53:1664(149)CA - - Air Force Logistics Command, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1998 FLRAdec CA - - v53 p1664
[ v53 p1664 ]
The decision of the Authority follows:
53 FLRA No. 149
FEDERAL LABOR RELATIONS AUTHORITY
AIR FORCE LOGISTICS COMMAND
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by relocating a telephone used by bargaining unit employees without providing the Union with notice and an opportunity to negotiate over the change. The Judge found that the impact of moving the telephone on unit employees' conditions of employment was de minimis, and he recommended that the Authority dismiss the complaint.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent herewith. For the reasons explained below, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union over its decision to move the telephone.
The facts in this case are fully set forth in the Judge's decision, and are only briefly summarized here.
The bargaining unit employees involved in this case work in the Respondent's Technology Industrial Support Branch (the Branch). The Branch operates two shifts, the day shift and the swing shift. This dispute affects only the five employees assigned to the swing shift, which operates from 4:00 p.m. to 12:30 a.m. The Branch is managed by two supervisors, the day shift supervisor and the swing shift supervisor, who works from 12 noon until 8 p.m., thereby overlapping both shifts. After the swing shift supervisor leaves, there is a period of approximately 4.5 hours when there is no supervisor present.
Both supervisors occupy separate, enclosed offices on the same floor where Branch employees, among other duties, remove corrosives from airplane parts by sandblasting. There is a telephone in the day supervisor's office that is locked in his absence.(2) An extension of the day supervisor's telephone is located in the swing shift supervisor's office. Prior to the events giving rise to this case, employees were able to use this extension both to place and to receive personal calls. At the end of her shift, the swing shift supervisor would leave her office unlocked so that her office telephone would be available for use by employees.
On at least two occasions, the swing shift supervisor discovered that her locked desk had been opened. As a result, she began locking her office at the end of her shift.
In order to continue making the telephone located in her office available to Branch employees, the swing shift supervisor decided to move the telephone -- from her desk, which abuts the exterior wall of her office, to a small table on the other side of that wall -- before locking her office and leaving each day. The Union was neither notified of, nor provided an opportunity to bargain over, the decision to move the telephone.
The Union filed an unfair labor practice charge challenging the Respondent's unilateral decision to relocate the phone. After investigating the charge, the General Counsel issued a complaint, alleging that the Respondent violated sections 7116(a)(1) and (5) of the Statute when the swing shift supervisor "relocated the telephone . . . from her office to an open area in close proximity to loud machinery." Complaint ¶11.
The Judge found that the Respondent's decision to lock the swing supervisor's office constituted an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute and, as a result, the Respondent was not obligated to negotiate over the decision. The Judge also found that the Respondent was not obligated to bargain over its decision to move the telephone because the "reasonably foreseeable effect of moving the telephone" was de minimis. Judge's Decision at 9. In reaching this conclusion, the Judge found that the relocation of the telephone resulted in a "slight increase" in noise level that "had no more tha[n] a de minimis effect on the ability to hear and be heard." Id. Accordingly, the Judge recommended that the Authority dismiss the complaint.
III. Positions of the Parties
A. General Counsel's Exceptions
As a preliminary matter, the General Counsel contends that the Judge gave the appearance that he had prejudged the case. In support, the General Counsel refers to certain comments made by the Judge about a separate and unrelated case previously filed by the General Counsel.(3) The General Counsel requests that, in the future, the Authority take steps to ensure that the Judge does not engage in similar inappropriate behavior or retaliate against the General Counsel for having complained about his conduct in this case.
On the merits, the General Counsel does not dispute the Respondent's right to determine its internal security practices. However, the General Counsel claims that this right does not include the Respondent's relocating the telephone in this case. According to the General Counsel, the use of agency telephones by unit employees for personal calls is substantively negotiable.(4) In particular, the General Counsel argues that "even though the Respondent may have believed that there was a problem regarding the security of [the swing supervisor's] desk, this situation cannot be used to prevent the Union from negotiating over a substantively negotiable matter -- particularly with regard to an alternate location of the telephone." Brief to Exceptions at 10. To remedy the Respondent's failure to bargain over its decision to move the telephone, the General Counsel requests that the Authority impose a status quo ante remedy, which the General Counsel describes as allowing employees "to use the telephone in the [swing shift supervisor's] office . . . ." Id. at 16.
B. Respondent's Opposition
The Respondent maintains that the relocation of the telephone was an "insignificant event" that "had absolutely nothing to do with the ability of the employees to hear it ringing." Opposition at 2. According to the Respondent, "the change that occurred here was de minimis and resulted from the exercise of the Respondent's right to determine its internal security practices . . . ." Id. at 3. With regard to the Judge's comments at the hearing, the Respondent asserts that the General Counsel ignores the fact that the Judge made those comments after hearing opening statements that clearly demonstrated the "triviality" of the change and that the General Counsel had a full and fair opportunity to present his case. Id.
