18:0743(87)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA



[ v18 p743 ]
18:0743(87)CA
The decision of the Authority follows:


 18 FLRA No. 87
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICE, SOCIAL SECURITY 
 ADMINISTRATION, BALTIMORE, MARYLAND 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 8-CA-30094
 
                            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.  Exceptions to the
 Judge's Decision were filed by the General Counsel.
 
    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.
 
    It is alleged that the Respondent changed conditions of employment
 without completing bargaining with the Charging Party on the
 implementation and impact of the change.  In agreement with the Judge,
 the Authority concludes that the Respondent did not change conditions of
 employment, but acted in accordance with past practice in selecting the
 employees to be transferred herein.  We find, therefore, that the
 Respondent had no duty to bargain in this regard.
 
    Assuming without deciding that the impact or reasonably foreseeable
 impact of the transfers on the two affected employees was more than de
 minimis and therefore sufficient to give rise to the Respondent's duty
 to bargain, /1/ the Authority has concluded that the Charging Party had
 sufficient notice of their transfers and sufficient opportunity to
 request bargaining or proffer proposals regarding their particular
 circumstances.  This is not what the exclusive representative sought.
 Instead, it proffered proposals to the Respondent only with regard to
 whether the Respondent's past practice concerning the selection of
 employees for transfer ought to be changed.  There being no proposals
 before it pertaining to procedures or appropriate arrangements as to any
 such selections, the Authority concludes that the Respondent did not
 fail or refuse to bargain concerning the procedures which management
 would observe with regard to such transfers and appropriate arrangements
 for employees adversely affected by the transfers.  /2/ Accordingly, it
 is concluded that the complaint, alleging that the Respondent changed a
 past practice regarding conditions of employment by failing and refusing
 to bargain over the procedures and appropriate arrangements with regard
 to particular selections for transfer, must be dismissed.  /3/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 8-CA-30094 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 26, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Daniel H. Green
    For the Respondent
 
    Barbara Lawson
    For the Charging Party
 
    Jonathan S. Levine, Esq.
    E. A. Jones, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101 et seq.  It was instituted by the Regional Director of the
 Eighth Region of the Federal Labor Relations Authority by the issuance
 of a Complaint and Notice of Hearing on March 22, 1983.  The Complaint
 was issued by the Regional Director following his investigation of a
 charge filed on December 20, 1982 by American Federation of Government
 Employees, AFL-CIO, herein referred to as the Union, Charging Party or
 AFGE.
 
    The Complaint alleges that Department of Health and Human Services,
 Social Security Administration, Baltimore, Maryland, herein referred to
 as Respondent, violated Sections 7116(a)(1) and (5) of the Statute by
 the following conduct:
 
          On or about December 13, 1982, Respondent, through Jaramillo
       and/or Fernandez, unilaterally changed working conditions of the
       employees described in paragraph 2 above at its Huntington Park,
       California, and Downey, California, facilities by permanently
       transferring one bargaining unit employee from Respondent's
       Downey, California, facility to Respondent's Huntington Park,
       California, facility;  and permanently transferring another
       bargaining unit employee from Respondent's Huntington Park,
       California, facility to Respondent's Downey, California, facility,
       without first providing the Union with an opportunity to complete
       bargaining over the implementation of the change and its adverse
       impact on unit employees.
 
 In its Answer, Respondent denies committing any violation of the
 Statute.  In its brief, Respondent argues that there was no change in
 working conditions sufficient to trigger an obligation to bargain since
 there existed in the Huntington Park District a past practice concurred
 in by the Union for at least seven years permitting such reassignments
 within the District without formal negotiations.  Stated differently,
 the Union waived its right to bargain.  As a second defense Respondent
 contends there was no "substantial impact" upon employees or their
 working conditions and therefore no bargaining obligation.
 
    A hearing was held in Los Angeles, California at which time the
 parties were represented by counsel and afforded full opportunity to
 adduce evidence and call, examine, and cross-examine witnesses and argue
 orally.  Briefs filed by Respondent and the General Counsel have been
 duly considered.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                  Findings of Fact and Conclusions of Law
 
    1.  Respondent is an agency and the Union is a labor organization
 within the meaning of Sections 7103(a)(3) and (4), respectively.
 
