Navajo Area Indian Health Service, Winslow Service Unit, Winslow, Arizona and Navajo Nation Health Care Employees, Local 1376, Liuna, AFL-CIO

[ v55 p186 ]

55 FLRA No. 32

NAVAJO AREA INDIAN HEALTH SERVICE
WINSLOW SERVICE UNIT
WINSLOW, ARIZONA
(Respondent)

and

NAVAJO NATION HEALTH CARE EMPLOYEES
LOCAL 1376, LIUNA, AFL-CIO
(Charging Party)

DE-CA-60331

_____

DECISION AND ORDER

January 29, 1999

_____

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 based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Regulations. The parties have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

      The complaint alleges that the Respondent violated section 7116 (a)(1) and (5) of the Statute by implementing changes to the employee health program affecting services received by non-Native American employees, without providing the Charging Party with notice and an opportunity to bargain over the changes.

      For the reasons explained below, we find that the Respondent violated the Statute, as alleged.

II. Stipulation

      The Indian Health Service (IHS) is a component of the Public Health Service (PHS), which is itself a component of the Department of Health and Human Services (DHHS). IHS's mission is to elevate the health status of Native Americans. Stip. Para. 7.

      The Navajo Area Indian Health Service, a component of IHS, consists of eight service units throughout Arizona and New Mexico, including the Winslow Service Unit (WSU). The WSU includes three clinics located on and near the Navajo Reservation in Winslow, Arizona. The WSU provides direct health care, contract [ v55 p187 ] health services, public health education and other services to Native Americans within the service area. Stip. Para. 8.

      There are 101 employees in a bargaining unit at WSU represented by the Charging Party. Most of these employees are Native Americans and, thus, "beneficiaries" of IHS programs. Stip. Para 9. Seventeen of the employees are non-Native Americans and, thus, "nonbeneficiaries." Stip. Para. 9.

      Beginning in 1992, the WSU sponsored an "Employee Health Program." Stip. Para. 10, Ex. 2. The program provided certain health services at no charge to all its employees, regardless of whether they were Native American or non-Native American. The services included, as relevant here, periodic health evaluations, pap tests, breast examinations, dental examinations, and eye examinations, including glaucoma screening.

      In early September 1995, the Respondent implemented changes to the employee health program, terminating these services for non-Native American employees. Stip. Para. 11, Ex. 3. The Respondent did not notify the Charging Party of the changes or provide it with an opportunity to negotiate concerning the changes. Stip. Para. 12.

      The parties agree that the changes to the employee health program had more than a de minimis effect on employee working conditions. Stip. Para. 15. The Respondent admits that it violated section 7106(a)(1) and (5) of the Statute by unilaterally implementing the changes in the employee health program without notifying the Charging Party and providing it with an opportunity to bargain prior to implementation of the changes. However, the Respondent contends that the changes were required by law and regulation and that it was therefore obligated to bargain only over the impact and implementation of the changes. Stip. Para. 18. The General Counsel contends that the changes involved matters which were substantively negotiable terms and conditions of employment under 5 U.S.C. § 7901. [n1]  It thus seeks as a remedy an order that the parties return to the status quo ante and reinstate the prior program. Stip. Para. 17.

      The WSU facility has not been designated a remote site by the IHS for purposes of 42 U.S.C. § 251. Stip. Para. 8. Further, the parties stipulated that the Respondent's practice of providing certain health services to non-Native Americans "was not established by consultation with an Indian tribe, as set forth in 25 U.S.C. § 1680c(b)(1)." Stip. Para. 10.

III. Positions of the Parties

A. General Counsel

      The General Counsel maintains that 5 U.S.C. § 7901 controls in this case. The General Counsel states that the plain language of 5 U.S.C. § 7901 authorizes an agency to establish a health service "to promote and maintain the physical and mental fitness of employees under [its] jurisdiction" including "preventive programs relating to health." General Counsel's Brief at 6 (quoting 5 U.S.C. § 7901). The General Counsel contends that health services at issue in this case are preventive programs relating to health and, thus, substantively negotiable terms and conditions of employment under 5 U.S.C. § 7901. The General Counsel cites National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785, 787 (1987)(Defense Mapping). The General Counsel asserts that in that case the Authority affirmed that 5 U.S.C. § 7901 authorizes an agency to provide preventive health services, "including glaucoma screening." General Counsel's Brief at 8. Thus, the General Counsel argues that the Respondent could not terminate the health services for non-Native Americans without bargaining with the Charging Party.

