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30 FLRA No. 71

U.S. DEPARTMENT OF LABOR
WASHINGTON, D.C. AND
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
CHICAGO, ILLINOIS

                   Respondent

      and

HELEN WALLACE (AN INDIVIDUAL)

                   Charging Party

Case No. 5-CA-70079

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 practice alleged in the complaint. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by unilaterally reassigning bargaining unit employee Helen Wallace without giving the exclusive representative notice and an opportunity to bargain on the impact and implementation of the reassignment. The General Counsel filed exceptions, and the Respondent filed an opposition to the General Counsel's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's [PAGE] Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order dismissing the complaint.

Issued, Washington, D.C., December 24, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p2 ]

U. S. DEPARTMENT OF LABOR, WASHINGTON,
D. C. AND U. S. DEPARTMENT OF LABOR,
EMPLOYMENT STANDARDS ADMINISTRATION
CHICAGO, ILLINOIS

        Respondent

        and

HELEN WALLACE (AN INDIVIDUAL)

             Charging Party

Case No. 5-CA-70079

Judith A. Ramey, Esquire
        For the General Counsel

Helen Wallace,
        For the Charging Party

Cathleen M. Sadlo, Esquire
Barton S. Widom, Esquire
        For the Respondent

Before:  RANDOLPH D. MASON
         Administrative Law Judge

DECISION

Statement of the Case

This proceeding was initiated under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a second amended charge filed by Helen E. Wallace, an individual, the General Counsel of the Federal Labor Relations Authority issued a complaint and Notice of Hearing on February 18, 1987, alleging that [PAGE] Respondent violated sections 7116(a)(1) and (5) of the statute by unilaterally reassigning her and changing her job description, performance standards, and critical elements without giving the Union notice and an opportunity to bargain on the impact and implementation of said change. In a timely filed Answer, Respondent denies any violation of the Statute. The Answer was amended at the hearing to include the defense that the Union had constructive notice of the above change.

The undersigned was selected by the Office of Personnel Management to conduct this proceeding under the authority of 5 U.S.C. 3344 and 5 CFR 930.213.

A hearing was held by the undersigned in Columbus, Ohio, on April 7, 1987. The General Counsel and Respondent were represented by counsel and all parties were given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. The General Counsel and Respondent filed briefs which have been duly considered. After consideration of the entire record, including the pleadings, documentary evidence, briefs, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommended order:

FINDINGS OF FACT

At all times material herein, the National Council of Field Labor Locals (NCFLL), American Federation of Government Employees (AFGE), AFL - CIO, ("Union") has been the exclusive representative of about 8000 employees stationed in field duty stations (other than the Washington, D. C. area) of the U. S. Department of Labor. This includes employees of the Employment Standards Administration at the Office of Workers' Compensation Programs, Division of Coal Mine Workers' Compensation, Columbus, Ohio ("Facility"). At all times material herein, AFGE Local 2089 has been an agent of the National Council of Field Labor Locals, AFGE, AFL - CIO, with respect to the employees at the Facility.

Helen E. Wallace was hired at the Facility in 1982 as a Mail and File clerk, GS-305, Grade 4. Prior to that appointment she was a telephone operator for 3 1/2 years, and prior to that she was unemployed for about 15 years. She had previously held numerous positions which included typing duties. The Mail and File clerk position did not require typing of correspondence. The position included the following duties: receiving, sorting, and classifying incoming mail; reviewing outgoing mail for completeness and readiness for dispatch; maintaining records and setting up [ v30 p2 ] files. Also, although a noncritical element of her job, Wallace was required to type information onto a CRT computer screen with a typewriter keyboard in order to retrieve information concerning a file's location and status on the electronic data processing system. All of her assigned data input activities on the CRT were completed accurately and in a timely fashion. She also typed a weekly hearing list consisting of names and social security numbers, and spent a small amount of time each week typing mailing labels. All of the above typing represented a small percentage of her duties (Resp. Brief, p. 4). In May 1985 she filed an SF-171 with Respondent for another position in which she estimated that she could type 45 words per minute.

