[ v24 p403 ]
The decision of the Authority follows:
24 FLRA No. 42 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1760 Charging Party Case No. 2-CA-40211 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions. The issue is whether, as found by the Judge, the Respondent's refusal to bargain with the exclusive representative concerning the impact of one employee's reassignment violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). II. Background The record reflects that the American Federation of Government Employees, AFL-CIO, is the exclusive representative of a consolidated nationwide unit of certain employees of the Respondent, including those of the Northeastern Program Service Center (the Center), and that the Charging Party acts as its agent at the Center. The Center is one of the main facilities for processing claims of Social Security beneficiaries. It is divided organizationally into seven processing sections, each consisting of several work modules and an Inquiry and Expediting (I&E) Unit. Prior to the reassignment giving rise to the complaint in this case, the I&E Unit in Section 3 employed, among others, three Search and Control (S&C) clerks. One of the S&C clerks was Selma Hirsch, who had been permanently reassigned to that position from the position of file clerk in a module on November 13, 1983. The record reveals that it was not necessary for Hirsch to receive training or to learn any new skills in order to perform satisfactorily in her new position. In December 1983, a separate reconsideration group was established at the Center which reduced certain of the work handled by the I&E Units. Based on this decrease in workload, Hirsch was designated on January 10, 1984, to be reassigned back to the file clerk position she previously held in one of the work modules, and the reassignment was effected on February 6, 1984. The record reflects that prior to the effectuation of the reassignment, the Respondent took the position, among other things, in response to the Charging Party's request to bargain, that the reassignment would result in no material change in the affected employee's duties. III. Judge's Decision The Judge noted that 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." (Footnote omitted.) U.S. Government Printing Office, 13 FLRA 203, 204-05 (1983). The Judge also referred to the Authority's decision in Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA 922 (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." The Judge found a violation of section 7116(a)(1) and (5) of the Statute based upon the Respondent's refusal to bargain upon request, concluding first that the request to bargain was made in a timely fashion and second that the reassignment of employee Selma Hirsch from the position of S&C clerk in the I&E Unit into the position of file clerk in one of the work modules within the same processing section constituted a change in working conditions which was more than de minimis. In reaching this latter conclusion, the Judge noted the differences in duties and tasks required in the two work units; the impact of Hirsch's reassignment on the two remaining I&E clerks; and the fact that while no differences in grade were involved, the line of progression had been from file clerk in a module to S&C clerk in the I&E Unit. IV. Exceptions The General Counsel's exceptions were limited to the Judge's failure to provide a status quo ante remedy and his failure to rule on the General Counsel's request for such a remedy. The Respondent opposed the General Counsel's exceptions. V. Analysis Based on the facts set out above, we conclude, contrary to the Judge, that the Respondent is not obligated to bargain with the Charging Party. Therefore, its refusal to do so did not violate section 7116(a)(1) and (5) of the Statute. In view of the importance of the issues involved in this case, particularly the extent of an agency's duty to bargain regarding changes in conditions of employment, the bases of our decision merit discussion. A. The obligation to bargain regarding changes in conditions of employment. The duty of bargain in good faith under the Statute "requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment, during the term of a collective bargaining agreement, absent . . . a clear and unmistakable waiver of bargaining rights." Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). This obligation applies whenever management changes an established policy or past practice pertaining to conditions of employment whether or not the matter is covered by a provision in an existing collective bargaining agreement. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA 352 (1981); U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, 19 FLRA No. 40 (1985). It is clear, however, in both the Federal and private sectors that certain management actions do not rise to a level which creates a bargaining obligation. Where the obligation to bargain extends to the impact and implementation of the change (or to procedures and appropriate arrangements where the exercise of management rights under section 7106 is involved), the relative significance of the change and the degree of its impact on bargaining unit employees have been relevant considerations under both Executive Order 11491 and the Statute. /1/ B. The use of a standard to identify changes which require bargaining and those which do not. The use of a standard to distinguish between changes which require bargaining and those which do not is fully supported by the Statute and its purposes and policies. Section 7101 of the Statute reflects Congress' finding