58 FLRA No. 10

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 General Counsel. The Respondent filed an opposition to the General Counsel'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 improperly implementing a change in the assignment of receptionist duties. The Judge concluded that the Respondent did not violate the Statute and recommended that the Authority dismiss the complaint.

      Upon consideration of the Judge's decision and the entire record, we find that the Respondent violated §  7116(a)(1) and (5) of the Statute. To remedy the violation, we direct the Respondent to negotiate in good faith over the impact and implementation of the change.

II.     Background and Judge's Decision

A.     Background

      The facts are fully set forth in the Judge's decision and only briefly summarized here.

      The Respondent and the Charging Party entered into an agreement to rotate receptionist duties among all employees at or below the GS-07 level in a fair and equitable manner. Subsequently, when one employee volunteered to perform the receptionist duties, the parties agreed to hold in abeyance their agreement until the voluntary assignment ended. The voluntary assignment ended when the employee retired, following which the Respondent notified the Charging Party that it would assign the receptionist duties to four designated unit employees on a rotating basis. The Charging Party requested bargaining over the change and submitted seventeen proposals. In response, the Respondent agreed to ten of the proposals, proposed modifying five, and declared the remaining two nonnegotiable. The parties met to negotiate on two days, but did not reach agreement. [n2] 

      Five days later, the Charging Party received a document entitled "Local Bargaining Supplement to the National Agreement," containing its original proposals (except the two declared nonnegotiable), the signatures of two Respondent representatives, and signature lines for the Charging Party. The supplement did not include an explanation or instructions, and the Charging Party never signed the supplement. Shortly thereafter, without further notice, the Respondent implemented its plan to rotate the receptionist duties among the four designated employees.

B.     Judge's Decision

      The Judge found that the Respondent's decision to rotate the receptionist duties among the four designated employees was a change in conditions of employment that was more than de minimis. The Judge also found that the Respondent's decision constituted an exercise of its right to assign work under § 7106(a)(2)(B) of the Statute and, as a result, the Respondent was obligated to bargain only over the impact and implementation of its decision. [ v58 p34 ]

      The Judge concluded that the Respondent notified the Charging Party of its intent to rotate the receptionist duties and bargained over the Charging Party's proposals. The Judge found that, as the Respondent ultimately accepted fifteen of the proposals and declared the remaining two nonnegotiable, the Respondent fulfilled its obligation to bargain unless Proposal 2 is found to be negotiable. [n3]  The Judge concluded that Proposal 2 is nonnegotiable because it excessively interferes with the Respondent's right to assign work. Accordingly, the Judge concluded that the Respondent fulfilled its statutory bargaining obligations, and he recommended that the complaint be dismissed. As such, the Judge found it unnecessary to resolve the Respondent's defense that Article 5.06(2) of the parties' agreement permitted implementation of the rotation plan. [n4] 

III.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel asserts that the Respondent violated the Statute by implementing the rotation plan while negotiations were ongoing. In this regard, the General Counsel asserts that the parties never reached an agreement over the Charging Party's proposals and the supplement that the Respondent provided to the Charging Party was nothing more than a counter-proposal, which was never agreed upon. In the General Counsel's view, the Respondent was required to inform the Charging Party that it considered negotiations either complete or no longer required before implementing the rotation plan.

      The General Counsel also excepts to the Judge's finding that Proposal 2 is nonnegotiable under § 7106(b)(3) of the Statute. According to the General Counsel, Proposal 2 does not prevent management from determining who is qualified to act as receptionist and, as a result, is negotiable under Authority precedent. The General Counsel asserts, in this regard, that the Respondent has never claimed that Proposal 2 would affect its right to determine qualifications and that, in any event, there is no evidence that any employees affected by the proposal are unqualified to perform receptionist duties.

B.     Respondent's Opposition

      The Respondent asserts that the Judge correctly concluded that the Respondent fulfilled its bargaining obligation under the Statute. In this regard, the Respondent asserts that, at the time of implementation, it had agreed to all of the Charging Party's negotiable proposals and that only nonnegotiable proposals remained. According to the Respondent, Article 5.06(2) of the parties' collective bargaining agreement permitted implementation in these circumstances.

IV.     Analysis and Conclusions

A     The Respondent Violated § 7116(a)(1) and (5) of the Statute

      It has long been established that an agency must meet its obligation to negotiate prior to making changes in established conditions of employment. See, e.g., Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 852 (1999) (FCI Bastrop). When an agency responds to a union's request to negotiate by refusing to bargain because it contends that the proposals are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. See, e.g., United States Dep't of Health and Human Servs., SSA, Balt., Md., 39 FLRA 258, 262-63 (1991). If all pending proposals are nonnegotiable, the agency will not be found to have violated the Statute by implementing the change without bargaining over them. However, if any pending proposals are negotiable, the agency will be found to have violated the Statute by implementing the change without bargaining over the negotiable proposals and either reaching agreement or declaring impasse. See, e.g., FCI Bastrop, 55 FLRA at 852.

      For the reasons set forth below, we find that Proposal 2 is a negotiable proposal that was pending at the time the Respondent implemented the change. [ v58 p35 ]

      As noted supra at note 3, Proposal 2 provides that "[a]ll HUD employees assigned to the Cleveland HUD Office shall staff the position of receptionist on a fair and equitable rotating basis." The Judge found that Proposal 2 affects management's right to assign work and does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. However, the Authority has long held that proposals requiring the rotational assignment of work among employees whom management has determined are qualified to perform the work are negotiable. See, e.g., NAGE, Local R14-52, 44 FLRA 738, 741-42 (1992) and cases cited therein. In this case, there is no basis in the record to conclude that Proposal 2 prevents the Respondent from determining which employees are qualified to serve as receptionist, particularly in light of testimony by the Charging Party's representative that, under the proposal, management retains the ability to determine who is qualified to serve as the receptionist. See Transcript at 43. As the Authority has stated:

In all of the cases that concern the establishment of procedures for making work assignments within a group of employees, one basic requirement is clear if such proposals are to avoid conflict with management's right to assign work: the proposal must preserve management's discretion to determine both the qualifications and skills needed to do the work involved and the employees who meet those qualifications.

AFGE, Local 3509, 46 FLRA 1590, 1599 (1993). Proposal 2 is consistent with this requirement. Accordingly, we find that proposal 2 does not affect management's right to assign work and is negotiable. [n5] 

      In sum, we find that Proposal 2 is negotiable. Therefore, consistent with the principles set forth above, the Respondent's implementation of the rotation plan violated § 7116(a)(1) and (5) of the Statute. [n6] 

B.     A Prospective Bargaining Order Is Appropriate

      The Authority has broad discretion to fashion appropriate remedies for unfair labor practices. See National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Here, the General Counsel requests a status quo ante remedy. In evaluating such a request, the Authority applies the criteria set forth in Fed. Corr. Inst., 8 FLRA 604, 606 (1982). The Authority also may consider other factors to determine whether a status quo ante remedy is appropriate. FDIC, Wash., D.C., 48 FLRA 313, 329 (1993) (citation omitted).

      The purpose of a status quo ante remedy is to place parties in the positions they would have been in had there been no unlawful conduct. See Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580 (1996). In this case, it is unclear what those positions are. In particular, the change in assignment of receptionist duties was precipitated by the retirement of the employee who volunteered to perform those duties. Obviously, it is not possible to return to the situation where the duties were performed by that employee. Further, although the parties had an agreement concerning assignment of these duties prior to the retirement, there is no indication that either party desired implementation of that agreement. Moreover, while the General Counsel seeks a return to a practice of rotating the receptionist duties among employees at grades GS-9 and below, the Judge made no findings demonstrating that there was such a practice. Consequently, a status quo ante remedy is not appropriate in this case.

      We conclude that a prospective bargaining order is the appropriate remedy in this case. The Respondent must therefore fulfill its bargaining obligation under the Statute by bargaining in good faith over the impact and implementation of the change, to include negotiating over the Charging Party's proposal 2. [ v58 p36 ]

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Housing and Urban Development shall:

      1.      Cease and desist from:

           (a)     Refusing to bargain in good faith with the American Federation of Government Employees, Local 3701, the exclusive representative of unit employees, concerning the rotation of receptionist duties.

           (b)     In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights under the Federal Service Labor-Management Relations Statute.

      2.     Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

           (a)     Upon request, bargain in good faith with the American Federation of Government Employees, Local 3701, to the extent required by law, over changes in the assignment of receptionist duties.

           (b)     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 Director of the Department of Housing and Urban Development, Cleveland Area Office 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.

      (c)     Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply.

The Federal Labor Relations Authority has found that the United States Department of Housing and Urban Development violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT refuse to bargain in good faith with the American Federation of Government Employees, Local 3701, the exclusive representative of unit employees, concerning the rotation of receptionist duties.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights protected by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, bargain in good faith with the American Federation of Government Employees, Local 3701, to the extent required by law, over any changes to the rotation of receptionist duties.

      ________________________
(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, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, Illinois 60603-9729, and whose telephone number is: (312) 353-6306.

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

   The Charging Party filed a negotiability appeal, which was dismissed without prejudice.

   Although two proposals were declared nonnegotiable, only the negotiability of Proposal 2 remains in dispute. Proposal 2 provides: "All HUD employees assigned to the Cleveland HUD office shall staff the position of receptionist on a fair and equitable basis." Exceptions at 3.

   Article 5.06(2), entitled "Bargaining Impasses," provides: "If there are negotiability disputes, all agreed-upon terms shall be implemented upon agreement on all but the disputed items." Jt. Exh. 1 at 25. The Judge stated that if it were necessary to resolve the contractual defense, then he would reject it because Article 5.06(2) "contemplates that the parties have executed and signed an `agreement'" for partial implementation and, in this case, there was no such agreement. Judge's Decision at 12 n.15.

   Because the proposal does not affect management's right to assign work, § 7106(b)(3) of the Statute is inapplicable. See, e.g., NTEU, 55 FLRA 1174, 1177 (1999). In addition, we note that in finding proposal 2 negotiable, we express no view as to its merits.

   Having found that Proposal 2 is negotiable, we express no view as to whether any other negotiable proposals were pending at the time the Respondent implemented the rotation plan.