39:0999(86)CA - - Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and LIUNA Local 1276 - - 1991 FLRAdec CA - - v39 p999

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[ v39 p999 ]
39:0999(86)CA
The decision of the Authority follows:


39 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEFENSE LOGISTICS AGENCY

DEFENSE DEPOT TRACY

TRACY, CALIFORNIA

(Respondent/Agency)

and

LABORERS' INTERNATIONAL UNION

LOCAL 1276, AFL-CIO

(Charging Party/Union)

9-CA-90366

9-CA-90429

DECISION AND ORDER

March 5, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions and cross-exceptions to the Judge's Decision. The General Counsel filed an opposition to the Respondent's cross-exceptions.

In Case No. 9-CA-90429, the complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by contracting out the services of its Employees Assistance Program (EAP) without notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes resulting from the decision to contract out. The complaint further alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate with the Union over the Union's proposals relating to the EAP.

In Case No. 9-CA-90429, the Judge found that the Respondent did not violate the Statute by contracting out the EAP, without notifying the Union and affording it the opportunity to bargain on the impact and implementation of the changes, because the effect of the changes on unit employees' conditions of employment were de minimis. The Judge also found that the General Counsel had failed to establish that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate on the Union's proposals concerning the EAP.

In Case No. 9-CA-90366, the complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford the Union the opportunity to be represented at orientation seminars conducted by the EAP contractor with the Respondent's employees. The Judge found that the Respondent violated the Statute, as alleged in the complaint.

Pursuant to section 2423.29 of our 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. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order only to the extent consistent with this decision.

II. Background

A. Case No. 9-CA-90429

Under 5 U.S.C. º 7902, the Respondent is required to provide programs for the prevention, treatment and rehabilitation of employees with problems relating to drug and alcohol abuse. In 1982 the Respondent established its Employee Assistance Program (EAP), which provided in-house assessment and referral services for employees. The Respondent's personnel management specialist, Tita Allala, was responsible for coordinating the Respondent's in-house EAP.

Under the in-house program, Allala was responsible for assessing the troubled employees' problems and referring the employees to the appropriate community resources for treatment. The Union and the Depot Health Care staff provided assistance to Allala in finding community resources offering appropriate treatment programs for employees. Allala assisted the employees in obtaining sick leave for treatment and/or a change of duties or shift to accommodate their treatment. She also was responsible for assigning peer counselors to the employees to provide support as follow-up to their treatment.

On February 1, 1989, the Respondent awarded a contract for the EAP services to Maschhoff, Barr and Associates, Inc. (the contractor). By letter dated March 7, 1989, the Respondent notified the Union that the EAP services had been contracted out. Under the EAP services contract, the contractor is responsible for providing counseling services for employee problems relating to drug and alcohol abuse, Acquired Immune Deficiency Syndrome (AIDS), family stress and parenting, and emotional/behavioral factors. The contractor also is responsible for providing counseling services for employees with financial, legal and marital problems. The contractor is required to provide counseling services within 48 hours of an initial request by an employee or the Agency for an appointment. The contractor also is required to provide a toll-free "hot-line" counseling service on a 24-hour per day, 365-days-per-year basis. Joint Exh. 2. Further, the contractor agreed to provide employee awareness seminars for audiences of a maximum of 80 employees.

Under the contract, the contractor designates the counselors who will provide counselling for the employees. The counselors are required to: (1) interview management officials and provide them with advice for confronting employees about job performance or behavior problems; (2) interview employees, and obtain appropriate information to evaluate and determine the nature of the employees' problems and the type of assistance required; (3) advise employees of appropriate available community treatment resources and help make arrangements for utilizing them; (4) inform employees that it is their personal responsibility to pay for any service, rehabilitation or treatment program; and (5) maintain ongoing contact with the employees and with the treatment program to which employees are referred. The contract also provides that the contractor shall appoint a Program Coordinator to monitor the contractor's performance of the EAP. The Program Coordinator receives quarterly reports from the contractor and discusses "any problems emanating from employees, managers, or Union officials." Judge's Decision at 4.

