File 2: Opinion of Chairman Cabaniss
[ v59 p95 ]
Concurring Opinion of Chairman Cabaniss
I write separately to address an ongoing issue with the need to distinguish between "conditions of employment," a term defined by our Statute, and "working conditions," which are separate and distinct from the former phrase.
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 government owned vehicle (GOV): "conditions of employment" would be the "rules, regulations, or otherwise" that define the hours of work for the bargaining unit, or determine whether or 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 the conditions of employment affecting such employees . . . ."
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., Air Force Logistics Cmd., Warner Robins Air Logistics Ctr., Robins AFB, Ga., 53 FLRA 1664, 1668 (1998). I note that the impact of changing an employees working conditions is immediate, such as cutting back on the amount of overtime an employee is being assigned: the impact of changing the "rules" by which overtime work will be assigned in the future is often not so apparent or immediate, however. That is why, for example, in determining whether or not an agency's allegedly improper unilateral change to conditions of employment is more than de minimis, the Authority's precedent notes that the appropriate inquiry "must involve an analysis of the reasonably foreseeable effect of the change in conditions of employment evident at the time the change was proposed and implemented." United States Customs Svc. (Washington, D.C.); and United States Customs Svc., [ v59 p96 ] Northeast Region (Boston, Ma.), 29 FLRA 891, 899 (1987).
Clearly, there is nothing new about this emphasis on conditions of employment, although the confusion about it has been longstanding and continues to this day. An early case before the Authority helps to explain this confusion and why the Statute requires that we do a better job of distinguishing 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 done little in the way of recognition or analysis 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 United States Dep't of Health and Human Svcs., Social Security Admin., Baltimore, Md., 47 FLRA 1004 (1993) (SSA), 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 oversight of the statutorily required question of whether conditions of employment have been changed was further exacerbated by the Authority's decision in United States Dep't of Transportation, FAA, Wash., D.C., 44 FLRA 482 (1992) (FAA). In note 3 of that decision 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 Respondent 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 wheter 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.
As regards 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. And, as regards the overall issue of working conditions versus conditions of employment, there is a continuing need for practitioners at all levels and in all organizations to understand the legal significance of the these two distinct, albeit related, terms.
Footnote * for 59 FLRA No. 18 - Opinionof Chairman Cabaniss