54:0914(90)CA - - Air Force Materiel Command and AFGE Council 214 - - 1998 FLRAdec CA - - v54 p914



[ v54 p914 ]
54:0914(90)CA
The decision of the Authority follows:


54 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF THE AIR FORCE

AIR FORCE MATERIEL COMMAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214, AFL-CIO

(Charging Party/Union)

CH-CA-50320

_____

DECISION AND ORDER

August 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent did not file an opposition.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a voluntary separation incentive pay program without bargaining as required by the Statute. The Judge determined that the effect of the program on the employees was de minimis and recommended that the complaint be dismissed.

For the reasons set out below, we reverse the Decision of the Judge and find that the Respondent committed an unfair labor practice, in violation of section 7116(a)(1) and (5) of the Statute.

II. Background and Judge's Decision

The facts in this case are fully set forth in the Judge's decision, and are only briefly summarized here.

A. Background on the Palace Acquire Interns and Respondent's Voluntary Separation Incentive Payment Offering

The Union, American Federation of Government Employees, Council 214, is the exclusive representative of Respondent's employees in various bargaining units at Air Force Materiel Command (the Command) facilities around the country. Included in this unit are certain employee-interns known as Palace Acquire Interns (PAQs). The PAQs are employees who enter a two or three-year training program for subsequent placement in permanent career positions with the Respondent.

In 1993, after 38 PAQs had completed their training, there were no permanent positions available in which to place them. Though the Respondent made efforts to retain the PAQs by extending their internships for two years, a reduction-in-force of the PAQs was highly probable. To remedy the situation, the Respondent obtained permission from Headquarters, U.S. Air Force, to offer voluntary separation incentive pay (VSIPs) to employees in positions that, when vacated, could be filled by PAQs. Headquarters authorized the offering of VSIPs subject to the following three limitations. First, the VSIPs were approved only for "regular retirement eligibles . . . to create placement opportunities for PAQs who do not have permanent positions." Judge's Decision at 3. Second, incentives were to be offered in three phases as necessary: phase I was to offer the incentives at the installation where the PAQs were then employed; phase II was to expand the offer to employees at installations within the Command or any Air Force installation within the commuting area, if all interns were not placed; and phase III was to offer the incentives at any "CONUS base" (base in the Continental United States) as necessary to place remaining interns. Id. Third, incentives were to be funded within existing Command resources.

When the VSIP process was in phase II of its implementation in late September of 1994, only five interns remained to be placed. Of the five, four interns were placed in vacancies created by employees who accepted a VSIP, and one intern refused her placement.(1) Id.

B. Decision of the Judge

The Judge identified four categories of bargaining unit employees that were potentially affected by the VSIP program: (1) the PAQ employees; (2) employees offered VSIPs (regular retirement eligible employees whose skills matched those of the PAQs who were placed); (3) employees entitled to, but not offered, VSIPs (employees who had matching skills to the PAQs to be placed, but were not offered VSIPs by the Respondent); and (4) employees not entitled to VSIPs (employees who did not have matching skills to the PAQs who were placed, and were not offered VSIPs).

The Judge found, as to the employees in categories (1) and (4), that the VSIP program did not change their conditions of employment.(2) Id. However, as to the employees in categories (2) and (3), that is employees with matching skills to the PAQs who were either offered or not offered VSIPs, the Judge determined that at each phase of the incentive offering these employees "would have been affected to the extent that each have an opportunity to be considered for a VSIP." Id. at 10.

The Judge thus found that, although there was no obligation to bargain over the decision to offer VSIPs, there was a change in these employees' conditions of employment which could give rise to a bargaining obligation.(3) He then applied the standards enumerated in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-408 (1986) (SSA), to ascertain whether the effect of the change was more than de minimis, which would have required the Respondent to bargain with the Union.(4) The Judge concluded that, although "the interest" of employees was more than de minimis, "the effect" was "not more than de minimis[,]" and was "slight." Judge's Decision at 12, 13. The Judge reached this conclusion based on his finding that the Respondent advertised the incentives throughout the Command and solicited interest of all employees with matching skills to the PAQ employees at various Air Force bases. Referring to the Respondent's efforts, the Judge reasoned that "it would appear that Respondent did give all employees with matching skills within Materiel Command notice and an opportunity for consideration." Id. at 13.

The Judge also rejected the Respondent's claim that the VSIPs were "covered by" the parties' collective bargaining agreement (parties' agreement), thus precluding bargaining.(5) Id. at 9. Despite this finding, the Judge nonetheless concluded that some aspects of the VSIP program were covered by section 16.03 of the parties' agreement.(6) Id. at 8.

In sum, the Judge recommended dismissal of the complaint. However, the Judge stated that if his conclusions were not upheld, he would recommend that the General Counsel's request for a status quo ante remedy be denied. Applying the standards set out in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), the Judge reasoned that a status quo ante order: would disrupt or impair the efficiency and effectiveness of Respondent's operation; would unfairly and impermissibly impact on those employees who received the VSIPs and retired from Federal service; and would be of doubtful legal validity insofar as the payment of a VSIP was concerned. As a result, the Judge stated that a cease and desist order would be an appropriate remedy.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that the effect of the offering of the VSIPs on the bargaining unit employees' conditions of employment was more than de minimis. Exceptions at 7. The General Counsel argues that a VSIP offering is an "enormously significant" event in terms of employees' career and retirement decisions. Id. The General Counsel states that "VSIP's [sic] can be extraordinary benefits to those who are eligible for them and thus it would be of the utmost importance to the Union to make sure that they were administered in a fair and equitable manner." Id.

