Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina (Respondent) and Association of Administrative Law Judges International Federation of Professional and Technical Engineers, AFL-CIO (Charging Party)

[ v59 p646 ]

59 FLRA No. 118

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
CHARLESTON, SOUTH CAROLINA
(Respondent)

and

ASSOCIATION OF ADMINISTRATIVE LAW
JUDGES INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS,
AFL-CIO
(Charging Party)

AT-CA-01-0093

_____

DECISION AND ORDER

February 19, 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 Social Security Administration (the Respondent or SSA). The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally reducing the number of reserved parking spaces assigned to the Respondent's Administrative Law Judges (ALJs) at SSA's Office of Hearings and Appeals (OHA) in Charleston, South Carolina (Charleston OHA) and by refusing to bargain with the Union to the extent required by the Statute. [n2] 

      The Judge concluded that the Respondent violated the Statute as alleged by failing to bargain over the substance of the reduction in the number of reserved spaces. As a remedy, the Judge recommended that the Respondent restore the status quo ante by providing reserved parking spaces to the ALJs.

      For the reasons that follow, we dismiss the complaint.

II.     Background

      On October 1, 1999, the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO (the Union) was certified as the exclusive representative of a nationwide unit of all ALJs in the Office of Hearings and Appeals (OHAs) of SSA. Another labor organization, the American Federation of Government Employees, Local 3627 (AFGE), represents a separate nationwide unit of other SSA employees.

      In October 1999, the Charleston OHA moved to 200 Meeting Street. At that location, the ALJs "routinely engage in `in and out' program business, namely they conduct hearings both in Charleston and outside of Charleston, which require the transport of files to the hearings and return of the files to the office after hearings." Judge's Decision at 18. All employees in the Charleston OHA, including the ALJs, have access to free non-reserved parking in the building. The Judge found that the record did not show any difficulty by employees finding non-reserved parking in the building upon arrival for work in the mornings. The Judge also found that this was a commercial parking facility and visitors can, and do, occupy non-reserved parking spots. The parking facility contained 13 parking spaces on the second level that were reserved 24 hours per day and were assigned as follows: 6 to ALJs, 5 to management (including the Hearing Office Chief ALJ (HOCALJ)), and 2 to AFGE employees.

      On November 15, 2000, the Respondent reduced the number of reserved parking spaces for ALJs from 6 to 2. The record shows that the ALJs generally do not use the 2 reserved parking spaces other than to park while loading or unloading hearing files, when the parking garage is full, or to accommodate other special needs as they arise. The Judge found that there was no evidence that any ALJ was unable to find an unreserved parking space; "indeed, the availability of the [Union] spots[] provide[s] a `safety valve'." Id. at 10 n.4.

      The Judge also found that "[w]hether these spots are used is a personal choice; nevertheless there are elevators at all levels so that the inconvenience of parking on a different level is minimal." Id. In this respect, the Judge noted the testimony of two ALJs. One (Judge Van Slate, the local Union representative) testified that [ v59 p647 ] on occasion he had to park in the basement or on the fourth level but conceded there is elevator service to both locations from the office. The other ALJ testified that, since November 15, 2000, he had never been unable to enter the building and, in the last six months, on only four occasions had to drive around until a place opened; that this occurred only between 11:30 a.m. and 3:30 p.m. when tourist traffic is heaviest; and that he elected not to use the Union spots. Id. at 9.

      Prior to the Respondent's action of November 15, 2000, the Union, at the local and regional levels, requested bargaining on the assignment of reserved parking spaces to the ALJs. Although no bargaining on this issue occurred at either the local or regional levels, the Respondent at times indicated that it was willing to do so. [n3] Rather, on October 25, 2000, the Charleston Hearing Office Director sent a memo to Van Slate that stated that the Union would be provided 2 reserved parking spaces in accordance with the memo from SSA's Acting Director of Office of Management that was issued earlier on June 7, 2000. The stated purpose of this June 7 memo was to provide clarification of a 1998 agreement between SSA and the General Services Administration (GSA) and guidance regarding parking guidelines at OHAs. As relevant here, this memo provided for the allocation of parking spaces to bargaining unit components based on a percentage of the employees in these groups in the OHA, only after the Respondent had allocated spaces to disabled employees, "in and out" program business, car pools, and executive personnel.

