[ v20 p399 ]
The decision of the Authority follows:
20 FLRA No. 42 VETERANS ADMINISTRATION MEDICAL CENTER PHOENIX, ARIZONA, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2382, AFL-CIO Charging Party Case No. 8-CA-20416 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts, accompanying exhibits, and contentions of the parties, the Authority finds: The complaint alleges that the Respondent unilaterally implemented a change in working conditions by reassigning a unit employee, Charles Works, to different job duties without first affording the Charging Party notice and an opportunity to bargain concerning the impact and implementation of such reassignment in violation of section 7116(a)(1) and (5) of the Statute. /1/ The General Counsel contends that the reassignment resulted in changes in Works' conditions of employment because his duties and work schedule changed, and therefore the Respondent was required to negotiate as to procedures and appropriate arrangements concerning the adverse effect of its decision to reassign him. Respondent argued that there was not duty to bargain over the impact of its reassignment because the reassignment affected only one employee and had no "substantial impact" on unit employees' conditions of employment. The American Federation of Government Employees, Local 2382, AFL-CIO (Union), was recognized as the exclusive representative of Respondent's nonprofessional employees in 1965. In 1979, this unit became part of a nationwide consolidated unit of Veterans Administration nonprofessional employees exclusively represented by the American Federation of Government Employees, AFL-CIO. At all times material herein, no collective bargaining agreement has been in effect for the consolidated unit. On or about June 29, 1982, Charles Works, a bargaining unit employee, was informed that he would be reassigned from his position as Supply Clerk in the Personal Property Management Section to a Medical Supply Technician position in the Supply Processing and Distribution Section. The reassignment was to be effective July 25, 1982. In a letter dated July 15, 1982, the Union requested bargaining on the procedures and appropriate arrangements of Works' reassignment. The Respondent denied this request in a letter dated the same day on the ground that the reassignment caused no change in any general conditions of employment. On July 25, 1982, Works' old position of Supply Clerk was abolished and he began working as a Medical Supply Technician with no change in his grade, pay, number of hours per week or benefits. However, Works' job duties did change. In his previous position as a Supply Clerk, Works had catalogued non-expendable property, maintained replacement records and inventory account records, scheduled inventories, and assisted in determinations concerning the disposition of surplus personal property, including the appropriate documentation for every disposition action. In his new position, Works' duties include the supply and distribution of medical supplies throughout the hospital, sterilization of operating room equipment, and decontamination of soiled medical instruments and equipment. Works' schedule was also changed in his new position. Supply Clerks work from 7:30 a.m. to 4:00 p.m., Monday through Friday, with weekends and holidays off. Medical Supply Technicians work every other weekend and may be assigned, voluntarily or involuntarily, to work on holidays or on an evening shift. However, they are involuntarily assigned to work on the average of only one holiday per year, and spend 80% of their time on one shift. Works had worked in the Supply Processing and Distribution Section as a Medical Aid/Sterile Supplies (later retitled Medical Supply Technician) at the GS-4 level from August 15, 1976 through March 9, 1980. The Supply Processing and Distribution (SPD) Section is composed of 21 employees, of whom seven (7) are Medical Supply Technicians GS-5, 11 are Medical Supply Technicians GS-4, and three (3) are Medical Supply Aids GS-3. The Authority has previously held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The Authority thereafter held in Department of Health and Human Services, Social Security Administration, Chicago Region, 174(1984), that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." In order to determine whether the exercise of a management right will result in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /2/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106 of the Statute gives rise to a bargaining obligation under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. In applying the above factors to the instant case, the Authority finds that the impact or reasonably foreseeable impact of the Respondent's decision to reassign one employee was, given the totality of facts and circumstances presented in this case, no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures to be observed in implementing the change or on appropriate arrangements for employees adversely affected by the change. In reaching this result, the Authority notes that the nature of the change consisted of the reassignment of only one employee who worked in Respondent's Personal Property Management Section to that of Medical Supply Technician in Respondent's Supply Processing and Distribution Section. The reassignment was accomplished without any change in the employee's grade, pay, or required number of hours. Furthermore, the Authority notes that the certified unit herein is a nationwide consolidated unit which includes all of the nonsupervisory nonprofessional employees at Respondent's VA Phoenix Hospital Facility, and that only one of the employees represented in the nationwide consolidated unit was at all affected. Additionally, the Authority notes that while the employee's former position did not require him to rotate shifts or work on holidays, which are requirements of his new position, employees in his section are required to work only one holiday per year, and in fact spend approximately 80% of their time on the same shift. Finally, no evidence was presented to show a past practice with regard to negotiations concerning an analogous change in the past. Based on the totality of the facts and circumstances presented in this case, and for the reasons specifically noted above, the Authority concludes that the impact or reasonably foreseeable impact of the change in unit employees' conditions of employment affected by management's action was no more than de minimis. Therefore, the Respondent was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute. Accordingly, the complaint, alleging a violation of section 7116(a)(1) and (5) of the Statute, will be dismissed in its entirety. ORDER IT IS ORDERED that the complaint in Case No. 8-CA-20416 be, and it hereby is, dismissed. Issued, Washington, D.C., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented.