30:0346(43)CA - HHS, Family Support Administration and NTEU -- 1987 FLRAdec CA



[ v30 p346 ]
30:0346(43)CA
The decision of the Authority follows:


30 FLRA No. 43

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, FAMILY
SUPPORT ADMINISTRATION

                  Respondent

       and

NATIONAL TREASURY EMPLOYEES UNION

                  Charging Party

Case No. 3-CA-70117

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The Charging Party (the Union) filed an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by detailing bargaining unit employees from the Office of Family Assistance to a Work Programs Task Force without providing the Union with prior notice and an opportunity to bargain over the impact and the procedures for implementation of its decision. The Judge concluded that the Respondent's conduct violated the Statute as alleged. For the reasons which follow, we conclude, in agreement with the Judge, that the Respondent committed the unfair labor practice alleged in the complaint.

II. Facts

On November 7, 1986, the Union was certified as the exclusive representative of certain employees of the Department of Health and Human Services, Family Support Administration. The Office of Family Assistance (OFA) is a component of the Family Support Administration. The [PAGE] establishment of a Work Programs Division is one of the goals of a reorganization being undertaken in OFA. 1

In planning the creation of a Work Programs Division, the Respondent identified employees within the OFA whose specialty was work programs or whose functional area was similar to the tasks needed to be performed in work programs. Based on this and other information, the Respondent selected and assigned 15 employees to a Work Programs Task Force. The employees assigned to the Task Force were informed by memorandum dated December 5, 1986, that the Task Force was a major initiative and that because many of those assigned were new to the work programs area and would assume new responsibilities, several orientation sessions would be held.

Nine of the 15 employees assigned to the Task Force were detailed by a Standard Form 52, Request for Personnel Action, which, among other things, contained a statement that the employees were being detailed to unclassified duties. None of those detailed had a change in pay, grade, working hours, or office space. Although seven employees assigned to the Task Force continued to do the same work under the same supervision, eight of the employees were required to perform different work under different supervision. Several were also required to undergo training and to engage in travel as a result of their assignment to the Task Force. No employee was required to do work which was beyond those general duties covered under his or her position description.

The details were originally scheduled to last no more than 120 days. However, several employees were informed that the details might be extended. In addition, OFA issued a memorandum on December 31, 1986, indicating its "hope" that the Task Force would be officially established as a permanent division. Finally, the record indicates that the details in fact were extended.

III. Administrative Law Judge's Decision

Applying the Authority's standard set forth in Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 405-08 (1986), the Judge concluded that the implementation of the details resulted in a change in conditions of employment having an impact or a [ v30 p2 ] reasonably foreseeable impact on bargaining unit employees which gave rise to an obligation to bargain. He noted specifically that the original length of the detail--120 days--was a significant period of time. The Judge also noted the indicators that the Task Force might become permanent and the fact that the detail was extended. Based on these factors, the Judge found that assignments to the Task Force had the potential to affect career and promotional opportunities of unit employees both inside and outside the Task Force. He also found that since many of the detailed employees were required to perform new tasks under different supervision, the details had the potential to adversely affect their performance ratings. Therefore, he concluded that the Respondent's failure to provide prior notice of this change in conditions of employment and to bargain over procedures and appropriate arrangements violated section 7116(a)(1) and (5) of the Statute.

IV. Positions of the Parties

The Respondent contends that the record does not support the Judge's conclusion that the Respondent's decision to detail employees to the Task Force resulted in a more than de minimis change in working conditions of unit employees so as to give rise to a bargaining obligation. Specifically, the Respondent contends that there was no evidence that the details had the potential to affect employees' career and promotional opportunities both inside and outside the Task Force. The Respondent also disputes the Judge's conclusion that the Respondent reasonably should have foreseen that the assignment of new tasks to eight of the employees had a potential to adversely affect the employees' performance ratings.

The Charging Party contends that the Judge's conclusions are supported by the record. The Charging Party also argues that the Authority's decision in U.S Department of Labor, Occupational Safety and Health Administration, 24 FLRA 743 (1986) and prior decisions of the Authority support the Judge's conclusions.

The General Counsel did not file an opposition to the Respondent's exceptions.

