16:0003(1)CA - VA, Hines Hospital, Hines, IL and SEIU Local 73 -- 1984 FLRAdec CA
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16:0003(1)CA
The decision of the Authority follows:
16 FLRA No. 1
VETERANS ADMINISTRATION
HINES HOSPITAL
HINES, ILLINOIS
Respondent
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 73, AFL-CIO
Charging Party
Case No. 5-CA-667
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the General Counsel filed
exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions and recommended Order, as modified
herein.
The Authority agrees with the Judge's finding that the Respondent was
not under an obligation to bargain concerning its decision to abolish
the 11:30 a.m. tour of duty for food-service employees in the Dietetic
Service and to reassign those employees to the second shift. The
reassignment resulted in transferring primarily WG 3, journeyman meal
service employees, to the 11:00 a.m. shift and thus elevating the grade
level of employees reporting at that time to set up the tray assembly
lines. The decision to effect the reassignment involved the "numbers,
types, and grades of employees or positions assigned to any
organizational subdivision, work project, or tour of duty" within the
meaning of section 7106(b)(1) of the Statute /2/ and, thus, was
negotiable only at the election of the agency. See, e.g., U.S. Customs
Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982). The
Authority further adopts the Judge's conclusion that, while the
Respondent gave the Union adequate notice of the changes, it violated
section 7116(a)(1) and (5) of the Statute in the particular
circumstances presented by failing to afford the Union adequate
opportunity to bargain over the impact and implementation of the change
prior to the implementation date. In so concluding, the Authority notes
particularly the Judge's finding that the Union had requested a
temporary postponement of the change until the Union's chief negotiator
returned from vacation, and that the Respondent had scheduled a meeting
for shortly after that date without informing the Union that
implementation would take place as originally scheduled or advising the
Union of any reasons why implementation could not be deferred briefly.
The General Counsel has requested a status quo ante remedy which
would require the Respondent to restore the abolished third shift of
food-service employees in the Dietetic Service and to pay the night
shift differential which the reassigned employees lost as a result of
their reassignment to the second shift. However, the Authority, in
agreement with the Judge, finds that a status quo ante remedy is not
warranted herein. Thus, balancing the nature and circumstances of the
violation against the degree of disruption in the Respondent's
operations that would be caused by such a remedy, and taking into
consideration the factors set forth in Federal Correctional Institution,
8 FLRA 604 (1982), the Authority concludes that an order giving the
employees' exclusive representative an opportunity to bargain concerning
the impact and implementation of the decision to abolish the 11:30 a.m.
tour of duty for food-service employees in the Dietetic Service and to
reassign those employees to the second shift will remedy the violation
in this case and will effectuate the purposes and policies of the
Statute. In this regard, the Authority notes that the Respondent gave
the Union adequate prior notice of its decision to abolish the third
shift and reassign the affected employees to the second shift; that the
Respondent's conduct does not appear to be willful; and that a
requirement to restore the third shift would substantially disrupt the
hospital's schedule. Moreover, while the reassigned employees lost
their night shift differential pay as a result of the change in shifts,
it cannot be concluded that the employees in question would not have
suffered a loss of such differentials but for the Respondent's unlawful
refusal to bargain over the impact and implementation of such change in
shifts. Accordingly, the Authority concludes that an order requiring
the retroactive payment of night shift differential pay to the
reassigned employees is not warranted under the Back Pay Act, 5 U.S.C.
Sec. 5996, AnD Sec. 7118(a)(7)(C) of the Statute. See, e.g., ACTION
and ACTION Employees Union, AFSCME, Local 2027, 11 FLRA No. 89 (1983)
and American Federation of Government Employees, Local 1395 and
Department of Health and Human Services, Social Security Administration,
10 FLRA 18 (1982).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Veterans Administration, Hines
Hospital, Hines, Illinois shall:
1. Cease and desist from:
(a) Instituting any change in tours of duty and reassignments
involving employees represented exclusively by the Service Employees
International Union, Local 73, AFL-CIO, the exclusive bargaining
representative of its employees, without first notifying the exclusive
representative of the proposed change and then affording it an
opportunity to negotiate on the procedures which management will observe
in implementing such a change and on the impact such change will have on
adversely affected unit employees.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the Service Employees International
Union, Local 73, AFL-CIO, the exclusive bargaining representative of its
employees, concerning the procedures observed in implementing the
abolishment of the 11:30 a.m. tour of duty for food-service employees in
the Dietetic Service and the reassignment of those employees, and the
impact of the change upon adversely affected unit employees.
(b) Post at Hines Hospital, Hines, IL. 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 an authorized
representative of Hines Hospital and 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 insure that said
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
V, 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, D.C., September 10, 1984
(s) Henry B. Frazier, III
Henry B. Frazier III, Acting
Chairman
(s) Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in tours of duty and reassignments
involving employees represented exclusively by the Service Employees
International Union, Local 73, AFL-CIO, without first notifying the
exclusive representative of the proposed change and affording it an
opportunity to negotiate concerning the procedures which management will
observe in implementing the change and on the impact such change will
have on adversely affected unit employees.