IV. Analysis and Conclusions
A. The Respondent Violated the Statute When it Unilaterally Relocated the Telephone
Prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See, e.g., U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81 (1997); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Where the substance of the decision is not itself subject to negotiation, the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting changes have more than a de minimis effect on conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986) (SSA). In assessing whether the effect of a change in conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change. See General Services Administration, Region 9, San Francisco, California, 52 FLRA 1107, 1111 (1997) (Chair Segal dissenting as to other matters).
The unfair labor practice alleged in this case concerns the Respondent's decision to relocate a telephone used by bargaining unit employees, from the swing shift supervisor's office to an area immediately outside the office. See Complaint ¶11. In particular, the complaint filed and litigated by the General Counsel states that the Respondent violated the Statute by failing to "provid[e] the Union with notice and an opportunity to negotiate the substance or the impact and implementation" of the decision to move the telephone. Id. at ¶12, ¶13. Accord Transcript at 4; General Counsel's Brief to the Judge at 7, 13-18. In short, this case is about the Respondent's denying the Union the opportunity to bargain over the location of the telephone.
A straightforward application of Authority precedent compels a conclusion that the Respondent's decision to relocate the telephone was substantively negotiable. In this regard, it is well-settled that the use and location of a telephone for employees is within the duty to bargain. See, e.g., American Federation of Government Employees, Local 1122, and U.S. Department of Health and Human Services, Social Security Administration, Western Program Service Center, Richmond, California, 47 FLRA 272, 284 (1993) (installation and service of telephones are within agency's discretion under law and regulation; thus, agency should have bargained over proposal to install and service telephone for employees' personal use); American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 100 (1983) (use of agency telephone by employees for personal calls is within the duty to bargain).
No basis has been established for finding that this precedent does not apply in this case or, in particular, that the Respondent's decision to move the telephone was itself an exercise of managements' rights under the Statute. By unilaterally moving the telephone without first providing the Union with notice and an opportunity to bargain, the Respondent improperly deprived the Union of its right to negotiate. Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (5) when it refused to bargain over its decision to move the telephone.
In dismissing the complaint, the Judge concluded that the impact of relocating the telephone was de minimis. Judge's Decision at 1. However, the de minimis doctrine has not previously been applied by the Authority to a change in conditions of employment that is substantively bargainable. The duty to bargain over negotiable conditions of employment is not eliminated by the degree to which unit employees are affected by a change in such conditions. Where an agency institutes a change in conditions of employment and the change is itself substantively negotiable, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain.(5) See, e.g., 92 Bomb Wing, Fairchild Air Force Base, Spokane, Washington, 50 FLRA 701, 704 (1995); Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 179, 190 (1992); Department of Health and Human Services, 30 FLRA 922, 926 (1988).
The Judge did not explain his conclusion as a departure from this precedent. Rather, in an error in reasoning, the Judge conflated two management actions -- locking the office door and moving the telephone -- and treated them as if they were one. He found that the Respondent was not obligated to negotiate over its decision to lock the office -- which the General Counsel never challenged -- because this action constituted an exercise of the Respondent's right to determine its internal security practices. See Judge's Decision at 8. However, he applied the de minimis doctrine to the Respondent's decision to move the telephone, and found that the reasonably foreseeable effect of this decision was no more than de minimis.
It is uncontroverted that the Respondent had the right to unilaterally lock the office. See Exceptions at 8. Given this, and consistent with Authority precedent, the Respondent was not obligated to bargain over this decision. The Respondent's decision to move the telephone was, in effect, an implementation step taken to avoid the adverse consequences to employees who would lose access to the telephone once the office was locked.(6) See Transcript at 69. However, the fact that moving the telephone was an aspect of the implementation of the decision to lock the door, and done with the intention of avoiding the negative effect of locking the door, does not overcome the fact that the Respondent's action was unilateral.
There is no license under the Statute, as it has been interpreted and applied by the Authority, for the Respondent to have taken this implementation step without giving the employees' exclusive representative an opportunity to bargain over the relocation of the telephone.(7) Accordingly, the Respondent's refusal to bargain over the relocation of the telephone constituted a violation of sections 7116(a)(1) and (5) of the Statute.
