40:1147(102)CA - - EEOC and National Council of EEOC Locals #216, AFGE - - 1991 FLRAdec CA - - v40 p1147

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[ v40 p1147 ]
40:1147(102)CA
The decision of the Authority follows:


40 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Respondent)

and

NATIONAL COUNCIL OF EEOC LOCALS #216

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

(Charging Party)

3-CA-90013

DECISION

May 30, 1991

Before Chairman McKee and Member Armendariz.(*)

I. Statement of the Case

This 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.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing reduced personnel ceilings for its headquarters and field office locations without affording the Charging Party (the Union) reasonable notice and an opportunity to bargain over the impact and implementation of the reduction in personnel ceilings. The Judge concluded that the Respondent did not violate the Statute and recommended that the complaint be dismissed.

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. We affirm those rulings. We find, however, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute. Accordingly, we will issue an appropriate remedial order.

II. Facts

The facts, which are set out fully in the Judge's decision and are not materially in dispute, are summarized here. The Union is the exclusive representative of a unit of between 2500 and 2700 employees who work in the Respondent's headquarters office and at about 49 field office locations.

In June and July 1988, the Respondent became concerned that a budget crisis would occur in Fiscal Year (FY) 1989 if costs were not reduced. The Respondent discussed cost-saving measures, including a leave without pay plan, with the Union.  In late July 1988, the Respondent decided to reduce the personnel ceilings for its headquarters and field office locations as a long-term, cost-saving measure. The Respondent decided to reduce the number of employees through normal attrition. The Respondent did not give the Union "reasonable notice" of the change or an opportunity to bargain because it determined that this action would "have no impact" on unit employees' conditions of employment and that formal notice to the Union was unnecessary. Judge's Decision at 2.

On July 28, 1988, the Respondent informally advised the Union by phone that the Respondent was lowering its personnel ceilings. The Respondent also sent the Union copies of a draft memorandum dated August 1, 1988, announcing the reduced personnel ceilings. The Respondent's memorandum stated, in part:

Our FY 89 budget will allow us to support an FTE [Full Time Equivalency] level of approximately 2900 employees, as compared to 3198 requested for FY 88. This reduction can be accomplished without resort to a RIF [Reduction in Force] or furlough if we plan ahead and start now to reduce our staffing levels through attrition.

Id. at 3.

During the telephone call of July 28, the Union requested impact and implementation bargaining and also requested that the Respondent delay implementation of the reduced personnel ceilings until negotiations were completed. As found by the Judge, the Union representatives

foresaw a RIF or reorganization as possibilities if the personnel ceilings could not be reduced by attrition or other means. The [Respondent] had not informed them of any other way it intended to reduce personnel ceilings, and they had not received any absolute assurance that there would be no RIF. They were also concerned about the effect on performance appraisals if employees were lost and the remaining employees had to assume their case loads. [The Union] decided to request negotiations and seek information about the reduced ceiling, including current and anticipated staffing levels. [The Union] did so by an August 2, 1988 letter to [the Respondent].

Judge's Decision at 3.

The Respondent replied on August 5, 1988, that it would reduce its staffing levels through attrition and that it did not intend to conduct a RIF. The Respondent also stated that the reduced personnel ceilings did not affect employees' performance appraisal standards. The Respondent did not supply the information requested by the Union.

Also on August 5, 1988, the Respondent notified the Union that the Office of Personnel Management (OPM) had approved the Respondent's request to conduct a voluntary early retirement ("early-out") program. Some eligible employees who received notices of the early-out program told the Union that they felt they were being pressured into retiring. The Union "speculated" that there was a link between the early-out option and a potential RIF and that the early-out program was linked to the decision to lower personnel ceilings. Id. at 4.

On August 8, 1988, the Respondent issued a memorandum to its District Directors stating that 250 staff positions would be reduced and that

[t]he purpose of identifying these ceiling reductions now is to avoid more serious corrective measures in the future. At this point, we do not anticipate the need for a reduction-in-force.

Id.

By letter dated August 11, 1988, the Union, "in further support of [its] request for information and negotiations, outlined [its] concerns" regarding the decision to reduce personnel ceilings. Id. at 5. The Union: (1) reiterated its concern about a potential RIF; (2) noted the letters to unit employees about the early-out program; and (3) "stated that staffing patterns directly influence the performance appraisals" of unit employees, "such as in the category of meeting office goals for case processing time." Id. The Respondent did not reply to the letter.

On August 22, 1988, the Respondent's District Directors were informed that field office personnel ceilings would be reduced by 318 positions to avoid more serious corrective measures in the future. Subsequently, the Respondent reduced personnel ceilings by over 400 positions.  The Union was never informed regarding: (1) how many of the positions were bargaining unit positions; or (2) the reasons for the increase in the ceiling reduction levels.

By letter dated October 24, 1988, the Union again requested impact and implementation bargaining concerning the reduced personnel ceilings. The Respondent did not reply to the Union's letter and no impact and implementation bargaining took place. If impact and implementation bargaining over the reduced personnel ceilings had occurred, the Union intended to negotiate concerning: (1) procedures to inform employees about the early-out program; (2) options, such as minimizing RIFs, if the Respondent did not meet its reduced ceiling levels; (3) procedures for detailing or shifting employees; and (4) the effect of a shifting workload on employees' performance evaluations.

III. Judge's Decision

The Judge stated the issue before him as "whether Respondent's implementation of the revised personnel ceilings constituted a greater than de minimis change in the working conditions of unit employees so as to trigger an obligation to bargain." Id. at 2. He concluded that the Respondent's actions did not create an obligation to bargain under the Statute.

The Judge stated that if an agency exercises a management right so as to change unit employees' conditions of employment, the agency has a duty to bargain under section 7106(b)(2) and (3) of the Statute if the change results in an impact on unit employees or such impact was reasonably foreseeable. Citing Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA), the Judge noted that in determining whether a change in conditions of employment required bargaining, consideration must be given to "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." Judge's Decision at 7-8. The Judge further stated that "[t]he appropriate inquiry involves an analysis of the reasonably foreseeable effect of the change in conditions of employment at the time the change was proposed and implemented, including temporary and transitory effects." Id. at 8.

The Judge determined that, on August 1, 1988, when the Respondent implemented its reduced personnel ceilings, the Union "foresaw a reduction in force or reorganization if management could not accomplish the reduction in personnel ceilings by normal attrition. The Union officials also foresaw details, reassignments, and lower performance appraisals if employees were lost and remaining employees had to assume their workloads." Id. (emphasis in original). The Judge also noted that the Union suspected a link between the early-out program and the Respondent's decision to lower its personnel ceilings.

As to the Union's concerns regarding the potential impact of the Respondent's lowered personnel ceilings, the Judge stated:

[T]he record reflects that management assured the Union that the change in staffing levels would be accomplished through normal attrition, and that it did not intend to conduct a reduction in force. There is no evidence that the [Respondent's] judgment was flawed or made in bad faith. No reductions in force or furlough have occurred, and there is no persuasive evidence that reductions in force, furloughs or details, reassignments, or changes in individual work inventories or performance appraisals were reasonably foreseeable as a result of the reduction in personnel ceilings.

Id.

The Judge also found that the Respondent's early-out program was not linked to the implementation of reduced personnel ceilings. Rather, the Judge determined that the program was a separate measure initiated by the Respondent to reduce costs and that the Union had been separately notified.

Based on his findings, the Judge concluded that the General Counsel had not established that the Respondent's actions "had an effect or reasonably foreseeable effect on the conditions of employment of bargaining unit employees so as to give rise to an obligation to bargain." Id. at 9. Accordingly, the Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

IV. General Counsel's Exceptions

The General Counsel contends that the Judge erred in failing to find that the Respondent's unilateral implementation of the revised personnel ceilings on August 1, 1988, had a reasonably foreseeable impact on unit employees' conditions of employment which gave rise to an obligation to bargain. The General Counsel asserts that the Judge incorrectly applied SSA by considering only the actual effects of the revised personnel ceilings to determine whether the Respondent was obligated to negotiate. According to the General Counsel:

While the Judge perfunctorily discussed reasonably foreseeable impact, his determination that the subject change is not greater than de minimis was buttressed on the actual effects of the ceiling reduction[.]

Exceptions at 9. Relying on Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, 25 FLRA 541 (1987) (Wright-Patterson AFB), the General Counsel argues that "the appropriate inquiry . . . must involve an analysis of the reasonably foreseeable effect of the change in conditions of employment evident at the time the change was unilaterally implemented." Id. at 7.