III.       Judge's Decision

      The Judge found that by its refusal to bargain with the Union, from the initial request of the Union's local representative on December 9, 1999 to its November 15, 2000 unilateral reduction in reserved parking spaces for the ALJs from 6 to 2, the Respondent violated § 7116(a)(1) and (5) of the Statute. The Judge found that providing all 6 ALJs at Charleston OHA with reserved, assigned parking was a condition of employment, and that the Respondent was obligated to give the Union notice and an opportunity to negotiate the substance of any proposed change of this established condition of employment. Judge's Decision at 11, 17.

      In addition, the Judge stated that since the issue of employee parking is substantively negotiable, it was unnecessary to decide whether the impact of the change was more than de minimis. The Judge stated that, "[w]ere it otherwise, and if Respondent were only obligated to bargain impact and implementation, there might be grave doubt that the impact was more than de minimis." Id. at 12.

      In addition, the Judge found that neither the GSA-SSA Agreement nor the June 7 memo dealt with reserved parking, and therefore did not apply to the "Charleston situation." Id. at 18. The Judge also found that if the June 7 memo did apply to the Charleston ALJs, "its terms show that the `in and out' program business of ALJs justify different treatment." Id. In this respect, the Judge found that the ALJs "routinely engage in `in and out' program business' [when] they conduct hearings" in and outside of Charleston. Id.

      As a remedy, the Judge recommended that the Respondent restore the status quo ante by providing 6 reserved parking spaces to the ALJs at the Meeting Street location.

IV.     Respondent's Exceptions

      The Respondent maintains that the Authority's de minimis doctrine that applies to impact and implementation bargaining should also apply to substantive bargaining. In this respect, the Respondent contends that "[t]his complaint screams out as the epitome of a de minimis case." Exceptions at 14. The Respondent maintains that the major characteristics of employee parking at the Meeting Street building remained unchanged (easy access, available at no cost to ALJs, indoors, secure, sheltered, direct office access), and that the "mere reshuffling of a few signs" should be viewed as de minimis and not subject to negotiations. Id. at 12-13. In the same vein, the Respondent maintains that the conditions of employment for the ALJs, for example, hearing cases at external sites, researching applicable legal authorities or working with administrative staff, have not changed. Thus, the Respondent argues that no bargaining was required in November 2000 when "minimal insignificant modifications were implemented by OHA management" at the Meeting Street building in order to comply with national OHA policy as framed in the GSA/SSA agreement and the June 7 memo. Id. at 14.

      The Respondent also argues that its actions in November 2000 were in compliance with GSA's Space [ v59 p648 ] Allocation Standards for OHA's field offices, and that representatives at the local level cannot insist on bargaining at the local level while the parties at the national level of recognition are engaged in negotiations on a master agreement.

V.     GC's Opposition

      The GC requests the Authority to reject the Respondent's request to apply the de minimis standard to substantively negotiable issues, such as the one in this case. The GC maintains that the Judge's decision is consistent with Authority precedent addressing changes in parking as substantively negotiable.

      Additionally, the GC asserts that the record supports the Judge's determination that the Respondent violated the Statute by refusing to bargain with the Union and by unilaterally changing an established condition of employment.

      Finally, the GC argues that, contrary to the Respondent's contentions, "the [Judge] did not ignore the level of recognition applicable in this case because the Respondent failed to bargain at any level." Opposition at 9.

VI.     Federal Register Notice and Amicus Briefs

      Following the submission of the Respondent's exceptions and the GC's opposition, the Authority published a Federal Register Notice seeking amicus curiae briefs addressing the following questions:

What standard should the Authority apply in determining an agency's statutory obligation to bargain when an agency institutes changes in conditions of employment that are substantively negotiable? Why? Should the Authority eliminate the distinction between substantively negotiable changes, where the de minimis standard has not been applied, and changes that are not substantively negotiable, where the de minimis standard has been applied? Why?

68 Fed. Reg. 35,888, 35,889 (June 17, 2003).

      The parties (the Charging Party, the Respondent, and the GC) filed briefs. In addition, the Department of Defense (DOD), the Department of Labor (DOL), the American Federation of Government Employees (AFGE), the National Treasury Employees Union (NTEU), and the AFL-CIO filed amicus briefs. [n4] 

      In its brief, the Charging Party contends, as an initial matter, that the complaint should be dismissed because the issue in this case has been rendered moot by an intervening event; namely, the subsequent relocation of the Respondent's facility during the pendency of this case from the Meeting Street location to a new site. The Charging Party states that the new site has unreserved parking available for all employees and, unlike the Meeting Street building, does not have any reserved parking spaces at all. [n5] The Charging Party also notes that the bargaining impasse between the parties on the issue of parking was resolved by a decision and order of the Federal Service Impasses Panel (FSIP) issued during the pendency of this case.

