16:0003(1)CA - VA, Hines Hospital, Hines, IL and SEIU Local 73 -- 1984 FLRAdec CA
[ v16 p3 ]
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. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Federal Labor Relations Authority, in writing, within 30 days from the date of this order as to what steps have been taken to comply herewith. (s) Isabelle R. Cappello ISABELLE R. CAPPELLO Administrative Law Judge Dated: March 30, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE PURPOSE 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 future change in tours of duty and reassignments involving employees represented exclusively by the Service Employees International Union, Local 73, AFL-CIO, or any other exclusive representative of its employees, without first notifying the 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. 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, or refuse to consult, confer, or negotiate with the exclusive representative of our employees, as required by the Statute. WE WILL, 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. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region 5, Federal Labor Relations Authority, whose address is: 175 W. Jackson Blvd., Suit A-1359, Chicago, IL, 60604. --------------- FOOTNOTES$ --------------- /1/ On page 4 of her Decision, the Judge found that the number of food-service employees totalled 164 prior to July 13, 1980 and that by that date there had been a net loss of 45 positions from the group. The record, however, indicates that, as of the date of the hearing, there was in fact a total of 164 food-service employees, a group which had been reduced from a total of 209 positions over the past several years. While this does not affect the ultimate disposition of the instant proceeding, it is hereby corrected. /2/ Section 7106(b)(1) provides: Sec. 7106. Management rights * * * * (b) 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 organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work(.) /3/ Section 7116(a)(1) makes it an unfair labor practice for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." Section 7102 gives each employee "the right to form, join, or assist any labor organization . . . (and e)xcept as otherwise provided under this chapter, such right includes the right-- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter." Section 7116(a)(5) makes it an unfair labor practice for an agency "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter." /4/ The General Counsel's exhibits will be referenced as "GC;" the Respondent's as "R;" the transcript as "TR;" and the briefs as Br. GC" and "Br. R". Multipage exhibits will be referenced by the exhibit number, followed by the page number. All dates referenced are in 1980, unless otherwise indicated. /5/ At the hearing, Counsel for the General Counsel expressed the view that the need to increase the number of employees coming in at 11:00 a.m. was not an issue that had to be decided in this case. See TR 79. /6/ See finding 13, supra, in which I credit the testimony of Mr. Copeland, that he asked Ms. Hall to hold off on the change, until Mr. Cade returned. Mr. Copeland seemed much surer of the facts of this meeting than Ms. Hall. Also Mr. Copeland's testimony is consistent with a post occurrence, when Mr. Cade took over similar negotiations. See finding 12, supra. /7/ The documents referred to were apparently the minutes taken by Mr. Tsugawa, at the June 24 and July 1 meetings. See findings 15 and 17, supra. /8/ The contract's denomination of "assignment of work shifts and tours of duty," as example of a area that is subject to negotiation, is not clear. See Article IV, paragraph 1 quoted in finding 3c, supra. Neither party has relied upon or mentioned this paragraph in their arguments or briefs.