16:0217(32)CA - HHS, SSA, Baltimore, MD and AFGE -- 1984 FLRAdec CA



[ v16 p217 ]
16:0217(32)CA
The decision of the Authority follows:


 16 FLRA No. 32
 
 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-966
 
                            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.  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 /1/ and recommendation that the complaint
 be dismissed.  Thus, in the facts and circumstances of this case, the
 Authority finds that the Respondent did not violate the Statute as
 alleged.  /2/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 9-CA-966 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., October 3, 1984
 
                                       Henry B. Frazier, III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    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-966
 
    Daniel H. Green, Esq.
    For the Respondent
 
    Josanna Berkow, Esq.
    For the General Counsel
 
    Vince Morgante
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute or the Act).  It is based
 on a first amended charge filed on April 9, 1981 by American Federation
 of Government Employees, AFL-CIO (herein called the Union), against
 Department of Health & Human Services, Social Security Administration,
 Baltimore, Maryland (herein called the Respondent).
 
    A Complaint and Notice of Hearing, based on said amended charge, was
 issued on June 26, 1981 by the Regional Director for the Federal Labor
 Relations Authority, San Francisco, California Region.  The said
 complaint alleged, in substance, that on or about February 18, 1981 /3/
 Respondent unilaterally implemented changes in working conditions of
 unit employees at its Fremont office by moving 14 employees prior to
 completing negotiations with the Union-- all in violation of Sections
 7116(a)(1) and (5) of the Statute.
 
    Respondent filed an answer to the complaint, dated July 10, 1981, in
 which it denied the aforesaid allegation as well as the commission of
 any unfair labor practices.
 
    A hearing was held before the undersigned on August 20, 1981 at San
 Francisco, California.  All parties were represented thereat, and each
 was afforded full opportunity to be heard, to adduce evidence, and
 examine as well as cross examine witnesses.  Thereafter briefs were
 filed with the undersigned which have been duly considered.  /4/
 
    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.  The Social Security Administration operates a branch office at
 Fremont, California under its Haywood District.  This office processes
 claims filed by the public for social security benefits (entitlement)
 under a designated classification of Title II, as well as claims for
 supplemental security income (welfare) classified as Title XVI.  Its
 normal complement of employees has consisted of the following:  1
 manager, 2 supervisors, 11 claims representatives (herein called CRs), 4
 service representatives, 5 clerical (herein called CDCs at times), 4
 data review technicians, and 1 administrative aide.
 
    2.  Respondent has utilized a module system at the Fremont office
 under which there were two CRs (one from each Title) and a clerical
 assigned to both representatives in each module.  This arrangement,
 which prevailed until February 27, 1981, /5/ provided for all those on
 one side of the office to be supervised by a particular person, while
 another individual supervised those on the other side.  Further, the
 clericals split the Title II and Title XVI workload prior to said date.
 
    3.  At all times material herein the Union and Respondent have been
 and still are, parties to a written collective bargaining agreement
 covering the employees in the Fremont office who are involved herein.
 Pertinent provisions included in the said agreement include the
 following:
 
    Article 1.  Definitions /6/
 
          No. 4.  Collective bargaining is defined as the obligation of
       the parties to meet at reasonable times and confer in good faith
       per Executive Order 11491, as amended, Section 11(a).
 
          No. 5.  Meet at reasonable times and confer in good faith
       refers to the process of negotiation.
 
          No. 6.  Negotiation is a meeting between the parties wherein
       they seek agreement, and, in lieu thereof, seek third party
       assistance to reach agreement.
 
          No. 7.  Consultation is the process whereby the appropriate
       official shall notify the Union of proposed changes in personnel
       policies, practices and matters affecting working conditions
       within that official's jurisdiction.  The parties will fully
       explore and consider each other's views before taking Decisive
       action.  Except in emergencies, short deadlines, or similar
       situations the receiving party will be notified adequately in
       advance of a change to prepare its view and suggest changes to the
       party desiring a change.  The Council may consult in person at
       reasonable times, on request, with appropriate officials, on
       personnel policy matters and at all times present its views in
       writing.
 
