20:0374(38)CA - HUD Washington, DC, Area Office and AFGE -- 1985 FLRAdec CA



[ v20 p374 ]
20:0374(38)CA
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.