24:0403(42)CA - HHS, SSA and AFGE Local 1760 -- 1986 FLRAdec CA
[ v24 p403 ]
24:0403(42)CA
The decision of the Authority follows:
24 FLRA No. 42
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1760
Charging Party
Case No. 2-CA-40211
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent filed an opposition to the
General Counsel's exceptions. The issue is whether, as found by the
Judge, the Respondent's refusal to bargain with the exclusive
representative concerning the impact of one employee's reassignment
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute).
II. Background
The record reflects that the American Federation of Government
Employees, AFL-CIO, is the exclusive representative of a consolidated
nationwide unit of certain employees of the Respondent, including those
of the Northeastern Program Service Center (the Center), and that the
Charging Party acts as its agent at the Center. The Center is one of
the main facilities for processing claims of Social Security
beneficiaries. It is divided organizationally into seven processing
sections, each consisting of several work modules and an Inquiry and
Expediting (I&E) Unit. Prior to the reassignment giving rise to the
complaint in this case, the I&E Unit in Section 3 employed, among
others, three Search and Control (S&C) clerks. One of the S&C clerks
was Selma Hirsch, who had been permanently reassigned to that position
from the position of file clerk in a module on November 13, 1983. The
record reveals that it was not necessary for Hirsch to receive training
or to learn any new skills in order to perform satisfactorily in her new
position. In December 1983, a separate reconsideration group was
established at the Center which reduced certain of the work handled by
the I&E Units. Based on this decrease in workload, Hirsch was
designated on January 10, 1984, to be reassigned back to the file clerk
position she previously held in one of the work modules, and the
reassignment was effected on February 6, 1984. The record reflects that
prior to the effectuation of the reassignment, the Respondent took the
position, among other things, in response to the Charging Party's
request to bargain, that the reassignment would result in no material
change in the affected employee's duties.
III. Judge's Decision
The Judge noted that the Authority has previously 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."
(Footnote omitted.) U.S. Government Printing Office, 13 FLRA 203, 204-05
(1983). The Judge also referred to the Authority's decision in
Department of Health and Human Services, Social Security Administration,
Chicago Region, 15 FLRA 922 (1984), 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."
The Judge found a violation of section 7116(a)(1) and (5) of the
Statute based upon the Respondent's refusal to bargain upon request,
concluding first that the request to bargain was made in a timely
fashion and second that the reassignment of employee Selma Hirsch from
the position of S&C clerk in the I&E Unit into the position of file
clerk in one of the work modules within the same processing section
constituted a change in working conditions which was more than de
minimis. In reaching this latter conclusion, the Judge noted the
differences in duties and tasks required in the two work units; the
impact of Hirsch's reassignment on the two remaining I&E clerks; and
the fact that while no differences in grade were involved, the line of
progression had been from file clerk in a module to S&C clerk in the I&E
Unit.
IV. Exceptions
The General Counsel's exceptions were limited to the Judge's failure
to provide a status quo ante remedy and his failure to rule on the
General Counsel's request for such a remedy. The Respondent opposed the
General Counsel's exceptions.
V. Analysis
Based on the facts set out above, we conclude, contrary to the Judge,
that the Respondent is not obligated to bargain with the Charging Party.
Therefore, its refusal to do so did not violate section 7116(a)(1) and
(5) of the Statute. In view of the importance of the issues involved in
this case, particularly the extent of an agency's duty to bargain
regarding changes in conditions of employment, the bases of our decision
merit discussion.
A. The obligation to bargain regarding changes in conditions of
employment.
The duty of bargain in good faith under the Statute "requires that a
party meet its obligation to negotiate prior to making changes in
established conditions of employment, during the term of a collective
bargaining agreement, absent . . . a clear and unmistakable waiver of
bargaining rights." Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9 (1981). This obligation applies whenever management
changes an established policy or past practice pertaining to conditions
of employment whether or not the matter is covered by a provision in an
existing collective bargaining agreement. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA 352 (1981);
U.S. Army Reserve Components Personnel and Administration Center, St.