    4.  Memorandum dated May 18, 1971 (G.C. Exhibit 13) was sent to all
 Area Directors, including branch, from Respondent's Assistant Regional
 Commissioner, Field Operations.  It declared that Respondent has always
 believed it was merely required to consult on changes in working
 conditions, but that the FLRA had decided otherwise.  While it continued
 to adhere to that view, pending appeal, management advised its various
 heads to discuss all proposals with the union, exchange views without
 labelling it negotiation or consultation, and obtain union input re
 impact and implementation.  Further, the managers were admonished to
 give serious consideration to counterproposals, and give reasons for
 declining to adopt union suggestions.  /7/
 
    5.  Another memo, dated July 8, 1981 (G.C. Exhibit 14), informed the
 managers that Respondent has accepted the FLRA's position that the Union
 has not waived its right to bargain or negotiate at the District Level
 based on the written agreement between the parties.  This holding
 collided with Respondent's interpretation of the agreement.  The memo
 further advised that managers should heed Section 7106 of the Act re
 "Management Rights";  that "demands" for negotiations of work
 assignments should be rejected;  that permissive areas should not be
 negotiated;  and that, with respect to requests to negotiate procedures
 which the employer will observe in exercising management rights, the
 managers should be guided by the May 18, 1981 memo.
 
    6.  In January the Fremont office lost a clerical employee whom it
 was unable to replace due to the freeze in hiring.  Supervisor Teresa
 Toscano's testimony reflects that this posed a problem in respect to the
 distribution of the work to the remaining four clericals.  On her side
 of the room two clericals worked with seven CRs, while the two remaining
 clericals were assigned to four CRs in the other section.  This left one
 unit composed of a Title II and a Title XVI CRwithout clerical coverage,
 and a CRhired in December 1980 also had no clerical assistance.  Toscano
 further testified that she tried to assign, in her section, one clerical
 with four CRs and the other clerical with three CRs.  However, the work
 was not being completed and this solution was unsatisfactory.
 Management then tried having a clerical from the other side of the room
 spend half her day working in a unit which had insufficient coverage,
 but this did not solve the problem.  Further, if one clerical failed to
 report, it resulted in considerable shifting of tasks and a larger back
 up of work.  The clericals complained of being overworked, and the CR's
 complained that they were required to do clerical chores.
 
    7(a).  On February 18 management met with the Union in the morning in
 order to discuss the processing of redetermination cases.  /8/ The
 employer, concerned about the large volume of redet claims, made some
 proposals to achieve prompt disposition thereof.  These proposals were
 related by Susan A. Bailey, union representative who met with
 management, to the employees in the form of a written memorandum.
 
    (b) Another meeting occurred between the parties in the afternoon of
 February 18.  Branch manager, John Hernandez, along with supervisors
 Toscano and Lourdes Cruz, met with union agent Bailey.  Toscano
 explained that because of the clerical shortage and the problems
 encountered as a result thereof, management had decided to redistribute
 the clerical work in the office.  The plan called for specializing the
 clerical tasks, so that each clerical would work on Title II or Title
 XVI cases.  Thus, two clerks would be attached to each title, and work
 assigned on an alphabetical breakdown basis.  As explained, the Title
 XVI CRs would move to the front of the office and the Title II CRs move
 to the rear of the room.  /9/ Toscano detailed the proposed change to
 Bailey, and the supervisor stated the reasons therefor.  The union agent
 stated the idea was "crazy" since it involved moving many individuals
 despite the loss of only one clerical;  further, Bailey mentioned that
 she did the clerical work as required.  Supervisor Toscano asked Bailey
 to respond to the suggested plan re specializing clericals.  The union
 representative replied she would speak to the employees and report back
 to management on February 20.
 
    8.  A resume of the proposed move was distributed by Bailey to the
 employees on February 19.  Objections to the plan were voiced by the
 workers.  They disliked splitting the work by title since specialization
 in one would mean losing expertise in the other.  Further, it was easier
 to perform their tasks under the present set up.  After reviewing the
 planned move one of the employees drew up a seating chart as an
 alternative to the change proposed by the employer.
 
    9.  The parties met again on February 20 /10/ at which time they
 engaged in considerable discussion concerning the proposed plan to move
 the employees.  The Union presented two alternatives to management's
 proposal:  (1) rotate the clericals with the unit IV which had no
 clerical, and require everyone (including CRs) to share the burden of
 the clerical shortage;  (2) move four individuals, instead of the number
 intended by the employer, if specialization was necessary.  This idea
 was reduced to writing in the form of a chart prepared by a clerical and
 submitted by the Union to Toscano at this meeting.
 
    In respect to the suggested rotation of clericals and the sharing of
 their work, management told Baily it did not believe this proposal was
 feasible.  The reasons behind the objection were also explained by the
 employer's representative.  /11/
 
    The Union, in suggesting the movement of four people rather than an
 anticipated 14, submitted a written chart prepared by a clerical.  This
 idea was discussed by both parties, and management stated that the
 proposal would not work.  Toscano said it would still result in an
 unequal distribution of the clerical workload since three clericals
 would have three CRs and one clerical would have two CRs.  Further,
 Karen Munson was going to be a Title II reviewer-- not an interviewer.
 If the employer left her sitting, as proposed, she wouldn't be in a
 quiet area to adjudicate her claims.  Thus, six employees would, in
 Toscano's words, be moved in any event.  /12/
 
    Bailey also advised Toscano at this meeting that one of the clericals
 wanted to be in Title II and not go with Title XVI.  Management agreed
 to put the employee in Title II and to move her desk accordingly.  The
 union representative also commented that two clericals did not want to
 sit next to each other, and Toscano consented to separate them.
 Further, management agreed to abide by Karen Munson's preference to be a
 reviewer rather than handle teleclaims.  At the conclusion of the
 meeting Toscano told the union representative that unless the Union came
 up with another plan, which would be workable, management intended to
 implement the move on February 27.  Bailey replied she would speak to
 the employees although she did not agree with the employee's proposed
 arrangement.
 
    10.  The parties met again on February 23 and resumed discussion as
 to the proposed move.  Bailey was given a seating assignment (not in
 writing) as to which CRs would be in Title II and in Title XVI, along
 with the named clericals attached to each title.  /13/
 
    11.  Management conducted two meetings with the Union representatives
 and employees on February 24 at which times discussions ensued re the
 contemplated move of office personnel.
 
    (a) In the morning of said date Bailey and Arlene Bifano, who
 prepared the counterproposal in the form of a chart previously submitted
 to management on February 20, met with Toscano regarding that proposal.
 Toscano was asked why it had not been accepted.  The supervisor
 explained that an uneven distribution of the workload still remained.
 Further, the reviewer had to be moved to the back of the room.
 
    (b) At the conclusion of the aforesaid discussion Bailey asked
 Toscano to speak to the staff and explain the reason for the move as
 well as the manner in which it would be accomplished.  Toscano met with
 the employees and questions were asked by several members of the staff
 re, inter alia, assignments of CDC to CRs and when employees should move
 if they were not in attendence on Friday, February 27.  Toscano
 explained that nobody would be assigned to a CDC, that they were going
 to be working on an alphabetical basis and would have at least two
 clericals to work with.  She also informed the staff that the new set-up
 would take effect on February 27.  No objections were registered to the
 statements or explanation made by the supervisor.
 
    12.  The union representatives thereafter conferred with the
 employees again regarding the specialized plan to be implemented on
 February 27.  Together they composed a memo on February 25, addressed to
 manager Hernandez, in which Bailey stated that the staff requested a
 postponement of the office changes;  that the employees wanted more time
 to make counterproposals;  that the uneven distribution of CDC workload
 was an isolated difficulty which should not require disruption of the
 office;  and that the employees felt management has not given due
 consideration to the proposals submitted to it.
 