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
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate with the Service Employees
International Union, Local 73, AFL-CIO, the exclusive representative of
our employees, concerning the procedures observed in implementing the
abolishment of the 11:30 a.m. tour of duty for food-service employees in
the Dietetic Service and the reassignment of those employees, and the
impact of the change upon adversely affected unit employees.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Blvd., Suite A-1359, Chicago, IL, 60604, and whose
telephone number is: (312) 353-6306.
----------- ALJ$ FOLLOWS ---------
HINES HOSPITAL,
HINES, ILLINOIS
Respondent
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL NO. 73, AFL-CIO
Charging Party
Case No. 5-CA-667
George A. Miksa,
Attorney for the General Counsel
Claire R. Morrison,
Attorney for the Veterans Administration
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. 7101, et seq. (hereinafter referred to as the Statute)
and the rules and regulations issued thereunder and published in 45 Fed.
Reg. 3482-3524 (1/17/80), 5 CFR 2421 et seq.
Pursuant to a charge filed on August 18, 1980 and amended on October
24, 1980 by the Service Employees International Union, Local No. 73,
AFL-CIO (hereinafter, SEIU or Union), a Complaint and Notice of Hearing
was issued on October 31, 1980, by the Regional Director, Region 5, of
the Federal Labor Relations Authority (hereinafter, the Authority).
The Complaint alleges violations of Sections 7116(a)(1) and (5) of
the Statute, in that on or about July 13, 1980, and continuing to date,
the Veterans Administration, Hines Hospital, Hines, IL (hereinafter,
Hines Hospital, or Respondent) failed and refused to provide the Union
with notice and/or an ample opportunity to bargain and to negotiate in
good faith concerning a proposed new tour of duty in the Dietetic
Service of Hines Hospital, and proceeded, unilaterally, to implement the
new tour. /3/
A hearing in the matter was held on January 13, 1981, in Chicago, IL.
All parties were afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues involved. Respondent submitted a brief on February 6, 1981. The
General Counsel of the Authority submitted a brief on February 9, 1981.
Upon the basis of the entire record, my observation of the witnesses
and their demeanor, and the briefs, I make the following findings of
fact, conclusions and recommendations.
FINDINGS OF FACT /4/
1. On December 11, 1975, the Union was certified as the exclusive
representative of all general schedule, wage board and veteran canteen
service employees, with some exceptions, at Hines Hospital. Included in
the bargaining unit are food service employees in the Dietetics Service.
2. A collective bargaining agreement (hereinafter, the contract) was
signed by Hines Hospital and SEIU on July 1977. Lewis Cade and Sam
Lynk, Jr., among others, were on the negotiating committee for SEIU.
Carol Hall and S. K. Tsugawa, among others, were on the negotiating team
for the Hospital.
3. Several provisions of the contract are pertinent here.
a. Article VII, Section 7 defines the "functions of Union
Representatives, Committeeman and Stewards." (GC 2.11). The
Representative "coordinates Union policy and executes the lawful
decisions of the Union membership and serves as liaison between the
Union and the Medical Center Management. He is responsible for
negotiating and consulting with management in all matters affecting the
working conditions." The Stewards and Committeemen "are subordinate to
the Representative who retains the right to intervene and become the
official spokesman for the Union in any matter affecting the bargaining
unit."
b. Article III of the contract defines the "Mutual Rights and
Obligations" of the parties. (GC 2.3). Paragraph 3 provides:
Nothing in this agreement shall restrict the VA in exercising
the right, in accordance with applicable laws and regulations, to:
direct employees of the VA, hire, promote, transfer, assign and
retain employees in positions within the VA . . . relieve
employees from duties because of lack of work or for other
legitimate reasons; maintain the efficiency of the governments
operations entrusted to the VA; determine the methods, means and
personnel by which such operation are to be conducted . . . .
(GC 2.4)
c. Article IV of the contract defines the "Subject Areas For
Negotiation." (GC 2.5). Paragraph 1 provides:
Appropriate subjects for negotiation are, for example . . .
assignment of work shifts and tours of duty . . . .
(GC 2.5) Paragraph 2 of Article IV provides:
Negotiations may not take place with respect to any matter . .
. which extends to areas of discretion and policy, such as the
mission of the hospital, its budget, organization, number of
employees assigned to an organization unit, work project or tour
of duty, internal security procedures, or the technology of
performing work. This restriction will not be construed as
limiting the discussion of these matters when mutually
advantageous to the parties to this agreement. The parties shall
negotiate agreements providing appropriate arrangements for
employees adversely affected by impact of realignment of work
force or technological change.
(GC 2.6). Paragraphs 1 and 2 of Article IV were basically taken from
Executive Order 11491, then in effect and establishing the relationship
between Federal employees' units and the departments and agencies in
which they worked. (Tr 47-48).
d. Article X of the contract deals with "Tours of Duty." (GC
2.17-19). Paragraph 2 provides that Union "shall be notified in writing
of changes in established tours of duty no less than two (2) calendar
weeks prior to the effective date of change, except in cases of
emergency."