After the EAP was contracted out, the Respondent continued to handled some aspects of the program. In particular, the Respondent is responsible for providing training to employees and management officials concerning the EAP. Peer counselors continued to follow-up and provide support to the clients assigned to them prior to the contract. The peer counselors have not, however, been assigned to new cases since the contracting out of the program. Allala continues to: (1) perform drug awareness and smoking cessation seminars; (2) assist employees who need to take leave for treatment; and (3) provide guidance to supervisors concerning discipline of employees who have drug, alcohol or personnel problems.

On March 7, 1989, prior to being informed by the Respondent that the EAP was contracted out, the Union requested bargaining on the EAP and submitted the following proposals:(1)

(a) the Employer will maintain a current and comprehensive Employee Assistance Program;

(b) a joint committee (Employer and the Union) shall be formed to oversee that the Program is properly administered;

(c) a Program Administrator appointed shall have the duties outlined in the Program and report to the Committee;

(d) employees suffering from problems to receive the same consideration as physically ill employees;

(e) the confidential nature of an employee's problem with a disease and any related records shall be processed on the same basis as medical records re physical illness.

Id. at 5-6.

Also, included in the proposals was one which provided that if a security-investigator concluded that an employee was "under the influence" while on duty, the supervisor shall offer, but not require, the employee to take a breathalyzer, blood withdrawal or a urinalysis. Id. at 6 (emphasis in original).

By letter dated March 20, 1989, the Respondent advised the Union that it was ready to meet and discuss the Union's EAP proposals and the provision for determining whether an employee is under the influence. The Respondent suggested a meeting date of April 5, 1989. By letter dated March 27, 1989, the Union requested clarification of the Respondent's March 20, 1989, letter. The Union inquired whether the Respondent proposed to consolidate "the employee under the influence and the employee assistance program in conjunction with one another and bargain on these subjects." Joint Exh. 9.

The Respondent did not reply in writing to the Union's March 27 inquiry. According to the Respondent's Labor Relations Officer, she told the Union's Business Manager that the Respondent objected to joining the two issues because the "'under the influence' [issue] had been thoroughly considered in the past[.]" Judge's Decision at 6. "No specific negotiations took place" concerning the Union's EAP proposals. Id.

B. 9-CA-90366

In the March 7, 1989, letter notifying the Union that the EAP had been contracted out, the Respondent also informed the Union that the contractor would conduct six supervisory orientation meetings and that arrangements had been made for the Union to send a representative to one of the orientation meetings. The Respondent requested the Union to furnish the "name of [the] representative and the session to be attended . . . ." Joint Exh. 12(a) at 2.

By letter dated March 8, 1989, the Union's Business Manager requested that he and all the Union stewards be allowed to attend one of the scheduled supervisory sessions. By letter dated March 13, 1989, the Respondent advised the Business Manager that either he or a Union representative could attend one of the supervisory meetings. The Respondent further stated that every employee would be given an orientation by the contractor and the "stewards will attend one of those meetings." Joint Exh. 12(c).

On March 30, 1989, the Business Manager met with the Respondent's representatives and informed the Respondent that, "as Business Manager of the Union, he was the responsible person to, and should, attend the orientation meetings of employees re the EAP." Judge's Decision at 8 (emphasis in original). The Respondent informed the Business Manager that "since the stewards would attend these meetings, it was not necessary for [the Business Manager] to be invited or attend." Id.

The Respondent held 27 employee orientation sessions at its warehouse training room. The meetings, each of which lasted about one-half hour, were conducted by a representative of the contractor. Employee "attendance was compulsory." Id. The Union stewards attended the meetings "as employees and not as Union representatives." Id. (emphasis in original). The number of employees attending the sessions varied from 11 to 121 at any one meeting. At each session, the contractor's representative discussed the counseling services and a question and answer period followed the presentation. The Respondent's representative, Allala, attended each meeting, except one Saturday session. Allala participated at the meetings "by introducing the contractor's representative, taking a head count, and answering questions or clarifying matters." Id. The Respondent's supervisory contract specialist attended two of the employee orientation sessions.