Louis, Missouri, 19 FLRA No. 40 (1985).
It is clear, however, in both the Federal and private sectors that
certain management actions do not rise to a level which creates a
bargaining obligation. Where the obligation to bargain extends to the
impact and implementation of the change (or to procedures and
appropriate arrangements where the exercise of management rights under
section 7106 is involved), the relative significance of the change and
the degree of its impact on bargaining unit employees have been relevant
considerations under both Executive Order 11491 and the Statute. /1/
B. The use of a standard to identify changes which require
bargaining and those which do not.
The use of a standard to distinguish between changes which require
bargaining and those which do not is fully supported by the Statute and
its purposes and policies. Section 7101 of the Statute reflects
Congress' finding that collective bargaining is in the public interest,
as well as the direction that the Statute be interpreted in a manner
which is consistent with the requirement of an effective and efficient
Government. In cases such as these, the Authority must accommodate
Congress' provisions both for consultation and negotiation concerning
working conditions of Federal employees, and for the effective and
efficient operation of Government agencies through the exercise of
management rights or through other actions required or permitted by law.
Further, section 7105(a)(1) requires the Authority to provide
"leadership in establishing policies and guidance" relating to labor
relations in the Federal sector. In fulfilling this responsibility, the
Authority must take care that its adjudicative processes not be
unnecessarily burdened with cases that do not serve to bring meaning and
purpose to the Federal labor-management relations program. While we
seek to ensure that the rights of agencies, unions, and employees under
the Statute are protected in situations involving changes in conditions
of employment, we must also 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 those
aims. The limited scope of Federal sector bargaining caused by external
laws, rules, and regulations also demands that the Authority not impose
further limitations unless they are based on clear statutory authority
and are buttressed by sound policy considerations.
C. Previous standards used to identify changes which require
bargaining.
Two standards have been used to date to identify those changes which
require bargaining. The old standard required a "substantial" impact.
See, for example, Social Security Administration, Bureau of Hearings and
Appeals, 2 FLRA 238 (1979). The more recent standard required that the
impact be more than de minimis. /2/ In discussing the de minimis
standard in Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the
Authority identified a number of factors to be considered in determining
whether a particular change in conditions of employment was more than de
minimis. The factors identified were (1) the nature of the change (for
example, the extent of the change in work duties, location, office
space, hours, loss of benefits or wages, and the like); (2) the
duration and frequency of the change (that is, the temporary, recurring,
or permanent nature of the change); (3) the number of employees
affected or foreseeably affected by the change; (4) the size of the
bargaining unit; and (5) the extent to which the parties established,
through negotiations or past practice, procedures and appropriate
arrangements concerning analogous changes in the past.
D. The standard to be applied in this and future cases.
We have reassessed and modified the recent de minimis standard. In
order to determine whether a change in conditions of employment requires
bargaining in this and future cases, the pertinent facts and
circumstances presented in each case will be carefully examined. In
examining the record, we will place principal emphasis on such general
areas of consideration as the nature and extent of the effect or
reasonably foreseeable effect of the change on conditions of employment
of bargaining unit employees. Equitable considerations will also be
taken into account in balancing the various interests involved.
As to the number of employees involved, this factor will not be a
controlling consideration. It will be applied primarily to expand
rather than limit the number of situations where bargaining will be
required. For example, we may find that a change does not require
bargaining. However, a similar change involving hundreds of employees
could, in appropriate circumstances, give rise to a bargaining
obligation. The parties' bargaining history will be subject to similar
limited application. As to the size of the bargaining unit, this factor
will no longer be applied.
E. Application of the standard in this case.
Applying the above analysis and based on the facts and circumstances
in this case, we conclude that the Respondent was under no obligation to
bargain with the Union concerning implementation procedures or
appropriate arrangements pertaining to the reassignment of the employee.
