U.S. DEPARTMENT OF AGRICULTURE FOOD SAFETY AND INSPECTION SERVICE WASHINGTON, D.C. and NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: July 14, 2005

TO: The Federal Labor Relations Authority

FROM: SUSAN E. JELEN

Administrative Law Judge

SUBJECT: U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION SERVICE

WASHINGTON, D.C.

Respondent

and Case No. WA-CA-04-0552

NATIONAL JOINT COUNCIL OF FOOD

INSPECTION LOCALS, AMERICAN

FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of the Rules and Regulations 5 C.F.R. § 2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION SERVICE

WASHINGTON, D.C.

Respondent

and

NATIONAL JOINT COUNCIL OF FOOD

INSPECTION LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

Charging Party

Case No. WA-CA-04-0552

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned herein serves her Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

AUGUST 15, 2005, and addressed to:

Office of Case Control

Federal Labor Relations Authority

1400 K Street, NW, 2nd Floor

Washington, DC 20005

SUSAN E. JELEN

Administrative Law Judge

Dated: July 14, 2005

Washington, DC


OALJ 05-41

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION SERVICE

WASHINGTON, D.C.

Respondent

and

NATIONAL JOINT COUNCIL OF FOOD

INSPECTION LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

Charging Party

Case No. WA-CA-04-0552

Sandra J. Le Bold, Esquire

Shamar Cowan, Esquire

For the General Counsel

James Varsalone, Esquire

For the Respondent

Charles S. Painter

For the Charging Party

Before: SUSAN E. JELEN

Administrative Law Judge

DECISION

Statement of the Case

This case arose 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. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (hereinafter FLRA/Authority), 5 C.F.R. Part 2423.

Based upon an unfair labor practice charge filed by the National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO (Union or Charging Party), a complaint and notice of hearing was issued by the Regional Director of the Washington Regional Office of the Authority. The complaint alleges that the U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C. (Respondent) violated section 7116(a)(1) and (5) of the Statute when it implemented a new poultry inspection system called Nuova at Plant P-13456 in Pine Bluff, Arkansas, without giving the Union notice and an opportunity to bargain to the extent required by the Statute. (G.C. Ex. 1(b)) Respondent timely filed an Answer denying that it violated the Statute. (G.C. Ex. 1(d))

A hearing was held in Pine Bluff, Arkansas on March 16, 2005, at which time all parties were afforded a full opportunity to be represented, be heard, examine and cross-examine witnesses, introduce evidence and argue orally. The General Counsel and the Respondent filed timely post-hearing briefs which have been fully considered.

Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

The U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C. is an agency within the meaning of 5 U.S.C. § 7103(a)(3). (G.C. Exs. 1(b) and 1(d))

The National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO is a labor organization under 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining that includes employees of the Respondent. (G.C. Exs. 1(b) and 1(d)) The Charging Party and the Respondent are parties to a collective bargaining agreement (CBA) covering employees in the bargaining unit.

Plant P-13456 is a poultry processing plant located in Pine Bluff, Arkansas. The basic duty of a food inspector/

line inspector at Plant P-13456 is to conduct a post mortem inspection of chickens, specifically inspecting the viscera pack (the inside of the bird including the heart, liver and intestines) and inspecting the carcass for pathology, contamination and abnormal conditions. (Tr. 40, 42) A poultry inspection assembly line runs poultry carcasses and viscera down the line, and each inspector is required to inspect a certain percentage of that line of poultry. (Tr. 15, 42) Poultry inspection is primarily a visual inspection (Tr. 43). The inspectors also use their hands to reflect the flaps and look inside the bird. (Tr. 52, 61)

A new inspection system called Nu-Tech Nuova (Nuova) was implemented at Plant P-13456 on January 19, 2004. (G.C. Ex. 4; Tr. 14, 19, 46) Prior to the implementation of

