22:0612(69)CA - VA, Washington, DC and VA Medical and Regional Office Center, Fargo, ND and AFGE -- 1986 FLRAdec CA
[ v22 p612 ]
22:0612(69)CA
The decision of the Authority follows:
22 FLRA No. 69
VETERANS ADMINISTRATION
WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 7-CA-40426
7-CA-40430
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on
exceptions to the attached Administrative Law Judge's Decision filed by
the Respondents. The General Counsel filed a brief opposing the
exceptions. The complaint alleged that the Respondents violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by changing the hours of work and the starting and
quitting times of unit employees without bargaining over the changes as
requested by the Union, and also by refusing to bargain concerning a
ground rule proposal that preparation time for negotiations be on
official time. The Judge found that the Respondents had violated the
Statute as alleged, and recommended that they be ordered to rescind the
changes in work hours and make whole those employees who would have
earned premium pay but for the unilateral changes in their hours. The
Respondents excepted only to the recommended remedy.
II. Facts
On April 29, 1984, the Director of the Activity's Regional Office
Center implemented a change in the hours of the night shift and the p.m.
shift. The change involved moving the night shift hours on Sunday
night/Monday morning from 11:45 p.m. - 7:45 a.m. to midnight - 8:00 a.m.
Also, a regularly scheduled 15 minutes of overtime was added to the
4:00 p.m. - midnight (p.m.) shift on Sundays because of a need for the
two shifts to overlap 15 minutes. Because by law /1/ a nurse working
any part of a period from midnight Saturday to midnight Sunday receives
premium pay for the entire 8 hours worked on the shift, the effect of
the change was to eliminate 8 hours of premium pay for nurses who would
have worked the 11:45 p.m. Sunday to 7:45 a.m. Monday shift but under
the new plan would begin their Monday shift at midnight Sunday.
The record, as more fully discussed by the Judge in her Decision,
also details the allegation regarding ground rules negotiations.
III. Administrative Law Judge's Decision
The Judge found that the Respondents had engaged in the unfair labor
practices alleged in the complaint, and recommended that they be ordered
to cease and desist from the unfair labor practices, rescind the changes
in hours, and make whole the employees who lost premium pay as a result
of the unfair labor practices.
IV. Positions of the Parties
A. Respondents
The Respondents except only to that portion of the Judge's remedy
which would require reimbursement for premium pay lost as a result of
the unfair labor practices. They argue that the "but for" test required
by the Back Pay Act, 5 U.S.C. Section 5596(b)(1), has not been met.
That is, Respondents assert that the General Counsel has not established
the amount of pay the employees would have earned but for the unilateral
change in hours. Further, there is no certainty that the employees
would have continued to receive the premium pay at issue if the matter
had been negotiated.
B. General Counsel
The General Counsel filed a brief in opposition to the exceptions,
and in support of the Judge's Decision.
V. Analysis
A. The Judge's findings that Respondents violated section
7116(a)(1) and (5) of the Statute
The Authority has reviewed the findings and conclusions of the Judge
with regard to the violations of section 7116(a)(1) and (5) of the
Statute alleged in the complaint and adopts the Judge's findings,
conclusions and recommendations for the reasons she stated. The
Authority notes that no exceptions were filed to this aspect of the
Judge's decision.
B. The Judge's recommended remedy
The Judge recommended that the Respondents be directed to cease and
desist from the unfair labor practices found, to reestablish the
unilaterally changed hours of work, and to make whole those employees
adversely affected by the unilateral change in their conditions of
employment. The Authority agrees. The Respondents initially refused to
bargain over a proposed ground rule providing that preparation time for
negotiations would be on official time. As noted by the Judge, this
ground rule was identical to a ground rule which had been used by the
parties in local negotiations on two previous occasions and the proposed
rule was fully consistent with decisions of the Authority which hold
generally that the granting of official time to prepare for negotiations
is a negotiable matter under section 7131(d) of the Statute. /2/ After
the Respondents refused to bargain over ground rules, they unilaterally
implemented a change in the employees' starting and quitting times which
the Authority also has consistently held to be negotiable. /3/ Since
the decision itself to change the starting and quitting times of an
established shift is within the duty to bargain, and the Respondents
failed and refused to bargain concerning such change, the Authority
finds that a status quo ante remedy is appropriate and will best
effectuate the purposes and policies of the Statute. /4/
Finally, with regard to the make whole remedy recommended by the
Judge, the Authority notes that the General Counsel has established that
but for the Respondents' unilateral change in starting times, as
detailed above, particular employees would not have suffered a loss of
pay. Thus, the requirements of the Back Pay Act, 5 U.S.C. Section 5596,
have been satisfied. /5/ In this regard, the evidence established that
management's change in the starting time for nurses on the Sunday night
shift from 11:45 p.m. to 12:00 midnight eliminated the 25 percent
premium pay that otherwise would have been paid to the nurses who worked
that shift. Therefore, but for management's unilateral change in the
employees' conditions of employment, at least 28 nurses who worked the
Sunday night shift since April 29, 1984, would have earned between
$17.50 and $27.76 each in premium pay for each Sunday night shift worked
had the starting time remained 11:45 p.m. Further supporting the
conclusion that the backpay remedy is not speculative, the Respondents
stipulated that records exist which would permit identification both of
the employees qualified for such back pay and the amount of back pay to
which each employee is entitled. Finally, while the Authority notes
that management implemented the change for reasons of economy, there is
no indication in the record of other circumstances which might affect
the appropriateness of a back pay order.
C. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record, and adopts the Judge's
findings, conclusions and recommended Order, as explained above.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Veterans Administration, Washington,
D.C. and Veterans Administration Medical and Regional Office Center,
Fargo, North Dakota shall:
1. Cease and desist from:
(a) Instituting any change in the hours of work or in the starting
and quitting times of the existing Sunday p.m. and Sunday night shifts
for nurses at the Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, without affording the American Federation
of Government Employees, AFL-CIO, the exclusive bargaining
representative of its employees, or its authorized representative,
American Federation of Government Employees, Local 3884, notice of and
the opportunity to negotiate with respect to the change.
(b) Refusing to bargain, upon request of the American Federation of
Government Employees, AFL-CIO, or its authorized representative,
American Federation of Government Employees, Local 3884, concerning
ground rules for negotiations over changes in conditions of employment,
including proposals regarding official time to prepare for negotiations.
(c) 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 Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
AFL-CIO, the exclusive bargaining representative of its employees, or
its authorized representative, American Federation of Government
Employees, Local 3884, reestablish as the hours of work and the starting
and quitting times of the Sunday p.m. and Sunday night shifts for nurses
at the Veterans Administration Medical and Regional Office Center,
Fargo, North Dakota, those in existence prior to April 29, 1984, and
afford the employees' exclusive representative notice of and an
opportunity to negotiate with respect to any proposed changes.
(b) Bargain in good faith with the American Federation of Government
Employees, AFL-CIO, the exclusive bargaining representative of its
employees, or its authorized representative, American Federation of
Government Employees, Local 3884, over ground rule proposals which may
be submitted in connection with negotiations conducted under the
Statute, including ground rule proposals that preparation time for
negotiations is to be on official time.