B. The Appropriate Remedy
The Authority has broad discretion under the Statute to fashion appropriate remedies for unfair labor practices. See National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). In the absence of special circumstances, a status quo ante remedy is appropriate in cases where, as here, an agency has refused to bargain over the substance of a matter that is within its duty to bargain. See Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281 (1986) (West Los Angeles Medical Center). The purpose of a status quo ante remedy is to place parties, including employees, in the positions they would have been in had there been no unlawful conduct. See Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1580 (1996) (Department of Veterans Affairs Medical Center). Other "traditional" remedies, including retroactive bargaining orders and cease-and-desist orders accompanied by the posting of a notice to employees (which are provided in virtually all cases where a violation is found), are also available. See F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 161 (1996).
Consistent with this precedent, since the decision to move the telephone was itself negotiable, we agree with the General Counsel that a status quo ante remedy is warranted, absent special circumstances. See West Los Angeles Medical Center, 23 FLRA at 281. However, contrary to the General Counsel's assertions, a status quo ante remedy in this case would not return the telephone to the supervisor's unlocked office. See Exceptions at 16-17 ("Only if employees are once again allowed to use the telephone in [the] office will the Union have an equal opportunity to protect the rights of the bargaining unit. . . ."). The conduct challenged in this case was the Respondent's relocation of the telephone. We have concluded above that this was an unfair labor practice as charged. Prior to this unlawful act, the telephone was located inside the supervisor's office. In these circumstances, a properly tailored status quo ante remedy would return the telephone to the supervisor's now-locked office, thereby, placing employees in the positions they would have occupied absent the Respondent's unlawful act.
There is no basis to require as a remedy for the Respondent's unfair labor practice that the office be unlocked. In this regard, there is no dispute that the Respondent's decision to lock the supervisor's office constituted an exercise of its right to determine internal security practices under section 7106(a) of the Statute. Therefore, as the Respondent's decision to lock the office was not alleged to constitute a violation under the Statute, we will not order the Respondent to unlock the office, which would turn the clock back not only on the location of the telephone, but also on the decision to lock the office.
As the relief requested by the General Counsel is not a return to the status quo prior to the Respondent's unlawful conduct, we do not order the status quo ante remedy sought by the General Counsel. Instead, to remedy the violation found above, we order the Respondent to cease and desist from changing conditions of employment without satisfying its bargaining obligations, and direct the Respondent to bargain, upon request of the Union, over the use and location of a telephone for employees' personal use. See Department of Veterans Affairs Medical Center, 51 FLRA at 1581.(8)
Pursuant to section 2423.41(9) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia shall:
1. Cease and desist from:
(a) Failing to bargain in good faith with the American Federation of Government Employees, Local 987, the exclusive bargaining representative of bargaining unit employees, concerning all conditions of employment.
(b) Failing to bargain in good faith with the American Federation of Government Employees, Local 987, the exclusive bargaining representative of bargaining unit employees, concerning the location and use of a telephone for employees' personal use.
(c) In any like or related manner, interfering with, restraining, or coercing unit 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, bargain in good faith with the American Federation of Government Employees, Local 987, as the exclusive representative of bargaining unit employees, concerning conditions of employment.
(b) Upon request, bargain in good faith with the American Federation of Government Employees, Local 987, as the exclusive representative of bargaining unit employees, concerning the use and location of a telephone for employees' personal use.
(c) Post at all locations within the Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 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 the commanding officer 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Regional Office, 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.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT refuse to bargain in good faith with the American Federation of Government Employees, Local 987 concerning all conditions of employment.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL, on request, bargain in good faith with the American Federation of Government Employees, Local 987 concerning the use and location of a telephone for employees' personal use.
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, Federal Labor Relations Authority, whose address is 1371 Peachtree Street, N.E., Suite 122, Atlanta, Georgia 30309-3102, and whose telephone number is 404-331-5212.
Dissenting opinion of Member Wasserman:
This case involves the movement of a telephone the distance equivalent to the width of a cinder block wall. While that change doubtless had some effect on an employee's ability to hear while on the telephone, expert and other testimony established that the effect was not significant, and the Judge credited that testimony.
My colleagues are correct when they note that the availability and location of telephones are matters that are substantively negotiable in the federal sector. Had the union sought to bargain over those topics and the agency declined to do so, an unfair labor practice might have been committed. However, the facts of this case are different, and it is within the context of the particular circumstances presented in this case that I respectfully dissent.(*)
Here we have a supervisor who until July 1994, left her office unlocked when she left work so that the employees could continue to use the telephone in her office. On at least two occasions in June and July 1994, the supervisor discovered that her locked desk, which contained time and attendance records, had been opened. As a result, she decided that it was necessary, for security reasons, to lock her office when she left for the day. When she locked her office, she moved the telephone from her desk to a small table on the other side of her office wall so that it would be accessible to the employees. The Agency's action to secure the supervisor's office, as the majority notes, was a matter affecting the agency's internal security and could be done unilaterally. Slip Op. at 7. I presume that any bargaining that would flow from the security decision would be limited to the impact and implementation of that action.
