19:0827(101)CA - HHS, SSA Region V, Chicago, IL and AFGE Local 3239 -- 1985 FLRAdec CA
[ v19 p827 ]
The decision of the Authority follows:
19 FLRA No. 101 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION, REGION V CHICAGO, ILLINOIS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3239, AFL-CIO Charging Party Case No. 5-CA-699 DECISION AND ORDER /1A/ 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. Thereafter, the General Counsel filed exceptions to the Judge's Decision. 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 recommended Order, except as modified herein. The complaint, in essence, alleges that the Respondent, Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois (SSA), violated section 7116(a)(1) and (5) of the Statute by changing bargaining unit employees' conditions of employment without notifying the Charging Party, the American Federation of Government Employees, Local 3239, AFL-CIO, and providing it with the opportunity to request negotiations concerning the procedures to be observed and the appropriate arrangements for employees adversely affected by the change. The Judge recommended dismissal of the complaint. The Authority agrees but for different reasons which follow. The facts here presented indicate that the Charging Party represents various employees of SSA's Region V including claims representatives located in the Detroit Southwest Branch Office, the Pontiac District Office and the Royal Oak Branch Office. These employees are part of a nationwide consolidated bargaining unit represented by the American Federation of Government Employees, AFL-CIO. The circumstances giving rise to the alleged unfair labor practice herein arose out of a decision by the State of Michigan, Department of Social Services (DSS), to require 6,000 of its disability claimants, previously denied Supplemental Security Income benefits by SSA, to refile for the SSA benefits. Representatives of DSS and SSA met and worked out some procedures for processing the cases involved in the "DSS Referral Program." These procedures were sent out to all the SSA District Offices in Michigan. It was decided at certain SSA offices that it would be more expeditious to have the SSA claims representatives travel to the local DSS office to interview the claimants following the DSS interview. Thus, certain claims representatives at the above-mentioned offices were required to travel to and work in local DSS offices for short periods of time. This requirement that unit employees travel to and perform work in DSS offices is alleged to constitute the change in conditions of employment giving rise to a duty to bargain procedures and appropriate arrangements. The record further indicates that there are approximately twenty-one claims representatives employed at the three offices involved herein. Of that number, five or six employees were actually engaged in traveling to and interviewing claimants at local DSS offices. More specifically, of the four claims representatives at the Detroit Southwest Branch Office, one employee made four separate visits over the course of about five weeks to the DSS office, located approximately four miles from the SSA office, and on one additional occasion, two of the four employees visited the DSS office. At the Pontiac District Office, one of the five claims representatives employed at that time made six separate trips to the DSS office over the course of several months; the other four were not required to do so at all. The DSS office is located a few miles from the SSA office. At the Royal Oak Branch Office, two of the twelve claims representatives alternated going to the DSS office on six occasions; the other ten did not go there at all. The distance between the DSS and SSA offices is six or seven blocks. The parties agreed that the work performed by these employees at the DSS offices was substantially the same as the work performed at the SSA offices. In fact, the working environment at one DSS office was quite similar to that of the SSA office. The record also indicates that, on the days when claims representatives were scheduled to visit DSS offices, they reported first to the SSA office and then returned to the SSA office at the end of the day. Travel expenses incurred by the employees were paid by SSA. As is evident from the record, claims representatives are expected to travel and have traveled to other locations to perform their duties. In terms of how the travel issue has been treated in the past, the record indicates that, at the Detroit Southwest Branch Office, there was a practice of rotating travel and posting travel schedules. Whenever there was a two-to-four month break between schedules, the Charging Party was consulted on the new schedule. The Respondent alleged, and the Judge found, that the changes did not have a substantial enough effect on unit employees to require bargaining. 