24:0403(42)CA - HHS, SSA and AFGE Local 1760 -- 1986 FLRAdec CA



[ v24 p403 ]
24:0403(42)CA
The decision of the Authority follows:


 24 FLRA No. 42
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1760
 Charging Party
 
                                            Case No. 2-CA-40211
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the General Counsel to the attached Decision of the
 Administrative Law Judge.  The Respondent filed an opposition to the
 General Counsel's exceptions.  The issue is whether, as found by the
 Judge, the Respondent's refusal to bargain with the exclusive
 representative concerning the impact of one employee's reassignment
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute).
 
                              II.  Background
 
    The record reflects that the American Federation of Government
 Employees, AFL-CIO, is the exclusive representative of a consolidated
 nationwide unit of certain employees of the Respondent, including those
 of the Northeastern Program Service Center (the Center), and that the
 Charging Party acts as its agent at the Center.  The Center is one of
 the main facilities for processing claims of Social Security
 beneficiaries.  It is divided organizationally into seven processing
 sections, each consisting of several work modules and an Inquiry and
 Expediting (I&E) Unit.  Prior to the reassignment giving rise to the
 complaint in this case, the I&E Unit in Section 3 employed, among
 others, three Search and Control (S&C) clerks.  One of the S&C clerks
 was Selma Hirsch, who had been permanently reassigned to that position
 from the position of file clerk in a module on November 13, 1983.  The
 record reveals that it was not necessary for Hirsch to receive training
 or to learn any new skills in order to perform satisfactorily in her new
 position.  In December 1983, a separate reconsideration group was
 established at the Center which reduced certain of the work handled by
 the I&E Units.  Based on this decrease in workload, Hirsch was
 designated on January 10, 1984, to be reassigned back to the file clerk
 position she previously held in one of the work modules, and the
 reassignment was effected on February 6, 1984.  The record reflects that
 prior to the effectuation of the reassignment, the Respondent took the
 position, among other things, in response to the Charging Party's
 request to bargain, that the reassignment would result in no material
 change in the affected employee's duties.
 
                          III.  Judge's Decision
 
    The Judge noted that the Authority has previously 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."
 (Footnote omitted.) U.S. Government Printing Office, 13 FLRA 203, 204-05
 (1983).  The Judge also referred to the Authority's decision in
 Department of Health and Human Services, Social Security Administration,
 Chicago Region, 15 FLRA 922 (1984), 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."
 
    The Judge found a violation of section 7116(a)(1) and (5) of the
 Statute based upon the Respondent's refusal to bargain upon request,
 concluding first that the request to bargain was made in a timely
 fashion and second that the reassignment of employee Selma Hirsch from
 the position of S&C clerk in the I&E Unit into the position of file
 clerk in one of the work modules within the same processing section
 constituted a change in working conditions which was more than de
 minimis.  In reaching this latter conclusion, the Judge noted the
 differences in duties and tasks required in the two work units;  the
 impact of Hirsch's reassignment on the two remaining I&E clerks;  and
 the fact that while no differences in grade were involved, the line of
 progression had been from file clerk in a module to S&C clerk in the I&E
 Unit.
 
                              IV.  Exceptions
 
    The General Counsel's exceptions were limited to the Judge's failure
 to provide a status quo ante remedy and his failure to rule on the
 General Counsel's request for such a remedy.  The Respondent opposed the
 General Counsel's exceptions.
 
                               V.  Analysis
 
    Based on the facts set out above, we conclude, contrary to the Judge,
 that the Respondent is not obligated to bargain with the Charging Party.
  Therefore, its refusal to do so did not violate section 7116(a)(1) and
 (5) of the Statute.  In view of the importance of the issues involved in
 this case, particularly the extent of an agency's duty to bargain
 regarding changes in conditions of employment, the bases of our decision
 merit discussion.
 