During 1986, five of the eight typists at the Facility left the office. Since a hiring freeze was in effect, the Deputy Commissioner had to divide the existing typing work among the remaining clerical employees. Since Wallace had typing skills, on November 9, 1986 she was permanently reassigned to the position of Workers' Compensation Clerk (Typing), GS-303, Grade 4. This position was essentially the same as her previous one with one exception. The new position would require Wallace to spend about 10 to 20 percent of her time typing correspondence on a typewriter or word processor. This would consist of an average of five letters a day: two would require typing a name and address on a form letter, checking a box, and sometimes adding a line of type; the other three would normally be brief letters consisting of one or two paragraphs. The new job would also require some photocopying. As a result of her new duties, her old duties would be proportionately reduced. There would be a minimal impact on the other clerical employees: they would take over a small portion of her old duties but would have less typing. Wallace's hours of work, pay, promotion opportunities, and desk location remained the same. She would need a few hours to familiarize herself with new forms and some training with a word processor.

On November 18, 1986, Wallace's supervisor presented her with a Form DL 1-381, listing the performance standards and critical elements of her new position. The typing of outgoing correspondence was listed as a critical element. 1 Wallace knows the touch system and can type [ v30 p3 ] about 45 words per minute, but she does not like typing. In particular, she does not like either "sitting in one place" or "that constant clicking" associated with typing. Although she asked how much typing the mail clerk position would entail before she was hired in 1982, there is no evidence that management knew of her aversion to typing or could have reasonably foreseen her negative reaction to the reassignment. Wallace refused to sign the DL 1-381, stating that she disagreed with the standards and that she would be meeting with a union official for a possible appeal. She told Union steward Les Paster about her problem the next day.

In his capacity as steward at the Facility, Paster had no authority to receive notice of, or request bargaining on, local changes in conditions of employment on behalf of the Union; such authority resided in the local Union president by designation from the NCFLL president. After learning about Wallace's reassignment on about November 19, 1986, Paster asked the local Union President whether the Union had received any notice of it. Respondent had not given notice at either the local or national level. 2

Since her reassignment, Wallace has adamantly told Respondent that she will not type correspondence. In January 1986 she refused an offer of any training she might need for the word processor. She stated: "You can get out your little book and start writing, because I'm not typing!" As a result of her actions, she was reprimanded and, at the time of the hearing, was about to be suspended.

Article 43, Section 13 of the negotiated agreement between Respondent and the Union provides as follows:

Section 13 -- Initiation of an Appraisal Period. (a) Within 30 calendar days of assignment of a bargaining unit employee to a new supervisor or a change in the employee's position or duties, or change in the elements or standards related to the [ v30 p4 ] position . . . the immediate supervisor shall fully discuss the position, new or revised elements, standards, and the satisfactory level of performance with the employee. The immediate supervisor shall assure that the employee has a copy of the current position description, standards and elements in accordance with Section 3 of this Article.

(b) After receiving the tentative elements and standards from the supervisor, the employee shall have a period not to exceed 10 working days within which to examine and consider this material and to meet with the supervisor to discuss these elements and standards. During this period, the employee, upon request, will be granted a reasonable amount of official time to consult with the union steward concerning the elements and performance standards in accordance with Article 6 of the DOL/NCFLL Agreement. (Emphasis added).

It is the opinion of a leading member of Respondent's negotiating team that management did not contemplate that the Union would be bargaining on any changes in performance standards for an individual employee, and that the above section constituted a waiver of the right to bargain in this area. However, the NCFLL President testified credibly that the Union intended to reserve the right to bargain on such matters, and that the above section does not speak to the Union's right to bargain. In fact, the issue of bargaining with respect to changes in working conditions of an individual employee never arose during the negotiations on Article 43. The above language merely allows the employee official time to consult with the union steward. Accordingly, no waiver could have occurred.

CONCLUSIONS OF LAW

The primary issue is whether Respondent's failure to notify the Union and afford it an opportunity to bargain about the impact and implementation of its decision to reassign Helen Wallace to a new position violated section 7116(a)(1) and (5) of the Statute. Respondent contends that the change did not give rise to a duty to bargain because the impact was no more than de minimis. The General Counsel argues that the increased typing duties, which were for the [ v30 p5 ] first time identified as a critical element, necessarily constituted a significant change which required bargaining on impact and implementation.

In Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 1760 v. FLRA, No. 86-1709 (D. C. Cir. Dec. 17, 1986), the Authority reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. It was held that in order to determine whether a change in conditions of employment requires bargaining, the pertinent facts and circumstances presented in each case should be carefully examined; and that in examining the record, principal emphasis should be placed 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. It was also held that equitable considerations should be taken into account in balancing the various interests involved; that the number of affected employees and the parties' bargaining history should be given limited application; and the size of the bargaining unit should no longer be considered as a factor. Id.

It is concluded that the impact of the reassignment on Wallace and the other employees was no more than de minimis. Accordingly, this change did not give rise to the duty to bargain on impact and implementation under section 7106(b)(2) and (b)(3) of the Statute. In reaching this conclusion, all of the factors set forth in Social Security Administration, supra, have been carefully considered. It is true that typing correspondence was added as a critical element, and that the failure to perform this function at a satisfactory level could result in the withholding of within-grade increases and bonuses, or adverse action. Such a change might have a significant impact on an employee, for example, who does not know how to type. However, Wallace admittedly knew how to type and regularly performed a small amount of typing duties in her former position as a Mail and File Clerk. The new position was essentially the same as the old position with the exception of the additional typing of very simple correspondence. This new function only required about 10% to 20% of her time each day, and her former duties were proportionately reduced. Thus she was not required to learn a new skill. She only needed a minimal amount of training with some new forms and the use of a word processor. Her hours, pay, desk location, and opportunities for promotion remained the same. Respondent [ v30 p6 ] knew of her typing abilities and could not have reasonably foreseen any adverse impact from the assignment of the small amount of additional typing duties.

I have also given some limited consideration to the fact that the reassignment involved only one employee. Similarly, I have given some consideration to the fact that Respondent and the Union have not bargained about appropriate arrangements for 30 to 40 other employees whose positions were similarly changed during the past 8 1/2 years. However, neither of these were controlling factors. One minor consideration is the Union's failure to request bargaining when it learned of the reassignment. Although it did not receive timely notice from Respondent, there was still time to make appropriate arrangements for Wallace. Under Article 43, 13 of the agreement, Wallace still had about nine working days left to discuss the new "tentative" elements and make arrangements with her supervisor at the time that the Union learned of the reassignment. Finally, no consideration has been given to the size of the bargaining unit. Id.

Since Respondent has prevailed on its primary defense, it is not necessary to dwell upon its remaining contentions. However, these issues merit some discussion. First, Respondent argued that constructive notice had been given to the Union. However, this argument is rejected because the local Union president, who was designated to receive such notice, learned of the reassignment by chance after it had occurred. Second, the contention that the Union waived the right to bargain about the impact of changes in an employee's performance standards and critical elements when it negotiated Article 43, Section 13, of the negotiated agreement is also rejected. There is no, evidence of a clear and unmistakable waiver and the language of the agreement does not speak to this issue. The mere fact that it provides official time for an employee to consult with his Union steward after a change occurs does not indicate that the Union intended to waive the right to receive adequate notice and bargain prior to the change. This interpretation was corroborated by the credible testimony of the Union's negotiator.

Although Respondent failed to give the Union notice of the reassignment, it had no obligation to provide notice or bargain on the matter in question because the impact on the employees was no more than de minimis. Accordingly, the failure to give notice and an opportunity to bargain did not [ v30 p7 ] constitute a violation of section 7116(a)(1) and (5) of the Statute. Social Security Administration, supra. In light of the foregoing conclusion, it is recommended that the Authority issue the following:

ORDER

IT IS HEREBY ORDERED, that the Complaint in Case No. 5-CA-70079 be, and it hereby is, dismissed.

Randolph D. Mason
Administrative Law Judge

Dated:  September 17, 1987
        Washington, D.C.

[ v30 p8 ]

FOOTNOTES

Footnote 1 A "critical element" is a component of an employee's job that is of sufficient importance that performance below the minimum standard requires remedial action and denial of a within grade increase, and may be the basis for removing or reducing the grade level of that employee.

Footnote 2 Similarly, the Union was not notified when the Mail and File Clerk position description was changed in July 1985 to add the CRT function plus training new clerical staff. In fact, there has been no history of bargaining on the 30 to 40 position descriptions at the Facility that have been changed during the past eight years. Some of these changes involved performance standards and critical elements.

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