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." U.S. Government Printing Office, 13 FLRA 203, 204-05 (1983) (Issued subsequent to the Judge's decision herein.). The Authority thereafter held in Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (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." In order to determine whether the exercise of a management right will result in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. In the instant case, and for the reasons which follow, I find that the impact or reasonably foreseeable impact of the change on unit employees' conditions of employment was no more than de minimis. Accordingly, it follows that SSA was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures to be observed in implementing the change as well as on appropriate arrangements for employees adversely affected by the change. In reaching this result, I note with respect to the nature of the change on conditions of employment of unit employees that the work duties performed by the affected employees in the DSS offices were substantially the same as those performed while employees were in the SSA offices; the DSS offices were located close to the SSA offices with the distances ranging from six or seven blocks to four miles; the hours of work of the affected employees appear to have remained unchanged and, in fact, employees continued to report to their respective SSA offices at both the beginning and end of the workday; the work environment in at least one DSS office was similar to that of an SSA office; and employees were compensated for their travel expenses by SSA. Moreover, the requirement that employees travel to and perform work in DSS offices was a short-lived, temporary response to an immediate need to process 6,000 claims, and the affected employees traveled to and worked in the various DSS offices for periods of time ranging from only one day to a total of no more than six days. The total number of employees affected by the change was merely five or six out of a substantially larger number of employees represented in the nationwide consolidated unit. Finally, I note that any bargaining which may have occurred between the parties regarding similar changes in the past was limited to consultation concerning the posting of new travel schedules. Based on the totality of the facts and circumstances presented in this case, and noting particularly the slight nature of the change; the short-lived, temporary duration of the change; the few employees who were affected relative to the total number of employees represented in the consolidated unit; and the absence of any demonstrated bargaining history or past practice according to which the parties have handled similar changes in the past, I conclude that the impact or reasonably foreseeable impact of the change in unit employees' conditions of employment herein was no more than de minimis. Therefore, SSA was under no obligation to notify the Charging Party and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute. While giving consideration here to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established through negotiation or past practice procedures and appropriate arrangements concerning analogous changes in the past, in determining that the impact or reasonably foreseeable impact of the change in conditions of employment of unit employees was no more than de minimis and therefore did not give rise to a duty to bargain procedure and appropriate arrangements, it should be noted that such considerations are not intended to constitute an all-inclusive list. Further, the determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. The application of these factors is not intended to be mechanistic. As stated previously, the totality of facts and circumstances must be examined in each case and other or additional considerations may be applicable in other factual situations and will be applied where they are appropriate and relevant to the disposition of those cases. Henry B. Frazier III, Acting Chairman Concurring Opinion of Member McGinnis: I concur in the rationale and result reached in Acting Chairman Frazier's opinion. However, I would like to add some additional points. In Internal Revenue Service, 17 FLRA No. 103 (1985), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985), a case involving the exclusive representative's right to initiate bargaining during the term of the collective bargaining agreement, the Authority noted that Congress intended the provisions of the Statute be interpreted in a manner consistent with the requirements of an effective and efficient Government. /1/ In accordance with this concern, Congress set forth a list of rights reserved to management in section 7106(a) and (b)(1) of the Statute. /2/ In this regard Representative Udall stated that it was the intent of the Committee on Post Office and Civil Service, in fashioning a labor relations bill, to "navigate a course which gives Federal employees greater rights in labor relations than they have heretofore enjoyed. At the same time we have preserved the rights of management to run the shop." /3/ He later stated that the proposed legislation "moves to meet some of the legitimate concerns of the Federal employee unions as an integral part of what is basically