III. Administrative Law Judge's Decision

A. Case No. 9-CA-90429

The Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by: (1) failing and refusing to negotiate with the Union concerning the impact and implementation of the changes in the EAP; and (2) failing and refusing to negotiate with the Union over its proposals regarding the EAP.

First, the Judge determined that the contracting out of the EAP constituted a change in conditions of employment. The Judge noted that prior to February 1989, the EAP was an in-house program "handled by [the] Respondent's coordinators and peer counsellors." Id. at 9. The Judge further noted that after the program was contracted out, the "employee contacted the contractor directly." Id. The Judge also noted that two employees had difficulty in communicating with the contractor. The Judge concluded, however, that "the change effected by having [the contractor] run the Program, along with the active participation by Respondent, was de minimis[.]" Id. at 10. The Judge observed that:

employees who need help for their problems . . . are stilled referred to the same community services by the contractor as was done by Respondent. The [Respondent's] representative, Allala, still acts as the Program Coordinator, and she actively monitors the assistance rendered to the employees. Although no peer counsellor is assigned to an individual, the counsellor is called upon to follow up the individual who is afforded treatment by the community service.

Id. at 9-10. In the Judge's view, although contracting out the EAP altered the arrangements for providing assistance to employees, the "foreseeable effect of contracting out the EAP . . . [was] de minimis in nature." Id. at 9. Consequently, the Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by failing to afford the Union an opportunity to bargain over the impact and implementation of the contracting out of the EAP.

Second, the Judge concluded that the General Counsel did not establish by a preponderance of the evidence that the Respondent failed and refused to bargain in good faith over the Union's proposal concerning the EAP. The Judge pointed out that after the Union submitted its proposals, the Respondent agreed to meet with the Union to discuss the proposals, and inquired whether April 5, 1989, was a convenient date for the Union to meet. The Judge further noted that in reply to the Respondent's letter, the Union asked the Respondent whether it "intended to consolidate the EAP with 'under the influence' and bargain on both subjects." Id. at 11. The Judge concluded that the failure of the parties to engage in negotiations over the Union's proposals "did not, . . . arise from a refusal to do so on the part of the Respondent." Id. The Judge found that although the Respondent orally advised the Union that "management did not want to join the two issues for negotiation[,]" the Respondent "did not cancel the proposed April 5 meeting with the Union[.]" Id. The Judge cited the testimony of the Respondent's Labor Relations Officer that the "Respondent was always willing to negotiate the subjects of joint committee and program administrator as proposed by the Union." Id. In the Judge's view, the "confusion as to whether the 'under the influence' subject would be negotiated with the EAP proposals . . . contributed to the fact that negotiations re [the EAP] proposals never occurred." Id. at 12.

Based on the foregoing, the Judge concluded that the General Counsel had not established that the Respondent failed and refused to bargain in good faith with the Union in violation of section 7116(a)(1) and (5) of the Statute. Accordingly, the Judge recommended that the complaint in Case No. 9-CA-90429 be dismissed.

B. Case No. 9-CA-90366

The Judge rejected the Respondent's contentions that: (1) the employee orientation meetings were not conducted by a "representative of the agency" within the meaning of section 7114(a)(2)(A) of the Statute; (2) the meetings were not "formal discussions" under section 7114(a)(2)(A) of the Statute; and (3) the Union did not request permission to attend or send a representative to the orientation meetings.

The Judge applied the criteria, set out in U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465 (1988) (DOL), for determining whether a discussion is "formal" within the meaning of section 7114(a)(2)(A) of the Statute. First, the Judge concluded that the contractor "acted as the agent or representative of Respondent" when it conducted the 27 orientation meetings with the employees. Id. at 13 (footnotes omitted). The Judge determined that "the sessions were with Respondent's employees," and that the Respondent arranged for and maintained control over the sessions. Id. (emphasis in original). In this regard, the Judge observed that:

An agenda was prepared and submitted to Respondent in advance; the meetings were scheduled (27) for particular dates; they were held at Respondent's training room; and the sponsoring organization for the orientation . . . was the Respondent. . . .

