[ v20 p80 ]
The decision of the Authority follows:
20 FLRA No. 9 BUREAU OF FIELD OPERATIONS SOCIAL SECURITY ADMINISTRATION SAN FRANCISCO, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES. COUNCIL OF SOCIAL SECURITY DISTRICT OFFICE LOCALS SAN FRANCISCO REGION Charging Party Case No. 9-CA-372 /1/ 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 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, as modified herein. /2/ In adopting the Judge's conclusion that the impact of the temporary change in the work assignments of two Operations Analysis was "too substantial" to support a bargaining obligation, the Authority notes its recent holdings concerning this issue. Thus, the Authority has 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). The Authority thereafter held 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." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority has also held that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked 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 negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /3/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a 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. Turning to the instant case, the Authority finds, in agreement with the Judge's conclusion, and based upon the totality of the facts and circumstances presented, that the impact or reasonably foreseeable impact of the temporary change in work assignments of the two Operations Analysts was no more than de minimis. Accordingly, it follows, as found by the Judge, that the Respondent was under no obligation to notify the Union 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 and over appropriate arrangements for employees adversely affected by the change. Thus, with respect to the nature of the change, the assignment of work to one classification which is normally assigned to a different classification, the Authority agrees with the Judge that, but for other factors, the change would be significant in nature as it could affect both promotional opportunities and retention. However, as noted by the Judge, the change was of a temporary nature based on an overriding need to reduce the backlog of the Claims Representatives, and it lasted no more than two months. Further, as noted by the Judge, the change in the two employees' work assignments could have had a possible effect on at most four or five employees out of the 95 employees in the Sacramento District Office. The Authority further notes in this regard that the 95 employees of the Sacramento District are but a part of a national bargaining unit. Finally, the Authority notes that no evidence was submitted regarding any past practice with respect to such temporary reassignments of duties or with respect to any prior bargaining history between the parties over analogous changes. Based on the totality of the facts and circumstances, and noting particularly the short duration of the temporary reassignment in duties, the very few employees affected by the change relative to the total number of employees represented in the unit, and the absence of any demonstrated bargaining history or past practice according to which the parties have handled similar changes, the Authority concludes, in agreement with the Judge, that the impact or reasonably foreseeable impact of the change in duties on unit employees' conditions of employment herein was no more than de minimis. Accordingly, the Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute, and its failure to do so therefore was not violative of section 7116(a)(1) and (5). With respect to the related allegation in the complaint that the Respondent violated section 7116(a)(1) and (8) of the Statute when it conducted a meeting with the two bargaining unit employees referenced above to give them their reassignment of duties, the Authority adopts the Judge's conclusion that no formal discussion within the meaning of section 7114(a)(2)(A) of the Statute took place, but for different reasons. In his decision, the Judge concluded that inasmuch as no "bargaining," "give and take," or "solicitation of employee views and opinions" took place at the meeting, there was no formal discussion. In a recent case, Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No. 111(1984), the Authority specifically rejected similar reasoning, finding that "the absence of actual dialogue may not be relied upon to justify a failure to have given the exclusive representative prior notice and an opportunity to be present at a formal discussion" within the meaning of section 7114(a)(2)(A) of the Statute. Thus, the allegation herein cannot be dismissed based solely on the grounds relied upon by the Judge. However, as noted in Bureau of Government Financial Operations, Headquarters, 15 FLRA No. 87(1984), petition for review filed sub nom. National Treasury Employees Union v. FLRA No. 84-1493 (D.C. Cir. Oct. 1, 1984), all elements set forth in section 7114(a)(2)(A) of the Statute must be found to exist in order for a union's right to be represented at a formal discussion to attach: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more employees in the unit or their representatives; (4) concerning any grievance