that collective bargaining is in the public interest, as well as the direction that the Statute be interpreted in a manner which is consistent with the requirement of an effective and efficient Government. In cases such as these, the Authority must accommodate Congress' provisions both for consultation and negotiation concerning working conditions of Federal employees, and for the effective and efficient operation of Government agencies through the exercise of management rights or through other actions required or permitted by law. Further, section 7105(a)(1) requires the Authority to provide "leadership in establishing policies and guidance" relating to labor relations in the Federal sector. In fulfilling this responsibility, the Authority must take care that its adjudicative processes not be unnecessarily burdened with cases that do not serve to bring meaning and purpose to the Federal labor-management relations program. While we seek to ensure that the rights of agencies, unions, and employees under the Statute are protected in situations involving changes in conditions of employment, we must also seek to discharge our responsibilities in a fashion that promotes meaningful bilateral negotiations. Interpreting the Statute to require bargaining over every single management action, no matter how slight the impact of that action, does not serve those aims. The limited scope of Federal sector bargaining caused by external laws, rules, and regulations also demands that the Authority not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations. C. Previous standards used to identify changes which require bargaining. Two standards have been used to date to identify those changes which require bargaining. The old standard required a "substantial" impact. See, for example, Social Security Administration, Bureau of Hearings and Appeals, 2 FLRA 238 (1979). The more recent standard required that the impact be more than de minimis. /2/ In discussing the de minimis standard in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the Authority identified a number of factors to be considered in determining whether a particular change in conditions of employment was more than de minimis. The factors identified were (1) the nature of the change (for example, the extent of the change in work duties, location, office space, hours, loss of benefits or wages, and the like); (2) the duration and frequency of the change (that is, the temporary, recurring, or permanent nature of the change); (3) the number of employees affected or foreseeably affected by the change; (4) the size of the bargaining unit; and (5) the extent to which the parties established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. D. The standard to be applied in this and future cases. We have reassessed and modified the recent de minimis standard. In order to determine whether a change in conditions of employment requires bargaining in this and future cases, the pertinent facts and circumstances presented in each case will be carefully examined. In examining the record, we will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved. As to the number of employees involved, this factor will not be a controlling consideration. It will be applied primarily to expand rather than limit the number of situations where bargaining will be required. For example, we may find that a change does not require bargaining. However, a similar change involving hundreds of employees could, in appropriate circumstances, give rise to a bargaining obligation. The parties' bargaining history will be subject to similar limited application. As to the size of the bargaining unit, this factor will no longer be applied. E. Application of the standard in this case. Applying the above analysis and based on the facts and circumstances in this case, we conclude that the Respondent was under no obligation to bargain with the Union concerning implementation procedures or appropriate arrangements pertaining to the reassignment of the employee. While there was some change in the conditions of employment of the employee as a result of her reassignment from the clerical position in the Inquiry and Expediting (I&E) Unit back to the clerical position she had previously held, review of the relevant facts and circumstances establishes that the change did not give rise to a bargaining obligation. In reaching this result, we note the limited nature of the change involved, i.e., the reassignment of the employee from a position she had held for less than three months back to the position she had previously held, based on the operational needs of the Respondent. The employee's reassignment involved no loss in pay or grade, nor did it involve a change in her hours. Although the new position involved some changes in duties and tasks as noted by the Judge, the duties of the two positions are substantially similar. Moreover, the anticipated effect on the remaining S&C clerks due to Hirsch's reassignment should be minimal since the reassignment was directed as a result of a decrease in workload. Accordingly, we conclude that the Respondent was not obligated to bargain with the Union in this matter and that by refusing to do so the Respondent did not violate section 7116(a)(1) and (5) of the Statute. Notwithstanding this determination, we believe that the collective bargaining relationship between the Agency and the Union in this case would be better effectuated by their timely and amicable efforts to meet, discuss and possibly resolve issues raised by the minor changes in conditions of employment. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision and the entire record in this case, and adopts the Judge's findings and conclusions only to the extent that they are consistent with our decision. Therefore, we reverse the Judge's finding of a violation and shall order that the complaint be dismissed. /3/ ORDER The complaint in Case No. 2-CA-40211 is dismissed. Issued, Washington, D.C., December 9, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-40211 DEPARTMENT OF HEALTH & HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1760 Charging Party Daniel H. Green, Esq. Julian Bergman For the Respondent Jon R. Steen, Esq. For the General Counsel James Armet For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on April 30, 1984 by the Regional Director for the Federal Labor Relations Authority, Region II, a hearing was held before the undersigned on June 21, 1984 at New York, New York. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., (herein called the Statute). It was based on a charge filed on February 8, 1984 by American Federation of Government Employees, AFL-CIO, Local 1760 (herein called the Union) against the Department of Health and Human Services, Social Security Administration (herein called the Respondent). The Complaint alleged, in substance, that on or about February 6, 1982 /4/ Respondent unilaterally changed working conditions by reassigning a search and control clerk at its Northeastern Program Service Center, and thereby reduced the staff in its Inquiry and Expedite unit; that such action was taken without notifying the Union and affording it an opportunity to bargain re the impact and implementation of such change. Respondent's Answer, dated May 21, 1984, denied the foregoing allegation as well as the commission of any unfair labor practices. All parties were represented at the hearing, each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered. /5/ 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 American Federation of Government Employees, AFL-CIO, has been the exclusive representative of a consolidated nationwide unit of certain employees of Respondent, including all nonsupervisory employees in the Northeastern Program Service Center with specified exclusions. /6/ 2. At all times material herein Respondent and American Federation of Government Employees, AFL-CIO, have been parties to a collective bargaining agreement which covers the employees in the Northeastern Program Service Center. The said agreement provides, inter alia, as follows: ARTICLE 4 Negotiations During the Term of the Agreement Section 1 -- General The Administration will provide the Union reasonable advance notice prior to implementation of changes affecting conditions of employment subject to bargaining under 5 USC 71. Upon notice from the Administration of a proposed change, the designated union representative will notify the designated management representative of its desire to consult and/or negotiate on the change. The Union will submit written proposals if applicable within a reasonable period after notice of the proposed change. Bargaining will begin as soon as possible, and will not exceed ten (10) working days. All issues not resolved at that time may be referred to the Federal Service Impasses Panel for resolution under its rules. 3. The Northwestern Program Service Center is the main processing facility for claims of Social Security beneficiaries. There are seven processing sections, and each is divided into a group of modules and an Inquiry and Expediting Unit. 4. The Inquiry and Expediting (I&E) Unit handles the sensitive cases. For about five or six years, and prior to February, 1984, Section 3 of I&E employed five technicians, three Search and Control (S&C) Clerks, one secretary and one manager. The technicians did the actual work on the claims. S&C clerks prepared cases for processing and perform nontechnical work thereon: preparing control cards for correspondence opinions, which involved finding folders and associating the material with the folders and then sending same to the processing staff; doing inventory /7/ of cases; answering telephone inquiries; and locating files. 5. In 1983 there were three S&C clerks in I&E, 3. One of these retired on September 20 of that year. Jerry Lawrence, Section Manager, suggested to Oren Palmer, Deputy Section Manager, that the vacancy be filled by file clerk Selma Hirsch. It was discussed with Warren Holton, Union Vice President, and they agreed that Hirsch be detailed to I&E 3 for thirty days so that her performance could be reviewed. 6. Hirsch was detailed to I&E 3 as a S&C clerk in October, 1983. On November 13, of that year she was formerly reassigned to that position since her performance was satisfactory. No training was required for her job, nor was it necessary that Hirsch learn any new skills. 7. In December, 1983 Respondent established a reconsideration group. The term "reconsideration", as it applies to Respondent's workload, concerns instances where a beneficiary questions whether he receive payment or whether additional payment should be made. This work had been handled by the seven I&E units and the processing of those cases took 30-60 days. The reconsideration group was set up to simplify the process, and it was staffed from the modules with claims authorizers, benefits authorizers, typists, and module control clerks. The I&E units no longer handle reconsideration cases. 8. Several discussions took place during December, 1983 and January, 1984 between Deputy Section Manager Palmer and Union representative Holton. /8/ In early December notification was given to Holton that it might be necessary to detail an S&C clerk out of the I&E section to the module. On December 12, 1983 Palmer discussed with Julian Bergman, Respondent's Labor Relations Specialist, the fact that, due to a decrease in workload in the I&E unit, management might want to reassign an S&C clerk out of the I&E section. Bergman suggested he speak to the Union. 9. On December 19, 1983 Palmer talked to Holton and mentioned that he anticipated reassigning an S&C clerk out of I&E 3 due to the decreased workload thereat. Holton stated that such a move could have office-wide implications; that he would like to review it with other union officials and get back to Palmer. On or about January 3, 1984 /9/ Palmer mentioned to Holton that the latter had not "gotten back" to him re the reassignment of a S&C clerk. However, Holton indicated he had nothing to report at that time. Thereafter, on January 10, /10/ Palmer approached Holton and stated he was reassigning S&C clerk Selma Hirsch out of I&E; that he would advise him later as to the date and location. 10. In a memorandum dated January 12, Holton notified Palmer that the Union demanded negotiation re the impact and implementation of its decision to reassign a S&C clerk from the I&E staff to a module. The Union representative also requested certain information re the work receipts and service computation dates of the incumbent S&C clerks in I&E Unit 3. /11/ Holton also stated that the Union would submit its proposals after receipt of the requested data. 11. Palmer sent a memorandum dated January 12 to Holton stating that the Union representative was advised during the week of December 19, 1983 of the decision to reassign an I&E Control Clerk to a module in Section 3; that it is Palmer's decision there is no obligation to negotiate with the Union. The memorandum recited that Holton failed to submit timely proposals so that negotiations could be conducted within 10 working days (Article 4, Section 1 of the agreement); and that there is no material change in the working conditions of the employee to be reassigned. 12. In a memorandum dated January 13 from Holton to Palmer the Union representative stated that the Deputy Manager discussed detailing a S&C clerk temporarily rather than making a permanent reassignment. Holton commented that timely notice of a proposed change was not given as required by Article 4, Section 4 of the written agreement; /12/ and that, although management may not be required to bargain re the decision to reassign an employee, it is obligated to bargain re the impact and implementation thereof. Holton repeated his former demand to negotiate in that regard as well as for the production of the requested information. /13/ 13. Holton sent another memorandum to Palmer, which was dated January 27, referring to the one dated January 13 that he sent the Deputy Manager, wherein the Union requested negotiation re the impact and implementation of the transfer of the S&C clerk to the module. He requested a reply to the demand for such negotiation. 14. Under date of January 30 Palmer sent a memorandum to Holton reiterating management's position as set forth in its January 12 memorandum to the Union. Palmer declared that timely notification of the decision to reassign an employee from the I&E staff had been furnished Holton even though no material change in duties resulted from the reassignment; that, nevertheless, Holton did not submit timely proposals. 15. In reply to Palmer's January 30 memorandum, Holton sent another memorandum to management on January 30. In addition to repeating the Union's position re the obligation of Respondent to bargain as to impact and implementation, Holton submitted a proposal that management solicit volunteers when making a reassignment. He also suggested that service computation date should govern if there are volunteers to determine which employee should be reassigned. 16. In another memorandum to Holton, dated February 1, Palmer reaffirmed management's contention that the Union did not pursue the matter in a timely fashion; that no material change occurred in condition of employment; and that management had no duty to bargain. 17. Selma Hirsch was reassigned from I&E 3 as a search and control clerk to a file clerk on February 6 in Module 18. 18. Prior to the reassignment of Hirsch there were three S&C clerks in I&E, Section 3. Each control clerk governed two modules, and after February 6 the remaining two control clerks each covered three modules. All of the duties of these clerks, i.e., associating correspondence to files, taking inventory, preparing cases for processing, locating files, and handling telephone inquiries, were performed for an additional module. Since each module contained 150 filing cabinets, the two control clerks searched 150 more cabinets. S&C Clerk, Lee Harris in I&E 3, testified he had to work a little more overtime and his backlog is higher. /14/ Further, that the two control clerks cannot take lunch and other breaks together since one of them must be on duty. 19. Records facts show that while the S&C clerk in I&E and the file clerk in modules do perform similar duties, there are some differences in their tasks. Critical and sensitive cases are handled by control clerks in I&E, while the file clerk in a module gets a full range of incoming "receipts". There is more physical effort required of the file clerk since the latter must lift and deliver a large number of folders compared to a few by the control clerk. As many as 50-100 folders are carried by the file clerk who may use a wagon to wheel them away. The S&C clerk in I&E carries folders to the