[ v20 p80 ]
20:0080(9)CA
The decision of the Authority follows:
20 FLRA No. 9
BUREAU OF FIELD OPERATIONS
SOCIAL SECURITY ADMINISTRATION
SAN FRANCISCO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES. COUNCIL OF SOCIAL SECURITY
DISTRICT OFFICE LOCALS
SAN FRANCISCO REGION
Charging Party
Case No. 9-CA-372 /1/
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. Thereafter, 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 and recommended Order, as modified herein.
/2/
In adopting the Judge's conclusion that the impact of the temporary
change in the work assignments of two Operations Analysis was "too
substantial" to support a bargaining obligation, the Authority notes
its recent holdings concerning this issue. Thus, the Authority has 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, in agreement with
the Judge's conclusion, and based upon the totality of the facts and
circumstances presented, that the impact or reasonably foreseeable
impact of the temporary change in work assignments of the two Operations
Analysts was no more than de minimis. Accordingly, it follows, as found
by the Judge, that the Respondent was under no obligation to notify the
Union 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 and over appropriate arrangements
for employees adversely affected by the change. Thus, with respect to
the nature of the change, the assignment of work to one classification
which is normally assigned to a different classification, the Authority
agrees with the Judge that, but for other factors, the change would be
significant in nature as it could affect both promotional opportunities
and retention. However, as noted by the Judge, the change was of a
temporary nature based on an overriding need to reduce the backlog of
the Claims Representatives, and it lasted no more than two months.
Further, as noted by the Judge, the change in the two employees' work
assignments could have had a possible effect on at most four or five
employees out of the 95 employees in the Sacramento District Office.
The Authority further notes in this regard that the 95 employees of the
Sacramento District are but a part of a national bargaining unit.
Finally, the Authority notes that no evidence was submitted regarding
any past practice with respect to such temporary reassignments of duties
or with respect to any prior bargaining history between the parties over
analogous changes.
Based on the totality of the facts and circumstances, and noting
particularly the short duration of the temporary reassignment in duties,
the very few employees affected by the change relative to the total
number of employees represented in the unit, and the absence of any
demonstrated bargaining history or past practice according to which the
parties have handled similar changes, the Authority concludes, in
agreement with the Judge, that the impact or reasonably foreseeable
impact of the change in duties on unit employees' conditions of
employment herein was no more than de minimis. Accordingly, the
Respondent was under no obligation to notify the Union and afford it an
opportunity to request bargaining pursuant to section 7106(b)(2) and (3)
of the Statute, and its failure to do so therefore was not violative of
section 7116(a)(1) and (5).
With respect to the related allegation in the complaint that the
Respondent violated section 7116(a)(1) and (8) of the Statute when it
conducted a meeting with the two bargaining unit employees referenced
above to give them their reassignment of duties, the Authority adopts
the Judge's conclusion that no formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute took place, but for different
reasons. In his decision, the Judge concluded that inasmuch as no
"bargaining," "give and take," or "solicitation of employee views and
opinions" took place at the meeting, there was no formal discussion. In
a recent case, Department of Defense, National Guard Bureau, Texas
Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC),
Kelly Air Force Base, 15 FLRA No. 111(1984), the Authority specifically
rejected similar reasoning, finding that "the absence of actual dialogue
may not be relied upon to justify a failure to have given the exclusive
representative prior notice and an opportunity to be present at a formal
discussion" within the meaning of section 7114(a)(2)(A) of the Statute.
Thus, the allegation herein cannot be dismissed based solely on the
grounds relied upon by the Judge.
However, as noted in Bureau of Government Financial Operations,
Headquarters, 15 FLRA No. 87(1984), petition for review filed sub nom.