Where I part ways with the majority is on the view of the movement of the telephone in this case. My colleagues view the closing of the door and the movement of the telephone as two, separable actions by the Agency. They quote the complaint in this case, wherein the General Counsel alleges that the Respondent failed to bargain over the "substance or the impact and implementation of the change [in location of the telephone]" prior to making the change. Slip Op. at 5 (quoting Complaint ¶12). In my opinion, artful pleading does not obviate the fact that the relocation of the telephone was simply an aspect of the impact and implementation of locking the office, and not a separate management initiative. Thus, I would apply the Authority's de minimis standard to the consequential action of moving the telephone, and I would find that the bargaining obligation was not triggered.
"In determining whether a party has an obligation to bargain over the impact and implementation of a change in conditions of employment, the Authority considers whether the Respondent changed conditions of employment, and if so, whether the changes had more than a de minimis impact on employees' conditions of employment." General Services Administration, Region 9, San Francisco, California, 52 FLRA 1107, 1111 (1997) (Chair Segal dissenting as to other matters) (GSA) (citing Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986)). In assessing whether the effect of a decision on conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employee' conditions of employment. Id. Equitable considerations are also taken into account in balancing the various interests involved. Id.
As the full effect of a change is often unknown at the time the change is made, "the de minimis inquiry does not focus primarily on the actual effect of a change in employees' conditions of employment, but on the foreseeable effect of the change." Olam Southwest Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, California, 51 FLRA 797, 822 (1996). Thus, much of the Authority's precedent in this area involves an examination of whether, at the time an agency unilaterally changed conditions of employment, the reasonably foreseeable effect of that change was more than de minimis. E.g., Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 576 (1992) (a reduction in training hours was unlikely to lead to increased vulnerability to RIF) (Portsmouth); U.S. Equal Employment Opportunity Commission, 40 FLRA 1147, 1154 (1991) (viewed at the time respondent unilaterally implemented change in personnel ceilings, the nature and extent of the reasonably foreseeable effect was such as to give rise to bargaining obligation); Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 25 FLRA 541, 544 (1987) (at the time respondent announced a moratorium on permanent promotions, it was reasonably foreseeable that some employees who were eligible would not receive promotions).
While many cases focus on the foreseeable effects of management actions, the Authority has made it clear that it has not "abandoned the 'effect' portion" of the test set forth in SSA. Portsmouth, 45 FLRA at 575 n.1. When applying that portion of the test, the Authority examines the actual effect of the change. To understand how a change actually affected employees, the Authority must focus on the effect of the agency's action after the change was fully accomplished, rather than merely at the time the change was initially announced or commenced. E.g., GSA, 52 FLRA at 1111-12 (effect of relocation of employee was de minimis where changes in conditions of employment reflected typical, minor problems that are generally handled simply through administrative channels).
As litigated before the Judge, the dispute in this case concerned whether the changed location of the telephone had a deleterious effect on the ability of the employees to communicate over the telephone. The Judge evaluated the evidence presented to him and determined that any adverse effects on employees were de minimis. I see no reason to disagree with that assessment. In addition, the General Counsel contended that the inability to hear or be heard while using the newly relocated telephone would have the additional foreseeable effect of lowered productivity resulting from longer telephone conversations. Such speculation does not serve as a basis for bargaining.
Accordingly, since, in my view, it has not been established that the relocation of the telephone resulted in more than a de minimis effect on the employees' ability to use the telephone, I would find that the Respondent did not violate the Statute by failing to negotiate with the Union before moving the telephone.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| AIR FORCE LOGISTICS COMMAND WARNER
ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
C.R. Swint, Jr., Esquire
For the Respondent
Sherrod G. Patterson, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent's admitted unilateral relocation of a telephone had more than a de minimis impact. For reasons more fully set forth hereinafter, I conclude that the change was de minimis and gave rise to no obligation to bargain.
This case was initiated by a charge filed on December 27, 1994 (G.C. Exh. 1(a)); the Complaint and Notice of Hearing issued June 30, 1995 (G.C. Exh. 1(c)), and the hearing was set for October 4, 1995. By Order dated September 15, 1995 (G.C. Exh. 1(e)), this, and a number of other cases, was rescheduled for hearing on October 24, 1995, pursuant to which a hearing was duly held on October 24, 1995, in Warner Robins, Georgia, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, by agreement of the parties, December 4, 1995, was fixed as the date for mailing post-hearing briefs and Respondent and General Counsel each timely mailed an excellent brief, received on December 7, 1995, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:
Findings and Discussion
Respondent's Technology Industrial Support Branch is located in Building 142. This Branch removes corrosives from airplane parts by sandblasting, performs non-destructive testing and magnetic and chemical plating. These processes, by their nature, are noisy, require support equipment such as air compressors sandblasters, aquamizer, shotpeening machine and large exhaust fans. There are two shifts: day shift, which starts at 7:30 am and ends at 4:15 pm, and employs 20-25 employees (Tr. 63, 91, 92, 93); and the swing shift, which starts at 4:00 pm and ends at 12:30 am, and employs only 5 employees (Tr. 30-31, 50-51, 94). On the day shift, as many as five blasters may be operated at the same time; but on the swing, or night, shift a maximum of two blasters could be operated at the same time (Tr. 30, 94). Sergeant Richard W. Randolph, Jr., a bioenvironmental engineering journeyman testified that the noise level at 1400 hours showed readings of 70 to 75 decibels; and at 2100 hours showed 60 to 63 decibels (Tr. 109-110). Sergeant Randolph further stated that 60 to 63 decibels was typical of an administrative area that has a lot of traffic, i.e., people going and coming, talking, telephone conversations, etc. (Tr. 110).(2)
There are two supervisors: Mr. Jerry Kendall Wahl, Electroplater foreman (Tr. 14, 98), who works from 7:30 am to 4:00 pm (Tr. 61, 92); and Ms. Betty Jo Adams, Electroplater foreman (Tr. 14, 66), also known as "B.J." (Tr. 24), who works from 12:00 noon until 8:00 pm (Tr. 92).(3) General Counsel Exhibit 2, although not to scale (Tr. 18), accurately shows the relative locations of the offices, blasting areas, plating rooms, break area, etc. of Building 142. In the left center of the diagram is a block of rooms consisting of: Mr. Wahl's office, the right side of which faces toward the blasting area and Robins Drive; joining his office, immediately to the left, is Ms. Adams' office; and joining her office, immediately to the left, is the office of the scheduler. These three offices, facing toward 1st Street, open onto a wide area that serves as a corridor for traffic to and from Building 140 through a door on the left side of Building 142, facing Building 140, which door is immediately above the NDI plating area which extends along the 1st Street side of Building 142 to a point in line with the right side of Mr. Wahl's office. Here, there is a door from 1st Street through which traffic also flows into the corridor onto which the Wahl, Adams and scheduler's offices open. Behind these three offices is a hallway, extending to an outside door; and opening off this hallway are: first, the Selective Plating room, which is across the hallway directly opposite Mr. Wahl's office; and next to this room is the Break Area, which is across the hallway directly opposite the offices of Ms. Adams and the scheduler. There is a telephone in Mr. Wahl's office and an extension of the same line to a telephone in Ms. Adams' office.
Since at least 1988, Ms. Adams' office had been left unlocked in her absence so that employees on both shifts could use the telephone in her office to place and receive personal telephone calls. For this purpose, her telephone was placed on the right, rear corner of her desk immediately adjacent to the door (Res. Exh. 2). Mr. Wahl's office has always been locked in his absence, because employees' 971 files were stored there, and employees had never had access to his office for telephone calls; however, it had been the practice, when the day shift supervisor left at 4:00 pm, to leave the public address system, which was located in Mr. Wahl's office, turned on with the microphone near the telephone so that the ringing of the telephone could be heard throughout the building. (Tr. 17, 19, 61, 70, 71). Regrettably, leaving the public address - intercom system on overnight caused the system to "burn up" (Tr. 71, 100). Ms. Adams said it happened a couple of times (Tr. 71). In any event, they were instructed to terminate the practice (Tr. 100). This occurred before the telephone was moved (Tr. 72), 100), was unrelated to the moving of the telephone, and, obviously, was not caused by the moving of the telephone (Tr. 72, 73, 100).
