[ v16 p831 ]
16:0831(117)CA
The decision of the Authority follows:
16 FLRA No. 117
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA), HEADQUARTERS
Respondent
and
NASA HEADQUARTERS PROFESSIONAL
ASSOCIATION, LOCAL 9, IFPTE/AFL-CIO
Charging Party
Case No. 3-CA-2102
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. Exceptions to the Judge's Decision
were filed by the Charging Party and an opposition thereto was filed by
the Respondent.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation that the complaint be
dismissed.
In connection with a reorganization of its office, the Respondent
moved seven employees to different offices. The Union sought bargaining
regarding the effect of the allocation of office space as to two
employees. The Judge found that the Respondent did not violate section
7116(a)(1) and (5) of the Statute by refusing to bargain as requested by
the Union. In this regard, the Judge found that one of the employees
allegedly affected by the move (Chase) was a "management official"
within the meaning of section 7103(a)(11) of the Statute. The Authority
has examined the record in this regard in light of the principles
enunciated in Department of the Navy, Automatic Data Processing
Selection Office, 7 FLRA 172 (1981), and concludes that the Judge made
the correct determination. Thus, the Authority agrees with the Judge's
conclusion that the Respondent was therefore under no duty to bargain as
to Chase.
As to the second employee (Wiskerchen, who sought to be but was not
moved), the Judge found that the impact of the move was not
"substantial" and concluded that the Respondent was therefore not
obligated to bargain as to him. We agree with the Judge's conclusion,
but for the following reasons. In U.S. Government Printing Office, 13
FLRA No. 39 (1983), decided by the Authority subsequent to the issuance
of the Judge's Decision, the Authority rejected the "substantial impact"
test and held that where an agency, in exercising a management right
under section 7106 of the Statute changes conditions of employment of
unit employees, a statutory duty to bargain comes into play if the
change results in an impact on unit employees or such impact is
reasonably foreseeable. Here, based upon the Judge's finding that
Wiskerchen was the only unit employee involved, and that his working
conditions were not affected by the move, it is concluded that the
General Counsel has not shown that the changes implemented by the
Respondent resulted in an impact or a reasonably foreseeable impact on
unit employees so as to give rise to a duty to bargain. Accordingly, we
shall dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-2102 be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 17, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA), HEADQUARTERS
Respondent
and
NASA HEADQUARTERS PROFESSIONAL
ASSOCIATION, LOCAL 9, IFPTE/AFL-CIO
Charging Party
Case No.: 3-CA-2102
Richard L. Dunn, Esquire
For the Respondent
Carolyn J. Dixon, Esquire
Heather Briggs, Esquire
For the General Counsel
Steve Schwartz
For the Charging Party
Before: RANDOLPH D. MASON
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was
instituted by the issuance of a complaint on June 10, 1981, by the
Regional Director for Region 3 of the Federal Labor Relations Authority.
The complaint alleges that the National Aeronautics and Space
Administration (NASA) Headquarters, hereinafter "respondent", violated
Section 7116(a)(5) and (1) by refusing to negotiate about office
accommodations for bargaining unit employees since February 18, 1981.
In the answer and opening statement respondent alleged, inter alia, that
it was under no legal obligation to negotiate about this matter because
(a) no bargaining unit employees were involved and (b) there was no
material, adverse effect on any such employees. Respondent maintained
these positions throughout the entire proceeding.
Respondent also argues that the union's February 17, 1981, request
for bargaining was untimely and that notice of the proposed relocation
occurred on December 5, 1980; that the union forfeited its right to
bargain by engaging in delaying tactics on February 18, 1981; and, that
no working conditions were changed for employees. In addition,
respondent contends that the charge itself is invalid because it was
filed on behalf of the union by its president, Richard Storm, and that
the latter was a "management official" and thus ineligible to act for
the union. Finally, respondent urges the undersigned to infer that
someone in the Regional Director's office violated the regulations by
leaking confidential information to the charging party.
A hearing was held in this matter on July 9, 1981, in Washington,
D.C. All parties were represented and afforded full opportunity to
adduce evidence, examine and cross-examine witnesses, and argue orally.
Respondent's motion to correct the transcript is granted. Briefs filed
by respondent and the General Counsel have been duly considered. Upon
consideration of the entire record in this case, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommended order:
Findings of Fact
At all times material hereto, NASA Headquarters Professional
Association, Local 9, IFPTE/AFL-CIO (the "union") (previously known as
Local 9, American Federation of Technical Engineers, AFL-CIO) has been
the exclusive representative for an appropriate unit of certain
scientists and engineers employed by respondent.
In November of 1980 the union and respondent negotiated certain
matters arising out of a reorganization of the NASA Office of Space
Science (hereinafter "Code S"). At that time respondent was not sure
whether the physical relocation of any employees would be necessary, but
respondent stated that it would duly notify the union in advance if such
a decision was made. On December 5, 1980, management held a meeting
with all Code S employees at which the reorganization was officially
announced; the meeting was attended by the union president, Richard
Storm, who was duly notified in advance by respondent. At the meeting
respondent stated that the reorganization would probably result in the
physical relocation of some employees so that the employees in each
division would have their offices in the same general location.
However, no decision had been made regarding new office accommodations
for any employees at that time.
Subsequently, respondent decided that seven of the 35 individuals
working in Code S would have to move to different offices in order that
all employees in each reorganized division would have contiguous
offices. A proposed new floor plan was drafted reflecting the new
office locations for these individuals. All of the offices affected
were relatively nearby and located on one hallway. Five of the
employees (Noblitt, Benson, Dondey, Chase and Warner) /1/ were to be
moved to nearly identical (and sometimes larger) offices, with windows,
down the hall. One employee, Kaluzieski, was to be moved from an
interior office to a more desirable window office; another, Glabb, was
to be moved from an interior office to a larger interior office nearby.
On February 11, 1981, at 4:15 p.m. respondent gave the union copies
of both the old floor plan and the new, proposed floor plan showing
exactly where each of the above-mentioned seven employees would be
moved. At that time, the union was told that the relocation would occur
on February 23, and that comments regarding the impact and
implementation of the proposal should be given to respondent by February
17, 1981. After receiving this notice of February 11, the union asked
Roland Chase, the steward for Code S, to check with the employees to
ascertain whether there were any matters which might be negotiated.
Chase was out of town until Tuesday, February 17 (Monday was a holiday)
but polled the employees upon his return. On the afternoon of February
17, union president Storm notified respondent's labor relations officer,
Walter Pierce, that the union desired to negotiate the "procedures,
impact and implementation" of the respondent's proposal, and suggested
that the "initial negotiating session be held at 10:00 a.m. on Friday,
February 20, 1981." Storm also stated that Chase would act as chairman
of the union's three-man negotiating team.
As a result of Chase's investigation, the union had decided that it
wanted to negotiate about the office accommodations of two employees.
One, Wiskerchen, was not being moved, but wanted a larger office. There
is no evidence that moving Wiskerchen would have solved any problem
arising out of the reorganization. His working conditions were not
going to change in any way by virtue of respondent's proposals. The
other employee allegedly "adversely affected" was Chase. The latter was
scheduled to move to a larger, more desirable office but first would be
required to move, in the interim, to a small office (his old office was
also small) for several months with a different telephone extension.
The union wished to negotiate appropriate arrangements for Chase.
The evidence of record reveals that Roland Chase was a management
official and, therefore, was not a member of the bargaining unit. He
was the Chief Engineer (GS-15) for the Spacelab Flight Division. The
major part of his function consisted of preparing guidelines and
developing policy for the planning and implementation of missions in the
entire Division. The Division routinely issued major policy statements
and directives based on Chase's recommendations. In short, Chase played
a "strong" and "critical" role in determining, formulating, and
influencing the content and direction of National space programs and
policies.
On February 18 at about 9:00 a.m. Pierce delivered a letter to Storm
stating that management was unavailable for negotiations on February 19
and 20, (although no explanation was given, two negotiators were
scheduled to testify before a Congressional committee), but that it
would meet with the union at 2:00 p.m. later that same day, February 18.
Immediately after receiving this letter, Storm attempted to contact
Chase, his chief negotiator. Chase's secretary told Storm that Chase
was at a doctor's appointment and she did not expect him back until
noon. Storm checked two more times that morning to see if Chase had
returned and left an "urgent" message for Chase to call him immediately
upon returning. Meanwhile Storm had conferred with one of the other
chosen negotiators, Davids, about their predicament. They resolved to
try to accommodate management if possible, but that the presence of
Chase would be necessary at the negotiating session. Davids had a
conference scheduled which conflicted with the proposed 2:00 p.m.
meeting, and he was unable to find a substitute. Storm decided he and
Chase would attend without Davids if he could find Chase. At 1:30 p.m.
Storm delivered a letter to Pierce's secretary in which he stated that
the union was not able to meet at 2:00 p.m. "since our negotiators are
tied up with work assignments, etc." Since respondent was supposed to be
unavailable on February 19 and 20, he suggested they negotiate on the
proposed implementation date, Monday, February 23. He said that if this
was not satisfactory, the union would "bend over backwards" to resolve
the problem.
After delivering the letter to Pierce's office, Storm saw Pierce in
the hallway and merely mentioned that he had left a letter for him.
Storm then spent the rest of the afternoon out of his office in another
part of the building. He made no attempt to contact management or Chase
during that period. Meanwhile, by 2:00 p.m. Pierce had become aware of
the fact that Chase had returned to the building and management was
ready to bargain. He called Storm several times but the telephone did
not answer. Pierce and his negotiating team went to the assigned
location for the 2:00 p.m. meeting, and the union did not appear.
Thereafter Pierce delivered a memorandum to Storm's office in which
he stated management was not required to meet at the convenience of the
union and that the latter had forfeited its opportunity to negotiate.
He stated that management would implement the proposed changes on
February 23, 1981.
The next morning at a monthly union-management meeting respondent
maintained its position that it was no longer under any obligation to
negotiate over the matter.
By 10:00 a.m. on February 19 and 20, management was notified that its
negotiators would not be required to attend Congressional hearings.
Thus by 10:00 a.m. on each of these days all of respondent's negotiators
would have been available to bargain with the union; however,
respondent did not notify the union of this fact and did not make itself
available for negotiations. Instead, Pierce spent several hours
documenting the fact that all possible union negotiators were
"available" at 2:00 p.m. on February 18 and were not precluded from
negotiating by "work assignments."
Pierce was not told of Chase's February 18 doctor's appointment until
February 19. Meanwhile, he noted that Chase had not signed up for
leave. In an effort to discredit Storm's contention about Chase's
unavailability, on April 14 Pierce told an FLRA investigator about
Chase's failure to sign for leave. One week later, Chase amended his
time card for February 18 to reflect his leave between 10:00 a.m. and
2:00 p.m. /2/
On February 23 respondent implemented the move of the seven
individuals in Code S. On March 13, 1981, Storm filed a charge on behalf
of the union in this case.
In his job Storm is required to "(f)ormulate Level I program RQ&S
(Reliability, Quality, and Safety) policies and requirements and to
provide authoritative interpretations of program RQ&S
policies/requirements . . . ." The scope and effect of Storm's job is
such that he is "responsible for a widely diverse range of major
functions essential to the successful design, test/verification and
operation (ground and flight) of the Spacelab. The policies,
requirements and procedures established by (Storm) have a major impact
on Spacelab mission success, safety and program developmental and
operational costs." (Resp. Exh. 2).
Conclusions of Law
As a result of respondent's reorganization of the divisions within
Code S, it became necessary to physically relocate the offices of seven
individuals so that all employees would be near the other employees in
their respective divisions. Respondent notified the union of this
proposed change on February 11, 1981. /3/ On February 17 the union
requested bargaining on impact and implementation; thereafter, when the
union said it was unavailable for a 2:00 p.m. bargaining session on
February 18 proposed by respondent, management suspected that the union
was engaging in delaying tactics and refused to engage in further
bargaining on the proposal. Management could easily have given the
union the benefit of the doubt and made itself available for bargaining
on February 19 and 20; however, it failed to do so. Thereafter,
respondent unilaterally implemented the office relocation on February
23.
Counsel for the General Counsel takes the position that respondent
violated Section 7116(a)(5) and (1) by refusing to bargain with the
union over the procedures employed by respondent in exercising its right
to relocate employees pursuant to the reorganization under 7106(b)(2)
and appropriate arrangements for adversely affected employees under
Section 7106(b)(3). During the course of this proceeding respondent has
at all times contended, inter alia, that it had no statutory obligation
to bargain because the individuals who were either relocated or
otherwise affected were neither bargaining unit employees nor adversely
affected.