or any personnel policy or practices or other general conditions of employment. With respect to the latter element concerning the subject matter of the meeting, the Authority noted, as relevant herein, /4/ in Bureau of Government Financial Operations, supra, in discussing the meaning of "any personnel policy or practices," that such policies and practices involve "general rules applicable to agency personnel, not discrete actions taken with respect to individual employees." Further, in discussing the meaning of "other general condition of employment," the Authority concluded "that formal discussions are limited to those discussions (except grievance meetings) 'which concern conditions of employment affecting employees in the unit generally.'" In applying these considerations to the facts of the instant case, the Authority concludes that the subject matter of the February 15, 1980 meeting did not involve any personnel policy or practices or any general condition of employment as defined in section 7114(a)(2)(A) of the Statute. In this regard, the meeting was limited to the temporary reassignment of the duties of the two bargaining unit employees in attendance, who work in an office employing at least 95 employees and who are part of a nationwide consolidated bargaining unit. Thus, the subject matter of the meeting was confined to a temporary, discrete action involving no discussion of personnel policies or practices, and which had no effect on conditions of employment of bargaining unit employees generally. /5/ Accordingly, the Authority concludes that the meeting in question was not a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute inasmuch as it did not involve subject matter within the purview of section 7114(a)(2)(A). /6/ It follows, therefore, that the Respondent's failure to provide the Union with an opportunity to be represented at the meeting was not violative of section 7116(a)(1) and (8) of the Statute. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-372 be, and it hereby is, dismissed. Issued, Washington, D.C., September 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-372 Wilson G. Schuerholz, Esquire For the Respondent Stefanie Arthur, Esquire For the General Counsel Vincent Morgante, For the Charging Party Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result of an unfair labor practice complaint dated May 28, 1980, filed by the Regional Director, Region IX, Federal Labor Relations Authority, San Francisco, California, against the Social Security Administration, San Francisco, California. The complaint alleged that Respondent, on or about February 15, 1980, unilaterally changed the work assignments of Operations Analysts and Claims Representatives at its Sacramento District Office without providing the Union notice and an opportunity to bargain concerning the impact and implementation of such changes, and that it bargained directly with employees in derogation of the Union's status as exclusive representative, in violation of Section 7116(a)(1) and (5). The complaint further alleges that the same meeting constituted a formal discussion within the meaning of Section 7114(a)(2)(A), and that the failure to afford the Union an opportunity to be represented at the discussion was violative of Section 7116(a)(1) and (8). A hearing was held in San Francisco, California on September 8, 1980. The parties were afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses and file briefs. On the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommendations. Findings of Fact The American Federation of Government Employees, AFL-CIO, the parent body of the Union, is the certified bargaining representative of a national unit which encompasses the Sacramento District Office. That office employed at material time 90 Claims Representatives and five Operations Analysts. A Claims Representative interviews claimants, investigates and determines the validity of their claims and, after entitlement has been decided, works on redeterminations and over-payments. He reports to an Operations Supervisor, and is on a career ladder which culminates in journeyman status as a GS-10. An Operations Analyst is a GS-10 who reports to the Assistant District Manager and is assigned work in problem areas in the hope that he or she will come forward with proposals for improvements. While the two positions enjoy equivalent grades, it is clear that the Operations Analyst has the better job, with greater promotion potential. He is, in effect, a staff assistant to management, and is chiefly concerned with seeking ways to improve the casehandling process, somewhat like an industrial engineer concerned with workflow analysis and quality control. The position was redesigned in October of 1979 (without any change in the job description) for the purpose of shifting the emphasis from technical claims review to operational analysis. Joint Exhibit 2 notes that: Managers have license to direct OA activities as they see fit as long as these activities are designed to evaluate and improve office performance. The only restrictions on OA activities relate to using the OA in a production capacity, i.e. interviewing, end of line 100% reviews, clearance unit functions