      With regard to the merits, the Charging Party, the other labor organizations, and the GC argue that the Authority should maintain the current distinction between bargaining over substantively negotiable changes and bargaining over the impact and implementation of changes involving the exercise of a reserved management right. The Respondent, as well as DOL, DOD, and DOJ, argue that the current distinction is without legal support and that the same standard--either the existing de minimis standard or some other threshold standard--should be applied in both instances.

VII.      Analysis and Conclusions

      It is undisputed that the Respondent reduced the number of reserved parking spaces at the Meeting Street building available for bargaining unit employees represented by the Union, and that it did so without bargaining with the Union. The question before us is whether the Respondent had an obligation to bargain with the Union in these circumstances. For the reasons set forth below, we find that it had no obligation to bargain and we will dismiss the complaint.

A.     The Case Is Not Moot

      We reject as unsupported the Union's claim that subsequent events have rendered the case moot. A "dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome." United States Small Bus. Admin., 55 FLRA 179, 183 (1999) (citations omitted) (SBA). The burden of demonstrating mootness "is a heavy one." Id. (citing United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). A party arguing mootness must demonstrate that: (1) "there is no reasonable expectation . . . that the alleged violation will recur[;]" and (2) "`interim relief or events have [ v59 p649 ] completely [or] irrevocably eradicated the effects of the alleged violation.'" County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotations and citations omitted). In determining whether subsequent events have caused unfair labor practice cases to become moot, the Authority has considered whether a decision, if rendered, "could have a practical legal effect." Fed'l Aviation Admin., 55 FLRA 254, 261 (1999) (FAA). In this respect, the Authority has noted that even if a particular remedy may no longer be appropriate, a case is not moot if a cease and desist order and the posting of a notice remain "viable" remedies. Id.

      The Union has not established that the case is moot. The parties, who have a continuing collective bargaining relationship, have legally cognizable interests in receiving a determination from the Authority as to whether the Respondent's action violated the Statute and, if so, what remedial relief would be appropriate. If a violation of the Statute were to be found, it is clear that viable remedies could be ordered, regardless of the move to a new location. Accordingly, the Union has not met the standards set forth above to demonstrate that this case is moot.

B.     By Reducing the Number of Reserved Parking Spaces at the Meeting Street Building Available for Bargaining Unit Employees, the Respondent Changed Unit Employees' Conditions of Employment

      In order to determine whether the Respondent's action violated the Statute, there must first be a finding that the Respondent changed unit employees' conditions of employment. See, e.g., United States Dep't of Labor, OSHA, Region 1, Boston, Mass., 58 FLRA 213 (2002); United States Immigration and Naturalization Serv., New York, N.Y., 52 FLRA 582 (1996); United States Immigration and Naturalization Serv., Houston Dist., Houston, Tex., 50 FLRA 140, 143 (1995) (INS). The determination of whether a change in conditions of employment has occurred involves a case-by-case analysis and an inquiry into the facts and circumstances regarding the respondent's conduct and employees' conditions of employment. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995); INS, 50 FLRA at 144.

      Parking arrangements for unit employees generally concern those employees' conditions of employment, and a change in parking arrangements is generally a change in employees' conditions of employment. E.g., United States Dep't of Labor, Wash., D.C., 44 FLRA 988, 994 (1992) (respondent changed hours in operations and increased parking fees); United States Immigration and Naturalization Serv., 43 FLRA 3 (1991) (respondent discontinued employee parking in reserved spaces on street); United States Dep't of the Air Force, Williams AFB, Chandler, Ariz., 38 FLRA 549 (1990) (respondent reserved certain spaces and eliminated other spaces formerly available for employee parking); Phila. Naval Base, Phila. Naval Station and Phila. Naval Shipyard, 37 FLRA 79 (1990) (respondent disallowed prior use of parking spaces by employees); United States Customs Serv., Wash., D.C., 29 FLRA 307 (1987) (respondent discontinued employee parking in one of the agency's lots); United States Immigration and Naturalization Serv., 16 FLRA 1007 (1984) (INS) (respondent discontinued employee parking in rear lot).

