20:0857(107)CA - Air Force, Scott AFB, IL And NAGE Local R7-23 -- 1985 FLRAdec CA



[ v20 p857 ]
20:0857(107)CA
The decision of the Authority follows:


 20 FLRA No. 107
 
 DEPARTMENT OF THE AIR FORCE 
 SCOTT AIR FORCE BASE, ILLINOIS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R7-23
 Charging Party
 
                                            Case No. 5-CA-20109
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practice alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General the Charging Party and the Respondent filed exceptions to the
 Judge's Decision, and the Respondent filed an opposition to the
 exceptions of the General Counsel and the Charging Party.
 
    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, conclusions and recommended Order, only to the extent
 consistent herewith.
 
    In reaching his conclusion that the Respondent had not violated
 section 7116(a)(1) and (5) of the Statute, the Judge found that the
 change of hours for the Battery Shop, which employed only one employee,
 from the hours of 3:00 a.m.-- 11:30 a.m. to the hours of 7:00 a.m. --
 3:30 p.m., constituted a change in the starting and quitting time of an
 employee on an established shift which he found to be a negotiable
 matter under the Statute.  The Judge relied on U.S. Customs Service,
 Region V, New Orleans, Louisiana, 9 FLRA 116 (1982) and Internal Revenue
 Service, Los Angeles District, 10 FLRA 653 (1982), in which the
 Authority concluded that where an agency fails to establish that a
 change in the starting and quitting times of employees on an established
 shift is integrally related to and determinative of the numbers, types
 and grades of employees or positions assigned to a tour of duty, the
 change constitutes a negotiable condition of employment.
 
    Contrary to the Judge's finding, the Authority concludes that the
 change of the Battery Shop attendant's hours constituted, in effect, the
 abolishment of his prior tour of duty and the establishment of a new
 tour which was more closely aligned with the normal tour of duty worked
 by most Scott Air Force Base employees, rather than simply a change in
 his starting and quitting time as found by the Judge.  Thus, the
 Authority finds the Judge's reliance on U.S. Customs Service, Region V,
 New Orleans, Louisiana and Internal Revenue Service, Los Angeles
 District to be misplaced inasmuch as both cases involved mere changes in
 the starting and quitting times of employees on an established shift.
 Rather, the Authority views its decision in National Federation of
 Federal Employees, Local 1461 and Department of the Navy, U.S. Naval
 Observatory, 16 FLRA No. 131 (1984) to be applicable to the facts of
 this case.  In U.S. Naval Observatory the Authority concluded that a
 union's proposal to maintain a tour of duty to which two employees had
 been assigned to start work at a significantly later time than the other
 agency employees, did not concern an adjustment of the starting time of
 a single tour of duty, but rather the retention of a separate tour of
 duty which the agency had decided to abolish based on operational
 necessity.  Thus, the Authority concluded that the union's proposal, by
 fixing a starting time significantly later than the starting time of the
 other employees in the organization and by identifying the two employees
 who would start work at the later hour, was directly related to the
 numbers, types and grades of employees assigned to a tour of duty within
 the meaning of section 7106(b)(1) of the Statute and was therefore
 negotiable only at the election of the agency.  /1/ Similarly, in the
 instant case, as a result of the Respondent's decision to significantly
 change the hours of operation of the Battery Shop based on operational
 necessity and for the safety of the attendant, the Union sought through
 negotiations to reinstate the Battery Shop attendant's previous
 schedule.  /2/ Moreover, the Union's proposed reinstatement of the prior
 schedule also identified the employee inasmuch as he was the only one
 assigned to the Battery Shop.  Accordingly, and noting particularly that
 the change in the Battery Shop attendant's hours constituted the
 abolishment of his previous tour of duty and that any proposal to
 reinstate that tour would in effect involve fixing a new tour of duty at
 a significantly earlier starting time than that worked by other
 employees as well as identifying the employee who would work those
 hours, the Authority concludes that such decision was integrally related
 to and thus determinative of the numbers, types and grades of employees
 or positions assigned to a tour of duty and was therefore negotiable
 only at the election of the Agency under section 7106(b)(1) of the
 Statute.  Therefore, the Respondent was not required to bargain as to
 the decision to change the employee's tour of duty.  As noted below,
 however, under certain circumstances agency management is obligated to
 notify an exclusive representative and bargain upon request concerning
 the procedures to be observed in implementing changes in tours of duty
 and over appropriate arrangements for employees adversely affected
 thereby.  We next consider whether such a duty to bargain arose in the
 circumstances of this case.
 