Id. at 13. The Judge also pointed out that the Respondent's representative, Allala, "introduced the contractor's representative . . . took head count and participated thereat by answering questions posed by employees as well as clarifying matters pertaining to the EAP. Id. Based on the foregoing factors, the Judge concluded that the contractor acted as the agent or representative of the Respondent when it conducted the 27 orientation seminars.

Next, the Judge found that the meetings: (1) concerned a condition of employment; (2) were formal; and (3) included discussions between representatives of the agency and bargaining unit employees. In this regard, the Judge determined that the meetings with the employees "were held to explain the EAP - a condition of employment - and to answer questions concerning the Program." Id. at 14. The Judge noted that:

the meetings were pre-arranged with an outline of topics to be covered . . . . Employees were told to attend by their supervisors and attendance was mandatory. . . . [D]uring the meetings employees were permitted to and did ask questions which were responded to by management's representatives. The meetings, . . . were conducted away from employees' desks at a training room suitable for a large attendance.

Id. at 14. Based on the foregoing, the Judge concluded that the 27 orientation sessions held by the Respondent's representative with the employees were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. Further, the Judge found that the Respondent refused to allow the Union to designate its own representative to attend the employee orientation sessions. The Judge concluded that the record established that the Business Manager "did request that he be the Union's representative at the orientation sessions" and his request was rejected when the Respondent's representative told him that "it was not necessary for [him] to be invited or to attend; that it was sufficient if the stewards attended." Id. at 15.

Accordingly, the Judge found that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide the Union with the opportunity to be represented at the orientation meetings for the EAP.

IV. General Counsel's Exceptions

A. Case No. 9-CA-90429

The General Counsel excepts to the Judge's conclusions that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by: (1) unilaterally changing the EAP without negotiating with the Union regarding the impact and implementation of the changes; and (2) failing and refusing to negotiate concerning the Union's EAP proposals.

First, the General Counsel contends that the record establishes that the change was more than de minimis in nature. The General Counsel argues that under the new EAP the Respondent "has changed the way in which troubled employees seek assistance, receive support and . . . communicate about their problems." General Counsel's Exceptions at 8. The General Counsel notes that under the new EAP, employees seeking assistance "no longer receive direct personal attention[,]" but, "must seek assistance by telephone, explaining their problems to a voice in a resource center located in Tacoma[.]" Id. The General Counsel further notes that peer counselors, "a valuable tool for the support and rehabilitation of employees" are no longer assigned to new clients under the new EAP. Id. The General Counsel asserts that "communication is the very essence of any employee assistance program[.]" Id. Therefore, the General Counsel argues that the Respondent violated the Statute when it unilaterally implemented the changes in the EAP without giving the Union notice and the opportunity to bargain over the impact and implementation of the changes.

Second, the General Counsel argues that the Judge erred by not finding that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain concerning negotiable proposals submitted by the Union. The General Counsel asserts that "[t]he Union clearly indicated its desire to bargain regarding the employee assistance program." Id. at 10. The General Counsel notes that the Union "requested to bargain and submitted negotiable proposals." Id. The General Counsel argues that even if there was a dispute over whether the EAP negotiations would include bargaining over other issues, "[s]uch disagreement, however, does not justify Respondent's failure to negotiate on obviously negotiable issues." Id. at 11.

The General Counsel contends that the Respondent "had no intention of bargaining with the Union regarding the employee assistance program." Id. at 10. The General Counsel asserts that the Respondent "failed to arrange a meeting, first suggesting a date and then cancelling." Id. The General Counsel further asserts that the Respondent "began informing employees of the contracting out by means of employee awareness seminars at which the Union was denied the right to be present." Id. In these circumstances, the General Counsel asserts "the Union correctly deduced that no bargaining as requested would take place." Id. Therefore, the General Counsel maintains that "by failing to negotiate on the Union's proposals, Respondent has violated the Statute as alleged." Id. at 11.