etc. . . . emphasis should be placed on the fact that the OA is, first and foremost, a staff arm of the manager, and as such, should be involved in activities which the manager would normally want to pursue, but either lacks the time or technical expertise necessary to perform a thorough review. In January 1980, management decided to give top priority to ridding itself of the backlog in SSI overpayment cases. At that time there were five OA's on board. Two (Fresner and Eckstrom) were and remained involved in other matters. Mary Bustillos had for two years been working overpayment cases and allegedly reporting to District Office Manager Peter D'Anna approximately once a month with suggestions for improving the case handling process. /7/ On January 15, Bottoni and Vega were assigned to do a thorough analysis of the backlog in overpayment cases. Bottoni had been until then a Claims Representative. There is no evidence respecting Vega's experience and areas of expertise. It is clear that the two were commissioned to process such cases, with a heavy emphasis on the search for methods to improve both the quantity and quality of case dispositions. At the same time two Claims Representatives were assigned exclusively to the task of simply processing such cases. Bottoni and Vega collaborated in the submitting to D'Anna weekly written reports setting forth their findings and observations, as well as recommendations for improving the process. They also studied and recommended solutions of problems being encountered in the Marysville suboffice of the Sacramento District. Quite clearly they enjoyed an assignment as "industrial engineers," much like that described in the redesigned job. Involvement in case processing was but a means towards the end of devising better ways to cope with the caseload. Whether the other OA's did work of comparable "systems analysis" is not known but is deemed unlikely. This happy state of affairs lasted for only a month. On February 14, D'Anna called Bustillos and Bottoni into his office for a meeting. Also representing management were Assistant District Manager Zacker, Operations Officer Clements and Office Supervisor Myrick. Apparently Vega was absent that day. D'Anna thanked Bottoni for the work he and Vega had done. He then said, in essence, that the overriding priority was elimination of the backlog, that the studies indicated that lack of sufficient capable staff was at the root of the problem, and that they should suspend their reports for the balance of the quarter (February 19 through March 28) and concentrate their energies on backlog reduction: i.e., production and technical assistance to others. A wrap-up report was to be submitted at the end of the quarter, but the main emphasis was to attack the embarrassing backlog that threatened to survive the quarter's end. Thus analysis, a primary function for about a month, was, until about the end of April, almost totally subordinated to production. Bottoni and Vega did submit one more written analysis of the problem in early April, in response to D'Anna's request. After a few more weeks of further backlog elimination they were assigned tasks of operational analysis. Union President Sanderson was told of this meeting the afternoon of February 14 or the morning of February 15 by Bustillos. He sought no discussions, and lodged no protest with management, being of the view that it was the latter's responsibility to come to him if it intended to make changes. Thus, the Union took no action until three weeks later, when it filed the unfair labor practice charge. Operations Officer Clements had briefed Sanderson on a number of changes, including, apparently, increased flexibility in work assignments and specifically involvement of OA's in production. However, Sanderson's recollection was vague, and I can make no finding based on Clement's notes of their discussion in view of Clement's failure to appear at the hearing. I therefore find the union was given no specific notice of the contemplated change in duties, and was not invited to the meeting. Discussion and Conclusions The General Counsel contends that the February 14 meeting constituted direct bargaining by management representatives with employees in derogation of the Union's status as exclusive bargaining representative, in violation of Section 7116(a)(1) and (5). It also contends that the meeting constituted a formal discussion, and thus the failure to afford the Union its institutional right to be represented at such discussion violated Section 7116(a)(1) and (8). In my judgment both arguments fail for the same reason: there is no evidence that any discussion ensured in the sense of any give and take or debate. Rather, D'Anna simply thanked the employees for their work on the project, and informed them that the temporary, overriding goal was to reduce the backlog. He therefore instructed them to suspend their written reports for the next five weeks, to invest the time and energy saved in production, and to provide him with a summary report on April 4. There is no evidence that the employees (one of whom-- Bustillos-- was apparently unaffected) sought to persuade D'Anna to modify his course. I conclude that no bargaining took