Ms. Adams locked her desk every day when she left work because she kept time and attendance records in her desk (Tr. 67, 68). In about June, 1994, she noticed that her desk was unlocked when she entered her office one morning but nothing was missing (Tr. 67), nevertheless, although she could not be certain she had not forgotten to lock her desk (Tr. 67, 69), because she was deeply concerned, she carefully arranged the items in her desk and locked it and, again, about a week later her desk was open when she arrived and the items in her desk had been moved around (Tr. 67-68, 69), although nothing was missing. In view of the fact that her desk had been broken into,(4) Ms. Adams decided she must, for security reasons, lock her office. Accordingly, on, or about, July 15, 1994, Ms. Adams began locking her office when she left for the day; however, to keep the telephone accessible for employees on the swing shift, she set the telephone, from her desk, on a little table just outside her office with the wire pulled out to pass under the door when she closed and locked it (Res. Exhs. 2, 3; Tr. 70, 100). As Respondent Exhibits 2 and 3 show, the telephone, literally, was moved only from one side of a cinder block wall to the other. To be sure, as Ms. Adams stated, it is easier to hear when the phone is in her office and the door is closed (Tr. 81), ". . . I wouldn't say great, but it's just better." (Tr. 82); but you can hear and be heard when the telephone is outside the office (Tr. 76, 81, 101, 103) and even during the day, when the noise level is much higher employees take the phone outside the office for privacy ". . . even with the noise going on." (Tr. 83, 93-94); some, while using the telephone in the office do not close the door (Tr. 93). Mr. Ronald Eugene Martin, Branch steward (Tr. 14), sandblaster and shotpeening machine operator (Tr. 13, 18) and the instigator of the charge (Tr. 24, 27, 34), asserted that, ". . . On several occasions, I've had to just hang the phone up, and I'd go outside and use the pay phone." (Tr. 28-29); however, he stated that the signal strength of voice communication to the telephone, apart from its location, from off base was weak and hard to hear (Tr. 25-26) where on base ". . . you can hear in certain areas." (Tr. 25). Further, Mr. Martin conceded that he had talked to Ms. Adams, who called from off base, and, while he said he could "barely" hear her and told her to speak up (Tr. 29), he did talk to her as well as to others (Tr. 28). Mr. Jerry Hardison, who stated he had been on the day shift three years (Tr. 58) stated that he worked on the swing shift, ". . . during the summer, when my little boy was small. . . ." (Tr. 58). Although it appears doubtful that the preceding year - 1994 - would have been "when my little boy was small", Mr. Hardison asserted that on one occasion he, ". . . even had to let them hang up and me go outside on the pay phone so I could hear." (Tr. 60). On the other hand, Ms. Adams stated that when she had spoken on the telephone outside her office she could hear and be heard (Tr. 76, 81); Mr. Wahl testified that when his door was open during the day he could hear and be heard on the telephone (Tr. 102); and that he had called from his home and talked to people when the telephone was outside Ms. Adams' office and had no trouble hearing or being heard (Tr. 102-103). Moreover, the testimony of Messrs. Martin, Crummey and Hardison largely concerned the inability to hear the telephone ringing after the use of the intercom - public address system stopped. See, for example, Tr. 14, 15, 17, 19, 20, 22, 26, 32, 33, 34, 36, 37, 38, 39, 40, 44, 48, 49, 50, 51, 61).
As noted above, following two instances of her desk being broken into and the contents rifled, for security reasons, Ms. Adams, beginning on, or about, July 15, 1994, when she left work moved the telephone from the back right end of her desk to a small table just outside her office so that her office door could be closed and locked. Quite literally, the telephone was moved the thickness of a cinder block, from one side of a wall to the other. As a result, five employees during all, or a portion, of their duty hours from 4:00 pm to 12:30 am, had to use the telephone outside Ms. Adams' office for telephone calls. In July, 1994, when Ms. Adams made the change, she worked the day shift; but sometime later Ms. Adams' hours were changed to 12:00 noon to 8:00 pm.(5) Accordingly, for much of the time, the hours in question were only the four hours from 8:00 pm to midnight. Also as noted in detail above, the testimony of Messrs. Martin, Crummey and Hardison was overwhelmingly directed to the inability to hear the telephone ringing after the use of the intercom - public address system was stopped. Understandably, they asserted there was a very significant change in hearing and being heard when using the telephone outside Ms. Adams' office, while Ms. Adams and Mr. Wahl asserted there was not. By contrast, I found Sgt. Randolph's testimony wholly convincing and devoid of any subjective evaluation. Sgt. Randolph testified that at 9:00 pm he measured the noise level outside Ms. Adams' office as 60 to 63 decibels which is typical of a busy administrative area. Further, Sgt. Randolph stated that with the beadblaster operating and the doors closed, the noise level would have gone up only one or two decibels to no more than 65 decibels.(6) Moreover, Respondent Exhibit 6, American Industrial Hygiene Association's, "Industrial Noise Manual", third edition, shows, inter alia, 60 to 65 decibels, ". . . telephone use slightly difficult; normal voice 1 to 2 feet. . . ." (Table 2.5, p. 10). Finally, Sgt. Randolph credibly testified that,
"A If the shop was operating in the condition that I found it, there would be no problem to speak on the telephone." (Tr. 124).
When asked on cross-examination about a comparison of the noise level inside Ms. Adams' office and outside her office, Sgt. Randolph stated,
"A Yes, sir, it would be the same. There probably wouldn't be any change.
"Q With the door closed?