B. Case No. 9-CA-90366

In Case No. 9-CA-90366, the General Counsel does not except to the Judge's findings and conclusions. The General Counsel contends that the Judge correctly concluded that the Respondent violated section 7116(a)(1) and (8) of the Statute.

V. Respondent's Opposition and Cross-Exceptions

A. Case No. 9-CA-90429

The Respondent contends that the Judge correctly concluded that the contracting out of the EAP had only a de minimis impact on unit employees' conditions of employment. The Respondent asserts that the "only evidence the General Counsel presented regarding any changes to conditions of employment was that of two employees who had difficulty in contacting a counselor." Respondent's Opposition at 4. The Respondent contends that "the fact that only two out of hundreds of employees had any problem clearly demonstrates that the change was de minimis." Id.

With respect to the second allegation in the complaint, the Respondent argues that the Judge correctly concluded that the Respondent did not refuse to bargain with the Union regarding proposal's submitted by the Union concerning the EAP. The Respondent contends that the General Counsel's argument on this issue ignores the Judge's finding, based on the credited testimony of the Respondent's Labor Relations Officer, that the Respondent "informed the Union that the Respondent was always willing to meet to discuss the negotiable EAP proposals." Id. at 5.

B. Case No 9-CA-90366

The Respondent contends that the Judge erred by finding that the Respondent violated the Statute when it failed to notify and afford the Union an opportunity to attend the orientation sessions conducted by the contractor. The Respondent argues that the contractor was not a representative of the agency, within the meaning of section 7114(a)(2)(A) of the Statute. The Respondent asserts that it did not give the contractor "authority to enter into discussions with employees over conditions of employment." Id. at 7. The Respondent contends that "the contractor could not change the EAP . . . because any change would have to be requested of the Contractor by the Contracting Officer of the Agency[.]" Id.

VI. Analysis and Conclusions

A. Case No. 9-CA-90429

We find, contrary to the Judge that the Respondent violated section 7116(a)(1) and (8) of the Statute by contracting out the EAP services, without notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the changes.

1. The Reasonably Foreseeable Effects of the Changes in the EAP Were More Than De Minimis

In Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986), the Authority reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. The Authority stated that in order to determine whether a change in conditions of employment requires bargaining, it would carefully examine the pertinent facts and circumstances presented in each case. It further stated 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. It 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 a consideration.

Applying the above standard to the facts and circumstances herein, we note that, as acknowledged by the Respondent, "the EAP program is of great importance to employees and to management since the program . . . provides personal assistance to employees . . . ." Respondent's Opposition at 4. Moreover, it is undisputed that contracting out the EAP services changed the arrangements for providing assistance to employees. Prior to being contracted out, the EAP was an in-house program, wherein the Respondent's EAP coordinator met personally with employees, assessed their problems and referred them to appropriate community resources. The EAP coordinator also assigned peer counselors to the employees to provide support as follow-up to their treatment. After the EAP was contracted out, employees were required to seek assistance by calling a toll-free telephone number in order to be referred to professionals in the community. In addition, peer counselors were not assigned to new clients. Moreover, the Respondent does not dispute that the change in the initial contact procedure of the EAP adversely affected some employees. The Respondent admits that two employees "who needed assistance with personal problems did not receive that help immediately" because they "had difficulty contacting a counselor." Id. Accordingly, we find, in this case, that the nature and extent of the effects and the foreseeable effects of the changes in the EAP services on bargaining unit employees were more than de minimis.

As the reasonably foreseeable effects of the changes in the EAP services were more than de minimis, the Respondent was required to provide the Union with advance notice of, and an opportunity to bargain over the impact and implementation of the changes. There is no dispute in this case that the Respondent did not provide the Union with advance notice of, and an opportunity to bargain over the impact and implementation of the changes in the EAP. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing the EAP.