    2.  On August 30, 1979, the Union was certified as the exclusive
 representative of a national consolidated unit consisting of, among
 other units, the following unit:  "All General Schedule (GS) employees
 in Region IX (San Francisco Region), Bureau of District Office
 Operations, Social Security.Administration, Department of Health,
 Education and Welfare, excluding management officials, supervisors,
 guards, professionals, employees engaged in Federal Personnel work in
 other than a purely clerical capacity, NYC, WIN, Work-Study employees
 and employees employed in the District Office at Redding."
 
    3.  Since on or about June 11, 1982, the Union and Respondent have
 been parties to a nationwide collective-bargaining agreement covering
 the employees in the nationwide unit described in paragraph 2 above,
 which includes employees of Respondent's Huntington Park, California,
 District Office and of Respondent's Downey, California, Branch Office.
 
    4.  By virtue of the certification described in paragraph 2 above and
 the collective-bargaining agreement described in paragraph 3 above, the
 Union has been, and is now, the exclusive representative of the
 employees in the unit described in paragraph 2 above.
 
    5.  At all times material herein, Leo Fernandez, has occupied the
 position of District Manager and Ruth C. Jaramillo has occupied the
 position of Assistant District Manager at Respondent's Huntington Park,
 California, District Office.  I find that Fernandez and Jaramillo are
 supervisors within the meaning of Section 7103(a)(10) of the Statute,
 and are agents of Respondent.
 
    6.  As District Manager since 1974, Fernandez has administrative
 responsibility over the Branch Offices in Downey and University Village,
 California.  The Downey office is eight to nine miles from Huntington
 Park.  Fernandez testified that staffing patterns were based upon a
 percentage of work units.  A work unit is a unit of measurement for work
 accomplished per individual.  Thus, a factor is assigned for each type
 of work like disability claims, redeterminations, and CDI interviews.
 When there is a hiring freeze and/or when there are vacancies caused by
 losses of personnel, a particular District or Branch office may have a
 staffing "overage" or "shortage." Fernandez has discretion to correct
 staffing imbalances by making inter-office reassignments within his
 district.  In preparation for the hearing, Fernandez reviewed his 7-B
 extention cards which show all personnel actions experienced by an
 individual employee of Respondent, including promotions, demotions,
 AWOL, and change of duty station.  Copies of about 40 of these 7-B cards
 were received as Resp. Exh. No. 1.  Several employees had more than one
 reassignment.  The testimony of Fernandez indicates that some
 reassignments were initiated by employees and accommodated by
 Respondent;  others were initiated by Respondent and the reassignment
 was either voluntary or involuntary.  According to the credited
 testimony of Fernandez, at least 12 of the reassignments were
 involuntary over this period (Kimbrough, Wright, Mason, Woodson, Walker,
 Kimbrough (again), Wade, Clark, Raishart, Bazile, Raishart (again) and
 Acosta.  The testimony of Jaramillo, Fuller and Haas was corroborative.
 
    7.  Fernandez credibly testified that with respect to all
 reassignments initiated by Respondent, he followed the same procedure.
 First, he notified the Union of the proposed reassignment.  Second, he
 solicited volunteers.  Third, he listened to the Union's views with
 respect to any problems raised by the Union.  /4/ Fourth, if necessary,
 he talked to the employees involved to ascertain their reasons for not
 desiring a reassignment.  Fifth, having taken into consideration
 objections based upon such things as commuting time and distance, health
 reasons, babysitting arrangements, travel and carpool arrangements,
 seniority, and family situations, he then made his selection.  Fernandez
 characterized this procedure as consulting with the Union.
 
    8.  According to Fernandez, the foregoing procedure was based upon an
 agreement worked out with former union representative Barbara Fuller.
 Fernandez had the same "understanding" with Fuller's successor, Lupe
 Arriola.  The testimony of Fernandez was corroborated by Fuller, who was
 a Union representative from 1975 through approximately April 1980.  She
 has been an operations supervisor since March 1981.  Fuller used the
 word "consult" (Tr. 35) to describe her role in this selection
 procedure, and she referred to the matter as being pursuant to "an
 agreement" (Tr. 33).  She testified that it was a common practice within
 the Huntington Park district to have details and transfers, not only
 during her tenure as Union representative, but since then.  Union
 representative Janiszewski attempted to minimize the frequency of
 transfers by saying it occurred about once a year.  Her testimony cannot
 be credited in view of the testimony and documentary evidence to the
 contrary.
 
