File 3: ALJ's Decision
[ v58 p219 ]
Office of Administrative Law Judges
U.S. DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION
REGION 1, BOSTON, MASSACHUSETTS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 948
Case No. BN-CA-00415
Pamela A. Gibbs, Esquire
Judith E. Kramer, Esquire
Robert A. Shapiro, Esquire
Mark J. Maxin, Esquire
For the Respondent
Gary J. Lieberman, Esquire
Gail M. Sorokoff, Esquire
For the General Counsel
Mr. Scott Wilkinson
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
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. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent refused to bargain on the impact and implementation of its decision to require employee Carole Horowitz to return a government vehicle after her voluntary movement to another job which was not authorized to have a government vehicle permanently assigned and kept at the employee's residence. For reasons fully set forth hereinafter, the allegations of the Complaint that the vehicle was removed because of Ms. Horowitz's engagement in protected activity are not supported by the record. Also, for reasons fully set forth hereinafter, Respondent violated §§16(a)(5) and (1) by its refusal to negotiate the impact and implementation of its decision requiring that Ms. Horowitz return the vehicle.
This case was initiated by a charge filed on May 1, 2000, which alleged violations of §§ 16(a)(1), (2), (4), (5), (7) and (8) of the Statute (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued August 30, 2000, alleged violations only of §§ 16(a)(1), (2) and (5) of the Statute; and set the hearing for January 16, 2001, pursuant to which a hearing was duly held on January 16, 2001, in Boston, Massachusetts, 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 and General Counsel each exercised to a degree. (Tr. 343-354). At the conclusion of the hearing, February 16, 2001, was fixed as the date for mailing post-hearing briefs, which time, subsequently, was extended, on Motion of Respondent, to which there was no objection, for good cause shown, to March 5, 2001. Respondent and General Counsel each timely mailed a helpful brief [n2] , received on, or before, March 15, 2001, which have been carefully considered. On the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
1. The National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, is the recognized exclusive nationwide representative of certain employees of the United States Department of Labor in field duty stations outside the Washington, D.C. metropolitan area except that employees of the Pension Welfare Benefits Administration and OSHA field offices in the Washington, D.C. metropolitan area are included (Jt. Exh. 1, Art. 1, Section 2).
2. American Federation of Government Employees, Local 948, is an agent of the National [ v58 p220 ] Council of Field Labor Locals for the representation of bargaining unit employees of Respondent's Occupational Safety and Health Administration (OSHA), Regional 1, Boston, Massachusetts (G.C. Exh. 1(b)[Pars. 2-5]; 1(c) [Answer] Pars. 2-5).
3. Region 1 covers the six new England states: Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island and includes about 170 employees (Tr. 26, 244). Ms. Ruth McCully is Regional Administrator and has been since January, 1999 (Tr. 242). Each state is divided into Area Offices. The Springfield, Massachusetts, Area Office, which is the office in dispute in this case, is managed by Mr. Ronald (Ron) Morin (Tr. 113).
4. The parties' National Agreement, which will expire January 31, 2002 (Jt. Exh. 1), has an Article dealing with "GSA Vehicles or Leased Vehicles" (Art.17) and Section 1, D of Article 17 provides as follows:
"D. In the event Management makes changes concerning the utilization of GSA or leased vehicles, Management will notify the Union and bargain with it on appropriate procedures and any adverse effect in accordance with Article 2 of the Agreement." (Jt. Exh. 1, Art. 17, Section D.)
Section 2 of Article 17, "Use of GSA Vehicles," provides in part as follows:
". . . vehicles assigned to employees on either a specific trip or regular basis may be parked at or near the employee's residence during non-duty hours only if the employee is required . . . to travel to a temporary duty post in the morning or return home at night without first reporting to his/her duty station, and/or the supervisor has determined that it is more advantageous to the Government to do so. In such event the supervisor will give the employee prior written approval to park the . . . vehicle at or near his/her residence during non-duty hours. . . ." (Jt. Exh. 1, Art. 17, Section 2).
Article 28, "Flexiplace" (Jt. Exh. 1, Art. 28), recognizes that there are circumstances where, ". . . it is mutually beneficial for employees to perform work at sites other than the traditional office . " (Section 1). Section 2, of Article 28 states there are two basic types of Flexiplace arrangements: "a. Informal arrangements are episodic in nature, requiring agreement between employees and their supervisors; however, no written agreements are required."; "b. Formal arrangements are more permanent in nature, and include Telecommuting Centers or home-office sites. These require a written agreement ." (Jt. Exh. 1, Art. 28, Sections 2a. and b.)
5. Before 1994, in Region 1, Government owned Vehicles (GOVs) were not permanently assigned to employees and were not parked at, or near, the residence of an employee except on a case-by-case basis; nor, were Compliance Safety and Health Officers (CSHOs) on Flexiplace. In 1994, Region 1 and the Union negotiated a Pilot Program, "Mobile Compliance Safety and Health Officer" for the Augusta, Maine, Bangor, Maine and Hartford, Connecticut offices which was approved by Respondent and Union representatives on August 11, 1994 (G.C. Exh. 5). Briefly, the Pilot Agreement authorized: ". . . a laptop computer with high speed modem and with software including `CSHO Application' and `Folio' programs . . . a standard complement of field inspection equipment for IH (Industrial Hygienists) and for Safety CSHOs; . . . phone lines in homes as consistent with DOL Flexiplace guidelines; government vehicles for each participating employee who requests the use of one . . . ." (G.C. Exh. 5, p.5).
