[ v20 p857 ]
The decision of the Authority follows:
20 FLRA No. 107 DEPARTMENT OF THE AIR FORCE SCOTT AIR FORCE BASE, ILLINOIS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Charging Party Case No. 5-CA-20109 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General the Charging Party and the Respondent filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the exceptions of the General Counsel and the Charging Party. 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, conclusions and recommended Order, only to the extent consistent herewith. In reaching his conclusion that the Respondent had not violated section 7116(a)(1) and (5) of the Statute, the Judge found that the change of hours for the Battery Shop, which employed only one employee, from the hours of 3:00 a.m.-- 11:30 a.m. to the hours of 7:00 a.m. -- 3:30 p.m., constituted a change in the starting and quitting time of an employee on an established shift which he found to be a negotiable matter under the Statute. The Judge relied on U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982) and Internal Revenue Service, Los Angeles District, 10 FLRA 653 (1982), in which the Authority concluded that where an agency fails to establish that a change in the starting and quitting times of employees on an established shift is integrally related to and determinative of the numbers, types and grades of employees or positions assigned to a tour of duty, the change constitutes a negotiable condition of employment. Contrary to the Judge's finding, the Authority concludes that the change of the Battery Shop attendant's hours constituted, in effect, the abolishment of his prior tour of duty and the establishment of a new tour which was more closely aligned with the normal tour of duty worked by most Scott Air Force Base employees, rather than simply a change in his starting and quitting time as found by the Judge. Thus, the Authority finds the Judge's reliance on U.S. Customs Service, Region V, New Orleans, Louisiana and Internal Revenue Service, Los Angeles District to be misplaced inasmuch as both cases involved mere changes in the starting and quitting times of employees on an established shift. Rather, the Authority views its decision in National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 16 FLRA No. 131 (1984) to be applicable to the facts of this case. In U.S. Naval Observatory the Authority concluded that a union's proposal to maintain a tour of duty to which two employees had been assigned to start work at a significantly later time than the other agency employees, did not concern an adjustment of the starting time of a single tour of duty, but rather the retention of a separate tour of duty which the agency had decided to abolish based on operational necessity. Thus, the Authority concluded that the union's proposal, by fixing a starting time significantly later than the starting time of the other employees in the organization and by identifying the two employees who would start work at the later hour, was directly related to the numbers, types and grades of employees assigned to a tour of duty within the meaning of section 7106(b)(1) of the Statute and was therefore negotiable only at the election of the agency. /1/ Similarly, in the instant case, as a result of the Respondent's decision to significantly change the hours of operation of the Battery Shop based on operational necessity and for the safety of the attendant, the Union sought through negotiations to reinstate the Battery Shop attendant's previous schedule. /2/ Moreover, the Union's proposed reinstatement of the prior schedule also identified the employee inasmuch as he was the only one assigned to the Battery Shop. Accordingly, and noting particularly that the change in the Battery Shop attendant's hours constituted the abolishment of his previous tour of duty and that any proposal to reinstate that tour would in effect involve fixing a new tour of duty at a significantly earlier starting time than that worked by other employees as well as identifying the employee who would work those hours, the Authority concludes that such decision was integrally related to and thus determinative of the numbers, types and grades of employees or positions assigned to a tour of duty and was therefore negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Therefore, the Respondent was not required to bargain as to the decision to change the employee's tour of duty. As noted below, however, under certain circumstances agency management is obligated to notify an exclusive representative and bargain upon request concerning the procedures to be observed in implementing changes in tours of duty and over appropriate arrangements for employees adversely affected thereby. We next consider whether such a duty to bargain arose in the circumstances of this case. Subsequent to the issuance of the Judge's Decision, the Authority 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." (Footnote omitted.) U.S. Government Printing Office, 13 FLRA 203, 204-05 (1983). The Authority thereafter held 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." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). The Authority has also held that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees 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. /3/ 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 duty to bargain 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. Turning to the facts of the instant case, the Authority finds, based upon the totality of the facts and circumstances presented herein, that the impact or reasonably foreseeable impact of the change involved was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to negotiate with the Union pursuant to section 7106(b)(2) and (3) of the Statute. In reaching this result, the Authority notes that the change in the hours for the Battery Shop operation affected only one employee. As a result, he was required to work from 7:00 a.m. to 3:30 p.m. rather than from 3:00 a.m. to 11:30 a.m. Further, with respect to the nature of the change in tour of duty, the actual duties of the one employee involved were not affected in any manner. However, the change in tour of duty did result in the loss of certain nightshift differential pay. To reduce the impact of this loss of differential pay, the Respondent delayed the implementation of the change in the employee's tour of duty until January 11, 1982, at which time a general pay raise took place. Furthermore, the Authority notes that while the change in question was permanent, it affected only one employee in a bargaining unit which is essentially base-wide. Based on the totality of facts and circumstances presented in this case, and noting particularly the overall limited nature of the change in tour of duty and the fact that only a single employee was affected in an essentially base-wide bargaining unit, the Authority concludes that the impact or reasonably foreseeable impact of the change on the conditions of employment of bargaining unit employees was no more than de minimis. /4/ Accordingly, the Respondent was under no obligation to negotiate with the Union pursuant to section 7106(b)(2) and (3) of the Statute, and its implementation of the change in the employee's tour of duty therefore was not violative of section 7116(a)(1) and (5) of the Statute. /5/ ORDER IT IS ORDERED that the complaint in Case No. 5-CA-20109 be, and it hereby is, dismissed. Issued, Washington, D.C., December 13, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See also Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA No. 144 (1984). /2/ As record testimony establishes, this starting time was significantly earlier than the starting time of the majority of the employees in the organization. /3/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also 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. /4/ See, e.g., Federal Aviation Administration, 20 FLRA No. 45 (1985); Veterans Administration Medical Center, Phoenix, Arizona, 20 FLRA No. 42 (1985); Department of Housing and Urban Development, Columbia Area Office, Columbia, South Carolina, 20 FLRA No. 31 (1985); Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 20 FLRA No. 10 (1985). /5/ In view of this conclusion, the Authority finds it unnecessary to pass upon the Judge's other findings, especially as to whether or not the Union properly invoked the services of the Federal Service Impasses Panel. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Charging Party Lt. Colonel Gordon B. Finley, Jr. and Major Lawrence W. Kelly For the Respondent Quentin R. Rakestraw, Esq. For the Charging Party Claire R. Morrison, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq. Upon an unfair labor practice charge filed by the National Association of Government Employees, Local R7-23 (herein referred to as the Union) against the Department of the Air Force, Scott Air Force Base, Illinois (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region V, issued a Complaint and Notice of Hearing on December 14, 1982 alleging Respondent refused to negotiate in good faith with the Union by changing the hours of operation of its Battery Shop and the duty hours of employee Robert Porter without having completed negotiations with the Union concerning the substance, impact and implementation of the change. A hearing on the Complaint was conducted on February 17, 1983 at which time all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been duly considered. Upon the entire record in this matter, my observations of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein the Union has been the exclusive collective bargaining representative for various of Respondent's employees, including Battery Shop employee Robert L. Porter. In September and October 1981 Respondent reviewed certain of its operations with a view to improving its maintenance posture. Based upon that review Respondent concluded that some reorganization should be effectuated, including changing the hours of operation of the Battery Shop. At that time the Battery Shop employed one employee, Robert L. Porter, whose tour of duty was from 3:00 a.m. to 11:30 a.m. Porter's responsibilities included distributing serviceable batteries and receiving returned unserviceable batteries used in various operations at the facility. Respondent determined that by changing the hours of operation of the Battery Shop by having the shop open between the hours of 7:00 a.m. and 3:30 p.m., both the availability of batteries during peak usage hours would be improved and the safety of the Battery Shop attendant would be enhanced. /1/ Accordingly, by letter dated October 21, 1981 Respondent notified Porter that effective November 15 the Battery Shop tour of duty would be changed to 7:00 a.m. to 3:30 p.m. and provided Porter with the reasons for the change. Porter passed this information on to Union President Carl Denton /2/ and, by letter to Respondent's Civilian Personnel Office dated October 23, 1981, Denton requested that Respondent ". . . negotiate to the fullest extent allowable by law . . ." on the matter. Denton further suggested that the present working hours be continued until the parties mutually agreed to change them. Respondent thereafter requested that the Union submit written proposals on the subject upon which negotiations could proceed. The change was not implemented and, by letter dated November 19, 1981 to Respondent, the Union submitted ten proposals on the subject, including the proposal that Porter's hours remain as they were. On December 1, 1981 representatives of Respondent and the Union met and considered the matter. Management and the Union presented their views and discussed the change but were unable to come to agreement. The Union was substantially concerned over the economic impact of Porter losing the night pay differential he had been receiving, as well as various environmental aspects of the job, and proposed that the change in hours be delayed for six months. Management countered that it was willing to delay the change until after January 1 when a general pay raise was to take affect but was unwilling to postpone the change beyond that time. The parties acknowledged they were at impasse and the meeting was terminated. On December 23, 1981 Respondent gave the Union a "Notice of Intent" which, after noting the parties had reached impasse on December 1, indicated, inter alia, that Porter's hours would be changed on January 10, 1981 to allow him ". . . time to make whatever personal adjustments he considers necessary." The Union responded on December 23 acknowledging impasse in negotiations but objecting to the intended change, stating: "We have no choice but to notify the FSIP and the FMCS that we desire to have their services in this matter." The Union requested Respondent ". . . maintain the status quo and help us enlist the help of the FMCS as soon as possible." On that same day Union President Denton sent the following letter by certified mail to the Federal Mediation and Conciliation Service (FMCS) noting on the bottom of the letter that copies were also sent to Respondent and the Federal Service Impasses Panel: /3/ "The undersigned union representative has been negotiating with management at Scott Air Force Base, Illinois over the duty hours of a bargaining unit employee. We