    13.  On February 26 Bailey met again with Toscano and submitted the
 memo, heretofore mentioned, wherein a request was made of management to
 postpone the changes scheduled to be made on February 27.  The parties
 discussed the planned move again.  Bailey also gave Toscano another
 counterproposal which, with four modules, assigned each of three
 clericals to three CRs and one clerical to two CRs.  Further, under this
 assignment Title II and XVI would be together.  /14/ Toscano told Bailey
 that she did not feel it was an equal distribution of work and the plan
 was not as good as the one devised by Respondent.  The meeting was
 terminated after the supervisor stated she would talk to Hernandez re
 the memo and then report back to Bailey.
 
    14.  During the morning of February 27 manager Hernandez called
 Bailey into his office.  He mentioned having received the memo re a
 request to defer the contemplated move, but stated that too much time
 had been spent in the reorganization.  Hernandez told the union
 representative that the Union had not come up with a better plan, and
 thus management would implement its move (as discussed on February 18)
 right away.  Bailey said he should proceed, but she advised the manager
 that the Union did not agree with it.
 
    Hernandez held a staff meeting following his discussion with Bailey,
 at which time he informed the office group that the parties had agreed
 upon a workable solution;  that the contemplated move of personnel would
 take place after the meeting.
 
    15.  The reorganization took place on February 27.  Eight CRs moved
 on that date in accordance with the plan devised by management, and two
 clericals were relocated subsequently.  The office structure, as
 reorganized by Respondent on said date, continues to the present time.
 The matter has never been submitted to mediation, nor were arrangements
 made for voluntary settlement.  Neither did the Union indicate to
 Respondent that it intended to invoke the services of The Impasses
 Panel.
 
                                Conclusions
 
    The ultimate question to be decided herein is whether the relocation
 by Respondent of the office staff on February 27 was undertaken in
 derogation of its duty to bargain with the Union.  General Counsel
 insists that management failed to negotiate its reorganization of claims
 representatives as well as clericals and thus ran afoul of Section
 7116(a)(1) and (5) of the Act.  In support of this argument it is
 contended that Respondent's policy, as reflected in its intra-agency
 memos, is to consult rather than bargain.  Further, it is asserted that
 the employer gave little consideration to the Union's proposals or its
 request to defer implementation.  Rather, the General Counsel argues,
 management hastened to effect the changes without demonstrating any
 significant exigency therefor.
 
    An initial determination is warranted as to whether Respondent herein
 was required to bargain or negotiate as to the decision to reorganize
 the office staff.  Case law in the public sector makes it evident that,
 under Section 7106 of the Statute, the right to assign work as well as
 assign employees to positions or duties, is a management prerogative.
 An employer need not bargain re the decision to make assignments or
 reassignments.  It may make periodic work assignment, or assign
 continuing duties, at its discretion.  National Treasury Employees Union
 and Department of Treasury, Bureau of Public Debt, 3 FLRA No. 119.
 American Federation of Government Employees, AFL-CIO, Local 3529 and
 Defense Contract Audit Agency, 3 FLRA No. 46.
 
    In the case at bar Respondent's decision to relocate the office staff
 involved an assignment, or reassignment, of personnel in order to
 conduct business.  The employer's reorganization plan resulted in
 altering the assignments of the four clericals so that, instead of each
 working with a CRfrom both titles, two of them would be assigned to CRs
 in Title II and two assigned to CRs in Title XVI.  Moreover, the work
 was assigned in alphabetical breakdown which was a departure from past
 practice.  This specialization of clericals caused a reassigning of
 stations at which the staff worked, and changed the mode of operations
 based on the new assignments.  As such, I am constrained to conclude
 that Respondent was privileged to decide to relocate the office staff
 and that it was not incumbent upon the employer to bargain re the
 decision with the Union herein.
 
