“DE MINIMIS” DOCTRINE TOO COMPLEX EVEN FOR ALJs?
Not long ago FEDSMILL.com posted an article entitled “Die, De Minimis Die” to shine a light on how elusively complex and high risk the de minimis doctrine is for practitioners. It may look good as a theory in some circuit court judge’s chambers or as a principle of law to the FLRA, but it drives the rest of us nuts. That’s why it was so satisfying last week to see FLRA has had to yet again overturn one of its own ALJs who apparently doesn’t understand it either.
In AFGE, 67 FLRA 46 the agency prohibited those employees under disciplinary investigation from accessing the agency’s computer system. The ALJ found that was a change in conditions of employment, but then held that the change was de minimis, which relieved the agency of any obligation to bargain. The judge pointed out that even though the employees lost their access to their agency e-mail account, their time-and-attendance records, their on-line benefit selection options, and vacancy announcements that the agency had provide them with alternatives to computer access for each of those information sources.
He noted that the employees could get much of the vital agency news passed via e-mail by asking supervisors and attending daily formal muster meetings. He accepted that employees could use their private on-line accounts at home to access some of the agency web site information and send messages to co-workers. He remarked that they could complete and submit their time-and-attendance reports by hand, and that there was always the telephone if they needed to communicate with someone. When the union demonstrated that the agency’s training materials and classes were on-line, the ALJ accepted the agency’s decision to waive training requirements for these employees until the investigations were complete. The ALJ’s bottom line was that neither the FLRA General Counsel nor union had shown an ACTUAL harm.
When the case was appealed to the full FLRA, it tossed the LK’s reasoning overboard. The Authority began its own decision by affirming that the standard for a de minimis finding could be proof of ACTUAL harm, but that where there is none the ALJ or arbitrator must also determine whether there was “any reasonably foreseeable harm” at the time the change was implemented. If there was, the change cannot be considered de minimis.
The FLRA went on to explain that computer system access was a vital part of working at the agency because it was used to transmit “a great deal of vital information.” The system was also the employees’ primary means of communicating with management and one another. (It seems to us that could be said about any agency’s computer system today.)
The Authority also pointed out that by requiring employees to use alternative methods of communicating the agency had placed a burden on them, under which it was “reasonably foreseeable” that the off-line employees would miss significant information. It closed by pointing out some near misses these employees had experienced.
This is not the first time that the Obama’s FLRA has had to criticize an ALJ’s understanding of the de minimis doctrine. In AFGE, 66 FLRA 877, the ALJ held a change in the properties maintenance workers were required to clean was de minimis, but FLRA reversed that decision by observing that the judge had underestimated the impact of seven facts in the case. That is a lot of underestimating for a professional judge, but we don’t blame her because, as we have said, this de minimis a very difficult concept to understand.
The Authority did the same thing to one of the better arbitrators in the country in NTEU, 64 FLRA 281. The arbitrator held a classification change was de minimis because the agency had not changed the employees’ grade levels, pay or duties. FLRA reversed him with an order that he look more deeply for impact by examining how the reclassification effected which performance awards pools the employee was in, the employees’ right to laterally reassign to other jobs as well as their right to qualify for promotion into certain other classifications.
FEDSMILL’s bottom line is that the FLRA and courts need to reconsider the viability of the de minimis doctrine. If ALJs and arbitrators do not understand it, what chance do practitioners have of correctly applying it every day? That might be an academic question except for the fact that when management LR specialists use it they take a very big risk of being overturned and incurring a costly status quo ante order.
We will close by quoting from AFGE, 64 FLRA 166 a passage in which the Authority described the core principles of the de minimis doctrine in impact and implementation bargaining situations.
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. . . . In determining whether the reasonably foreseeable effects of a change are greater than de minimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. . . .Further, the number of employees affected by a change is not dispositive of whether the change is 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.