25:0787(64)CA - EPA and EPA Region II and AFGE -- 1987 FLRAdec CA



[ v25 p787 ]
25:0787(64)CA
The decision of the Authority follows:


 25 FLRA No. 64
 
 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
                                              (20 FLRA No. 76)
 
                       DECISION AND ORDER ON REMAND
 
    I.  Introduction
 
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.
 The question before us is whether the Respondent (Agency) committed an
 unfair labor practice under the Federal Service Labor-Management
 Relations Statute (the Statute) when it unilaterially relocated 12 unit
 employees in its Water Resources Section, Technical Resources Branch,
 Water Division and refused the Union's request to bargain on the
 procedures to be used in the implementation of the change and any
 appropriate arrangements for employees adversely affected by the change.
 
    For the reasons stated below, we conclude that the Agency violated
 the Statute as alleged, and reverse the Authority's previous decision in
 this matter.
 
    II.  Procedural Background
 
    In a previous decision in this case, Environmental Protection Agency
 and Environmental Protection Agency, Region II, 20 FLRA No. 76 (1985),
 the Authority, relying on Department of Health and Human Services,
 Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No.
 101 (1985), held that the Agency did not commit an unfair labor practice
 by refusing to bargain with the Union.  The Authority held that the
 Agency had no statutory duty to bargain over the impact and
 implementation of its decision to relocate 12 employees.
 
    The Charging Party (Union) petitioned the court for review of the
 Authority's decision.  While that ligigation was pending, we issued our
 decision in Department of Health and Human Services, Social Security
 Administration, 24 FLRA No. 42 (1986), petition for review filed sub
 nom. American Federation of Government Employees, Local 1760 v. FLRA,
 No. 86-1702 (D.C. Cir. Dec. 17, 1986) in which we reassessed and
 modified the de minimis standard set out in Social Security
 Administration, Region V.  Thereafter, we requested remand of the
 instant case for further proceedings consistent with Department of
 Health and Human Services, Social Security Administration, 24 FLRA No.
 42.  The court remanded the record on December 30, 1986 for that
 purpose.
 
    III.  History of the Case
 
    The complaint in this case alleged that the Agency refused to
 negotiate over the impact and implementation of its decision to relocate
 unit employees and reconfigure their space;  and that the decision was
 implemented without affording the Union an opportunity to bargain.  The
 Union asserted that the Agency's failure and refusal to negotiate
 violated section 7116(a)(1) and (5) of the Statute.
 
    The Administrative Law Judge noted that it was undisputed that the
 decision to relocate the employees was not negotiable.  However, he held
 that the Agency was obligated to bargain with the Union over the impact
 and implementation of its decision to relocate employees since the
 relocation resulted in an impact on bargaining unit employees which was
 more than de minimis.  The Judge concluded that the Agency violated
 section 7116(a)(1) and (5) of the Statute when it failed and refused to
 bargain with the Union and ordered the Agency to bargain over the impact
 and implementation of its decision.  The Agency filed exceptions with
 the Authority to the Judge's determination that the change resulted in
 an impact which was more than de minimis.  The General Counsel excepted
 to the Judge's failure to provide a remedy which allowed retroactive
 application of agreements reached in negotiations.
 
    On November 13, 1985, the Authority issued its Decision and Order in
 Environmental Protection Agency and Environmental Protection Agency,
 Region II, 20 FLRA No. 76 (1985).  The Authority found, contrary to the
 Judge, that the impact or reasonably foreseeable impact of the
 relocation on unit employees' conditions of employment was no more than
 de minimis, and concluded that the Agency had no obligation to bargain
 over the procedures to be observed in implementing the change and
 appropriate arrangements for employees who were adversely affected by
 the relocation.  The Authority stated that although the relocation
 resulted in a permanent change in working conditions, less office and
 storage space, and a noisier work environment, it affected only 12
 individuals in one division who are part of a nationwide consolidated
 unit.  The Authority further noted that (1) the affected employees
 remained in the same section and division and maintained their grade
 levels, pay rates and hours of work and (2) there was no demonstrated
 bargaining history or past practice of handling similar changes.
 
    IV.  Analysis on Remand
 
    In Department of Health and Human Services, Social Security
 Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de
 minimis standard previously used to identify changes in conditions of
 employment that require bargaining.  We stated that in order to
 determine whether a change in conditions of employment requires
 bargaining, we would carefully examine the pertinent facts and
 circumstances presented in each case;  and that in examining the record,
 principal emphasis would be placed on such general areas of
 consideration as the nature and extent of the effect or reasonably
 foreseeable effect of the change on conditions of employment.  We also
 stated that equitable considerations would be taken into account in
 balancing the various interests involved;  that the number of affected
 employees and the parties' bargaining history would be given limited
 application;  and that the size of the bargaining unit would no longer
 be a consideration.
 
    Applying the revised standard to the facts and circumstances in this
 case, we conclude that the Agency was obligated under section 7106(b)(2)
 and(3) of the Statute to bargain with the Union over the impact and
 implementation of its decision to unilaterally relocate 12 employees.
 See U.S. Department of Labor, Occupational Safety and Health
 Administration, 24 FLRA No. 74, (1986);  Veterans Administration, West
 Los Angeles Medical Center, Los Angeles, California, 24 FLRA No. 73
 (1986).  As a result of the move, employees' conditions of employment
 were altered.  The new environment differed materially from the old
 environment.  The size of the offices was changed so that employees
 worked in smaller rooms;  the available space for storing documents and
 files was much less;  and the change produced cramped working
 conditions.  The record also reveals that there is much more noise in
 the new location.  Despite the relatively short distance of the move,
 the relocation of the Agency's Water Resources Section significantly
 altered the employees work environment.  In these circumstances, we find
 that the Agency had a statutory obligation to meet with the Union as
 requested and engage in negotiations regarding relocation procedures and
 attempts to minimize the effect of the move on the 12 employees
 involved.  We therefore conclude that the Agency violated section
 7116(a)(1) and (5) of the Statute when it failed and refused to bargain
 with the Union over the procedures to be used in the implementation of
 its decision to relocate unit employees and any appropriate arrangements
 for employees adversely affected by the relocation.
 
    V.  Remedy
 
    The General Counsel filed exceptions to the Administrative Law
 Judge's failure to provide a remedy which would permit the parties to
 give retroactive effect, to the extent possible, to agreements reached
 as the result of negotiations concerning the impact and implementation
 of the relocation of unit employees in the Water Resources Section,
 Technical Resource Branch.  /*/
 
    The Judge found that impact and implementation bargaining -- in the
 absence of a status quo ante remedy -- is prospective in nature.  Since
 the General Counsel did not seek a status quo ante remedy, the Judge
 determined that any negotiations relating to the adverse effects cited
 by the Union could not be retroactively implemented and refused to
 recommend the requested bargaining order.
 
    We find for the reasons stated in Environmental Protection Agency and
 American Federation of Government Employees, 21 FLRA No. 98 (1986), that
 a prospective bargaining order will best effectuate the purposes and
 policies of the Statute.  A prospective bargaining order is neither
 inadequate nor inherently restrictive of the parties' rights to address
 the effects on unit employees of changes already made.  Rather, it
 allows the parties the flexibility to bargain freely about how past
 actions may have affected employees and the opportunity to agree to
 retroactive application of the agreement.  See Veterans Administration,
 Washington, D.C. and Veterans Administration Medical and Regional Office
 Center, Fargo, North Dakota, 24 FLRA No. 3 (1986).
 
    VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the rulings of the
 Judge made at the hearing, find that no prejudicial error was committed,
 and thus affirm those rulings.  We have considered the Judge's decision
 and the entire record in this case in light of our decision in
 Department of Health and Human Services, Social Security Administration,
 24 FLRA No. 42 (1986), and adopt the Judge's findings, conclusions and
 order to the extent that they are consistent with our decision in this
 case.
 
    We conclude that the Agency violated section 7116(a)(1) and (5) of
 the Statute when it failed and refused to bargain with the Union over
 the impact and implementation of its decision to relocate unit
 employees.
 
                                   ORDER
 
    The Environmental Protection Agency, Region II, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to negotiate in good faith with the American
 Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, to the extent that it is not
 inconsistent with Federal law or any Government-wide rule or regulation,
 concerning procedures and appropriate arrangements for employees
 adversely affected by 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 that it is not inconsistent with Federal law or
 any Government-wide rule or regulation, concerning the impact and
 implementation of any such relocation of unit employees.
 
    (c) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their 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 that it is not
 inconsistent with Federal law or any Government-wide rule or regulation,
 concerning procedures and appropriate arrangements for employees
 adversely affected by 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 ooportunity to negotiate,
 to the extent that it is not inconsistent with Federal law or any
 Government-wide rule or regulation, concerning procedures associated
 with the relocation and any appropriate arrangements for employees
 adversely affected by any relocation of unit employees.
 
    (c) Post at its facilities in Region II, New York, New York, copies
 of the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon reciept of such forms, they shall be signed
 by the Director of the Water Management Division, Environmental
 Protection Agency, 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 such Notices are not
 altered, defaced or covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, 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.
 
    Issued, Washington, D.C. February 19, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) For the reasons stated by the Authority in 20 FLRA No. 76, we
 reject the Agency's contention that the General Counsel's exception
 should be dismissed on the basis of an improper citation to the
 Authority's Rules and Regulations.
 
 
 
 
 
 
                          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-MANAGEMENT RELATIONS
 
                   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 that it is not
 inconsistent with Federal law or any Government-wide rule or regulation,
 concerning procedures and appropriate arrangements for employees
 adversely affected by the relocation of the Water Resources Section,
 Technical Resources Branch, Water Division, Region II.
 
    WE WILL NOT relocate our employees without first notifying the
 American Federation of Government Employees, AFL-CIO, the exclusive
 representative of our employees, and affording it the opportunity to
 negotiate, to the extent that it is not inconsistent with Federal law or
 any Government-wide rule or regulation, concerning procedures associated
 with the relocation