[ v19 p1085 ]
19:1085(123)CA
The decision of the Authority follows:
19 FLRA No. 123
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 9-CA-20033
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 and the Charging Party filed exceptions to the Judge's
Decision and briefs in support of those exceptions.
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 Respondent and the Charging Party (the Union) are parties to a
nationwide collective bargaining agreement which includes in its
coverage the employees of the Respondent's Las Vegas District Office
involved herein. There are approximately 70 employees in the Las Vegas
District Office, of whom ten or eleven are designated service
representatives. The service representatives are charged with resolving
problems related to the receipt of benefits to qualified recipients, and
with answering questions posed by persons visiting or telephoning the
District Office. The service representatives whose duties involve
answering telephone inquiries are assigned to the Public Service Unit
(PSU), and service representatives rotate between face-to-face
interviews and PSU telephone duties every six months. At all times
relevant, four service representatives were assigned to PSU duty.
At Respondent's Las Vegas facility a general written policy exists
concerning morning and afternoon breaks and lunch periods. That written
policy includes a statement that supervisors will advise employees as to
when their breaks and lunch periods should be taken. However, before
the incidents giving rise to the instant complaint, the Las Vegas
employees either took an early break schedule (morning break: 9:15 to
9:30 a.m.; lunch 11:30 a.m.-12:30 p.m.; afternoon break: 2:45-3:00
p.m.) or a late break schedule (morning break: 10:15-10:30 a.m.; lunch:
12:30-1:30 p.m.; afternoon break: 3:15-3:30 p.m.). Aside from that
general or permanent schedule, occasional temporary adjustments were
necessitated by absences or workload variations. It is clear from the
record that, before October 8, 1981, whenever such adjustments were
necessitated, they were temporary and often arranged by the employees
themselves.
In October 1981, an abnormally heavy workload and the extended
illness of one employee occurred simultaneously. Cruz Alvarez,
supervisor of PSU, notified the three on-duty employees on October 8
that a meeting would be held at 4:30 concerning breaks and lunch. At
4:30, Alvarez met with the 3 PSU employees and Union Steward Nelson.
Alvarez announced a new break and lunch schedule (10:00-10:15 a.m.;
12:00-1:00 p.m.; 3:00-3:15 p.m.) which would be observed immediately by
employee Helen Barsy, and which would be in effect whenever there were
only 3 PSU employees available for duty. The record shows that there
was little or no discussion at the above-described meeting, which was in
the nature of an announcement by Alvarez of a management decision. The
record further reflects that neither Union Steward Nelson nor the Union
itself was advised that a meeting would be held, but rather than Nelson
attended at the request of employee Barsy.
The complaint alleges that the unilateral changes in lunch hour and
break periods involved changes in conditions of employment and violated
section 7116(a)(1) and (5) of the Statute /1/ as the Respondent was
obligated to notify the Union and to bargain with it concerning such
changes. The complaint further alleges that the meeting of October 8
was a "formal discussion" within the meaning of section 7114(a)(2)(A) of
the Statute, /2/ and that the Respondent's failure to notify the Union
and to give it the opportunity to be present as the representative of
the employees violated section 7116(a)(1), (5) and (8) of the Statute.
/3/
The Judge concluded that the unilateral changes in break and lunch
periods were limited in application to only employee Barsy, were "de
minimis" in nature, and hence not violative of the Statute. He further
found that it was unnecessary to pass upon whether the meeting of
October 8 constituted a "formal discussion" within the meaning of the
Statute, inasmuch as the subject matter of the meeting was de minimis in
nature. The Authority disagrees with the Judge.
It is clear that an established condition of employment existed
within the PSU to the effect that when absences or work exigencies
required, employees would adjust their break and lunch periods to meet
the needs of the situation, and that the adjustment would be temporary
in nature. Thus, Respondent's imposition of a permanent arrangement to
meet such needs, without involvement by the employees, constituted a
unilateral change in working conditions established by a past practice.
