[ v20 p97 ]
20:0097(10)CA
The decision of the Authority follows:
20 FLRA No. 10
OFFICE OF PROGRAM OPERATIONS
FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF SOCIAL
SECURITY DISTRICT OFFICE LOCALS
SAN FRANCISCO REGION
Charging Party
Case No. 8-CA-377
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent 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 and recommendations, only to the extent
consistent herewith.
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute when on December 10, 1979, it unilaterally changed
the duties of two Claims Development Clerks in its Oxnard, California,
Branch Office, thereby failing to provide the American Federation of
Government Employees, AFL-CIO, Council of Social Security District
Office Locals, San Francisco Region (AFGE), with advance notice and an
opportunity to request bargaining concerning the procedures to be
observed in implementing the change in duties and appropriate
arrangements for the two employees adversely affected. In finding a
substantial impact with regard to the change in duties of the two
employees, the Judge viewed the essential fact to be that the two
employees were not told whether the assignment was to be temporary or
permanent. Therefore, he concluded that inasmuch as it was not
unreasonable for the two employees to view the assignment of additional
duties as permanent, "the change of duties on December 10, 1979 was
sufficient to trigger an obligation to provide the Union with prior
notice and to bargain upon request." The Respondent excepted
particularly with respect to these findings, contending among other
things that the change in duties did not result in an impact which
adversely affected the two employees involved.
The record reflects that AFGE, during the time period in question,
exclusively represented a nationwide consolidated unit, which included
the employees of the Oxnard Branch Office, Ventura District, San
Francisco Region, Office of Program Operations, Field Operations, Social
Security Administration. /1/ With respect to the assignment of duties,
the record establishes that on January 10, 1979, the Acting Branch
Manager assigned the duties of backup Receptionist to two of the
Branch's eight Claims Development Clerks, a duty that was normally
performed by a Service Representative. /2/ In the past, Claims
Development Clerks had performed the backup duties on a sporadic basis.
However, this duty is included in their position descriptions. The
assignment of these additional duties lasted for seven weeks and took
each Claims Development Clerk no more than 30 to 45 minutes per workday.
Subsequent to the issuance of the Judge's Decision herein, the
Authority held that "where an agency in exercising a management right
under section 7106 of the Statute, changes conditions of employment of
unit employees . . . , the statutory duty to negotiate comes into play
if the change results in an impact upon unit employees or such impact
was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA
203, 204-05(1983). The Authority thereafter held that "no duty to
bargain arises from the exercise of a management right that results 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). The Authority has also held that in determining whether
the impact or reasonably foreseeable impact of the exercise of a
management right on bargaining unit employees is more than de minimis,
the totality of the facts and circumstances presented in each case must
be carefully examined. Thus, in Department of Health and Human
Services, Social Security Administration, Region V, Chicago, Illinois,
19 FLRA No. 101(1985), the Authority looked to such factors as the
nature of the change (e.g., the extent of the change in work duties,
location, office space, hours, loss of benefits or wages and the like);
the temporary, recurring or permanent nature of the change (i.e.,
duration and frequency of the change affecting unit employees); the
number of employees affected or foreseeably affected by the change; the
size of the bargaining unit; and the extent to which the parties may
have established, through negotiations or past practice, procedures and
appropriate arrangements concerning analogous changes in the past. /3/
The Authority also emphasized therein that the factors considered in the
circumstances of that case were not intended to constitute an
all-inclusive list or to be applied in a mechanistic fashion. Moreover,
the Authority noted that a determination as to whether the exercise of a
management right under section 7106(a) of the Statute gives rise to a
duty to bargain under section 7106(b)(2) and (3) will not necessarily
require in every case a determination as to whether the exercise of the
management right results in a change in a condition of employment having
an impact or a reasonably foreseeable impact on bargaining unit
employees which is more than de minimis, especially where there is no
indication that the nature and degree of impact is at issue in the case.