place and no discussions took place. Whether or not the announcement otherwise violated the law, it did not rise to the level of bypassing the Union and negotiating directly with employees about the terms and conditions of their employment. For the same reasons it did not constitute a formal discussion of "any personnel policy, practice or other general condition of employment" at which the Union was entitled to be present. The cases relied upon by the General Counsel /8/ are distinguishable. In HEW, management by questionaire sought the opinions and sentiments of bargaining unit employees about matters within the scope of the collective bargaining relationship. In Naval, management posted a copy of a letter from the Activity's Executive Officer to the Union's President in which he excoriated the President for attempting to "blackmail" the Activity into accepting the Union's contract proposals with an "unfounded" unfair labor practice charge, and promised to file a refusal to bargain charge against the Union if it did not abandon such tactics. The council sustained the Assistant Secretary's conclusion that such conduct violated the Order, but rejected his rationale that direct communications (presumably any) with unit employees over matters relating to the collective bargaining relationship necessarily tend to undermine the status of the exclusive representative. Rather, the Council held it must be determined that management's conduct was an attempt to deal or negotiate directly with employees, and in this instance it held that the letter could "be equated with an attempt to bargain directly with employees and to urge them to put pressure on the Union to take certain action." In IRS, the Assistant Secretary said the "gravamen of the violation herein consists of the solicitation of views and recommendations from unit employees" on matters covered by the parties' negotiated agreement as well as related personnel policies and practices and general working conditions. Nothing of the sort happened here. Management did not seek the views, sentiments or recommendations of Bottoni and Bustillos with regard to personnel policies and practices or general working conditions. It did not urge them to put pressure on the Union. It showed no willingness to discuss with them any matter with respect to which the Union was entitled to be dealt with exclusively. Not every communication directly to employees is a bypass or constitutes a formal discussion, /9/ even though it may otherwise be violative of the bargaining obligation. The Federal Labor Relations Council's decision in NASA and Lyndon B. Johnson Space Center, (FLRC No. 74A-95) seems to me to be instructive in this respect. There it was held that an Agency was privileged to refuse to permit the Union to participate in "information-gathering" sessions conducted at the Activity by an EEO Executive from Agency headquarters. While the Council was careful to limit its holding to the rather unique circumstances of that case, it nevertheless found it necessary to twice set forth its reasons for finding that the EEO officer's effort to solicit opinions about the EEO program and listen to employee suggestions for additions and modifications did not constitute formal discussions within the meaning of Section 10(e) of the Order (the precursor to Section 7114(a)(2)(A)). In so concluding it said: The language of the pertinent portion of section 10(e) quoted above makes clear that it is not the intent of the Order to grant to an exclusive representative a right to be represented in every discussion between agency management and employees. Rather, such a right exists only when the discussions are determined to be formal discussions and concern grievances, personnel policies and practices, or other matters affecting the general working conditions of unit employees. In the situation at issue in the instant case, agency headquarters-level representatives met with activity-level employees for the purpose of soliciting opinions with respect to the EEO program of the Agency. More particularly, as stipulated by the parties, the Assistant Administrator merely: . . . solicited the opinions of the employees with respect to the EEO Program of the . . . Agency and listened to their suggestions for EEO Program additions and modifications. No commitments were made to the employees. Further, the stipulated record contains no indication that the Assistant Administrator attempted to resolve the issues raised at the meetings through agreement with assembled employees, individually or collectively, nor did he make "counterproposals" to the suggestions offered. There is no indication that the Assistant Administrator either expressly or impliedly suggested to the employees during such solicitations that their opinions and criticism would govern future modifications of the Agency's (or the Activity's) conduct and/or regulations concerning the operations of its EEO program, or that he indicated that their answers would have an effect on the employee' status. Similarly, there was no evidence adduced that the discussions dealt with specific employee grievances or other matters cognizable under an existing agreement between the Activity and the