36:0655(71)CA - - HHS, SSA, Baltimore, MD and SSA, Fitchburg, Massachusetts District Office, Fitchburg, MA and AFGE Local 1164 - - 1990 FLRAdec CA - - v36 p655

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[ v36 p655 ]
36:0655(71)CA
The decision of the Authority follows:


36 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Respondent)

AND

SOCIAL SECURITY ADMINISTRATION

FITCHBURG, MASSACHUSETTS DISTRICT OFFICE

FITCHBURG, MASSACHUSETTS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 1164

(Charging Party)

1-CA-80103

DECISION AND ORDER

August 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondents and the General Counsel to the attached decision of the Administrative Law Judge. The Respondents and the General Counsel also filed oppositions to each other's exceptions. The Union filed an "endorse[ment]" of the General Counsel's Cross-Exception, which included a clarification of Union Proposal 1. Union's Position at 1.

The complaint alleged that the Respondent Fitchburg District Office (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by (1) failing to provide the Union with notice and an opportunity to bargain over the impact and implementation of a change in the seating assignments of bargaining unit employees, and (2) unilaterally changing the alphabetical unit assignments of Claims Development Clerks without providing the Union with an opportunity to bargain concerning the impact and implementation of the change. The Judge found that the Respondent violated section 7116(a)(1) and (5) by refusing to negotiate with the Union.

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 and find that no prejudicial error was committed. Those rulings are affirmed.

For the following reasons, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to give the Union adequate notice and an opportunity to negotiate over the change in seating assignments. We will dismiss the allegations of the complaint alleging that the Respondent failed to negotiate about the change in alphabetical assignments.

II. Facts

In November, 1987,(1) there were approximately 16 bargaining unit employees employed by the Respondent. These 16 employees included seven Claims Representatives and three Claims Development Clerks. The Claims Representatives interview the public in person or by telephone regarding claims for benefits. The Claims Development Clerks perform support activities for the Claims Representatives and other professional employees. The Claims Development Clerks' work includes typing, maintaining files, performing followup actions on development requests, preparing forms and notices concerning records of entitlement and eligibility, receiving mail and telephone calls, and performing reception services.

The Respondent's office layout in November consisted of a reception area and separate work areas. The relevant office area, extending back from the reception area, consisted of five pairs of work stations or units (units 1 through 5, from front to back) in a line at one side of the office. Units 1, 3, and 5 were occupied by a Claims Representative and a Claims Development Clerk. Unit 2 included two Claims Representatives, one of whom performed all her duties by telephone and, thus, was designated a Teleclaims Representative. Unit 4 included a Claims Representative and a vacant work station. There were various rooms and work stations on the other side of the office, with one Teleclaims Representative occupying one of these work stations.

Claims Representatives and Claims Development Clerks are assigned specific portions of the alphabet to determine which claimants they will service. The five Claims Representatives (other than the Teleclaims Representatives) divide the alphabet into five parts while the three Claims Development Clerks work claims from a specific third of the alphabet. Therefore, each Claims Development Clerk has work which overlaps with more than one Claims Representative.

As each Teleclaims Representative worked on a part-time basis (one employee worked 40 hours every 2 weeks and the other worked 4 days per week), the Respondent decided sometime prior to the events in November to assign these employees to the same work area. The Respondent decided, in this regard, that the Teleclaims Representatives' work would be facilitated if their files were in one location. The Respondent also decided to move the Teleclaims Representatives to the back of the office space so that the other Claims Representatives would be more accessible to the walk-in clientele they served. At the same time, the Respondent was concerned about the efficiency of the Claims Representative and the Claims Development Clerk who comprised Unit 5, the last unit along the wall. Therefore, the Respondent decided that there should be a realignment of all the employees' seating arrangements when the office received new furniture it was expecting. Judge's Decision at 3.

On November 6, the Respondent met with the Union's steward and informed him that new desks were arriving and that management was considering making a number of changes in seating assignments and alphabetical work assignments at that time. One change included assigning the Teleclaims Representatives together in Unit 5. The Claims Representative then in Unit 5 would be moved across the room and forward about 50 feet to the work station then occupied by one of the Teleclaims Representatives. The Claims Development Clerk from Unit 5, who had shared many alphabetical assignments with the Claims Representative in Unit 5, would be moved forward one unit to work primarily with the Claims Representative in Unit 4. Id. at 3-4.

The steward stated that he anticipated problems with the change, "particularly with respect to the changes in working relationships[,]" because "there had been some problems in the past with some combinations" of employees who worked together. Transcript at 21-22. He told the Respondent that the Union would discuss the proposed changes with the employees and respond to the Respondent. Judge's Decision at 4.

On November 9, the Respondent met with another Union representative, who expressed concern over the breakup of the longstanding working relationship between the employees in Unit 5. The Union also indicated that there had been past problems between the Claims Representative in Unit 5 and the Claims Development Clerk in Unit 1, who would share many alphabetical assignments pursuant to the realignment. Id. at 4-5.

On November 10, the Union submitted a request to bargain over the revised seating plan. The Union also sought information about other aspects of the move, including "the exact location of pending files, bookcases, office POMs (manuals), and the affected work stations." Id. at 5. The Union asked that the changes be delayed pending the receipt of the requested information. Id. That same day, the Respondent advised the Union that bargaining was not appropriate at that time because management had not finally determined what changes it would implement. Id. at 5-6.

On November 12, the Union made another request to bargain. The Union also indicated a willingness to discuss the changes in a "consultative capacity." Id. at 6. Article 30, Appendix F, Section I of the parties' agreement provides that "many issues which arise at local levels may be resolved by meaningful consultation without formal bargaining." Joint Exhibit 1 at 89. On November 13, the Respondent again stated that "bargaining is not appropriate at this time[,]" but that it was willing to meet with the Union if it had "something different to offer[.]" General Counsel (GC) Exh. No. 5.

The parties met on November 13 and 16 to discuss the changes being considered by management. The Respondent indicated that the arrival of the new desks was imminent and that a definite decision to colocate the Teleclaims Representatives had been made. The Union proposed that since new desks were arriving for all the Claims Representatives except Unit 1, each Claims Representative should move their materials one desk forward and that the Claims Representative from Unit 1 should move her materials to the desk across the aisle. Under the Union's proposal, the employees then in Unit 5 would continue to work primarily with each other. Judge's Decision at 7.

On November 17, the Respondent sent a memo to staff members, including unit employees, announcing the movement of the Teleclaims Representatives and the employees from Unit 5. These changes were implemented along with the installation of the new desks between November 17 and 20. In her new location, the Claims Development Clerk who was moved from Unit 5 no longer had access to a window. On November 18 the Union reiterated its request to bargain over these changes. Id.

On November 19, the Respondent decided to implement, on November 23, the changes in alphabetical work assignments which it had advised the Union about earlier. However, the changes were not implemented on November 23. Id. at 7-8. On November 24, the Respondent provided the Union with the information which had been requested on November 10 as well as additional information sought by the Union on November 20. The parties met again on December 3. Id. at 8. On December 4, the Respondent informed staff members, including unit employees, by memo of the proposed changes in alphabetical assignments. On that same date, the Union sought negotiations concerning the new work assignments, as well as the seating arrangements previously implemented.

On December 7, the Union submitted proposals concerning the changes implemented by the Respondent. They are detailed on pages 10-11 of the Judge's decision. On December 17, the Respondent advised the Union that its proposals were not "bargainable." Id. at 11. Although the Union made a further request for bargaining on its specific proposals on December 18, the Respondent did not reply to this request and the changes in alphabetical assignments were implemented on December 21.

III. Administrative Law Judge's Decision

A. Conditions of Employment

The Judge found that the decisions to change bargaining unit employees' seating assignments and their alphabetical work assignments "clearly concerned terms and conditions of employment within the meaning of the Statute." Judge's Decision at 12. In this regard, the Judge found that any concern about employees' personal "'working relationships'" was "immaterial" to his conclusion. Id. Having found that the changes involved terms and conditions of employment, the Judge concluded that the Respondent was obligated to provide the Union with "proper notification and[,] upon demand[,] bargain with the Union [about] the impact and implementation" of such changes. Id. at 12-13.

B. Impact of the Changes

Applying the standards set forth by the Authority in Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986), the Judge found that the "changes affected the seating assignments of five out of 16 bargaining unit employees, moving two employees to about 50 feet away from their prior locations; resulted in one employee losing a window; and broke up a long-term close working relationship between two employees and caused one of those employees to work with another employee where a poor working relationship existed." Id. at 15-16. The Judge concluded, based on these findings, that the impact of the changes in seating assignments and alphabetical assignments was not de minimis.

C. The Respondent's Failure to Provide the Union With Notice and an Opportunity to Bargain Over Seating Assignments

The Judge concluded that the Respondent made the changes in seating assignments on November 16, 17 and 18 without providing the Union with an adequate opportunity to present proposals and bargain on the impact and implementation of the changes, thereby violating section 7116(a)(1) and (5) of the Statute. The Judge found that at the parties' last meeting prior to the changes, the Respondent told the Union that the move of only two Teleclaims Representatives was definite and that nothing else had been decided. Moreover, the Judge found that by colocating the Teleclaims Representatives before the Union's requests for additional information were fulfilled, the Respondent precluded the Union from submitting timely proposals.

D. Respondent's Refusal to Bargain Over Negotiable Proposals Concerning Alphabetical Assignments

The Judge found that the Union had adequate notice of the implementation of the change in employees' alphabetical assignments and that the Union timely submitted proposals concerning the change. Therefore, he concluded that there was no issue as to whether the Union had received notice about the change in alphabetical assignments. The Judge concluded that the issue raised by the change in alphabetical assignments was the Respondent's refusal to negotiate over the Union's proposals. Id. at 14-15.

E. Negotiability of Union Proposals

The Judge concluded that the Union's first proposal, that the Claims Representative in Units 2 through 5 should each move forward one unit and that the Claims Representative from Unit 1 should move to Unit 5, was nonnegotiable. The Judge concluded that the Respondent had shown that the realignment of the Teleclaims Representatives had a technological relationship to the accomplishment of its work and that the Union's proposal excessively interfered with the purpose of the change. Id. at 16-17.

The Judge concluded that Proposal 2, that employees' alphabetical assignments remain as they were on October 1 unless management decided to make specific changes in such assignments, was negotiable. The Judge concluded that no management right was curtailed by the proposal because the Respondent retained the right to make any changes it desired. Id. at 17.

The Judge concluded that Proposals 3 and 4 were nonnegotiable. Proposal 3 provided that prior to making changes in alphabetical assignments, the Respondent would conduct individual meetings with the affected employees, in the presence of Union representatives, and explain (1) why such changes were being made, (2) the precise nature of the changes, (3) what improvements in work were anticipated, and (4) the impact on employees of any failure to achieve the desired improvements in work. Proposal 4 provided for additional meetings with the Union, after the individual employee meetings, to discuss such changes. The Judge concluded that Proposals 3 and 4 would require the Respondent to consult with the Union and follow a specific procedure before it decided to make such a change in work assignments. Citing the Authority's decision in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), the Judge found that these proposals set forth "a condition precedent [which] excessively interfere[d] with management's right to make a decision on assigning work[.]" Judge's Decision at 18.

The Judge concluded that Proposal 5, which required the parties to review any changes in alphabetical assignments at 3-month intervals and attempt to resolve any perceived problems, was negotiable. The Judge found that the proposal did not interfere with any management right under the Statute. Id. at 19.

The Judge concluded that Proposal 6, which provided that temporary alphabetical assignments would be consistent with the permanent alphabetical assignments in place at that time, was outside the duty to bargain. The Judge concluded that the proposal would limit the Respondent's right to assign work. Id.

The Judge concluded that Proposal 7 was negotiable. It provided that employees' evaluations would "take into account the effects of alphabetical reassignments on each affected employee" in a manner consistent with Article 21, Section 3E of the national agreement between Social Security Administration and the Union. That portion of the national agreement states that management will "consider factors which affect performance that are beyond the control of the employee" when preparing the employee's evaluation and that the employee "will be held accountable only for those job elements and performance standards for which the employee is officially responsible." Joint Exhibit 1 at 35-36. The Judge concluded that the proposal required only that the impact of any alphabetical reassignment be considered as a "factor" pursuant to the national agreement, and that such a proposal constituted an appropriate arrangement for affected employees. Id. at 19-20.