While there was some change in the conditions of employment of the
employee as a result of her reassignment from the clerical position in
the Inquiry and Expediting (I&E) Unit back to the clerical position she
had previously held, review of the relevant facts and circumstances
establishes that the change did not give rise to a bargaining
obligation. In reaching this result, we note the limited nature of the
change involved, i.e., the reassignment of the employee from a position
she had held for less than three months back to the position she had
previously held, based on the operational needs of the Respondent. The
employee's reassignment involved no loss in pay or grade, nor did it
involve a change in her hours. Although the new position involved some
changes in duties and tasks as noted by the Judge, the duties of the two
positions are substantially similar. Moreover, the anticipated effect
on the remaining S&C clerks due to Hirsch's reassignment should be
minimal since the reassignment was directed as a result of a decrease in
workload.
Accordingly, we conclude that the Respondent was not obligated to
bargain with the Union in this matter and that by refusing to do so the
Respondent did not violate section 7116(a)(1) and (5) of the Statute.
Notwithstanding this determination, we believe that the collective
bargaining relationship between the Agency and the Union in this case
would be better effectuated by their timely and amicable efforts to
meet, discuss and possibly resolve issues raised by the minor changes in
conditions of employment.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings and conclusions only to the extent that they are
consistent with our decision. Therefore, we reverse the Judge's finding
of a violation and shall order that the complaint be dismissed. /3/
ORDER
The complaint in Case No. 2-CA-40211 is dismissed.
Issued, Washington, D.C., December 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40211
DEPARTMENT OF HEALTH & HUMAN SERVICES SOCIAL
SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1760
Charging Party
Daniel H. Green, Esq.
Julian Bergman
For the Respondent
Jon R. Steen, Esq.
For the General Counsel
James Armet
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on April 30,
1984 by the Regional Director for the Federal Labor Relations Authority,
Region II, a hearing was held before the undersigned on June 21, 1984 at
New York, New York.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq., (herein called the Statute). It was
based on a charge filed on February 8, 1984 by American Federation of
Government Employees, AFL-CIO, Local 1760 (herein called the Union)
against the Department of Health and Human Services, Social Security
Administration (herein called the Respondent).
The Complaint alleged, in substance, that on or about February 6,
1982 /4/ Respondent unilaterally changed working conditions by
reassigning a search and control clerk at its Northeastern Program
Service Center, and thereby reduced the staff in its Inquiry and
Expedite unit; that such action was taken without notifying the Union
and affording it an opportunity to bargain re the impact and
implementation of such change.
Respondent's Answer, dated May 21, 1984, denied the foregoing
allegation as well as the commission of any unfair labor practices.
All parties were represented at the hearing, each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /5/
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. At all times material herein the American Federation of
Government Employees, AFL-CIO, has been the exclusive representative of
a consolidated nationwide unit of certain employees of Respondent,
including all nonsupervisory employees in the Northeastern Program
Service Center with specified exclusions. /6/
2. At all times material herein Respondent and American Federation
of Government Employees, AFL-CIO, have been parties to a collective
bargaining agreement which covers the employees in the Northeastern
Program Service Center. The said agreement provides, inter alia, as
follows:
ARTICLE 4
Negotiations During the Term of the Agreement
Section 1 -- General
The Administration will provide the Union reasonable advance
notice prior to implementation of changes affecting conditions of
employment subject to bargaining under 5 USC 71. Upon notice from
the Administration of a proposed change, the designated union
representative will notify the designated management
representative of its desire to consult and/or negotiate on the
change.
The Union will submit written proposals if applicable within a
reasonable period after notice of the proposed change. Bargaining
will begin as soon as possible, and will not exceed ten (10)
working days. All issues not resolved at that time may be
referred to the Federal Service Impasses Panel for resolution
under its rules.
3. The Northwestern Program Service Center is the main processing
facility for claims of Social Security beneficiaries. There are seven
processing sections, and each is divided into a group of modules and an
Inquiry and Expediting Unit.
4. The Inquiry and Expediting (I&E) Unit handles the sensitive
cases. For about five or six years, and prior to February, 1984,
Section 3 of I&E employed five technicians, three Search and Control
(S&C) Clerks, one secretary and one manager. The technicians did the
actual work on the claims. S&C clerks prepared cases for processing and
perform nontechnical work thereon: preparing control cards for
correspondence opinions, which involved finding folders and associating
the material with the folders and then sending same to the processing
staff; doing inventory /7/ of cases; answering telephone inquiries;
and locating files.