    It is equally clear that, despite the privilege accorded management
 to make decisions re assignments of work or positions which are
 non-negotiable, an employer is obliged to bargain as to their impact
 upon unit employees.  Where it is established that changes or
 modifications by management, including assignments, result in an adverse
 impact upon employees, the employer must afford a union an opportunity
 to bargain re such impact as well as the implementation thereof.
 Department of Defense, Department of the Navy, Consolidated Civilian
 Personnel Office, 1 FLRA No, 80;  Department of the Treasury, Internal
 Revenue Service, Greensboro District Office, A/SLMR No. 1007;  see also
 Decision of Administrative Law Judge Francis E. Dowd in United States
 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
 Washington, D.C. and Its Central Region, Case No. 5-CA-592, (April 20,
 1982).
 
    Contrary to the contention made by the General Counsel herein, I
 conclude the record reflects that Respondent gave sufficient
 notification to the Union re its planned changes of the office staff;
 that, further, it bargained with the Union as to the impact /15/ of the
 reassignments and their implementation.  While I agree with the General
 Counsel that no agreement was reached between the parties in respect to
 the relocation, record facts convince me that Respondent and the Union
 did engage in negotiations thereon.  Thus, commencing re February 18
 supervisor Toscano discussed the impending move and gave details thereof
 to the Union representative.  When Bailey submitted counterproposals on
 February 20, Toscano discussed them and, although rejecting same as not
 alleviating the inequitable distribution of the clerical work, she
 explained why management deemed the union proposals inadequate.
 Moreover, the chart submitted by the bargaining agent was considered by
 the supervisor who contended the arrangement suggested by the Union
 resulted in three clericals working with three CRs and one clerical with
 two CRs.  Toscano also pointed out that office worker Karen Munson would
 not, as a Title II reviewer, be in a quiet place to handle claims.  When
 Bailey advised the supervisor that one of the clericals wanted to be in
 Title II rather than Title XVI, Toscano agreed to put the clerical in
 Title II and move her desk.  When Bailey mentioned that two of the
 clericals were adverse to sitting next to one another, Toscano consented
 to separate them.  At the conclusion of the meeting the supervisor
 informed the Union that, unless some better suggestion was forthcoming,
 management intended to implement the move on February 27.  The foregoing
 demonstrates a "give and take" position on the part of Respondent with
 respect to the relocation, and the concessions granted by management
 shows, in my opinion, that the employer engaged in bargaining.
 
    Subsequent discussions between the parties reinforces the conclusions
 that good faith negotiations occurred.  Thus, on February 23 the parties
 resumed discussions, and on February 24 Toscano met with Bailey in the
 morning as well as with the Union representative and employees in the
 afternoon.  At the earlier session the supervisor discussed a chart
 prepared by a clerical as an alternative to the proposed reorganization.
  Toscano explained why she believed the said suggestion by the Union
 would still leave an uneven distribution of the workload.  In the later
 session, at the request of Bailey, Toscano spoke to employees re the
 locations of the staff upon the reorganization, and she answered
 questions raised by the employees.  Once again the parties met to
 discuss another counterproposal by the Union.  On February 26 Toscano
 discussed a proposal submitted that date and told Bailey it was not
 better than the one to be implemented.  In addition, Bailey gave
 management a request to defer implementation of the planned move.
 Finally, on February 27 manager Hernandez met again with Bailey, advised
 her he couldn't defer the move because of the very large intake of redet
 cases, and stated that the relocation would begin that day.
 
    The continued meetings and discussions between the parties re the
 relocation of the office staff persuades me that management did not
 enter into negotiations with a fixed determination to implement its plan
 and not bargain with the Union thereon.  Apart from the fact that it
 agreed to several proposals by Bailey concerning individual placement,
 Respondent met five times with the Union official and discussed the
 merits of the planned move as well as the inadequacies of counter
 suggestions introduced by the bargaining agent.  Moreover, management
 yielded to several objections raised by individuals re their work
 station after the move.  The meetings and discussions in this context
 are not reflective of "surface" bargaining, and I am satisfied that
 Respondent fulfilled its duty to negotiate the impact and implementation
 of the reassignment.
 