The General Counsel argues that the record does not support the Judge's finding that the change was de minimis in nature. The General Counsel notes that the Judge based his decision on the finding that the "'Respondent did advertise throughout the Command and that it solicited interest of all employees with matching skills at Hill and Wright-Patterson AFBs.'" Exceptions at 7-8, citing, Judge's Decision at 6, 13. The General Counsel contends that the Judge did not elaborate on how he drew this inference based on the evidence.

The General Counsel also maintains that the Judge erred in finding that there were some aspects of the VSIP program that were covered by section 16.03 of the parties' agreement. The General Counsel contends that no part of the VSIP offering was covered by the agreement.

Lastly, the General Counsel disagrees with the Judge's application of the FCI standards. Specifically, the General Counsel alleges that the Respondent must show, with specific evidence, how and to what degree a status quo ante order would disrupt its operations. Here, the General Counsel explains, the Respondent did not even argue disruption. As there was no specific allegation as to disruption, the General Counsel states that it was denied the ability to put on testimony and evidence to refute the disruption argument and the Judge's decision on this matter is therefore reversible error. The General Counsel also argues that if a status quo ante remedy is still found to be inappropriate by the Authority, the remedial order should at least be modified to include a retroactive bargaining order that provides "make-whole relief" for those employees affected by the change. Id. at 12-13.

B. Respondent

The Respondent did not file an opposition.

IV. Analysis and Conclusions

A. The Effect of the Offering of Voluntary Separation Incentive Pay to Bargaining Unit Employees Was More than De Minimis.

It is undisputed that the Respondent changed the conditions of employment of bargaining unit employees, without providing the Union with notice and an opportunity to bargain, when the Respondent offered the VSIPs. Thus, the issue is whether this change was de minimis in nature.

It is an unfair labor practice to deny the exclusive representative an opportunity to bargain over the impact and implementation of a change in unit employees' conditions of employment, provided that the change has more than a de minimis effect. See, e.g., General Services Administration, Region 9, San Francisco, California, 52 FLRA 1107, 1111 (1997) (GSA); SSA, 24 FLRA at 407-08. In assessing whether the effect of a decision on conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. GSA, 52 FLRA at 1111.

In this case, the decision whether or not to accept a VSIP had an effect on the present and future status of employees that was more than de minimis. VSIPs involve lump sum payments to employees in amounts ranging up to $25,000 per VSIP. See 5 U.S.C.A. § 5597(d) (1996).(7)    VSIPs were offered as an inducement to employees who met various eligibility criteria for retirement. Employees who might not have retired absent the inducement terminated their employment as a result of the VSIP. The Authority has held that matters pertaining to a change in an employee's job status, such as an involuntary reduction-in-force (RIF), concern conditions of employment. See e.g., Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844, 855 (1990) (RIF notices, which implemented agency's determination concerning each employee's job status, was a change in employees' conditions of employment). But see Overseas Education Association, Inc. And Department of Defense, Office of Dependents Schools, 27 FLRA 492, 524-25 (1987), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) (proposal authorizing travel for retirees did not concern condition of employment). The fact that a change in an employee's job status was voluntary here does not alter the fact that the VSIP concerned a condition of employment. The decision to accept a VSIP also affected future career and retirement plans. For example, any employee who accepted a VSIP is required to reimburse the Government upon acceptance of future Federal employment within five years. See 5 U.S.C.A. § 5597(g)(1) (Supp. 1998). Thus, any bargaining unit employee contemplating acceptance of a VSIP had to consider both present and future employment needs.

The Authority has held that "[t]he loss of compensation and benefits is a matter of fundamental importance to employees and has a significant effect on their conditions of employment." Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 698 (1991). In this case, the record establishes that four VSIPs were paid to employees at the rate of $25,000 each. See Res. Exhibit 6. Employees who accepted a VSIP obtained a sizeable monetary benefit, In contrast, employees who were eligible and would have accepted a VSIP had they known about and been offered one were denied that financial benefit. It is clear to us, given the consequences attendant to the VSIP program, that the effect on the bargaining unit employees' conditions of employment in this case was more than de minimis.

B. The VSIP Program was Not Covered by the Parties' Agreement.

As a defense to the General Counsel's assertion that the Respondent failed to bargain over the impact and implementation of the offering of the VSIPs, the Respondent claimed that the matter was already covered by the parties' agreement. The Judge found that the actual offering of the VSIPs was not covered by the agreement since Congress did not create the VSIP program until two years after the agreement was already in effect. See Judge's Decision at 9. Nonetheless, the Judge concluded that section 16.03 of the parties' agreement covered some aspects of the VSIP offering.(8)

The General Counsel argues that the entire VSIP process in this case was not covered by the parties' agreement. We agree with the General Counsel and conclude that the parties' agreement did not cover any part of the offering of VSIPs in this case based on the Judge's reasoning that: there was nothing in the parties' bargaining history or the record that suggested the agreement would encompass the VSIP/PAQ program and since Congress did not create the VSIP program until two years after the agreement was already in effect, the parties' could not have contemplated the VSIP program in their agreement. Id. at 9. Thus, the VSIP offering was subject to a duty to bargain, as the VSIPs were not covered by the agreement.(9)

C. Conclusion

In sum, we find that the Respondent violated sections 7116(a)(1) and (5) of the Statute by unilaterally implementing a VSIP program without satisfying its bargaining obligations under the Statute.