4. The operation of Hines Hospital revolves around the service of
meals, in that therapy, tests, and doctors' rounds are scheduled around
the fact that a meal will be served at a specific time.
5. Prior to July 13 and for a period of several years, full-time,
food-service employees in the Dietetics Service worked on three shifts.
The first began at 6:00 a.m. and ended at 2:20 or 2:30 p.m. About 50 or
more full-time employees were, and still are assigned to the first
shift. They prepare the patients' breakfast and lunch. They also
clean, store foods, and work on the supper meal items. Between 40 and
50 full-time employees were assigned to the second shift, which did, and
still does begin at 11:00 a.m. and end at 7:20 p.m. A third shift began
at 11:30 a.m. and ended at 8:20 p.m. Approximately 24 full-time
employees were assigned to the third shift. Luncheon and supper were
served by employees on the second and third shifts. Supplementing these
employees were, and still are a large number of part-time employees, who
come in early and late. The same number of luncheon and supper meals
are served by all these employees, who totaled 164, prior to July. By
July, there had been a net loss of 45 food-service employees and an
accompanying loss, in patient census, from 1,500 to seldom over 1,000.
Over the past year and a half, Hines Hospital has been reducing its
full-time staff, by adding more part-timers and by not filling full-time
positions as they became vacant.
6. The primary responsibility of the 11:00 a.m. shift is to set up
the tray assembly lines. The line is scheduled to start promptly at
11:30 a.m., so that the first trays are reaching the patients at
approximately 11:50 a.m. or noon. A printed menu, that has all the
variations of modified diets, notifies the food-service employees of
what food is to go on each tray. There are as many as 26 different
kinds of modified diets; and 65 percent of the patients are on some
kind of modification of the normal diet. Because some food items listed
on the printed menu are not always delivered, it is necessary to hold a
menu conference with the employees who assemble the trays, and apprise
them of the changes.
7. Four grade levels of employees are involved in the function of
meal service-- WG1 through WG4. The journeyman position is WG3. To
attain the WG3 grade the employee must have training and knowledge of
modified diets. WG1 employees simply slip a heated base plate under the
dinner plate. WG2 employees are responsible for a position such as
soup, where some knowledge is needed of modified diets, because a low
sodium diet will get a different kind of soup than a normal diet. WG3
employees are responsible for a "lot of decision making" because some
patients are on combination diets, such as a diabetic, low sodium, low
cholesterol diet. (TR 76-77). WG4 employees are the highest skilled.
They check the trays before they are moved off the line.
8. The 11:30 a.m. shift was made up primarily of WG3 employees.
They came in too late to participate in the menu conference, and would
simply fill vacant positions on the tray assembly lines.
9. The Chief of the Dietetic Service at Hines Hospital, Carol Hall,
was informed by her supervisory staff that not enough employees were
coming in at 11:00 a.m. to fill the positions and actually help set up
the tray assembly stations. (A study was made of the service of mid-day
meal; but it was not adduced, and no reliance is placed upon the study
itself, in this decision.)
10. On July 13, the third tour of duty was abolished. The employees
assigned to it were reassigned to the second shift. This date was
chosen because it occurred at the height of the vacation schedule, when
the real impact of the reduced number of employees would be felt for the
first time. A later date would probably have resulted in delays in meal
service. A reinstatement of a third shift would have the same result.
11. As a result of the reassignment, the employees formerly on the
third shift lost their night-differential pay.
12. The 11:30 a.m. starting time for the third shift began on May
29, 1977. Prior to that time, it had begun at noon. At a special
meeting held on May 4, 1977, Hines Hospital gave the Union notice of the
proposed changes. Committeemen George Matthews and Chris Copeland were
present. Ms. Hall, Chief of the Dietetics Service, and three others
represented the Hospital. Mr. Matthews called the proposal a
"management ploy" to eliminate the night-differential pay (GC 9). Lewis
Cade, the Union Representative, assumed the responsibility for handling
the issue. Consultations lasted about a month. Mr. Cade dealt
primarily with the Personnel Officer and the Director of the Hospital
and "not too much with Ms. Hall." (TR 70). Mr. Cade's main concern was
the loss of the night-shift differential. Hines Hospital assured Mr.
Cade that the employees would not lose the differential pay, and met
with the employees to explain this to them.
13. On June 17, a "special meeting" was called by Respondent "to
inform the Union of the abolishment" of the 11:30 a.m. shift. (GC 4).
In attendance, for the Union, were Committeemen Copeland and Matthews,
and for Respondent, Ms. Hall, Mr. Bethel, Chief of Food Service, and a
Mr. Rochowiak. The Committeemen were handed a memorandum dated June 13
and addressed to them from Ms. Hall. The memorandum stated that it was
"to inform" them that effective July 13 the third shift would be
"abolished" and those employees presently assigned to this "tour of
duty" would be "scheduled for the 11:00 a.m. to 7:30 p.m. tour." (GC 3).
