20:0129(15)CA - National Archives and AFGE Local 2578 -- 1985 FLRAdec CA
[ v20 p129 ]
The decision of the Authority follows:
20 FLRA No. 15 NATIONAL ARCHIVES Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2578, AFL-CIO Charging Party Case No. 3-CA-993 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. Although no exceptions were filed, since the Judge's Decision was issued prior to the effective date of the amendment to section 2423.29(a) of the Authority's Rules and Regulations, /1/ the Authority shall consider the merits of this case. 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 and conclusion that the complaint be dismissed in its entirety. The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute /2/ by violating the rights of AFGE Local 2578 (the Union) under section 7114(a)(2)(A) of the Statute /3/ by holding "formal discussions" with its Excepted Service employees to recruit them for Competitive Service positions without affording the Union an opportunity to be present at such discussions, and further by not providing the Union with advance notice of the reassignment of certain bargaining unit employees from Excepted Service positions to Competitive Service positions, which notice was necessary to afford the Union an opportunity to bargain on the impact and implementation of the reassignments. With regard to the first allegation, the Judge found that the Respondent had not failed to comply with section 7114(a)(2)(A) of the Statute, as it did not hold any formal discussions with bargaining unit employees in the circumstances of this case, and therefore did not violate the Statute. We agree. Subsequent to the issuance of the Judge's Decision, in Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87(1984), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984), the Authority reiterated that in order for a union's right to be represented under section 7114(a)(2)(A) to attach, "all elements set forth in that section must be found to exist: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more employees in the unit or their representatives; (4) concerning any grievance or any personnel policy or practices or other general conditions of employment." /4/ In the instant case, the Authority concludes that the General Counsel has not met the burden of proving that the "meetings" in question were "formal discussions" within the meaning of section 7114(a)(2)(A) of the Statute. The record reveals that the contacts initiated by the Respondent involved only two bargaining unit employees; were separate contacts, one by the Assistant Director responsible for recruitment, the other by his Administrative Aide; were merely telephone calls and not meetings; and were very short conversations simply advising the employees of the opportunity to apply for Competitive Service positions. All other contacts (whether telephonic or face-to-face) involving the Assistant Director, his Administrative Aid, or a Personnel Staffing Specialist concerning the Competitive Service vacancies, were initiated by individual bargaining unit employees to address their individual situations and concerns. /5/ Thus, in these circumstances, we conclude that the foregoing "meetings" or contacts with the two employees in question concerning Competitive Service vacancies were not "formal," and did not concern any grievance, or any personnel policy or practices or other conditions of employment affecting employees in the unit generally, within the meaning of section 7114(a)(2)(A) of the Statute. /6/ Accordingly, the Authority concludes that the Respondent did not fail to comply with section 7114(a)(2)(A) of the Statute, and therefore did not violate section 7116(a)(1), (5) or (8) of the Statute by the conduct in question. With regard to the second allegation, the Judge concluded that the Respondent did not violate the Statute by unilaterally reassigning six bargaining unit employees from Excepted Service to Competitive Service positions without first providing notice to the Union and affording the Union an opportunity to request bargaining on the procedures and appropriate arrangements for employees adversely affected by the reassignments. We agree with the Judge's conclusion, but for the following reasons, based upon decisions issued by the Authority subsequent to the issuance of the Judge's decision. There is no allegation or contention that the Agency owed a duty to the Union to negotiate over the substance of its decision to assign employees from Excepted Service to Competitive Service positions, and it is not at issue herein. Rather, the complaint alleges a failure to bargain over procedures and appropriate arrangements for adversely affected employees resulting from such reassignments pursuant to section 7106(b)(2) and (3) of the Statute. The Authority has held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The Authority thereafter held that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority has also held that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /7/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. Turning to the instant case, while no exceptions were filed with the Authority, the nature and degree of the impact was at issue before the Judge who set forth in some detail the facts and contentions of the parties as to the issue. For the reasons which follow, we find that the impact or reasonably foreseeable impact of the reassignments on unit employees' conditions of employment was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(a)(2) and (3) of the Statute concerning either the procedures it would observe in implementing the reassignments or appropriate arrangements for adversely affected employees. In reaching this result, the Authority notes with respect to the nature of the change on unit employees' conditions of employment, that the employees' work duties remained the same. /8/ Six employees were converted from Excepted Service to Competitive Service positions, which resulted in their "assignment" to General Schedule (GS) ratings. The conversions took place after it had become general knowledge that such opportunities were available. Some employees had come forward and requested conversion. In two cases, employees were offered conversion. In one case this resulted in a temporary loss of pay; however, the employee involved had volunteered because of the opportunities it offered her, and in fact within three months she was promoted to a higher paying job. The six employees are part of a nationwide bargaining unit of approximately 1900 employees. The Judge found, rejecting the General Counsel's argument to the contrary, that there was no past practice of dealings between the parties with regard to the type of action here taken by the Respondent. Although the Judge found that there was no "substantial impact adversely affecting employees," a standard we here do not apply, he also found, and we agree in the particular facts of this case, that it appears that the result of the Respondent's actions benefited all those employees affected. /9/ Based on the totality of the facts and circumstances of this case, we find that the impact or reasonably foreseeable impact of the change in unit employees' conditions of employment was no more than de minimis. Therefore, the Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute, and its failure to do so did not constitute a violation of section 7116(a)(1), (5) or (8) of the Statute as alleged. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-993 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., September 11, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Ana de la Torre, Esq. Bruce D. Rosenstein, Esq. For the General Counsel John F. Sullivan, Esq. John Swett, Esq. For the Respondent Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This proceeding under the Federal Service Labor-Management Relations Statute (the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq. was instituted by the issuance of a Complaint and Notice of Hearing dated June 25, 1980. The Complaint was based upon an original and amended charge filed on March 17, and June 5, 1980, respectively, by American Federation of Government Employees, Local 2578, AFL-CIO (herein referred to as the Charging Party or Union). The Complaint alleges that National Archives (herein the Respondent) violated Sections 7116(a)(1)(5) and (8) in the following manner: (1) By the conduct of Raymond Mosley and Clarence Wiggins in conducting formal meetings with employees concerning matters affecting general conditions of employment without affording the Union an opportunity to be present, thus violating the Union's Section 7114(a)(2)(A) rights; (2) By unilaterally reassigning six bargaining unit employees from Excepted Service to Competitive Service positions without providing the Union with advance notice so that it could request bargaining about on the impact and implementation of the reassignments. Respondent contends that there were no formal discussions within the meaning of Section 7114; that the General Counsel failed to adduce evidence that Clarence Wiggins was even involved in any alleged formal discussion; that the single incident involving Raymond Mosley did not constitute a formal discussion; and that the alleged reassignments were actually new appointments or new hires, a subject about which there was no obligation to bargain. Further Respondent argues that what happened did not result in an adverse impact on employees generally. A hearing was held in Washington, D.C. at which 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 1. The American Federation of Government Employees, Local 2578 was certified in 1969 as the exclusive representative of a unit composed of all the employees of the National Archives and the National Archives Trust Fund Board in the Washington Metropolitan Area. At all relevant times herein Respondent and the Union were party to a collective-bargaining agreement. Mr. Carmen Delle Donne has been the President of the Union since 1974. 2. Employees of the National Archives occupy positions in the "Competitive Service" and have what is commonly referred to as Civil Service "status" with its attendant benefits. Employees of the Trust Fund are in the "Excepted Service" and, except for the fact that they do not have status, it's really not clear from the present record what differences, if any, there are between benefits received in the Competitive versus the Excepted Service. /10/ It must be emphasized, however, that having status is a significant benefit in itself in terms of job protection and eligibility for consideration to be selected for other Competitive Service positions where status is a prerequisite. Thus, for example, a GS-4 Trust Fund employee, being in the Excepted Service and not having status, normally would not be eligible to apply for a Competitive Service position, regardless of the grade level involved (GS-3, 4, 5), and even assuming the Trust Fund employee possessed the requisite training and job experience. 