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55 FLRA No. 32
Navajo Area Indian Health Service Winslow Service Unit Winslow, Arizona and Navajo Nation Health Care Employees Local 1376, LIUNA, AFL-CIO, Case No. DE-CA-60331 (Decided January 29, 1999)
The complaint alleged that the Respondent violated section 7116 (a)(1) and (5) of the Statute by implementing changes to the employee health program affecting services received by non-Native American employees, without providing the Charging Party with notice and an opportunity to bargain over the changes. The Authority found that the Respondent violated the Statute. The Authority noted that when an agency changes a condition of employment of bargaining unit employees, it is obligated to notify and negotiate with the collective bargaining representative prior to effectuating the change. However, the Authority noted that there is no obligation to bargain over a decision to change a past practice which is unlawful.
The Authority found nothing in the wording of the statutory provisions cited by the Agency that precluded the authorization by 5 U.S.C. § 7901 to implement an employee health program at IHS facilities that provides health services to all Agency employees, including non-Native American employees. Therefore, the Authority concluded that the Respondent's practice of providing non-Native American employees health services in this case was not unlawful. The Authority concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing changes to the employee health program affecting services received by non-Native American employees without notifying and bargaining with the Union.
The Authority further stated that where management changes a condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. No special circumstances were alleged in this case and none were apparent. Accordingly, the Authority held that a return to the status quo ante was appropriate to remedy the Agency's unfair labor practice.