National Treasury Employees Union v. FLRA No. 84-1493 (D.C. Cir. Oct. 1,
1984), all elements set forth in section 7114(a)(2)(A) of the Statute
must be found to exist in order for a union's right to be represented at
a formal discussion to attach: (1) a discussion; (2) which is formal;
(3) between one or more representatives of the agency and one or more
employees in the unit or their representatives; (4) concerning any
grievance or any personnel policy or practices or other general
conditions of employment. With respect to the latter element concerning
the subject matter of the meeting, the Authority noted, as relevant
herein, /4/ in Bureau of Government Financial Operations, supra, in
discussing the meaning of "any personnel policy or practices," that such
policies and practices involve "general rules applicable to agency
personnel, not discrete actions taken with respect to individual
employees." Further, in discussing the meaning of "other general
condition of employment," the Authority concluded "that formal
discussions are limited to those discussions (except grievance meetings)
'which concern conditions of employment affecting employees in the unit
generally.'"
In applying these considerations to the facts of the instant case,
the Authority concludes that the subject matter of the February 15, 1980
meeting did not involve any personnel policy or practices or any general
condition of employment as defined in section 7114(a)(2)(A) of the
Statute. In this regard, the meeting was limited to the temporary
reassignment of the duties of the two bargaining unit employees in
attendance, who work in an office employing at least 95 employees and
who are part of a nationwide consolidated bargaining unit. Thus, the
subject matter of the meeting was confined to a temporary, discrete
action involving no discussion of personnel policies or practices, and
which had no effect on conditions of employment of bargaining unit
employees generally. /5/ Accordingly, the Authority concludes that the
meeting in question was not a formal discussion within the meaning of
section 7114(a)(2)(A) of the Statute inasmuch as it did not involve
subject matter within the purview of section 7114(a)(2)(A). /6/ It
follows, therefore, that the Respondent's failure to provide the Union
with an opportunity to be represented at the meeting was not violative
of section 7116(a)(1) and (8) of the Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-372 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. 9-CA-372
Wilson G. Schuerholz, Esquire
For the Respondent
Stefanie Arthur, Esquire
For the General Counsel
Vincent Morgante,
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq., as a result of an unfair labor
practice complaint dated May 28, 1980, filed by the Regional Director,
Region IX, Federal Labor Relations Authority, San Francisco, California,
against the Social Security Administration, San Francisco, California.
The complaint alleged that Respondent, on or about February 15, 1980,
unilaterally changed the work assignments of Operations Analysts and
Claims Representatives at its Sacramento District Office without
providing the Union notice and an opportunity to bargain concerning the
impact and implementation of such changes, and that it bargained
directly with employees in derogation of the Union's status as exclusive
representative, in violation of Section 7116(a)(1) and (5). The
complaint further alleges that the same meeting constituted a formal
discussion within the meaning of Section 7114(a)(2)(A), and that the
failure to afford the Union an opportunity to be represented at the
discussion was violative of Section 7116(a)(1) and (8).
A hearing was held in San Francisco, California on September 8, 1980.
The parties were afforded full opportunity to be heard, adduce relevant
evidence, examine and cross-examine witnesses and file briefs. On the
basis of the entire record, including my observation of the witnesses
and their demeanor, I make the following findings of fact, conclusions
of law and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL-CIO, the parent
body of the Union, is the certified bargaining representative of a
national unit which encompasses the Sacramento District Office. That
office employed at material time 90 Claims Representatives and five
Operations Analysts.
A Claims Representative interviews claimants, investigates and
determines the validity of their claims and, after entitlement has been
decided, works on redeterminations and over-payments. He reports to an
Operations Supervisor, and is on a career ladder which culminates in
journeyman status as a GS-10. An Operations Analyst is a GS-10 who
reports to the Assistant District Manager and is assigned work in
problem areas in the hope that he or she will come forward with
proposals for improvements. While the two positions enjoy equivalent
grades, it is clear that the Operations Analyst has the better job, with
greater promotion potential. He is, in effect, a staff assistant to
management, and is chiefly concerned with seeking ways to improve the
casehandling process, somewhat like an industrial engineer concerned
with workflow analysis and quality control. The position was redesigned
in October of 1979 (without any change in the job description) for the
purpose of shifting the emphasis from technical claims review to
operational analysis. Joint Exhibit 2 notes that:
Managers have license to direct OA activities as they see fit
as long as these activities are designed to evaluate and improve
office performance. The only restrictions on OA activities relate
to using the OA in a production capacity, i.e. interviewing, end
of line 100% reviews, clearance unit functions etc. . . . emphasis
should be placed on the fact that the OA is, first and foremost, a
staff arm of the manager, and as such, should be involved in
activities which the manager would normally want to pursue, but
either lacks the time or technical expertise necessary to perform
a thorough review.
