52:0563(53)CA - - GSA, National Capital Region, Federal Protective Service Division, Washington, DC and AFGE, Local 1733 - - 1996 FLRAdec CA - - v52 p563
[ v52 p563 ]
The decision of the Authority follows:
52 FLRA No. 53
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL SERVICES ADMINISTRATION
NATIONAL CAPITAL REGION
FEDERAL PROTECTIVE SERVICE DIVISION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1733, AFL-CIO
(50 FLRA 728 (1995))
DECISION AND ORDER ON REMAND
November 6, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)
I. Statement of the Case
This case is before the Authority pursuant to a remand of the Authority's decision in General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C. and American Federation of Government Employees, Local 1733, AFL-CIO, 50 FLRA 728 (1995) (Federal Protective Service) by the U.S. Court of Appeals for the District of Columbia Circuit. General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C. v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996) (GSA). The court reversed the Authority's determination that the Respondent violated the Federal Service Labor-Management Relations Statute (the Statute) by implementing its decision to discontinue the practice of permitting its police officers to carry weapons between their homes and duty stations without bargaining with the Union over the substance of the decision. The court remanded the case to the Authority to determine whether the Respondent violated the Statute by failing to negotiate over the impact and implementation of the decision.
For the reasons discussed below, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the impact and implementation of its decision to discontinue the practice.
The facts are set forth fully in the Judge's decision in this case, 50 FLRA at 744-52, and are only briefly summarized here.
The Respondent terminated its practice of permitting police officers to transport their weapons between home and work and, in lieu thereof, required officers to return their weapons to a work location at the end of their shifts and pick up the weapons there at the beginning of the next shift. The Judge held that the Respondent was not obligated to bargain over either its decision to discontinue the practice or the impact and implementation of the decision. With respect to the latter point, the Judge held that the impact on unit employees' conditions of employment was de minimis. In this connection, the Judge cited and relied on a 1993 letter from the Federal Protective Service Division Director, addressed to the Agency's Assistant Commissioner, stating that:
officers . . . are expected to report to their base headquarters office . . . for assignment and shift briefings. This must be accomplished quickly and efficiently. . . . Assuming that the issuance of a firearm takes from 30 to 60 seconds each (checking and verifying the serial number, inspecting the condition of weapon, and signing the checkout register), it would take the Government about one hour at the beginning of each eight hour shift and another hour at the end of the shift to checkout/in each officer's firearm, daily (from the first officer issuance to the last based on a 60-75 officer shift) . . . .
Judge's Decision at 12-13 (quoting General Counsel Exhibit 11). The Judge concluded that the letter:
clearly describes a foreseeable effect of the change which appears to have a significant adverse impact on the Agency in terms of nonproductive time spent by police officers checking firearms in and out at the Navy Yard. However, each police officer would be affected only possibly one minute at the beginning and end of each workday by following an additional, but apparently innocuous, procedure and I am unable to discern on this record any other impact, adverse or otherwise, on police officers' conditions of employment by the effectuation of the change.
Id. at 13.
In Federal Protective Service, the Authority concluded that the Respondent was obligated to bargain over the decision to discontinue the past practice. Therefore, the Authority did not reach the issue of whether the Agency was required to negotiate with the Union over the impact and implementation of the decision.(2) In GSA, the D.C. Circuit reversed the Authority's decision that the Respondent was obligated to bargain over the decision to discontinue the past practice and remanded the case to the Authority to determine whether the Respondent was obligated to bargain over the impact and implementation of the decision.
The only issue related to the impact and implementation of the Respondent's decision presented in the initial proceedings before the Judge and in exceptions to the Judge's decision was whether the impact of the decision on unit employees' conditions of employment was more than de minimis. Accordingly, that is the issue now before the Authority.
III. Positions of the Parties
The General Counsel argues that the Judge's conclusion that each officer would be affected by only 1 minute at the beginning and end of each work shift by the Respondent's decision ignores the cumulative impact of the decision on the group of officers affected by it. According to the General Counsel, "unless a large contingent of personnel [is] assigned to distribute the firearms, it is reasonably foreseeable that police officers will suffer significant delays at both the start and finish of each shift." Exceptions at 13. The General Counsel contends that "[e]ven more foreseeable would be the consequence that these officers would be obliged to arrive early for each shift in an attempt to expedite the procedure." Id.
The Agency opposes the General Counsel's exceptions, but does not specifically address the Judge's conclusion that the impact of the change was de minimis.
IV. Analysis and Conclusions
A. The Impact of the Respondent's Decision Was More than De Minimis
Consistent with the D.C. Circuit's decision in GSA, the Agency's practice of permitting officers to transport their weapons between home and work was illegal and, as a result, the Agency was privileged to discontinue the practice. However, the Agency was required to bargain over the impact and implementation of the decision if the effect of the decision on unit employees' conditions of employment was more than de minimis. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Jamestown, New York District Office, Jamestown, New York, 34 FLRA 765 (1990).
It is well-established that, in determining whether the effect of a decision on conditions of employment is more than de minimis, the Authority looks to "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." U.S. Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 306, 310 (1993). In particular:
[The Authority] will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved.
As to the number of employees involved, this factor will not be a controlling consideration. It will be applied primarily to expand rather than limit the number of situations where bargaining will be required. For example, [the Authority] may find that a change does not require bargaining. However, a similar change involving hundreds of employees could, in appropriate circumstances, give rise to a bargaining obligation. The parties' bargaining history will be subject to similar limited application. . . .
Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986).
The Judge's finding that officers would be affected by only 1 minute at the beginning and end of each shift by the Respondent's decision describes only the impact on officers while they are actually engaged in the procedure through which weapons are issued and returned. Concluding that this is the full extent of the effect on officers requires assuming that the impact on each officer is identical because: (1) officers work shifts that do not necessitate their checking in and out weapons at the same time, or (2) adequate staff is available to accomplish checking in and out in 1 minute for each officer. However, both assumptions are contrary to the record. With regard to the first assumption, the record reflects that the Respondent employs approximately 138 police officers who work 3 standard shifts. Transcript at 10. With respect to the second assumption, the Respondent itself anticipated, in the letter cited and relied on by the Judge, that implementing the decision would necessitate 1 hour at the beginning and end of each shift. Judge's Decision at 13.
The record does not disclose whether the police officers are evenly divided among the three shifts or how the Respondent has decided to staff the function of receiving and providing weapons. Assuming that the employees are divided evenly among the three shifts and that, as found by the Judge and asserted by the Respondent, each transaction would take approximately 1 minute, the total time for each employee to check their weapons in and out would vary from 2 to 90 minutes per shift. That is, some employees would be affected by only 1 minute at the beginning and end of each shift, and that other employees would, by virtue of their "place in line," be affected for 45 minutes at the beginning and/or end of each shift. Assuming that the shifts are not evenly staffed, then at least one shift would have more than 45 officers, thereby increasing the time for the checking in and out of weapons.
The Judge did not find, and the Respondent does not argue, that this effect is de minimis. In fact, the Respondent never argued, before or after the hearing, that the effect of the decision was de minimis. In addition, it is reasonable to conclude that a time-consuming check-in and out procedure would, in turn, affect working conditions involving such matters as work assignments and appraisals. In these circumstances, the impact of the change on employees' working conditions is more than de minimis.(3) Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to negotiate over the impact and implementation of its decision to discontinue the practice of permitting officers to carry their weapons between work and home.
B. An Appropriate Remedy is to Direct the Respondent to Cease and Desist From Its Unlawful Conduct, Post an Appropriate Notice, and, Upon the Union's Request, Bargain Over the Impact and Implementation of Its Decision
The question of an appropriate remedy for a violation based only on a refusal to bargain over the impact and implementation of the Respondent's decision has not been addressed by the parties. Before the Judge, the General Counsel requested a status quo ante remedy based on the argument that the practice of permitting officers to transport their weapons between their homes and work was not illegal.
The Authority will not order a status quo ante remedy when it would result in the reinstitution of an illegal practice. See United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1048 (1990); Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA 486, 490 (1985). Consistent with the D.C. Circuit's decision, the Respondent was privileged to discontinue the practice of permitting officers to transport their weapons between home and work because that practice was illegal. Accordingly, and noting that no other remedy is requested, it is appropriate to direct the Respondent to cease and desist from its unlawful conduct in refusing to bargain over the impact and implementation of its decision, to post an appropriate notice, and, upon request, to bargain with the Union over the impact and implementation of its decision. As noted, a retroactive bargaining order has not been requested in this case. However, the parties are encouraged to explore whether the results of this bargaining should be implemented retroactively, in whole or in part, to ensure that the effects of the Respondent's unlawful conduct on unit employees are appropriately remedied.
Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the General Services Administration, National Capital Region, Federal Protective Service Division, Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with the Union over the impact and implementation of its decision to change the prior policy permitting police officers to carry their w