    A.  The obligation to bargain regarding changes in conditions of
 employment.
 
    The duty of bargain in good faith under the Statute "requires that a
 party meet its obligation to negotiate prior to making changes in
 established conditions of employment, during the term of a collective
 bargaining agreement, absent . . . a clear and unmistakable waiver of
 bargaining rights." Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA 9 (1981).  This obligation applies whenever management
 changes an established policy or past practice pertaining to conditions
 of employment whether or not the matter is covered by a provision in an
 existing collective bargaining agreement.  Department of the Navy,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA 352 (1981);
  U.S. Army Reserve Components Personnel and Administration Center, St.
 Louis, Missouri, 19 FLRA No. 40 (1985).
 
    It is clear, however, in both the Federal and private sectors that
 certain management actions do not rise to a level which creates a
 bargaining obligation.  Where the obligation to bargain extends to the
 impact and implementation of the change (or to procedures and
 appropriate arrangements where the exercise of management rights under
 section 7106 is involved), the relative significance of the change and
 the degree of its impact on bargaining unit employees have been relevant
 considerations under both Executive Order 11491 and the Statute.  /1/
 
    B.  The use of a standard to identify changes which require
 bargaining and those which do not.
 
    The use of a standard to distinguish between changes which require
 bargaining and those which do not is fully supported by the Statute and
 its purposes and policies.  Section 7101 of the Statute reflects
 Congress' finding that collective bargaining is in the public interest,
 as well as the direction that the Statute be interpreted in a manner
 which is consistent with the requirement of an effective and efficient
 Government.  In cases such as these, the Authority must accommodate
 Congress' provisions both for consultation and negotiation concerning
 working conditions of Federal employees, and for the effective and
 efficient operation of Government agencies through the exercise of
 management rights or through other actions required or permitted by law.
 
    Further, section 7105(a)(1) requires the Authority to provide
 "leadership in establishing policies and guidance" relating to labor
 relations in the Federal sector.  In fulfilling this responsibility, the
 Authority must take care that its adjudicative processes not be
 unnecessarily burdened with cases that do not serve to bring meaning and
 purpose to the Federal labor-management relations program.  While we
 seek to ensure that the rights of agencies, unions, and employees under
 the Statute are protected in situations involving changes in conditions
 of employment, we must also seek to discharge our responsibilities in a
 fashion that promotes meaningful bilateral negotiations.  Interpreting
 the Statute to require bargaining over every single management action,
 no matter how slight the impact of that action, does not serve those
 aims.  The limited scope of Federal sector bargaining caused by external
 laws, rules, and regulations also demands that the Authority not impose
 further limitations unless they are based on clear statutory authority
 and are buttressed by sound policy considerations.
 
    C.  Previous standards used to identify changes which require
 bargaining.
 
    Two standards have been used to date to identify those changes which
 require bargaining.  The old standard required a "substantial" impact.
 See, for example, Social Security Administration, Bureau of Hearings and
 Appeals, 2 FLRA 238 (1979).  The more recent standard required that the
 impact be more than de minimis.  /2/ In discussing the de minimis
 standard in Department of Health and Human Services, Social Security
 Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the
 Authority identified a number of factors to be considered in determining
 whether a particular change in conditions of employment was more than de
 minimis.  The factors identified were (1) the nature of the change (for
 example, the extent of the change in work duties, location, office
 space, hours, loss of benefits or wages, and the like);  (2) the
 duration and frequency of the change (that is, the temporary, recurring,
 or permanent nature of the change);  (3) the number of employees
 affected or foreseeably affected by the change;  (4) the size of the
 bargaining unit;  and (5) the extent to which the parties established,
 through negotiations or past practice, procedures and appropriate
 arrangements concerning analogous changes in the past.
 
    D.  The standard to be applied in this and future cases.
 
    We have reassessed and modified the recent de minimis standard.  In
 order to determine whether a change in conditions of employment requires
 bargaining in this and future cases, the pertinent facts and
 circumstances presented in each case will be carefully examined.  In
 examining the record, we will place principal emphasis on such general
 areas of consideration as the nature and extent of the effect or
 reasonably foreseeable effect of the change on conditions of employment
 of bargaining unit employees.  Equitable considerations will also be
 taken into account in balancing the various interests involved.
 