are now at impasse and request that you provide your services as soon as possible to help resolve the matter." In addition, on the same day Denton sent the following letter to the Federal Service Impasses Panel (FSIP), with a copy to Respondent and the FMCS: /4/ "The undersigned union representative has been engaged in negotiations with management at Scott Air Force Base, Illinois over the duty hours of one Mr. Robert Porter. I requested the aid of the FMCS in this matter and am notifying you of the situation and the union's desire for management to maintain the status quo during the impasse procedures." On January 8, 1982 Respondent sent a letter to the Union which stated: "1. Be advised that it is our intent to petition the Federal Services Impasses Panel for a post implementation decision regarding the matter of Mr. Robert L. Porter's duty hours. In this regard, management will abide by the decision. "2. The duty hours of Mr. Porter will be changed as previously stated in our letter dated 23 December 1981, Subject: Notice of Intent: Change of Duty Hours, Battery Shop (375 CAMS/MAF)." (Emphasis in the original). At no time after the Union's initial letters to the FSIP or FMCS did the Union or Respondent have any further communication to or from either the FSIP or the FMCS. On January 11, 1982 Respondent changed the hours of operation of the Battery Shop and the duty hours of employee Robert Porter as previously announced. Discussion and Conclusions The General Counsel and the Union contend that Respondent was obligated to bargain in good faith with the Union on the substance, impact and implementation of the change in hours and was precluded from effectuating the changes upon the Union's invoking the processes of the FSIP. Respondent denies it was obligated to bargain with the Union about the substance of the change and contends that it was a management right under the Statute to effectuate the change and avers that, in any event, the Union failed to properly or sufficiently invoke the processes of the FSIP. /5/ It is well settled that starting and quitting times of employees on an established shift is a condition of employment and an employer violates the Statute by not affording its employees' exclusive representative opportunity to negotiate fully on the decision to change the shift hours. U.S. Customs Service Region V New Orleans Louisiana, 9 FLRA No. 15 (1982) and Internal Revenue Service Los Angeles District, 10 FLRA No. 107 (1982). Accordingly, Respondent's contention to the contrary is rejected. I further reject Respondent's contention that the matter was nonnegotiable since it was exercising a management right under 7106 of the Statute. U.S. Customs Service and Internal Revenue Service, supra. The law under the Statute is similarly clear that an agency or activity may not implement impassed proposals while resolution of such impassed proposals is pending before the FSIP. /6/ However, I conclude that the facts herein do not establish that the Union effectively invoked the processes of the FSIP after impasse in negotiations and Respondent's notice to the Union on December 23, 1981 that it would effectuate the change in duty hours in the Battery Shop on January 10, 1982. While the Union's letter of December 23 to the FMCS requested that agency's services to resolve the impasse, the letter to the FSIP simply notified the FSIP ". . . of the situation and the union's desire for management to maintain the status quo during impasse procedures." Thus, the literal language of the Union's letter to the FSIP did not request the FSIP to intervene in the matter but, rather, merely supplied the FSIP with a status report of the situation. Further, the regulations governing FSIP involvement were not followed if it was the Union's intent to invoke the processes of the FSIP. Section 2471.3(a) of the Authority's Rules and Regulations governing requests for FSIP consideration of an impasse provides that the request include specific information such as the statements of issues at impasse, the summary positions of the parties and information regarding the number, length and dates of negotiation and mediation sessions. However, the Union's letter of December 23 did not contain such information nor did the Union furnish this data to the FSIP at any other time. Moreover, the FSIP did not acknowledge receipt of the Union's letter nor in any way suggest that it was aware that its assistance was being sought. In such circumstances I must infer that the FSIP did not conclude that its processes were, in fact, invoked by the Union's letter of December 23. In the particular circumstances herein, including the fact that in the almost 14 months which transpired between the Union's letters to the FSIP and the FMCS, no further communication was made between the Union or Respondent and those agencies, /7/ I conclude that after impasse the Union did not invoke the processes of the FSIP and the matter was not before the FSIP. Therefore, since after impasse the FSIP's processes were not invoked Respondent was privileged to implement the change under consideration herein. Accordingly, in view of the entire foregoing it is recommended that pursuant to 5 C.F.R. 2423.29(c), the Authority issue the following: ORDER IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-20109 be, and hereby is dismissed. (s)--- SALVATORE J. ARRIGO Administrative Law Judge --------------- FOOTNOTES$ --------------- /1/ Respondent was concerned over the safety of the Battery Shop attendant in that insufficient assistance was available to the attendant between the hours of 3:00 a.m. and 7:00 a.m. in the vent of an accident due to the small small number of the other employees working during those hours. /2/ Porter was a Union Steward at this time. /3/ A return receipt indicates that the FMCS received correspondence form the Union on December 28, 1981. /4/ The letter was sent by regular mail and no evidence of receipt by FSIP was provided at the hearing. /5/ Respondent also contends that it was "contractually obliged" to effectuate the change. I find such contention to be unsupported by the language of the contract or any other evidence presented in this case. Similarly, I reject Respondent's contention that any "overriding exigency" was present herein which would privilege Respondent to act if the matter was, in fact, properly before the FSIP. /6/ U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 (1981). /7/ Neither the General Counsel nor the Union sought to explain why, if the Union was genuinely seeking FSIP and FMCS intervention in this matter, it did not communicate with those agencies after the initial letters of December 23 were sent.