In this regard, the General Counsel contends that the possibility of a RIF, furlough, or other method to accomplish the lowered personnel ceilings was a reasonably foreseeable consequence of the Respondent's implementation of revised personnel ceilings on August 1, 1988. The General Counsel states:

While Respondent assured the Union that the change in staffing levels would be accomplished through normal attrition, and that it did not intend to conduct a reduction-in-force, it could not . . . give the Union absolute assurances that there would be no reduction-in-force, furloughs or other programs to accomplish the ceiling reductions.

Id.

The General Counsel asserts that the Respondent had: (1) initially forecast a reduction of 250 positions but had revised the forecast to include more than 400 positions; and (2) specifically raised the possibility of conducting a RIF if the revised ceilings could not be accomplished in any other manner. Consequently, the General Counsel contends that, at the time the Respondent unilaterally reduced the personnel ceilings, the Union's legitimate concerns "gave rise to [a] reasonably foreseeable impact on the affected employees and demonstrably created a bargaining obligation."

Id. at 9.

V. Respondent's Opposition

The Respondent contends that it was not required to provide the Union with notice of, or to engage in impact and implementation bargaining over, the reduced personnel ceilings. The Respondent maintains that implementation of the revised ceilings did not: (1) have a reasonably foreseeable impact on bargaining unit employees' conditions of employment; or (2) change those conditions of employment in a manner that was more than de minimis.

The Respondent contends that the Judge applied the correct legal standard and "made the proper inquiry in finding facts which demonstrate that at the time the change was proposed and implemented no adverse effects that would require negotiation, such as a reduction in force, furlough, details, reassignments or changes in work inventories or performance appraisals[,] were reasonably foreseeable." Opposition at 5.

With regard to whether the possibility of a RIF or furlough was a reasonably foreseeable result of the implementation of revised personnel ceilings, the Respondent argues that it repeatedly expressed its belief to the Union that a RIF or furlough would not occur based on its judgment that normal attrition would provide the needed reductions. The Respondent states that "there was no evidence that the Agency's judgment was flawed or that any actions beyond attrition were reasonably foreseeable." Id. at 7. The Respondent asserts that "[t]he General Counsel's burden was to produce more than speculation as to what 'might happen,' 'could happen' or was 'possible' of happening." Id.

As to the foreseeability of lowered employee performance appraisals and employee transfers at the time revised ceilings were implemented, the Respondent asserts that it presented evidence supporting the position that these events would not occur as a result of the ceiling reduction. The Respondent also asserts that the Judge found that the early-out program was a separate matter unrelated to the revised personnel ceilings.

The Respondent contends that the General Counsel's reliance on Wright-Patterson AFB is misplaced. The Respondent argues that the change at issue in that case (ceasing to grant permanent promotions) was "a definitive action . . . which had a significant and immediate impact on employees." Id. at 10. The Respondent asserts that, as determined by the Judge with regard to the revised personnel ceilings in this case, "[n]othing of consequence has in fact occurred or foreseeably would have occurred beyond the speculations of the Union as to what might happen if management did not follow through with its stated intentions." Id.

VI. Analysis and Conclusions

We conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally implemented reduced personnel ceilings in its headquarters and field offices without giving the Union reasonable notice and an opportunity to bargain concerning the impact and implementation of the change.

In SSA, the Authority stated that whether a change in conditions of employment requires impact and implementation bargaining requires analysis of the pertinent facts and circumstances presented in each case. In examining the record, the Authority places principal emphasis 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 of bargaining unit employees. Equitable considerations are taken into account in balancing the various interests involved.

Applying the SSA standard, we conclude that, viewed at the time that the Respondent unilaterally implemented the change in personnel ceilings, the nature and extent of the reasonably foreseeable effect of the reduction in personnel ceilings on conditions of employment of bargaining unit employees was such as to give rise to an obligation to bargain over the impact and implementation of that decision.

As set forth above, at the time of the implementation of the reduced personnel ceilings the Union foresaw various potential consequences to unit employees if the personnel ceiling reductions were not accomplished through attrition. The Union was concerned about, among other things, the potential for a RIF and the effect of reduced staffing patterns on unit employees' performance appraisals. In our view, these potential consequences were not merely speculative, but rather were reasonably foreseeable based on the circumstances at that time.