    As to the number of employees involved, this factor will not be a
 controlling consideration.  It will be applied primarily to expand
 rather than limit the number of situations where bargaining will be
 required.  For example, we may find that a change does not require
 bargaining.  However, a similar change involving hundreds of employees
 could, in appropriate circumstances, give rise to a bargaining
 obligation.  The parties' bargaining history will be subject to similar
 limited application.  As to the size of the bargaining unit, this factor
 will no longer be applied.
 
    E.  Application of the standard in this case.
 
    Applying the above analysis and based on the facts and circumstances
 in this case, we conclude that the Respondent was under no obligation to
 bargain with the Union concerning implementation procedures or
 appropriate arrangements pertaining to the reassignment of the employee.
  While there was some change in the conditions of employment of the
 employee as a result of her reassignment from the clerical position in
 the Inquiry and Expediting (I&E) Unit back to the clerical position she
 had previously held, review of the relevant facts and circumstances
 establishes that the change did not give rise to a bargaining
 obligation.  In reaching this result, we note the limited nature of the
 change involved, i.e., the reassignment of the employee from a position
 she had held for less than three months back to the position she had
 previously held, based on the operational needs of the Respondent.  The
 employee's reassignment involved no loss in pay or grade, nor did it
 involve a change in her hours.  Although the new position involved some
 changes in duties and tasks as noted by the Judge, the duties of the two
 positions are substantially similar.  Moreover, the anticipated effect
 on the remaining S&C clerks due to Hirsch's reassignment should be
 minimal since the reassignment was directed as a result of a decrease in
 workload.
 
    Accordingly, we conclude that the Respondent was not obligated to
 bargain with the Union in this matter and that by refusing to do so the
 Respondent did not violate section 7116(a)(1) and (5) of the Statute.
 Notwithstanding this determination, we believe that the collective
 bargaining relationship between the Agency and the Union in this case
 would be better effectuated by their timely and amicable efforts to
 meet, discuss and possibly resolve issues raised by the minor changes in
 conditions of employment.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and adopts the
 Judge's findings and conclusions only to the extent that they are
 consistent with our decision.  Therefore, we reverse the Judge's finding
 of a violation and shall order that the complaint be dismissed.  /3/
 
                                   ORDER
 
    The complaint in Case No. 2-CA-40211 is dismissed.
 
    Issued, Washington, D.C., December 9, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 2-CA-40211
 
    DEPARTMENT OF HEALTH & HUMAN SERVICES SOCIAL 
    SECURITY ADMINISTRATION
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
    AFL-CIO, LOCAL 1760
         Charging Party
 
    Daniel H. Green, Esq.
    Julian Bergman
    For the Respondent
 
    Jon R. Steen, Esq.
    For the General Counsel
 
    James Armet
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on April 30,
 1984 by the Regional Director for the Federal Labor Relations Authority,
 Region II, a hearing was held before the undersigned on June 21, 1984 at
 New York, New York.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101 et seq., (herein called the Statute).  It was
 based on a charge filed on February 8, 1984 by American Federation of
 Government Employees, AFL-CIO, Local 1760 (herein called the Union)
 against the Department of Health and Human Services, Social Security
 Administration (herein called the Respondent).
 
    The Complaint alleged, in substance, that on or about February 6,
 1982 /4/ Respondent unilaterally changed working conditions by
 reassigning a search and control clerk at its Northeastern Program
 Service Center, and thereby reduced the staff in its Inquiry and
 Expedite unit;  that such action was taken without notifying the Union
 and affording it an opportunity to bargain re the impact and
 implementation of such change.
 
    Respondent's Answer, dated May 21, 1984, denied the foregoing
 allegation as well as the commission of any unfair labor practices.
 
    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.  /5/
 
    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 American Federation of
 Government Employees, AFL-CIO, has been the exclusive representative of
 a consolidated nationwide unit of certain employees of Respondent,
 including all nonsupervisory employees in the Northeastern Program
 Service Center with specified exclusions.  /6/
 
    2.  At all times material herein Respondent and American Federation
 of Government Employees, AFL-CIO, have been parties to a collective
 bargaining agreement which covers the employees in the Northeastern
 Program Service Center.  The said agreement provides, inter alia, as
 follows:
 
                                 ARTICLE 4
 
               Negotiations During the Term of the Agreement
 
       Section 1 -- General
 
          The Administration will provide the Union reasonable advance
       notice prior to implementation of changes affecting conditions of
       employment subject to bargaining under 5 USC 71.  Upon notice from
       the Administration of a proposed change, the designated union
       representative will notify the designated management
       representative of its desire to consult and/or negotiate on the
       change.
 
          The Union will submit written proposals if applicable within a
       reasonable period after notice of the proposed change.  Bargaining
       will begin as soon as possible, and will not exceed ten (10)
       working days.  All issues not resolved at that time may be
       referred to the Federal Service Impasses Panel for resolution
       under its rules.
 
    3.  The Northwestern Program Service Center is the main processing
 facility for claims of Social Security beneficiaries.  There are seven
 processing sections, and each is divided into a group of modules and an
 Inquiry and Expediting Unit.
 
    4.  The Inquiry and Expediting (I&E) Unit handles the sensitive
 cases.  For about five or six years, and prior to February, 1984,
 Section 3 of I&E employed five technicians, three Search and Control
 (S&C) Clerks, one secretary and one manager.  The technicians did the
 actual work on the claims.  S&C clerks prepared cases for processing and
 perform nontechnical work thereon:  preparing control cards for
 correspondence opinions, which involved finding folders and associating
 the material with the folders and then sending same to the processing
 staff;  doing inventory /7/ of cases;  answering telephone inquiries;
 and locating files.
 
    5.  In 1983 there were three S&C clerks in I&E, 3.  One of these
 retired on September 20 of that year.  Jerry Lawrence, Section Manager,
 suggested to Oren Palmer, Deputy Section Manager, that the vacancy be
 filled by file clerk Selma Hirsch.  It was discussed with Warren Holton,
 Union Vice President, and they agreed that Hirsch be detailed to I&E 3
 for thirty days so that her performance could be reviewed.
 
    6.  Hirsch was detailed to I&E 3 as a S&C clerk in October, 1983.  On
 November 13, of that year she was formerly reassigned to that position
 since her performance was satisfactory.  No training was required for
 her job, nor was it necessary that Hirsch learn any new skills.
 
    7.  In December, 1983 Respondent established a reconsideration group.
  The term "reconsideration", as it applies to Respondent's workload,
 concerns instances where a beneficiary questions whether he receive
 payment or whether additional payment should be made.  This work had
 been handled by the seven I&E units and the processing of those cases
 took 30-60 days.  The reconsideration group was set up to simplify the
 process, and it was staffed from the modules with claims authorizers,
 benefits authorizers, typists, and module control clerks.  The I&E units
 no longer handle reconsideration cases.
 
    8.  Several discussions took place during December, 1983 and January,
 1984 between Deputy Section Manager Palmer and Union representative
 Holton.  /8/ In early December notification was given to Holton that it
 might be necessary to detail an S&C clerk out of the I&E section to the
 module.  On December 12, 1983 Palmer discussed with Julian Bergman,
 Respondent's Labor Relations Specialist, the fact that, due to a
 decrease in workload in the I&E unit, management might want to reassign
 an S&C clerk out of the I&E section.  Bergman suggested he speak to the
 Union.
 
    9.  On December 19, 1983 Palmer talked to Holton and mentioned that
 he anticipated reassigning an S&C clerk out of I&E 3 due to the
 decreased workload thereat.  Holton stated that such a move could have
 office-wide implications;  that he would like to review it with other
 union officials and get back to Palmer.  On or about January 3, 1984 /9/
 Palmer mentioned to Holton that the latter had not "gotten back" to him
 re the reassignment of a S&C clerk.  However, Holton indicated he had
 nothing to report at that time.  Thereafter, on January 10, /10/ Palmer
 approached Holton and stated he was reassigning S&C clerk Selma Hirsch
 out of I&E;  that he would advise him later as to the date and location.
 