(c) Compensate with appropriate Sunday premium pay and otherwise make
whole those nurses in the bargaining unit who have worked the Sunday
night shift since April 29, 1984, and whose shift hours would have been
11:45 p.m. Sunday through 7:45 a.m. Monday were it not for the
unilateral change in hours of work and starting and quitting times on
the Sunday p.m. and Sunday night shifts.
(d) Post at its facility at the Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota, 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
Director of the Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, or a designee, 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
ensure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
VII, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.
Issued, Washington, D.C., July 17, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT-RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the hours of work or in the
starting and quitting times of the existing Sunday p.m. and Sunday night
shifts for nurses at the Veterans Administration Medical and Regional
Office Center, Fargo, North Dakota, without affording the American
Federation of Government Employees, AFL-CIO, the exclusive bargaining
representative of our employees, or its authorized representative,
American Federation of Government Employees, Local 3884, notice of and
the opportunity to negotiate with respect to the change.
WE WILL NOT refuse to bargain, upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning ground rules for negotiations over changes in conditions of
employment, including proposals regarding official time to prepare for
negotiations.
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 Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, the exclusive bargaining representative of its
employees, or its authorized representative, American Federation of
Government Employees, Local 3884, reestablish as the hours of work and
the starting and quitting times of the Sunday p.m. and Sunday night
shifts for nurses at the Veterans Administration Medical and Regional
Office Center, Fargo, North Dakota, those in existence prior to April
29, 1984, and afford the employees' exclusive representative notice of
and an opportunity to negotiate with respect to any proposed changes.
WE WILL bargain in good faith with the American Federation of
Government Employees, AFL-CIO, the exclusive bargaining representative
of our employees, or its authorized representative, American Federation
of Government Employees, Local 3884, over ground rule proposals which
may be submitted in connection with negotiations conducted under the
Statute, including ground rule proposals that preparation time for
negotiations is to be on official time.
WE WILL compensate with appropriate Sunday premium pay or otherwise
make whole those nurses in the bargaining unit who have worked the
Sunday night shift since April 29, 1984, and whose whift hours would
have been 11:45 p.m. Sunday through 7:45 a.m. Monday were it not for the
unilateral change in hours of work and starting and quitting times on
the Sunday p.m. and Sunday night shifts.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 7-CA-40426
7-CA-40430
VETERANS ADMINISTRATION, WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL AND
REGIONAL OFFICE CENTER, FARGO, NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Branson Moore,
For the Respondent
James F. Gonzales and
Joseph Swerdzewski,
For the General Counsel,
Federal Labor Relations Authority
Larney Werth,
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
In Case No. 7-CA-40426, an unfair labor practice charge was filed by
the Charging Party (also referred to herein as the Union or AFGE) on May
1, 1984 and amended on June 18, 1984. In Case No. 7-CA-40430, an unfair
labor practice charge was filed by the Charging Party on May 3, 1984.
These charges were investigated by the Regional Director, Region VII, of
the Federal Labor Relations Authority (hereinafter, the Authority),
which, on June 29, 1984 served upon Respondents a complaint
consolidating the two cases.
The complaint alleges that Respondents have and are violating
Sections 7116(a)(1) and (5) of the Statute /6/ by (1) unilaterally
implementing a change in conditions of employment concerning the hours
of work and starting and quitting times of bargaining unit employees
without first bargaining, as requested by the Union, concerning such
changes; and (2) by refusing to bargain, as requested by the Union,
concerning ground rule proposals including one proposal that preparation
time for negotiations be on official time.
Respondent entered a general denial as to the alleged violations.
On September 19, 1984, in Fargo, North Dakota, a hearing was held at
which the parties appeared, entered into various stipulations of fact,
examined witnesses, and adduced documentary evidence. Briefs were filed
by the Respondents and the General Counsel on October 19, 1984. Based
upon the record made in this proceeding, my observation of the demeanor
of the witnesses, and the briefs, I enter the following findings of fact
and conclusions of law and recommend the entry of the following order.
Findings of Fact /7/
1. At all times material herein, the Union is, and has been, a labor
organization within the meaning of 5 U.S.C. 7103(a)(4).
2. At all times material herein, Respondents are, and have been
agencies within the meaning of 5 U.S.C. 7103(a)(3).
3(a). On February 28, 1980, the Union was certified as the exclusive
representative of a national consolidated unit consisting of certain
professional employees of Respondent, Washington, D.C.
(b). On July 23, 1981, the following unit was included as part of
the national consolidated unit described in paragraph 3(a), above:
INCLUDED: All registered nurses, including nurse
practitioners, clinical specialists and nursing instructors,
employed by the Veterans Administration Medical Center, Fargo,
North Dakota.
EXCLUDED: All other professional and non-professional
employees; guards; part time intermittent employees; Nurse
Anesthetists; Head Nurses; management officials; supervisors;
and employees described in 5 USC 7112(b)(2), (3), (4), (6) and
(7).
4(a). At all times material herein, Respondent, Veterans
Administration, Washington, D.C. (hereinafter, VA DC), and the Union
have been parties to a national Interim Memorandum of Agreement covering
the employees in the unit described in finding 3, above.
(b). At all times material herein, Respondent, Veterans
Administration Medical and Regional Office Center, Fargo, North Dakota
(hereinafter, VA Fargo or VAM & ROC Fargo) and the Union, have been
subject to the terms and conditions of a collective bargaining agreement
covering the employees in the unit described in finding 3(b), above
(effective July 3, 1974 and amended on December 30, 1976) between VA
Fargo, and the North Dakota Nurses' Association, the Union's
predecessor, as the exclusive representative of the unit described in
finding 3(b), above.
5. At all times material herein, AFGE Local 3884, has been an
affiliate and agent of the Union.
6. By virtue of the certifications described in finding 3, above,
the Union has been, and is now, the exclusive representative of the
employees described in finding 3, above.
7. At all times material herein, F.E. Gathman has occupied the
position of Center Director, at VA Fargo, and has been, and is now, a
management official or supervisor within the meaning of 5 U.S.C.
7103(a)(10) and/or (11), and an agent of Respondents.
8. At all times material herein, Ray A. Johnson has occupied the
position of Personnel Officer, at VA Fargo, and has been, and is now, a
management official or supervisor within the meaning of 5 U.S.C.
7103(a)(10) and/or (11), and an agent of Respondents.
9. Dick Schmiesing has served in the Personnel Office at VA Fargo
for one year and filled in for Mr. Johnson at a negotiation meeting on
March 27, 1984.
10. For 11 years, Larney Werth has been employed at VA Fargo as a
registered nurse. He has been President of Local 3884 "since the
inception of the Union" in July, 1981," and has served as its chief
negotiator (Tr. 32).
11. Since June 1979, Debra Cederholm has been employed at VA Fargo
as a registered nurse. Since July 1981 she has been Vice President of
Local 3884.
12. The parties to this proceeding entered into a formal stipulation
of facts that was received into evidence as G.C. Exh. 41. It includes
the following paragraphs. Additional admissions and facts adduced
through testimony, exhibits and briefs are indicated in brackets with a
transcript, exhibit, or brief page number following.
(1). By letter dated September 16, 1983, Chief, Nursing Service
Irene Bloom established as official policy, effective October 2, 1983, a
past practice by which nurses on the night shift worked the hours of
11:45 PM to 7:45 AM (G.C. Exh. 4).
(2). By letter dated January 12, 1984, Center Director F.E. Gathman
notified the Union that effective February 5, 1984, Bloom would
eliminate the 11:45 PM - 7:45 AM hours of work for nurses on the night
shift and would schedule routinely 15 minutes of overtime for the nurses
working the PM Shift hours of 4:00 PM - 12:00 PM midnight. (G.C. Exh.
5). By letter dated January 16, 1984, the Union demanded to bargain
over this proposed change (G.C. Exh. 6).
(3). On January 20, 1984, Gathman notified the Union that the change
proposed by letter dated January 12, 1984, had been rescinded. (G.C.
Exh. 8). However, by letter dated February 2, 1984, Gathman notified
the Union that, effective March 18, 1984, the hours of the night shift
and PM shift would be changed according to the proposed schedule
attached to Gathman's notice (G.C. Exh. 9). Essentially, the proposed
change would regularly schedule 15 minutes of overtime for the 4:00 PM -
12:00 PM midnight shift on Sundays and would change the hours of work
for the Sunday night shift nurses from 11:45 PM - 7:45 AM to that of
12:00 PM midnight to 8:00 AM.
(4). By virtue of 38 U.S.C. 4107(e)(3), a nurse who performs duty
during any part of that period of time from midnight Saturday to
midnight Sunday receives an additional premium pay at the rate of 25% of
the nurse's hourly rate of base pay for each of every hour worked during
that shift. Thus, a nurse who works from 11:45 PM Sunday to 7:45 AM
Monday is entitled to receive 25% premium pay for the entire 8 hours
worked on that shift. An effect of management's proposed change would
eliminate 8 hours of premium pay for nurses who otherwise would have
worked the hours of 11:45 PM Sunday - 7:45 AM Monday. (G.C. Exh. 13).
(5). On February 7, 1984, the Union requested bargaining over the
proposed change dated February 2, 1984 by Gathman. (G.C. Exh. 10-A).
The Union did not receive a reply from Gathman or other management
representative in response to the bargaining request. On February 28,
1984, the Union again demanded bargaining (G.C. Exh. 11). The Union
also protested to Gathman that management had instructed head nurses on
or about February 28 and March 1, 1984 to proceed with and post the
proposed implementation of the new schedule, even though negotiations
had not yet occurred. The Union also objected that management's primary
motive for changing the night shift's hours of work was to eliminate the
25% premium pay for nurses who worked the Sunday night shift.
(Respondents admit that "budget restraints entered into the scheduling"
(R. Br. 2)).
(6). By letter dated February 29, 1984, Gathman informed the Union
that management would meet with the Union on the specific issues of (1)
adverse monetary impact on affected employees and (2) regularly
scheduled overtime. Gathman informed the Union that management merely
was assigning employees to existing tours of duty, but was not changing
starting and quitting times for employees working on the PM and night
shifts (G.C. Exh. 12).
(7). As of February 29, 1984, all nurses who worked the night shift
worked from 11:45 PM - 7:45 AM except for the number 2 nurse at two
posts of duty who worked from 12:00 PM midnight to 8:00 AM. There was
no previous practice or policy whereby nurses on the PM shift would work
the hours of 4:00 PM - 12:15 AM on a regularly scheduled basis. There
was no previous practice of regularly scheduled involuntary overtime
(G.C. Exh. 7).
(8). After an exchange of additional bargaining requests and
proposals, the parties agreed to meet on March 27, 1984, concerning:
(1) The scheduling of work hours for 2 part-time nurses.
(2) The proposed changes affecting nurses on the PM and night
shifts.
(3) Regularly scheduled overtime.
(4) Official time for Union officers and steward for
representational purposes (G.C. Exh. 10-B, 14, 15, 16, 17, 18).
Management rescinded the proposed implementation of the changes in
hours of work for nurses on the PM and night shift, which was scheduled
to become effective on March 18, 1984.
(9). During the meeting on March 27, 1984, Union representatives
Larney Werth and Debra Cederholm submitted proposed written ground rules
proposals for negotiation to management representatives Irene Bloom and
Dick Schmiesing (G.C. Exh. 22). On March 27 the parties did not
negotiate concerning the substance, impact, or implementation of the (1)
scheduling of work hours for 2 part-time nurses, (2) proposed changes in
hours of work affecting nurses on the PM and night shifts, (3) regularly
scheduled overtime, or (4) official time for Union officers and stewards
for representational purposes. The parties did discuss the Union's
ground rules proposals. With respect to Union ground rule proposal
number 4, management's representatives considered this proposal to be in
the nature of mid-term bargaining, considered the proposal to be
inappropriate for the purpose of these negotiations, and determined that
management was not obligated to bargain concerning proposal number 4.
Accordingly, management's representative would not bargain concerning
proposal number 4 on March 27, 1984.
(10). By letter dated March 28, 1984, Gathman notified the Union
that the meeting held on March 27 was to provide the Union an
opportunity to present its views and recommendations, in accordance with
Section 7117(d)(2) and (3) of the Statute, regarding the proposed
changes in hours of work, that the Union presented no views and
recommendations regarding adverse impact or implementation of the
proposed changes in hours of work for unit employees, that the Union
used the opportunity on March 27 to enter into negotiations concerning
official time, that the proposed hours of work for nurses on the PM and
night shifts would take effect beginning April 29, 1984, and that
management saw no need for further meetings on the issue of hours of
work (G.C. Exh. 21).
(11). On March 27, 1984, the parties had mutually agreed to meet
again on April 2 to continue discussions (G.C. Exh. 22). Management did
not attend that scheduled meeting on April 2 (G.C. Exh. 21, 23, 24).
(12). By letter dated March 30, 1984, the Union protested
management's refusal to bargain on March 27 over proposal number 4 of
the proposed ground rules, and repeated its request that management
negotiate over the subjects which the parties had agreed to and met to
bargain over (G.C. Exh. 22). The Union attached to this letter the
proposed ground rules as submitted to management on March 27 and with
notations of discussions (G.C. Exh. 22).
(13). Union ground rule proposal number 4, as submitted to
management on March 27, 1984, was identical to ground rule number 4
which the parties had agreed to previously on two separate occasions on
October 24, 1983, and November 22, 1983 (G.C. Exh. 36 and 37). In part
these previous ground rules agreements concerned bargaining over the
impact and implementation of the Annual Leave Nursing Service Policies
(G.C. Exh. 37). Management representatives Steven Nelson and Irene
Bloom negotiated these two previous ground rules agreements.