D. Remedy

The Judge properly determined that a status quo ante remedy was not warranted. In FCI, the Authority enumerated the following factors to be considered in determining whether to issue a status quo ante remedy following an agency's unlawful implementation of changes in unit employees' conditions of employment over which bargaining is required: (1) whether and when notice was given the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit 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. See Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 753 n.6 (1997), citing, FCI, 8 FLRA at 606.

Applying these factors, we agree with the Judge's determination that a status quo ante order is not appropriate in this case. In particular, the evidence presented in the record regarding the potential disruption of the Respondent's operations, and the unfair impact that a status quo ante remedy would have on those employees who received the VSIPs and retired from Federal service, militates against imposition of such an order. We note that a status quo ante remedy would require the Agency to put everyone back to the positions they occupied before the offering of the VSIPs. For example, the Agency would be required to reinstate all of the employees who accepted the VSIPs in multiple bases around the country. The Agency would also be required to place all of the PAQ employees in their former locations.

While we do not order a status quo ante remedy, we find that a retroactive bargaining order (RBO) is appropriate to remedy the unfair labor practice. It is well established that the Authority has broad discretion to fashion appropriate remedies for unfair labor practices. See F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160 (1996), citing, Department of the Army, U.S. Army Commissary, Fort Benjamin Harrison, Indianapolis, Indiana v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995) (reversing Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA 6 (1993)). See also National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). An RBO is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995) (Renton FAA). In particular, an RBO affords the parties the ability to negotiate and implement the results of their agreement retroactively, "thereby approximating the situation that would have existed had the respondent fulfilled its statutory obligations." Renton FAA, Id. at 37. Furthermore, an RBO is used where it is clear that some employees have been harmed by an agency's unlawful conduct, but there is no way to ascertain their identity through compliance proceedings. See, e.g., Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313, 330-31 (1993) (FDIC), petition for review denied sub nom. FDIC v. FLRA, No. 93-1694 (D.C. Cir. 1994) (Authority imposed RBO to remedy respondent's unilateral decision not to renew appointments of certain employees, requiring that "any employee be made whole who, based on any agreement reached by the parties, is determined to have suffered a loss of pay, benefits, allowances, or differentials because of the [r]espondent's unlawful conduct.").

In this case, there is no question that the Respondent's failure to notify the Union when it received authorization to offer the VSIPs deprived the Union of an opportunity to bargain before employees were affected, and at a time when negotiations would have been meaningful. For instance, if bargaining had occurred prior to the implementation of phase I of the program, the parties may have been able to negotiate a program that gave bargaining unit employees with matching skills to the PAQs an opportunity to accept or reject the VSIPs by virtue of seniority or some other negotiated criterion. A bargaining order that gives retroactive effect to any agreement reached by the parties at this time is appropriate because it permits the parties to determine--through negotiations--the best way to provide relief for employees who were adversely affected by the Respondent's unlawful refusal to bargain.

In ordering retroactive bargaining, we do not address the feasibility or legality of any particular proposal that may be advanced by the Union. We recognize that in the absence of authorization from the Department of Defense, the Respondent cannot approve VSIPs. See 5 U.S.C. § 5997(b). However, the Respondent must be cognizant of its responsibility to negotiate to the extent of its ability, which may include making a request for authorization from the Department of Defense. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et. al and Library of Congress, Washington, D.C., 7 FLRA 578, 586 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Finally, to the extent the parties mutually determine that retroactive effect is either inappropriate or cannot be lawfully given to any of their agreements, the parties are free to negotiate agreements which are current or prospective in their effect to remedy the Respondent's violations.

V. Order

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Air Force, Air Force Materiel Command, shall:

1. Cease and desist from:

(a) Implementing a voluntary separation incentive payment (VSIP) program concerning bargaining unit employees without first notifying the American Federation of Government Employees, Council 214, AFL-CIO (AFGE, Council 214), the agent of the exclusive representative of its employees, and fulfilling its obligation to bargain regarding the procedures for implementing the VSIP program and appropriate arrangements for employees adversely affected by the offering of the VSIPs.

(b) In any like or related manner, interfering with, restraining, or coercing unit 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) On request of the exclusive representative, bargain in good faith with AFGE, Council 214 concerning the procedures for implementing the VSIP program and appropriate arrangements for employees adversely affected by the offering of the VSIPs, and apply retroactively the results of such bargaining, unless otherwise agreed.

(b) Post at all locations within the Air Force Materiel Command where bargaining 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 Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

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

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, Air Force Materiel Command, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT implement a voluntary separation incentives payment (VSIP) program concerning bargaining unit employees without first notifying the American Federation of Government Employees, Council 214, AFL-CIO (AFGE, Council 214), the agent of the exclusive representative, and fulfilling our obligation to bargain regarding the procedures for implementing the VSIP program and appropriate arrangements for employees adversely affected by the offering of the VSIPs.

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

WE WILL, on request of the exclusive representative, bargain in good faith with AFGE, Council 214 concerning the procedures for implementing the VSIP program and appropriate arrangements for employees adversely affected by the offering of the VSIPs, and apply retroactively the results of such bargaining, unless otherwise agreed.

