09:0648(73)CA NTEU, CHAPTER 95 VS TREASURY, IRS -- 1982 FLRAdec CA



[ v09 p648 ]
09:0648(73)CA
The decision of the Authority follows:


9 FLRA NO. 73

INTERNAL REVENUE SERVICE,
CHICAGO, ILLINOIS

                 Respondent

    and

NATIONAL TREASURY EMPLOYEES
UNION (NTEU) AND NTEU, CHAPTER 95

                 Charging Party

Case No. 5-CA-78

DECISION AND ORDER

The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision, and the Respondent filed cross-exceptions and an opposition to the Charging Party's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith.

During 1978, the Internal Revenue Service (IRS) decided to reorganize at the national level and merge its two-steps appeals procedure into one level of appeal. Pursuant to this reorganization, employees who had previously worked at the organizational level which was eliminated were reassigned to the various Regional Commissioners' Offices throughout the United States. Prior to this reorganization, approximately 50 to 55 employees worked in the Chicago Regional Office. The decision to reorganize resulted in about 12 additional employees being assigned to this office. At the local level, the Respondent notified the Charging Party, NTEU Chapter 95 (the Union), that it intended to modify the existing office space design in order to accommodate the additional employees. In response to such notice, the Union requested negotiations on the substance as well as the impact and implementation of the proposed changes in the office space layout. [ v9 p648 ] Thereafter, the Union submitted proposals concerning the Respondent's intended changes which in essence would require the Respondent to construct private offices for appeals officers and to rectify existing ventilation problems. In reply, the Respondent alleged that, insofar as the proposals concerned private offices, they were outside the duty to bargain because they conflicted with the Respondent's decision to continue to utilize an open space approach to office design and, therefore, interfered with management's choice of the technology of performing its work under section 7106(b)(1) of the Statute. 1 Further, the Respondent contended that, insofar as the proposals concerned ventilation problems, the matter was outside its control because the General Services Administration (GSA) had the responsibility to correct such problems. Thus, the Respondent asserted that all of the Union's proposals were outside its duty to bargain. The Respondent implemented its announced changes in the office space design without negotiating on the proposals submitted by the Union.

The complaint alleged, in essence, that the Respondent violated sections 7116(a)(1) and (5) of the Statute 2 by its refusal to bargain [ v9 p649 ] with the Union concerning the impact and implementation of the changes in the physical structure of the Chicago Appeals Office. 3 The Judge found that the Union's proposals requiring the construction of private offices were nonnegotiable under section 7106(b)(1) of the Statute because they concerned the Respondent's choice of the technology of performing its work. Thus, he concluded that the Respondent did not violate sections 7116(a)(1) and (5) of the Statute by its refusal to bargain on the proposals before implementing the changes in the office space design. He further concluded that the Union's attempt to have the ventilation problems corrected was integrally related to the request for the establishment of private offices and thus was not a separate proposal, and therefore found no violation of section 7116(a)(5) by the Respondent's refusal to bargain with respect thereto. Accordingly, he recommended that the complaint be dismissed.

Contrary to the conclusions of the Judge, the Authority finds that the Respondent's decision to change the office space design is not excepted from the duty to bargain under section 7106(b)(1) of the Statute. In this regard, in a case issued subsequent to the Judge's decision herein, i.e., American Federation of State, County, and Municipal Employees, AFL - CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982), the Authority held, with respect to section 7106(b)(1), that an agency must demonstrate both that its choice of office space design has a technological relationship to accomplishing or furthering the performance of its work and that particular union proposals would interfere with the purpose for which the choice of office space design was adopted before there can be a finding that proposals concerning such choice would require the agency to negotiate on the technology of performing its work within the meaning of section 7106(b)(1). In the present case, the Respondent has not established that an open space approach to office design has [ v9 p650 ] any technological relationship to accomplishing or furthering the performance of its work. In the absence of such a showing, the Authority finds that the establishment of private offices, as required by the proposals, would be incidental to the performance of the Respondent's work. Thus, the proposals would not require the Respondent to negotiate on the technology of performing its work within the meaning of section 7106(b)(1) of the Statute. Rather, the Authority finds such proposals to be within the Respondent's duty to bargain. Furthermore, the portion of the proposals concerning the correction of the office's ventilation problems is not excepted from the Respondent's duty to bargain. That is, since the subject matter clearly involves a condition of employment, the Respondent has an obligation to bargain to the extent that it has any discretion with respect thereto, even if its discretion is limited, as alleged, to requesting that GSA correct the ventilation problems. 4 Therefore, it is concluded that the Respondent had an obligation to bargain with the Union over the proposals related to the announced changes in the office space design as well as the correction of the ventilation problems, and, by refusing to so bargain, the Respondent violated sections 7116(a)(1) and (5) of the Statute.