    9.  On or about December 6, 1982, the Downey Branch Office Manager,
 Jane Haas, recommended to Fernandez that a claims representative (CR)
 from her Downey office be transferred to Huntington Park in exchange for
 a clerical employee.  Her recommendation was designed to correct a
 staffing imbalance in the two offices.  She had concluded that a
 clerical shortage in Downey brought about by a hiring freeze had
 resulted in her Title II claims representatives spending too much time
 performing clerical work and not enough time on their adjudicative and
 other CRduties.  Haas also explained that the work units for the quarter
 ending September 1982 only supported 3.5 claims representatives in
 Downey, rather than the six claims representatives (out of a total
 complement of 28 employees) assigned to Downey.  According to Haas, whom
 I found to be a persuasive and completely credible witness, the
 discussion also included the names of the claims representatives who
 might be transferred.  They ruled out Janiszewski, the Union
 representative, because that would involve clearing the selection with
 higher authority.  They ruled out Brian Bise /5/ because he was doing
 field calls.  They ruled out Theresa Chamberlain because she was a high
 producer and her work was of excellent quality.  They ruled out Susie
 Herrera because she was their only Spanish-speaking claims
 representative.  This left only Nancy Havens and Stella Yano, both of
 whom were good and would be an asset to the Huntington Park office.  /6/
 Fernandez instructed Jaramillo to notify the Union of the decision to
 institute this exchange between the two offices.
 
    10.  On December 6, in accordance with the established procedure for
 handling labor-management communications, Jaramillo called Janiszewski,
 the letter being district union representative, as well as the Downey
 local representative.  The evidence discloses a minor dispute about what
 was said and I have concluded that what happened is as follows.  At
 first, Jaramillo told Janiszewski about the decision to reassign two
 employees.  Then, with respect to the clerical transfer, she read a list
 of names of claims development clerk candidates, one of whom would be
 transferred to Downey.  With respect to the claims representative
 transfer, she indicated that it was between Nancy Havens and Stella
 Yano.  The union representative replied that "if seniority was used as a
 basis for the selection that Nancy had the best of it, because she had
 seniority over all the rest of us." From this Jaramillo erroneously
 concluded that the Union agreed to the selection of Yano.  In my
 opinion, the most that Jaramillo could have concluded from Janiszewski's
 remarks was that Nancy Havens would not be transferred if seniority was
 determinative.  This is not the same as agreeing who would be
 transferred when, from the Union's viewpoint, there were other employees
 besides Yano with lesser seniority than Havens.  In any event,
 volunteers had not yet been solicited and the Union's input was not
 required until Friday, October 10.  Therefore, there was no reason for
 the Union to have to take any position as early as October 6.
 
    11.  Regardless of whatever was actually said in the foregoing
 telephone conversation, Janiszewski promptly told employees about the
 call and when Havens and Yano heard they were both being considered,
 both were upset.  /7/ Yano, apparently believing she might be selected,
 complained directly to Haas who promptly informed Jaramillo.  As a
 result, Fernandez went to the Downey office on December 9 and talked to
 both employees.  Nancy Havens told Fernandez she had no transportation
 and depended upon somebody for a ride.  In addition, she was a diabetic
 and had other medical problems.  Stella Yano told Fernandez she had
 chosen Downey because it was near her home, that she had a family to
 cook for, and had night school twice a week.  (She wasn't asked how long
 she would be attending night school.)
 
    12.  Before Fernandez left the Downey office, Janiszewski approached
 him and said she was ready to bargain.  However, she was not specific
 with respect to what she wanted to bargain about.  He replied that he
 wasn't prepared to do so at that time.  She asked that seniority be
 given consideration and he replied that it would be considered, but it
 was not the sole consideration.  Fernandez concluded that her bargaining
 request dealt with the selection of a transferee.  Later, that same
 afternoon, Janiszewski received a phone call from Jaramillo, who
 obviously had been told of the oral bargaining request.  Jaramillo said
 that Janiszewski was mistaken, that Respondent had no bargaining
 obligation because there was no change in working conditions.
 Janiszewski asserted that increasing one's travel time was a "change"
 but Jaramillo replied that extra travel time was part of the job.  Later
 that day, Janiszewski consulted with Regional President Jeff Dasteel,
 who helped draw up bargaining proposals which it chose to label as
 counterproposals.  Janiszewski presented the counterproposals to
 Jaramillo the following day, December 10.  Nothing was discussed at that
 time.
 
    13.  As examination of the union's proposals discloses that they
 primarily concern procedures for selecting involuntary transferees.  The
 single proposal dealing with impact was as follows:  "If the person
 selected has to travel more than 30 miles management will pay travel for
 the additional mileage or relocation costs." The evidence does not
 establish whether this proposal would have been applicable to the
 persons eventually selected in this case.
 