    10.  In a memorandum dated January 12, Holton notified Palmer that
 the Union demanded negotiation re the impact and implementation of its
 decision to reassign a S&C clerk from the I&E staff to a module.  The
 Union representative also requested certain information re the work
 receipts and service computation dates of the incumbent S&C clerks in
 I&E Unit 3.  /11/ Holton also stated that the Union would submit its
 proposals after receipt of the requested data.
 
    11.  Palmer sent a memorandum dated January 12 to Holton stating that
 the Union representative was advised during the week of December 19,
 1983 of the decision to reassign an I&E Control Clerk to a module in
 Section 3;  that it is Palmer's decision there is no obligation to
 negotiate with the Union.  The memorandum recited that Holton failed to
 submit timely proposals so that negotiations could be conducted within
 10 working days (Article 4, Section 1 of the agreement);  and that there
 is no material change in the working conditions of the employee to be
 reassigned.
 
    12.  In a memorandum dated January 13 from Holton to Palmer the Union
 representative stated that the Deputy Manager discussed detailing a S&C
 clerk temporarily rather than making a permanent reassignment.  Holton
 commented that timely notice of a proposed change was not given as
 required by Article 4, Section 4 of the written agreement;  /12/ and
 that, although management may not be required to bargain re the decision
 to reassign an employee, it is obligated to bargain re the impact and
 implementation thereof.  Holton repeated his former demand to negotiate
 in that regard as well as for the production of the requested
 information.  /13/
 
    13.  Holton sent another memorandum to Palmer, which was dated
 January 27, referring to the one dated January 13 that he sent the
 Deputy Manager, wherein the Union requested negotiation re the impact
 and implementation of the transfer of the S&C clerk to the module.  He
 requested a reply to the demand for such negotiation.
 
    14.  Under date of January 30 Palmer sent a memorandum to Holton
 reiterating management's position as set forth in its January 12
 memorandum to the Union.  Palmer declared that timely notification of
 the decision to reassign an employee from the I&E staff had been
 furnished Holton even though no material change in duties resulted from
 the reassignment;  that, nevertheless, Holton did not submit timely
 proposals.
 
    15.  In reply to Palmer's January 30 memorandum, Holton sent another
 memorandum to management on January 30.  In addition to repeating the
 Union's position re the obligation of Respondent to bargain as to impact
 and implementation, Holton submitted a proposal that management solicit
 volunteers when making a reassignment.  He also suggested that service
 computation date should govern if there are volunteers to determine
 which employee should be reassigned.
 
    16.  In another memorandum to Holton, dated February 1, Palmer
 reaffirmed management's contention that the Union did not pursue the
 matter in a timely fashion;  that no material change occurred in
 condition of employment;  and that management had no duty to bargain.
 
    17.  Selma Hirsch was reassigned from I&E 3 as a search and control
 clerk to a file clerk on February 6 in Module 18.
 
    18.  Prior to the reassignment of Hirsch there were three S&C clerks
 in I&E, Section 3.  Each control clerk governed two modules, and after
 February 6 the remaining two control clerks each covered three modules.
 All of the duties of these clerks, i.e., associating correspondence to
 files, taking inventory, preparing cases for processing, locating files,
 and handling telephone inquiries, were performed for an additional
 module.  Since each module contained 150 filing cabinets, the two
 control clerks searched 150 more cabinets.  S&C Clerk, Lee Harris in I&E
 3, testified he had to work a little more overtime and his backlog is
 higher.  /14/ Further, that the two control clerks cannot take lunch and
 other breaks together since one of them must be on duty.
 
