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57 FLRA No. 155
UNITED STATES DEPARTMENT OF THE AIR
FORCE, LUKE AIR FORCE BASE, ARIZONA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547
DECISION AND ORDER
April 16, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members.
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 (Judge) filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., when it changed the process for providing employees with a Request for Equal Employment Opportunity (EEO) Counseling package (EEO package), which contains forms and information relating to EEO complaints, without providing the Charging Party with notice and an opportunity to bargain over the change as required by the Statute.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.
II. Background and Judge's Decision
The parties' collective bargaining agreement excludes matters concerning EEO complaints from the agreement's negotiated grievance procedure. However, Article 14 of the parties' agreement addresses EEO.
The Respondent's EEO office provides employees who allege that they have experienced discrimination with an EEO package, consisting of blank forms and questionnaires, summaries of EEO law, and descriptions of the EEO complaint process. Prior to the arrival of the current EEO director (EEO director), the EEO office gave the package to any employee prior to conducting any interview with the employee. After the arrival of the EEO director, the EEO office began conducting an initial interview with the employee prior to disbursing an EEO package. Previously, the Union's EEO fair practices coordinator could obtain packages from the EEO office, but packages were no longer available after the EEO director began conducting initial interviews.
The Charging Party requested to bargain over the issue of when and to whom an EEO package will be given by the EEO office. The Charging Party also stated that it expected that the status quo be maintained until bargaining was completed. The Charging Party received no response to its request to bargain.
B. Judge's Decision
In response to the Respondent's preliminary argument that the Authority does not have jurisdiction over the dispute, the Judge noted that under § 7105(a)(2)(G) of the Statute the Authority is responsible for resolving complaints of unfair labor practices. The Judge also noted that § 7116(a)(5) provides that it shall be an unfair labor practice for an agency to refuse to negotiate in good faith with a labor organization as required by the Statute. The Judge found that the charge alleged that the Respondent refused to negotiate with the Charging Party prior to changing a practice with respect to when an EEO package would be provided to an employee. The Judge further found that the Respondent made no allegation that the Charging Party lacked standing to file the charge or that it was untimely filed. Accordingly, the Judge found that the charge met the jurisdictional requirements of § 7118 of the Statute.
Additionally, in response to the Respondent's general contention that the EEOC is solely responsible for interpreting and issuing regulations regarding the enforcement of 42 U.S.C. § 2000e-16, the Judge determined that the Respondent cited nothing that divests the Authority of its jurisdiction over unfair labor practice charges that relate to EEO matters. The Judge rejected the Respondent's argument that the complaint should be dismissed because the Authority lacked jurisdiction.
As to the merits of the complaint, the Judge stated that prior to implementing a change in conditions of employment of bargaining unit employees, an agency is [ v57 p731 ] 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. According to the Judge, the Respondent admitted that it notified the Union that it intended to change its procedure and that the practice instituted by the EEO director differed from that of the previous EEO director.
The Respondent asserted that its actions did not violate the Statute because it had no obligation to bargain over the change. According to the Respondent, the complaint does not involve a grievance because the parties' agreement excludes discrimination complaints from coverage under the negotiated grievance procedure. The Respondent also argued that the EEOC, rather than the Authority, has jurisdiction over EEO matters.
The Judge found that under the Statute, a matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment. The Judge noted that the Authority has held that matters related to discrimination in employment are conditions of employment. The Judge also found that only those aspects of a matter that are specifically provided for by statute are found to be excepted from the definition of conditions of employment; the aspects of a matter over which an agency has discretion are not so excepted. The Judge found that the Respondent made only a generalized claim that the subject matter of this case is specifically provided by statute and failed to cite any specific statutory provision that governs a sequence and process for interviewing employees who suspect that they have suffered discrimination. Accordingly, the Judge found that the process for providing an employee with an EEO package concerns conditions of employment within the meaning of § 7103(a)(14) of the Statute. The Judge found that, assuming for the sake of argument that a grievance was not involved, such a fact would not mean that a condition of employment is not involved. See Judge's Decision at 10. The Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute as alleged.
As a remedy, the Judge recommended that a status quo ante remedy be ordered, in addition to ordering the Respondent to rescind the change in the procedure for obtaining an EEO package, to bargain with the exclusive representative upon request, and to post a notice.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent outlines the steps in filing a discrimination complaint and asserts that the subject matter, EEO procedures, is specifically provided by statute and jurisdiction is conferred upon the EEOC, and not the Authority. The Respondent argues that since there is no condition of employment involved here, there is no obligation to bargain and thus no jurisdiction. The Respondent contends that this case must be dismissed because the Authority is without jurisdiction.
The Respondent maintains that the Judge found that this case involved a grievance in his decision at page 10. The Respondent asserts that the Charging Party does not have the same rights in the EEOC's procedure as it does regarding the contractual grievance procedure. The Respondent argues that because precomplaint counseling sessions do not constitute grievances or formal discussions, the Charging Party has no right to be present.
The Respondent argues that this case does not involve a condition of employment. The Respondent recites the definition of a "condition of employment" within the meaning of § 7103(a)(14) of the Statute and notes that the Authority has broadly interpreted what constitutes a condition of employment.
The Respondent argues that even if a change in conditions of employment occurred, the change was de minimis because "employees will always receive a package in this case when they want one and are not impacted in any way. Thus, the situation in this case shows the circumstances are de minimis under the law." Exceptions at 14. Accordingly, the Respondent contends that there was no obligation to bargain.