    14.  According to Fernandez it was late the afternoon of December 9
 or the next day that he selected Stella Yano.  His decision was based
 upon (1) Yano's lower seniority, (2) Havens' health problem, and (3) the
 fact that Havens would have a difficult time getting to the office if
 she didn't have transportation.  He felt that it would not be too large
 a burden for Stella Yano to drive an additional 8 or 9 miles, which he
 estimated would take about 20 minutes additionally.  Insofar as
 Fernandez was concerned, the decision he made was really no different
 from previous decisions made in this district concerning inter-office
 transfers.
 
    15.  The following week, Janiszewski received a letter dated October
 13, (G.C. Exh. No. 3) from Jaramillo which, in effect, confirmed her
 previous phone call stating that no bargaining obligation existed
 because there had been no changes in working conditions.
 
    16.  On January 10, 1983, the affected employees, Stella Yano and
 claims development clerk Jerry Martinez, reported to their new duty
 stations.  As noted above, Martinez was a volunteer.
 
    17.  With respect to "impact" on the employees who were reassigned,
 Stella Yano estimated that her travel time to the new office was an
 additional 30 minutes with an increase in gasoline costs.  As noted
 previously, however, her new duty station was, at most, 8 or 9 miles
 further and Fernandez credibly testified that this would take 20 minutes
 on surface roads.  Yano also felt that her new location was less
 convenient for attending night school.  Of course, these were the same
 factors which were considered by Fernandez before selecting Yano.  She
 also claimed to have inherited a "terrible" caseload of old claims after
 she arrived at her new duty station.  Martinez did not testify.
 
    18.  With respect to impact on the employees not transferred, /8/
 Havens and Janiszewski testified essentially that they had more work to
 do and had to work harder.  I found their testimony to be self-serving
 and unpersuasive.  The most credible evidence on the subject of impact
 was that introduced through the testimony of Haas, with supporting
 documentary evidence.  Haas credibly testified that the exchange of
 employees had a very favorable effect upon the processing of Title II
 work in the Downey office and that the only real strain on interviewing
 workload came when Brian Bise was temporarily promoted to supervisor
 shortly after the exchange.  Even with Bise out of the unit, the
 statistics went up and Haas attributed this to the fact that Bise
 assumed all the training duties and some of the quality review functions
 previously done by all the claims representatives.  Haas' overall
 assessment of the exchange was that it had a positive effect on claims
 processing time and quality and that it was reflected in her statistics.
  In view of my decision therein with respect to the threshold issue
 concerning the alleged change in working conditions, I find it
 unnecessary to reach the impact issue and, for this reason, find it
 unnecessary to burden this decision with a more detailed recitation of
 the factual evidence concerning impact.
 
                                  Issues
 
    Whether Respondent and the Union were parties to an established past
 practice which dealt with the subject of intra-district transfers?  If
 so, did Respondent change conditions of employment when it selected Yano
 and Martinez for transfer?
 
                        Discussion and Conclusions
 
    A. Introduction
 
    There is no dispute that an agency has a reserved management right,
 under Section 7106(a)(2)(A) to reassign employees.  Thus, a Union
 proposal which compels an agency to select a particular individual based
 upon seniority has been held to directly interfere with an agency's
 discretion to determine with employees to assign to a particular
 position.  /9/ However, it is also clear that the procedure which
 management will observe in exercising this authority, as well as
 appropriate arrangements for employees adversely affected by such
 reassignment, are proper matters for negotiation under Section
 7106(b)(2) and (3) of the Statute.  /10/
 
    In establishing procedures for resolving disputes between agencies
 and unions, the Authority has drawn a distinction between (1) the
 negotiability of specific proposals and (2) the underlying obligation to
 bargain.  /11/ Thus, Section 2423.5 and 2425.5 of the Rules and
 Regulations require a union to utilize the negotiability procedures
 under Part 2424 only in cases which "solely involve an agency's
 allegation that the duty to bargain does not extend to the matter
 proposed to be bargained and which do not involve an actual or
 contemplated change in conditions of employment.  Here, the Union filed
 an unfair labor practice charge pursuant to Section 7118 of the Statute
 and the General Counsel issued a Complaint alleging a unilateral charge
 in working conditions.  Accordingly I do not reach the question of
 whether specific bargaining proposals are negotiable until I first
 determine whether a bargaining obligation exists.
 
    The Authority has recently 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 reasonable foreseeable." /12/ Thus, the threshold
 question to be decided is whether the Respondent, in exercising its
 management right to reassign employees "changed conditions of
 employment." If that question is answered in the negative, then no
 obligation to bargain existed.  /13/ If that question is answered in the
 affirmative, it would still be necessary to reach the next question;
 i.e. whether "the change results in an impact /14/ upon unit employees
 or such impact was reasonable foreseeable."
 
    In the particular circumstances of this case, I find it unnecessary
 to determine whether the exercise of management's right to transfer
 employees resulted in "an impact" on anyone.  /15/
 
    B.  Past Practice of Intra-District Transfers.
 
    1.  Applicable Law.  Generally, terms and conditions of employment
 are embodied in a collective bargaining agreement-- a formal, written
 document which has been signed and executed by an agency and the
 exclusive representative of the agency's employees.  The Authority has
 held, /16/ however as follows:
 
          It is also well established that parties may establish terms
       and conditions of employment by practice, or other form of tacit
       or informal agreement, and that this, like other established terms
       and conditions of employment, may not be altered by either party
       in the absence of agreement or impasse following good faith
       bargaining.  See U.S. Department of the Treasury, Internal Revenue
       Service, New Orleans District, 8 A/SLMR 497, A/SLMR No. 1034
       (1978).
 
 While the existence or nonexistence of an established past practice is a
 factual issue, certain guidelines may be helpful in making such a
 determination.  Thus, in Department of Health, Education and Welfare,
 Region V, Chicago, Illinois, 4 FLRA No. 98, 4 FLRA 736, (1980) Judge
 William Devaney stated that practices or procedures followed by
 employees, do not, without more, become conditions of employment.  He
 concluded that a practice must:  (1) be known to management;  (2)
 responsible management must knowingly acquiesce;  and (3) such practice
 must continue for some significant length of time.  Thereafter, in
 Department of Navy, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, 5 FLRA No. 48, 5 FLRA 352 (1981), Judge William Naimark
 applied Judge Devaney's criteria to the facts of that case.  In neither
 of the above decisions did the Authority specifically indicate whether
 it adopted the foregoing criteria, but in the latter case the Authority
 appeared to apply that criteria to the factual situation in finding a
 unilateral change in an existing past practice.  I conclude that the
 Authority has adopted the criteria suggested by Judge Devaney.  /17/ I
 further conclude that fairness and parity require that the same standard
 be applied in judging a union's conduct where it is alleged, as herein,
 that the Union has knowingly acquiesced in a past practice over a
 significant period of time.
 
    2.  Positions of the Parties.  The General Counsel's approach to this
 case is that the location of one's duty station is a condition of
 employment within the meaning of Section 7103(a)(14) and, therefore,
 whenever that location is changed by reassignment to a new location, an
 agency has instituted a change in conditions of employment about which
 it has a bargaining obligation, under Section 7106(b)(2) and (3).  /18/
 The General Counsel also contends that the Union has not clearly and
 unequivocally waived its right to bargain on each and every such
 transfer.  The Respondent's approach is that there exists within the
 Huntington Park district a practice of intra-district transfers on a
 voluntary as well as involuntary basis.  Therefore, each employee
 transfer or reassignment to a new duty station is a continuation of an
 existing condition of employment (i.e. intra-district transfers), rather
 than a change of employment conditions.  Accordingly, Respondent
 contends that it is privileged to implement an intra-district transfer
 without first bargaining with the Union because its action is consistent
 with a past practice.  Another way of expressing Respondent's position
 is that the Union's knowledge and acquiescence over a period of many
 years in the agency's practice has resulted in an implied agreement
 having the effect of a waiver of the right to bargain each time the
 Respondent is implementing its policy, practice and procedure concerning
 intra-district transfers.
 