Finally, the Judge concluded that Proposal 8, which provided that neither party waived its rights under law or higher-level agreement, was negotiable because the Respondent gave no reason for opposing this proposal. Id. at 20.

F. Summary of Judge's Conclusions

In sum, the Judge concluded that the changes in seating and alphabetical assignments had more than a de minimis impact on employees and that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the changes without bargaining with the Union over the impact and implementation of the changes. The Judge found that the Respondent failed to provide notice to the Union of the changes in seating assignments and that although the Respondent provided the Union with notice of the changes in alphabetical assignments, it rejected all of the Union's proposals without rationale. Finally, the Judge determined that four of the eight Union proposals were negotiable.

G. Judge's Remedy

The Judge found that a status quo ante remedy was warranted with respect to both changes involved in this case. With respect to the change in seating assignments, the Judge concluded that (1) the Respondent did not provide proper notice of its decision prior to implementation; (2) the Respondent rejected, without rationale, all of the Union's subsequent proposals; (3) the impact of the change on employees was significant; and (4) the remedy would not cause substantial disruption of the Respondent's work procedures. With respect to the change in alphabetical assignments, the Judge concluded that although the Respondent provided notice, it nevertheless rejected all of the Union's proposals without specific rationale; that the impact on employees was significant; and that a return to the status quo could be implemented "with little difficulty." Id. at 21.

IV. Positions of the Parties

A. The Respondent's Exceptions

The Respondent contends that "[i]t is unclear whether the Judge found, as alleged in the complaint, that a change in working relationships is a condition of employment[.]" Exceptions at 12 n.9. The Respondent notes that the complaint alleged that it unilaterally changed working conditions of bargaining unit employees by changing their "working relationships." Id. at 17. The Respondent asserts that, consistent with the complaint, the Judge erred in failing to determine whether a change in working relationships constitutes a change in conditions of employment.

The Respondent also notes the Judge's statement that the Union's underlying concern over personal "working relationships" was immaterial to his conclusion that the changes in seating and alphabetical assignments concerned terms and conditions of employment. Id. The Respondent contends, however, that the Judge relied on the change in long-term working relationships for his finding that the change in alphabetical assignments had more than a de minimis impact on employees. The Respondent concludes that although employees may have a legitimate interest in their work location, and that employee morale is a valid concern, the "mere fact that employees have a legitimate interest in their location and morale is a matter of concern to employees, [does not] create[] a bargaining obligation under the circumstances in this case." Id. at 20 (emphasis in original).

In addition, the Respondent argues that the Judge erred in finding that the change in seating assignments was more than de minimis. In support of its argument, the Respondent contends that (1) only 4 of 16 employees at the facility physically moved; (2) none of the affected employees received different or additional work assignments; (3) although the Claims Development Clerk from Unit 5 lost access to a window when she moved forward, she had previously worked at that location for a portion of the workday; and (4) the Claims Representative moved only 50 feet. Id. at 14-15.

The Respondent also argues that the effects of the changes in alphabetical assignments were de minimis. The Respondent contends that changes in its alphabetical work assignments are frequent, based on changes in workload and staffing assignments. The Respondent also contends that the effect of the changes implemented in December was "no different than other changes which are merely based upon work load changes or staff changes[]" and that "the effect of the change in alpha assignments was temporary, requiring employees to change their pending files to agree with the new alpha breakdown and to assist the appropriate claims representative handling the corresponding alpha assignment." Id. at 16.

Further, the Respondent excepts to the Judge's finding that Union Proposal 7 is negotiable. The Respondent contends that the proposal's requirement that the effect of changes in alphabetical assignments be considered as a factor in employee evaluations violates management's right to assign work pursuant to section 7106(a)(2)(A) and (B) of the Statute. The Respondent contends that the Authority has held that proposals providing that employees will not be appraised on factors over which they have no control are not negotiable, citing American Federation of Government Employees, AFL-CIO, Local 1409 and Department of the Army, U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 28 FLRA 109 (1987).