"A The noise level might be, you know, a few decibels less, but I don't think it would be anything considerable."(Tr. 124)
The physical layout of Building 142(G.C. Exh. 2) shows that the offices of Mr. Wahl, Ms. Adams and the scheduler are on the far side of the building from the blasting area; that Mr. Wahl's office is toward the blasting area, with Ms. Adams' office being between his office and the scheduler; and that the IVD Plating Room is a buttress between the blasting area and Ms. Adams' office. Indeed, the record shows, contrary to the allegation of Paragraph 11 of the Complaint (G.C. Exh. 1(c)), that, when moved outside her office, the telephone was not in close proximity to loud machinery.
General Counsel did a masterful job of misdirection by stressing the inability to hear the telephone ring. As the record shows, the discontinuance of the use of the intercom - public address system to carry the ringing throughout the area was wholly unrelated to the moving of the telephone, took place before the telephone was moved and, of course, was neither caused by nor the result of the moving of the telephone. To the contrary, the practice of leaving the intercom - public address system turned on, to "broadcast" the ringing of the telephone, was discontinued because it burned out the system. Termination of the broadcasting of the telephone ringing was not an allegation of the charge (G.C. Exh. 1(a)) and is not an allegation of the Complaint (G.C. Exh. 1(c)).(7) Moreover, the record shows discussions with Respondent and the installation of bells (Tr. 26-27, 48, 49, 74, 87, 104, 106).
Ms. Adams' decision to lock her office door was, as the record shows, and as I have found, solely for security reasons. Her desk, which she had locked, twice was broken into. To protect business and personal items, including time and attendance records, which she kept in her desk, she was compelled to lock her office when she left work for the day. Her perceived need for such security was real and substantial. General Counsel's effort to denigrate her motive, by asserting that she does not lock her office during the day when she is out, is wholly without merit. First, during all, or much, of the day shift there are two supervisors in and out of adjoining offices; whereas, on the swing, or night, shift, no supervisor is present on all, or much, of the shift. Second, on the day shift there are 25 employees; whereas, on the swing, or night, shift there are only 5. Third, nothing in the record shows, or suggests, that Ms. Adams' practice of locking her desk has failed to provide adequate security during the day; whereas the record showed that twice her desk had been broken into during the swing, or night, shift. As the Authority has stated, "An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and practices . . . to secure or safeguard . . . physical property . . . against internal and external risks.", International Federation of Professional and Technical Engineers, Local 89, 45 FLRA 938, 960 (1992); "An agency's determination of when and how employees gain access to agency facilities is within the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, where that determination is supported by a showing of a reasonable connection to internal security considerations." American Federation of Government Employees, Local 2452, 45 FLRA 1213, 1216 (1992). To like effect, see also: Patent Office Professional Association (Union), 41 FLRA 795, 836-837 (1991). As, plainly, the decision to lock the office door was connected to its internal security, Respondent was not obligated to negotiate the decision to lock the office door and this portion of the Complaint is dismissed. Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA 1196, 1206 (1991).
To insure the continued availability of her telephone for use by employees, Ms. Adams, before locking her office door pulled the telephone wire so that the door would close over the cord and placed the telephone on a small table immediately to the left of the door. As noted above, in actual effect, the telephone was literally moved the breadth of a single cinder block, from one side of the wall to the other.
As Respondent concedes, when it exercised its retained right under § 6(a)(1), while not obligated to negotiate the decision to lock Ms. Adams' office door, it was obligated to negotiate, ". . . the procedures used to exercise these rights and appropriate arrangements for adversely affected employees." (Respondent's Brief, p. 6). However, Respondent further notes that, ". . . where the exercise of a retained right results in an impact that is of a de minimis nature, there is no duty to negotiate. U.S. Government Printing Office and Joint Council of Unions, GPO, 13 FLRA No. 39  (1983)." (Respondent's Brief, p. 6).
In Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986), the Authority stated, in part, as follows:
"D. The standard to be applied in this and future cases.
"We have reassessed and modified the recent de minimis standard. In order to determine whether a change in conditions of employment requires bargaining in this and future cases, the pertinent facts and circumstances presented in each case will be carefully examined. In examining the record, we 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. . . ." (id. at 407-408).
The Authority has reiterated this standard in numerous cases, see, for example: U.S. Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 306, 310 (1993); Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, Tennessee, 50 FLRA 220, 230 (1995).