      In each of the cited cases, there was a change in unit employees' conditions of employment relating to parking, either in the increased cost of the parking, the location of the parking, or the availability of parking. Similarly, here there was a change in unit employees' conditions of employment relating to parking because of the change in the number of reserved parking spaces. Indeed, no party disputes the Judge's determination that there was a change in unit employees' conditions of employment. Accordingly, we conclude that the Respondent's act of reducing the number of reserved parking spaces at the Meeting Street building available for bargaining unit employees constituted a change in unit employees' conditions of employment.

C.      The Change Did Not Give Rise to a Bargaining Obligation

1.      Background

      Prior to implementing a change in unit employees' conditions of employment, an agency must 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 under the Statute. United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). The Statute sets forth the parties' duty to bargain in general terms, without applying any different standards depending on the nature of the change that an agency is making. See §§ 7103(a)(12) and 7114. However, in administering the Statute, the Authority has long made a distinction between two types of changes: changes that involve the exercise of a reserved management right under § 7106 of the Statute, and changes that do not involve the exercise of such a reserved management right.

      When an agency changes unit employees' conditions of employment by exercising a reserved management right, the substance of the decision is not itself [ v59 p650 ] subject to negotiation. See Dep't of HHS, SSA, 24 FLRA 403, 407-08 (1986). Nonetheless, the agency has an obligation to bargain over the procedures to implement that decision and appropriate arrangements for unit employees adversely affected by that decision, if the resulting change has more than a de minimis effect on conditions of employment. Id.

      On the other hand, when an agency changes unit employees' conditions of employment by making a decision that does not involve the exercise of a reserved management right, the Authority has applied a different standard under the Statute. Under current precedent, the change itself is viewed as substantively negotiable and the agency has an obligation to bargain over the change, no matter how trivial the change. For example, in Air Force Logistics Command, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 53 FLRA 1664 (1998) (Robins AFB), the Authority stated:

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.

Robins AFB, 53 FLRA at 1669 (footnote and citations omitted).

      Stated otherwise, there is currently no threshold standard, like the de minimis test, that must be met before an agency incurs an obligation to bargain when it makes a change in unit employees' conditions of employment that does not involve the exercise of a reserved management right. [n6] 

2.      Precedent Under Executive Order 11491 and Under the National Labor Relations Act

      As noted above, the Statute sets forth the parties' duty to bargain in general terms, without applying any different standards depending on the nature of the change that an agency is making. See §§ 7103(a)(12) and 7114. The same was true under § 11 of Executive Order 11491, which governed the Federal labor management relations program prior to the enactment of the Statute. [n7] 

      In Dep't of Defense, Air Nat'l Guard, Tex. Air Nat'l Guard, Camp Mabry, Austin, Tex., 6 A/SLMR 591, A/SLMR No. 738 (1976) (DOD, Tex. Air Nat'l Guard), the Assistant Secretary of Labor for Labor-Management Relations concluded that an agency had no obligation under § 11(a) of the Executive Order to notify and bargain with a union prior to the agency's issuance of a memorandum regarding a ban on the consumption of alcohol. In so concluding, the Assistant Secretary found that:

[A]gency management's control of the consumption of alcoholic beverages at government facilities does not fall within the ambit of those personnel policies and practices and matters affecting working conditions which are contemplated by Section 11(a) of the Order. Section 11(a) describes the limited areas which are subject to the bargaining obligation on the part of agencies and exclusive representatives. In my view, it is not intended to embrace every issue which is of interest to agencies and exclusive representatives and which indirectly may affect employees. Rather, Section 11(a) encompasses [ v59 p651 ] those matters which materially affect, and have a substantial impact on, personnel policies, practices, and general working conditions. I do not consider a restriction on the consumption of alcohol on a government facility to reach such a level of importance.

Id. at 592. In sum, the Assistant Secretary found that not every change in a substantively negotiable matter gave rise to a duty to bargain over the change; rather, the Assistant Secretary applied a threshold standard under which only those changes that materially affected and had a substantial impact on conditions of employment gave rise to a duty to bargain.

      Similarly, in Soc. Sec. Admin., Bureau of Hearings and Appeals, 2 FLRA 238 (1979) (SSA, Bureau of Hearings and Appeals), a case decided under the Executive Order, the Authority adopted the Judge's findings and conclusions, including the Judge's application of the "substantial impact" standard as set forth above in DOD, Tex. Air Nat'l Guard. The Authority concluded that the agency did not violate the Executive Order by unilaterally changing the location of flexitime sign-in/sign-out sheets, since the change "did not have any substantial impact on personnel policies, practices or general working conditions." SSA, Bureau of Hearings and Appeals, 2 FLRA at 239.

      A similar threshold standard has been applied under the National Labor Relations Act by the National Labor Relations Board (NLRB). The NLRB has consistently adhered to the principle that unilateral changes in conditions of employment that are mandatory subjects of bargaining do not constitute a breach of the bargaining obligation unless the unilateral change "amount[s] to a material, substantial, and a significant one[.]" Peerless Food Products, Inc., 236 N.L.R.B. 161, 161 (1978) (Peerless). See also, Nynex Corp., 338 N.L.R.B. No. 78, slip op. at 4 (2002); Golden Stevedoring Co., 335 N.L.R.B. No. 37, slip op. at 6 (2001); Millard Processing Services Inc., 310 N.L.R.B. 421, 425 (1993); Taino Paper Co., 290 N.L.R.B. 975, 978 (1988); Angelica Healthcare Svs. Group, 284 N.L.R.B. 844, 853 (1987); United Technologies Corp., 278 N.L.R.B. 308 (1986); Rust Craft Broadcasting of New York, 225 N.L.R.B. 327 (1976). As the dates of the cited cases indicate, this principle was in effect both at the time of the enactment of the Statute as well as consistently thereafter.

      In short, at the time of the enactment of the Statute in 1978, both the precedent under the Executive Order as well as that under the NLRA mandated the use of a threshold standard that had to be met before a change by management in substantively negotiable matters gave rise to a duty to bargain over the change itself. In light of both Authority and judicial precedent discussing Congressional awareness of comparable provisions under the Executive Order and the NLRA and their administrative interpretations, and in the absence of any explicit indication in the Statute to strike a different course than that which was already established under the Executive Order and the private sector, it would seem appropriate to conclude that Congress was aware of the use of a threshold standard that had to be met before a change by management in substantively negotiable matters gave rise to a duty to bargain over the change itself, and that Congress intended to continue the use of such a standard in these cases. [n8] 

3.      Authority Precedent Under the Statute

a.      Cases Where the Agency's Change Involved the Exercise of a Reserved Management Right under § 7106 of the Statute or Where the Agency Otherwise Had No Obligation to Bargain Under the Statute

      The Authority initially applied the "substantial impact" standard, developed by the Assistant Secretary under the Executive Order, in a case where the agency had no obligation to bargain under the Statute because the change related to the method used by the agency to fill a supervisory, non-bargaining unit position. Specifically, in Office of Program Operations, Field Operations, Soc. Sec. Admin., San Francisco Region, 5 FLRA 333, 336-37 (1981) (Office of Program Operations, SSA), the Authority adopted the findings and conclusions of the Judge, including the application of the substantial impact standard as stated in DOD, Tex. Air Nat'l Guard, 6 A/SLMR 591. In this regard, the Judge stated [ v59 p652 ] that "there should be no doubt that management should not be compelled to negotiate where the exercise of its rights results in an insubstantial impact on bargaining unit employees." Office of Program Operations, SSA, 5 FLRA at 337.

      Subsequently, in other cases involving the exercise of a reserved management right under § 7106 of the Statute, the Authority modified the "substantial impact" standard to an "impact" standard and then to a more than "de minimis" standard. [n9] The "de minimis" standard set forth in DHHS, SSA continues to be the standard applied by the Authority in cases involving the exercise of a reserved management right under § 7106 of the Statute.

b.      Cases Where the Agency's Change Did Not Involve the Exercise of a Reserved Management Right under § 7106 of the Statute

      In United States Army Reserve Components Personnel and Admin. Center, St. Louis, Mo., 19 FLRA 290 (1985) (U.S. Army Reserve), the Authority addressed a claim that an agency did not have a duty to bargain over a substantively negotiable matter under the Statute--that is, one not involving the exercise of a reserved management right under § 7106 of the Statute. [n10] There, the Authority stated:

With regard to the Respondent's contention that the change in break periods had no substantial impact on working conditions, it is the Authority's view that where, as here, the decision to make a change was itself negotiable, the question is whether the statutory obligation to notify and negotiate with the exclusive representative concerning the change was fulfilled, not the extent of impact of any unilateral change in conditions of employment upon the unit employees. This latter inquiry is appropriate when the bargaining obligation of management is limited to procedures and appropriate arrangements pursuant to section 7106(b)(2) and (3) of the Statute. See, e.g., Dep't of the Treasury, Internal Revenue Serv., Jacksonville, Fl, 15 FLRA No. 187 (1984).

U.S. Army Reserve, 19 FLRA at 292-93. However, in articulating this standard, the Authority did not provide any explanation for its view that where the decision to make a change was itself substantively negotiable, no examination of the extent of the change's impact on unit employees was necessary in order to determine whether the agency had violated its duty to bargain. Similarly, the Authority did not refer to either the Assistant Secretary's decision in DOD, Tex. Air Nat'l Guard or the Authority's own decision under the Executive Order in SSA, Bureau of Hearings and Appeals, and consequently provided no explanation for departing from the threshold standard applied in those cases. Such a lack of explanation appears to be contrary to the admonition of the court in NTEU v. FLRA that, "[a]t a minimum, the FLRA must acknowledge the precedent [of the Assistant Secretary under the Executive Order] and provide a reason for departure, just as it must when it reappraises its own precedent." NTEU v. FLRA, 774 F.2d at 1192. [ v59 p653 ]

      In subsequent cases where the agency's decision did not involve the exercise of a reserved management right, the Authority has continued to adhere to this standard, but has not explained why the extent of the impact of the change on unit employees is not relevant in determining whether the agency has an obligation to bargain. See, e.g., Robins AFB, 53 FLRA at 1669; 92 Bomb Wing Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995); United States Dep't of Labor, Wash., D.C., 44 FLRA 988, 994 (1992); United States Dep't of the Air Force, Williams AFB, Chandler, Ariz., 38 FLRA 549 (1990); Nat'l Weather Serv. Employees Org., 37 FLRA 392, 396 (1990); Dep't of Health and Human Serv. and Soc. Sec. Admin., 30 FLRA 922, 926 (1988). [n11] Although the Authority has continued to make the distinction in U.S. Army Reserve between substantively negotiable changes, where the de minimis standard has not been applied, and changes that are not substantively negotiable, where the de minimis standard has been applied, the rationale for this distinction is not apparent either from the Statute itself or from the Authority case law discussed above.

4.      The Standard to be Applied When an Agency Makes a Change That Does Not Involve the Exercise of a Reserved Management Right

      The case before us presents the first instance in which a party has explicitly requested the Authority to revisit this precedent and to apply the same standard to both situations. Cf. Robins AFB, 53 FLRA at 1669 n.5 (The Authority noted that although the respondent in that case viewed the effect of the change at issue as insignificant, the respondent had "not questioned Authority precedent that the de minimis doctrine applies only to impact and implementation bargaining, and [the Authority] decline[d] to reexamine this precedent sua sponte.").

      In reviewing the case law set forth above, it is not clear why the Authority departed from the threshold standard set forth both in the Executive Order and by the NLRB in cases involving a change by management in substantively negotiable matters. As stated above, the Authority's decision in U.S. Army Reserve did not refer to either DOD, Tex. Air Nat'l Guard or SSA, Bureau of Hearings and Appeals, and consequently provided no explanation for departing from the threshold standard applied in those cases. Similarly, when the Authority set forth the standard in U.S. Army Reserve, it made no reference to Peerless and related NLRB precedent.

      In this latter respect, it is not apparent why the NLRB's practice as set forth in Peerless was not discussed in U.S. Army Reserve. In contrast, in DHHS, SSA, 24 FLRA at 406 n.1, the Authority highlighted Peerless and the NLRB's precedent in the context of explaining the Authority's use of the de minimis standard to determine whether an agency has an obligation to bargain over the impact and implementation of changes in conditions of employment. As relevant here, the Authority reasoned in DHHS, SSA as follows:

[T]he Authority must take care that its adjudicative processes not be unnecessarily burdened with cases that do not serve to bring meaning and purpose to the Federal labor-management relations program. While we seek to ensure that the rights of agencies, unions, and employees under the Statute are protected in situations involving changes in conditions of employment, we must also seek to discharge our responsibilities in a fashion that promotes meaningful bilateral negotiations. Interpreting the Statute to require bargaining over every single management action, no matter how slight the impact of that action, does not serve those aims.

Id. at 406 (emphasis in original).

      We agree fully with this reasoning. Moreover, in our view, the above rationale applies equally as well to changes in conditions of employment that are substantively negotiable. No interests are served by requiring "bargaining over every single management action, no matter how slight the impact of that action[.]" Id. The furtherance of meaningful bilateral negotiations in support of the efficient accomplishment of the operations of the Government is best served by applying the same standard irrespective of whether a management change concerns the exercise of a management right or the exercise of a substantively negotiable matter. The application of the same standard is warranted in both circumstances and is consistent with the requirement in § 7101(b) that the provisions of the Statute "be interpreted in a manner consistent with the requirement of an effective and efficient Government."

      Moreover, we believe that the appropriate threshold standard to apply in both circumstances is the de minimis standard that the Authority has developed and applied over the years. Under this standard, as noted above, an agency has an obligation to bargain over the procedures to implement a decision and appropriate [ v59 p654 ] arrangements for unit employees adversely affected by that decision, if the resulting change has more than a de minimis effect on conditions of employment. See DHHS, SSA, 24 FLRA at 407-08. In DHHS, SSA, the Authority stated:

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. It will be applied primarily to expand rather than limit the number of situations where bargaining will be required. For example, we may find that a change does not require bargaining. However, a similar change involving hundreds of employees could, in appropriate circumstances, give rise to a bargaining obligation. The parties' bargaining history will be subject to similar limited application. As to the size of the bargaining unit, this factor will no longer be applied.

Id.

      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. United States Dep't of the Treasury, IRS, 56 FLRA 906, 913 (2000) (IRS). 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).

      This standard provides ample guidance to the parties to determine when a bargaining obligation is incurred and ensures that bargaining takes place in a manner that furthers the purposes set forth in § 7101 of the Statute. The consistent application of the de minimis standard in all instances in which an agency seeks to change unit employees' conditions of employment will assist parties in conducting their collective bargaining relationship effectively so as to "facilitate[] and encourage[] the amicable settlements of disputes between employees and their employers involving conditions of employment" and to "facilitate and improve employee performance and the efficient accomplishment of the operations of the Government." 5 U.S.C. § 7101. Accordingly, we will apply the de minimis standard in this and future cases to determine whether an agency has a duty to bargain in situations in which it changes unit employees' conditions of employment. [n12] 

5.      Application of the Standard to This Case

      Applying the de minimis standard to this case, we find that the effect, or the reasonably foreseeable effect, of the change in the number of reserved parking spaces was not more than de minimis[n13] 

      Before the change in the number of reserved parking spaces, the record establishes that the unit employees had access to parking in the facility at their place of employment; they did not have to pay for that parking; they had "in and out" privileges; and they had no difficulty in finding spaces in which to park, either at the beginning of the workday or during the workday itself.

      After the change in the number of reserved parking spaces, the record establishes that the unit employees have had access to parking at their place of employment; they have not had to pay for that parking; they have had "in and out" privileges; and they have had no difficulty in finding spaces in which to park, either at the beginning of the workday or during the workday itself.

      The record in this case shows that the change in the number of reserved parking spaces has had only one impact on the unit employees: the ALJs have parked in some different parking spaces. Moreover, nothing in the record establishes that the Respondent knew, or should have known, that there would be any additional reasonably foreseeable effect at the time of the change. [ v59 p655 ] Accordingly, the change in this case has not been shown to be more than de minimis, and, therefore, the Respondent did not have a duty to bargain over the change.

VIII.     Order

      The complaint is dismissed.


Concurring opinion of Member Armendariz:

      I write separately only with respect to the Union's claim that this case has been rendered moot by subsequent events. In my view, the Union has raised at least a plausible, and possibly a compelling, claim. However, the nature of the issue in this case and our solicitation of briefs through a Federal Register notice, in response to the first instance in which a party has explicitly requested the Authority to revisit its precedent in this area and to apply a consistent standard, militate in favor of resolving the case on the merits rather than dismissing the complaint as moot. This case presents an important issue regarding the collective bargaining rights and obligations of the parties under the Statute, on which we have sought and received the views of the parties and other interested persons in the Federal sector labor-management relations program.

      In light of these factors, while I might otherwise be "tempted to throw out this case as moot[,] . . . deciding this case on the merits seems prudent." Publicis Communication v. True North Communications, Inc., 206 F.3d 725, 727-28 (7th Cir. 2000). Therefore, I concur that the same de minimis standard should be applied to determine whether an agency incurs a bargaining obligation when it changes unit employees' conditions of employment, irrespective of whether the change involves the exercise of a reserved management right or involves a substantively negotiable matter.


File 1: Authority's Decision in 59 FLRA No. 118
File 2: Opinion of Member Pope
File 3: ALJ's Decision


Footnote # 1 for 59 FLRA No. 118 - Authority's Decision

   Member Armendariz's concurring opinion and Member Pope's dissenting opinion are set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 118 - Authority's Decision

   The complaint alleges that the reduction in the number of reserved spaces for unit employees was from 7 to 2, but the Judge's decision states that the reduction was from 6 to 2.


