[ v20 p374 ]
20:0374(38)CA
The decision of the Authority follows:
20 FLRA No. 38
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
WASHINGTON, D.C., AREA OFFICE
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-20086
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and contentions of the parties, the
Authority finds:
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) /1/ when, beginning on or about October 2, 1981, concerning the
reorganization of the Respondent's Loan Management Branch, it engaged in
a clear and patent breach of the parties' collective bargaining
agreement, bypassed the exclusive representative, and failed and refused
to negotiate with regard to the procedures leading to implementation of
the reorganization, and with regard to the impact thereof on adversely
affected employees.
At all times material herein, the Charging Party, American Federation
of Government Employees, AFL-CIO (the Union), has been the exclusive
representative of a consolidated unit of employees that includes the ten
loan specialists in the Respondent's Loan Management Branch of the
Washington, D.C. Area Office, and a collective bargaining agreement
between the parties covering those employees has been in effect. The
Loan Management Branch services projects for its clients which include
other components of the Agency, owners, managers, and tenants. Services
include reviewing financial statements, processing rent increases,
reviewing management agreements and plans, processing transfers of
physical assets, resolving audits, and handling complaints and problems
as they arise.
In July of 1981, /2/ the Respondent began plans for restructuring its
Loan Management Branch. On Friday, October 2, at approximately 4:00
p.m., the Union was notified, at a meeting held for that purpose, that a
reorganization of the Loan Management Branch would be implemented the
following Monday, October 5. At the meeting, the Union requested
negotiations with the Respondent concerning the procedures leading to
implementation of the reorganization, and concerning its impact on
adversely affected employees. The record does not show what response,
if any, was given. It does show that the Respondent stated that the
reorganization, in its opinion, would not have an adverse impact on any
of the employees in the bargaining unit. /3/ At approximately 4:30 p.m.
the same day, the Respondent notified the employees of the Branch that
the reorganization would be implemented the following Monday, October 5.
The reorganization in fact was implemented on October 19, when the
Respondent detailed three Branch employees to "unclassified duties" as
temporary team leaders, and redistributed the workload of all employees
of the Branch.
The Respondent argues that no unfair labor practice violation should
be found, as the reorganization was not a change that had a substantial
or adverse impact on unit employees, and that the reassignment of cases
was not a change in the amount or nature of the duties of any of the
unit employees. The Respondent relies upon the Authority's decision in
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 5 FLRA 333(1981).
There is no allegation or contention that the Agency owed a duty to
the Union to negotiate over the substance of its decision to reorganize
its Loan Management Branch, and it is not at issue herein. Rather, the
complaint alleges a failure to bargain over procedures and appropriate
arrangements for adversely affected employees resulting from such
reorganization pursuant to section 7106(b)(2) and (3) of the Statute.
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, Illinois,
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. /4/
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 nature and degree of the impact is
at issue between the parties. For the reasons which follow, we find
that the impact or reasonably foreseeable impact of the reorganization
of the Loan Management Branch on unit employees' conditions of
employment was no more than de minimis. Accordingly, it follows 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 either the procedures it would observe in
implementing the reorganization or appropriate arrangements for
adversely affected employees. In reaching this result, the Authority
notes, with respect to the nature of the change on unit employees'
conditions of employment, that the nature of the employees' work duties
remained the same. Thus, while cases were reassigned among the ten unit
employees, there is no showing that there was a change in the manner in
which cases thereafter were to be handled or in the overall case load of
individual Branch employees. The only change was the temporary
assignment of three of the ten employees in the Loan Management Branch
to unspecified "unclassified duties." The General Counsel points to the
fact that these temporary assignments were later extended, and argues
that the nature of the assignments was such as to disadvantage the other
seven Branch employees in their chances for future promotions. We note,
however, as to the first point, that even though the assignments were
extended, they remained temporary in nature. We find the latter point,
without any evidentiary support in the record, to be speculative and
unpersuasive. Further, the record shows that the ten Loan Management
Branch employees involved herein are part of either a consolidated unit
of professional employees or nonprofessional employees, including, among
others, all Washington, D.C. employees of the Agency. /5/ Accordingly,
any impact resulting from the reorganization of the Loan Management
Branch affected, at most, only ten unit employees in a consolidated
nationwide unit comprised of approximately 200 professional employees
or, in the alternative, in a consolidated nationwide unit of
approximately 8000 nonprofessional employees. Finally, the record does
not show any past practice or bargaining history which would indicate
how the parties had handled analogous changes.
Based on the totality of the facts and circumstances of this case,
and noting particularly that only three employees in a unit of either
approximately 200 or 8000 employees were assigned unspecified
"unclassified duties," that the record fails to establish that any other
unit employees were directly affected, and that the reorganization was
of temporary duration, the Authority concludes that the impact or
reasonably foreseeable impact of the change in unit employees'
conditions of employment was no more than de minimis. Therefore, the
Respondent was under no obligation to notify the Union /6/ 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 did not constitute a
violation of section 7116(a)(1), (5) or (8) of the Statute as alleged.
Further, the Authority concludes that the General Counsel has failed
to establish that the Respondent unlawfully bypassed the Union in
violation of section 7116(a)(1) and (5) of the Statute. In so finding,
the Authority notes particularly that on October 2, 1981, the Respondent
merely notified its employees of the proposed reorganization after
having so notified the Union, and that the stipulated record contains no
evidence that the Respondent attempted to deal directly with the
employees concerning their conditions of employment, or that its actions
in the circumstances constituted an attempt to undermine the status of
the Union as the exclusive representative of its employees.
Accordingly, we find that the Respondent, by notifying the employees of
the reorganization of October 2, 1981, did not violate section
7116(a)(1) or (5) of the Statute. /7/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20086 by, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., September 27, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116 provides, in pertinent part, as follows:
Section 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 any 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/ All dates hereinafter refer to 1981.
/3/ Jt. Exh. No. 8.
/4/ 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.
/5/ Since 1978, the American Federation of Government Employees,
AFL-CIO, has represented a nationwide consolidated unit of approximately
200 professional employees and a nationwide consolidated unit of
approximately 8,000 nonprofessional employees at the central and field
offices of the U.S. Department of Housing and Urban Development. See
Union Recognition in the Federal Government, published by the U.S.
Office of Personnel Management, at 391 (Jan. 1983). Both units,
however, are governed by one master collective bargaining agreement.
The record is not clear as to the professional or nonprofessional status
of the Branch employees involved herein.
/6/ In view of this conclusion, the Authority finds it unnecessary to
decide whether the Respondent's notice to the Union of the
reorganization on October 2 would have been considered adequate if the
reorganization had given rise to a duty to notify and bargain with the
Union pursuant to section 7106(b)(2) and (3) of the Statute. Moreover,
the Authority finds it unnecessary to address the allegation that the
Respondent committed a clear and patent breach of the terms of the
parties' negotiated agreement in violation of section 7116(a)(1) and (5)
of the Statute. But see Department of Defense, Department of the Army,
Headquarters, XVIII Airborne Corps, and Fort Bragg, 15 FLRA No. 150, n.
2(1984), and cases cited therein. See also Defense Logistics Agency,
Defense Depot Tracy, Tracy, California, 16 FLRA No. 142(1984).
/7/ See General Services Administration, Region 8, Denver, Colorado,
19 FLRA No. 2(1985); U.S. Department of Housing and Urban Development,
15 FLRA No. 89(1984). See generally Internal Revenue Service (District,
Region, National Office Units), 19 FLRA No. 48(1985).