(14). By letter dated April 12, 1984, the Union again demanded to
bargain prior to the implementation of proposed and scheduled changes in
hours of work (G.C. Exh. 25). The Union also objected to the fact that
management had posted in nursing work areas the new schedule of hours of
work on or about April 11, 1984 (G.C. Exh. 25 and 26).
(15). By letter dated April 12, 1984, Gathman informed the Union
that management would meet with the Union in regard to impact and
implementation bargaining on the following:
(a) Official time for Union officers and stewards.
(b) Hours of work for nurses on the PM and night shift.
(c) Part-time hours of work for RNs (G.C. Exh. 27).
Gathman also recommended that the Union should contact Ray Johnson to
arrange ground rules for impact and implementation bargaining (G.C. Exh.
27).
(16). By letter dated April 18, 1984, the Union requested that
management rescind the scheduled April 29 implementation date concerning
the change in hours of work for nurses on the PM and night shifts (G.C.
Exh. 8). Also, the Union informed management that the proposed change
in hours of work for nurses on the PM and night shifts was subject to
bargaining over the substance, impact, and implementation of that change
(G.C. Exh. 28). By letter dated April 18, 1984, Gathman responded to
the Union's letter of April 18, but did not agree to rescind the
effective implementation date of April 29, 1984 (G.C. Exh. 29).
(17). On April 26, 1984, the parties' representatives met as agreed.
Bloom and Johnson represented the agency and Werth, Debra Cederholm,
and Doris Nelson represented the Union. Again, the Union submitted
written ground rules proposals (G.C. Exh. 30). The parties discussed
these proposals. Management's representatives would not negotiate
concerning the Union's proposed ground rule number 4, and informed the
Union that ground rule number 4 was not an appropriate (sic) subject to
bargain over. Management did not declare the proposal nonnegotiable.
The parties adjourned the April 26 meeting to April 27. Management
representative Johnson agreed to review Authority decisions referenced
by the Union representatives concerning the negotiability of ground rule
proposal number 4. The Union also made it clear that the Union wanted a
ground rules agreement completed prior to commencing negotiations over
the substantive issues for which the parties had agreed to meet.
(18). On April 27, 1984, during the meeting between the parties'
representatives, the agency's representatives again would not negotiate
over Union ground rule proposal number 4. The Veterans Administration
Central Office, Washington, D.C., had advised Johnson that the VAM &
ROC, Fargo, ND, not negotiate over the Union's ground rule proposal
number 4. Accordingly, the agency's representatives informed the Union
that the agency had concluded that ground rule proposal number 4 was not
an appropriate subject for bargaining, and the agency's representatives
refused to bargain over it.
(19). The meeting on April 27, 1984, ended without negotiations
concerning ground rule proposal number 4 or any of the underlying
substantive matters which were to be negotiated (G.C. Exh. 32).
(20). By letter dated April 28, 1984, the Union repeated its desire
to negotiate over the proposed changes in hours of work for nurses on
the PM and night shifts, insisted upon the right to negotiate a ground
rules agreement first and to negotiate over ground rules proposal number
4, and requested that the agency postpone the April 29 implementation
date (G.C. Exh. 32).
(21). Effective April 29, 1984, Respondent did implement the
proposed change in hours of work for nurses on the PM and night shifts.
(22). By letter dated May 16, 1984, the Union repeated its demand to
bargain concerning the subject of official time, starting and quitting
times of nurses on the PM and night shifts, and the starting and
quitting times of part-time Registered Nurses (G.C. Exh. 33). The
parties exchanged proposed dates and times for such a meeting, but have
not met for this purpose (G.C. Exh. 34 and 35).
13. Local 3884's proposed ground rule number 4 is as follows:
"Preparation time for negotiations and for intent statements will be on
official time." See attachment to G.C. Exh. 22.
14. The reason for the overlap of shifts for nurses is to accomplish
the narcotics count. Two persons must count narcotics, one coming on
duty and one going off. Prior to September 16, 1983, there was a
"gentleman's agreement" that the oncoming night shift nurse would come
in 15 minutes early at 11:45 and count narcotics with the nurse on the
PM shift, and then the night shift nurse would leave at 7:45 in the
morning (Tr. 99). No overtime was paid or compensatory time granted to
the nurses under the "gentleman's agreement" (Tr. 99). Since April 29,
1984, the overlap to count narcotics, on Sundays only, is accomplished
by having the PM nurses work until 12:15 AM on Monday, using "mandatory
overtime" (Tr. 77).
15(a). The agreements under which the parties are operating (see
finding 4, above) are silent as to any ground rules bargaining nights.
AFGE and VA DC have been negotiating a master agreement for several
years. Meanwhile, the bargaining obligation of the parties is governed
by the Interim Memorandum of Agreement. See finding 4(a), above.
Article 6 of the Interim Agreement provides that any local changes in
personnel policies, practices or other matters affecting conditions of
employment initiated by VA management at its local facilities, which are
not covered by a local agreement, shall be transmitted to local union
representatives, and that bargaining obligations will continue over such
matters at the local level between local management and designated local
officials. See G.C. Exh. 3, page 3. The local agreement between VA
Fargo and the Union's predecessor (see finding 4(b), above) requires
local bargaining concerning personnel policies, practices and matters
affecting working conditions of nurses in the bargaining unit. See G.C.
Exh. 2, Article III, Section 6 and 10.
(b). During the meetings between the parties on April 26 and 27,
1984, management's representatives did not point to any provision in the
national Interim Agreement between VA DC and AFGE, which arguably
precluded or barred local negotiations over any of the proposed ground
rules. In fact, Respondents' evidence conceded that Article 6 of the
national Interim Agreement subjects to bargaining at the local level any
local changes in employment conditions, including the nurses' hours of
work and starting and quitting times, initiated by Respondents. (Tr.
126, 132-133 and 137). It is essentially uncontroverted that both the
pre-existing local contract and the national Interim Agreement give AFGE
Local 3884 the right to propose and negotiate ground rules. (See Tr.
130 and 133-134). Respondents' witness Ray Johnson specifically
testified that neither the local predecessor union's contract nor the
Interim Agreement prohibited or precluded bargaining at the local level
over the Union's ground rule proposal concerning official time to
prepare for negotiations. (See Tr. 135). Mr. Johnson also acknowledged
that there is no provision in the national Interim Agreement which would
deny AFGE Local 3884 the authority, or would relieve VA Fargo of the
obligation, to bargain over the disputed ground rule proposal concerning
negotiations where local management is initiating a local change in
hours of work. (See Tr. 138-139). Moreover, Mr. Johnson acknowledged
that management was unwilling to negotiate the proposed ground rule on
preparatory time for the union negotiators, even if it applied only to
the negotiations over the VA Fargo-initiated change concerning hours and
starting and quitting times for nurses. See Tr. 146-147.
(c). At the hearing Mr. Johnson attempted to link on-going national
negotiations between VA DC and AFGE with the "appropriateness" of local
bargaining over the disputed ground rule proposal concerning official
time. See Tr. 138-139. The parties stipulated that such national
negotiations have not resulted in an agreement which was in effect at
times material to this case. See Tr. 139-142. Mr. Johnson also
acknowledged that the on-going national negotiations have not addressed
official time in terms of local negotiations over ground rules, and have
not prohibited negotiations at the local level over official time. (Tr.
127, 140 and 144). Ultimately, Mr. Johnson stated that VA DC had
instructed VA Fargo not to bargain over the disputed ground rule
proposal because management perceived this to be a Union-initiated
proposal concerning substantive matters which involved mid-term
bargaining. (Tr. 143-144). VA Fargo in fact recognized that this was a
ground rule proposal which the Union had submitted in connection with
exercising its right to negotiate over management-initiated changes in
conditions of employment. See Tr. 132, 133, 137, 144 and 145-146.
Based upon instructions from VA DC however, Mr. Johnson determined that,
since VA Fargo had not initiated a change in the use of official time to
prepare for negotiations, then it was inappropriate for AFGE Local 3884
to initiate such a proposal, even in the context of a ground rule
pertaining only to negotiations over other local management-initiated
changes. See Tr. 122-123, 137-138, and 143-144.
16(a). A primary purpose and effect of management's change in the
hours of work and starting and quitting times for nurses on the Sunday
PM and night shifts is to eliminate the 25% premium pay each Sunday
since April 29, 1984, for all those nurses who work the night shift.
Uncontroverted evidence showed that at least 28 identifiable nurses have
worked the Sunday night shift since April 29, 1984, and that such nurses
would have earned between $17.40 and $27.76 each in premium pay for each
Sunday night shift worked had the starting time remained 11:45 PM. See
G.C. Exh. 40 and Tr. 88-91. At the hearing, Respondents stipulated that
should a backpay order be deemed appropriate, VA Fargo possesses
accurate records upon which the Authority can rely in determining which
nurses worked a particular Sunday night shift, and what pay such nurses
received. See Tr. 94-95.
(b). Another management reason given for the change in hours here
involved is that the old schedule worked out so that, in one of the
weeks, nurses would only work 39 hours and 45 minutes, whereas the
nurses involved were on full-time status and supposed to work 40 hours a
week. See Tr. 125.
17. The significance to having proposed ground rule number 4
negotiated before reaching the substantive issues was attested to by Mr.
Werth. See Tr. 41-42, establishing that:
Q. (BY MR. GONZALES) Now, having explained what you were
negotiating in terms of ground rules, specifically in reference to
the fourth proposal which involved official time for preparing to
negotiate, would you explain for the benefit of the Administrative
Law Judge what is the particular significance of that proposal
with respect to negotiations at the V.A. Hospital here in Fargo
between the Union and Management?
A. There's a great significance to this particular proposal as
to number one, also the same reason. Nurses work rotating shifts.
They work three shifts a day. The hospital is open 24 hours a
day and it's tough to assemble a negotiating team for one thing.
If you don't have an agreement that they're going to be off on
official time it makes it tougher and you operate at a real
disadvantage. And in regard to number four, at these meetings
that we came to negotiate on, we came on our own time. And if you
don't have time to prepare it and you don't have official time, or
official time to negotiate and you worked your own shift, in one
day time gets a little bit scarce. It reeks a real hardship on
the nurses and negotiators because Management is working their
administrative shift, 7:00 or 8:00 to 4:30. We have to prepare
for negotiations. We have to negotiate on our own time and unless
we get something in writing that stipulates otherwise it just gets
to be a real hardship and puts us at a disadvantage when it comes
to bargaining.
Q. In that connection have you ever proposed to Management
that they negotiate at your shift, at the night shift?
A. Many times I've asked that they negotiate with me on my
schedule of tour of duty. Which I've been working since 1977.
Mr. Werth, the President and chief negotiator for Local 3884 and Ms.
Cederholm, the Vice President of Local 3884 were on the negotiating team
for the management-initiated proposed changes here at issue, and both
are nurses assigned to the night shift. Management has steadfastly
refused to bargain, during the night shift.
Discussion and Conclusions
1. The parties do not dispute the well-established principle that an
agency may not unilaterally change an existing condition of employment,
absent agreement or impasse following good-faith bargaining. See, e.g.
Office Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 9 FLRA 73, 95 (1982). The
condition of employment in this controversy concerns the admittedly
established practice and policy whereby nurses on the Sunday night shift
worked from 11:45 PM Sunday to 7:45 AM Monday and nurses on the Sunday
PM shift worked from 4:00 PM to 12:00 PM. This practice apparently had
existed for some time, as a "gentleman's agreement" prior to its
maturing into an officially recognized schedule in 1983. The general
prohibition against unilateral changes in terms and conditions of
employment includes those conditions established by past practice.
United States Department of the Treasury, Internal Revenue Service, Des
Moines District, 13 FLRA 296, 307 (1983). In particular, an agency is
obligated to negotiate fully, prior to implementation, over the decision
to change hours of work and the starting and quitting times of
previously existing shifts, as well as over the procedures to be
observed in the implementation of, and appropriate arrangements for
employees adversely affected by that decision. See, e.g., U.S. Customs
Service, Region V, New Orleans, Louisiana, 9 FLRA 116, 118-119 (1982).
Within that right to negotiate over the substance of an agency's
decision to change starting and quitting times, a union may even object
to the change and propose that the existing hours of work be retained.
See, National Treasury Employees Union, and Internal Revenue Service,
Kansas City Service Center, 1 FLRA 927 (1979). See also, American
Federation of Government Employees, Local 2875 and Department of
Commerce, NOAA, National Marine Fisheries Services, Southeast Fisheries
Center, Miami, Florida, 5 FLRA 441-446 (1981).
It is undisputed that proper notice of the intended change was served
upon the local union in accordance with the provisions of the National
Interim Agreement. It is also undisputed that AFGE Local 3884 promptly
and persistently demanded that VA Fargo bargain, prior to
implementation, concerning the substance, impact and implementation of
the management-initiated change in starting and quitting times.
Although VA Fargo met with the Union on three occasions prior to
changing the hours of work on April 29, no bargaining over the
substantive issues took place. In fact, it is clear there was no
discussion of the proposed changes in conditions of employment. It is
also clear, and not really controverted, that the changes were
bargainable as to substance, impact and implementation and had a "more
than de minimis" impact on bargaining-unit employees. See Internal
Revenue Service, 16 FLRA 928, fn. 1 (1984).
Ordinarily, the above facts would require a holding that a violation
of Sections 7116(a)(1) and (5) had occurred. Here, however, the
evidence shows that Respondents stood ready and willing to bargain over
the substantive issues, but Local 3884 refused to do so until bargaining
took place over its proposed ground rule number 4, that preparation time
for negotiations and for intent statements be on official time.
Management negotiated, at some length, over other ground rules proposed
by Locals 3884; and agreement was reached as to them. However, VA
Fargo balked over negotiating proposed ground rule number 4 and claimed
such bargaining was "inappropriate," at that time, apparently on the
ground that VA DC was in the process of negotiating a master agreement
with AFGE -- a process that has been ongoing for several years. There
was no evidence that Local 3884's proposed ground rule number 4 was on
the bargaining table at the national level. There was undisputed
evidence that Local 3884 was empowered to negotiate over
management-initiated local changes; that nothing in the agreements of
the parties precluded ground rule bargaining; that ground rule number 4
had been agreed to in the past by VA Fargo in negotiating local changes;
and that Local 3884 intended its proposed ground rule number 4 to apply
only to the particular management-initiated change then at issue. /8/
Under these circumstances, a conclusion that Sections 7116(a)(1) and
(5) have been violated turns, in part, on the question of whether the
refusal of Local 3884 to discuss the substantive issues between it and
VA Fargo, until its proposed ground rule number 4 was negotiated,
relieved VA Fargo of its obligations to bargain over the substantive
issues.
2. In several recent decisions, this Authority has recognized that
negotiating a ground rules agreement prior to commencing bargaining over
proposed changes is an inherent aspect of an agency's obligation to
bargain in good faith prior to implementation. See Department of
Defense Dependents Schools, 14 FLRA 191, 193 (April 6, 1984). The
Authority had occasion, recently, to call this to the attention of the
Veterans Administration's hospital in Columbia, Missouri. See Harry S.
Truman Memorial Veterans Hospital, Columbia, Missouri, 16 FLRA 944 (Dec.
18, 1984, hereinafter referred to as the VA Columbia case). As here,
the Respondent in the VA Columbia case claimed that negotiating of
ground rules was "inappropriate," the logic being that such negotiations
should be confined to "formal contract negotiations." (16 FLRA at 944,
945 and compare, here Tr. 138 and 143-144). The Authority held that
this logic was "clearly without merit" (16 FLRA at 945), and "found no
distinction in the good faith bargaining process between formal contract
negotiations and negotiations conducted as a result of a change in
conditions of employment made during the term of a collective bargaining
agreement" (16 FLRA at 945). The Authority found a violation of Section
7116(a)(1) and (5), in the VA Columbia case, even though the parties had
negotiated an agreement over the change in the conditions of employment
at issue.
Here, no such bargaining took place prior to implementation of the
change in conditions of employment affecting bargaining-unit employees,
due to management's steadfast refusal to bargain, first, over the
union-proposed ground rule number 4. Number 4 is similar to other
ground rules proposals already determined by the Authority to be
negotiable. For example, the Authority has found the following
proposals to be within the agency's duty to bargain: "Management will
allow equal official time to the Union Negotiation Team, as allotted to
the Management Negotiation Team, for preparation of Contract
Negotiations;" "All preparation of proposals and impasse resolution
shall be on duty time;" ". . . the union negotiating team will be
granted official time equal to the time used by management . . . prior
to the first negotiating session . . . ." See, respectively, American
Federation of Government Employees, Local 1692 and Headquarters, 323rd
Flying Training Wing, 3 FLRA 305 (1980); American Federation of
Government Employees, Local 225 and U.S. Army Armament Research and
Development Command, Dover, New Jersey, 4 FLRA 148 (1980); Association
of Civilian Technicians, Granite State Chapter and The Adjutant General,
State of New Hampshire, 7 FLRA 241 (1981). In view of these precedents,
Local 3884's proposal number 4 clearly is negotiable. Respondents,
moreover, did not object to or contest the negotiability of the Union's
ground rule proposal, either during meetings with the Union's
negotiators or during the hearing in this matter.
The fact that VA Fargo did bargain over some ground rules, does not
excuse its conduct as to proposed ground rule 4, as Respondents argue at
page 9 of their brief. This was not a failure to agree over ground rule
4; it was a failure to bargain over it as being inappropriate, at that
time.
Absent a meritorious affirmative defense, it must be concluded that
Respondents violated Sections 7116(a)(1) and (5) of the Statute by
refusing to negotiate over a ground rule proposal which is substantially
similar to proposals already determined by the Authority to be
negotiable. See, Department of the Air Force, U.S. Air Force Academy, 6
FLRA 548, 549 (1981).
3. Whether the alleged violation of Sections 7116(a)(1) and (5)
occurred because Respondents unilaterally implemented the change in
hours of work and starting and quitting time of the nurses, without
first bargaining with Local 3884 is not so easily resolved. As
prespondents point out, the record shows that management's
representatives were "present and ready to proceed on the substantive
issues and attempt to resolve the problems," and implemented the change
only "(a)fter three attempts had been rebuffed by the union", which
insisted, first, on its right to negotiate ground rule number 4. See R.
Br. 8. Respondents rely on Department of the Air Force Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA 281
(1982), hereinafter Wright-Patterson, wherein the Authority adopted a
decision of Administrative Law Judge William B. Devaney, who held that
the refusal of the agency to pay travel and per diem expenses to union
negotiators violated the Statute, but did not constitute a refusal to
bargain over the substantive issues because the agency was willing to
bargain over them. Judge Devaney noted that: "The record contains no
evidence, or even assertion, that the Union was unable, or even would
have been inconvenienced, by proceeding with bargaining and litigating,
if necessary, Respondent's liability for the cost of travel and per
diem." See 10 FLRA at 292.
The record here does show, at the very least, "inconvenience" to the
union bargaining team, if ground rule number 4 could not first be
negotiated. On the union negotiating team were the President and chief
negotiator for Local 3884, Mr. Werth, and the Vice-President of Local
3884, Ms. Cederholm. Both work as night-shift nurses. Since
management's proposed change impacted on the night-shift nurses, it was
undoubtedly important for night-shift nurses to represent the interests
of the bargaining unit. Management insists on day shift negotiations,
which works a "real hardship" on nurses coming off duty on the night
shift without any allowance of official time to prepare for
negotiations. See finding 17, above.
In view of the record made here, I conclude that the Authority's
decision in Wright-Patterson is distinguishable. Furthermore, see
Environmental Protection Agency, 16 FLRA 602 (1984) hereinafter EPA,
where the agency refused to bargain ground rules proposed by the union
prior to the union submitting proposals over management-initiated
proposals concerning performance standards, but was ready and willing to
bargain over the substantive issues. The Authority adopted the decision
of Administrative Law Judge Garvin Lee Oliver that the Respondent
violated Sections 7116(a)(1) and (5) "when it failed and refused to
negotiate in good faith, including the negotiation of ground rules, and
unilaterally implemented the standard-setting procedures . . . ." 16
FLRA at 614. While the Authority modified some aspects of Judge
Oliver's decision, it issued a cease-and-desist order ordering the
agency not to implement the change without first notifying the union and
affording it an opportunity to bargain over the change; and it also
ordered the agency to bargain with the union, upon request, over ground
rules and over the procedures for establishing the change there at
issue. See 16 FLRA No. 87.
Under the circumstances of this case, and following the rationale of
the EPA case, I conclude that violations of Sections 7116(a)(1) and (5)
did occur when VA Fargo implemented the change in hours and shift times
without first bargaining with Local 3884, including bargaining over
Local 3884's ground rule proposal 4.
The Remedy
In order to fully and effectively remedy the several violations by
Respondents of Sections 7116(a)(1) and (5) of the Statute, the General
Counsel urges the entry of an order directing the Respondents to restore
the status quo ante by re-establishing the hours of work and starting
and quitting times which existed prior to April 29, 1984 on the Sunday
PM and night shifts in the nursing service. See G.C. Br. 25. Since
Respondents in this case have unlawfully refused to bargain over the
substance of a decision which affects working conditions, it is not
necessary to review those several criteria governing whether to award
status quo ante relief in those cases involving an agency's failure to
bargain over the impact and implementation of a decision reserved to
managerial discretion. See, Federal Correctional Institution, 8 FLRA
604, 606 (1981). In several decisions which are directly precedential
to this case, the Authority has ordered restoration of the status quo
ante, where the agency has failed to meet its duty to bargain over the
decision to change starting and quitting times on existing shifts, "in
order to avoid rendering meaningless the mutual obligation under the
Statute to negotiate concerning changes in conditions of employment."
See U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116,
119 (1982). See also Internal Revenue Service, Los Angeles District, 10
FLRA 653, 655 (1982).
Even assuming that the factors pertinent to determining the
restoration of the status quo ante in those cases involving only
bargaining over impact and implementation were also applicable here, a
review of those factors in the context of the evidence clearly supports
an order directing Respondents to restore the status quo ante. Thus,
the evidence shows that the Union persistently requested bargaining,
that Respondents consistently failed and refused to bargain over
negotiable matters, that Respondent unilaterally implemented without a
showing of an overriding exigency, and that at least 28 employees
suffered direct and measurable economic loss.
The General Counsel also urges the entry of an order that Respondents
make whole each nurse employed by VA Fargo for the Sunday premium which
each would have been earned had VA Fargo not changed the starting time
for the Sunday night shift. See G.C. Br. 26. Uncontroverted evidence
introduced at the hearing established that at least 28 employees have
worked the Sunday night shift since April 29, 1984, and that each
employee suffered a loss of up to $27.76 in premium pay each time the
Sunday night shift was worked. Respondents stipulated at the hearing
that the Veterans Administration possesses the data and records by which
each employee who has worked the Sunday night shift since April 29,
1984, as well as the amount of salary earned, can be accurately
determined in the event a back-pay order is included in this remedy.
Accordingly, this remedy is not speculative. Compare the situation here
to those in Department of the Treasury, U.S. Customs Service, Region
VIII, San Francisco, California, 9 FLRA 606, 608 note 3 (1982) and
United States Department of Labor, 16 FLRA 969, 986-987 (1984), where
back pay awards were denied.
An order directing the back payment of premium pay is consistent with
the Back Pay Act of 1966, as amended by the Civil Service Reform Act of
1978, 5 U.S.C. Section 5596. The nursing employees here involved would
have continuted to receive 8 hours of Sunday 25% premium pay, each week
on the night shift, but for Respondents' unilateral change in the
starting time of the Sunday night shift. The unfair labor practice
violation in the instant case is a type of unjustifiable or unwarranted
personnel action resulting in clearly identifiable losses of night pay
differential envisioned in 5 U.S.C. 5596(b)(1). /9/ Also, an order
directing back pay is within the Authority's power and mandate to
require an agency to take whatever remedial action the Authority
considers appropriate, under Section 7105(g) of the Statute. /10/ There
is parallel authority and precedent in the private sector to restore to
employees those wages or benefits which have been lost due to unlawful
changes by an employer in conditions of employment. See Leeds and
Northrup Co. v. NLRB, 391 F.2d 874, 879-80 (3rd Cir. 1968); Overnite
Transportation Co. v. NLRB, 372 F.2d 765, 770 (4th Cir. 1967), cert.
den. 389 U.S. 838.
Respondent's only argument against an award of back pay is that the
action taken was not an unjustified personnel action. See R. Br. 9-12.
Reliance is placed, first, upon the fact that the action was taken only
after several attempts to negotiate or settle. As to this argument, and
for reasons already stated, the action was nevertheless an unfair labor
practice, under all the circumstances of the case. The only other
argument presented in support of the action being a justified one has to
do with the "schedule being followed (for the nurses) resulted in
confusion and questions as to its legality" in that (t)echnically in the
weeks that only 39 3/4 hours were worked, the employee should have been
charged annual or some other form of leave." See R. Br. 9-10. If,
indeed, this was illegal, then the answer was to correct the problem
with an adjustment of leave. Instead, the action taken was to change
the hours and starting and quitting times of the shift, unilaterally and
admittedly in order to save paying the nurses on the night shift 8 hours
of Sunday premium pay when they only worked 15 minutes on Sunday. This
action was "justified" in the sense that it was a more economic way to
operate. What is unjustified, and an unfair labor practice, was the
action of making the changes without first bargaining with Local 3884.
Accordingly, it is concluded that Respondents should reimburse those
employees for the Sunday premium pay which they would have earned but
for Respondents' conduct. See, generally, Internal Revenue Service,
Western Region, 11 FLRA 655, 656 (1983).
Additionally, an appropriate remedy should include an order that
Respondents cease and desist from the unfair labor practices alleged in
the complaint, post an appropriate notice to all employees at Respondent
VA Fargo's facility which identifies the violative acts herein and the
required remedial action to be taken, and bargain upon request with the
Union or its authorized representative, AFGE Local 3884, over the hours
of work and starting and quitting times for nurses on the Sunday PM and
night shifts, and over ground rule proposals concerning official time to
prepare for the negotiations over the management-initiated change.
Ultimate Findings and Order
The unfair labor practices alleged in the complaint have been
committed, in violation of Sections 7116(a)(1) and (5) of the Statute.
Accordingly, and pursuant to Section 7118 of the Statute and 5 CFR
2423.29, it is hereby ORDERED that Respondents:
1. Cease and desist from:
(a) Instituting any change in the hours of work or in the
starting and quitting times of the existing PM and night shifts
for nurses at the Veterans Administration Medical and Regional
Office Center, Fargo, North Dakota, without affording the American
Federation of Government Employees, the exclusive bargaining
representative of its employees, or its authorized representative,
American Federation of Government Employees, Local 3884, the
opportunity to negotiate with respect to the change.
(b) Refusing to bargain, upon request of the American
Federation of Government Employees, or its authorized
representative, AFGE, Local 3884, concerning ground rules for
negotiations over changes in conditions of employment, which
include proposals regarding official time to prepare for
negotiations.
(c) 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
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government
Employees, AFL-CIO, and AFGE, Local 3884, the exclusive bargaining
representative of its employees, reestablish as the hours of work
and the starting and quitting times of the PM and night shifts for
nurses at the Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota those in existence prior to April 29,
1984, and afford the American Federation of Government Employees
and AFGE, Local 3884, the opportunity to negotiate with respect to
any proposed changes thereto.
