Department of the Navy, Supervisor of Ship-Building, Conversion and Repair, Groton, Connecticut (Respondent) and American Federation of Government Employees, Local 2105, AFL-CIO (Charging Party) 

 4 FLRA No. 78
 
 DEPARTMENT OF THE NAVY
 SUPERVISOR OF SHIPBUILDING,
 CONVERSION AND REPAIR
 GROTON, CONNECTICUT
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2105
 Charging Party
 
                                            Case No. 1-CA-232
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD NOT
 ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  THEREAFTER, THE GENERAL
 COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
 RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
 THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, INCLUDING THE EXCEPTIONS FILED BY THE GENERAL COUNSEL AND THE
 CHARGING PARTY, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
    IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
 CONCLUDES THAT MANAGEMENT HAS NOT DUTY UNDER THE STATUTE TO NOTIFY AND
 BARGAIN WITH A LABOR ORGANIZATION BEFORE TAKING ACTION CONCERNING
 MATTERS WHICH DO NOT CONSTITUTE CHANGES IN "CONDITIONS OF EMPLOYMENT"
 WITHIN THE MEANING OF SECTION 7103(A)(12) OF THE STATUTE.  IN THE
 INSTANT CASE, THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT RESPONDENT'S
 "DISTRIBUTION OF THE CHECKLISTS TO SUPERVISORS DID NOT CONSTITUTE A
 CHANGE IN CONDITIONS OF EMPLOYMENT ABOUT WHICH RESPONDENT HAD AN
 OBLIGATION TO BARGAIN" IS SUPPORTED BY THE RECORD AND IS THEREFORE
 SUSTAINED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-232 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    CAROL WALLER POPE, ESQUIRE
    RICHARD D.ZAIGER,ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    A. GENE NIRO, ESQUIRE
                          FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    THIS MATTER AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., HEREIN CALLED
 THE STATUTE AS THE RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT ISSUED
 ON FEBRUARY 28, 1979, BASED UPON A CHARGE FILED BY THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2105, HEREIN CALLED
 THE UNION.
 
    THE COMPLAINT ALLEGED THAT DEPARTMENT OF THE NAVY, SUPERVISOR OF
 SHIPBUILDING, CONVERSION AND REPAIR GROTON, CONNECTICUT HEREIN CALLED
 RESPONDENT, VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE BY
 UNILATERALLY DEVELOPING AND INSTITUTING A SUPERVISORY FORM TO DOCUMENT
 EMPLOYEE PROBLEMS FOR REFERRAL TO THE EMPLOYEE ASSISTANCE PROGRAM
 WITHOUT GIVING THE UNION PRIOR NOTICE OF THE WORKSHEET THEREBY DENYING
 IT THE OPPORTUNITY TO NEGOTIATE RESPONDENT'S DECISION TO UTILIZE THE
 SUPERVISOR WORKSHEET AND THE OPPORTUNITY TO NEGOTIATE THE IMPACT AND
 IMPLEMENTATION OF RESPONDENT'S DECISION TO UTILIZE THE SUPERVISOR
 WORKSHEET.  RESPONDENT'S ANSWER TO THE COMPLAINT DENIED THE COMMISSION
 OF ANY UNFAIR LABOR PRACTICES.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT NEW
 LONDON, CONNECTICUT, ON APRIL 24, 1980.  ALL PARTIES WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  ALL PARTIES FILED
 BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  BASED UPON THE ENTIRE RECORD
 HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
 THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE
 THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER.
 
                                   FACTS
 
    RESPONDENT AND THE UNION ARE PARTIES TO A COLLECTIVE BARGAINING
 AGREEMENT WHICH SINCE 1973 HAS INCLUDED AN EMPLOYEE ASSISTANCE PROGRAM
 DESIGNED TO PROVIDE AID AND ASSISTANCE TO CIVILIAN EMPLOYEES WITH
 ALCOHOL AND DRUG PROBLEMS.  THE MOST RECENT AGREEMENT BETWEEN THE
 PARTIES CONTAINED ARTICLE XXXII, RELATING TO AN ALCOHOL AND DRUG ABUSE
 PROGRAM.  /1/ THE COLLECTIVE BARGAINING AGREEMENT CONTAINS NO SPECIFIC
 PROVISIONS RELATING TO THE IMPLEMENTATION OF THE PROGRAM.  ALTHOUGH THE
 COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR A COMMITTEE, NO SUCH
 COMMITTEE HAS EVER BEEN ESTABLISHED.
 
    ON DECEMBER 21, 1973, RESPONDENT PUBLISHED SUBSHIP INSTRUCTION
 12792.1 DEALING WITH THE CIVILIAN EMPLOYEE ALCOHOLISM PROGRAM ASSIGNING
 RESPONSIBILITY FOR THE IMPLEMENTATION AND ADMINISTRATION OF THE
 DEPARTMENT OF THE NAVY'S ROLE RELATIVE TO ALCOHOLISM AND ALCOHOL ABUSE
 AMONG CIVILIAN EMPLOYEES.
 
    ALTHOUGH THE PROGRAM HAS BEEN IN EXISTENCE SINCE 1973, IT WAS
 CONSIDERED DORMANT SINCE VERY FEW, IF ANY, REFERRALS HAD BEEN MADE.
 AROUND JUNE 1979, RESPONDENT'S CONSOLIDATED PERSONNEL OFFICE, UNDER THE
 DIRECTION OF ROBERT KNOWLES, A LABOR RELATIONS SPECIALIST, DECIDED THAT
 SOME ACTION SHOULD BE TAKEN TO UPLIFT THE PROGRAM.  MR. KNOWLES
 DEVELOPED A CHECKLIST OR SUPERVISOR WORKSHEET CONSISTING OF THREE (3)
 PAGES DESIGNED TO HELP SUPERVISORS "DOCUMENT INDICATIONS THAT A MEMBER
 OF HIS STAFF/DEPARTMENT MAY HAVE A PROBLEM." IN NOVEMBER, 1979, THIS
 CHECKLIST OR WORKSHEET WAS DISTRIBUTED TO SUPERVISORS AS BULLETIN NO.
 11.  WITH REGARD TO THE WORKSHEET THE BULLETIN NOTED:
 
             CHECKLIST FOR IDENTIFICATION OF PROBLEM EMPLOYEES
 
    FORWARDED WITH THIS ISSUE IS A "SUPERVISORY WORKSHEET" FORM, WHICH
 CAN SERVE AS A GUIDE FOR
 
    YOU IN DETERMINING AN EMPLOYEE'S NEED FOR REFERENCE TO YOUR EMPLOYEE
 ASSISTANCE PROGRAM
 
    COUNSELOR OR THE COUNSELING AND ASSISTANCE CENTER (CAAC) (SUBASE
 COMPLEX COMMANDS
 
    ONLY).  COPIES OF THIS FORM SHOULD BE MADE FOR LOCAL USE AND SENT TO
 YOUR COUNSELOR(S) FOR
 
    THOSE IN NEED OF ASSISTANCE.  CAUTION, HOWEVER, IS ADVISED IN
 HANDLING OF COMPLETED FORMS
 
    SINCE THE INFORMATION IS OF A SENSITIVE NATURE.
 
    THE CHECKLIST INCLUDED ITEMS CONCERNING THE SUPERVISOR'S OBSERVATIONS
 OF EMPLOYEE ABSENTEEISM, ACCIDENTS, PERSONAL HABITS, JOB PERFORMANCE AND
 INTERPERSONAL RELATIONSHIPS OF THE JOB.  THERE IS NO QUESTION THAT MUCH
 OF THE INFORMATION CONTAINED ON THE LIST COULD BE CONSIDERED
 CONFIDENTIAL AND THE CHECKLIST NOTED THAT THE INFORMATION CONTAINED
 THEREIN WAS PRIVILEGED INFORMATION.
 
    MR. KNOWLES TESTIFIED THAT PRIOR TO THE DEVELOPMENT OF THE WORKSHEET,
 THE SUPERVISOR AFTER NOTICING A PARTICULAR PROBLEM WOULD "GATHER
 INFORMATION FROM THE EMPLOYEE AT THAT TIME AND THE SUPERVISOR WASN'T
 SURE WHAT THE PROBLEM WAS BUT THAT THE EMPLOYEE WOULD HAVE A PROBLEM AND
 THERE WAS A PROGRAM ESTABLISHED WHERE IF THEY HAD A PROBLEM THEY COULD
 GO TO A COUNSELOR FOR ASSISTANCE AND RESOLVE" THE PROBLEMS WHICH CAUSED
 DETERIORATION IN THE EMPLOYEES WORK OR ATTENDANCE.
 
    ABOUT DECEMBER 11, 1979, UNION PRESIDENT ROBERT HECHT REQUESTED THAT
 THE PARTIES DISCUSS THE RAMIFICATIONS OF "NO. 11 TO SUPERVISORS NOVEMBER
 1979.  SPECIFICALLY THE CHECKLIST FOR IDENTIFICATION OF PROBLEM
 EMPLOYEES." THE ITEM WAS SUBSEQUENTLY DISCUSSED AT A DECEMBER 27, 1979
 MEETING BETWEEN THE PARTIES AT WHICH RESPONDENT TOOK THE FIRM POSITION,
 DURING A VERY BRIEF DISCUSSION, THAT THE MATTER WAS NOT NEGOTIABLE. THIS
 MEETING TERMINATED WITH THE UNION INDICATING THAT IT WOULD FILE AN
 UNFAIR LABOR PRACTICE CHARGE.
 
                        DISCUSSION AND CONCLUSIONS
 
    IN ORDER TO GENERATE AN OBLIGATION TO NEGOTIATE IT MUST BE
 ESTABLISHED THAT A CHANGE IN EMPLOYMENT CONDITIONS HAS OCCURRED.  U.S.
 CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIFORNIA, A/SLMR NO. 1066, 8
 A/SLMR 703.  FURTHERMORE, IF AN ACTION INVOLVES NO CHANGE IN TERMS AND
 CONDITIONS OF EMPLOYMENT, THERE IS NO REASON TO IMPOSE A DUTY TO
 NEGOTIATE REGARDING EITHER PROCEDURES OR IMPACT AND IMPLEMENTATION.  SEE
 MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO. 736;  6
 A/SLMR NO. 583.
 
