[ v16 p217 ]
16:0217(32)CA
The decision of the Authority follows:
16 FLRA No. 32
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-966
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions /1/ and recommendation that the complaint
be dismissed. Thus, in the facts and circumstances of this case, the
Authority finds that the Respondent did not violate the Statute as
alleged. /2/
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-966 be, and it
hereby is, dismissed.
Issued, Washington, D.C., October 3, 1984
Henry B. Frazier, III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-966
Daniel H. Green, Esq.
For the Respondent
Josanna Berkow, Esq.
For the General Counsel
Vince Morgante
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute or the Act). It is based
on a first amended charge filed on April 9, 1981 by American Federation
of Government Employees, AFL-CIO (herein called the Union), against
Department of Health & Human Services, Social Security Administration,
Baltimore, Maryland (herein called the Respondent).
A Complaint and Notice of Hearing, based on said amended charge, was
issued on June 26, 1981 by the Regional Director for the Federal Labor
Relations Authority, San Francisco, California Region. The said
complaint alleged, in substance, that on or about February 18, 1981 /3/
Respondent unilaterally implemented changes in working conditions of
unit employees at its Fremont office by moving 14 employees prior to
completing negotiations with the Union-- all in violation of Sections
7116(a)(1) and (5) of the Statute.
Respondent filed an answer to the complaint, dated July 10, 1981, in
which it denied the aforesaid allegation as well as the commission of
any unfair labor practices.
A hearing was held before the undersigned on August 20, 1981 at San
Francisco, California. All parties were represented thereat, and each
was afforded full opportunity to be heard, to adduce evidence, and
examine as well as cross examine witnesses. Thereafter briefs were
filed with the undersigned which have been duly considered. /4/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions.
Findings of Fact
1. The Social Security Administration operates a branch office at
Fremont, California under its Haywood District. This office processes
claims filed by the public for social security benefits (entitlement)
under a designated classification of Title II, as well as claims for
supplemental security income (welfare) classified as Title XVI. Its
normal complement of employees has consisted of the following: 1
manager, 2 supervisors, 11 claims representatives (herein called CRs), 4
service representatives, 5 clerical (herein called CDCs at times), 4
data review technicians, and 1 administrative aide.
2. Respondent has utilized a module system at the Fremont office
under which there were two CRs (one from each Title) and a clerical
assigned to both representatives in each module. This arrangement,
which prevailed until February 27, 1981, /5/ provided for all those on
one side of the office to be supervised by a particular person, while
another individual supervised those on the other side. Further, the
clericals split the Title II and Title XVI workload prior to said date.
3. At all times material herein the Union and Respondent have been
and still are, parties to a written collective bargaining agreement
covering the employees in the Fremont office who are involved herein.
Pertinent provisions included in the said agreement include the
following:
Article 1. Definitions /6/
No. 4. Collective bargaining is defined as the obligation of
the parties to meet at reasonable times and confer in good faith
per Executive Order 11491, as amended, Section 11(a).
No. 5. Meet at reasonable times and confer in good faith
refers to the process of negotiation.
No. 6. Negotiation is a meeting between the parties wherein
they seek agreement, and, in lieu thereof, seek third party
assistance to reach agreement.
No. 7. Consultation is the process whereby the appropriate
official shall notify the Union of proposed changes in personnel
policies, practices and matters affecting working conditions
within that official's jurisdiction. The parties will fully
explore and consider each other's views before taking Decisive
action. Except in emergencies, short deadlines, or similar
situations the receiving party will be notified adequately in
advance of a change to prepare its view and suggest changes to the
party desiring a change. The Council may consult in person at
reasonable times, on request, with appropriate officials, on
personnel policy matters and at all times present its views in
writing.
4. Memorandum dated May 18, 1971 (G.C. Exhibit 13) was sent to all
Area Directors, including branch, from Respondent's Assistant Regional
Commissioner, Field Operations. It declared that Respondent has always
believed it was merely required to consult on changes in working
conditions, but that the FLRA had decided otherwise. While it continued
to adhere to that view, pending appeal, management advised its various
heads to discuss all proposals with the union, exchange views without
labelling it negotiation or consultation, and obtain union input re
impact and implementation. Further, the managers were admonished to
give serious consideration to counterproposals, and give reasons for
declining to adopt union suggestions. /7/
5. Another memo, dated July 8, 1981 (G.C. Exhibit 14), informed the
managers that Respondent has accepted the FLRA's position that the Union
has not waived its right to bargain or negotiate at the District Level
based on the written agreement between the parties. This holding
collided with Respondent's interpretation of the agreement. The memo
further advised that managers should heed Section 7106 of the Act re
"Management Rights"; that "demands" for negotiations of work
assignments should be rejected; that permissive areas should not be
negotiated; and that, with respect to requests to negotiate procedures
which the employer will observe in exercising management rights, the
managers should be guided by the May 18, 1981 memo.