local Union, or that the Assistant Administrator was gathering the information for the purpose of using it subsequently to persuade the Union to abandon a position taken during negotiations regarding the operation of the EEO program. In our view, discussions such as those described herein were not "formal discussions concerning grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit." Rather, they were a mechanism whereby agency headquarters-level management sought to evaluate the effectiveness of an agencywide program which existed totally apart from the collective bargaining relationship at the level of the exclusive recognition. Indeed, without the benefit of such information-gathering mechanisms, agency management would be seriously impeded in effectively carrying out its responsibility-- often mandated by statute, as in the instant case-- to conduct periodic evaluations of the effectiveness of such agencywide programs. (While mechanisms of this sort are not discussions wherein management is obligated to give the exclusive representative the opportunity to be represented, management may well consider it desirable to give the exclusive representative the opportunity to be present at meetings such as those conducted by the Agency in the instant case. Clearly such representation is not prohibited by the Order.) We must emphasize that our views, as expressed above, pertain only to information-gathering devices such as the meetings involved in this case. That is, they apply only in circumstances such as those mentioned above where management does not, in the course of information gathering: seek to make commitments or counterproposals regarding employee opinions or complaints solicited by means of such devices; indicate that the employees' comments on such matters might have an effect on the employees' status; deal with specific employee grievances or other matters cognizable under an existing agreement; or gather information regarding employee sentiments for the purpose of using it subsequently to persuade the union to abandon a position taken during negotiations regarding the personnel policies or practices concerned. Turning to the reasoning of the Assistant Secretary, his finding of a violation in the instant case was based on the conclusion that the Agency's conduct undermined that status of the exclusive representative selected by the employees and that such conduct resulted in improper interference with, restraint, or coercion of unit employees by the Agency in the exercise of their rights assured under the Order in violation of section 19(a)(1). If the Council were to sustain the Assistant Secretary's conclusions in this regard, we would, in effect, be construing the Order so as to find that any meeting between agency management and unit employees wherein discussions of personnel policies and practices, or other matters affecting general working conditions took place would be a per se violation of the Order, regardless of the circumstances involved, the content of the discussion, or the actual conduct of agency management. As stated above, the critical issue was the right of the exclusive representative to be represented at the meeting pursuant to the provisions of section 10(e). Since, as we have concluded, the Union had no right to be represented at the meeting, the Union's status as bargaining representative could not be undermined by denying its request to participate at such meetings. Again, while the Council carefully stressed the fact that this fact-gathering was conducted by a headquarters level representative at the activity-level of exclusive representation, and that its purpose was to evaluate a statutority-mandated EEO program which existed totally apart from the collective bargaining relationship. I do not think the inference can properly be drawn that the repeated reference to commitments, counterproposals and solicitation of employee sentiments for use against their bargaining representative was mere dicta. Rather, I conclude that something in the nature of bargaining, some kind of give and take, or else some solicitation of employee views and opinions indicating a purpose of using such information against their representative in negotiations is necessary to a holding that direct communication between management and employee breaches the duty to deal only with the exclusive representative. Webster's New Collegiate Dictionary defines "discussion" as "consideration of a question in open or usually informal debate" and, secondarily, as "a formal treatment of a topic." The word "discuss" is there reported a deriving from words meaning to shake apart, and is defined as meaning "to investigate by reasoning or argument; to present in detail for examination or consideration (or) to talk about." It is further noted that the words discuss, argue, debate or dispute have a shared meaning in that all involve the element of "discourse about something in order to arrive at the truth or to convince others of the validity of one's position." Thus, where management, of example, presents directly to unit employees a new set of working conditions neither bargained as to content (where required) nor as to impact and implementation, such conduct would obviously violate the duty owed the exclusive representative. Such a violation flows from the fact that management ignored or flouted the status of the Union as collective bargaining representative before making the changes. Where such new terms are not set out for the examination and consideration of the employees, but as a fait accompli, no dealing with them of the kind owed the representative would have occurred and thus no violation of that duty could occur. While such disregard for the Union's role undermines it, it cannot constitute a bypass because no direct dealing or bargaining with those represented by the Union occurred. Put another way, the employees were not denied representation because no bargaining about employment terms, upon which the right to representation becomes operative, took place. Similarly, the Union was not deprived of the right to be represented on such an occasion because no formal discussions took place. Here, management held a meeting with two employees. It altered, temporarily, their working conditions. It sought no discussion about the pros and cons of such a move, and in no sense did it offer any suggestions about changes in their employment terms and conditions for their consideration. It simply told them that, for approximately six weeks they should suspend their month-old practice of submitting weekly reports on the processing of overpayment cases and employ the time thereby saved in processing cases. In the absence of any talk manifesting or suggesting that management was open to negotiating these new terms with the affected employees, I conclude that no formal discussion took place and that no bypassing of the collective bargaining representative occurred. Similarly, the Union was not deprived of the right to be represented on such an occasion because no formal discussions took place. A recent decision /10/ of the Authority throws considerable doubt on this analysis. In that case it was held that orientation sessions conducted by an agency for purposes of acquainting new employees with personnel policies, programs, and general conditions of employment, at which there was "discussion, including questions and answers," were formal discussions at which the Union was entitled to be represented. In so holding, the Authority particularly noted the required attendance, and the established agenda for such discussions. Thus, except for the unknown weight accorded the latter factor, the rationale arguably covers any discussion of employment terms (not limited to a particular individual's concerns about his own particular circumstances) between an employee and a management representative where such discussion was initiated by management. Perhaps the breadth and comprehensive scope of the established agenda are the key to the decision. In any event, I do not find that it controls such talk as occurred here, which was much more limited as to subject matter and was not pursuant to any established agenda. In addition, it is to be noted that the question whether the lectures, questions and answers constituted "discussion" in the light of the kind of precedent discussed earlier was not addressed by the Authority and perhaps was not even raised by Respondent. The fact that the subject matter of the sessions met the statutory standard was stipulated, and no detailed description of the nature of the exchange is given. In conclude that case does not control this one. Finally, there is the question whether the change announced on February 14 violated Sections 7116(a)(1) and (5) because the Union was not provided with notice and an opportunity to bargain over the impact and implementation of the change. The new assignments which occurred here would (apart from the question of its temporary nature) clearly constitute a significant change in employment conditions because it involved a conversion from a heavy emphasis on analysis to an almost complete emphasis on production. As noted, mere production was not a proper use of OA's, and such employment would obviously have an impact upon their promotion and retention possibilities. /11/ Here, however, the de-emphasis in analysis was short-lived, was based upon perceived overriding need to reduce an intolerable backlog by the end of the calendar-year quarter (at a time when management thought the analysis already done had largely disclosed what was wrong with the system for processing overpayment cases), and affected only a few employees. That is, the ramifications of the change were limited both in time and to about four or perhaps five employees in the unit. Since sometime in April, OA's Bottoni and Vega have been reassigned to the kinds of analytical duties for which that job was designed. Thus, at most, they were used, for approximately two months, in a way that rendered their job identical to that of a Claims Representative, except for the need to make a wrap-up analysis. Thus the question arises whether this temporary shift in the emphasis of their duties had a sufficiently substantial impact upon their careers to call into play the obligation to notify the Union and be prepared for good faith negotiations about the impact and implementation of such a contemplated change. /12/ No system works smoothly all the time. Good management requires slight shifts and "fine tuning" in the deployment of personnel and other resources. A substantial impact rule was fashioned under the Executive Order which imposes a bargaining obligation only with respect to those matters which materially affect, and have a substantial impact on, personnel policies, practices and general working conditions. Given the brief duration of the change at issue, the importance of addressing the backlog, the limited number of employees affected and the lack of any indication that they were in any way adversely affected, I conclude that the impact was too insubstantial (or remote and speculative) to support a bargaining obligation. If every small adjustment in duties is attended by such an obligation, each federal manager would virtually require a union steward as a constant companion. Instead, I think, the Statute requires that, where a management decision does indeed have substantial impact management shall be prepared to bargain about appropriate arrangements for employees adversely affected by the change. /13/ Since no violation of Section 7116(a)(1), (5) and (8) has been established, I recommend that the Authority adopt the following Order: ORDER It is hereby ordered that the complaint in Case No. 9-CA-372 be dismissed. JOHN H. FENTON Chief Administrative Law Judge Dated: July 27, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Judge granted the General Counsel's motion to withdraw those portions of the consolidated complaint relevant to Case No. 9-CA-297 pursuant to a settlement agreement entered into by the parties and approved by the Regional Director. /2/ Noting particularly the absence of exceptions to the Judge's dismissal of the section 7116(a)(1) and (5) allegation of the complaint alleging that Respondent bargained directly with bargaining unit employees in derogation of the Union's status as exclusive representative, the Authority adopts the Judge's findings, conclusion and recommended Order in that regard. See U.S. Department of Housing and Urban Development, 15 FLRA No. 89(1984). /3/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented. /4/ No party alleged, and it does not appear, that the meeting concerned a grievance within the meaning of section 7114(a)(2)(A) of the Statute. /5/ See United States Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 17 FLRA No. 122(1985). /6/ In view of this finding, the Authority does not decide whether the meeting was formal (element 2). /7/ Whatever the newly-defined emphasis on analysis, the suggestion is very strong that Bustillos' assignment was, overwhelmingly, if not exclusively to process cases. Such insights into the system as she may have gained in two years appear to have been ignored when the task of in-depth analysis of that system was assigned to Angelo Bottoni and Marlene Vega, neither of whom had such depth of experience in that field. Bustillos was, according to Bottoni, simply processing overpayment cases. I note this because there appears to have been much uncertainty about the use of OA's, hence the redefinition of the job. /8/ HEW, SSA, Bureau of Retirement and Survivors Insurance, 1 FLRA No. 59; Naval Air Station, Fallon, Nevada, A/SLMR No. 432 and FLRCNo. 74A-80; and IRS, Ogden Center, A/SLMR No. 944. /9/ See Department of Defense, National Guard Bureau, Case No. 6-CA-210 (OALJ-81-112) and U.S. Environmental Protection Agency, Case No. 3-CA-1528 (OALJ-81-119), where Judges Chaitovitz and Sternburg also concluded that not all exchanges of words concerning employment conditions constitute formal discussions. /10/ HEW, Region IV, Atlanta, 5 FLRA No. 58. /11/ Cf. National Labor Relations Board, A/SLMR No. 246. /12/ Cf. Social Security Administration, San Francisco, Case No. 9-CA-320 and 322 (OALJ-81-039), where Judge Sternburg held that a transfer of overpayment cases from a Branch Office to a District Office, which was due to an emergency situation and which resulted in a three percent increase in an employees annual caseload, did not have a significant impact upon that employee's working conditions. See also, Social Security Administration, San Francisco, Case No. 9-CA-56 and 57 (OALJ-80-82), where Judge Mason held that management was not required to bargain about the impact of its decision to temporarily promote an employee to the position of acting supervisor, where the consequence of such action was that, for three months, the remaining 35 or 40 Claims and Service Representatives shared the insubstantial "burden" of processing those claims he had formerly processed. /13/ While there is no requirement that the Union make a bargaining request after the change has taken place in order for a violation to remain actionable, it is interesting that the Union made no request here though it knew of the change almost immediately and might have headed off any possible untoward consequences it could think of. Its failure to do so (although it had been made generally aware of a move toward more flexible use of manpower) leaves me, and apparently the General Counsel, groping unsuccessfully for the kind of subject matter which might usefully have been placed on the bargaining table.