The Respondent's memorandum of August 1, 1988, stated that the reduced personnel ceilings "can be accomplished without resort to a RIF or furlough if we plan ahead and start now to reduce our staffing levels through attrition." Judge's Decision at 3. The Respondent's response of August 5, 1988, to the Union stated that management "does not intend to conduct a reduction-in-force." Id. The Respondent's memorandum of August 8, 1988, stated that "at this point, we do not anticipate the need for a reduction-in-force." Id. at 4. These statements do not constitute assurances to the Union that there would not be any RIFs or other programs affecting unit employees to attain the reduced personnel ceilings. Indeed, the statements reference, but do not rule out, the use of RIFs. As the Judge found, the Union "had not received any absolute assurance that there would be no RIF." Judge's Decision at 3. Because there was no certainty that the reduction in the number of unit employees required by the reduced personnel ceilings would be achieved solely through attrition, we find that, at the time the Respondent unilaterally implemented the reduced personnel ceilings, a RIF was a reasonably foreseeable effect of that implementation.

We also find that, because there would be fewer employees after the implementation of the reduced personnel ceilings, the reduced personnel ceilings had a reasonably foreseeable effect on the performance appraisals of the remaining unit employees by increasing their workloads. As found by the Judge, the Union was concerned specifically about the effect on unit employees' performance appraisals "if employees were lost and the remaining employees had to assume their case loads." Judge's Decision at 3. In our view, a reasonably foreseeable effect of reduced personnel ceilings is that the smaller number of employees remaining after the implementation of the reduced personnel ceilings would have to take over the work of employees lost as a consequence of the reduced personnel ceilings, and that this increased workload will have ramifications in employees' performance appraisals. In addition, the reduction in personnel ceilings would have the reasonably foreseeable effect of diminishing the availability of promotional and career development opportunities for bargaining unit employees. See National Guard Bureau, 22 FLRA 836, 839-40 (1986).

Finally, we note that the fact that there was no evidence that any employees were actually subjected to a RIF or otherwise adversely affected by the Respondent's implementation of revised personnel ceilings is not dispositive of the issue of whether the Respondent's change in conditions of employment required impact and implementation bargaining. As noted earlier, the test established in SSA involves consideration of "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." 24 FLRA at 408 (emphasis added).

We conclude, therefore, that the Respondent was obligated to bargain with the Union concerning the impact and implementation of the reduced personnel ceilings. Accordingly, we find that, by refusing to do so, the Respondent violated section 7116(a)(1) and (5) of the Statute.

VII. Remedy

As a remedy, the General Counsel requested before the Judge that the Respondent be issued a cease and desist order and directed to post an appropriate notice to employees at all headquarters and field office locations. In agreement with the General Counsel, and in order to carry out the purposes and policies of the Statute, we will order the Respondent to cease and desist from refusing to bargain concerning the reduced personnel ceilings and, upon request, negotiate in good faith concerning the impact and implementation of the reduced personnel ceilings. We will also order the Respondent to notify the Union of any future reductions in personnel ceilings and afford it an opportunity to bargain concerning the impact and implementation of such reductions.

VIII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations, and section 7118 of the Statute, the U.S. Equal Employment Opportunity Commission shall:

1. Cease and desist from:

(a) Implementing reduced personnel ceilings without first notifying the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, and affording it the opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees affected by such change.

(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) Upon request, negotiate in good faith with the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, concerning the procedures to be observed in implementing reduced personnel ceilings and concerning the appropriate arrangements for employees adversely affected by such changes.

(b) Notify the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, of any future reduction in personnel ceilings, and prior to implementation, afford it an opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees adversely affected by such change.

(c) Post at its facilities where unit employees 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 Chairman of the U.S. Equal Employment Opportunity Commission 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 ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.20 of the Authority's Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, 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 RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT implement reduced personnel ceilings without first notifying the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, and affording it the opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees affected by such change.

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 upon request, negotiate with the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, concerning the procedures to be observed in implementing reduced personnel ceilings and concerning the appropriate arrangements for employees adversely affected by such changes.

WE WILL notify the National Council of EEOC Locals #216, American Federation of Government Employees, AFL-CIO of any future reductions in personnel ceilings, and prior to implementation, afford it an opportunity to bargain concerning the procedures which management will observe in effecting such change and appropriate arrangements for employees adversely affected by such change.

(Agency)

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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758.




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

*/ Member Talkin did not participate in this decision as this case arose during her tenure as Chief of Staff of the Equal Employment Opportunity Commission.