28:0409(64)CA - HHS, SSA, Baltimore, MD and AFGE Local 3512 -- 1987 FLRAdec CA



[ v28 p409 ]
28:0409(64)CA
The decision of the Authority follows:


28 FLRA No. 64

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND

                      Respondent

           and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3512, AFL-CIO

                      Charging Party

Case No. 86-CA-60355

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this case. The Judge found that the allegation in the complaint of a unilateral change in duty hours is barred by section 7118(a)(4)(A) of the Federal Service Labor - Management Statute (the Statute). He recommended that this allegation be dismissed. He also found that the Respondent had engaged in the unfair labor practices alleged in the other portion of the complaint, and he recommended that the Respondent be ordered to take appropriate remedial action. The Charging Party has filed an exception to the Judge's decision that the allegation of a unilateral change is barred by section 7118(a)(4)(A).

Pursuant to section 2423.29 of our Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and we find that no prejudicial error was committed. The rulings are affirmed. On consideration of the Judge's decision, the exception, and the entire record, we adopt the Judge's findings, conclusions and recommended order.

ORDER

A. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Bypassing the American Federation of Government Employees, Local 3512, AFL - CIO, the [PAGE] exclusive representative of its employees, and dealing directly with such employees by soliciting their opinions concerning personnel policies, practices, and matters affecting their working conditions.

(b) In any like or related matter, 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) Post at its facilities at the Albuquerque, New Mexico, Data Operations Center, 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 Director of the Albuquerque Data Operations Center and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and other places, where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(b) Notify the Regional Director of Region VIII, Federal Labor Relations Authority, Suite 310, 350 South Figueroa Street, 10th floor, Los Angeles, California, 90071, in writing as required by section 2423.30 of the Authority Rules, of the steps taken to comply with this Order.

B. The allegations of Paragraph 8 of the complaint are dismissed

Issued, Washington, D.C., July 31, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p2 ]

              NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
       AND TO EFFECTUATE THE POLICIES OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
           WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT bypass the American Federation of Government Employees, Local 3512, AFL - CIO, the exclusive representative of our employees, and deal directly with unit employees by soliciting their opinions concerning personnel policies, practices, and matters affecting their working conditions.

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.

                                ___________________________
                                   (Agency or Activity)

Dated: ___________________  By: ___________________________
                                        (Signature)

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 VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, 10th floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. [PAGE]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION,
BALTIMORE, MARYLAND

               Respondent

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3512, AFL-CIO

               Charging Party

Case No. 86-CA-60355

Irving L. Becker, Esquire
     For the Respondent

Deborah S. Wagner, Esquire
     For the General Counsel

Before:   WILLIAM B. DEVANEY
          Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq. 1 and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns whether: (a) Respondent on, or about, January 13, 1986, unilaterally changed the starting and quitting times for night shift employees at its [PAGE] Albuquerque, New Mexico, Data Operations Center without first notifying the union and affording it the opportunity to negotiate concerning the change and the impact and implementation of the change 2 ; and (b) Respondent sent a questionnaire to night shift employees regarding their hours of work without consent of the union, thereby by-passing the Union, all in violation of 16(a)(1) and (5) of the Statute.

This case was initiated by a charge filed on May 9, 1986 (G.C. Exh. 1(a)), which alleged violations of 16(a)(1) and (5) of the Statute and by a First Amended Charge, filed on June 21, 1986, which alleged violations of 16(a)(1), (5) and (8) of the Statute (G.C. Exh. 1(b)). The Complaint and Notice of Hearing issued on July 28, 1986 (G.C. Exh. 1(c)), alleged violations only of 16(a)(1) and (5) of the Statute, and set the hearing for September 19, 1986, pursuant to which a hearing was duly held in Albuquerque, New Mexico, on September 19, 1986, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses, and were afforded, and exercised, the opportunity to present oral argument. At the conclusion of the hearing, October 20, 1986, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, upon timely motion of Respondent, to which General counsel did not object, for good cause shown, to November 20, 1986. Respondent and General Counsel each timely mailed an excellent brief, received on, or before, November 21, 1986, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings

1. Since about 1979, the Albuquerque Data Operations Center. 3 (hereinafter, also referred to as ADOC) has had [ v28 p2 ] both a day shift and a night shift. The day shift works on a permanent, year-round basis; but the night shift is employed only on a seasonal basis. Generally, the night shift exists from January until about September of each year, at which time the employees are laid off for the remainder of the year (Tr. 31).

