m. --
3:30 p.m., constituted a change in the starting and quitting time of an
employee on an established shift which he found to be a negotiable
matter under the Statute. The Judge relied on U.S. Customs Service,
Region V, New Orleans, Louisiana, 9 FLRA 116 (1982) and Internal Revenue
Service, Los Angeles District, 10 FLRA 653 (1982), in which the
Authority concluded that where an agency fails to establish that a
change in the starting and quitting times of employees on an established
shift is integrally related to and determinative of the numbers, types
and grades of employees or positions assigned to a tour of duty, the
change constitutes a negotiable condition of employment.
Contrary to the Judge's finding, the Authority concludes that the
change of the Battery Shop attendant's hours constituted, in effect, the
abolishment of his prior tour of duty and the establishment of a new
tour which was more closely aligned with the normal tour of duty worked
by most Scott Air Force Base employees, rather than simply a change in
his starting and quitting time as found by the Judge. Thus, the
Authority finds the Judge's reliance on U.S. Customs Service, Region V,
New Orleans, Louisiana and Internal Revenue Service, Los Angeles
District to be misplaced inasmuch as both cases involved mere changes in
the starting and quitting times of employees on an established shift.
Rather, the Authority views its decision in National Federation of
Federal Employees, Local 1461 and Department of the Navy, U.S. Naval
Observatory, 16 FLRA No. 131 (1984) to be applicable to the facts of
this case. In U.S. Naval Observatory the Authority concluded that a
union's proposal to maintain a tour of duty to which two employees had
been assigned to start work at a significantly later time than the other
agency employees, did not concern an adjustment of the starting time of
a single tour of duty, but rather the retention of a separate tour of
duty which the agency had decided to abolish based on operational
necessity. Thus, the Authority concluded that the union's proposal, by
fixing a starting time significantly later than the starting time of the
other employees in the organization and by identifying the two employees
who would start work at the later hour, was directly related to the
numbers, types and grades of employees assigned to a tour of duty within
the meaning of section 7106(b)(1) of the Statute and was therefore
negotiable only at the election of the agency. /1/ Similarly, in the
instant case, as a result of the Respondent's decision to significantly
change the hours of operation of the Battery Shop based on operational
necessity and for the safety of the attendant, the Union sought through
negotiations to reinstate the Battery Shop attendant's previous
schedule. /2/ Moreover, the Union's proposed reinstatement of the prior
schedule also identified the employee inasmuch as he was the only one
assigned to the Battery Shop. Accordingly, and noting particularly that
the change in the Battery Shop attendant's hours constituted the
abolishment of his previous tour of duty and that any proposal to
reinstate that tour would in effect involve fixing a new tour of duty at
a significantly earlier starting time than that worked by other
employees as well as identifying the employee who would work those
hours, the Authority concludes that such decision was integrally related
to and thus determinative of the numbers, types and grades of employees
or positions assigned to a tour of duty and was therefore negotiable
only at the election of the Agency under section 7106(b)(1) of the
Statute. Therefore, the Respondent was not required to bargain as to
the decision to change the employee's tour of duty. As noted below,
however, under certain circumstances agency management is obligated to
notify an exclusive representative and bargain upon request concerning
the procedures to be observed in implementing changes in tours of duty
and over appropriate arrangements for employees adversely affected
thereby. We next consider whether such a duty to bargain arose in the
circumstances of this case.
Subsequent to the issuance of the Judge's Decision, the Authority
held that "where an agency in exercising a management right under
section 7106 of the Statute, changes conditions of employment of unit
employees . . . , the statutory duty to negotiate comes into play if the
change results in an impact upon unit employees or such impact was
reasonably foreseeable." (Footnote omitted.) U.S. Government Printing
Office, 13 FLRA 203, 204-05 (1983). The Authority thereafter held that
"no duty to bargain arises from the exercise of a management right that
results in an impact or a reasonably foreseeable impact on bargaining
unit employees which is no more than de minimis." Department of Health
and Human Services, Social Security Administration, Chicago Region, 15
FLRA No. 174 (1984). The Authority has also held that in determining
whether the impact or reasonably foreseeable impact of the exercise of a
management right on bargaining unit employees is more than de minimis,
the totality of the facts and circumstances presented in each case must
be carefully examined. Thus, in Department of Health and Human
Services, Social Security Administration, Region V, Chicago, Illinois,
19 FLRA No. 101 (1985), the Authority looked to such factors as the
nature of the change (e.g., the extent of the change in work duties,
location, office space, hours, loss of benefits or wages and the like);
the temporary, recurring or permanent nature of the change (i.e.,
duration and frequency of the change affecting unit employees); the
number of employees affected or foreseeably affected by the change; the
size of the bargaining unit; and the extent to which the parties may
have established, through negotiations or past practice, procedures and
appropriate arrangements concerning analogous changes in the past. /3/
The Authority also emphasized therein that the factors considered in the
circumstances of that case were not intended to constitute an
all-inclusive list or to be applied in a mechanistic fashion. Moreover,
the Authority noted that a determination as to whether the exercise of a
management right under section 7106 of the Statute gives rise to a duty
to bargain under section 7106(b)(2) and (3) will not necessarily require
in every case a determination as to whether the exercise of the
management right results in a change in a condition of employment having
an impact or a reasonably foreseeable impact on bargaining unit
employees which is more than de minimis, especially where there is no
indication that the nature and degree of impact is at issue in the case.