      The General Counsel disputes that the changes to the employee health program for non-Native American employees were mandated by law and regulation. The General Counsel asserts that 25 U.S.C. § 1680c(b)(1)(A) does not support the Respondent's position. The General Counsel argues that this statutory provision recognizes that services to non-Native Americans may be provided under an "other provision of law."

      The General Counsel also asserts that 42 U.S.C. § 251(b) does not support the Respondent's position. The General Counsel argues that this statutory provision applies to Federal employees generally, but does not dictate the scope of services that may be provided to IHS's own employees. General Counsel's Brief at 10.

      According to the General Counsel, the changes made by the Respondent were not mandated by statute, because 5 U.S.C. § 7901 authorized such expenditures and nothing in the statutory provisions relied on by the Respondent contradicts this authority. [n2] 

      The General Counsel requests a status quo ante remedy. The General Counsel argues that such a remedy is the standard remedy for a failure to bargain about a unilateral change in working conditions and that no spe- [ v55 p188 ] cial circumstances exist that warrant deviating from this general practice. The General Counsel further requests that a notice be posted at the Respondent's three facilities that should be signed by the Respondent's Chief Executive Officer. In the event the Authority agrees with the Respondent that the changes in the employee health program were mandated by law, the General Counsel requests that the Respondent be ordered to bargain over the impact and implementation of the changes and to apply any agreement reached retroactively.

B. Respondent's Position

      The Respondent contends that it was required by its program statute to discontinue providing health services to non-Native American employees and, thus, had no obligation to bargain over the substance of this decision. First, the Respondent relies on a specific appropriations restriction that provided that non-Native Americans would be eligible for services only where a non-Native American woman was pregnant with an Indian child or where it is necessary to treat a member of a Native American's household to control acute infection or a public health hazard. See The Department of the Interior and Related Agencies Appropriations Act, 1983, Pub L. No. 97-394, 96 Stat. 1966, 1990 (the 1983 Appropriations Act).

      Second, the Respondent relies on 25 U.S.C. § 1680c, entitled, "Health services for ineligible persons." The Respondent specifically cites 25 U.S.C. § 1680c(a), which it states authorizes the IHS to provide services to non-Native American children and spouses of Native Americans. The Respondent argues that the affected employees do not fall within either of those two described categories. The Respondent also cites 25 U.S.C. § 1680c(b)(1)(A), which it states authorizes the IHS to provide services to non-Native Americans who do not fall within the two categories when, among other circumstances, DHHS and a tribe jointly determine that there will be no diminishment of services to Native Americans. The Respondent argues that there is no agreement with the Navajo tribe to provide these services.

      Finally, the Respondent relies on 42 U.S.C. § 251(b), which it states authorizes the PHS to provide health services to Federal employees at "remote medical facilities." The Respondent argues that the location of Winslow, Arizona, is not designated a "remote" area 42 U.S.C. § 251(b).

      Thus, the Respondent argues that the changes made to the employee health program brought its practice "in line with the requirements of law" by terminating services to non-Native American employees that were not authorized by those laws. Respondent's Brief at 4.

      The Respondent disputes that the services are authorized by 5 U.S.C. § 7901. The Respondent asserts that it is "untenable" to suggest that the "general language" of 5 U.S.C. § 7901 provides an authorization of services where the IHS statutes are "enacted with such specificity and careful construction" and where they are in furtherance of the explicit public policy to promote the health of the American Indian people. Respondent's Brief at 5.

      The Respondent asserts that a status quo remedy is not appropriate, because it was not required to bargain over the substance of its decision. Respondent does not comment on either the appropriateness of this remedy, if it is found to have violated the Statute, or on the General Counsel's alternative request for a retroactive bargaining order concerning impact and implementation, in the event only this conceded violation is found.

IV. Analysis and Conclusions

      When an agency changes a condition of employment of bargaining unit employees, it is obligated to notify and negotiate with the collective bargaining representative prior to effectuating the change. See Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1527 (1994) (Portsmouth); U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 910-12 (1990). There is no obligation to bargain over a decision to change a past practice which is unlawful. See Portsmouth, 49 FLRA at 1527-28.

