16:0003(1)CA - VA, Hines Hospital, Hines, IL and SEIU Local 73 -- 1984 FLRAdec CA



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16:0003(1)CA
The decision of the Authority follows:


 16 FLRA No. 1
 
 VETERANS ADMINISTRATION
 HINES HOSPITAL
 HINES, ILLINOIS
 Respondent
 
 and
 
 SERVICE EMPLOYEES INTERNATIONAL
 UNION, LOCAL 73, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-667
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled 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 General Counsel filed
 exceptions to the Judge's Decision.
 
    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, /1/ conclusions and recommended Order, as modified
 herein.
 
    The Authority agrees with the Judge's finding that the Respondent was
 not under an obligation to bargain concerning its decision to abolish
 the 11:30 a.m. tour of duty for food-service employees in the Dietetic
 Service and to reassign those employees to the second shift.  The
 reassignment resulted in transferring primarily WG 3, journeyman meal
 service employees, to the 11:00 a.m. shift and thus elevating the grade
 level of employees reporting at that time to set up the tray assembly
 lines.  The decision to effect the reassignment involved the "numbers,
 types, and grades of employees or positions assigned to any
 organizational subdivision, work project, or tour of duty" within the
 meaning of section 7106(b)(1) of the Statute /2/ and, thus, was
 negotiable only at the election of the agency.  See, e.g., U.S. Customs
 Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982).  The
 Authority further adopts the Judge's conclusion that, while the
 Respondent gave the Union adequate notice of the changes, it violated
 section 7116(a)(1) and (5) of the Statute in the particular
 circumstances presented by failing to afford the Union adequate
 opportunity to bargain over the impact and implementation of the change
 prior to the implementation date.  In so concluding, the Authority notes
 particularly the Judge's finding that the Union had requested a
 temporary postponement of the change until the Union's chief negotiator
 returned from vacation, and that the Respondent had scheduled a meeting
 for shortly after that date without informing the Union that
 implementation would take place as originally scheduled or advising the
 Union of any reasons why implementation could not be deferred briefly.
 
    The General Counsel has requested a status quo ante remedy which
 would require the Respondent to restore the abolished third shift of
 food-service employees in the Dietetic Service and to pay the night
 shift differential which the reassigned employees lost as a result of
 their reassignment to the second shift.  However, the Authority, in
 agreement with the Judge, finds that a status quo ante remedy is not
 warranted herein.  Thus, balancing the nature and circumstances of the
 violation against the degree of disruption in the Respondent's
 operations that would be caused by such a remedy, and taking into
 consideration the factors set forth in Federal Correctional Institution,
 8 FLRA 604 (1982), the Authority concludes that an order giving the
 employees' exclusive representative an opportunity to bargain concerning
 the impact and implementation of the decision to abolish the 11:30 a.m.
 tour of duty for food-service employees in the Dietetic Service and to
 reassign those employees to the second shift will remedy the violation
 in this case and will effectuate the purposes and policies of the
 Statute.  In this regard, the Authority notes that the Respondent gave
 the Union adequate prior notice of its decision to abolish the third
 shift and reassign the affected employees to the second shift;  that the
 Respondent's conduct does not appear to be willful;  and that a
 requirement to restore the third shift would substantially disrupt the
 hospital's schedule.  Moreover, while the reassigned employees lost
 their night shift differential pay as a result of the change in shifts,
 it cannot be concluded that the employees in question would not have
 suffered a loss of such differentials but for the Respondent's unlawful
 refusal to bargain over the impact and implementation of such change in
 shifts.  Accordingly, the Authority concludes that an order requiring
 the retroactive payment of night shift differential pay to the
 reassigned employees is not warranted under the Back Pay Act, 5 U.S.C.
 Sec. 5996, AnD Sec.  7118(a)(7)(C) of the Statute.  See, e.g., ACTION
 and ACTION Employees Union, AFSCME, Local 2027, 11 FLRA No. 89 (1983)
 and American Federation of Government Employees, Local 1395 and
 Department of Health and Human Services, Social Security Administration,
 10 FLRA 18 (1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Veterans Administration, Hines
 Hospital, Hines, Illinois shall:
 
    1.  Cease and desist from:
 
    (a) Instituting any change in tours of duty and reassignments
 involving employees represented exclusively by the Service Employees
 International Union, Local 73, AFL-CIO, the exclusive bargaining
 representative of its employees, without first notifying the exclusive
 representative of the proposed change and then affording it an
 opportunity to negotiate on the procedures which management will observe
 in implementing such a change and on the impact such change will have on
 adversely affected unit employees.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, negotiate with the Service Employees International
 Union, Local 73, AFL-CIO, the exclusive bargaining representative of its
 employees, concerning the procedures observed in implementing the
 abolishment of the 11:30 a.m. tour of duty for food-service employees in
 the Dietetic Service and the reassignment of those employees, and the
 impact of the change upon adversely affected unit employees.
 