2. Historically, since the night shift was instituted in about 1979, the hours for the night shift at ADOC were 4:00 p.m. to 12:30 a.m. (Tr. 31-32); however, on January 27, 1984, the parties entered into a supplemental Agreement (G.C. Exh. 2), pursuant to Article 5 of the Master Agreement (Res. Exh. 1), which provided for flextime in the Data Operations Centers. The flextime for ADOC was effective the first full pay period of April, 1984.

3. The Supplemental Agreement provided that if 15% or more of the employees on a shift did not use flextime, flextime would be cancelled for that shift. Less than 15% of the night shift employees at ADOC used flextime and, accordingly, flextime for the night shift at ADOC was cancelled on June 1, 1984, effective June 11, 1984 (G.C. Exh. 16). During the remainder of the 1984 season, the hours of the night shift at ADOC for all employees reverted to the "Normal Shift" hours of 4:00 p.m. - 12:30 a.m.

4. During 1984, the Director, Office of Central Records Operations, advised all Data Operations Center Employees that pursuant to the Social Security Amendments Act of 1983, Social Security benefits, for people at certain levels of taxable income, would be taxed beginning with income received in 1984; that statements of benefits would be mailed between January 5-29, 1985; and that a new system, Payment History Update System (PHUS), would be instituted to provide the necessary statement of income (G.C. Exh. 3; Tr. 30). Although the "direct line to you" (G.C. Exh. 3) is numbered, No. 84-11, and its receipt acknowledged (Tr. 30), it was not dated and the record is silent as to the date of the distribution and/or receipt.

5. Sometime during 1984, Respondent's Labor Relations Officer, Mr. Kenneth E. Herrea (Tr. 107-108), subsequently Operations Manager (Tr. 108), spoke with Ms. Rose M. Lucas, President of Local 3512 (Tr. 24-25), about changing the hours of the night shift from 4:00 p.m. - 12:30 a.m. to 3:30 p.m. - 12:00 midnight because of the new workload caused by the PHUS. Ms. Lucas testified that the conversation took place in December, 1984 (Tr. 29), while Mr. Herrea placed it in either April or May, 1984. Although [ v28 p3 ] I have serious doubt that the conversation occurred in December, 1984, as Ms. Lucas testified, the April - May date, as asserted by Mr. Herrea, is obviously erroneous, inter alia for the reason, as Mr. Herrea conceded, his conversation with Ms. Lucas occurred after the flextime for the night shift had been cancelled (Tr. 123) and, accordingly, the conversation in question could not have taken place in either April or May as the cancellation of flextime for the night shift was not effective until June 11, 1984 (G.C. Exh. 16). Therefore, as between the conflicting dates asserted, I credit Ms. Lucas' testimony that the conversation occurred in December, 1984, notwithstanding a strong suspicion that neither date is correct 4 as the conversation could have occurred in December but not in April or May. Since the only significance of the date of the conversation between Ms. Lucas and Mr. Herrea is whether their disagreement affects credibility, I specifically do not find that the credibility of either witness is either enhanced or reduced by their disagreement as to the date of the conversation.

6. As to the content of their conversation in 1984, there is no substantial disagreement between Ms. Lucas and Mr. Herrea. Thus, Ms. Lucas testified as follows:

"Q. After June of 84, what hours could night shift start? [ v28 p4 ]

"A. 4:00 o'clock in the afternoon.

"Q. Were there any more changes after that?

"A. Yes, there was. In December of 84, I spoke to Mr. Ken Herrea, which at that time was the labor relations officer, and he informed me at that time that they were going to be having a new workload called PHUS which is payment update -- Payment History update System.

"It was just taxes, Social Security benefits over a certain amount. He went on to explain that in order to coordinate the times with the other data centers, Pennsylvania and California, it would be necessary for the night shift to come in at 3:30 instead of 4:00 o'clock. He just said that this would make it easier because we were now going to be answering phones.

"Q. What was your response to that?

"A. I told him at that time I had no problems with it, because he did inform me that this would be going on during this workload, PHUS workload." (Tr. 29)

Mr. Herrea testified as follows:

"Q. Now, in 1984, do you recall having had any contacts or meetings with the union officials at the ADOC with respect to changing of tour of duty of the night shift employees from 4:00 o'clock to 12:30 a.m. to 3:30 p.m. to 12:00 midnight?

"A. Yes, I do. Sometimes in either April or May . . . I met with Rose Lucas on several issues. One of them dealt with changing the tour of duty from 4:00 to 12:30 to 3:30 to 12:00.

"Q. What transpired in those discussions? [ v28 p5 ]

"A. well, on the issue, the change in tour of duty, I simply notified Rose that we had intended -- that we intended to change the tour of duty, because we were expecting a workload that would require us to answer telephone calls, and we wanted to eliminate the gap of time between the first and second shift. There was a couple of other reasons that we wanted to change the tour of duty. (Tr. 109).

Q. "What were the other reasons?

"A. One of the other reasons was that we had recently converted from a dual computer pack system, which required that -- between shifts, there are certain computer functions that need to be performed to bring down the system that the day shift used and bring up the system that the night shift was going to use. So the gap between shifts was necessary at that point.

"After we went to a single pack system, that gap was no longer required, and we decided to kill two or three birds with one stone: change the tour of duty to accommodate the new workload; and since we had the dual (sic) pack system, we didn't need that gap of time . . .

"Q. Was the union advised of all of this at the time?

"A. I discussed several reasons for--

"Q. Personally?

"A. . . . the change with Rose.

"Q. You personally discussed this with Rose?

"A. I notified Rose the reasons for the change. [ v28 p6 ]

"Q. Did she ask to negotiate on this?

"A. No, she did not." (Tr. 111-112).

7. There is no doubt that, at the time of her conversation with Mr. Herrea, Ms. Lucas believed the change of hours of duty for the night shift from 4:00 p.m. to 12:30 a.m. to 3:30 to 12 midnight would end when the PHUS workload ended. The PHUS program ended April 15, 1985 (Tr. 32), but the hours remained 3:30 - 12:00 midnight at which time the Union objected (Tr. 32-33). Ms. Lucas, referring to General Counsel Exhibit 4, stated,

". . . This was the initial correspondence we sent to our labor relations officer, Barbara DePuy, in letting her know why was it permanently changed on the hours." (Tr. 33).

General Counsel Exhibit 4, a memorandum from Chief Steward Ollieta A. Lee to Labor Relations Officer, Barbara DePuy, dated May 24, 1985, stated, in part, as follows:

"Officers of the union have recently become aware that the night Tour of Duty has apparently been permenantly (sic) changed." (G.C. Exh. 4) (Emphasis in original).

Again, by memorandum dated June 17, 1985, Chief Steward Lee, with regard to the permanent change of the tour of duty for the night shift, stated,

"The union became aware of this unilateral change after completion of the PHUS workload . . . ." (G.C. Exh. 6).

8. Sometime, presumably in June, 1985 (Tr. 39), the union filed an unfair Labor Practice Charge 5 Case No. [ v28 p7 ] 6-CA-50649, with respect to which the Regional Director, by letter dated December 5, 1985, refused to issue a complaint, stating, in part, as follows:

"The above-captioned case alleging a violation of section 7116(a)(1)(5) and (8) of the Federal Service Labor - Management Statute has been investigated and considered carefully.

"As a result of the investigation, it does not appear that the Activity violated Section 7116(a)(1)(5) and (8) of the Statute, as alleged, . . . by implementing a change in the night shift tour of duty without prior notice to the Union.

"Rather, the investigation revealed that in December 1984, duty hours for night shift 'seasonal' employees for the 1984-1985 season were changed from 4:00 p.m. to 12:30 a.m., the duty hours of the preceding season, to 3:30 p.m. to 12:00 a.m. The Union asserts this change was negotiated with the Activity and the Union's understanding of the agreement reached was that the changed hours would remain changed until the conclusion of the 1985 income tax season on or about April 15, 1985. At that time, the duty hours would return to 4:00 p.m. to 12:30 a.m. The Union, however, could not produce any documentation or agreement to support this claim. (G.C. Exh. 8).

9. Ms. Katie Wade, Vice - President of Local 3512 (Tr. 52) testified that on, or about, December 15, 1985, a memorandum was received by the Union from Ms. DePuy, Labor Relations Officer, which stated that the tour of duty for the night shift nurse would start at 3:30 p.m. when the night shift began in January, 1986 (Tr. 53); that she contacted personnel and was informed that letters had been sent advising the night shift employees when to report from furlough; that the starting time of the shift would be 3:30 p.m. (Tr. 53-54); and that this was confirmed by Ms. DePuy (Tr. 54). Ms. Wade stated that she told Ms. DePuy that she, Wade, did not understand why the shift was starting at 3:30, "It was supposed to start at 4:00 according to an FLRA [ v28 p8 ] dismissal -- the basis of that dismissal" (Tr. 54) and that Ms. DePuy stated that, ". . . the letters had already been sent out, and she could not retract them." (Tr. 54).

10. On January 2, 1986, Ms. Wade sent a memorandum to Ms. DePuy which stated, in part, as follows:

"The union has been informed that management intends to change the tour of duty for night shift employees; which was nationally negotiated in the Supplemental Flextime Agreement dated March of 1984.

