18:0550(72)CA - Justice, INS, Los Angeles, CA and AFGE, INS Council, Local 505 -- 1985 FLRAdec CA
[ v18 p550 ]
The decision of the Authority follows:
18 FLRA No. 72 UNITED STATES DEPARTMENT OF JUSTICE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, LOCAL 505 Charging Party Case No. 8-CA-20180 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Judge's Decision were filed by the General Counsel. 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 recommended Order, as modified herein. The complaint alleges that the United States Department of Justice, United States Immigration and Naturalization Service, Los Angeles, California (the Respondent) violated section 7116(a)(1) and (5) of the Statute /1/ by reorganizing the Deportation and Detention Branch, Deportation Section (DS), without completing negotiations over the impact and implementation of the reorganization. The complaint also alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute (n. 1 supra) by failing to give the exclusive representative, the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505 (the Union) an opportunity to be present on February 1, 1982 at a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. /2/ On January 29, 1982, the Union presented six proposals to the Respondent which related to a previously announced physical reorganization of the DS. On February 1, 1982, the Respondent declared these proposals to be either nonnegotiable or not responsive to the proposed changes or the impact of the proposed changes, refused to meet with the Union, and unilaterally implemented the reorganization. The Authority agrees with the Judge's finding that five of the six proposals were negotiable and within the duty to bargain under section 7106(b)(2) and (3) of the Statute. The Authority concludes, in agreement with the Judge, that the Respondent therefore violated section 7116(a)(1) and (5) of the Statute by implementing the reorganization without bargaining in good faith with the Union. /3/ The Authority further agrees with the Judge's conclusion that a status quo ante remedy 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, and taking into consideration the various factors set forth in Federal Correctional Institution, 8 FLRA 604 (1984), the Authority concludes that such a remedy would not effectuate the purposes and policies of the Statute. In this regard, the Authority notes that the Respondent notified the Union of the proposed reorganization on November 3, 1981, a full three months before implementation of the reorganization. Additionally, contrary to the Judge, the Authority finds that the Respondent did not willfully avoid meeting and negotiating with the Union. Rather, the Authority concludes that the Respondent's refusal to bargain with the Union as requested concerning the reorganization was based on the good faith but erroneous belief that the Union's proposals were nonnegotiable. Moreover, the record fails to support the Judge's inference of willfulness from the "hasty implementation" of the reorganization in question. Indeed, the record indicates that the Union did not formally request bargaining on the reorganization until December 1, 1981, one month after the Respondent informed the Union of the proposed reorganization. Further, the record shows that although the Respondent had planned to implement the reorganization on November 30, 1981, implementation was delayed because the parties mutually agreed to postpone negotiations until after the holiday leave period and until a member of the Respondent's negotiating team returned from a detail. The record also shows that on January 21, 1982, the Respondent advised the Union that the reorganization would be implemented on February 1, 1982, unless the Union sought to negotiate. Under these circumstances the Authority cannot conclude that the Respondent's conduct was willful in nature. The record further establishes that a return to the status quo in the DS is not possible because additional employees have been hired since the reorganization and they could not be accommodated in the partitioned office space as it existed prior to the reorganization. Finally, the record also indicates, and the Authority finds, that a status quo ante remedy would adversely affect the efficiency and effectiveness of the Respondent's operations. In this regard, the Authority notes that the reorganization is part of an on-going effort to improve case processing in the DS by providing a greater degree of flexibility in operations. Moreover, the record indicates that, after the reorganization, the DS experienced a reduction in the number of pending cases and an increase in the number of deportations leading to an overall increase in productivity. Thus, based upon a careful balancing and consideration of the specific factors enumerated in Federal Correctional Institution, supra, the Authority finds that a status quo ante remedy is not appropriate in the circumstances of this case. Accordingly, the Authority concludes that an order requiring the Respondent to bargain in good faith upon request on the impact and implementation of the reorganization will best effectuate the purposes and policies of the Statute. The Judge also found that a meeting held on February 1, 1982, by one of the Respondent's supervisors with 11 of the DS employees, and also attended by two other DS supervisors whose desks happened to be located in the same room where the meeting took place, at which the reorganization was announced, did not constitute a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute. While noting in her Decision that several indicia of formality set forth in Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA 115 (1982) had been met, the Judge found that the informal aspects of the meeting predominated. Upon consideration of the entire record herein, the Authority adopts the Judge's conclusion and finds that the meeting was not a formal discussion within the meaning of section 7114(a)(2)(A) and that the Respondent's failure to provide the Union with an opportunity to be present was not violative of section 7116(a)(1), (5) or (8) of the Statute. /4/ Accordingly, this allegation of the complaint must be dismissed. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the United States Department of Justice, United States Immigration and Naturalization Service, Los Angeles, California, shall: (1) Cease and desist from: (a) Unilaterally instituting a reorganization of the Immigration and Naturalization Service, Los Angeles District, Deportation Section, without first affording the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505, the employees' exclusive representative, an opportunity to negotiate concerning procedures and appropriate arrangements for unit employees adversely affected by such reorganization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. (2) Take the following affirmative action: (a) Notify the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505 of any intended reorganization of the Deportation Section and, upon request, bargain in good faith concerning procedures and appropriate arrangements for unit employees adversely affected by such reorganization. (b) Post at the Los Angeles District 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 an appropriate official of the Respondent and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the allegation that the Respondent held a formal discussion without affording the Union an opportunity to be present be, and it hereby is, dismissed. Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY 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 unilaterally institute a reorganization of the Immigration and Naturalization Service, Los Angeles District, Deportation Section, without first affording the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505, our employees' exclusive representative, an opportunity to negotiate concerning procedures and appropriate arrangements for unit employees adversely affected by such reorganization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by the Statute. WE WILL notify the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505 of any intended reorganization of the Deportation Section and, upon request, bargain in good faith concerning procedures and appropriate arrangements for unit employees adversely affected by such reorganization. (Activity) 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 for the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071 and whose telephone number is: (213) 688-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, LOCAL 505, Charging Party Case Nos.: 8-CA-20180 8-CA-20245 /5/ J. Randall Rightmire, Representative for the Respondent E. A. Jones, Attorney for the General Counsel Federal Labor Relations Authority Nick Weyland, Representative for the Charging Party Before: ISABELLE R. CAPPELLO, Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq., (Supp. IV 1980), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. On July 7, 1982, the Regional Director for Region 8 of the Federal Labor Relations Authority (hereinafter referred to as the "Authority") pursuant to a charge originally filed on March 3, and amended on March 11 and May 6, by the Charging Party, the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Service Council, Local 505 (hereinafter referred to as the "Union") issued a complaint alleging that Respondent, the United States Department of Justice, United States Immigration and Naturalization Service, Los Angeles, California (hereinafter referred to also as "INS") has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 7116(a)(1), (5) and (8) of the Statute. /6/ The violative acts and conduct alleged are: (1) On or about February 1, 1982, Respondent, through its agent and supervisor, Marvin Mohrman, conducted a formal discussion with bargaining-unit employees without first affording the Union an opportunity to be present; and (2) On or about February 1, 1982, Respondent implemented a reorganization of its Deportation and Detention Branch without completing negotiations with the Union over the impact and implementation of the reorganization. A hearing was held on August 13, 1982, in Los Angeles, California. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed on September 23, by Respondent, and on September 24, by the General Counsel. Based upon the record made, /7/ my observation of the demeanor of the witnesses, and the briefs, I make the following findings, conclusions, and recommended order. Findings of Fact /8/ 1. It is admitted that INS is a bureau within the United States Department of Justice, which is an "agency" within the meaning of Section 7103(a)(3) of the Statute; that the American Federation of Government Employees ("AFGE"), is a "labor organization", within the meaning of Section 7103(4) of the Statute and is recognized as the exclusive representative of an INS service-wide unit, with certain exceptions not here relevant; that AFGE and INS have been parties to a collective bargaining agreement, the most recent of which was effective from June 13, 1979 to June 12, 1982; and that Local 505 is a constituent local of the INS Council, AFGE. 2. Respondent's Los Angeles District Office is composed of a number of branches dealing with aliens in the United States. One is the Deportation and Detention Branch. The Deportation Section ("DS") is concerned with the removal of aliens from the United States. About 32 bargaining-unit employees now work in the DS, along with two supervisors, Francis J. Hicks, and Marvin D. Mohrman. Mr. Mohrman is the Assistant District Director for the Detention and Deportation Branch. Mr. Hicks acts on behalf of Mr. Mohrman, in his absence. Mr. Hicks is also the supervisor of 12 Deportation Officers ("DOs"), a GS11 Supervisory DO, a receptionist, and a mail clerk. 3. The DS maintains dockets on aliens during the administrative processing of their cases. The DOs handle the dockets and removal of the aliens from the country after receipt of a final order from a judge. During the course of their duties, DOs interview aliens, and their lawyers, to determine whether any benefits exist that might mitigate their removal; whether an extension of time should be granted; and whether there are any mitigating or humanitarian circumstances that might allow the alien to remain in the United States for a period of time over and above that initially ordered. In a day's time, each DO schedules interviews of two or three aliens, and also handles additional, nonscheduled interviews. The DOs also make travel arrangements for aliens being removed. /9/ The dockets in DS include three categories of cases: category one involves files on aliens who have been given voluntary departure dates; category two involves files on aliens who are in the process of going before a judge; and category three involves aliens subject to final orders that they be removed from the United States. 4. The DOs are divided into two squads, each under a Supervisory Deportation Officer ("SDO"). They are SDO Cronin and SDO Jenny. 5. For four years, the DS has been located in Room B-120, a basement office which is approximately 72 by 70 feet, with a ceiling height of about 20 feet. These quarters have been designated as "temporary" by GSA, which will not make any renovations. Acoustics are poor. Prior to February 1, 1982, each DO occupied a cubicle, along with a clerk or aide. Each cubicle was separated from the others by a partition. The partitions are five by five feet in size, are movable, and consist of a metal frame with some sort of a composition center and cloth exterior. Some of the partitions were in poor repair. Each cubicle was furnished with a telephone, desks, and a file cabinet. Supervisors share the space in Room B-120. 6(a). On November 3, 1981, Respondent sent a letter to the Union President, Nick Weyland, to inform him of a proposed reorganization of the DS, to be made effective on November 15, 1981. The letter was signed by Michael H. Landon, Jr., District Director, and stated as follows: Please be advised of the following proposed changes in compliance with Article 3, Section G of our contract. Effective November 15, 1981, we will reorganize the Deportation and Detention Branch at the Los Angeles District Office. This will involve a change in both the physical plan of Room B-120 and a procedural departure from the one-officer/one-clerk concept(.) Input for this proposal has been received from concerned employees, supervisors, District and Regional management. The proposal is as follows: The present partitions in B-120 will be removed and the divisions in the dockets by alphabet will be eliminated. Also eliminated will be the two squads (A & B) that presently exist. The physical layout of B-120 will have the docket clerks and aides in the center of the room with the officers' desks located around the perimeter. The Supervisory Deportation Officers' desks will be located so as to be accessible from the reception area while still being able to assist the officers, aides, and clerks. Phones will be located on these clerks' desks for the record searching and on Supervisory Deportation Officers' desks for incoming calls. The main goal of this realignment is to provide a greater degree of flexibility to enable Deportation to perform its function while frequently at 50% or 30% strength. The workload will no longer be determined arbitrarily by alphabetical "accident", but rather by the Supervisory Deportation Officer. The frequent and numerous detailing of officers away from their docket will no longer have the effect of backlogging any particular group of people. The plan places the responsibility for the performance of the section on the Supervisory Deportation Officer and enables them to effectively enhance the participation of all officers in the section. Having removed the inequities inherent in the alphabetical division of the docket, the efficiency and effectiveness of the section will increase markedly. See GS2. 6(b). Mr. Mohrman made the basic decision to reorganize. He testified as to why the proposals were made: (1) The elimination of the partitions and cubicles for DOs and clericals was to create more space for additional personnel to fill the 9 or 10 vacancies in the DS, to allow better observation of the DOs and the clericals by the supervisors, and to increase efficiency in that the "amount of details, absences, leaves, et cetera," of the DOs, resulted in the clericals "not work(ing) to capacity" and "conversely" if the clerk was not there, "the Officer didn't have someone available to do his clerical work" (TR122-123). (2) The elimination of the "one-officer one-clerk concept" (GC2.1) was to increase efficiency. Under that concept, when one or the other was absent, work was not getting done. See also finding 6(b)(1), above. (3) The elimination of the formal organizational identity of the two squads was a housekeeping detail. Having such separate entities, on paper, required permission of the Regional Office to move personnel from one squad to another. There are still two supervisors and two squads, but employees can now be moved from one squad to the other without going to the Regional Office for approval. (4) The elimination of the assignment of cases to individual DOs, by letters of the alphabet, was to solve the problem of dockets being worked in a timely fashion, and workload being more equitably distributed. (5) The elimination of the telephone for each DO was tied to an order of the Regional Office to eliminate ten telephones in the District Office. Mr. Mohrman decided that all ten would be taken from the DS by reducing the number assigned to each DS squad from nine to four. Mr. Mohrman expressed the view that telephones for each DO were "more of a distraction" than "a necessary tool" (TR126), and that the clericals had more need for them. (6) The moving of the desks was to achieve "the most efficient set up, with the space that we had" (TR126). The move did not block any emergency exits. 