/4/ It is also well established that the subject matter of the change,
which was the time at which breaks and lunch might be observed within
the work day (and not the length of the breaks, lunch or work day
themselves), was a matter upon which the Respondent was obligated to
bargain. /5/ It is noted in this regard that there is no contention
that employees would have the right to refuse to appear for work when
ordered to do so or that management's right to assign individual
employees or groups of employees to specific tours of duty where such
assignments are necessary to the Agency's mission would be limited. /6/
In the Authority's view, the Judge erred in raising the question of
whether the change resulted in a "substantial impact" upon bargaining
unit employees. Where an agency effectuates a change in working
conditions by exercising one of its reserved rights and its duty to
bargain is limited to the impact and implementation of that change, the
degree of impact or reasonably foreseeable impact is relevant. /7/ But
where, as here, the decision to make a change was itself negotiable, the
question is whether the statutory obligation to notify and negotiate
with the exclusive representative concerning the change was fulfilled,
not the extent of impact of any unilateral change in conditions of
employment upon the unit employees. This latter inquiry is appropriate
when the bargaining obligation of management is limited to procedures
and appropriate arrangements pursuant to section 7106(b)(2) and (3) of
the Statute. /8/ Accordingly, the Authority concludes that the
unilateral change by the Respondent in a negotiable condition of
employment constituted a violation of section 7116(a)(1) and (5) of the
Statute.
As noted above, the Judge found it unnecessary to determine whether
the meeting conducted by Alvarez was a formal discussion within the
meaning of section 7114(a)(2)(A) of the Statute, because he found the
change in conditions of employment discussed at that meeting to be de
minimis. The Authority agrees that it is unnecessary to determine
whether the meeting in question constituted a formal discussion but for
a different reason. Subsequent to the Judge's decision, the Authority
concluded in Veterans Administration, Veterans Administration Medical
Center, Muskogee, Oklahoma, 19 F.RA No. 122 (1985), that actual
representation by an exclusive representative at a formal discussion is
sufficient to demonstrate compliance with the requirement of section
7114(a)(2)(A) of the Statute that such an exclusive representative "be
given an opportunity to be represented." In the circumstances of this
case, the exclusive bargaining representative was in fact represented
insofar as Union steward Nelson did in fact attend the meeting in
question. Accordingly, as the Union had the opportunity to be
represented, we find that no violation of section 7116(a)(1), (5) and
(8) of the Statute has been established.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, shall:
1. Cease and desist from:
(a) Failing or refusing to give notice and the opportunity to bargain
to American Federation of Government Employees, AFL-CIO, the employees'
exclusive representative, concerning changes in the hours of morning and
afternoon break periods and lunch periods and the methods used to
determine such hours, or any other proposed changes in terms and
conditions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the break and lunch schedule implemented in the Public
Service Unit, Las Vegas District Office, on October 8, 1981, and notify
the American Federation of Government Employees, AFL-CIO, the employees'
exclusive representative, of any intended changes in the break and lunch
schedule.
(b) Upon request, bargain with the American Federation of Government
Employees, AFL-CIO, the employees' exclusive representative, concerning
changes in the hours of morning and afternoon break periods and lunch
periods and the method used to determine such hours, or any other
proposed changes in terms and conditions of employment.
(c) Post at its facility in Las Vegas, Nevada 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
Commissioner 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 to insure that such
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 IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remainder of the complaint in Case No.
9-CA-20033 be, and it hereby is, dismissed.