Here, the only reasonably foreseeable effect of moving the telephone was whether this had more than a de minimis effect on the ability to hear and be heard with the telephone located outside Ms. Adams' office. I conclude, as Sgt. Randolph credibly testified, that speaking on the telephone outside Ms. Adams' office, ". . . would be no problem. . . ." (Tr. 124); that, ". . . I don't think it would be anything considerable." (Tr. 124); and based on the entire record, that the impact of moving the telephone, from inside Ms. Adams' office to a table immediately adjacent to the door, for all or some portion of the swing, or night, shift was no more than de minimis. The slight increase in noise level had no more that a de minimis effect on the ability to hear and be heard. Sgt. Randolph's expert opinion was fully confirmed by the testimony of Ms. Adams (Tr. 76, 81) and Mr. Wahl (Tr. 102-103) concerning their experience in calling and talking to employees when the telephone was outside Ms. Adams' office; by Mr. Martin's admission that he talked to Ms. Adams' and to others (Tr. 28). Accordingly, because the impact of moving the telephone was no more than de minimis, Respondent did not violate § 16(a)(5) or (1) of the Statute by its unilateral action. Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 578 (1992); U.S. Patent and Trademark Office, 45 FLRA 40, 51 (1992).
Having found that Respondent did not violate § 16(a)(5) or (1) of the Statute, it is recommended that the Authority adopt he following:
The Complaint in Case No. AT-CA-50246 be, and the same is hereby, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 26, 1996
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. Member Wasserman's dissenting opinion is set forth at the end of this decision.
2. Well before the events that gave rise to this dispute, the day supervisor's practice was to leave the public address system on in his office when he left at 4 p.m. so that employees throughout the building could hear the telephone ring in his office and could answer the phone in the swing shift supervisor's office. When this practice caused the system to burn up, it was terminated. See Judge's Decision at 7. The parties agree that the termination of this practice occurred several months before, and was unrelated to, the change at issue in this case. See id.
3. In particular, after opening arguments, but before any witnesses had been called, the Judge made the following comments to Counsel for the General Counsel on the record:
I'm going to let you call your first witness, but I'm warning you now, I see no merit to this case at this point, absolutely none whatever . . . the only [case] that was less meritorious was [a prior] case . . . why your office brought that complaint, I will never, never understand.
Transcript at 12.
4. Alternatively, the General Counsel asserts that the Respondent had a duty to bargain over the impact and implementation of its decision to move the telephone. In view of the decision we reach below, we do not address this alternative argument.
5. Although the Respondent views the effect of the change here as "insignificant", see Opposition at 2, it has not questioned Authority precedent that the de minimis doctrine applies only to impact and implementation bargaining, and we decline to reexamine this precedent sua sponte. Thus, we find it unnecessary to address the effect of moving the telephone in this case.
6. Had the General Counsel claimed that the Respondent was obligated to bargain the impact and implementation of locking the door, it would have been appropriate for the Judge to examine whether the effect on bargaining unit employees of locking the door was more than de minimis. See SSA at 407-08. Losing access to the telephone was one of these effects. We note that, prior to locking the door, employees had access to the telephone inside the office for personal calls. The only other telephone available for employees was located outside the building, which was difficult, if not impossible, to hear from inside the building. See Transcript at 22.
7. Such bargaining may have resulted in relocation to a different place entirely. Examples of other alternatives for relocating the telephone, as asserted by the General Counsel, include: "the Respondent could have put the telephone in a location other than the open shop area and/or made another telephone available to employees without adversely affecting the security of [the] office." Exceptions at 9.
8. On consideration of the record and the Judge's decision, we do not find that the Judge prejudged the case or failed to give due consideration to the evidence adduced by the General Counsel. However, we agree with the General Counsel that the comments made by the Judge at the hearing were inappropriate. The Authority's Administrative Law Judges are responsible under the Administrative Procedure Act to conduct hearings "in an impartial manner." 5 U.S.C. § 556(b). We expect the Judge to avoid in the future giving parties any basis to perceive that he has prejudged their case, and assume that he will not retaliate against the General Counsel for having complained about his conduct here.
9. This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997, and was previously contained in 5 C.F.R. § 2423.29. As the amended regulation applies to all ULP complaints pending after October 1, 1997, the amended regulation is applicable. See 62 Fed. Reg. 40922, 46175 (1997).
Dissenting Opinion Footnote Follows:
*/ However, I join my colleagues in the opinions expressed in footnote 8, supra.
ALJ's Footnotes Follow:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as, "§ 16(a)(5)".
2. Some years earlier, Respondent had implemented recommended engineering controls including construction of a wall about two-thirds the way up the facility around the blasting area, with acoustical curtains to the ceiling and doors, to eliminate the noise hazard which previously had existed (Tr. 120-121), Sergeant Randolph stated that when he conducted his test at 2100 hours, on the swing shift, the doors to the beadblast area were open, which meant that the beadlaster was not operating (it would be a safety violation to operate the beadblaster with the doors open, Tr. 118); however, he stated that with the doors closed and the beadblaster operating, the noise