[ v18 p743 ]
The decision of the Authority follows:
18 FLRA No. 87 DEPARTMENT OF HEALTH AND HUMAN SERVICE, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 8-CA-30094 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Exceptions to the Judge's Decision were filed by the General Counsel. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. It is alleged that the Respondent changed conditions of employment without completing bargaining with the Charging Party on the implementation and impact of the change. In agreement with the Judge, the Authority concludes that the Respondent did not change conditions of employment, but acted in accordance with past practice in selecting the employees to be transferred herein. We find, therefore, that the Respondent had no duty to bargain in this regard. Assuming without deciding that the impact or reasonably foreseeable impact of the transfers on the two affected employees was more than de minimis and therefore sufficient to give rise to the Respondent's duty to bargain, /1/ the Authority has concluded that the Charging Party had sufficient notice of their transfers and sufficient opportunity to request bargaining or proffer proposals regarding their particular circumstances. This is not what the exclusive representative sought. Instead, it proffered proposals to the Respondent only with regard to whether the Respondent's past practice concerning the selection of employees for transfer ought to be changed. There being no proposals before it pertaining to procedures or appropriate arrangements as to any such selections, the Authority concludes that the Respondent did not fail or refuse to bargain concerning the procedures which management would observe with regard to such transfers and appropriate arrangements for employees adversely affected by the transfers. /2/ Accordingly, it is concluded that the complaint, alleging that the Respondent changed a past practice regarding conditions of employment by failing and refusing to bargain over the procedures and appropriate arrangements with regard to particular selections for transfer, must be dismissed. /3/ ORDER IT IS ORDERED that the complaint in Case No. 8-CA-30094 be, and it hereby is, dismissed. Issued, Washington, D.C., June 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Daniel H. Green For the Respondent Barbara Lawson For the Charging Party Jonathan S. Levine, Esq. E. A. Jones, Esq. For the General Counsel Before: FRANCIS E. DOWD, Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the Regional Director of the Eighth Region of the Federal Labor Relations Authority by the issuance of a Complaint and Notice of Hearing on March 22, 1983. The Complaint was issued by the Regional Director following his investigation of a charge filed on December 20, 1982 by American Federation of Government Employees, AFL-CIO, herein referred to as the Union, Charging Party or AFGE. The Complaint alleges that Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, herein referred to as Respondent, violated Sections 7116(a)(1) and (5) of the Statute by the following conduct: On or about December 13, 1982, Respondent, through Jaramillo and/or Fernandez, unilaterally changed working conditions of the employees described in paragraph 2 above at its Huntington Park, California, and Downey, California, facilities by permanently transferring one bargaining unit employee from Respondent's Downey, California, facility to Respondent's Huntington Park, California, facility; and permanently transferring another bargaining unit employee from Respondent's Huntington Park, California, facility to Respondent's Downey, California, facility, without first providing the Union with an opportunity to complete bargaining over the implementation of the change and its adverse impact on unit employees. In its Answer, Respondent denies committing any violation of the Statute. In its brief, Respondent argues that there was no change in working conditions sufficient to trigger an obligation to bargain since there existed in the Huntington Park District a past practice concurred in by the Union for at least seven years permitting such reassignments within the District without formal negotiations. Stated differently, the Union waived its right to bargain. As a second defense Respondent contends there was no "substantial impact" upon employees or their working conditions and therefore no bargaining obligation. A hearing was held in Los Angeles, California at which time the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact and Conclusions of Law 1. Respondent is an agency and the Union is a labor organization within the meaning of Sections 7103(a)(3) and (4), respectively. 