19:1085(123)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA

 19 FLRA No. 123
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION
 BALTIMORE, MARYLAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-20033
 
                            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.  Thereafter, the
 General Counsel and the Charging Party filed exceptions to the Judge's
 Decision and briefs in support of those exceptions.
 
    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.
 
    The Respondent and the Charging Party (the Union) are parties to a
 nationwide collective bargaining agreement which includes in its
 coverage the employees of the Respondent's Las Vegas District Office
 involved herein.  There are approximately 70 employees in the Las Vegas
 District Office, of whom ten or eleven are designated service
 representatives.  The service representatives are charged with resolving
 problems related to the receipt of benefits to qualified recipients, and
 with answering questions posed by persons visiting or telephoning the
 District Office.  The service representatives whose duties involve
 answering telephone inquiries are assigned to the Public Service Unit
 (PSU), and service representatives rotate between face-to-face
 interviews and PSU telephone duties every six months.  At all times
 relevant, four service representatives were assigned to PSU duty.
 
    At Respondent's Las Vegas facility a general written policy exists
 concerning morning and afternoon breaks and lunch periods.  That written
 policy includes a statement that supervisors will advise employees as to
 when their breaks and lunch periods should be taken.  However, before
 the incidents giving rise to the instant complaint, the Las Vegas
 employees either took an early break schedule (morning break:  9:15 to
 9:30 a.m.; lunch 11:30 a.m.-12:30 p.m.; afternoon break:  2:45-3:00
 p.m.) or a late break schedule (morning break:  10:15-10:30 a.m.; lunch:
  12:30-1:30 p.m.; afternoon break:  3:15-3:30 p.m.).  Aside from that
 general or permanent schedule, occasional temporary adjustments were
 necessitated by absences or workload variations.  It is clear from the
 record that, before October 8, 1981, whenever such adjustments were
 necessitated, they were temporary and often arranged by the employees
 themselves.
 
    In October 1981, an abnormally heavy workload and the extended
 illness of one employee occurred simultaneously.  Cruz Alvarez,
 supervisor of PSU, notified the three on-duty employees on October 8
 that a meeting would be held at 4:30 concerning breaks and lunch.  At
 4:30, Alvarez met with the 3 PSU employees and Union Steward Nelson.
 Alvarez announced a new break and lunch schedule (10:00-10:15 a.m.;
 12:00-1:00 p.m.; 3:00-3:15 p.m.) which would be observed immediately by
 employee Helen Barsy, and which would be in effect whenever there were
 only 3 PSU employees available for duty.  The record shows that there
 was little or no discussion at the above-described meeting, which was in
 the nature of an announcement by Alvarez of a management decision.  The
 record further reflects that neither Union Steward Nelson nor the Union
 itself was advised that a meeting would be held, but rather than Nelson
 attended at the request of employee Barsy.
 
    The complaint alleges that the unilateral changes in lunch hour and
 break periods involved changes in conditions of employment and violated
 section 7116(a)(1) and (5) of the Statute /1/ as the Respondent was
 obligated to notify the Union and to bargain with it concerning such
 changes.  The complaint further alleges that the meeting of October 8
 was a "formal discussion" within the meaning of section 7114(a)(2)(A) of
 the Statute, /2/ and that the Respondent's failure to notify the Union
 and to give it the opportunity to be present as the representative of
 the employees violated section 7116(a)(1), (5) and (8) of the Statute.
 /3/
 
    The Judge concluded that the unilateral changes in break and lunch
 periods were limited in application to only employee Barsy, were "de
 minimis" in nature, and hence not violative of the Statute.  He further
 found that it was unnecessary to pass upon whether the meeting of
 October 8 constituted a "formal discussion" within the meaning of the
 Statute, inasmuch as the subject matter of the meeting was de minimis in
 nature.  The Authority disagrees with the Judge.
 