3. During June or July, 1979, four or five vacancies existed within the Microfilm Branch of the Washington National Records Service Center (Center) and Mr. Raymond Mosley, the Assistant Director, was assigned the responsibility of filling these vacant positions by his supervisor, Mr. Carlton Brown. Mosley and Brown are the management officials responsible for authorizing all recruitment actions at the Center. Mosley began his recruiting efforts by enlisting the aid of John Tabb, a Personnel Staffing Specialist. 4. The following methods were utilized to recruit applicants to fill the vacancies: a. A Vacancy Announcement (Resp. Exh. No. 1) was posted on July 9, 1979 pursuant to the parties' negotiated Merit Promotion Program for the position of Office Machine Operator, GS-350-2/3/4 (minimum of positions to be filled) with a closing date of July 18. In accordance with the parties' negotiated Merit Promotion Plan, a letter dated July 20, 1979 was sent to Union President Delle Donne requesting Local 2578's Promotion Panel nominees. Mr. Delle Donne accordingly responded with four proposed Panel members (Resp. Exh. No. 3). This method did not produce any qualified applicants. Trust Fund employees were ineligible to apply. b. On July 27, Tabb requested an OPM Register by forwarding to OPM a form entitled Eligibles Request and Certification (Resp. Exh. No. 2) and attached a copy of the position description. Normally such a request would yield a list of eligible persons from outside the Center who could then be notified of the vacancies and any interested applicants could be interviewed and perhaps be hired. In this case, however, OPM was unable to respond with a list of eligibles. In lieu thereof, OPM provided the Center with direct-hiring authority (G.C. Exh. 1(h)) on August 21. c. Direct-Hiring authority provides an agency with authority to recruit, evaluate qualifications and make career conditional (or career) appointments of qualified applicants. As it relates to this case, the direct-hiring authority permitted the Center to recruit applicants from any source, including employees of the Trust Fund who were heretofore ineligible because they lacked status. Individuals hired pursuant to this type of authority would thus be in a position to obtain status at an appropriate time. 5. According to Raymond Mosley, he discussed with Carlton Brown the possibility of utilizing the direct-hiring authority to recruit employees from the Trust Fund. They also discussed with others, /11/ including John Tabb and Kathleen Richardson, /12/ the qualifications for the job and the names of who currently employed might meet those qualifications. (Subsequently, after applications were filed, in Personnel or directly with Richardson, they were forwarded to John Tabb who was the sole reviewer of the qualifications of individual applicants.) 6. Local 2578 was not notified of Respondent's decision to utilize its direct-hiring authority to recruit Trust Fund employees for the vacancies at the Center. This failure to notify the Union forms the basis for a Section 7116(a)(5) allegation. 7. There is no evidence that Respondent notified its Trust Fund employees of these vacancies by (1) sending any written announcement to individual employees or by (2) posting a general announcement on the bulletin boards. Instead, the recruiting was done by word-of-mouth. It is this conduct which forms the basis for an allegation that Respondent conducted "formal discussions" within the meaning of Section 7116(a)(2)(A) without providing the Union an opportunity to be present. Thus it is necessary to separately examine the recruiting incidents alleged to be violative of the Statutes. 8. Alleged Formal Discussions Initiated by Respondent's Agents. a. Kathleen Richardson testified she was asked by John Tabb whether she knew of any qualified people in the Microfilm Branch who might be interested. Accordingly, in September 1979, Richardson called employee Kevin West and told him there was going to be some openings and if he was interested he could submit a 171 application which would be reviewed by Mr. Tabb's office to see if West qualified for the GS-4 grade level. West's testimony is not in conflict with Richardson and indeed is quite brief. According to West, Richardson called him on the phone and "asked me if I thought I might like to be converted, and I naturally said, of course." That was the extent of the conversation. After he hung up the phone, West passed the word to his friends and fellow employees who were "in the same boat." Richardson, whom I credit, testified that West was the only employee she contacted. She called West because she knew he wanted something more than he had, more job security, and this was one way to help him. b. Raymond Mosley, testified that he contacted employee Diane Preston and told her that we had Direct-Hiring authority, "that it was an opportunity for her to receive civil service status, and was she interested." Preston did not testify but according to Mosley she replied that she was interested. That was the extent of that conversation. Subsequently, she applied and was hired. 