The Union has requested that, as a remedy, the Authority order a return to the status quo ante. The Authority finds that, applying the factors set forth in, 8 FLRA No. 111, to the circumstances presented herein, a status quo ante remedy requiring the Respondent to reinstitute the open space plan which was in effect prior to the changes, before negotiating in good faith with regard to the Union's proposals, is not warranted. Thus, balancing the nature and circumstances of the violation against the degree of disruption in government operations that would be caused by such a remedy, the Authority concludes that an order requiring the Respondent to bargain on the proposals submitted by the Union will best effectuate the purposes and policies of the Statute. In this regard, the Authority notes particularly that no apparent purpose would be served by requiring the Respondent to dismantle the reorganized office structure, thereby causing substantial disruption in the Chicago Regional Office's operations, before the parties have had an opportunity to agree upon an arrangement. Further, it is noted that the Authority's decision in the Library of Congress case, supra, was issued subsequent to the Respondent's actions herein. Accordingly, the Authority finds that a balancing of the equities leads to the conclusion that a status quo ante remedy is not appropriate in this case. [ v9 p651 ]

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Internal Revenue Service, Chicago, Illinois, shall:

1. Cease and desist from:

(a) Instituting any change in the office space design at the Chicago Regional Commissioner's office without affording the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, the opportunity to negotiate with respect to the change.

(b) Failing and refusing to negotiate with the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, to the extent consonant with law and regulation, concerning the correction of ventilation problems in the Chicago Regional Commissioner's Office.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request of the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, meet and negotiate with respect to the proposals previously submitted concerning the changes in the office space design at the Chicago Regional Commissioner's office and, to the extent consonant with law and regulation, concerning the proposals for correcting the ventilation problems therein.

(b) Post at its facilities at the Chicago Regional Commissioner's Office 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 Chief of the Chicago Appeals Office and shall be posted and maintained by him/her for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Chief of the Chicago Appeals Office shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. [ v9 p652 ]

(c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, 175 West Jackson Boulevard, Chicago, Illinois 60604, in writing, within 30 days from the date of the Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., July 21, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p653 ]

                      NOTICE TO ALL EMPLOYEES
                            PURSUANT TO
                    A DECISION AND ORDER OF THE
                  FEDERAL LABOR RELATIONS AUTHORITY
             AND IN ORDER TO EFFECTUATE THE POLICIES OF
                    CHAPTER 71 OF TITLE 5 OF THE
                          UNITED STATES CODE
               FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
                 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT institute any change in the office space design at the Chicago Regional Commissioner's Office without affording the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, the opportunity to negotiate with respect to the change.

WE WILL NOT fail and refuse to negotiate with the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, to the extent consonant with law and regulation, concerning the correction of ventilation problems in the Chicago Regional Commissioner's Office.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of the National Treasury Employees Union, Chapter 95, the employees' exclusive representative, meet and negotiate with respect to the proposals previously submitted concerning the changes in the office space design at the Chicago Regional Commissioner's Office [ v9 p654 ] and, to the extent consonant with law and regulation, concerning the proposals for correcting the ventilation problems therein.

                                       ________________________
                                                 (Agency)

Dated: ___________________________ By: ________________________
                                         (Signature)  (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, 175 West Jackson Boulevard, Chicago, Illinois 60604, and whose telephone number is (312) 353-0139. [ v9 p655 ]

INTERNAL REVENUE SERVICE
CHICAGO, ILLINOIS

              Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION Chapter 95

              Charging Party

Case No. 5-CA-78

James M. Gecker, Esquire
               For the Respondent

Gregory A. Miksa, Esquire
               For the General Counsel

Michael Mauer, Esquire
               For the Charging Party

Before:  BURTON S. STERNBURG
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R. Chapter XIV, Part 2411, et seq.