However, in cases where it must be determined whether the nature and
degree of impact is more than de minimis, factors such as those listed
above will be considered.
Turning to the facts of the instant case, the Authority finds, based
upon the totality of the facts and circumstances presented herein, that
the impact or reasonably foreseeable impact of the change involved was
no more than de minimis. Accordingly, it follows that the Respondent
was under no obligation to negotiate with the Union pursuant to section
7106(b)(2) and (3) of the Statute. In reaching this result, the
Authority notes that the change in the hours for the Battery Shop
operation affected only one employee. As a result, he was required to
work from 7:00 a.m. to 3:30 p.m. rather than from 3:00 a.m. to 11:30
a.m. Further, with respect to the nature of the change in tour of duty,
the actual duties of the one employee involved were not affected in any
manner. However, the change in tour of duty did result in the loss of
certain nightshift differential pay. To reduce the impact of this loss
of differential pay, the Respondent delayed the implementation of the
change in the employee's tour of duty until January 11, 1982, at which
time a general pay raise took place. Furthermore, the Authority notes
that while the change in question was permanent, it affected only one
employee in a bargaining unit which is essentially base-wide.
Based on the totality of facts and circumstances presented in this
case, and noting particularly the overall limited nature of the change
in tour of duty and the fact that only a single employee was affected in
an essentially base-wide bargaining unit, the Authority concludes that
the impact or reasonably foreseeable impact of the change on the
conditions of employment of bargaining unit employees was no more than
de minimis. /4/ Accordingly, the Respondent was under no obligation to
negotiate with the Union pursuant to section 7106(b)(2) and (3) of the
Statute, and its implementation of the change in the employee's tour of
duty therefore was not violative of section 7116(a)(1) and (5) of the
Statute. /5/
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-20109 be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 13, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ See also Department of the Air Force, Lowry Air Force Base,
Colorado, 16 FLRA No. 144 (1984).
/2/ As record testimony establishes, this starting time was
significantly earlier than the starting time of the majority of the
employees in the organization.
/3/ Additionally, Member McGinnis indicated in a separate concurring
opinion that he would also consider, in determining de minimis issues,
when the implementation of a change would involve or adversely affect
unit employees in assessing the totality of the facts and circumstances
presented.
/4/ See, e.g., Federal Aviation Administration, 20 FLRA No. 45
(1985); Veterans Administration Medical Center, Phoenix, Arizona, 20
FLRA No. 42 (1985); Department of Housing and Urban Development,
Columbia Area Office, Columbia, South Carolina, 20 FLRA No. 31 (1985);
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 20 FLRA No. 10 (1985).
/5/ In view of this conclusion, the Authority finds it unnecessary to
pass upon the Judge's other findings, especially as to whether or not
the Union properly invoked the services of the Federal Service Impasses
Panel.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Charging Party
Lt. Colonel Gordon B. Finley, Jr.
and Major Lawrence W. Kelly
For the Respondent
Quentin R. Rakestraw, Esq.
For the Charging Party
Claire R. Morrison, 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 the National
Association of Government Employees, Local R7-23 (herein referred to as
the Union) against the Department of the Air Force, Scott Air Force
Base, Illinois (herein referred to as Respondent), the General Counsel
of the Authority, by the Regional Director for Region V, issued a
Complaint and Notice of Hearing on December 14, 1982 alleging Respondent
refused to negotiate in good faith with the Union by changing the hours
of operation of its Battery Shop and the duty hours of employee Robert
Porter without having completed negotiations with the Union concerning
the substance, impact and implementation of the change.
