20:0175(22)CA - HHS, Office of the Secretary, HQ and Local 41, AFGE -- 1985 FLRAdec CA



[ v20 p175 ]
20:0175(22)CA
The decision of the Authority follows:


20 FLRA No. 22

DEPARTMENT OF HEALTH AND HUMAN 
SERVICES, OFFICE OF THE SECRETARY
HEADQUARTERS 
Respondent 

and 

LOCAL 41, AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES, AFL-CIO /1/ 
Charging Party

                                      Case No. 3-CA-40148

                           DECISION AND ORDER

   This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.

   Upon consideration of the entire record, including the parties'
stipulation of facts, accompanying exhibits, the brief submitted by the
General Counsel, and the Respondent's motion to dismiss the complaint,
/2/ the Authority finds:

   The complaint alleges that the Department of Health and Human
Services, Office of the Secretary, Headquarters (the Respondent)
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute /3/ (the Statute) by unilaterally
implementing changes in policy concerning leave and excused absences
without affording the Charging Party, at that time the exclusive
bargaining representative of the Respondent's nonprofessional employees,
prior notice of and an opportunity to negotiate over the substance,
impact and implementation of the changes in working conditions.

   The stipulated record discloses that on December 9, 1983, the
Respondent issued a memorandum to its Administrative Officers entitled
"Revised Departmental Instruction on Leave," which disseminated
information regarding revised Instruction 630-1, outlining changes in
policy concerning leave and excused absences.  Revised Instruction 630-1
is an agency-wide regulation prepared by the Department of Health and
Human Services (HHS) applicable to all of its activities, including the
Respondent.  Revised Instruction 630-1 became effective on November 7,
1983, replacing HHS Instructions 630-1 through 630-6 in their entirety.
The Respondent implemented the changes set forth in revised HHS
Instruction 630-1 pursuant to the terms of the memorandum dated December
9, 1983, without affording the Charging Party prior notice of and an
opportunity to negotiate over the substance, impact and implementation
of the changes in working conditions.

   The Respondent contends in answer to the complaint /4/ that it had no
duty to notify the Charging Party or to bargain about the substance of
the changes inasmuch as section 7117(a)(2) provides that the duty to
bargain in good faith extends to matters which are the subject of
agency-wide regulation only if the Authority has determined under
section 7117(b) that no compelling need exists for the regulation.  /5/
As there has been no such determination by the Authority concerning
revised Instruction 630-1, the Respondent asserts that its provisions
must be fully applied to all employees in the bargaining unit.  The
Respondent also contends in its answer to the complaint that it had no
duty to negotiate with the Union concerning the impact and
implementation of revised Instruction 630-1 because the change in
conditions of employment involved no new procedures and the Union
provided no evidence to show that any bargaining unit employees were
adversely affected thereby.

   In Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA
412(1983), affirmed sub nom. Defense Logistics Agency, et al. v. FLRA,
754 F.2d 1011 (D.C. Cir. 1985), /6/ decided before the instant case
arose, the Authority held that issues with regard to whether there
exists a compelling need for an agency regulation so as to bar
negotiations on inconsistent proposals appropriately may be raised and
decided in an unfair labor practice proceeding and that where an agency
raises compelling need as an affirmative defense in such an unfair labor
practice proceeding, it is required to come forward with affirmative
support for that assertion.  Where no compelling need has been
demonstrated which would bar negotiations, and the matter is not
otherwise removed from the required scope of bargaining, and where, as
here, there are levels of exclusive recognition subordinate to the level
of the agency or primary national subdivision which issued the
regulation, it is incumbent upon agency management at the level of
exclusive recognition, once the regulation has been promulgated, to
notify the exclusive representative of its employees and afford the
latter an opportunity to request bargaining concerning the regulation
prior to implementation.  Such bargaining would, of course, apply to
both the substance and the impact and implementation of the agency-wide
regulation as it applies to unit employees.  /7/