________________________

(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 its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Region, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is: (312) 353-6306.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE MATERIEL COMMAND

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, COUNCIL 214, AFL-CIO

Charging Party

Case No. CH-CA-50320

William P. Krueger, Esquire

For the Respondent

Philip T. Roberts, 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 Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent violated §§ 16(a)(5) and (1) of the Statute by unilaterally offering separation incentives, under the Congressionally Authorized Voluntary Severance Incentive Plan (VSIP)(2), for the placement of Palace Acquire Interns. Respondent asserts that, although VSIP was enacted on October 23, 1992, the day after the Master Labor Agreement (MLA) had expired (Res. Exh. 4), it is so inextricably related to incentives under the Voluntary Early Retirement Act(3), which is specifically noted in the MLA, and to the provisions of Article 16, that it was an aspect of a subject covered by the agreement and therefore, notice to the Union was not required. Moreover, Respondent asserts that, because the MLA had expired, when it implemented its offer, it was not obligated to bargain mid-term on its decision to offer separation incentives.

This case was initiated by a charge filed on January 24, 1995 (G.C. Exh. 1(a)), but the Complaint and Notice of Hearing did not issue until January 12, 1996; the hearing was set for February 27, 1996; and a hearing was duly held on February 27, 1996, in Dayton, Ohio, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument, which Respondent exercised. At the conclusion of the hearing, March 27, 1996, was fixed as the date for mailing post-hearing briefs and Respondent and General Counsel each timely mailed an excellent brief, received on April 2, 1996, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:

Findings

1. American Federation of Government Employees, Council 214, AFL-CIO (hereinafter, "Union") is the certified exclusive representative of a nationwide unit of employees appropriate for collective bargaining of the United States Department of the Air Force, Air Force Materiel Command (hereinafter, "Respondent") at facilities around the country.

2. Palace Acquire Interns (PAQs) are employees of the Air Force; they are college graduates, usually with superior grades (Tr. 27, 86); are recruited out of college to enter a two or three training course for placement in career positions (Tr. 28); and they are serviced by the base personnel office at the activity where they are physically located (Tr. 86-87). In August, 1993, Respondent had 38 PAQs(4) who had completed their training; their training had already been extended about two years (Tr. 87); permanent positions were not available to place them; and it appeared that a RIF of interns was highly probable (Tr. 88). Accordingly, by memorandum dated August 31, 1993, Respondent requested the Department of the Air Force to grant it authority to offer separation incentives,

". . . to employees in skills that would enable the PAQ employee to move into a permanent posi- tion. . . . We also ask that we be given the authority to use the separation incentives at any installation in Air Force Materiel Command where we may find matching skills." (Res. Exh. 2).

3. By memorandum dated January 4, 1994, Air Force granted the authority to offer separation incentives, i.e., VSIPs, subject to the following qualifications:

"1. The Office of the Assistant Secretary for Manpower, Reserve Affairs, Installations & Environment (SAF/MI) has approved the use of incentives for regular retirement eligibles . . . to create placement opportunities for PAQs who do not have permanent positions. HQ AFMC and HQ AMC can offer incentives at any time from the date of this letter through 30 April 1994. . . .

"2. Incentives must be offered in 3 phases, as necessary, with Phase I . . . at the installation where the interns currently work. If all interns are not placed, Phase II will expand offers to other installations within the Command or to any AF installation within the commuting area . . . Phase III will include incentive offers at any CONUS base necessary to place remaining interns. . . .

"3. Incentives must be funded within existing Command resources. . . ." (G.C. Exh. 2).

4. By the time the authority to offer separation incentives was granted (January 4, 1994) there were only 17 surplus PAQs and these were located at Wright-Patterson AFB and at Hill AFB (Ogden)(Tr. 103, 110). The incentives were offered at Wright-Patterson and at Hill but there were no acceptances (Tr. 104). Before Phase III could be implemented, extensions of the time to offer incentives had to be sought, first to May 31, 1994 (Res. Exhs. 5c-1 and 5c); then to July 31, 1994 (Res. Exhs. 5b-1 and 5a-1); and finally to September 30, 1994 (Res. Exhs. 5-c-1 and 5a). At the time Phase III incentives were offered, only 5 interns remained unplaced and incentives were offered to place four interns and one intern declined placement (Tr. 91, 107; Res. Exh. 6). Three were placed at McClellan (California) and one at Battle Creek (Michigan) (Tr. 91, 92).

5. No notice was given to the Union that incentives were to be offered and the Union learned of the incentive offering through one of the PAQs, Ms. Stephanie Lopez, who received a notification of proposed adverse action as a result of her having accepted a position at McClellan and then, in August 1994, recanted her acceptance (i.e., that she had refused to take a position at McClellan (Tr. 29, 30) in violation of her mobility agreement which is incidental to internship (Tr. 49)); however, it was ultimately decided that Ms. Lopez would not be removed and she was reassigned to a liaison position at Headquarters, DLA, Cameron Station (Tr. 47). In the course of defending against her proposed removal, Ms. Lopez, with the Union's assistance, made Freedom of Information Act requests (Tr. 30), which produced data showing the use of VSIPs to create openings for the placement of PAQs (G.C. Exhs. 2, 4, 5, 6, 7; Tr. 30, 31, 32, 35, 36, 38, 40, 41).