Nu-Tech Nuova, inspectors were utilizing the NELS line. (Tr. 14-15, 96) According to the Respondent's witnesses, Nuova was an improved version of the Nu-Tech evisceration system, which would provide for less contamination, better efficiency, and prohibit the crushing of the breast and ribs inside the cavity, which limited effective and efficient inspections. Nuova has fewer moving parts and has the ability to accommodate varying bird sizes. (Tr. 159, 172, 175, 178)

Prior to the week of January 11, 2004, the Respondent, by Dr. Kenneth Lagrone, provided inspectors at Plant P-13456 with a written schedule of their activities at another plant while Nuova was being installed. (Tr. 45; G.C. Ex. 4) For January 15, 2004, the Respondent planned a day-long orientation/training session for inspectors at which STORK representatives (the developer of Nuova) gave a video presentation of the new line to the inspectors. (G.C. Ex. 4; Tr. 19, 46-47, 126) The Inspector in Charge at the Plant, Dr. Lagrone and Dr. Rasheed were present. (Tr. 47)

The video presentation indicated that: (1) the shackles on the line were going to be plastic (the shackle is the instrument that holds the birds upside down by their drums); (2) birds would lie sideways on a chain in front of the stand; (3) birds would be opened up wider and the viscera would not be attached so that they would be easier to inspect; (4) stands would be adjustable so inspectors would have improved visual inspection of the birds; (5) lights would be turned to enhance the inspectors visual inspection; and (6) the inspectors would be able to use one hand for inspection. (Tr. 48, 127, 172) At the end of the presentation, the STORK representatives told inspectors that birds would be opened up wide on the Nuova line and that the inspectors would not have to lean over and touch the birds for inspection. (Tr. 50, 75)

Late in December 2003, inspectors at Plant P-13456 told Bettina Bryant, President of Local 2650, that Respondent intended to implement a new inspection line at the Plant. (Tr. 15) They did not have any more specific information to convey to Bryant. (Tr. 19)

On or about January 13, 2004, Bryant attended a Labor Management meeting at the Springdale District Office during which she asked the District Managers if they would allow her to view the line so she could determine what, if any, the change in lines would have on unit employees' working conditions, including any impact on the employees. (Tr. 16) Respondent's representatives informed Bryant that she did not need to view the line because only the evisceration machine was to be changed. (Tr. 16-17)

Bryant then contacted Southwest Council President of the Union, Alex Gonzales, and asked whether he had been notified that the Respondent was implementing a new line system at Plant P-13456. Gonzales indicated that he had not been notified. (Tr. 17)

Bryant next contacted the Chairman of the Union, Charles Painter, to inquire as to whether he had been notified that Respondent was implementing a new line system at Plant P-13456. (Tr. 132, 137) According to Article 6 of the CBA, the Respondent is to provide the Chairman with advanced notice of changes to employees' conditions of employment. (Tr. 17) Painter advised Bryant that the Respondent had failed to provide the Charging Party notice of the implementation of the Nuova system at Plant P-13456. (Tr. 17, 132-33)

Painter then contacted Respondent's Branch Chief of Labor Relations in Washington, D.C., Cheryl Dunham, who advised him that she was not familiar with the implementation of Nuova at Plant P-13456. Dunham later contacted Painter and advised him that a change had been made at the plant in Pine Bluff, but that the change was de minimis. (Tr. 133) Dunham also said that the same system had been implemented previously in a plant in Alabama. (Tr. 133-34) Painter advised Dunham that the system in Alabama was under a House of Inspection Models Project (HIMP), and was a totally different system than Nuova. (Tr. 134)

Under the NELS system, Plant P-13456 had two lines on two shifts, with three inspectors on each line. (Tr. 62, 88, 96) The viscera were actually attached to the bird. (Tr. 49, 97) There were mirrors along the line where the inspectors could view the front side of the bird. (Tr. 97) The line speed on NELS (the number of birds that pass along the line per minute) was 91 birds per minute. (Tr. 101, 119) There were four strips of lights over the inspectors' stations. (Tr. 49)