Finally, the Respondent argues that the record demonstrates the necessity of the changes that it implemented. The Respondent maintains that these changes would be disrupted by a return to the status quo, as ordered by the Judge, to the detriment of the Respondent's clientele. The Respondent further argues that, with respect to alphabetical assignments, a return to the status quo would have an adverse effect on the employees involved. The Respondent contends that management had a legitimate need to increase the efficiency of Unit 5, a move which would be reversed to the detriment of the Respondent's mission if the Judge's status quo remedy were to be imposed.

B. The General Counsel's Exception

The General Counsel excepts only to the Judge's finding that Union Proposal 1 is nonnegotiable. The General Counsel contends that Union Proposal 1 would not interfere with the movement of the Teleclaims Representatives and that the Respondent has not demonstrated a technological relationship to the other changes in seating assignments which are the basis of the complaint.

C. The Union's Statement of Position

The Union "endorses" the General Counsel's exception to the Judge's finding that Union Proposal 1 is nonnegotiable. Union Statement at 1. The Union asserts that Proposal 1 was made subsequent to the colocation of the Teleclaims Representatives, and that after the change, the work station referred to as Unit 5 was located across the aisle from the other work stations. Accordingly, the Union concludes that the reference in Proposal 1 to Unit 5 does not interfere with the colocation of the Teleclaims Representatives in the work station which previously was referred to as Unit 5.

V. Analysis and Conclusions

A. Conditions of Employment

The complaint contains two allegations. First, the complaint alleges that the Respondent "unilaterally changed the working conditions of bargaining unit employees by changing the seating assignments of certain . . . employees[.]" GC Exh. No. 1(g) at para. 6(a). The complaint also alleges that the Respondent unilaterally changed unit employees' working conditions "by changing the Unit assignments of Claims Development Clerks and the working relationships of Claims Development Clerks and Claims Representatives[.]" Id. at para. 6(b).

The Judge concluded that the decision to change unit employees' seating assignments and alphabetical work assignments "clearly concerned terms and conditions of employment of unit employees[.]" Judge's Decision at 12. The Judge stated that whether the Union's "underlying concern" was over working relationships was "immaterial" to his conclusion because it is the "basic subject matter of the changes under consideration which governs the determination of whether the matters in issue were conditions of employment." Id.

In view of the Judge's statement and holding, we reject as unfounded the Respondent's assertion that it is "unclear whether the Judge found . . . that a change in working relationships is a condition of employment[.]" Exceptions at 12 n.9. In addition, we agree with the Judge that, in determining whether a change concerns a condition of employment of unit employees, a distinction should be made between the subject matter of the changes and the effects of the changes. In particular, and as discussed below, the effects of changes are relevant to determine whether, for example, the effects are sufficient (more than de minimis) to give rise to a bargaining obligation. A determination as to whether a change concerns a condition of employment, however, is based on the subject matter of the change itself and whether (1) that subject matter pertains to bargaining unit employees, and (2) the record establishes that there is a direct connection between the subject matter and the work situation or employment relationship of unit employees. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

In this case, the changes proposed and effected by the Respondent related to seating assignments and alphabetical unit assignments. There is no dispute in the record before us that the changes in employees' seating assignments and alphabetical assignments concern unit employees' conditions of employment. Accordingly, as these changes pertain to, and directly affect the work situation of, unit employees, we agree with the Judge that the changes concern conditions of employment.

In our view, any changes in working relationships which occurred in this case resulted from, and were effects of, the changes in seating and alphabetical assignments. Accordingly, we conclude that we need not address, for the purposes of this decision, the issue as to whether a change in working relationships may constitute an independent change in conditions of employment. Whether the effects of the changes in seating arrangements and alphabetical unit assignments on working conditions were sufficient to give rise to a bargaining obligation are separate issues and are discussed below.

B. Effects of the Change in Alphabetical Assignments

The Judge's conclusion that the change in alphabetical assignments involved a change in conditions of employment which had more than a de minimis impact on unit employees is based solely on the impact of the change on employees' "working relationship[s.]"(2) We conclude that, in the circumstances of this case, the effect of the change in alphabetical assignments on employees' working relationships is not sufficient to establish that the effects of the change were more than de minimis.