    (b) Post at Hines Hospital, Hines, IL. 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 an authorized
 representative of Hines Hospital and shall be posted and maintained for
 60 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to insure that said
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Federal Labor Relations
 Authority's Rules and Regulations, notify the Regional Director, Region
 V, 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., September 10, 1984
 
                                       (s) Henry B. Frazier, III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s) Ronald W. Haughton
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT 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 institute any change in tours of duty and reassignments
 involving employees represented exclusively by the Service Employees
 International Union, Local 73, AFL-CIO, without first notifying the
 exclusive representative of the proposed change and affording it an
 opportunity to negotiate concerning the procedures which management will
 observe in implementing the change and on the impact such change will
 have on adversely affected unit employees.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, negotiate with the Service Employees
 International Union, Local 73, AFL-CIO, the exclusive representative of
 our employees, concerning the procedures observed in implementing the
 abolishment of the 11:30 a.m. tour of duty for food-service employees in
 the Dietetic Service and the reassignment of those employees, and the
 impact of the change upon adversely affected unit employees.
                                       (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 its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Blvd., Suite A-1359, Chicago, IL, 60604, and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 ----------- ALJ$ FOLLOWS ---------
    HINES HOSPITAL,
    HINES, ILLINOIS
                                Respondent
 
    and
 
    SERVICE EMPLOYEES INTERNATIONAL
    UNION, LOCAL NO. 73, AFL-CIO
                              Charging Party
 
                                       Case No. 5-CA-667
 
 
    George A. Miksa,
    Attorney for the General Counsel
 
    Claire R. Morrison,
    Attorney for the Veterans Administration
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, Chapter 71 of Title 5 of the U.S.
 Code, 5 U.S.C. 7101, et seq. (hereinafter referred to as the Statute)
 and the rules and regulations issued thereunder and published in 45 Fed.
 Reg. 3482-3524 (1/17/80), 5 CFR 2421 et seq.
 
    Pursuant to a charge filed on August 18, 1980 and amended on October
 24, 1980 by the Service Employees International Union, Local No. 73,
 AFL-CIO (hereinafter, SEIU or Union), a Complaint and Notice of Hearing
 was issued on October 31, 1980, by the Regional Director, Region 5, of
 the Federal Labor Relations Authority (hereinafter, the Authority).
 
    The Complaint alleges violations of Sections 7116(a)(1) and (5) of
 the Statute, in that on or about July 13, 1980, and continuing to date,
 the Veterans Administration, Hines Hospital, Hines, IL (hereinafter,
 Hines Hospital, or Respondent) failed and refused to provide the Union
 with notice and/or an ample opportunity to bargain and to negotiate in
 good faith concerning a proposed new tour of duty in the Dietetic
 Service of Hines Hospital, and proceeded, unilaterally, to implement the
 new tour.  /3/
 
    A hearing in the matter was held on January 13, 1981, in Chicago, IL.
  All parties were afforded a full opportunity to be heard, to examine
 and cross-examine witnesses, and to introduce evidence bearing on the
 issues involved.  Respondent submitted a brief on February 6, 1981.  The
 General Counsel of the Authority submitted a brief on February 9, 1981.
 
    Upon the basis of the entire record, my observation of the witnesses
 and their demeanor, and the briefs, I make the following findings of
 fact, conclusions and recommendations.
 
                           FINDINGS OF FACT /4/
 
    1.  On December 11, 1975, the Union was certified as the exclusive
 representative of all general schedule, wage board and veteran canteen
 service employees, with some exceptions, at Hines Hospital.  Included in
 the bargaining unit are food service employees in the Dietetics Service.
 
    2.  A collective bargaining agreement (hereinafter, the contract) was
 signed by Hines Hospital and SEIU on July 1977.  Lewis Cade and Sam
 Lynk, Jr., among others, were on the negotiating committee for SEIU.
 Carol Hall and S. K. Tsugawa, among others, were on the negotiating team
 for the Hospital.
 
    3.  Several provisions of the contract are pertinent here.
 
    a.  Article VII, Section 7 defines the "functions of Union
 Representatives, Committeeman and Stewards." (GC 2.11).  The
 Representative "coordinates Union policy and executes the lawful
 decisions of the Union membership and serves as liaison between the
 Union and the Medical Center Management.  He is responsible for
 negotiating and consulting with management in all matters affecting the
 working conditions." The Stewards and Committeemen "are subordinate to
 the Representative who retains the right to intervene and become the
 official spokesman for the Union in any matter affecting the bargaining
 unit."
 
    b.  Article III of the contract defines the "Mutual Rights and
 Obligations" of the parties.  (GC 2.3).  Paragraph 3 provides:
 
          Nothing in this agreement shall restrict the VA in exercising
       the right, in accordance with applicable laws and regulations, to:
        direct employees of the VA, hire, promote, transfer, assign and
       retain employees in positions within the VA . . . relieve
       employees from duties because of lack of work or for other
       legitimate reasons;  maintain the efficiency of the governments
       operations entrusted to the VA;  determine the methods, means and
       personnel by which such operation are to be conducted . . . .
 
