20:0644(76)CA - EPA and EPA Region II and AFGE -- 1985 FLRAdec CA



[ v20 p644 ]
20:0644(76)CA
The decision of the Authority follows:


 20 FLRA No. 76
 
 ENVIRONMENTAL PROTECTION AGENCY AND 
 ENVIRONMENTAL PROTECTION AGENCY 
 REGION II 
 Respondent
 
    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                          Case No. 2-CA-20488
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent, Environmental
 Protection Agency and Environmental Protection Agency, Region II, had
 engaged in the unfair labor practices alleged in the complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent and the General
 Counsel filed exceptions to the Judge's Decision and the Respondent
 filed an opposition to the General Counsel's exceptions.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order only to the extent
 consistent herewith.
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 and (5) of the Statute when it unilaterally relocated unit employees of
 the Water Resources Section, Technical Resources Branch, Water Division,
 and refused, when requested, to bargain on the procedures to be used in
 the implementation of the change and any appropriate arrangements for
 employees adversely affected by such change.  In this regard, the Judge
 concluded that the relocation resulted in more than a de minimis impact
 upon bargaining unit employees.  The Respondent excepted, in part, to
 the Judge's determination that the change resulted in more than de
 minimis impact.  The General Counsel's exceptions were limited to the
 Judge's recommended remedy.
 
    The record reflects that the American Federation of Government
 Employees, AFL-CIO, during the time period in question, exclusively
 represented a nationwide consolidated unit of professional employees and
 a nationwide consolidated unit of nonprofessional employees, which
 included the employees of the Water Resources Section, Technical
 Resources Branch, Water Division, Region II, involved herein.  The
 record reveals that the Environmental Protection Agency is divided into
 10 regions, each of which is divided into five divisions which are
 further divided into branches and sections within the branches.  With
 respect to the relocation, the record establishes that on or about June
 24, 1984, approximately 12 employees within a section of the Water
 Division were moved from one area on the eighth floor about 50 feet
 across the hall to another area.  In part, the change resulted in less
 individual office and storage space in a noisier location.
 
    The Authority has previously held that "where an agency in exercising
 a management right under section 7106 of the Statute, changes conditions
 of employment of unit employees . . . , the statutory duty to negotiate
 comes into play if the change results in an impact upon unit employees
 or such impact was reasonably foreseeable." (Footnote omitted.) U.S.
 Government Printing Office, 13 FLRA 203, 204-05 (1983).  The Authority
 thereafter held in Department of Health and Human Services, Social
 Security Administration, Chicago Region, 15 FLRA No. 174 (1984), that
 "no duty to bargain arises from the exercise of a management right that
 results in an impact or a reasonably foreseeable impact on bargaining
 unit employees which is no more than de minimis." The Authority has also
 held, subsequent to the issuance of the Judge's decision herein, that in
 determining whether the impact or reasonably foreseeable impact of the
 exercise of a management right on bargaining unit employees is more than
 de minimis, the totality of the facts and circumstances presented in
 each case must be carefully examined.  Thus, in Department of Health and
 Human Services, Social Security Administration, Region V, Chicago,
 Illinois, 19 FLRA No. 101 (1985), the Authority looked to such factors
 as the nature of the change (e.g., the extent of the change in work
 duties, location, office space, hours, loss of benefits or wages and the
 like);  the temporary, recurring or permanent nature of the change
 (i.e., duration and frequency of the change affecting unit employees);
 the number of employees affected or foreseeably affected by the change;
 the size of the bargaining unit;  and the extent to which the parties
 may have established, through negotiations or past practice, procedures
 and appropriate arrangements concerning analogous changes in the past.
 /2/ The Authority also emphasized therein that the factors considered in
 the circumstances of that case were not intended to constitute an
 all-inclusive list or to be applied in a mechanistic fashion.  Moreover,
 the Authority noted that a determination as to whether the exercise of a
 management right under section 7106(a) of the Statute gives rise to a
 duty to bargain under section 7106(b)(2) and (3) will not necessarily
 require in every case a determination as to whether the exercise of the
 management right results in a change in a condition of employment having
 an impact or a reasonably foreseeable impact on bargaining unit
 employees which is more than de minimis, especially where there is no
 indication that the nature and degree of impact is at issue in the case.
  However, in cases where it must be determined whether the nature and
 degree of impact is more than de minimis, factors such as those listed
 above will be considered.
 