V. Discussion

we agree with the Judge for the reasons stated in his Decision that the Respondent was obligated to give the Union prior notice of its decision to detail bargaining unit employees to the Work Programs Task Force and an opportunity to negotiate concerning the procedures it would observe in [ v30 p3 ] effecting the details and appropriate arrangements for employees adversely affected by the details.

In reaching this conclusion, the Judge applied the principle stated in Social Security Administration. In determining whether a change in conditions of employment requires bargaining, the Authority will place principal emphasis on consideration of the nature and extent of the effect or reasonably foreseeable effect of the change in conditions of employment on bargaining unit employees. The Judge found that the selection of employees for the Task Force had the potential to (1) affect their career and promotional opportunities, and (2) adversely affect their performance ratings. His findings are supported by the record and we adopt them. We note particularly the record evidence concerning the potential permanent nature of the details. See U.S. Department of Labor, Occupational Safety and Health Administration, 24 FLRA 743, 745-46 (1986).

The Respondent notes that none of the detailed employees were asked to perform duties outside their official position descriptions. The Respondent references the decision in Social Security Administration, in which the Authority concluded that the reassignment of an employee to a position she previously had held did not give rise to a bargaining obligation because the change in conditions of employment was of a limited nature. The change in the duties and tasks of the detailed employees in this case is more significant than that in Social Security Administration. Several of the employees detailed in this case had never performed the specific duties or functions assigned to them on the Task Force, unlike the reassigned employee in Social Security Administration.

Based on all of these factors, we reject the Respondent's contention that the effect of the assignment of employees to the Task Force was limited in nature so as not to give rise to a bargaining obligation.

Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of Health and Human Services, Family Support Administration shall:

1. Cease and desist from: [ v30 p4 ]

(a) Failing and refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed in detailing unit employees to the Work Programs Task Force in the Office of Family Assistance and over appropriate arrangements for unit employees adversely affected by the detail.

(b) In any like or related manner, interfering with, restraining, or coercing 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) Upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning the procedures to be observed in detailing unit employees to the Work Programs Task Force in the Office of Family Assistance and over appropriate arrangements for unit employees adversely affected by the detail.

(b) Post at its facilities 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 the Director of the Family Services Administration 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 to ensure 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 3, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C.,November 30, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p5 ]

                    NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
             AND TO EFFECTUATE THE POLICIES OF THE
       FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                 WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed in detailing unit employees to the Work Programs Task Force in the Office of Family Assistance and over appropriate arrangements for unit employees adversely affected by the detail.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning the procedures to be observed in detailing unit employees to the Work Programs Task Force in the Office of Family Assistance and over appropriate arrangements for bargaining unit employees adversely affected by the detail.

                             ______________________________
                                       (Activity)

Dated:___________________By:_______________________________
                               (Signature)          (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, (P.O. Box 33758), Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [PAGE]

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, FAMILY
SUPPORT ADMINISTRATION,

             Respondent

   and

NATIONAL TREASURY EMPLOYEES
UNION

             Charging Party

Case No. 3-CA-70117

Mary Mitchell Armstrong, Esquire
        For the Respondent

Debra R. Kolodny, Esquire
        For the Charging Party

Patricia Eanet Dratch, Esquire
        For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., against the Department of Health and Human Services, Family Support Administration, (Respondent or FSA), based on a charge filed by the National Treasury Employees Union (NTEU or Union). The complaint alleged, in substance that Respondent violated section 7116 (a)(1) and (5) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by detailing employees of its Office of Family Assistance to a Work Programs Task Force without providing the Union with notice and an opportunity to bargain over the impact and procedures for implementation of its decision. [PAGE]

A hearing was held in Washington, D.C. The Respondent, Charging Party, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and the Union filed helpful briefs, and the proposed findings have been adopted where found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

FSA is a primary national subdivision of the Department of Health and Human Services. It was established as such in April 1986. The Office of Family Assistance (OFA) is a component of FSA.

On November 7, 1986, the Federal Labor Relations Authority certified NTEU as the exclusive representative of an appropriate unit of FSA's employees including the employees who are the subject of this case. There are approximately 365 bargaining unit employees in FSA, including approximately 100 in OFA. NTEU was aware of some reorganizational activities within FSA when the Union was certified and expected that one of its first responsibilities would be to negotiate proposals regarding reorganizational activities.