a bill to give management the power to manage and the flexibility that it needs." /4/ Therefore, while management has certain reserved rights to take action without being required to bargain with respect to matters falling within section 7106(a) and (b)(1) of the Statute, the Statute also provides in section 7106(b)(2) and (3) for bargaining over the procedures that management will follow in exercising such rights and appropriate arrangements for employees who may be adversely affected thereby. /5/ These section 7106(b)(2) and (3) rights may come into play in one of two ways. First, the exclusive representative may submit proposals during full scale collective bargaining negotiations regarding the procedures to be observed and arrangements for employees adversely affected when management subsequently exercises a section 7106(a) or (b)(1) right. /6/ Such negotiations have the advantage of providing clear guidelines in the event of future actions and lead to predictability and promote a more harmonious labor-management relationship. Furthermore, it is more efficient to provide, where possible, procedures for the implementation of future changes than to await the point when the period for negotiations is constrained by management's need for action. Secondly, bargaining obligations may be created when management exercises its section 7106(a) and (b)(1) rights to change conditions of employment. Thus, in the absence of negotiated procedures to implement such changes, management is obligated to notify the exclusive representative of its decision /7/ and, within the scope of that particular change, /8/ to bargain upon request over the procedures to be observed in effectuating the change and regarding appropriate arrangements for adversely affected employees. /9/ Such bargaining is limited in its scope to those issues set forth in section 7106(b)(2) and (3) of the Statute and is distinguishable, as it serves a different purpose, from negotiations involving changes which are substantially negotiable. In reviewing alleged violations of section 7106(b)(2) and (3) rights in both of the above contexts, the Authority is mindful of the section 7101(b) mandate in the Statute for an effective and efficient Government. It follows that section 7106(b)(2) and (3) must be construed so as to permit management to conduct its business generally without unreasonable impediments. Such an objective cannot be reached if management must be required to bargain over every decision it makes, regardless of the impact on unit employees. Decisions are made daily by every level of management, and if bargaining were required on each and every decision, Government would grind to a halt. As a means of providing a rational standard to be applied in such cases, the Authority has adopted a de minimis test. In my view, a de minimis change is a change which does not have a substantive adverse effect upon unit employees. The purpose of the Authority's de minimis test is to insure that negotiations conducted pursuant to section 7106(b)(2) and (3) occur in a context that will promote and facilitate both improved employee performance and morale, and the efficient accomplishment of the operations of the Government. Thus the de minimis test must seek to balance the needs of agency management to make changes in employee working conditions in order to carry out the day-to-day operations in the Government with the right of the exclusive representative to negotiate concerning procedures and appropriate arrangements for employees adversely affected by such changes. In order to meet these objectives the application of the de minimis test requires the consideration of certain criteria, five of which are used in the opinion of the Acting Chairman. We have mutually agreed to use these criteria, as appropriate, in this and future cases. These five criteria are: 1. The nature of the change as it affects or foreseeably affects unit employees, as individuals or as a whole (e.g., the extent of the change in work duties, location, office space, hours, employment, loss of benefits and/or wages, etc.); 2. The temporary, recurring or permanent nature of the change (i.e., the duration and the frequency with which it affects unit employees); 3. The number of unit employees affected or foreseeably affected by the change; 4. The size of the bargaining unit; 5. The extent to which the parties may have established, through negotiation or past practice, procedures and appropriate arrangements concerning analogous changes in the past. Moreover, in addition to the five criteria set forth above, I believe that the parties and Administrative Law Judges of the Authority should address, in future cases, the issue of whether or not a sixth factor should be used in those cases wherein there is a de minimis issue: 6. When would the implementation of the change involve or adversely affect unit employees. That is, if the change is to be implemented in stages or if there is no initial adverse effect on unit employees from the implementation of the change, would post implementation bargaining permit