"It is acknowledged . . . that duty hours for the 1984-85 season of night shift was changed for the Taxation Benefit Season . . . however the union has not been consulted for any change of tour of duty for this year (1985-86).

"The union is requesting to consult and/or negotiate on implementation and impact of the above issue. . . ." (G.C. Exh. 9) (Emphasis supplied).

11. Ms. Depuy responded by memorandum dated January 6, 1986, which provided as follows:

"Management will consider negotiating a change in tour of duty; however, the union needs to provide the following information:

1. Identification of the current impact of the present tour.

2. Preparation of proposals for tour change for consideration by management.

"It has never been a practice of ADOC to negotiate changes in tour of duty for any shift of employees at the beginning of each and every season. FLRA Case No. CA-50649 does not support the allegation that the last change for night shift was only for the 1984-85 season, as there is no documentation to support your position. It is management's position [ v28 p9 ] that the change was informally negotiated without any provision for a terminating event or deadline.

"Also, we fail to see the applicability of the Flextime Memorandum of Understanding to your request for negotiations since Flextime was cancelled for the Night shift in 1984." (G.C. Exh. 10) (Emphasis in original).

12. Ms. Wade responded by memoranda dated January 8, 1986 (G.C. Exh. 11), in one, stating that applicability of the Flextime Memorandum of Understanding was that it stated, ". . . the normal shift for night shift is from 4:00 p.m. to 12:30 a.m." and asserted that the Statute mandates negotiations ". . . that adversely impact on the bargaining unit." in the other, impact was identified and two proposals were made: (a) flextime from 3:30 - 4:00 p.m.; and (b) union distribution between 3:30 and 4:00 p.m.

13. Thereafter Ms. Wade and Ms. DePuy met but reached no agreement (Tr. 57-61). As Ms. DePuy represented that employees were not concerned about the slight reduction of night differential because it was so small and preferred to come in at 3:30, the Union decided to conduct a poll of the night shift. The poll addressed two issues: one, Health unit Services; and two, change in Tour of Duty (G.C. Exh. 12). By memorandum dated March 3, 1986 (G.C. Exh. 13), Ms. Lucas represented to Ms. DePuy the results of the poll and indicated a "50% response". Ms. Wade's testimony also refers to ". . . 50 percent . . ." (Tr. 69), the reference in each instance, while not entirely clear, presumably meant that only 50% of the night shift employees responded. Certainly, that is what Ms. DePuy understood Ms. Lucas' memorandum of March 3 to mean as she, DePuy, by memorandum dated March 6, 1986, advised Ms. Lucas as follows:

"Management will make no decision to negotiate on this issue until we have conducted our own poll. We do not believe a 50% response to the union indicates the wishes of the majority. After the results of the poll have been received, we will notify you of the polls results and our decision on your request to negotiate. Flextime was cancelled for Night shift in 1984; therefore, Management does not consider flextime as option at this time. [ v28 p10 ]

"A sample of our polling questionnaire is attached for your information." (G.C. Exh. 14).

14. Although Ms. DePuy's memorandum of March 6, 1986, with the attached questionnaire was received by the union, Ms. Wade did not state precisely when it was received 6 but conceded that the Union did nothing upon receipt of Ms. DePuy's notification that Respondent intended to poll the night shift employees. Ms. Wade testified as follows:

"Q. Was there a reason why the union did not respond to the management's March 6th letter?

"A. We didn't have an opportunity to discuss, as the union, what we were --you know, what the pros and cons as to allowing, you know, management to conduct their own poll.

"Q. You say you didn't have an opportunity. Can you explain what you meant?

"A. Well, at the time we received this, a few workdays later, we received a response to the poll that they were going to conduct.

"Q. "Let me show you a document marked as General Counsel's Exhibit 15 . . . Can you tell me what it is?

"A. These are . . . these are the results of their poll." (Tr. 72) (Emphasis supplied). [ v28 p11 ]

Ms. DePuy's memorandum setting forth the results of Respondent's poll 7 was dated March 11, 1986 (G.C. Exh. 15). Thus, the record shows Respondent's notice to the Union of its intention to conduct its poll which was dated march 6 - a Thursday - and Respondent's report of the results of the poll which was dated Tuesday, March 11. Notwithstanding that the record does not show the precise date that the union received the notice of March 6, the response of Counsel for the General Counsel to questions raised at the hearing (Tr. 101-104) rather clearly assumed receipt of the March 6 notice on March 6, 1986, and in her Brief, Counsel for General Counsel states,

"Since the notice was provided to the union on Thursday, March 6, 1986, and the results were tabulated and presented to the union by Tuesday, March 11, 1986, the union had at the most two working days (Friday and Monday) in which to present its objections." (General Counsel's Brief, p. 17) (Emphasis supplied).