The meeting marked the first knowledge the Union had of the change.
Ms. Hall stated that the change was "for the betterment of the service
of the patients." (TR 16). She gave no answer to Mr. Copeland's
question of how that could be. Mr. Copeland recalls Mr. Matthews saying
that he and Mr. Copeland would "carry it (the memorandum) to Mr. Cade."
(TR 16). Mr. Copeland told Ms. Hall that "Mr. Cade was going away on
vacation, asked her to hold it (the change) off until he returned." (TR
26). No other comments were made about this change because, according
to Mr. Copeland, the matter "had to be passed on to Mr. Cade," as the
"representative." (TR 26, 20). Mr. Copeland's testimony is credited.
14. Mr. Copeland and Mr. Matthews have never negotiated changes in
the assignment of employees, although such matters have been explained
to them at meetings with management, and they have "talked about it."
(TR 35). It has been a "standard of practice," in the Dietetics
Service, "to have regularly scheduled monthly consultation meetings with
the union committeemen, Mr. Copeland and Mr. Matthews . . . ." (TR 89).
At these meetings "any changes that management was thinking of making"
have been brought up. (Tr 89). If there is a need, between monthly
meetings, to make a change, special meetings are held to "tell them
about proposed changes." (TR 89). Discussions were held at the meetings
and, as a result, Ms. Hall did, "on occasion, reach compromises or
agreement with the committeemen." (TR 90). Over the past eight years,
Ms. Hall's experience has been that "99 percent of the time the
discussions were held with the two committeemen (without Mr. Cade being
involved)." (TR 90).
15. On June 24, at a regular weekly meeting between the Union's
Committeemen and its Representative, Mr. Copeland and Mrs. Matthews
informed Mr. Lynk of the proposed change in tour of duty. Mr. Lynk told
them that he would bring the matter up at the regular weekly meeting
with management. Mr. Cade was apparently out of town at this time.
That afternoon Mr. Lynk met with S. K. Tsugawa, Chief of the Personnel
Service. Mr. Lynk was given a copy of the minutes of the June 17
meeting (see finding 13, supra) and discussed, as new business, the
abolishment of the 11:30 a.m. shift in Dietetic Service. The minutes of
the meeting, written by Mr. Tsugawa, record that:
Local 73 wishes to discuss the impact of this change and asked
that implementation on July 13, 1980, be postponed. Meeting
between Mr. Cade and Chief, Dietetic Service will be scheduled
when Mr. Cade returns next week.
(GC 5). Mr. Lynk recalls that Mr. Tsugawa said he "would look into this
and check with the chief of dietetics and get back to me." (TR 39). Mr.
Tsugawa was not called as a witness. Mr. Lynk seemed sure of his facts;
and his recollection is credited.
16. On June 25, at the regular monthly meeting of Ms. Hall with the
two Committeemen, no discussion was had on the change of tour of duty
set for July 13. Nor did Ms. Hall have any other discussions with the
two Committeemen following the June 17 special meeting.
17. On Tuesday of each week the Union and the Hospital hold a
meeting. Such a meeting occurred on July 1. Mr. Cade was back for this
meeting. He advised the management officials at the meeting that he was
the Union's "chief spokesman and that (he) was going to negotiate this
particular provision (the shift change)." (TR 53-54). He asked that a
"hold" be put on the abolishment of the 11:30 a.m. tour of duty "until
we could negotiate" and that he "would charge her (Ms. Hall) with an
unfair labor practice if she pursued this without negotiating." (TR 40).
Mr. Tsugawa and Mr. Stephens, Assistant Director of Hines Hospital,
represented the Hospital at the meeting. Mr. Stephens replied that he
"would look more into the matter and get back to (Mr. Cade) on it. (TR
50). The minutes of the meeting, taken by Mr. Tsugawa, record that:
Mr. Cade indicated that this tour was established as a result
of discussion between Local 73 and the hospital to provide for
night differential for employees. He complained that no
discussion took place before decision was made to explain the
tour. Hospital assured Mr. Cade that the Chief, Dietetic Service
was prepared to meet with him and a meeting was scheduled for
Tuesday, August 5, 1980 at 10:00 a.m.
(GC 6.1). Mr. Cade was under the impression that management was going
to "negotiate" the matter, at the August 5 meeting, after he returned
from his vacation, which was to begin July 7 and end July 28. (TR 50,
53 and GC 6.1). He also was given the impression that management was
"going to delay (the change in shift) until that time (August 5)." (TR
51).
18. Mr. Lynk was in charge of the Local's affairs for the Hines
Hospital bargaining unit while Mr. Cade was on vacation. On July 11,
Mr. Lynk contacted Ms. Hall, told her that he had discussed the proposed
change with Personnel, and "that I would like for her to put a hold on
this until the union representative returned." (TR 42-43). She informed
him that she was going to go ahead with it. He replied that: "If you
do this, the only thing we can do is file an unfair labor practice." (TR
43). She replied: "You do what you have to do." (TR 43). She also
indicated that she was "willing to negotiate on the impact of this
change." (TR 94). Mr. Lynk heard nothing from Respondent prior to the
July 13 abolishment of the tour of duty.