 (GC 2.4)
 
    c.  Article IV of the contract defines the "Subject Areas For
 Negotiation." (GC 2.5).  Paragraph 1 provides:
 
          Appropriate subjects for negotiation are, for example . . .
       assignment of work shifts and tours of duty . . . .
 
 (GC 2.5) Paragraph 2 of Article IV provides:
 
          Negotiations may not take place with respect to any matter . .
       . which extends to areas of discretion and policy, such as the
       mission of the hospital, its budget, organization, number of
       employees assigned to an organization unit, work project or tour
       of duty, internal security procedures, or the technology of
       performing work.  This restriction will not be construed as
       limiting the discussion of these matters when mutually
       advantageous to the parties to this agreement.  The parties shall
       negotiate agreements providing appropriate arrangements for
       employees adversely affected by impact of realignment of work
       force or technological change.
 
 (GC 2.6).  Paragraphs 1 and 2 of Article IV were basically taken from
 Executive Order 11491, then in effect and establishing the relationship
 between Federal employees' units and the departments and agencies in
 which they worked.  (Tr 47-48).
 
    d.  Article X of the contract deals with "Tours of Duty." (GC
 2.17-19).  Paragraph 2 provides that Union "shall be notified in writing
 of changes in established tours of duty no less than two (2) calendar
 weeks prior to the effective date of change, except in cases of
 emergency."
 
    4.  The operation of Hines Hospital revolves around the service of
 meals, in that therapy, tests, and doctors' rounds are scheduled around
 the fact that a meal will be served at a specific time.
 
    5.  Prior to July 13 and for a period of several years, full-time,
 food-service employees in the Dietetics Service worked on three shifts.
 The first began at 6:00 a.m. and ended at 2:20 or 2:30 p.m.  About 50 or
 more full-time employees were, and still are assigned to the first
 shift.  They prepare the patients' breakfast and lunch.  They also
 clean, store foods, and work on the supper meal items.  Between 40 and
 50 full-time employees were assigned to the second shift, which did, and
 still does begin at 11:00 a.m. and end at 7:20 p.m.  A third shift began
 at 11:30 a.m. and ended at 8:20 p.m.  Approximately 24 full-time
 employees were assigned to the third shift.  Luncheon and supper were
 served by employees on the second and third shifts.  Supplementing these
 employees were, and still are a large number of part-time employees, who
 come in early and late.  The same number of luncheon and supper meals
 are served by all these employees, who totaled 164, prior to July.  By
 July, there had been a net loss of 45 food-service employees and an
 accompanying loss, in patient census, from 1,500 to seldom over 1,000.
 Over the past year and a half, Hines Hospital has been reducing its
 full-time staff, by adding more part-timers and by not filling full-time
 positions as they became vacant.
 
    6.  The primary responsibility of the 11:00 a.m. shift is to set up
 the tray assembly lines.  The line is scheduled to start promptly at
 11:30 a.m., so that the first trays are reaching the patients at
 approximately 11:50 a.m. or noon.  A printed menu, that has all the
 variations of modified diets, notifies the food-service employees of
 what food is to go on each tray.  There are as many as 26 different
 kinds of modified diets;  and 65 percent of the patients are on some
 kind of modification of the normal diet.  Because some food items listed
 on the printed menu are not always delivered, it is necessary to hold a
 menu conference with the employees who assemble the trays, and apprise
 them of the changes.
 
    7.  Four grade levels of employees are involved in the function of
 meal service-- WG1 through WG4.  The journeyman position is WG3.  To
 attain the WG3 grade the employee must have training and knowledge of
 modified diets.  WG1 employees simply slip a heated base plate under the
 dinner plate.  WG2 employees are responsible for a position such as
 soup, where some knowledge is needed of modified diets, because a low
 sodium diet will get a different kind of soup than a normal diet.  WG3
 employees are responsible for a "lot of decision making" because some
 patients are on combination diets, such as a diabetic, low sodium, low
 cholesterol diet.  (TR 76-77).  WG4 employees are the highest skilled.
 They check the trays before they are moved off the line.
 
    8.  The 11:30 a.m. shift was made up primarily of WG3 employees.
 They came in too late to participate in the menu conference, and would
 simply fill vacant positions on the tray assembly lines.
 
    9.  The Chief of the Dietetic Service at Hines Hospital, Carol Hall,
 was informed by her supervisory staff that not enough employees were
 coming in at 11:00 a.m. to fill the positions and actually help set up
 the tray assembly stations.  (A study was made of the service of mid-day
 meal;  but it was not adduced, and no reliance is placed upon the study
 itself, in this decision.)
 
    10.  On July 13, the third tour of duty was abolished.  The employees
 assigned to it were reassigned to the second shift.  This date was
 chosen because it occurred at the height of the vacation schedule, when
 the real impact of the reduced number of employees would be felt for the
 first time.  A later date would probably have resulted in delays in meal
 service.  A reinstatement of a third shift would have the same result.
 
