BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION BASTROP, TEXAS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3828
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3828
Case No. DA-CA-20907
Steven R. Simon
Counsel for the Respondent
Christopher J. Ivits
Charlotte A. Dye
Counsel for the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute , 5 U.S.C. §§ 7116(a)(l) and
(5), by unilaterally cancelling (1) the requirement for a
simultaneous count of controlled substances by unit employees in
the Pharmacy and (2) the mandatory overtime that resulted as a part
of the simultaneous count. The complaint alleges that Respondent
also refused to engage in post-implementation bargaining on the
Respondent's answer admitted the jurisdictional allegations
as to Respondent, the Union, and the charge, but denied any
violation of the Statute.
A hearing was held in Austin, Texas. The Respondent and the
General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record,(1) including my
observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and
Findings of Fact
Prior to October 8, 1991, Respondent's practice in its
Pharmacy regarding inventory of controlled substances substock was
for the off-going physician's assistant to count the controlled
substances substock immediately prior to the end of the shift. The
on-coming physician's assistant would count the controlled
substances substock as soon as possible after beginning the shift.
Sometimes, because of different emergencies at the Respondent, the
on-coming physician's assistant was not able to conduct the count
until some time had passed from the beginning of the shift. The
off-going and on-coming physicians' assistants did not conduct a
simultaneous count. There is no evidence of disciplinary action
being taken against any employee for a discrepancy in the count.
Taking the count and completing the inventory sheet required from
5-7 minutes of uninterrupted time.
On October 8, 1991, a memorandum was issued by F.J.
Chevalier, Health Services Administrator at the Bastrop facility,
to "comply with the requirements of [Federal Prisons System]
Operations Memorandum 151-91."
The memorandum assigned mandatory overtime and required a
simultaneous count by the pharmacist and the physicians'
assistants. The simultaneous count required two employees from
different shifts to be at work at the same time, resulting in
overtime of about fifteen minutes per shift.
The mandatory overtime affected all daily shifts and from
six to eight of the physicians' assistants. The physicians'
assistants who were working those shifts were required to come in
fifteen minutes early to conduct the count and were given fifteen
minutes of overtime pay for that work. As a result of the October
8, 1991 memorandum, the assigned physicians' assistants were
earning approximately 75 minutes of overtime each per week.
Although the October 8, 1991 memorandum changed the
Respondent's procedures for counting controlled substances and was
issued without notice to the Union and without affording the Union
an opportunity to bargain over the impact and implementation of the
change, the Union conferred with the affected employees, accepted
the change, and elected not to request bargaining over the
On February 26, 1992, a memorandum was issued by Michael H. Grizzle, Acting Health Services Administrator, which informed all medical staff that a simultaneous count of controlled substances and mandatory overtime would no longer be required. The memorandum was implemented on that day by distributing the memorandum to bargaining unit employees' mail boxes. The Union was not given prior notice or an opportunity to bargain the impact and implementation of the change. A copy of the memorandum was distributed to employee Clark Jones, the health services steward, at the same time as other employees.
Warden Billy R. Hedrick had the memorandum issued as one way
to reduce overtime at Bastrop. He had received a mandate from the
Central Office that there would be an Agency wide reduction of 10
percent in overtime costs.
After checking with other Agency officials, he and Mr.
Grizzle decided that it was not necessary to have the substock
counted simultaneously, and that this action was one way to meet
the goal of a 10 percent reduction in overtime. Warden Hedrick
testified that his Fiscal Year 1993 funding level for staff was at
the level of 92.5 percent while his staffing level at that time was
at approximately 96 percent. Associate Warden J. Larry Craven
testified that the more overtime is paid, the less salary is
available for full-time positions.
On March 13, 1992, Pam Clampit, Union President, having
learned about the change in early March, met with Warden Hedrick,
concerning the matter. During the meeting, Clampit informed Hedrick
that the Union wanted to negotiate on the impact and implementation
of the change. Clampit expressed the Union's concern that the
change could result in an adverse action against a physician's
assistant because of an incorrect count. The Union believed that
without the simultaneous count, there would be no way to identify
the employee responsible for the incorrect count, and this could
raise the specter of theft of a controlled substance. The Union was
also concerned about the loss of the approximately 75 minutes of
weekly overtime for each of the physicians' assistants. Hedrick's
position was that the change was not negotiable as to impact and
implementation and that he, as Warden, had the responsibility to
contain overtime costs.(2)
After March 13, 1992, and prior to the filing of the instant
unfair labor practice on June 3, 1992, Clampit met again with
Hedrick. During the meeting, Clampit raised the concerns that the
Union had about the elimination of the simultaneous count. Clampit
complained that the Respondent was requiring the physicians'
assistants to use a form which made it appear that a simultaneous
count was taking place, when in fact it was not. After Hedrick told
Clampit that the form could be modified, she stated that the change
of the count procedure should have been negotiated with the Union.
Hedrick replied in the negative.
The change implemented by the Respondent on February 26,
1992 was not negotiated with the Union. The unfair labor practice
charge was filed on June 3, 1992.
Federal Bureau of Prisons Change Notice CN-13 to Directive
6000-3 of June 30, 1992 provides, in part, as follows:
The only person with access to a substock of controlled substances is the person who has
completed a proper change of shift count and signed the "substock inventory certification sheet"
as the "on-coming" person who has assumed responsibility for that substock. This procedure
requires the simultaneous participation of both the
"off-going" and the "on-coming" staff member.
The record does not reflect whether this Change Notice has been
implemented by the Respondent.
Discussion and Conclusions
The complaint alleges that Respondent violated section
7116(a)(1) and (5) of the Statute by cancelling the requirement for
a simultaneous count of controlled substances on each Pharmacy
shift, and the mandatory over-time that resulted, without providing
the Union notice and an opportunity to bargain on the impact and
implementation of the change.
Respondent defends on the basis that the action merely
returned it to the historic practice. Respondent claims that the
change from a brief deviation from that historic practice did not
require bargaining as the brief deviation was not the subject of
bargaining or agreement between the Agency and the Union.
Respondent also asserted that the change did not require bargaining
as it was de minimis and involved the assignment of work and a
mandated reduction in overtime.
The General Counsel does not dispute that Respondent was not
required to bargain on its decision to change the assignment of
work and overtime. However, even if the subject matter of the
change is outside the duty to bargain, an agency must bargain about
the impact and implementation of a change in conditions of
employment that has more than a de
minimis impact on unit employees.
U.S. Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland and Social
Security Administration, Hartford District Office, Hartford,
Connecticut, 41 FLRA 1309, 1317 (1991). An agency is not
released from its duty to bargain whenever it suffers economic
hardship. See American
Federation of Government Employees v. Federal Labor Relations
Authority, 785 F.2d 333 (D.C. Cir., 1986.)
I agree with Counsel for the General Counsel that the
requirement for a simultaneous count of controlled substances on
each Pharmacy shift, and the mandatory overtime that resulted,
constituted a condition of employment and was a past practice which
could not be changed by Respondent without fulfilling its
bargaining obligations. See Norfolk Naval Shipyard, 25 FLRA 277, 286-87 (1987).
Respondent expressly established the procedure by memorandum on
October 8, 1991 and it continued for almost five months, a
significant period of time. There was no indication at the time it
was implemented that the procedure was "a temporary hiatus from a
historic agency practice" as contended by Respondent. Indeed, the
memorandum placing the simultaneous count in effect stated that the
action was necessary to comply with a Federal Bureau of Prisons
Operations Memorandum issued in July 1991. The Union's failure to
request bargaining in connection with this earlier change, because
it agreed with it, did not constitute a clear and unmistakable
waiver by past practice of its right to request bargaining in
connection with the later February 26, 1992 change. See Scott Air Force Base, Illinois,
Department of the Air Force, 5 FLRA 9, 22-23 (1981).
The change on February 26, 1992 to eliminate the
simultaneous count and the mandatory overtime and return to the
"historic practice" had more than a de
minimis impact on unit employees. The
change resulted in a loss of approximately 75 minutes of overtime a
week for six to eight employees and increased the likelihood of a
mistaken disciplinary action. Without a simultaneous count it would
be more difficult to determine which shift personnel were
responsible for the loss of a controlled substance.
It is concluded that Respondent violated section 7116(a) (1)
and (5) of the Statute by cancelling the requirement for a
simultaneous count of controlled substances on each Pharmacy shift,
and the mandatory overtime that resulted, without providing the
Union notice and an opportunity to bargain on the impact and
implementation of the change, as alleged.
The General Counsel seeks a status
quo ante remedy and
backpay for the lost overtime. The evidence shows that Respondent
acted willfully, provided no notice to the Union in advance of the
changes which had a more than de
minimis impact on the unit employees
involved, and rebuffed the Union's request for post-implementation
bargaining. The record does not establish that a status quo ante remedy would unduly disrupt or impair the
efficiency and effectiveness of the Respondent's operations.
Federal Bureau of Prisons Change Notice CN-13 of June 30, 1992
"requires the simultaneous participation of both the 'off-going'
and the 'on-coming' staff member." Accordingly, after balancing
these factors pursuant to Federal Correctional
Institution, 8 FLRA 604, 606 (1982), I conclude that a
ante remedy is appropriate and warranted to
best effectuate the purposes and policies of the Statute. Backpay
is appropriate where, as here, the Agency's unlawful implementation
resulted in a reduction of pay. The amount of backpay owed will be
a matter for compliance. U.S. Department of Health
and Human Services, Social Security Administration, Baltimore,
Maryland, 37 FLRA 278, 288-93 (1990); United States Customs Service, Southwest Region, El Paso,
Texas, 44 FLRA 1128, 1129-30 (1992). There is no basis on
which to conclude that the Anti-Deficiency Act applies to this
situation so as to limit the Respondent's liability. Cf. U.S. Air Force, Loring Air Force
Base, Limestone, Maine, 43 FLRA 1087, 1102.
Based on the foregoing findings and conclusions, it is
recommended that the Authority issue the following order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Bureau of Prisons, Federal
Correctional Institution, Bastrop, Texas shall:
1. Cease and desist from:
(a) Changing the requirement that unit employees
conduct a simultaneous count of controlled substances in the
Pharmacy and the mandatory overtime that results as a part of the
simultaneous count without providing the American Federation of
Government Employees, AFL-CIO, Local 3828, prior notice and an
opportunity to bargain on the impact and implementation of the
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Reinstate the requirement that unit employees
conduct a simultaneous count of controlled substances in the
Pharmacy and the mandatory overtime that results as a part of the
(b) Consistent with law and regulation, make whole
all bargaining unit employees for any loss of pay or benefits
suffered as a result of the unilateral cancellation, on February
26, 1992, of the simultaneous count and mandatory overtime in the
Pharmacy, including backpay with interest for any withdrawal or
reduction in pay, allowances, or differentials.
(c) Post at its facilities copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Warden and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Dallas
Region, Federal Labor Relations Authority, Federal Office Building,
525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, March 18, 1994
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the requirement that unit employees conduct a
simultaneous count of controlled substances in the Pharmacy and the
mandatory overtime that results as a part of the simultaneous count
without providing the American Federation of Government Employees,
AFL-CIO, Local 3828, prior notice and an opportunity to bargain on
the impact and implementation of the change.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL reinstate the requirement that unit employees conduct a simultaneous count of controlled substances in the Pharmacy and the mandatory overtime that results as a part of the simultaneous