modules. He brings critical cases to the manager and leaves the file cases on the receipt table in the module. The "racks" /15/ will then file the folders away. The control clerks generally visited all the floors in two buildings, whereas the file clerk was confined to the work area within the module. To some extent there is less supervision in the I&E unit. Only one supervisor is assigned thereat and he is not present most of the time, whereas there are three supervisors in the module who supervise the file clerks. Although there is no pay differential between the control clerk and file clerk positions, the usual line of progression is from the file clerk in the module to the S&C clerk in I&E. Both Hirsch and S&C Clerk Lee Harris testified they considered the transfer to file clerk from the control clerk in I&E to be a demotion. Conclusions A determination as to whether Respondent violated the Statute by failing and refusing to negotiate the impact and implementation of the reassignment of employee Selma Hirsch turns on the resolution of two issues: (1) whether the Union's request to negotiate in that regard was timely so as to impose a duty upon Respondent to bargain; (2) assuming arguendo the Union's request was timely made, whether the reassignment resulted in a minimal impact so as to warrant the conclusion that no violation of Section 7116(a)(1) and (8) be found herein. (1) Respondent contends that the Union virtually slept on its rights and thus waived any right to insist upon bargaining re the reassignment of Selma Hirsch. It insists that the Union, which was notified by management on December 19, 1983 of the proposed transfer to this employee, waited two weeks before requesting bargaining; that union representative Holton also waited two weeks (January 13, 1984 until January 27, 1984) for an answer from management to his request. Such a delay, it is argued, is unreasonable and flouts Article 4, Section 1 of the parties' collective bargaining agreement. In addition to imposing a duty upon an agency to provide a union with adequate notice prior to exercising a reserved management right, the Authority has declared that the union must submit its bargaining request within a reasonable time after receiving such notification. United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112. Where a union fails to request bargaining until after the change is implement, such request is untimely and an employer may not be deemed to have refused to bargain unlawfully. Department of the Army, U.S. Military Academy, West Point, New York, A/SLMR No. 1138, 8 A/SLMR 1163. Further, if a union is notified that a change will occur in 10 days, its submission of proposals at the last minute before an agency implements said procedures has been held to constitute an untimely request to bargain. Department of the Treasury, U.S. Customs Service, Region I (Boston, Massachusetts), 16 FLRA No. 97. See also, Social Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 960, 8 A/SLMR 33. In the case at bar I am not persuaded that the Union's request to bargain may properly be deemed untimely. While the Respondent dates its notification re the intended reassignment of Hirsch as of December 19, 1983, the record does not reflect that such notice was absolute or definitive in nature. Thus, Palmer on that date told Holton that management anticipated reassigning S&C clerk out of I&E 3. The Deputy Section Manager did not specify a particular date when the reassignment would occur. Further, he made no mention at that time of the unit or group to which the S&C clerk would be reassigned, nor was mention made of the particular control clerk to be transfered. Under the circumstances, the Union was not provided with much more than a general expectation that management would probably move a S&C clerk out of the I&E unit. It was not until January 10 that Palmer notified Holton that management would be reassigning control clerk Selma Hirsch out of I&E. Moreover, Palmer stated he would advise Holton later as to the date and location. It scarcely behooves Respondent to contend that proper notification was given the Union prior to January 10 re the reassignment. Accordingly, the request to bargain made by Holton on January 12 was, in my opinion, timely in nature. Cf. General Services Administration, 15 FLRA No. 6. /16/ (2) While an agency may not be required to negotiate a decision reserved to it as a management right under Section 7106(a) of the Statute, it may be called upon to bargain as to the impact and implementation thereof. Prior to 1983 the test applied in the public sector involved a determination as to whether such impact resulting from the change was "substantial" in nature. Then in U.S. Government Printing Office, 13 FLRA No. 39, the Authority rejected the yardstick of "substantiality" in respect to impact of a change in condition of employment. It concluded therein that the duty to negotiate comes into play where the change results in an impact which is reasonably foreseeable. However, no such duty is imposed where the foreseeable impact is de minimis in nature. See also Department of Health and Human Services, Social Security Administration, Chicago, Illinois, 15 FLRA No. 174. In the case at bar Respondent insists that the reassignment of Selma Hirsch constituted a minimal change in her working conditions and resulted in no adverse effect upon unit employees. I do not agree. Although it is true that both the S&C clerk and the module file clerk both have similar duties and tasks to perform, there are some differences in their working conditions. The record reflects that