B. General Counsel's Opposition
The General Counsel argues that the Respondent merely makes general assertions that the EEOC is solely responsible for issuing and interpreting regulations relating to the enforcement of its statute. The General Counsel contends that the Respondent fails to address the specific factual and legal conclusions made by the Judge concerning jurisdiction. Specifically, the General Counsel argues that the Respondent has not contradicted the Judge's determination that there is nothing in the EEOC's statute divesting the Authority of its jurisdiction to determine whether the Respondent committed an unfair labor practice. [ v57 p732 ]
The General Counsel also asserts that the Respondent ignores the fact that this case alleges a bargaining violation and not a matter relating to grievances. The General Counsel contends that the Judge correctly noted that even if a matter is not grievable under the parties' agreement, that matter can still be (and is) a condition of employment within the meaning of the Statute.
According to the General Counsel, the Judge correctly concluded that the process for providing employees with an EEO package concerns a condition of employment within the meaning of § 7103(a)(14) of the Statute. [n1] The General Counsel contends that the Respondent makes mere assertions, without proof, that the procedure for obtaining an EEO package does not constitute a condition of employment.
The General Counsel finally contends that the Respondent provides only very general assertions in support of its de minimis argument. The General Counsel notes that the only testimony relied on by the Respondent is that which the Judge discredited. The General Counsel asserts that the Judge's recommendation should be adopted.
IV. Analysis and Conclusions
A. The Authority has jurisdiction over this matter
Under § 7105(a)(2)(G) of the Statute, the Authority is authorized to conduct hearings and resolve complaints of unfair labor practices. Under § 7118 of the Statute, the Authority has the responsibility to investigate and conduct hearings regarding unfair labor practice allegations and to resolve such allegations. In this case, the Charging Party filed a charge alleging that the Respondent committed an unfair labor practice by violating § 7116(a)(1) and (5). The General Counsel issued a complaint based on the charge. Nothing in the Respondent's arguments regarding the authority of the EEOC to examine allegations of discrimination limits or diminishes the Authority's responsibilities under the Statute. Accordingly, we deny this exception.
B. The Union had a right to be involved in this matter
Contrary to the Respondent's contention, the Judge did not find that the matter at issue constituted a grievance. The Judge found that the process for providing employees with an EEO package concerns a condition of employment within the meaning of § 7103(a)(14) of the Statute. The Judge also found that the fact that a matter is not a grievance does not mean that the matter cannot relate to a condition of employment and thus be subject to collective bargaining. See Judge's Decision at 10. Accordingly, the Respondent's argument provides no basis for setting aside the Judge's decision and we deny this exception.
C. This matter involves a condition of employment
A "condition of employment" means "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" 5 U.S.C. § 7103(a)(14).
The Respondent recites Authority precedent regarding previous determinations made regarding whether a given matter constituted a condition of employment. However, the Respondent fails to demonstrate that the process for an employee to obtain an EEO package does not constitute a condition of employment. Accordingly, we deny this exception.
D. The de minimis defense is not applicable here
The Respondent recites several cases in which a de minimis defense was raised, but fails to demonstrate how the facts of this case are similar to any of the precedent it relies upon. [n2]
The duty to bargain in good faith under the Statute requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment, absent a waiver of bargaining rights. The Authority and the National Labor Relations Board have both found that there are certain management actions that do not rise to a level of creating a bargaining obligation. See Dep't of Health and Human Services, Soc. Sec. Admin., 24 FLRA 403 (1986) (DHHS, SSA).
However, where an agency institutes a change in a condition of employment and the change is itself negotiable, the extent of the impact of the change on unit employees is not relevant to whether an agency is obligated to bargain. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995). In his recommended decision, the Judge found that the decision to change the process for providing employees with Request for EEO Counseling packages was itself negotiable. See Judge at 11. Nothing in the Respondent's [ v57 p733 ] exceptions demonstrates that the Judge's determination was in error. Therefore, as the matter is substantively negotiable, the use of de minimis is not applicable. Accordingly, we deny this exception.
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, Luke Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Unilaterally implementing a change in terms and conditions of employment with respect to the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees by the EEO Office without providing the American Federation of Government Employees, Local 1547, the exclusive representative of its employees, with advance notice and an opportunity to bargain over the change.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining 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) Rescind the change in the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees.
(b) Notify and, upon request, bargain with the American Federation of Government Employees, Local 1547, concerning any proposed change in the procedure for distribution of Request for EEO Counseling packages to bargaining unit employees.
(c) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1547 are located, 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 Commander, Luke Air Force Base, 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, Denver 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.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of the Air Force, Luke Air Force Base, Arizona, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
We hereby notify employees that:
WE WILL NOT unilaterally implement a change in terms and conditions of employment with respect to the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees by the EEO Office without providing the American Federation of Government Employees, Local 1547, the exclusive representative of bargaining unit employees, with advance notice and an opportunity to bargain over the change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL NOT rescind the change in the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees.
WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, Local 1547, concerning any proposed change in the procedures for distribution of Request for EEO Counseling packages to bargaining unit employees.
Dated:____________ By: _______________________
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, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose telephone number is: (303)844-5224.
File 1: Authority's Decision in 57 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 57 FLRA No. 155 - Authority's Decision
Footnote # 2 for 57 FLRA No. 155 - Authority's Decision
Instead, the Respondent claims that no change has occurred because employees always receive EEO packages. To support its claim, the Respondent relies on the testimony of the EEO director, whose testimony was specifically rejected by the Judge. The Judge credited several other witnesses who indicated that an employee had to provide information to the EEO director prior to receiving an EEO Package.