      In this case, the Respondent terminated its practice of providing non-Native American employees certain services contained in the employee health program. These services were periodic health evaluations, pap tests, breast examinations, dental examinations, and eye examinations, including glaucoma screening. It is undisputed that the Respondent's provision to employees of services relating to health care concerns a condition of employment within the meaning of section 7103(a)(14) of the Statute. In addition, it is undisputed that the Respondent unilaterally terminated the established practice of providing such services. [ v55 p189 ]

      5 U.S.C. § 7901 authorizes heads of departments or agencies to establish health service programs to promote and maintain the physical and mental health of employees. Health service programs may contain "preventive programs relating to health." 5 U.S.C. § 7901(c)(1). The General Counsel claims that the discontinued health services in this case constitute preventive disease screening examinations, and, thus, are authorized by 5 U.S.C. § 7901. The Agency does not dispute that claim. [n3]  Rather, the Respondent contends that 5 U.S.C. § 7901 was, in effect, superseded by IHS statutes. Specifically, the Respondent maintains that the health services are precluded by: (1) the 1983 Appropriations Act, (2) the requirements in 25 U.S.C. §§ 1680c(a) and (b)(1)(A), and (3) 42 U.S.C. § 251(b). We disagree.

      We note that the 1983 Appropriations Act is superseded by Pub L. No. 100-713, passed in 1988 and codified as 25 U.S.C. § 1680c. 25 U.S.C. § 1680c, entitled, "Health services for ineligible persons," sets forth categories of non-Native Americans entitled to health services at IHS facilities pursuant to these sections of the law. These provisions are designed to expand the availability of health services to non-Native Americans, separate from their status as employees. By its terms, section 1680c(a)(1)(C) contemplates that the health service beneficiaries could be "otherwise eligible for the health services provided by the Service."

      42 U.S.C. § 251(b) concerns another matter. This statutory provision authorizes the PHS to provide health services to Federal employees at "remote medical facilities." 42 U.S.C. § 251(b). Section 251(b) covers federal employees, generally, and authorizes medical treatment, as opposed to preventive screening examinations. Thus, this statute authorizes different medical services from those at issue in this case, for a broader group of employees, and under different circumstances -- in geographically remote areas.

      We find nothing in the wording of the statutory provisions cited by the Agency that negates the authorization by 5 U.S.C. § 7901 to implement an employee health program at IHS facilities that provides health services to all Agency employees, including non-Native American employees. There is nothing ambiguous about the provisions relied upon by the Agency, as they authorize health services of a different nature, without conflicting with the general authorization of 5 U.S.C. §7901. Therefore, the Respondent's practice of providing non-Native American employees health services in this case is not unlawful. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing changes to the employee health program affecting services received by non-Native American employees without notifying and bargaining with the Union.

      Where management changes a condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991) enforced, 977 F.2d 1493 (D.C. Cir. 1992). No special circumstances are alleged in this case and none are apparent to us. Accordingly, a return to the status quo ante is appropriate to remedy the Agency's unfair labor practice.

V. Order

      Pursuant to section 2423.41(c) of the Authority's regulations and section 7118 of the Federal Service Labor-Management Relations Statute, Navajo Area Indian Health Service, Winslow Service Unit, Winslow, Arizona shall:

      1. Cease and desist from:

      (a) Unilaterally implementing changes to the Employee Health Program affecting the services received by nonbeneficiary employees without providing the Navajo Nation Health Care Employees, Local 1376, LIUNA, AFL-CIO (Union), the exclusive representative of its employees, with notice and the opportunity to bargain over the changes.

      (b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

      (a) Rescind the changes to the Employee Health Program implemented on September 5, 1995, and reinstate the services which were provided to nonbeneficiary employees prior to September 5, 1995.

      (b) Notify and, upon request, bargain with the Union concerning any proposed change to the Employee Health Program. [ v55 p190 ]

      (c) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Chief Executive Officer, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

      (d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the San Francisco Region, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103, in writing, within 30 days from the date of this 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 Navajo Area Indian Health Service, Winslow Service Unit, Winslow, Arizona has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT unilaterally implement changes to the Employee Health Program affecting the services received by nonbeneficiary employees without providing the Navajo Nation Health Care Employees, Local 1376, LIUNA, AFL-CIO (Union), the exclusive representative of bargaining unit employees, with notice and the opportunity to bargain over the changes.