    Turning to the instant case, the Authority finds, in disagreement
 with the Judge's conclusion, and based upon the totality of the facts
 and circumstances presented, that the impact or reasonably foreseeable
 impact of the relocation on unit employees' conditions of employment was
 no more than de minimis.  Accordingly, it follows that the Respondent
 was under no obligation to afford the Charging Party an opportunity to
 bargain pursuant to section 7106(b)(2) and (3) of the Statute concerning
 the procedures to be observed in implementing the change as well as on
 appropriate arrangements for employees adversely affected by the change.
  In reaching this result, the Authority notes with respect to the nature
 of the change that, although the relocation resulted in less office and
 storage space in a noisier location, only 12 employees were relocated on
 the same floor approximately 50 feet away.  /3/ Moreover, it is also
 noted that the affected employees remained in the same section and
 division and maintained their grade levels, pay rates and hours of work.
  Although the duration of the change was permanent and its impact on
 unit employees was immediate, the Authority further notes that the
 relocation affected only 12 individuals in one section of one division
 who are part of a nationwide consolidated unit.  Finally, the record
 does not show that the parties have established, through negotiations or
 past practice, procedures and appropriate arrangements concerning
 analogous changes in the past.  /4/
 
    Based on the totality of the facts and circumstances presented, and
 noting particularly the limited nature of the change, the small number
 of employees affected relative to the size of the bargaining unit, and
 the lack of any demonstrated bargaining history or past practice of
 handling similar or analogous changes, the Authority concludes that the
 impact or reasonably foreseeable impact of the relocation was no more
 than de minimis.  Accordingly, the Respondent was under no obligation to
 negotiate with the Charging Party pursuant to section 7106(b)(2) and (3)
 of the Statute.  /5/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 2-CA-20488 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., November 13, 1985
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent urges the Authority to dismiss the General
 Counsel's exceptions on the basis of an improper citation to the
 Authority's Rules and Regulations.  The Respondent's motion is denied.
 Notwithstanding the incorrect regulatory citation by the General
 Counsel, the documents submitted were clearly captioned and identified
 as exceptions to the Administrative Law Judge's Decision in Case No.
 2-CA-20488 and properly constituted an exception to the Administrative
 Law Judge's Decision filed with the Authority under section 2433.26(c)
 of the Authority's Rules and Regulations.
 
 
    /2/ Additionally, Member McGinnis indicated in a separate concurring
 opinion that he would also consider, in determining de minimis issues,
 when the implementation of a change would involve or adversely affect
 unit employees in assessing the totality of the facts and circumstances
 presented.
 
 
    /3/ See U.S. Army Reserve Components, Personnel and Administration
 Center, St.  Louis, Missouri, 20 FLRA No. 12 (1985);  Cf.  Social
 Security Administration, Office of Hearings and Appeals, Region II New
 York, New York, 19 FLRA No. 47 (1985), where the whole Regional Office
 was moved a distance of four or five miles.
 
 
    /4/ Although the Judge found that parties had executed a memorandum
 of understanding almost two years prior to the events herein which
 provided generally for "local level impact/implementation bargaining,"
 such agreement did not specifically address changes analogous to those
 involved in this case and the record contains no evidence that
 bargaining has ever occurred thereunder or otherwise with regard to
 analogous changes.  Additionally, the Authority notes that a failure to
 abide by the parties' memorandum of understanding would constitute a
 contract violation cognizable under an applicable negotiated grievance
 procedure.
 
 
    /5/ In view of the conclusion that the impact or reasonably
 foreseeable impact of the relocation on unit employees was no more than
 de minimis, the Authority does not pass on the Judge's negotiability
 findings.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 ENVIRONMENTAL PROTECTION AGENCY AND 
 ENVIRONMENTAL PROTECTION AGENCY,
 REGION II
                  Respondent
    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
                  Charging Party
 
    Andrew J. Moran, Esq
    For the Respondent
 
    Allan W. Stadtmauer, Esq.
    Deborah A. Krane
    For the General Counsel
 
    Joseph F. Musil, Jr.
    For the Charging Party
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on December 30,
 1982 by the Regional Director of the Federal Labor Relations Authority,
 New York, NY, a hearing was held before the undersigned on April 13,
 1983 at New York, NY.
 
    This case arises under the Federal Service Labor-Management Relations
 Statute (herein called the Statute).  It is based on a second amended
 charge filed on December 9, 1982 by the American Federation of
 Government Employees, National EPA Council and Local 3911, (herein
 collectively called the Union) against Environmental Protection Agency
 and Environmental Protection Agency, Region 11 (herein collectively
 called Respondent).  /1/
 
    The Complaint alleged, in substance, that since June 4, 1982
 Respondent refused to negotiate re the substance, Impact and
 implementation of its decision to relocate and reconfigure unit
 employees of the Water Resources Section, Technical Resources Branch,
 Water Division;  that the decision to so relocate and reconfigure unit
 employees was implemented on June 24, 1982 without affording the Union
 an opportunity to bargain thereon - all in violation of Sections
 7116(a)(1) and (5) of the Statute.
 
    Respondent's Answer, dated January 18, 1983, denied the essential
 allegations of the Complaint, as aforesaid, as well as the commission of
 any unfair labor practices.
 
    A Motion to Dismiss the Complaint, dated March 10, 1983, was filed by
 Respondent Environmental Protection Agency on the ground that the acts
 are alleged to have been committed by employees of the Activity, Region
 II.  It averred that the agency is not a proper respondent solely
 because it is the activity's parent entity.  General Counsel filed its
 Opposition to Motion to Dismiss, dated April 7, 1983.  In an order dated
 April 7, 1983, the Regional Director, Region 11, New York, NY referred
 the aforesaid motion to the Chief Administrative Law Judge.  Since no
 ruling was made thereon, the Respondent Agency renewed its motion at the
 hearing.  The undersigned's determination of the motion is set forth
 infra.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, 1 make the following findings and conclusions:
 
                             Findings of Fact
 
    1. At all times material herein the American Federation of Government
 Employees, AFL-CIO has been, and still is, the exclusive representative
 of a nationwide consolidated unit of professional employees and a
 nationwide consolidated unit of non-professional employees who are
 employed by the Environmental Protection Agency (EPA) including those
 employed by Region II.
 
    2. At all times material herein the American Federation of Government
 Employees, AFL-CIO, has delegated the National EPA Council (AFGE Council
 No. 238) as its agent for the purpose of negotiating all matters which
 are national in scope and appropriate under the Statute, including the
 negotiation of a nationwide master agreement.
 
    3. At all times material herein, Joseph F. Musil, Jr., as Acting
 President of Local 3911, has been the delegated agent of the National
 EPA Council on all matters involving bargaining unit employees at EPA
 Region 11.
 
    4. No collective bargaining agreement exists between the parties at
 either the national or local level.
 
    5. A memorandum of understanding between the American Federation of
 Government Employees, AFL-CIO, and the Environmental Protection Agency
 was executed on August 21, 1980.  It provided for the delegation by each
 party of authority and responsibility to their duly authorized
 representative with regard to local level impact/implementation
 bargaining.  The Respondent's agent for such bargaining in Region II, as
 delegated, is Eugene Viti, Chief of Personnel and Organization.  Its
 agent for substantive bargaining as delegated for national and local
 matters, is Thorne Chambers, Labor Relations Officer.
 
    6. EPA is divided into 10 regions and certain field offices.  Region
 11, which has a regional administrator, is composed of five divisions:
 water, air, management, surveillance, and regional counsel.  Each
 division has branches consisting of a branch chief, and 15-20 employees.
  A branch is divided into sections and the section has an individual
 supervisor.
 
    7. Just prior to June 2, 1982, /2/ the Director of the Water
 Management Division, William Muszynski, told Viti that his division was
 planning a relocation within the division itself.  Viti advised the
 director he should contact Musil and go over the plans with the union
 representative as well as elicit any comments re the move.
 
    8. On June 2 Musil talked to Muszynski and learned that certain
 employees would have their work areas relocated.  No details re the move
 were related to the Union representative, /3/ except that It would
 involve relocating some unit employees in the Water Resources Section,
 Technical Resources Branch, Water Division from the eighth floor to
 another area.
 
    9. Upon learning from several employees that a relocation was in the
 offering, Musil wrote a letter on June 4 to Viti.  The union
 representative stated therein that the proposed relocation was a
 substantive change in working conditions;  that such move could have a
 potential effect upon the health and productivity of employees if
 certain conditions, as lighting, office space, ventilation and layout,
 are not taken Into consideration.  Musil requested negotiations to
 address procedures, "i.e. who gets what window offices - by seniority or
 grade - and such other items as minimum areas, lighting, ventilation,
 safety corridors, etc." Further, he sought to discuss remedies for
 adversely affected employees.
 
    10. No response was made by Viti or any other management
 representative to this request to bargain.  Viti testified he did not
 reply since nothing specific was mentioned by Musil no - proposals over
 which the letter wanted to negotiate and no impact demonstrated on the
 employees.  Viti testified, further, that the letter from Musil did not
 indicate who was bothered by the lighting or other conditions;  that no
 particular instances of Impact were recited by the Union official.
 
    11. On or about June 24 approximately 12 employees in the Water
 Division were moved from one area on the eighth floor about 50 feet
 across the hall to another area.  The move was impelled by a need to
 provide more space for the mailroom and relocate from the 10th floor to
 the 8th floor.  Record facts reflect that at the old location the
 offices were situated along the outer side of three parts of a
 rectangle.  It was an interior section on the floor without windows.
 The secretaries' desks were in the center of the room, and the offices
 of the other employees were in the periphery of the room.  The area was
 somewhat secluded with 2-3 doors to enter and exit therefrom.  Large
 bookshelves in each office were utilized to store papers and documents,
 and some offices had file cabinets, tables and a credenza.  Little noise
 was present at the old location due to its relative isolation.
 
    12. Individual offices at the new quarters are two-thirds the size of
 the former ones.  In some instances only one exit is available to leave
 the area unless an employee goes through another office to do so.
 Further, exiting can be impeded since the exit is on the other side of
 the two desks reserved for secretaries.  Less space is available in each
 office presently for storing data or documents of the Water Resources
 Section due to the somewhat cramped conditions.  Record facts reveal
 there is much more noise at the new location due to the passing of
 people throughout the corridor, the use of typewriters and ringing of
 telephones.  Employee Kathleen Chojnowski testified she finds it
 necessary, on occasion, to visit the 10th floor library to write because
 of the high noise level.  Some of the new offices are equipped with
 windows, and thus lighting Is deemed equally as good as previously.  In
 respect to lighting, it appears that this may have resulted in an
 improvement as a result of the move.  Ventilation problems are common to
 both areas:  heating irregularities at the former location and air
 conditioning difficulties at the new one.
 
                                Conclusions
 
    I. Procedural Matters
 
    The Motion to Dismiss as to Respondent Agency is predicated on the
 contention that such entity undertook no action in respect to the
 relocation.  Since, moreover, none of its agents was involved in the
 decision, the agency may not be held responsible for the conduct of the
 Activity.  Cases cited in support of that position were U.S.
 Environmental Protection Agency, Washington, DC and U.S. Environmental
 Protection Agency, Region IV, Atlanta, Georgia, 10 FLRA No. 30 (1982);
 Department of the Interior, Water and Power Resources Section, Grand
 Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46 (1982).
 
    Both of the cited cases involved situations where the activity had no
 choice but to follow the directions of the parent agency.  In each
 instance recognition of the bargaining agent existed at the local level.
 
    Moreover, the issue concerned the responsibility of the activity.  In
 view of the fact that the latter's acts were deemed ministerial in
 nature, the Authority concluded the Activity did not commit an unfair
 labor practice.  Neither case is opposite herein.  Recognition was at
 the national level in the case at bar and the obligation to bargain
 existed thereat.  Despite the fact that the parties, in their memorandum
 of understanding executed on August 21, 1980, authorized negotiations at
 the local level, the doctrine of respondent superior would be applicable
 herein.  Thus, even though impact-implementation bargaining may occur at
 the sub-level, the Activity (Region II) continues to act as an agent for
 the parent EPA.  Accordingly, the actions of local management are
 binding upon the Agency.  See Department of Health and Human Services
 Social Security Administration, Office of Program Operations & Field
 Operations, Sutter District Office, San Francisco, California, 5 FLRA
 No. 63 (footnote 2) (1981).  The Motion to Dismiss as to Respondent
 Agency is denied.
 
    II.  Alleged Unfair Labor Practice
 
    General Counsel concedes that the decision to relocate the employees
 on the eighth floor was not negotiable.  However, it contends that
 management should have negotiated on the impact and implementation
 thereof.  In this respect, General Counsel insists Respondent was
 obligated to respond to the Union's request to negotiate the effects of
 the relocation upon employees;  that, prior to implementation of the
 move, Respondent was required to afford the Union an opportunity to
 bargain concerning its impact and implementation.  Further, such
 substantive matters as lighting, ventilation, noise levels and fire
 exits should have been discussed with the bargaining agent.
 
    Unless otherwise excused, the Respondent herein had the obligation to
 respond when the Union herein requested on June 4 that the employer
 negotiate the contemplated relocation of the employees on the eighth
 floor.  The term "collective bargaining", as set forth in Section
 7103(12) of the Statute requires that the agency - as well as the
 exclusive representative - consult and bargain re "working conditions".
 The latter term would certainly embrace worksites and such matters as
 office space, security, ventilation and noise levels.
 
    Upon reviewing the record, as well as the contentions of the
 Respondent, I am persuaded that no factors existed which warranted the
 failure or refusal to reply to the Union's request to bargain.  While
 recognition of the Union herein was granted at the national level by the
 parent agency, local representatives were granted authority to engage in
 impact and implementation bargaining re local level matters.  Such
 delegation calls upon the Respondent Activity to respond to the Union's
 request to negotiate.  The Authority has determined that parties may, as
 occurred herein, authorize negotiations at a sub-level.  See Social
 Security Administration, Mid-American Program Service Center, Kansas
 City, Missouri, 10 FLRA No. 4 (1982).  Thus, Respondent Activity in
 keeping with the memorandum of understanding between the parties and the
 national level, was obliged to negotiate with the Union re the impact
 and implementation of any changes in working conditions.
 
    In its brief Respondent asserts as a defense that the Union never
 followed up on its initial request to bargain;  that no proposals were
 submitted, and that it was logical for management to conclude Local 3911
 did not wish to pursue negotiations.  These assertions are rejected.
 The June 4 request to negotiate was quite specific in respect to the
 concerns of the Union.  Musil adverted to "items as minimum area,
 lighting, ventilation, safety corridors, etc." which the Union felt
 impacted upon employees.  He referred to "relocation procedures, i.e.
 who gets what window offices - by seniority or grade".  It does not lie
 with Respondents to maintain that the Activity was unaware of the
 Union's desires in respect to negotiation.  The items, as set forth in
 the request to bargain, were in sufficient detail to appraise the
 employer of the possible impact upon employees.
 
    Although management argues no follow-up was made by the Union alter
 the written bargaining demand, I am not persuaded that the employer was
 thus free to ignore the request to negotiate.  In support of its
 position in this respect, Respondent cite the case of Department of the
 Treasury, Bureau of Alcohol, Tobacco and Firearms, 7 FLRA No. 65 (1981).
  However, that case is distinguishable from the one at bar.  In the
 cited case the agency did not deny its obligation to bargain over
 certain changes.  Moreover, it attempted to locate a proper
 representative of the union but none was readily identified.  The
 Authority concluded that any delays were not attributable to the
 employer, and that the latter evidenced no reluctance to meet and
 discuss the changes.  Thus, the failure of the union to do anything
 after it request to bargain was significant under those circumstances.
 In the instant matter the employer has insisted it had no obligation to
 bargain re the relocation.  Further, its failure to reply to the request
 was not based on any misunderstanding of the Union's demands.  Nor was
 it a result of being unable to contact a proper union representative.
 While Respondent may argue that the Union should have mentioned the
 matter again, during its meeting with management, any failure to do so
 was not tantamount to the Union's dropping its demands.  Management was
 not entitled, in my opinion, to conclude that the Union did not wish to
 pursue negotiations.  The bargaining agent's actions cannot be construed
 as a waiver of its demands.  A waiver must, as the Authority has
 declared, be clear and unmistakable, and no such expression was made
 herein by the Union.  Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA No. 2 (1981).
 
    It is stoutly contended that the relocation of the 12 employees
 across the hall to new quarters did not have a significant impact upon
 the unit employees.  Further, that the effect of any such changes was de
 minimus and thus it was not incumbent upon the employer to bargain
 thereon.  I disagree.  While the distance of the move was not great,
 conditions of employment were altered as a result thereof.  Thus, the
 size of the offices was changed so that the employees worked in smaller
 rooms.  The available space for storing documents and files was much
 less after the move, and the change produced cramped conditions since
 ingress and agrees were restricted for each employee.  Relocation across
 the corridor resulted in considerable noisy working conditions, as well
 as a flow of "traffic" which was not present when the employees occupied
 interior offices.  Ventilation problems, albeit of a different kind,
 arose by reason of the relocation.
 
    Several of the foregoing items have been deemed negotiable by the
 Authority.  In the Library of Congress, et. al., 7 FLRA No. 89 (1982)
 union proposals re (a) filing cabinet space, (b) choice of office size,
 (c) insuring quiet working conditions via partitions, (d) minimizing
 distractions to employees by situating employees properly, (e) corridors
 conforming to safety regulations, - all were held negotiable as working
 conditions.
 
    The changes visited upon the 12 individuals in Region II herein could
 well impact upon the performance of such employees.  Continual noise, as
 well as crowded quarters with less space for filing materials, would
 certainly affect the work of employees.  Moreover, ventilation and
 safety - both of which subjects the Union mentioned in its request to
 bargain are important conditions of employment.  Thus, in this posture,
 I am unable to conclude that the changes, which produced problems in
 respect to the foregoing, were de minimus or had no material impact upon
 the 12 individuals who were relocated.  See Internal Revenue Service
 Chicago, Illinois, 9 FLRA No. 73 (1982).  Accordingly, I conclude that
 Respondents violated Sections 7116(a)(1) and (5) of the Statute by:  (a)
 failing and refusing to bargain with the Union herein, prior to June 24,
 1982, as to the impact and implementation of its decision to relocate
 the 12 employees of the Water Division of Region II and changing their
 offices;  (b) unilaterally relocating the said 12 employees of the Water
 Division of Region II on June 24, 1982 and changing their offices
 without affording the Union an opportunity to bargain as to the impact
 and implementation of said relocation.  /4/
 
    Having found that Respondents violated Sections 7116(a)(1) and (5) of
 the Statute, I recommend the following Order:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, it is hereby ordered that the Environmental Protection
 Agency and Environmental Protection Agency, Region II shall:
 
    1. Cease and desist from:
 
    (a) Refusing to negotiate in good faith with the American Federation
 of Government Employees, AFL-CIO, the exclusive representative of its
 employees, to the extent consonant with law and regulations, concerning
 the impact and implementation of the relocation of unit employees in the
 Water Resources Section, Technical Resources Branch, Water Division,
 Region II.
 
    (b) Relocating its unit employees without first notifying the
 American Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, and affording it the opportunity to
 negotiate, to the extent consonant with law and regulations, concerning
 the impact and implementation of any such relocation of unit employees.
 
    (c) In any like or related manner interfering with, restraining or
 concerning employees in the exercise of rights assured by the Statute.
 
    2. Take the following affirmative action in order to effectuate the
 policies of the Statute:
 
    (a) Upon request, negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, to the extent consonant with law and
 regulations concerning the impact and implementation of the relocation
 of unit employees in the Water Resources Section, Technical Resources
 Branch, Water Division, Region II.
 
    (b) Notify the American Federation of Government Employees, AFL-CIO,
 the exclusive representative of its employees, of any intention to
 relocate its unit employees, and afford it the opportunity to negotiate,
 to the extent consonant with law and regulations concerning the impact
 and implementation of any such relocation of unit employees.
 
    (c) Post at its facilities in Region II, New York, NY copies of the
 attached notice marked "Appendix" on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by the Regional Director of Region II, and they shall be
 posted for 60 consecutive days thereafter in conspicuous places
 including all places where notices to employees are customarily posted.
 The Regional Director shall take reasonable steps to insure that the
 said notices are not altered, defaced, or covered by any other
 materials.
 
    (d) Notify the Regional Director, Region II, 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.
 
                                       (s)---
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 Dated: December 16, 1983
        Washington, DC
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The caption in the Complaint and other formal papers refers to a
 singular Respondent.  However, since the obligation may differ as to the
 parent and the Regional EPA, I shall designate the former as Respondent
 Agency and the latter as Respondent Activity.
 
 
    /2/ Unless otherwise indicated, all dates hereinafter mentioned occur
 in 1982.
 
 
    /3/ Musil testified that no plans re the move were shown him, nor did
 the Director request any comments as to the relocation.  Respondent
 moved to continue the hearing for another day in order to adduce
 testimony in this regard from Muszynski who was not in attendance.  Its
 counsel stated that the Director would testify that he asked Musil for
 his comments re the contemplated move;  that the union official did not
 offer any comments or reply thereto.  The undersigned denied the motion.
  No justification was shown for this late an sudden request. further,
 assuming arguendo Muszynski so testified, his silence would not be
 determinative of the issue herein, viz. whether notification, and
 bargaining with, the Union was required re the relocation.  While Viti
 testified that the Director mentioned that he had shown the floor plan
 to Musil and asked for his comments, no findings may be made that
 Muszynski so told Musil since Viti's testimony, in this regard, is
 heresay.
 
 
    /4/ Conceding that Respondents were entitled to unilaterally decide
 to relocate the 12 employees, General Counsel is concerned with
 bargaining re impact implementation.  Further, no status quo ante remedy
 is sought herein.  General Counsel, however, does seek an order giving
 retroactive effect to any agreement the parties do reach after such
 bargaining.  In my opinion impact and implementation bargaining-- in the
 absence of status quo ante - is prospective in nature.  Prescinding from
 a return to the old location on the eighth floor, negotiations re the
 items such as noise, office space, storage space and the like, may
 scarcely be retroactively implemented.  Thus no such bargaining order is
 recommended.
 
 
 
 
 
                                  APPENDIX
 
                          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 refuse to negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, the exclusive
 representative of our employees, to the extent consonant with law and
 regulations, concerning the impact and implementation of the relocation
 of unit employees in the Water Resources Section, Technical Resources
 Branch, Water Division, Region II.
 
    WE WILL NOT relocate our unit employees without first notifying the
 American Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, and affording it the opportunity to
 negotiate, to the extent consonant with law and regulations, concerning
 the impact and implementation of any such relocation of unit employees.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, the exclusive
 representative of our employees, to the extent consonant with law and
 regulations concerning the impact and implementation of the relocation
 of unit employees in the Water Resources Section, Technical Resources
 Branch, Water Division, Region II.
                                       (Agency or Activity)
 
    Dated: