20:0374(38)CA - HUD Washington, DC, Area Office and AFGE -- 1985 FLRAdec CA
[ v20 p374 ]
The decision of the Authority follows:
20 FLRA No. 38 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON, D.C., AREA OFFICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-20086 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and contentions of the parties, the Authority finds: The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ when, beginning on or about October 2, 1981, concerning the reorganization of the Respondent's Loan Management Branch, it engaged in a clear and patent breach of the parties' collective bargaining agreement, bypassed the exclusive representative, and failed and refused to negotiate with regard to the procedures leading to implementation of the reorganization, and with regard to the impact thereof on adversely affected employees. At all times material herein, the Charging Party, American Federation of Government Employees, AFL-CIO (the Union), has been the exclusive representative of a consolidated unit of employees that includes the ten loan specialists in the Respondent's Loan Management Branch of the Washington, D.C. Area Office, and a collective bargaining agreement between the parties covering those employees has been in effect. The Loan Management Branch services projects for its clients which include other components of the Agency, owners, managers, and tenants. Services include reviewing financial statements, processing rent increases, reviewing management agreements and plans, processing transfers of physical assets, resolving audits, and handling complaints and problems as they arise. In July of 1981, /2/ the Respondent began plans for restructuring its Loan Management Branch. On Friday, October 2, at approximately 4:00 p.m., the Union was notified, at a meeting held for that purpose, that a reorganization of the Loan Management Branch would be implemented the following Monday, October 5. At the meeting, the Union requested negotiations with the Respondent concerning the procedures leading to implementation of the reorganization, and concerning its impact on adversely affected employees. The record does not show what response, if any, was given. It does show that the Respondent stated that the reorganization, in its opinion, would not have an adverse impact on any of the employees in the bargaining unit. /3/ At approximately 4:30 p.m. the same day, the Respondent notified the employees of the Branch that the reorganization would be implemented the following Monday, October 5. The reorganization in fact was implemented on October 19, when the Respondent detailed three Branch employees to "unclassified duties" as temporary team leaders, and redistributed the workload of all employees of the Branch. The Respondent argues that no unfair labor practice violation should be found, as the reorganization was not a change that had a substantial or adverse impact on unit employees, and that the reassignment of cases was not a change in the amount or nature of the duties of any of the unit employees. The Respondent relies upon the Authority's decision in Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA 333(1981). There is no allegation or contention that the Agency owed a duty to the Union to negotiate over the substance of its decision to reorganize its Loan Management Branch, 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 reorganization 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, Illinois, 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. /4/ 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, the nature and degree of the impact is at issue between the parties. For the reasons which follow, we find that the impact or reasonably foreseeable impact of the reorganization of the Loan Management Branch 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(b)(2) and (3) of the Statute concerning either the procedures it would observe in implementing the reorganization 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 nature of the employees' work duties remained the same. Thus, while cases were reassigned among the ten unit employees, there is no showing that there was a change in the manner in which cases thereafter were to be handled or in the overall case load of individual Branch employees. The only change was the temporary assignment of three of the ten employees in the Loan Management Branch to unspecified "unclassified duties." The General Counsel points to the fact that these temporary assignments were later extended, and argues that the nature of the assignments was such as to disadvantage the other seven Branch employees in their chances for future promotions. We note, however, as to the first point, that even though the assignments were extended, they remained temporary in nature. We find the latter point, without any evidentiary support in the record, to be speculative and unpersuasive. Further, the record shows that the ten Loan Management Branch employees involved herein are part of either a consolidated unit of professional employees or nonprofessional employees, including, among others, all Washington, D.C. employees of the Agency. /5/ Accordingly, any impact resulting from the reorganization of the Loan Management Branch affected, at most, only ten unit employees in a consolidated nationwide unit comprised of approximately 200 professional employees or, in the alternative, in a consolidated nationwide unit of approximately 8000 nonprofessional employees. Finally, the record does not show any past practice or bargaining history which would indicate how the parties had handled analogous changes. Based on the totality of the facts and circumstances of this case, and noting particularly that only three employees in a unit of either approximately 200 or 8000 employees were assigned unspecified "unclassified duties," that the record fails to establish that any other unit employees were directly affected, and that the reorganization was of temporary duration, the Authority concludes 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 /6/ 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. Further, the Authority concludes that the General Counsel has failed to establish that the Respondent unlawfully bypassed the Union in violation of section 7116(a)(1) and (5) of the Statute. In so finding, the Authority notes particularly that on October 2, 1981, the Respondent merely notified its employees of the proposed reorganization after having so notified the Union, and that the stipulated record contains no evidence that the Respondent attempted to deal directly with the employees concerning their conditions of employment, or that its actions in the circumstances constituted an attempt to undermine the status of the Union as the exclusive representative of its employees. Accordingly, we find that the Respondent, by notifying the employees of the reorganization of October 2, 1981, did not violate section 7116(a)(1) or (5) of the Statute. /7/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20086 by, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., September 27, 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 --------------- FOOTNOTES$ --------------- /1/ 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(.) /2/ All dates hereinafter refer to 1981. /3/ Jt. Exh. No. 8. /4/ 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. /5/ 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. See Union Recognition in the Federal Government, published by the U.S. Office of Personnel Management, at 391 (Jan. 1983). 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 Branch employees involved herein. /6/ In view of this conclusion, the Authority finds it unnecessary to decide whether the Respondent's notice to the Union of the reorganization on October 2 would have been considered adequate if the reorganization had given rise to a duty to notify and bargain with the Union pursuant to section 7106(b)(2) and (3) of the Statute.