    19.  Records facts show that while the S&C clerk in I&E and the file
 clerk in modules do perform similar duties, there are some differences
 in their tasks.  Critical and sensitive cases are handled by control
 clerks in I&E, while the file clerk in a module gets a full range of
 incoming "receipts".  There is more physical effort required of the file
 clerk since the latter must lift and deliver a large number of folders
 compared to a few by the control clerk.  As many as 50-100 folders are
 carried by the file clerk who may use a wagon to wheel them away.  The
 S&C clerk in I&E carries folders to the modules.  He brings critical
 cases to the manager and leaves the file cases on the receipt table in
 the module.  The "racks" /15/ will then file the folders away.
 
    The control clerks generally visited all the floors in two buildings,
 whereas the file clerk was confined to the work area within the module.
 To some extent there is less supervision in the I&E unit.  Only one
 supervisor is assigned thereat and he is not present most of the time,
 whereas there are three supervisors in the module who supervise the file
 clerks.
 
    Although there is no pay differential between the control clerk and
 file clerk positions, the usual line of progression is from the file
 clerk in the module to the S&C clerk in I&E.  Both Hirsch and S&C Clerk
 Lee Harris testified they considered the transfer to file clerk from the
 control clerk in I&E to be a demotion.
 
                                Conclusions
 
    A determination as to whether Respondent violated the Statute by
 failing and refusing to negotiate the impact and implementation of the
 reassignment of employee Selma Hirsch turns on the resolution of two
 issues:  (1) whether the Union's request to negotiate in that regard was
 timely so as to impose a duty upon Respondent to bargain;  (2) assuming
 arguendo the Union's request was timely made, whether the reassignment
 resulted in a minimal impact so as to warrant the conclusion that no
 violation of Section 7116(a)(1) and (8) be found herein.
 
    (1) Respondent contends that the Union virtually slept on its rights
 and thus waived any right to insist upon bargaining re the reassignment
 of Selma Hirsch.  It insists that the Union, which was notified by
 management on December 19, 1983 of the proposed transfer to this
 employee, waited two weeks before requesting bargaining;  that union
 representative Holton also waited two weeks (January 13, 1984 until
 January 27, 1984) for an answer from management to his request.  Such a
 delay, it is argued, is unreasonable and flouts Article 4, Section 1 of
 the parties' collective bargaining agreement.
 
    In addition to imposing a duty upon an agency to provide a union with
 adequate notice prior to exercising a reserved management right, the
 Authority has declared that the union must submit its bargaining request
 within a reasonable time after receiving such notification.  United
 States Department of Defense, Department of the Army, Headquarters, Fort
 Sam Houston, Texas, 8 FLRA No. 112.  Where a union fails to request
 bargaining until after the change is implement, such request is untimely
 and an employer may not be deemed to have refused to bargain unlawfully.
  Department of the Army, U.S. Military Academy, West Point, New York,
 A/SLMR No. 1138, 8 A/SLMR 1163.  Further, if a union is notified that a
 change will occur in 10 days, its submission of proposals at the last
 minute before an agency implements said procedures has been held to
 constitute an untimely request to bargain.  Department of the Treasury,
 U.S. Customs Service, Region I (Boston, Massachusetts), 16 FLRA No. 97.
 See also, Social Security Administration, Bureau of Hearings and
 Appeals, A/SLMR No. 960, 8 A/SLMR 33.
 
    In the case at bar I am not persuaded that the Union's request to
 bargain may properly be deemed untimely.  While the Respondent dates its
 notification re the intended reassignment of Hirsch as of December 19,
 1983, the record does not reflect that such notice was absolute or
 definitive in nature.  Thus, Palmer on that date told Holton that
 management anticipated reassigning S&C clerk out of I&E 3.  The Deputy
 Section Manager did not specify a particular date when the reassignment
 would occur.  Further, he made no mention at that time of the unit or
 group to which the S&C clerk would be reassigned, nor was mention made
 of the particular control clerk to be transfered.  Under the
 circumstances, the Union was not provided with much more than a general
 expectation that management would probably move a S&C clerk out of the
 I&E unit.  It was not until January 10 that Palmer notified Holton that
 management would be reassigning control clerk Selma Hirsch out of I&E.
 Moreover, Palmer stated he would advise Holton later as to the date and
 location.  It scarcely behooves Respondent to contend that proper
 notification was given the Union prior to January 10 re the
 reassignment.  Accordingly, the request to bargain made by Holton on
 January 12 was, in my opinion, timely in nature.  Cf.  General Services
 Administration, 15 FLRA No. 6.  /16/
 