Although the Pilot program was directed specifically to CSHOs, ". . . to increase field presence by enhancing CSHO's ability to maximize time . . . ." (id.); ". . . to allow OSHA complaint officers to operate in a more independent, responsible and professional manner . . . ." (G.C. Exh. 5, p.6); etc., the program provided an option for participation by Section 11(c) Investigators [i.e. "whistleblower" Investigators]. Thus, the plan provided,
"In the three offices which will pilot this Mobile CSHO program, employees in eligible grades and series will have the option to participate in the program on a voluntary basis. Compliance Officers (GS-018, 690 and 803) and 11(c) Investigators (GS-1801) at the journeyman GS-11 grade level may opt to participate. . . ." (G.C. Exh. 5, p.6).
Nevertheless, no 11(c) Investigator in the Hartford, Augusta or Bangor offices has, or has had, a GOV permanently assigned and kept at, or near, his/her residence (Tr. 253, 256, 317); however, Mr. Bill Pearson, who is located in the Bangor, Maine Office, has an assigned GOV (Tr. 160). Mr. Pearson is a CSHO investigator and devotes about _ of his time performing CSHO duties (Jt. Exh. 5, p.3); he also, is an 11(c) Investigator and devotes about ½ of his time performing 11(c) duties (Jt. Exh. 5, p.1); he, also, is a Criminal Investigator and devotes about 1/10th of his time performing Criminal Investigations (Jt. Exh. 5, p.3); and he spends about 1/20th of his time in assisting the Regional Incident Response Team, participating in litigation, giving technical advice and performing special studies (Jt. Exh. 5, p.4). [n3]
[ v58 p221 ] Although, a January 3, 1997, Report concluded that the Pilot program had been a success and recommended that the program, ". . . should be continued under the terms of the new NCFLL contract" (G.C. Exh. 15), when the new Agreement became effective February 1, 1997 (Jt. Exh. 1), the Pilot program was not extended and was no longer effective (Tr. 257).
6. Ms. Carole Horowitz has been employed at Respondent's Springfield, Massachusetts, office since October, 1988 (Tr. 94). She was hired as an Industrial Hygienist, which is a Compliance Safety and Health Officer (CSHO) [n4] , and remained an Industrial Hygienist until February 27, 2000, having become a GS-12 (Tr. 147). There are two types of CSHOs: Safety Officers, who ensure that the physical working conditions of a workplace are safe, and Industrial Hygienists, who are concerned more with health issues, such as air and water quality (Tr. 27. 95, 114). Both positions require on-site investigations (Tr. 28). In 1998, the Springfield office was split into two teams: the Response team, which, generally, responds to accidents and fatalities and to complaints and other unplanned work (Tr. 113, 114), and the Strategic Team which principally performs planned inspections (Tr. 113, 114). Each team, of course, is made up of CSHOs and, depending on workload, members of one team may perform work on the other team (Tr. 114). Ms. Horowitz was assigned to the Strategic Team in 1998 (Tr. 117).
Ms. Horowitz became a Steward for the Springfield office in 1990 and has been Chief Steward and a member of the Union's Regional Collective Bargaining Committee for the past five or six years (Tr. 97). In these roles, she had represented employees in grievances, EEOC matters and has negotiated with management (Tr. 97).
7. As noted above, Article 28 of the parties' Agreement (Jt. Exh. 1) provides for flexiplace and Ms. Horowitz stated that in February, 1998, she broached the matter with Mr. Morin, Springfield Area Director, of having "a similar flexiplace program to the mobile CSHO in Maine and Hartford" (Tr. 122); she stated that Mr. Morin was receptive to the idea (Tr. 122) and their discussions ultimately produced the November 23, 1998 agreement [n5] (Jt. Exh. 2). Ms. Horowitz testified that she referred to, and relied upon, the "Mobile Compliance Safety and Health Officer" pilot program, for the Augusta and Bangor, Maine and Hartford, Connecticut offices (G.C. Exh. 5), in arriving at Joint Exhibit 2. Indeed, she stated,
"Q And this is the agreement [G.C. Exh. 5] that you consulted in negotiating the Springfield plan?
"A Yes, I think if you look at this agreement [G.C. Exh.5], and you look at the Springfield agreement [Jt. Exh. 2] you'll see that even though the Springfield agreement is one page plus a budget, they're essentially the same." (Tr. 124).
Although well aware of the provision in the Main-Connecticut pilot Mobile CSHO agreement which permitted 11(c) Investigators to participate (G.C. Exh. 5, p.6), Ms. Horowitz conceded she proposed nothing in the Springfield agreement to permit 11(c) [whistleblower discrimination] investigators to participate in having a GOV assigned and kept at, or near their homes (Tr. 133-134). [n6] Ms. Horowitz further stated on cross-examination that the Springfield agreement specified only that CSHOs would have assigned GOVs (Tr. 207). Thus the Springfield agreement provided, in part, as follows:
"7. Two additional GOVs will be leased and each participating CSHO who so desires will be assigned a GOV which will be kept at the home work site." (Jt. Exh. 2, p. 1).
