[ v60 p315 ]
60 FLRA No. 69
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
October 8, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
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 § 7116(a)(1) and (5) of the Federal Service Labor- Management Relations Statute (the Statute) by failing to notify the Union and bargain before reassigning two registered nurses (RN A and RN B). The complaint also alleges that the Respondent violated § 7116(a)(1) and (2) of the Statute by reassigning RN A in retaliation for her protected activity. The Judge found that the effect of the reassignments was de minimis and that the GC had failed to establish a prima facie case of illegal retaliation. Therefore, the Judge dismissed the complaint.
Upon consideration of the Judge's decision and the entire record, we conclude that the Judge erred by finding that the change in conditions of employment was de minimis. However, we adopt the Judge's findings and conclusion that the GC did not establish a prima facie case of illegal retaliation. The GC's proposed Notice is adopted, as modified consistent with this decision.
II. Background and Judge's Decision
The facts are fully set forth in the Judge's decision and are only briefly summarized here. On August 20, 2001, the Chief Nurse issued written notices to RN A, RN B and an LPN reassigning them to three different units from unit A2 effective immediately. The notices stated that "[t]his action is taken in order to return a therapeutic milieu to [unit] A2 and ensure the best care for our veteran patient[s]." Decision at 9-10. The Agency did not give the Union prior notice of the reassignments. The Union president sent the Chief Nurse a memo requesting to bargain over the reassignments, but no bargaining ensued. A ULP charge was filed, and a complaint was issued, alleging that the Respondent violated the Statute by reassigning RN A and RN B without providing the Charging Party with notice of and an opportunity to bargain over the reassignments. [n2] The complaint also alleged that the Respondent reassigned RN A in retaliation for her protected activity.
2. Judge's Factual Findings
Initially, the Judge made several findings of fact about events that took place between January 2000 and the day the nurses were reassigned on August 20, 2001. Specifically, the Judge found that, on January 20, 2000, RN A authored a memo to several high-level Agency officials regarding insufficient staffing on unit A2, a copy of which was given to the Union president, who forwarded copies to members of Congress. Two meetings with several high-level Agency officials were held to discuss the memo and, as a result, one of the Respondent's units was closed. Also, in April 2001, RN A challenged the Respondent's decision to change unit A2 RNs' work schedules, and as a result, the change was rescinded. In July 2000 and August 2001, RN A raised concerns about scheduling problems and sought the Union's assistance in resolving those problems.
At RN A's request, she and the Union president met with the Associate Director of Nursing (the Associate Director) in April 2001 to address the Associate Director's alleged "inappropriate and disrespectful behavior toward" RN A. Id. at 6. Several memos were authored by the Associate Director and RN A in May and June, in which each accused the other of acting inappropriately during a conversation that took place on May 16. See id. at 6-8. RN A and the Union President again met with the Associate Director on June 22 to discuss RN A's alleged unsatisfactory interpersonal relations. See id. at 7. The Associate Director followed up [ v60 p316 ] the meeting with another memo to RN A dated June 25, which was the subject of RN A's Step 1 grievance filed on July 19.
Subsequently, on August 13, RN A sent a memo to her Nurse Manager regarding the LPN in which she "discussed what she considered to be inappropriate language" by the LPN. Id. at 9. In the memo, RN A offered to meet with the LPN and the Nurse Manager, with the Union present, for "further input[.]" Id. The Step 1 grievance was heard on August 17 by the Chief Nurse. On August 20, the Chief Nurse reassigned the three nurses and two days later, he denied RN A's Step 1 grievance.
3. Judge's Legal Conclusions
The Judge found that the "nurses did not suffer any change in their basic pay or benefits or change in commute" as a result of the reassignments. Id. at 21. According to the Judge, RN B lost the opportunity to work weekends, "resulting in her loss of weekend differential pay totaling approximately $1,600." Id. at 14. However, the Judge found that "this single instance of impact [was not] sufficient to find a violation in this matter." Id. at 22. The Judge found that RN A suffered from elevated blood pressure as a result of the reassignment. However, the Judge determined that her elevated blood pressure was not a foreseeable result of the reassignment. Finally, the Judge found that there was "no evidence regarding the impact on overtime, staffing, or other conditions of employment" of the remaining employees on unit A2 and "little evidence of any actual impact[.]" Id. Therefore, the Judge concluded that the effect of the reassignments was de minimis.
