United States, Department of the Air Force, Randolph Air Force Base, San Antonio, Texas (Respondent) and American Federation of Government Employees, Local 1840, AFL-CIO (Charging Party/Union)

[ v58 p699 ]

58 FLRA No. 169

UNITED STATES
DEPARTMENT OF THE AIR FORCE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1840, AFL-CIO
(Charging Party/Union)

DA-CA-01-0438

_____

DECISION AND ORDER

July 16, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally assigning days off to certain of its bargaining unit employees without first informing the Union of its intentions and affording the Union the opportunity to negotiate to the extent required by the Statute. The Judge found that the Respondent violated the Statute as alleged in the complaint.

      Upon consideration of the Judge's decision and the entire stipulated record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we dismiss the complaint.

II.     Background and Judge's Decision

      The Union represents nonappropriated fund (NAF) employees in the Respondent's Lodging Department, the majority of whom work in the housekeeping and maintenance sections. At all times pertinent to this case, the parties had not completed negotiations for a collective bargaining agreement. Also, with respect to the matter at issue in this case (time-off awards), the Respondent has had a regulation since 1994 which states:

The employee is responsible for requesting supervisory approval to schedule and use the time[-]off award. Employee requests to use time off are submitted far enough in advance to permit its use without undue interruption to the work of the activity.

Judge's Decision at 3-4 (quoting Air Force Manual (AFM)34-310, section 7.3.3.3).

      On January 3, 2001, the Respondent's Commander awarded all civilian employees in the 12th Flying Training Wing, including the group of NAF unit employees in the Lodging Department, 8 hours of time off which would not be charged against leave. The Commander did not designate the dates when the time off was to be used, but indicated that it should be scheduled and used within 90 days if possible and would be forfeited if not used within 1 year.

      The Respondent's Human Resources Officer subsequently instructed supervisors as to how the award was to be implemented to ensure that employees would use their time-off award without undue impact on the Respondent's mission. Two supervisors then prepared workweek schedules for the next 90 days, including the award days off. Whenever possible, the supervisors scheduled the award days off consecutively with each employee's regular 2 days off. The supervisors told their employees that they would be able to change their award days off. Six employees requested changes, and the supervisors changed the days after determining that the changes would not have an adverse mission impact. The Respondent did not notify the Union of how the award days off would be scheduled.

      The General Counsel filed a complaint alleging that the Respondent committed an unfair labor practice by unilaterally assigning days off to unit employees without first informing the Union of its intentions and affording the Union the opportunity to negotiate concerning the procedure for the assignment of the days off.

      The Judge agreed. He found first that the method of assigning days off was not a management right. In this regard, he stated that the Respondent had not shown that its "effective functioning . . . would be compromised [ v58 p700 ] by allowing employees to express their choices for award days off (subject of course to the requirement of maintaining an adequate level of staffing) rather than having the days off even tentatively assigned by supervisors." Id. at 5. Accordingly, the Judge found that in view of the fact that the method of scheduling award time off did not, and could not foreseeably, interfere with management rights, it falls within the Respondent's duty to bargain.

      The Judge further found that even if the method of scheduling were a management right, the Respondent would still have been obligated to bargain over its impact and implementation because the effect of the method of scheduling on unit employees, "while not drastic, was above the de minimis level." Id. at 6. In this regard, the Judge found that "there is a demonstrable difference between the mere acceptance of an assigned day off and the opportunity to express a choice." Id.

      Accordingly, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute by implementing a change in the "customary method of scheduling days off" without having afforded the Union the opportunity to negotiate. Id.

III.     Respondent's Exceptions

      The Respondent contends that it had no obligation to bargain in this case because it made no change to the Air Force Manual provision negotiated in 1994 governing time-off awards. According to the Respondent, it "was following what had been negotiated in 1994 in that the employee got to choose their day off and that was exactly what the Respondent's supervisors were doing after [the Commander] announced a time-off award in January 2001." Exceptions at 15.

