File 2: Opinion of Chair Segal
[ v55 p127 ]
Concurring opinion of Chair Segal
I write separately to state why I agree with the majority that the Respondent violated the Statute when it instituted a change in conditions of employment without providing the Union with notice and an opportunity to bargain over that change.
As relevant here, the Respondent's exceptions make it necessary to resolve whether the Respondent made either of two alleged changes to the rivetized work program in November 1994: (1) a change in promotions to the full performance WG-12 level [n1] ; and/or (2) a change in shop rotations. With respect to the alleged change in promotions, having carefully considered the Respondent's exceptions and reviewed the record below, I conclude, for the reasons that follow, that a preponderance of the evidence supports a finding that the Respondent changed a condition of employment. Specifically, I find that, in November 1994, the Respondent unilaterally placed a new prerequisite on promotions to the WG-12 level.
The record evidence establishes that, at the November 1994 meeting, the Respondent's classification specialist (hereinafter "Respondent's specialist") announced to employees in the program that they would no longer be promoted to WG-12 upon completion of their training. Employees who attended that meeting testified that it was the first announcement they received that WG-11s who were in training would be "treated differently" than those who had already been promoted to a WG-12, because those WG-11s would not be promoted upon completion of training. Transcript at 131; see, e.g., id. at 198-99 (testimony that at the meeting employees were told that Respondent was going to "stop everything," regarding the rivetized work program, and that "11s will stay 11s," despite their training); id. at 349 (testimony that the Respondent's specialist "explain[ed] why there wasn't going to be any more . . . promotions"); Decision at 7 (Judge determined, based on the testimony of employees, that the Respondent announced at the meeting "the demise of . . . promotions for the rivetized work force").
The testimony of these employees was explicitly credited by the Judge as the basis for his conclusion that the Respondent announced the end to WG-12 promotions at the November 1994 meeting. See Decision at 8. Because the Authority defers to that credibility determination, I find the employees' testimony about what was said at the meeting similarly persuasive. See Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51, 51-52 (1994) ("We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect.").
The announcement by the Respondent's specialist indicates that promotions that would have taken place before November 1994 would not occur. However, the Respondent claims that, rather than reflecting any change, "[t]he program always required a further determination . . . that there had to be work to justify the position." Respondent's Exceptions at 13. According to the Respondent, promotions to the WG-12 level had always been dependent on the availability of WG-12 work and, as such, the announcement at the November 1994 meeting was merely an application of the program's promotion policy. See id. The Respondent asserts that prior to 1994, sufficient WG-12 work was available, thereby justifying the promotions of those employees who had completed the training program prior to that date.
The Judge did not find the Respondent's explanation that there was an insufficient workload in November 1994 convincing, given the testimony of the Respondent's supervisors "that they were dissatisfied with how the rivet workforce program was working out in practice[.]" Decision at 11. But even if the availability of workload was a factor in the Respondent's action, the imposition of a workload determination at the time of promotion itself reflects a change in the program that required notice and an opportunity for impact and implementation bargaining. In this regard, the Respondent's reliance on WG-12 workload fails to acknowledge a distinction it had drawn in the program described in its April 1993 memorandum: the availability of work was stated as a prerequisite to creating and filling a rivet position; it was not stated as a prerequisite to promoting to the WG-12 full performance level an employee who had been selected for, and was serving in, an entry or intermediate rivet position.
Specifically, the April 1993 memorandum describes the procedures "by which employees may be moved . . . to the multi-skill Rivet Workforce" position, which is "graded WG-12 at the full performance level[.]" [n2] Respondent's Exhibit 2. The position would be "submitted for competitive fill . . . at either the full performance level or the WG-09 or WG-11 entry or [ v55 p125 ] intermediate level" based on management's determination "that the organization has sufficient work to require [the WG-12] level of performance[.]" Id. The memorandum further explains that employees selected at less than the full performance level would embark on a training plan, [n3] and "[o]nce training is completed and employee can work with normal independence on complex projects, management may submit for promotion to the WG-12 level." [n4] Id.
Read in its entirety, the April 1993 memorandum, in my view, supports the conclusion that, prior to November 1994, an employee who had been accepted into the program at the entry/intermediate level would be eligible for promotion to the WG-12 level without requiring a further determination about the amount of work available. As quoted above, the memorandum explicitly makes the availability of WG-12 work a prerequisite for entering into the rivet program. However, the availability of work is not restated as a prerequisite for promotion to the full performance WG-12 level for employees selected for the program at the entry or intermediate level. At the same time, the memorandum is not silent about the prerequisites for promotion. The two requirements stated for promotion are: completion of training and ability to work with normal independence on complex projects.