5. In 1983 there were three S&C clerks in I&E, 3. One of these
retired on September 20 of that year. Jerry Lawrence, Section Manager,
suggested to Oren Palmer, Deputy Section Manager, that the vacancy be
filled by file clerk Selma Hirsch. It was discussed with Warren Holton,
Union Vice President, and they agreed that Hirsch be detailed to I&E 3
for thirty days so that her performance could be reviewed.
6. Hirsch was detailed to I&E 3 as a S&C clerk in October, 1983. On
November 13, of that year she was formerly reassigned to that position
since her performance was satisfactory. No training was required for
her job, nor was it necessary that Hirsch learn any new skills.
7. In December, 1983 Respondent established a reconsideration group.
The term "reconsideration", as it applies to Respondent's workload,
concerns instances where a beneficiary questions whether he receive
payment or whether additional payment should be made. This work had
been handled by the seven I&E units and the processing of those cases
took 30-60 days. The reconsideration group was set up to simplify the
process, and it was staffed from the modules with claims authorizers,
benefits authorizers, typists, and module control clerks. The I&E units
no longer handle reconsideration cases.
8. Several discussions took place during December, 1983 and January,
1984 between Deputy Section Manager Palmer and Union representative
Holton. /8/ In early December notification was given to Holton that it
might be necessary to detail an S&C clerk out of the I&E section to the
module. On December 12, 1983 Palmer discussed with Julian Bergman,
Respondent's Labor Relations Specialist, the fact that, due to a
decrease in workload in the I&E unit, management might want to reassign
an S&C clerk out of the I&E section. Bergman suggested he speak to the
Union.
9. On December 19, 1983 Palmer talked to Holton and mentioned that
he anticipated reassigning an S&C clerk out of I&E 3 due to the
decreased workload thereat. Holton stated that such a move could have
office-wide implications; that he would like to review it with other
union officials and get back to Palmer. On or about January 3, 1984 /9/
Palmer mentioned to Holton that the latter had not "gotten back" to him
re the reassignment of a S&C clerk. However, Holton indicated he had
nothing to report at that time. Thereafter, on January 10, /10/ Palmer
approached Holton and stated he was reassigning S&C clerk Selma Hirsch
out of I&E; that he would advise him later as to the date and location.
10. In a memorandum dated January 12, Holton notified Palmer that
the Union demanded negotiation re the impact and implementation of its
decision to reassign a S&C clerk from the I&E staff to a module. The
Union representative also requested certain information re the work
receipts and service computation dates of the incumbent S&C clerks in
I&E Unit 3. /11/ Holton also stated that the Union would submit its
proposals after receipt of the requested data.
11. Palmer sent a memorandum dated January 12 to Holton stating that
the Union representative was advised during the week of December 19,
1983 of the decision to reassign an I&E Control Clerk to a module in
Section 3; that it is Palmer's decision there is no obligation to
negotiate with the Union. The memorandum recited that Holton failed to
submit timely proposals so that negotiations could be conducted within
10 working days (Article 4, Section 1 of the agreement); and that there
is no material change in the working conditions of the employee to be
reassigned.
12. In a memorandum dated January 13 from Holton to Palmer the Union
representative stated that the Deputy Manager discussed detailing a S&C
clerk temporarily rather than making a permanent reassignment. Holton
commented that timely notice of a proposed change was not given as
required by Article 4, Section 4 of the written agreement; /12/ and
that, although management may not be required to bargain re the decision
to reassign an employee, it is obligated to bargain re the impact and
implementation thereof. Holton repeated his former demand to negotiate
in that regard as well as for the production of the requested
information. /13/
13. Holton sent another memorandum to Palmer, which was dated
January 27, referring to the one dated January 13 that he sent the
Deputy Manager, wherein the Union requested negotiation re the impact
and implementation of the transfer of the S&C clerk to the module. He
requested a reply to the demand for such negotiation.
