De minimis Changes to Terms and Conditions of Employment
This installment of NATCA’s Know Your Rights Series will explain the doctrine of “de minimis” changes to terms and conditions of employment. The phrase de minimis comes from the expression de minimisnon curat lex, meaning that “the law does not concern itself with trifles.” So, a de minimis change to working conditions is one that is so minor that the law is not concerned with them.
Management frequently alleges that workplace changes are de minimis in order to avoid bargaining, but it is the union’s job to determine whether management is correct in that assertion. Management’s claim that a change is de minimis should always be inspected closely in order to determine if there is a non-de minimis impact on the bargaining unit employees. If so, a grievance challenging the failure to bargain and disputing management’s assertion that the change is de minimis should be filed. Remember, there are many changes that are really de minimis, and learning to recognize them can allow NATCA to focus on issues that do have an impact on the union.
Under 5 USC 7116(a)(1) and (5), an agency is obligated to bargain over the impact and implementation of a change in unit employees’ conditions of employment provided that the change has more than a de minimis effect. The de minimis test applies to all changes in conditions of employment, whether they are substantively negotiable or result from the exercise of a non-negotiable management right. In assessing whether the effect of a decision on conditions of employment is more than de minimis, the FLRA looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change. United States Dept. of the Treasury, IRS, 56 FLRA 906, 913 (2000). 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.
In 2004, the Federal Labor Relations Authority (FLRA) changed preexisting law to require the threshold of a de minimis change in conditions of employment before an agency’s obligation to bargain concerning either substantive changes in working conditions or the impact of substantive changes in working conditions. SSA OHA Charleston and Ass’n. of ALJs, IFPTE, 59 FLRA 646, 649-55 (2004), aff’d, Ass’n. of ALJs v. FLRA, 397 F.3d 957 (D.C. Cir. 2005).
This means that, under current FLRA law, the FAA can and will refuse to bargain any change they believe is de minimis, whether or not the change itself is negotiable or only the effects are negotiable.
NATCA representatives should also understand that de minimis issues are also resolved on a case by case basis by the FLRA. This means that prior, similar cases may not be controlling precedent.
Non De Minimis Changes
The standard for finding a de minimis change is more stringent than one might expect. The following are examples of where the FLRA found seemingly small changes not de minimis:
- A change in the workload of claims representatives, though described as “slight” by the FLRA, was ruled more than de minimis.
- The removal of a water cooler had more than a de minimis impact.
- The fact that a change affects only one employee will not necessarily render it de minimis.
- Changes in employees’ shifts were not de minimis when they affected the employees’ ability to earn overtime, night differential, and Sunday premium pay.
- A change was not de minimis, even though it caused only one employee to report an hour later, when it interfered with the employee’s ability to hold a second job.
De Minimis Changes
However, as stated above, the de minimis standard is applied on a case-by-case basis, so the following cases illustrate instances where a change was found de minimis.
- A change in the tour of duty for one employee in a base-wide unit was no more than de minimis, even though the employee lost some differential pay.
- Changes in hours of work for TDY employees were within their job assignments and therefore not considered a change in working conditions so as to necessitate impact bargaining.
- The removal of reserved parking spaces had a de minimis impact when the affected employees retained free parking in the same garage and plenty of open spaces were available.
Although the FLRA has expanded the power of federal agencies to refuse to bargain over issues that are de minimis, the FLRA continues to find a wide range of changes to the terms and conditions of employment to be more than de minimis. NATCA representatives should always closely examine any change to terms and conditions of employment in order to determine if there is a good argument that the change has a more than de minimis impact on the bargaining unit. Be sure to consult with your Regional Vice President and/or Labor Relations Staff Representative for guidance if you’re just not sure whether a change is de minimisor not. As the wide variety of cases and results from the FLRA shows, knowing what is or is not a de minimis change is an art, not a science.