Footnote # 3 for 59 FLRA No. 118 - Authority's Decision

   On March 27, 2000, the Respondent and the Union at the national level entered into an interim agreement that did not address any parking issues, and on August 30, 2001, the parties entered into a master agreement. The master agreement stated that the parties agreed to continue negotiating on the facilities and services article, which would cover parking issues, for the next six months. See Transcript at 28, 30-31; Joint Exhibit 3 in Soc. Sec. Admin., Office of Hearings and Appeals, Region II Buffalo Office of Hearings and Appeals, Buffalo, N.Y., 58 FLRA 722 (2003).


Footnote # 4 for 59 FLRA No. 118 - Authority's Decision

   The National Association of Agricultural Employees filed an untimely amicus brief that has not been considered.


Footnote # 5 for 59 FLRA No. 118 - Authority's Decision

   AFGE and NTEU also assert that the case is moot on these grounds.


Footnote # 6 for 59 FLRA No. 118 - Authority's Decision

   Despite the fact that different standards currently apply for determining the existence of a bargaining obligation depending on whether the change involves the exercise of a reserved management right, no such distinction is made in the application of the Authority's "covered by" doctrine. See United States Dep't of HHS, SSA, Balt., Md., 47 FLRA 1004, 1017-19 (1993). Regardless of whether a change involves or does not involve the exercise of a reserved management right, an agency does not have an obligation to bargain before making the change if the subject matter of the change is "covered by" the parties' collective bargaining agreement. Id.


Footnote # 7 for 59 FLRA No. 118 - Authority's Decision

   Section 11 of the Order provided:

(a) An agency and a labor organization that has been accorded exclusive recognition, through appropriate representatives, shall meet at reasonable times and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate under applicable laws and regulations, including policies set forth in the Federal Personnel Manual, published agency policies and regulations, a national or other controlling agreement at a higher level in the agency, and this Order. They may negotiate an agreement, or any question arising thereunder; determine appropriate techniques, consistent with section 17 of this Order, to assist in such negotiation; and execute a written agreement or memorandum of understanding.(b) In prescribing regulations relating to personnel policies and practices and working conditions, an agency shall have due regard for the obligation imposed by paragraph (a) of this section. However, the obligation to meet and confer does not include matters with respect to the mission of an agency; its budget; its organization; the number of employees; and the numbers, types, and grades of positions or employees assigned to an organizational unit, work project or tour of duty; the technology of performing its work; or its internal security practices. This does not preclude the parties from negotiating agreements providing appropriate arrangements for employees adversely affected by the impact of realignment of work forces or technological change.

Footnote # 8 for 59 FLRA No. 118 - Authority's Decision

   See, e.g., NTEU v. FLRA, 774 F.2d 1181, 1192 (D.C. Cir. 1985) (decisions of the Assistant Secretary under Executive Order 11491 were incorporated into the Statute by § 7135(b) of the Statute, and in the absence of Congressional dissatisfaction with the prior application or interpretation of a similar provision, Assistant Secretary decisions were to be given the same deference by the Authority as Authority decisions; further, "[a]t a minimum, the FLRA must acknowledge the precedent and provide a reason for departure, just as it must when it reappraises its own precedent."); FAA, 55 FLRA 254, 259 (1999) (Authority stated that "Congress indicated that it expected continuity of administration from the Executive Order to the Statute," and noted particularly that the "duty to bargain under the Executive Order and the Statute is virtually identical"); AFGE, Nat'l Council of HUD Locals 222, 54 FLRA 1267, 1279 (1998) (Authority held that it was well established that "when there are comparable provisions under the Statute and the NLRA, decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute") (citations omitted).


Footnote # 9 for 59 FLRA No. 118 - Authority's Decision

   See, e.g., United States Government Printing Office, 13 FLRA 203, 204-05 (1983) (GPO) ("where an agency in exercising a management right under § 7106 of the Statute, changes conditions of employment of unit employees as here, the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable"); IRS (District, Region, Nat'l Office Unit), 13 FLRA 366, 366 n.1 (1983) (Authority noted that it had not adopted the substantial impact test as suggested by the Judge in this case, and cited GPO); Dep't of Health and Human Services, Soc. Sec. Admin., Chicago Region, 15 FLRA 922, 924 (1984), in a case involving the exercise of a reserved management right under § 7106 of the Statute, the Authority clarified that in GPO it had "rejected the `substantial impact' test which had been first enunciated under Execut