Pursuant to a charge filed on April 19, 1979, by the National Treasury Employees Union and National Treasury Employees Union Chapter 95 (hereinafter called the Union or Charging Part), a Complaint and Notice of Hearing was issued on February 29, 1980, by the Regional Director for Region V, Federal Labor Relations Authority, Chicago Illinois. The Complaint alleges that the Internal Revenue Service, Chicago, Illinois (hereinafter called the Respondent or IRS), violated Sections 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (hereinafter called the Statute or Act), by virtue of its actions in refusing to enter into negotiations concerning the physical structure and/or location of the office space to be utilized by two newly merged groups of employees. [ v9 p656 ]

A hearing was held in the captioned matter on May 20, 1980,, in Chicago, Illinois. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and Respondent submitted briefs on July 14, 1980, which have been fully considered.

Upon the basis of the entire record, 5 including my observation of the witnesses and their demeanor, I make the following findings of fact, 6 conclusions and recommendations.

Findings of Fact

The Respondent and the National Treasury Employees Union are parties to a Multi - Regional collective bargaining agreement wherein the National Treasury Employees Union is recognized as the exclusive bargaining agent of the employees in a number of the Internal Revenue Service's Regional Offices. The employees in the IRS' Chicago Regional Office fall within the coverage of the Multi - Regional Agreement. NTEU Chapter 95 is the agent for the National Treasury Employees Union at the Chicago Regional Office.

Prior to 1978, Respondent had in effect a two-step appeals procedure whereby a tax-payer could contest and/or appeal an Internal Revenue Service tax assessment. The first appeal was to the District Conferees located in the District Records Office. The second appeal was to Appeals Officers located in the Regional Commissioner's Offices. Sometime during 1978, the Internal Revenue Service decided to do away with the first step appeal and allow appeals of tax assessments only at the respective Regional Commissioner Offices located throughout the United States. In accordance with the aforementioned decision, the District Conferees were, in the main, reassigned to the Regional Commissioners' Offices where they assumed the position of Appeals Officers.

On September 29, 1978 and December 26, 1978, the National Treasury Employees Union and the Internal Revenue Service executed two separate agreements which were concerned solely with redeployment procedures for the affected District Conferees who had normally worked in the respective District Records Offices. Neither of the two aforementioned agreements contain any provision concerning the physical structure and/or location of the office space to be utilized by the two newly merged groups of employees. Other than the agreements themselves, the record is devoid of any probative evidence concerning the negotiations leading up to the execution of the agreements.

The decision to abolish the first step appeal and merge the District Conferees and the Appeals Officers in the respective Regional Commissioners' Offices throughout the United States added some 12 employees to the 50-55 employees then working in the Chicago Regional Commissioner's Office located on the 7th floor at 219 S. Dearborn Street, Chicago, Illinois. Inasmuch as there [ v9 p657 ] was no vacant space available for the twelve new employees, the existing space, which utilized the "open space" concept, had to be redesigned to accommodate the twelve new employees and additional functions attendant herewith.

On October 13, 1978, Mr. Daniel Pavlik, Steward for NTEU Chapter 95, sent a letter to the Chief of the Chicago Appeals Office wherein he requested negotiations concerning the "implementation of one level of appeal", in the Chicago Appeals Office. It was further requested that an initial meeting be held for purposes of informing the Union of any and all potential changes contemplated in the Chicago office. On October 27, 1978, Ms. Dorian Morley, Chief of Respondent's Chicago personnel section, responded to the Union's letter. Ms. Morley noted that various aspects of the implementation of one level of appeal were being negotiated on the national level but suggested that a Labor Management Relations Committee be convened for purposes of informing the Union of "potential changes contemplated in the Chicago Office". Subsequently, the parties agreed to hold a Labor Management Committee Meeting on November 8, 1978.

The November 8, 1978 meeting was attended by NTEU Chapter 95 representatives Marc Gordon, President; William Ball, Chief Steward; Paul Sachs, Vice President; and Daniel Pavlik, Activity Steward. The Respondent representatives in attendance were Bernard Hardiek, Acting Regional Director of Appeals; David Burckman, Assistant Regional Commissioner for Resources and Management; Al Kingman, Regional Personnel Officer; and Dorian Morley, Chief, Employment Section, Midwest Regional Office. During the course of the meeting, Mr. Hardiek presented for the Union's consideration a proposed new office layout which envisioned the construction of four new conference rooms in part of the "open space" and the alteration of the remaining "open space". The Union was further informed that Respondent intended to buy a certain type of new furniture which would be better suited to the remodeled office.