    3.  Analysis.  The Social Security Administration has offices
 throughout the nation in locations near the public it serves.  Within
 the Los Angeles metropolitan area are a number of District offices, each
 of which has or may have one or more smaller Branch offices.  The
 Huntington Park District office, at the time of the events in question,
 had Branch offices in nearby Downey and University Village.  The
 Huntington Park and Downey offices are about 8 to 9 miles apart.
 District Manager Fernandez credibly testified that at least during the
 time he's been there-- since 1974 to the present-- the policy and
 practice has been to correct staffing imbalances by transferring
 employees between the offices within the District, as needed.
 Respondent's Exhibit No. 1 shows the names of 40 transferees between
 March 1975 and January 1983.  The number of transfers in one year ranged
 from one in 1975 to eleven in 1979.  Some employees were transferred
 several times.  At least twelve of the 40 transfers were involuntary.
 From the credited testimony of Respondent's witnesses, including former
 Union representative Barbara Ann Fuller, it is abundantly clear that the
 Union not only acquiesced in this practice of intra-district transfers,
 but actually participated in the practice.  Thus, unlike most of the
 decided cases involving unilateral agency action without notice to the
 union, the practice followed here since at least 1974 included
 notification to the Union as the first step in a procedure whereby the
 Union was consulted prior to a selection being made and given a
 reasonable opportunity to provide input to Respondent-- prior to any
 selection-- concerning the impact on employees who did not wish to
 voluntarily transfer.  Where appropriate and necessary, as was done in
 this case, the District Manager would personally meet with the employees
 under consideration and listen to their reasons for not wishing to
 transfer.  Here, as in similar situations over the years, the District
 Manager made his selection based upon a combination of factors,
 including seniority and personal hardship.  From the evidence, it is
 clear that the greater number of transfers have normally been
 accomplished by obtaining volunteers and, indeed, Claims Development
 Clerk Jerry Martinez was a volunteer in this particular transaction.
 
    I find and conclude in agreement with Respondent's position that as
 of December 6, 1982, (1) there existed a past practice of intra-district
 transfers within the Huntington Park District, and (2) that such
 practice included a procedure whereby the Union's role was limited to
 receiving notice and providing input concerning the situation, and (3)
 that the Union's acquiescence and participation in this practice for so
 many years constituted a waiver of its right to bargain with respect to
 each and every transfer.  I further find and conclude that, with respect
 to the intra-district transfer which is the subject of this proceeding,
 the Union did not have a right to insist upon bargaining because the
 Respondent was not changing an existing and well established past
 practice.  Stated differently, the Respondent did not have an obligation
 to bargain about Section 7106(b)(2) procedures and Section 7106(b)(3)
 arrangements for adversely affected employees because it was not
 changing a condition of employment which had ripened into existence as a
 result of a practice over a period of many years.  /19/
 
    The General Counsel also argues against finding a waiver herein by
 citing Scott Air Force Base, 5 FLRA No. 2, 5 FLRA 9, for the proposition
 that the right to bargain need not be exercised at every opportunity.
 In my opinion, Scott Air Base is distinguishable.  There, the union's
 failure to request bargaining pertained to "some other occasions." Here,
 we are talking about a practice lasting over a period of eight years.
 Moreover, the General Counsel's argument that the "right to bargain need
 not be exercised at every opportunity in order to preserve such rights"
 is inconsistent, I believe, with its other argument (brief p. 21) that
 the Union has consistently and energetically "negotiated" transfers in
 the past.  I emphatically reject the contention that intra-district
 transfers in the past were negotiated.  The best that can be said for
 the agreed upon past practice is that the Union seemed to be content in
 the knowledge that it was being consulted before a decision was made and
 that its input was considered, even though the ultimate decision was
 left to management's prerogative and made by management alone.
 Furthermore, the evidence does not establish-- with respect to the past
 practice-- that the Union ever attempted to even negotiate any
 arrangements for employees adversely affected by the agency's decision.
 
    4.  Additional Comments.  In reviewing the briefs of the parties I
 detect some possible confusion as to the effect of the Union's waiver
 herein, and the reciprocal obligation of the parties to bargain before
 changing a past practice.
 
    In order that the holding in this case not be misunderstood, I am
 constrained to point out that the Complaint herein, the General
 Counsel's theory of the case, and the record evidence are premised upon
 the assertion that the Union had a right to prevent Respondent from
 implementing its decision to transfer Yano and Martinez without first
 bargaining with the Union.  I disagree.  In view of my holding that the
 agency was not changing a past practice, it seems quite clear that the
 Union's counterproposal was an attempt to change the rules of the game
 after the game had started.  When an agency announces its decision to
 take a certain course of action which is consistent with an existing
 past practice, a union's bargaining request may be refused on the ground
 that no bargaining obligation exists, as found herein.  The agency is
 therefore privileged to implement its decision without prior notice and
 bargaining.
 
