AIR FORCE MILITARY TRAINING CENTER, LACKLAND AIR FORCE BASE, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1367 Charging Party Case No. 6-CA-10385
Major Robert L. Woods Mr. Gregorio Flores For the Respondent Joseph T. Merli, Esquire For the General Counsel Mr. Benito Garcia For the Charging Party Before: WILLIAM B. DEVANEY Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Services Labor - Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. 7101, et seq. 1 and the Rules and Regulations issued
thereunder, 5 C.F.R. 2423.1, et seq., concerns Respondent's
unilateral transfer of water softening equipment work from its
Heating Systems Shop (hereinafter "Heat Shop") to its Water and
Waste Water Shop (hereinafter "Water and Waste Shop") without
negotiating, as requested, with the Union on the impact and
implementation of the change. Respondent asserts that there was no
obligation to bargain because: (a) while there was a change of
working conditions, there was no change of conditions of
employment, or (b) if there were a change of conditions of
employment, the impact on bargaining unit members was, at most, de
minimis. For reasons fully set forth hereinafter, I find that
Respondent changed conditions of employment; that the impact was
more than de minimis; and that Respondent violated 16(a)(5) and (1)
of the Statute.
This case was initiated by a charge filed on January 28, 1991 (G.C.
Exh. 1(a)). The Complaint and Notice of Hearing issued on September
30, 1991 (G.C. Exh. 1(c)), and pursuant thereto a hearing was duly
held on December 10, 1991, in San Antonio, Texas, before the
undersigned. All parties were (-SOUTH-)ed at the hearing, were
afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity
to present oral argument which each party waived. At the conclusion
of the hearing, January 10, 1992, was fixed as the date for filing
post-hearing briefs, which time was subsequently extended by order
dated January 6, 1992, on motion of the Respondent, to which the
other parties did not object, for good cause shown, to February 10,
1992. Respondent and General Counsel each timely mailed an
excellent brief, received on, or before, February 11, 1992, which
have been carefully considered. Upon the basis of the entire
record. 2 I make the following findings and conclusions:
FINDINGS
1. The American Federation of Government Employees, AFL - CIO,
Local 1367 (hereinafter, "Union") is the exclusive representative
for a unit of appropriated fund civilian employees appropriate for
collective bargaining at the Air Force Military Training Center,
Lackland Air Force Base, Texas (hereinafter, "Respondent")(G.C.
Exh. 1(c) and (d)).
2. Respondent's properties and facilities are maintained by its
3700 Civilian Engineering Squadron (hereinafter,"CES"). The CES has
been in existence for approximately two years and is composed of a
number of shops, including the Heat Shop and the Water and Waste
Shop (Tr. 15, 40, 64). Prior to this, Respondent's properties and
facilities were maintained by the San Antonio Real Property
Maintenance Agency (hereinafter "SARPMA"). SARPMA was a centralized
Civil Engineering Agency which maintained all of the various DoD
facilities throughout San Antonio, including Respondent's, as well
as DoD Reserve facilities throughout South Texas. SARPMA was an
industrially funded organization which had the unique authority to
hire based upon its fluctuating work load without being subject to
normal manning requirements and hiring freezes. SARPMA was
disestablished in 1989-1990 and fragmented into smaller units
located at the various military installations throughout San
Antonio. SARPMA employees then became employees of these new units
without, for the most part, any loss of grade or pay. When SARPMA
was disbanded, the CES was reactivated and assumed responsibility
for maintaining Respondent's properties and facilities.
3. Under SARPMA, water softener service and maintenance had been
performed by the Heat Shop because most of the softeners were
co-located with boilers, as the water has to be softened before
entering the boiler to prevent the build-up of scale in boiler
tubes (Tr. 40), and, of course, maintenance of boilers is the
primary function of the Heat Shop. This practice continued after
the transition from SARPMA to CES until it was noticed by the
Manpower Management Unit, which audits CES, as well as all other
units assigned to Respondent, to insure compliance with manning
authorizations, in the late summer of 1990. Manpower suggested
that, in accordance with their standards, this work more
appropriately belonged in the Water and Waste Shop (Tr. 108-113).
Accordingly, in October 1990, Respondent informed the employees in
the Water and Waste Shop that they would take over the servicing
and maintenance of the water softeners (G.C. Exhs. 1(c) and (d),
Par. 13; Tr. 15, 64-65).
4. Maintenance and service of the water softening equipment
involves several different jobs. One service operation requires the
daily testing of a sample of water at each softener to determine
the degree of softness of the water. This is done by completing a
water analysis using a simple test kit. This test takes only 3-4
minutes to complete (Tr. 41, 42, 46).
Another service operation is the regeneration of each softener, an
operation which must be performed every 3-4 days. This involves
backwashing the softener and takes an hour and a half to two hours
(Tr. 45-46); however, while the softeners are being backwashed the
employee can do other work in the vicinity (Tr. 52). The manual
regeneration process has been, and is, in the process of being
automated and at the time of the hearing about 75% had been
automated with the remainder to be converted by the end of fiscal
year 1993 (Tr. 113).
A further service operation is the addition of salt to the brine
tanks of each softener. Each brine tank has a lid at the top which
is about five feet from the floor (Tr. 47). Salt comes in 80 lb.
bags and must be lifted to the top of the tank and dumped into the
tank. On an average day, an employee servicing the water softeners
lifts and dumps from 20 to 30 bags, however, the number may, on
occasion, be as high as 40 (Tr. 46, 47, 68).
The 80 lb. bags of salt are picked up at the Civil Engineering
Compound where they are stored in bulk. The bags are loaded onto a
truck and taken to the location of each water softener where they
are unloaded and hand carried, at places as far as 60 feet, and
stacked on a pallet near the softener. 3 Employees perform this
replenishing operation at least twice a week, sometimes for two
days at a time (Tr. 83, 84).
A similar procedure involves checking the zeolite level in the
filters and, when necessary, adding zeolite to the tank. This is a
two man operation, with one man handing the bag of zeolite to the
other who pours it into the man hole (Tr. 49).
In addition to the various servicing functions there is scheduled
annual maintenance, performed on a programmed schedule and carried
out twice a week (Tr. 49, 50).
5. In October, 1990, as noted above, Respondent informed the
employees of the Water and Waste Shop that they would take over the
servicing and maintenance of the water softening equipment. Mr.
Harold Heiman, an employee of Water and Waste, first was trained by
accompanying Heat Shop employees as they serviced and performed
scheduled maintenance on the water softeners and then he trained
the other employees of the Water and Waste Shop (Tr. 69). Despite
some ambiguity 4 since the date is not in issue, it is assumed that
the date of implementation was on, or about, December 10, 1990, as
Respondent stated in its memorandum of January 10, 1991, to Mr.
Benito Garcia (G.C. Exh. 4). The Union soon learned of the change
and, by memorandum dated January 3, 1991, addressed to Colonel
Bryan, Commander of CES, asked that Respondent revert to the status
quo ante, "...until such time as Local 1367 has had an opportunity
to consult and or negotiate the impact and implementation of this
change." (G.C. Exh. 3). The Union in its letter raised some of its
concerns about the change including: accuracy of position
descriptions, promotion potential, training and safety hazards
caused by lifting and handling the 80 pound salt bags.
6. Respondent replied by memorandum dated January 10, 1991 (G.C.
Exh. 4), in which it conceded the change, implemented in mid -
December, 1990, but asserting there had been no, changes to working
conditions ... as a result of changes in water testing duties....";
that it saw no negotiable impact on employees; that the elimination
and addition of these duties had no impact on promotion
opportunities; that training of two Water and Waste employees had
taken place and these employees would train the eight other
employees in the unit; that position descriptions will reflect
permissible lifting requirements; and that appropriate position
descriptions will be changed as necessary. Respondent concluded its
memorandum with the statement,
"5. Although we do not agree that negotiable changes have resulted
from changes in duties ... we are willing to meet our obligations
if you can specifically identify them and can submit specific
written proposals regarding them within 10 calendar days after
receipt of this letter." (G.C. Exh. 4).
7. At the time the duties associated with servicing and maintaining
the water softeners were transferred to the Water and Waste Shop,
it had eleven employees including a foreman (Tr. 134, 136). 5
Sometime after the transfer, a manpower study found that Water and
Waste was authorized only seven employees (Tr. 126) and,
accordingly, four employees were laid off in a RIF (Tr. 135).
Mr. John Patterson, foreman of the Water and Waste Shop (Tr. 132)
testified that the transfer of water softener work did not change
the grade structure of any of his employees (Tr. 136); that their
position descriptions required no change because their duties
already specified water treatment and water softeners are a type of
water treatment (Tr. 137); and that lifting and handling salt bags
reflected no change in lifting requirements because they already
regularly handle chlorine cylinders (Tr. 118-120, 121, 139), which
weigh in excess of 250 pounds (Tr. 139), and sodium fluoride
containers, which weigh 125 pounds (Tr. 139).
8. The number of employees in the Heat Shop was not changed as a
result of the transfer of the water softener work (Tr. 116) as
water softener work represented less than one percent of the work
of the Heat Shop which, inter alia, services some 1500 to 2000 heat
sources (Tr. 114) as well as trouble shooting, installing, and
maintaining a broad array of other machinery and equipment (G.C.
Exh. 2).
9. The primary effect of automation has been, and will be, that
employees will not have to open and close valves manually in order
to regenerate the water softeners (Tr. 130); but salt and zeolite
must still be added; gauges checked to make certain they are
working and either calibrate them or replace them if they are not;
water must be tested daily to determine degree of softness; and
annual maintenance performed (Tr. 123, 124, 128, 129, 130,
145).
CONCLUSIONS
Respondent has advanced an innovative contention but one which has
no application to this case. It certainly is true that the work of
servicing and maintaining the water softeners did not change and
under different circumstances Respondent might be correct, e.g., if
employees in job A, in a reduction in force through application of
RIF procedures, moved to job B, their jobs (working conditions)
would change but the agency would have made no change whatever in
conditions of employment of job B. In any event, that is not what
happened here. In this case, as Respondent readily admits
(Respondent's Brief pp. 4-5), it took from the Heat Shop those
duties associated with servicing and maintaining the water
softeners and transferred those duties to the Water and Waste Shop,
and it did not notify the Union of this action. Obviously,
Respondent by its action changed conditions of employment in the
Heat Shop by removing work it had long performed and changed
conditions of employment in the Water and Waste Shop by adding new
work. When management changes conditions of employment, absent a
clear and unmistakable waiver, it gives rise to an obligation to
bargain before those changes are implemented. National Weather
Service Employees Organization, 37 FLRA 392, 395 (1990). Of course,
where, as here, the decision to change a condition of employment
constitutes an exercise of a management right under 6 of the
Statute, the agency is obligated only to bargain over the impact
and implementation of the decision. National Weather Service
Employees Organization, supra; Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland and
Social Security Administration, Jamestown, New York District
Office, Jamestown, New York, 34 FLRA 765, 770 (1990). However, an
agency is not obligated to bargain over the impact and
implementation of a decision to change conditions of employment if
the effect of the change on working conditions is de minimis,
National Weather Service Employees Organization, supra, 37 FLRA at
396, Department of Health and Human Services, Social Security
Administration, 24 FLRA 403, 407-409 (1986).
Although removal of duties changes conditions of employment and
gives rise to an obligation to bargain, United States Department of
Defense, Department of the Army, Headquarters, Fort Sam Houston,
Texas, 8 FLRA 623, 625, 628-639 (1982), the record does not show
that the removal of water softener duties from the Heat Shop had
more than a de minimis effect on the employees of the Heat Shop.
Thus, there were no lay offs (Tr. 55), no loss of overtime (Tr.
55), no loss of promotional opportunity, no change of performance
standards and no change in grades (Tr. 56, 116-117). Indeed, that
water testing was not grade controlling was shown by: (a) the
simplicity of the test procedure (Tr. 138), and, (b) the fact that
it was transferred to lower graded employees (Tr. 20, 143). Mr. Leo
Marshall's testimony that water softener work had constituted less
than one percent of the work of the Heat Shop was not refuted.
While Mr. Benito Garcia, President of the Union, testified that the
Union was concerned that if "all these duties" were lost in the
Heat Shop they (management) could afford to have a reduction in
force (Tr. 20) and Mr. Velasquez testified that taking away the
water softeners and they (management) are also installing chemical
pumps which will replace Heat Shop employees' duty to add chemicals
in boilers, he was concerned, "Then what is going to happen to
justify our WG-10 grade"? (Tr. 51), these inchoate fears do not
constitute, even with the perception of hindsight, reasonably
foreseeable impact on the conditions of employment of Heat Shop
employees. Consequently, because of the scant attention directed to
Heat Shop employees, the record fails to establish that the
transfer of the water softener work from them had more than a de
minimis effect on them.
But as to the Water and Waste Shop employees, contrary to
Respondent's assertions (Respondent's Brief, pp. 10-11), the effect
on their conditions of employment was obvious, immediate and
substantial. This was work the Water and Waste Shop had never
performed; it required that they be trained; initially two of Water
and Waste's eleven employees devoted full time to the performance
of water softener work (Tr. 65, 66, 137-138) and all employees in
Water and Waste have been trained to do the work (Tr. 138);
currently, the Water and Waste Shop has seven employees, including
the Foreman, of whom five are WG-9 water plant operators and one is
a WG-8 maintenance man (Tr. 146, 147), and one WG-9, designated
"water softener operator" (Tr. 147), on the day shift regularly
does water softener work full time and when salt is to be hauled to
the various locations where it is stored close to the softeners,
either the day shift operator or the Foreman, Mr. Patterson, will
assist (Tr. 147). With one WG-9 operator on each of three shifts
and one WG-9 on the day shift as water softener operator (the fifth
WG-9 serving as relief for those on leave, etc. (Tr. 134, 146),
water softener work regularly constitutes more than 20% of the work
of the Water and Waste Shop, with one employee full time and one
other regularly part time. Clearly, introduction of new duties for
Water and Waste employees, which make up more than 20% of the work
of that Shop, made a very substantial change in the duties of the
Water and Waste Shop employees. Moreover, all employees had to be
trained to perform the water softener work because with quarterly
shift rotation (Tr. 134), various employees will be required to
serve as water softener operators.
Moreover, as noted, this was new work which the Water and Waste
Shop had never performed and it simply is no answer, as Respondent
has asserted (Respondent's Brief, p.8), that they, "...had always
worked with equipment that processed water...". Even if the same
employees perform the same work, the employer's introduction of new
equipment may give rise to an obligation to bargain over changes in
conditions of employment resulting from the new equipment. U.S.
Department of Defense, Department of the Air Force, Air Force
Logistics Center, Tinker Air Force Base, Oklahoma, 25 FLRA 914, 917
(1987) (degreaser for engine parts). Here, Respondent radically
changed the duties of the Water and Waste Shop employees. First, as
noted above, new duties were introduced for which they had to be
trained. Second, the new duties required the daily handling of 20
to 30, sometimes as many as 40, bags of salt each weighing 80
pounds. This meant carrying the bags to the water softeners,
raising the bags about head high and dumping them into the brine
tanks of the softener. Periodically, at least twice a week (Tr. 83,
84), the supply of salt stored near each softener must be
replenished. In short, from 1600 pounds to 2400 pounds of salt per
day must be poured into brine tanks and about two to three tons of
salt moved from the Civil Engineering Compound and palletized near
each water softener each week. Nor is it an answer, as Respondent
asserts (Respondent's Brief p. 8), that they already had to lift
heavy objects, specifically, here, the handling of chlorine
cylinders, which weigh in excess of 250 pounds, and sodium fluoride
containers, which weigh 125 pounds, since the chlorine and sodium
fluoride cylinders are rolled, not picked up from the floor (Tr.
148), whereas, the salt bags and, to a much less frequent extent,
bags of zeolite, must be lifted, carried, and manually hoisted to
the top of appropriate tanks of the water softeners. Lifting on the
scale required was a very different task than the employees of the
Water and Waste Shop had ever performed and the lifting involved a
health hazard which Heat Shop employees had encountered (Tr. 57)
and which Water and Waste Shop also soon encountered (Tr. 82).
Respondent recognized the health problem by ordering back braces
for the Water and Waste Shop employees shortly after the transfer
of the water softener work (Tr. 90, 149). Accordingly the Union was
wholly correct in its concern about safety hazards caused by
lifting and handling the 80 pound salt bags.
Mr. Velasquez testified that water softener duties had been a
critical element on his performance appraisal as a boiler operator
(Tr. 56) and, since this work will constitute about 20% of the work
of the Water and Waste Shop, it must be assumed that this will be a
critical element of the performance appraisal of Water and Waste
Shop employees. Certainly, the Union was wholly correct in its
concern about the accuracy of position descriptions following
transfer of the water softener work.
Finally, Respondent admitted that all Water and Waste employees had
to be trained which, actually, concedes the Union's concern and
interest in the training of these employees. Again, it is no
answer, as Respondent asserted in its reply of January 10, 1991, to
the Union's request to negotiate (G.C. Exh. 4), that it had already
trained two employees and these two will train the eight other
employees in the unit.
Because Respondent changed the conditions of employment of the
Water and Waste Shop employees, the Union was entitled to negotiate
the impact and implementation, including training, before the
change of conditions of employment were implemented. The impact of
the change on conditions of employment was very substantial and
affected all employees in the Water and Waste Shop. Respondent's
assertion that the changes of conditions of employment were, at
most, de minimis, is wholly contrary to the record and is rejected.
Accordingly, Respondent violated 16(a)(5) and (1) of the Statute by
unilaterally transferring the work of maintaining and servicing
water softeners from the Heat Shop to the Water and Waste Shop
without providing the Union with prior notice and an opportunity to
negotiate over the impact and implementation of the changes in
conditions of employment.
General Counsel requests a status quo ante remedy. I have
considered carefully the Authority's comments in Federal
Correctional Institution, 8 FLRA 604, 606 (1982), and conclude that
such a remedy would not be appropriate in this case. I agree with
General Counsel that the record shows no reason that a status quo
ante remedy would disrupt or impair Respondent's operations. But
this is only one factor to be considered. Another, and the most
important as concerns this case, is,
"(4) the nature and extent of the impact experienced by adversely
affected employees; "(id, 606).
The record shows that the Water and Waste Shop was over-staffed
when the transfer was made, so much so that four employees were
laid off sometime after the transfer; and that, with one WG-9
working full time as water softener operator, it would be
over-staffed by at least one employee if the water softener work
were taken from the Water and Waste Shop, as it necessarily would
be if a status quo ante order were granted. Respondent would be
hard-pressed to justify retaining the services of a "water softener
operator" in the Shop if it had no water softener work. Thus, a
status quo ante order would place in jeopardy the job security of
at least one employee in Water and Waste.
The transfer of work to Water and Waste gave that Shop much needed
work. Initially, it provided full time employment for two employees
and continues to provide full time employment for one employee and
part time employment to one, or more, employees in the Shop. The
adverse impact of Respondent's unilateral action was that the Union
had no opportunity to bargain over safety concerns, training, and
job descriptions. These were, and are, important considerations;
but they are matters which may be bargained about now with no
impairment to the Union's objectives. Weighing the possible
employment loss from a status quo ante remedy against the nature
and slight adverse impact on them from Respondent's refusal to
negotiate before implementing the change rather than after
implementation, I can not find that a status quo ante remedy is
appropriate in this case.
Having found that Respondent violated 16(a)(5) and (1) of the
Statute, it is recommended that the Authority adopt the
following:
ORDER
Pursuant to 2423.29 of the Rules and Regulations, 5 C.F.R. 2423.29,
and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders
that the Air Force Military Training Center, Lackland Air Force
Base, Texas, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of bargaining
unit employees by transferring work from its Heat Shop to its Water
and Waste Shop without first notifying the American Federation of
Government Employees, AFL - CIO, Local 1367, the exclusive
representative of its employees, and affording it an opportunity to
negotiate on the procedures to be observed and appropriate
arrangements for employees who have been, or may be, adversely
affected by the implementation of any such changes.
(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 in good faith with the American
Federation of Government Employees, AFL - CIO, Local 1367,
concerning the procedures to be observed and appropriate
arrangements for employees who have been, or may be, adversely
affected by the implementation of changes in their conditions of
employment as the result of the transfer of the duties associated
with the servicing and maintenance of water softeners from its Heat
Shop to its Water and Waste Shop.
(b) Bargaining, if requested as provided in Paragraph (a), above,
shall proceed as if no transfer of duties from the Heat Shop to the
Water and Waste Shop had occurred and Respondent shall not refuse
to bargain in good faith on any negotiable demand of the Union on
the ground that its objective had already been attained, e.g., that
it has already trained employees; or that it has already changed
job descriptions; etc.
(c) Post at its facilities at the Air Force Military Training
Center, Lackland Air Force Base, Texas, copies of the attached
Notice to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer of the Training Center and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Rules and Regulations, 5
C.F.R. 2423.30, notify the Regional Director, Dallas Region,
Federal Labor Relations Authority, 525 Griffin Street, Suite 926,
Dallas, Texas 75202, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply
herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: October 19, 1992 Washington, DC
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT unilaterally change conditions of employment of
bargaining unit employees by transferring work from our Heat Shop
to our Water and Waste Shop without first notifying the American
Federation of Government Employees, AFL - CIO, Local 1367
(hereinafter, "Local 1367"), the exclusive representative of our
employees, and affording it an opportunity to negotiate the
procedures to be observed and appropriate arrangements for
employees who have been, or may be, adversely affected by the
implementation of any such change.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured them by the Federal Service Labor - Management Relations
Statute.
WE WILL, upon request, bargain with Local 1367 concerning the
impact and implementation of a change in conditions of employment
as the result of our transfer of the duties associated with the
servicing and maintenance of water softener from our Heat Shop to
our Water and Waste Shop.
WE WILL BARGAIN, if requested, as if no transfer of duties from the
Heat Shop to the Water and Waste Shop had occurred and WE WILL NOT
refuse to bargain in good faith on any negotiable demand of Local
1367 on the ground that its objective had already been attained,
e.g., that Respondent had already trained employees; or that
Respondent had already changed job descriptions; etc.
___________________________ (Activity)
Dated: __________________ By: ___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Dallas Region, whose address is: 525 Griffin Street,
Suite 926, Dallas, Texas 75202, and whose telephone number is:
(214) 767-4996.
FOOTNOTES
Footnote 1 For convenience of reference, sections of the Statute
hereinafter are, also, referred to without inclusion of the initial
"71" of the statutory reference, e.g., section 7116(a)(5) will be
referred to, simply, as, "16(a)(5)".
Footnote 2 On my motion, I hereby correct an obvious error in the
transcript. On page 2, page 5 and thereafter throughout the
transcript where ever it appears, the name: "Joseph T. Marley", or
"Mr. Marley", is hereby corrected to read, "Joseph T. Merli" or,
"Mr. Merli".
Footnote 3 At most locations (boilers) there are three or more
water softeners so that one or two can be taken "off line" and
regenerated while the remaining softener(s) treat the water. In the
same manner, a softener can be taken "off line" for maintenance or
repair (Tr. 43).
Footnote 4 The actual time of these events is somewhat uncertain.
The Complaint alleged implementation of the shift of duties in
October, 1990 (G.C. Exh. 1(c), Paragraph 14) which Respondent
admitted (G.C. Exh. 1(d)). Mr. Lupe Griego credibly testified, as
noted, that Mr. Heiman was first trained by Heat Shop employees and
that he then trained other employees in Water and Waste; but
Respondent stated in its memorandum of January 10, 1991, that, "3.
...in mid Dec 90, water testing duties were taken from ... the
Heating Shop and assigned to ... employees in the Water and Waste
Water Unit....", and further, as to training, "4. ...training of
two employees in the Water and Waste Unit took place between 10 and
19 Dec 90. These employees in turn will train eight other employees
in the unit...." (G.C. Exh. 4). But Mr. Jose Velasquez, a boiler
operator in the Heat Shop (Tr. 39) who, prior to October, 1990, did
water softener work (Tr. 40), testified that the work was taken
from the Heat Shop in about October, 1990 (Tr. 50, 51).
Footnote 5 Because the sewage plant operation had been contracted
out, the Water and Waste Shop had an excess of four employees (Tr.
135).