20:0481(53)CA - DOT, FAA, Washington, DC and PASS, MEBA -- 1985 FLRAdec CA



[ v20 p481 ]
20:0481(53)CA
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 c