In January 1980, management decided to give top priority to ridding
itself of the backlog in SSI overpayment cases. At that time there were
five OA's on board. Two (Fresner and Eckstrom) were and remained
involved in other matters. Mary Bustillos had for two years been
working overpayment cases and allegedly reporting to District Office
Manager Peter D'Anna approximately once a month with suggestions for
improving the case handling process. /7/ On January 15, Bottoni and
Vega were assigned to do a thorough analysis of the backlog in
overpayment cases. Bottoni had been until then a Claims Representative.
There is no evidence respecting Vega's experience and areas of
expertise. It is clear that the two were commissioned to process such
cases, with a heavy emphasis on the search for methods to improve both
the quantity and quality of case dispositions. At the same time two
Claims Representatives were assigned exclusively to the task of simply
processing such cases.
Bottoni and Vega collaborated in the submitting to D'Anna weekly
written reports setting forth their findings and observations, as well
as recommendations for improving the process. They also studied and
recommended solutions of problems being encountered in the Marysville
suboffice of the Sacramento District. Quite clearly they enjoyed an
assignment as "industrial engineers," much like that described in the
redesigned job. Involvement in case processing was but a means towards
the end of devising better ways to cope with the caseload. Whether the
other OA's did work of comparable "systems analysis" is not known but is
deemed unlikely.
This happy state of affairs lasted for only a month. On February 14,
D'Anna called Bustillos and Bottoni into his office for a meeting. Also
representing management were Assistant District Manager Zacker,
Operations Officer Clements and Office Supervisor Myrick. Apparently
Vega was absent that day. D'Anna thanked Bottoni for the work he and
Vega had done. He then said, in essence, that the overriding priority
was elimination of the backlog, that the studies indicated that lack of
sufficient capable staff was at the root of the problem, and that they
should suspend their reports for the balance of the quarter (February 19
through March 28) and concentrate their energies on backlog reduction:
i.e., production and technical assistance to others. A wrap-up report
was to be submitted at the end of the quarter, but the main emphasis was
to attack the embarrassing backlog that threatened to survive the
quarter's end. Thus analysis, a primary function for about a month,
was, until about the end of April, almost totally subordinated to
production. Bottoni and Vega did submit one more written analysis of
the problem in early April, in response to D'Anna's request. After a
few more weeks of further backlog elimination they were assigned tasks
of operational analysis.
Union President Sanderson was told of this meeting the afternoon of
February 14 or the morning of February 15 by Bustillos. He sought no
discussions, and lodged no protest with management, being of the view
that it was the latter's responsibility to come to him if it intended to
make changes. Thus, the Union took no action until three weeks later,
when it filed the unfair labor practice charge.
Operations Officer Clements had briefed Sanderson on a number of
changes, including, apparently, increased flexibility in work
assignments and specifically involvement of OA's in production.
However, Sanderson's recollection was vague, and I can make no finding
based on Clement's notes of their discussion in view of Clement's
failure to appear at the hearing. I therefore find the union was given
no specific notice of the contemplated change in duties, and was not
invited to the meeting.