A hearing on the Complaint was conducted on February 17, 1983 at
which time all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been duly considered.
Upon the entire record in this matter, my observations of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein the Union has been the exclusive
collective bargaining representative for various of Respondent's
employees, including Battery Shop employee Robert L. Porter. In
September and October 1981 Respondent reviewed certain of its operations
with a view to improving its maintenance posture. Based upon that
review Respondent concluded that some reorganization should be
effectuated, including changing the hours of operation of the Battery
Shop. At that time the Battery Shop employed one employee, Robert L.
Porter, whose tour of duty was from 3:00 a.m. to 11:30 a.m. Porter's
responsibilities included distributing serviceable batteries and
receiving returned unserviceable batteries used in various operations at
the facility. Respondent determined that by changing the hours of
operation of the Battery Shop by having the shop open between the hours
of 7:00 a.m. and 3:30 p.m., both the availability of batteries during
peak usage hours would be improved and the safety of the Battery Shop
attendant would be enhanced. /1/
Accordingly, by letter dated October 21, 1981 Respondent notified
Porter that effective November 15 the Battery Shop tour of duty would be
changed to 7:00 a.m. to 3:30 p.m. and provided Porter with the reasons
for the change. Porter passed this information on to Union President
Carl Denton /2/ and, by letter to Respondent's Civilian Personnel Office
dated October 23, 1981, Denton requested that Respondent ". . .
negotiate to the fullest extent allowable by law . . ." on the matter.
Denton further suggested that the present working hours be continued
until the parties mutually agreed to change them. Respondent thereafter
requested that the Union submit written proposals on the subject upon
which negotiations could proceed. The change was not implemented and,
by letter dated November 19, 1981 to Respondent, the Union submitted ten
proposals on the subject, including the proposal that Porter's hours
remain as they were.
On December 1, 1981 representatives of Respondent and the Union met
and considered the matter. Management and the Union presented their
views and discussed the change but were unable to come to agreement.
The Union was substantially concerned over the economic impact of Porter
losing the night pay differential he had been receiving, as well as
various environmental aspects of the job, and proposed that the change
in hours be delayed for six months. Management countered that it was
willing to delay the change until after January 1 when a general pay
raise was to take affect but was unwilling to postpone the change beyond
that time. The parties acknowledged they were at impasse and the
meeting was terminated.
On December 23, 1981 Respondent gave the Union a "Notice of Intent"
which, after noting the parties had reached impasse on December 1,
indicated, inter alia, that Porter's hours would be changed on January
10, 1981 to allow him ". . . time to make whatever personal adjustments
he considers necessary." The Union responded on December 23
acknowledging impasse in negotiations but objecting to the intended
change, stating: "We have no choice but to notify the FSIP and the FMCS
that we desire to have their services in this matter." The Union
requested Respondent ". . . maintain the status quo and help us enlist
the help of the FMCS as soon as possible." On that same day Union
President Denton sent the following letter by certified mail to the
Federal Mediation and Conciliation Service (FMCS) noting on the bottom
of the letter that copies were also sent to Respondent and the Federal
Service Impasses Panel: /3/
"The undersigned union representative has been negotiating with
management at Scott Air Force Base, Illinois over the duty hours
of a bargaining unit employee. We are now at impasse and request
that you provide your services as soon as possible to help resolve
the matter."
In addition, on the same day Denton sent the following letter to the
Federal Service Impasses Panel (FSIP), with a copy to Respondent and the
FMCS: /4/
"The undersigned union representative has been engaged in
negotiations with management at Scott Air Force Base, Illinois
over the duty hours of one Mr. Robert Porter. I requested the aid
of the FMCS in this matter and am notifying you of the situation
and the union's desire for management to maintain the status quo
during the impasse procedures."
On January 8, 1982 Respondent sent a letter to the Union which
stated:
"1. Be advised that it is our intent to petition the Federal
Services Impasses Panel for a post implementation decision
regarding the matter of Mr. Robert L. Porter's duty hours. In
this regard, management will abide by the decision. "2. The duty
hours of Mr. Porter will be changed as previously stated in our
letter dated 23 December 1981, Subject: Notice of Intent: Change
of Duty Hours, Battery Shop (375 CAMS/MAF)." (Emphasis in the
original).
At no time after the Union's initial letters to the FSIP or FMCS did
the Union or Respondent have any further communication to or from either
the FSIP or the FMCS.