Put simply, the workload prerequisite the Respondent now asserts was applicable prior to November 1994 for promotion decisions was specifically linked in the April 1993 program description only with the decision to fill a rivet position at any level. Once an employee was selected for such position at less than the full performance level, the specific prerequisites for promotion did not include a further determination about work availability. That is, prior to November 1994, the WG-12 workload determination was relevant to whether a rivet position would be created and filled, not whether an employee selected for such position at an entry or intermediate level would be promoted to the WG-12 level.
This distinction is not about splitting hairs. As the testimony makes clear, employees' decisions to relocate themselves and their families to California were based on understanding that they would be upgraded to the full performance WG-12 level upon the successful completion of training. See, e.g., Transcript at 149-155 (testimony of one employee who moved from Ohio to California in July 1993); id. at 78-84 (testimony of another employee who did the same); Decision at 5-6, 10 (Judge examined and credited the testimony of those two employees, finding that they moved to California based on the understanding that they would receive a promotion to the WG-12 level). The availability of work, unlike the successful completion of training, is beyond an employee's power to satisfy. Therefore, whether the availability of work is determined prior to selection or at the time of promotion is a distinction with considerable difference.
Consistent with the foregoing, I find that the preponderance of the evidence demonstrates that the Respondent changed conditions of employment in November 1994 by making promotions to the WG-12 level dependent on a further determination regarding the availability of WG-12 work. [n5] It is not disputed that this change was implemented without notice and an opportunity to bargain, and that the effect of the change on unit employees' conditions of employment was not de minimis. Therefore, I conclude that the Respondent violated the Statute. [n6]
Footnote # 1 for 55 FLRA No. 21 - Opinion of Chair Segal
The changes alleged in the complaint concerned "Rivet Work Force positions[.]" G.C. Exhibit 1b. It is clear from the charge on which the complaint is based, and the opening statement by Counsel for the General Counsel, that the positions at issue are the full performance level WG-12 rivet positions to which employees would be promoted after the completion of the training program. See G.C. Exhibit 1a; Transcript at 10-12.
Footnote # 2 for 55 FLRA No. 21 - Opinion of Chair Segal
The Respondent describes this memorandum as effecting a change in the program concerning admission to the training position. Respondent's Exceptions at 5-6. As the Respondent does not contend that there was any change in 1993 concerning the promotion factors, it is appropriate to rely on the 1993 memorandum to ascertain the promotion factors in effect at all relevant times prior to November 1994.
Footnote # 3 for 55 FLRA No. 21 - Opinion of Chair Segal
The actual words in the memorandum are that employees "may embark on training plans". Respondent's Exhibit 2. However, it is not disputed that, upon admission to the entry/intermediate level, an employee would be cross-trained as a rivetized mechanic. Indeed, the purpose of the program is for selected employees to be trained in the three rivetized work areas, so that upon completion of their training, they are able to continually rotate between those three work areas. See Respondent's Exhibit 5 (position description for WG-9 through WG-12 level employees participating in the rivetized work program).
Footnote # 4 for 55 FLRA No. 21 - Opinion of Chair Segal
The Respondent argues that the term "may submit" supports its view that promotion to WG-12 would not be automatic. Respondent's Exceptions at 13. As suggested in note 3, supra, there is reason to be skeptical that Respondent was precise when it used the term "may" in the April 1993 memorandum. In any event, even if "may submit" is construed as meaning that promotion was permissible, rather than required, this does not clarify whether promotion was conditioned on a further workload determination.
Footnote # 5 for 55 FLRA No. 21 - Opinion of Chair Segal
I recognize that this change is not identical to the change found by the Judge. Decision at 9 ("I conclude that the record evidence supports a finding that the Respondent discontinued the rotation and competitive promotion of its rivetized mechanics in November 1994[.]"). It is, however, an alleged change that was clearly understood by the litigants and fully litigated. See, e.g., Transcript at 10 (opening statement of Counsel for General Counsel); id. at 15 (opening statement of Counsel for Respondent); id. at 293 (testimony of Respondent's specialist). Moreover, the Respondent's exceptions contend that it did not change promotion terms because requiring availability of work determination prior to promotion was always a condition of promotion. Respondent's Exceptions at 13.
Footnote # 6 for 55 FLRA No. 21 - Opinion of Chair Segal
Because I find the Statute violated by this unilateral change in promotion terms, I do not reach the issue of whether the suspension of shop rotations also constituted a change in conditions of employment. Nor do I consider it necessary to resolve the General Counsel's cross-exception concerning the Judge's bewildering, inconsistent f