On or about December 20 or 21, 1978 Mr. Martin Schuetze, Chief, Chicago Appeals Office called a meeting with Union Steward Pavlik, and described to Mr. Pavlik, by use of certain preliminary sketches, what Respondent's office layout changes would generally involve. The management proposals presented to Mr. Pavlik at this meeting affected the following four areas of the office:

(1) Office space of four (4) employee work stations along the West perimeter of the office would be displaced to accommodate four conference rooms. The four displaced employees would be squeezed into smaller stations with approximately twelve other employees along the West and North outer perimeters of the office, whose work stations would, likewise, be diminished in size;

(2) The "Horseshoe Area" on the North side of the office, then containing three Appeals Aids stations and four Appeals Officer stations, would be completely gutted and reorganized to accomodate nine appeals Officer stations and four stations for Legal Research Assistants in the same amount of space;

(3) The "Inner Core" area on the South side of the elevator lobby would be reorganized to accommodate three (3) records clerks in addition to the five already located in that space; and [ v9 p658 ]

(4) Three (3) Appeals Aids displaced from the "Horseshoe Area" by changes described in (2) above, would be dispersed to other areas of the office and removed from immediate physical proximity to their supervisors.

On December 28, 1978, Mr. Pavlik submitted a letter to Mr. Schuetze, requesting to negotiate "the substance, impact and implementation" of the proposed office layout changes. He further requested certain needed information (i.e., blueprints, drawings to scale, etc.) which had not been furnished the Union as of that date. The letter also requested that the Union be given until February 28, 1979 to review the requested blueprints and information, and to formulate and submit its specific proposals.

In response to this letter, on January 3, 1980 Dorian Morley, who believed at the time that the blueprints had already been given the Union, contacted Mr. Marc Gordon, President of NTEU Chapter 95, and informed him that the Union would be given only until the 8th of January to submit its proposals.

In response to Ms. Morley's January 8th deadline, Mr. Pavlik personally delivered a letter to Mr. Schuetze dated January 11, 1979, specifying in even greater detail the Union's need for specific information before submitting its own more specific proposals and outlining thirteen general areas of concern to the Union relating to prospective negotiations. Pavlik further noted that Ms. Morley's demand that the Union submit its proposals by the 8th of January, was unreasonable, in view of the inaccuracy of information provided in sketches by Mr. Schuetze, the ongoing unavailability of accurate blueprints, and the inability to survey unit members on such short notice during the holiday season without more accurate information concerning management's proposals.

Mr. Pavlik also advised the Respondent that the Union found the Activity's general proposals to be "objectionable for health, safety, disclosure and efficiency reasons" and proposed that "a search for new office space be undertaken to locate adequate space utilizing the private office concept, or in the alternative that the existing space be converted to private offices".

By letter dated January 23, 1979 Ms. Morley flatly refused to negotiate any aspect of the Union's two alternative proposals on the ground that they were "non-negotiable". Ms. Morley acknowledged, however, that accurate blueprints of management's proposed changes were still under preparation and would be furnished the Union. She further established a 10-day limit for consideration of any Union proposals after the Union's receipt of the completed blueprints.

Following receipt of Ms. Morley's second letter, local Union President, Marc Gordon, directed a detailed letter dated January 31, 1979 to Mr. Schuetze, citing numerous reasons in support of the two alternative proposals concerning private office sapce which had been characterized by Ms. Morley as "non-negotiable". Mr. Gordon also urged correction of the heating and air conditioning problems as another proposal in connection with the alternative of remaining at the correct office location. [ v9 p659 ]

On February 7, 1979 Ms. Morley submitted the requested blueprints to Mr. Gordon. On February 14, 1979, Ms. Morley sent a letter to the Union wherein she again flatly rejected the negotiability of the Union's proposals concerning a move to adequate space or construction of private offices in the existing space. She further dismissed the Union's proposals concerning correction of ventilation and hearing problems as "beyond our control", but admitted contacting the General Services Administration "on many occasions in an attempt to resolve the heating and cooling problems".

On March 23, 1979 Mr. Pavlik again wrote to Mr. Schuetze. Mr. Pavlik requested that the Respondent delay implementation of the proposed office layout changes until the Union appealed management's determination of non-negotiability. No response to this request was made by the Respondent other than to proceed, unilaterally, to implement its layout plans during the balance of 1979 through January of 1980.