8. Ms. Horowitz testified that she learned in January, 2000, that the 11(c) Investigator position was being up-graded to a GS-12 (Tr. 147). At about the same time, she also learned that the 11(c) Investigator at [ v58 p222 ] the Methuen, Massachusetts, office had become dissatisfied with the work and had returned to her former job (id.). Ms. Horowitz had handled several 11(c) cases while a CSHO, liked the work and, as the position had been up-graded to a GS-12, she called the 11(c) program manager, Mr. John Secovitch, and asked if there was any possibility she could get the job. Mr. Secovitch told her he would look into it and Mr. Morin, told her he would support her effort to get the job (Tr. 147-148). Mr. Morin later told Ms. Horowitz that the Regional Administrator, Ms. McCully, was going to post the job,". . . because she might have a problem with the union." (Tr. 148) if she gave Ms. Horowitz a lateral transfer. Accordingly, on February 9, 2000, Ms. Horowitz wrote a memorandum to Ms. McCully, through Messrs. David May, Acting Deputy Regional Administrator, and Ronald E. Morin, Springfield Area Director (G.C. Exh. 7), by which she formally requested, ". . . reassignment from my current position as an industrial hygienist to a position as a whistleblower discrimination investigator. I understand that the Region is planning to fill such a position and I believe that I am a highly qualified candidate. I have conducted sixteen 11(c) investigations over the past ten years and I have done an excellent job. . . ." (G.C. Exh. 7). Ms. Horowitz also stated,
"Article 20 Section 4(C)(2) of the Collective Bargaining Agreement [Jt. Exh. 1] excepts reassignments from competitive merit staffing procedures. . . ." (G.C. Exh. 7).
9. Effective February 27, 2000, Ms. Horowitz was reassigned as an 11(c) Investigator (Jt. Exh. 4; Tr. 150). On February 13, 2000 (Tr. 267), Ms. McCully called Ms. Horowitz to ". . . let her know that we were going to act on her request for reassignment to an 11(c) investigator position, to congratulate her, to let her know that we were looking forward to her in this position . . . ." (Tr. 268; see also, 149, 150). Ms. Horowitz said that Ms. McCully told her the job would be effective February 27, 2000 (Tr. 150). Mr. Morin also called Ms. Horowitz to tell her her request was going to be approved (Tr. 150). On February 24, 2000, Ms. Horowitz turned in her CSHO equipment (Tr. 157, 158) and Mr. Morin called Ms. McCully on February 24, 2000 (Tr. 235, 236, 245, 246), ". . . to say that she [Ms. Horowitz] had now completed turning in all her equipment . . . . And Ruth says, well, what was I going to do with her car, and I said, well, I hadn't made any particular plans at that time about it. . . . (Tr. 236). Ms. McCully testified in like manner as follows: "I talked to Ron [Morin] at the end of February and he told me that Carole [Horowitz] was turning in her equipment, and I asked if she was turning in her car and we had that discussion. . . . then I followed up with the discussion with Frank Gravitt [then Area Director for Methuen and temporary, Acting Deputy Regional Administrator (Tr. 311, 312-313)]." When examined on direct by General Counsel, Ms. McCully further testified,
"Q When you told Mr. Morin, when you spoke with Mr. Morin, you gave the reasons why-
"Q --she should not have a car?
"Q And you decided at that time, on February 24th, that a personally assigned GOV was not needed by a whistleblower investigator?
"A Right. (Tr. 245-246).
. . .
"Q When you discussed with Mr. Morin the reasons why you wanted the car returned, it was your decision. I assume you told him all the reasons?
. . .
"A We discussed the fact that her job had changed, that the rationale for having the car was so that compliance officers could respond promptly to imminent reports of imminent danger, fatalities and complaints. And in fact, in the flexiplace agreement, there is an attachment that talks about the productivity goals, and this is one of the productivity goals that's in there." (Tr. 247-248).
When examined by Mr. Wilkinson, Ms. McCully further testified,
"Q What did you discuss with respect to the 11(c) investigators in the Springfield agreement?
"A We talked about, for example, Ron had brought up that, for example, she wouldn't need her equipment anymore as a compliance officer. She wouldn't be a duty officer anymore, have that requirement anymore. And there was some confusion as to whether or not she could be a duty officer anymore. And we also talked about the car.
"Q Did you discuss that the Springfield agreement did not specifically reference 11(c) investigators?
"A I don't recall if I did or I didn't. [ v58 p223 ]
"Q Would that have been important to you?
"A Yeah. It was my understanding that it only pertained to CSHOs. . . . ." (Tr. 250-251).
Mr. Kenneth Frank Gravitt, since June, 2000, Deputy Regional Administrator (Tr. 311, 320), and, as noted above had served a 60-day detail as temporary Acting Deputy Regional Administrator, from February 28 to about April 28, 2000, and then returning to his job as Area Director for the Methuen area (Tr. 316), testified, in part, as follows:
". . . And upon arrival for that duty it was, I believe, the 28th of February, a Monday, when I started that detail and during that first week one of the subjects that was raised was relocating the car that was in Springfield.
"Q And who was this issue raised by?
"A It was raised by Ruth McCully, the regional administrator.
"Q And did Ms. McCully explain to you why she was relocating this vehicle from the Springfield area office to the Braintree office?
"A Yes. It was in response to concerns about need, the need for additional government vehicles in other area offices, and there was particular concern about Braintree area office not having enough cars, and that this car would be available, since the person to whom that was assigned had recently changed jobs and was no longer compliance officer.
"Q And what position did the person change to?
"A To a discrimination investigator.
"Q And did Ms. McCully explain why she no longer needed her car?
"A If, I don't remember the exact conversation as to that regard, but my general impression of the conversation was that it had to do with the fact that the individual no longer needed, was no longer in a compliance safety and health officer position, a position which requires, frequently, a prompt response to complaints, fatality or imminent danger situations that require them to get to a job site in a hurry.