9. Alleged Formal Discussions Initiated by Employees. a. Raymond Mosley, Assistant Director at the Center testified to being contacted by two employees: Dorothy Hanbury and Leola Davis. Hanbury did not testify. According to Mosley the extent of the conversation was that Hanbury expressed interest in converting. According to Mosely, the first inquiry from Davis was to express interest, the second was to ask how she would regain the GS-5 she would give up if she converted and accepted a down-grade to GS-4. He responded that if a GS-5 were posted she could apply for it. b. Kathleen Richardson, Administrative Aide to Mosely, testified that she was separately contacted at her office by the following employees: Kevin West, Tom Green, Danny Gorman, Dorothy Hanbury, Sara Colcough, Leola Davis and Dianne Preston. From the testimony of Richardson and employees Davis, West and Colcough it is quite clear that each of these employees voluntarily went to Richardson concerning their own individual situation to ask questions about converting to a status position. In the cases of Hanbury and Davis it was explained that they would have to voluntarily accept a downgrade to GS-4. /13/ West had to file a second application, as did some others. When Colcough inquired, Richardson asked her about her job experience and ability to work certain machines. c. John Tabb testified that he was contacted by Sara Colcough who inquired about basic qualifications for the job and the advantages of entering the Competitive Service. Tabb's job is to provide technical information to employees about vacancies and employee benefits. 10. Status of Leola Davis. Davis was a Union steward. She initiated her conversations with Mosely and Richardson in her individual capacity. Respondent's representatives talked to her in her as an individual and not as a Union representative. 11. Impact of the Conversation on Employees. All who applied for the status positions were hired. It is unclear whether any of the employees retained the same grade as before. Colcough and West were hired at GS-4, an increase in grade for both. Davis voluntarily took a downgrade from GS-5 to GS-4 in January 1980 but by April 1980 she became a GS-6 supervisor. Hanbury withdrew her application. Davis (Tr. 37) and West testified that their duties were essentially unchanged. /14/ Richardson whom I credit, testified that except for those who applied, no other Trust Fund employee was eligible. The General Counsel adduced no evidence that Cynthia Coleman was eligible or that she even applied. 12. Notice to the Union. As previously noted, the Union was not notified that the Center had received the direct-hiring authority and intended to solicit applications from employees of the Trust Fund. Although Union steward Davis was very much involved in this whole matter and spoke to at least two Respondent agents about her own situation, she allegedly did not inform the Union President about it until after the conversions became effective. In late February or early March she called Carmen Delle Donne and he then met with her and a few other employees. /15/ Delle Donne also testified that where Respondent was about the make changes impacting on employees, it normally notified the Union and gave it an opportunity to comment (G.C. Exh. 3, 4, 5). Conclusions of Law A. The Alleged Formal Discussions With Employees Section 7114(a)(2)(A) of the Statute provides: "(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at (A) any formal discussions between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment . . . " The General Counsel contends that all the conversations between Respondent representatives and the seven bargaining unit members were formal discussions within the meaning of Section 7114. For a number of reasons, 2 reject this contention. Although there is little or no case law specifically construing the provisions of Section 7114(a)(2)(A), cases construing Section 10(e) of Executive Order 11491, are relevant since the terminology used in Sections 10(e) is nearly identical to that utilized in Section 7114(a)(2)(A). In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA No. 32, May 1, 1979, an unfair labor practice case initiated under Executive Order 11491, the Authority approved the following language used by the federal labor relations council in its nasa decision. /16/ The language of the pertinent portion of section 10(e) . . . makes clear that it is not the intent of the Order to grant an exclusive representative a right to be represented in every discussion between agency management and employees. Rather, such a right exists only when the discussions are determined to be formal discussions and concern grievances, personnel policies and practices, or other matters affecting the general working conditions of unit employees. The Authority's decision in 1 FLRA No. 32, also adopted the following Council language from the Council's decision reviewing the Assistant Secretary's decision