19. On August 5, at 10:00 a.m., Mr. Cade met with Ms. Hall. Mr.
Tsugawa, Mr. Copeland and Mr. Matthews were also present at this special
meeting. Ms. Hall gave her reasons for the change, namely that there
were not enough employees coming in at 11:00 a.m., and no need for
employees to stay beyond 8:00 p.m. /5/ Mr. Cade expressed his concern
over the loss of night-differential pay by the employees, as a result of
the change, and suggested the use of part-time help to cover the 11:00
a.m. to 11:30 a.m. needs. He complained that no negotiation had taken
place prior to the changes. Ms. Hall took the position that she had
presented the proposed change to the two Committeemen, on June 17, and
they had not requested a discussion of it. /6/ She refused a request of
Mr. Cade that the old tour of duty be restored. Mr. Cade reiterated the
necessity of filing an unfair labor practice complaint to resolve the
matter.
20. On August 5, at 1:15 p.m., Mr. Cade, Mr. Lynk and Mr. Tsugawa
met at the regular Tuesday union-management meeting. The minutes
reflect that discussion of the "cancellation of the 11:30 a.m. - 8:00
p.m. tour of duty in Dietetic Service" was again discussed. (GC 8.1).
Mr. Cade referred to some documents he had located in which the Union
asked to negotiate the change, /7/ and stated that he expected a
response from the Assistant Director at the meeting scheduled for the
following Tuesday. Mr. Cade also "advised that Committeemen and
Stewards from Dietetic Service are no longer authorized to meet and
consult or reach agreement on proposed changes in the service." (GC 8.1
and see TR 60). Prior to this time, Committeemen and Stewards had been
able to meet, consult, and reach agreement only after consulting with
Mr. Cade and "the committee" (TR 65), and being authorized to do so.
Mr. Cade was sure that management knew of the limited authority of the
Committeemen and Stewards. He recalled minutes of a 1977 meeting "where
Ms. Hall complained about the stewards having to bring matters to the
union before reaching agreement with her." (TR 66).
21. Mr. Cade "continuously tried to get them (Hines Hospital) to
realize their obligation to consult with us (the Union) and to negotiate
with us prior to filing the unfair labor practice complaint." (TR
57-58). The charge was filed on August 18.
ISSUES
The General Counsel formulates one issue-- whether, on or about July
13, Respondent proceeded, unilaterally, to implement a new tour of duty
in Hines Hospital's Dietetic Service without affording the Union ample
notice and/or an opportunity to bargain concerning the substance, impact
and/or implementation of such tour. (Br. GC 5).
Respondent formulates three issues-- first, whether a new tour of
duty was proposed and subsequently implemented on or about July 13;
second, whether the decision to abolish the 11:30 a.m. tour of duty and
reassign the employees who had been working that shift, was bargainable;
and third, whether the Union was afforded adequate notice and/or an
opportunity to bargain on impact and implementation. (Br. R 3).
DISCUSSION AND CONCLUSIONS
Following the formulation of the issues by Respondent and a study of
the record and the briefs, the answers are: No, a new tour of duty was
not proposed and implemented; No, the abolishment of the 11:30 a.m.
tour was not negotiable; No, the reassignment of the employees was not
negotiable; and No, the Union was not afforded an adequate opportunity
to bargain on the impact and implementation of the changes, although it
received adequate notice of them.
1. No new tour of duty was implemented on July 13.
On July 13, the 11:00 a.m. tour of duty had been an established work
shift, or tour of duty, for a substantial period of time. What happened
on July 13 was the abolishment of the 11:30 a.m. shift, and the
reassignment of employees to the already-existing 11:00 a.m. shift.
Augmenting an already-established shift, with more employees, does not
constitute the creation of a new shift.
2. The decision to abolish the third work shift and reassign more
employees to the second shift was not bargainable.
Section 7106(a) of the Statute provides, as to "Management rights,"
that:
Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
"(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and
"(2) in accordance with applicable laws--
"(A) to . . . assign . . . employees . . . ."
Section 7106(b) provides that:
Nothing in this section shall preclude any agency and any labor
organization from negotiating--
"(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any . . . tour of
duty, or on the technology, methods, and means of performing
works;
"(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
"(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by management
officials."
It has been held that: "Although some tours of duty must be
negotiated, an agency is not required to negotiate with respect to the
number of work shifts, and the duration of shifts, when they constitute
an essential and integral part of the 'staffing patterns' necessary to
perform the work of the agency." See page 6 of Judge Mason's decision in
Veterans Administration Hospital, Sheridan, Wyoming and American
Federation of Government Employees, AFL-CIO, Case No. 61-3226 (CA),
(7/18/77), affirmed A/SLMR No. 952 (12/6/77). In the Veterans
Administration case, the change involved a new tour of duty for nurses.