On the Nuova line, three inspectors work on each of the four lines used and there are still two shifts. (Tr. 38, 62, 88, 96) On the Nuova line, the viscera is detached from the bird and placed on its own individual color-coded clip about six to eight inches away from the bird. (Tr. 48-49, 60, 97, 115, 170) The line is tilted towards the inspectors. (Tr. 172-173) The line speed on the Nuova line is 141 birds per minute, and there have been occasions when the line has run faster than that. On one occasion the birds were clocked at 169 per minute. (Tr. 101-02, 119) There are two strips of light on the Nuova line. (Tr. 49, 61) The NELS line did not have a chain exposed on the line in front of the inspector, while the Nuova line has a chain directly in front of the inspectors by their hands, which rotates out. (Tr. 119)

Inspectors work on an inspection station, also called a stand. Regulations require that the stands be 2' x 4'. Stands are adjustable (up and down) and each has a stool so that inspectors can sit or stand. (Tr. 54) Inspectors adjust their stands at the beginning of each shift and when they move to a different stand. Inspectors are subject to a rotation system, so after each break, they move to a different stand on the line. The line continues to move while inspectors are being relieved on their breaks; meaning that there are two inspectors on the stand in order to switch positions while the inspections continue. (Tr. 54, 55, 58, 64, 93, 98, 116)

According to the Union's witnesses, the stands do not go up as high on the Nuova line, are smaller and sometimes would not adjust or would do so slowly. (Tr. 54, 57, 63, 68, 97-98) Further, sometimes the stands would need to be readjusted during the shift. (Tr. 69, 98)

Inspectors are not as close to the bird on the Nuova line because there is a guardrail between the inspectors, and there is a pulley system that the bird leans against. (Tr. 98, 129) On the NELS line, birds were positioned directly in front of the inspectors, so the inspectors' elbows would be right next to their body during inspection. (Tr. 59) On the Nuova line, inspectors must reach farther out with their elbows up. Because the stands are not high enough, inspectors must hold their arms up on the water rail, which also is higher than the rail on the NELS line. (Tr. 59)

There is more rail dust on the Nuova line than there was on the NELS line. On the NELS line, dust was observed on one or two birds every so often, whereas on the Nuova line it is observed on virtually every bird. (Tr. 102, 120) Rail dust, which is a combination of dust and metal flakes, comes off the chains above the inspectors' duty stations. (Tr. 102) This rail dust gets on the product, inspectors' hard hats, latex gloves, and face, and is inhaled by inspectors. (Tr. 102-103, 120)

There have been a number of safety hazard forms and grievances filed by the Union to address the problems associated with implementation of Nuova. (G.C. Exs. 2, 3, 5; Tr. 22-23) The safety hazard forms addressed a number of the problems inspectors were having since the implementation of Nuova, including (1) the lever adjustment on some of the inspection stations are harder to move and hold down; (2) the stop/start buttons at inspection stations are difficult to pull out, and most of the time must be pulled out several times to operate; and (3) the line would just stop by itself and the inspectors would be blamed for stopping the line. (G.C. Exs. 5, 6; Tr. 65, 67-68, 122)

Some of the safety issues have been resolved locally, while some remain. (G.C. Ex. 3, pp. 1-2; 5; Tr. 27, 78, 85, 91-92)

The Union filed the unfair labor practice charge in this matter on June 29, 2004. (G.C. Ex. 1(a))

ISSUE

Whether or not the Respondent violated section 7116(a)(1) and (5) of the Statute when it implemented a new poultry inspection system in Pine Bluff, Arkansas without first providing the Union notice and an opportunity to bargain?

POSITIONS OF THE PARTIES

GENERAL COUNSEL

The General Counsel asserts that the implementation of Nuova at the Pine Bluff, Arkansas plant changed inspectors' conditions of employment by changing their work area/duty stations. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, Social Security Administration, Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts, 36 FLRA 655, 668 (1990). Even though the inspectors' duty to inspect did not change, the means/methods and technology used to perform that duty were changed. For example, the inspectors' lights and stands at their inspection stations were changed, the line speed and number of inspectors along the line were increased, a color-coding system was implemented, and the Nuova line incorporated new equipment (stands) with old equipment (stools). The General Counsel acknowledges that the changes made to the inspection line were not substantively negotiable as they concerned management's right to determine the technology, methods and means of performing work under section 7106(b)(1) of the Statute.