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

WE WILL rescind the changes to the Employee Health Program implemented on September 5, 1995, and reinstate the services which were provided to nonbeneficiary employees prior to September 5, 1995.

WE WILL notify and, upon request, bargain with the Union concerning any proposed change to the Employee Health Program.

      _______________________
(Activity)

Dated:_______________ By: ___________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Region, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is (415) 356-5000. [ v55 p191 ]


APPENDIX

5 U.S.C. § 7901 Health Service Programs provides, in pertinent part:

(a) The head of each agency of the Government of the United States may establish, . . . a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction.
. . . .
(c) A health service program is limited to--
(1) treatment of on-the-job illness and dental conditions requiring emergency attention;
(2) preemployment and other examinations;
(3) referral of employees to private physicians and dentists; and
(4) preventive programs relating to health.

25 U.S.C. § 1680c. Health services for ineligible persons

(a) Individuals not otherwise eligible
(1) Any individual who --

      (A) has not attained 19 years of age,

      (B) is the natural or adopted child, step-child, foster-child, legal ward, or orphan of an eligible Indian, and

      (C) is not otherwise eligible for the health services provided by the Service, shall be eligible for all health services provided by the Service on the same basis and subject to the same rules that apply to eligible Indians until such individual attains 19 years of age. The existing and potential health needs of all such individuals shall be taken into consideration by the Service in determining the need for, or the allocation of, the health resources of the Service. If such an individual has been determined to be legally incompetent prior to attaining 19 years of age, such individual shall remain eligible for such services until one year after the date such disability has been removed.

      (2) Any spouse of an eligible Indian who is not an Indian, or who is of Indian descent but not otherwise eligible for the health services provided by the Service, shall be eligible for such health services if all of such spouses are made eligible, as a class, by an appropriate resolution of the governing body of the Indian tribe of the eligible Indian. The health needs of persons made eligible under this paragraphshall not be taken into consideration by the Service in determining the need for, or allocation of, its health resources.

      (b) Health facilities providing health service

      (1)(A) The Secretary is authorized to provide health services under this subsection through health facilities operated directly by the Service to individuals who reside within the service area of a service unit and who are not eligible for such health services under any other subsection of this section or under any other provision of law if--

      (I) the Indian tribe (or, in the case of a multi-tribal service area, all the Indian tribes) served by such service unit requests such provision of health services to such individuals, and

      (ii) the Secretary and the Indian tribe or tribes have jointly determined that--

      (I) the provision of such health services will not result in a denial or diminution of health services to eligible Indians, and

      (II) there is no reasonable alternative health facility or services, within or without the service area of such service unit, available to meet the health needs of such individuals.

. . . .

42 § 251. Medical examination and treatment of Federal employees; medical care at remote stations

      (a) The Surgeon General is authorized to provide at institutions, hospitals, and stations of the Service medical, surgical, and hospital services and supplies for persons entitled to treatment under subchapter I of chapter 81 of Title 5 and extensions thereof. The Surgeon General may also provide for making medical examinations of --

      (1) employees of the Federal Government for retirement purposes;

      (2) employees in the Federal classified service, and applicants for appointment, as requested by the Director of the Office of Personnel Management for the purpose of promoting health and efficiency;

      (3) seamen for purposes of qualifying for certificates of service; and

      (4) employees eligible for benefits under the Longshore and Harbor Workers' Compensation Act, as amended [33 U.S.C.A. § 901 et seq.], as requested by any deputy commissioner thereunder.

(b) The Secretary is authorized to provide medical, surgical, and dental treatment and hospitalization and optometric care for Federal employees (as defined in section 8901(1) of Title 5) and their dependents at remote medical facilities of the Public Health Service where such care and treatment are not otherwise available. Such employees and their dependents who are not entitled to this care and treatment under any other provision of law shall be charged for it at rates established by the Secretary to reflect the reasonable cost of providing the care and treatment. Any payments pursuant to the preceding sentence shall be credited to the applicable appropriation to the Public Health Service for the year in which such payments are received.






Footnote # 1 for 55 FLRA No. 32

   The relevant statutory provision