The Judge also concluded that the GC did not establish a prima facie case that RN A's reassignment was in retaliation for her protected activity. The Judge determined that, "from January 2000 [RN A] engaged in protected activity in seeking assistance from the Union on a variety of issues, including staffing levels in the A2 unit, the . . . start time for nurses, and her differences with" the Associate Director. Id. at 24. The Judge also noted that RN A had filed a grievance on July 19 and that a Step 1 grievance was heard on August 17. The Judge noted the closeness in time of the Step 1 grievance on August 17, and the reassignment on August 20. However, the Judge found that, "[d]espite the sequence of events," there was "nothing that suggests a link between [the RN's] protected activity and the August 20" reassignments. Id.
The Judge rejected the GC's argument based on a witness' testimony that the Chief Nurse had made several remarks about RN A. [n3] According to the Judge, the Chief Nurse's remarks "indicate some frustration with" RN A but they do not establish "a direct connection between her protected activity and the subsequent" reassignment. Id. The Judge found that the reassignments were "directly related to the relationship between [the three] nurses, as credibly set forth by" the Chief Nurse. Id. According to the Judge, RN A's August 13 memo about the LPN, with the LPN's "apparent request to be moved from the unit, started a chain of events that resulted in the" reassignments. Id.
Finally, the Judge found that "[e]ven assuming the [GC] has established a prima facie case . . . the Respondent has met its burden of showing that the [reassignments] would have been conducted in the same manner even in the absence of protected activity." Id. at 25. In this regard, the Judge explained that, given RN A's "criticism of [the LPN] in the August 13 memo, it is reasonable that she would have been one of the three nurses [reassigned] from the unit." Id. Therefore, the Judge dismissed the GC's complaint.
III. Positions of the Parties
1. GC's Exceptions
The GC makes three arguments that the Judge erred in finding that the reassignments had a de minimis effect on bargaining unit employees. First, the GC asserts that the exacerbation of RN A's hypertension was an "actual" adverse effect on her that was more than de minimis and that the Judge should not have rejected this evidence "merely because it was not foreseeable." GC's Exceptions at 12. Second, the GC asserts that RN B's loss of $1,600 in shift differential pay also demonstrates an adverse effect that was more than de minimis. See id. at 13 (citing United States Customs Serv., S.W. Region, El Paso, Tex., 44 FLRA 1128 (1992) (Customs Service) and Dep't of the Air Force, Scott Air Force Base, Ill., 33 FLRA 532 (1988)). Third, the GC argues that the reassignments had more than a de minimis effect on bargaining unit employees because unit employees remaining in unit A2 were affected, with respect to overtime and staffing. See id. at 14. [ v60 p317 ]
The GC also excepts to the Judge's finding that the GC did not establish a prima facie case of unlawful retaliation for RN A's protected activity. As set forth in more detail below, the GC claims that its prima facie case was established by: (1) the nature and extent of RN A's protected activity along with the closeness in time of the reassignment and the protected activities; (2) the Chief Nurse's testimony that he was aware of RN A's protected activities and admission that there was a "loose connection" between RN A's protected activities and the reassignment decision, Tr. at 216; and (3) uncontradicted evidence of the Chief Nurse's and the Associate Director's hostility toward RN A's protected activity.
As for the first claim above, the GC asserts that RN A "engaged in extensive protected conduct[,]" GC's Post Hearing Brief at 36-37, and that she was reassigned "on the heels of the August 17, 2001 Step 1 grievance meeting[.]" Exceptions at 15. In support of this claim, the GC asserts that, in United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Nat'l Ocean Serv., Coast and Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987 (1998) (Dep't of Commerce), the Authority "specifically cited the timing of a change . . . as sufficient to establish [that] union activity was a motivating factor in the change." See GC's Post Hearing Brief at 39.
As for the second claim above, the GC claims that the Chief Nurse admitted that there was a "loose connection" between RN A's grievance and his decision to reassign her. Exceptions at 16. The GC asserts that the Judge ignored undisputed testimony by a witness that the Chief Nurse had referred to the RNs as "those bitches that keep stirring up trouble on A-2" and that he had stated that "the floor would be a lot better off if those two would quit running to the Union with every little thing." Id. at 18. The GC also notes RN A's testimony that the Chief Nurse's "behavior toward her [changed] following her involvement of the Union in workplace issues." Id. at 18.