6. In January the Fremont office lost a clerical employee whom it
was unable to replace due to the freeze in hiring. Supervisor Teresa
Toscano's testimony reflects that this posed a problem in respect to the
distribution of the work to the remaining four clericals. On her side
of the room two clericals worked with seven CRs, while the two remaining
clericals were assigned to four CRs in the other section. This left one
unit composed of a Title II and a Title XVI CRwithout clerical coverage,
and a CRhired in December 1980 also had no clerical assistance. Toscano
further testified that she tried to assign, in her section, one clerical
with four CRs and the other clerical with three CRs. However, the work
was not being completed and this solution was unsatisfactory.
Management then tried having a clerical from the other side of the room
spend half her day working in a unit which had insufficient coverage,
but this did not solve the problem. Further, if one clerical failed to
report, it resulted in considerable shifting of tasks and a larger back
up of work. The clericals complained of being overworked, and the CR's
complained that they were required to do clerical chores.
7(a). On February 18 management met with the Union in the morning in
order to discuss the processing of redetermination cases. /8/ The
employer, concerned about the large volume of redet claims, made some
proposals to achieve prompt disposition thereof. These proposals were
related by Susan A. Bailey, union representative who met with
management, to the employees in the form of a written memorandum.
(b) Another meeting occurred between the parties in the afternoon of
February 18. Branch manager, John Hernandez, along with supervisors
Toscano and Lourdes Cruz, met with union agent Bailey. Toscano
explained that because of the clerical shortage and the problems
encountered as a result thereof, management had decided to redistribute
the clerical work in the office. The plan called for specializing the
clerical tasks, so that each clerical would work on Title II or Title
XVI cases. Thus, two clerks would be attached to each title, and work
assigned on an alphabetical breakdown basis. As explained, the Title
XVI CRs would move to the front of the office and the Title II CRs move
to the rear of the room. /9/ Toscano detailed the proposed change to
Bailey, and the supervisor stated the reasons therefor. The union agent
stated the idea was "crazy" since it involved moving many individuals
despite the loss of only one clerical; further, Bailey mentioned that
she did the clerical work as required. Supervisor Toscano asked Bailey
to respond to the suggested plan re specializing clericals. The union
representative replied she would speak to the employees and report back
to management on February 20.
8. A resume of the proposed move was distributed by Bailey to the
employees on February 19. Objections to the plan were voiced by the
workers. They disliked splitting the work by title since specialization
in one would mean losing expertise in the other. Further, it was easier
to perform their tasks under the present set up. After reviewing the
planned move one of the employees drew up a seating chart as an
alternative to the change proposed by the employer.
9. The parties met again on February 20 /10/ at which time they
engaged in considerable discussion concerning the proposed plan to move
the employees. The Union presented two alternatives to management's
proposal: (1) rotate the clericals with the unit IV which had no
clerical, and require everyone (including CRs) to share the burden of
the clerical shortage; (2) move four individuals, instead of the number
intended by the employer, if specialization was necessary. This idea
was reduced to writing in the form of a chart prepared by a clerical and
submitted by the Union to Toscano at this meeting.
In respect to the suggested rotation of clericals and the sharing of
their work, management told Baily it did not believe this proposal was
feasible. The reasons behind the objection were also explained by the
employer's representative. /11/
The Union, in suggesting the movement of four people rather than an
anticipated 14, submitted a written chart prepared by a clerical. This
idea was discussed by both parties, and management stated that the
proposal would not work. Toscano said it would still result in an
unequal distribution of the clerical workload since three clericals
would have three CRs and one clerical would have two CRs. Further,
Karen Munson was going to be a Title II reviewer-- not an interviewer.
If the employer left her sitting, as proposed, she wouldn't be in a
quiet area to adjudicate her claims. Thus, six employees would, in
Toscano's words, be moved in any event. /12/
Bailey also advised Toscano at this meeting that one of the clericals
wanted to be in Title II and not go with Title XVI. Management agreed
to put the employee in Title II and to move her desk accordingly. The
union representative also commented that two clericals did not want to
sit next to each other, and Toscano consented to separate them.
Further, management agreed to abide by Karen Munson's preference to be a
reviewer rather than handle teleclaims. At the conclusion of the
meeting Toscano told the union representative that unless the Union came
up with another plan, which would be workable, management intended to
implement the move on February 27. Bailey replied she would speak to
the employees although she did not agree with the employee's proposed
arrangement.
10. The parties met again on February 23 and resumed discussion as
to the proposed move. Bailey was given a seating assignment (not in
writing) as to which CRs would be in Title II and in Title XVI, along
with the named clericals attached to each title. /13/
11. Management conducted two meetings with the Union representatives
and employees on February 24 at which times discussions ensued re the
contemplated move of office personnel.
(a) In the morning of said date Bailey and Arlene Bifano, who
prepared the counterproposal in the form of a chart previously submitted
to management on February 20, met with Toscano regarding that proposal.
Toscano was asked why it had not been accepted. The supervisor
explained that an uneven distribution of the workload still remained.
Further, the reviewer had to be moved to the back of the room.
(b) At the conclusion of the aforesaid discussion Bailey asked
Toscano to speak to the staff and explain the reason for the move as
well as the manner in which it would be accomplished. Toscano met with
the employees and questions were asked by several members of the staff
re, inter alia, assignments of CDC to CRs and when employees should move
if they were not in attendence on Friday, February 27. Toscano
explained that nobody would be assigned to a CDC, that they were going
to be working on an alphabetical basis and would have at least two
clericals to work with. She also informed the staff that the new set-up
would take effect on February 27. No objections were registered to the
statements or explanation made by the supervisor.
12. The union representatives thereafter conferred with the
employees again regarding the specialized plan to be implemented on
February 27. Together they composed a memo on February 25, addressed to
manager Hernandez, in which Bailey stated that the staff requested a
postponement of the office changes; that the employees wanted more time
to make counterproposals; that the uneven distribution of CDC workload
was an isolated difficulty which should not require disruption of the
office; and that the employees felt management has not given due
consideration to the proposals submitted to it.
13. On February 26 Bailey met again with Toscano and submitted the
memo, heretofore mentioned, wherein a request was made of management to
postpone the changes scheduled to be made on February 27. The parties
discussed the planned move again. Bailey also gave Toscano another
counterproposal which, with four modules, assigned each of three
clericals to three CRs and one clerical to two CRs. Further, under this
assignment Title II and XVI would be together. /14/ Toscano told Bailey
that she did not feel it was an equal distribution of work and the plan
was not as good as the one devised by Respondent. The meeting was
terminated after the supervisor stated she would talk to Hernandez re
the memo and then report back to Bailey.
14. During the morning of February 27 manager Hernandez called
Bailey into his office. He mentioned having received the memo re a
request to defer the contemplated move, but stated that too much time
had been spent in the reorganization. Hernandez told the union
representative that the Union had not come up with a better plan, and
thus management would implement its move (as discussed on February 18)
right away. Bailey said he should proceed, but she advised the manager
that the Union did not agree with it.
Hernandez held a staff meeting following his discussion with Bailey,
at which time he informed the office group that the parties had agreed
upon a workable solution; that the contemplated move of personnel would
take place after the meeting.
15. The reorganization took place on February 27. Eight CRs moved
on that date in accordance with the plan devised by management, and two
clericals were relocated subsequently. The office structure, as
reorganized by Respondent on said date, continues to the present time.
The matter has never been submitted to mediation, nor were arrangements
made for voluntary settlement. Neither did the Union indicate to
Respondent that it intended to invoke the services of The Impasses
Panel.
Conclusions
The ultimate question to be decided herein is whether the relocation
by Respondent of the office staff on February 27 was undertaken in
derogation of its duty to bargain with the Union. General Counsel
insists that management failed to negotiate its reorganization of claims
representatives as well as clericals and thus ran afoul of Section
7116(a)(1) and (5) of the Act. In support of this argument it is
contended that Respondent's policy, as reflected in its intra-agency
memos, is to consult rather than bargain. Further, it is asserted that
the employer gave little consideration to the Union's proposals or its
request to defer implementation. Rather, the General Counsel argues,
management hastened to effect the changes without demonstrating any
significant exigency therefor.
An initial determination is warranted as to whether Respondent herein
was required to bargain or negotiate as to the decision to reorganize
the office staff. Case law in the public sector makes it evident that,
under Section 7106 of the Statute, the right to assign work as well as
assign employees to positions or duties, is a management prerogative.