2. On August 30, 1979, the Union was certified as the exclusive representative of a national consolidated unit consisting of, among other units, the following unit: "All General Schedule (GS) employees in Region IX (San Francisco Region), Bureau of District Office Operations, Social Security.Administration, Department of Health, Education and Welfare, excluding management officials, supervisors, guards, professionals, employees engaged in Federal Personnel work in other than a purely clerical capacity, NYC, WIN, Work-Study employees and employees employed in the District Office at Redding." 3. Since on or about June 11, 1982, the Union and Respondent have been parties to a nationwide collective-bargaining agreement covering the employees in the nationwide unit described in paragraph 2 above, which includes employees of Respondent's Huntington Park, California, District Office and of Respondent's Downey, California, Branch Office. 4. By virtue of the certification described in paragraph 2 above and the collective-bargaining agreement described in paragraph 3 above, the Union has been, and is now, the exclusive representative of the employees in the unit described in paragraph 2 above. 5. At all times material herein, Leo Fernandez, has occupied the position of District Manager and Ruth C. Jaramillo has occupied the position of Assistant District Manager at Respondent's Huntington Park, California, District Office. I find that Fernandez and Jaramillo are supervisors within the meaning of Section 7103(a)(10) of the Statute, and are agents of Respondent. 6. As District Manager since 1974, Fernandez has administrative responsibility over the Branch Offices in Downey and University Village, California. The Downey office is eight to nine miles from Huntington Park. Fernandez testified that staffing patterns were based upon a percentage of work units. A work unit is a unit of measurement for work accomplished per individual. Thus, a factor is assigned for each type of work like disability claims, redeterminations, and CDI interviews. When there is a hiring freeze and/or when there are vacancies caused by losses of personnel, a particular District or Branch office may have a staffing "overage" or "shortage." Fernandez has discretion to correct staffing imbalances by making inter-office reassignments within his district. In preparation for the hearing, Fernandez reviewed his 7-B extention cards which show all personnel actions experienced by an individual employee of Respondent, including promotions, demotions, AWOL, and change of duty station. Copies of about 40 of these 7-B cards were received as Resp. Exh. No. 1. Several employees had more than one reassignment. The testimony of Fernandez indicates that some reassignments were initiated by employees and accommodated by Respondent; others were initiated by Respondent and the reassignment was either voluntary or involuntary. According to the credited testimony of Fernandez, at least 12 of the reassignments were involuntary over this period (Kimbrough, Wright, Mason, Woodson, Walker, Kimbrough (again), Wade, Clark, Raishart, Bazile, Raishart (again) and Acosta. The testimony of Jaramillo, Fuller and Haas was corroborative. 7. Fernandez credibly testified that with respect to all reassignments initiated by Respondent, he followed the same procedure. First, he notified the Union of the proposed reassignment. Second, he solicited volunteers. Third, he listened to the Union's views with respect to any problems raised by the Union. /4/ Fourth, if necessary, he talked to the employees involved to ascertain their reasons for not desiring a reassignment. Fifth, having taken into consideration objections based upon such things as commuting time and distance, health reasons, babysitting arrangements, travel and carpool arrangements, seniority, and family situations, he then made his selection. Fernandez characterized this procedure as consulting with the Union. 8. According to Fernandez, the foregoing procedure was based upon an agreement worked out with former union representative Barbara Fuller. Fernandez had the same "understanding" with Fuller's successor, Lupe Arriola. The testimony of Fernandez was corroborated by Fuller, who was a Union representative from 1975 through approximately April 1980. She has been an operations supervisor since March 1981. Fuller used the word "consult" (Tr. 35) to describe her role in this selection procedure, and she referred to the matter as being pursuant to "an agreement" (Tr. 33). She testified that it was a common practice within the Huntington Park district to have details and transfers, not only during her tenure as Union representative, but since then. Union representative Janiszewski attempted to minimize the frequency of transfers by saying it occurred about once a year. Her testimony cannot be credited in view of the testimony and documentary evidence to the contrary. 