The case arose from a complaint of an unfair labor practice under
Executive Order 11491, which, like the Statute, reserves to management
the right to determine its "organization" and the "numbers, types, and
grades of positions or employees assigned to an organizational unit,
work project or tour of duty . . . ."
Hines Hospital has not elected to bargain about "organization" or
"number of employees assigned to a . . . tour of duty." See Article IV,
paragraph 2 of the contract, quoted in finding 3c, supra. /8/ In making
the July 13 change, the Chief Dietician of Hines Hospital make a
judgment, based on the recommendations of her supervisory staff, that
more employees were needed on the 11:00 a.m. shift, in order to
accomplish the complete meal-serving function. This function includes
the selection of the proper foods for 65 percent of the total number of
patients, who are on modified diets. The abolished third shift was
composed primarily of WG3 employees, the grade level of employee that is
trained and skilled enough to select the proper diet items for each
tray. Yet these third-shift employees were coming in at a time (11:30
a.m.) when it was too late for them to use their skills. By 11:30 a.m.
the trays had been filled and were ready to move on to the patients. A
half-hour delay in serving meals could pay havoc with appointments for
therapy, tests, and the schedules of doctors making their rounds. Thus,
it must be concluded that the judgment made by Hines Hospital's Chief
Dietician involved a matter which is an "essential and integral part of
the 'staffing patterns' necessary to perform the work of the agency."
Veterans Administration, ibid.
Other cases arising under Executive Order 11491 are cited by the
General Counsel, at pages 5-7 of his brief, where "staffing patterns"
were found not to be involved. They are factually distinguishable.
One, Department of the Treasury, Internal Revenue Service, Chicago,
Illinois, A/SLMR No. 962 (1/6/78), involved revenue agents and clerks in
the audit division of a district office of the Internal Revenue Service,
and a change from two shifts, one beginning at 8:00 a.m. and one
beginning 15 minutes later, to one shift, beginning at the earlier time.
The reasons for the change were (1) to avoid the confusion where
employees who worked together separated and departed at different times
and (2) to make it easier to contact employees when all started to work
at the same time. How the change impacted on the audit function of the
agency is obscure.
Another case cited is South East Exchange Region of the Army and Air
Force Exchange Service, Columbus, S.C., A/SLMR No. 656 (5/28/76). It
involved changing the hours of work of storage-and-receiving employees
at an agency warehouse, by starting and ending the workday one-half hour
earlier. The reason for the change was that "at times" the receiving
employees had not pulled enough merchandise for the shipping employees
to begin their work, when they reported one and one-half hours later.
Thus, shipments would be delayed, "at times." In the instant case, there
is a probability, at least, that the delays in meal service, would be
more than just an occasional occurrence and would be far more disruptive
of the agency's work.
The General Counsel also relies on National Treasury Employees Union
Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1
FLRA 106 (9/13/79). In the cited case, the Taxpayer Assistance Section
had two starting and quitting times, 50 minutes apart. The union
proposed a third, that fell within the range of the existing ones. The
Authority characterized the proposal as a "relatively minor adjustment."
See page 4 of the decision. It was held that the Internal Revenue
Service failed to demonstrate that the proposal would be determinative
of the numbers, types, or grades of employees or positions, and
consequently negotiable only at the election of the agency. A duty to
bargain was found.
A more recent case of the authority relied upon by the General
Counsel is National Federation of Federal Employees, Local 1789 and
Department of Housing and Urban Development, St. Louis Area Office, St.
Louis, Missouri, 4 FLRA No. 94 (12/3/80). (Br. GC 7). This case
involves a union's proposal for flexitime. The agency argued that the
proposal was inconsistent with an agency regulation for which a
compelling need existed, under Section 7117(a)(2) of the Statute. The
Authority ruled that the agency failed to support its allegation of a
compelling need. No such issue is involved here.
3. The Union was not afforded adequate opportunity to bargain over
the impact and implementation of the changes made on July 13.
Hines Hospital gave notice of the proposed July 13 change to the
Union Committeemen on June 17, and to the Union's Assistant
Representative, on June 24 and, on July 11, Ms. Hall notified the
Union's Assistant Representative that the July 13 implementation date
would not be changed. Hines Hospital notes that the contract only
requires a two-week notice before a change in an established tour of
duty is implemented. Based on these three notices, Hines Hospital
contends that "adequate notice was given to the Union" that the Union
"unreasonably delayed in this matter," and that it "ought to be estopped
from alleging a violation." (Br. R 10, 11 and 12).
While the notice given was adequate, the record made in this case
does not support the contention of unreasonable delay on the part of the
Union in negotiating the impact and implementation of the changes.
Hines Hospital knew that Mr. Cade wanted to negotiate the matter, and
that he was going on a vacation. Hines Hospital informed him that it
was scheduling a meeting on the matter for August 5, after he had
returned. There is no evidence that the Union was advised of any
emergency concerning the implementation date, which would require Union
action before August 5.
Hines Hospital argues that "(b)ased on past practice, the Dietetic
Service's management thought that the two committeemen (Copeland and
Matthews) had authority to discuss and negotiate changes within that
service" (Br. R 11); and it notes that the Committeemen made no attempt
to discuss the tour abolishment and employee reassignment, scheduled for
July 13, after being notified of the proposed change, on June 17. (Br.
R. 10). The argument, that such a past practice existed, is bolstered
by Mr. Cade's announcement, on August 5, that those two Committeemen
were "no longer authorized to meet and consult or reach agreement on
proposed changes in the service." See finding 20, supra. Nevertheless,
in the instance here at issue, it was made clear to responsible Hines
Hospital representatives, that Mr. Cade was assuming the responsibility
as chief spokesman for the Union on the proposed change affecting the
bargaining unit. See findings 13, 15, 17, and 18, supra. The contract
clearly provides that, as Union Representative, Mr. Cade could take over
this responsibility from Committeemen; and Ms. Hall and Mr. Tsugawa
participated in the negotiation of the contract. See findings 2 and 3a,
supra. Ms. Hall admits that at least 1 percent of the time, Mr. Cade
became involved in discussions. See finding 14, supra. And when the
11:30 a.m. shift was first established, in 1977, Ms. Hall apparently
knew that discussions which began with the Committeemen, were taken over
by Mr. Cade; and the Personnel Officer and Director of Hines Hospital
certainly knew. See finding 12, supra.
Respondent cites several cases where a complaint of an unfair labor
practice was dismissed for failure of proof that a union had requested
bargaining. See Department of Health, Education and Welfare, Social
Security Administration, BRSI, Northeastern Program Service Center,
A/SLMR No. 984 (2/6/81); Keesler Technical Training Center, Keesler Air
Force Base, Mississippi, FLRC No. 74A-84 (5/6/75); and Department of
the Navy, Portsmouth Naval Shipyard, A/SLMR No. 508 (4/29/75) affirming
the decision of Judge Chaitovitz in Case No. 31-7515 (CA). No such
failure of proof occurs here, where it was shown that a request was
made, several times, prior to the implementation date of the change.
See findings 15, 17 and 18, supra.
Hines Hospital also argues that it "could not postpone implementation
(of the July 13 reassignment because) its July vacation scheduling was
at its height;" and management "could not afford to wait" in view of
"its mid-day meal serving function." (Br. R 11). The importance of
performing the meal serving function, on time, is undisputed and
recognized. But so is the statutory duty of good faith bargaining. Had
Hines Hospital advised Mr. Cade of the urgency of implementation on July
13, he could have postponed his vacation, or authorized the Assistant
Representative to take over the bargaining. So far as this record
reveals, he was not so advised. Therefore, Hines Hospital cannot take
refuge under this shelter, to avoid a finding that an unfair labor
practice has occurred.
It is well settled, in the area of Federal service labor-relations
law, that "the right to engage in a dialogue with respect to matters for
which there is an obligation to meet and confer becomes meaningful only
when agency management has afforded the exclusive representative
reasonable notification and an ample opportunity to explore fully the
matters involved prior to taking action." Federal Railroad
Administration, A/SLMR No. 418 (7/31/74). See page 7 of that Decision
and Order. Ample opportunity was not afforded the Union by Hines
Hospital, in this case.
4. The remedy.
In addition to the usual cease and desist and posting order, the
General Counsel here urges an order to restore the working hours and
work schedule, in effect prior to July 13, and the night-shift
differential pay which the employees would have earned on the 11:30 a.m.
shift, from July 13 until the shift is reinstituted. Since Hines
Hospital did not have to bargain over the substance of the change in
working hours, or the reassignment of the employees, a back pay order is
deemed to be inappropriate. As for restoring the third shift, this
would be disruptive of the hospital's schedule, and might even disrupt
the activities of the involved employees who, by now, may have adapted
satisfactorily to the new work schedule. The remedy will, therefore, be
limited to a cease-and-desist order and the usual type of notice
posting.
MOTION GRANTED TO CORRECT THE TRANSCRIPT
On February 9, 1981, the General Counsel moved to correct the
transcript in the following particulars:
Page 5, lines 4-5 from "General Service Employees Union" to "Service
Employees International Union"
Page 6, line 2, from "Counsel to" to "Counsel agreed to"
Page 7, line 24, from "shift and" to "shift in"
Page 8, line 9, from "representative on" to "representative, Mr.
Cade, on"
Page 8, line 9, from "the issue agreed" to "the issue was to agree"
Page 8, line 17, from "Section 701681 and 5" to "Section 7116(a)(1)
and (5)"
Page 8, line 24, from "in our closing briefs" to "in our post-hearing
briefs"
Page 81, line 3, from "bargaining unit" to "bargaining agent"
Page 96, from "if impacts or" to "or if impacts are otherwise" The
motion was served on all the parties, none of whom has objected.
Accordingly, pursuant to 5 CFR 2423.19(r), the transcript stands
corrected, as moved, except as to the designation of lines on page 8.