    THE EMPLOYEE ASSISTANCE PROGRAM, IN THIS MATTER, ALTHOUGH DORMANT,
 HAS BEEN IN EXISTENCE SINCE 1973.  FURTHERMORE, OUTSTANDING INSTRUCTIONS
 AS EARLY AS 1973 IN SUBSHIP INSTRUCTION 12792.1 ESTABLISHED RESPONDENT'S
 RESPONSIBILITY IN IMPLEMENTING THE ALCOHOL AND DRUG ABUSE PROGRAM.  I
 AGREE WITH RESPONDENT THAT NEITHER THE COLLECTIVE BARGAINING AGREEMENT
 NOR THE OUTSTANDING INSTRUCTIONS PREVENT IT FROM PROVIDING GUIDELINES TO
 ITS SUPERVISORS TO ASSIST THEM IN IDENTIFYING EMPLOYEES IN NEED OF
 ASSISTANCE FROM THE PROGRAM AND CONSEQUENTLY NO CHANGE IN WORKING
 CONDITIONS HAS OCCURRED.
 
    THE GENERAL COUNSEL CONTENDS THAT THERE HAS BEEN A CHANGE IN
 RESPONDENT'S PROCEDURE FOR DOCUMENTING AN EMPLOYEE'S BEHAVIORAL
 PROBLEMS
 THAT MAY PRECIPITATE REFERRAL TO THE PROGRAM.  /2/ WHILE IT IS TRUE THAT
 THE CHECKLIST WAS NOT USED IN THE PAST, THERE IS EVIDENCE OF ESTABLISHED
 MEANS BY WHICH EMPLOYEES COULD BE IDENTIFIED FOR REFERRAL TO THE PROGRAM
 WHICH HAD VIRTUALLY THE SAME EFFECT AS THE CHECKLIST.  THUS, INFORMATION
 WAS ALWAYS COMPILED TO DOCUMENT WHETHER AN EMPLOYEE HAD A "PROBLEM."
 MOREOVER, THE CHECKLIST IN MY VIEW, IN NO WAY INFRINGES ON THE
 PREVIOUSLY NEGOTIATED PROCEDURES, BUT IS MERELY A TOOL TO AID
 SUPERVISORS IN IMPLEMENTING AN ALREADY EXISTING PROGRAM.  BASED ON THE
 ABOVE IT IS FOUND THAT THE DISTRIBUTION OF THE CHECKLIST TO SUPERVISORS
 DID NOT CONSTITUTE A CHANGE IN CONDITIONS OF EMPLOYMENT ABOUT WHICH
 RESPONDENT HAD AN OBLIGATION TO BARGAIN.
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C).
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-232 BE, AND
 HEREBY IS DISMISSED.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 7, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ARTICLE XXXII READS AS FOLLOWS:
 
                        ALCOHOLISM AND DRUGS ABUSE
 
    SECTION 1.  THE EMPLOYER AND THE UNION JOINTLY RECOGNIZE ALCOHOL
 ABUSE AND DRUG ABUSE AS
 
    TREATABLE ILLNESS.  IT IS ALSO RECOGNIZED THAT IT IS IN THE BEST
 INTERESTS OF THE EMPLOYER,
 
    THE UNION AND THE EMPLOYEE THAT THESE ILLNESSES BE TREATED AND
 CONTROLLED IN ACCORDANCE WITH
 
    REGULATIONS.
 
    SECTION 2.  OUR CONCERN IS LIMITED TO ALCOHOLISM AND DRUG PROBLEMS
 WHICH MAY CAUSE POOR
 
    ATTENDANCE AND UNSATISFACTORY JOB PERFORMANCE.  ANY EMPLOYEE WHO
 PARTICIPATES IN THIS PROGRAM
 
    WILL BE ENTITLED TO ALL THE RIGHTS AND BENEFITS AS PROVIDED FOR IN
 ACCORDANCE WITH
 
    REGULATIONS.
 
    SECTION 3.  A COMMITTEE OF TWO WILL BE ESTABLISHED TO ASSIST THE
 EMPLOYER IN DEVELOPING AN
 
    APPROPRIATE PROGRAM, THE UNION WILL NOMINATE ONE MEMBER TO THIS
 COMMITTEE.
 
    /2/ AMOCO CHEMICAL CORP., 211 NLRB G18 (1974) CITED BY GENERAL
 COUNSEL IN ITS BRIEF IS DISTINGUISHABLE ON THE FACTS.  FURTHER, IN THE
 AMOCO CASE A LONG STANDING PRACTICE EXISTED WHEREAS THE RECORD IN THIS
 MATTER WOULD NOT SUPPORT SUCH A FINDING.