(b) Compensate with appropriate Sunday premium pay and
otherwise make whole those unit employee nurses who have worked
the Sunday night shift since April 28, 1984 and whose shift hours
would have been 11:45 PM Sunday through 7:45 AM Monday were it not
for the unilateral change in hours of work and starting and
quitting times on the PM and night shifts.
(c) Post at its facilities at the Veterans Administration
Medical and Regional Office Center, Fargo, North Dakota, copies of
Appendix B, attached hereto, on forms to be furnished by the
Regional Director, Region VII, Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Veterans
Administration Medical and Regional Office Center Director, Fargo,
North Dakota and shall be posted and maintained by him for sixty
(60) consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted. The Center Director shall take all
reasonable steps to insure that such Notices are not altered,
defaced, or covered by other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal
Labor Relations Authority, in writing within 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 5, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) 38 U.S.C. 4107(e)(3).
(2) Environmental Protection Agency, 16 FLRA 602 (1984) remanded to
Authority for clarification regarding remedy, sub nom. American
Federation of Government Employees v. FLRA, No. 85-1057 (D.C. Cir.
February 5, 1986). The Authority issued a supplemental decision
affirming the original disposition in Environmental Protection Agency,
21 FLRA No. 98 (1986). See also Association of Civilian Technicians,
Granite State Chapter, 7 FLRA 241 (1981); American Federation of
Government Employees, Local 225, 4 FLRA 148 (1980).
(3) See, for example, United States Department of Transportation,
Federal Aviation Administration, 19 FLRA No. 89 (1985); United States
Department of Transportation, Federal Aviation Administration, 18 FLRA
No. 8 (1985).
(4) See, for example, Long Beach Naval Shipyard, Long Beach,
California, 17 FLRA 511 (1985). The Authority has wide discretion to
fashion remedies under section 7105(g)(3) and section 7118(a)(7) of the
Statute, including status quo ante remedies where appropriate. See, for
example, United States Department of Transportation, Federal Aviation
Administration, 19 FLRA No. 89 (1985); Immigration and Naturalization
Service, 16 FLRA 1007 (1984). Compare United States Army Air Defense
Center and Fort Bliss, Texas, 12 FLRA 719 (1983) (where no status quo
ante order was issued since the policy had been rescinded by the
agency); Department of Transportation, Federal Aviation Administration,
Los Angeles, California, 15 FLRA 100 (1984) (where a watch schedule was
changed and the Authority determined that it was not feasible, due to a
change in staffing levels, to return to the status quo); and Department
of the Treasury, U.S. Customs Service and U.S. Customs Service, Region
IX, Chicago, Illinois, 17 FLRA 221 (1985) (where it was determined that
a status quo ante order would be inconsistent with the parties'
agreement and would not effectuate the purposes and policies of the
Statute).
(5) Compare United States Department of Defense, Department of the
Air Force, Headquarters, 47th Flying Training Wing (ATC), Laughlin Air
Force Base, Texas, 18 FLRA No. 24 (1985); and United States Marine
Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA 725
(1981), in which the Authority ordered backpay, with United States
Department of Transportation, Federal Aviation Administration,
Washington, D.C.; Federal Aviation Administration, Eastern Region,
Jamaica, New York; and Federal Aviation Administration, Airways
Facility Sector 810, Albany, New York, 20 FLRA No. 68 (1985), petition
for review filed sub nom. Professional Airways Systems Specialists,
MEBA, AFL-CIO v. FLRA, No. 85-1827 (D.C. Cir. Dec. 20, 1985);
Department of the Air Force, Scott Air Force Base, Illinois, 19 FLRA No.
13 (1985); Social Security Administration, 16 FLRA 1135 (1984); and
United States Department of Labor, 16 FLRA 969 (1984), in which the
Authority did not order backpay due to the failure to establish, in
accordance with the requirements of the Back Pay Act, 5 U.S.C. Section
5596, that but for the Respondent's unlawful conduct the affected
employee(s) would not have suffered a loss or reduction in pay,
allowances, or differentials.
(6) Section 7116 provides, in pertinent part that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; (or) .
. .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
(7) The following abbreviations will be used in the decision. "Tr."
refers to the transcript. "G.C. Exh." refers to the exhibits of the
General Counsel. "G.C. Br." refers to the brief of the General Counsel
and "R. Br." to that of Respondent.
The unopposed motion of the General Counsel to correct the transcript
is granted, with additional corrections made by me, pursuant to 5 CFR
2423.19(r). The corrections appear in Appendix A, hereto.
(8) Inapposite is Respondents' argument and reliance on a case
involving a local union's proposal to change working conditions, after a
consolidated, national unit is certified. See R. Br. 5, citing Social
Security Administration, Mid-Atlantic Program Service Center, Kansas
City, Missouri, 10 FLRA 15 (1982). Here, it is management which
initiated the changes in conditions of employment. And, as discussed in
section 2 of this decision, a management-initiated change gives a union
the right to propose ground rules for bargaining over such changes, and
requires management to negotiate concerning the proposed ground rules.
(9) 5 U.S.C. 5596(b)(1) provides that:
(b)(1) An employee of an agency who, on the basis of a timely appeal
or an administrative determination (including a decision relating to an
unfair labor practice or a grievance) is found by appropriate authority
under applicable law, rule, regulation, or collective bargaining
agreement, to have been affected by an unjustified or unwarranted
personnel action which has resulted in the withdrawal or reduction of
all or part of the pay, allowances, or differentials of the employee -
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect -
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period; . . . .
(10) Section 7105(g) provides that:
In order to carry out its functions under this chapter, the
Authority . . .
(3) may require an agency or labor organization to cease and
desist from violations of this chapter and require it to take any
remedial action it considers appropriate to carry out the policies
of this chapter.
APPENDIX B
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement a change in conditions of employment concerning
the hours of work of bargaining unit employees represented by the
American Federation of Government Employees, AFL-CIO, without first
bargaining, upon request, with the American Federation of Government
Employees, AFL-CIO, or its authorized representative, AFGE Local 3884,
concerning such changes.
WE WILL NOT refuse to bargain, upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, AFGE Local 3884, concerning ground rules for
negotiations over changes in conditions of employment of our employees.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, AFGE Local 3884, of any
proposed change in the hours of work and starting and quitting times of
unit employees on the PM and night shifts, and, upon request, bargain
concerning such change.
WE WILL rescind the change in hours of work implemented on April 29,
1984 for unit employee nurses on the PM and night shifts, reinstate the
starting and quitting times for the PM and night shifts which existed
prior to April 29, 1984, and compensate with Sunday premium pay those
unit employee nurses who have worked the Sunday night shift since April
28, 1984 and whose shift hours would have been 11:45 PM Sunday through
7:45 AM Monday were it not for the unilateral change in starting and
quitting times.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, or its authorized representative, AFGE Local 3884,
bargain in good faith concerning ground rules for negotiations,
including ground rule proposals that preparation time for negotiations
is to be on official time, and execute a written document which embodies
agreed-upon ground rules for negotiations.
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 Statute.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 7,
whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 844-5224; FTS-8-564-5224.