46:0471(41CA) - - VA Medical Center, Prescot, AZ and AFGE Local 2401 - - 1992 FLRAdec CA - - v46 p471



[ v46 p471 ]
46:0471(41)CA
The decision of the Authority follows:


46 FLRA No. 41

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL CENTER

PRESCOTT, ARIZONA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2401, AFL-CIO

(Charging Party/Union)

98-CA-10528

DECISION AND ORDER

November 4, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the work schedules of two bargaining unit employees without first notifying the Union and providing it an opportunity to bargain over the impact and implementation of the changes in working conditions.

For the reasons stated below, we find that the Respondent committed the unfair labor practices alleged.

II. Facts

The Union is the exclusive representative of a nationwide consolidated unit of employees of the Department of Veterans Affairs (also referred to as the Veterans Administration or VA) which includes employees at the VA Medical Center, Prescott, Arizona.

In August 1991, the Respondent changed the work schedules of two housekeeping aides, Ronald Lovin and Robert Shawley, on the 7:00 a.m. to 3:30 p.m. shift. Shawley had worked a workweek of Saturday through Tuesday for at least 6 years. The Respondent changed Shawley's workweek to Thursday through Sunday. Thus, Shawley's days off were changed from Wednesday, Thursday and Friday to Monday, Tuesday and Wednesday. Lovin had worked a workweek of Monday through Thursday for at least 1 year. The Respondent changed Lovin's workweek to Monday, Tuesday, Thursday and Friday. Thus, Lovin's days off were changed from Friday, Saturday and Sunday to Wednesday, Saturday and Sunday. The two employees' shift hours, job duties, pay rate, and overall pay were not changed. The changes in the employees' workweeks did not affect the job duties, pay, or shifts of other employees.

As a result of the Respondent's change in Shawley's workweek, Shawley's wife, who had waited for a significant period before she was eligible to have days off which coincided with Shawley's, had to again reschedule her days off. Also, Shawley had to arrange for paid supervision on Thursdays and Fridays of a minor who resides in his home. The change also had an impact on Shawley's part-time job, where he had arranged to work on his days off from the VA Medical Center.(*/)

The change in Lovin's workweek also had an impact on his spouse's schedule and his family's child care arrangements. Lovin had to arrange for child supervision on different days as a result of the change. Also, Lovin's spouse had to rearrange her schedule to accommodate the changes in child care arrangements.

The Respondent did not give the Union notice of the changes in Lovin's and Shawley's workweeks. At all times since August 1991, the Respondent has refused to bargain concerning the impact and implementation of the changes in Lovin's and Shawley's workweeks.

III. Positions of the Parties

A. Respondent

The Respondent asserts that the changes in the employees' workweeks constituted a legitimate exercise of management's rights under section 7106 of the Statute. The Respondent states that if, in exercising a management right, an agency changes conditions of employment and the changes result in an impact on unit employees that is more than de minimis and is reasonably foreseeable, an agency is obligated to provide adequate notice to the exclusive representative and, upon request, bargain over the impact and implementation of those changes. "While conceding for the moment that the change in one of Lovin's days off, and two of Shawley's, affected their respective working conditions," the Respondent "questions whether the reported collateral impact on each employee's spouse's responsibilities and child care needs was a reasonably foreseeable impact on the working conditions of unit members." Respondent's Brief at 4. The Respondent asserts that the claimed "impacts were not reasonably foreseeable, and had little, if anything, to do with working conditions of the unit employees." Id. The Respondent states that although it "would agree that certain changes may affect an employee's family or home situation in a way that impacts on his or her ability to do the job," no such "case has been made for foreseeable impact here." Id. at 5.

Additionally, the Respondent contends that the amount of impact or reasonably foreseeable impact on the working conditions of unit employees was no more than de minimis and, therefore, that it had no duty to provide the Union notice and an opportunity to bargain over the changes in Lovin's and Shawley's workweeks. Applying the standard set forth in Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA), the Respondent contends that the changes made to Lovin's and Shawley's days off had a de minimis impact on the working conditions of unit members.

B. General Counsel

The General Counsel asserts that, under the SSA standard, the Respondent's changes in Lovin's and Shawley's workweeks had more than a de minimis impact on unit employees and, therefore, the Respondent had a duty to bargain concerning the impact and implementation of its decision to change their workweeks. According to the General Counsel, the record evidence demonstrates that the impact of the Respondent's decision to change Lovin's and Shawley's workweeks was "marked" and "substantial[.]" General Counsel's Brief at 5 and 9. Further, the General Counsel contends that there is no evidence which suggests that the changes in Lovin's and Shawley's tours of duty were temporary in nature. The General Counsel also argues that the "type of impact experienced by the employees was of the exact type which would be foreseeable under the circumstances, and which has been recognized as the type of foreseeable impact which will be suffered by employees when changes to tours of duty are implemented." Id. at 6 (citing Department of the Air Force, Nellis Air Force Base, Nevada, 41 FLRA 1011 (1991) (Nellis Air Force Base) and Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 39 FLRA 1357 (1991) (Sacramento Air Logistics Center)). As a remedy, the General Counsel requests that the Respondent be ordered to rescind the changes in the employees' tours of duty upon request of the Union and be ordered to bargain with the Union concerning its decision to change the employees' tours of duty, as required by the Statute.

