DIE, DE MINIMIS, DIE!
Even though there is some legal foundation for holding that a change must be more than de minimis to create a bargaining obligation, it has been more trouble than it is worth—even to management. One case that might help both parties better understand how infrequently it should be used to block bargaining is AFGE, 64 FLRA 166. In it, FLRA held that a change in just one employee’s working conditions, even though temporary, was more than de minimis.
Before we focus on the meat of the FLRA decision, we want to share of few more thoughts about de minimis. Lots of managers allege that lots of changes are de minimis and they need not bargain. That is probably is fine, but if the union objects it may be wise to bargain rather than fight. First of all, if the union files charges and wins, management might incur some costly remedies. Second, if it really is minor then the FSIP is likely to reject any significant union proposals. Third, you might reach agreement.
We have always considered management refusals to bargain to be like gambling on horses without having to put your own money at risk. The race has only two possible outcomes. If your horse loses, you have lost not a dime. But if it wins, you get money without having had to risk a thing. If the winning horse yields back pay and attorney fees, it is like a trifecta pay-off. Why management does this to itself is beyond us. It can’t all just be about being the macho manager who is tough on unions. How often has the “Bring It On” approach to labor relations or international relations benefitted anyone?
But, back to the FLRA decision wherein it held that a change impacting only one employee, even a temporary change, can create a bargaining obligation. What follows is an excerpt of the case that explains it all and that union reps should send to a manager when he/she decides to “put the union in its place”:
Moreover, even assuming that the Respondent’s order requiring that Helwig vacate Room 132 was a result of its exercise of management rights, the Respondent was required to bargain with the Union over the impact and implementation of Helwig’s move. An agency has an obligation to bargain over appropriate arrangements for unit employees adversely affected by a decision to exercise management rights, if the resulting changes have more than a deminimis effect on conditions of employment. See Soc. Sec. Admin., Office of Hearings and Appeals, Region II, N.Y., N.Y., 19 FLRA 328 (1985) (agency violated duty to bargain when exercising management right to relocate offices without negotiating over impact and implementation and the relocation caused changes in conditions of employment of unit employees that were more than de minimis.); United States Dep’t of Health and Human Servs., Soc. Sec. Admin., Baltimore, Md.,41 FLRA 339, 350 (1991) (relocating offices gives rise to an obligation to bargain impact and implementation).
In applying the de minimis doctrine, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees’conditions of employment. See IRS, 56 FLRA at 913. In determining whether the reasonably foreseeable effects of a change are greater than deminimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. See VA, Phoenix, 47 FLRA at 423 (citation omitted). Further, the number of employees affected by a change is not dispositive of whether the change is de minimis. See United States Dep’t of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pa., 57 FLRA 852, 857 (2002) (Willow Grove) (citing VA, Phoenix, 47 FLRA at 424 (change affecting single employee not de minimis)). It is also the case that an analysis of whether a change is de minimis does not focus primarily on the actual effects of the change. See, e.g., Veterans Admin. Med. Ctr., Prescott, Ariz., 46
FLRA 471, 475 (1992); United States Customs Serv. (Wash., D.C.) and United States Customs Serv., Northeast Region (Boston, Mass.), 29 FLRA 891 (1987).
Applying the foregoing here, the Judge found that the Respondent’s order that Helwig vacate Room 132 had an adverse effect on Helwig’s ability to perform his training duties. Judge’s Decision at 29. The Judge also concluded that the changes in Helwig’s conditions of employment resulting from Respondent’s order requiring Helwig to vacate Room 132 were more than de minimis. Id. Specifically, the Judge found that, when Helwig was given Room 132 to use as a second office, he was able to conduct face-to-face training, in addition to using the room’s desks, its computer equipment, and storage space. Id. at 7. The Judge also found that, after Helwig was ordered to vacate Room 132, the materials that were previously stored there were moved to Room 247, which was already crowded and became more strained for storage space. Id. According to the Judge, because Helwig’s computer, telephone, and fax machine at his new office were not functional for two weeks following the move, his ability to communicate training information to VO employees was much less effective than the face-to-face communication that he enjoyed when he occupied Room 132.
Given the extent and nature of these changes, we conclude that the Judge properly determined that the Respondent’s order that Helwig vacate Room 132 resulted in a change in conditions of employment that was more than de minimis. Consequently, we hold that the Respondent had a duty to bargain with the Union over the impact and implementation of Helwig’s move from Room 132 and deny the Respondent’s exception.