Issued, Washington, D.C., August 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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 fail or refuse to give notice and the opportunity to bargain
to American Federation of Government Employees, AFL-CIO, the employees'
exclusive representative, concerning changes in the hours of morning and
afternoon break periods and lunch periods and the method used to
determine such hours, or any other proposed changes in terms and
conditions of employment. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any employee in the exercise of
rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL rescind the break and lunch schedule implemented in
the Public Service Unit, Las Vegas District Office, on October 8, 1981,
and notify the American Federation of Government Employees, AFL-CIO, the
employees' exclusive representative, of any intended changes in the
break and lunch schedule. WE WILL, upon request, bargain with the
American Federation of Government Employees, AFL-CIO, the employees'
exclusive representative, concerning changes in the hours of morning and
afternoon break periods and lunch periods and the method used to
determine such hours, or any other proposed changes in terms and
conditions of employment.
(Activity)
Dated: . . . By: (Signature) (Title) 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 its provisions,
they may communicate directly with the Regional Director for Region IX,
Federal Labor Relations Authority, whose address is: 530 Bush Street,
Room 542, San Francisco, California 94108, and whose telephone number
is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-20033
Wilson Schuerholz, Esq.
For the Respondent
Thomas Angelo, Esq.
For the General Counsel
Vince Morgante
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute or Act). It stems from a
charge filed on October 16, 1981 by American Federation of Government
Employees, AFL-CIO (herein called the Union) against Department of
Health and Human Services, Social Security Administration, Baltimore,
Maryland (herein called the Respondent).
A Complaint and Notice of Hearing, based on said charge, was issued
on January 27, 1982 by the Acting Regional Director for the Federal
Labor Relations Authority, San Francisco, California Region. The said
Complaint alleged, in substance, that on or about October 8, 1981
Respondent, by its supervisor, Cruz Alvarez, conducted a meeting with
bargaining unit employees to discuss changes in their break and lunch
schedules; that no notification was given to the Union; that
Respondent unilaterally changed the aforesaid schedules, effective on
October 8, 1981, and that Respondent has refused to bargain with the
Union in regard to the changed schedules-- all in violation of Section
7116(a)(1), (5) and (8) of the Statute.
Respondent filed an Answer to the Complaint dated February 19, 1982,
in which it denied the aforesaid allegations as well as the commission
of any unfair labor practices.
A hearing was held before the undersigned on March 25, 1982 at Las
Vegas, Nevada. All parties were represented thereat, and each was
afforded full opportunity to be heard, to adduce evidence, and to
examine as well as cross-examine witnesses. Thereafter briefs were
filed with the undersigned which have been duly considered.
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 Respondent has operated a
component agency known as Region IX (San Francisco) Bureau of District
Operations, Social Security Administration. Included within such Region
IX is the Las Vegas, Nevada District Office which employs about 80
bargaining unit employees.
2. Since on or about August 30, 1979 the Union herein has been, and
still is, the certified exclusive bargaining representative of a
national consolidated unit, including all General Schedule (GS)
employees in Region IX, as aforesaid, excluding supervisors, guards,
professional employees and certain other specified classes.
3. Employed at the Las Vegas District Office are 10-11 Service
Representatives. These individuals assist the public, who are on Social
Security, by answering queries regarding their checks and by giving
information to the public regarding the social security program. Those
representatives who deal with the public on a face-to-face basis are
known as "Floor Service Representatives". The ones who handle telephone
inquiries are assigned to the Public Service Unit (PSU), and generally
four Service Representatives will be assigned thereto. About every six
months these representatives rotate between the Floor Unit and the
Public Service Unit.
4. In 1978 the District Office promulgated the "District Office
Policy Manual" which dealt with, inter alia, coffee breaks and lunch
hours. It provided that two coffee breaks are granted employees during
a day-- one in the morning and the other in the afternoon, and each
should not exceed 15 minutes. The Manual further provides that the
supervisor will advise each employee as to his break time. With respect
to lunch periods, it is provided therein that there shall be one hour
for lunch; that the supervisors authorize the lunch period for all
employees so as to maintain an interviewing staff on duty at all times;
and that an occasional unexpected change in lunch hour must first be
cleared with the employee's immediate supervisor.