    11.  As a result of the reassignment, the employees formerly on the
 third shift lost their night-differential pay.
 
    12.  The 11:30 a.m. starting time for the third shift began on May
 29, 1977.  Prior to that time, it had begun at noon.  At a special
 meeting held on May 4, 1977, Hines Hospital gave the Union notice of the
 proposed changes.  Committeemen George Matthews and Chris Copeland were
 present.  Ms. Hall, Chief of the Dietetics Service, and three others
 represented the Hospital.  Mr. Matthews called the proposal a
 "management ploy" to eliminate the night-differential pay (GC 9).  Lewis
 Cade, the Union Representative, assumed the responsibility for handling
 the issue.  Consultations lasted about a month.  Mr. Cade dealt
 primarily with the Personnel Officer and the Director of the Hospital
 and "not too much with Ms. Hall." (TR 70).  Mr. Cade's main concern was
 the loss of the night-shift differential.  Hines Hospital assured Mr.
 Cade that the employees would not lose the differential pay, and met
 with the employees to explain this to them.
 
    13.  On June 17, a "special meeting" was called by Respondent "to
 inform the Union of the abolishment" of the 11:30 a.m. shift.  (GC 4).
 In attendance, for the Union, were Committeemen Copeland and Matthews,
 and for Respondent, Ms. Hall, Mr. Bethel, Chief of Food Service, and a
 Mr. Rochowiak.  The Committeemen were handed a memorandum dated June 13
 and addressed to them from Ms. Hall.  The memorandum stated that it was
 "to inform" them that effective July 13 the third shift would be
 "abolished" and those employees presently assigned to this "tour of
 duty" would be "scheduled for the 11:00 a.m. to 7:30 p.m. tour." (GC 3).
  The meeting marked the first knowledge the Union had of the change.
 Ms. Hall stated that the change was "for the betterment of the service
 of the patients." (TR 16).  She gave no answer to Mr. Copeland's
 question of how that could be.  Mr. Copeland recalls Mr. Matthews saying
 that he and Mr. Copeland would "carry it (the memorandum) to Mr. Cade."
 (TR 16).  Mr. Copeland told Ms. Hall that "Mr. Cade was going away on
 vacation, asked her to hold it (the change) off until he returned." (TR
 26).  No other comments were made about this change because, according
 to Mr. Copeland, the matter "had to be passed on to Mr. Cade," as the
 "representative." (TR 26, 20).  Mr. Copeland's testimony is credited.
 
    14.  Mr. Copeland and Mr. Matthews have never negotiated changes in
 the assignment of employees, although such matters have been explained
 to them at meetings with management, and they have "talked about it."
 (TR 35).  It has been a "standard of practice," in the Dietetics
 Service, "to have regularly scheduled monthly consultation meetings with
 the union committeemen, Mr. Copeland and Mr. Matthews . . . ." (TR 89).
 At these meetings "any changes that management was thinking of making"
 have been brought up.  (Tr 89).  If there is a need, between monthly
 meetings, to make a change, special meetings are held to "tell them
 about proposed changes." (TR 89).  Discussions were held at the meetings
 and, as a result, Ms. Hall did, "on occasion, reach compromises or
 agreement with the committeemen." (TR 90).  Over the past eight years,
 Ms. Hall's experience has been that "99 percent of the time the
 discussions were held with the two committeemen (without Mr. Cade being
 involved)." (TR 90).
 
    15.  On June 24, at a regular weekly meeting between the Union's
 Committeemen and its Representative, Mr. Copeland and Mrs. Matthews
 informed Mr. Lynk of the proposed change in tour of duty.  Mr. Lynk told
 them that he would bring the matter up at the regular weekly meeting
 with management.  Mr. Cade was apparently out of town at this time.
 That afternoon Mr. Lynk met with S. K. Tsugawa, Chief of the Personnel
 Service.  Mr. Lynk was given a copy of the minutes of the June 17
 meeting (see finding 13, supra) and discussed, as new business, the
 abolishment of the 11:30 a.m. shift in Dietetic Service.  The minutes of
 the meeting, written by Mr. Tsugawa, record that:
 
          Local 73 wishes to discuss the impact of this change and asked
       that implementation on July 13, 1980, be postponed.  Meeting
       between Mr. Cade and Chief, Dietetic Service will be scheduled
       when Mr. Cade returns next week.
 
 (GC 5).  Mr. Lynk recalls that Mr. Tsugawa said he "would look into this
 and check with the chief of dietetics and get back to me." (TR 39).  Mr.
 Tsugawa was not called as a witness.  Mr. Lynk seemed sure of his facts;
  and his recollection is credited.
 
    16.  On June 25, at the regular monthly meeting of Ms. Hall with the
 two Committeemen, no discussion was had on the change of tour of duty
 set for July 13.  Nor did Ms. Hall have any other discussions with the
 two Committeemen following the June 17 special meeting.
 
    17.  On Tuesday of each week the Union and the Hospital hold a
 meeting.  Such a meeting occurred on July 1.  Mr. Cade was back for this
 meeting.  He advised the management officials at the meeting that he was
 the Union's "chief spokesman and that (he) was going to negotiate this
 particular provision (the shift change)." (TR 53-54).  He asked that a
 "hold" be put on the abolishment of the 11:30 a.m. tour of duty "until
 we could negotiate" and that he "would charge her (Ms. Hall) with an
 unfair labor practice if she pursued this without negotiating." (TR 40).
  Mr. Tsugawa and Mr. Stephens, Assistant Director of Hines Hospital,
 represented the Hospital at the meeting.  Mr. Stephens replied that he
 "would look more into the matter and get back to (Mr. Cade) on it.  (TR
 50).  The minutes of the meeting, taken by Mr. Tsugawa, record that:
 
          Mr. Cade indicated that this tour was established as a result
       of discussion between Local 73 and the hospital to provide for
       night differential for employees.  He complained that no
       discussion took place before decision was made to explain the
       tour.  Hospital assured Mr. Cade that the Chief, Dietetic Service
       was prepared to meet with him and a meeting was scheduled for
       Tuesday, August 5, 1980 at 10:00 a.m.
 
 (GC 6.1).  Mr. Cade was under the impression that management was going
 to "negotiate" the matter, at the August 5 meeting, after he returned
 from his vacation, which was to begin July 7 and end July 28.  (TR 50,
 53 and GC 6.1).  He also was given the impression that management was
 "going to delay (the change in shift) until that time (August 5)." (TR
 51).
 
    18.  Mr. Lynk was in charge of the Local's affairs for the Hines
 Hospital bargaining unit while Mr. Cade was on vacation.  On July 11,
 Mr. Lynk contacted Ms. Hall, told her that he had discussed the proposed
 change with Personnel, and "that I would like for her to put a hold on
 this until the union representative returned." (TR 42-43).  She informed
 him that she was going to go ahead with it.  He replied that:  "If you
 do this, the only thing we can do is file an unfair labor practice." (TR
 43).  She replied:  "You do what you have to do." (TR 43).  She also
 indicated that she was "willing to negotiate on the impact of this
 change." (TR 94).  Mr. Lynk heard nothing from Respondent prior to the
 July 13 abolishment of the tour of duty.
 
    19.  On August 5, at 10:00 a.m., Mr. Cade met with Ms. Hall.  Mr.
 Tsugawa, Mr. Copeland and Mr. Matthews were also present at this special
 meeting.  Ms. Hall gave her reasons for the change, namely that there
 were not enough employees coming in at 11:00 a.m., and no need for
 employees to stay beyond 8:00 p.m.  /5/ Mr. Cade expressed his concern
 over the loss of night-differential pay by the employees, as a result of
 the change, and suggested the use of part-time help to cover the 11:00
 a.m. to 11:30 a.m. needs.  He complained that no negotiation had taken
 place prior to the changes.  Ms. Hall took the position that she had
 presented the proposed change to the two Committeemen, on June 17, and
 they had not requested a discussion of it.  /6/ She refused a request of
 Mr. Cade that the old tour of duty be restored.  Mr. Cade reiterated the
 necessity of filing an unfair labor practice complaint to resolve the
 matter.
 
    20.  On August 5, at 1:15 p.m., Mr. Cade, Mr. Lynk and Mr. Tsugawa
 met at the regular Tuesday union-management meeting.  The minutes
 reflect that discussion of the "cancellation of the 11:30 a.m. - 8:00
 p.m. tour of duty in Dietetic Service" was again discussed.  (GC 8.1).
 Mr. Cade referred to some documents he had located in which the Union
 asked to negotiate the change, /7/ and stated that he expected a
 response from the Assistant Director at the meeting scheduled for the
 following Tuesday.  Mr. Cade also "advised that Committeemen and
 Stewards from Dietetic Service are no longer authorized to meet and
 consult or reach agreement on proposed changes in the service." (GC 8.1
 and see TR 60).  Prior to this time, Committeemen and Stewards had been
 able to meet, consult, and reach agreement only after consulting with
 Mr. Cade and "the committee" (TR 65), and being authorized to do so.
 Mr. Cade was sure that management knew of the limited authority of the
 Committeemen and Stewards.  He recalled minutes of a 1977 meeting "where
 Ms. Hall complained about the stewards having to bring matters to the
 union before reaching agreement with her." (TR 66).
 
    21.  Mr. Cade "continuously tried to get them (Hines Hospital) to
 realize their obligation to consult with us (the Union) and to negotiate
 with us prior to filing the unfair labor practice complaint." (TR
 57-58).  The charge was filed on August 18.
 
                                  ISSUES
 
    The General Counsel formulates one issue-- whether, on or about July
 13, Respondent proceeded, unilaterally, to implement a new tour of duty
 in Hines Hospital's Dietetic Service without affording the Union ample
 notice and/or an opportunity to bargain concerning the substance, impact
 and/or implementation of such tour.  (Br. GC 5).
 