"Q . . . what did you do after that, after your conversation with Ms. McCully?
"A After the conversation I contacted the area director in Springfield, Ron Morin, and advised him that he needed to make arrangements to transfer the vehicle from the Springfield area office to the Braintree area office.
"Q And do you recall when your conversation with Ron Morin took place?
"A My recollection is that my conversation with Ms. McCully was about the Wednesday of that week, which would have been the first of March, and my conversation with Mr. Morin was subsequent to that, so it would have either been the Thursday or the Friday of that week, March 2nd or 3rd.
"Q And after your conversation with Mr. Morin, around the first or so of March, did you have any follow up conversations with Mr. Morin in regards to this vehicle?
"A Yes, I did.
"Q And do you recall when those follow up conversations took place?
"A They would have been, at some point, after the 20th of March.
"Q Why so long?
"A Mr. Morin had leave time scheduled and I remember in our conversation when I first talked to him about it he asked me if it had to be done right away, and I felt like there was no immediate urgency to making that transfer, so he said he would take care of it when he got back from leave. I told him that would be okay.
"Q Okay. And when you spoke to Mr. Morin again, after he returned from his vacation, what was the nature of that discussion with him?
"A It was essentially to check and see what his plans were for making the transfer, had he arranged the transfer, had he made the notifications, and when it was going to happen. (Tr. 313-315).
. . .
"Q And you stated that there is a policy as it pertains to compliance officers and the use of government used GOVs?
"A Yes, there is. [ v58 p224 ]
"Q And what is that policy?
"A That policy is that the department is responsible for providing transportation for any official travel done by staff of the area office, either by individually assigned vehicles that are available in the case where some people have those, or by making the cars available through the use of the pool, or in cases where individuals prefer to use their own vehicles, by reimbursing on a mileage basis, their use of that vehicle.
"Q And who in the Springfield area office are assigned vehicles?
"A There are some compliance officers who have individually assigned vehicles, and those are the only ones that have assigned vehicles.
"Q Do you know whether or not 11(c) investigators are assigned GOVs, personal GOVs, in the Springfield area office?
"A No, they're not.
"Q What is the policy then, as it pertains to 11(c) investigators, in regards to the use of government issued vehicles?
"A That any official travel performed by the investigator is to be a cost that the government incurs, and that would either be through the availability of a government operated, a government owned vehicle for that travel, or reimbursement of travel on a mileage basis if they elect to use their personal vehicle.
"Q In regards to the vehicle that was being transferred to the Braintree office, can you explain why that vehicle was being moved to the Braintree office?
"A Yes. There was, at the time, there was an increasing demand for vehicles in other offices in the region, and Braintree was one of the offices that had among the fewest number of government vehicles available under any circumstances. All of their vehicles were pool, and I think they had two vehicles at the time, they may have had three, I don't recall exactly, but it is also the office that has the largest staff in the New England region. They had just hired an additional position, which was a new position to OSHA, that we felt like would require considerable travel. Given that we have to make transportation available, there was concern that that office would not have sufficient vehicles to meet the transportation needs of the office." (Tr. 316-318).
Mr. Gravitt was Area Director of the Methuen, Massachusetts office, from July 1989 until June 2000 (Tr. 312) and he testified that no one in the Methuen area was on flexiplace (Tr. 319) and no employees in the Methuen area had been assigned a GOV on a permanent basis (Tr. 319). Consequently, the 11(c) investigator in that office, whose job, when it became vacant, Ms. Horowitz sought and obtained, had no assigned GOV nor was she on flexiplace.
Mr. Morin, as noted above testified that he called Ms. McCully on February 24, 2000, to inform her that Ms. Horowitz had turned in all of her CSHO equipment and that Ms. McCully then said, ". . . well, what was I going to do with her car, and I said, well, I hadn't made any particular plans at that time about it. I said I know we'll have to address it, but I says, you know, I have no plans at this time. . . ." (Tr. 236). Mr. Morin also testified that,
"A She [Ms. McCully] said that there was a need for a car in Braintree.
"Q Let me ask the question again. Did Ms. McCully explain the reasons for the decision? Yes or no.
"A Did she explain, well I guess the answer would be yes.
"Q And you accurately communicated those reasons to Ms. Horowitz?
"A I believe I did, yes.
"Q What were the reasons for that decision?
"A That there was a need for the car at the Braintree office.
"Q Was that the only reason?
"A I guess so.
"Q Were there any other reasons?
"A Not to my knowledge." (Tr. 233).
Mr. Morin further testified, in part, as follows:
"Q Mr. Morin, when did Ruth McCully communicate to you that she wanted to reassign the vehicle that was in the Springfield area office to the Braintree office? [ v58 p225 ]
"A The first time that it was discussed in that detail was the beginning of March. It wasn't her, it was Frank Gravitt.
"Q Do you recall the nature of the discussion that you had with Frank in regards to this vehicle at that particular time?
"A Frank called me, I was at work. I think it was the day before I was going on vacation. And he says that they were going to transfer the car to the Braintree office. And I said, well, I'm leaving for vacation, so I mean, does this have to be done like right now or can it wait? And he said, well, when you come back from vacation we'll get into it. And I said, okay.
"Q Do you recall when you had the conversation with Ms. Horowitz to inform her that the vehicle was actually going to be reassigned?
"A I believe it was after I came back from vacation.
"Q When did you come back from vacation?
"A My first day in the office was March 20th, March 20th of 2000." (Tr. 234-235).
. . .