There has been no demonstration that the nature of the unit employees' work is such that the employees' ability to perform their work is related in any meaningful way to their personal relationships with their fellow employees. That is, there has been no showing that, apart from employees' personal preferences, the employees' accomplishment of their work depends in any way on the nature of their personal relationships. Instead, the only impact of the change here appears to be that different Claims Representatives and Claims Development Clerks would be required to work with each other. Accordingly, without addressing whether, in any case, an effect on working relationships, standing alone, would be sufficient to demonstrate that the effects of a change were more than de minimis, we conclude that the nature of the working relationships among the employees involved in the change in alphabetical assignments is not such that an effect on those relationships demonstrates that the change in alphabetical assignments had more than a de minimis impact on unit employees.

The General Counsel does not allege that there are any other factors which demonstrate that the change in alphabetical assignments had a more than de minimis impact on unit employees. We conclude, therefore, that the impact of the change was de minimis and that the Respondent was not obligated to bargain with the Union about the impact and implementation of the change. Accordingly, we will dismiss this aspect of the complaint. As the Respondent was not obligated to bargain over the impact and implementation of the change in alphabetical assignments, we need not address the negotiability of the Union proposals relating to that change (Proposals 2 through 8), including Proposal 7, the only proposal relating to the change to which an exception was filed.

C. Effects of the Changes in Seating Assignments

The Respondent does not except to the Judge's finding that the Respondent failed to provide the Union with proper notice and an opportunity to bargain over the impact and implementation of the changes in seating arrangements implemented between November 17 and 19. The Respondent does except, however, to the Judge's conclusion that the changes in seating arrangements involved a change in conditions of employment which had more than a de minimis impact on affected employees.

As discussed in connection with the changes in alphabetical assignments, we conclude that, in the circumstances of this case, there has been no demonstration that employees' personal working relationships have a meaningful effect on the employees' abilities to accomplish their work. Accordingly, the effect of the changes in seating assignments on employees' working relationships does not establish that the impact of the changes was more than de minimis.

With respect to the changes in seating assignments, however, we conclude that the other effects of the changes, including the movement of four employees (3) (one-fourth of all unit employees) and one employees' loss of access to a window, are sufficient to support the Judge's conclusion that the changes in seating arrangements were more than de minimis. We note, in this regard, that the location in which employees perform their duties, as well as other aspects of employees' office environments, are "matters at the very heart of the traditional meaning of 'conditions of employment.'" Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir. 1983). Further, employees' and management's competing interests in office space "present the sort of questions collective bargaining is intended to resolve." National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414 (1990) (Internal Revenue Service). Accordingly, although not all changes in office space will give rise to a bargaining obligation, we find that in this case the effect of the changes in seating assignments was more than de minimis.

As the effect of the changes in seating assignments was more than de minimis, the Respondent was required to provide the Union with notice of, and an opportunity to bargain over the impact and implementation of, the changes. There is no dispute in this case that the Respondent did not provide the Union with notice of, and an opportunity to bargain over the impact and implementation of, the changes. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute.

D. The Negotiability of Proposal 1

The Respondent engaged in an unfair labor practice by failing to notify the Union of the change in seating assignments and provide the Union with an opportunity to bargain over the impact and implementation of the change. Despite the Respondent's unlawful implementation of the change, however, the Union submitted a proposal concerning the impact and implementation of the change in seating assignments some 3 weeks after the change was implemented. This proposal (Proposal 1) was submitted in connection with the Respondent's proposed change in the related matter of alphabetical assignments. The parties argued the negotiability of Proposal 1 before the Judge, who found it to be nonnegotiable, and the General Counsel and the Union except to the Judge's finding.

In cases where a party's defense to an unfair labor practice complaint rests on its contention that a particular proposal is nonnegotiable, resolution of the negotiability dispute is necessary to determine whether an unfair labor practice has been committed. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 31 FLRA 651, 656 (1988). Here, determining the negotiability of Proposal 1 is not necessary to determine whether the Respondent violated the Statute. Nevertheless, as the parties may, pursuant to our Order, engage in future negotiations over a change in seating assignments, we conclude that it is appropriate, consistent with efficient enforcement of the Statute, to resolve the General Counsel's exception to the Judge's finding that Proposal 1 is nonnegotiable.