By letter dated November 10, 1986, Debra Kolodny, Assistant Counsel for Negotiations, NTEU, requested that negotiations between NTEU and FSA begin immediately on an interim bargaining agreement and a separate reorganization agreement. Ms. Kolodny asked that NTEU be provided information concerning office moves, plans for organizational restructuring, and any reductions in force. She also presented interim proposals concerning reorganization and office moves, including a proposal that once an office move is announced, volunteers be sought before any employee is moved against his will.

On November 21, 1986 representatives of NTEU were briefed by FSA officials on the proposed reorganization of FSA. Subsequently, during the week prior to Thanksgiving, an OFA employee informed Ms. Kolodny that a major reorganization would take place in OFA before Thanksgiving. Ms. Kolodny contacted Floyd Brandon, Director, Division of Management and Regional Operations, informed him of the report, and requested a briefing on whatever was going on in OFA and an opportunity to bargain on whatever reorganization would take [ v30 p2 ] place. Brandon assured Kolodny that no reorganization would take place that week and that he would set up a meeting.

On December 2, 1986, NTEU representatives, including Debra Kolodny, were briefed by Floyd Brandon and Marissa Huttinger, Director of the Division of Administrative Services, OFA. Ms. Huttinger informed the NTEU representatives that, under OFA's proposed reorganization plan, the major impact at some point would be in the area of work programs where there would be new jobs, new position descriptions, and new responsibilities for employees. She also explained that there would be a Work Programs Task Force established where employees would be detailed on a temporary basis for some time. No date was given for the establishment of the Work Programs Task Force.

Work programs are programs to assist welfare recipients who are receiving aid under Aid to Families for Dependent Children (AFDC). The programs are intended to help the welfare recipients become self sufficient. There are four primary work programs. One is job search, where welfare agencies throughout the country assist clients in developing the skills to find work. A second program is the community work experience program where welfare agencies will ask that welfare recipients, in exchange for their welfare benefits, work for a period of time to get work experience and develop new skills. The third program is a grant diversion program. Under this program, a portion of the recipient's welfare check is diverted to an employer who, in turn, hires the recipient for a period of time and gives that much back as a salary supplement. The fourth program is the WIN demonstration program which enables welfare agencies to manage their own work programs.

Throughout the fall of 1986, OFA had been planning its proposed reorganization, which included the creation of a Work Programs Division. As part of the planning process, OFA had identified those employees who would have the necessary skills for the work programs area. Those persons whose specialty was work programs, or whose functional area was similar to the work that needed to be done in work programs, were identified. In addition, employees were asked to state where they would like to work. Some made their preferences known, and others were asked if they would be interested in the Task Force. Some employees who had work programs experience transferred out of OFA. Based on this information, the staff was selected to perform the functions of the Task Force. [ v30 p3 ]

On or about December 8, 1986, Respondent assigned 15 unit employees of OFA to a Work Programs Task Force for details not to exceed 120 days. The work program activities, previously performed by three or four divisions throughout OFA, were to be performed by this Task Force. Work programs was a top priority of FSA, and it was felt by management that by establishing the Task Force the new objectives of FSA could be accomplished.

The Union was not provided with notice or an opportunity to negotiate the impact and implementation of the detail of bargaining unit employees to the Task Force.

On December 5, 1986, the newly appointed members of the Work Programs Task Force were welcomed aboard by a written memorandum setting up orientation sessions. The Task Force was described as a "major initiative." This memorandum stated, in part, "Since many of us on the task force are new to the work programs area, or will assume new responsibilities, I thought it would also be helpful to have several orientation sessions on work program activities." The person responsible for the memorandum, supervisor Carol Callahan, did not know many of the employees on the Task Force when she approved that statement. Several orientation sessions were held for the detailed employees to give them an overview of work programs.

A Standard Form 52, Request for Personnel Action (SF-52), documenting the detail of an employee to the Work Programs Task Force for a period not to exceed 120 days, was created for nine employees detailed to the Task Force who were reporting from other components to a different supervisor. Since position descriptions for a Work Programs Division did not exist, the SF-52 contained a statement that the employees were being detailed to unclassified duties. Attached to each SF-52 detailing an employee to the Task Force was a "Statement of Functions for the Task Force." The "Statement of Functions" was a statement referring to the functions of the Task Force and not to the duties of individual employees. A SF-52 was not prepared for detailed employees performing the same duties and reporting to the same supervisor.