"A In February, when Carole had turned in all of her equipment, when she became an investigator, and it was that day that she turned in her equipment, it was the middle of February, something like that. It was just a day before she got her credentials, I think, one or two days before. I'm pretty sure it's very close to that.
"And I called Ruth to say that she had now completed turning in all her equipment and would no longer be doing any compliance work, any OSHA safety or health compliance work. And Ruth says, well, what was I going to do with her car, and I said, well, I hadn't made any particular plans at that time about it. I said I know we'll have to address it, but I says, you know, I have no plans at this time. And that was about the end of the conversation. (Emphasis supplied).
"Q And she didn't make the decision at that time, February 24th, to take the car back?
"A She didn't indicate anything like that to me at that time.
"Q It's your testimony that the first you learned that management wanted her car back was sometime in March?
"A Just before I went on vacation. It was either the day before or two days before I went on vacation, which would put it my -- without a calendar, I would say March 1st or 2nd, approximately March 1st or 2nd. That's when Frank Gravitt called me." (Tr. 235-236).
I found the testimony of Ms. McCully and Messrs. Morin and Gravitt credible and specifically mutually corroborative of the fact that the decision that Ms. Horowitz must return her assigned GOV, because she was no longer a CSHO entitled to have an assigned GOV, was made on February 24, 2000, and was communicated by Ms. McCully to Mr. Morin on February 24, 2000; to Mr. Gravitt on, or about, March 1, 2000; and by Mr. Gravitt to Mr. Morin on, or about March 2 or 3, 2000. Although Mr. Morin said that Ms. McCully did not indicate to him on February 24th that she had decided to take the car (Tr. 236), Mr. Morin admitted that Ms. McCully asked, after he had told her Ms. Horowitz had turned in her CSHOs equipment. ". . . what was I going to do with her car . . . ." (Tr. 236) and he had replied, ". . . I know we'll have to address it, but . . . I have no plans at this time. . . ." (id.) Of course, Mr. Morin, as one of the two negotiators of the November 23, 1998, Springfield agreement (Jt. Exh. 2), the other having been Ms. Horowitz, knew the agreement did not include 11(c) investigators (Tr. 241) and their discussion of Ms. Horowitz's change of jobs and the fact that she would not be doing any CSHO work, coupled with Ms. McCully's inquiry about he car certainly should have made Mr. Morin aware of Ms. McCully's desire to address the matter of the assigned car. In any event, if Ms. McCully did not make it sufficiently clear to Mr. Morin on February 24, that Ms. Horowitz's assigned car was to be returned, Mr. Gravitt admittedly did on March 2nd or 3rd.
10. On March 30, 2000, Ms. Horowitz, Ms. McCully and a mediator met at Respondent's Office in Boston (Tr. 163) and Ms. Horowitz stated that a settlement was reached and that the Union, ". . . signed a statement that we wouldn't participate in any future grievances or complaints regarding that matter." (Tr. 167).
Ms. Horowitz testified that at about 9:30 a.m. the following day, March 31, 2000, Mr. Morin told her on the telephone, ". . . you're going to have to turn in your car. He told me that I should bring it in the next Tuesday and I didn't need it any more because I didn't do [ v58 p226 ] emergencies any more, and that Ruth had told him this, Ruth McCully. . . ." (Tr. 169).
On March 31, 2000, Mr. Wilkinson sent a memorandum to Respondent's Labor Relations Officer, Mr. Robert Giuliano, which read, in part, as follows:
"It has come to the Union's attention that OSHA Management has proposed reassigning the GSA vehicle currently assigned to Carole Horowitz to the Braintree AO. The RCBC requests proper notification of this change under Article 2, 3 and 17 of the contract and an opportunity to bargain this change before it is implemented.
. . . ." (G.C. Exh. 3).
11. Mr. Giuliano replied by memorandum dated April 14, 2000, which read as follows:
"Reference is made to your March 31, 2000 letter relating to Carole Horowitz and a GSA vehicle.
"Carole Horowitz requested a reassignment from the position of Industrial Hygienist to the position of 11c Investigator. That reassignment was granted and became effective on February 27, 2000. As an Industrial Hygienist on formal flexiplace she did have a GSA vehicle assigned to her. However, as with all other full-time 11c Investigators, she will not have a vehicle assigned to her and will be able to fully utilize vehicles from the office's pool. Since this does not involve a change in policy on the utilization of GSA or leased vehicles the provision of Article 17 Section 1D does not apply.
"Effective April 25, 2000, the GSA vehicle will no longer be assigned to her." (Jt. Exh. 6).
Mr. Wilkinson responded by memorandum dated April 18, 2000, which read, in part, as follows:
I am in receipt of your letter dated 04/14/00 regarding management's reassignment of a GSA vehicle away from Chief Steward and RCBC Member Carole Horowitz effective 04/25/00.
The RCBC requests formal bargaining of this proposal under the provisions of CBA Articles 2, 3, and 17 as well as the provisions of the Federal Service Labor-Management Relations Statute. We will forward our concerns & counterproposals to you within ten workdays.
. . .
Furthermore, be advised that Management's removal of Steward Horowitz's GSA car reflects retaliation for her Union activity and for her recently filing a successful EEO Complaint." (G.C. Exh. 4).
Mr. Wilkinson said that Mr. Giuliano responded to his April 18, 2000, memorandum and, "Basically, he reiterated that they weren't going to bargain, and they disagreed that this was a retaliatory act." (Tr. 70). Mr. Wilkinson said that no negotiations took place (id.). On April 21, 2000, Mr. Nelson F. Barnes, Ms. Horowitz's immediate supervisor, sent an e-mail which stated, in part, as follows:
". . . I received a call from Ron Morin at 3:00 p.m. today. He said you are to drop off your car before you go to your training at OTI. He said it was you choosing, if you wanted to drive the vehicle to Newport next week for you meeting, that's ok.
. . . ." (G.C. Exh. 9).
Ms. Horowitz drove the car to the steward's training (Tr. 175) and returned the car on Friday, April 28, 2000. (Tr. 174).
12. Respondent did not re-negotiate Ms. Horowitz's flexiplace Prototype Work Agreement (Jt. Exh. 3) until November 13, 2000 (G.C. Exh. 13); however, General Counsel Exhibit 13 is virtually identical to Joint Exhibit 3, the only differences being the date in Paragraph 2; the elimination of "Duty Officer" and "Team Meetings" in Paragraph 5, leaving only "Staff Meetings" in General Counsel Exhibit 13, this having also been included in Paragraph 5 of Joint Exhibit 3; and the date of execution. Of course, Joint Exhibit 2 was not attached to General Counsel Exhibit 13. Ms. Horowitz was told in March 2000 that she was not to act as duty officer in the future (Tr. 154) and, since she was no longer a member of any team, there were no team meetings for her to attend. Consequently, because Paragraph 5 had already been changed to eliminate her "duty officer" function; she was no longer a member of any team; and Joint Exhibit 2, by its terms, no longer applied, the deferral of "negotiation" or a new flexiplace agreement was of no consequence.
13. As Mr. Gravitt succinctly stated, the policy as to 11(c) investigators is,
"That any official travel performed by the investigator is to be a cost that the government incurs, and that would either be through the availability of a government operated, a government owned vehicle for that travel, or reimbursement of travel on a
[ v58 p227 ] mileage basis if they elect to use their personal vehicle." (Tr. 317-318).
Nor is there any doubt that Ms. Horowitz could have been furnished government owned, or leased, transportation from the motor pool, for she stated that there were then three cars available for three employees, including her (Tr. 177); however, she elected not to use a government owned vehicle (Tr. 178).
1. Respondent's Decision that Ms. Horowitz, as an 11(c) investigator, was not entitled to a permanently assigned GOV, was not discriminatorily motivated.
General Counsel's asserted basis for discrimination was Ms. Horowitz's notification on March 31 and, because this was the day after Ms. Horowitz's mediation meeting with Ms. McCully and a mediator, the decision was because of Ms. Horowitz's participation in its mediation meeting. When she received the call from Mr. Morin on March 31 [n7] , Ms. Horowitz might well have "fingered" the mediation meeting as the reason; but she testified,
"A A little while later I called him [Morin] back and asked him when the decision was made, and he said it had been made a couple weeks before but he didn't agree with it and he was trying to talk McCully out of it and that, that's all." (Tr. 169).
This, alone, demonstrated that the decision concerning Ms. Horowitz's assigned GOV was wholly unrelated to the mediation activity on March 30. Moreover, the record shows, without contradiction, as I have found, that Ms. McCully made the decision on February 24, 2000; that she communicated this to Mr. Morin on February 24; to Mr. Gravitt on March 1; and that Mr. Gravitt communicated the decision to Mr. Morin on March 2nd, or 3rd. Consequently, the record shows that the mediation activity by Ms. Horowitz on March 30, 2000, played no part whatever in McCully's decision to terminate Ms. Horowitz's use of an assigned GOV and, indeed that the decision had been made and communicated nearly a month before Mr. Morin, according to Ms. Horowitz, called her to tell her she would have to turn in her GOV.
I have considered other aspects of Ms. Horowitz's activity and find no probative evidence that Respondent ever discriminated against Ms. Horowitz because of her having engaged in protected activity. Indeed, the record is to the contrary. For example, Ms. Horowitz stated that the Agreement was permissive as to lateral transfers, i.e., ". . . thecontract language that allowed . . . a lateral transfer . . . ." (Tr. 148); but Ms. McCully granted her the lateral transfer; Mr. Morin supported her request for the 11(c) job; after receiving the 11(c) job she remained on flexiplace; the return of the GOV was deferred to accommodate her using the vehicle to attend steward training; etc.
While I have found that the decision, that, as an 11(c) investigator, Ms. Horowitz was not entitled to a permanently assigned GOV, was not discriminatorily motivated, if it should be deemed that Ms. Horowitz's engagement in protected activity was a consideration, nevertheless, I would find that Respondent would have made the same decision in the absence of protected activity. Letterkenny Army Depot, 35 FLRA 113, 118 (1990); U.S. Department of The Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, South Carolina, 56 FLRA 950, 953 (2000). Thus, for reasons more fully set forth hereinafter, Respondent had a legitimate justification for its action, namely that the November 23, 1998, Springfield Agreement (Jt. Exh. 2), permitting permanent assignment of GOVs applied only to CSHOs and when Ms. Horowitz's requested transfer to a non-CSHO job, the Agreement did not authorize the permanent assignment of a GOV to her. Nor was any 11(c) investigation in Region 1 permanently assigned a GOV (a CSHO in Bangor, Maine, who worked part-time as an 11(c) investigator had an assigned GOV as a part time CSHO). Consistent with its position after the effective date of the February 1, 1997, National Agreement (Jt. Exh. 1), 11(c) investigators were not permanently assigned GOVs and it would have taken the same action in the absence of Ms. Horowitz's protected activity.