Discussion and Conclusions

In the absence of any probative evidence indicating that National Treasury Employees Union, Chapter 95, the agent of the National Treasury Employees Union at the Chicago, Illinois, Regional Office, was without authority to engage in negotiations at the local level concerning the impact and implementation of Respondent's decision to merge the two groups of appeals officers in one location, resolution of the instant unfair labor practice turns on the negotiability of NTEU, Chapter 95's proposals concerning (1) the relocation of The Appeals Office into new and larger space with private offices and (2) the repair of the air conditioning and the construction of private offices in the existing space.

In National Treasury Employees Union Chapter No. 010, and Internal Revenue Service, Chicago District, FLRC No. 74A-93, February 24, 1976, and National Treasury Employees Union and National Treasury Employees Union Chapter No. 22 and U.S. Department of the Treasury, Internal Revenue Service, Philadelphia District, FLRC No. 75A-118, November 19, 1976, the Federal Labor Relations Council concluded that similar proposals concerning private offices were non-negotiable since such proposals would require the agency to negotiate about the "technology" of doing its work. 7 The Council made it clear, however, that any proposal concerning the arrangements of the "open space" concept would be negotiable.

The General Counsel acknowledges the above case precedent but takes the position that such decisions are "antiquated" and urges the Authority to adopt a more liberal standard with respect to the obligations imposed upon management [ v9 p660 ] in the area of negotiations concerning impact and implementation bargaining. In support of this position, the General Counsel cites the post-enactment comments of Congressman William D. Ford of Michigan with respect to the Civil Service Reform Act of 1978. In this regard, Congressman Ford stated in pertinent part as follows:

...The entire structure of the management rights clause is markedly different from that in the Order. By the clear language of the bill itself, any exercise of the enumerated management rights is conditional upon the full negotiation of arrangements regarding adverse effects and procedures. As is made clear by the absence of the phrase "at the election of the agency", procedures and arrangements are mandatory subjects of collective bargaining. Only after this obligation has been completely fulfilled is an agency allowed to assert that a retained management right bars negotiations over a particular proposal. This approach was dictated both by the FLRC's history of interpretation abuse of the order's management rights provision and by logic itself.

In negotiating appropriate arrangements for employees adversely affected by exercise of a management right, it may obviously be necessary to address the substance of the exercise itself. If, for example, an agency initially contemplates transferring 10 employees into quarters suitable for only half that number, an "appropriate arrangement" cannot be negotiated without changing (at least somewhat) the number of employees to be relocated. Thus, the need for giving first priority to negotiating the arrangements for the adversely affected employees even if these negotiations impinge on the management right to transfer. In the example cited, the agency enjoys a retained right to transfer all 10 employees only after procedures and appropriate arrangements are agreed upon. 8

Although Congressman Ford's comments appear to support the General Counsel's contention, it is noted that such comments were not made prior to the enactment of the Statute. Accordingly, the weight to be given same is questionable, since other Congressmen and Senators might well have had a different perspective and/or interpretation of the respective provision at the time they voted for the Statute's enactment.

In view of the foregoing and absent a clear Congressional intent to the contrary, I am constrained to follow the case precedent established by the Council until the Authority sees fit to alter same. Accordingly, inasmuch as the Union's proposals here in dispute involve the establishment of private offices at either the existing space or at a new location, I find such proposals to be non-negotiable. In such circumstances no basis exists for a [ v9 p661 ] 7116(a)(1) and (5) finding predicated upon Respondent's refusal to enter into negotiations concerning the proposals. 9

Having found and concluded that the Respondent did not violate the Statute as alleged, it is recommended that the Federal Labor Relations Authority issue the following Order pursuant to 5 C.F.R. 2423.29(c).

Order

It is hereby ordered that the complaint in Case No. 5-CA-78 be, and hereby is dismissed.

BURTON S. STERNBURG
Administrative Law Judge

Dated:  July 25, 1980
Washington, DC

[ v9 p662 ]

INTERNAL REVENUE SERVICE,
CHICAGO, ILLINOIS

                      Respondent

         and

NATIONAL TREASURY EMPLOYEES
UNION (NTEU) AND NTEU, CHAPTER 95

                      Charging Party

Case No. 5-CA-78
9 FLRA No. 73

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Authority on an amended Motion for Reconsideration of the Authority's decision in Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73 (1982), filed by the Respondent. The Charging Party has filed an opposition thereto.