Proposal 1 provides:

The desks and associated materials of each claims representative in units 2 through 4 will be moved by one position in the direction of the reception area. The unit 5 CR's desk and associated materials will be moved into the space currently occupied by the unit 4 CR. The unit 1 CR's desk and associated materials will be moved into the space currently occupied by the unit 5 CR. Effectuation of the moves will be accomplished by management, although union personnel may offer to assist.

The Respondent asserted before the Judge that the purpose of the changes in seating assignments "was to enable the two [Teleclaims Representatives] to work together more effectively and efficiently and to permit the public to have access to the front of the office in the conduct of interviews." Opposition at 8. The Judge concluded that the Respondent had "demonstrated that its decision to co[]locate the teleclaims employees has a technological relationship to accomplishing its work and the Union's proposal would excessively interfere with the purposes of the change." Judge's Decision at 17.

The Authority employs a two-part test to determine whether a proposal directly interferes with the right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. First, an agency must show a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. Internal Revenue Service, 35 FLRA at 406. The establishment of "a 'functional grouping' of employees constitutes the methods and means of performing work under section 7106(b)(1) where it is shown that the performance of an agency's work is facilitated by the ability to group employees based on the functions which they perform." Id. at 408 (citation omitted).

No exceptions were filed to the Judge's conclusion that the Respondent's decision to colocate the Teleclaims Representatives constituted an exercise of its right to determine the methods and means of performing its work. Accordingly, we do not address the Judge's conclusion that the Respondent's right to determine the methods and means of performing its work encompassed the right to colocate the Teleclaims Representatives. In addition, for reasons discussed below, we find that the Union's proposal does not interfere with the colocation of the Teleclaims Representatives.

The General Counsel contends that Proposal 1 would not interfere with the Respondent's ability to colocate the Teleclaims Representatives because the proposal "simply addresses where the remaining employees would be located" after the Teleclaims Representatives are moved to the Unit 5 location. Brief in Support of Cross-Exceptions at 2. The Union also contends that its proposal, which was made after the change had been implemented, would not disturb the colocation of the Teleclaims Representatives. In this regard, the Union argues that, subsequent to the realignment, the Unit 5 Claims Representative position was located across the aisle from the other four units, rather than being behind the other units as was the case prior to the change. The Respondent argues that the Union's "attempt to explain its actions and the intent of its proposal at this point in the process" should be rejected. Opposition at 3.

It is clear that, before the Respondent's change in seating assignments, "Unit 5" referred to the Claims Representative work station furthest back (in a straight line) from the reception desk. It is also clear that, after the change, "Unit 5" referred to the Claims Representative work station across the aisle from the other work stations. See Respondent's Exhibit No. 3. If, as the Union asserts, Proposal 1 refers to Unit 5 after implementation of the change, the proposal does not address, and as a result does not interfere with, the colocation of the Teleclaims Representatives in the former Unit 5 location. We conclude, for two reasons, that Proposal 1 should be interpreted as applying to the seating assignments after the change.

First, the realignment of employees' seating assignments, including the colocation of the Teleclaims Representatives, took place between November 16 and 20. Proposal 1 was made on December 7. Therefore, the Union's assertion that Proposal 1 refers to seating assignments after the Respondent's change is consistent with the chronology of events in this case. Second, Proposal 1, by its plain terms, does not refer to the Teleclaims Representatives. The Union's statement as to the meaning of Proposal 1 is, therefore, not inconsistent with the plain wording of the Union's proposal. See American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallego District Office, 35 FLRA 1276, 1282 (1990).

As Proposal 1 does not address, or affect, the seating assignments of the Teleclaims Representatives, the proposal does not interfere with the Respondent's decision to colocate the Teleclaims Representatives. Accordingly, even assuming that the Respondent's decision to colocate the Teleclaims Representatives constitutes an exercise of the Respondent's right to determine the methods and means of performing its work, a determination which we do not make in this case, the proposal is negotiable. Finally, the Respondent has not asserted that Proposal 1 is nonnegotiable on any other basis, and no such basis is apparent to us. We conclude, therefore that Proposal 1 is negotiable. See Internal Revenue Service.

