38:0647(60)CA - - Army, Lexington-Blue Grass Army Depot, Lexington, KY and Ronald D. Lewis - - 1990 FLRAdec CA - - v38 p647
[ v38 p647 ]
The decision of the Authority follows:
38 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
LEXINGTON-BLUE GRASS ARMY DEPOT
RONALD D. LEWIS
DECISION AND ORDER
November 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the American Federation of Government Employees, Local 894, AFL-CIO, (Union) concerning the impact and implementation of a reorganization and reduction-in-force (RIF) involving bargaining unit employees. The Judge found that a status quo ante remedy was appropriate under the facts and circumstances of the case and included that remedy in his recommended order.
The Respondent filed exceptions to the Judge's decision and order. The General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings
In one of its exceptions, the Respondent argues that the Judge's finding that a status quo ante remedy is appropriate is erroneous because the criteria set forth in Federal Correctional Institution, 8 FLRA 604 (1982), have not been followed. Respondent's Exceptions at 7-8. We have reviewed the record and find that the criteria set forth in Federal Correctional Institution have been satisfied.
In that case, the Authority held that where, as here, management has exercised its rights under section 7106 of the Statute without fulfilling its duty to bargain concerning the procedures which management will observe in implementation and appropriate arrangements for bargaining unit employees adversely affected by the exercise of those rights, we will examine the case carefully to determine the appropriateness of a status quo ante remedy. We will make that determination by balancing the nature and circumstances of the particular violation against the degree of disruption in Government operations that would be caused by such a remedy. Accordingly, in determining whether a status quo ante remedy would be appropriate, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Federal Correctional Institution, 8 FLRA at 606.
After a review of the record, we find that the record establishes that the Respondent failed to notify the Union as to when the reorganization and RIF would occur or when the RIF notices would be issued to bargaining unit employees, despite the Union's written requests to the Respondent to provide the Union advance notice of such changes in employees' conditions of employment. Further, it is clear that the Union requested that the Respondent bargain over the impact and implementation of the reorganization and RIF. In addition, as the Respondent's failure to discharge its bargaining obligation under the Statute was intentional, although based on an erroneous conclusion that it was not obligated to bargain over the subject matter, we find that the Respondent's refusal to bargain was willful. See United States Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA 548, 563 (1985), remanded as to other matters Professional Airways Systems Specialists v. FLRA, 809 F.2d 855 (D.C. Cir. 1987). As to the impact of the reorganization and RIF on bargaining unit employees, the record supports a finding that the impact was considerable. Significantly, the reorganization resulted in the relocation of the work site for many of the bargaining unit employees. Additionally, as a result of the reorganization, employees were assigned additional duties and responsibilities which were outside their assigned trade. Such changes had a considerable impact on the working conditions of these employees. See United States Department of Justice, 34 FLRA 1035 (1990) (change in job assignments, among other things, was found to be more than "de minimis"); and United States Department of the Treasury, Internal Revenue Service, 25 FLRA 843, 846 (1987), aff'd sub nom. NTEU v. FLRA, No. 87-1165 (D.C. Cir. Aug. 14, 1990) (en banc) (change in work site was found to be more than "de minimis").
Finally, the Respondent has not supported its assertion that a status quo ante remedy would disrupt its operations with specific allegations or evidence concerning how, and to what degree, such disruption would occur. Inasmuch as the Authority bases a finding as to the appropriateness of a status quo ante remedy on specific evidence in the record indicating the disruption that will be caused by such a remedy, the Respondent's assertions that the status quo ante remedy would create "personnel turbulence" and "an administrative mess", Respondent's Exceptions at 8, provide an insufficient basis for finding that such a remedy would disrupt or impair the efficiency and effectiveness of the Respondent's operations. Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 952-53 (1990). Insofar as the Respondent appears to be arguing that a status quo ante remedy would require that the Commercial Activity study process be redone or the contracts rebid, the argument is unavailing. The remedy requires only a return to the status quo before the reorganization and RIF, events that occurred well after the awarding of the contract. The decision to reorganize is not at issue here. We see nothing in the requirement that the Respondent reinstate the status quo ante and bargain before implementing that decision that would create undue disruption to its operations.
Accordingly, after balancing the factors set forth in Federal Correctional Institution, we conclude, in agreement with the Judge, that a status quo ante remedy is appropriate and warranted in order to best effectuate the purposes and policies of the Statute.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that the Department of Defense, Department of the Army, Lexington-Blue Grass Depot, Lexington, Kentucky, shall:
1. Cease and desist from:
(a) Unilaterally implementing a reorganization and reduction-in-force (RIF) without first notifying the American Federation of Government Employees, Local 894, AFL-CIO, the exclusive representative of its employees, and fulfilling its obligation to bargain regarding the procedures for implementing the reorganization and RIF and over appropriate arrangements for employees adversely affected.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Rescind the reorganization and reduction-in-force which occurred on September 25, 1987.
(b) Notify the Union of any intended changes in the Activity's organizational structure or any pending RIFs and, upon request, bargain to the extent consonant with law and regulations concerning the procedures to be observed in implementing the reorganization and RIF and appropriate arrangements for employees adversely affected.
(c) Post at all its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 894, AFL-CIO, are located, 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 Commanding Officer, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
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 unilaterally implement a reorganization or reduction-in-force (RIF) involving bargaining unit employees without first notifying the American Federation of Government Employees, Local 894, AFL-CIO, the exclusive representative of our employees, and fulfilling our obligation to bargain regarding procedures for implementing the reorganization and RIF and over appropriate arrangements for employees adversely affected.
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 Federal Service Labor-Management Relations Statute.
WE WILL rescind the September 25, 1987 reorganization and RIF and revert to the organization which was in effect prior to September 25, 1987.
WE WILL notify the American Federation of Government Employees, Local 894, AFL-CIO, on any intended changes in organizational structure or any pending RIFs and, upon request, bargain with the exclusive representative, to the extent consonant wit the obligation imposed by the Statue, concerning the procedures to be observed in implementing such changes RIF, and over appropriate arrangements for employees adversely affected.
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 materials.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region IV, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
(If blank, the decision does not have footnotes.)
1. The Judge incorrectly found that 89, rather than 47, bargaining unit employees were affected by the reorganization and reduction-in-force. This inadvertent error does not affect our disposition of this case.
2. Member Armendariz concurs in the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union concerning the impact and implementation of the reorganization and RIF. However, the Judge also concludes that the changes took place on September 25, 1987, the date on which the RIF notices were issued to bargaining unit employees. Judge's Decision at 8. Consistent with his dissent in Dep't of the Air Force, Scott Air Force Base, Illinois and National Ass'n of Gov't Employees, Local R7-23, SEIU, AFL-CIO, 35 FLRA 844 (1990), Member Armendariz would find that the RIF did not take effect until the date stated in the specific notice, November 29, 1987. Judge