    Respondent formulates three issues-- first, whether a new tour of
 duty was proposed and subsequently implemented on or about July 13;
 second, whether the decision to abolish the 11:30 a.m. tour of duty and
 reassign the employees who had been working that shift, was bargainable;
  and third, whether the Union was afforded adequate notice and/or an
 opportunity to bargain on impact and implementation.  (Br. R 3).
 
                        DISCUSSION AND CONCLUSIONS
 
    Following the formulation of the issues by Respondent and a study of
 the record and the briefs, the answers are:  No, a new tour of duty was
 not proposed and implemented;  No, the abolishment of the 11:30 a.m.
 tour was not negotiable;  No, the reassignment of the employees was not
 negotiable;  and No, the Union was not afforded an adequate opportunity
 to bargain on the impact and implementation of the changes, although it
 received adequate notice of them.
 
    1.  No new tour of duty was implemented on July 13.
 
    On July 13, the 11:00 a.m. tour of duty had been an established work
 shift, or tour of duty, for a substantial period of time.  What happened
 on July 13 was the abolishment of the 11:30 a.m. shift, and the
 reassignment of employees to the already-existing 11:00 a.m. shift.
 Augmenting an already-established shift, with more employees, does not
 constitute the creation of a new shift.
 
    2.  The decision to abolish the third work shift and reassign more
 employees to the second shift was not bargainable.
 
    Section 7106(a) of the Statute provides, as to "Management rights,"
 that:
 
          Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
 
          "(1) to determine the mission, budget, organization, number of
       employees, and internal security practices of the agency;  and
 
          "(2) in accordance with applicable laws--
 
          "(A) to . . . assign . . . employees . . . ."
 
    Section 7106(b) provides that:
 
          Nothing in this section shall preclude any agency and any labor
       organization from negotiating--
 
          "(1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any . . . tour of
       duty, or on the technology, methods, and means of performing
       works;
 
          "(2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          "(3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by management
       officials."
 
    It has been held that:  "Although some tours of duty must be
 negotiated, an agency is not required to negotiate with respect to the
 number of work shifts, and the duration of shifts, when they constitute
 an essential and integral part of the 'staffing patterns' necessary to
 perform the work of the agency." See page 6 of Judge Mason's decision in
 Veterans Administration Hospital, Sheridan, Wyoming and American
 Federation of Government Employees, AFL-CIO, Case No. 61-3226 (CA),
 
 
 (7/18/77), affirmed A/SLMR No. 952 (12/6/77).  In the Veterans
 Administration case, the change involved a new tour of duty for nurses.
 The case arose from a complaint of an unfair labor practice under
 Executive Order 11491, which, like the Statute, reserves to management
 the right to determine its "organization" and the "numbers, types, and
 grades of positions or employees assigned to an organizational unit,
 work project or tour of duty . . . ."
 
    Hines Hospital has not elected to bargain about "organization" or
 "number of employees assigned to a . . . tour of duty." See Article IV,
 paragraph 2 of the contract, quoted in finding 3c, supra.  /8/ In making
 the July 13 change, the Chief Dietician of Hines Hospital make a
 judgment, based on the recommendations of her supervisory staff, that
 more employees were needed on the 11:00 a.m. shift, in order to
 accomplish the complete meal-serving function.  This function includes
 the selection of the proper foods for 65 percent of the total number of
 patients, who are on modified diets.  The abolished third shift was
 composed primarily of WG3 employees, the grade level of employee that is
 trained and skilled enough to select the proper diet items for each
 tray.  Yet these third-shift employees were coming in at a time (11:30
 a.m.) when it was too late for them to use their skills.  By 11:30 a.m.
 the trays had been filled and were ready to move on to the patients.  A
 half-hour delay in serving meals could pay havoc with appointments for
 therapy, tests, and the schedules of doctors making their rounds.  Thus,
 it must be concluded that the judgment made by Hines Hospital's Chief
 Dietician involved a matter which is an "essential and integral part of
 the 'staffing patterns' necessary to perform the work of the agency."
 Veterans Administration, ibid.
 
    Other cases arising under Executive Order 11491 are cited by the
 General Counsel, at pages 5-7 of his brief, where "staffing patterns"
 were found not to be involved.  They are factually distinguishable.
 One, Department of the Treasury, Internal Revenue Service, Chicago,
 Illinois, A/SLMR No. 962 (1/6/78), involved revenue agents and clerks in
 the audit division of a district office of the Internal Revenue Service,
 and a change from two shifts, one beginning at 8:00 a.m. and one
 beginning 15 minutes later, to one shift, beginning at the earlier time.
  The reasons for the change were (1) to avoid the confusion where
 employees who worked together separated and departed at different times
 and (2) to make it easier to contact employees when all started to work
 at the same time.  How the change impacted on the audit function of the
 agency is obscure.
 