5. In accordance with the aforementioned policy, the Las Vegas
Office has operated on an early and late schedule with respect to coffee
breaks as well as lunches. Prior to October 8, 1981 /9/ the early
schedule was as follows: 9:45 a.m. (coffee break), 11:30 a.m.-12:30
p.m. (lunch) and 2:45 p.m. (coffee break). The late schedule called for
coffee breaks at 10:15 a.m. and 3:15 p.m., and the lunch period was
12:30 p.m.-1:30 p.m.
6. Prior to October 8, the four Service Representatives in the
Public Service Unit were: Helen Barsy, Tony Cerven, Betty Namath, and
Mary J. Woodman. In accordance with previous assignments both Barsy and
Cerven had been on early schedules in respect to coffee breaks and
lunch. Woodman and Namath were scheduled for late coffee breaks and a
late lunch period. Service Representative Barsy testified, and I find,
that if only three of those in the unit reported to work, two went at
their regular time for breaks and lunch and the third individual went at
a different time for the usual coffee break and luncheon.
7. Record facts reveal that no set policy was adhered to in the past
when a Service Representative was absent. While management was
concerned that adequate coverage be maintained in the Public Service
Unit, usually the employees on duty would arrange among themselves to
cover the calls and adjust their scheduled breaks accordingly.
Occasionally a supervisor would intercede and make the necessary
arrangement or revision. Adjustments were temporary, and a considerable
amount of flexibility was necessary to assure that incoming calls were
handled by the remaining representatives.
8. Shortly before October 8, several events prompted Tim Hassen, who
acted as administration assistant to the District Manager as well as
supervisor of Operations, to be concerned about the Public Service Unit.
Thus, an increase in public inquiries resulted from a change in the
Social Security law. Further, Betty Namath in the aforesaid unit was
ill and it was not known how long she would be absent. Hassen spoke to
Cruz Alvarez, who supervised the Public Service group, and instructed
him to discuss the situation with the Service Representatives. The
Operations Supervisor was particularly concerned that, of the three
representatives who were on duty in this unit, there would be two
individuals present at break times. He also wanted such coverage, if
possible, between 11:30 a.m. and 1:30 p.m.
9. Accordingly, on October 8, Alvarez called a meeting of the Public
Service Unit group /10/ regarding the coverage by those employees during
coffee breaks and at lunch times. He explained that Namath's absence
required a change in the scheduled breaks and lunches. Alvarez told the
Service Representatives that, while Cerven and Woodman would continue
their regular schedule of breaks and lunch times, Barsy would have a
different schedule. The supervisor stated that Barsy would take a
coffee break at 10:00 a.m., have a lunch period at 12:00 noon, and
another coffee break at 3:00 p.m. /11/
Union representative Nelson told Alvarez he couldn't make the change
unless he negotiated with the Union regarding same. The Supervisor
refused to negotiate the matter with Nelson, and he instructed the
Service Representatives to follow the schedule as outlined by him.
10. Record facts disclose that the PSU functioned with three Service
Representatives for a week to ten days. Namath returned shortly
thereafter, but she left again for a 3-week period. However, when
Namath left this time another employee was moved into the unit to join
Barsy, Cerven and Woodman. Since October 8 none of the four individuals
has been absent for more than about one day. During such brief absence
the other employees adjusted their schedules to provide adequate
coverage.
11. Barsy's testimony reflects that the change in her schedule
affected her ability to make appointments for personal business at lunch
hour. Moreover, she testified, under the new schedule "There wasn't
anybody I was going to break with. I couldn't go to lunch with
anybody."