    On facts not presented in this record, it would be a completely
 different situation if the Union were making a bargaining demand to
 establish a new selection procedure for future transfers and to thereby
 alter an existing past practice through collective bargaining
 negotiations.  In such event, Respondent would have an obligation to
 bargain under Section 7106(b)(2) and (3) while at the same time being
 able to continue its past practice until changed by agreement.
 Accordingly, just as an agency may endeavor to change a past practice
 through the collective bargaining process, so too may a union.
 Fundamental fairness and parity of bargaining power requires such a
 result.  Accordingly, for these reasons, my holding in this decision is
 limited to finding that the Union's waiver is akin to an implied
 agreement as to the procedure to be followed in all intra-district
 transfers.  But, this waiver is not forever.  Thus, if the Union desires
 to modify or alter this procedure, it may do so through the collective
 bargaining process in the same manner as an agency is required to do,
 and "at an appropriate time." /20/
 
                        Ultimate Conclusions of Law
 
    Having found the existence of a past practice of intra-district
 transfers, and having found that Respondent did not change conditions of
 employment when it selected Yano and Martinez for transfer, I further
 find Respondent had no obligation to bargain in the particular
 circumstances of this case and, therefore did not violate Section
 7116(a)(1) and (5) of the Statute.  /21/ It is therefore recommended
 that the Authority issue the following:
 
                                   ORDER
 
    That the Complaint in Case No. 8-CA-30094 be, and it hereby is,
 DISMISSED.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  December 5, 1983
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Department of Health and Human Services, Social Security
 Administration, Chicago Region, 15 FLRA No. 174 (1984).
 
 
    /2/ See, e.g., Internal Revenue Service (IRS) and Brooklyn District
 Office, IRS, 2 FLRA 587, 589 (1980).
 
 
    /3/ In view of this disposition, the Authority finds it unnecessary
 to comment upon the Judge's statements as to whether the exclusive
 representative had waived its right to negotiate with regard to each and
 every employee transfer in the future.  The Authority also finds it
 unnecessary to pass upon, and specifically does not adopt, the Judge's
 "Additional Comments" at pages 14-15 of his Decision.
 
 
    /4/ Although the "problems" raised by the Union appeared to involve
 the potential adverse impact to be experienced by an employee who was
 unwilling to volunteer, it would appear that these problems were raised
 before a selection was made.  Once a selection was made, the Union
 acquiesced in it.  Neither, the General Counsel nor the Respondent
 introduced evidence to show any requests to bargain by the Union, either
 before or after the selection, concerning "arrangements" for employees
 affected-- adversely or otherwise-- by the agency's decision to select.
 
 
    /5/ The spelling of Bise's last name is based upon Respondent's Exh.
 No. 1.
 
 
    /6/ At this point I am constrained to point out that Bise, Chamberlin
 and Herrera had less seniority (regardless of how calculated) than
 Havens, Yano, or Union representative Janiszewski.
 
 
    /7/ I reject the General Counsel's contention that the Respondent did
 not solicit volunteers.  Under its criteria for selection, only Havens
 and Yano were under consideration and neither volunteered.  It was
 unnecessary for Respondent to solicit volunteers among employees it had
 decided to retain in Downey. Moreover, the clerk (Martinez) from the
 Downey office was, in fact, a volunteer.
 
 
    /8/ Assuming, arguendo, that an agency has an obligation to bargain
 about the impact (of its decision to transfer an employee) upon
 employees who have not been transferred, I am constrained to note that
 in this particular case the Union's counterproposals only dealt with
 establishing a new selection procedure and the impact upon transferred
 employees.
 
 
    /9/ American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, No.
 0-NG-40, 2 FLRA No. 77, 2 FLRA 604, 610-614.
 
 
    /10/ American Federation of Government Employees, AFL-CIO, Local
 3529, 3 FLRA No. 46, 3 FLRA 301 (1980), a case involving an agency
 rotation policy of mandatory reassignments between duty stations.
 
 
    /11/ But, see AFGE, Local 2736 v. F.L.R.A., 715 F.2d 627, 114 LRRM
 2356 (D.C. Cir.) No. 82-2175 (August 18, 1983), where a negotiability
 case involving "factual issues" was remanded by the Court to the
 Authority for an expedited determination.
 
 
    /12/ U.S. Government Printing Office, (herein the GPO case), 13 FLRA
 No. 39, 13 FLRA 203 (Sept. 30, 1983).
 
 
    /13/ Department of the Navy, Mare Island Naval Shipyard, Vallejo,
 California, 9 FLRA No. 99, 9 FLRA 784 (1982), where five changes in
 shift hours were consistent with past practice and, therefore, were not
 a change in established conditions of employment.  The Authority
 specifically noted, however, that the facts were unusual and that
 changes in shift hours typically represent a changed condition of
 employment requiring notice to the union.
 