The General Counsel asserts that the record clearly shows that the actual and reasonably foreseeable impact of the changes effected through implementation of Nuova was more than de minimis. It was reasonably foreseeable that changing the equipment the inspectors used in the performance of their job duties would have an adverse effect on them physically, and would reduce their productivity, thereby causing less favorable performance evaluations. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 39 FLRA 1325 (1991); U.S. Department of the Treasury, Internal Revenue Service, 56 FLRA 906, 913 (2000) (IRS); Social Security Administration, Malden District Office, Malden, Massachusetts, 54 FLRA 531, 537 (1998).

The General Counsel asserts that inspectors have experienced actual adverse effects as the result of Nuova's implementation. Nuova requires the inspectors to inspect a wider area along the inspection line (as the bird and viscera are further away from the inspector and each other), hold their arms out further for extended periods of time, and inspect more birds per minute on a faster inspection line. These changes, along with the lack of conformity of the equipment at the inspection stations, the incorporation of old equipment with new equipment, and the deficiencies with stands and stools, place excessive pressure on inspectors' upper extremities, causing physical stress on inspectors' arms, shoulders and upper backs. (Tr. 54, 58, 98-99, 101). These problems also are the result of other problems associated with Nuova, including stands lowering on their own accord, levers to raise and lower stands not working properly, increased rail dust, and decreased light.

Additionally, the record reveals that on the Nuova line, inspectors are required to use two hands during inspection, despite assurances to the contrary from STORK representatives. It is undisputed that inspectors cannot use two hands constantly during the inspection when they frequently must reach behind them to adjust stands, and stools that are not working properly. This could affect inspectors' performance evaluations and potential for promotion, as demonstrated by the fact that inspectors have been counseled for not using two hands while performing their duties.

The General Counsel therefore asserts that the record evidence clearly reflects that the Respondent made changes to employees' conditions of employment which have more than a de minimis impact. IRS. The Respondent was therefore required to provide the Union with adequate notice of the changes and the opportunity to bargain. The record is clear that the Respondent did not send the Union advanced notice of implementation of Nuova at Plant P-13456 as it believed that it had no obligation to do so. Bryant attempted to obtain more information regarding the system, but was never provided any specific details. Accordingly, the Union did not receive sufficient and adequate notice.

Further, the Respondent failed to notify Painter of its decision to implement Nuova at Plant P-13456. The Respondent further informed Painter that it had no duty to notify the Union because Nuova had already been implemented in another plant in Alabama and because the Respondent had determined that the changes were de minimis. The General Counsel asserts that the Respondent had a duty to notify the Union of the changes and afford the Union an opportunity to bargain over the changes and the Respondent failed to provide the Union with adequate notice of the changes as required by U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 82-83 (1997).

As a remedy, the General Counsel requests that the Respondent be required to post a notice throughout Plant

P-13456 in Pine Bluff, Arkansas and that the notice be signed by the Respondent's Administrator Dr. Barbara Masters. The General Counsel does not request status quo ante relief in this matter, but does assert that a retroactive bargaining order is appropriate. Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995).

Respondent

The Respondent asserts that it did not violate the Statute as alleged since the General Counsel did not prove that the Respondent was required to provide notice and an opportunity to bargain over the impact and implementation of the implementation of the Nuova system at Plant P-13456 in Pine Bluff, Arkansas. The Respondent admits that additional inspectors were hired, but asserts that the employees' conditions of employment were not changed. United States Department of Labor, Occupational Safety and Health Administration, Region 1, Boston, Massachusetts, 58 FLRA 213 (2002); U.S. Immigration and Naturalization Service, New York, New York, 52 FLRA 582 (1996); U.S. Immigration and Naturalization Service, Houston District, Houston, Texas, 50 FLRA 140, 143 (1995) (INS). The Respondent asserts that the evidence failed to show that inspectors' workload or work responsibilities within their assigned tour of duty were changed as a result of implementation of Nuova. Therefore, the Respondent asserts that it was under no obligation to bargain with the Union and its failure to do so was not violative of the Statute.

