24:0743(74)CA - DOL, Occupational Safety and Health Administration and National Council of Field Labor Locals, AFGE Local 644 -- 1986 FLRAdec CA
[ v24 p743 ]
The decision of the Authority follows:
24 FLRA No. 74 U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Respondent and NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 644 AFL-CIO Charging Party Case No. 2-CA-40440 DECISION AND ORDER I. Statement of the Case This unfair labor practive case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Charging Party (The Union) and by the General Counsel. The Respondent filed replies to the Charging Party's and the General Counsel's exceptions. The complaint alleged that the Respondent changed a past practice and policy affecting unit employees by assigning certain Industrial Hygienists (IH) to perform administrative duties in the Philadelphia Area Office (PAO) for scheduled 30-day periods without notifying the Union and bargaining with it over the impact and implementation of the change, thereby violating section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). II. Background The Union is the exclusive representative of a nationwide unit of employees, including those in the PAO. At the time of the hearing, there were, among other employees, nine nonsupervisory IHs in the PAO -- four GS-12s and five GS-11s, and two IH supervisors, including Eduardas Skladaitis. The IHs duties involve conducting industrial hygiene inspections in a variety of work places to determine compliance with the Occupational Safety and Health Act (OSHA), 29 U.S.C. Section 651, et seq. Sometime in June 1984, Skladaitis met with the four GS-12 IHs and informed them that the office administrative duties had grown to a point that he could no longer handle them alone; and that each would be assigned to the office to assist him with such duties for 30-day periods on a rotating basis. He then discussed such duties; requested the employees to select the months which they preferred to perform them; and stated that he would schedule each employee for two rotations initially and at the end of the eight-month period he would set up another schedule. Shortly thereafter, the four IHs were given copies of a June 7, 1984 memorandum which described the duties to be performed during the assignment, including the supervisor's expectations with respect to the employees' processing of their regular inspection work. The assignments began on June 11, 1984 and ended around December 1984 when a second IH supervisor was hired. Most of the IHs were rotated only once and some did not serve an entire 30-day rotation. The Union was not notified of these assignments, and learned of them after the implementation date. III. Judge's Decision The Judge found that the assignments constituted a change in past practice and policy concerning the performance of administrative duties since some of the required duties had never been performed by the four IHs; others had been performed infrequently; and the employees had never been required to spend such an extended period performing duties not directly related to the investigation of their assigned cases. The Judge also noted areas where the Union identified potential adverse impact. The Judge applied the factors set out in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985) and concluded that the impact or reasonably foreseeable impact of the change on the unit employees was no more than de minimis. In so concluding, he noted that the assignemnts did not change the employees' normal duties, office location, space, hours, or benefits; were made to cover growing administrative duties in the PAO; were not permanent; and affected only four employees in a nationwide unit. He further noted that it was not clear from the record that similar changes were ever negotiated at the area office level. IV. Positions of the Parties The General Counsel desagrees with the Judge's conclusion and contends that the evidence and the Judge's findings of fact compel the conclusion that the reasonably foreseeable impact of the change on the unit employees' conditions of employment was more than de minimis. The Union essentially contends that the de minimis test applied by the Judge is inconsistent with the Statute and its legislative history, and therefore, requests the Authority to reconsider that test. Alternatively, it requests the Authority to adopt a "demonstrable present or future impact" test. The Union argues that the change in this case had an "extensive demonstrable effect on unit employees," as well as a "foreseeably demonstrable effect"; therefore, the Respondent's action constitutes a violation requiring, among other things, a status quo ante remedy. The Respondent supports the Judge's Decision. It further argues, with regard to the General Counsel's contention, that even assuming the Authority found that the change was more than de minimis at the time it was instituted, the complaint should be dismissed because (1) the rotations were terminated prior to the hearing, (2) no adverse impact resulted, and (3) the subjects the Union would have negotiated (leave, training and the impact on performance evaluations) were covered by the parties' national agreement. V. Analysis In Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. We stated that in order to determine whether a change in conditions of employment requires bargaining, we would carefully examine the pertinent