2. The November 23, 1998, Springfield Agreement authorized only CSHOs to have permanently assigned GOVs.
By its terms, the November 23, 1998, Agreement (Jt. Exh. 2) applied only to CSHOs, and, necessarily only CSHOs were authorized by that Agreement to have permanently assigned GOVs, ". . . which will be kept at the home work site." (id., paragraph 7). All other employees of Springfield were governed by Article 17 of the National Agreement (Jt. Exh. 1), Section 2 of which limits the parking of GOVs at or near the employee's residence in non-duty hours and requires, [ v58 p228 ] ". . . the . . . prior written approval to park the Government owned or leased vehicle at or near his/her residence during non-duty hours. . . ."
Nor was there any doubt whatever on the part of Ms. Horowitz, who negotiated the Springfield Agreement on behalf of the Union, or on the part of Mr. Morin, who negotiated the Springfield Agreement on behalf of Respondent. Each stated that the Springfield Agreement applied only to CSHOs (Tr. 207, 241).
The August 11, 1994, Pilot Program for Augusta and Bangor, Maine, and Hartford, Connecticut (G.C. Exh. 5), was directed at CSHOs and the stated goal was,
"To improve organizational efficiency . . . by increasing compliance officer's productive field time . . . ." (id. p. 5).
"The mobile CSHO concept is designed to increase field presence by enhancing CSHO's ability to maximize time by: using a laptop computer with high speed modem and with software including `CSHO Application' and `Folio' . . . government vehicles for each participating employee who requests the use of one . . . ." (id.).
While the 1998 Pilot Program gave, ". . . 11(c) Investigators . . . at the journeyman GS-11 grade level" the option to participate (id., p. 6), none did and after the present National Agreement (Jt. Exh. 1) became effective (February 1, 1997), the Pilot program was not extended and was no longer effective (Tr. 257). No 11(c) investigator in Region 1 had had a permanently assigned GOV and there were important and significant differences which warranted permanent assignment of GOVs to CSHOs. Thus, as the Pilot Agreement noted,
"B. CSHO . . . gathers equipment needed for the worksite(s) to be inspected that day; receives a car assignment from the office pool . . . loads needed equipment into the vehicle which may be parked several blocks away and may require several trips to load . . . At the end of the day, this process is reversed, with the CSHO returning to the office, unloading the vehicle, parking, and going into the office to sign-out for the day. . . ." (G.C. Exh. 5, p.4).
Ms. Horowitz had, ". . . equipment that I carried, that I took with me on inspections like to check for noise, or to check for air velocity in spray paint booths and things like that." (Tr. 158). Perhaps Ms. Horowitz, as an industrial hygienist, had less probability of having to respond to emergencies than other CSHOs, but the central purpose of the mobile CSHO concept was, as noted above, "To improve organizational efficiency . . . by increasing compliance officer's productive field time " (Emphasis supplied).
As an 11(c) investigator, Ms. Horowitz had no equipment to load and unload and Respondent's experience had demonstrated that permanent assignment of a GOV to an 11(c) investigator was not warranted as they could operate effectively with pool vehicles. General Counsel would infer some improper motive in Respondent's failure to tell Ms. Horowitz in advance that she could not retain her assigned GOV under the Springfield Agreement upon becoming an 11(c) investigator; but I do not. Ms. Horowitz said, ". . . I negotiated the agreement, so I was aware of what the agreement was. . . It didn't mention 11(c) investigators." (Tr. 207). Accordingly, telling her that the Springfield Agreement did not permit an assigned GOV to an 11(c) investigator would have been the equivalent to "carrying coals to Newcastle." As she negotiated the agreement, she already well knew that the Springfield Agreement did not mention 11(c) investigators and, inasmuch as she was not authorized to have an assigned GOV as an 11(c) investigator, if she had any question, surely she would have asked.
3. Respondent did not violate the Springfield Agreement nor Article 17D of the National Agreement.
As noted above, the Springfield Agreement applied only to CSHOs and 11(c) investigators were not authorized to have assigned GOVs. Consequently, when Ms. Horowitz ceased to be a CSHO, she also ceased to be authorized an assigned GOV under the Springfield Agreement. Because it applied the terms of the Springfield Agreement, Respondent changed no provision of the Agreement and was under no duty to bargain. Thus, Article 17D provides,
"D. In the event Management makes changes concerning the utilization of GSA or leased vehicles, Management will notify the Union and bargain with it on appropriate procedures and any adverse effect in accordance with Article 2 of the Agreement." (Jt. Exh. 1, Article 17D.)
But in applying the Springfield Agreement, Respondent made no change concerning the utilization of GOVs. [ v58 p229 ]
4. Respondent violated § 16(a)(5) and (1) of the Statute by its refusal to bargain on the impact and implementation of its lawful removal of an assigned GOV.