14. Under date of January 30 Palmer sent a memorandum to Holton
reiterating management's position as set forth in its January 12
memorandum to the Union. Palmer declared that timely notification of
the decision to reassign an employee from the I&E staff had been
furnished Holton even though no material change in duties resulted from
the reassignment; that, nevertheless, Holton did not submit timely
proposals.
15. In reply to Palmer's January 30 memorandum, Holton sent another
memorandum to management on January 30. In addition to repeating the
Union's position re the obligation of Respondent to bargain as to impact
and implementation, Holton submitted a proposal that management solicit
volunteers when making a reassignment. He also suggested that service
computation date should govern if there are volunteers to determine
which employee should be reassigned.
16. In another memorandum to Holton, dated February 1, Palmer
reaffirmed management's contention that the Union did not pursue the
matter in a timely fashion; that no material change occurred in
condition of employment; and that management had no duty to bargain.
17. Selma Hirsch was reassigned from I&E 3 as a search and control
clerk to a file clerk on February 6 in Module 18.
18. Prior to the reassignment of Hirsch there were three S&C clerks
in I&E, Section 3. Each control clerk governed two modules, and after
February 6 the remaining two control clerks each covered three modules.
All of the duties of these clerks, i.e., associating correspondence to
files, taking inventory, preparing cases for processing, locating files,
and handling telephone inquiries, were performed for an additional
module. Since each module contained 150 filing cabinets, the two
control clerks searched 150 more cabinets. S&C Clerk, Lee Harris in I&E
3, testified he had to work a little more overtime and his backlog is
higher. /14/ Further, that the two control clerks cannot take lunch and
other breaks together since one of them must be on duty.
19. Records facts show that while the S&C clerk in I&E and the file
clerk in modules do perform similar duties, there are some differences
in their tasks. Critical and sensitive cases are handled by control
clerks in I&E, while the file clerk in a module gets a full range of
incoming "receipts". There is more physical effort required of the file
clerk since the latter must lift and deliver a large number of folders
compared to a few by the control clerk. As many as 50-100 folders are
carried by the file clerk who may use a wagon to wheel them away. The
S&C clerk in I&E carries folders to the modules. He brings critical
cases to the manager and leaves the file cases on the receipt table in
the module. The "racks" /15/ will then file the folders away.
The control clerks generally visited all the floors in two buildings,
whereas the file clerk was confined to the work area within the module.
To some extent there is less supervision in the I&E unit. Only one
supervisor is assigned thereat and he is not present most of the time,
whereas there are three supervisors in the module who supervise the file
clerks.
Although there is no pay differential between the control clerk and
file clerk positions, the usual line of progression is from the file
clerk in the module to the S&C clerk in I&E. Both Hirsch and S&C Clerk
Lee Harris testified they considered the transfer to file clerk from the
control clerk in I&E to be a demotion.
Conclusions
A determination as to whether Respondent violated the Statute by
failing and refusing to negotiate the impact and implementation of the
reassignment of employee Selma Hirsch turns on the resolution of two
issues: (1) whether the Union's request to negotiate in that regard was
timely so as to impose a duty upon Respondent to bargain; (2) assuming
arguendo the Union's request was timely made, whether the reassignment
resulted in a minimal impact so as to warrant the conclusion that no
violation of Section 7116(a)(1) and (8) be found herein.
(1) Respondent contends that the Union virtually slept on its rights
and thus waived any right to insist upon bargaining re the reassignment
of Selma Hirsch. It insists that the Union, which was notified by
management on December 19, 1983 of the proposed transfer to this
employee, waited two weeks before requesting bargaining; that union
representative Holton also waited two weeks (January 13, 1984 until
January 27, 1984) for an answer from management to his request. Such a
delay, it is argued, is unreasonable and flouts Article 4, Section 1 of
the parties' collective bargaining agreement.
