[ v24 p743 ]
24:0743(74)CA
The decision of the Authority follows:
24 FLRA No. 74
U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION
Respondent
and
NATIONAL COUNCIL OF FIELD LABOR
LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 644
AFL-CIO
Charging Party
Case No. 2-CA-40440
DECISION AND ORDER
I. Statement of the Case
This unfair labor practive case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Charging Party (The Union) and by the General Counsel. The Respondent
filed replies to the Charging Party's and the General Counsel's
exceptions. The complaint alleged that the Respondent changed a past
practice and policy affecting unit employees by assigning certain
Industrial Hygienists (IH) to perform administrative duties in the
Philadelphia Area Office (PAO) for scheduled 30-day periods without
notifying the Union and bargaining with it over the impact and
implementation of the change, thereby violating section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the
Statute).
II. Background
The Union is the exclusive representative of a nationwide unit of
employees, including those in the PAO. At the time of the hearing,
there were, among other employees, nine nonsupervisory IHs in the PAO --
four GS-12s and five GS-11s, and two IH supervisors, including Eduardas
Skladaitis. The IHs duties involve conducting industrial hygiene
inspections in a variety of work places to determine compliance with the
Occupational Safety and Health Act (OSHA), 29 U.S.C. Section 651, et
seq. Sometime in June 1984, Skladaitis met with the four GS-12 IHs and
informed them that the office administrative duties had grown to a point
that he could no longer handle them alone; and that each would be
assigned to the office to assist him with such duties for 30-day periods
on a rotating basis. He then discussed such duties; requested the
employees to select the months which they preferred to perform them;
and stated that he would schedule each employee for two rotations
initially and at the end of the eight-month period he would set up
another schedule.
Shortly thereafter, the four IHs were given copies of a June 7, 1984
memorandum which described the duties to be performed during the
assignment, including the supervisor's expectations with respect to the
employees' processing of their regular inspection work. The assignments
began on June 11, 1984 and ended around December 1984 when a second IH
supervisor was hired. Most of the IHs were rotated only once and some
did not serve an entire 30-day rotation. The Union was not notified of
these assignments, and learned of them after the implementation date.
III. Judge's Decision
The Judge found that the assignments constituted a change in past
practice and policy concerning the performance of administrative duties
since some of the required duties had never been performed by the four
IHs; others had been performed infrequently; and the employees had
never been required to spend such an extended period performing duties
not directly related to the investigation of their assigned cases. The
Judge also noted areas where the Union identified potential adverse
impact.
The Judge applied the factors set out in Department of Health and
Human Services, Social Security Administration, Region V, Chicago,
Illinois, 19 FLRA No. 101 (1985) and concluded that the impact or
reasonably foreseeable impact of the change on the unit employees was no
more than de minimis. In so concluding, he noted that the assignemnts
did not change the employees' normal duties, office location, space,
hours, or benefits; were made to cover growing administrative duties in
the PAO; were not permanent; and affected only four employees in a
nationwide unit. He further noted that it was not clear from the record
that similar changes were ever negotiated at the area office level.
IV. Positions of the Parties
The General Counsel desagrees with the Judge's conclusion and
contends that the evidence and the Judge's findings of fact compel the
conclusion that the reasonably foreseeable impact of the change on the
unit employees' conditions of employment was more than de minimis. The
Union essentially contends that the de minimis test applied by the Judge
is inconsistent with the Statute and its legislative history, and
therefore, requests the Authority to reconsider that test.
Alternatively, it requests the Authority to adopt a "demonstrable
present or future impact" test. The Union argues that the change in
this case had an "extensive demonstrable effect on unit employees," as
well as a "foreseeably demonstrable effect"; therefore, the
Respondent's action constitutes a violation requiring, among other
things, a status quo ante remedy.
The Respondent supports the Judge's Decision. It further argues,
with regard to the General Counsel's contention, that even assuming the
Authority found that the change was more than de minimis at the time it
was instituted, the complaint should be dismissed because (1) the
rotations were terminated prior to the hearing, (2) no adverse impact
resulted, and (3) the subjects the Union would have negotiated (leave,
training and the impact on performance evaluations) were covered by the
parties' national agreement.
V. Analysis
In Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de
minimis standard previously used to identify changes in conditions of
employment which require bargaining. We stated that in order to
determine whether a change in conditions of employment requires
bargaining, we would carefully examine the pertinent facts and
circumstances presented in each case; and that in examining the record,
principal emphasis would be placed on such general areas of
consideration as the nature and extent of the effect or reasonably
foreseeable effect of the change on conditions of employment. We also
stated that equitable considerations would be taken into account in
balancing the various interests involved; that the number of affected
employees and the parties' bargaining history would be given limited
application; and that the size of the bargaining unit would no longer
be applied.
Applying the revised standard to this case, we find based on the
facts and circumstances that the nature and extent of the change gave
rise to a duty to bargain. In this regard we note that the duration of
the change was initially indefinite; that the change required the
employees to perform new duties, and others which they had performed
only on an infrequent basis; and that it required the employees to
spend an extended period, which had never been required before,
performing functions not directly related to their case investigations.
We also note, as found by the Judge, that the Union identified areas of
potential adverse effect involving training, leave, and promotional
opportunities, and was concerned that the change could decrease the time
for employees to accomplish their normal inspection duties. The Union
also argued that the change could cause employees to miss their assigned
due dates, and would interfere with their timely writing of inspection
reports which could affect their performance evaluations. In view of
these circumstances, the assignment of administrative duties in this
case resulted in an obligation to bargain. Further, noting that the
Union was not notified of the change and that there is no evidence to
show that it clearly and unmistakably waived its right to negotiate over
the impact and implementation of such change, we find no merit to the
Respondent's contention that the complaint should be dismissed because
certain matters that the Union would have negotiated were covered by the
parties' national agreement.
Therefore, we find the the Respondent violated section 7116(a)(1) and
(5) of the Statute, as alleged.
VI. Remedy
The Union requests a status quo ante order to remedy the unfair labor
practices by the Respondent. We conclude that such a remedy is not
warranted in the circumstances of this case where the evidence shows
that the assignments were discontinued prior to the hearing in this
case. Thus, in these circumstances where a status quo ante remedy would
be meaningless, a prospective bargaining order should fully remedy the
refusal to bargain violations. /*/ See Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland, 17 FLRA
594 (1985).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record, including the parties'
contentions, and adopts the Judge's findings and conclusions only to the
extent consistent with our decision above.
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and Section 7118 of the Statute, it is hereby ordered that the
Department of Labor, Occupational Safety and Health Administration:
1. Cease and desist from:
(a) Implementing a change in the working conditions of its employees
in the Philadelphia Area Office concerning the assignment of
administrative duties without first notifying the National Council of
Field Labor Locals, American Federation of Government Employees, Local
644, AFL-CIO, the employees' exclusive bargaining representative, and
affording it an opportunity to negotiate with respect to the procedures
to be observed in implementing such changes and concerning appropriate
arrangements for employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain with the National Council of Field Labor
Locals, American Federation of Government Employees, Local 644, AFL-CIO,
the employees' exclusive bargaining representative, with respect to
procedures and appropriate arrangements for employees adversely affected
by the implementation of the change concerning the assignment of
administrative duties.
(b) Post at its Philadelphia Area Office 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 Area
Director and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places where Notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that said
Notices are not altered, defaced, or covered by any other material.
(c) Purcuant 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. December 22, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUNAT 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 implement a change in the working conditions of our
employees in the Philadelphia Area Office concerning the assignment of
administrative duties without first affording the National Council of
Field Labor Locals, American Federation of Government Employees, Local
644, AFL-CIO, the employees' exclusive bargaining representative, an
opportunity to negotiate with respect to the procedures to be observed
in implementing such change and concerning appropriate arrangements for
employees adversely affected thereby.
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
Statute.
WE WILL, upon request, bargain with the National Council of Field
Labor Locals, American Federation of Government Employees, Local 644,
AFL-CIO, our employees' exclusive bargaining representative, with
respect to procedures and appropriate arrangements for employees
adversely affected by the implementation of the change concerning the
assignment of administrative duties.
(Activity
Dated: . . . . . .
By: . . . . . . . Philadelphia
Area Director
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 3700, New York, NY 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 2-CA-40440
U.S. DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION
Respondent
and
NATIONAL COUNCIL OF FIELD LABOR LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 644 AFL-CIO
Charging Party
Barbara S. Liggett, Esquire
For the General Counsel
Mark Maxin, Esquire
For the Respondent
Before: ELI NASH, Jr.
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on October 31,
1984 by the Regional Director for the Federal Labor Relations Authority,
New York, New York, a hearing was held before the undersigned on
February 19, 1985.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It resulted from a
charge filed on August 1, 1984 by the National Council of Field Labor
Locals, American Federation of Government Employees, Local 644, AFL-CIO,
(herein called the Union) against U.S. Department of Labor, Occupational
Safety and Health Administration (herein called the Respondent).
The Compalint alleges that the agency violated sections 7116(a)(1)
and (5) of the Statute by changing a past practice and policy affecting
bargaining unit employees by assigning GS-12 Industrial Hygienists to
perform administrative duties in its Philadelphia Area Office for
scheduled 30-day periods.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the follwing findings and conclusions:
Findings of Fact
The Union is the exclusive representative of a nationwide unit of
employees, including employees of its Respondent's Philadelphia Area
Office. The Charging Party is a constituent local of the Union. A
collective bargaining agreement, effective August 17, 1978, is currently
in effect between the Union and Respondent.
The Philadelphia Area Office supervisory staff is headed by Area
Director Bernard Dillon and five supervisors in 3 different areas: two
industrial hygienist supervisors, two safety supervisors, and an office
management supervisor who is responsible for the clerical staff ahd who
report to Dillon. Eduardas Skladaitis and Chris Komis are the
industrial hygienists supervision. In addition to the supervisors there
were at the time of the hearing nine nonsupervisory industrial
hygienists in the office: four GS-12s and five GS-11's.
Sometime in early June 1984, Skladaitis called a meeting of the four
GS-12 industrial hygienists in the office and informed them that the
office administrative duties had grown to a point where he could no
longer handle all the duties alone. Skladaitis told the GS-12's that
they would be assigned, on a rotating basis, to be in the office for
30-day periods to assist him in performing these various administrative
duties. Skladaitis then discussed, in general terms, the administrative
functions he was assigning to them. Skladaitis requested that the
employees select the months which they preferred to perform their
administrative assignments, and said that he would schedule two
rotations for the time being, and then at the conclusion of the eight
month period, set up the schedule again.
Shortly thereafter, probably a day or two after the meeting, the four
were given copies of a memorandum dated June 7, 1984, which established
precise duties to be performed during the administrative assignments to
the office including, Skladaitis' expectations with respect to the
employees' processing of their regular inspection work. The memorandum
stated in part that,
(n)o field work will be required during these periods unless an
emergency situation should occur. You are expected to review your
open assignments prior to these periods to ensure that any
necessary field work is performed before your assignment to the
office.
The memorandum also provided that "(a)s time permits, you should also
work on open case files requiring no field activity." It also provided
that the GS-12 assigned to the office would serve as an acting
supervisor in Skladaitis' absence.
The assignments by Skladaitis which were reaffirmed in his June 7,
1984 memorandum, constituted a change in past practice and policy
concerning the performance of administrative duties since some of the
required duties had never been performed by the four GS-12 industrial
hygienists. /1/ Other duties had been performed only on an infrequent
basis, at Skladaitis' request. In addition, the GS-12's had never been
required to spend such an extended period of time performing functions
not directly related to the investigation of the case assigned to them.
However, the sole administrative duty that none of the 4 had performed
was tracking which involved following the development of a case to
determine its status until final abatement is reached. This involved no
more than 5 to 10 percent of the duties to be performed during rotation.
Thus, the testimony of two industrial hygienists Barry Scott and
Pauline Caraher was that they had not performed certain duties listed in
the June 7 memorandum.
On June 11, 1984 Respondent started the administrative assignment
rotations. The evidence reveals that the Union was not notified of
these administrative assignments. Union President Richard Clougherty,
who is one of the Union officials designated to received notice of
change in the Philadelphia Area Office, learned of the change in
administrative assignments in the Philadelphia office only after the
implementation date of the change. Then he learned of the changes only
when another Union officer, James Weyrauch, telephoned Clougherty to
inquire whether the Union had been notified of changes affecting
Philadelphia industrial hygienists. Weyrauch had himself learned of the
administrative duty change from the affected GS-12's, who showed him
copies of the June 7, 1984 memorandum and wanted to know if the Union
was aware of the change. After speaking with Weyrauch and reviewing a
copy of the June 7, 1984 memorandum, Clougherty determined that the
change in assignments announced by Skladaitis was likely to have an
adverse impact on the affected employees, and filed the instant unfair
labor practice charge.
The administrative duty rotations ended around December 1984 because
a second industrial hygienist supervisor had been selected, thereby,
eliminating Skladaitis' problems. Consequently, most of the industrial
hygienists were rotated only once and even then some did not serve an
entire 30-day rotation.
The Union apparently foresaw a number of areas of potential adverse
impact. The 30-day rotation among only four employees it felt would
result in employees spending 90 days per year on administrative duties,
thereby, eliminating a significant portion of the time which had been
available to GS-12's to accomplish their normal inspection duties. The
Union's concern was that while the performance of administrative duties
is an element of the performance standards for the affected employees,
it is a non-critical element. The Union also was concerned that
employee evaluations might be negatively affected by the decrease in
inspections which appeared to be an unavoidable consequence of spending
so much time on non-inspection duties. While employees do not have
individual quotas for numbers of inspections they are required to
complete in a year, the Philadelphia office does have such a quota, of
which employees are constantly reminded throughout the year. In
addition, Respondent publishes a newsletter giving an average number of
inspections per industrial hygienist on both a region-wide and
nation-wide basis. The Union feared, based on past experience, that if
the office did not meet its goals, management would look for employees
who had not contributed the necessary number of inspections. The Union
also felt that the decrease in numbers of inspections performed could
affect employees' performance evaluations because the standards allow
for only one report with deficiencies per twenty-five consecutive
inspections. Thus, the Union feared that as the number of inspections
decreased, employees would be penalized disproportionately for errors.
In addition to the adverse impact anticipated as a result of the
decreased amount of time available for inspection activities, the Union
anticipated adverse impact from confining employees to the office for
the extended 30-day periods. In this regard, a critical element of the
GS-12 performance standards in "Time Utilization." Here each case
assigned to an industrial hygienist is given a due date by Skladaitis.
The "Time Utilization" element allows for only five missed due dates per
evaluation period. The concern here being that employees serving their
30-day administrative assignments would be unable to complete the work
necessary to submit their cases to Kskladaitis for review by the due
dates. There was no apparent modification of due dates as a result of
the assignment of the administrative duties. Contrariwise, the language
of the June 7, 1984 memorandum is that employees were to plan their
field work so that inspections were completed prior to the
administrative assignments, and report writing could during the
assignments "as time permits." Although all witnesses testified that the
administrative duties were in fact too extensive to allow for time to
write up inspection reports, this statement in the June 7, 1984
memorandum raised a possibility that employees would be held accountable
for completion of their open inspection cases while juggling new
administrative duties. Apparently, Skladaitis sought to dispel any
adverse consequences for assuming such administrative duties by talking
to hygienists such as Caraher. However, no assurances were given in
writing. In addition, Article 43, Section 12 of the parties' collective
bargaining agreement seemingly requires that performance appraisals make
allowance for factors beyond the control of the employee.
Besides these concerns the Union saw an impact of the 30-day
assignments on the critical element of "Time Utilization" as an increase
in the average report preparation time compared to the average on-site
inspection time. Therefore, if an employee completed an on-site
inspection and then began serving a 30-day administrative assignment
during which he or she was forced to put the inspection aside and attend
to other duties, the eventual report writing time would be longer than
if that employee had been allowed to write up the case immediately after
completion of the inspection, thereby preventing the employee from
meeting that critical element.
Finally concern about training; the impact of the 30-day assignments
on annual leave schedules or sick and emergency leave; and a concern
that the rumored second supervisory industrial hygienist position would
be announced and filled before all GS-12's had an opportunity to serve
in this administrative function, giving an advantage in the category of
experience to the GS-12's who had completed the earlier rotations.
Discussion and Conclusions
Respondent's principal defense in this matter is that the impact of
the assignment of administrative duties herein was de minimis. In a
spate of cases since the hearing in this matter, the Authority has dealt
with the question of whether a 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. See Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA
827 (1985); Department of the Treasury, U.S. Customs Service, 19 FLRA
No. 128, 19 FLRA 1155 (1985); United States Department of the Treasury,
Internal Revenue Service, Chicago, Illinois, 20 FLRA No. 6, 20 FLRA 46
(1985); Bureau of Field Operations, Social Security Administration, San
Francisco, California, 20 FLRA No. 9, 20 FLRA 80 (1985); Federal
Aviation Administration, Washington, D.C.; 20 FLRA No.11, 20 FLRA 112
(1985); Department of Housing and Urban Development, Columbia Area
Office, Cloumbia, South Carolina, 20 FLRA No. 31, 20 FLRA 233 (1985);
U.S. Department of Housing and Urban Development, Washington, D.C. Area
Office, 20 FLRA No. 38, 20 FLRA 374 (1985); Federal Aviation
Administration, 20 FLRA No. 45, 20 FLRA 420 (1985); Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA No. 52, 20 FLRA 474 (1985); Environmental Protection Agency,
Region II, 20 FLRA No. 76, 20 FLRA 644 (1985).
In the above cases the Authority set out 5 factors it would use in
determining whether a change was more than de minimis. Those factors
are: 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; 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. The Authority also noted that
a determination as to whether the exercise of a management right under
section 7106(b)(2) and (3) will not necessarily require in every case a
determination or to whether the exercise of the management right results
in a change in a condition of employment having an impact on bargaining
unit employees which is more than de minimis, especially where there is
no indication that the nature and degree in impact is at issue in the
case. Here Respondent exercised a management right when it assigned
administrative work to the GS-12's on a temporary basis. Therefore, the
nature and degree of impact must be considered under criteria
established by the Authority. /2/
In all the circumstances of this case, applying the suggested factors
it must be found that the impact or reasonably foreseeable impact on
conditions of employment of unit employees caused by requiring four unit
employees to perform administrative and supervisory duties assigned to
them was no more than de minimis. It is noted that the administrative
duties assigned to these employees did not change their normal duties of
which they were basically relieved during the 30-day period in which
they rotated into the administrative assignments. Nor did it change
their location, office space, hours or benefits. In addition, the
assignments were made to cover growing administrative duties in the
Philadelphia Area Office for a temporary period. The duration of the
change was brief, lasting approximately six months although initially it
appeared that it would have been in effect for a much longer period of
time. time. However, there is no indication from the record that the
change was ever intended to be permanent. It appears that, at best, the
assignment of administrative duties was only intended to last until a
new supervisory employee was selected. As to the number of employees
affected and the size of the bargaining unit, only four employees in a
nationwide unit, which included many industrial hygienists, were
required to perform these administrative duties on a rotating basis.
Furthermore, there is no evidence to indicate that these administrative
assignments would have been required on a wider scale or on a permanent
basis, either among Skladaitis' employees or other employees activity
wide. Finally, it is not clear from the record that analogous changes
were ever negotiated at the area office level.
Based on the foregoing, and noting the slight nature of the change
and the small number of employees affected, it is found that the impact
or the reasonable foreseeable impact of the change on unit employees'
conditions of employment in this matter was no more than de minimis.
Accordingly, it is found that Respondent was under no obligation to
notify the Union and afford it an opportunity to request bargaining
pursuant to section 7106(b)(2) and (3) of the Statute. It is therefore,
recommended that the Authority adopt the following:
ORDER
IT IS ORDERED that the Complaint in Case No. 2-CA-40440 be, and it
hereby is, dismissed.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: January 22, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Skladaitis and Dillon testified that the GS-12's had previously
performed all of the listed administrative duties when serving as acting
supervisor. Skladaitis admitted however, that he knew training was
necessary before employees could be expected to perform the duties
listed in his June 7, 1984 memorandum. Skladaitis further admitted that
the most extended period of time for which an employee had ever been
assigned as acting supervisor was from several days to a week. He
further acknowledged that an employee serving as acting supervisor would
not be expected to perform the full range of supervisory duties.
(2) Member McGinnis, in a separate concurring opinion would have, in
addition to the listed factors, utilize a sixth factor in determining de
minimis issues.