In support of its third claim above, the GC again relies on the Chief Nurse's alleged comments and also on the various interactions between RN A and the Associate Director, which lead to RN A filing the July 19 grievance.
The GC also excepts to the Judge's alternative finding that the Respondent established its affirmative defense that it would have taken the same action absent the RN's protected activity. According to the GC, undisputed testimony from both RNs refutes the Respondent's stated reasons for the reassignment. The GC disputes the Judge's determination to credit the Chief Nurse's testimony that the reassignment was related to the relationship between the LPN and the RNs because the GC claims the Chief Nurse offered contradictory testimony as to whether the LPN had requested a reassignment. See id. at 19 (citing Judge's Decision at 11 n.5).
Based on the foregoing, the GC asserts that the Authority should find violations of the Statute as to both allegations in the complaint. As a remedy, the GC "seeks the posting of a traditional Notice to All Employees calling for the Respondent to cease and desist from the violations committed in this case." Id. at 20.
2. Respondent's Opposition
The Respondent argues that the Judge correctly found that the effect of the reassignments was de minimis. Specifically, the Respondent asserts that the Judge correctly found that RN A's exacerbated hypertension was not foreseeable. With respect to RN B, the Respondent asserts that RN B only "lost the ability to earn weekend differential pay[,]" which the Respondent claims "is not evidence of a change in working conditions." Opposition at 5. In this connection, the Respondent asserts that RN B "was no[t] guarantee[d]" weekend hours when she was on unit A2 and that her reassignment was only temporary. Id. at 5-6. According to the Respondent, the cases cited by the GC are inapposite because they concerned changes to "established" tours of duty, whereas RN B did not have an established tour of duty. Id. at 6. Finally, as to the remaining employees on unit A2, the Respondent argues that the Chief Nurse's testimony about changes in overtime and staffing was insufficient to show a greater than de minimis effect.
The Respondent also opposes the GC's exception to the Judge's finding that a prima facie case of unlawful retaliation was not established. Specifically, the Respondent asserts that the Judge correctly concluded that RN A's protected activities occurring between January 2000 and June 2001 were "not close enough in time" to the reassignments. Id. at 9 (citing Judge's Decision at 24). The Respondent also asserts that the Judge properly rejected the Chief Nurse's remarks as evidence of "animus connected with [RN A's] protected activity." Id. at 10.
As to its affirmative defense, the Respondent asserts that the Authority should defer to the Judge's determination regarding the Chief Nurse's credibility because that determination was made based on the testimony and the evidence. The Respondent asserts that the Judge specifically found that the Chief Nurse reassigned the three nurses because of their interpersonal conflict and that determination should not be disturbed. [ v60 p318 ]
IV. Analysis and Conclusions
1. The Judge erred in finding the effect of the reassignments de minimis.
Prior to implementing a change in conditions of employment, an agency is required to provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain, if the change will have more than a de minimis effect on conditions of employment. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). In applying the de minimis doctrine, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. See United States Dep't of the Treasury, IRS, 56 FLRA 906, 913 (2000). In determining whether the reasonably foreseeable effects of a change are greater than de minimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. See VA Med. Ctr., Phoenix, Ariz., 47 FLRA 419, 423 (1993) (citation omitted).
Well-established precedent holds that changes in conditions of employment that adversely affect an employee's ability to earn overtime and differential pay is more than de minimis. See, e.g., Pension Benefit Guaranty Corp., 59 FLRA 48, 51 (2003) (Member Pope dissenting in part as to the bargaining order) (citing Customs Service, 44 FLRA at 1129) (Chair Segal dissenting) (PBGC). For example, in Customs Service, the respondent changed the hours of work of an employee and, as a result, he and another employee lost the opportunity to work overtime. The Authority found that "the change in shifts and tours of duty had more than a de minimis effect on the employees' ability to earn overtime, night differential and Sunday premium pay." Customs Service, 44 FLRA at 1129.