Accordingly, in light of General Counsel's statements, which is consistent with Ms. Wade's testimony ". . . a few working later", I find that the union received Respondent's March 6 memorandum on March 6, 1986.

15. Ms. DePuy's memorandum of March 11, 1986, after reciting the results of the poll, concluded as follows:

". . . These poll results are not of significant impact to necessitate a change in tour of duty for all night [ v28 p12 ] shift employees. It is obvious that the majority of night shift employees prefer to remain with the current 3:30 P.M. to 12:00 midnight tour of duty." (G.C. Exh. 15).

Conclusions

A. Alleged unilateral change of duty hours.

Paragraph 8 of the Complaint alleges as follows:

"8. On or about January 13, 1986, Respondent . . . unilaterally changed the working conditions of the employees . . . by changing the starting and quitting times for night shift employees, at its Albuquerque, New Mexico, Data Operations Center facility, without first notifying the Local, on behalf of the Union, and affording it the opportunity to negotiate concerning the change and the impact and implementation of the change." (G.C. Exh. 1(c)).

Respondent asserts that the violation alleged by Paragraph 8 of the Complaint is barred by 18(a)(4)(A) of the Statute, while General Counsel asserts that it is not barred because it is governed by 18(a)(4)(B) of the Statute and the Union did not know that the hours of duty for night shift employees had been changed until December, 1985, and the charge was timely filed on May 9, 1986. For the reasons set forth hereinafter, I find that Paragraph 8 of the Complaint is barred by 18(a)(4)(A) of the Statute and, accordingly, that this allegation of the Complaint must be dismissed.

As set forth above, the Complaint alleges that Respondent unilaterally changed the starting and quitting times for the night shift employees on, or about, January 13, 1986. But the record shows, and the parties agree, that the starting and quitting times for the night shift were changed in 1984. As I have found, there is no doubt that the Union believed, when it agreed to the change of hours for the night shift in 1984, that the change of hours was temporary and would terminate on April 15, 1985. The hours did not change after April 15, 1985, and the Union did, indeed, object. That the Union knew in May, 1985, that the hours for the night shift had been permanently changed is [ v28 p13 ] unmistakenly shown by its own correspondence. Thus, Chief Steward Lee in a letter to Respondent's Labor Relations officer, DePuy, dated May 24, 1985, stated,

"Officers of the union have recently become aware that the night Tour of Duty has apparently been permenantly (sic) changed." (G.C. Exh. 4) (Emphasis in original).

Again, by memorandum dated June 17, 1985, Chief Steward Lee, with regard to the permanent change of the tour of duty for night shift, stated,

"The union became aware of this unilateral change after completion of the PHUS workload. . . ." (G.C. Exh. 6).

At the hearing, President Lucas, with regard to Ms. Lee's memorandum of May 24, 1985 (G.C. Exh. 4), stated,

". . . This was the initial correspondence we sent to our labor relations officer, Barbara DePuy, in letting her know why was it permanently changed on the hours." (Tr. 33).

Thereafter, the Union filed an Unfair Labor Practice Charge, Case No. 6-CA-50649, with respect to which the Regional Director, by letter dated December 5, 1985, refused to issue a complaint, stating, in part,

". . . it does not appear that the Activity violated Section 7116(a)(1)(5) and (8) of the Statute, as alleged . . . by implementing a change in the night shift tour of duty without prior notice to the Union." (G.C. Exh. 8).

Although the General Counsel does not so contend, I am aware that the Union, in correspondence with Respondent, asserted that shift hours for the night shift were nationally negotiated in the Supplemental Flextime Agreement. As the Supplemental Agreement, by its terms, concerned only implementation of ". . . flextime in the Data Operations Centers (DOC's)" (G.C. Exh. 2), further applicability of that Agreement is highly questionable as to the duty hours for the ADOC night shift following cancellation of flextime [ v28 p14 ] for the night shift. If, however, the reference to "Normal Shift" had some continuing applicability to the ADOC night shift, there is considerable doubt that such reference in relation to flextime, which merely reflected the hours then worked at each DOC, represented negotiated duty hours; but, assuming they were, the night shift duty hours for ADOC were, nevertheless, changed in 1984. Not only did the Regional Director, in refusing to issue a complaint, find that the Union's claim that the change was temporary was unsupported (G.C. Exh. 8), but, more important, the fact that the Union challenged the change of duty hours for the night shift after April 15, 1985, merely underscores the further fact, as the Union's own statements plainly demonstrate, that the Union knew in May, 1985, that the duty hours for the night shift had been permanently changed.