7. The procedure followed by the parties, when a change is proposed by Respondent, is found in Article 3G of the contract, which provides: The parties recognize that from time to time during the life of the agreement, the need will arise for management to change existing Service regulations covering personnel policies, practices, and/or working conditions not covered by this agreement. The Service shall present the changes it wishes to make to existing rules, regulations, and existing practices to the Union in writing. The Service recognizes that this obligation exists at the national, Regional, and District level when such changes are to be made. The Union will present its views (which must be responsive to either the proposed change or the impact of the proposed change) within a set time after receiving notice from management of the proposed change. The time will be: 22 Work Days at National Level 10 Work Days at Regional Level 10 Work Days at District Level If disagreement exists, either the Service or the Union may serve notice on the other of its interest to enter into formal negotiations on the subject matter. The Union will request negotiations within 5 work days of receipt of the Service response. Such negotiations must begin within 5 work days of receipt by the other party of a request to negotiate. Reasonable extensions of these time limits may be granted on request. Nothing in the foregoing shall require either party to negotiate on any matter it is not obligated to negotiate under applicable law. See R2.4. 8. On November 3, 1981, Mr. Weyland sent a letter to District Director Landon which was intended to demonstrate the Union's unhappiness with the proposal. See GC3. The Union expressed the view that the removal of the partitions would elevate the noise level in the area, increase distraction, and remove the "solitude beneficial in writing denials and conducting interviews" (GC3). The Union expressed the belief that the removal of the phones from the desks of the DOs would add to their problems. The Union objected that the abolition of the alphabetical assignment of cases would lessen the direct responsibility of the DOs and the clerks and aides. The November 3 letter was not a request to bargain. 9. On November 25, 1981, the District Director responded to the November 3 letter from the Union. He dismissed the Union's stated concerns as "more of form than substance" (GC4.1). He stated that partitions did "not block sound, but simply absorb some of it," that centralizing the phones "should decrease the noise level and allow the officers more quiet and freedom from the present distraction of having to answer the phone for everything from general information to file searching," and that abolition of "dockets by alphabets" would lead to better control of the whole docket (GC4.1). He informed the Union that implementation would occur on November 30. 10. Mr. Weyland responded on December 1, 1981. He noted that the November 25 letter from the District Director was not received until 2:30 p.m. on November 30. He formally requested negotiation over the proposed changes, and that the changes be held up until all negotiation over the proposed changes, and that the changes be held up until all negotiations were complete. He expressly "reserve(d) the right to alter or amend at any time the proposals offered in formal negotiations prior to any implementation taking place" (GC5.1). 11. On December 16, 1981, Mr. Weyland received a call from Deputy District Director Sewell, who indicated that management wanted to hold off negotiating until after the Christmas leave period and until Mr. Hicks returned from a detail and could participate in negotiations. Mr. Weyland and Mr. Sewell agreed to hold the matter in abeyance until such time as "everybody was back on board" (TR22). Mr. Hicks was expected back in four to six weeks. /10/ 12. The next contact the Union had with management on the proposed changes was a January 21, 1982, letter from Mr. Sewell. It was received by the Union on January 25, 1982. It indicated management's belief that the Union had unduly delayed requesting negotiations. See GC6. The letter stated that the reorganization would be implemented February 1, 1982, absent any response from the Union. Mr. Mohrman was named as management's chief negotiator. 13. Mr. Weyland wrote a January 27, 1982, letter, in response to the January 21 letter from Mr. Sewell. In the letter, Mr. Weyland noted that the parties had agreed to a delay due to the Hicks' detail, and that Mr. Hicks had just returned during the latter part of the previous week. The Union requested to negotiate with Respondent at 9:00 a.m. on February 1. The Union also requested diagrams of the current and proposed layouts in the DS. See GS7. 14. On January 28, 1982, Mr. Mohrman replied to the Union letter of January 27. He supplied a copy of the proposed layout, but not the current one. He "requested" that the Union, pursuant to Section 3(g) of the collective bargaining agreement, supply management with "the exact points" the Union wanted to negotiate at least twenty-four hours in advance of the negotiations (TR 150 and GC8). The letter indicated that it was Respondent's position that no other points would be negotiated. 15(a). Mr. Weyland responded to Mr. Mohrman, by letter dated January 29, 1982. See GC10. He noted that there was no provision for the 24-hour limit, and that the Union had still not received a copy of the present layout in the DS. He repeated that the Union reserved the right to amend or change its proposals throughout the bargaining period. See GC10. The letter also contained the following six "points of negotiation:" (1) That management provide each Deportation Officer with a partitioned work area complete with desk and telephone. (2) That management provide each clerk or aide with the same. (3) That these aforementioned work areas have at least three feet of space between each employee. (4) That management maintain clear lines of supervision by retaining existing squads to insure proper appraising of employees(.) (5) That management agrees to detail deportation employees in a fair and equitable manner. (6) That management remove all existing health and safety hazards and violations, such as hanging wires and additionally retain existing emergency exits. GC10.1-2. 15(b). At the hearing, Mr. Weyland gave some explanation of the responsiveness of the points of negotiation to the proposed reorganization. (1) He testified that the purpose of the first and second points was to insure better functioning of the DOs and clericals or aides by providing them with "some solitude," "in order to better perform their work" (TR43). He also mentioned the noise level. (2) As to the third point, he testified that the Union wanted to make sure that there was enough room for employees to perform their tasks, and that "desks were not pushed together so the ability to actually move around the area was not curtailed" (TR44). (3) As to the fourth point, he testified that the proposal to abolish existing squads would make "unclear where the supervisor was for these employees" (TR45). (4) The fifth point addressed the proposals' "main goal," to alleviate the inflexibility of workloads being assigned by "alphabetical 'accident'," whereby the "frequent and numerous detailing of officers away from their docket will no longer have the effect of backlogging any particular group of people" (GC2.1). The Union had grieved over detailing in the DS; and it "wanted to see if management wouldn't try to give a little better idea of what their system was down there," in the hope that "(m)aybe there was a procedure that we could work out to help . . . this detailing problem" (TR47). (5) As to the sixth point, he explained that the diagram furnished by Respondent showed that existing exits were being closed off, and that there were problems with wiring of the phones. /11/ 15(c). Mr. Weyland also explained the significance of the statement in the letter that the Union reserved the right to amend or change the points of negotiation. This was inserted, as a reminder of the same statement in his earlier December 1 letter, as a reminder of the same statement in his earlier December 1 letter, and because the Union "didn't want to be confined to (the six points), til (it) got a better idea of what all they were planning to do, and in this reorganization, we didn't want to be stuck with just those points, and not be able to change any one of these, or to alter any of them that might need additional work" (TR48). 