2. The Respondent Did Not Violate the Statute by Refusing to Negotiate With the Union on the Union's EAP Proposals

We find, in agreement with the Judge, that the General Counsel failed to established that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate with the Union concerning the Union's EAP proposals. In this regard, the Judge found that the Respondent agreed to meet with the Union to negotiate over the Union's EAP proposals on April 5, 1989, and did not cancel the proposed meeting with the Union. The Judge further found that there was confusion as to whether the "under the influence" matter would be negotiated with the EAP proposals. The Judge also credited the testimony of the Respondent's Labor Relations Officer that she told the Union's Business Manager that management was willing to meet and negotiate over the Union's EAP proposals. The Judge concluded that the evidence did not establish that the parties failed to negotiate over the Union's EAP proposals because the Respondent refused to meet and bargain with the Union.

In essence, the General Counsel's exceptions challenge the credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testify. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See U.S. Department of Labor, Mine Safety and Health Administration, 35 FLRA 790 (1990) (Mine Safety and Health Administration). Accordingly, we agree with the Judge that the General Counsel failed to establish that the Respondent violated the Statute by refusing to bargain with the Union over the Union's EAP proposals.

B. Case No 9-CA-90366

We find, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to afford the Union the opportunity to be represented at formal discussions conducted with bargaining unit employees.

1. The Employee Orientation Meetings Were Formal Discussions Within the Meaning of Section 7114(a)(2)(A) of the Statute.

We agree with the Judge's finding that the 27 orientation meetings conducted by the contractor with unit employees concerning the EAP were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.

We consistently have held that in order to find that a union has a right to be represented under 7114(a)(2)(A) of the Statute, it must be shown that the following elements exist: (1) there must be a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or personnel policy or practices or other general conditions of employment. See, for example, Veterans Administration, Washington, D.C. and VA Medical Center, Brockton Division, Brockton, Massachusetts, 37 FLRA 747, 753-754 (1990); DOL at 469-472; U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New York), 29 FLRA 584, 588-589 (1987) (Ray Brook), aff'd sub nom. American Federation of Government Employees, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). In applying the analytical framework, we also will be guided by the intent and purpose of section 7114(a)(2)(A)--to provide the union with an opportunity to safeguard its interests and the interests of bargaining unit employees--viewed in the context of a union's full range of responsibilities under the Statute. Ray Brook at 589.

As no exceptions were filed to the Judge's findings that the orientation meetings: (1) were discussions; (2) were formal; and (3) concerned a condition of employment, we adopt the Judge's findings regarding those three elements.

As to the fourth element, for the reasons stated by the Judge, we agree with the Judge's finding that the contractor was functioning as the "representative of the agency," within the meaning of section 7114(a)(2)(A) of the Statute, when it conducted the orientation meetings with the Respondent's employees. See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA No. 23, slip op. at 14-15 (1990); Mine Safety and Health Administration, 35 FLRA 790. Accordingly, we find that the orientation meetings conducted by the contractor were formal discussions at which the Union was entitled to be represented under section 7114(a)(2)(A) of the Statute.

2. The Respondent Violated the Statute by Failing to Afford the Union the Opportunity to Attend the Orientation Meetings Concerning the EAP

We agree with the Judge, for the reasons stated in his decision, that the Respondent violated section 7116(a)(1) and (8) of Statute by failing and refusing to afford the Union the opportunity to be represented at the orientation meetings conducted by the EAP contractor with the Respondent's employees.

VII. Summary

In this consolidated case, we find that the reasonably foreseeable effects of the Respondent's decision to contract out its EAP services on unit employees' conditions of employment were more than de minimis. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute by contracting out the EAP services, without notifying the Union and affording it the opportunity to negotiate concerning the impact and implementation of the changes.