On July 21, 1982, the Authority issued its Decision and Order in the above case, finding that the Respondent had violated section 7116(a)(1) and (5) of the Statute by its actions in failing and refusing to bargain with the Charging Party (NTEU) over proposals related to changes in office space design as well as correction of office ventilation problems. The Respondent's motion requests that the case be remanded for a further hearing on the issue of whether NTEU's proposed changes concerning the office space design are related to the Respondent's choice of technology of performing its work and, thus, are negotiable only at the Respondent's election under section 7106(b)(1) of the Statute.

The Respondent's principal basis for its motion is that the Authority relied on American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA No. 81 (1982), a decision issued subsequent to the hearing in this case, for its conclusion that the Respondent violated the Statute by its refusal to bargain on proposals submitted by NTEU which were found to be negotiable. The respondent claims that "extraordinary circumstances" have been established because of the intervening decision in Library of Congress and the failure of the Authority to provide the Respondent with an opportunity to present evidence to meet the test articulated by the Authority in Library of Congress. The Respondent also contends that the Authority should reconsider and reverse its decision in Library of Congress, and should reconsider its [ v9 p] decision to require bargaining over matters proposed by NTEU which go beyond the scope of management's changes.

Section 2429.17 of the Authority's Rules and Regulations provides in part, that "a party . . . who can establish . . . extraordinary circumstances . . . may move for reconsideration" of an Authority decision. The Authority concludes that the Respondent has failed to establish the existence of extraordinary circumstances herein. In this regard, since the Authority's decision in Library of Congress was issued on January 7, 1982, and the Authority's decision in this case was not issued until July 21, 1982, the Respondent had ample time to file a motion with the Authority pursuant to section 2423.22 of the Rules and Regulations requesting that the hearing be reopened for consideration of any additional issues presented as a result of Library of Congress. The Respondent made no such pre-decision motion. The Respondent also could have requested the Authority's leave to file supplemental documents pursuant to section 2429.26 of the Rules and Regulations but did not do so. Finally, in its Decision, the Authority noted at page four that Library of Congress was issued "subsequent to the Respondent's actions herein." Thus, the Authority duly considered this circumstance in reaching its decision in this case. 10

Accordingly, IT IS ORDERED that the Respondent's amended motion for reconsideration be, and it hereby is, denied.

Issued, Washington, D.C., November 23, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v9 p ]

FOOTNOTES

Footnote 1 Section 7106(b)(1) provides: 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work(.)

Footnote 2 Sections 7116()(1) and (5) provide: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

Footnote 3 Prior to the hearing herein, the Respondent filed a motion to dismiss the complaint or for a more definite statement, contending that there was a variance between the complaint, which alleged a refusal to bargain concerning the impact of the change, and the charge which alleged a refusal to negotiate concerning the change itself. The Chief Judge denied the motion, noting that the complaint specified the exact conduct alleged to be violative of the Statute and, thus, was adequate to inform the Respondent of the conduct it would have to defend at the hearing. In agreement with the Chief Judge, the Authority concludes that, based on the allegations set forth in the complaint, the Respondent had adequate notice of the particular acts alleged to constitute unfair labor practices; indeed, at the hearing, the Respondent in fact defended, inter alia, its refusal to bargain on the proposals submitted by the Union. Therefore, the Respondent's exception to the Chief Judge's denial of the motion to dismiss or for a more definite statement is rejected.

Footnote 4 See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). See also American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA No. 76 (1981); American Federation of State, County, and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA No. 89 (1982).

Footnote 5 In the absence of objection, General Counsel's motion to correct transcript is granted. The corrections to the transcript are set forth in appendix A, attached hereto.

Footnote 6 As noted by Counsel for the Respondent, "The facts are substantially documentary and for the most part, undisputed".

Footnote 7 Section 7106(b) of the Statute provides that "Nothing in this section shall preclude any agency and any labor organization from negotiating--(1) at the election of the agency,....on the technology, methods, and means of performing work.

Footnote 8 Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of The Civil Service Reform Act Of 1978, pages 993-994.

Footnote 9 In his post-hearing brief, the General Counsel appears to have restated the Union's proposals. Thus, he characterizes such proposals as, (1) relocation of the office to more suitable space, (2) alteration of existing office space to provide private officeS, and (3) the correction of ventilation and heating/cooling problems withi