20:0233(31)CA - HUD, Columbia Area Office, Columbia, SC and AFGE Local 3654 -- 1985 FLRAdec CA
[ v20 p233 ]
The decision of the Authority follows:
20 FLRA No. 31 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, COLUMBIA AREA OFFICE COLUMBIA, SOUTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3654, AFL-CIO Charging Party Case No. 4-CA-30630 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition thereto. 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. The Judge concluded, in essence, that the Respondent's failure to notify the Charging Party and afford it an opportunity to negotiate concerning the procedures to be used in the reassignments of two unit employees and any appropriate arrangements for employees adversely affected thereby violated section 7116(a)(1) and (5) of the Statute. He determined that the reassignments resulted in more than a de minimis impact on the two reassigned employees because their work duties, performance standards and supervision were changed. He further found that the reassignments had a reasonably foreseeable impact on other employees. In its exceptions, the Respondent argues that the Judge erred in finding a violation and excepts to his conclusion that the reassignments resulted in an impact which was more than de minimis. Since 1978, the American Federation of Government Employees, AFL-CIO, has represented a nationwide consolidated unit of approximately 200 professional employees and a nationwide consolidated unit of approximately 8,000 nonprofessional employees at the central and field offices of the U.S. Department of Housing and Urban Development. /1/ Both units, however, are governed by one master collective bargaining agreement. The record is not clear as to the professional or nonprofessional status of the two employees reassigned herein. Pursuant to a national field reorganization and a reduction in staff, the Columbia Area Office was facing a loss of 17 employees. Prior to the reorganization, the Respondent, without notice to the Charging Party, reassigned two employees from positions slated to be transferred to Atlanta, Georgia, into positions which would remain in Columbia, South Carolina. The Charging Party thereafter requested bargaining over the procedures to be observed and concerning appropriate arrangements for employees adversely affected by the reassignments, but the Respondent never replied. The Authority has held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." See 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." See 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. /2/ 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. Applying the above factors to the instant case, the Authority finds, in disagreement with the Judge's conclusion, and based upon the totality of the facts and circumstances presented, that the impact or reasonably foreseeable impact of the change on the conditions of employment of unit employees was no more than de minimis. Therefore, the Respondent was not obligated to bargain with the Charging Party over the procedures it would observe in exercising its section 7106 rights and concerning appropriate arrangements for adversely affected employees. In reaching this result, the Authority notes with respect to the nature of the change that although the work positions and duties of the two employees were changed, these employees remained in the Columbia Area Office, their pay and grade were not affected, and their reassignments did not result in any change in promotion potential. Additionally, in the circumstances of this case, any foreseeable adverse impact arising from the employees' change in job positions in speculative. As to the foreseeable impact on other employees, the record does not establish that other employees were qualified for the two positions involved in the reassignments, notwithstanding the fact that no other employee was permitted to compete for the positions. Further, notwithstanding the permanent nature of the change, it had a specific and immediate impact on only two employees /3/ in a nationwide unit comprised of approximately 200 professional employees or, in the alternative, of a nationwide unit comprised of approximately 8,000 nonprofessional employees. Finally, the record does not show any past bargaining history or past practice where the parties had handled analogous changes. Based on the totality of the facts and circumstances presented, and noting particularly that the nature of the change did not alter the two employees' work location, pay, grade or promotion potential, and that only two employees in a unit of approximately 200 employees, or in the alternative, of 8,000 employees, were affected, the Authority concludes that the impact or reasonably foreseeable impact of the reassignments on unit employees' conditions of employment herein was no more than de minimis. Accordingly, the Respondent was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute, and its refusal to negotiate therefore was not violative of section 7116(a)(1) and (5) of the Statute. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-30630 be, and it hereby is, dismissed. Issued, Washington, D.C., September 24, 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 -------------------- John Kosloske, Esq. Linda B. Backus For the Respondent Pamela B. Jackson, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 31, 1983 by the Regional Director for the Federal Labor Relations Authority, Atlanta, Georgia Region, a hearing was held before the undersigned on January 19, 1984 at Columbia, South Carolina. This proceeding arises under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). The charge herein was filed on September 19, 1983 by American Federation of Government Employees, Local 3654, AFL-CIO (herein called the Union) against Department of Housing and Urban Development, Columbia Area office, Columbia, South Carolina (herein called Respondent). The Complaint alleged, in substance, that in and about May, 1983 Respondent reassigned unit employees Leon Babridge and Lance Folsom; that, despite requests by the Union that management bargain re the impact and implementation of such reassignment, Respondent failed and refused to bargain with the Union-- all in violation of Section 7116(a)(1) and (5) of the Statute. Respondent's Answer, dated November 16, 1983, denied the commission of any unfair labor practice. It admitted that: (a) the Union requested negotiation on April 15, 1983 as to the impact and implementation of the reassignments; (b) Babridge was reassigned effective April 17, 1983, and Folsom was reassigned effective May 1, 1983; (c) Respondent did not bargain re the impact and implementation of the said reassignments. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered by the undersigned. /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. At all times material herein, the Union has been and still is the exclusive bargaining representative of Respondent's professional and non-professional employees. 2. The Union and Respondent were parties to a written collective bargaining agreement which, by its terms, was effective from November 10, 1979, for a period of three years. The said agreement contained an automatic renewal clause providing for yearly renewals after the termination date. It was in effect at the time of the reorganization and reassignments. /5/ 3. At all times relevant herein Respondent was composed of subdivisions, two of which were Community Planning and Development and Housing. Included within the Housing Division were the Loan Management Branch and the Assisted Housing Management Branch. 4. In February, 1983 the Department of Housing and Urban Development announced that it proposed a field reorganization and a reduction in staff personnel. As part of the reorganized plan, the Community Development Division, along with the Labor Relations Staff and the Environmental Staff in the Columbia Area office, were to be relocated from Columbia, South Carolina to Atlanta, Georgia. The reorganization called for reducing the staff of the Columbia Area office by 17 employees. Moreover, some of those affected thereby were part of the Community Development Division. 5. The reorganization of the Columbia Area office resulted in management's reassigning two of its employees: Leon Babridge and G. Lance Folsom. No notification was given by Respondent to the Union of the intended reassignments, nor did management seek to confer or negotiate with the bargaining agent in regard thereto. 6. Prior to the implementation of the reassignment of Babridge and Folsom, the Union learned of the intended action concerning these employees. In a letter dated April 15, 1983 /6/ Alice C. Taylor, the Union's Executive vice-president, requested that Respondent bargain re the impact and implementation of the reassignment of employees. No reply was made thereto by Respondent, nor has management consented to bargain re the reassignment as requested by the Union. 7. Effective as of April 17 Babridge was transferred within the Columbia Area office from the position of Loan Specialist (Realty), /7/ Community Planning and Development Division (CPD), Program Management Team to Maintenance Engineer, Housing Division, Assisted Housing Management Branch. The action was taken to correct a work load imbalance, since the work load in CPD was diminishing whereas the work load in Assisted Housing was increasing. 8. Prior to his reassignment and as Loan Specialist (Realty) or Rehabilitation Specialist, Babridge was responsible for rehabilitation management. He performed functions relating to multi-family, single-family, commercial and non-residential rehabilitation loans. His duties required giving technical assistance and advice to cities in the Community Development Block Grant Program in South Carolina relative to rehabilitation, conservation and maintenance of existing buildings and structures. Babridge also rendered assistance re rehabilitation financing methods, as well as standards and local code enforcement. He monitored and evaluated performance of local rehabilitation loan and grants under several programs; participated in training conferences involving rehabilitation programs. (Respondent's Exhibit 8). 9. The position to which Babridge was reassigned-- Maintenance Engineer, Housing Division-- entailed duties in connection with the technical and engineering aspects of maintenance, rehabilitation and modernization of HUD assisted housing projects and properties. In his capacity as Maintenance Engineer, Babridge was responsible for selecting utilities in planning projects, as well as utility cost and controls in project operations. The position description calls for the review of bill and contract documents for maintenance, repair, alterations, replacement and conversion-- as well as post development improvement to structures, roads, grounds, equipment, heating systems and underground systems of housing projects. 