Conclusions
Two principal contentions are made herein by the General Counsel:
(1) the change made by Respondent on October 8 of Service Representative
Helen Barsy's lunch hour and break periods was unilateral in nature and
in contravention of the Statute. It is asserted that the employer was
obligated to notify the Union herein, as well as bargain with the latter
regarding same, since the new schedule of her lunch and break hours was
a change in conditions of employment-- all in violation of Section
7116(a)(1) and (5); (2) the meeting with three Service Representatives
in the Public Service Unit on October 8 was a "formal discussion"
necessitating that the Union be afforded an opportunity to be present as
set forth in Section 7114(a)(2)(A) of the Statute. Failure to notify
the Union and allow it to be present as the representative of its
employees is alleged to be violative of Section 7116(a)(1), (5), and (8)
of the Statute.
(1) It is well settled in the public sector that an employer therein
may not unilaterally change conditions of employment. Management is
obliged to notify the union representative and, upon request, bargain
with the union in regard to any proposed change in employment
conditions. Moreover, the terms or conditions may be established by
past practice which existed for an extended period of time. Internal
Revenue Service and Brookhaven Service Center, 6 FLRA No. 127;
Department of the Navy, Naval Underwater Systems Center, Newport Naval
Base, 3 FLRA No. 64.
Respondent herein argues that the facts in the instant matter
disclose no change in a past practice regarding scheduled lunch hours
and break times. It insists that the record reflects it was common
practice to adjust schedules whenever a person in the Public Service
Unit was absent. In some instances it was handled by the remaining
employees themselves, while at other times the supervisor directed the
adjusted coverage. Thus, the employer asserts, flexibility was the rule
and the 'change' effected in Helen Barsy's schedule on October 8, was
consistent with past practice in maintaining adequate coverage.
General Counsel submits that the schedule change was not merely an
adjustment made to cover the unit during Namath's absence. The new
schedule, as it pertained to Barsy's lunch hour and break times, was a
departure from her regular arrangement and was permanent in nature. I
agree. While it is true that past practice required flexibility in
respect to coverage when a Service Representative was absent, the
employees in the Public Service Unit were on a specific schedule in
respect to lunch and break periods. Prior to October 8, Helen Barsy's
break times were set for 9:45 a.m. and 2:45 p.m., and her lunch hour was
11:30 a.m.-12:30 p.m. These hours were regularly followed and of a
permanent nature unless the absence of others on the unit required
temporary adjustments. There is no indication that management intended
to make the change, as it pertained to Barsy, anything other than
permanent when it revised her coffee breaks to 10:00 a.m. and 3:00 p.m.
and her lunch hour to 12:00 noon-1:00 p.m.
Nevertheless, and despite the change in Barsy's lunch and break
periods, the question arises as to whether there resulted a substantial
impact upon bargaining unit employees. It has been held that where
management takes action, albeit unilateral, which affects employees
insignificantly, no compulsion exists to bargain with the Union
regarding such conduct. Office of Program Operations, Field Operations,
Social Security Administration, San Francisco Region, 5 FLRA No. 45.
The cited case involved a temporary assignment of a field representative
as acting operations supervisor. The remaining representatives were
thereby required to conduct more interviews. However, the number of
interviews increased only slightly, and there was no change in the
duties of the employees. It was concluded that no obligation existed to
bargain with the Union regarding the impact of the decision to make the
assignment since the effect upon unit employees was insubstantial.
In the case at bar the change involved Service Representative Helen
Barsy's break periods and lunch hour. Her breaks were changed from 9:45
a.m. to 10:00 a.m. and from 2:45 p.m. to 3:00 p.m.; her lunch time was
altered from 11:30 a.m.-12:30 p.m. to 12:00 noon-1:00 p.m. Barsy's duty
hours, except for the foregoing, were not altered nor was any change
effected in her duties. This revision, applicable solely to one
employee, appears minimal and insubstantial to the undersigned. It
resulted in no change insofar as the other two Service Representatives
were concerned. There is no evidence which reflects that additional
duties were imposed upon them by reason of Barsy's taking a coffee break
15 minutes later or going to lunch one-half hour later each day.