    Consideration has been given to General Counsel's argument that the
 intra-agency memos re Respondent's obligation to consult, rather than
 negotiate, is indicative of a failure to bargain with the Union.  While
 Respondent has adhered to the view in the past that the contractural
 clauses regarding "consultation" constituted a waiver by the union of a
 "bargaining" commitment in the part of management, the said memos do not
 preclude the managers from negotiating as to impact and implementation.
 The language contained in the memo of May 18, 1981 instructs the
 managers to consider and discuss all proposals by the Union without
 labelling the discussion "negotiation" or "consultation", and to receive
 all input from the bargaining agent.  Moreover, Hernandez testified the
 policy was to try and reach an agreement with the Union after consulting
 with the latter and considering its input and proposals.  Although I
 agree with General Counsel that the Union did not waive its right to
 negotiate on the matter at issue, neither do I conclude that management
 limited its conduct to mere consultation re the relocation of the staff.
  /16/ Respondent has conceded that it was required to bargain re impact
 and implementation and I am persuaded-- the aforesaid memos
 notwithstanding-- that the discussions and meetings between the parties
 may be properly characterized as collective bargaining required by the
 Act.
 
    It is also true that an employer is free to impose changes not
 exceeding its proposals after bargaining to impasse with the union.  See
 U.S. Army Corps of Engineers, Philadelphia District, A/SLMR No. 673.
 Thus, if negotiations have exhausted the prospects of concluding an
 agreement, agency management does not violate the Act by putting its
 proposals into effect.  Respondent argues that no such impasse existed
 herein.  It focuses upon the definition of "impasse" as set forth in
 Section 2470.2(e) of the Authority's Rules and Regulations, and contends
 that there could not be an impasse in the absence of mediation efforts.
 Moreover, it insists bargaining had not terminated at the time of the
 relocation on February 27.
 
    In respect to Section 2470.2(e) as aforesaid, I do not construe the
 language therein as prohibiting an agency and a union, who are engaged
 in bargaining, from reaching an impasse unless either party resorts to
 mediation or other voluntary means of settlement.  Whatever connotation
 is placed upon the definition of "impasse", as used in Section
 2470.2(e), the term is defined as applicable to procedures which must be
 followed in resorting to the Federal Service Impasses Panel.  It may
 well be that before a party can invoke the services of this Panel it
 must be clear that, after the parties have failed to reach agreement,
 they have also resorted to settlement efforts.  However, the failure to
 reach an agreement after having negotiated may, apart from the separate
 provisions of the aforesaid Rule, result in an impasse between parties
 who are engaged in collective bargaining.  See U.S. Department of the
 Treasury, Internal Revenue Service, Cleveland, Ohio, A/SLMR No. 972
 (where an impasse was reached absent any request for the services of the
 Panel, and the parties had not resorted to settlement means).  If, as
 here, parties negotiate an impending change by the employer of working
 condition, but are unable to agree thereon, they have reached an
 impasse.  If the matter has been submitted to the Federal Service
 Impasses Panel, then, in the absence of an overriding exigency, /17/ the
 status quo must be maintained before the change can be effectuated.
 Department of the Treasury, Internal Revenue Service, Brookhaven Service
 Center, A/SLMR No. 859;  U.S. Army Corps of Engineers, Philadelphia
 District, supra.
 
    In the instant case no such request was made to invoke the Panel, and
 more than a week elapsed between the commencement and conclusion of
 negotiations to enable the Union to exercise such option under the
 circumstances herein.  I am constrained to find the parties had, on
 February 27, failed to reach agreement after continual negotiations;
 that the Respondent had bargained in good faith re the contemplated
 move;  that an impasse between the parties had resulted;  and that the
 union was not foreclosed by management from invoking the Impasse Panel.
 Accordingly, Respondent was entitled to implement its plan for moving
 the claims representatives and the clericals without violating the
 Statute.  /18/
 