10. Prior to Babridge's reassignment, there were two Maintenance Engineers in the Assisted Housing Management Branch-- Roy Blades and James B. McCullough. /8/ Blades was responsible for surveys of HUD housing projects-- visiting sites, making inspections, and submitting reports to housing authorities. McCullough was responsible for the engineering aspect of the modernization program, the Comprehensive Improvement Assistance Program (CIAP). Upon his transfer, Babridge was assigned to CIAP. 11. Record facts show that the Loan Specialist Realty position, which Babridge occupied before his reassignment was later abolished. This was a foreseeable affect of the reassignment. However, an individual who was a multi-family representative in the Housing Division was transferred into the Rehabilitation Specialist position from which Babridge was reassigned. The transfer of Babridge did not result in any change in pay or grade. Neither position (GS-12) had any promotion potential. 12. Effective as of May 1, employee Folsom was reassigned within the Columbia Area office from the position of Relocation Specialist, CPD, Program Support Branch, to Loan Specialist (Realty), Housing Division, Loan Management Branch. This transfer occurred as a result of the promotion of a GS-12 Loan Specialist into a Deputy Branch Manager position. Folsom was transferred to fill the vacancy of Loan Specialist in the Housing Division. The Relocation Specialist position was transferred to Atlanta. 13. The Program Support Branch, to which Folsom was assigned before his transfer, provided technical support to the Program Management Branch. This involved financial analysis, relocation, real estate, automatic data processing, and non-automated record-keeping. Folsom, as a Relocation and Real Estate Specialist, provided technical assistance to communities and states concerning relocation and real estate. He also monitored community development projects throughout South Carolina. 14. The Loan Management Branch, to which Folsom was reassigned in May, monitors assisted and unassisted housing. This Branch is responsible for servicing insured and Secretary-held multi-family mortgages, defaulted Title I and Sections 312 loans, as well as Housing for the Elderly and College Housing Loans. It checks to see that rents were charged in accordance with government regulations; monitors the payment of assistance on behalf of tenants to project owners where housing was built by private developers and loans insured by HUD; assures that loan payments are made on time to mortgagees. In general, this branch protects the government's interest as guarantor. 15. Folsom, as a Loan Specialist (Realty), performed the following duties: reviewed rent increases on Section 8 housing projects; conducted supervisory review of annual financial statements; monitored expenditures of travel monies; obtain flexible subsidy loan for a housing project; monitored 23 troubled housing projects. 16. Record facts reflect there were five other Loan Specialists in the Loan Management Branch. Each such specialist had been handling a workload of 60-65 projects. Upon Folsom's transfer thereto, about 4-5 projects were reassigned from each specialist to Folsom. Respondent deems that 50-55 projects for each Loan Specialist is a full workload. In regard to the 23 troubled projects reassigned to Folsom, the other Loan Specialists spent less than 5% of their time thereon. The reassignment of Folsom did not result in any loss of pay or grade. 17. None of the employees transferred to the Atlanta Regional office as part of the reorganization was qualified for either position to which Babridge or Folsom were reassigned. Likewise, none of the employees who were downgraded within the Columbia Area office as a result of the reorganization was qualified for either position to which Babridge and Folsom were reassigned. /9/ However, no other employee in the Columbia office was permitted to compete for the positions to which the aforesaid individuals were transferred. 18. The reorganization of HUD became effective on September 9, 1983. At the last moment the functions of the Rehabilitation Specialist position were not regionalized to Atlanta. Conclusions While not denying that an agency is obliged to bargain over the impact and implementation of changes in employment conditions, Respondent maintains no such obligation existed herein. It predicates this contention on the prior holdings in the public sector that such changes must have a reasonably foreseeable or substantial impact flowed from the reassignments of Babridge and Folsom; that any possible impact at the time was not reasonably foreseeable. Hence, it maintains, no violation occurred by virtue of its failure to notify the Union in advance of the changes and to bargain re the impact and implementation thereof. Earlier cases in the public sector stressed the fact that no duty to bargain arose unless a substantial impact existed, or was reasonably foreseeable, when management rights were exercised by an agency. Department of Defense, Air National Guard, Texas Air National Guard, Camp Mabry, Austin, Texas, 6 A/SLMR 591. The "substantial impact" standard, however, is no longer followed by the Authority. In U.S. Government Printing Office, 13 FLRA No. 39 it was concluded that " . . . the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact is reasonably foreseeable." A recent decision by the Authority, however, makes it evident that a change in working conditions does not necessarily impose a bargaining obligation upon the employer. Thus, where the resultant effect, as well as the reasonably foreseeable impact of a change in working conditions on bargaining unit employees was de minimis, no statutory duty may be imposed upon an agency to notify the union in advance and afford it an opportunity to bargain in regard thereto. Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 179. The central issue posed for determination herein may be stated as follows: whether the reassignments by Respondent of Babridge and Folsom within the Columbia Area office resulted in an impact, or a reasonably foreseeable impact, upon bargaining unit employees which was more than de minimis - all of which required Respondent to notify the Union herein and afford it an opportunity to negotiate re such impact and implementation. In support of its position that no "substantial" impact flowed from the reassignments, Respondent adverts to several factors. Thus, it maintains, inter alia, that neither Babridge nor Folsom objected to the transfer; that the reassignments did not alter the pay or grade of either employee, that their workload was not appreciably increased. Further, Respondent argues that any possible effects of the reorganization, i.e. those employees who would be either transferred to Atlanta or demoted, was not reasonably foreseeable in April, 1983. Upon due consideration of the entire record herein, I am satisfied that a resultant impact flowed from the reassignment of employees Babridge and Folsom. Further, I conclude that the unilateral conduct by management created a foreseeable impact upon unit employees. Moreover, I am persuaded that the impact, in either case, was not de minimis so as to relieve Respondent of any obligation to notify the Union of its action and negotiate in respect thereto. (1) It is noteworthy to the undersigned that the reorganization and the accompanied reassignments effected marked changes in the work positions and duties of both Babridge and Folsom. Prior to the change and transfer Babridge was concerned with rehabilitation management of housing in the Community Planning and Development Division. To this end, he rendered assistance re financing, and monitored local rehabilitation loans and grants. The position to which he was assigned called for technical and engineering expertise in respect to the rehabilitation and modernization of HUD projects. Babridge dealt with improvements to structures, roads, equipment and housing systems. Likewise, while Folsom's functions pertained to relocation as a real estate specialist before the transfer, his new position as Loan Specialist (Realty) required servicing mortgages and dealing with mortgages and/or mortgages. He also reviews requests for rental increases and releases of security. The Authority has determined that changing the duties performed by employees constitutes a change in conditions of employment which could reasonably be foreseen to have a substantial impact upon employees. Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia, 11 FLRA No. 78. In the cited case it was concluded that additional duties could affect appraisals of their work as to how well the employees performed. This conclusion was reasonably to be foreseen by the change. In much the same vein, I am constrained to conclude that the change in job positions of both Babridge and Folsom must necessarily result in an impact upon those employees. Not only has the nature of their work been altered, but their responsibilities are of a different character. Further, each employee is subject to rating and appraisal by a supervisor attached to a different Division and Branch. The standards for performance may well vary and affect the rating of each individual. It is argued by Respondent that the two employees did not object to the reassignments; moreover, no promotion potential existed in any event, and there was no change in their pay or grade. These factors, however, do not, in my opinion, militate against finding a significant impact by reason of the transfers. Numerous considerations may prompt employees to consent-- or not voice objection-- to a reassignment. In particular, they may fear being "riffed" by virtue of a reorganization, or they may hesitate to confront management for fear of retaliation. In any event, the duty is imposed upon management to notify the union with respect to changed conditions, and the obligation to bargain runs toward the bargaining representative. (2) In respect to the foreseeability of any impact upon bargaining unit employees by reason of the reorganization and reassignment, Respondent suggests that management did not know in April, 1983 which employees would be either transferred to Atlanta, downgraded, or be part of a reduction in force. Moreover, it insists that post-reorganization staffing-- which might involve filling a vacancy created by Babridge's reassignment or the elimination of one of three Maintenance Engineers-- was not foreseeable at the time of the reassignments of Babridge and Folsom. While it may be true that Respondent did not know in April, 1983 which employees would be affected by the reorganization and reassignments, it seems difficult to gainsay that an impact upon unit employees was reasonably foreseeable. The reorganization called for reducing the staff by 17 employees. Such plan included Babridge and Folsom since there positions were to be regionalized to Atlanta. However, inasmuch as both employees were retained in the Columbia Area office, any reduction in force would have required letting go two other employees. Note is taken that, as of the time when the plan was proposed, Respondent encouraged employees to retire in order to help fulfill the quota of 17 "riffed" individuals. The fact that it was not ultimately necessary to RIF 17 employees does not, in my opinion, negate the foreseeability of an impact. One must view the likelihood