    (2) While an agency may not be required to negotiate a decision
 reserved to it as a management right under Section 7106(a) of the
 Statute, it may be called upon to bargain as to the impact and
 implementation thereof.  Prior to 1983 the test applied in the public
 sector involved a determination as to whether such impact resulting from
 the change was "substantial" in nature.  Then in U.S. Government
 Printing Office, 13 FLRA No. 39, the Authority rejected the yardstick of
 "substantiality" in respect to impact of a change in condition of
 employment.  It concluded therein that the duty to negotiate comes into
 play where the change results in an impact which is reasonably
 foreseeable.  However, no such duty is imposed where the foreseeable
 impact is de minimis in nature.  See also Department of Health and Human
 Services, Social Security Administration, Chicago, Illinois, 15 FLRA No.
 174.
 
    In the case at bar Respondent insists that the reassignment of Selma
 Hirsch constituted a minimal change in her working conditions and
 resulted in no adverse effect upon unit employees.  I do not agree.
 Although it is true that both the S&C clerk and the module file clerk
 both have similar duties and tasks to perform, there are some
 differences in their working conditions.  The record reflects that the
 file clerks must exert much more physical effort than that which is
 required of the control clerk.  In her new position Hirsch is required
 to use a wagon to load folders, and she may lift and deliver 50-100
 folders, whereas as a control clerk in the I&E unit very few folders
 were carried by her each day to the module.  In her former position
 Hirsch and the other S&C clerks handled only sensitive cases, or those
 which were given special consideration as critical matters.  The file
 clerks, including Hirsch in her reassigned job at the module, handle a
 full range of incoming receipts involving all types of cases.  S&C
 clerks in the I&E unit have one supervisor whereas the module clerks
 have three managers.  The control clerk has a telephone on her desk.  If
 the District Office called for a folder, the said clerk could go into
 the module and procure it.  The file clerk has no phone on her desk and
 a question to her is directed to somebody else.  The file clerk is
 confined to the work area in that module while the S&C clerk visits all
 floors in two buildings.
 
    In respect to the S&C clerks in the I&E unit, record facts show that
 prior to February, 1984 each of the three clerks covered two modules in
 associating correspondence, preparing cases for processing, locating and
 delivering files.  Since the reassignment of Hirsch each of the two
 control clerks covers three modules.  Further, each such clerk must take
 lunch or a break alone since it is necessary that one of them remain on
 duty during working hours.  Previously two of those individuals could go
 together at such times.  Not is also taken that the line of progression
 has always been from file clerk position to the S&C clerk in I&E.
 
    In sum, I conclude that the reassignment of Selma Hirsch from the I&E
 unit to the module as a file clerk resulted in a change in working
 conditions.  Moreover, I am persuaded, based on the record herein, that
 the changes were substantial enough so that the impact may properly be
 termed as more than de minimis.  Cf.  Department of Health and Human
 Services, Social Security Administration, Chicago, Illionois, supra.
 Accordingly, since Respondent failed and refused to bargain as to the
 impact and implementation of such reassignment -- after a timely request
 by the Union herein -- I also conclude Respondent has violated Section
 7116(a)(1) and (5) of the Statute.
 
    Accordingly, and based on the foregoing, it is recommended that the
 Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 7118 of the Statute and Section 2423.29 of the
 Rules and Regulations, it is hereby ordered that the Department of
 Health and Human Services, Social Security Administration, shall:
 
    1.  Cease and desist from:
 
       (a) Reassigning any employees represented exclusively by American
       Federation of Government Employees, AFL-CIO, Local 1760, without
       first notifying the exclusive representative and affording it an
       opportunity to bargain with respect to the procedures which
       management will observe in implementing such reassignment and
       concerning 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 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
       (a) Notify and bargain in good faith with American Federation of
       Government Employees, AFL-CIO, Local 1760, upon request, with
       respect to the procedures which management will observe in
       implementing a reassignment of employees, and concerning the
       appropriate arrangements for employees adversely affected thereby.
 