Under other circumstances, General Counsel's argument, in essence that, ". . . the Activity made no attempt at all to let the Union know it considered the change permanent. . . ." (General Counsel's Brief, p. 11) and that ". . . the Union had neither actual nor constructive notice that the change in hours was permanent. . . ." (General Counsel's Brief, p. 12), would be highly significant, and perhaps determinative, but in view of the Union's conceded knowledge that the change was permanent, Respondent had no reason to further advise the Union that the change was permanent inasmuch as the Union had stated, in correspondence to Respondent, that it was aware that the change was permanent; and General Counsel's second statement, that ". . . the Union had neither actual nor constructive notice that the change in hours was permanent . . . .", is contrary to the record.

Respondent's position was both direct and consistent, namely, that it intended to change the tour of duty of the night shift from 4:00 p.m. - 12:30 a. m. to 3:30 p.m. -12:00 p.m.; that it did so in 1984; and that it has made no further change of the tour of duty of the night shift which remains 3:30 p.m. - 12:00 p.m. General Counsel's further argument that ". . . the 'permanency' of the change in night shift duty hours was an afterthought . . . that the Activity suddenly claimed there was no termination date for the first time in January 1986 . . . until the Activity either returned the night shift to work in January 1986 or informed the Union that it regarded the change as a permanent one, the Union was not aware of the ULP, since the violation would only occur when the Agency failed to revert back to the former hours after the agreement expired" (General Counsel's Brief, pp. 11-12), is contrary to the record and [ v28 p15 ] ignores reality. First, as noted above, the Union became aware in May, 1985, that the change in the night shift tour of duty was permanent. Second, the "agreement" and only "agreement" which the Union asserted, was, the Union contended, that the hours were to revert to 4:00 p.m. -12:30 a.m. after April 15, 1985; but more important, if there were a breach of this "agreement" it occurred in 1985. Third, for the purpose of 18(a)(4)(A) of the Statute, the critical and controlling question is when the alleged unfair labor practice occurred, here, when did Respondent unilaterally permanently change the tour of duty of night shift employees? The record shows that: (a) the tour of duty was unilaterally changed on or after April 15, 1985; and (b) the Union became aware by May, 1985, that the change was permanent. With knowledge that the tour of duty had been changed permanently, the Union, obviously, could have filed an unfair labor practice in May, 1985, concerning such permanent change. Whether it did so is not the issue. 8 The issue is whether the Union knew the alleged unfair labor practice had occurred, and the record plainly shows that the Union well knew in May, 1985, that the change of the night shift tour of duty was permanent (G.C. Exh. 4). The only afterthought shown by the record is that of the Union.

Having changed the night shift tour of duty in 1984 to 3:30 p.m. to 12:00 p.m., Respondent adhered to the "present tour" (G.C. Exh. 10) in 1986, although it stated that it would ". . . consider negotiating a change in tour of duty" (G.C. Exh. 10) and the parties subsequently met but did not reach agreement on any change of the tour of duty. While I do not agree with respondent's contention that any change of the tour of duty of an established shift was negotiable only at the election of Respondent 9 this case does not involve [ v28 p16 ] a refusal to bargain over a union proposal, cf. National Treasury Employees Union v. Federal Labor Relations Authority, No. 85-1361, F.2d (D.C. Cir. February 3, 1987).

Accordingly, as the record shows that the tour of duty of the night shift at ADOC was changed in 1984, and that the, Union knew in May, 1985, that the tour of duty of the night shift had been changed permanently, the present charge, having been filed on May 9, 1986, was filed substantially more than six months after the Union learned of the alleged unilateral change of the tour of duty. As the Authority has stated,

"To allow the processing of this complaint which relies, as the basis for the allegation of violation, on events or conduct which occurred more than 6 months prior to the filing of the charge upon which the complaint is based . . . would be contrary to express statutory language." United States Department of Labor, 20 FLRA No. 34, 20 FLRA 296, 297-298 (1985).

The Union knew in May, 1985, that the tour of duty of the night shift had been changed permanently and the record falls to show any basis for the applicability of 18(a)(4)(B). Paragraph 8 of the Complaint is, therefore, dismissed.

B. Respondent's poll of employees

Paragraph 9 of the Complaint alleges that,

"9. On or about March 11, 1986, Respondent . . . sent a questionnaire to bargaining unit employees, wherein input, opinion, and sentiment involving personnel policies, practices, and matters effecting (sic) working conditions were solicited without first obtaining the consent of the Local, on behalf of the union, to such solicitation, thereby bypassing the Union." (G.C. Exh. 1(c)), Par. 9).