9. On or about December 6, 1982, the Downey Branch Office Manager, Jane Haas, recommended to Fernandez that a claims representative (CR) from her Downey office be transferred to Huntington Park in exchange for a clerical employee. Her recommendation was designed to correct a staffing imbalance in the two offices. She had concluded that a clerical shortage in Downey brought about by a hiring freeze had resulted in her Title II claims representatives spending too much time performing clerical work and not enough time on their adjudicative and other CRduties. Haas also explained that the work units for the quarter ending September 1982 only supported 3.5 claims representatives in Downey, rather than the six claims representatives (out of a total complement of 28 employees) assigned to Downey. According to Haas, whom I found to be a persuasive and completely credible witness, the discussion also included the names of the claims representatives who might be transferred. They ruled out Janiszewski, the Union representative, because that would involve clearing the selection with higher authority. They ruled out Brian Bise /5/ because he was doing field calls. They ruled out Theresa Chamberlain because she was a high producer and her work was of excellent quality. They ruled out Susie Herrera because she was their only Spanish-speaking claims representative. This left only Nancy Havens and Stella Yano, both of whom were good and would be an asset to the Huntington Park office. /6/ Fernandez instructed Jaramillo to notify the Union of the decision to institute this exchange between the two offices. 10. On December 6, in accordance with the established procedure for handling labor-management communications, Jaramillo called Janiszewski, the letter being district union representative, as well as the Downey local representative. The evidence discloses a minor dispute about what was said and I have concluded that what happened is as follows. At first, Jaramillo told Janiszewski about the decision to reassign two employees. Then, with respect to the clerical transfer, she read a list of names of claims development clerk candidates, one of whom would be transferred to Downey. With respect to the claims representative transfer, she indicated that it was between Nancy Havens and Stella Yano. The union representative replied that "if seniority was used as a basis for the selection that Nancy had the best of it, because she had seniority over all the rest of us." From this Jaramillo erroneously concluded that the Union agreed to the selection of Yano. In my opinion, the most that Jaramillo could have concluded from Janiszewski's remarks was that Nancy Havens would not be transferred if seniority was determinative. This is not the same as agreeing who would be transferred when, from the Union's viewpoint, there were other employees besides Yano with lesser seniority than Havens. In any event, volunteers had not yet been solicited and the Union's input was not required until Friday, October 10. Therefore, there was no reason for the Union to have to take any position as early as October 6. 11. Regardless of whatever was actually said in the foregoing telephone conversation, Janiszewski promptly told employees about the call and when Havens and Yano heard they were both being considered, both were upset. /7/ Yano, apparently believing she might be selected, complained directly to Haas who promptly informed Jaramillo. As a result, Fernandez went to the Downey office on December 9 and talked to both employees. Nancy Havens told Fernandez she had no transportation and depended upon somebody for a ride. In addition, she was a diabetic and had other medical problems. Stella Yano told Fernandez she had chosen Downey because it was near her home, that she had a family to cook for, and had night school twice a week. (She wasn't asked how long she would be attending night school.) 12. Before Fernandez left the Downey office, Janiszewski approached him and said she was ready to bargain. However, she was not specific with respect to what she wanted to bargain about. He replied that he wasn't prepared to do so at that time. She asked that seniority be given consideration and he replied that it would be considered, but it was not the sole consideration. Fernandez concluded that her bargaining request dealt with the selection of a transferee. Later, that same afternoon, Janiszewski received a phone call from Jaramillo, who obviously had been told of the oral bargaining request. Jaramillo said that Janiszewski was mistaken, that Respondent had no bargaining obligation because there was no change in working conditions. Janiszewski asserted that increasing one's travel time was a "change" but Jaramillo replied that extra travel time was part of the job. Later that day, Janiszewski consulted with Regional President Jeff Dasteel, who helped draw up bargaining proposals which it chose to label as counterproposals. Janiszewski presented the counterproposals to Jaramillo the following day, December 10. Nothing was discussed at that time. 13. As examination of the union's proposals discloses that they primarily concern procedures for selecting involuntary transferees. The single proposal dealing with impact was as follows: "If the person selected has to travel more than 30 miles management will pay travel for the additional mileage or relocation costs." The evidence does not establish whether this proposal would have been applicable to the persons eventually selected in this case. 14. According to Fernandez it was late the afternoon of December 9 or the next day that he selected Stella Yano. His decision was based upon (1) Yano's lower seniority, (2) Havens' health problem, and (3) the fact that Havens would have a difficult time getting to the office if she didn't have transportation. He felt that it would not be too large a burden for Stella Yano to drive an additional 8 or 9 miles, which he estimated would take about 20 minutes additionally. Insofar as Fernandez was concerned, the decision he made was really no different from previous decisions made in this district concerning inter-office transfers. 15. The following week, Janiszewski received a letter dated October 13, (G.C. Exh. No. 3) from Jaramillo which, in effect, confirmed her previous phone call stating that no bargaining obligation existed because there had been no changes in working conditions. 16. On January 10, 1983, the affected employees, Stella Yano and claims development clerk Jerry Martinez, reported to their new duty stations. As noted above, Martinez was a volunteer. 17. With respect to "impact" on the employees who were reassigned, Stella Yano estimated that her travel time to the new office was an additional 30 minutes with an increase in gasoline costs. As noted previously, however, her new duty station was, at most, 8 or 9 miles further and Fernandez credibly testified that this would take 20 minutes on surface roads. Yano also felt that her new location was less convenient for attending night school. Of course, these were the same factors which were considered by Fernandez before selecting Yano. She also claimed to have inherited a "terrible" caseload of old claims after she arrived at her new duty station. Martinez did not testify. 18. With respect to impact on the employees not transferred, /8/ Havens and Janiszewski testified essentially that they had more work to do and had to work harder. I found their testimony to be self-serving and unpersuasive. The most credible evidence on the subject of impact was that introduced through the testimony of Haas, with supporting documentary evidence. Haas credibly testified that the exchange of employees had a very favorable effect upon the processing of Title II work in the Downey office and that the only real strain on interviewing workload came when Brian Bise was temporarily promoted to supervisor shortly after the exchange. Even with Bise out of the unit, the statistics went up and Haas attributed this to the fact that Bise assumed all the training duties and some of the quality review functions previously done by all the claims representatives. Haas' overall assessment of the exchange was that it had a positive effect on claims processing time and quality and that it was reflected in her statistics. In view of my decision therein with respect to the threshold issue concerning the alleged change in working conditions, I find it unnecessary to reach the impact issue and, for this reason, find it unnecessary to burden this decision with a more detailed recitation of the factual evidence concerning impact. Issues Whether Respondent and the Union were parties to an established past practice which dealt with the subject of intra-district transfers? If so, did Respondent change conditions of employment when it selected Yano and Martinez for transfer? Discussion and Conclusions A. Introduction There is no dispute that an agency has a reserved management right, under Section 7106(a)(2)(A) to reassign employees. Thus, a Union proposal which compels an agency to select a particular individual based upon seniority has been held to directly interfere with an agency's discretion to determine with employees to assign to a particular position. /9/ However, it is also clear that the procedure which management will observe in exercising this authority, as well as appropriate arrangements for employees adversely affected by such reassignment, are proper matters for negotiation under Section 7106(b)(2) and (3) of the Statute. /10/ In establishing procedures for resolving disputes between agencies and unions, the Authority has drawn a distinction between (1) the negotiability of specific proposals and (2) the underlying obligation to bargain. /11/ Thus, Section 2423.5 and 2425.5 of the Rules and Regulations require a union to utilize the negotiability procedures under Part 2424 only in cases which "solely involve an agency's allegation that the duty to bargain does not extend to the matter proposed to be bargained and which do not involve an actual or contemplated change in conditions of employment. Here, the Union filed an unfair labor practice charge pursuant to Section 7118 of the Statute and the General Counsel issued a Complaint alleging a unilateral charge in working conditions. Accordingly I do not reach the question of whether specific bargaining proposals are negotiable until I first determine whether a bargaining obligation exists. The Authority has recently 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 reasonable foreseeable." /12/ Thus, the threshold question to be decided is whether the Respondent, in exercising its management right to reassign employees "changed conditions of employment." If that question is answered in the negative, then no obligation to bargain existed. /13/ If that question is answered in the affirmative, it would still be necessary to reach the next question; i.e. whether "the change results in an impact /14/ upon unit employees or such impact was reasonable foreseeable." In the particular circumstances of this case, I find it unnecessary to determine whether the exercise of management's right to transfer employees resulted in "an impact" on anyone. /15/ B. Past Practice of Intra-District Transfers. 1. Applicable Law. Generally, terms and conditions of employment are embodied in a collective bargaining agreement-- a formal, written document which has been signed and executed by an agency and the exclusive representative of the agency's employees. The Authority has held, /16/ however as follows: It is also well established that parties may establish terms and conditions of employment by practice, or other form of tacit or informal agreement, and that this, like other established terms and conditions of employment, may not be altered by either party in the absence of agreement or impasse following good faith bargaining. See U.S. Department of the Treasury, Internal Revenue Service, New Orleans District, 8 A/SLMR 497, A/SLMR No. 1034 (1978). While the existence or nonexistence of an established past practice is a factual issue, certain guidelines may be helpful in making such a determination. Thus, in Department of Health, Education and Welfare, Region V, Chicago, Illinois, 4 FLRA No. 98, 4 FLRA 736, (1980) Judge William Devaney stated that practices or procedures followed by employees, do not, without more, become conditions of employment. He concluded that a practice must: (1) be known to management; (2) responsible management must knowingly acquiesce; and (3) such practice must continue for some significant length of time. Thereafter, in Department of Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48, 5 FLRA 352 (1981), Judge William Naimark applied Judge Devaney's criteria to the facts of that case. In neither of the above decisions did the Authority specifically indicate whether it adopted the foregoing criteria, but in the latter case the Authority appeared to apply that criteria to the factual situation in finding a unilateral change in an existing past practice. I conclude that the Authority has adopted the criteria suggested by Judge Devaney. /17/ I further conclude that fairness and parity require that the same standard be applied in judging a union's conduct where it is alleged, as herein, that the Union has knowingly acquiesced in a past practice over a significant period of time. 2. Positions of the Parties. The General Counsel's approach to this case is that the location of one's duty station is a condition of employment within the meaning of Section 7103(a)(14) and, therefore, whenever that location is changed by reassignment to a new location, an agency has instituted a change in conditions of employment about which it has a bargaining obligation, under Section 7106(b)(2) and (3). /18/ The General Counsel also contends that the Union has not clearly and unequivocally waived its right to bargain on each and every such transfer. The Respondent's approach is that there exists within the Huntington Park district a practice of intra-district transfers on a voluntary as well as involuntary basis. Therefore, each employee transfer or reassignment to a new duty station is a continuation of an existing condition of employment (i.e. intra-district transfers), rather than a change of employment conditions. Accordingly, Respondent contends that it is privileged to implement an intra-district transfer without first bargaining with the Union because its action is consistent with a past practice. Another way of expressing Respondent's position is that the Union's knowledge and acquiescence over a period of many years in the agency's practice has resulted in an implied agreement having the effect of a waiver of the right to bargain each time the Respondent is implementing its policy, practice and procedure concerning intra-district transfers. 3. Analysis. The Social Security Administration has offices throughout the nation in locations near the public it serves. Within the Los Angeles metropolitan area are a number of District offices, each of which has or may have one or more smaller Branch offices. The Huntington Park District office, at the time of the events in question, had Branch offices in nearby Downey and University Village. The Huntington Park and Downey offices are about 8 to 9 miles apart. District Manager Fernandez credibly testified that at least during the time he's been there-- since 1974 to the present-- the policy and practice has been to correct staffing imbalances by transferring employees between the offices within the District, as needed. Respondent's Exhibit No. 1 shows the names of 40 transferees between March 1975 and January 1983. The number of transfers in one year ranged from one in 1975 to eleven in 1979. Some employees were transferred several times. At least twelve of the 40 transfers were involuntary. From the credited testimony of Respondent's witnesses, including former Union representative Barbara Ann Fuller, it is abundantly clear that the Union not only acquiesced in this practice of intra-district transfers, but actually participated in the practice. Thus, unlike most of the decided cases involving unilateral agency action without notice to the union, the practice followed here since at least 1974 included notification to the Union as the first step in a procedure whereby the Union was consulted prior to a selection being made and given a reasonable opportunity to provide input to Respondent-- prior to any selection-- concerning the impact on employees who did not wish to voluntarily transfer. Where appropriate and necessary, as was done in this case, the District Manager would personally meet with the employees under consideration and listen to their reasons for not wishing to transfer. Here, as in similar situations over the years, the District Manager made his selection based upon a combination of factors, including seniority and personal hardship. From the evidence, it is clear that the greater number of transfers have normally been accomplished by obtaining volunteers and, indeed, Claims Development Clerk Jerry Martinez was a volunteer in this particular transaction. I find and conclude in agreement with Respondent's position that as of December 6, 1982, (1) there existed a past practice of intra-district transfers within the Huntington Park District, and (2) that such practice included a procedure whereby the Union's role was limited to receiving notice and providing input concerning the situation, and (3) that the Union's acquiescence and participation in this practice for so many years constituted a waiver of its right to bargain with respect to each and every transfer. I further find and conclude that, with respect to the intra-district transfer which is the subject of this proceeding, the Union did not have a right to insist upon bargaining because the Respondent was not changing an existing and well established past practice. Stated differently, the Respondent did not have an obligation to bargain about Section 7106(b)(2) procedures and Section 7106(b)(3) arrangements for adversely affected employees because it was not changing a condition of employment which had ripened into existence as a result of a practice over a period of many years. /19/ The General Counsel also argues against finding a waiver herein by citing Scott Air Force Base, 5 FLRA No. 2, 5 FLRA 9, for the proposition that the right to bargain need not be exercised at every opportunity. In my opinion, Scott Air Base is distinguishable. There, the union's failure to request bargaining pertained to "some other occasions." Here, we are talking about a practice lasting over a period of eight years. Moreover, the General Counsel's argument that the "right to bargain need not be exercised at every opportunity in order to preserve such rights" is inconsistent, I believe, with its other argument (brief p. 21) that the Union has consistently and energetically "negotiated" transfers in the past. I emphatically reject the contention that intra-district transfers in the past were negotiated. The best that can be said for the agreed upon past practice is that the Union seemed to be content in the knowledge that it was being consulted before a decision was made and that its input was considered, even though the ultimate decision was left to management's prerogative and made by management alone. Furthermore, the evidence does not establish-- with respect to the past practice-- that the Union ever attempted to even negotiate any arrangements for employees adversely affected by the agency's decision. 4. Additional Comments. In reviewing the briefs of the parties I detect some possible confusion as to the effect of the Union's waiver herein, and the reciprocal obligation of the parties to bargain before changing a past practice. In order that the holding in this case not be misunderstood, I am constrained to point out that the Complaint herein, the General Counsel's theory of the case, and the record evidence are premised upon the assertion that the Union had a right to prevent Respondent from implementing its decision to transfer Yano and Martinez without first bargaining with the Union. I disagree. In view of my holding that the agency was not changing a past practice, it seems quite clear that the Union's counterproposal was an attempt to change the rules of the game after the game had started. When an agency announces its decision to take a certain course of action which is consistent with an existing past practice, a union's bargaining request may be refused on the ground that no bargaining obligation exists, as found herein. The agency is therefore privileged to implement its decision without prior notice and bargaining. On facts not presented in this record, it would be a completely different situation if the Union were making a bargaining demand to establish a new selection procedure for future transfers and to thereby alter an existing past practice through collective bargaining negotiations. In such event, Respondent would have an obligation to bargain under Section 7106(b)(2) and (3) while at the same time being able to continue its past practice until changed by agreement. Accordingly, just as an agency may endeavor to change a past practice through the collective bargaining process, so too may a union. Fundamental fairness and parity of bargaining power requires such a result. Accordingly, for these reasons, my holding in this decision is limited to finding that the Union's waiver is akin to an implied agreement as to the procedure to be followed in all intra-district transfers. But, this waiver is not forever. Thus, if the Union desires to modify or alter this procedure, it may do so through the collective bargaining process in the same manner as an agency is required to do, and "at an appropriate time." /20/ Ultimate Conclusions of Law Having found the existence of a past practice of intra-district transfers, and having found that Respondent did not change conditions of employment when it selected Yano and Martinez for transfer, I further find Respondent had no obligation to bargain in the particular circumstances of this case and, therefore did not violate Section 7116(a)(1) and (5) of the Statute. /21/ It is therefore recommended that the Authority issue the following: ORDER That the Complaint in Case No. 8-CA-30094 be, and it hereby is, DISMISSED. FRANCIS E. DOWD Administrative Law Judge Dated: December 5, 1983 Washington, DC --------------- FOOTNOTES$ --------------- /1/ Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). /2/ See, e.g., Internal Revenue Service (IRS) and Brooklyn District Office, IRS, 2 FLRA 587, 589 (1980). /3/ In view of this disposition, the Authority finds it unnecessary to comment upon the Judge's statements as to whether the exclusive representative had waived its right to negotiate with regard to each and every employee transfer in the future. The Authority also finds it unnecessary to pass upon, and specifically does not adopt, the Judge's "Additional Comments" at pages 14-15 of his Decision. /4/ Although the "problems" raised by the Union appeared to involve the potential adverse impact to be experienced by an employee who was unwilling to volunteer, it would appear that these problems were raised before a selection was made. Once a selection was made, the Union acquiesced in it. Neither, the General Counsel nor the Respondent introduced evidence to show any requests to bargain by the Union, either before or after the selection, concerning "arrangements" for employees affected-- adversely or otherwise-- by the agency's decision to select. /5/ The spelling of Bise's last name is based upon Respondent's Exh. No. 1. /6/ At this point I am constrained to point out that Bise, Chamberlin and Herrera had less seniority (regardless of how calculated) than Havens, Yano, or Union representative Janiszewski. /7/ I reject the General Counsel's contention that the Respondent did not solicit volunteers. Under its criteria for selection, only Havens and Yano were under consideration and neither volunteered. It was unnecessary for Respondent to solicit volunteers among employees it had decided to retain in Downey. Moreover, the clerk (Martinez) from the Downey office was, in fact, a volunteer. /8/ Assuming, arguendo, that an agency has an obligation to bargain about the impact (of its decision to transfer an employee) upon employees who have not been transferred, I am constrained to note that in this particular case the Union's counterproposals only dealt with establishing a new selection procedure and the impact upon transferred employees. /9/ American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, No. 0-NG-40, 2 FLRA No. 77, 2 FLRA 604, 610-614. /10/ American Federation of Government Employees, AFL-CIO, Local 3529, 3 FLRA No. 46, 3 FLRA 301 (1980), a case involving an agency rotation policy of mandatory reassignments between duty stations. /11/ But, see AFGE, Local 2736 v. F.L.R.A., 715 F.2d 627, 114 LRRM 2356 (D.C. Cir.) No. 82-2175 (August 18, 1983), where a negotiability case involving "factual issues" was remanded by the Court to the Authority for an expedited determination. /12/ U.S. Government Printing Office, (herein the GPO case), 13 FLRA No. 39, 13 FLRA 203 (Sept. 30, 1983). /13/ Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 9 FLRA No. 99, 9 FLRA 784 (1982), where five changes in shift hours were consistent with past practice and, therefore, were not a change in established conditions of employment. The Authority specifically noted, however, that the facts were unusual and that changes in shift hours typically represent a changed condition of employment requiring notice to the union. /14/ In the GPO case, cited above, the Authority's use of the phrase "an impact" carries with it no explanation of the type, kind or quality of impact required. Five weeks after its GPO decision, however, the Authority issued a decision in which it stated for the first time that it had not adopted a "substantial impact" test. Internal Revenue Service (District, Region, National Office Unit, 13 FLRA No. 61, 13 FLRA 366 (Nov. 3, 1983); but see, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA No. 45, 5 FLRA 333 (1981) in which the Authority expressly adopted the Judge's findings and conclusions, one of which was that the substantial impact test in Executive Order cases was applicable under the Statute. /15/ For this reason I do not have to decide whether the quantum of impact required to trigger a bargaining obligation is different from the quantum required to justify granting a status quo remedy. Cf. Federal Correctional Institution, 8 FLRA No. 11, 8 FLRA 604, the Authority's lead case establishing the criteria to be used in determining whether a status quo remedy is warranted in cases involving a refusal to bargain about impact and implementation. Among the factors listed by the Authority is "the nature and the extent of the impact experienced by adversely affected employees." (Ibid, p. 606). In the IRS case referred to above (13 FLRA No. 61), the Authority applied the specific factors in its Federal Correctional Institution decision and ordered a status quo remedy after concluding that "bargaining unit employees were significantly impacted by Respondent's violation of its bargaining obligation." /16/ Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64, 3 FLRA 413 (1980); Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127, 6 FLRA 713 (1981). /17/ Accord: Department of Defense, Department of the Navy, Polaris Missile Facility Atlantic, Charleston, South Carolina, 6 FLRA No. 67, 6 FLRA 372 (1981); U.S. Nuclear Regulatory Commission, 6 FLRA No. 9, 6 FLRA 18 (1981); Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA No. 33, 9 FLRA 229 (1982); Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 10 FLRA No. 45, 10 FLRA 235 (1982). /18/ In support of his position, the General Counsel relies on Department of the Treasury, Internal Revenue Service, Greensboro District Office, A/SLMR No. 1007, 8 A/SLMR 329 (1978) and Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms, 8 A/SLMR No. 1045, 8 A/SLMR 550 (1978). These cases are, in my opinion, inapplicable because the express terms of a contract were found not to specifically apply to the proposed reassignments and, further, there was no waiver by the union. Also, these cases arose under the Executive Order and my research does not disclose whether they have ever been expressly adopted by the Authority. /19/ See Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574, 58 LRRM 1257 (1965) where the Union's acquiescence in a subcontracting practice was held to be a waiver so long as the employer maintained the status quo. However, in Leeds and Northrop, 391 F.2d 874, 67 LRRM 2793 (CA-3 1968), enforcing 162 NLRB 987, 64 LRRM 1110 (1967), the employer's unilateral alteration of a supplementary compensation plan's formula constituted a change in the status quo thus requiring it to first notify and bargain upon request with the union. /20/ Westinghouse Electric Corporation, (Mansfield Plant), 150 NLRB 1574, at 1575-1576, where the NLRB went out of its way (as I have done here) to point out that its finding of a waiver as to an established past practice of subcontracting did not foreclose the union from requesting "at an appropriate time" changes in current subcontracting practices. /21/ Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA No. 97, 9 FLRA 774 (1982), where the Authority found that the Respondent, in implementing two nondisciplinary adverse actions, had not "established new, or changed existing, personnel policies, practices or matters affecting working conditions." Further, the Authority observed: "On the contrary, the record establishes that the procedures followed . . . were no different from those prescribed by the parties' negotiated agreement or those which had been utilized in previous instances of nondisciplinary adverse actions resulting in changes of employee status or category." See also Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 9 FLRA No. 99, 9 FLRA 784 (1982).