in A/SLMR No. 908: Thus, the discussion or meeting for which representation is sought must be "formal" in nature and the topic of the meeting must be one or more of the matters enumerated in the last sentence of section 10(e), i.e., "grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit." Both elements must exist for the right of representation under section 10(e) to accrue either to the exclusive representative or, derivatively, to the employee involved. As to the first element, the question of whether a meeting is "formal" or informal is essentially a factual determination which, in our view, is a matter best resolved on a case-by-case basis by the Assistant Secretary as finder of fact, taking into consideration and weighing a variety of factors such as: who called the meeting and for what purpose; whether written notice was given; where the meeting was held; who attended; whether a record or notes of the meeting were kept; and what was actually discussed. Before applying the foregoing principles to the instant case, I would also observe that in construing the words of the Statute they are presumed to be used in their ordinary and usual sense, and with the meaning commonly attributed to them. Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465(1968). In this regard, Webster's New International Dictionary (3rd Ed. (1961) defines "discussion" as: "consideration of a question in open issue, informal debate: argument . . . " The Random House College Dictionary (1973) defines "discussion" as: " . . . the act or an instance of discussing, consideration or examination by argument, comment, etc; debate." Webster's New World Dictionary (2nd Ed. 1970) defines "discussion" as: "talk or writing in which the pros and cons or various aspects of a subject are considered . . . " The common thread which runs through these definitions is the element of debate or argument between two or more persons, each of whom participates in the discussion. Thus, a discussion is different from a speech, lecture, address, or sermon, each of which involves only one participant (speaker) and a group of listeners. A discussion is also different from a mere conversation which, while it involves two or more participants who speak, the "verbal exchange of ideas" does not involve the element of debate or argument. Accordingly, where an oral communication is utilized to convey information, as in the making of an announcement concerning a job vacancy, such oral communication does not, by itself, automatically rise to the level of a "discussion", or for that matter a "formal discussion" within the meaning of Section 7114. In the instant case, Respondent agents Mosely and Richardson each contacted one employee and announced the existence of job vacancies not requiring status, for which they could file an application, if interested. The employees who were the recipients of this announcement were essentially listeners; they were not engaged in a debate or argument for there was none. The fact that the employees opened their mouths and expressed interest in the job or asked how to apply for it, does not elevate these particular conversations to the level of a "discussion." Furthermore, the casual informal manner in which these two incidents occurred, compels me to also conclude that the alleged discussions were not "formal." With respect to the evidence showing that employees initiated conversations with management representatives in which they inquired about the job vacancies, their qualifications, and the advantages and disadvantages of obtaining status, I am unaware of any statutory prohibition to their seeking this information, nor am I of the opinion that a union has any statutory right to be present. Clearly, then, these incidents were not formal discussions. Further, I would observe that the conversations related herein all dealt with situations involving individual employees and whether or not each of them desired to leave the Excepted Service and receive an appointment in the Competitive Service. In my opinion this raises a question as to whether the subject matter of the conversations involved "matters affecting the general working conditions of unit employees" as required by the Authority in the NASA decision, supra. Since I have already concluded that the conversations were not found discussions, I need not resolve this issue. B. The Alleged Refusal to Negotiate the Impact and Implementation of the "reassignment" of Six Unit Employees. A more significant issue in this case is whether Respondent had an obligation to bargain with the Union concerning the impact and implementation of its decision to use the direct-hiring authority as a means of filling vacancies at the Center. Section 7106(a)(2)(A) of the Statute gives management the right "to hire" employees. Further, Section 7106(ay(2)(C) gives management the right: "(C) with respect to filling positions, to make selections for appointments from-- "(i) among properly ranked and certified candidates for promotion; or "(ii) any other appropriate source; Respondent argues that it has always had a right to recruit and hire from the "outside," both from outside the Agency and outside the negotiated Merit Promotion Plan. Therefore, it is merely a continuation of past practice for it to hire