Although Respondent did not change the utilization of GOVs under the Springfield Agreement, and, pursuant to that Agreement, it lawfully required Ms. Horowitz to return her assigned GOV, because she no longer was authorized under that Agreement to have an assigned GOV, nevertheless it changed her conditions of employment. Respondent had provided her an assigned GOV and the removal of that assigned GOV changed her conditions of employment. Respondent was not required to negotiate the substance of the decision, because the Springfield Agreement authorized only CSHOs to have an assigned GOV and Ms. Horowitz had ceased being a CSHO; but Respondent was obligated to bargain over the impact and implementation of that decision if the changes have more than a de minimis effect on conditions of employment. Air Force Logistics Command, Warner Robbins Air Logistics Center, Robins Air Force Base, Georgia, 53 FLRA 1664, 1668 (1998); Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA 1196, 1205, 1207 (1991). In determining whether the effect 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." Air Force Logistics Command, Warner Robbins Air Logistics Center, Robins Air Force Base, Georgia, supra, 53 FLRA at 1668. Ms. Horowitz could have been furnished a GSA vehicle from the motor pool but she would have had to come to the Springfield Office, a distance of 19 or 25 miles depending on the route chosen (Tr. 138); request a vehicle; if it was needed for more than one day, obtain authorization to park Government-Owned vehicle at or near Employee's Resident (G.C. Exh. 6); go to location of GOV. It is immaterial that all employees of the Springfield Office, except CSHOs who elected flexiplace and an assigned GOV, have commuting time to work, because while Ms. Horowitz had an assigned GOV she did not have this travel time (about an hour and five minutes to an hour and 20 minutes (Tr. 138)) so that it was reasonably foreseeable that the effect of the change would be more than de minimis. Because Respondent refused to negotiate the impact and implementation of the decision, it violated §§ 16(a)(5) and (1).
Ms. Horowitz, to avoid the inconvenience of having to come to the Springfield Office to use GOVs, elected to use her own vehicle and to be paid mileage. Inasmuch as she was not authorized an assigned GOV under the Springfield Agreement, and she already, by use of her own vehicle, drives from her home worksite, a status quo remedy would be inappropriate.
Having found that Respondent violated §§ 16(a)(5) and (1), it is recommended that the Authority adopt the following:
Pursuant to § 2423.41(c) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(c), and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Department of Labor, Occupational Safety and Health Administration, Region 1, Boston, Massachusetts, shall:
1. Cease and desist from:
(a) Refusing to give the American Federation of Government Employees, AFL-CIO, Local 948, notice and opportunity to negotiate concerning the impact and implementation of changes of conditions of employment of bargaining unit employees where the reasonable foreseeable effect of the change is more than de minimis.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 948, concerning the impact and implementation of its decision that Ms. Horowitz return the assigned GOV she was not authorized to retain upon ceasing to be a CSHO.
(b) Post at its facilities in Springfield, Massachusetts, where employees of the American Federation of Government Employees, AFL-CIO, Local 948's bargaining unit 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 Regional Administrator for Region 1, and 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.
(c) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41(e), notify the Regional Director, Boston Region, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, in writing, [ v58 p230 ] within 30 days from the date of this Order, as to what steps have been taken to comply.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: September 6, 2001
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of Labor, Occupational Safety and Health Administration, Region 1, Boston, Massachusetts, 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 AT SPRINGFIELD, MASSACHUSETTS THAT:
WE WILL NOT refuse to give the American Federation of Government Employees, AFL-CIO, Local 948 (hereinafter, "Local 948"), notice and opportunity to negotiate concerning the impact and implementation of changes of conditions of employment of bargaining unit employees where the reasonable foreseeable effect of the change is more than de minimis.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Statute.
WE WILL, upon request, bargain with Local 948, concerning the impact and implementation of our decision that Ms. Horowitz return her assigned GOV she was not authorized to retain upon ceasing to be a CSHO.
Department of Labor
Occupational Safety and Health Administration,
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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, and whose telephone number is: (617) 424-5730.
Footnote # 1 for 58 FLRA No. 55 - ALJ's Decision
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)".
Footnote # 2 for 58 FLRA No. 55 - ALJ's Decision
General Counsel's Motion To Strike Portions of Respondent's Brief, dated March 8, 2001, and received on March 8, 2001, to which Respondent filed a Response, dated March 13, 2001, and received on March 13, 2001, is denied. The Complaint itself, ¶14 (G.C. Exh. 1(b)) asserts a "covered by" count; Respondent's Pre-trial disclosure specifically asserted a further voluntary flexiplace agreement at Springfield which authorized government vehicles to be permanently assigned only to Compliance Safety and Health Officers (CSHOs) on flexiplace and when Ms. Horowitz, at her request, moved to a non-CSHO job she was no longer authorized to have an assigned vehicle kept at home and reverted to coverage under Article 17 of the Parties Agreement (Jt. Exh. 1).
Footnote # 3 for 58 FLRA No. 55 - ALJ's Decision
Footnote # 4 for 58 FLRA No. 55 - ALJ's Decision
". . . a compliance safety and health officer . . . is everybody who does the inspections is a CSHO, industrial hygienists, safety specialists and safety engineers are all CSHOs." (Tr. 115).
Footnote # 5 for 58 FLRA No. 55 - ALJ's Decision
With deference to, Write Me A Verbal Contract, W. Robert Abbot (The Michie Co. 1961), a collection of "lawyer" anecdotes, the parties here achieved the unlikely by truly reaching a written, oral contract. It was reduced to writing but was not singed; nevertheless, all parties agreed, orally, to be bound (Tr. 122, 129-130, 133, 135, 136, 237, 240, 241, 249, 251). Each CSHO investigator who elected flexiplace signed an individual prototype flexiplace agreement (Jt. Exh. 3) and Joint Exh. 2 was attached (Tr. 136). It could be argued that because Joint Exhibit 2 was attached to an agreement that was signed, Joint Exhibit 3, Joint Exhibit 2 was incorporated as part of a signed agreement. While not altogether inplausable, the parties, as noted, treated Joint Exhibit 2, notwithstanding that it was not signed, as a separate agreement.
Footnote # 6 for 58 FLRA No. 55 - ALJ's Deci