16. Late on Friday, January 29, 1982, around 3:30 or 4:00 p.m., Mr. Mohrman told one of his supervisors, SDO Cronin, that the reorganization was going to be implemented the following Monday, February 1. Mr. Mohrman advised Mr. Cronin to keep the matter confidential. DO Martinez happened to overhear this conversation. /12/ 17. The Union was scheduled to meet with Respondent for negotiations on the morning of February 1, 1982. Around 8:30 a.m. that morning, Mr. Weyland received a phone call from Mr. Hicks, who said Mr. Mohrman would not meet as scheduled due to another matter. Mr. Hicks said that Mr. Mohrman would get back with the Union concerning negotiations. The bargaining session did not take place. Around 10:00 a.m., Mr. Weyland received a letter from Mr. Mohrman declaring all of the Union proposals either non-negotiable or non-responsive to the proposed changes. The letter stated that the reorganization would be implemented immediately. See GC11. More specifically, the February 1 letter from Mr. Mohrman said that Respondent chose not to bargain on the Union's first four points of negotiation on the ground that they were outside its obligation to bargain. /13/ The letter stated that the fifth and sixth points raised by the Union were not responsive to the proposed change, and would not be bargained. 18. Immediately upon receipt of the February 1, 1982, letter, Mr. Weyland requested official time to prepare an answer. While he was preparing the answer at least one DO contacted him and informed him that the reorganization was under way. Mr. Weyland took his answer down to the DS and personally handed it to Mr. Mohrman. The reorganization was underway at the time Mr. Weyland gave Mr. Mohrman the letter containing the Union's answer. Mr. Weyland told Mr. Mohrman that he expected an appropriate response, and asked if any employees were being required to move furniture. Mr. Mohrman said that volunteers had been requested. The February 1 letter from Mr. Weyland specifically addressed Respondent's claims that the Union negotiation points were non-negotiable. See GC12. The letter also indicated the Union's desire to discuss the impact and implementation of any new work-assignment procedure. Finally, the letter demanded that implementation be delayed pending agreement between the parties. 19. Mr. Mohrman admitted that if he had sat down with the Union, the Union might have proposed further matters for bargaining. Mr. Mohrman did not give the Union an opportunity for such "face-to-face" bargaining (TR144-145). 20(a). Earlier on February 1, 1982, sometime between 9:00 and 10:15 a.m., "all" the Deportation Branch employees (DOs, clericals and supervisors) were "called" into the office of Mr. Mohrman (TR63). Mr. Mohrman, Mr. Hicks and SDO Cronin were present. Mr. Mohrman announced that the reorganization was going to take place that morning. The proposals for change had already been discussed with the employees. See TR81, 86, 94, 98 and GC2. /14/ 20(b). The meeting was short. Rough estimates of 5, 10, 15 and 20 minutes were given. See TR65, 80, 86, 94, 115, and 131. There was no evidence of a formal agenda, or that notes or minutes were taken. No prior notice of the meeting was given to the Union or to the employees. The meeting ended with a question by Mr. Mohrman as to whether "there were any volunteers to move the desks" (TR65 and see also TR85). Apparently some did volunteer. No other questions were asked at the meeting. Mr. Hicks and SDO Cronin were appointed to accomplish the move. 20(c). Employees then proceeded with the move. During the course of the move, DO Nunez asked Mr. Mohrman: Why do we have to move in such a hurry. Why can't we go ahead and wait until tomorrow, and take things off our partitions and everything to be moving. Mr. Mohrman replied: Well if we wouldn't have to answer the union so quickly, we wouldn't have to be moving this fast. We could wait. /15/ 20(d). DO Martinez asked Mr. Mohrman if she could sit at a certain desk in the southwest corner of the room. Mr. Mohrman walked away, so DO Martinez started to move her things over to that location. Mr. Mohrman returned and advised her that she would be sitting in the center of the room, because her SDO wanted her located there. DO Martinez's SDO was absent that day. DO Martinez moved to the center location, as told to do. 21. The February 1 reorganization of the DS resulted in many changes and problems. 21(a). The DOs were moved out of their individually partitioned work areas to unpartitioned desks located around the perimeter of the office. Clerks and aides were moved from their locations, within the partitioned DO work areas, to unpartitioned desks located in the smaller area in the middle of the office. Now, partitions separate only the two squads. 21(b). The DOs lost their phones and filing cabinets, where files being worked were kept overnight. The loss of the phones has caused hardship for some DOs. They must take calls at other desks and seek out a telephone when they have to make a call for travel arrangements and desk investigations. Furthermore, calls are not being screened by the clericals, as management intended. 21(c). With regard to case assignments, for about four or six weeks after the reorganization, the DOs did not have an assigned docket, whereas, before February 1, each DO had been assigned to specific alphabetical dockets and the full range of case categories. Eventually DOs were reassigned an alphabetical portion of the docket, but for category three cases only. As to the category one and two cases, they are now handled on a day-to-day basis. 21(d). The typing for DOs is a problem now because the clericals in the pool do not always get the typing done in a timely manner. Prior to the change, DOs could be certain that their individually assigned clerks or aides would get the work done. 21(e). Files are being misplaced since the DOs no longer have their own filing cabinets. Lack of control over their own files is also causing difficulties. 21(f). The clerks and aides, in addition to being relocated in the center of the office, became a pool with various clerical functions rotated among them. Some new duties were given to them as well. 21(g). The loss of partitions has affected the interviewing duty of DOs. The interview rooms established in each half of the office are insufficient, when there are several DOs in need of interview space. There are now many distractions when interviews have to be conducted at an unpartitioned DO desk. 21(h). The work area of the DOs is noisier since they lost the partitions between their desks, as it is easier to engage in conversations. /16/ 21(i). DOs also have less space than before the reorganization. /17/ 22. After he gave the February 1, 1982, letter to Mr. Mohrman in the DS, Mr. Weyland and Union official Tim Kay scheduled a meeting with District Director Landon for February 2. At the meeting, the Union advised Mr. Landon of its belief that an unfair labor practice had been committed in the reorganization of the DS, and asked him to intervene. Upon being further informed that no bargaining had taken place, Mr. Landon said he would look into the matter. The following day, February 3, Mr. Kay and Mr. Weyland were in Mr. Sewell's office on another matter. Mr. Sewell informed them that Mr. Mohrman's February 2, letter was the final management response on the reorganization. The letter basically indicated that Respondent had implemented the reorganization because the Union's proposals were "either non-negotiable or not responsive to the proposed changes" (GC13). 23. On February 5, 1982, Mr. Weyland wrote to District Director Landon asking Mr.Landon to indicate, in writing, his approval of Mr. Mohrman's conduct. On the same date Mr. Weyland wrote to Mr. Mohrman, and outlined the events which led to the alleged unilateral reorganization of February 1, 1982, and declined Mr. Mohrman's February 2 invitation for post-implementation discussion. Mr. Weyland did not receive a response to either letter; and the instant unfair labor practice proceeding was initiated. Additional facts relative to the status quo ante order being sought. 24. The number of telephones is still the same in the DS. Only their location in the room has been changed. 25. The individual filing cabinets of the DOs have been moved to the center of the room, and still are available. 