from the outside, whether utilizing an OPM register or an OPM direct-hiring authority, both of which constitute an "appropriate source" within the meaning of Section 7106(a)(2)(C)(ii). The General Counsel contends that the conversions herein were akin to transfers or reassignments but I agree with Respondent that what happened was more in the nature of a new hire or new appointment just as if the vacancies had been filled from outside the agency. However, what makes this case different from the ordinary situation where an agency utilizes direct-hiring authority is that there are employees in the bargaining unit who may be eligible for the vacancies being filled. Thus, it was the lack of "status" rather than the lack of qualifying experience which contributed to the failure in the first instance of the Merit Promotion Program to yield any applicants who were both eligible and qualified. Respondent further asserts that there were no contractual restrictions on its right to hire from the outside. Assuming this to be true, there is also no persuasive evidence in this record to support the contention that it has been an established practice to hire from the outside - by any means - without prior notice to the Union. Indeed, Mosely testified this was the only time the Center ever used the direct-hiring authority. As the Authority previously noted in National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District Office, Case No. 0-NG-9, 1 FLRA No. 102 (Aug. 23, 1979), Report No. 15, while section 7106(a) of the Statute specifies various rights reserved to agency management, subsection (b) provides that management's exercise of any rights contained in subsection (a) does not preclude negotiations on the procedures which management officials will observe in exercising those rights. In this regard, the legislative history of the Statute reflects the intent, with respect to the duty to bargain on the procedures unless such negotiations would prevent the agency from acting at all. See S. REP. No. 95-1272, 95th Cong., 2d Sess. 158(1978). In my opinion, the foregoing precedent is applicable herein. This is not a situation where Respondent utilized its direct-hiring authority to hire persons from outside the Agency and the Union, not having been provided with notice, did not have a reasonable opportunity to submit negotiation proposals concerning the procedures to be followed by Respondent in exercising its authority to fill vacancies. Such proposals could have included, for example that Respondent (1) notify all Trust Fund employees of the vacancies and (2) consider all applications filed by Trust Fund employees. Rather, this is a case where Respondent actually gave preference in hiring to Trust Fund employees but in so doing, the Union still was unable to submit proposals concerning the procedures to be followed in filling the vacancies. It is conceivable that the Union may have submitted proposals which would have been negotiable in that they concerned the standards and criteria for selection, without preventing management from exercising the right to make the actual selection or from acting at all. /17/ At the very least, the Union could have proposed a procedure to insure that all employees were notified and given equal opportunity to apply. Accordingly, with respect to this threshold issue, I conclude that Respondent had an obligation to negotiate the procedures to be followed in implementing its direct-hiring authority. It is well established precedent, that the duty to negotiate carries with it a concomitant obligation to notify the Union prior to implementation of any change made as a result of exercising a reserved management right. In the instant case, the unilateral change consisted of utilizing the direct-authority as a method for filling vacancies, and the date of the change was when it commenced recruiting efforts among its employees. The mere fact that the Respondent failed to notify the Union does not mean, ipso facto, that the Statute has been violated. In so acting, Respondent acted at its peril and whether it violated its duty to bargain hinges on whether the unilateral change actually resulted in, or had a reasonable likelihood of resulting in, substantial impact adversely affecting employees. /18/ In the present case, we need only be concerned with the actual impact because the change had taken place and we can assess its impact. As to impact, the General Counsel (Tr. 9) points to three things. First, it is contended that Davis was demoted from GS-5 to GS-4. While a demotion does not necessarily result in a loss of pay, apparently in her case there was some reduction in wages, but the amount was not specified. In any event the demotion was only temporary and within three months she was made a GS-6 supervisor. My main reason for concluding that her demotion did not constitute substantial adverse impact is that it was a completely voluntary action; she did not have to apply; she did so because she felt it would be advantageous. Secondly the General Counsel points to Hanbury who would have been demoted had she applied. Since she wasn't demoted, there's no adverse impact. Thirdly, the General Counsel points to a change of job duties. Based on the testimony of West and union steward Davis, I have