the file clerks must exert much more physical effort than that which is required of the control clerk. In her new position Hirsch is required to use a wagon to load folders, and she may lift and deliver 50-100 folders, whereas as a control clerk in the I&E unit very few folders were carried by her each day to the module. In her former position Hirsch and the other S&C clerks handled only sensitive cases, or those which were given special consideration as critical matters. The file clerks, including Hirsch in her reassigned job at the module, handle a full range of incoming receipts involving all types of cases. S&C clerks in the I&E unit have one supervisor whereas the module clerks have three managers. The control clerk has a telephone on her desk. If the District Office called for a folder, the said clerk could go into the module and procure it. The file clerk has no phone on her desk and a question to her is directed to somebody else. The file clerk is confined to the work area in that module while the S&C clerk visits all floors in two buildings. In respect to the S&C clerks in the I&E unit, record facts show that prior to February, 1984 each of the three clerks covered two modules in associating correspondence, preparing cases for processing, locating and delivering files. Since the reassignment of Hirsch each of the two control clerks covers three modules. Further, each such clerk must take lunch or a break alone since it is necessary that one of them remain on duty during working hours. Previously two of those individuals could go together at such times. Not is also taken that the line of progression has always been from file clerk position to the S&C clerk in I&E. In sum, I conclude that the reassignment of Selma Hirsch from the I&E unit to the module as a file clerk resulted in a change in working conditions. Moreover, I am persuaded, based on the record herein, that the changes were substantial enough so that the impact may properly be termed as more than de minimis. Cf. Department of Health and Human Services, Social Security Administration, Chicago, Illionois, supra. Accordingly, since Respondent failed and refused to bargain as to the impact and implementation of such reassignment -- after a timely request by the Union herein -- I also conclude Respondent has violated Section 7116(a)(1) and (5) of the Statute. Accordingly, and based on the foregoing, it is recommended that the Authority issue the following: ORDER Pursuant to Section 7118 of the Statute and Section 2423.29 of the Rules and Regulations, it is hereby ordered that the Department of Health and Human Services, Social Security Administration, shall: 1. Cease and desist from: (a) Reassigning any employees represented exclusively by American Federation of Government Employees, AFL-CIO, Local 1760, without first notifying the exclusive representative and affording it an opportunity to bargain with respect to the procedures which management will observe in implementing such reassignment and concerning appropriate arrangements for employees adversely affected thereby. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Notify and bargain in good faith with American Federation of Government Employees, AFL-CIO, Local 1760, upon request, with respect to the procedures which management will observe in implementing a reassignment of employees, and concerning the appropriate arrangements for employees adversely affected thereby. (b) Upon request, bargain in good faith with American Federation of Government Employees, AFL-CIO, Local 1760, concerning the appropriate arrangements for employees adversely affected by the reassignment of employee Selma Hirsch from the Inquiry and Expediting Unit, Section 3 to Module 18 at the Northeastern Program Service Center. (c) Post at its facilities at the Northeastern Program Service Center, Flushing, New York, 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 Director, 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 by Respondent to ensure that said 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 II, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ WILLIAM NAIMARK Administrative Law Judge Dated: May 20, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The National Labor Relations Board similarly makes a threshold determination in deciding whether an employer has a duty to bargain. Where the change made by the employer is not a "material, substantial or significant change" from past practice, the Board has found that the employer has no statutory duty to bargain over the change. See Peerless Food Products, Inc., 236 NLRB 161 (1978). The Board also considers the utilization of its resources in the processing of unfair labor practice cases. See Jimmy Wakely Show, 202 NLRB 620 (1973). (2) The term de minimis is derived from the Latin phrase "De minimis non curat lex," which is translated to mean that the law does not care for, or take notice of, very small or trifling matters; the law does not concern itself about trifles. Black's Law Dictionary 388 (5th Ed. 1979). (3) In view of this disposition, we find it unnecessary to reach or pass upon the Judge's failure to order a status quo ante remedy under the circumstances. (4) At the hearing the Complaint was amended to change the year from 1982 to 1984. (5) Subsequent to the hearing General Counsel filed a Motion to Strike certain portions of Respondent's brief as containing facts unsupported by the record. Respondent filed an opposition to said Motion. In its brief Respondent refers to: (a) a dismissal and appeal denial of another unfair labor practice charge involving