Discussion and Conclusions
The General Counsel contends that the February 14 meeting constituted
direct bargaining by management representatives with employees in
derogation of the Union's status as exclusive bargaining representative,
in violation of Section 7116(a)(1) and (5). It also contends that the
meeting constituted a formal discussion, and thus the failure to afford
the Union its institutional right to be represented at such discussion
violated Section 7116(a)(1) and (8). In my judgment both arguments fail
for the same reason: there is no evidence that any discussion ensured
in the sense of any give and take or debate. Rather, D'Anna simply
thanked the employees for their work on the project, and informed them
that the temporary, overriding goal was to reduce the backlog. He
therefore instructed them to suspend their written reports for the next
five weeks, to invest the time and energy saved in production, and to
provide him with a summary report on April 4. There is no evidence that
the employees (one of whom-- Bustillos-- was apparently unaffected)
sought to persuade D'Anna to modify his course. I conclude that no
bargaining took place and no discussions took place. Whether or not the
announcement otherwise violated the law, it did not rise to the level of
bypassing the Union and negotiating directly with employees about the
terms and conditions of their employment. For the same reasons it did
not constitute a formal discussion of "any personnel policy, practice or
other general condition of employment" at which the Union was entitled
to be present. The cases relied upon by the General Counsel /8/ are
distinguishable. In HEW, management by questionaire sought the opinions
and sentiments of bargaining unit employees about matters within the
scope of the collective bargaining relationship. In Naval, management
posted a copy of a letter from the Activity's Executive Officer to the
Union's President in which he excoriated the President for attempting to
"blackmail" the Activity into accepting the Union's contract proposals
with an "unfounded" unfair labor practice charge, and promised to file a
refusal to bargain charge against the Union if it did not abandon such
tactics. The council sustained the Assistant Secretary's conclusion
that such conduct violated the Order, but rejected his rationale that
direct communications (presumably any) with unit employees over matters
relating to the collective bargaining relationship necessarily tend to
undermine the status of the exclusive representative. Rather, the
Council held it must be determined that management's conduct was an
attempt to deal or negotiate directly with employees, and in this
instance it held that the letter could "be equated with an attempt to
bargain directly with employees and to urge them to put pressure on the
Union to take certain action." In IRS, the Assistant Secretary said the
"gravamen of the violation herein consists of the solicitation of views
and recommendations from unit employees" on matters covered by the
parties' negotiated agreement as well as related personnel policies and
practices and general working conditions. Nothing of the sort happened
here. Management did not seek the views, sentiments or recommendations
of Bottoni and Bustillos with regard to personnel policies and practices
or general working conditions. It did not urge them to put pressure on
the Union. It showed no willingness to discuss with them any matter
with respect to which the Union was entitled to be dealt with
exclusively. Not every communication directly to employees is a bypass
or constitutes a formal discussion, /9/ even though it may otherwise be
violative of the bargaining obligation.
The Federal Labor Relations Council's decision in NASA and Lyndon B.
Johnson Space Center, (FLRC No. 74A-95) seems to me to be instructive in
this respect. There it was held that an Agency was privileged to refuse
to permit the Union to participate in "information-gathering" sessions
conducted at the Activity by an EEO Executive from Agency headquarters.
While the Council was careful to limit its holding to the rather unique
circumstances of that case, it nevertheless found it necessary to twice
set forth its reasons for finding that the EEO officer's effort to
solicit opinions about the EEO program and listen to employee
suggestions for additions and modifications did not constitute formal
discussions within the meaning of Section 10(e) of the Order (the
precursor to Section 7114(a)(2)(A)). In so concluding it said:
The language of the pertinent portion of section 10(e) quoted
above makes clear that it is not the intent of the Order to grant
to an exclusive representative a right to be represented in every
discussion between agency management and employees. Rather, such
a right exists only when the discussions are determined to be
formal discussions and concern grievances, personnel policies and
practices, or other matters affecting the general working
conditions of unit employees. In the situation at issue in the
instant case, agency headquarters-level representatives met with
activity-level employees for the purpose of soliciting opinions
with respect to the EEO program of the Agency. More particularly,
as stipulated by the parties, the Assistant Administrator merely:
. . . solicited the opinions of the employees with respect to
the EEO Program of the . . . Agency and listened to their
suggestions for EEO Program additions and modifications. No
commitments were made to the employees.
Further, the stipulated record contains no indication that the
Assistant Administrator attempted to resolve the issues raised at
the meetings through agreement with assembled employees,
individually or collectively, nor did he make "counterproposals"
to the suggestions offered. There is no indication that the
Assistant Administrator either expressly or impliedly suggested to
the employees during such solicitations that their opinions and
criticism would govern future modifications of the Agency's (or
the Activity's) conduct and/or regulations concerning the
operations of its EEO program, or that he indicated that their
answers would have an effect on the employee' status. Similarly,
there was no evidence adduced that the discussions dealt with
specific employee grievances or other matters cognizable under an
existing agreement between the Activity and the local Union, or
that the Assistant Administrator was gathering the information for
the purpose of using it subsequently to persuade the Union to
abandon a position taken during negotiations regarding the
operation of the EEO program.
In our view, discussions such as those described herein were
not "formal discussions concerning grievances, personnel policies
and practices, or other matters affecting general working
conditions of employees in the unit." Rather, they were a
mechanism whereby agency headquarters-level management sought to
evaluate the effectiveness of an agencywide program which existed
totally apart from the collective bargaining relationship at the
level of the exclusive recognition. Indeed, without the benefit
of such information-gathering mechanisms, agency management would
be seriously impeded in effectively carrying out its
responsibility-- often mandated by statute, as in the instant
case-- to conduct periodic evaluations of the effectiveness of
such agencywide programs. (While mechanisms of this sort are not
discussions wherein management is obligated to give the exclusive
representative the opportunity to be represented, management may
well consider it desirable to give the exclusive representative
the opportunity to be present at meetings such as those conducted
by the Agency in the instant case. Clearly such representation is
not prohibited by the Order.)
We must emphasize that our views, as expressed above, pertain
only to information-gathering devices such as the meetings
involved in this case. That is, they apply only in circumstances
such as those mentioned above where management does not, in the
course of information gathering: seek to make commitments or
counterproposals regarding employee opinions or complaints
solicited by means of such devices; indicate that the employees'
comments on such matters might have an effect on the employees'
status; deal with specific employee grievances or other matters
cognizable under an existing agreement; or gather information
regarding employee sentiments for the purpose of using it
subsequently to persuade the union to abandon a position taken
during negotiations regarding the personnel policies or practices
concerned.
Turning to the reasoning of the Assistant Secretary, his
finding of a violation in the instant case was based on the
conclusion that the Agency's conduct undermined that status of the
exclusive representative selected by the employees and that such
conduct resulted in improper interference with, restraint, or
coercion of unit employees by the Agency in the exercise of their
rights assured under the Order in violation of section 19(a)(1).
If the Council were to sustain the Assistant Secretary's
conclusions in this regard, we would, in effect, be construing the
Order so as to find that any meeting between agency management and
unit employees wherein discussions of personnel policies and
practices, or other matters affecting general working conditions
took place would be a per se violation of the Order, regardless of
the circumstances involved, the content of the discussion, or the
actual conduct of agency management. As stated above, the
critical issue was the right of the exclusive representative to be
represented at the meeting pursuant to the provisions of section
10(e). Since, as we have concluded, the Union had no right to be
represented at the meeting, the Union's status as bargaining
representative could not be undermined by denying its request to
participate at such meetings.
Again, while the Council carefully stressed the fact that this
fact-gathering was conducted by a headquarters level representative at
the activity-level of exclusive representation, and that its purpose was
to evaluate a statutority-mandated EEO program which existed totally
apart from the collective bargaining relationship. I do not think the
inference can properly be drawn that the repeated reference to
commitments, counterproposals and solicitation of employee sentiments
for use against their bargaining representative was mere dicta. Rather,
I conclude that something in the nature of bargaining, some kind of give
and take, or else some solicitation of employee views and opinions
indicating a purpose of using such information against their
representative in negotiations is necessary to a holding that direct
communication between management and employee breaches the duty to deal
only with the exclusive representative.
Webster's New Collegiate Dictionary defines "discussion" as
"consideration of a question in open or usually informal debate" and,
secondarily, as "a formal treatment of a topic." The word "discuss" is
there reported a deriving from words meaning to shake apart, and is
defined as meaning "to investigate by reasoning or argument; to present
in detail for examination or consideration (or) to talk about." It is
further noted that the words discuss, argue, debate or dispute have a
shared meaning in that all involve the element of "discourse about
something in order to arrive at the truth or to convince others of the
validity of one's position."
Thus, where management, of example, presents directly to unit
employees a new set of working conditions neither bargained as to
content (where required) nor as to impact and implementation, such
conduct would obviously violate the duty owed the exclusive
representative. Such a violation flows from the fact that management
ignored or flouted the status of the Union as collective bargaining
representative before making the changes. Where such new terms are not
set out for the examination and consideration of the employees, but as a
fait accompli, no dealing with them of the kind owed the representative
would have occurred and thus no violation of that duty could occur.
While such disregard for the Union's role undermines it, it cannot
constitute a bypass because no direct dealing or bargaining with those
represented by the Union occurred. Put another way, the employees were
not denied representation because no bargaining about employment terms,
upon which the right to representation becomes operative, took place.
Similarly, the Union was not deprived of the right to be represented on
such an occasion because no formal discussions took place.
Here, management held a meeting with two employees. It altered,
temporarily, their working conditions. It sought no discussion about
the pros and cons of such a move, and in no sense did it offer any
suggestions about changes in their employment terms and conditions for
their consideration. It simply told them that, for approximately six
weeks they should suspend their month-old practice of submitting weekly
reports on the processing of overpayment cases and employ the time
thereby saved in processing cases. In the absence of any talk
manifesting or suggesting that management was open to negotiating these
new terms with the affected employees, I conclude that no formal
discussion took place and that no bypassing of the collective bargaining
representative occurred. Similarly, the Union was not deprived of the
right to be represented on such an occasion because no formal
discussions took place.
A recent decision /10/ of the Authority throws considerable doubt on
this analysis. In that case it was held that orientation sessions
conducted by an agency for purposes of acquainting new employees with
personnel policies, programs, and general conditions of employment, at
which there was "discussion, including questions and answers," were
formal discussions at which the Union was entitled to be represented.
In so holding, the Authority particularly noted the required attendance,
and the established agenda for such discussions. Thus, except for the
unknown weight accorded the latter factor, the rationale arguably covers
any discussion of employment terms (not limited to a particular
individual's concerns about his own particular circumstances) between an
employee and a management representative where such discussion was
initiated by management. Perhaps the breadth and comprehensive scope of
the established agenda are the key to the decision. In any event, I do
not find that it controls such talk as occurred here, which was much
more limited as to subject matter and was not pursuant to any
established agenda. In addition, it is to be noted that the question
whether the lectures, questions and answers constituted "discussion" in
the light of the kind of precedent discussed earlier was not addressed
by the Authority and perhaps was not even raised by Respondent. The
fact that the subject matter of the sessions met the statutory standard
was stipulated, and no detailed description of the nature of the
exchange is given. In conclude that case does not control this one.
Finally, there is the question whether the change announced on
February 14 violated Sections 7116(a)(1) and (5) because the Union was
not provided with notice and an opportunity to bargain over the impact
and implementation of the change. The new assignments which occurred
here would (apart from the question of its temporary nature) clearly
constitute a significant change in employment conditions because it
involved a conversion from a heavy emphasis on analysis to an almost
complete emphasis on production. As noted, mere production was not a
proper use of OA's, and such employment would obviously have an impact
upon their promotion and retention possibilities. /11/ Here, however,
the de-emphasis in analysis was short-lived, was based upon perceived
overriding need to reduce an intolerable backlog by the end of the
calendar-year quarter (at a time when management thought the analysis
already done had largely disclosed what was wrong with the system for
processing overpayment cases), and affected only a few employees. That
is, the ramifications of the change were limited both in time and to
about four or perhaps five employees in the unit. Since sometime in
April, OA's Bottoni and Vega have been reassigned to the kinds of
analytical duties for which that job was designed. Thus, at most, they
were used, for approximately two months, in a way that rendered their
job identical to that of a Claims Representative, except for the need to
make a wrap-up analysis. Thus the question arises whether this
temporary shift in the emphasis of their duties had a sufficiently
substantial impact upon their careers to call into play the obligation
to notify the Union and be prepared for good faith negotiations about
the impact and implementation of such a contemplated change. /12/
No system works smoothly all the time. Good management requires
slight shifts and "fine tuning" in the deployment of personnel and other
resources. A substantial impact rule was fashioned under the Executive
Order which imposes a bargaining obligation only with respect to those
matters which materially affect, and have a substantial impact on,
personnel policies, practices and general working conditions. Given the
brief duration of the change at issue, the importance of addressing the
backlog, the limited number of employees affected and the lack of any
indication that they were in any way adversely affected, I conclude that
the impact was too insubstantial (or remote and speculative) to support
a bargaining obligation. If every small adjustment in duties is
attended by such an obligation, each federal manager would virtually
require a union steward as a constant companion. Instead, I think, the
Statute requires that, where a management decision does indeed have
substantial impact management shall be prepared to bargain about
appropriate arrangements for employees adversely affected by the change.
