OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DECISION

Findings of Fact

Analysis and Conclusions

(A) Unilateral Change

Section 7103(a)(14) of the Statute defines conditions of employment as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" A determination as to whether a change concerns a condition of employment is based on the subject matter of the change and whether (1) that subject matter pertains to bargaining unit employees or; (2) there is a direct connection between the subject matter and the work situation or employment relationship of unit employees. See generally Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

A change in the practice of regularly rotating delivery routes among MVOs pertains to unit employees clearly occurred herein. There is also no doubt that there is a direct connection between the routes driven by the MVOs and the work situation of these bargaining unit employees. The MVOs herein spend most of their working hours driving a tractor trailer rig over the road, the route assigned to each MVO is a prerequisite, and consequently, a condition of employment. See Fort Stewart Schools v. FLRA, 110 S. Ct. 2043, 2047 (1990)(definition of "conditions of employment" suggests that the phrase refers to "qualifications demanded of, or obligations imposed upon, employees"). Accordingly, it is found and concluded that the change in the practice of regularly rotating delivery routes among the various MVOs constituted a change in their conditions of employment.

The evidence further demonstrated that all the MVOs, involved in this case, are equally qualified to drive all tractor trailer rigs over all routes. In other words, Respondent previously determined that all MVOs were equally qualified to perform all of the MVO duties necessary to accomplish its mission. Respondent already had determined to whom or what position the duties would be assigned. Furthermore, Respondent always decided when and which routes needed to be driven. Under these circumstances, it is clear that Respondent determined (1) the particular duties to be assigned, (2) when the work assignments will occur, and (3) to whom or what position the duties would be assigned. Therefore, the change did not concern management's right to assign work under Section 7106(a)(2)(B) and was, thus, negotiable as to substance. See U.S. Department of Health and Human Services, 41 FLRA 1309 (1991), U.S. Department of the Treasury, Customs Service, 38 FLRA 770, 785-88 (1990), and U.S. Department of Commerce, National Weather Service, 37 FLRA 392, 399 (1990).

Furthermore, under the standard set forth in Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986), the record disclosed that the change had more than a de minimis adverse impact on the bargaining unit employees. In this regard, the evidence disclosed adverse impact resulting from the change ranging from a decrease in overtime and income,⁽¹⁾ loss of "hook and drop" routes, to an increase in stress and potential danger from driving routes in areas prone to inclement weather, and weekend driving. Accordingly, it is found that the Union also had the right to negotiate the impact and implementation of the instant change.

(B) Bypass of the Union

Section 7114(a)(1) of the Statute provides that a labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for all employees in the unit. The Authority has long held that on matters which are properly bargainable with the exclusive representative, the exclusive representative is the sole spokesman of the employees, and any attempt by an agency to deal directly with employees concerning proposed changes in their conditions of employment, constitutes an unlawful bypass in violation of Section 7116(a)(1) and (5) of the Statute.

In United States Department of Transportation, Federal Aviation Administration, 19 FLRA 893 (1985), the Authority found that the Respondent had violated Section 7116(a)(1) and (5) of the Statute by posting a memorandum which directly solicited the opinions of radar unit employees concerning a proposed change in conditions of employment by eliminating the evening shift on weekends; and by soliciting the opinions of unit employees concerning a proposed change in conditions of employment by eliminating the evening shift on weekends; and by soliciting the opinions of unit employees at a meeting and in a posted follow-up memorandum thereafter, concerning proposed changes in shift hours contingent upon the availability of someone to work until midnight. Furthermore, the Authority stated that, management was "not merely attempting to gather information or opinions" concerning its operations but directly sought the opinions of these bargaining unit employees as to proposed changes in their conditions of employment. In the Authority's view, such conduct constituted an unlawful bypass of the exclusive representative since it concerned immediate contemplated changes in conditions of employment affecting bargaining unit employees. Shelton did not testify. Thus, the uncontroverted evidence established that Shelton dealt directly with bargaining unit employees. Accordingly, it is found that the record supports the allegation that Respondent, by the conduct of Shelton, committed an unlawful bypass of the Union.

In light of the foregoing, it is found and concluded that a preponderance of the evidence establishes that Respondent violated Section 7116(a)(1) and (5) of the Statute by unilaterally changing the route rotation schedule for MVOs and by unlawfully bypassing the Union when Manager Gary Shelton directly solicited views from unit employees over conditions of employment.

(C) Status Quo Ante Remedy is Appropriate

In addition to the normal Notice posting and cease and desist order, the General Counsel seeks a status quo ante remedy, as well as a make whole remedy for any employees who suffered loss of pay or benefits as a result of Respondent's unlawful unilateral change. Both additional remedies appear appropriate to the undersigned.

Since the change herein is negotiable as to substance, a status quo ante remedy is appropriate. See Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278 (1986); Long Beach Naval Shipyard, Long Beach, California, 17 FLRA 511 (1985). Such a remedy is appropriate in this case even if it were concluded that the obligation is only as to impact and implementation since the measurable impact here is more than de minimis. Federal Correctional Institution, 8 FLRA 604 (1982).

Applying the five factors in Federal Correctional Institution, supra, to this case is not difficult since the instant record disclosed the following: (1) Respondent never gave the Union any notice of the change; (2) the Union requested to bargain; (3) there was an attempt by management to negotiate or deal directly with unit employees; (4) there was more than a de minimis impact; and, finally (5) there is no evidence of any disruption to the agency's operations. See also: Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA 1226, 1239, 1260 (1991); Department of Health and Human Services, Social Security Administration, 28 FLRA 409, 431 (1987) and Federal Aviation Administration, 15 FLRA 100 (1984).

Based on the foregoing, it is recommended that the Authority adopt the following: