File 2: Chairman Cabaniss Opinion
[ v58 p216 ]
Concurring Opinion of Chairman Cabaniss
While I agree that the Respondent did not commit an unfair labor practice by refusing to bargain over the impact and implementation of a change to conditions of employment, I do so for an additional reason and to address a longstanding confusion in our precedent. I would find that there was no change to "conditions of employment" initiated by either party, rather, the only change that occurred here was a change in working conditions.
I believe at issue in this case, at least in part, is confusion between changes to "conditions of employment" and changes to "working conditions." The Judge found that the parties had negotiated an agreement that provided take home GOVs only for CSHO personnel, and that the Respondent lawfully complied with that agreement by requiring, pursuant to that agreement, that the employee return her take home GOV as she was no longer authorized to have one. However, the Judge determined that in so doing, the Respondent's decision to comply with this negotiated agreement changed a "condition of employment" and that negotiation over the impact and implementation of that decision, rather than its substance, was required. Decision at 22-23.
As reflected in our Statute, "conditions of employment" is a term of art expressly defined at § 7103(a)(14) that means "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions" (emphasis added). Clearly, "conditions of employment" and "working conditions" are related, but they are not the same thing. For example, "working conditions" would be an employee's work starting and stopping times, or whether the employee has the ability to take home a GOV: "conditions of employment" would be the "rules, regulations, or otherwise" that define the hours of work for the bargaining unit, or establish what employees have the right to take that GOV home. There should be no doubt that collective bargaining agreements can constitute a condition of employment as well, since § 7114(b)(2) notes that the statutory duty to bargain in good faith includes the obligation that duly authorized representatives at negotiations be prepared to discuss and "negotiate on any condition of employment." Additionally, § 7103(a)(12), in defining "collective bargaining" also notes that it involves the parties' efforts "to reach agreement with respect to conditions of employment affecting such employees". And, I note that in the present instance the parties' Springfield Agreement established which employees were entitled to take home a GOV. [ v58 p217 ]
Our precedent, in its discussion of the statutory duty to bargain, focuses on whether there has been a change to "conditions of employment" and not whether "working conditions" have been changed. See, e.g., Warner Robins, 53 FLRA at 1668. There is nothing new about this emphasis on conditions of employment, although the confusion about it continues to this day. An early case before the Authority helps to explain this confusion and why the Statute requires that we distinguish between changes to conditions of employment and changes to working conditions.
In Naval Amphibious Base, Little Creek, Norfolk, Va., 9 FLRA 774 (1982) (Little Creek), the General Counsel issued a complaint based on the agency's failure to bargain when it changed the employment status (from regular part-time to intermittent) of two employees as a result of them being subjected to nondisciplinary adverse actions. The agency argued, inter alia, that its actions had not changed conditions of employment, even though it was undisputed that the employees had indeed been adversely affected by the agency's actions. [*] / The agency also pointed out that it was acting in accordance with the terms of an existing agreement between the parties.
In dismissing the complaint, the Authority (being fully aware of the impact the employees had suffered) took express cognizance of the terms of the parties' agreement and found that in effecting the adverse actions against the employees, the agency still had not "established new, or changed existing, personnel policies, practices or matters affecting working conditions." Id. at 777. From that discussion, I conclude that changes to an employee's personal situation, even including loss of pay, are not the proper focus in determining whether or not conditions of employment have been changed. Rather, one looks at whether the agency has changed those "existing personnel policies, practices or matters affecting [the employee's personal situation, i.e., his or her "working conditions"]." Id.
The Authority has said little of the distinction/discussion set out in Little Creek, and few references to it exist in our precedent. Moreover, with the development of the "covered by" test set out in SSA, 47 FLRA 1004, this distinction between "conditions of employment" and "working conditions" has seemingly become even more invisible. Part of this problem stems from the fact that the "covered by" test in SSA doesn't discuss at all the statutory requirement that there first be a change in conditions of employment. However, I note that SSA dealt with union-initiated mid-term bargaining, and in such contexts the issue of whether an agency has changed "conditions of employment" is irrelevant.
This question of whether conditions of employment have been changed was further impacted by the Authority's decision in United States Dep't. of Transportation, FAA, Wash., D.C. and Michigan Airway Facilities Sector, Bellville, Mich., 44 FLRA 482 (1992) (FAA). In that decision, in note 3 at 44 FLRA 493, the Authority decided to no longer first determine whether conditions of employment had been changed if the conditions of employment were set out in the parties' agreement. The text of the footnote is set out below.
We note that the Judge found that the Respondents did not change employees' conditions of employment when it selected radar technicians for temporary assignment. In so finding, the Judge stated, in part that "[t]o the contrary, Respondent acted fully in accord with the provisions of Article 25 of its Agreement . . . ." Judge's Decision at 13. We reject the Judge's reliance on the parties' agreement as a factor in determining whether the Respondent changed employees'conditions of employment. The determination as to whether a change occurred involves an inquiry into the facts and circumstances regarding the Respondent's conduct and employees' conditions of employment. Consideration of the parties' agreement becomes relevant if the Respondent raises it as a defense after a determination is made that the Respondent's actions gave rise to a bargaining obligation. [Emphasis added.]
With all due deference to that decision, it makes no sense to not examine a collective bargaining agreement, which by definition is meant to create "conditions of employment" for bargaining unit employees, in first determining whether any of those "conditions of employment" have been changed such that a bargaining obligation has been created. Therefore, at some point in time I would expressly set aside the FAA decision to the extent of that erroneous footnote and affirm the need to examine the content of collective bargaining agreements before deciding to issue a complaint because of an alleged change to conditions of employment.
In the present matter, the parties' Springfield Agreement expressly identifies which employees are entitled to take home a GOV and, by obvious implication, which employees are not so entitled. The Judge fou