The first page 8 correction is to line 10, not to line 9. The page 96
correction is on line 11.
ORDER
Pursuant to Section 7118(a)(8) of the Statute, it is ordered that the
Veterans Administration, Hines Hospital, Hines, IL:
1. Cease and desist from:
(a) Instituting any future change in tours of duty and
reassignments involving employees represented exclusively by the
Service Employees International Union, Local No. 73, AFL-CIO, or
any other exclusive representative of its employees, without first
notifying its exclusive representative of the proposed change and
then affording it an opportunity to meet and confer, to the extent
consonant with law and regulations, on the procedures which
management will observe in implementing the change and
reassignment and on the impact such change and reassignment will
have on adversely affected unit employees.
(b) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise by the
employee of any right assured by the Federal Service
Labor-Management Relations Statute, or refusing to consult and
negotiate in good faith with the exclusive representative of its
employees as required by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose of the Statute:
(a) Upon request, meet and confer with the Service Employees
International Union, Local 73, AFL-CIO, to the extent consonant
with law and regulations, concerning the procedures which
management observed in implementing the July 13, 1980, abolishment
of the 11:30 a.m. tour of duty for food-service employees in the
Dietetic Service and the reassignment of those employees, and the
impact of the abolishment and reassignment upon adversely affected
unit employees.
(b) Post at Hines Hospital, Hines, IL copies of the Notice
appended to this Decision. Copies of the Notice will be furnished
by the Regional Director of Region 5, after it is signed by an
authorized representative of Hines Hospital. The copies shall be
posted, immediately upon receipt, and maintained for 60 days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the 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.
(s) Isabelle R. Cappello
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 30, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE PURPOSE OF CHAPTER
71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any future change in tours of duty and
reassignments involving employees represented exclusively by the Service
Employees International Union, Local 73, AFL-CIO, or any other exclusive
representative of its employees, without first notifying the exclusive
representative of the proposed change and then affording it an
opportunity to meet and confer, to the extent consonant with law and
regulations, on the procedures which management will observe in
implementing the change and reassignment and on the impact such change
and reassignment will have on adversely affected unit employees.
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
Federal Service Labor-Management Relations Statute, or refuse to
consult, confer, or negotiate with the exclusive representative of our
employees, as required by the Statute.
WE WILL, upon request, meet and confer with the Service Employees
International Union, Local 73, AFL-CIO, to the extent consonant with law
and regulations, concerning the procedures which management observed in
implementing the July 13, 1980, abolishment of the 11:30 a.m. tour of
duty for food-service employees in the Dietetic Service and the
reassignment of those employees, and the impact of the abolishment and
reassignment upon adversely affected unit employees.
(Agency or Activity)
Dated:
By:
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region 5, Federal Labor Relations Authority, whose
address is: 175 W. Jackson Blvd., Suit A-1359, Chicago, IL, 60604.
--------------- FOOTNOTES$ ---------------
/1/ On page 4 of her Decision, the Judge found that the number of
food-service employees totalled 164 prior to July 13, 1980 and that by
that date there had been a net loss of 45 positions from the group. The
record, however, indicates that, as of the date of the hearing, there
was in fact a total of 164 food-service employees, a group which had
been reduced from a total of 209 positions over the past several years.
While this does not affect the ultimate disposition of the instant
proceeding, it is hereby corrected.
/2/ Section 7106(b)(1) provides:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/3/ Section 7116(a)(1) makes it an unfair labor practice for an
agency "to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter."
Section 7102 gives each employee "the right to form, join, or assist
any labor organization . . . (and e)xcept as otherwise provided under
this chapter, such right includes the right--
(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and
(2) to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter."
Section 7116(a)(5) makes it an unfair labor practice for an agency
"to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter."
/4/ The General Counsel's exhibits will be referenced as "GC;" the
Respondent's as "R;" the transcript as "TR;" and the briefs as Br. GC"
and "Br. R". Multipage exhibits will be referenced by the exhibit
number, followed by the page number. All dates referenced are in 1980,
unless otherwise indicated.
/5/ At the hearing, Counsel for the General Counsel expressed the
view that the need to increase the number of employees coming in at
11:00 a.m. was not an issue that had to be decided in this case. See TR
79.
/6/ See finding 13, supra, in which I credit the testimony of Mr.
Copeland, that he asked Ms. Hall to hold off on the change, until Mr.
Cade returned. Mr. Copeland seemed much surer of the facts of this
meeting than Ms. Hall. Also Mr. Copeland's testimony is consistent with
a post occurrence, when Mr. Cade took over similar negotiations. See
finding 12, supra.
/7/ The documents referred to were apparently the minutes taken by
Mr. Tsugawa, at the June 24 and July 1 meetings. See findings 15 and
17, supra.
/8/ The contract's denomination of "assignment of work shifts and
tours of duty," as example of a area that is subject to negotiation, is
not clear. See Article IV, paragraph 1 quoted in finding 3c, supra.
Neither party has relied upon or mentioned this paragraph in their
arguments or briefs.