In addition to imposing a duty upon an agency to provide a union with
adequate notice prior to exercising a reserved management right, the
Authority has declared that the union must submit its bargaining request
within a reasonable time after receiving such notification. United
States Department of Defense, Department of the Army, Headquarters, Fort
Sam Houston, Texas, 8 FLRA No. 112. Where a union fails to request
bargaining until after the change is implement, such request is untimely
and an employer may not be deemed to have refused to bargain unlawfully.
Department of the Army, U.S. Military Academy, West Point, New York,
A/SLMR No. 1138, 8 A/SLMR 1163. Further, if a union is notified that a
change will occur in 10 days, its submission of proposals at the last
minute before an agency implements said procedures has been held to
constitute an untimely request to bargain. Department of the Treasury,
U.S. Customs Service, Region I (Boston, Massachusetts), 16 FLRA No. 97.
See also, Social Security Administration, Bureau of Hearings and
Appeals, A/SLMR No. 960, 8 A/SLMR 33.
In the case at bar I am not persuaded that the Union's request to
bargain may properly be deemed untimely. While the Respondent dates its
notification re the intended reassignment of Hirsch as of December 19,
1983, the record does not reflect that such notice was absolute or
definitive in nature. Thus, Palmer on that date told Holton that
management anticipated reassigning S&C clerk out of I&E 3. The Deputy
Section Manager did not specify a particular date when the reassignment
would occur. Further, he made no mention at that time of the unit or
group to which the S&C clerk would be reassigned, nor was mention made
of the particular control clerk to be transfered. Under the
circumstances, the Union was not provided with much more than a general
expectation that management would probably move a S&C clerk out of the
I&E unit. It was not until January 10 that Palmer notified Holton that
management would be reassigning control clerk Selma Hirsch out of I&E.
Moreover, Palmer stated he would advise Holton later as to the date and
location. It scarcely behooves Respondent to contend that proper
notification was given the Union prior to January 10 re the
reassignment. Accordingly, the request to bargain made by Holton on
January 12 was, in my opinion, timely in nature. Cf. General Services
Administration, 15 FLRA No. 6. /16/
(2) While an agency may not be required to negotiate a decision
reserved to it as a management right under Section 7106(a) of the
Statute, it may be called upon to bargain as to the impact and
implementation thereof. Prior to 1983 the test applied in the public
sector involved a determination as to whether such impact resulting from
the change was "substantial" in nature. Then in U.S. Government
Printing Office, 13 FLRA No. 39, the Authority rejected the yardstick of
"substantiality" in respect to impact of a change in condition of
employment. It concluded therein that the duty to negotiate comes into
play where the change results in an impact which is reasonably
foreseeable. However, no such duty is imposed where the foreseeable
impact is de minimis in nature. See also Department of Health and Human
Services, Social Security Administration, Chicago, Illinois, 15 FLRA No.
174.
In the case at bar Respondent insists that the reassignment of Selma
Hirsch constituted a minimal change in her working conditions and
resulted in no adverse effect upon unit employees. I do not agree.
Although it is true that both the S&C clerk and the module file clerk
both have similar duties and tasks to perform, there are some
differences in their working conditions. The record reflects that the
file clerks must exert much more physical effort than that which is
required of the control clerk. In her new position Hirsch is required
to use a wagon to load folders, and she may lift and deliver 50-100
folders, whereas as a control clerk in the I&E unit very few folders
were carried by her each day to the module. In her former position
Hirsch and the other S&C clerks handled only sensitive cases, or those
which were given special consideration as critical matters. The file
clerks, including Hirsch in her reassigned job at the module, handle a
full range of incoming receipts involving all types of cases. S&C
clerks in the I&E unit have one supervisor whereas the module clerks
have three managers. The control clerk has a telephone on her desk. If
the District Office called for a folder, the said clerk could go into
the module and procure it. The file clerk has no phone on her desk and
a question to her is directed to somebody else. The file clerk is
confined to the work area in that module while the S&C clerk visits all
floors in two buildings.