/13/
Since no violation of Section 7116(a)(1), (5) and (8) has been
established, I recommend that the Authority adopt the following Order:
ORDER
It is hereby ordered that the complaint in Case No. 9-CA-372 be
dismissed.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: July 27, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Judge granted the General Counsel's motion to withdraw those
portions of the consolidated complaint relevant to Case No. 9-CA-297
pursuant to a settlement agreement entered into by the parties and
approved by the Regional Director.
/2/ Noting particularly the absence of exceptions to the Judge's
dismissal of the section 7116(a)(1) and (5) allegation of the complaint
alleging that Respondent bargained directly with bargaining unit
employees in derogation of the Union's status as exclusive
representative, the Authority adopts the Judge's findings, conclusion
and recommended Order in that regard. See U.S. Department of Housing
and Urban Development, 15 FLRA No. 89(1984).
/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/ No party alleged, and it does not appear, that the meeting
concerned a grievance within the meaning of section 7114(a)(2)(A) of the
Statute.
/5/ See United States Government Printing Office, Public Documents
Distribution Center, Pueblo, Colorado, 17 FLRA No. 122(1985).
/6/ In view of this finding, the Authority does not decide whether
the meeting was formal (element 2).
/7/ Whatever the newly-defined emphasis on analysis, the suggestion
is very strong that Bustillos' assignment was, overwhelmingly, if not
exclusively to process cases. Such insights into the system as she may
have gained in two years appear to have been ignored when the task of
in-depth analysis of that system was assigned to Angelo Bottoni and
Marlene Vega, neither of whom had such depth of experience in that
field. Bustillos was, according to Bottoni, simply processing
overpayment cases. I note this because there appears to have been much
uncertainty about the use of OA's, hence the redefinition of the job.
/8/ HEW, SSA, Bureau of Retirement and Survivors Insurance, 1 FLRA
No. 59; Naval Air Station, Fallon, Nevada, A/SLMR No. 432 and FLRCNo.
74A-80; and IRS, Ogden Center, A/SLMR No. 944.
/9/ See Department of Defense, National Guard Bureau, Case No.
6-CA-210 (OALJ-81-112) and U.S. Environmental Protection Agency, Case
No. 3-CA-1528 (OALJ-81-119), where Judges Chaitovitz and Sternburg also
concluded that not all exchanges of words concerning employment
conditions constitute formal discussions.
/10/ HEW, Region IV, Atlanta, 5 FLRA No. 58.
/11/ Cf. National Labor Relations Board, A/SLMR No. 246.
/12/ Cf. Social Security Administration, San Francisco, Case No.
9-CA-320 and 322 (OALJ-81-039), where Judge Sternburg held that a
transfer of overpayment cases from a Branch Office to a District Office,
which was due to an emergency situation and which resulted in a three
percent increase in an employees annual caseload, did not have a
significant impact upon that employee's working conditions. See also,
Social Security Administration, San Francisco, Case No. 9-CA-56 and 57
(OALJ-80-82), where Judge Mason held that management was not required to
bargain about the impact of its decision to temporarily promote an
employee to the position of acting supervisor, where the consequence of
such action was that, for three months, the remaining 35 or 40 Claims
and Service Representatives shared the insubstantial "burden" of
processing those claims he had formerly processed.
/13/ While there is no requirement that the Union make a bargaining
request after the change has taken place in order for a violation to
remain actionable, it is interesting that the Union made no request here
though it knew of the change almost immediately and might have headed
off any possible untoward consequences it could think of. Its failure
to do so (although it had been made generally aware of a move toward
more flexible use of manpower) leaves me, and apparently the General
Counsel, groping unsuccessfully for the kind of subject matter which
might usefully have been placed on the bargaining table.