facts and circumstances presented in each case; and that in examining the record, principal emphasis would be placed on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment. We also stated that equitable considerations would be taken into account in balancing the various interests involved; that the number of affected employees and the parties' bargaining history would be given limited application; and that the size of the bargaining unit would no longer be applied. Applying the revised standard to this case, we find based on the facts and circumstances that the nature and extent of the change gave rise to a duty to bargain. In this regard we note that the duration of the change was initially indefinite; that the change required the employees to perform new duties, and others which they had performed only on an infrequent basis; and that it required the employees to spend an extended period, which had never been required before, performing functions not directly related to their case investigations. We also note, as found by the Judge, that the Union identified areas of potential adverse effect involving training, leave, and promotional opportunities, and was concerned that the change could decrease the time for employees to accomplish their normal inspection duties. The Union also argued that the change could cause employees to miss their assigned due dates, and would interfere with their timely writing of inspection reports which could affect their performance evaluations. In view of these circumstances, the assignment of administrative duties in this case resulted in an obligation to bargain. Further, noting that the Union was not notified of the change and that there is no evidence to show that it clearly and unmistakably waived its right to negotiate over the impact and implementation of such change, we find no merit to the Respondent's contention that the complaint should be dismissed because certain matters that the Union would have negotiated were covered by the parties' national agreement. Therefore, we find the the Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged. VI. Remedy The Union requests a status quo ante order to remedy the unfair labor practices by the Respondent. We conclude that such a remedy is not warranted in the circumstances of this case where the evidence shows that the assignments were discontinued prior to the hearing in this case. Thus, in these circumstances where a status quo ante remedy would be meaningless, a prospective bargaining order should fully remedy the refusal to bargain violations. /*/ See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 594 (1985). VII. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision and the entire record, including the parties' contentions, and adopts the Judge's findings and conclusions only to the extent consistent with our decision above. ORDER Pursuant to Section 2423.29 of the Authority's Rules and Regulations and Section 7118 of the Statute, it is hereby ordered that the Department of Labor, Occupational Safety and Health Administration: 1. Cease and desist from: (a) Implementing a change in the working conditions of its employees in the Philadelphia Area Office concerning the assignment of administrative duties without first notifying the National Council of Field Labor Locals, American Federation of Government Employees, Local 644, AFL-CIO, the employees' exclusive bargaining representative, and affording it an opportunity to negotiate with respect to the procedures to be observed in implementing such changes and concerning appropriate arrangements for employees adversely affected thereby. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, bargain with the National Council of Field Labor Locals, American Federation of Government Employees, Local 644, AFL-CIO, the employees' exclusive bargaining representative, with respect to procedures and appropriate arrangements for employees adversely affected by the implementation of the change concerning the assignment of administrative duties. (b) Post at its Philadelphia Area Office 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 the Area Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where Notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said Notices are not altered, defaced, or covered by any other material. (c) Purcuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, 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. December 22, 1986 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUNAT 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 implement a change in the working conditions of our employees in the Philadelphia Area Office concerning the assignment of administrative duties without first affording the National Council of Field Labor Locals, American Federation of Government Employees, Local 644, AFL-CIO, the employees' exclusive bargaining representative, an opportunity to negotiate with respect to the procedures to be observed in implementing such change and concerning appropriate arrangements for employees adversely affected thereby. 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 Statute. WE WILL, upon request, bargain with the National Council of Field Labor Locals, American Federation of Government Employees, Local 644, AFL-CIO, our employees' exclusive bargaining representative, with respect to procedures and appropriate arrangements for employees adversely affected by the implementation of the change concerning the assignment of administrative duties. (Activity Dated: . . . . . . By: . . . . . . . Philadelphia Area Director 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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 2-CA-40440 U.S. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION Respondent and NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 644 AFL-CIO Charging Party Barbara S. Liggett, Esquire For the General Counsel Mark Maxin, Esquire For the Respondent Before: ELI NASH, Jr. Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on October 31, 1984 by the Regional Director for the Federal Labor Relations Authority, New York, New York, a hearing was held before the undersigned on February 19, 1985. This proceeding arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It resulted from a charge filed on August 1, 1984 by the National Council of Field Labor Locals, American Federation of Government Employees, Local 644, AFL-CIO, (herein called the Union) against U.S. Department of Labor, Occupational Safety and Health Administration (herein called the Respondent). The Compalint alleges that the agency violated sections 7116(a)(1) and (5) of the Statute by changing a past practice and policy affecting bargaining unit employees by assigning GS-12 Industrial Hygienists to perform administrative duties in its Philadelphia Area Office for scheduled 30-day periods. All parties were represented at the hearing. Each was afforded full opportunity to be heard, adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the follwing findings and conclusions: Findings of Fact The Union is the exclusive representative of a nationwide unit of employees, including employees of its Respondent's Philadelphia Area Office. The Charging Party is a constituent local of the Union. A collective bargaining agreement, effective August 17, 1978, is currently in effect between the Union and Respondent. The Philadelphia Area Office supervisory staff is headed by Area Director Bernard Dillon and five supervisors in 3 different areas: two industrial hygienist supervisors, two safety supervisors, and an office management supervisor who is responsible for the clerical staff ahd who report to Dillon. Eduardas Skladaitis and Chris Komis are the industrial hygienists supervision. In addition to the supervisors there were at the time of the hearing nine nonsupervisory industrial hygienists in the office: four GS-12s and five GS-11's. Sometime in early June 1984, Skladaitis called a meeting of the four GS-12 industrial hygienists in the office and informed them that the office administrative duties had grown to a point where he could no longer handle all the duties alone. Skladaitis told the GS-12's that they would be assigned, on a rotating basis, to be in the office for 30-day periods to assist him in performing these various administrative duties. Skladaitis then discussed, in general terms, the administrative functions he was assigning to them. Skladaitis requested that the employees select the months which they preferred to perform their administrative assignments, and said that he would schedule two rotations for the time being, and then at the conclusion of the eight month period, set up the schedule again. Shortly thereafter, probably a day or two after the meeting, the four were given copies of a memorandum dated June 7, 1984, which established precise duties to be performed during the administrative assignments to the office including, Skladaitis' expectations with respect to the employees' processing of their regular inspection work. The memorandum stated in part that, (n)o field work will be required during these periods unless an emergency situation should occur. You are expected to review your open assignments prior to these periods to ensure that any necessary field work is performed before your assignment to the office. The memorandum also provided that "(a)s time permits, you should also work on open case files requiring no field activity." It also provided that the GS-12 assigned to the office would serve as an acting supervisor in Skladaitis' absence. The assignments by Skladaitis which were reaffirmed in his June 7, 1984 memorandum, constituted a change in past practice and policy concerning the performance of administrative duties since some of the required duties had never been performed by the four GS-12 industrial hygienists. /1/ Other duties had been performed only on an infrequent basis, at Skladaitis' request. In addition, the GS-12's had never been required to spend such an extended period of time performing functions not directly related to the investigation of the case assigned to them. However, the sole administrative duty that none of the 4 had performed was tracking which involved following the development of a case to determine its status until final abatement is reached. This involved no more than 5 to 10 percent of the duties to be performed during rotation. Thus, the testimony of two industrial hygienists Barry Scott and Pauline Caraher was that they had not performed certain duties listed in the June 7 memorandum. On June 11, 1984 Respondent started the administrative assignment rotations. The evidence reveals that the Union was not notified of these administrative assignments. Union President Richard Clougherty, who is one of the Union officials designated to received notice of