OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF VETERANS AFFAIRS, REGIONAL OFFICE AND INSURANCE CENTER, PHILADELPHIA, PENNSYLVANIA
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. BP-CA-20767
Verne R. Smith, Esq. For the General Counsel
Before: SALVATORE J. ARRIGO Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, et seq.
(herein the Statute).
Upon an unfair labor practice charge having been filed by
the captioned Charging Party against the captioned Respondent, the
General Counsel of the Federal Labor Relations Authority (herein
the Authority), by the Regional Director for the Boston Region,
issued a Complaint and Notice of Hearing alleging Respondent
violated the Statute by implementing a compressed work schedule
without providing the Charging Party with an opportunity to bargain
over the substance or impact and implementation of the change.
A hearing on the Complaint was conducted in Philadelphia,
Pennsylvania, at which all parties were afforced full opportunity
to adduce evidence, call, examine and cross-examine witnesses and
argue orally.(1) Briefs were filed
by Respondent and the General Counsel and have been carefully
Upon the entire record in this case, my observation of the
witnesses and their demeanor and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material the American Federation of Government
Employees, AFL-CIO (herein AFGE) has been the exclusive collective
bargaining representative of various employees of the Department of
Veterans Affairs. AFGE is represented by the National Veterans
Administration Council of Veterans Administration Locals (the
Council) when dealing with Respondent at the national level and by
Local 940 (sometimes the Union) when dealing with the Respondent
for matters which are limited in effect to the Philadelphia
Regional Office and Insurance Center.(2)
Respondent's Insurance Center manages the life insurance
program for the Department of Veterans Affairs. In order to
facilitate servicing insurance policy holder, the Insurance Center
operates a toll free telephone number. Due to a decision in late
1991 or early 1992 to accelerate the receipt of 1992 veteran's
insurance dividends, a substantial increase in the number of
telephone calls by policy holders were placed.
Sometime in early 1992 the Insurance Center discovered that
approximately 90 percent of the telephone callers on the toll free
number were receiving a busy signal on the caller's first and
second attempts to contact the Center.(3) This failure to complete the telephone call,
or "blockage", generated numerous complaints including
congressional inquiries. The Center attempted to remedy this
unsatisfactory condition by first expanding the hours of operation
of the telephone system to 6:30 p.m. from the prior 5:30 p.m.
closing time, using existing employees and paying overtime premium,
hiring some temporary employees, and rearranging the shifts of some
employees. Funds available for overtime payments were dwindling and
the Insurance Center concluded that a better approach would be to
change the work schedules of those employees assigned to the
Veterans Insurance Phone Section to ten hours a day, four days a
week, which was permissible under the Federal Employees Flexible
and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120
et seq.(4) However the
policy of the Veterans Benefits Administration of the Department of
Veterans Affairs was to avoid any compressed workweek schedule.
That policy had been successfully defended in 1985 before the
Federal Service Impasses Panel in Case No. 84 FSIP 113. In that
case, which involved the Council, the Panel ordered the Union to
withdraw its proposal for a compressed workweek schedule, having
concluded the Agency had shown that establishing a compressed
workweek schedule in any division within the "Department of
Veterans Benefits" would likely result in reduced productivity,
diminished level of services, or increased costs of Agency
Respondent sought permission to utilize a compressed
workweek and in response to its request Respondent received written
authorization to establish a compressed workweek from the office of
the Chief Benefits Director by letter dated March 12, 1992, which
1. Your request for a temporary exception to VBA policy, not to exceed one year, to establish
compressed work weeks in the Veterans Insurance Phone
Section is approved.
2. Although the restriction at VBA Regional Offices from using compressed workweeks was a
consensus decision of all test sites and was successfully defended by management before the
Federal Service Impasses Panel, your attempt to deal with an unprecedented workload clearly
justifies your request.