6. Article 16 of the MLA provided, in pertinent part, as follows:

"ARTICLE 16

"REDUCTION IN FORCE

"SECTION 16.01 NOTIFICATION REQUIREMENTS

"a. At the earliest possible date, and prior to notification of affected employees, the Employer will notify the Union of the proposed implementation date of a reduction in force and/or transfer of function in accordance with the following:

"(1) HQ AFLC will notify the Council President where 50 or more unit employees at any one activity are identified to be reduced in grade or separated by reduction in force procedures.

"(2) The Commander of a subordinate AFLC activity or designee will notify the appropriate local president of the Union at that activity where five or more unit employees are identified to be reduced in grade or separated by reduction in force procedures.

. . .

"SECTION 16.03: REDUCING IMPACT OF RIF

. . .

"b. The Employer shall request, when appropriate, that the OPM determine that the agency is undergoing a major reduction in force for the purpose of authorizing voluntary retirements under 5 USC 8336(d)(2).

"c. At such time as a reduction in force has been announced, the Employer shall meet individually with affected employees eligible for optional or involuntary retirement and who request it to explain its benefits.

. . . ." (Res. Exh. 4, Article 16, Secs. 16.01 and 16.03).

7. Mr. Walter A. Squires, Executive Assistant to the President of the Union (Tr. 26), stated that Respondent used an earlier EVSIP(5) announcement to ascertain interest in optional retirement (Tr. 60). Respondent presented no testimony as to what notice was given to which employees. Indeed, Mr. Harold J. Miller, Personnel Management Specialist, Headquarters, AMC stated when asked about notice,

". . . I can't answer that, Judge, because we transmitted the authority to them and they had local implementation." (Tr. 106).

As Mr. Squires' testimony was unrefuted, it is conceivable that at McClellan Respondent referred to the EVSIP responses to determine interest of employees in VSIPs. Nevertheless, General Counsel's reliance on Mr. Squires' assertion (General Counsel's Brief, pp. 3, 5) is highly questionable. First, Respondent had no interest in general employee interest in optional retirement as it had sought authority to offer separation incentives, ". . . to employees in skills that would enable the PAQ employee to move into a permanent position . . . " and ". . . use the separation incentives . . . where we may find matching skills." (Res. Exh. 2) and was granted authority for, ". . . the use of incentives . . . to create placement opportunities for PAQs. . . ." (G.C. Exh. 2). Second, Ms. Susan I. Greemore, Equal Employment and Staffing Specialist at Headquarters AFMC, stated that General Counsel Exhibit 2, was, ". . . approval to our request to offer separation incentives in an effort to place. . . . (PAQs)" (Tr. 90); that this authority was used to place four interns (Tr. 91); and that, ". . . there were only actually five remaining to be placed. One ultimately declined placement. And there were only four left that we actually used the incentives to place." (Tr. 91). Mr. Miller, who drafted the request [Res. Exh. 2] (Tr. 102), stated that General Counsel Exhibit 2, granted authority, ". . . to offer separations to employees in order to create the position to place the PAQs (Tr. 103); that this particular VSIP offering was for the exclusive purpose of placing PAQs (Tr. 111-112); that pursuant to the authority granted, it could not offer any VSIP to downsize (Tr. 112). Nor could a VSIP be offered to a surplus employee (Tr. 95, 112). Third, solicitation first was required at Wright-Patterson AFB and at Hill AFB, where the then remaining PAQs were located, to which EVSIP was wholly inapplicable and the program was unknown to both Ms. Greemore (Tr. 92) and to Mr. Miller (Tr. 105-106). Further, the phase III solicitation was Air Force Materiel Command-wide and Army Materiel Command-wide. Indeed one PAQ was placed at Battle Creek, Michigan. To the extent it has any materiality, although wholly undeveloped on the record, I strongly suspect that Respondent identified the employees holding positions which matched the qualifications of the PAQs and offered a VSIP to those employees.

Conclusion

The Complaint alleges that:

". . . Respondent implemented separation incentives for the placement of Palace Aquire Interns (PAQs)" (G.C. Exh. 1(b)), Par. 11); that,

"Respondent implemented the change described . . . without having provided AFGE Council 214 with notice and . . . opportunity to negotiate concerning the change to the extent required by the Statute" (G.C. Exh. 1(b), (Par. 12); and that,

" . . . Respondent has refused to negotiate in good faith . . . in violation of 5 USC § 7116(a)(1) and (5)." (G.C. Exh. 1(b), Par. 13).

Respondent denied the allegations of Paragraph 11, 12 and 13 of the Complaint (G.C. Exh. 1(d)). Nevertheless, the record shows, without dispute, that Respondent did implement separation incentives for the placement of four PAQs without notice to the Union.

The statute authorizing voluntary separation pay, 5 U.S.C. § 5597, specifically provides that such pay (VSIP) shall be, "In order to avoid or minimize the need for involuntary separations. . . ." (Res. Exh. 1; 5 U.S.C. § 5597(b)) and conditions payments, inter alia, "to employees within such occupational groups or geographic locations, or subject to such other similar limitations or conditions, as the Secretary may require," (id., (c)(2)). Respondent exercised a management right under § 6(a)(1) and (2) of the Statute to request authority to pay separation incentives where it found matching skills to enable PAQs to move into permanent positions, and the Secretary further exercised a right of management, as directed by § 5597, to limit payment of separation incentives to regular retirement eligibles solely to create placement opportunities for PAQs. Cf., Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875, 880 (1986). Respondent had no duty to bargain on the substantive decision to offer separation incentives.

The duty to bargain applies when management changes conditions of employment. Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 405 (1986); U.S. Customs Service (Washington, D.C.); and U.S. Customs Service Northeast Region (Boston, Massachusetts), 29 FLRA 891, 898 (1987). The offering of separation incentives did not change the conditions of employment of the PAQs. Their conditions of employment encompassed placement in permanent positions after completion of training. Were conditions of employment of regular retirement eligible employees, with matching skills to the PAQs to be placed, changed by the offer of voluntary separation incentives? I do not believe so; however, General Counsel has asserted that the Union has an interest in making sure that the employees know what they get into by accepting a VSIP. Would conditions of employment be changed if there were retirement eligible employees, with matching skills to the PAQs to be placed, to whom separation incentives were not offered? Possibly. In this regard, General Counsel's suggestion that the Union has an interest in making sure that they were offered fairly is valid. Would conditions of employment of regular retirement eligible employees without matching skills be changed because they were not offered separation incentives? Emphatically, no, and General Counsel's plaint that there ". . . was never any general solicitation of volunteers for VSIPs. . . ." (General Counsel's Brief, p. 5), is wholly fallacious. The statute authorizing VSIP payments, as noted, specifically limits payments to ". . . such occupational groups . . . or . . . other limitations or conditions, as the Secretary may require." Here, the Secretary limited, ". . . the use of incentives for regular retirement eligibles . . . to create placement opportunities for PAQs. . . ." (G.C. Exh. 2). The VSIPs involved could not be offered to employees in general; could not be used except to create placement opportunities for PAQs, and, accordingly, could not be offered to employees without matching skills to the PAQs to be placed; and, of course, could not be offered to downsize nor could it be offered to a surplus employee. As pertains to the duty to bargain, "affect" and "change" are equivalent terms, so that an action which affects conditions of employment is subject to a duty to bargain even though, strictly speaking, there is not a change in conditions of employment, e.g., as here, if the VSIPs were not offered at a particular phase [level] to all employees with matching skills to the PAQs to be placed. Further, a "change" in conditions of employment requires bargaining only if the reasonably foreseeable effect of the change on conditions of employment is more than de minimis. Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-408 (1986); Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA 419, 422-423 (1993).

Assuming that conditions of employment were affected, Respondent asserts that, notwithstanding that the MLA expired the day before VSIP was enacted, VSIP is so inextricably related to incentives under the Voluntary Early Retirement Act, which is specifically noted in the MLA, and to the provisions of Article 16 of the MLA, VSIP was an aspect of a subject covered by the agreement. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1016-1019 (1993); U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 51 FLRA No. 103 (1996)(Slip opinion pp. 4-6). I do not agree with Respondent's assertions that notice of VSIPs was not required because there were not 50 or more at any activity (Res. Exh. 4, Art. 16, Sec, 16.01 a.(1)) nor as many as five at any one location (id. Sec. 16.01 a.(2)), for the reason that the notification requirements set forth in Sec. 16.01, specifically are directed to, and conditioned upon, the existence of a reduction in force and/or transfer of function. Here, there was neither. Indeed, as noted above, VSIPs could not be used to downsize nor could a VSIP be offered to a surplus employee. Accordingly, the notice provisions of Sec. 16.01 of the MLA had no application to the offer of VSIPs.

Section 16.03 c. of the Agreement had provided as follows:

"c. At such time as a reduction in force has been announced, the Employer shall meet individually with affected employees eligible for optional or involuntary retirement and who request it to explain its benefits." (Res. Exh. 4, Article 16, Section 16.03 c.).

Even though the Agreement has expired, the parties have continued to observe its provisions. Further, although there was no reduction in force announced, the obligation that Respondent, upon request, meet individually with each employee eligible for optional or involuntary retirement to explain its benefits, certainly is broad enough to include VSIP, which is an optional retirement benefit, and foursquare within the expressed purpose of Section 16.03, namely to provide employees eligible for optional retirement information concerning that option. Consequently, General Counsel's assertion that the Union had an interest in insuring that employees be informed about advantages and disadvantages of VSIP, had been resolved by the parties by their agreement, which Respondent continues to observe, and Respondent was not obligated to bargain further on this matter.

Section 16.03 of Article 16 is entitled, "Reducing Impact of RIF" and subsection b. provides as follows:

"b. The Employer shall request, when appropriate, that the OPM determine that the agency is undergoing a major reduction in force for the purpose of authorizing voluntary retirements under 5 USC 8336(d)(2)." (Res. Exh. 4, Art. 16, Sec. 16.03 b.).

I agree with Respondent that VSIP, like VERA, has as its purpose to avoid or minimize the need for involuntary separations due to a RIF; but I do not agree that because Section 16.03b. of the Agreement states that to reduce the impact of RIF, the Employer shall, in effect, ask OPM for authority to offer VERA, the Agreement also "covers" VSIPs. As noted, the VSIP statute was not enacted until after the Agreement had expired so that it could not by any stretch of the imagination have been contemplated when the Agreement was negotiated. Equally important, under 5 U.S.C. § 8336(d)(2), VERA applies, when authorized, to all employees in a geographic area; but 5 U.S.C. § 5597 permits the limitation of the payment of VSIPs, ". . . as the Secretary may require", including, but not limited to, employees within an occupa-tional group. Because the parties included VERA in the Agreement does not mean the VSIP, a very different benefit payable to selected occupational groups, which was enacted after the Agreement had expired, was also "covered by" the expired Agreement. There had been no opportunity to consider the impact and implementation of paying voluntary severance incentives to selected employees and, because entitlement for the benefit was wholly different than entitlement for VERA, it was not "covered by" the expired Agreement. Moreover, the Authority has held that when an agreement has expired, ". . . continuation of individual provisions, by operation of law . . . has never been held to constitute a collective bargaining agreement." United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA No. 68 (1996)(Slip opinion, p. 8)(hereinafter, "INS, Del Rio" ). A fortiori, there being no collective bargaining agreement, there was no "contract" to which VSIP could have been subject.

Respondent also argues that, ". . . the impact and implementation of VSIP can only be concluded to be a union initiated mid-term issue, and clearly precluded by INS. . . ." (Respondent's Brief, p. 9). It certainly is true that the Authority, in INS, Del Rio, supra, held that,

"It is fundamental to the definition of 'mid-term' bargaining that it take place during the term of an existing collective bargaining agreement . . . the continuation of individual provisions, by operation of law, to govern aspects of the parties' relationship during a period following expiration of a term agreement, has never been held to constitute a collective bargaining agreement." (Id., Slip opinion at pp. 7-8).

However, I do not agree with Respondent's reliance on INS, Del Rio. As indicated above, INS, Del Rio, stands for the proposition that when a collective bargaining agreement has expired there is no collective bargaining agreement remaining which could preclude the obligation to bargain on the impact and implementation of a change of conditions of employment because "covered by", the agreement of the parties. The "mid-term" bargaining argument of Respondent is without merit inasmuch as the mid-term bargaining holding of INS, Del Rio, is wholly inapplicable to an agency's change of conditions of employment. Whether or not there is, or is not, a collective bargaining agreement, an agency's change of conditions of employment gives rise to an obligation to bargain on the impact and implementation of that change if it is more than de minimis. In INS, Del Rio, the agency changed nothing but, ". . . the Union requested, . . . 'mid-term bargaining in regards to the current policy of assigning Agents. . . .'" (id., Slip opinion, p. 3). Accordingly the Authority in INS, Del Rio, supra, had no occasion to consider, nor did it make any reference to, an agency's duty to bargain on the impact and implementation of a change of conditions of employment.

Consequently, as the availability of VSIPs concerned all employees of Respondent with skills matching the PAQs sought to be placed, the conditions of employment of employees at each phase (level) with matching skills would have been affected to the extent that each have an opportunity to be considered for a VSIP. If this impact were more than        de minimis, Respondent violated its obligation to give the Union notice and opportunity to bargain inasmuch as the record does not show that Respondent gave each employee with matching skills the opportunity, at each level, to be considered for a VSIP(6), and it is conceded that Respondent gave the Union no notice.

The Authority has set forth the standard to determine whether a change is de minimis. First, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA 827 (1985); and second, in Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) where it stated, in pertinent part, as follows:

". . . In discussing the de minimis standard in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, . . . [supra] the Authority identified a number of factors to be considered in determining whether a particular change in conditions of employment was more than de minimis. The factors identified were (1) the nature of the change (for example, the extent of the change in work duties, location, office space, hours, loss of benefits or wages, and the like); (2) the duration and frequency of the change; (3) the number of employees affected or foreseeably affected by the change; (4) the size of the bargaining unit, and (5) the extent to which the parties established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past.

. . .

"We have reassessed and modified the recent de minimis standard. In order to determine whether a change in conditions of employment requires bargaining in this and future cases, the pertinent facts and circumstances presented in each case will be carefully examined. In examining the record, we 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.

"As to the number of employees involved, this factor will not be a controlling consideration. It will be applied primarily to expand rather than limit the number of situations where bargaining will be required. For example, we may find that a change does not require bargaining. However, a similar change involving hundreds of employees could, in appropriate circumstances, give rise to a bargaining obligation. The parties' bargaining history will be subject to similar limited application. As to the size of the bargaining unit, this factor will no longer be applied." (24 FLRA at 407-408).

The Authority consistently has followed this standard. U.S. Customs Service (Washington, D.C.); and U.S. Customs Service Northeast Region (Boston, Massachusetts), 29 FLRA 891, 898 (1987); Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA 419, 422-423 (1993).

Here, availability of VSIPs was: (a) a one time opportunity; (b) available only to provide for placement of PAQs; and (c) available only during a short time frame which ended September 30, 1994. Respondent sought, and was granted, authority to pay VSIPs only to employees with skills matching the PAQs it sought to place; and Respondent offered only four VSIPs, inasmuch as, at the time they were offered and accepted, only five PAQs remained unplaced and one had declined placement. At the time it requested VSIP authority, four months before it was granted (Res. Exh. 2; G.C. Exh. 2), Respondent stated that, ". . . Hill AFB would not be in a position to offer incentives at their location. . . ." (Res. Exh. 2) and on May 31, 1994, Respondent stated: (a) ". . . Wright-Patterson Air Force Base . . . will be unable to place the PAQs"; and (b) "Request . . . extension to offer separation incentives . . . This will allow us time to advertise throughout the command . . . ." (Res. Exh. 5b-1).