Note is taken that in Department of the Air Force, Scott Air Force
Base, Illinois, 5 FLRA No. 2, a unilateral change by the employer
involving an increase of 15 minutes for lunch time, without bargaining
over the change, was held violative of the Statute. Several factors,
however, persuade the undersigned that the cited case is distinguishable
from the one at hand. In the Scott Air Force Base case, supra, the
employer also changed the workday to commence 15 minutes earlier so as
to accommodate the new lunch schedule. Further, the change involved 300
employees. The Respondent herein did not alter the starting or quitting
time for the Public Service Unit employees. Moreover, the revision
involved only one employee in said unit. In this context I conclude the
change herein was de minimis.
In testifying with respect to the impact upon her as a result of the
change, Barsy focused upon the fact that it affected her making personal
business appointments and that she could not go to lunch with anyone.
While her revised schedule may have caused some inconvenience, I am
constrained to conclude that the limited extent of the revision-- as
well as the absence of any marked effect upon the Public Service Unit
employees-- did not require bargaining with the Union herein in regard
thereto. Accordingly, I conclude that the unilateral change by
Respondent on Helen Barsy's break times and lunch hour on October 8,
1981 was de minimis and not violative of Section 7116(a)(1) and (5) of
the Statute.
(2) In respect to the allegation that Respondent conducted a "formal
discussion" on October 8, 1981 with employees and failed to notify the
Union in contravention of the Statute, I find it unnecessary to pass
upon this contention in view of my conclusion that the change in Barsy's
break periods and lunch hour was de minimis and resulted in no
substantial impact. /12/
Accordingly, and in view of the foregoing, it is concluded that
Respondent did not violate Section 7116(a)(1), (5) and (8) of the
Statute, and I recommend the Federal Labor Relations Authority adopt the
following:
ORDER
It is hereby Ordered that the Complaint in Case No. 9-CA-20033 be,
and the same hereby is, DISMISSED.
WILLIAM NAIMARK
Administrative Law Judge
Date: September 22, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce an employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Section 7114(a)(2)(A) provides:
Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/3/ section 7116(a)(8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/4/ Internal Revenue Service and Brookhaven Service Center, 6 FLRA
713 (1981); Department of the Navy, Naval Underwater Systems Center,
Newport Naval Base, 3 FLRA 412 (1980).
/5/ See American Federation of Government Employees, AFL-CIO, Local
2875 and Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Southern Fisheries
Center, Miami Laboratory, Florida, 5 FLRA 441 (1981) (Union Proposals 1,
2 and 3); U.S. Army Reserve Components Personnel and Administration
Center, St. Louis, Missouri, 19 FLRA No. 40 (1985).
/6/ Id.
/7/ U.S. Government Printing Office, 13 FLRA 203, at n. 4 (1983);
Department of Health and Human Services, Social Security Administration,
Chicago Region, 15 FLRA No. 174 (1984).
/8/ U.S. Army Reserve Components Personnel and Administration Center,
St. Louis, Missouri, supra note 5.
/9/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1981.
/10/ Service Representative Cerven, Woodman and Barsy attended. At
the request of Barsy, Claims Representative John Nelson, who acted as
the Union representative of the District Office employees, also was
present thereat.
/11/ Under the adjusted coverage, two Service Representatives were
always present during break times. Both under the prior schedule, as
well as after the change in Barsy's schedule, only one Service
Representative covered the phones between 12:00 noon and 1:00 p.m.
/12/ Assuming arguendo the aforementioned changes were not deemed
insubstantial and de minimis, I would nevertheless conclude that the
meeting on October 8, with the three employees was not a "formal
discussion" under Section 7114(a)(2)(A) of the Statute but an
announcement of a policy with no discussion or debate. Thus,
Respondent's failure to notify the Union and allow it to be present
would not be violative of the Statute. Office of Program Operations, et
al., 9 FLRA No. 9; Department of Defense, National Guard Bureau, Texas
et al., OALJ-81-121 (June 12, 1981).