of a result at the time of proposed action, and the contemplated reduction in force could reasonably be expected to affect other employees if Babridge and Folsom were not included in the reduction in force. Moreover, since Babridge's former position in Community Development was filled by another employee and the position is to be abolished, such abolitions will necessarily affect said employees who could be "riffed". I agree with General Counsel's contention that this result was reasonably foreseeable in view of the fact that the workload in Community Development was known by management to be diminishing and that the Division was winding up its operations. The record also reflects that there were employees - apart from those downgraded or to be transferred to Atlanta - who could have qualified for the positions to which Babridge and Folsom were reassigned. I am persuaded that the reorganization and reassignments herein resulted in an impact upon bargaining unit employees which were reasonably foreseeable. See U.S. Government Printing Office, supra. Thus, it was incumbent upon management to bargain concerning the impact and implementation thereof. Having failed to do so, I conclude that Respondent violated Section 7116(a)(1) and (5) of the Statute. /10/ Accordingly, I recommend that the Authority issue the following order designed to effectuate the purposes of the Federal Service Labor-Management Relations Statute. ORDER Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of Housing and Urban Development, Columbia Area office, Columbia, South Carolina, shall: 1. Cease and desist from: (a) Instituting a reassignment of employees represented exclusively by the American Federation of Government Employees, Local 3654, AFL-CIO, without first notifying the exclusive representative and affording it the opportunity to negotiate the procedures which management will observe in implementing such reassignment as well as the appropriate arrangements for employees adversely affected thereby. (b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following action in order to effectuate the purposes and policies of the Statute: (a) Notify the American Federation of Government Employees, Local 3454, AFL-CIO, of any intended reassignment of employees and, upon request, negotiate the procedures which management will observe in implementing such reassignment as well as the appropriate arrangements for employees adversely affected thereby. (b) Post at its facility at the Columbia Are office, Columbia, South Carolina, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Area Manager and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Area Manager shall take reasonable steps to insure that such notices are not altered, defaced or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. (s) WILLIAM NAIMARK WILLIAM NAIMARK Administrative Law Judge Dated: September 28, 1984 Washington, DC APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT institute any reassignment of employees represented exclusively by the American Federation of Government Employees, Local 3654, AFL-CIO, without first notifying the exclusive representative and affording it the opportunity to negotiate the procedures which management will observe in implementing such reassignment as well as the appropriate arrangements for employees adversely affected thereby. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL notify the American Federation of Government Employees, Local 3454, AFL-CIO, of any intended reassignment of employees and, upon request, negotiate the procedures which management will observe in implementing such reassignment as well as the appropriate arrangements for employees adversely affected thereby. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 4, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ See Union Recognition in the Federal Government, published by the U.S. Office of Personnel Management, at 391 (Jan. 1983). /2/ 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. /3/ The Authority notes, however, that the duty to bargain concerning the reorganization, as distinguished from the two reassignments, was not at issue herein. /4/ Respondent filed a Motion to Correct Transcript with the undersigned subsequent to the hearing. No objection was interposed thereto. The motion is granted and the transcript is corrected as follows: (TABLE OMITTED) /5/ Article 13 of said agreement provided for Merit Promotions and Internal Placement. The procedures for such promotions and placements must follow guidelines mentioned therein. However, under Section 13.03(5) of the Article reassignments between positions of the same promotion potential are excepted from such procedures or guidelines. /6/ Unless otherwise specified, all dates hereinafter mentioned occur in 1983. /7/ This position is also referred to, at times, as Rehabilitation Specialist. /8/ This branch did not plan to continue having three Maintenance Engineers after Babridge's transfer thereto. The third position was scheduled for elimination. /9/ Record testimony reflects, however, that employees other than those downgraded would possibly have qualified for the position to which Babridge and Folsom were reassigned. /10/ I reject Respondent's argument that, under Article 13, Section 13.03(5) of the bargaining agreement, the Union waived its opportunity to bargain. The language of that provision does not clearly and expressly waive the Union's right to bargain over impact and transfers upon unit employees. Rather does it relate to procedures for filling merit promotions and excepted categories.