16:0217(32)CA - HHS, SSA, Baltimore, MD and AFGE -- 1984 FLRAdec CA
[ v16 p217 ]
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 Commission, A/SLMR No. 1016 where management expressly declared at a meeting with the union that it was not obliged to negotiate. The employer therein refused to negotiate, but agreed to consult with the union, and was found to have breached its obligation under the Order. /17/ No "overriding exigency" need exist for the employer to implement its change unless the matter has been submitted to the Panel. The existence of a legitimate impasse between the parties, after bona fide negotiations, is sufficient for such implementation. /18/ See U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39 where the employer gave eight days notice of intent to implement revised regulations, and the union gave no indication of an intent, prior to implementation, to seek assistance from the FSIP. To the same effect see the decision of Administrative Law Judge William Devaney in U.S. Customs Service, 3-CA-439, issued October 16, 1981.