26. There are 94,000 to 95,000 docket cards. It took only two days to consolidate them because they were already in alphabetical order. /18/ 27. The movement of the furniture on February 1, 1982, took from two to three hours. 28. Most of the partitions have been "disposed, were hauled off to the dock" (TR138). 29. Several employees have rearranged their allotted space and furniture since the February 1 reorganization. 30. One, perhaps two DOs, and one clerk have been added to the number of employees in the DS, since the reorganization. 31. The DS has become more productive since the move. Whether this is because of the reorganization, or the hiring of more personnel, cannot be determined on this record. 32. There was only one unoccupied desk in the DS, at the time of the reorganization. 33. DO Martinez prefers the office layout as it was before the reorganization, because there were not so "many distractions, conversations going on, or listening to other interviews" (TR158). Discussion and Conclusions A. Respondent unilaterally implemented the February 1, 1982, reorganization of the Deportation Section without completing bargaining with the Union and with substantial adverse impact upon employees, thereby violating 5 U.S.C. 7116(a)(1) and (5). It is well settled, in the field of Federal-sector collective bargaining, that an agency has a duty to bargain over the impact and implementation of a reorganization which has a substantial impact on bargaining-unit employees. See e.g., Department of Defense, Department of the Navy, Consolidated Civilian Personnel Office, 1 FLRA 717 (1979). The record here establishes that an extensive reorganization was implemented by Respondent in the DS, on February 1, 1982. The reorganization entailed relocation of employees' desks and the loss of partitions, which substantially impacted on unit employees, by compounding the loss of privacy and increase of distractions, which are factors inherent in any open-space office layout. The reorganization also entailed the loss of telephones at the desks of DOs, a matter of substantial adverse impact, in that employees must now search for an empty desk and telephone in order to perform various aspects of their job. The performance of clerical duties was changed from a one-on-one arrangement to a rotating pool, a matter of undeniable impact on both clericals and DOs, in that supervisory lines were affected and DOs lost the ability to control their typing needs. The method of assigning cases to DOs was altered, with a substantial impact on unit employees, in that the change affected their workload. Clericals also assumed some new duties. Respondent was obligated to notify the Union of the proposed reorganization. It met this obligation with its letter of November 3, 1981. Thereafter, the parties, pursuant to procedures outlined in their negotiated agreement, exchanged correspondence which resulted in the Union requesting, on December 1, the opportunity to bargain over the proposed changes. The parties mutually agreed to hold off on bargaining until the return of one of Respondent's negotiators, Mr. Hicks, from a detail. On January 21, 1982, the exchange of correspondence was rejoined, with the Respondent unfairly accusing the Union of delay. The Union responded by requesting bargaining on February 1, 1982, the day the Respondent had set for implementation. Respondent then requested, on January 28, specific, written proposals in advance of the negotiations, and stated that nothing else would be negotiated. This declaration of Respondent constituted a proposal on ground rules for the negotiations, which the Union could accept or reject. On January 29, the Union did supply written proposals in advance; but it rejected Respondent's proposal to the extent that it would have limited bargaining to proposals forwarded in advance of actual bargaining. Thus the stage was set for a negotiation session on February 1, 1982, at which the parties would discuss the "points of negotiation" submitted by the Union and at which the Union could make, if it chose to, additional proposals. However, Respondent's subsequent actions precluded such a meeting and undermined any belief that the Respondent had been acting in good faith. 1. Respondent's failure to meet with the Union violated U.S.C. Sec. 7116(a)(1) and (5). As early as January 29, 1982, Respondent apparently had decided to forego meeting with the Union. See finding 16, above. And on the morning of February 1, Respondent failed to keep its appointment to meet with the Union. Rather, it first put off the Union by saying that its chief negotiator had another pressing matter to attend. Then it gave the Union a letter in which it unilaterally determined there was no need to meet with the Union. See finding 17, above. Then it hurried to implement the change before the Union could take any further action. See finding 20(c) above. This conduct constituted an egregious violation of the duty to bargain in good faith. Respondent's actions on February 1 violated Sections 7116(a)(1) and (5) in several ways. First, Respondent failed to actually meet and bargain with the Union concerning the proposed changes. The bargaining duty established by the Statute includes the obligation to actually meet and discuss negotiable matters unless the meeting is clearly waived, which was not the case here. See 5 U.S.C. 7114(b)(3), quoted in footnote 6, above and also the statutory definition of "collective bargaining", which includes "the mutual obligation . . . to meet at reasonable times and to consult and bargain in a good faith effort to reach agreement . . . ." (5 U.S.C. 7103(a)(12)). See also 5 U.S.C. 7114(a)(4) which refers to the parties "meet(ing)" to negotiate in good faith. Here, the Union repeatedly advised Respondent that it reserved the right to alter or amend proposals any time prior to implementation. Thus, Respondent could not assume that it had received all of the Union proposals, and that no other might be forthcoming, if the parties actually sat down across a table from one another. Indeed, Respondent's chief negotiator admitted that the Union could have made further proposals if a meeting had taken place. See finding 19, above. The record thus reveals that Respondent, despite its awareness that it had not seen all potential Union proposals and had never even met with the Union, went ahead with the implementation. Respondent's abandonment of negotiations and its implementation of the reorganization prior to any actual meeting between parties violates Sections 7116(a)(1) and (5) of the Statute. See Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA No. 11 (1982). 2. Respondent's refusal to negotiate the Union's "points of negotiation" also violated 5 U.S.C. 7116(a)(1) and (5). Respondent argues that each point was "either non-negotiable or not responsive to the proposed changes or the impact of the proposed changes" (RBr6) and relies upon the Authority's decision in Library of Congress, 7 FLRA No. 89, 7 FLRA 578 (1/7/82) and 5 U.S.C. 7106. Section 7106 deals with "Management rights;" and subpart (b)(1) thereof provides that "the technology, methods, and means of performing work" are bargainable subjects only "at the election of the agency." The Library of Congress case dealt with the negotiability of such matters as "each employee work station in open areas (being) separated by padded, nonflammable partitions," "office size," "file cabinet space," and offices with "a door," and "floor to ceiling partitions." See 7 FLRA at 581 and 586. The Authority ruled that such matters were not concerned with "the technology of performing work," within the meaning of Section 7106(b)(1) and were, therefore, within the duty to bargain (7 FLRA at 582 and 587). The Authority found that the statutory term "'technology . . . of performing work' means the authority of the Agency to determine the technical method that will be used in accomplishing or furthering the performance of the Agency's work" (7 FLRA at 583). And the Authority ruled that the Library of Congress did not establish that the proposed facilities had a "technological relationship to accomplishing or furthering the work" (ibid). As to the above-listed proposals, the Authority concluded that all were "merely incidental to the performance of the Agency's work and would be principally related to matters affecting the working conditions of employees" (7 FLRA at 583, 584, and 587). The General Counsel also relies on Library of Congress, and on a more recent gloss on the law therein established, namely the Authority's decision in Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73, 9 FLRA 648 (7/1/82), hereinafter referred to as the "IRS" case. See GCBr15-19. In the IRS case, the agency notified the union that it intended "to modify the existing office space in order to accommodate (12) additional employees" (9 FLRA at 648). The union, in IRS, "requested negotiations on the substance as well as the impact and implementation of the proposed changes in the office space layout" (abid). The union proposals would require Respondent "to construct private offices for appeals officers and to rectify existing ventilation problems" (9 FLRA at 649). The agency's response was that the proposals were outside its duty to bargain because the private-office proposal conflicted with its decision "to continue to utilize the 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" (ibid). As to the proposal concerning ventilation problems, the agency contended that "the matter was outside its control because (GSA) had the responsibility to correct such problems" (ibid). The agency, in IRS, implemented its announced changes in office space design without negotiating on the proposals submitted by the union. In IRS, the Authority ruled that an agency relying upon Section 7106(b)(1) shouldered a two-pronged burden of proof, as follows: . . . 