There is no dispute that Respondent conducted a poll of its night shift employees on, or about, March 11, 1986, and that it did so without first obtaining the consent of the [ v28 p17 ] Union. Respondent, citing and relying on Department of Defense, Office of Dependents Schools, 19 FLRA No. 94, 19 FLRA 762 (1985), asserts that it ". . . was under no obligation to give the union notice and the opportunity to negotiate over the manner of gathering information . . . . (Respondent's Brief, p. 12). I do not agree with Respondent's assertion and, specifically, do not agree that Respondent's poll of its employees constituted the gathering of information, permitted, pursuant to decisions such as: Internal Revenue Service (District, Region, National Office Units), 19 FLRA No. 48, 19 FLRA 353 (1985) and Department of Defense, Office of Dependents Schools, supra, or that those decisions are applicable to the facts of this case. Thus, while certain information gathering is permitted, "to ensure the effectiveness of its operations", the Authority has made it clear that an agency may not question employees,

. . . in a way which amounts to attempting to negotiate directly with its employees concerning matters which are properly bargainable with its employees' exclusive representative." (Internal Revenue Service, supra, 19 FLRA at 354).

In Department of Defense, Office of Dependents Schools, supra, the Authority stated,

". . . the memorandum clearly indicated that the questionnaires were 'designed as a tool to evaluate the (Respondent's) recruitment and appointment process,' . . . It is neither alleged nor shown that the Respondent intended to or did use the information gained from the questionnaires in a way which would undermine the status of the exclusive representative. . . Further, the record fails to show that the Respondent by any other action sought to or did in fact attempt to negotiate directly with unit employees concerning their conditions of employment." (19 FLRA at 764).

Here, the parties were considering the Union's request to change the tour of duty of the night shift but had reached no agreement. The Union had conducted a poll of the employees, with which Respondent was dissatisfied, and Respondent, by memorandum dated March 6, 1986, informed the Union, [ v28 p18 ] "Management will make no decision to negotiate on this issue until we have conducted our own poll. . . After, the results of the poll have been received, we will notify you of the polls results and our decision on your request to negotiate. . . ." (G.C. Exh. 14).

By memorandum, dated March 11, 1986, Respondent advised the Union,

". . .These poll results are not of significant impact to necessitate a change in tour of duty for all night shift employees . . . ." (G.C. Exh. 15).

Therefore, it is obvious that Respondent was not gathering information concerning its operations, but, rather, sought the opinions of the night shift employees as to a proposed change in their conditions of employment. Respondent by its poll did attempt to deal directly with its employees concerning matters which were properly bargainable with its employees; did intend to use, and used, the information gained in a way which would undermine the status of the union as exclusive representative -- indeed, informed the union that "management will make no decision to negotiate on this issue until we have conducted our own poll"; and subsequently refused to negotiate because of the results of its poll. Under such circumstances, the Authority has consistently held that such conduct constitutes an unlawful bypass of the union in violation of 16(a)(5) and (1) of the Statute. Thus, in United States Department of Transportation, Federal Aviation Administration, 19 FLRA NO. 106, 19 FLRA 893(1985), the Authority stated as follows:

"Turning first to the alleged bypass allegations . . . the Authority concludes that Respondent violated section 7116(a)(1) and (5) by posting a . . . memorandum which directly solicited the opinions of Radar unit employees concerning a proposed change in conditions of employment by eliminating the evening shift on weekends . . . management was not merely attempting to gather information or opinions concerning its operations but directly sought the opinions of these bargaining unit employees as to proposed changes in their [ v28 p19 ] conditions of employment. In the Authority's view, such conduct constitutes an unlawful bypass of the exclusive representative since it concerns immediately contemplated changes in conditions of employment affecting unit employees, and was an attempt by management to negotiate or deal directly with unit employees concerning such matters." (19 FLRA at 895).

See, also Social Security Administration, Baltimore, Maryland, 9 FLRA No. 124, 9 FLRA 909 (1982); Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA No. 21, 15 FLRA 100, 104 (1984); United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C. and Its Central Region, 16 FLRA No. 74, 16 FLRA 528, 543-544 (1984).