An employer need not bargain re the decision to make assignments or
reassignments. It may make periodic work assignment, or assign
continuing duties, at its discretion. National Treasury Employees Union
and Department of Treasury, Bureau of Public Debt, 3 FLRA No. 119.
American Federation of Government Employees, AFL-CIO, Local 3529 and
Defense Contract Audit Agency, 3 FLRA No. 46.
In the case at bar Respondent's decision to relocate the office staff
involved an assignment, or reassignment, of personnel in order to
conduct business. The employer's reorganization plan resulted in
altering the assignments of the four clericals so that, instead of each
working with a CRfrom both titles, two of them would be assigned to CRs
in Title II and two assigned to CRs in Title XVI. Moreover, the work
was assigned in alphabetical breakdown which was a departure from past
practice. This specialization of clericals caused a reassigning of
stations at which the staff worked, and changed the mode of operations
based on the new assignments. As such, I am constrained to conclude
that Respondent was privileged to decide to relocate the office staff
and that it was not incumbent upon the employer to bargain re the
decision with the Union herein.
It is equally clear that, despite the privilege accorded management
to make decisions re assignments of work or positions which are
non-negotiable, an employer is obliged to bargain as to their impact
upon unit employees. Where it is established that changes or
modifications by management, including assignments, result in an adverse
impact upon employees, the employer must afford a union an opportunity
to bargain re such impact as well as the implementation thereof.
Department of Defense, Department of the Navy, Consolidated Civilian
Personnel Office, 1 FLRA No, 80; Department of the Treasury, Internal
Revenue Service, Greensboro District Office, A/SLMR No. 1007; see also
Decision of Administrative Law Judge Francis E. Dowd in United States
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Washington, D.C. and Its Central Region, Case No. 5-CA-592, (April 20,
1982).
Contrary to the contention made by the General Counsel herein, I
conclude the record reflects that Respondent gave sufficient
notification to the Union re its planned changes of the office staff;
that, further, it bargained with the Union as to the impact /15/ of the
reassignments and their implementation. While I agree with the General
Counsel that no agreement was reached between the parties in respect to
the relocation, record facts convince me that Respondent and the Union
did engage in negotiations thereon. Thus, commencing re February 18
supervisor Toscano discussed the impending move and gave details thereof
to the Union representative. When Bailey submitted counterproposals on
February 20, Toscano discussed them and, although rejecting same as not
alleviating the inequitable distribution of the clerical work, she
explained why management deemed the union proposals inadequate.
Moreover, the chart submitted by the bargaining agent was considered by
the supervisor who contended the arrangement suggested by the Union
resulted in three clericals working with three CRs and one clerical with
two CRs. Toscano also pointed out that office worker Karen Munson would
not, as a Title II reviewer, be in a quiet place to handle claims. When
Bailey advised the supervisor that one of the clericals wanted to be in
Title II rather than Title XVI, Toscano agreed to put the clerical in
Title II and move her desk. When Bailey mentioned that two of the
clericals were adverse to sitting next to one another, Toscano consented
to separate them. At the conclusion of the meeting the supervisor
informed the Union that, unless some better suggestion was forthcoming,
management intended to implement the move on February 27. The foregoing
demonstrates a "give and take" position on the part of Respondent with
respect to the relocation, and the concessions granted by management
shows, in my opinion, that the employer engaged in bargaining.
Subsequent discussions between the parties reinforces the conclusions
that good faith negotiations occurred. Thus, on February 23 the parties
resumed discussions, and on February 24 Toscano met with Bailey in the
morning as well as with the Union representative and employees in the
afternoon. At the earlier session the supervisor discussed a chart
prepared by a clerical as an alternative to the proposed reorganization.
Toscano explained why she believed the said suggestion by the Union
would still leave an uneven distribution of the workload. In the later
session, at the request of Bailey, Toscano spoke to employees re the
locations of the staff upon the reorganization, and she answered
questions raised by the employees. Once again the parties met to
discuss another counterproposal by the Union. On February 26 Toscano
discussed a proposal submitted that date and told Bailey it was not
better than the one to be implemented. In addition, Bailey gave
management a request to defer implementation of the planned move.
Finally, on February 27 manager Hernandez met again with Bailey, advised
her he couldn't defer the move because of the very large intake of redet
cases, and stated that the relocation would begin that day.