The Respondent further asserted that its witnesses credibly testified that Nuova is a more visual system than "hands on" and requires less repetitive motion. The Respondent asserts that, as a result of Nuova, inspectors were required to do less hand movement and more visual inspection.

The Respondent further asserts that the testimony of the General Counsel's witnesses was inconsistent and did not support the allegation that the change had more than a de minimis impact.

Analysis and Conclusion

It is an unfair labor practice to deny the exclusive representative an opportunity to bargain over the impact and implementation of a change in unit employees' conditions of employment, provided that the change has more than a de minimis effect. See, e.g., General Services Adminis-tration, Region 9, San Francisco, California, 52 FLRA 1107, 1111 (1997) (GSA). In assessing whether the effect of a decision on conditions of employment 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 on bargaining unit employees' conditions of employment. United States Department of the Air Force, Air Force Materiel Command, 54 FLRA 914, 919 (1998); GSA, 52 FLRA at 1111; IRS, 56 FLRA 906.

The issue in this case concerns whether or not the effect of the change to the Nuova system had more than a de minimis impact on the bargaining unit employees' conditions of employment. The evidence shows that many aspects of the inspectors' conditions of employment have not changed: hours of work, breaks, shifts, rotation schedules, performance standards, pay and benefits have not changed. Additional employees were hired for the newly created lines, but there was no evidence of any impact on unit employees, except for more crowded locker room conditions. There is no evidence that the basic work of the inspectors has changed as they continue to inspect poultry, both visually and by hand, under the new processing system.

The evidence is also clear, however, that certain physical changes to the inspectors' work stations have resulted from the implementation of Nuova. The evidence shows that complaints have centered on the difficulty of maneuvering the new stands and the difference in height of the new stands, as well as difficulty in reaching controls during the inspection process. Further, with Nuova, there is a difference in the distance from the birds; a chain between the birds and the inspectors; and additional stress to upper limbs. The record evidence also establishes that the production speed of the line has increased with Nuova, with its resulting impact on the inspectors.

Therefore, upon an examination of the record as a whole, I find that the change to the Nuova system had a greater than de minimis impact on the conditions of employment of bargaining unit employees. Pension Benefit Guaranty Corporation, 59 FLRA 48 (2003). Under these circumstances, the Respondent had an obligation to give the Charging Party adequate notice and an opportunity to bargain over the impact and implementation of the change. The Respondent's failure to give such notice was, therefore, a violation of section 7116(a)(1) and (5) of the Statute.

Having found that Respondent violated section 7116(a)(1) and (5) of the Statute, it is recommended that the Authority adopt the following:

ORDER

Pursuant to section 2423.41 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Unilaterally implementing a new poultry inspection line system, without giving prior notice to the National Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of employees located at Plant P-13456 in Pine Bluff, Arkansas, and affording it an opportunity to bargain over these changes to the extent required by the Statute.

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

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a) Upon request, engage in retroactive bargaining with the National Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the employees' exclusive bargaining representative, over the impact and implementation of the changes associated with the implementation of Nuova at Plant P-13456 in Pine Bluff, Arkansas.

(b) Notify, and upon request, negotiate with the Union prior to making any changes in employees' conditions of employment, specifically implementation of new poultry inspection lines.

(c) Post at Plant P-13456 in Pine Bluff, Arkansas, where bargaining unit employees are employed, 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 Administrator, 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 Rules and Regulations, notify the Regional Director, Washington Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, July 14, 2005.

_______________________________

SUSAN E. JELEN

Administrative Law Judge


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Agriculture, Food Safety and Inspection Service, Washington, D.C., violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement a new poultry inspection line system, without notifying the National Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, and affording it an opportunity to bargain over these changes to the extent required by the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL engage in post-implementation bargaining with the National Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO, the exclusive represent