    Another case cited is South East Exchange Region of the Army and Air
 Force Exchange Service, Columbus, S.C., A/SLMR No. 656 (5/28/76).  It
 involved changing the hours of work of storage-and-receiving employees
 at an agency warehouse, by starting and ending the workday one-half hour
 earlier.  The reason for the change was that "at times" the receiving
 employees had not pulled enough merchandise for the shipping employees
 to begin their work, when they reported one and one-half hours later.
 Thus, shipments would be delayed, "at times." In the instant case, there
 is a probability, at least, that the delays in meal service, would be
 more than just an occasional occurrence and would be far more disruptive
 of the agency's work.
 
    The General Counsel also relies on National Treasury Employees Union
 Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1
 FLRA 106 (9/13/79).  In the cited case, the Taxpayer Assistance Section
 had two starting and quitting times, 50 minutes apart.  The union
 proposed a third, that fell within the range of the existing ones.  The
 Authority characterized the proposal as a "relatively minor adjustment."
 See page 4 of the decision.  It was held that the Internal Revenue
 Service failed to demonstrate that the proposal would be determinative
 of the numbers, types, or grades of employees or positions, and
 consequently negotiable only at the election of the agency.  A duty to
 bargain was found.
 
    A more recent case of the authority relied upon by the General
 Counsel is National Federation of Federal Employees, Local 1789 and
 Department of Housing and Urban Development, St. Louis Area Office, St.
 Louis, Missouri, 4 FLRA No. 94 (12/3/80).  (Br. GC 7).  This case
 involves a union's proposal for flexitime.  The agency argued that the
 proposal was inconsistent with an agency regulation for which a
 compelling need existed, under Section 7117(a)(2) of the Statute.  The
 Authority ruled that the agency failed to support its allegation of a
 compelling need.  No such issue is involved here.
 
    3.  The Union was not afforded adequate opportunity to bargain over
 the impact and implementation of the changes made on July 13.
 
    Hines Hospital gave notice of the proposed July 13 change to the
 Union Committeemen on June 17, and to the Union's Assistant
 Representative, on June 24 and, on July 11, Ms. Hall notified the
 Union's Assistant Representative that the July 13 implementation date
 would not be changed.  Hines Hospital notes that the contract only
 requires a two-week notice before a change in an established tour of
 duty is implemented.  Based on these three notices, Hines Hospital
 contends that "adequate notice was given to the Union" that the Union
 "unreasonably delayed in this matter," and that it "ought to be estopped
 from alleging a violation." (Br. R 10, 11 and 12).
 
    While the notice given was adequate, the record made in this case
 does not support the contention of unreasonable delay on the part of the
 Union in negotiating the impact and implementation of the changes.
 Hines Hospital knew that Mr. Cade wanted to negotiate the matter, and
 that he was going on a vacation.  Hines Hospital informed him that it
 was scheduling a meeting on the matter for August 5, after he had
 returned.  There is no evidence that the Union was advised of any
 emergency concerning the implementation date, which would require Union
 action before August 5.
 
    Hines Hospital argues that "(b)ased on past practice, the Dietetic
 Service's management thought that the two committeemen (Copeland and
 Matthews) had authority to discuss and negotiate changes within that
 service" (Br. R 11);  and it notes that the Committeemen made no attempt
 to discuss the tour abolishment and employee reassignment, scheduled for
 July 13, after being notified of the proposed change, on June 17.  (Br.
 R. 10).  The argument, that such a past practice existed, is bolstered
 by Mr. Cade's announcement, on August 5, that those two Committeemen
 were "no longer authorized to meet and consult or reach agreement on
 proposed changes in the service." See finding 20, supra.  Nevertheless,
 in the instance here at issue, it was made clear to responsible Hines
 Hospital representatives, that Mr. Cade was assuming the responsibility
 as chief spokesman for the Union on the proposed change affecting the
 bargaining unit.  See findings 13, 15, 17, and 18, supra.  The contract
 clearly provides that, as Union Representative, Mr. Cade could take over
 this responsibility from Committeemen;  and Ms. Hall and Mr. Tsugawa
 participated in the negotiation of the contract.  See findings 2 and 3a,
 supra.  Ms. Hall admits that at least 1 percent of the time, Mr. Cade
 became involved in discussions.  See finding 14, supra.  And when the
 11:30 a.m. shift was first established, in 1977, Ms. Hall apparently
 knew that discussions which began with the Committeemen, were taken over
 by Mr. Cade;  and the Personnel Officer and Director of Hines Hospital
 certainly knew.  See finding 12, supra.
 
    Respondent cites several cases where a complaint of an unfair labor
 practice was dismissed for failure of proof that a union had requested
 bargaining.  See Department of Health, Education and Welfare, Social
 Security Administration, BRSI, Northeastern Program Service Center,
 A/SLMR No. 984 (2/6/81);  Keesler Technical Training Center, Keesler Air
 Force Base, Mississippi, FLRC No. 74A-84 (5/6/75);  and Department of
 the Navy, Portsmouth Naval Shipyard, A/SLMR No. 508 (4/29/75) affirming
 the decision of Judge Chaitovitz in Case No. 31-7515 (CA).  No such
 failure of proof occurs here, where it was shown that a request was
 made, several times, prior to the implementation date of the change.
 See findings 15, 17 and 18, supra.
 