    In view of the foregoing, I conclude Respondent did not violate
 Sections 7116(a)(1) and (5) of the Statute as alleged herein.
 Accordingly, I recommend the complaint in Case No. 9-CA-966 be
 dismissed.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  April 28, 1982
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In adopting the Judge's conclusion that the Respondent did not
 violate section 7116(a)(1) and (5) of the Statute in the circumstances
 presented, the Authority does not adopt the Judge's statement at
 
 
 footnote 15 of his Decision that "changes by management must involve a
 substantial, or adverse, impact upon unit employees to require an
 employee to bargain thereon." Subsequent to the issuance of the Judge's
 Decision in the instant case, the Authority rejected the "substantial
 adverse impact" test and instead held that where an agency in exercising
 a management right under section 7106 of the Statute changes conditions
 of employment or unit employees, a statutory duty to negotiate comes
 into play where such change results in an impact upon unit employees or
 such impact is reasonably foreseeable.  U.S. Government Printing Office,
 13 FLRA No. 39 (1983).  In this regard, the Authority has also stated
 that no duty to bargain arises where the exercise of a management right
 has resulted 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).  In any event, as found by the Judge,
 the Respondent in fact fulfilled its duty to bargain herein.
 
 
    /2/ See U.S. Customs Service, 16 FLRA No. 31 (1984).
 
 
    /3/ At the hearing General Counsel amended paragraph 6 of the
 Complaint by changing the date from February 18 to February 27.
 
 
    /4/ Subsequent to the hearing General Counsel filed with the
 undersigned a Motion to Correct Transcript.  No objection having been
 interposed thereto, and it appearing that the corrections are proper,
 the motion is granted.  The transcript is hereby corrected as reflected
 in APPENDIX which is annexed to this decision.
 
 
    /5/ All dates hereinafter mentioned occur in 1981 unless otherwise
 specified.
 
 
    /6/ The contract also contains, in Article 3, a provision designated
 as "Council-Region Consultations" which provides for four meetings each
 year to engage in consultation re personnel policies, practices and
 matters affecting working conditions.
 
 
    /7/ Fremont Branch Manager testified the region was obliged to
 consult with the Union, ask for impact, ask for alternate ways of doing
 business, consider the union's proposals and try to reach agreement.
 
 
    /8/ Redetermination cases (called redets) involve people who are
 getting supplemental security income benefits.  Each year their status
 must be reviewed to assure that these individuals meet the requirements
 for continued benefits.  In February 1981, the office had received 1,025
 more redet cases than were received in February 1980 (redets are usually
 received in said month).
 
 
    /9/ The original plan proposed moving 14 CRs but, as executed, only
 10 such employees were moved.  Although management did not specify which
 individuals would move, it did explain where they would sit in the new
 arrangement.
 
 
    /10/ There is conflicting testimony as to whether Hernandez was
 present at this meeting as well as certain others.  Since the record
 reflects the details as to what transpired at each, I find it
 unnecessary to resolve this conflict.
 
 
    /11/ Although Bailey testified that management gave her the reasons
 why this suggestion would not be satisfactory, such reasons are not set
 forth in the record.
 
 
    /12/ Toscano's testimony reveals the employer contemplated, at that
 juncture, moving eight individuals.
 
 
    /13/ As set forth by the Union in G.C. Exhibit 8 this called for
 moving eight CRs-- and two CDCs would be assigned to Title II and two
 CDCs to Title XVI.
 
 
    /14/ Contrariwise, Toscano testified this proposal was her idea,
 which she suggested and rejected herself;  that Bailey copied it at this
 meeting after the supervisor delineated it in detail;  that Bailey did
 not present it (G.C. Exhibit 10) to management.  While I have accepted
 Bailey's version of the event, I am satisfied the plan was discussed on
 February 26 and that Toscano presented her objections to it at that
 meeting.
 
 
    /15/ Past cases have established that changes by management must
 involve a substantial, or adverse, impact upon unit employees to require
 an employer to bargain thereon.  I am satisfied, in the case at bar,
 that the moving of personnel and change of assignments produced
 substantial impact upon the office staff to require negotiating by
 Respondent as to such impact as well as implementation.
 
 
    /16/ Cf. Equal Employment Opportunity Commi