The Respondent argues that the foregoing established precedent is inapplicable because in those cases, the employees lost shift differentials due to changes in their established tours of duty, whereas RN B did not have a change in an established tour of duty because she was not guaranteed weekend hours. However, the Respondent's argument is not supported by Authority precedent. In this regard, the Authority has never indicated in any way that whether a loss results from a change in established schedules is relevant. Indeed, the loss at issue in PBGC did not occur as a result of any change in tours of duty; instead the loss resulted from an organizational realignment. See PBGC, 59 FLRA at 51. Similarly, in Dep't of the Treasury, United States Customs Serv., 19 FLRA 1155 (1985) (Dep't of the Treasury), the loss of overtime that the Authority found more than de minimis resulted from the agency's decision to eliminate a certain aspect of the employees' work, such that the employees were no longer "routinely called upon to perform overtime work as they had been in the past." Dep't of the Treasury, 19 FLRA at 1156. The loss of overtime had nothing to do with any change in established tours of duty.
Moreover, the lost overtime in Customs Service had not previously been guaranteed as part of the former shift. Rather, the judge found that employees in that case had "frequently worked on overtime" whenever "an overtime assignment exist[ed.]" Customs Service, 44 FLRA at 1137, 1134. Similarly, as the Respondent expressly acknowledges, RN B "generally had a schedule . . . whereby she worked every other weekend" in her old unit. Opposition at 5. Therefore, like the employees in PBGC and Customs Service, RN B lost the opportunity to earn overtime. Authority precedent requires a conclusion that the loss is more than de minimis. See PBGC, 59 FLRA at 51; Customs Service, 44 FLRA at 1129; Dep't of the Treasury, 19 FLRA at 1158.
The Respondent's argument that the reassignment was only temporary, lasting only 120 days, does not lead us to reach a different conclusion. In this regard, the Judge found that RN B's reassignment lasted more than 120 days and eventually became permanent. See id. at 10 n.4.
Although the Judge found that RN B lost $1,600 in shift differentials, she concluded that "this single instance of impact" was not sufficient to find a violation. Judge's Decision at 22. In so finding, the Judge erred. There is no dispute that, as a result of the reassignment, RN B lost the opportunity to work on weekends and, therefore, the opportunity to earn overtime pay. There is no dispute that this was a reasonably foreseeable effect of the change because RN B's new unit was not open on weekends. See id. at 14. Thus, the effect of the change was not de minimis and the Respondent violated the Statute as alleged in the complaint. [n4]
2. The Judge did not err in finding that the GC failed to establish a prima facie case of illegal retaliation.
In Letterkenny Army Depot, 35 FLRA 113 (1990), the Authority articulated the analytical framework for addressing allegations of discrimination claimed to violate § 7116(a)(2) of the Statute. Under that framework, the GC has, at all times, the overall burden to establish by a preponderance of the evidence that: (1) the [ v60 p319 ] employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118. Whether the GC has established a prima facie case is determined by considering the evidence in the record as a whole, not just the evidence presented by the GC. See Dep't of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 55 FLRA 1201, 1205 (2000) (Warner Robins).
The Authority has long considered the timing of a management action significant in determining whether a party has established a prima facie case of discrimination under § 7116(a)(2) of the Statute. See United States Dep't of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, Cal., 38 FLRA 567, 568 (1990); Dep't of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 900 (1990). However, although the closeness in time between an agency's employment decision and protected union activity engaged in by an employee may support an inference of illegal anti-union motivation, it is not conclusive proof of a violation. See United States Dep't of Labor, Wash., D.C., 37 FLRA 25, 37 (1990) (DOL).
The record reveals that RN A engaged in various protected activities in the months just prior to her reassignment and that her Step 1 grievance meeting occurred only three days before she was reassigned. The Judge acknowledged the closeness in time of these events, but found that "the timing of the events involved" did not support "a finding that the [reassignment] of the three nurses was motivated by [RN A's] protected activity." Judge's Decision at 24. In this connection, the Judge found that there was an intervening event between the filing of the grievance and the reassignment: RN A's August 13 memo criticizing the LPN. Given RN A's memo, the Judge found that the Respondent's decision to reassign RN A was reasonable. See Judge's Decision at 25.