None of the employees detailed to the Task force had a change in pay, grade, working hours, or office space. Seven 2 of the 15 unit employees detailed to the Task [ v30 p4 ] Force performed exactly the same duties on the Task Force as they were performing in their prior positions.

The other eight unit employees selected for the Task Force were working in functional areas similar to the work that needed to be done in the Task Force. Several of these employees had never worked in the work programs area before, had not worked in the area for some time, or had worked in one area of work programs, but not in others. A description of the work of these eight employees follows.

Martha Kirby is formally assigned as a family assistance program specialist in the Special Program's Branch, Office of Policy and Evaluation, OFA. The Special Programs Branch continues to exist on paper, but has no staff. Prior to the detail, her primary duties there involved answering questions on policy issues involving the work incentive program, the work incentive demonstration program and the Job Training Partnership Act. When Kirby was originally detailed to the Task Force, she was assigned to the operations unit. She expressed concern that she had never been in operations before and preferred policy. She was told that her experience was needed, but when an opportunity came for her to go into policy, management would accommodate her interests. Kirby was also concerned because she required child care and knew that more travel was required in operations. Management assured her that she would not be required to travel.

Since being assigned to the Task Force, Kirby has been required to perform several tasks she has never done before, among them marketing, preparing for training, side-by-side analysis of legislation, the preparation of a briefing book in areas with which she is not familiar, and research in new program areas. In late February 1987, Ms. Kirby was placed in the policy and research unit of the Task Force, as promised. There she is still working on issues involving the Job Training Partnership Act, the WIN program and the WIN demonstration program as before, but also has assignments in the areas of community work experience program, grant diversion and job search, areas she did not work in previously and which requires that she do more research before answering inquiries. Although required to perform different tasks, she has not been asked to perform any duties outside those generally described in her position description.

Susan Greenblatt is formally assigned as a program liaison specialist in the Division of Welfare Management, Office of Intergovernmental Affairs, OFA. The Division now [ v30 p5 ] has no staff. In her position of record, she was responsible for liaison activities with the regions, and she was also in charge of putting out publications, planning conferences and meetings, and promoting good management practices. Ms. Greenblatt was detailed to the Task Force, operations unit. She is still working in the same functional areas as she did in her position of record. she is helping to manage workshops and has also developed a guide to the best work programs practices.

Joanne Fradkin is formally assigned as a program analyst in the Division of Welfare Management, Office of Intergovernmental Communications, OFA, which, as noted, now has no staff. In her position, she is involved in developing training materials and publications and has some involvement with planning workshops and conferences. Ms. Fradkin was detailed to the Task Force, operations unit. On the Task Force, she has been working on helping to plan workshops and in developing a best practices guide for work programs. Instead of working in all areas of welfare management, she is now focusing on work programs. She has not been assigned any duties outside those listed in her official position description.

Patricia Fells is formally assigned as a family assistance communication specialist in the Office of Intergovernmental Communications, OFA, which, as noted, now has no staff. In this position she was involved in responding to Congressional inquiries and responding to correspondence from welfare clients relating to all aspects of family assistance and OFA operational activities. She was chosen for the Task Force because her writing skills and knowledge of Congressional activities would be useful in the work programs area. On the Task Force, Ms. Fells is primarily responsible for responding to correspondence involving work programs instead of all aspects of OFA operations.

Suzanne Marion is a program analyst in the Technical Assistance Branch, Office of State Operations, OFA. in her position of record, she identified and evaluated good work practices and analyzed operational aspects of how agencies were administering work programs. She also wrote best practice manuals. She was the lead analyst on a number of projects relating to operational administrative work.

On the Task Force, Ms. Marion is the project officer for a number of research and demonstration projects in the policy unit. She examines how the states are operating their programs and evaluates whether their operations method [ v30 p6 ] actually test the hypothesis the state is attempting to test from a policy standpoint instead of whether the program is working well from an operational standpoint. The skills she employs now are the same as she employed in her position of record. She is not performing any duties beyond those listed in her position description.

Katherine Simpson is a program analyst in the Division of Research, Evaluation and Statistics, OFA. She was detailed to the Task Force because she had skills in gathering data and statistics relating to all AFDC programs.

On the Task Force, Simpson is responsible for collecting data on WIN demonstration projects. Ms. Simpson manages the data base and collects the information from the states and regions as part of the Task Force's monitoring and data collection efforts. Her duties on the Task Force re substantially similar in her position of record.

Leona Barbaro is a program analyst in the Technical Assistance Branch, OFA. On the Task Force, Ms. Barbaro works in research and demonstration. She is in charge of or monitors about 20 research projects. On the Task Force, she is not performing duties beyond those listed on her position description.

Gay Morris is a program analyst in the Division of Research, Evaluation and Statistics, OFA. Ms. Morris has been acting in a team leader capacity for the past year. On the Task Force, she is again in an acting supervisory capacity.

In the several months since the Task Force was first established at least three employees have been sent out into the field for program specific training sessions so they would be equipped to handle assignments other than the ones in which they have specialized. Others in the Task Force may be similarly trained in areas new to them.

Although the detail was originally scheduled to last 120 days, employees were advised that it might be extended, and it has been extended. On December 31, 1986 OFA issued a memorandum which stated, in part, "We hope that this task force will be officially established as a permanent division within the next few months as part of OFA's newly proposed structure."

The reorganization of OFA was still pending as of the date of the hearing. OFA does plan to have a Work Programs [ v30 p7 ] Division. The Union has negotiated with Respondent concerning geographical relocations in connection with the proposed reorganization of FSA, but not on its proposals regarding reassignments, including details.

Discussion, Conclusions, and Recommendations

Where an agency, in exercising a management right under section 7106 of the Statute, changes conditions of employment resulting in an impact on unit employees, or such impact was reasonably foreseeable, the agency is obligated under the Statute to provide adequate prior notice to the exclusive representative and, upon request, bargain concerning procedures to be utilized in implementing such changes and/or appropriate arrangements for unit employees adversely affected by such changes, pursuant to section 7106(b)(2) and (3). 3 See U.S. Government Printing Office, 13 FLRA No. 39 (1983).

In Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec. 17, 1986), the Authority reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. The [ v30 p 8 ] Authority stated that in order to determine whether a change in conditions of employment requires bargaining, the Authority would carefully examine the pertinent facts and circumstances presented in each case; and that in examining the record, principal emphasis would be placed 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. The Authority also stated that equitable considerations would be taken into account in balancing the various interests involved; that the number of affected employees and the parties' bargaining history would be given limited application; and that the size of the bargaining unit would no longer be applied.

The General Counsel and the Charging Party contend that Respondent violated section 7116(a)(1) and (5) of the Statute by establishing the Work Programs Task Force without providing the Union notice and an opportunity to bargain because a change in conditions of employment was reasonably foreseeable and more than de minimis. They contend that most employees are performing different tasks and duties, working in new programs, reporting to different supervisors, and some training for their new responsibilities has involved increased travel. The Union asserts that the changes in working conditions were sufficient to trigger FSA's duty to bargain over the selection process and over potential adverse impact due to inadequate training, increased travel, and the promotion effects on all employees in the bargaining unit.

Respondent defends on the basis that no duty to bargain arose because the decision to detail the bargaining unit employees had no more than a de minimis impact. Respondent contends that the details were temporary reassignments and resulted in no change in pay or grade, work hours, or office space. Respondent points out that seven of the 15 unit employees are performing their exact same duties, and the remaining eight are performing substantially similar duties to those they were performing before, in no case beyond these listed in their position descriptions. Respondent argues that there is no evidence of any adverse impact on the employees' leave, promotional opportunities, or ability to achieve a satisfactory performance rating. Respondent asserts that the detail resulted in all work programs functions being removed to the Task Force, and there is no evidence that the creation of the Task Force affected the workload of remaining bargaining unit employees. [ v30 p9 ]

The record reflects that the initial detail was not to extend beyond 120 days, or four months. This is not an insignificant period of time. Added to the significance of this period of time was the expressed hope of the Acting Director in the early stages of the detail that the Task Force would be officially established as a permanent division. This expression was consistent with the fact that the early personnel screening for the division had been used to create the Task Force and the Task Force had consolidated all work program activities. As a result, some offices from which employees were detailed are no longer functioning. The Task Force was described from the beginning as a "major initiative" by which the new objectives of FSA could be accomplished. Since the FSA goal has always been the establishment of a permanent Work Programs Division, it is clear that the detail was known from the outset to be more recurring or permanent than temporary, and it has been extended. Given these circumstances, the selection of employees for the Task Force had the potential to affect employee career and promotional opportunities both inside and outside the Task Force and was a matter which the Union should have had an opportunity to address. Instead, FSA's intention to implement the detail of employees to the Task Force was withheld from the Union despite a Union-management meeting only three days before.

While seven employees are performing the same duties as before, and eight bargaining unit employees are not performing duties beyond those listed generally in their position descriptions, the record shows that many of the eight employees have been required to perform new tasks and take on new responsibilities under new supervisors. The assignment of new tasks and new responsibilities was reasonably foreseeable and has a potential to adversely impact on employees' performance ratings. FSA acknowledges that training has, and will be, given as required in order for employees to handle new responsibilities and that it involves travel to the field. It is also noted that employee Kirby was concerned about the possibility of increased travel because of her detail to the operations unit where more travel is generally required.

Applying the Authority's revised standard to the facts and circumstances in this case, a preponderance of the evidence establishes that implementation of the detail resulted in a change in conditions of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which gave rise to an obligation to bargaining. It is concluded that Respondent, by detailing employees of [ v30 p10 ] the Office of Family Assistance to a Work Programs Task Force without providing the Union prior notice and an opportunity to bargain, pursuant to section 7106(b)(2) and (3), concerning procedures which management officials of the Agency would observe in implementing such changes and/or appropriate arrangements for employees adversely affected by such changes, engaged in unfair labor practices in violation of section 7116(a)(1) and (5) of the Statute, as alleged.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Health and Human Services, Family Support Administration shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning procedures to be observed and appropriate arrangements for bargaining unit employees adversely affected by the detail to the Work Programs Task Force in the Office of Family Assistance.

(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of its employees, concerning procedures to be observed and appropriate arrangements for bargaining unit employees adversely affected [ v30 p11 ] by the detail to the Work Programs Task Force in the Office of Family Assistance.

(b) Notify the National Treasury Employees Union, the exclusive representative of its employees, prior to changing conditions of employment resulting in an impact on unit employees and, upon request, bargain in good faith with such representative to the extent consistent with law and regulation.

(c) Post at its facilities 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 a responsible official 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 to insure that such 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 III, Federal Labor Relations Authority, Washington, D.C. in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: August 28, 1987
       Washington, D.C.

[ v30 p12 ]

                          NOTICE TO EMPLOYEES
                        POSTED BY ORDER OF THE
                   FEDERAL LABOR RELATIONS AUTHORITY
               AN AGENCY OF THE UNITED STATES GOVERNMENT

We have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT fail and refuse to negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning procedures to be observed and appropriate arrangements for bargaining unit employees adversely affected by the detail to the Work Programs Task Force in the Office of Family Assistance.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request, negotiate in good faith with the National Treasury Employees Union, the exclusive representative of our employees, concerning procedures to be observed and appropriate arrangements for bargaining unit employees adversely affected by the detail to the Work Programs Task Force in the Office of Family Assistance.

WE WILL notify the National Treasury Employees, the exclusive representative of our employees, prior to changing conditions of employment resulting in an impact on unit employees and, upon request, bargain in good faith with such representative to the extent consistent with law and regulation.

                             ______________________________
                                 (Agency or Activity)

Dated:____________________By:______________________________
                                     (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. [PAGE]

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 III, whose address is: 1111 - 18th Street, N.W., Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [ v30 p2 ]

FOOTNOTES

Footnote 1 Work programs, which are described in detail by the Judge, slip op. at 3, are currently the responsibility of various divisions within the OFA.

Footnote 2 Donita Drummond, Lisa Washington, Delores James, Myles Schlank, Betty McClure, John Horesji, and Kendrick Lee.

Footnote 3 Section 7106(b) provides in pertinent part: 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adv