          (b) Upon request, bargain in good faith with American
       Federation of Government Employees, AFL-CIO, Local 1760,
       concerning the appropriate arrangements for employees adversely
       affected by the reassignment of employee Selma Hirsch from the
       Inquiry and Expediting Unit, Section 3 to Module 18 at the
       Northeastern Program Service Center.
 
          (c) Post at its facilities at the Northeastern Program Service
       Center, Flushing, New York, 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 Director, or
       his designee, and shall be posted and maintained for 60
       consecutive days thereafter in conspicuous places, including all
       bulletin boards and other places where notices to employees are
       customarily posted.  Reasonable steps shall be taken by Respondent
       to ensure that said notices are not altered, defaced, or covered
       by any other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       /s/ WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  May 20, 1985
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The National Labor Relations Board similarly makes a threshold
 determination in deciding whether an employer has a duty to bargain.
 Where the change made by the employer is not a "material, substantial or
 significant change" from past practice, the Board has found that the
 employer has no statutory duty to bargain over the change.  See Peerless
 Food Products, Inc., 236 NLRB 161 (1978).  The Board also considers the
 utilization of its resources in the processing of unfair labor practice
 cases.  See Jimmy Wakely Show, 202 NLRB 620 (1973).
 
    (2) The term de minimis is derived from the Latin phrase "De minimis
 non curat lex," which is translated to mean that the law does not care
 for, or take notice of, very small or trifling matters;  the law does
 not concern itself about trifles.  Black's Law Dictionary 388 (5th Ed.
 1979).
 
    (3) In view of this disposition, we find it unnecessary to reach or
 pass upon the Judge's failure to order a status quo ante remedy under
 the circumstances.
 
    (4) At the hearing the Complaint was amended to change the year from
 1982 to 1984.
 
    (5) Subsequent to the hearing General Counsel filed a Motion to
 Strike certain portions of Respondent's brief as containing facts
 unsupported by the record.  Respondent filed an opposition to said
 Motion.  In its brief Respondent refers to:  (a) a dismissal and appeal
 denial of another unfair labor practice charge involving the same
 parties;  (b) the fact that James Armet, an individual with whom Union
 representative Warren Holton testified he spoke to on January 10, 1984,
 was on leave that date.  Documents supporting such evidence are attached
 to Respondent's brief.  Apart from the relevancy or determinative nature
 of such facts and material, the undersigned will not consider any
 evidence not included in the official record of the hearing.  Only the
 testimony and exhibits adduced thereat are relied upon in the
 disposition of this case.  The Motion is denied. See Internal Revenue
 Service, 16 FLRA No. 119.
 
    (6) Respondent's Answer admits that (a) American Federation of
 Government Employees, AFL-CIO has delegated to the National Council of
 SSA Payment Centers the authority to act as its representative for
 collective bargaining of Respondent's employees at the Northeastern
 Program Service Center, and the delegation has been recognized by
 Respondent;  (b) American Federation of Government Employees, AFL-CIO,
 Local 1760 (the Union) has, at all times material herein, acted as agent
 of the Council for the purpose of collective bargaining for Respondent's
 employees at the Northeaster Program Service Center, and the agency
 relationship has been recognized by Respondent.
 
    (7) Each week the I&E unit receives a computer print-out of all cases
 recorded into I&E.  This is broken down into cases (1) in actual
 processing, (2) missing, or which I&E was awaiting;  (3) in a payment
 holding file, where payment is being made thereon.  Inventories are done
 weekly with a record being made of the location of each folder.
 
    (8) A credibility issue is posed since there is a conflict of
 testimony in respect to the dates of the