The GC has not established that the Judge erred in finding that this intervening event justified the Respondent's decision to reassign RN A. In this regard, the Judge's determination is consistent with Authority precedent finding no violation of § 7116(a)(1) and (2) of the Statute where, despite closeness in time between protected activity and a disputed agency action, another event justified the agency's action. For example, in DOL, the agency stopped providing water coolers to employees at one location shortly after the union filed a grievance over the agency's refusal to provide water coolers at another location. The Authority noted the closeness in time of the agency's action to the grievance, but found that the agency stopped providing the water coolers because, subsequent to the grievance, it had been advised that appropriated funds could no longer be used to provide the coolers. See DOL, 37 FLRA at 37-40; see also Warner Robins, 55 FLRA at 1206 (timing of low performance appraisals not suspicious where appraisals were given earlier because of upper-level management's change in the appraisal year).
The GC also has not established that the Judge erred by crediting the Chief Nurse's testimony that he reassigned the nurses because of the interpersonal conflicts among them. The Authority will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. 24th Combat Support Group, Howard AFB, Republic of Pan., 55 FLRA 273, 279 (1999). Credibility determinations may be based on a number of considerations including, but not limited to: (1) the witness's opportunity and capacity to observe the event in question; (2) the witness's character as it relates to honesty; (3) prior inconsistent statements by the witness; (4) the witness's bias or lack thereof; (5) the consistency of the witness's testimony with other record evidence; (6) the inherent improbability of the witness's testimony; and (7) the witness's demeanor. See Dep't of Commerce, 54 FLRA at 1006 n.11 (citing Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987)).
"[W]here a party raises exceptions to credibility determinations based on considerations other than witness demeanor, [the Authority] will review those determinations based on the record as a whole." Dep't of Commerce, 54 FLRA at 1007. Because the GC disputes the Judge's credibility determination on bases other than the witness' demeanor, we have reviewed the Judge's determination based on the record as a whole. For the following reasons, we conclude that the Judge's determination to credit the Chief Nurse's explanation that he reassigned the nurses because of interpersonal conflicts is supported by a preponderance of the record evidence, and we deny the GC's exception.
The Chief Nurse testified without dispute that there were "ongoing conflicts" on unit A2, including interactions among the LPN, RN A, and RN B and that the LPN sent an email to the Associate Director, which "brought to light her feelings of harassment." Tr. at 212. The Chief Nurse also testified that he "wanted to remove the individuals from the situation" without placing "blame on any individual . . . ." Tr. at 213. Nothing about this explanation is inherently incredible. The GC disputes the witness' veracity, claiming that the witness offered inconsistent testimony as to whether the LPN was reassigned at her request. However, the Chief Nurse's acknowledgment that the LPN had requested a transfer from unit A2 does not establish that his decision to in fact transfer her was based on her request. Moreover, although the Chief Nurse was found to have made [ v60 p320 ] some unpleasant remarks about RN A, we find those remarks to be insufficient to show that the Chief Nurse reassigned RN A in retaliation for her protected activities.
Based on the forgoing, we conclude that a preponderance of the record evidence supports the Judge's credibility determination and that the Judge correctly determined that the GC did not establish a prima facie case of unlawful retaliation. We, therefore, deny the GC's exception. [n5]
Pursuant to section 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Veterans Affairs Medical Center, Leavenworth, Kansas shall:
1. Cease and desist from:
(a) Detailing bargaining unit employee Registered Nurses (RNs) away from Unit A-2 without first providing the National Federation of Federal Employees, Local 1765 (the Union), the exclusive representative of a bargaining unit of employees, with prior notice and an opportunity to bargain concerning procedures and appropriate arrangements for RNs adversely affected by the details.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Post at facilities at the United States Department of Veterans Affairs Medical Center, Leavenworth, Kansas, where bargaining unit employees represented by the Union, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Head of the Agency, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.
(b) 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 Veterans Affairs Medical Center, Leavenworth, Kansas, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this notice.
We hereby notify employees that:
WE WILL NOT implement details of bargaining unit employee Registered Nurses (RNs) away from Unit A-2 without first providing the National Federation of Federal Employees, Local 1765 (the Union), the exclusive representative of a bargaining unit of employees, with prior notice and an opportunity to bargain concerning procedures and appropriate arrangements for RNs adversely affected by the details.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
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, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581 and whose telephone number is (303) 844-5226. [ v60 p321 ]
Opinion of Member Armendariz, dissenting in part:
I agree that the Judge correctly determined that RN A's reassignment was not in retaliation for the exercise of protected activity and that the General Counsel's (GC's) exception as to this allegation in the complaint should be denied.