 
    /14/ In the GPO case, cited above, the Authority's use of the phrase
 "an impact" carries with it no explanation of the type, kind or quality
 of impact required.  Five weeks after its GPO decision, however, the
 Authority issued a decision in which it stated for the first time that
 it had not adopted a "substantial impact" test.  Internal Revenue
 Service (District, Region, National Office Unit, 13 FLRA No. 61, 13 FLRA
 366 (Nov. 3, 1983);  but see, Office of Program Operations, Field
 Operations, Social Security Administration, San Francisco Region, 5 FLRA
 No. 45, 5 FLRA 333 (1981) in which the Authority expressly adopted the
 Judge's findings and conclusions, one of which was that the substantial
 impact test in Executive Order cases was applicable under the Statute.
 
 
    /15/ For this reason I do not have to decide whether the quantum of
 impact required to trigger a bargaining obligation is different from the
 quantum required to justify granting a status quo remedy.  Cf. Federal
 Correctional Institution, 8 FLRA No. 11, 8 FLRA 604, the Authority's
 lead case establishing the criteria to be used in determining whether a
 status quo remedy is warranted in cases involving a refusal to bargain
 about impact and implementation.  Among the factors listed by the
 Authority is "the nature and the extent of the impact experienced by
 adversely affected employees." (Ibid, p. 606).  In the IRS case referred
 to above (13 FLRA No. 61), the Authority applied the specific factors in
 its Federal Correctional Institution decision and ordered a status quo
 remedy after concluding that "bargaining unit employees were
 significantly impacted by Respondent's violation of its bargaining
 obligation."
 
 
    /16/ Department of the Navy, Naval Underwater Systems Center, Newport
 Naval Base, 3 FLRA No. 64, 3 FLRA 413 (1980);  Internal Revenue Service
 and Brookhaven Service Center, 6 FLRA No. 127, 6 FLRA 713 (1981).
 
 
    /17/ Accord:  Department of Defense, Department of the Navy, Polaris
 Missile Facility Atlantic, Charleston, South Carolina, 6 FLRA No. 67, 6
 FLRA 372 (1981);  U.S. Nuclear Regulatory Commission, 6 FLRA No. 9, 6
 FLRA 18 (1981);  Social Security Administration, Mid-America Service
 Center, Kansas City, Missouri, 9 FLRA No. 33, 9 FLRA 229 (1982);  Army
 and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 10 FLRA
 No. 45, 10 FLRA 235 (1982).
 
 
    /18/ In support of his position, the General Counsel relies on
 Department of the Treasury, Internal Revenue Service, Greensboro
 District Office, A/SLMR No. 1007, 8 A/SLMR 329 (1978) and Department of
 the Treasury, Bureau of Alcohol, Tobacco, and Firearms, 8 A/SLMR No.
 1045, 8 A/SLMR 550 (1978).  These cases are, in my opinion, inapplicable
 because the express terms of a contract were found not to specifically
 apply to the proposed reassignments and, further, there was no waiver by
 the union.  Also, these cases arose under the Executive Order and my
 research does not disclose whether they have ever been expressly adopted
 by the Authority.
 
 
    /19/ See Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB
 1574, 58 LRRM 1257 (1965) where the Union's acquiescence in a
 subcontracting practice was held to be a waiver so long as the employer
 maintained the status quo.  However, in Leeds and Northrop, 391 F.2d
 874, 67 LRRM 2793 (CA-3 1968), enforcing 162 NLRB 987, 64 LRRM 1110
 (1967), the employer's unilateral alteration of a supplementary
 compensation plan's formula constituted a change in the status quo thus
 requiring it to first notify and bargain upon request with the union.
 
 
    /20/ Westinghouse Electric Corporation, (Mansfield Plant), 150 NLRB
 1574, at 1575-1576, where the NLRB went out of its way (as I have done
 here) to point out that its finding of a waiver as to an established
 past practice of subcontracting did not foreclose the union from
 requesting "at an appropriate time" changes in current subcontracting
 practices.
 
 
    /21/ Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA
 No. 97, 9 FLRA 774 (1982), where the Authority found that the
 Respondent, in implementing two nondisciplinary adverse actions, had not
 "established new, or changed existing, personnel policies, practices or
 matters affecting working conditions." Further, the Authority observed:
 "On the contrary, the record establishes that the procedures followed .
 . . were no different from those prescribed by the parties' negotiated
 agreement or those which had be