16:0831(117)CA - NASA HQ and NASA HQ Professional Association, Local 9, IFPTE -- 1984 FLRAdec CA



[ 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