    It is clear that an established condition of employment existed
 within the PSU to the effect that when absences or work exigencies
 required, employees would adjust their break and lunch periods to meet
 the needs of the situation, and that the adjustment would be temporary
 in nature.  Thus, Respondent's imposition of a permanent arrangement to
 meet such needs, without involvement by the employees, constituted a
 unilateral change in working conditions established by a past practice.
 /4/ It is also well established that the subject matter of the change,
 which was the time at which breaks and lunch might be observed within
 the work day (and not the length of the breaks, lunch or work day
 themselves), was a matter upon which the Respondent was obligated to
 bargain.  /5/ It is noted in this regard that there is no contention
 that employees would have the right to refuse to appear for work when
 ordered to do so or that management's right to assign individual
 employees or groups of employees to specific tours of duty where such
 assignments are necessary to the Agency's mission would be limited.  /6/
 
    In the Authority's view, the Judge erred in raising the question of
 whether the change resulted in a "substantial impact" upon bargaining
 unit employees.  Where an agency effectuates a change in working
 conditions by exercising one of its reserved rights and its duty to
 bargain is limited to the impact and implementation of that change, the
 degree of impact or reasonably foreseeable impact is relevant.  /7/ But
 where, as here, the decision to make a change was itself negotiable, the
 question is whether the statutory obligation to notify and negotiate
 with the exclusive representative concerning the change was fulfilled,
 not the extent of impact of any unilateral change in conditions of
 employment upon the unit employees.  This latter inquiry is appropriate
 when the bargaining obligation of management is limited to procedures
 and appropriate arrangements pursuant to section 7106(b)(2) and (3) of
 the Statute.  /8/ Accordingly, the Authority concludes that the
 unilateral change by the Respondent in a negotiable condition of
 employment constituted a violation of section 7116(a)(1) and (5) of the
 Statute.
 
    As noted above, the Judge found it unnecessary to determine whether
 the meeting conducted by Alvarez was a formal discussion within the
 meaning of section 7114(a)(2)(A) of the Statute, because he found the
 change in conditions of employment discussed at that meeting to be de
 minimis.  The Authority agrees that it is unnecessary to determine
 whether the meeting in question constituted a formal discussion but for
 a different reason.  Subsequent to the Judge's decision, the Authority
 concluded in Veterans Administration, Veterans Administration Medical
 Center, Muskogee, Oklahoma, 19 F.RA No. 122 (1985), that actual
 representation by an exclusive representative at a formal discussion is
 sufficient to demonstrate compliance with the requirement of section
 7114(a)(2)(A) of the Statute that such an exclusive representative "be
 given an opportunity to be represented." In the circumstances of this
 case, the exclusive bargaining representative was in fact represented
 insofar as Union steward Nelson did in fact attend the meeting in
 question.  Accordingly, as the Union had the opportunity to be
 represented, we find that no violation of section 7116(a)(1), (5) and
 (8) of the Statute has been established.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that Department of Health and Human Services,
 Social Security Administration, Baltimore, Maryland, shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to give notice and the opportunity to bargain
 to American Federation of Government Employees, AFL-CIO, the employees'
 exclusive representative, concerning changes in the hours of morning and
 afternoon break periods and lunch periods and the methods used to
 determine such hours, or any other proposed changes in terms and
 conditions of employment.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any employee 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 Statute:
 
    (a) Rescind the break and lunch schedule implemented in the Public
 Service Unit, Las Vegas District Office, on October 8, 1981, and notify
 the American Federation of Government Employees, AFL-CIO, the employees'
 exclusive representative, of any intended changes in the break and lunch
 schedule.
 
    (b) Upon request, bargain with the American Federation of Government
 Employees, AFL-CIO, the employees' exclusive representative, concerning
 changes in the hours of morning and afternoon break periods and lunch
 periods and the method used to determine such hours, or any other
 proposed changes in terms and conditions of employment.
 