On January 11, 1982 Respondent changed the hours of operation of the
Battery Shop and the duty hours of employee Robert Porter as previously
announced.
Discussion and Conclusions
The General Counsel and the Union contend that Respondent was
obligated to bargain in good faith with the Union on the substance,
impact and implementation of the change in hours and was precluded from
effectuating the changes upon the Union's invoking the processes of the
FSIP. Respondent denies it was obligated to bargain with the Union
about the substance of the change and contends that it was a management
right under the Statute to effectuate the change and avers that, in any
event, the Union failed to properly or sufficiently invoke the processes
of the FSIP. /5/
It is well settled that starting and quitting times of employees on
an established shift is a condition of employment and an employer
violates the Statute by not affording its employees' exclusive
representative opportunity to negotiate fully on the decision to change
the shift hours. U.S. Customs Service Region V New Orleans Louisiana, 9
FLRA No. 15 (1982) and Internal Revenue Service Los Angeles District, 10
FLRA No. 107 (1982). Accordingly, Respondent's contention to the
contrary is rejected. I further reject Respondent's contention that the
matter was nonnegotiable since it was exercising a management right
under 7106 of the Statute. U.S. Customs Service and Internal Revenue
Service, supra.
The law under the Statute is similarly clear that an agency or
activity may not implement impassed proposals while resolution of such
impassed proposals is pending before the FSIP. /6/ However, I conclude
that the facts herein do not establish that the Union effectively
invoked the processes of the FSIP after impasse in negotiations and
Respondent's notice to the Union on December 23, 1981 that it would
effectuate the change in duty hours in the Battery Shop on January 10,
1982. While the Union's letter of December 23 to the FMCS requested
that agency's services to resolve the impasse, the letter to the FSIP
simply notified the FSIP ". . . of the situation and the union's desire
for management to maintain the status quo during impasse procedures."
Thus, the literal language of the Union's letter to the FSIP did not
request the FSIP to intervene in the matter but, rather, merely supplied
the FSIP with a status report of the situation. Further, the
regulations governing FSIP involvement were not followed if it was the
Union's intent to invoke the processes of the FSIP. Section 2471.3(a)
of the Authority's Rules and Regulations governing requests for FSIP
consideration of an impasse provides that the request include specific
information such as the statements of issues at impasse, the summary
positions of the parties and information regarding the number, length
and dates of negotiation and mediation sessions. However, the Union's
letter of December 23 did not contain such information nor did the Union
furnish this data to the FSIP at any other time. Moreover, the FSIP did
not acknowledge receipt of the Union's letter nor in any way suggest
that it was aware that its assistance was being sought. In such
circumstances I must infer that the FSIP did not conclude that its
processes were, in fact, invoked by the Union's letter of December 23.
In the particular circumstances herein, including the fact that in
the almost 14 months which transpired between the Union's letters to the
FSIP and the FMCS, no further communication was made between the Union
or Respondent and those agencies, /7/ I conclude that after impasse the
Union did not invoke the processes of the FSIP and the matter was not
before the FSIP. Therefore, since after impasse the FSIP's processes
were not invoked Respondent was privileged to implement the change under
consideration herein. Accordingly, in view of the entire foregoing it
is recommended that pursuant to 5 C.F.R. 2423.29(c), the Authority issue
the following:
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-20109 be,
and hereby is dismissed.
(s)---
SALVATORE J. ARRIGO
Administrative Law Judge
--------------- FOOTNOTES$ ---------------
/1/ Respondent was concerned over the safety of the Battery Shop
attendant in that insufficient assistance was available to the attendant
between the hours of 3:00 a.m. and 7:00 a.m. in the vent of an accident
due to the small small number of the other employees working during
those hours.
/2/ Porter was a Union Steward at this time.
/3/ A return receipt indicates that the FMCS received correspondence
form the Union on December 28, 1981.
/4/ The letter was sent by regular mail and no evidence of receipt by
FSIP was provided at the hearing.
/5/ Respondent also contends that it was "contractually obliged" to
effectuate the change. I find such contention to be unsupported by the
language of the contract or any other evidence presented in this case.
Similarly, I reject Respondent's contention that any "overriding
exigency" was present herein which would privilege Respondent to act if
the matter was, in fact, properly before the FSIP.
/6/ U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 5 FLRA No. 39 (1981).
/7/ Neither the General Counsel nor the Union sought to explain why,
if the Union was genuinely seeking FSIP and FMCS intervention in this
matter, it did not communicate with those agencies after the initial
letters of December 23 were sent.