the parties to satisfactorily negotiate appropriate arrangements for employees adversely affected by the change prior to such effect. In my view, the type of bargaining envisioned by section 7106(b)(2) and (3) of the Statute is limited in its scope and purpose and may not be used to unduly impede the exercise of a management right under the Statute. Thus in those circumstances where a change has no immediate or reasonably foreseeable adverse effect on unit employees, it is my view that Congress did not intend to sanction delay with regard to the exercise of management rights by requiring delays in the implementation of such changes. Thus, I would permit management to begin the initial implementation of a change so long as negotiations within the meaning of section 7106(b)(2) and (3) of the Statute could be completed prior to the implementation of that portion of the change which would result in an adverse effect on employees. In addition, I would also note that even in those circumstances where there is a direct and immediate adverse effect on unit employees from the implementation of the management initiated change, section 7106(b)(2) and (3) negotiations should not be permitted to unduly delay or impede the implementation of a management decision involving the exercise of a management right. /10/ As noted, Congress provided that the Authority must interpret the Statute "in a manner consistent with the requirement of an effective and efficient Government." /11/ Thus, where there is timely and sufficient notice furnished to the exclusive representative and the date of implementation bears a reasonable relationship to the nature and complexity of the proposed change and provides for a reasonable period for the completion of negotiations, negotiations over procedures and arrangements for adversely affected employees should not be permitted by the Authority to unduly delay the exercise of management rights. /12/ Therefore, in future decisions and through other administrative reforms, I will seek to modify the Authority's case law and procedures in order to insure that the implementation of section 7106(b)(2) and (3) of the Statute is consistent with the Authority's duty to promote, and not hinder, an effective and efficient Government. William J. McGinnis, Jr., Member Having found, in agreement with the Judge, that SSA did not fail to meet its duty to bargain in the circumstances of this case and therefore did not violate section 7116(a)(1) and (5) of the Statute, as alleged, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 5-CA-699 be, and it hereby is, dismissed. Issued, Washington, D.C., August 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 5-CA-699 Daniel H. Green, and Donald J. Martin, For the Respondent Michael A. Guerriero, For the Charging Party Charles K. Prock, Attorney for the General Counsel Federal Labor Relations Authority Before: Isabelle R. Cappello Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute (hereinafter referred to as the "Statute"), 92 Stat. 1191, Chapter 71 of Title 5 U.S.C. 7101, et seq., and the Rules and Regulations promulgated thereunder and published in 45 Fed.Reg. 3482-3524 (1/17/80), 5 CFR 241 et seq. Pursuant to a Charge filed on September 15, 1980, by the American Federation of Government Employees, Local 3239, AFL-CIO (hereinafter also referred to as the "Union"), a Complaint and Notice of Hearing was filed, on December 5, 1980, by the Chicago Regional Director of the Federal Labor Relations Authority (hereinafter, the "Authority"). The Complaint alleges that Respondent (also referred to as "SSA"), commencing in or about June 1980, and continuing to in or about November 1980, committed unfair labor practices, in violation of Sections 7116(a)(1) and (5) of the Statute, /13/ by changing the working conditions of employees in the bargaining unit of the Union without prior notice to the Union and an opportunity for the Union to bargain over the impact and implementation of the change on bargaining-unit employees. The change was directing Social Security Administration employees, at its Pontiac District, Royal Oak Branch, and Detroit Southwest Branch Offices, to travel to offices of the State of Michigan Department of Social Services (hereinafter, "DSS" offices). Respondent denies that unfair labor practices have occurred. A hearing on the matter was held on February 24, 1981, at Detroit, MI. The parties appeared and put on evidence. Briefs were filed, on April 7, 1981, by the General Counsel, and on April 10, 1981, by the Respondent. On April 20, 1981 the General Counsel filed a Statement in Opposition to Request for Post-Hearing Judicial Notice. The document at issue is a letter dated August 7, 1980, from the Chicago Regional Director for the Authority to the Treasurer, National Counsel of SSA Field Operations Locals, AFGE, AFL-CIO. The document is a dismissal letter explaining why a complaint was not being issued on a charge filed by the addressee. Such letters are required, pursuant to Rules of the Authority (5 CFR 2423.10(b)); and they are available to the public. Respondent attaches a copy of the document to its brief, and asks that judicial notice be taken of it. Since the document is in the public domain, judicial notice of it will be taken. However, insufficient facts are stated in the letter to allow it to have any precedential value in this proceeding. Based upon the evidence of record, my observation of the demeanor of the witnesses, and the briefs filed, the following findings, conclusions and recommended order are made. Findings /14/ 1. At all times material herein, prior to August 30, 1979, the American Federation of Government Employees, Local 3239, has been certified as the exclusive representative of certain employees of the SSA at certain offices, including the Pontiac District Office, Royal Oak Branch Office and Detroit Southwest Branch Office. On August 20, 1979, these three offices were included in a nationwide, consolidated bargaining unit represented by the American Federation of Government Employees, AFL-CIO. Since this time the American Federation of Government Employees, Local 3239, has been the agent of the American Federation of Government Employees at, but not limited to, the Pontiac District Office, Royal Oak Branch Office, and Detroit Southwest Branch Office of the SSA. The Union is represented, at each office, by an on-site representative, who holds the title of a Vice President of the Union. The Union also has executive officers responsible for handling consultations for the entire bargaining unit. Michael A. Guerriero, as President of the Union, deals with Donald J. Martin, Area Director of the area which includes the Detroit Southwest Branch Office, and Robert L. Clevenger, District Manager of the Pontiac District and the Royal Oak Branch Offices. The Area Director of the Pontiac and Royal Oak Branch Offices is a Mr. Balong. 2. The Union represents claims representatives, of which there are three types: generalists, Title II and Title XVI. Generalists perform the full range of the job, usually in smaller offices. Title II claims representatives handle the retirement-disability-survivors program, which involves payment of benefits and determination of entitlement to them. Title XVI representatives handle the supplementary security program, which involves determining eligibility, taking applications for claims, and determining post-entitlement eligibility. Title XVI claims representatives usually perform their duties within an SSA office. However, their job descriptions also call for them to perform their duties "in contact stations, other temporary locations, or in institutions, hospitals or other locations." (R 2 and TR 138) Claims representatives have, occasionally, traveled to personal residences, nursing homes, and post offices. Since 1976, at the Detroit Southwest Office, there has been a past practice of rotating travel for claims representatives; and travel schedules have been posted. Whenever there was a two, three, or four month break between schedules, the Union was consulted on the new schedule. For several years at the Pontiac District Office, a claims representative has been making a weekly trip to a local DSS office, to pick up information. Until this case arose, no claims representative has traveled to a DSS office to take applications. 3. On August 20, Mr. Guerriero first became aware that Title XVI claim representatives were to be sent to DSS offices. He was so advised by the on-site representative of the SSA Dearborn Office, who was so advised by the manager of the Dearborn Office. The assignment to the DSS offices was to take applications from claimants and was made pursuant to a so-called "DSS Referral Program." (TR 222) On August 21, or 22, Mr. Guerriero called Mr. Martin about the matter, as the Dearborn Office was under Mr. Martin's jurisdiction. Mr. Martin was not too sure about the matter, but indicated there was such a plan afoot and that local management was discussing the issue with on-site representatives, or would before actual implementation. Mr. Martin did not instruct his managers to have such consultations and explained that, where they occurred, they were done "as a matter of courtesy" only. (TR 227) No consultations with the Union occurred at the three SSA offices here involved. 4. The background of the instant dispute goes back to a period around November 1979, when the State of Michigan, Department of Social Services (DSS), advised SSA that it had approximately 6000 disability cases on its rolls that it wished to have reprocessed by SSA. These claims for Supplemental Security Income, or Title XVI benefits had all been previously denied by SSA; and benefits were being paid by the State of Michigan. Michigan DSS planned to call all of those denied SSA benefits back into its offices and require them to refile for Supplemental Security Income (SSI) benefits with SSA. Following this notification, the SSA and the Michigan DSS met and worked out some basic procedures for handling these cases. Notification of these procedures and the upcoming workload was sent to all SSA District Offices in Michigan. The practice of sending SSA claims representatives to various Michigan DSS offices arose as the result of local implementation of the above-referenced procedures. In several of Respondent's offices, where substantial members of these redetermination cases were to be processed, it was decided by the local managers that the cases could be handled more expeditiously if SSA claims representatives would travel to the local DSS offices and interview the potential claimants there, following their DSS interviews. The Michigan DSS referrals were going to have to be processed, either at DSS or SSA offices. 