With regard to respondent's first point, it is clear that the right
to bargain arises only in relation to bargaining unit employees.
Section 7103(a)(12) defines "collective bargaining" as the performance
of the mutual obligation of the representative of an agency and the
exclusive representative of "employees in an appropriate unit" in the
agency to meet at reasonable times and to consult and bargain in a
good-faith effort to reach agreement with respect to the conditions of
employment affecting such "employees." Management officials and
supervisors are specifically excluded from the definition of an
"employee." Section 7103(a)(2).
Secondly, the Authority has held that where the right to bargain
under Section 7106(b)(3) is asserted, the General Counsel has a burden
of proving that bargaining unit employees would be substantially and
adversely affected by the exercise of management rights under Section
7106. Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 5 FLRA No. 45 (1981). Since
"impact" and "implementation" bargaining both arise out of the exercise
of management rights, frequently involve the same issues, and have
traditionally been considered closely related rights, it is reasonable
to assume that the above rule should apply to rights arising under
Section 7106(b)(2) as well as Section 7106(b)(3).
Applying these principles to the instant case, the union president
testified that only two employees were adversely affected by the
relocation. /4/ One of these employees was not moved at all, but wanted
to be moved to a larger office. There is no evidence that relocating
that employee would have solved any problem arising out of the
reorganization. His working conditions were not changed in any way by
respondent's decision. The union also felt that Roland Chase was
adversely affected. Chase was scheduled to move to a larger, more
desirable office but first would be required to move, in the interim, to
a small office for several months with a different telephone extension.
Assuming arguendo that Chase was adversely affected, it is clear that
Chase was not a bargaining unit employee. He was a "management
official" under Section 7103(a)(11). In this regard it is clear that
Chase played a strong role in formulating and influencing agency policy.
As previously stated, the right to bargain arises only with respect to
the conditions of employment of unit employees.
Since the General Counsel failed to meet his burden of proving a
substantial and adverse impact on unit employees, I am unable to
conclude that the union had any right to bargain with respect to the
impact and implementation of respondent's decision to relocate any of
these employees. /5/ Thus, even though respondent's precipitous refusal
to bargain would normally have given rise to a violation of Section
7116(a)(5) and (1) it cannot be held that respondent infringed upon any
bargaining right in the instant case. Accordingly, I recommend that the
Authority adopt the following: /6/
ORDER
It is hereby ordered that the complaint in Case No. 3-CA-2102 be, and
it hereby is, dismissed.
/s/ Randolph D. Mason
RANDOLPH D. MASON
Administrative Law Judge
Dated: November 6, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Noblitt and Benson were not in the bargaining unit because they
were "supervisors" who directed and assigned work to other employees.
As more fully discussed hereinafter, Chase was also outside the unit
because he was a "management official." The record is silent as to the
status of the other four individuals who were moved. Respondent has
always contended that no unit employees were affected.
/2/ Pierce also provided the investigator with his personal copy of
his previous November 17, 1980, letter to Storm. A copy of this letter
was subsequently shown to Storm in preparation for trial by someone in
the Regional Director's office. Since the letter had originally been
written to Storm, the "disclosure" was not improper, for nothing new was
disclosed.
/3/ The notification on December 5, 1980, lacked the requisite degree
of specificity because respondent had not yet decided which employees
would have to be moved. U.S. Department of Air Force, Air Force Systems
Command, 5 FLRA No. 88 (1981).
/4/ No other evidence relating to "adversely affected" employees
(either moved or unmoved) was adduced at the hearing. The evidence
merely shows that all the other employees who were moved got identical
or more desirable offices a few doors down from their old offices.
/5/ It is also noted that Counsel for the General Counsel failed to
meet the burden of proving that even one of the individuals who was
moved or otherwise affected by the relocation was a member of the
bargaining unit. Respondent consistently maintained from the outset
that no unit members were affected. Cf., Department of the Navy, Naval
Weapons Station, Concord, California, A/SLMR No. 1020 (1978). The
General Counsel was also aware that respondent had filed a CU petition
in 3-CU-81 seeking to exclude a large number of Code S employees from
the bargaining unit.
/6/ In view of these conclusions I have found it unnecessary to reach
several other arguments advanced by respondent.