However, in cases where it must be determined whether the nature and
degree of impact is more than de minimis, factors such as those listed
above will be considered.
Turning to the instant case, the Authority finds, contrary to the
conclusion of the Judge, that the impact or reasonably foreseeable
impact of the change on unit employees' conditions of employment was no
more than de minimis. Accordingly, it follows that the Respondent was
under no obligation to notify AFGE and afford it an opportunity to
request bargaining pursuant to section 7106(b)(2) and (3) of the Statute
concerning the procedures to be observed in implementing the change or
concerning appropriate arrangements for the two employees adversely
affected by the assignment of backup Receptionist duties. In reaching
this result, the Authority notes, with respect to the nature of the
change, that while the regular job duties of two employees were changed
slightly, the backup Receptionist duties in fact only required at most
30 to 45 minutes of their time daily. Moreover, Claims Development
Clerks had performed such duties on a sporadic basis in the past, and
the assignment of such duties falls within their position description.
Thus, the change had only a limited effect on their regular duties.
Further, the Authority notes that the change in duties affected only two
bargaining unit employees who are part of a nationwide consolidated
unit. Additionally, the Authority notes that the assignment of the
backup Receptionist duties lasted approximately seven weeks. While the
Judge concluded that it was not unreasonable for the two employees to
view the assignment as a permanent one, the record does not indicate
that the employees were told it was to be permanent and, in fact, the
assignment of these duties was limited to only seven weeks. Finally, no
evidence was presented regarding past bargaining by the parties or of
any past practice by which the parties handled similar or analogous
changes in duties.
Based on the totality of the facts and circumstances presented, and
noting particularly the limited and temporary nature of the change, the
very small number of employees affected relative to the size of the
bargaining unit, and the lack of any demonstrated bargaining history or
past practice of handling similar or analogous changes, the Authority
concludes that the impact or reasonably foreseeable impact of the
assignment of backup Receptionist duties to the two Claims Development
Clerks was no more than de minimis. Accordingly, the Respondent was
under no obligation to negotiate with AFGE pursuant to section
7106(b)(2) and (3) of the Statute, and its failure to provide advance
notice to AFGE and afford it an opportunity to request negotiations
therefore was not violative of section 7116(a)(1) and (5) of the Statute
as alleged.
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-377 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 11, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-377
E. A. Jones, Esq.
Gerald M. Cole, Esq.
For the General Counsel
Wilson Schuerholz
For the Respondent
Jeffrey H. Dasteel
For the Charging Party
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et
seq. It was instituted by the issuance of a Complaint and Notice of
Hearing on May 23, 1980, by the Regional Director for Region 8 of the
Federal Labor Relations Authority, pursuant to a charge originally filed
by the American Federation of Government Employees, AFL-CIO, Council of
Social Security District Office Locals, San Francisco Region (herein the
Union), on February 20, 1980, and amended on March 6, 1980. The
Complaint alleges that the Office of Program Operations, Field
Operations, Social Security Administration, San Francisco Region (herein
the Respondent), had engaged in, and is engaging in, unfair labor
practices within the meaning of Section 7116(a)(1) and (5) of the
Statute, in that Respondent at its Oxnard, California, Branch Office
unilaterally changed the job duties of Claims Development Clerks without
first notifying the Union and providing it an opportunity to bargain
over the impact and implementation of the change.
On June 3, 1980, Respondent filed an Answer denying the allegations
of the Complaint. In its brief, Respondent contends that the General
Counsel failed to meet its burden of proving that a change of duties
actually occurred.
A hearing was held in Port Hueneme, California at which the parties
were represented by counsel and afforded full opportunity to adduce
evidence and call, examine, and cross-examine witnesses and argue
orally. Briefs filed by Respondent and the General Counsel have been
duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. Respondent and Charging Party are parties to a collective
bargaining agreement effective October 21, 1977 with an expiration date
of September. The bargaining unit encompasses the San Francisco Region
(Region IX) which includes a Branch Office in Oxnard, California, situs
of the alleged unfair labor practice herein.