      The Respondent emphasizes that the supervisors told all of the employees that they could change the tentative day off if they wanted a different day off; that none of the employees was forced to take a day off that they did not want; and that there were no employees for whom the supervisors did not change the schedule. In addition to arguing that there was no change, the Respondent contends that the Union representative was aware of the procedures for the time-off award but did not request to bargain. The Respondent also contends that there was no reasonably foreseeable impact on the employees since they got the day off they wanted.

IV. General Counsel's Opposition

      The General Counsel asserts that the Respondent's exceptions simply restate arguments that were correctly rejected by the Judge. In this regard, the General Counsel contends that the Judge properly concluded that the Respondent implemented a change when it scheduled the employees' time-off award.

      The General Counsel also contends that the Judge correctly found that the Respondent failed to provide the Union with adequate advance notice of the new scheduling procedure. According to the General Counsel, the Union representative learned of the Respondent's plan to schedule employees' days off only when he received his assigned day from his supervisor, at which point the Respondent's change was a fait accompli.

      In addition, the General Counsel contends that the Judge's conclusion that the change in leave procedure was fully negotiable is consistent with Authority case law, including NTEU, 46 FLRA 696, 715 (1992). The General Counsel also asserts that the Judge correctly concluded that even if the change was not fully negotiable, it had a more than de minimis impact on employees and the Respondent was therefore obligated to bargain over its impact and implementation.

V.     Analysis and Conclusions

      In order to determine whether the Respondent violated the Statute, as alleged, there must be a threshold finding that the Respondent changed the employees' conditions of employment. See, e.g., United States Dep't of Labor, OSHA, Region 1, Boston, Mass., 58 FLRA 213, 215 (2002) (OSHA); United States Immigration and Naturalization Service, Houston District, Houston, Texas, 50 FLRA 140, 143 (1995). The determination of whether a change in conditions of employment has occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the respondent's conduct and employees' conditions of employment. See OSHA, 58 FLRA at 215; 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995).

      Contrary to the Judge's conclusion, we find that there was no change in the employees' conditions of employment as a result of the Respondent's actions. As relevant here, the Judge found that there was a change because "there is a demonstrable difference between the mere acceptance of an assigned day off and the opportunity to express a choice." Judge's Decision at 6. However, the record clearly shows that employees were given the opportunity to express a choice by requesting alternate days than those proposed by the Respondent. In fact, six employees requested changes in dates, and all requested changes were approved by the Respondent. See Judge's Decision at 4. Thus, there was no change in [ v58 p701 ] employees' conditions of employment, i.e., the ability to request the use of their time-off award on a specific date subject to supervisory approval.

      As further evidence that there was no change in the employees' conditions of employment, nothing in AFM 34-310 precludes the Respondent from tentatively establishing a schedule for the use of the time-off awards and furnishing those schedules to the employees. Under the procedure set forth in AFM 34-310, "the employee is responsible for requesting supervisory approval to schedule and use the time[-]off award." Nothing in that regulation -- or the record in this case -- demonstrates that for group awards of the sort in this case employees customarily initiated the scheduling of the time-off awards.

      Accordingly, based on the foregoing, we find that the Respondent did not commit the unfair labor practice alleged in the complaint and we dismiss the complaint. [n2] 


Concurring Opinion of Chairman Cabaniss:

      Although I agree with the rationale and conclusions reached in the resolution of this case, I write separately to discuss the questions of whether there has been a change to a "condition of employment" such that a bargaining obligation was created and, if so, whether that change was more than de minimis in nature. It is undisputed that the employer came up with a draft schedule for employees to use with respect to time-off awards and presented it to the employees before first discussing employee scheduling preferences with the individual employees or the Union. It is also undisputed that employees had the ability to arrange modification of the draft schedule by the employer to accommodate individual employee preference on the use of time-off awards. It would also appear that the employer did not heretofore have a consistent process of developing such a draft schedule for use of the time-off awards and presenting it to the employees before talking with them about their individual preferences, or of having employees initiate the scheduling of time-off awards.