    (c) Post at its facility in Las Vegas, Nevada 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
 Commissioner or his designee and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken 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 IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remainder of the complaint in Case No.
 9-CA-20033 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., August 30, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to give notice and the opportunity to bargain
 to American Federation of Government Employees, AFL-CIO, the employees'
 exclusive representative, concerning changes in the hours of morning and
 afternoon break periods and lunch periods and the method used to
 determine such hours, or any other proposed changes in terms and
 conditions of employment.  WE WILL NOT in any like or related manner
 interfere with, restrain, or coerce any employee in the exercise of
 rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL rescind the break and lunch schedule implemented in
 the Public Service Unit, Las Vegas District Office, on October 8, 1981,
 and notify the American Federation of Government Employees, AFL-CIO, the
 employees' exclusive representative, of any intended changes in the
 break and lunch schedule.  WE WILL, upon request, bargain with the
 American Federation of Government Employees, AFL-CIO, the employees'
 exclusive representative, concerning changes in the hours of morning and
 afternoon break periods and lunch periods and the method used to
 determine such hours, or any other proposed changes in terms and
 conditions of employment.
                                       (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 for Region IX,
 Federal Labor Relations Authority, whose address is:  530 Bush Street,
 Room 542, San Francisco, California 94108, and whose telephone number
 is:  (415) 556-8106.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 9-CA-20033
 
    Wilson Schuerholz, Esq.
       For the Respondent
 
    Thomas Angelo, Esq.
       For the General Counsel
 
    Vince Morgante
       For the Charging Party
 
    Before:  WILLIAM NAIMARK
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (herein called the Statute or Act).  It stems from a
 charge filed on October 16, 1981 by American Federation of Government
 Employees, AFL-CIO (herein called the Union) against Department of
 Health and Human Services, Social Security Administration, Baltimore,
 Maryland (herein called the Respondent).
 
    A Complaint and Notice of Hearing, based on said charge, was issued
 on January 27, 1982 by the Acting Regional Director for the Federal
 Labor Relations Authority, San Francisco, California Region.  The said
 Complaint alleged, in substance, that on or about October 8, 1981
 Respondent, by its supervisor, Cruz Alvarez, conducted a meeting with
 bargaining unit employees to discuss changes in their break and lunch
 schedules;  that no notification was given to the Union;  that
 Respondent unilaterally changed the aforesaid schedules, effective on
 October 8, 1981, and that Respondent has refused to bargain with the
 Union in regard to the changed schedules-- all in violation of Section
 7116(a)(1), (5) and (8) of the Statute.
 
    Respondent filed an Answer to the Complaint dated February 19, 1982,
 in which it denied the aforesaid allegations as well as the commission
 of any unfair labor practices.
 
    A hearing was held before the undersigned on March 25, 1982 at Las
 Vegas, Nevada.  All parties were represented thereat, and each was
 afforded full opportunity to be heard, to adduce evidence, and to
 examine as well as cross-examine witnesses.  Thereafter briefs were
 filed with the undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein, the Respondent has operated a
 component agency known as Region IX (San Francisco) Bureau of District
 Operations, Social Security Administration.  Included within such Region
 IX is the Las Vegas, Nevada District Office which employs about 80
 bargaining unit employees.
 
    2.  Since on or about August 30, 1979 the Union herein has been, and
 still is, the certified exclusive bargaining representative of a
 national consolidated unit, including all General Schedule (GS)
 employees in Region IX, as aforesaid, excluding supervisors, guards,
 professional employees and certain other specified classes.
 
    3.  Employed at the Las Vegas District Office are 10-11 Service
 Representatives.  These individuals assist the public, who are on Social
 Security, by answering queries regarding their checks and by giving
 information to the public regarding the social security program.  Those
 representatives who deal with the public on a face-to-face basis are
 known as "Floor Service Representatives".  The ones who handle telephone
 inquiries are assigned to the Public Service Unit (PSU), and generally
 four Service Representatives will be assigned thereto.  About every six
 months these representatives rotate between the Floor Unit and the
 Public Service Unit.
 
    4.  In 1978 the District Office promulgated the "District Office
 Policy Manual" which dealt with, inter alia, coffee breaks and lunch
 hours.  It provided that two coffee breaks are granted employees during
 a day-- one in the morning and the other in the afternoon, and each
 should not exceed 15 minutes.  The Manual further provides that the
 supervisor will advise each employee as to his break time.  With respect
 to lunch periods, it is provided therein that there shall be one hour
 for lunch;  that the supervisors authorize the lunch period for all
 employees so as to maintain an interviewing staff on duty at all times;
 and that an occasional unexpected change in lunch hour must first be
 cleared with the employee's immediate supervisor.
 
    5.  In accordance with the aforementioned policy, the Las Vegas
 Office has operated on an early and late schedule with respect to coffee
 breaks as well as lunches.  Prior to October 8, 1981 /9/ the early
 schedule was as follows:  9:45 a.m. (coffee break), 11:30 a.m.-12:30
 p.m. (lunch) and 2:45 p.m. (coffee break).  The late schedule called for
 coffee breaks at 10:15 a.m. and 3:15 p.m., and the lunch period was
 12:30 p.m.-1:30 p.m.
 
    6.  Prior to October 8, the four Service Representatives in the
 Public Service Unit were:  Helen Barsy, Tony Cerven, Betty Namath, and
 Mary J. Woodman.  In accordance with previous assignments both Barsy and
 Cerven had been on early schedules in respect to coffee breaks and
 lunch.  Woodman and Namath were scheduled for late coffee breaks and a
 late lunch period.  Service Representative Barsy testified, and I find,
 that if only three of those in the unit reported to work, two went at
 their regular time for breaks and lunch and the third individual went at
 a different time for the usual coffee break and luncheon.
 
    7.  Record facts reveal that no set policy was adhered to in the past
 when a Service Representative was absent.  While management was
 concerned that adequate coverage be maintained in the Public Service
 Unit, usually the employees on duty would arrange among themselves to
 cover the calls and adjust their scheduled breaks accordingly.
 Occasionally a supervisor would intercede and make the necessary
 arrangement or revision.  Adjustments were temporary, and a considerable
 amount of flexibility was necessary to assure that incoming calls were
 handled by the remaining representatives.
 
    8.  Shortly before October 8, several events prompted Tim Hassen, who
 acted as administration assistant to the District Manager as well as
 supervisor of Operations, to be concerned about the Public Service Unit.
  Thus, an increase in public inquiries resulted from a change in the
 Social Security law.  Further, Betty Namath in the aforesaid unit was
 ill and it was not known how long she would be absent.  Hassen spoke to
 Cruz Alvarez, who supervised the Public Service group, and instructed
 him to discuss the situation with the Service Representatives.  The
 Operations Supervisor was particularly concerned that, of the three
 representatives who were on duty in this unit, there would be two
 individuals present at break times.  He also wanted such coverage, if
 possible, between 11:30 a.m. and 1:30 p.m.
 
    9.  Accordingly, on October 8, Alvarez called a meeting of the Public
 Service Unit group /10/ regarding the coverage by those employees during
 coffee breaks and at lunch times.  He explained that Namath's absence
 required a change in the scheduled breaks and lunches.  Alvarez told the
 Service Representatives that, while Cerven and Woodman would continue
 their regular schedule of breaks and lunch times, Barsy would have a
 different schedule.  The supervisor stated that Barsy would take a
 coffee break at 10:00 a.m., have a lunch period at 12:00 noon, and
 another coffee break at 3:00 p.m.  /11/
 
    Union representative Nelson told Alvarez he couldn't make the change
 unless he negotiated with the Union regarding same.  The Supervisor
 refused to negotiate the matter with Nelson, and he instructed the
 Service Representatives to follow the schedule as outlined by him.
 
    10.  Record facts disclose that the PSU functioned with three Service
 Representatives for a week to ten days.  Namath returned shortly
 thereafter, but she left again for a 3-week period.  However, when
 Namath left this time another employee was moved into the unit to join
 Barsy, Cerven and Woodman.  Since October 8 none of the four individuals
 has been absent for more than about one day.  During such brief absence
 the other employees adjusted their schedules to provide adequate
 coverage.
 
    11.  Barsy's testimony reflects that the change in her schedule
 affected her ability to make appointments for personal business at lunch
 hour.  Moreover, she testified, under the new schedule "There wasn't
 anybody I was going to break with.  I couldn't go to lunch with
 anybody."
 
                                Conclusions
 
    Two principal contentions are made herein by the General Counsel:
 (1) the change made by Respondent on October 8 of Service Representative
 Helen Barsy's lunch hour and break periods was unilateral in nature and
 in contravention of the Statute.  It is asserted that the employer was
 obligated to notify the Union herein, as well as bargain with the latter
 regarding same, since the new schedule of her lunch and break hours was
 a change in conditions of employment-- all in violation of Section
 7116(a)(1) and (5);  (2) the meeting with three Service Representatives
 in the Public Service Unit on October 8 was a "formal discussion"
 necessitating that the Union be afforded an opportunity to be present as
 set forth in Section 7114(a)(2)(A) of the Statute.  Failure to notify
 the Union and allow it to be present as the representative of its
 employees is alleged to be violative of Section 7116(a)(1), (5), and (8)
 of the Statute.
 
    (1) It is well settled in the public sector that an employer therein
 may not unilaterally change conditions of employment.  Management is
 obliged to notify the union representative and, upon request, bargain
 with the union in regard to any proposed change in employment
 conditions.  Moreover, the terms or conditions may be established by
 past practice which existed for an extended period of time.  Internal
 Revenue Service and Brookhaven Service Center, 6 FLRA No. 127;
 Department of the Navy, Naval Underwater Systems Center, Newport Naval
 Base, 3 FLRA No. 64.
 
    Respondent herein argues that the facts in the instant matter
 disclose no change in a past practice regarding scheduled lunch hours
 and break times.  It insists that the record reflects it was common
 practice to adjust schedules whenever a person in the Public Service
 Unit was absent.  In some instances it was handled by the remaining
 employees themselves, while at other times the supervisor directed the
 adjusted coverage.  Thus, the employer asserts, flexibility was the rule
 and the 'change' effected in Helen Barsy's schedule on October 8, was
 consistent with past practice in maintaining adequate coverage.
 
    General Counsel submits that the schedule change was not merely an
 adjustment made to cover the unit during Namath's absence.  The new
 schedule, as it pertained to Barsy's lunch hour and break times, was a
 departure from her regular arrangement and was permanent in nature.  I
 agree.  While it is true that past practice required flexibility in
 respect to coverage when a Service Representative was absent, the
 employees in the Public Service Unit were on a specific schedule in
 respect to lunch and break periods.  Prior to October 8, Helen Barsy's
 break times were set for 9:45 a.m. and 2:45 p.m., and her lunch hour was
 11:30 a.m.-12:30 p.m.  These hours were regularly followed and of a
 permanent nature unless the absence of others on the unit required
 temporary adjustments.  There is no indication that management intended
 to make the change, as it pertained to Barsy, anything other than
 permanent when it revised her coffee breaks to 10:00 a.m. and 3:00 p.m.
 and her lunch hour to 12:00 noon-1:00 p.m.
 
    Nevertheless, and despite the change in Barsy's lunch and break
 periods, the question arises as to whether there resulted a substantial
 impact upon bargaining unit employees.  It has been held that where
 management takes action, albeit unilateral, which affects employees
 insignificantly, no compulsion exists to bargain with the Union
 regarding such conduct.  Office of Program Operations, Field Operations,
 Social Security Administration, San Francisco Region, 5 FLRA No. 45.
 The cited case involved a temporary assignment of a field representative
 as acting operations supervisor.  The remaining representatives were
 thereby required to conduct more interviews.  However, the number of
 interviews increased only slightly, and there was no change in the
 duties of the employees.  It was concluded that no obligation existed to
 bargain with the Union regarding the impact of the decision to make the
 assignment since the effect upon unit employees was insubstantial.
 
    In the case at bar the change involved Service Representative Helen
 Barsy's break periods and lunch hour.  Her breaks were changed from 9:45
 a.m. to 10:00 a.m. and from 2:45 p.m. to 3:00 p.m.; her lunch time was
 altered from 11:30 a.m.-12:30 p.m. to 12:00 noon-1:00 p.m.  Barsy's duty
 hours, except for the foregoing, were not altered nor was any change
 effected in her duties.  This revision, applicable solely to one
 employee, appears minimal and insubstantial to the undersigned.  It
 resulted in no change insofar as the other two Service Representatives
 were concerned.  There is no evidence which reflects that additional
 duties were imposed upon them by reason of Barsy's taking a coffee break
 15 minutes later or going to lunch one-half hour later each day.
 
    Note is taken that in Department of the Air Force, Scott Air Force
 Base, Illinois, 5 FLRA No. 2, a unilateral change by the employer
 involving an increase of 15 minutes for lunch time, without bargaining
 over the change, was held violative of the Statute.  Several factors,
 however, persuade the undersigned that the cited case is distinguishable
 from the one at hand.  In the Scott Air Force Base case, supra, the
 employer also changed the workday to commence 15 minutes earlier so as
 to accommodate the new lunch schedule.  Further, the change involved 300
 employees.  The Respondent herein did not alter the starting or quitting
 time for the Public Service Unit employees.  Moreover, the revision
 involved only one employee in said unit.  In this context I conclude the
 change herein was de minimis.
 
    In testifying with respect to the impact upon her as a result of the
 change, Barsy focused upon the fact that it affected her making personal
 business appointments and that she could not go to lunch with anyone.
 While her revised schedule may have caused some inconvenience, I am
 constrained to conclude that the limited extent of the revision-- as
 well as the absence of any marked effect upon the Public Service Unit
 employees-- did not require bargaining with the Union herein in regard
 thereto.  Accordingly, I conclude that the unilateral change by
 Respondent on Helen Barsy's break times and lunch hour on October 8,
 1981 was de minimis and not violative of Section 7116(a)(1) and (5) of
 the Statute.
 
    (2) In respect to the allegation that Respondent conducted a "formal
 discussion" on October 8, 1981 with employees and failed to notify the
 Union in contravention of the Statute, I find it unnecessary to pass
 upon this contention in view of my conclusion that the change in Barsy's
 break periods and lunch hour was de minimis and resulted in no
 substantial impact.  /12/
 
    Accordingly, and in view of the foregoing, it is concluded that
 Respondent did not violate Section 7116(a)(1), (5) and (8) of the
 Statute, and I recommend the Federal Labor Relations Authority adopt the
 following:
 
                                   ORDER
 
    It is hereby Ordered that the Complaint in Case No. 9-CA-20033 be,
 and the same hereby is, DISMISSED.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
 Date:  September 22, 1982
        Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce an employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /2/ Section 7114(a)(2)(A) provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment(.)
 
 
    /3/ section 7116(a)(8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /4/ Internal Revenue Service and Brookhaven Service Center, 6 FLRA
 713 (1981);  Department of the Navy, Naval Underwater Systems Center,
 Newport Naval Base, 3 FLRA 412 (1980).
 
 
    /5/ See American Federation of Government Employees, AFL-CIO, Local
 2875 and Department of Commerce, National Oceanic and Atmospheric
 Administration, National Marine Fisheries Service, Southern Fisheries
 Center, Miami Laboratory, Florida, 5 FLRA 441 (1981) (Union Proposals 1,
 2 and 3);  U.S. Army Reserve Components Personnel and Administration
 Center, St. Louis, Missouri, 19 FLRA No. 40 (1985).
 
 
    /6/ Id.
 
 
    /7/ U.S. Government Printing Office, 13 FLRA 203, at n. 4 (1983);
 Department of Health and Human Services, Social Security Administration,
 Chicago Region, 15 FLRA No. 174 (1984).
 
 
    /8/ U.S. Army Reserve Components Personnel and Administration Center,
 St. Louis, Missouri, supra note 5.
 
 
    /9/ Unless otherwise indicated, all dates hereinafter mentioned occur
 in 1981.
 
 
    /10/ Service Representative Cerven, Woodman and Barsy attended.  At
 the request of Barsy, Claims Representative John Nelson, who acted as
 the Union representative of the District Office employees, also was
 present thereat.
 
 
    /11/ Under the adjusted coverage, two Service Representatives were
 always present during break times.  Both under the prior schedule, as
 well as after the change in Barsy's schedule, only one Service
 Representative covered the phones between 12:00 noon and 1:00 p.m.
 
 
    /12/ Assuming arguendo the aforementioned changes were not deemed
 insubstantial and de minimis, I would nevertheless conclude that the
 meeting on October 8, with the three employees was not a "formal
 discussion" under Section 7114(a)(2)(A) of the Statute but an
 announcement of a policy with no discussion or debate.  Thus,
 Respondent's failure to notify the Union and allow it to be present
 would not be violative of the Statute.  Office of Program Operations, et
 al., 9 FLRA No. 9;  Department of Defense, National Guard Bureau, Texas
 et al., OALJ-81-121 (June 12, 1981).