    Subsequent to the issuance of the Judge's Decision, the Authority
 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." (Footnote omitted.) 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 reasonably 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.  /3/
 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 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 facts of the instant case, the Authority finds, based
 upon the totality of the facts and circumstances presented herein, that
 the impact or reasonably foreseeable impact of the change involved was
 no more than de minimis.  Accordingly, it follows that the Respondent
 was under no obligation to negotiate with the Union pursuant to section
 7106(b)(2) and (3) of the Statute.  In reaching this result, the
 Authority notes that the change in the hours for the Battery Shop
 operation affected only one employee.  As a result, he was required to
 work from 7:00 a.m. to 3:30 p.m. rather than from 3:00 a.m. to 11:30
 a.m. Further, with respect to the nature of the change in tour of duty,
 the actual duties of the one employee involved were not affected in any
 manner.  However, the change in tour of duty did result in the loss of
 certain nightshift differential pay.  To reduce the impact of this loss
 of differential pay, the Respondent delayed the implementation of the
 change in the employee's tour of duty until January 11, 1982, at which
 time a general pay raise took place.  Furthermore, the Authority notes
 that while the change in question was permanent, it affected only one
 employee in a bargaining unit which is essentially base-wide.
 
    Based on the totality of facts and circumstances presented in this
 case, and noting particularly the overall limited nature of the change
 in tour of duty and the fact that only a single employee was affected in
 an essentially base-wide bargaining unit, the Authority concludes that
 the impact or reasonably foreseeable impact of the change on the
 conditions of employment of bargaining unit employees was no more than
 de minimis.  /4/ Accordingly, the Respondent was under no obligation to
 negotiate with the Union pursuant to section 7106(b)(2) and (3) of the
 Statute, and its implementation of the change in the employee's tour of
 duty therefore was not violative of section 7116(a)(1) and (5) of the
 Statute.  /5/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-20109 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., December 13, 1985
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ See also Department of the Air Force, Lowry Air Force Base,
 Colorado, 16 FLRA No. 144 (1984).
 
 
    /2/ As record testimony establishes, this starting time was
 significantly earlier than the starting time of the majority of the
 employees in the organization.
 
 
    /3/ 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.
 
 
    /4/ See, e.g., Federal Aviation Administration, 20 FLRA No. 45
 (1985);  Veterans Administration Medical Center, Phoenix, Arizona, 20
 FLRA No. 42 (1985);  Department of Housing and Urban Development,
 Columbia Area Office, Columbia, South Carolina, 20 FLRA No. 31 (1985);
 Office of Program Operations, Field Operations, Social Security
 Administration, San Francisco Region, 20 FLRA No. 10 (1985).
 
 
    /5/ In view of this conclusion, the Authority finds it unnecessary to
 pass upon the Judge's other findings, especially as to whether or not
 the Union properly invoked the services of the Federal Service Impasses
 Panel.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 
    DEPARTMENT OF THE AIR FORCE, 
    SCOTT AIR FORCE BASE, ILLINOIS
       Respondent
 
    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT 
    EMPLOYEES, LOCAL R7-23
       Charging Party
 
    Lt.  Colonel Gordon B. Finley, Jr.
    and Major Lawrence W. Kelly
    For the Respondent
 
    Quentin R. Rakestraw, Esq.
    For the Charging Party
 
    Claire R. Morrison, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
 et seq.
 
    Upon an unfair labor practice charge filed by the National
 Association of Government Employees, Local R7-23 (herein referred to as
 the Union) against the Department of the Air Force, Scott Air Force
 Base, Illinois (herein referred to as Respondent), the General Counsel
 of the Authority, by the Regional Director for Region V, issued a
 Complaint and Notice of Hearing on December 14, 1982 alleging Respondent
 refused to negotiate in good faith with the Union by changing the hours
 of operation of its Battery Shop and the duty hours of employee Robert
 Porter without having completed negotiations with the Union concerning
 the substance, impact and implementation of the change.
 
    A hearing on the Complaint was conducted on February 17, 1983 at
 which time all parties were represented and afforded full opportunity to
 adduce evidence, call, examine and cross-examine witnesses and argue
 orally.  Briefs were filed by Respondent and the General Counsel and
 have been duly considered.
 