We also find that the 27 orientation meetings conducted by the contractor met all the elements of a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. Accordingly, as the Respondent did not afford the Union an opportunity to be represented at the orientation meetings, the Respondent thereby violated section 7116(a)(1) and (8) of the Statute.

Finally, we find that the General Counsel failed to establish that the Respondent violated the Statute by refusing to bargain with the Union concerning the Union's EAP proposals. Accordingly, we will dismiss that allegation.

VIII. Remedy

As remedy, the General Counsel requests that the Respondent be ordered to cease and desist its unlawful conduct, and bargain, upon request of the Union, regarding the impact and implementation of the contracting out of the EAP. Here, the record establishes that the Respondent (1) contracted out the EAP services without first giving the Union notice and the opportunity to bargain about the impact and implementation of the changes, and (2) failed to afford the Union an opportunity to be represented at formal discussions conducted with unit employees concerning the changes made in the EAP. In these circumstances, we find that the remedy requested by the General Counsel is appropriate and will effectuate the purposes and policies of the Statute.

IX. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Defense Logistics Agency, Defense Depot Tracy, Tracy, California, shall:

1. Cease and desist from:

(a) Unilaterally implementing changes in working conditions, including changes in the Employee Assistance Program (EAP), without first providing the Laborers' International Union, Local 1276, AFL-CIO, the exclusive representative of its bargaining unit employees, prior notice and the opportunity to bargain about the impact and implementation of such changes.

(b) Conducting formal discussions with employees in the unit exclusively represented by the Union concerning conditions of employment, such as the Employee Assistance Program, Employee Orientation Sessions, conducted by Maschhoff, Barr & Associates, Inc. in March and April 1989, for all Defense Depot Tracy personnel, without giving the Union notice and the opportunity to be represented.

(c) 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 actions in order to effectuate the purposes and policies of the Statute:

(a) Upon request, bargain with the Laborers' International Union, Local 1276, AFL-CIO, concerning the impact and implementation of its decision to contract out the EAP services to Maschhoff, Barr and Associates, Inc.

(b) Notify the Union of any proposed change in working conditions, including changes in the EAP and, upon request, bargain with the Union to the extent consonant with the obligations imposed by the Statute, concerning the impact and implementation of such changes.

(c) Notify the Union of formal discussions which concern grievances, personnel policies or practices or other general conditions of employment, occurring at the Defense Logistic Agency, Defense Depot Tracy, so that it may have the opportunity to be present at such discussions.

(d) Post at its Tracy, California facility where employees in the bargaining unit 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 of the Depot, and they 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 ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegation of the complaint as to the failure and refusal of the Respondent to negotiate with the Union concerning the Union's EAP proposals is dismissed.

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 changes in working conditions, including changes in the Employee Assistance Program (EAP), without first providing the Laborers' International Union, Local 1276, AFL-CIO, the exclusive representative of our bargaining unit employees, prior notice and the opportunity to bargain about the impact and implementation of such changes.

WE WILL NOT conduct formal discussions with employees in the unit exclusively represented by the Union concerning conditions of employment, such as the Employee Assistance Program, Employee Orientation Sessions, conducted by Maschhoff, Barr & Associates, Inc. in March and April 1989, for all Defense Depot Tracy personnel, without giving the Union notice and the opportunity to be represented.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL upon request, bargain with the Laborers' International Union, Local 1276, AFL-CIO, concerning the impact and implementation of our decision to contract out the EAP services to Maschhoff, Barr and Associates, Inc.

WE WILL notify the Union of any proposed change in working conditions, including changes in the EAP and, upon request, bargain with the Union to the extent consonant with the obligations imposed by the Statute, concerning the impact and implementation of such changes.

WE WILL notify the Union of formal discussions which concern grievances, personnel policies or practices or other general conditions of employment, occurring at the Defense Logistic Agency, Defense Depot Tracy, so that it may have the opportunity to be present at such discussions.

__________________________
(Activity)

Dated:___________ By:__________________________

(Signature) (Title)

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, San Francisco Region, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union submitted other proposals that are not in dispute here.