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). (9 FLRA at 650). Because the agency, in IRS, proved no "technological relationship," the Authority found that "the establishment of private offices, as required by the proposals, would be incidental to the performance of the Respondent's work" and, thus, "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" (7 FLRA at 651). As to the proposal on correction of the office's ventilation problems, in IRS, the Authority concluded that "the subject matter clearly involve(d) a condition of employment" and that "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 problem" (9 FLRA at 651). a. Here, the Union's first two proposals are: "That management provide each Deportation Officer (and each clerk or aide) with a partitioned work area complete with desk and telephone." See findings 15(a)(1) and (2), above. As to these proposals, Respondent focuses only on the partitions, and notes that: "Management provided testimony on how the pre-reorganization office layout hindered the methods and means by which work was assigned and accomplished" (RBr6). In particular, Respondent points to the testimony concerning "(n)eed for additional space; increased efficiency; distribution of work, and observation of employees by the supervisors" (TR122 and 123, lines 13-14) to show that "Management had legitimate reasons for removal of the partitions" (RBr6). From its argument, it appears that Respondent does not claim that these proposals affect the "technology" of performing work. Under the Library of Congress and IRS rationale, this claim would have been rejected, if made, for both before and after the reorganization, Respondent has provided desks, telephones and partitions for the use of the unit employees here involved. The dispute is over where they should all be placed in the room where the employees work. Placement, here, is incidental to the performance of the employees' work and principally related to matters affecting the working conditions of the employees. Thus, it seems that the issue raised by Respondent relates solely to the Union proposal as to the placement of the partitions, and whether it interferes with management's right to control the "methods and means" by which it assigns and accomplishes its work, as provided in Section 7106(b)(1). Respondent relies on its showing that elimination of the partitions from around the work area of the unit employees allowed supervisors a line-of-sight observation of the employees, and the ability to tell who was at work and who could handle more work, thereby increasing efficiency. However, the testimony also established that the Union proposal could have allowed for a line-of-sight observation and, therefore, was not contrary to Respondent's purpose in eliminating the partitions around the work area. See footnote 9, above. Thus, the evidence does not support Respondent's position. Respondent also points to evidence that the elimination of the partitions around the immediate work area of the unit employees increased space. However, the Library of Congress case stands for the proposition that "office size" is bargainable. Thus, this evidence does not favor Respondent's position. The Union's first two proposals, set forth in findings 15(a)(1) and (2), above, are negotiable. b. The next Union proposal is: "That these aforementioned work areas have at least three feet of space between each employee." See finding 15(a)(3) above. Respondent's non-negotiability argument, as to this point, relies on evidence "that the Section remained in the same total square footage and the assignment of additional personnel to the Section would reduce the employee space" (RBr6-7). Again, the ruling in the Library of Congress case holds that "office size" is negotiable. Thus, so is the Union's third proposal, as set forth in finding 15(a)(3), above. c. The next Union proposal is: "That Management maintain clear lines of supervision by retaining existing squads to insure proper appraising of employees." See finding 15(a)(4), above. The General Counsel disavows any intent to contend that the proposal to retain existing squads falls within Respondent's duty to bargain. See GCBr17. However, the General Counsel argues that proposals on the impact of the decision, such as the clarification of lines of supervision, is bargainable. The General Counsel is correct. But the proposal, as worded, requires that Respondent retain existing squads. Thus, as worded, it would infringe upon a management right within the meaning of Section 7106(b)(1), and be non-negotiable. d. The next Union proposal is: "That Management agrees to detail Deportation employees in a fair and equitable manner." See finding 15(a)(5), above. Respondent's refusal to bargain on this point is based on its position that the point is "not responsive to our proposed change" (RBr8). In fact, the record shows that the reorganization proposed by Respondent was, in part, intended to insure that the "frequent and numerous detailing of officers away from their docket will no longer have the effect of backlogging any particular group of people." See finding 6(a), above. The Union's proposal was responsive to that aspect of the reorganization. It was apparently the Union's belief that a fair and equitable method of detailing employees would avoid some of the problems that generated the need for a reorganization. A proposal to detail "is a fair and equitable manner" would "simply (have) established a general, nonquantitative requirement" by which detailing "may subsequently be evaluated in a grievance" and was negotiable, under the rationale of the Authority expressed in American Federation of Government Employees, AFL-CIO, Local 3804, 7 FLRA No. 34, 7 FLRA 217 at 224 (11/19/81), and cases cited therein, when dealing with performance standards being so applied. e. The last Union proposal is: "That Management remove all existing health and safety hazards and violations, such as hanging wires and additionally retain existing emergency exits." See finding 15(a)(6), above. Respondent's refusal to negotiate on this point is on the ground that it "does not relate to Management's proposals" (RBr8). Management's proposal was to "change . . . the physical layout of Room B-120." See finding 6(a), above. Respondent points only to evidence that the wiring situation had existed for sometime and that existing emergency exits were not changed by the reorganization. Such evidence does not support Respondent's position that the Union's proposal was unrelated to its proposal. A physical change was being proposed; and the Union proposal was related to the change-- namely, in the process of the change, remove existing health and safety hazards and violations-- an appropriate subject for bargaining concerning conditions of employment. The fact that the collective bargaining agreement sets up a labor-management committee to deal with safety and health matters does not constitute a clear waiver of the right to bargain over such matters. By its failure to bargain over negotiable proposals, Respondent violated Sections 7116(a)(1) and (5) of the Statute. B. The February 1, 1982 meeting was not a "formal discussion" within the meaning of 5 U.S.C. 7114(a)(2)(A). Not every meeting held with unit employees, without notice to their union representatives, at which a change in personal policy or practices or other general working conditions is announced, constitutes a "formal discussion," as the General Counsel appears to argue. See GCBr19-20 and compare Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65 (1980), in which no "formal discussion" was held to have occurred when a supervisor notified employees individually of a decision to close a snack bar and of leave options available during such closure, even though it was also held that the agency was obligated to bargain with the union over the impact and implementation of the decision. See also Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA No. 9, 9 FLRA 48 (1982) in which no "formal discussion" was held to have occurred where a brief discussion took place at the desk of an employee during which the branch manager informed the employee of a change in practice whereby part-time employees could work additional hours. In these two cases, as here, the purpose of the meetings was to announce a change already decided upon by management. Also to be considered is the "formal" aspect of the meetings, as recently articulated in two companion stipulated cases, Department of Health and Human Services, Social Security Administration, Bureau of Field Operations, San Francisco, California, 10 FLRA No. 24 and No. 25, 10 FLRA 115 and 120 (9/24/82), hereianfter referred to as the SSA cases. Weighed along with the purpose of the "discussion," are the following factors having to do with the "formal(ity)" of the discussion: (1) whether the individual who held the discussions is merely a first-level supervisor or is higher in the management hierarchy; (2) whether any other management representatives attended; (3) where the individual meetings took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere); (4) how long the meetings lasted; (5) how the meetings were called (i.e., with formal advance notice or more spontaneously and informally); (6) whether a formal agenda was established for the meetings; (7) whether each employee's attendance was mandatory; (and) (8) the manner in which the meetings were conducted (i.e., whether the employee's identity and comments were noted or transcribed). See SSA, 10 FLRA at 118. Certain aspects of the February 1, 1982 meeting here at issue were "formal," under these criteria. The meeting was conducted by a second or third-line supervisor, in whose office the meeting was held. In attendance were two lower-level supervisors. While there was no formal advance notice, it appears that none was given in order to avoid alerting the Union. Attendance was mandatory. And the identity of employees was easily noted. The informal aspects of the meeting, however, predominate. The supervisors were there because they were housed in the same room and were to be physically involved in the move, which followed immediately after the close of the meeting. No give-and-take discussion took place, beyond the simple asking for volunteers to help with the move, and responding to that one question. The meeting was short and concerned only the move. No formal agenda was promulgated. A balancing of all these considerations leads to the conclusion that the February 1, 1982, meeting does not quality as a Section 7114(a)(2)(A) "formal discussion." The preponderance of the evidence does not show a violation of the Statute as alleged in counts 12, 13, 14 and 15 of the complaint, insofar as they rely upon facts alleged in count 9. C. The status quo ante remedy is denied. The General Counsel seeks a "rescission of the reorganization" (GCBr20) and notes that status quo ante remedies may be issued in certain refusal-to-bargain cases even when the Respondent's decision itself is not negotiable. See Federal Correctional Institute, 8 FLRA No. 111, 8 FLRA 604 (5/13/82). In this case, the Authority noted that the appropriateness of such a remedy depends on the circumstances of the particular case, and a careful balancing of the following factors: (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfullness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. 8 FLRA at 606. Turning to the circumstances in this case, the record discloses that Respondent initially complied with its obligation to notify the Union of the proposed reorganization, and that the Union made a timely request for bargaining. It is at this point, however, that Respondent's actions strongly suggest that its initial conduct in notifying the Union of the changes was perfunctory, for upon receipt of the Union's proposals, Respondent hurriedly declared them non-negotiable or non-responsive and proceeded-- without even the courtesy of meeting with the Union-- to implement the reorganization. The comments by Mr. Mohrman-- both the ones overheard on January 29 and the ones during the reorganization-- and the hasty implementation before the ink on Respondent's refusal to bargain was dry, support the conclusion that Respondent sought means to avoid bargaining in good faith with the Union. Respondent's conduct was high-handed and willful. And the impact of the reorganization was considerable and extensive, affecting all employees in the DS. The General Counsel believes that "(o)f greatest moment to them was the loss of partitioned workspace" (GCBr22). Respondent argues that the status quo ante remedy is inappropriate, because of the effect it would have on the "efficiency and effectiveness of section operations" (RBr11). It is questionable whether a high degree of disruption or impairment would result. The record indicates that the movement of furniture only consumed several hours. The rearrangement of the docket cards was accomplished in two days. The reason for the increased production realized in the DS since the reorganization may have been the result of added personnel, rather than the reorganization itself. Several problems are presented by a status quo order in this case, however. Most of the partitions have apparently vanished. More employees would have to be accommodated than before the reorganization. Thus, a complete restoration of the status quo in Room B-120 would not appear to be possible. But the real problem I find with an order to restore the status quo is that it would probably impact most severely upon the innocent bargaining-unit employees themselves. They would be subjected to the inconvenience and disruption of a move which might be only temporary, depending upon the ultimate outcome of the bargaining process. While such an order would vindicate the Union officers more fully, and be fully justified based upon the behavior of Respondent's agents in this matter, it will be denied, solely on the ground that the bargaining-unit employees, not Respondent, would most severely suffer its impact. While this factor is not one listed by the Authority for consideration in Federal Correctional Institute, it appears to be an appropriate one in the circumstances of this case. Ultimate Findings and Recommended Order 1. Respondent has violated and is violating 5 U.S.C. 7116(a)(1) and (5) by failing to complete bargaining over its February 1, 1982, reorganization of its Deportation Section and by rejecting Union proposals as non-negotiable and non-responsive. 2. Count 9, and those portions of counts 12, 13, 14 and 15 of the complaint which rely upon allegations in count 9 are dismissed for failure of proof. Accordingly, and pursuant to Section 5 CFR 2423.29 and 5 U.S.C. 7118 the Authority hereby orders that the United States Department of Justice, United States Immigration and Naturalization Service, Los Angeles, California, shall: (1) Cease and desist from: (a) Unilaterally instituting a reorganization of the INS, Los Angeles District, Deportation Section, without first affording the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Council, Local 505, herein called the "Union," adequate notice and a reasonable opportunity to negotiate the impact and implementation of such reorganization, including the physical arrangement of work areas. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute. (2) Take the following affirmative action: (a) Upon request of the Union, bargain immediately over the impact and implementation of the reorganization of the Deportation Section, which was made effective on February 1, 1982, to the full extent consonant with law and regulation and without regard to the fact that the reorganization has already been implemented. (b) Post at the INS, Los Angeles District Office copies of the notice attached hereto as Appendix B, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an appropriate official of the Respondent and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Pursuant to 5 CFR 2423.30 notify the Regional Director, Region 8, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Isabelle R. Cappello Administrative Law Judge Date: December 10, 1982 Washington, D.C. APPENDIX B NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally institute a reorganization of INS, Los Angeles District, Deportation Section without first affording the American Federation of Government Employees, AFL-CIO, Immigration and Naturalization Council, Local 505, adequate notice and a reasonable opportunity to negotiate the impact and implementation of such reorganization, including the physical arrangement of work areas. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request of Local 505, bargain immediately over the impact and implementation of the February 1, 1982 reorganization in the Deportation Section, to the full extent consonant with law and regulation, and without regard to the fact that the reorganization has already been implemented. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice, or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region 8, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California, 90071, and whose telephone number is: (213) 688-3805. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a) of the Statute provides in pertinent part: Sec. 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; * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. /2/ Section 7114(a)(2)(A) of the Statute provides: Sec. 7114. Representation rights and duties * * * * (a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment(.) /3/ While it does not affect the disposition of this case, the Authority notes that it has not adopted the "substantial impact" test referred to in the Judge's Decision. See Internal Revenue Service (District, Region, National Office Unit), 13 FLRA 203 (1983). Rather, the Authority has held that the statutory duty to negotiate over impact and implementation of a change in conditions of employment comes into play if the change results in an impact upon unit employees or such impact is reasonably foreseeable. However, no duty to bargain would arise if the impact or reasonably foreseeable impact was de minimis. See Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984). /4/ In adopting the Judge's conclusion in this regard, the Authority does not rely upon the lack of "give and take" discussion at the meeting as indicative of the informal nature of the meeting. Department of Defense, National Guard Bureau, Texas Adjutant General's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base, 15 FLRA No. 111 (1984). /5/ Case No. 8-CA-20245 was settled. Accordingly, counts 1(d) and 11 were deleted from the consolidated complaint in this proceeding, along with all references to Case No. 8-CA-20245 in paragraphs 14 and 15. /6/ These provisions are as follows: . . . 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 the chapter; (or) . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. Other statutory provisions here relevant are found in Section 7114 of the Statute, which delineates "Representation rights and duties." Subpart (a)(2) provides that: An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment . . . . Section 7114(b) provides that: The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (3) to meet at reasonable times . . . . /7/ Pursuant to 5 CFR 2423.19(r), corrections to the transcript are made, as set forth in Appendix A hereto. Several items proposed for correction by the General Counsel, in an unopposed Motion to Correct Transcript, have been disallowed. Items 2 and 3 of the Motion seek a change in case number on lines 4 and 9 of page 7. I find that the case numbers on these lines and pages are correct. Item 4 of the Motion seeks the addition of the word "initially" after the word "indicated", on line 7, of page 8. I find the correction should be as stated in Appendix A. Item 16 of the Motion seeks to change "to" to "two", on line 11 of page 101. Something appears to be omitted, or in need of change on line 11 of page 101; but the correction proposed does not appear to be the correct one. All other corrections proposed in the Motion have been granted. /8/ The transcript will be referred to herein as "TR." The General Counsel's exhibits will be referred to as "GC," and those of Respondent as "R." Multipage exhibits will be referenced by an exhibit number, followed by a page or paragraph number. The brief of the General Counsel will be referred to as "GCBr." The brief of Respondent will be referred to as "RBr." /9/ Two DOs, Sandra Martinez and Anita Maker, testified that they make travel arrangements as a part of their duties. See TR56, 75 and 90. Both appear to be honest and candid witnesses, well acquainted with the workings of the DS. Both have been DOs for four years. Mr. Hicks testified that GS6 aides are responsible for making the telephonic travel arrangements. Mr. Mohrman testified that clericals handled most of the travel arrangements. Neither seemed to be as honest, candid, or knowledgeable about the day-to-day work and working conditions of the DOs, as DOs Martinez and Maker. Accordingly, I credit the testimony of DOs Martinez and Maker on this point. /10/ Mr. Weyland so testified, at TR22. He appeared to be an honest, candid witness. Mr. Sewell was not called as a witness to contradict this testimony. Accordingly, I have credited it. /11/ Respondent has agreed to provide safe and healthful working conditions. See Article 17, para. A of R2.20. The collective bargaining agreement sets up a committee on safety and health, on which both management and labor representatives sit. The purpose of the committee is to discuss safety and health matters, conduct inspections, and recommend employees for safety awards. See Article 17, para. B(3) of R2.20-21. The committee also makes recommendations as to specific safety conditions referred to it by employees. See Article 17, para. D(1) of R2.21. /12/ This finding is based on the testimony of DO Martinez. She appeared to be an honest and candid witness. Mr. Mohrman did not mention the conversation, in his testimony. Mr. Cronin was not called as a witness. Accordingly, I have credited her testimony. /13/ As to the first two proposals, on partitioning space, Mr. Mohrman conceded, at the hearing, that the proposal was open to interpretation and that it was not necessarily contrary to his purpose of giving the supervisors a better view of employees. See TR145-147. /14/ The General Counsel concedes that "just an announcement was made to employees, at the meeting" (TR98), but also relies on evidence that Mr. Mohrman, at the February 1 meeting, explained that clericals were going to be in a pool and that employees would no longer have portions of the docket assigned to them. See GCBr7-8 and TR97. DO Martinez did so indicate, on direct. See TR64. But, on cross, DO Martinez candidly stated that she could not recall whether anything was said about dockets or clerks at the meeting. See TR81. DO Maker also testified on direct that she could not really recall whether any explanation was given of the changes as to clericals, phones, and desks, at the meeting. DO Maker recalled that these changes had been "proposed before" (TR86), but that she first learned that the decision had been made at the February 1 meeting, when Mr. Mohrman announced "that morning that we were going to start reorganizing the office, moving around furniture and stuff." (TR85). Mr. Hicks testified that "no discussion" took place. See TR114 and see also TR117. Mr. Mohrman also indicated that none took place. See TR130-131. On the basis of this evidence, I cannot find that management discussed the changes at the February 1 meeting. /15/ This finding is based on the testimony of DO Martinez, who was present. See TR66. Her testimony was corroborated by that of DO Maker, who was also present. See TR86-87. Mr. Nunez was not called as a witness. Mr. Mohrman testified to a different version of his interchange with Mr. Nunez. See TR131. I credit the Martinez-Maker version because I believe them to be more candid and sincere witnesses who basically corroborated one another on this point. /16/ This finding is based on the testimony of DO Martinez. See TR157. Mr. Mohrman testified that it is quieter since the elimination of the partitions, as there is "less visiting, and conversing. Less socializing" (TR135). I credit that of DO Martinez for the reasons stated in footnote 9, above. /17/ This finding is based on the testimony of DO Martinez. See TR157. Mr. Mohrman testified that the available space increased with the reorganization. See TR132. To the extent that their testimony is in conflict, I credit that of DO Martinez, for the reasons stated in footnote 9, above. /18/ This finding is based on the testimony of DO Martinez. See TR160-162. Mr. Hicks testified that the consolidation took at least two weeks. See TR113. Mr. Mohrman testified that it took three to four weeks. See TR129. For the reasons stated in footnote 9, above, I credit the testimony of DO Martinez.