In respect to the S&C clerks in the I&E unit, record facts show that
prior to February, 1984 each of the three clerks covered two modules in
associating correspondence, preparing cases for processing, locating and
delivering files. Since the reassignment of Hirsch each of the two
control clerks covers three modules. Further, each such clerk must take
lunch or a break alone since it is necessary that one of them remain on
duty during working hours. Previously two of those individuals could go
together at such times. Not is also taken that the line of progression
has always been from file clerk position to the S&C clerk in I&E.
In sum, I conclude that the reassignment of Selma Hirsch from the I&E
unit to the module as a file clerk resulted in a change in working
conditions. Moreover, I am persuaded, based on the record herein, that
the changes were substantial enough so that the impact may properly be
termed as more than de minimis. Cf. Department of Health and Human
Services, Social Security Administration, Chicago, Illionois, supra.
Accordingly, since Respondent failed and refused to bargain as to the
impact and implementation of such reassignment -- after a timely request
by the Union herein -- I also conclude Respondent has violated Section
7116(a)(1) and (5) of the Statute.
Accordingly, and based on the foregoing, it is recommended that the
Authority issue the following:
ORDER
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Rules and Regulations, it is hereby ordered that the Department of
Health and Human Services, Social Security Administration, shall:
1. Cease and desist from:
(a) Reassigning any employees represented exclusively by American
Federation of Government Employees, AFL-CIO, Local 1760, without
first notifying the exclusive representative and affording it an
opportunity to bargain with respect to the procedures which
management will observe in implementing such reassignment and
concerning appropriate arrangements for employees adversely
affected thereby.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify and bargain in good faith with American Federation of
Government Employees, AFL-CIO, Local 1760, upon request, with
respect to the procedures which management will observe in
implementing a reassignment of employees, and concerning the
appropriate arrangements for employees adversely affected thereby.
(b) Upon request, bargain in good faith with American
Federation of Government Employees, AFL-CIO, Local 1760,
concerning the appropriate arrangements for employees adversely
affected by the reassignment of employee Selma Hirsch from the
Inquiry and Expediting Unit, Section 3 to Module 18 at the
Northeastern Program Service Center.
(c) Post at its facilities at the Northeastern Program Service
Center, Flushing, New York, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Director, or
his designee, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: May 20, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The National Labor Relations Board similarly makes a threshold
determination in deciding whether an employer has a duty to bargain.
Where the change made by the employer is not a "material, substantial or
significant change" from past practice, the Board has found that the
employer has no statutory duty to bargain over the change. See Peerless
Food Products, Inc., 236 NLRB 161 (1978). The Board also considers the
utilization of its resources in the processing of unfair labor practice
cases. See Jimmy Wakely Show, 202 NLRB 620 (1973).
(2) The term de minimis is derived from the Latin phrase "De minimis
non curat lex," which is translated to mean that the law does not care
for, or take notice of, very small or trifling matters; the law does
not concern itself about trifles. Black's Law Dictionary 388 (5th Ed.
1979).
(3) In view of this disposition, we find it unnecessary to reach or
pass upon the Judge's failure to order a status quo ante remedy under
the circumstances.
(4) At the hearing the Complaint was amended to change the year from
1982 to 1984.
(5) Subsequent to the hearing General Counsel filed a Motion to
Strike certain portions of Respondent's brief as containing facts
unsupported by the record. Respondent filed an opposition to said
Motion. In its brief Respondent refers to: (a) a dismissal and appeal
denial of another unfair labor practice charge involving the same
parties; (b) the fact that James Armet, an individual with whom Union
representative Warren Holton testified he spoke to on January 10, 1984,
was on leave that date. Documents supporting such evidence are attached
to Respondent's brief. Apart from the relevancy or determinative nature
of such facts and material, the undersigned will not consider any
evidence not included in the official record of the hearing. Only the
testimony and exhibits adduced thereat are relied upon in the
disposition of this case. The Motion is denied. See Internal Revenue
Service, 16 FLRA No. 119.