The continued meetings and discussions between the parties re the
relocation of the office staff persuades me that management did not
enter into negotiations with a fixed determination to implement its plan
and not bargain with the Union thereon. Apart from the fact that it
agreed to several proposals by Bailey concerning individual placement,
Respondent met five times with the Union official and discussed the
merits of the planned move as well as the inadequacies of counter
suggestions introduced by the bargaining agent. Moreover, management
yielded to several objections raised by individuals re their work
station after the move. The meetings and discussions in this context
are not reflective of "surface" bargaining, and I am satisfied that
Respondent fulfilled its duty to negotiate the impact and implementation
of the reassignment.
Consideration has been given to General Counsel's argument that the
intra-agency memos re Respondent's obligation to consult, rather than
negotiate, is indicative of a failure to bargain with the Union. While
Respondent has adhered to the view in the past that the contractural
clauses regarding "consultation" constituted a waiver by the union of a
"bargaining" commitment in the part of management, the said memos do not
preclude the managers from negotiating as to impact and implementation.
The language contained in the memo of May 18, 1981 instructs the
managers to consider and discuss all proposals by the Union without
labelling the discussion "negotiation" or "consultation", and to receive
all input from the bargaining agent. Moreover, Hernandez testified the
policy was to try and reach an agreement with the Union after consulting
with the latter and considering its input and proposals. Although I
agree with General Counsel that the Union did not waive its right to
negotiate on the matter at issue, neither do I conclude that management
limited its conduct to mere consultation re the relocation of the staff.
/16/ Respondent has conceded that it was required to bargain re impact
and implementation and I am persuaded-- the aforesaid memos
notwithstanding-- that the discussions and meetings between the parties
may be properly characterized as collective bargaining required by the
Act.
It is also true that an employer is free to impose changes not
exceeding its proposals after bargaining to impasse with the union. See
U.S. Army Corps of Engineers, Philadelphia District, A/SLMR No. 673.
Thus, if negotiations have exhausted the prospects of concluding an
agreement, agency management does not violate the Act by putting its
proposals into effect. Respondent argues that no such impasse existed
herein. It focuses upon the definition of "impasse" as set forth in
Section 2470.2(e) of the Authority's Rules and Regulations, and contends
that there could not be an impasse in the absence of mediation efforts.
Moreover, it insists bargaining had not terminated at the time of the
relocation on February 27.
In respect to Section 2470.2(e) as aforesaid, I do not construe the
language therein as prohibiting an agency and a union, who are engaged
in bargaining, from reaching an impasse unless either party resorts to
mediation or other voluntary means of settlement. Whatever connotation
is placed upon the definition of "impasse", as used in Section
2470.2(e), the term is defined as applicable to procedures which must be
followed in resorting to the Federal Service Impasses Panel. It may
well be that before a party can invoke the services of this Panel it
must be clear that, after the parties have failed to reach agreement,
they have also resorted to settlement efforts. However, the failure to
reach an agreement after having negotiated may, apart from the separate
provisions of the aforesaid Rule, result in an impasse between parties
who are engaged in collective bargaining. See U.S. Department of the
Treasury, Internal Revenue Service, Cleveland, Ohio, A/SLMR No. 972
(where an impasse was reached absent any request for the services of the
Panel, and the parties had not resorted to settlement means). If, as
here, parties negotiate an impending change by the employer of working
condition, but are unable to agree thereon, they have reached an
impasse. If the matter has been submitted to the Federal Service
Impasses Panel, then, in the absence of an overriding exigency, /17/ the
status quo must be maintained before the change can be effectuated.
Department of the Treasury, Internal Revenue Service, Brookhaven Service
Center, A/SLMR No. 859; U.S. Army Corps of Engineers, Philadelphia
District, supra.
In the instant case no such request was made to invoke the Panel, and
more than a week elapsed between the commencement and conclusion of
negotiations to enable the Union to exercise such option under the
circumstances herein. I am constrained to find the parties had, on
February 27, failed to reach agreement after continual negotiations;
that the Respondent had bargained in good faith re the contemplated
move; that an impasse between the parties had resulted; and that the
union was not foreclosed by management from invoking the Impasse Panel.
Accordingly, Respondent was entitled to implement its plan for moving
the claims representatives and the clericals without violating the
Statute. /18/
In view of the foregoing, I conclude Respondent did not violate
Sections 7116(a)(1) and (5) of the Statute as alleged herein.
Accordingly, I recommend the complaint in Case No. 9-CA-966 be
dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Dated: April 28, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ In adopting the Judge's conclusion that the Respondent did not
violate section 7116(a)(1) and (5) of the Statute in the circumstances
presented, the Authority does not adopt the Judge's statement at
footnote 15 of his Decision that "changes by management must involve a
substantial, or adverse, impact upon unit employees to require an
employee to bargain thereon." Subsequent to the issuance of the Judge's
Decision in the instant case, the Authority rejected the "substantial
adverse impact" test and instead held that where an agency in exercising
a management right under section 7106 of the Statute changes conditions
of employment or unit employees, a statutory duty to negotiate comes
into play where such change results in an impact upon unit employees or
such impact is reasonably foreseeable. U.S. Government Printing Office,
13 FLRA No. 39 (1983). In this regard, the Authority has also stated
that no duty to bargain arises where the exercise of a management right
has resulted in an impact or a reasonably foreseeable impact on
bargaining unit employees which is no more than de minimis. Department
of Health and Human Services, Social Security Administration, Chicago
Region, 15 FLRA No. 174 (1984). In any event, as found by the Judge,
the Respondent in fact fulfilled its duty to bargain herein.
/2/ See U.S. Customs Service, 16 FLRA No. 31 (1984).
/3/ At the hearing General Counsel amended paragraph 6 of the
Complaint by changing the date from February 18 to February 27.
/4/ Subsequent to the hearing General Counsel filed with the
undersigned a Motion to Correct Transcript. No objection having been
interposed thereto, and it appearing that the corrections are proper,
the motion is granted. The transcript is hereby corrected as reflected
in APPENDIX which is annexed to this decision.
/5/ All dates hereinafter mentioned occur in 1981 unless otherwise
specified.
/6/ The contract also contains, in Article 3, a provision designated
as "Council-Region Consultations" which provides for four meetings each
year to engage in consultation re personnel policies, practices and
matters affecting working conditions.
/7/ Fremont Branch Manager testified the region was obliged to
consult with the Union, ask for impact, ask for alternate ways of doing
business, consider the union's proposals and try to reach agreement.
/8/ Redetermination cases (called redets) involve people who are
getting supplemental security income benefits. Each year their status
must be reviewed to assure that these individuals meet the requirements
for continued benefits. In February 1981, the office had received 1,025
more redet cases than were received in February 1980 (redets are usually
received in said month).
/9/ The original plan proposed moving 14 CRs but, as executed, only
10 such employees were moved. Although management did not specify which
individuals would move, it did explain where they would sit in the new
arrangement.
/10/ There is conflicting testimony as to whether Hernandez was
present at this meeting as well as certain others. Since the record
reflects the details as to what transpired at each, I find it
unnecessary to resolve this conflict.
/11/ Although Bailey testified that management gave her the reasons
why this suggestion would not be satisfactory, such reasons are not set
forth in the record.
/12/ Toscano's testimony reveals the employer contemplated, at that
juncture, moving eight individuals.
/13/ As set forth by the Union in G.C. Exhibit 8 this called for
moving eight CRs-- and two CDCs would be assigned to Title II and two
CDCs to Title XVI.
/14/ Contrariwise, Toscano testified this proposal was her idea,
which she suggested and rejected herself; that Bailey copied it at this
meeting after the supervisor delineated it in detail; that Bailey did
not present it (G.C. Exhibit 10) to management. While I have accepted
Bailey's version of the event, I am satisfied the plan was discussed on
February 26 and that Toscano presented her objections to it at that
meeting.
/15/ Past cases have established that changes by management must
involve a substantial, or adverse, impact upon unit employees to require
an employer to bargain thereon. I am satisfied, in the case at bar,
that the moving of personnel and change of assignments produced
substantial impact upon the office staff to require negotiating by
Respondent as to such impact as well as implementation.
/16/ Cf. Equal Employment Opportunity Commission, A/SLMR No. 1016
where management expressly declared at a meeting with the union that it
was not obliged to negotiate. The employer therein refused to
negotiate, but agreed to consult with the union, and was found to have
breached its obligation under the Order.
/17/ No "overriding exigency" need exist for the employer to
implement its change unless the matter has been submitted to the Panel.
The existence of a legitimate impasse between the parties, after bona
fide negotiations, is sufficient for such implementation.
/18/ See U.S. Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 where the employer
gave eight days notice of intent to implement revised regulations, and
the union gave no indication of an intent, prior to implementation, to
seek assistance from the FSIP. To the same effect see the decision of
Administrative Law Judge William Devaney in U.S. Customs Service,
3-CA-439, issued October 16, 1981.