already found no change of duties, hence no adverse impact. In view of the foregoing, and based upon a review of the entire record, I conclude that Respondent's unilateral change did not result in substantial impact adversely affecting employees. On the contrary, it appears that all employees who converted to the Competitive Service benefitted thereby. Therefore, I further find and conclude on the basis of the unique factual situation presented herein that Respondent had no obligation to notify the Union prior to implementing its decision to utilize the direct-hiring authority. ORDER On the basis of the foregoing findings of fact and conclusions of law, I find that National Archives has not engaged in conduct violative of Section 7116(a)(1)(5) and (8) of the Federal Service Labor-Management Relations Statute. Accordingly, I recommend that the complaint be dismissed in its entirety. (s) FRANCIS E. DOWD FRANCIS E. DOWD Administrative Law Judge Dated: July 21, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 2423.29(a) now provides, in pertinent part, that "in the absence of exceptions filed timely . . . , the findings, conclusions, and recommendations in the decision of the . . . Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority, and all objections and exceptions thereto shall be deemed waived for all purposes." /2/ Section 7116 provides, in pertinent part, as follows: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. /3/ Section 7114(a)(2)(A) provides as follows: Section 7114. Representation rights and duties * * * * (a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment(.) /4/ See also General Services Administration, Region 8, Denver, Colorado, 19 FLRA No. 2(1985). /5/ In Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 48(1982), the Authority concluded that when two employees approached the Assistant District Manager involved therein without specific advance arrangements, to discuss their personal concerns, such a meeting did not constitute a "formal discussion" within the meaning of section 7114(a)(2)(A) of the Statute. See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Chicago, Illinois Region, 15 FLRA No. 110(1984), and cases cited therein. /6/ In so concluding, we find it unnecessary to decide whether telephone calls initiated by management representatives with unit employees may constitute "discussions," and specifically do not adopt the Judge's comments concerning the need for debate or argument in order for an otherwise "formal" meeting to constitute a formal "discussion" within the meaning of section 7114(a)(2)(A) of the Statute. See Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No. 111(1984). /7/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented. /8/ While the General Counsel had argued this point, the Judge found, based on record testimony, that there was no change, and, as noted above, no exceptions were filed with respect to any of the Judge's findings in this case. /9/ The fact that one employee declined the offer of a chance to convert, believing that she would be disadvantaged temporarily, does not in our view detract from this finding. /10/ Since government employees are not barred from carrying extra insurance, I am unable to rely on the testimony of Kevin West, a Trust Fund employee, who testified that he paid $53.00 per month for a health insurance policy as evidence that all Trust employees receive different health insurance benefits than Center employees in the Competitive Service. From the testimony of Tabb, Mosley and Davis, I would conclude that health benefits were essentially the same in either system. /11/ Mosley was uncertain but thought perhaps Clinton Wiggins might also have been there. Wiggins did not testify. Contrary to the General Counsel's Complaint, there is no evidence that Wiggins was involved in any of the alleged unfair labor practices. /12/ Kathleen Richardson is an Administrative Aide to Mosley whose duties involved the coordination of personnel work at the Center. John Tabb is a Personnel Staffing Specialist. I find them both to be agents of Respondent. /13/ Hanbury was too close to retirement to make the conversion worthwhile. She withdrew her application. /14/ Approximately four months after West's conversion, he performed a new task - mounting jackets - for about two weeks. He hadn't done it before and hasn't done it since. Based upon his overall testimony I conclude that his conversion did not result in a change of duties. /15/ The testimony of Delle Donne is insufficient to establish whether, in fact, an employee named Cynthia Coleman did or did not know of the vacancies, and did or did not apply for same. She did not testify and the General Counsel failed to adduce any testimony clarifying this issue or supporting Delle Donne's hearing testimony. /16/ National Aeronautics and Space Administration (NASA), Washington, D.C., and Lyndon B. Johnson Space Center (NASA), Houston, Texas, A/SLMR No. 457, 3 FLRC 617 (FLRC No. 74A-95 (September 26, 1975)). /17/ See Department of the Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA No. 100 and Authority decision cited therein. /18/ For a discussion of actual versus probable impact see my decision in U.S. Government Printing Office, Case No. 3-CA-569, OALJ-81-183 (April 9, 1981).