   In the instant case, the record establishes, contrary to the
Respondent's assertion, that revised Instruction 630-1 changed
conditions of employment at the Activity by, among other changes in
leave-related policy, lowering the standard allowable minimum leave,
requiring employees to submit evidence to support approvals for sick
leave, entitling employees donating blood to a "reasonable amount of
time for purposes of donation and recovery, normally 2 hours", and by
granting up to four hours per day for injury-related examinations or
treatments to employees suffering on-the-job injuries.  It is not
alleged by the Respondent other than on the basis of its compelling need
arguments disposed of above, nor does it otherwise appear, that the
changes in conditions of employment which resulted from the Respondent's
issuance of revised Instruction 630-1 are outside the duty to bargain.
See generally the following cases, wherein the Authority found
negotiable similar leave-related matters:  American Federation of
Government Employees, AFL-CIO, Local 2875 and Department of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries Service, Southeast Fisheries Center, Miami Laboratory,
Florida, 5 FLRA 441, 446(1981) (Union Proposal 4), American Federation
of Government Employees, Local 3488 and Federal Deposit Insurance
Corporation, 12 FLRA 532, 536(1983) (Union Proposal 6), and Long Beach
Naval Shipyard, Long Beach, California and International Federation of
Professional and Technical Engineers, Local 174, AFL-CIO and American
Federation of Government Employees, Local 2237, AFL-CIO and Federal
Employees' Metal Trades Council, Long Beach, California, 7 FLRA 362,
367(1981).  Further, the Authority concludes that, in the circumstances
of this case, despite being on notice that it would be required to do
so, the Respondent has failed to come forward with any affirmative
support for its assertion of compelling need, /8/ and that compelling
need for revised Instruction 630-1 has not been established.  /9/
Accordingly, when the Respondent was notified by HHS of the revised
regulation, the Respondent was obligated to notify the Charging Party
and afford it an opportunity to bargain on negotiable matters pertaining
to the substance of the revised regulation as it applied to employees
represented by the Charging Party.  The failure of the Respondent to so
notify the Charging Party constituted a violation of section 7116(a)(1)
and (5) of the Statute.

   As to the Respondent's contention that it was not obligated to
bargain over impact and implementation both because its decision
involved no new procedures and the Union provided no evidence to show
that any bargaining unit employees were adversely affected, as
previously determined, the record clearly demonstrates that revised
Instruction 630-1 changed conditions of employment at the Activity.
Moreover, in view of the finding herein that the Respondent was
obligated to negotiate with the Union over the substance of the revised
regulation, the Authority finds it unnecessary to address the issue of
the extent of impact or reasonably foreseeable impact upon unit
employees caused by the Respondent's unilateral change in such
regulation.  See U.S. Army Reserve Components Personnel and
Administration Center, St. Louis, Missouri, 19 FLRA No. 40(1985).

   As noted, the exclusive representative of the Respondent's employees
has changed during the pendency of this complaint.  In the circumstances
of this case, where the exclusive representative of the Respondent's
employees has changed and where the employees' current exclusive
representative did not initiate the complaint, the Authority finds the
purposes and policies of the Statute will be best effectuated by
ordering the Respondent to bargain with NTEU upon request.

                                  ORDER

   Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Health and Human Services, Office
of the Secretary, Headquarters, Washington, D.C. shall:

   1.  Cease and desist from:

   (a) Unilaterally implementing any changes in policy concerning leave
and excused absences without bargaining, upon request, with the
exclusive bargaining representative of its employees concerning such
changes as they affect 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) Bargain with the National Treasury Employees Union, the exclusive
representative of its employees, upon request, concerning changes in
policy with respect to leave and excused absences as they apply to unit
employees.

   (b) Post at the Department of Health and Human Services, Office of
the Secretary, Headquarters, Washington, D.C., copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority.  Such forms shall be signed by the Director, Department of
Health and Human Services, Office of the Secretary, Headquarters,
Washington, D.C., or his designee, 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 ensure that such
Notices are not altered, defaced, or covered by any other material.

   (c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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 16, 1985

                                      (s) HENRY B. FRAZIER III
                                      Henry B. Frazier III, Acting
                                      Chairman
                                      (s) WILLIAM J. MCGINNIS JR.
                                      William J. McGinnis, Jr., 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 unilaterally implement any changes in policy concerning
leave and excused absences without bargaining, upon request, with the
exclusive bargaining representative of our employees concerning such
changes as they affect 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 bargain with the National Treasury Employees Union, the
exclusive representative of our employees, upon request, concerning
changes in policy with respect to leave and excused absences as they
apply to 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 any of its provisions, they may communicate directly with the
Regional Director, Region III, Federal Labor Relations Authority, whose
address is:  1111 18th Street, N.W., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is:  (202)
653-8456.