3. Please take the necessary steps to meet your local labor relations obligations on impact and
implementation bargaining prior to effecting the change in
On March 16, 1992, Joseph McCann, Respondent's Deputy
Assistant Director for Insurance, provided Tyrone Perkins, AFGE
Local 940 President, with the following letter:
1. On Monday, March 16, 1992, management of the Policyholders Services Division will discuss
with employees of VIPS the possibility of using an alternative work schedule. This work schedule has
been approved by the Chief Benefits Director and will allow VIPS to more efficiently staff the Insurance
toll free number during our new hours of operation, 8:00
A.M. to 6:30 P.M. EST.
2. I will be available to discuss the alternate work schedule. Please feel free to contact me at ext.
On that same day Perkins wrote the following reply to
Thank you for your letter of March 16, 1992, concerning the possibility of using an alternate work
schedule in the Veterans Insurance Phone Section
Please be advise by means of this communication that the Union demands bargaining on the
significance (sic) change to the work schedule policy that is currently in place in the Veterans
Insurance Phone Section.
Should you need to discuss this matter further with me, please do not hesitate to contact me in the
McCann replied to Perkins on March 16 stating:
1. I have received your letter of March 16, 1992, requesting to bargain over the alternative
work schedule in VIPS.
2. I would like to meet with you at 2:00 P.M. March 17, 1992, in my office to discuss the
alternative work schedule experiment.
On March 17, Perkins and AFGE Local 940 Chief Steward Joseph
Malizia met with McCann. At this meeting, McCann gave Perkins a
copy of the Chief Benefits Director's March 12 letter, above, and
some other documentation illustrating how the proposed alternative
work schedule (AWS) would work. The parties discussed several other
matters pertaining to AWS, specifically the 1985 FSIP Decision and
why Respondent needed to implement this kind of schedule in the
Phone Service. McCann told Perkins that overtime funds would be
exhausted by the end of March 1992, and that they had to do
something to prevent customer complaints. Perkins told McCann that
because of the nationwide VA policy against AWS, he had to contact
the VA Council before negotiating further at the local level.
McCann took the position that the bargaining obligation on the
matter was at the local level and insisted they move forward with
negotiations on the impact and implementation of the change.
In the evening of the March 17 meeting, Perkins telephoned
Artie Pierce, the Council President. After discussion Pierce told
Perkins that he should not negotiate locally with Respondent until
Pierce contacted Veterans Affairs Central Office labor relations
Next ensued a series of electronic mail messages between
Perkins and McCann:
Friday, March 20, Perkins to McCann:
I spoke with the National President of the VA Council concerning your proposal to establish
compressed work weeks in VIPS. After discussing this matter with Mr. Pierce we feel that there
are some national ramifications - relative to the decision by the Federal Service Impasses Panel
on this subject. Mr. Pierce will communicate his concerns directly to Mr. Daniel Sobrio, Director
of Labor-Management Relations in CO. I will wait until I receive instructions from Mr. Pierce
before I offer any proposals on this subject matter.
Monday, March 23, McCann to Perkins:
We plan on implementing the Alternative Work Schedule experiment in VIPS on March 30, 1992.
Prior to that date I will be available to discuss our
implementation plan with you.
March 23, Perkins to McCann:
Be reminded that our request to negotiate is still on the table. Your unilateral implementation will
be addressed in the appropriate forum.
March 23, McCann to Perkins:
As I informed you on March 17, 1992, I have been assigned to negotiate the implementation of
the Alternative Work Schedule experiment with Local 940. I am available to meet with you to
discuss any proposals you may have concerning our
Also on March 23, McCann sent Perkins a memorandum stating
that his electronic mail message of March 20 was received and again
stating that Respondent planned to implement AWS on March 30 and
that he was available to meet with Perkins concerning
implementation of the plan. On that same day Perkins sent McCann
the following memorandum:
1. I received your reply to my Wang e-mail message and your letter dated March 23, 1992,
concerning your intentions to implement the Alternate Work Schedule in VIPS on March 30,
2. There are two important concerns that I have regarding your actions in this matter. First is
your decision to bypass the Union and engage in direct consultation and negotiations with
employees on the implementation of the Compressed Work Weeks in VIPS. Second is your
implied position of implementing this change in working condition prior to the conclusion of
bargaining. Both of these acts are specifically prohibited by Title 5 of the Federal Service
Labor-Management Statute. In the letter that you provided to me from the Chief Benefits Director,
Mr. D'Wayne Gray, he stated "Please take the necessary steps to meet your local labor relations
obligations on impact and implementation bargaining prior to effecting the change in working
3. Prior to discussing any implementation plans, the parties should negotiate ground rules to
govern how formal negotiations will proceed. I am willing to meet with you to discuss mutually
acceptable time and meeting dates for this purpose. Please contact me at your earliest
convenience. . .
McCann immediately replied to Perkins, setting up a meeting
for 3:00 p.m. that day "to discuss ground rules for formal
At the March 23 meeting, attended by Perkins, Chief Steward
Malizia, and McCann, Perkins advised McCann that several other
local working conditions were then pending negotiations. Perkins
testified he wanted McCann to be aware of these other pending
issues to put the AWS negotiations "into context." Perkins also
told McCann that the parties were negotiating each of the other
topics on a "rotational basis", and had agreed to ground rules to
govern these other negotiations. McCann responded that the he was
not aware of the other, pending negotiations.(5) The parties discussed whether AWS would
accomplish the desired result, i.e.
eliminate the blockage, and how Respondent planned to supervise the
employees on the extended hours. Discussion also went to
Respondent's use of overtime to staff the extended hours. In this
regard, Perkins asked why management could not continue using the
overtime as it had done in the past and McCann replied that
budgetary restrictions precluded the continued use of overtime. The
meeting concluded with Perkins indicating he would contact Council
President Pierce for further directions.(6)
On March 24, 1992 Local 940 President Perkins called Council
President Pierce and during the conversation Pierce, among other
things, instructed Perkins to notify Respondent of the Council's
interest in the matter and postpone any local negotiations on AWS
until the Council issued further instructions. Perkins then
informed McCann of his discussion with the Council. Perkins made a
memorandum of the substance of his conversation with Pierce and
sent a copy of the memorandum to McCann. The memorandum stated:
I spoke with Mr. Pierce today at 1:30p.m. concerning AWS in VIPS. He informed me that he
was in contact with VACO regarding this issue. The Labor Relations office in VACO informed
Mr. Pierce that they needed to talk with some additional VACO people on this matter. Mr.
Pierce advised me to contact local management concerning the National VA Council's interest
and to postpone any local activity on this matter until they issue further directions to
McCann sent Perkins the following memorandum on March 26,
1. On March 23, 1992, I met with you and Joe Malizia to discuss ground rules for formal
negotiations on the VIPS Alternative Work Schedule Experiment. During the meeting you
informed me that it was necessary for you to contact the National President of the VA Council
for guidance before we started negotiations. On March 24, 1992, you sent me a wang message
informing me that you could not negotiate until you received further directions from your
2. In our initial meeting of March 16, 1992, I informed you that we were using overtime funds
to help staff the VIPS operation to 6:30pm EST and that these funds would soon be exhausted.
In receiving approval from the Chief Benefits Director to experiment with an alternative work
schedule, we would be able to adequately staff VIPS for the expanded hours of operation. The
approval notice also requested that we take the necessary steps to meet our local labor relations
obligations on impact and implementation bargaining prior to effecting the change in working
3. As previously noted, I attempted to negotiate with you on the local level the implementation
of the Alternative Work Schedule Experiment. You have informed me that you will not negotiate.
Our overtime funds will be exhausted as of Friday March 27, 1992. We have met with the VIPS
employees and over 30 Insurance Specialists volunteered to participate in the Alternative Work
4. On March 30, 1992, we will implement the Alternate Work Schedule Experiment in VIPS.
If you wish to meet with me to negotiable please contact
On that same day Perkins sent Respondent the following
Be advised via this communication, should management implement the Alternate Work Schedule
as stated in Mr. McCann's letter of March 26, the National VA Council will file a national ULP on
the unilateral implementation of the AWS experiment.
The AWS in the Phone Section was implemented on March 30,
1992 precisely as McCann had announced. The record reveals 40
employees volunteered to be put on the AWS, 32 were selected and at
the time of the hearing, 26 were still working the AWS. The adverse
impact on employees was more than de
minimis in that employees had to make
adjustments for day care of children, breaks in the normal work
day, and annual leave since no more than 10 percent of the
employees could be on leave on a given day. Indeed, several
employees asked to be taken off AWS due to family
Local 940 President Perkins testified that as of March 16,
1992 when told of Respondent's AWS intentions, he concluded the
matter had to be negotiated at the National Council level but Local
940 maintained authority to negotiate with Respondent over
groundrules for negotiations.
Deputy Assistant Director for Insurance McCann testified
that he was at all times willing to bargain with the Union on the
impact and implementation of the AWS but did not consider the
matter to be substantively negotiable. McCann also testified
because of information he had regarding prior negotiations with the
Union, he expected the Union would attempt to unduly prolong
negotiations on AWS.
Additional Findings, Discussion and Conclusions
Counsel for the General Counsel alleges that Respondent
implemented the AWS without fulfilling its Statutory obligation to
bargain with the Council or Local 940 concerning the substance,
impact and implementation of the change. Respondent essentially
contends it fulfilled its Statutory bargaining obligation by
providing the Local 940 with an opportunity to negotiate on the
change but the Union failed to do so and that, in any event,
Respondent implemented the change in the manner it did due to the
"exigent circumstances" surrounding the need for AWA.(7)
It is well settled that before an agency implements a change
in a condition of employment, the collective bargaining
representative must be provided with adequate notice of the change
and an opportunity to bargain over the change, to the extent
consistent with the Statute. See National Weather
Service Employees Organization and U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Weather
Service, 37 FLRA 392, 395 (1990); U.S.
Department of Defense, Department of the Air Force, Air Force
Logistics Center, Tinker Air Force Base, Oklahoma, 25 FLRA
914, 939 (1987); and Department of the Treasury,
U.S. Customs Service, Region I (Boston, Massachusetts), 16
FLRA 654, 666 (1984) (Customs Service).
Whether the notice of a change given to a union is adequate depends
upon the facts of each case. Id at 668-670.
Assuming adequate notice of a change and an opportunity to bargain
is given, a union, to preserve its Statutory right to bargain on
the change, must make a timely request to bargain on the change.
Internal Revenue Service (District, Region,
National Office Unit), 14 FLRA 698 (1984).
In the case herein, the change in hours under AWS was local
in nature and Local 940 was the proper collective bargaining
representative to receive notice of the change. Such notice was
received by Local 940 on March 16. Local 940 was the authorized
representative to negotiate with Respondent over the local change
and indeed made a demand to bargain on March 16 which culminated in
a bargaining session with management on March 17 at which the Union
received a detailed explanation of the change and managements
reason for its implementation. Upon notification of the proposed
change Local 940 sought assistance from the Council and deferred
submitting any negotiating proposals because the Union and the
Council concluded the matter had "national ramifications" while
Respondent pressed on for local negotiations. Thereafter, Local
940, the authorized collective bargaining representative for the
unit employees affected by the change, failed to submit any
negotiating proposals although steadfastly maintaining to
Respondent that it had an outstanding request to negotiate on the
matter. Local 940's President Perkins was aware from March 17 of
management's desire to expedite the change in work hours due to the
gravity of the problem and overtime funds being exhausted by the
end of the month.(8) Perkins
received general notice of a imminent change on March 17 and
specific notice of the March 30 implementation date by March 23,
sufficient time to present proposals and negotiate on the matter.