change in the Philadelphia Area Office, learned of the change in administrative assignments in the Philadelphia office only after the implementation date of the change. Then he learned of the changes only when another Union officer, James Weyrauch, telephoned Clougherty to inquire whether the Union had been notified of changes affecting Philadelphia industrial hygienists. Weyrauch had himself learned of the administrative duty change from the affected GS-12's, who showed him copies of the June 7, 1984 memorandum and wanted to know if the Union was aware of the change. After speaking with Weyrauch and reviewing a copy of the June 7, 1984 memorandum, Clougherty determined that the change in assignments announced by Skladaitis was likely to have an adverse impact on the affected employees, and filed the instant unfair labor practice charge. The administrative duty rotations ended around December 1984 because a second industrial hygienist supervisor had been selected, thereby, eliminating Skladaitis' problems. Consequently, most of the industrial hygienists were rotated only once and even then some did not serve an entire 30-day rotation. The Union apparently foresaw a number of areas of potential adverse impact. The 30-day rotation among only four employees it felt would result in employees spending 90 days per year on administrative duties, thereby, eliminating a significant portion of the time which had been available to GS-12's to accomplish their normal inspection duties. The Union's concern was that while the performance of administrative duties is an element of the performance standards for the affected employees, it is a non-critical element. The Union also was concerned that employee evaluations might be negatively affected by the decrease in inspections which appeared to be an unavoidable consequence of spending so much time on non-inspection duties. While employees do not have individual quotas for numbers of inspections they are required to complete in a year, the Philadelphia office does have such a quota, of which employees are constantly reminded throughout the year. In addition, Respondent publishes a newsletter giving an average number of inspections per industrial hygienist on both a region-wide and nation-wide basis. The Union feared, based on past experience, that if the office did not meet its goals, management would look for employees who had not contributed the necessary number of inspections. The Union also felt that the decrease in numbers of inspections performed could affect employees' performance evaluations because the standards allow for only one report with deficiencies per twenty-five consecutive inspections. Thus, the Union feared that as the number of inspections decreased, employees would be penalized disproportionately for errors. In addition to the adverse impact anticipated as a result of the decreased amount of time available for inspection activities, the Union anticipated adverse impact from confining employees to the office for the extended 30-day periods. In this regard, a critical element of the GS-12 performance standards in "Time Utilization." Here each case assigned to an industrial hygienist is given a due date by Skladaitis. The "Time Utilization" element allows for only five missed due dates per evaluation period. The concern here being that employees serving their 30-day administrative assignments would be unable to complete the work necessary to submit their cases to Kskladaitis for review by the due dates. There was no apparent modification of due dates as a result of the assignment of the administrative duties. Contrariwise, the language of the June 7, 1984 memorandum is that employees were to plan their field work so that inspections were completed prior to the administrative assignments, and report writing could during the assignments "as time permits." Although all witnesses testified that the administrative duties were in fact too extensive to allow for time to write up inspection reports, this statement in the June 7, 1984 memorandum raised a possibility that employees would be held accountable for completion of their open inspection cases while juggling new administrative duties. Apparently, Skladaitis sought to dispel any adverse consequences for assuming such administrative duties by talking to hygienists such as Caraher. However, no assurances were given in writing. In addition, Article 43, Section 12 of the parties' collective bargaining agreement seemingly requires that performance appraisals make allowance for factors beyond the control of the employee. Besides these concerns the Union saw an impact of the 30-day assignments on the critical element of "Time Utilization" as an increase in the average report preparation time compared to the average on-site inspection time. Therefore, if an employee completed an on-site inspection and then began serving a 30-day administrative assignment during which he or she was forced to put the inspection aside and attend to other duties, the eventual report writing time would be longer than if that employee had been allowed to write up the case immediately after completion of the inspection, thereby preventing the employee from meeting that critical element. Finally concern about training; the impact of the 30-day assignments on annual leave schedules or sick and emergency leave; and a concern that the rumored second supervisory industrial hygienist position would be announced and filled before all GS-12's had an opportunity to serve in this administrative function, giving an advantage in the category of experience to the GS-12's who had completed the earlier rotations. Discussion and Conclusions Respondent's principal defense in this matter is that the impact of the assignment of administrative duties herein was de minimis. In a spate of cases since the hearing in this matter, the Authority has dealt with the question of whether a 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. See Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA 827 (1985); Department of the Treasury, U.S. Customs Service, 19 FLRA No. 128, 19 FLRA 1155 (1985); United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 20 FLRA No. 6, 20 FLRA 46 (1985); Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA No. 9, 20 FLRA 80 (1985); Federal Aviation Administration, Washington, D.C.; 20 FLRA No.11, 20 FLRA 112 (1985); Department of Housing and Urban Development, Columbia Area Office, Cloumbia, South Carolina, 20 FLRA No. 31, 20 FLRA 233 (1985); U.S. Department of Housing and Urban Development, Washington, D.C. Area Office, 20 FLRA No. 38, 20 FLRA 374 (1985); Federal Aviation Administration, 20 FLRA No. 45, 20 FLRA 420 (1985); Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA No. 52, 20 FLRA 474 (1985); Environmental Protection Agency, Region II, 20 FLRA No. 76, 20 FLRA 644 (1985). In the above cases the Authority set out 5 factors it would use in determining whether a change was more than de minimis. Those factors are: 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; 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. The Authority also noted that a determination as to whether the exercise of a management right under section 7106(b)(2) and (3) will not necessarily require in every case a determination or to whether the exercise of the management right results in a change in a condition of employment having an impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree in impact is at issue in the case. Here Respondent exercised a management right when it assigned administrative work to the GS-12's on a temporary basis. Therefore, the nature and degree of impact must be considered under criteria established by the Authority. /2/ In all the circumstances of this case, applying the suggested factors it must be found that the impact or reasonably foreseeable impact on conditions of employment of unit employees caused by requiring four unit employees to perform administrative and supervisory duties assigned to them was no more than de minimis. It is noted that the administrative duties assigned to these employees did not change their normal duties of which they were basically relieved during the 30-day period in which they rotated into the administrative assignments. Nor did it change their location, office space, hours or benefits. In addition, the assignments were made to cover growing administrative duties in the Philadelphia Area Office for a temporary period. The duration of the change was brief, lasting approximately six months although initially it appeared that it would have been in effect for a much longer period of time. time. However, there is no indication from the record that the change was ever intended to be permanent. It appears that, at best, the assignment of administrative duties was only intended to last until a new supervisory employee was selected. As to the number of employees affected and the size of the bargaining unit, only four employees in a nationwide unit, which included many industrial hygienists, were required to perform these administrative duties on a rotating basis. Furthermore, there is no evidence to indicate that these administrative assignments would have been required on a wider scale or on a permanent basis, either among Skladaitis' employees or other employees activity wide. Finally, it is not clear from the record that analogous changes were ever negotiated at the area office level. Based on the foregoing, and noting the slight nature of the change and the small number of employees affected, it is found that the impact or the reasonable foreseeable impact of the change on unit employees' conditions of employment in this matter was no more than de minimis. Accordingly, it is found that 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. It is therefore, recommended that the Authority adopt the following: ORDER IT IS ORDERED that the Complaint in Case No. 2-CA-40440 be, and it hereby is, dismissed. /s/ ELI NASH, JR. Administrative Law Judge Dated: January 22, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Skladaitis and Dillon testified that the GS-12's had previously performed all of the listed administrative duties when serving as acting supervisor. Skladaitis admitted however, that he knew training was necessary before employees could be expected to perform the duties listed in his June 7, 1984 memorandum. Skladaitis further admitted that the most extended period of time for which an employee had ever been assigned as acting supervisor was from several days to a week. He further acknowledged that an employee serving as acting supervisor would not be expected to perform the full range of supervisory duties. (2) Member McGinnis, in a separate concurring opinion would have, in addition to the listed factors, utilize a sixth factor in determining de minimis issues.