2. Pertinent to this decision are the duties of certain Oxnard
employees.
a. The Receptionist at the front desk performs the customary duties
of a receptionist. He greets the public, provides general information
and simple instructions, and directs visitors to the proper staff person
who conducts interviews and renders appropriate assistance. The
receptionist had a job classification of Claims Development Clerk but,
in fact, his duties are those of a full-time receptionist.
b. Claims Representatives interview persons seeking Social Security
benefits and assist them in filing claims.
c. Claims Development Clerks (CD Clerks) act as assistants to Claims
Representatives within a particular claims unit. Their grade level at
Oxnard is GS-3 and GS-4. They type letters, answer phone calls, review
files to make sure they are complete, keep track of files within a unit,
and ensure that the work moves smoothly and that all clerical work is
completed. In addition, clerks who are bilingual translate documents
and act as interpreters for Spanish speaking claimants whose claims are
being examined by non-Spanish speaking Claims Representatives. The
position description for CD Clerks clearly states that they shall
perform receptionist services "when required."
d. Service Representatives handle post-entitlement actions under the
Social Security Program, including address changes and medicare
problems. They do not process initial claims or perform strictly
clerical functions. Until the fall of 1979, there were five service
representatives. One of them worked full-time in the reception area
handling "quick" interviews. This permitted the remaining four to
divide among them the balance of the interviews-- about 25 per day.
3. Past Practice Concerning Backup Receptionist Duties.
a. Prior to December 10, 1979, the single Service Representative
assigned to the front desk area also had responsibility for performing
the duties of backup receptionist. These duties were to assist him
during the morning rush from 9:00 a.m. to approximately 9:10 a.m., and
to relieve him during his morning break, lunch period, and afternoon
break. I find and conclude that a past practice exists whereby an
employee with the position classification of Service Representative
regularly performed, on a daily basis, the duties of backup
receptionist.
b. During the absence (on annual or sick leave) of the Receptionist
or the Service Representative who acted as his backup, the normal
practice prior to December 10 was to have another Service Representative
fill in for the absentee. It sometimes became necessary, however, to
ask other employees to fill in on a sporadic basis as receptionist or
backup receptionist. Accordingly, this backup function has been
performed on an occasional basis, usually for one day, by CD Clerks, by
Claims Representatives and by the Operations Supervisor herself. The
sporadic and infrequent use of CD Clerks is not seriously disputed and I
note that CD Clerk Jennie Vargus never had been required to perform this
function during the approximately 11 months of her employment prior to
December 1979. It is also not disputed, and I find, that CD Clerks had
not previously served as backup receptionist on a regular basis.
4. Respondent's Decision to Reassign the Backup Receptionist Duties
to two CD Clerks.
a. In the fall of 1979 at a unspecified date, one Service
Representative quit but apparently this did not create any kind of
crisis requiring immediate action by management. In late October,
however, Service Representative Anna Harte received a promotion which
was effective in early November but, because this would reduce the staff
to only three Service Representatives, she agreed to stay an additional
30 days, ending on a date unspecified. On Friday afternoon, December 7,
at a management meeting Eliana Gomez brought up the subject of providing
adequate coverage for the receptionist and the front desk area since a
Service Representative could no longer be spared for this duty. It was
decided to take one CD Clerk from the Title 2 Unit and one from the
Title 16 Unit, because this would be equitable and because both types of
traffic come into the office and each Title would have a turn serving.
Acting Branch Manager Knight was at this meeting. She credibly
testified that she intended to tell the Union "as a matter of courtesy"
about this decision but Union representative Casey was not at work and
she did not wish to take it up with his alternate. /4/
4. Implementation on December 10 of Respondent's Decision.
a. On Monday morning, December 10, at approximately 8:15 a.m.,
Operations Supervisor Eliana Gomez informed CD Clerks Jennie Vargus and
Martha Vega that they had been selected to perform backup receptionist
duties. She did not advise them of the duration of this assignment.
Vargus elected to assist in the morning rush and relieve at the morning
break. Vega, who had only been employed there for a month, received the
lunch period and afternoon break relief assignment. Neither Vargus nor
Vega had ever performed this duty before. /5/
5. Protest by the Union.
a. Claims Representative Michael J. Casey, Union representative in
the Oxnard office observed and heard Supervisor Gomez giving Vargus and
Vega this new assignment because the situs of the conversation was not
far from his desk. /6/
b. At approximately 8:20 a.m., Knight called Casey into her office
for a consultation meeting on different subjects, including a
reassignment request by Rick Lopez, Casey's alternate as Union
representative. When Knight told Casey that the reassignment had not
yet been approved, Casey replied that this could result in a grievance.
Knight credibly testified that the mention of a possible grievance upset
her and she forgot to mention the matter concerning backup receptionist.
Following this meeting, Knight received a call that Lopez' reassignment
was approved and she found Casey in the "quite" room and so informed
him. Shortly thereafter at approximately 9:30 a.m., Casey came to
Knight and complained that "You're using CDC's up at the front desk
without consulting with me or informing me of it." /7/ He asked her to
hold up so that he could determine the impact and submit proposals. She
agreed to "hold off until you can get back to me." Casey thought that
"hold off" meant cessation of the new assignment, but when he observed
that Vargus and Vega continued to carry out their newly assigned duties,
he concluded that management's decision was final and irrevocable. /8/
For this reason, Casey never did submit any proposals.
6. Impact
a. The duration of the assignment was from December 10, 1979 until
January 25, 1980 at which time two new employees were hired and one of
them was assigned to perform the backup duties which Vargus and Vega had
been performing.
b. During this period, Vargus spent an average of 10 minutes
assisting during the morning rush and an average of 26 minutes per day
relieving during the morning break. /9/ Vega worked longer since the
Receptionist took both a lunch period and an afternoon break. She spent
at least 30 to 45 minutes per day on this task.
c. Vargus and Vega both testified that the additional duty imposed
upon them resulted in their having less time available to perform their
principal duties as CD Clerks. Both agreed that their respective Claims
Representatives were understanding and did not pressure them. Both the
two employees were very much concerned about their having to do this
additional duty and at the same time to keep up with their regular
duties. Vargus testified that her own desk work was "slowed up" quite a
bit. Vega testified that some work get "stacked up" if she didn't have
time to get to it.
d. The Claims Representatives for whom Vargus and Vega worked were
not called as witnesses. Therefore, we do not have testimony from their
immediate supervisors concerning the direct impact of this additional
duty on their performance as individual employees, and the indirect
impact, if any, on the supervisor, the unit, or other employees.
Discussion and Conclusions of Law
It is well settled case law that an agency has an obligation to
notify the collective bargaining representative prior to making any
change in conditions of employment so that the Union has a reasonable
opportunity to request bargaining before institution of the change.
/10/ It is not disputed, and I find, that Respondent failed to provide
the Union with notice prior to its action on December 10. The principal
issues to be resolved, however, are whether there was a change and, if
so, whether it resulted in substantial and adverse impact on employees.
The Respondent contends the General Counsel has failed to demonstrate
that in fact there was a change of duties herein. Respondent's defense
centers on two arguments: (1) that the position description for CD
Clerks included the task of assisting the receptionist as required, and
(2) that there was a past practice of using CD Clerks to act as backup
receptionist. I find no merit to these defenses.
The fact that a position description contains a statement that
receptionist duties may be performed "when required" or "as required" is
irrelevant to the question of whether or not an agency may exercise its
authority to make work assignments unilaterally and without regard to
its statutory obligation to bargain in good faith. Whether or not an
agency may unilaterally exercise this authority-- without fear of
committing an unfair labor practice-- depends upon whether its exercise
of authority results in a change of employees' conditions of employment
having a substantial impact adversely affecting employees. This is not
to say that the presence in a position description of a particular duty
or task is of no weight whatsoever for, on balance, its presence is more
likely than not to assist an Agency in justifying its proposed action.
Again, however, it depends upon the facts of each case. In the case
before me, this particular fact is of no help to Respondent's case.
Indeed, I note that both Vargus and the receptionist had the same
position description and yet their duties were substantially different.
The receptionist did not perform claims development clerical duties and
Vargus had never performed receptionist duties. So much for position
descriptions.
I agree with Respondent that past practice is relevant and is
particularly significant herein. However, I do not find that the past
practice supports Respondent's position. The best that can be said is
that the past practice demonstrates that some CD Clerks were
occasionally used to assist the receptionist. Respondent's own
witnesses proved the main argument urged by the General Counsel, namely,
that prior to December 10, 1979, Service Representatives regularly
performed the backup assignment and CD Clerks were only called upon to
perform this function on a sporadic basis. I agree with the General
Counsel that by expanding the duration of the backup assignment from
sporadic to daily, Respondent has changed the duties of Claims
Development Clerks. In my view, however, Respondent's action also
constitutes a change of duties because, in reality, it has transferred
from one job classification to another (from Service Representative to
CD Clerk), the regular daily job of acting as a backup receptionist.
Thus, backup duties regularly performed for an hour each day were lost
by one classification and gained by another. /11/
Respondent further contends that the alleged change of duties did not
result in substantial impact adversely affecting employees. I disagree.
In evaluating the impact herein, it is not essential to view what
happened with the benefit of hindsight by simply adding up the time
spent (over an hour per day) and the duration of the assignment (seven
weeks). Rather, I believe that attention should be directed to the
events of December 10, the date of the alleged unfair labor practice.
On that date, a supervisory official of Respondent informed Vargus and
Vega that they each had a new duty duty to perform, namely backing up
the receptionist. They were not told that this was an emergency
assignment expected to only last a few days. /12/ They were not told
this was a temporary assignment with a fixed termination date. They
were not even told this was a permanent assignment. All they knew was
they they had a new assignment for an indefinite duration. Likewise,
they were not told why they were selected instead of others, or why the
duties couldn't be shared by others in order to lessen the impact on
each employee. Rather, management had made a decision and that was
that. Finally, it should have been obvious to management that when an
employee is told to spend time on a new assignment, this necessarily
leaves less time for the other duties. No mention was made of whether
management expected Vargus and Vega to absorb this additional work
without sacrificing the quality and quantity of their principal duties
or whether some adjustment was to be made with respect to management's
expectations. Nor was anything said as to how this would impact on
appraisals of their performance during this assignment of indefinite
duration. All these matters about which nothing was said, were matters
of genuine concern to these employees (and their Union) and were matters
concerning their conditions of employment.
Looking back, it should seem rather elementary that at the time
Respondent decided to change the duties of Vargus and Vega, there were
innumerable adverse effects which reasonably could be expected to occur,
and the very likelihood of their occurrence should have served as a
basis for concluding that the Union should be notified in advance, not
as a matter of courtesy, but as a matter of right.
Since management did not inform Vargus and Vega (or even the Union)
that their assignment was not permanent, and absent any evidence
indicated that it was temporary, it was not unreasonable for them to
conclude that this was a permanent change of duties. Similarly, I find
that it was not unreasonable for the Union to conclude that this
permanent change of duties might have an adverse impact on employees it
represented. /13/ Accordingly, I conclude that the change of duties on
December 10, 1979 was sufficient to trigger an obligation to provide the
Union with prior notice and to bargain upon request. If I am correct
that Respondent had this obligation on December 10, then it seems rather
unnecessary to conduct a post-decision analysis on the additional
day-to-day impact thereafter to determine whether the already found
adverse impact remained the same or changed in some manner as time wore
on. /14/
Having found that Respondent instituted what appeared to be a
permanent change of duties on December 10, 1979 without prior notice to
the Union, I conclude that Respondent violated Section 7116(a)(1) and
(5) of the Statute by failing to provide the Union with advance notice
so that it had a reasonable opportunity to request bargaining about the
impact and implementation of the decision. Inasmuch as the assignment
eventually was terminated on January 25, 1980, I conclude that an
affirmative bargaining order is not appropriate and so recommend.
ORDER
Pursuant to 5 U.S.C. 7118 and Section 2423.26 of the Final Rules and
Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg.
3482, 3510(1980), it is hereby ordered that the Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, shall:
1. Cease and desist from:
(a) Unilaterally assigning Claims Development Clerks to assist
and relieve the front-desk receptionist on a regular, permanent
basis without first notifying the exclusive representative, the
American Federation of Government Employees, AFL-CIO, and
affording it an opportunity to bargain on the implementation and
impact of the assignment.
(b) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of the
rights guaranteed by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Post at is Oxnard Branch Office, Oxnard, California, copies
of the attached notice marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for Region 8, after being
signed by an authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writing,
within 30 days from the date of this order, what steps it has
taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 31, 1981
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF
TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally assign Claims Development Clerks to assist
and relieve the front-desk receptionist on a regular permanent basis
without first notifying the exclusive representative, the American
Federation of Government Employees, AFL-CIO, and affording it an
opportunity to bargain on the implementation and impact of the
assignment.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of the rights guaranteed by the
Federal Service Labor-Management Relations Statute.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region 8 for the Federal Labor Relations Authority whose
address is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA
90071 and whose telephone number is: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ The Judge inadvertently noted that the unit was a regionwide unit
rather than a nationwide consolidated unit.
/2/ The change was made because the number of Service Representatives
in the Oxnard Branch Office had been reduced from 5 to 3 through
attrition.
/3/ Additionally, Member McGinnis indicated in a separate concurring
opinion that he would also consider, in determining de minimis issues,
when the implementation of a change would involve or adversely affect
unit employees in assessing the totality of the facts and circumstances
presented.
/4/ This is consistent with Respondent's position that it had no
obligation to notify the Union because there was no change of duties.
/5/ This fact is not critical since other CD Clerks had been assigned
this duty, but only on sporadic basis.
/6/ Gomez assumed that Casey already knew about the matter because,
at the management meeting the preceding Friday, Acting Manager Knight
said she intended to inform Casey.
/7/ I credit Knight's version as to when Casey protested the use of
CD Clerks. I believe Casey actually waited until after implementation
of the new assignment to protest.
/8/ Knight's testimony on this point was unconvincing. She attempted
to explain what she meant by the phrase "hold off" and the more she was
questioned by counsel and myself, the more detailed her explanation
became. (See G.C. brief, p. 5, fn. 6) I conclude that she did not tell
Casey that she would hold up her "final decision" and that she was
receptive to receiving his ideas and suggestions. (Tr. 103). She may
have meant this (Tr. 86) but, she did not make this clear. Indeed, to
have done so would have been inconsistent with her original concept that
the Union was only to be informed as a matter of courtesy.
/9/ An analysis of G.C. Exh. No. 4 (a daily log maintained by Vargus)
discloses that during this period she worked 9 days during the morning
rush and 24 days during the morning break.
/10/ United States Air Force, Air Force Logistics Command, Aerospace
Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70.
/11/ See Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22,
a case involving a change of duties.
/12/ I agree with the General Counsel that this was not an emergency.
Respondent knew for over a month that by December 10 they would only
have three Service Representatives. Respondent had ample time to plan
how to resolve their problem of providing adequate coverage.
/13/ Department of Health, Education, and Welfare, Social Security
Administration, BRSI, Northeastern Program Service Center, 1 FLRA No.
19, A/SLMR No. 1150, FLRC No. 79A-181.
/14/ Should it be deemed essential, I conclude that the duration of
their assignment and the amount of time required on a daily basis to
perform the new duties constituted substantial impact adversely
affecting employees.