(6) Respondent's Answer admits that (a) American Federation of
Government Employees, AFL-CIO has delegated to the National Council of
SSA Payment Centers the authority to act as its representative for
collective bargaining of Respondent's employees at the Northeastern
Program Service Center, and the delegation has been recognized by
Respondent; (b) American Federation of Government Employees, AFL-CIO,
Local 1760 (the Union) has, at all times material herein, acted as agent
of the Council for the purpose of collective bargaining for Respondent's
employees at the Northeaster Program Service Center, and the agency
relationship has been recognized by Respondent.
(7) Each week the I&E unit receives a computer print-out of all cases
recorded into I&E. This is broken down into cases (1) in actual
processing, (2) missing, or which I&E was awaiting; (3) in a payment
holding file, where payment is being made thereon. Inventories are done
weekly with a record being made of the location of each folder.
(8) A credibility issue is posed since there is a conflict of
testimony in respect to the dates of the conversations and the content
thereof. The facts set forth in that regard represent the credited
version of such discussions.
(9) Unless otherwise indicated, all dates hereinafter mentioned occur
in 1984.
(10) Palmer testified it was an established practice that, in respect
to any proposals, management had to be contacted within 10 days from the
date the union is notified thereof. Apart from Palmer's statement in
that regard, the record contains no evidence of such a practice or its
duration. The undersigned concludes there is insufficient evidence to
support an established practice that the union must respond to
Respondent within 10 days of management's proposals.
(11) Although the charge herein alleges a violation of the Statute
based on a failure by Respondent to provide information requested by the
Union, no such allegation was made a part of the Complaint.
(12) This particular provision recites that notice of proposed
changes affecting one Region or Program Service Center will be given the
union and upon request negotiated at that level; that management will
provide the designated union representative with timely notice of
proposed management initiated changes.
(13) Palmer testified he did not receive this memorandum, which was
left on his desk, until January 27; that he so noted it on the document
on that date. In view of the ultimate findings re the timeliness of the
January 12 request to bargain by the Union, the fact that the January 13
memo from Holton may not have been brought to Palmer's attention till
January 27 is not deemed determinative as urged by Respondent.
(14) Harris could not testify as to whether the number of cases
increased, but stated he was doing more work than previously. Palmer
testified the workload had reduced about 33% in the I&E Unit. The work
receipts in said unit do show a decrease in December, 1983 and January,
1984 as contrasted with previous months. (G.C. Exhibit 9).
(15) The term refers to a file clerk who files the folders.
(16) The failure by Holton to make any proposals to Palmer on January
3 does not, as Respondent implies, demonstrate a disinterest in the
reassignment. Neither does it constitute a waiver of the right to
request bargaining on the matter. Long Beach Naval Shipyard, Long
Beach, California, 17 FLRA No. 76. At that date the notification to the
Union was anticipatory in nature, and I cannot fault the Union for not
pursuing negotiations. See Internal Revenue Service, 16 FLRA No. 205.
Moreover, a waiver must be, as the Authority has held, clear and
unmistakable. Scott Air Force Base, Illinois, 5 FLRA 9.
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 STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT reassign any employee represented exclusively by American
Federation of Government Employees, AFL-CIO, Local 1760, without first
notifying the exclusive representative and affording it an opportunity
to bargain with respect to the procedures which management will observe
in implementing such reassignment and concerning appropriate
arrangements for employees adversely affected thereby.
WE WILL NOT in any like or related manner interfer with, restrain, or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL notify and bargain in good faith with American Federation of
Government Employees, AFL-CIO, Local 1760, upon request, with respect to
the procedures which management will observe in implementing a
reassignment of employees, and concerning the appropriate arrangements
for employees adversely affected thereby.
WE WILL, upon request, bargain in good faith with American Federation
of Government Employees, AFL-CIO, Local 1760, concerning the appropriate
arrangements for employees adversely affected by the reassignment of
employee Selma Hirsch from the Inquiry and Expediting Unit, Section 3 to
Module 18 at the Northeastern Program Service Center.
(Agency or Activity)
Dated:
By:
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 questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278
and whose telephone number is: (212) 264-4934.