See Customs Service and
U.S. Department of Treasury, Internal Revenue Service, Philadelphia
Service Center, 16 FLRA 749 (1984). Respondent was dealing
with the proper representative of its employees in this matter and
Local 940's desire to have Council assistance in its negotiations,
or its willingness to have the Council supplant it in negotiations
with Respondent, was not the concern of Respondent. If the Council
was replacing Local 940 in dealing with Respondent it had the same
obligations as Local 940, i.e. to present
Respondent with bargaining proposals in a timely fashion. No such
proposals were received by Respondent. Accordingly I conclude under
all the circumstances of this case Respondent satisfied its
bargaining obligations before implementing the Alternative Work
Schedule in the Veterans Insurance Phone Service herein.
See U.S. Immigration and
Naturalization Service, 24 FLRA 786, 790 (1986).
Counsel for the General Counsel argues that the Union's
conduct, and the indication that the VA Council and VA Central
Office may have had some discussions concerning the AWS
implementation at a time when Respondent and the Union were
discussing it, gives rise to a "reasonable conclusion" that the
Union was "in effect proposing to freeze the situation" pending
negotiations at the "appropriate level" (the national level) and
that proposing to maintain the status
quo during negotiations on a proposed
change is fully negotiable. That argument is rejected in that the
"appropriate level" for negotiations herein was the local level and
the record is clear that Respondent was pursing negotiations on
that level.(9) Indeed, there is no
evidence that the National Council sought to negotiate directly
with Respondent on the matter. Rather it appears that the Union
sought to stall negotiations at the local level in order to give
the Council time to decide how to proceed on the matter.
I further reject Counsel for the General Counsel's
suggestion that since the testimony revealed Respondent would not
have bargained on any substantive proposal by the Union, if
requested to do so, such a disposition "precluded good faith
bargaining over the subject, and constitutes further evidence of
Respondent's failure to conform to its bargaining obligations under
the Statute." The Authority has held that a decision to institute
or terminate compressed work schedules are fully negotiable.
Defense Logistics at 608 citing
National Treasury Employees Union and U.S.
Department of the Treasury, Office of Chief Council, Internal
Revenue Service, 39 FLRA 27, 34 (1991). True, Respondent
informed the Union that it was prepared to negotiate on the impact
and implementation of AWS and made no mention of substantive
matters. But since the Union never made any specific proposals or
pressed Respondent into conveying its predisposition not to
negotiate on any substantive issue dealing with AWS, in my view
Respondent's conduct does not constitute a violation of its
obligation to bargain in good faith with the Union on its AWS
proposal. While state of mind may be important to ascertain
motivation and to otherwise color a party's actions, it alone does
not rise to the level of a Statutory violation. Since Respondent
was not pressed or challenged to specifically state its position by
responding to the submission of proposals or otherwise, I find no
violation of the Statute has been established regarding
Respondent's unconveyed position on the negotiability of
substantive proposals concerning AWS.
Accordingly, in view of the entire foregoing and the record
herein I conclude Respondent's conduct did not violate section
7116(a)(1) and (5) of the Statute as alleged and I recommend the
Authority issue the following:
It is hereby ordered that the Complaint in Case No.
BP-CA-20767 be, and hereby is, dismissed.
Issued, Washington, DC, August 30, 1993,
SALVATORE J. ARRIGO
Administrative Law Judge
Section 1 - Union: The American
Federation of Government Employees, as represented by the National
Veterans Administration Council of Veterans Administration Locals
at the national level or by a single local at the individual field
Section 2 - Employer: The Veterans Administration Central Office at the national level or local management at the individual field facility level.
8:00 a.m. to 4:30 p.m. or 9:00 a.m. to 5:30 p.m.
section 7116(a)(1) of the Statute because only volunteers were employed on the AWS schedule. Such an argument is clearly without merit since if a violation of 7116(a)(5) is found to have occurred, a derivative violation of section 7116(a)(1) will also be found.
8. While the matter of time was of important due to the nature if the problem Respondent sought to overcome, I do not find that an "exigency" which would permit Respondent to act before fulfilling its bargaining obligations under the Statute was established on the facts of this case. Cf. Defense Logistics Agency, Defense Industrial Plant Equipment Center, Memphis, Tennessee, 44 FLRA 599, 615-618 (1992)(Defense Logistics).