18:0550(72)CA - Justice, INS, Los Angeles, CA and AFGE, INS Council, Local 505 -- 1985 FLRAdec CA



[ v18 p550 ]
18:0550(72)CA
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 intercha