the same parties; (b) the fact that James Armet, an individual with whom Union representative Warren Holton testified he spoke to on January 10, 1984, was on leave that date. Documents supporting such evidence are attached to Respondent's brief. Apart from the relevancy or determinative nature of such facts and material, the undersigned will not consider any evidence not included in the official record of the hearing. Only the testimony and exhibits adduced thereat are relied upon in the disposition of this case. The Motion is denied. See Internal Revenue Service, 16 FLRA No. 119. (6) Respondent's Answer admits that (a) American Federation of Government Employees, AFL-CIO has delegated to the National Council of SSA Payment Centers the authority to act as its representative for collective bargaining of Respondent's employees at the Northeastern Program Service Center, and the delegation has been recognized by Respondent; (b) American Federation of Government Employees, AFL-CIO, Local 1760 (the Union) has, at all times material herein, acted as agent of the Council for the purpose of collective bargaining for Respondent's employees at the Northeaster Program Service Center, and the agency relationship has been recognized by Respondent. (7) Each week the I&E unit receives a computer print-out of all cases recorded into I&E. This is broken down into cases (1) in actual processing, (2) missing, or which I&E was awaiting; (3) in a payment holding file, where payment is being made thereon. Inventories are done weekly with a record being made of the location of each folder. (8) A credibility issue is posed since there is a conflict of testimony in respect to the dates of the conversations and the content thereof. The facts set forth in that regard represent the credited version of such discussions. (9) Unless otherwise indicated, all dates hereinafter mentioned occur in 1984. (10) Palmer testified it was an established practice that, in respect to any proposals, management had to be contacted within 10 days from the date the union is notified thereof. Apart from Palmer's statement in that regard, the record contains no evidence of such a practice or its duration. The undersigned concludes there is insufficient evidence to support an established practice that the union must respond to Respondent within 10 days of management's proposals. (11) Although the charge herein alleges a violation of the Statute based on a failure by Respondent to provide information requested by the Union, no such allegation was made a part of the Complaint. (12) This particular provision recites that notice of proposed changes affecting one Region or Program Service Center will be given the union and upon request negotiated at that level; that management will provide the designated union representative with timely notice of proposed management initiated changes. (13) Palmer testified he did not receive this memorandum, which was left on his desk, until January 27; that he so noted it on the document on that date. In view of the ultimate findings re the timeliness of the January 12 request to bargain by the Union, the fact that the January 13 memo from Holton may not have been brought to Palmer's attention till January 27 is not deemed determinative as urged by Respondent. (14) Harris could not testify as to whether the number of cases increased, but stated he was doing more work than previously. Palmer testified the workload had reduced about 33% in the I&E Unit. The work receipts in said unit do show a decrease in December, 1983 and January, 1984 as contrasted with previous months. (G.C. Exhibit 9). (15) The term refers to a file clerk who files the folders. (16) The failure by Holton to make any proposals to Palmer on January 3 does not, as Respondent implies, demonstrate a disinterest in the reassignment. Neither does it constitute a waiver of the right to request bargaining on the matter. Long Beach Naval Shipyard, Long Beach, California, 17 FLRA No. 76. At that date the notification to the Union was anticipatory in nature, and I cannot fault the Union for not pursuing negotiations. See Internal Revenue Service, 16 FLRA No. 205. Moreover, a waiver must be, as the Authority has held, clear and unmistakable. Scott Air Force Base, Illinois, 5 FLRA 9. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT reassign any employee represented exclusively by American Federation of Government Employees, AFL-CIO, Local 1760, without first notifying the exclusive representative and affording it an opportunity to bargain with respect to the procedures which management will observe in implementing such reassignment and concerning appropriate arrangements for employees adversely affected thereby. WE WILL NOT in any like or related manner interfer with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. WE WILL notify and bargain in good faith with American Federation of Government Employees, AFL-CIO, Local 1760, upon request, with respect to the procedures which management will observe in implementing a reassignment of employees, and concerning the appropriate arrangements for employees adversely affected thereby. WE WILL, upon request, bargain in good faith with American Federation of Government Employees, AFL-CIO, Local 1760, concerning the appropriate arrangements for employees adversely affected by the reassignment of employee Selma Hirsch from the Inquiry and Expediting Unit, Section 3 to Module 18 at the Northeastern Program Service Center. (Agency or Activity) Dated: By: 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278 and whose telephone number is: (212) 264-4934.