    Hines Hospital also argues that it "could not postpone implementation
 (of the July 13 reassignment because) its July vacation scheduling was
 at its height;" and management "could not afford to wait" in view of
 "its mid-day meal serving function." (Br. R 11).  The importance of
 performing the meal serving function, on time, is undisputed and
 recognized.  But so is the statutory duty of good faith bargaining.  Had
 Hines Hospital advised Mr. Cade of the urgency of implementation on July
 13, he could have postponed his vacation, or authorized the Assistant
 Representative to take over the bargaining.  So far as this record
 reveals, he was not so advised.  Therefore, Hines Hospital cannot take
 refuge under this shelter, to avoid a finding that an unfair labor
 practice has occurred.
 
    It is well settled, in the area of Federal service labor-relations
 law, that "the right to engage in a dialogue with respect to matters for
 which there is an obligation to meet and confer becomes meaningful only
 when agency management has afforded the exclusive representative
 reasonable notification and an ample opportunity to explore fully the
 matters involved prior to taking action." Federal Railroad
 Administration, A/SLMR No. 418 (7/31/74).  See page 7 of that Decision
 and Order.  Ample opportunity was not afforded the Union by Hines
 Hospital, in this case.
 
    4.  The remedy.
 
    In addition to the usual cease and desist and posting order, the
 General Counsel here urges an order to restore the working hours and
 work schedule, in effect prior to July 13, and the night-shift
 differential pay which the employees would have earned on the 11:30 a.m.
 shift, from July 13 until the shift is reinstituted.  Since Hines
 Hospital did not have to bargain over the substance of the change in
 working hours, or the reassignment of the employees, a back pay order is
 deemed to be inappropriate.  As for restoring the third shift, this
 would be disruptive of the hospital's schedule, and might even disrupt
 the activities of the involved employees who, by now, may have adapted
 satisfactorily to the new work schedule.  The remedy will, therefore, be
 limited to a cease-and-desist order and the usual type of notice
 posting.
 
                 MOTION GRANTED TO CORRECT THE TRANSCRIPT
 
    On February 9, 1981, the General Counsel moved to correct the
 transcript in the following particulars:
 
    Page 5, lines 4-5 from "General Service Employees Union" to "Service
 Employees International Union"
 
    Page 6, line 2, from "Counsel to" to "Counsel agreed to"
 
    Page 7, line 24, from "shift and" to "shift in"
 
    Page 8, line 9, from "representative on" to "representative, Mr.
 Cade, on"
 
    Page 8, line 9, from "the issue agreed" to "the issue was to agree"
 
    Page 8, line 17, from "Section 701681 and 5" to "Section 7116(a)(1)
 and (5)"
 
    Page 8, line 24, from "in our closing briefs" to "in our post-hearing
 briefs"
 
    Page 81, line 3, from "bargaining unit" to "bargaining agent"
 
    Page 96, from "if impacts or" to "or if impacts are otherwise" The
 motion was served on all the parties, none of whom has objected.
 Accordingly, pursuant to 5 CFR 2423.19(r), the transcript stands
 corrected, as moved, except as to the designation of lines on page 8.
 The first page 8 correction is to line 10, not to line 9.  The page 96
 correction is on line 11.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(8) of the Statute, it is ordered that the
 Veterans Administration, Hines Hospital, Hines, IL:
 
    1.  Cease and desist from:
 
          (a) Instituting any future change in tours of duty and
       reassignments involving employees represented exclusively by the
       Service Employees International Union, Local No. 73, AFL-CIO, or
       any other exclusive representative of its employees, without first
       notifying its exclusive representative of the proposed change and
       then affording it an opportunity to meet and confer, to the extent
       consonant with law and regulations, on the procedures which
       management will observe in implementing the change and
       reassignment and on the impact such change and reassignment will
       have on adversely affected unit employees.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing any employee in the exercise by the
       employee of any right assured by the Federal Service
       Labor-Management Relations Statute, or refusing to consult and
       negotiate in good faith with the exclusive representative of its
       employees as required by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose of the Statute:
 
          (a) Upon request, meet and confer with the Service Employees
       International Union, Local 73, AFL-CIO, to the extent consonant
       with law and regulations, concerning the procedures which
       management observed in implementing the July 13, 1980, abolishment
       of the 11:30 a.m. tour of duty for food-service employees in the
       Dietetic Service and the reassignment of those employees, and the
       impact of the abolishment and reassignment upon adversely affected
       unit employees.
 
          (b) Post at Hines Hospital, Hines, IL copies of the Notice
       appended to this Decision.  Copies of the Notice will be furnished
       by the Regional Director of Region 5, after it is signed by an
       authorized representative of Hines Hospital.  The copies shall be
       posted, immediately upon receipt, and maintained for 60 days
       thereafter, in conspicuous places, including all places where
       notices to employees are customarily posted.  Reason