      Clearly, something here is different than before, but that conclusion doesn't answer the necessary questions of whether a "condition of employment" was changed and (if so) whether the change was significantly material enough to be more than de minimis. As we properly find, the operative "condition of employment" here is the employee's "ability to request the use of their time-off award on a specific date subject to supervisory approval." Majority Opinion at 5. To the extent, however, that the General Counsel attempts to argue that some other condition of employment has been changed -- by the employer's development of a draft schedule before ascertaining what day employees want to use to their time-off award -- I disagree. I question whether an employer's development of a draft schedule for use in talking with employees about their own individual preferences (said individual preferences being capable of being expressed) constitutes a "condition of employment" under § 7103(a)(14) of our Statute dealing with an employee's use of a time-off award. If anything, this appears to address internal agency actions regarding how an employer's representative prepares for meeting with employees in the course of scheduling time-off awards subject to supervisory approval. Even if this were to constitute a condition of employment that has actually been changed, I would find such change to be de minimis. In that regard, under the process to which the Union objects, employees retain the ability to express an individual preference and the employer retains the ultimate right to approve or disapprove the employee's preference. Consequently, and regardless of how one might wish to argue as to what condition of employment was or was not at issue here, there has been no change to any condition of employment sufficient to require that the Agency provide the Union with notice and an opportunity to bargain over that change. [ v58 p702 ]


Dissenting Opinion of Member Carol Waller Pope:

      I disagree with the majority's conclusion that the Respondent did not change conditions of employment. Prior to the incident at issue in this case, leave requests were initiated by employees. In the incident at issue here, the Respondent scheduled employees' leave and placed the burden on them to request changes. As the Judge aptly stated, "there is a demonstrable difference between the mere acceptance of an assigned day off and the opportunity to express a choice." Judge's Decision at 6. In these circumstances, I conclude that the Respondent changed unit employees' conditions of employment.

      In reaching this conclusion, I disagree with the majority's statement that "[n]othing in [AFM 34-310] -- or the record in this case -- demonstrates that for group awards of the sort in this case employees customarily initiated the scheduling of the time-off awards." Majority Opinion at 6. AFM 34-310 states that "[t]he employee is responsible for requesting supervisory approval to schedule and use the time-off award[,]" Judge's Decision at 3 (emphasis added), and there is no record evidence indicating that the regulation permits management to schedule time-off awards prior to receiving an employee request, or that management has ever done so in the past. In this connection, the Judge found a "close similarity" between the procedures for time-off awards and earned leave, id. at 5 n.2 -- a finding that has not been shown (or found by the majority) to be incorrect -- and the record indicates that the earned leave procedure is initiated by employees, not management, see Tr. at 32-33, 70-71. Thus, both AFM 34-310 and the record in this case demonstrate that employees initiate the scheduling of time-off awards. In fact, nothing in AFM 34-310 -- or the record in this case -- demonstrates that management customarily initiated the scheduling of such awards.

      I also find that the reasonably foreseeable effect of the change was greater than de minimis. Specifically, scheduling sixty employees' days off in advance, and then placing the burden on the employees to request changes, reasonably could have resulted in employees declining to request a different day (and therefore not receiving the day off that they would have requested if the regular policy had been followed). Because the reasonably foreseeable effects were greater than de minimis, I would find it unnecessary to address the actual effects of the change. See, e.g., United States EEOC, 40 FLRA 1147, 1156 (1991). Thus, unlike the majority, I find it irrelevant whether employees' schedule change requests were ultimately granted.

      Based on the foregoing, I would deny the Respondent's exceptions and adopt the Judge's Decision and Order. Accordingly, I dissent


File 1: Authority's Decision in 58 FLRA No. 169 and Opinions of Chairman Cabaniss and Member Pope
File 2: ALJ's Decision


Footnote # 1 for 58 FLRA No. 169 - Authority's Decision

   Chairman Cabaniss' concurring opinion and Member Pope's dissenting opinion are set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 169 - Authority's Decision

   Since we find that there was no change in employees' conditions of employment, and therefore no obligation to bargain, we need not address the Judge's determination that the method of scheduling the time