A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit and is entitled to act for all employees in the unit. 14(a)(1). On matters which are properly bargainable with the exclusive representative, i.e., concerning conditions of employment, the exclusive representative is the sole spokesman for the employees and any attempt by an agency to deal directly with employees concerning proposed changes in their conditions of employment, whether such changes is initiated by the exclusive representative or by the agency, constitutes an unlawful bypass in violation of 16(a)(5) and (1) of the Statute. The exclusive representative may, certainly, agree to permit the agency to deal directly with unit employees by soliciting their views and opinions; but in the absence of the exclusive representative's agreement, such direct dealing by the agency with unit employees concerning conditions of employment is improper and constitutes an unfair labor practice. Because the exclusive representative can agree to permit the agency to deal directly with unit employees, there is no doubt that something short of express agreement could constitute sufficient grounds that the express agreement of the exclusive representative would be inferred.

Here, clearly, there was no express agreement by the Union to Respondent's poll of unit employees concerning a proposed change of their conditions of employment; nor do the circumstances constitute grounds that would warrant any inference that the Union, by its failure to object, agreed [ v28 p20 ] to Respondent's poll of the night shift employees. First, Respondent did not seek the agreement of the Union to its direct dealing with unit employees; but, to the contrary, in effect, told the union it was going to conduct its "own poll". Second, Respondent proceeded with its poll almost immediately. Thus, although the record does not show when the poll was conducted, notice was given on a Thursday and the results were reported the following Tuesday. Third, the union's Vice President testified that, "we didn't have an opportunity to discuss, as the union, . . . the pros and cons as to allowing . . . management to conduct their own poll" before ". . . we received a response to the poll . . . ." (Tr. 72). Fourth, without expressing any opinion as to whether the 1985 poll was proper or improper, the union had objected and, certainly, the fact that Respondent had conducted a prior poll, to which the union objected, cannot constitute justification for Respondent's direct dealing with unit employees concerning a proposed change of their conditions of employment.

According, having found that Respondent violated 16(a) (5) and (1) of the Statute, it is recommended that the Authority adopt the following:

ORDER

Pursuant to 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that the United States Department of Health and Human Services, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Bypassing the American Federation of Government Employees, Local 3512, AFL - CIO, the exclusive representative of its employees, and dealing directly with such employees by soliciting their opinions concerning personnel policies, practices and matters affecting their working conditions.

(b) In any like or related matter interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. [ v28 p21 ]

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at its facilities at the Albuquerque, New Mexico, Data Operations Center 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 Director of the Albuquerque Data Operations Center 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 insure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. S 2423.30, notify the Regional Director, Region VIII, Federal Labor Relations Authority, 10th Floor, 350 South Figueroa Street, Los Angeles, California 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: March 20, 1987
       Washington, D.C.

[ v28 p22 ]

                               APPENDIX
                        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 STATUTE
                WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT bypass the American Federation of Government Employees, Local 3512, AFL - CIO, the exclusive representative of our employees, and deal directly with unit employees by soliciting unit employees' opinions concerning personnel policies, practices, and matters affecting their working conditions.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

                               _______________________________
                                     (Agency or Activity)

Dated:______________________By:______________________________
                                        (Signature)

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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. [PAGE]

FOOTNOTES

Footnote 1 For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as "16(a)(5)."

Footnote 2 As part of the remedy, General Counsel seeks a backpay order for the half hour of night shift differential lost by each employee whose shift was changed from 4:00 p.m. to 3:30 p.m.

Footnote 3 Respondent has three Data operations Centers: Albuquerque; Salinas (SDOC); and Wilkes-Barre (wBDOC) (G.C. Exh. 2).

Footnote 4 Mr. Herrea left the position of labor relations officer in July, 1984 (Tr. 108) and if, as both parties assert, the conversation took place at a time Mr. Herrea was the labor relations officer, the conversation very probably occurred substantially prior to December, 1984. It is also highly probable that Ms. Lucas had a further conversation with Ms. DePuy in December, 1984, when Respondent decided to begin the night shift "earlier than usual this year", presumably on December 17, 1984 (G.C. Exh. 5A; but, see, Tr. 112). Although General Counsel Exhibit 5 references a discussion between Ms. Lucas and Ms. DePuy, Ms. DePuy did not testify; Ms. Lucas was not asked about any conversation with Ms. DePuy, although she did not deny that there had been such a conversation (Tr. 35); and Ms. Lucas was neither asked nor did she mention that the night shift began in December, 1984, which, if it occurred, would have been a quite unique occurrence which one would have thought would have provoked some comment by Ms. Lucas.

Footnote 5 The Charge was not offered as an exhibit nor was there any testimony as to the precise language of the Charge; however, Respondent states that, ". . . the dismissal letter restates the essential elements of the charge." (Respondent's Brief, p. 4, n. 8).

Footnote 6 Ms. DePuy did not testify and there is no testimony as to how Respondent normally delivered documents to the Union.