    Upon the entire record in this matter, my observations of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein the Union has been the exclusive
 collective bargaining representative for various of Respondent's
 employees, including Battery Shop employee Robert L. Porter.  In
 September and October 1981 Respondent reviewed certain of its operations
 with a view to improving its maintenance posture.  Based upon that
 review Respondent concluded that some reorganization should be
 effectuated, including changing the hours of operation of the Battery
 Shop.  At that time the Battery Shop employed one employee, Robert L.
 Porter, whose tour of duty was from 3:00 a.m. to 11:30 a.m. Porter's
 responsibilities included distributing serviceable batteries and
 receiving returned unserviceable batteries used in various operations at
 the facility.  Respondent determined that by changing the hours of
 operation of the Battery Shop by having the shop open between the hours
 of 7:00 a.m. and 3:30 p.m., both the availability of batteries during
 peak usage hours would be improved and the safety of the Battery Shop
 attendant would be enhanced.  /1/
 
    Accordingly, by letter dated October 21, 1981 Respondent notified
 Porter that effective November 15 the Battery Shop tour of duty would be
 changed to 7:00 a.m. to 3:30 p.m. and provided Porter with the reasons
 for the change.  Porter passed this information on to Union President
 Carl Denton /2/ and, by letter to Respondent's Civilian Personnel Office
 dated October 23, 1981, Denton requested that Respondent ". . .
 negotiate to the fullest extent allowable by law . . ." on the matter.
 Denton further suggested that the present working hours be continued
 until the parties mutually agreed to change them.  Respondent thereafter
 requested that the Union submit written proposals on the subject upon
 which negotiations could proceed.  The change was not implemented and,
 by letter dated November 19, 1981 to Respondent, the Union submitted ten
 proposals on the subject, including the proposal that Porter's hours
 remain as they were.
 
    On December 1, 1981 representatives of Respondent and the Union met
 and considered the matter.  Management and the Union presented their
 views and discussed the change but were unable to come to agreement.
 The Union was substantially concerned over the economic impact of Porter
 losing the night pay differential he had been receiving, as well as
 various environmental aspects of the job, and proposed that the change
 in hours be delayed for six months.  Management countered that it was
 willing to delay the change until after January 1 when a general pay
 raise was to take affect but was unwilling to postpone the change beyond
 that time.  The parties acknowledged they were at impasse and the
 meeting was terminated.
 
    On December 23, 1981 Respondent gave the Union a "Notice of Intent"
 which, after noting the parties had reached impasse on December 1,
 indicated, inter alia, that Porter's hours would be changed on January
 10, 1981 to allow him ". . . time to make whatever personal adjustments
 he considers necessary." The Union responded on December 23
 acknowledging impasse in negotiations but objecting to the intended
 change, stating:  "We have no choice but to notify the FSIP and the FMCS
 that we desire to have their services in this matter." The Union
 requested Respondent ". . . maintain the status quo and help us enlist
 the help of the FMCS as soon as possible." On that same day Union
 President Denton sent the following letter by certified mail to the
 Federal Mediation and Conciliation Service (FMCS) noting on the bottom
 of the letter that copies were also sent to Respondent and the Federal
 Service Impasses Panel:  /3/
 
       "The undersigned union representative has been negotiating with
       management at Scott Air Force Base, Illinois over the duty hours
       of a bargaining unit employee.  We are now at impasse and request
       that you provide your services as soon as possible to help resolve
       the matter."
 
    In addition, on the same day Denton sent the following letter to the
 Federal Service Impasses Panel (FSIP), with a copy to Respondent and the
 FMCS:  /4/
 
       "The undersigned union representative has been engaged in
       negotiations with management at Scott Air Force Base, Illinois
       over the duty hours of one Mr. Robert Porter.  I requested the aid
       of the FMCS in this matter and am notifying you of the situation
       and the union's desire for management to maintain the status quo
       during the impasse procedures."
 
    On January 8, 1982 Respondent sent a letter to the Union which
 stated:
 
       "1.  Be advised that it is our intent to petition the Federal
       Services Impasses Panel for a post implementation decision
       regarding the matter of Mr. Robert L. Porter's duty hours.  In
       this regard, management will abide by the decision.  "2.  The duty
       hours of Mr. Porter will be changed as previously stated in our
       letter dated 23 December 1981, Subject:  Notice of Intent:  Change
       of Duty Hours, Battery Shop (375 CAMS/MAF)." (Emphasis in the
       original).
 
    At no time after the Union's initial letters to the FSIP or FMCS did
 the Union or Respondent have any further communication to or from either
 the FSIP or the FMCS.
 
    On January 11, 1982 Respondent changed the hours of operation of the
 Battery Shop and the duty hours of employee Robert Porter as previously
 announced.
 
                        Discussion and Conclusions
 
    The General Counsel and the Union contend that Respondent was
 obligated to bargain in good faith with the Union on the substance,
 impact and implementation of the change in hours and was precluded from
 effectuating the changes upon the Union's invoking the processes of the
 FSIP.  Respondent denies it was obligated to bargain with the Union
 about the substance of the change and contends that it was a management
 right under the Statute to effectuate the change and avers that, in any
 event, the Union failed to properly or sufficiently invoke the processes
 of the FSIP.  /5/
 
    It is well settled that starting and quitting times of employees on
 an established shift is a condition of employment and an employer
 violates the Statute by not affording its employees' exclusive
 representative opportunity to negotiate fully on the decision to change
 the shift hours.  U.S. Customs Service Region V New Orleans Louisiana, 9
 FLRA No. 15 (1982) and Internal Revenue Service Los Angeles District, 10
 FLRA No. 107 (1982).  Accordingly, Respondent's contention to the
 contrary is rejected.  I further reject Respondent's contention that the
 matter was nonnegotiable since it was exercising a management right
 under 7106 of the Statute.  U.S. Customs Service and Internal Revenue
 Service, supra.
 
    The law under the Statute is similarly clear that an agency or
 activity may not implement impassed proposals while resolution of such
 impassed proposals is pending before the FSIP.  /6/ However, I conclude
 that the facts herein do not establish that the Union effectively
 invoked the processes of the FSIP after impasse in negotiations and
 Respondent's notice to the Union on December 23, 1981 that it would
 effectuate the change in duty hours in the Battery Shop on January 10,
 1982.  While the Union's letter of December 23 to the FMCS requested
 that agency's services to resolve the impasse, the letter to the FSIP
 simply notified the FSIP ". . . of the situation and the union's desire
 for management to maintain the status quo during impasse procedures."
 Thus, the literal language of the Union's letter to the FSIP did not
 request the FSIP to intervene in the matter but, rather, merely supplied
 the FSIP with a status report of the situation.  Further, the
 regulations governing FSIP involvement were not followed if it was the
 Union's intent to invoke the processes of the FSIP.  Section 2471.3(a)
 of the Authority's Rules and Regulations governing requests for FSIP
 consideration of an impasse provides that the request include specific
 information such as the statements of issues at impasse, the summary
 positions of the parties and information regarding the number, length
 and dates of negotiation and mediation sessions.  However, the Union's
 letter of December 23 did not contain such information nor did the Union
 furnish this data to the FSIP at any other time.  Moreover, the FSIP did
 not acknowledge receipt of the Union's letter nor in any way suggest
 that it was aware that its assistance was being sought.  In such
 circumstances I must infer that the FSIP did not conclude that its
 processes were, in fact, invoked by the Union's letter of December 23.
 
    In the particular circumstances herein, including the fact that in
 the almost 14 months which transpired between the Union's letters to the
 FSIP and the FMCS, no further communication was made between the Union
 or Respondent and those agencies, /7/ I conclude that after impasse the
 Union did not invoke the processes of the FSIP and the matter was not
 before the FSIP.  Therefore, since after impasse the FSIP's processes
 were not invoked Respondent was privileged to implement the change under
 consideration herein.  Accordingly, in view of the entire foregoing it
 is recommended that pursuant to 5 C.F.R. 2423.29(c), the Authority issue
 the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-20109 be,
 and hereby is dismissed.
                                       (s)---
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ Respondent was concerned over the safety of the Battery Shop
 attendant in that insufficient assistance was available to the attendant
 between the hours of 3:00 a.m. and 7:00 a.m. in the vent of an accident
 due to the small small number of the other employees working during
 those hours.
 
 
    /2/ Porter was a Union Steward at this time.
 
 
    /3/ A return receipt indicates that