--------------- FOOTNOTES$ ---------------


   /1/ The Charging Party herein, Local 41, American Federation of
Government Employees, AFL-CIO, was replaced by the National Treasury
Employees Union as the exclusive representative of the employees in the
bargaining unit on May 18, 1984, subsequent to the Regional Director's
Order Transferring Case to the Authority.


   /2/ The Respondent's motion to dismiss is denied.  It contends that
the issues raised herein are moot because, subsequent to the Authority's
receipt of the Regional Director's "Order Transferring Case to the
Federal Labor Relations Authority," the Charging Party was replaced by
the National Treasury Employees Union (NTEU) as the exclusive
representative of the Respondent's bargaining unit employees, and that
"any decision cannot have any practical legal effect." The Authority
rejects such argument, noting that the new exclusive representative has
all of the statutory rights and obligations which flow such status,
including representation of employees in connection with any unfair
labor practice remedy which may result herein.  In addition, the
Authority notes that the alleged unfair labor practices detailed below
involve changes in policy regarding leave and excused absences of
employees which affect the individual rights of employees under the
Statute as well as the institutional right of the exclusive
representative to be given prior notice of and the opportunity to
negotiate over changes in working conditions.  In sum, the issues raised
herein have not been rendered moot, and any decision rendered herein can
be given practical legal effect.


   /3/ Section 7116(a)(1) and (5) of the Statute provides:

         Section 7116.  Unfair labor practices

         (a) For the purpose of this chapter, it shall be an unfair
      labor practice for an agency--

         (1) to interfere with, restrain, or coerce any employee in the
      exercise by the employee of any right under this chapter;

                                 * * * *

         (5) to refuse to consult or negotiate in good faith with a
      labor organization as required by this chapter(.)


   /4/ The Respondent did not file a brief in this case.


   /5/ Section 7117 of the Statute provides, in pertinent part, as
follows:

         Section 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult

                                 * * * *

         (a)(2) The duty to bargain in good faith shall, to the extent
      not inconsistent with Federal law or any Government-wide rule or
      regulation, extend to matters which are the subject of any agency
      rule or regulation referred to in paragraph (3) of this subsection
      only if the Authority has determined under subsection (b) of this
      section that no compelling need (as determined under regulations
      prescribed by the Authority) exists for the rule or regulation.

         (3) Paragraph (2) of the subsection applies to any rule or
      regulation issued by any agency or issued by any primary national
      subdivision of such agency, unless an exclusive representative
      represents an appropriate unit including not less than a majority
      of the employees in the issuing agency or primary national
      subdivision, as the case may be, to whom the rule or regulation is
      applicable.

         (b)(1) In any case of collective bargaining in which an
      exclusive representative alleges that no compelling need exists
      for any rule or regulation referred to in subsection (a)(3) of
      this section which is then in effect and which governs any matter
      at issue in such collective bargaining, the Authority shall
      determine under paragraph (2) of this subsection, in accordance
      with regulations prescribed by the Authority, whether such a
      compelling need exists.

         (2) For the purpose of this section, a compelling need shall be
      determined not to exist for any rule or regulation only if--

         (A) the agency, or primary national subdivision, as the case
      may be, which issued the rule or regulation informs the Authority
      in writing that a compelling need for the rule or regulation does
      not exist;  or

         (B) the Authority determines that a compelling need for a rule
      or regulation does not exist.

         (3) A hearing may be held, in the discretion of the Authority,
      before a determination is made under this subsection.  If a
      hearing is held, it shall be expedited to the extent practicable
      and shall not include the General Counsel as a party(.)


   /6/ The court remanded the matter to the Authority for the sole
purpose of permitting the petitioners to present evidence as to whether
or not there existed a compelling need for the particular regulation at
issue.


   /7/ But see U.S. Army Engineer Center and Fort Belvoir, 13 FLRA
707(1984), reversed sub nom. United States Army Engineer Center v. FLRA,
No. 84-1327 (4th Cir. May 23, 1985).


   /8/ As previously noted, the instant case arose after the Authority's
decision in Defense Logistics Agency (Cameron Station, Virginia),