E. Status Quo Ante Remedy

The Respondent argues that the Judge's status quo ante remedy would impair the efficiency and effectiveness of critical Agency operations. Specifically, the Respondent argues that a status quo ante order would reverse the colocation of the Teleclaims Representatives, and reinstate the Unit 5 Claims Representative and her associated Claims Development Clerk to their previous location at the rear of the office, a pairing which the Respondent found to be inefficient.

We find these arguments to be unpersuasive. In agreement with the Judge and for the same reasons, we find that, applying the criteria set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982), a status quo ante remedy with respect to the change in seating arrangements is warranted. Such a remedy would not unduly disrupt the efficiency and effectiveness of the Respondent's operations even though the changes in seating assignments may have improved the quality or efficiency of the Respondent's operations. There has been no allegation, however, that the changes in seating assignments were necessary from either an operational or a legal standpoint. Compare Department of Health and Human Services, Social Security Admininstation, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990) (status quo ante remedy appropriate where the respondent did not support its assertion that such a remedy would disrupt the agency's operations) with Department of the Navy, Naval Weapons Station Concord, Concord, California, 33 FLRA 770, 810 (1988) (status quo ante remedy not appropriate when "it would disrupt or impair the efficiency and effectiveness of Respondent's operations to require that the duty time of firemen be reduced"); and United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1048 (1990) (status quo ante remedy not appropriate when it would require the agency to return to an unlawful practice).

We conclude that the Judge's recommended status quo ante remedy with respect to the change in seating arrangements will not unduly disrupt or impair the effectiveness of the Respondent's operations, and that the Judge's recommended remedy effectuates the purposes and policies of the Statute. Accordingly, we will order the Respondent to rescind its new seating assignments policy and, upon request, bargain with the Union before making any further changes. We note, in this regard, that even if the Respondent's decision to colocate the Teleclaims Representatives constituted an exercise of its right to determine the methods and means of performing its work, that factor does not mean that the Respondent was privileged to implement the decision without bargaining, and does not render a status quo ante remedy inappropriate. It is well established, in this regard, that "status quo ante remedies may be issued . . . even when the agency's decision itself was not negotiable." Federal Correctional Institution, 8 FLRA at 605.

VI. Order

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts shall:

1. Cease and desist from:

(a) Failing and refusing to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of its employees, concerning procedures to be observed in implementing, and appropriate arrangements for any employees adversely affected by, changes in conditions of employment set forth in its November 17, 1987, memorandum concerning changes in employees' seating arrangements.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the changes concerning employees' seating arrangements set forth in the memorandum issued on November 17 and revert to the practices which were in effect prior to its issuance.

(b) Notify the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of its employees, of any intention to change employees' seating arrangements, or any other conditions of employment and, upon request, bargain about procedures to be observed in implementing, and appropriate arrangements for any employees adversely affected by, such changes.

(c) Post at its Fitchburg, Massachusetts District Office facilities 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 District Director 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 ensure that such notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegations of the complaint as to the change in alphabetical assignments are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to give adequate notice to, and upon request, bargain with the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of our employees, concerning procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the changes in conditions of employment set forth in our November 17, 1987, memorandum concerning changes in employees' seating arrangements.

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 rescind the changes concerning employees' seating arrangements set forth in our memorandum issued on November 17, 1987, and revert to the practices which were in effect prior to its issuance.

WE WILL notify the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative of our employees, of any intention to change employees' seating arrangements, or any other conditions of employment and, upon request, bargain about procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, such changes.

___________________________
(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, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046 and whose telephone number is: (617) 565-7280.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. All dates hereinafter refer to calender year 1987 unless otherwise specified.

2. The only other factors cited by the Judge in his conclusion that both changes herein had more than a de minimis impact on unit employees, the movement of five employees and the loss of one employee's access to a window, can be attributed only to the change in seating arrangements.

3. Although the Judge found that the changes affected five employees, the record reveals that the changes affected only four employees.