IV. Analysis and Conclusions

A. The Respondent Violated Section 7116(a)(1) and (5) of the Statute

"A 'tour of duty' is 'the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.'" Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 541 (1988) (quoting 5 C.F.R. § 610.102(h)), affirmed on other grounds National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). A change in an employee's tour of duty is a change in a condition of employment. Where an agency changes or establishes a tour of duty, it is obligated to notify the exclusive representative of affected employees and negotiate with the exclusive representative over the procedures the agency will observe when changing or establishing the tour of duty and appropriate arrangements for employees adversely affected by the exercise of management's right to change the tour of duty. See id. at 543.

In this case, the Respondent changed the employees' weekly tours of duty by changing the days of their administrative workweek. The Respondent refused and continues to refuse to bargain with the Union over the impact and implementation of the changes because the Respondent claims that the changes in the employees' tours of duty did not give rise to a duty to bargain.

In order to determine whether a change in conditions of employment gives rise to a duty to bargain over the impact and implementation of that change, we will carefully examine the facts and circumstances of each case, placing principal emphasis on such general areas of consideration as the nature and extent of the reasonably foreseeable effects of the changes in the conditions of employment of bargaining unit employees, including temporary and transitory effects. SSA, 24 FLRA at 407-08. See also Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 575 (1992); Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 584 (1992). The inquiry does not focus primarily on the actual effects of a change in employees' conditions of employment. U.S. Customs Service (Washington, D.C.); and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891, 899 (1987).

Applying those standards here, we conclude that the record establishes that the changes in the employees' tours of duty gave rise to a duty to bargain. By changing the days of the week that Shawley and Lovin were required to report for duty, the Respondent required Shawley to report for duty on two of the days that he was previously scheduled to be off-duty and required Lovin to report for duty on one of his former days off. In our view, if an agency changes the days on which an employee is required to report to work as part of the employee's regularly established weekly tour of duty, that change clearly has more than a de minimis effect on the employee's working conditions which is reasonably foreseeable at the time the agency makes the change. Moreover, if an agency makes such a change, it should also reasonably foresee that its action will disrupt responsibilities and commitments that the employee has made predicated on the previously scheduled days off. See Sacramento Air Logistics Center, 39 FLRA at 1372 (an agency's action in doubling the time an employee was required to participate in training exercises gave rise to a duty to bargain over the impact and implementation of that change because the reasonably foreseeable effect of the change "might well be an intrusion on an employee's family, travel and/or educational plans, which were predicated on periods when the employee was not scheduled to be a participant in [training] exercises").

In the instant case, we find that it was reasonably foreseeable at the time that the Respondent changed the employees' tours of duty that requiring Shawley and Lovin to report for duty on days that they had previously been scheduled to be off-duty would have an effect that was sufficient to give rise to a duty to bargain over the impact and implementation of the change in their workweeks. See, for example, id.; Nellis Air Force Base, 41 FLRA at 1028 (an agency was obligated to bargain over the impact and implementation of a change in employees' shifts that, among other things, resulted in transportation problems and required some employees to obtain babysitters at considerable expense; these and other factors demonstrated "that there existed a reasonably foreseeable effect on the condition of the [transferred employees] which was more than de minimis").

Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the impact and implementation of the decision to change two bargaining unit employees' tours of duty.

B. Remedy

The General Counsel requests a status quo ante remedy. In Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), the Authority set forth factors to be considered in each case to determine whether a status quo ante remedy is warranted for a refusal or failure to bargain over the impact and implementation of an exercise of management's rights under the Statute. Under the FCI criteria, the Authority considers, among other things: (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Id. at 606.

Here, the Respondent failed to give the Union notice that it was changing the tours of duty of the bargaining unit employees. The Union was not given an opportunity to bargain prior to implementation of the changes and, continuing to date, the Respondent has refused to bargain concerning the impact and implementation of the changes. As we found above, the impact on Shawley and Lovin was more than de minimis. Finally, the Respondent does not allege that a status quo ante remedy would place a burden on the efficiency and effectiveness of the Respondent's operations.

In these circumstances, and noting particularly that the Respondent has not shown and does not contend that a status quo ante remedy would impair the efficiency and effectiveness of its