Recognizing that, as the Authority has noted, a change in a condition of employment need not be substantial but need only be more than de minimis, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 575 n.2 (1992), the interest of all employees at each [level] phase with matching skills having an equal opportunity to be considered for a VSIP, standing alone, was more than de minimis; but having carefully examined all the facts and circumstances and equitable considerations, I conclude that the effect was not more than de minimis. Thus, although there is a dearth of evidence as to notice given at each phase [level], the record strongly implies that Respondent did advertise throughout the Command; and that it solicited interest of all employees with matching skills at Hill and Wright-Patterson AFBs. Thus, it would appear that Respondent did give all employees with matching skills within Materiel Command notice and an opportunity for consideration. When the VSIPs were offered at Phase III, there were only four offered. The interest of all employees with matching skills to have an opportunity to be considered for a VSIP, while more than de minimis, nevertheless, was slight. The authority to pay VSIPs has expired and the justification for VSIPs terminated with the placement of the four PAQ remaining to be placed.

If it should be determined, contrary to my conclusion above, that the change in conditions of employment was more than de minimis, nevertheless, I would deny General Counsel's request for a status quo ante remedy. A request for a status quo ante remedy must, as General Counsel states, be considered in light of the factors set forth by the Authority in Federal Correctional Institution, 8 FLRA 604 (1982). Here, while the Union (1) received no notice of Respondent's offering VSIPs, and therefore, (2) no opportunity to request bargaining over the impact and implementation of the offer of VSIPs, (3) Respondent's conduct was not willful in light of its reliance on Article 16 of the MLA and decisions of the Authority, inter alia, in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1016-1019 (1993) and INS, Del Rio, 51 FLRA No. 68 (1996). Although I have rejected Respondent's interpretation and application of Article 16 and its reliance on Authority decisions, I can not conclude that its reliance had no colorable basis.

Further, while, if it were determined, contrary to my conclusion, that employees were adversely affected by the failure of Respondent to give the Union notice of the offering of VSIPs, (5) a status quo ante order would disrupt or impair the efficiency and effectiveness of Respondents's operations; would unfairly and impermissibly impact on those employees who received VSIPs and retired from federal service; and any order of the payment of a VSIP would be of doubtful validity under 5 U.S.C § 5596. Accordingly, I would grant only a cease and desist order and posting. No employee lost any pay or allowance or differential which would have been earned or received but for the failure to give the Union notice. Accordingly, a cease and desist order, and posting, would adequately protect employees from any future adverse effect of the failure to give the Union notice of a change of condition of employment.

For the foregoing reasons, it is recommended that the Authority adopt the following.

ORDER

The Complaint in Case No. CH-CA-50320 be, and the same is hereby, dismissed.

________________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: June 12, 1996

Washington, DC




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


Authority's Footnotes Follow:

1. The Judge, in his opinion, stated that this event occurred at phase III. The record indicates, however, that VSIPs were accepted in phase II and that the program never reached phase III. See Respondent's Exhibit ("Res. Exhibit") 5(b)(1); Tr. at 105. Thus, we will refer to phase II, in place of phase III, for the remainder of this opinion.

2. As the General Counsel's exceptions do not address or dispute these findings, we will not address them further.

3. The General Counsel does not except to the Judge's finding that the Respondent had no obligation to bargain over the decision to offer VSIPs. Thus, we will not address it further.

4. It is undisputed that no notice or opportunity to bargain was given to the Union regarding the VSIP program.

5. The Judge noted that, although the agreement had expired, the parties continued to observe its provisions.

6. Section 16.03 of the parties' collective bargaining agreement reads in pertinent part:

c. At such time as a reduction in force has been announced, the Employer shall meet individually with affected employees eligible for optional or involuntary retirement and who request it to explain its benefits.

Judge's Decision at 8; Res. Exhibit 4.

7. 5 U.S.C.A. § 5597 provides in pertinent part:

(b) In order to avoid or minimize the need for involuntary separations due to a reduction in force, base closure, reorganization, transfer of function, or other similar action affecting 1 or more defense agencies, the Secretary shall establish a program under which separation pay may be offered to encourage eligible employees to separate from service voluntarily (whether by retirement or resignation).

(c) Under the program, separation pay may be offered by a defense agency only -

(1) with the prior consent, or the authority, of the Secretary; and

(2) to employees within such occupational groups or geographic locations, or subject to such other similar limitations or conditions, as the Secretary may require.

(d) Such separation pay -

(1) shall be paid in a lump sum;

(2) shall be equal to the lesser of -

(A) an amount equal to the amount the employee would be entitled to receive under section 5595© if the employee were entitled to payment under such section; or

(B) $25,000;

. . . .

(g)(1) An employee who receives separation pay under this section . . . and accepts employment with the Government of the United States within 5 years after the date of the separation on which payment of the separation pay is based shall be required to repay the entire amount of the separation pay to the defense agency that paid the separation pay.

8. See supra note 7 for the language of section 16.03.

9. Since the parties' agreement did not cover the VSIP program, we do not need to reach the Judge's conclusion regarding the impact of the expiration of the agreement.


ALJ's Footnotes Follow:

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

2. 5 U.S.C. § 5997; Res Exh. 1.

3. 5 U.S.C. § 8336(d)(2).

4. These 38 interns were located at the following installations:

Hill AFB, UT                               6
McClellan AFB, CA                   6
Robins AFB, GA                         4
Wright-Patterson AFB, OH        22

(Res. Exh. 2).

5. Expanded Voluntary Separation Incentive Program, for California only (T