20:0481(53)CA - DOT, FAA, Washington, DC and PASS, MEBA -- 1985 FLRAdec CA
[ v20 p481 ]
The decision of the Authority follows:
20 FLRA No. 53 DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO Charging Party Case Nos. 5-CA-30447, 5-CA-30448 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 stipulation of facts, accompanying exhibits, and the contentions of the parties, the Authority finds: The complaints allege that the Department of Transportation, Federal Aviation Administration, Washington, D.C. (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by implementing changes in the conditions of employment of employees represented by the Professional Airways Systems Specialists, MEBA, AFL-CIO (the Union), at its Detroit Metro Sector Field Office II (the Detroit Facility) and its Jackson, Michigan Sector Field Office (the Jackson Facility) without affording the Union appropriate notice of the changes and the opportunity to negotiate concerning the impact and implementation thereof. In Case No. 5-CA-30447 it is stipulated that, on or about June 30, 1983, two supervisors at the Respondent's Detroit Facility advised a Facility representative of the Union that Electronics Technicians would be temporarily assigned additional duties because of vacancies in certain Facility positions. These duties involved certain routine monthly maintenance checks of engine generators and environmental support equipment and systems. If the Electronics Technicians found a problem with the equipment, they were to notify the Environmental Support Unit. The Union representative responded that the vacancies ought to be filled as soon as possible, and that training would be provided as necessary, and the Union representative did not raise any objection to the implementation of the proposed work assignment. The work assignment was implemented by memorandum on or about July 1, 1983. The parties' stipulation dated December 1983 indicates that the routine monthly maintenance checks were still being performed by the Electronics Technicians, but does not indicate whether training was deemed necessary or provided. In Case No. 5-CA-30448 it is stipulated that a supervisor issued a memorandum to Electronics Technicians in or about the first week of August 1983, which assigned essentially the same additional routine monthly duties to the Electronics Technicians at the Respondent's Jackson Facility as those which were assigned to the Technicians at the Detroit Facility in July. The reason given for the assignment again was the existence of vacancies in certain positions at the Facility. No Union representative received advance notice of the changes at the Jackson Facility; there were no discussions between management officials and Union representatives regarding these changes; and the additional monthly duties assigned were still being performed by the Electronics Technicians at the Jackson Facility at the time of the parties' stipulation. Regarding these developments at the Detroit and Jackson Facilities, the General Counsel argues that the Respondent changed the conditions of employment of the Electronics Technicians, that it was therefore obligated to provide prior notice of the changes to the Union's National President and to provide the Union with the opportunity to bargain over the impact and implementation of the changes before the changes were implemented, and that its failure to do so constituted a violation of section 7116(a)(1) and (5) of the Statute. The Respondent argues that the additional work assignments of the Electronics Technicians at these Facilities were not sufficient to give rise to a duty to bargain. In the alternative, the Respondent argues further, with regard to the changes at the Detroit Facility, that it had in fact provided the Union with prior notice and an opportunity to consult in accordance with the applicable collective bargaining agreement. There is no allegation or contention that the Agency owed a duty to the Union to negotiate over the substance of its decision to make the work assignments to the Electronics Technicians at the two Facilities, and it is not at issue herein. Rather, the complaint alleges a failure to bargain over procedures and appropriate arrangements pursuant to section 7106(b)(2) and (3) of the Statute. The Authority has held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The Authority thereafter held that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority has also held that in determining whether the impact or reasonable foreseeable impact of the exercise of a management right on bargaining unit employees is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established through negotiations or past practice procedures and appropriate arrangements concerning analogous changes in the past. /2/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. Turning to the instant case, the nature and degree of the impact is at issue between the parties. For the reasons which follow, we find that the impact or reasonably foreseeable impact of the changes in the duties of Electronics Technicians was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute concerning either the procedures it would observe in implementing the changes in the duties of Electronics Technicians or appropriate arrangements for adversely affected employees. In reaching this result, the Authority notes, with respect to the nature of the change on unit employees' conditions of employment, that while the routine duties assigned to the Electronics Technicians were in addition to their regular duties, and were duties ordinarily performed by other employees, the nature of such duties was substantially the same as those always performed by Electronics Technicians. No evidence was presented that the duties assigned would change to any measurable degree the amount of time required by the employees to complete all their assigned duties, would require travel to locations other than where their regular duties were performed, or would demand experience or skills in excess of or different from those already possessed by Electronics Technicians. The assignment of the duties in question was intended to be temporary in nature, as stated by the Respondent, and the record reveals that such duties have been temporarily assigned to Electronics Technicians in the past. The change affected only the Electronics Technicians at the Respondent's Detroit and Jackson, Michigan Facilities. The record does not reveal the number of Electronics Technicians involved, but does indicate that they are part of a consolidated nationwide unit of approximately 8000 nonprofessional employees. Finally, the record does not reveal any past practice or bargaining history which would indicate how the parties had handled analogous changes. Based on the totality of the facts and circumstances presented, and noting particularly the relatively small number of unit employees involved as compared to the size of the bargaining unit, the routine nature of the duties assigned, and the temporary nature of the change, the Authority concludes that the impact or reasonably foreseeable impact of the change in unit employees' conditions of employment was no more than de minimis. Therefore, the Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute, and its failure to do so did not constitute a violation of section 7116(a)(1) or (5) of the Statute as alleged. Accordingly, the allegations in Case Nos. 5-CA-30447 and 5-CA-30448 shall be dismissed. /3/ ORDER IT IS ORDERED that the complaints in Case Nos. 5-CA-30447 and 5-CA-30448 be, and they hereby are, dismissed in their entirety. Issued, Washington, D.C. October 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Sec. 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(.) /2/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented. /3/ In view of this conclusion, we find it unnecessary to pass upon the Respondent's other arguments with regard to the extent of its obligation to bargain. But see Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA 644(1984), wherein the Authority found that this same Respondent could not insist that its statutory obligations to this Union were limited to consultation rather than bargaining.