45:0574(49)CA - - Portsmouth Naval Shipyard, Portsmouth, NH and Int. Fed. of Professional and Technical Engineers, Local 4 - - 1992 FLRAdec CA - - v45 p574
[ v45 p574 ]
The decision of the Authority follows:
45 FLRA No. 49
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it discontinued using certain unit employees to provide recertification training to other unit employees, without giving the Union notice and an opportunity to bargain over the impact and implementation of the decision. He recommended that the complaint be dismissed. The General Counsel filed exceptions to the Judge's decision. The Respondent did not file an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, for the reasons set out below, we adopt the Judge's findings, conclusions, and recommended order to the extent that it is consistent with this decision.
The only issue in this case is whether the unilateral change in the trainers' conditions of employment had an impact that was more than de minimis, which triggered a duty to bargain over the impact and implementation of the decision. As noted by the Judge, if an agency decision to change a condition of employment is outside the duty to bargain, the agency must bargain about the impact and implementation of the decision if it has more than a de minimis impact on the conditions of employment of unit employees. U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 875, 880 (1990).
In determining whether a change is more than de minimis, the Authority
will place 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 will also be taken into account in balancing the various interests involved.
Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986) (SSA).1/ As noted by the Judge, the appropriate inquiry involves an analysis of the reasonably foreseeable effect of the change based on what the Respondent knew, or should have known, at the time of the change.2/
III. The Reasonably Foreseeable Effect of the Change Was
Not More Than De Minimis
In agreement with the Judge, we conclude that at the time the decision was made, the reasonably foreseeable effect of the Respondent's decision to discontinue recertification training was not more than de minimis. We reach this conclusion because at the time of the change, any concerns that the effect of the change was more than de minimis were speculative, rather than reasonably foreseeable.
As found by the Judge and not disputed by the General Counsel, the Union's principal concern was that, as a result of the elimination of the training, the trainers would be more vulnerable to inclusion in the forthcoming reduction-in-force (RIF) that had been announced earlier in the year. If that were the reasonably foreseeable result of the elimination of the training, the Respondent would have had a duty to bargain because the effect of an increased vulnerability to the RIF clearly would have been more than de minimis.
The Authority has found that a concern about a potential RIF was not speculative, but was reasonably foreseeable, where an agency implemented reduced personnel ceilings for budgetary reasons. U.S. Equal Employment Opportunity Commission, 40 FLRA 1147 (1991) (EEOC). "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," the Authority found that at the time the reduced personnel ceilings were implemented, a RIF was a reasonably foreseeable effect of the implementation of the personnel ceilings. Id. at 1155.
In contrast, although the Respondent had announced a proposed RIF in the bargaining unit of 8,000 employees, there was no indication that any reduction in the number of trainers would be required. Therefore, the question here is whether it was reasonably foreseeable that the cancellation of recertification training increased the vulnerability of the instructors to the RIF. Based on the record before us, we conclude that rather than being reasonably foreseeable, such a result was speculative at best.
The Judge found that when the recertification training was discontinued in November 1990, a total of approximately 20 to 30 hours per month would have been a reasonable estimate of classroom hours lost by the instructors. Even under the General Counsel's estimate of the actual total loss suffered by the five instructors, the figure would have been no more than 24 to 40 hours per month. In addition, two other factors could have influenced the foreseeable impact of the change on each instructor. First, with regard to the number of employees affected by the change, we agree with the Judge, who divided the estimated number of hours lost per month by the total number of eleven instructors instead of by the five who were qualified to deliver that particular training. As the Judge stated, "it is not reasonable to assume that these [five instructors who delivered this particular training], whose skills apply to many types of training, would be more vulnerable than the other instructors in the Training Branch simply because one of their training subjects was reduced in hours spent." Judge's Decision at 7. Accordingly, we conclude that, even using the General Counsel's estimate of total hours lost, the small loss of work could easily be absorbed within the group of eleven trainers, with little likelihood of a RIF.
Second, with regard to whether the lost hours should be viewed cumulatively with previous or concurrent similar losses, we agree with the Judge, who termed a previous loss of instruction hours, totalling 12 hours, as "inconsequential" and another asserted loss totalling 30-36 hours as "problematic." Id. at 8. Comparing the loss of work at issue herein to the asserted 30-36 hours lost, the Judge noted that "[w]hile the evidence concerning the loss of [this] instruction . . . is somewhat confusing, it is almost a model of clarity compared with the evidence concerning this other [30-36 hour] asserted" loss. Id. Significantly, the Judge concluded, based on testimony that he specifically credited, that any cumulative loss could not be viewed in a vacuum because the training programs for which the instructors are needed are constantly changing, with classes or programs being added as well as being curtailed. As an example, he noted that the 40 hours per month previously added to the trainers' duties to prepare the quarterly refresher courses that eventually replaced the discontinued training "more than compensated for the loss of [these] training hours." Id.
In view of the foregoing, we conclude that it has not been established that the reasonably foreseeable result of the change was the increased vulnerability of the instructors to the forthcoming RIF.
The General Counsel also asserts that the reduction in classroom hours would have a reasonably foreseeable effect on the trainers' performance evaluations that would be more than de minimis because the instructors are rated on the preparation, training, and effectiveness of their training sessions. In EEOC, the Authority found that because there would be fewer employees after the implementation of the reduced personnel ceilings, the reduced ceilings would increase the workloads of the remaining unit employees, with a reasonably foreseeable effect on their performance appraisals. Similarly, in Department of Health and Human Services, Social Security Administration, 26 FLRA 344, 347 (1987), the Authority found it reasonably foreseeable that more than a de minimis impact on performance evaluations would result when a new study was initiated requiring unit employees to spend additional time on their cases gathering data for the study. It was deemed reasonably foreseeable that the results of the study and participation in it by unit employees would affect their performance on other cases, their performance evaluations, and related personnel actions.
Thus, in those cases, a reasonably foreseeable result of the changes in conditions of employment was that performance might suffer, with a consequent adverse effect on employees' evaluations. Here, in contrast, there is no showing how the slight reduction in hours of one type of training would have more than a de minimis effect on the instructors' performance evaluations in view of the fact that they continued to conduct a sufficient amount of training to permit evaluation of that work.
Accordingly, we will dismiss the complaint.
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
1/ We disagree with the Judge that the Authority has abandoned the "effect" portion of the "effect or reasonably foreseeable effect" test. See, for example, Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 584-85 (1992). In any event, because the immediate effect on the unit employees was minimal, the disposition of this case depends on an analysis under the "reasonably foreseeable" aspect of the test.
2/ We also reject the Judge's statement that the reasonably foreseeable effect of a change in a condition of employment must be "substantial." Rather, for a change in a condition of employment to be subject to the duty to bargain, the effect of that change on bargaining unit employees need only be more t