However, I disagree with the decision to reverse the Judge's finding that the effect of the reassignments was not more than de minimis. The GC asserted that as a result of the reassignment, RN B lost shift differential pay. As the Respondent argues in its opposition, RN B did not have an established work schedule and was not previously guaranteed a schedule whereby she earned shift differential pay; what she lost was the possibility to work on weekends. See Opposition at 5-6 (citing Tr. at 197). Therefore, I would find United States Customs Serv., Southwest Region, El Paso, Tex., 44 FLRA 1128 (1992) (Customs, Southwest Region), relied on by the GC, distinguishable because that case involved changes to established schedules.
I also find that this case is distinguishable from those cited by the GC where the loss of the opportunity to earn overtime was only one of several effects which, taken together, constituted a change in working conditions whose impact was greater than de minimis. See, e.g., Pension Benefit Guar. Corp., 59 FLRA 48, 51 (2003) (as a result of the implementation of an organizational change, there was a foreseeable reduction in a particular employee's travel; that employee was no longer assigned her own laptop; and there was a foreseeable reduction in the amount of overtime pay available to that employee); Customs, Southwest Region, 44 FLRA at 1129 n.2, 1137 (in addition to employees being deprived of the opportunity to earn Sunday premium pay and night differential pay, the effect of the agency's change in shifts resulted in a greater risk of foreseeable harm to the agents because there was a decrease in the number of inspectors on duty during shifts); Dep't of the Treasury, 19 FLRA at 1158 (issuance of a manual supplement "had a reasonably foreseeable impact on unit employees in terms of potential reductions-in-force, reductions in overtime, classification changes and other changes in the assignment of work."). In the present case, the loss of the possibility to earn non-guaranteed shift differential is not sufficient to establish that the effect of the change was greater than de minimis. Accordingly, in agreement with the Judge, I would find that "this single instance of impact" is not sufficient to find a violation of the Statute. Judge's Decision at 22.
Moreover, I note that the period of time over which RN B lost the possibility to earn weekend differential was limited. In this regard, and as found by the Judge, RN B remained in the new assignment until her request to make her reassignment to that unit permanent was approved. See Judge's Decision at 10 n.4 (citing Tr. at 200-01, 203-04). Accordingly, RN B lost the possibility to earn weekend differential only from the time she was detailed until her voluntary, permanent assignment to the position to which she was detailed. See Tr. at 193 (RN B testified that "when [she] was detailed, [she] did not work weekends.").
I would also find, in agreement with the Judge, that the other effects asserted by the GC are not more than de minimis.
Accordingly, I would dismiss the complaint in its entirety.
File 1: Authority's Decision in 60
69 and Opinion of Member Armendariz
File 2: ALJ's Decision
Footnote # 1 for 60 FLRA No. 69 - Authority's Decision
The opinion of Member Armendariz, dissenting in part, is set forth after this decision.
Footnote # 2 for 60 FLRA No. 69 - Authority's Decision
The complaint did not allege a violation as to the LPN's reassignment.
Footnote # 3 for 60 FLRA No. 69 - Authority's Decision
The Judge did not make specific findings as to what the remarks were. The GC's witness testified to the following regarding the Chief Nurse's remarks:
Once he referred to [RN A] and [RN B] as "those bitches that keep stirring up trouble on A-2." And other times, he would say that the floor would have been a lot better if everybody quit running to the union, if those two would quit running to the union . . . . [H]e would tell me that A-2 wouldn't have any difficulties if those two would quit running to the union with every little thing . . . . He never complained about their nursing ability. It was mainly the trouble he felt they kept stirring up by going to the union.
Tr. at 148-49.
Footnote # 4 for 60 FLRA No. 69 - Authority's Decision
In light of this conclusion, we do not address the GC's additional arguments regarding this aspect of the Judge's decision.
Footnote # 5 for 60 FLRA No. 69 - Authority's Decision
In light of this conclusion, we do not reach the GC's exception to the Judge's finding that the Respondent established an affirmative defense.