5. It was agreed by the parties that the work performed by the SSA claim representatives, at the DSS offices, was "substantially the same" as the work they performed at the SSA offices. (TR 129) 6. To some extent, interviewing applicants at the DSS offices made the work of the claims examiners easier, in that the DSS office made appointments for the claimants to come in, with proper documentation, and had more control over them, as DSS was paying them benefits, and could withhold them. SSA was not paying benefits to them and had to write two, three, or four letters to claimants in order to obtain the necessary documentation. On the other hand, some inefficiencies resulted from interviewing at the DSS offices. SSA forms and manuals were not available at the DSS offices and had to be carried over. At some DSS offices confusion over the role of the claims representatives occurred. The claims representatives had no supervision at the DSS offices. When downtime occurred the claims representatives had no other work to do. There was some delay in processing Title II claims that could probably have been avoided had the interviews been at the SSA offices. Claims representatives at the SSA offices experienced some backlog of persons to be interviewed on the days when a claims representative was at the DSS office. However, the DSS Referral Program was bound to increase the number of interviews, so a backlog would have occurred regardless of the site of the interview being at the DSS, or the SSA office. 7. Generally, the visits to the DSS offices were on a one-day-a-week basis. On such days, the claims representatives reported to the SSA office first, and returned to it before the close of the day. Travel expenses to the DSS offices were paid by Respondent. 8. There was no evidence that there were any physical hazards or other type problems at the DSS offices. There was evidence that at one DSS office the environment was quite similar to that at the Detroit Southwest Office. 9. At the Detroit Southwest Office, one claims representative went to a DSS office, under the DSS Referral Program. He made a total of four trips-- on August 19 and 26, and on September 9 and 23. The DSS office was about four miles from the SSA office. On one occasion, two claims representatives, out of the four in the office, made a visit to a DSS office. At this office, when claims representatives have travel time, additional time for adjudication is allowed them. The Union's on-site representative did not become aware of the work being performed at a DSS office until September 7, when so informed by Mr. Guerriero. She did not request consultation as to the DSS visits. 10. At the Pontiac District Office, one claims representative made six tripe to the Pontiac DSS Office-- on May 7 or May 9, June 10, July 7, August 27, September 24, and on one occasion in November or December. The DSS office is a couple of miles from the SSA office. There was a total of five claims representatives in the Pontiac District Office during the time the visits were made to the DSS office. The Union's on-site representative first learned of the visits to the DSS office in September, from another employee. 11. At the Royal Oak Branch Office, 2 out of the 12 claims representatives alternated on going to the DSS office. One, or the other, went on August 20, 21, 27, and 28, one day in September, and on October 8. The DSS office is six or seven blocks from the SSA office. Discussions between Respondent's manager and the Union's on-site representative occurred after the claims representatives started going to the DSS office. Before the start of the visits, one of the claims representatives complained about the DSS trip to the Union's on-site representative. The on-site representative did not carry the complaint to Respondent's office manager because, he testified, the decision had already been made. At this office, late consultations on changes had been a problem before. At the Royal Oak Branch Office, a supervisor solicited information from the claims representatives involved about the work load to be generated by the DSS Referral Program. 12. The collective bargaining agreement between the Union and the Respondent designates "Work environment" as a subject area for consultation. (Jt 3.5) When asked the meaning of "work environment," Mr. Clevenger answered: "The physical plant that you are located in, I guess." (TR 155) Issue Whether Respondent violated 5 U.S.C. 7116(a)(1) and (5) by directing bargaining-unit employees to travel to another office to perform their duties, without giving their Union adequate notice and an opportunity to bargain on the impact and implementation of the assignment. Discussion and Conclusions Respondent does not argue that it gave the Union adequate notice of its plan to send claim representatives to another office to process claims. Clearly, it did not. Respondent does argue that its actions did not rise to the level of a change in conditions of employment, and therefore it had no obligation to afford the Union notice and an opportunity to bargain. See RBr 5. The factual basis for this argument is that there had been a past practice for claims representatives to travel, and that such traveling is a part of the job description of each of the employees involved. Furthermore, Respondent argues that any change must be shown to have had a substantial impact upon the bargaining unit before bargaining rights are triggered, and that no substantial impact was established in this case. See RBr 5-6. The factual basis relied upon to support this argument is that the DSS trips increased office efficiency and made the job easier, that the travel time was during working hours, that the trips were short, and that the employees always returned to their regular offices at the close of the work day. The General Counsel notes, on these points, that there had been a long-standing practice of giving notification to the Union, and consulting whenever claims representatives were to be send out of the office, and that the DSS trips represented the first time that this practice was not followed. See GCBr 9-10. The General Counsel also relies on the fact that the past field trips of claims representatives were infrequent, except at the Royal Oak Branch Office where the trips were to gather information, not to interview clients. See GCBr 11. The General Counsel notes that the impact of a field trip is felt by both the employee on the trip, and the employees left in the SSA office. See GCBr 11. The General Counsel states that the Respondent held discussions with the employees involved, in the realization that an impact on them would occur. See GCBr 11. The General Counsel cites the testimony of one of Respondent's managers, that "work environment," a subject designated for consultation in the collective bargaining agreement, is the "physical plant that you are located in." See GCBr 11. As to the substantial impact question, the General Counsel argues that the impact was, indeed, substantial. The factual basis relied upon to support this argument is that the claims representatives left in the SSA Office had to take all the claims that came in, and this increase of duties resulted in a backup in the processing of claims, that clients had to wait, that a backlog also occurred as to Title II cases, that the field visits required that extra adjudication time be provided, and that there was a good deal of downtime for the claims representatives at the DSS offices. See GCBr 12. 1. No change in working conditions occurred. The preponderance of the evidence demonstrates that claims representatives are expected to, and have traveled to other locations to perform their duties. Generally, it has been an infrequent occurrence; but there has been an established practice for such travel, when necessary to the efficient functioning of the office. And the travel to the DSS offices was clearly within the area designated in the job descriptions of the claims representatives for performance of their duties-- i.e., at "other temporary locations." See finding 2, above. The DSS Referral Program is a "temporary" one; and the DSS offices qualify as a temporary "location" for the performance of the work. The two SSA cases cited by the General Counsel, at page 13 of the brief, /15/ are distinguishable, on their facts. Both involved a change in work site. However, the first case involved a change in hours worked and the assignments were for several months. The second case is more like the instant case, in that the employees were assigned to a different work area, to clear up a backlog, and the assignments were for 1 to 10 days. But in neither case was there shown to be an established past practice for assignments away from the usual work site, and a job description that required work at different work sites where necessary to perform the job. At the Detroit Southwest Office, there was an established practice of consulting with the Union when posted travel schedules were changed. Changing an established practice, without prior notification to the Union, can rise to the level of an unfair labor practice. However, as will be discussed next, the change here involved did not have a substantial enough effect upon employees to require impact-and-implementation bargaining. 2. No substantial adverse impact was felt by the claims representatives who traveled to the DSS offices, or to those who stayed behind. The DSS Referral Program was going to increase the workload of the claims representatives regardless of whether the cases referred were handled in the DSS or the SSA office. In some ways, handling the referrals at the DSS offices made the job of the claims representative easier. The claims representatives continued to check in and out of their SSA offices, and had to travel only a short distance to reach the DSS offices. The work environment of the DSS offices was not shown to be any different from that of the SSA office. The travel was done only one day a week, at most, and, at most, only six trips were taken by any one representative. On balance, no substantial adverse impact upon employees can be discerned from the record evidence. Compare the March 20, 1981 decision of the Authority, upholding a decision by Administrative Law Judge Randolph D. Mason that the impact upon employees affected by a promotion procedure must be "substantial" before an unfair labor practice can be found. See Office of Program Operations, Field Operations, Social Security Administration, San Francisco, Region, 5 FLRA No. 45 (1981). ULTIMATE FINDINGS AND ORDER No violation of Section 7116(a)(1) or (5) has been shown. Accordingly, it is ORDERED that the Complaint in Case No. 5-CA-699 be, and it hereby is, dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: July 10, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ Member McGinnis' separate opinion is set forth, infra. /1/ Section 7101. Findings and purpose (b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government. /2/ Section 7106 provides in pertinent part: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and (2) in accordance with applicable laws-- (A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked or certified candidates for promotion; or (ii) any other appropriate source; and (D) to take whatever actions may be necessary to carry out the agency mission during emergencies. (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work(.) /3/ 124 Cong.Rec. H8462 (statement of Rep. Udall) (daily ed. Aug. 11, 1978); Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, House of Representatives, 96th Congress, 1st Session, Committee Print No. 96-7 at 850. /4/ 124 Cong.Rec. H9633 (statement of Rep. Udall) (daily ed. Sept. 13, 1978); Legislative History, supra, at 923. /5/ Section 7106(b)(2) and (3) of the Statute provides: (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 adversely affected by the exercise of any authority under this section by such management officials. /6/ See, e.g., National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983) (Union Proposals 5 and 6). /7/ Where a bargaining obligation arises under section 7106(b)(2) and (3) of the Statute as the result of management's decision to exercise a management right, it is incumbent upon management to set a date, which bears a reasonable relationship to the change proposed, for the implementation of the change. Management must also provide adequate notice of the change to the exclusive representative to allow the union to request negotiations, if it so chooses, and to allow the parties reasonable time to complete the negotiations prior to the announced implementation date. The adequacy of this advance notice is to be judged by taking into account such factors as the nature and scope of the proposed change, the impact on unit employees, and the immediacy of management's need to act. /8/ See, e.g., Delaware Army and Air National Guard, 16 FLRA No. 66 (1984). /9/ This has commonly been referred to as "impact and implementation" bargaining. See, e.g., Federal Aviation Administration, Washington, D.C., 17 FLRA No. 26 (1985); and Veterans Administration, Hines Hospital, Hines, Illinois, 16 FLRA No. 1 (1984). /10/ See, note 3 and 4 supra. /11/ Section 7101(b), supra at note 1. /12/ In this regard, the parties can, of course, mutually agree to extend the implementation date. Moreover, the initial implementation of a change does not negate management's responsibility to continue to bargain over appropriate arrangements for employees adversely affected and the procedures to be used by management in implementing the future stages of a change. /13/ Section 7116(a) provides, in pertinent part, that: (a) For the purposes of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain or coerce any employee in the exercise by the employee of any right under this chapter; . . . . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this character; . . . . /14/ References herein shall be as follows: "TR" refers to the transcript; "GC" refers to the exhibits of the General Counsel; "R" refers to the exhibits of the Respondent; "Jt" refers to the Joint exhibits of the parties; "BrGc" refers to the brief of the General Counsel; and "BRR" refers to the brief of the Respondent. Multipage exhibits will be referenced by the exhibit number followed by the page numbers. Dates references are in 1980, unless otherwise specified. /15/ The first is Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, 1 FLRA No. 3, A/SLMR No. 1101, FLRC No. 78A-136 (March 1, 1979). The second is Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, 1 FLRA No. 20, A/SLMR No. 1158, Case No. O-AS-2 (April 9, 1979).