Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina and Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO, AT-CA-0093, February 19, 2004, 59 FLRA No. 118.

Citing decisions under the Executive Order 11491 labor-management relations program and NLRB decisions (esp. Peerless Food Products, Inc., 236 NLRB 161 (1978)) under the National Labor Relations Act, the Authority (Member Pope dissenting) extended the application of the de minimis test to changes in conditions of employment that are substantively negotiable. "No interests are served by requiring 'bargaining over every single management action, no matter how slight the impact of the action[.]'"

On November 15, 2000, the agency unilaterally reduced the number of reserved parking places for ALJs at SSA's Office of Hearings and Appeals in Charleston, South Carolina. A ULP complaint followed and FLRA's ALJ hearing the case said that since the issue of employee parking is substantively negotiable, it wasn't necessary to decide whether the impact of the change was more than de minimis. The Judge went on to say that "[w]ere it otherwise, . . . there might be grave doubt that the impact was more than de minimis." The agency filed exceptions, arguing that the de minimis doctrine should also apply to substantive bargaining.

The Authority then published a Federal Register Notice seeking amicus curiae briefs on the issue of whether FLRA should eliminate the distinction between changes that are, and that are not, substantively negotiable with respect to the application of the de minimis standard. After considering the briefs, precedent under Executive Order 11491 and the National Labor Relations Act (NLRA), and current precedent under the FSLMRS, the Authority (Member Pope vehemently dissenting), decided to eliminate the distinction. "[W]e will apply the de minimis standard in this and future cases to determine whether an agency has a duty to bargain in situations in which it changes unit employees' conditions of employment."

In reaching this conclusion, FLRA noted that the Assistant Secretary, in DOD, Tex. Air Nat'l Guard, A/SLMR No. 738 (1976), said that section 11(a) of Executive Order 11491 "is not intended to embrace every issue which is of interest to agencies and exclusive representatives and which may indirectly affect employees. Rather, Section 11(a) encompasses those matters which materially affect, and have a substantial impact on, personnel policies, practices, and general working conditions." In 2 FLRA 238 (1979), the Authority, deciding a carryover case under the Executive Order, adopted the ALJ's application of the "substantial impact" standard employed in DOD, Tex. Air Nat'l Guard: thus the agency didn't violate the Executive Order when it unilaterally changed the location of the flexitime sign-in/sign-out sheets.

FLRA went on to note that a similar threshold standard has been applied under the NLRA by the NLRB. Citing, among other cases, Peerless Food Products, Inc., 236 N.L.R.B. 161 (1978), it said that "NLRB has consistently adhered to the principle that unilateral changes in conditions of employment that are mandatory subjects of bargaining do not constitute a breach of the bargaining obligation unless the unilateral change 'amount[s] to a material, substantial, and a significant one[.]'" Since there was no explicit indication in the FSLMRS of a departure from Executive Order and NLRA precedent, FLRA said that "it would seem appropriate to conclude that Congress was aware of the use of a threshold standard that had to be met before a change by management in substantially negotiable matters gave rise to a duty to bargain over the change itself, and that Congress intended to continue the use of such a standard in these cases."

Regarding precedent under the FSLMRS, the Authority noted that FLRA had never explained why it didn't consider the impact of the change when the change was itself substantively negotiable. "Such a lack of explanation appears to be contrary to the admonition of the court in NTEU v. FLRA that, "[a]t a minimum, the FLRA must acknowledge the precedent [of the Assistant Secretary under the Executive Order] and provide a reason for departure, just as it must when it reappraises its own precedent." NTEU v. FLRA, 774 F.2d at 1192. FLRA continued:

Although the Authority has continued to make the distinction . . . between substantively negotiable changes, where the de minimis standard has not been applied, and changes that are not substantively negotiable, where the de minimis standard has been applied, the rationale for this distinction is not apparent either from the Statute itself or from the Authority case law . . . .

FLRA noted that in DHHS, SSA and AFGE, Local 1760, 24 FLRA at 406 (1986) the Authority justified the use of a standard to identify changes which require bargaining and those which do not by stating that "we must . . . seek to discharge our responsibilities in a fashion that promotes meaningful bilateral negotiations. Interpreting the Statute to require bargaining over every single management action, no matter how slight the impact of that action, does not serve [the purposes of the Statute]." The Authority agreed with this reasoning and concluded that this rationale "applies equally as well to changes in conditions of employment that are substantively negotiable." It went on to say that it believed "that the appropriate threshold standard to apply in both circumstances is the de minimis standard that the Authority has developed and applied over the years. . . . Accordingly, we will apply the de minimis standard in this and future cases to determine whether an agency has a duty to bargain in situations in which it changes unit employees' conditions of employment."

Applying that standard to the facts of this case, in which the record showed that "the change in the number of reserved parking places has had only one impact on the unit employees: the ALJs have parked in some different parking spaces[,]" FLRA found that agency had no duty to bargain because the change in conditions of employment was not more than de minimis, and accordingly dismissed the complaint.

In her dissent, Member Pope said that that majority's explanation for changing 25 years of precedent under the Statute "is both inconsistent with the Statute and lacking in reason." She distinguished section 11 of Executive Order 11491 from the Statute, claiming that "§11 did not set forth a general obligation to bargain. In fact, it did not require 'collective bargaining' at all; § 11 merely required agencies and unions to 'meet . . . and confer in good faith . . . .'" She also found the majority's reliance on NLRB decisions to be misplaced.

The NLRB . . . has significant discretion to define the scope of bargaining and may, as a policy matter, refuse to consider certain types of cases in order to efficiently manage its case load. . . . The Statute, on the other hand, does contain a precise statutory definition of the scope of bargaining. See 5 U.S.C. § 7103(a)(12) and (14). As the Authority is required to apply this definition, which is absent in the private sector, the Authority's discretion to determine the scope of bargaining is likewise constrained in a way that is absent in the private sector. . . . Thus, case law under those two schemes [EO 11491 and NLRA] is an insufficient basis for the wholesale change in the scope of bargaining imposed by the majority today.

She predicted that application of the de minimis rule to all changes in conditions of employment would invite agencies to refuse to bargain and create a "new generation of bargaining disputes. "The change will produce lopsided results in a system that already tilts decidedly towards management."

It will be interesting to see whether unions regard the practical impact of this decision as sufficiently important for them to seek court review.